By Dr P R Prasad

There is a higher court than courts of justice and that is the court of conscience. It supercedes all other courts.
— Mahatma Gandhi

An innocent girl was gangraped and brutally assaulted by six men and then thrown out of the moving bus in Delhi in the late evening hours of December 16, 2012. The girl was treated in a Delhi hospital, her intestine had to be surgically removed and was air-lifted to a Singapore hospital in critical condtion where she finally died. This drew widespread protests from various sections of society demanding justice for the victim girl and death penalty for the heinous crime committed by the six men. All the accused have been since then arrested and chargesheet has been filed. The proceedings of the case has started in a fast track court for speedy trial.

One contentious issue in this case relates to one of the accused who is not only said to be a minor and but also most brutal among the six accused. Delhi police had demanded bone ossification test for confirmation of his correct age, but the Juvenile Justice Board recently rejected it and accepted his date of birth as 4 June 1995 as per his primary school records. So, being less than 18 years of age he cannot be tried in a regular court. He will be tried in a juvenile court and if convicted, he faces a maximum of 3 years in a remand home. Ironically, he cannot be put in jail and after attaining the age of 18 years he can neither be kept in a remand home. He is then a free man after 4 June 2013.

While the Juvenile Justice Board accepted the date of birth as 4 June 1995 as per school admission register, the headmaster of the school says – “There is no concept of producing birth certificates in village schools at the time of admission. People just bring their children and tell us their approximate age. We admit a child based on what the parents tell us. We can’t really be sure of his age, but as per the school admission records, he is 17 years and six months old. He could be older than this, but I’m sure he is not younger.“

The Juvenile Justice Act is intended to safeguard the interests of children and works on the premise that those below the age of 18 can be reformed and therefore they are not sent to jail but to reform or remand homes. But when the crime is heinous and rarest of the rare nature, US and UK laws permit prosecution of the juvenile as adult, but there is no such provision in Indian laws. Thus, the law is there to protect the accused and deny justice to the victim.

Delhi police will appeal against the decision of the Juvenile Justice Board in a higher court. People are watching anxiously if the victim will get justice or it will remain just a mockery of our justice delivery system.

I have come across another case where a well intended law has denied justice to the victim:

Madhya Pradesh: A girl was married off at the age of 14 by her parents. The marriage was marked by physical and mental cruelty and finally she got a divorce after 13 years of marriage. She got no maintenance from her husband and had to bring up two children. She decided to study and inspite of all the odds against her, she cleared the state civil services exams. But she was shocked when she was told that she was disqualified for the job. Reason – the law. She was married at the age of 14 and therefore it was an offense under Child Marriage Act.

Rule 6(5) of MP Civil Services (general condition of service) Rules, 1961 as ammended on March 10, 2005, says, “No candidate shall be eligible for appointment to a service or post who has married before the minimum age fixed for marriage. The minimum age of marriage for a boy is 21 years while that for a girl is 18 years.”

She challenged her disqualification and the legal validity of rule 6(5). The High Court dismissed her petition and justified the provision saying Rule 6(5) had been introduced to prevent child marriages more effectively as various laws to eradicate the social evil had not yielded results.

She has appealed to the Supreme Court. She is in fact a victim of the deplorable practice of child marriage in her society, but she is being treated as an offender and is being denied an opportunity to live with dignity and respect by earning her livelihood. The Supreme Court judgement needs to be watched.