New Delhi: Nearly a year after the brutal gang-rape and murder of a 23-year-old girl here, the Supreme Court on Monday sought the Centre`s stand on criminal courts` power to decide `juvenility` of an offender, who are between the age of 16 to 18 years, in heinous crimes.
A bench headed by Justice B S Chauhan issued notice and asked the Ministry of Women and Child Development to respond within four weeks to the plea that a criminal court cannot be "ousted" from judicial function to try juveniles for offences covered under IPC.
It sought the Centre`s views on the question as to who will decide the maturity of an offender, who is above 16 and below 18 years of age, in matters relating heinous offences.
The bench, also comprising Justice S A Bobde, asked the counsel for the victim`s parents to provide "the portion" of the records, including the statements that implicates the juvenile offender in the December 16 case and fixed the matter for hearing on January 6.
At the start of hearing, it was alleged the legislature lacked powers to interfere with judicial functions and certain provisions of the Juvenile Justice (Care and Protection of Children) Act be declared as "unconstitutional" to the extent they puts a "blanket ban" on powers of criminal courts to try a juvenile offender for offences under IPC.
"It means you are challenging the legislative competence of Parliament," the bench said.
"The question of minority of an offender needs to be decided by a criminal court and not by others," advocate Aman Hingorani, appearing for the victim`s parents, said.
The juvenile, who was six months short of 18 years at the time of incident, was convicted for gangrape and murder of the girl but got away with a maximum of three years imprisonment mandated under the law by the Juvenile Justice Board here.
The four adult accused -- Akshay Thakur, Vinay Sharma, Pawan Gupta and Mukesh -- were tried by a fast-track court which awarded them death penalty. Now the sentence is before the Delhi High Court for confirmation.
Another accused Ram Singh was found dead on March 11 in his cell in Tihar Jail and the trial against him was abated.
On the night of December 16, 2012, the girl was gang-raped and brutally assaulted by six persons in a moving bus here. She died in a Singapore hospital on December 29, last year.
Besides seeking striking down of certain provisions of the juvenile law, the petition has also sought the trial of the juvenile offender by a "competent criminal court" in the case.
The victim`s parent, who had said the August 31 verdict of the Board was not acceptable to the family, have said the juvenile law be held unconstitutional "to the extent it puts a blanket ban on the power of the criminal courts to try a juvenile offender for offences committed under the IPC and is hit by the implied constitutional prohibition on Parliament to infringe on the peculiar and appropriate functions of the judiciary."
It also stated that "the blanket protection to juvenile offenders from being tried by the criminal courts for offences under the IPC, is an instance of legislative adjudication, and, hence, unconstitutional."
"One of the accused (Respondent No 2--juvenile), however, has not been tried at all for the offences committed under the IPC by the criminal court on the premise that he is a juvenile in conflict with law aged 17 years," it said.
"The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion or compel them to shut their eyes. It is equally well-settled that the legislature has no power to take cases out of the settled course of judicial proceedings or to infringe upon the peculiar and appropriate functions of the judiciary," it said.