The New Nation - Internet Edition

Justice Md. Imman Ali

(From previous issue)

At this juncture it would not be out of place to advert to one other issue which has been a bone of contention in the past. In cases brought under any special law, children have been tried by Special Tribunals. In State vs Sukur Ali, a 14-year-old child was convicted by the Nari-o-Shishu Nirjatan Daman Bishesh Adalat under section 6(2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and was sentenced to death. A Division Bench of the High Court upheld the conviction , and sentence on the ground that section 3 of the relevant law has an overriding effect and the provisions of this law would prevail over other laws, including the Children Act. In this regard it was observed in the Md. Roushan Mondal case, cited above, that ' t.. juveniles charged with offences falling under special law will have to be dealt with by the Juvenile Court in accordance with provisions of the Children Act, which, in our view, is of universal application and approach, irrespective of the offence alleged t. ' Support was gathered from the Indian decision in In re: Sessions Judge, Kalpetta, 1995 Cri.L.J. 330, where the Court after deliberation reasoned that the 1989 Act the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which has a non-obstante clause similar to section 3 of our Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995] aims at giving protection to the Scheduled Caste and Scheduled Tribe communities against whom atrocities are being committed. The Act was concerned with victims of the crimes and not the offenders. In their Lordships' view the overriding power given by section 20 of the Act cannot be extended to nullify the provisions contained in the 1986 Act [the Juvenile Justice Act, 1986]. Their Lordships concluded, " t it can safely be concluded that Parliament totally excluded the jurisdiction of ordinary courts in relation to juvenile offenders.

In other words, jurisdiction of all other courts established under law is ousted and it is solely conferred on Juvenile Courts, insofar as juvenile offenders are concerned." Similarly, in our country the Nari-o-Shishu Nirjatan (Bishesh Biclhan) Ain, 1995 and other similar special laws were enacted with a view to protecting the victims, whereas the relevant sections of the Children Act, 1974 were enacted for the benefit of the child offender.

[9 BLC (HCD) 2381]

If one applies the doctrine of mischief, i.e. the purpose for which the law was enacted, then one cannot avoid the conclusion that where the allegation involves a child in conflict with the law then the provisions of the Children Act will prevail. The matter has now been clarified by the Nari-o-Shishu Nirjatan Daman Ain, 2000, repealing the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, which is considered as a remedial legislation. In the new law section 20(7) provides that, 'if a child is accused of committing an offence under this law, or is a witness of such an offence, then, so far as possible, the provisions of the Children Act, 1974 shall be followed.'

Hence, it must be concluded that the matters described above, are a failure of the system to ensure the inalienable universal rights of the child-citizen, given by statute enacted to enforce the fundamental rights recognised by the Constitution.

In the above example, (Jail Appeal No. 552 of 2004) the system has failed to give the child offender his due benefits by way of bail, services of a Probation Officer, confinement in a place other than a prison and trial in an appropriate Court following the law and rules duly enacted in this regard, i.e, the Children Act 1974 and the Children Rules 1976. That law and the Rules having been specifically enacted for a particular class of citizens, it is the fundamental right of anyone falling within that category to receive treatment as provided by that law.

The matter being sub judice, I shall refrain from commenting on the legality or otherwise of the sentence awarded, in the facts of the case mentioned above.

("Section 20 of the 1989 Act states that save as otherwise provided in the Act, the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force t .)

i.e. Nari-o-Shishu Nirjatan Daman Ain, 2000 (XXXIX of 1974)

More than thirty-three years helve elapsed since the enactment of the Children Act 1974, yet we find many persons concerned with and responsible for the operation of the law to be oblivious of the provisions of the law thus enacted.

It cannot be over-emphasised that it is our bounden duty and in our greater interest to look after the well-being of our children for our prosperous and peaceful future. We are duty bound to enforce the law and to administer the rights ensured by legislation and to grant benefits accruing there from, whenever and wherever it is due.

Justice is to be ensured by due process of law. Children too have a right to be dealt with in accordance with law, i.e. the provisions of the Act, and thereby in conformity with the mandate of the Constitution.

The law was purposefully enacted for the benefit of that class, giving them specific rights, overriding the non-discrimination clause in the Constitution. We should not allow such rights to be frittered away. (Concluded)