Kathua Rape Case: How the Supreme Court Exorcised the Ghost of Juvenility

By Amjed Ashraf

THE Supreme Court of India recently delivered a decisive verdict on the juvenility of one of the accused in the appalling Kathua rape-murder case. The verdict was an outcome of the appeal filed by the U.T. (then State) of Jammu and Kashmir against the order passed by the High Court of Jammu and Kashmir (at Jammu), that had affirmed the order of the CJM Kathua, declaring the said accused as a juvenile on the date of the commission of the offence. In its verdict, a division bench of the Apex Court, shutting the door on the claim of juvenility, held the impugned order of the CJM and the High Court, ‘not sustainable in law’, and thereafter set it aside and directed that the respondent accused should be tried as an adult in accordance with the law. Considering that, in this piece, I will briefly try to shed some light on the rationale behind the court’s decision.

Overall, in this case, the only fundamental question, for adjudication, before the court was whether the accused was a juvenile on the date of the commission of the offence.

The answer regarding the determination of juvenility was rooted mainly in the provisions contained under Section 8 of the J and K Juvenile Justice (Care and Protection of Children) Act, 2013 as well as Rule 74 of the Rules framed under the Act. As stipulated therein, Rule 74 deals with the determination of age, and Sub-rule 3 of it under clause (i) and (ii) mentions particular certificates as a mode of age determination. However, clause (iii) of the sub-rule 3 provides that, ‘‘in absence of certificates mentioned in the clause (i) and (ii) or in case of any contradiction arising therefrom, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which shall record its findings and submit to the Juvenile Justice Board.’’ In the instant case, as rightly argued by the appellant state, there was an obvious discrepancy or contradiction in the documentary evidence on record—in the form of certificates—disclosing the age of the respondent accused. In fact, the date of birth certificate issued by the School, and the order of the Executive Officer Municipal Committee specifying the date and birth of place of the respondent accused, were palpably at variance. Even the order of the executive Magistrate per se was shrouded in irrationality as only 3 months of gap in date of birth was shown between the first and the second child, in it. Second, the letter of the Block Medical Officer of the Health and Family Welfare to the Superintendent of Police, stating with particulars that no such delivery had taken place at the municipal hospital, eroded the significance of the above order. As a result, there was no cogent or convincing evidence on record with respect to the correct date of birth of the respondent accused. In such circumstances, Sub-rule (3) (iii) of Rule 74 was supposed to kick in for the determination of age. The court, affirming the same, held that there is no good reason why the same should not be done. Further, it also emphasised that it was on the directions issued by the High Court that the Special Medical Board was constituted, and hence in absence of any cogent documentary evidence, there is no good reason for the court to ignore the report of the Board. Therefore, on this account also, the argument on behalf of the respondent accused that the said rule had no applicability, diminished in impact.

The interpretation of the word ‘May’

Notably, the language in which Sub-rule (3) (iii) Rule 74 is clothed, is prima facie directory in nature as it uses the word ‘may’. However, it is a well-established principle of interpretation that the word ‘may’ by itself is not conclusively directory in nature. It can be given a mandatory connotation and be read as ‘Shall’ where it appears to the court that the intention of the legislature demands so in light of the object, scheme, purpose, context, and other relevant considerations of the Act. In view of the same, in the instant case, the apex court held that considering the object of Sub-rule (3) of Rule 74, the word ‘may’ used herein has a mandatory import and thus be read as ‘shall’. Next, the apex Court referred to Section 8 which lays down the procedure to be followed when a claim of juvenility is raised before any court, and Section 48 of the Act 2013, which refers to the presumption and determination of age before a competent authority. This analogy was essentially drawn to highlight that in both these sections the word ‘shall’ has been used by the legislature.

Reliance on a Case

The learned counsel on behalf of the respondent accused, inter alia, placed strong reliance, on a case in which despite the presence of medical opinion, the court has displayed a tilt towards juvenility of an accused. However, disregarding the same, the Court held that the said case was considered by this court in another case and it is now settled that the approach was taken given the peculiar facts and circumstances of that case and so it cannot be generalized. The court also asserted that there is no hard and fast rule regarding the acceptability of the documents; it would depend on the facts and circumstances of each case.

Conclusion

Taking all the relevant factors into consideration, the Court held that in the case at hand, the documentary evidence fails to inspire any confidence, so in the interest of justice, there is no option but to lean on the report of the Special Medical Board. This route led the court to the conclusion that the respondent accused is not a juvenile and consequently should be tried as an adult. It was this rationale that assisted the court in legally exorcising the ghost of juvenility in the case.

Moreover, it is worth noting that before wrapping up the matter, the apex court unequivocally struck a clamant note of caution in its concluding remarks and in the same breath went on to provide some food for thought to the government regarding the effectiveness of the object of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer

• Amjed Ashraf is a final-year law student at Central University of Kashmir. He can be reached at [email protected]

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