Dec. 16 juvenile to walk - High court cites law and clears release

TT, New Delhi, Dec. 18: The parents of the paramedical student gasped audibly as Delhi High Court today set free the then juvenile among those who raped and murdered their daughter in a bus on December 16, 2012.

"I have been fighting for so long to ensure that this man, who had been the most brutal with my daughter, remains behind bars forever but that did not happen. I am heartbroken," the mother, who was in the court with her husband, later said on the phone.

"I wanted to see him hang. While my daughter's life has ended, this man will roam the streets freely," she added.

The then juvenile, six months short of 18 when he committed the crime and now 20 years old, is scheduled to be released from an observation home on December 20 and is free to choose his next destination.

The court said there was no provision in law that permitted detention of any convict beyond the term.

"...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 respondent No. 1 would be completing the period of three years by 20.12.2015, there cannot be any direction to continue his stay in the special home beyond 20.12.2015. Hence, we decline to issue any direction as prayed by the petitioner," the court said in its order.

The high court passed the order on a petition by BJP leader Subramanian Swamy, claiming that the juvenile had "become radicalised" during his stay in the special home because of his association with another minor convicted for his role in the Delhi High Court blast of 2011.

The Centre too had sought a stay on the convict's release, saying that the after-care plan prepared by the management committee of the juvenile home did not clarify his mental state.

But child rights activist Anant Kumar Asthana pointed out: "People keep forgetting that there is a rule of law in this country. Can any court detain any person beyond the period he is sentenced to? Can this be done with an adult in, say, Tihar Jail? In the juvenile justice system, there is a robust system of follow-up while it is absent in the adult criminal justice system. Why is the question of danger to society raised in this boy's case and not asked when an adult convicted of a heinous crime is released?"

Four of the other accused - Mukesh, Vinay, Pawan and Akshay - have been sentenced to death and their appeals are pending in the Supreme Court. The sixth suspect - Ram Singh - committed suicide in jail. Under the law, the then juvenile cannot be identified by his name.

The high court agreed to consider Swamy's main plea on the need to ascertain whether such convicts have reformed during their stay in special homes and whether they can be released without posing any threat to society. It issued notices to the Centre and the Delhi government seeking their response within eight weeks. The next hearing on the plea is on March 28.

The high court has directed the authorities to periodically review the status of the 20-year-old offender in line with the rules. It has instructed officials to provide quarterly follow-up reports to the Juvenile Justice Board for two years.

"The follow-up report shall clearly state the situation of the juvenile post-restoration and the juvenile's needs to be met by the state government in order to reduce further vulnerability of the juvenile," the court said.

The court also asked the Juvenile Justice Board to speak with the convict as well as his parents to decide on the plan to rehabilitate him.

Under a plan devised by the Delhi government, he will be given a one-time grant of Rs 10,000 and a sewing machine would be arranged so that he can rent a tailoring shop. During his stay in the observation home, the juvenile was taught tailoring and cooking.

Women and child development minister Maneka Gandhi blamed the legislative logjam in the Rajya Sabha for the imminent release of the convict, saying amendments to the Juvenile Justice Act could not be passed.

However, the bill was moved in the Lok Sabha only in 2014 and passed in May 2015, since when it is pending in the Rajya Sabha.

The juvenile was convicted on August 31, 2013. "How can a criminal law have retrospective effect? The new law cannot be applicable to this juvenile," said Asthana, the rights activist.

One of the amendments will allow those aged 16 and above to be tried under laws that apply to adults when the alleged crime falls in the heinous category. Currently, those aged below 18 cannot be tried as adults.

Had the amendment been in place in 2012, the then 17-plus accused would have been tried under the Indian Penal Code, which provides for the death penalty.

MPs from several parties had last week requested the Rajya Sabha Chairman to send the bill to a select committee on the ground that several clauses, including the threshold age, needed further scrutiny.

"The boy goes out and hopefully he is rehabilitated. We hope that he will not repeat his actions. I am sure that the home ministry will inform the local police station and keep a watch on him. But it will be an informal watch," Maneka added.