Debate rages as Delhi HC refuses to stay ‘juvenile’ release

A debate is raging across the country and in Parliament as the juvenile convicted in the December 16, 2012 Nirbhaya gang rape is all set to walk out a free man on Sunday, as scheduled, after the Delhi high court refused to intervene in the case.

The decks were cleared for the release of the convict, who attained legal adulthood within a year of committing the heinous crime, with the Delhi high court on Friday refusing to intervene, saying he cannot be stopped from walking free under existing provisions of law.

The convict, now 20 years old, is expected to walk out of the reformation home on December 20 at the end of his three-year term in a reform home, unless there is a stay from the Supreme Court.

Brushing aside the public outcry against his release, a two-judge bench comprising Chief Justice G. Rohini and Justice Jayant Nath directed the Juvenile Justice Board to interact with the convict, his parents and concerned officials of the Department of Women and Child Development regarding his “rehabilitation and social mainstreaming”.

“Crime has won and we have lost (Jurm jeet gaya, hum haar gaye)” was the immediate reaction of the family of the gangrape victim after the court refused to stay the release of the convict. A dejected Asha Devi, mother of the victim, told reporters: “Despite all our efforts for three years, our government and our courts have released a criminal. The assurance we were given was that we will get justice, but that has not been delivered. We are very disappointed. Although we haven’t seen him, not met him, but despite all our efforts, the criminal will walk free.”

The victim’s father also expressed disappointment over the order and said it should have had a deterrent effect. He indicated that they have no plans to move the Supreme Court for now. “The order must be delivered while keeping in mind that it helps in the betterment of society and acts as a deterrent so that no one can commit such kinds of crimes in future,” he said, adding that the law must be changed.

The rape case had raised a major debate across the country on whether the age of juvenility should be lowered or they should be treated as adults in cases of heinous offences. Cutting across party lines, women MPs had also opposed the release of the juvenile convict in this case.

Union minister Maneka Gandhi blamed Rajya Sabha for not passing the bill to amend the Juvenile Justice Act, which seeks stringent punishment for children aged between 16 and 18 years involved in heinous crimes. “I would blame the Rajya Sabha for not passing the law. Had they passed the bill, he (accused juvenile) would not have gone scot-free,” Ms Gandhi said outside Parliament. [Any such amendment would need to have restroactive effect, which is another sticking point in law.] She said the existing law was insufficient to hold the punishment of the accused juvenile who was the most gruesome of all six rapists.

Union water resources minister Uma Bharti said though the court’s decision cannot be questioned, the matter needs to be deliberated upon to find a solution. “I cannot question the court’s decision as it works in the ambit of laws. We will have to deliberate upon possible solutions in this matter.”

But BJP leader and former top cop Kiran Bedi said even after the juvenile convict is released, the 20-year-old youth can be arrested by the Delhi police for apprehension of breach of peace. “Rapist being released can be arrested by Delhi police under 107/151 of CrPC for apprehension of breach of peace till SC considers parents’ petition,” she tweeted.

Congress leader Sharmistha Mukherjee said, “It is a collective responsibility, but primarily of the state, because the whole focus of our judicial system is not retributive but reformative. And we focus on giving a second chance to a person, and specifically in the cases like this. Youth have got so much energy, and if it is not channelised positively it can turn destructive.”

The Delhi Commission for Women said the court’s refusal to stay the release was a “dark day” in the history of the country and that the DCW would appeal against his release. DCW chairperson Swati Maliwal said she would appeal to the Chief Justice of India, the Delhi high court and also write to the President against the release of the juvenile.

Earlier, the high court said BJP leader Subramanian Swamy’s plea seeking a stay on the release of the juvenile convict cannot be allowed as statutory and existing law was coming in its way. “Having regard to the fact that the maximum stay that can be directed in the Special Home under Section 15(1) of the Juvenile Justice Act is three years and that the convict would be completing the period of three years by December 20, 2015, there cannot be any direction to continue his stay in the special home beyond December 20. Hence we decline to issue any direction as prayed by the petitioner.”

The high court said the issue of reformation of a juvenile in conflict with the law required deeper consideration and sought the response of the Centre and Delhi government on the issue within eight weeks. “The need for ascertaining the factum of reformation of the juveniles in conflict with law before they are released from the special home on expiry of the period of stay ordered by the JJ Board is a larger issue of public importance which requires deeper consideration...”

The release of the convict was also opposed by the Centre which had said several mandatory aspects were missing from the post-release rehabilitation plan which needed to be considered before setting him free.

The case dates to December 29, 2012, when six persons, including the convict who was then a juvenile, had brutally assaulted and raped a 23-year-old girl in a moving bus in South Delhi. The victim had died in a Singapore hospital on December 29, 2012. Mukesh, Vinay, Pawan and Akshay were awarded the death penalty by a trial court in the gangrape and murder case which was later confirmed by the Delhi high court. Their appeals are pending before the Supreme Court. Accused Ram Singh had allegedly committed suicide in Tihar Jail on March 11, 2013, and proceedings against him were abated following his death.

In his petition, Mr Swamy had claimed that there is a lacuna in the Juvenile Justice (Care and Protection of Children) Act of 2000, as amended in 2011. The JJ Board had sentenced the juvenile to three years’ detention in a reformation home. In the petition, Dr Swamy contended that “no provision has been made in the act to provide for vicious unregenerate convicted juveniles who, despite having undergone the reformation process for the maximum penalty of three years custody in a special home, continue to be a menace to society...”