The recent developments in the ongoing trial of the accused in the infamous Nirbhaya rape and murder case have thrown up new challenges on the possible misuse of the juvinile justice law. The contradictions and subjectivity of the government authorities has added to this possible misuse of the legal provisions relating to determination of age of persons accused in a crime.

Amid these challenges, the Delhi high court put the home ministry & the law ministry to notice on a plea for declaring relevant provisions of the juvenile justice (Care and Protection of Children) Rules, 2007 (“2007 Rule”) and sub Rule (3) of Rule 12 of the Delhi juvenile justice (Care & Protection of Children) Rules, 2009 (“DELHI RULES”) relating to procedure for determination of age of an accused as unconstitutional and ultra vires being violative of several provisions of constitution of India. The public interest litigation (PIL) also seeks to maintain uniformity on the issue. The juvenile justice (Care and Protection of Children) Act, 2000 defines the term “juvenile” under section 2 (k) as “juvenile or child means a person who has not completed 18 years of age”.

The procedure for determination of age of an accused is set out in Section 7 (A) of the Act which reads as follows:

“Procedure to be followed when claim of juvenility is raised before any court –

(1)    Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of the person, and shall record a finding whether the person is a juvenile or a child or not, stating his age nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and that rule made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2)    If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.”

Subsequently the 2007 Rules have been framed to give effect to the aforesaid provisions on age determination. The relevant rule reads as follows:

“In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(a)

(i) the matriculation or equivalent certificates, if available; and in

(ii) absence whereof the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b)  and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the court or the board or, as the case may be, the committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.”

Even the 2009 Delhi Rules provides the following:

“In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(a) (i) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(ii) the birth certificate given by a authority or a panchayat; corporation or a municipal

(iii) the matriculation or equivalent certificates, if available; and in absence whereof;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.”

It would be necessary to examine the prevailing confusions amongst the Act and both the rules.

Both the aforesaid Rules:

i. rely upon three documents, i.e. certificate; (b) date of birth certificate from the school first attended; (c) birth certificate given by a corporation or a municipal authority or a panchayat for determination of age;

ii. do not provide that a date of birth certificate given by a corporation or a municipal authority or panchayat shall be considered first and only in absence whereof, enquiry will proceed further regarding determination of age;

iii. provide that in absence of a birth certificate issued by a corporation or a municipal authority or panchayat, only an affidavit given by either of parents or an oral statement given by either of parent or an assumed date of birth either by parents or Principal of first attended school, can be the basis of date of birth of a person recorded in his/her school records;

iv. negate the provisions of the Act which clearly provides to “take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person”. However, the rules are being considered in isolation and thus the provisions of the Act on the issue have been made redundant, thus making the rules contrary to law and unjust;

Presently, there are lot of confusion and difference of opinion prevailing amongst various Courts because of the ambiguity and non-clarity on the subject due to vague content in the aforesaid Rules.

Further, both the rules talk about a matriculation or equivalent certificate but how can the same be relied upon for determining the age of a person without going into enquiry about the record/document on which it is based, thus, in such a case, the first thing which is required to be enquired is whether such a certificate is issued on the basis of any contemporaneous record or not or can the same be considered to be an authentic proof of date of birth of a person as per aforesaid Act.

Even in the recent ongoing time of determining the age of sixth accused of that case, relied upon “a certificate provided by the government primary school in Badaun”, without going into any enquiry for determining the age of a juvenile, which is actually required by the law. That even in Nirbhaya’s case, the mother of the sixth accused (who has been declared a juvenile by the Juvenile Justice Board) was not sure about his date of birth and said, “I have no idea regarding either the day or date.” And the principal of his school said “the admission was given on the basis of his father’s oral statement regarding his age, who said ‘six or seven years ago’ and thus, the principal decided on his own the date of birth of the accused, on which the Juvenile Justice Board has relied upon and declared him a Juvenile in conflict with law.

There are number of such cases where the question regarding the procedure to be followed in determination of age, when claim of juvenility is raised, however, no two court are uniform in deciding the same and even if two cases come up before the same court with the claim of juvenility, the procedures adopted by the court for determining the same are different, because of non uniformity of procedure as prescribed under the rules.

There is complete lack of uniformity among the Courts regarding the procedure to be followed in determination of age, when claim of juvenility is raised rather there is a lot of confusion and difference of opinion amongst the Courts while applying their judicial minds regarding the documents which is to be relied upon while determining the claim of juvenility.

The need of the hour is to fix this ambiguity and enable the provisions of the Act to prevail and to thus ensure that the ambuity and subjectivity in implementing the procedure laid down in the Act for determination of the age of an accused seeking to be a Juvinile is eliminated.

The half hearted response on the issue in the handling of the Nirbhaya’s case has made the challenges on the account even worse, as, if such subjectivity was to prevail in a case involving such a barbaric act, nothing remains to be imagined how other routine cases would be handled.