DATE- 15th April 2017

NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

PROJECT SYNOPSIS ON

“The Impact of Nirbhaya Judgment on the Powers of Juvenile Courts and

Present Status of the Change”

NINTH TRIMESTER

SUBMITTED TO: SUBMITTED BY:

PROF. (Dr.) P.K. Shukla KANISHK DEVESH

SECTION- A

ROLL NO. - 2014BALLB02

 ACKNOWLEDGEMENT

If words are considered to be sign of gratitude then let these words convey the very same. I
am highly indebted to Professor (Dr.) P.K. Shukla who has provided me with the opportunity
of working upon a topic of my choice and provided me with necessary information and also
for the support and his valuable suggestions and comments on bringing out this project in the
best way possible.
I feel great pleasure to cordial thanks to the prestigious library of NLIU without which the
project would not have been completed and I am thankful to that power that always inspires
me to take right step in the journey of success in my life. Thank you.
Thank You.

Kanishk Devesh

2014ballb02
 Table of Contents
ACKNOWLEDGEMENT .................................................................................... 2

OBJECTIVES ....................................................................................................... 4

HYPOTHESIS ...................................................................................................... 4

STATEMENT OF PROBLEM ............................................................................. 4

RESEARCH METHODOLOGY.......................................................................... 4

INTRODUCTION ................................................................................................ 5

FACTS OF THE CASE ........................................................................................ 6

THE CONTROVERSY REGARDING THE JUVENILE OFFENDER ............. 8

THE JS VERMA COMMITTEE AND THE CRIMINAL LAW

(AMENDMENT) ACT, 2013 ............................................................................. 10

THE IMPACT OF THE JUDGMENT ON JUVENILE OFFENDERS ............ 15

CONCLUSION ................................................................................................... 18

References ........................................................................................................... 19
 OBJECTIVES

 To analyze the Nirbhaya judgment thoroughly.

 To analyze the guidelines lay down by the court and the J.S. Verma Committee.
 To understand the impact of Nirbhaya case on the Criminal Procedure Code with special
reference to juvenile justice system.
 To understand the present status of the changes brought about by the Nirbhaya case.

HYPOTHESIS

It is assumed at the beginning of the project that Nirbhaya case brought about a significant
impact on the Indian Penal Code and very less on the Code of Criminal Procedure.

STATEMENT OF PROBLEM

What are the changes brought about in the Criminal Procedure Code by the Nirbhaya
Judgment and what is the present status of those changes?

RESEARCH METHODOLOGY

The research method used herein is doctrinal.

 INTRODUCTION

This project report shall be dealing with the Nirbhaya case, a case so grave that it resulted in
the Criminal Law (Amendment) Act, 2013. Many activists showed their concerns and many
protests were carried out against the release of the juvenile offender of the case but the hands
of the courts were tied by the law. However, certain guidelines were laid down by the apex
court and the Criminal Law (Amendment) Act, 2013 was passed later on which made certain
amendments in the Indian Penal Code and in the Criminal Procedure Code. The said
amendment has resulted in several changes in the criminal law prevailing in the country.

The Project report herein shall cover the following heads:

 Brief Facts of the Nirbhaya Case.

 The Judgment of the Nirbhaya case and the controversy regarding the juvenile offender.
 The guidelines lay down under the judgment.
 The impact of the Criminal Law (Amendment) Act, 2013 on Cr.P.C.
 The impact on the jurisdiction of juvenile court after the Nirbhaya case.

The aforesaid heads will be followed by a critical analysis of the Nirbhaya Judgment thereby
concluding the project report with the suggestions, if any.
 FACTS OF THE CASE

The Crime: On the fateful day of December 16th 2012, at around 9:30 pm when the woman
Jyoti Singh along with her friend Awindra Pratap Pandey were returning from a movie an
off-duty private bus passed by. One of the people sitting in called for passengers telling them
that the bus was heading towards their destination. When Jyoti Singh and her friend got up on
the bus, on the way they were assaulted by the six joy-riders, including a minor who were
there in the bus. Awindra was beaten, gagged and knocked unconscious with an iron rod
while Jyoti was beaten and raped by all six men resulting in her getting unconscious. Both the
victims were then thrown off the moving bus and the girl suffered multiple fatal injuries.
Even after getting treatment by the best of the doctors in India and worldwide, she couldn’t
survive.

The Accused: All the six accused people were arrested by the police; one of them being a
seventeen year old juvenile was not kept along with the other five. Ram Singh was found
hanging to the ventilator shaft of his cell later.

The Trial: Even though the police promised to file the charge sheet as soon as possible, no
action was taken for a few more days. Following the public outrage, the charge sheet was
filed within a week and a fast track court was inaugurated by the then Chief Justice of India,
Altamas Kabir.

The Juvenile Defendant: Several petitions were filed by various organizations; many protests
were carried out by the people to get the juvenile tried as an adult keeping the nature of his
offence in mind. All these petitions were rejected by the Juvenile Justice Board (JJB). The
police requested to conduct a bone ossification test for the age determination of the accused
which too was rejected by the JJB. The minor was tried separately in a juvenile court and was
convicted for rape and murder but as per the provisions of the Juvenile Justice Act, he was
awarded a three years’ imprisonment in a reform facility. He was later released on 20th
December 2015.

The Adult Defendants: For the other four surviving accused men, a fast track court was set up
where they were tried and convicted for rape, murder, attempt to murder the male companion,
tampering with evidence and kidnapping. The Delhi High Court imposed death penalty on the
four accused people. They appealed to the Supreme Court against the order of High Court.
The Hon’ble Supreme Court stayed the execution of all the accused and later all of them were
awarded a 10 years imprisonment.
 THE CONTROVERSY REGARDING THE JUVENILE OFFENDER

Because of this case which shook the conscience of the country, many protests were carried
out and there was an outburst among the citizens of India. The reason for these outbursts and
protests was the less punishment awarded to the juvenile delinquent. Janta Party,
Subramanian Swami filed petitions stating that the crime committed by the Juvenile offender
was of a heinous nature and he should be tried by the regular court like an adult offender as
only six months were left for him in attaining majority, legally.

In view of the widespread protests, governments at the centre and various states announced
several steps to ensure the safety of women. The Government of Karnataka announced the
launch of a 24/7 dedicated helpline (1091) to be operated by the state police to register sexual
abuse complaints from women. It also is checking the possibility of setting up fast-track
courts to dispose of pending cases pertaining to crimes against women. The Government of
Tamil Nadu also announced a 13-point action plan to ensure safety of women in Tamil Nadu
and said that incidents of sexual assault would be treated as a grave crime, and probes would
be entrusted to top police officials. The chief minister also said that daily hearings would be
conducted in all sexual abuse cases in the state for speedy trials at specially constituted fast-
track courts, and women prosecutors would be appointed as government counsels.
The Jammu and Kashmir government also announced plans to change the state's laws against
sexual offences and gender crimes. The Government of Himachal Pradesh decided to set up
state and district-level committees to review progress of all cases of crimes against women.

Several petitions were filed by various people with demands for death penalty for rape cases
and for looking into the nature of the offence before deciding how they should be tried. A
committee was formed headed by Justice J.S. Verma to suggest amendments to criminal law
to sternly deal with sexual offenders. All the petitions were then rejected and the juvenile was
given an imprisonment for merely three years. Many politicians, scholars and dignitaries
from all around the world stated their view on this matter and soon the juvenile controversy
became an international issue so much so that the UN Women called on the Government of
India and the Government of Delhi “to do everything in their power to take up radical
reforms, ensure justice and reach out with robust public services to make women's lives more
safe and secure".
Other petitions included those which demanded a change in the age of a juvenile from 18 to
16 which too was rejected. The Juvenile Justice (Care and protection of children) amendment
bill was passed on 22nd December 2015.
 THE JS VERMA COMMITTEE AND THE CRIMINAL LAW
(AMENDMENT) ACT, 2013

As a result of the widespread protests that followed the death of Nirbhaya, The Criminal Law
Amendment Act was introduced as a bill in the Lok Sabha on 4th December 2012 to create
viable and stringent punishment options for such insanely brutal crimes against women. The
Justice J.S. Verma committee was set up to suggest amendments to various laws resulting in
quicker decision making and speedy justice against offenders of cases of special assaults of
such heinous nature. The report was submitted on 23rd January 2013. It made
recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse,
medical examination of victims, police, electoral and educational reforms. The key
recommendations regarding Cr.P.C. are summarised below:

1. A new sub-section to be added in Section 160 of the Cr.P.C. to require the statement of
female victims of sexual assault under the age of 12 to be recorded by a woman police
officer.
2. Recommendation as to Section 53 Cr.P.C.—It is very important that reasons should be
given for the opinion expressed in the report. Accordingly, we recommend the insertion
in S. 53 of the Code of Criminal Procedure, of the following sub-sections:
Ss. 53(1-A), (1-B), (1-C) and (1-D) Code of Criminal Procedure, 1973 to be inserted.
(1-A) When a person accused of rape or an attempt to commit rape is arrested and an
examination of his person is to be made under this section, he shall be forwarded without
delay to the registered medical practitioner by whom he is to be examined.
(1-B) The registered medical practitioner conducting such examination shall without
delay examine such person and prepare a report specifically recording the result of his
examination and giving the following particulars:
(i) The name and address of the accused and of the person by whom he was brought,
(ii) The age of the accused,
(iii) Marks of injury, if any, on the person of the accused, and
(iv) Other material particulars in reasonable detail.
(1-C) The report shall state precisely the reasons for each conclusion arrived at.
(1-D) The exact time of commencement and completion of the examination shall also
be noted in the report, and the registered medical practitioner shall, without delay,
 forward the report to the investigating officer, who shall forward it to the Magistrate
referred to in S. 1973 as part of the documents referred to in cl. (a) of sub-s. (5) of that
section.”
3. We are of the view that Section 417A suggested by the 84th Report requires to be
enacted, as suggested below:
“When a woman is arrested and there are no suitable arrangements in the locality for
keeping her in custody in a place of detention exclusively meant for women she shall
be sent to an institution established and maintained for the reception, care, protection
and welfare of women or children licensed under the Women’s and Children’s
Institutions (Licensing) Act, 1956 or an institution recognized by the State
Government except in cases where any special law requires that she should be sent to
a protective home or other place of detention authorized for the purposes of such
special law.”
4. What is most surprising is that Parliament has ignored the recommendation of the
84th Report, which calls for the punishment of a station-in charge who fails to register
information of a cognizable offence given to him. In this respect the 84th Report
recommended as follows:
“X. Non-recording of information relating to cognizable offences.
Section 167-A IPC—Refusal to register case of rape.—We now come to another
matter concerning the stage of investigation. During our oral discussions with the
representatives of women's organisations, it was stated that in some cases the police
fail to register a case of rape reported to them even when the full facts are
communicated to them. We have not been able to gather statistics of the number of
such cases, as the collection of the relevant figures would take considerable time and
the present Report deals with a matter of urgency. We hope that the percentage of
such cases would not be high. Nevertheless, we do take the view that in principle, the
law should contain a specific provision dealing with refusal (or failure without
sufficient cause) to register such cases. The offence of rape is a cognizable offence
and if the police fail to register it, it is a clear violation of the provisions of the Code
of Criminal Procedure, 1973 in this regard. Cognizable offences reported to the police
are “registered”—as the popular usage goes—under S. 154(1) of the Code of Criminal
Procedure. If the officer in charge of a police station refuses to record the information
reported relating to a cognizable offence, there is a remedy already provided in the
Code of Criminal Procedure, the relevant provision being in the following terms:
 “(3) Any person aggrieved by a refusal on the part of an officer in charge of a police
station to record the information referred to in sub-s. (1) [of S. 154] may send the
substance of such information, in writing and by post, to the Superintendent of Police
concerned who, if satisfied that such information discloses the commission of a
cognizable offence, shall either investigate the case himself or direct an investigation
to be made by any police officer subordinate to him, in the manner provided by this
Code and such officer shall have all the powers of an officer in charge of the police
station in relation to that offence.”

The prominent changes brought about in Cr.P.C. after the promulgation of the act are as
follows:

1. As the amendment had it effect in IPC and made out new offences of voyeurism and
stalking from Ss.367A to 367E, so for the clarity of the same the related provisions in
Cr.P.C. (Ss. 26, 173 & 327, The Code of Criminal Procedure, 1973) were made to
include separately the sections, as it did not previously have S.376E IPC. It says “section
376A, 376B, 376C, 376D and 376E” and also 376 as it previously stated i.e. along with
S.376, it now includes other new sections.
2. The provisions regarding identification of person arrested when the person who is
identifying the same is mentally or physically disabled was amended. Such process of
identification shall now take place under the supervision of Judicial Magistrate and also
the comfort of such person would be considered. It is also said that such identification
shall be video graphed. (Section 54-A, Cr.P.C.)
3. Information given by a woman against whom crime of the nature of sexual offence is
committed would be recorded by a woman police officer or a woman officer and in case,
the person is temporarily or permanently, mentally or physically disabled, information
will be recorded by a police officer at the residence of such person or at convenient place
with the help of interpreter. (Section 154, Cr.P.C.) Such information shall be video
graphed and statement shall be recorded by Judicial Magistrate under clause (a) of sub-
section 5-A of S. 164 Cr.P.C.
4. Substitution of words “under fifteen years of age or above age of sixty-five years or
woman or mentally or physically disabled” for the words” under age of fifteen years or
woman”. (Section 160, Cr.P.C.) The amendment included senior citizens and mentally or
 physically disabled person to be given the privilege that they do not have to attend the
police station if they are witnesses.
5. The examination of victim of any sexual offence after the amendment can be recorded
only by a woman police officer or woman officer. (Sec. 161, Cr.P.C.)
6. Statement by any victim of sexual offence to be recorded by Judicial Magistrate. In case
the person is physically or mentally disabled, assistance of educator or interpreter is an
option. Such statement shall also be video graphed. (Sec. 164, Cr.P.C.)
7. No sanction to be required in case of offences of disobedience of public servant i.e.
Ss.166A and 166B or any sexual offence. (Sec. 197, Cr.P.C.)
8. Cognizance shall not be taken of the offence punishable under S.376-B IPC i.e. in
marital rape unless the satisfaction should be that the complaint is made by wife against
the husband. (Sec. 198-B, Cr.P.C.)
9. Any woman below the age of 18 years to be subjected to rape or sexual offence shall not
be confronted by accused and that the right of cross examination of accused is also
safeguarded, based on the principles of natural justice, audi alteram partem. (Sec. 273,
Cr.P.C.)
10. The words “held as expeditiously as possible and in particular when the examination of
witness has once begun” have been removed and in its place the words “continued from
day to day” have been put. This makes the provision state that the notion of trial must be
rather to bring more accurate result than just finishing off the whole thing to merely get
an expeditious result. Yet the basic essence of speedy trial has not been lost as the
proviso added talks about the minimum time of two months from the date of filing
charge sheet which is given to complete inquiry or trial in cases of sexual offences. (Sec.
309, Cr.P.C.)
11. The compensation payable by State Government under S.357-A CrPC shall be in
addition to payment of fine to victim under S.326-A or S. 376-D of IPC. (Sec. 357-B,
Cr.P.C.)
12. All hospitals whether Public or Private run by Central or State Government or Local
Bodies shall provide first aid to victims of S.326A or Ss.376 , 376 -A to376- E, IPC , free
of cost and inform to the police of such incident. (Sec. 357-C, Cr.P.C.)

Also, the first schedule of Cr.P.C. has classified all the acts punishable under IPC, 1860 into
cognizable and non-cognizable offences as well as bailable and non bailable offences. It also
mentions by what court the offence is triable. The Code itself does not give any reasoning as
to such classification.

It was seen that the existing classification of offences was becoming a major cause for the
high incidents of arbitrary and unnecessary arrest in the country and in yet other cases the
accused used to roam free due to loose laws in the country. The scheme of classification was
found out to be out-dated and redundant. These loopholes called out for a serious change in
such classification which saw many amendments in First Schedule, major portion of which
was in women related offences. The amendments are worth noting and are listed below:

1. Section 166-A and 166-B of IPC have been inserted by Criminal Law (Amendment)
Act. The former has been made cognizable, bailable and latter is non-cognizable and
bailable. Both are triable by magistrate of first class. These refer to offences by public
servant and their disobedience.
2. After Section 326, IPC , two new sections, Section 326A and 326 B have been added,
they both have been made cognizable and non bailable and can be tried by Court Of
Session. These sections refer to acid attack.
3. Section 354 IPC has been made non-bailable, but no notification has been made of it
becoming non-bailable, thus, as for now it is bailable. Rest of the sections,[36] are
bailable, however S.354-B IPC is non bailable and second conviction in Ss. 354-C
and 354-B IPC is non bailable.
4. The offences under a bulk of Sections are made non billable while only S.376- B IPC
is left bailable.
 THE IMPACT OF THE JUDGMENT ON JUVENILE OFFENDERS

After many discussions, committees, protests and outbursts, a bill called “The Juvenile
Justice (Care and Protection of Children) Act, 2014” was passed which replaces “The
Juvenile Justice (Care and Protection of Children) Act, 2000”. It addresses children in
conflict with law and children in need of care and protection.

The main feature of this bill is that it permits juveniles between the ages of 16-18 years to be
tried as adults for heinous offences. Also, any 16-18 year old, who commits a lesser, i.e.,
serious offence may be tried as an adult only if he is apprehended after the age of 21 years.
Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in
each district. The JJB will conduct a preliminary inquiry to determine whether a juvenile
offender is to be sent for rehabilitation or be tried as an adult. The CWC will determine
institutional care for children in need of care and protection.1

There are differing views on whether juveniles should be tried as adults. Some argue that the
current law does not act as a deterrent for juveniles committing heinous crimes. Another view
is that a reformative approach will reduce likelihood of repeating offences. The provision of
trying a juvenile committing a serious or heinous offence as an adult based on date of
apprehension could violate the Article 14 (right to equality) and Article 21 (requiring that
laws and procedures are fair and reasonable). The provision also counters the spirit of Article
20(1) by according a higher penalty for the same offence, if the person is apprehended after
21 years of age. The UN Convention on the Rights of the Child requires all signatory
countries to treat every child under the age of 18 years as equal. The provision of trying a
juvenile as an adult contravenes the Convention. Some penalties provided in the Bill are not
in proportion to the gravity of the offence. For example, the penalty for selling a child is
lower than that for offering intoxicating or psychotropic substances to a child. The Standing
Committee examining the Bill observed that the Bill was based on misleading data regarding
juvenile crimes and violated certain provisions of the Constitution.

Juvenile Justice Boards (JJBs) will be constituted in each district to deal with children in
conflict with law. They will consist of a Metropolitan or Judicial Magistrate and two social
workers, including a woman.

1 http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-bill-2014-3362/
Offences committed by juveniles are categorized as: (i) heinous offences (those with
minimum punishment of seven years of imprisonment under IPC or any other law), (ii)
serious offences (three to seven years of imprisonment), and (iii) petty offences (below three
years of imprisonment). A juvenile cannot be given life imprisonment without the possibility
of release or death penalty.

Under the Bill, a juvenile in conflict with law can be required to spend a maximum of three
years in a special home or fit facility. However, juveniles in the age group of 16-18 years
may be tried as adults in certain cases. Any person who is between the ages of 16-18 years
and has committed a heinous offence may be tried as an adult, irrespective of date of
apprehension. Also, a juvenile between 16-18 years of age who has committed a serious
offence and apprehended after the age of 21 years, may be tried as an adult.

In all other cases, juveniles will get a maximum of three years in institutional care, as
determined by the JJB.

In case of heinous offences, if a juvenile is apprehended before 21 years of age the JJB will
conduct a preliminary inquiry. This will determine his mental/physical capacity to commit an
offence and an understanding of its consequences. The JJB will then pass an order that
recommends: (i) interventions like counseling or community service; (ii) staying at an
observation home for a temporary or long-term period; or (iii) refer the juvenile to a
Children’s Court to determine whether to try him as an adult.

A Children’s Court is a Sessions Court notified under the Commissions for Protection of
Child Rights Act, 2005. For the purposes of this Bill, once a juvenile is referred by a JJB to a
Children’s Court it will determine whether to try him as an adult or else recommend
counselling, stay at observation home, etc.

The Bill requires certain juveniles between the ages of 16-18 years to be tried as adults with
regard to specific offences. This provision is not in accordance with the UNCRC, as ratified
by India, and mentioned in the Bill’s Statement of Objects and Reasons. The Standing
Committee observed that the Bill violates the UNCRC as it differentiates between children
below 18 years of age.7 The UNCRC states that signatory countries should treat every child
under the age of 18 years in the same manner and not try them as adults. It recommends that
those countries that treat or propose to treat 16-18 year olds as adult criminals, change their
laws to align with the principle of non-discrimination towards children.

The 2000 Act was enacted to implement the UNCRC guidelines in the Indian context. Unlike
the Bill, the 2000 Act complies with the UNCRC guidelines and does not distinguish between
persons below the age of 18 years. However, many other countries try juveniles as adults, in
case of certain crimes. All of these countries, except the United States, have ratified the
UNCRC. In the Annexure on the last page, we compare criminal laws in these countries with
regard to treating juvenile offenders as adults.

The Standing Committee on Human Resource Development (Chair: Dr. Satyanarayan Jatiya)
submitted its report on the Bill on February 25, 2015. Key recommendations include:

Constitutional provisions: The Committee noted that the 2000 Act recognises the sensitive
age of 16-18 year olds and is reformative and rehabilitative in nature. Subjecting juveniles to
the adult judicial system would go against the principle of Articles 14 (unequal treatment of
16-18 year olds) and 15(3) (against the objective of protecting children) of the Constitution. It
also said that the Bill was in violation of Articles 20(1) and 21 of the Constitution.

NCRB data: One of the reasons cited for the Bill’s introduction is an increase in heinous
offences committed by 16-18 year olds. The Committee stated that this data compiled by
NCRB is misleading as it is based on filing of FIRs and not actual convictions.

Implementation: The Committee observed that the Act is not being implemented well. It
recommended better implementation and uniform establishment of systems and procedures,
by all agencies.
 CONCLUSION

Thus we can say that the Nirbhaya case became a catalyst for change in the judicial system
especially with regard to the provisions relating to sexual violence, harassment and
provisions relating to juveniles.

The case led to several protests and committees to think over the widely demanded issue i.e.
the juveniles. There were several changes made in the IPC and the Cr.P.C. after this judgment
by virtue of the “Criminal Law (amendment) Act, 2013” passed in accordance with the JS
Verma Committee report. A new act called “The Juvenile Justice (Care and Protection of
Children) Act, 2014” for juveniles was passed which allowed the juveniles between 16 to 18
years to be treated as adults in case of heinous crimes.

However, the age of a juvenile was not reduced to 16 years altogether. Since, in India,
criminal laws are to be implemented prospectively, the juvenile offender of the Nirbhaya case
was not punished for more than three years but these safeguards are made to ensure that no
other instance like the Nirbhaya case happens again.

There have been lot of discussion over the issue which resulted in the law today. The reality
is that even though the punishments have become stringent but the number of juvenile
offenders has not reduced. Referring to the data of NCRB it could be said that the judicial
system is working towards a revolutionary step.
 References

 http://www.arguendo.co.in/2015/06/legal-scope-criminal-law-amendment-act.html
 http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-
bill-2014-3362/
 http://www.prsindia.org/uploads/media/Juvenile%20Justice/Juvenile%20Justice%20A
ct,%202015.pdf
 http://timesofindia.indiatimes.com/city/delhi/Case-became-catalysts-for-change-in-
judicial-system/articleshow/27389059.cms
 http://mahakchaudhary1992.blogspot.in/
 https://en.wikipedia.org/wiki/2012_Delhi_gang_rape#Incident
 http://digitalcommons.uconn.edu/cgi/viewcontent.cgi?article=1458&context=srhonors
_theses
 The Criminal Manual by Universal’s Publication
 The Criminal Procedure Code by Ratanlal and Dhirajlal.