The Supreme Court today decided to examine the constitutional validity of the definition of "juvenile" in the Juvenile Justice Act which equates offenders with minor, even if they are merely few weeks less than 18 years of age, irrespective of the gravity of crime.

The issue assumes significance in the wake of gangrape and assault of a 23-year-old girl here on December 16 in a moving bus as the charge sheet filed by the Delhi Police in a fast track court has mentioned that a 17-year-and-seven month minor, who was among the six accused in the case, was most brutal.

The apex court sought the assistance of Attorney General G E Vahanvati to examine the issues raised in the petition which also sought striking down of the definition of juvenile from the Juvenile Justice (Care and Protection of Children) Act.

"We have to examine the matter," a bench comprising justices K S Radhakrishnan and Dipak Misra said while adding that "the matter is relating to fixation of age".

"It is a question of law," it said and added that "the fixation of age should have some nexus with the gravity of the crime or offence" for deciding whether the offenders can be tried as adults in heinous offences.

The bench asked the Attorney General to file counter affidavits and relevant reports relating to the issue on behalf of the Ministry of Law and Ministry of Home Affairs by March 29 and decided to hear the matter from April 3.

The petition, filed by two advocates--Kamal Kumar Pandey and Sukumar--contended that sections 2(L), 10 and 17 of the JJ Act which deals with the issue were irrational, arbitrary, without reasonable nexus and thereby ultravires and unconstitutional.

The Attorney General, who was asked to assist the court, said the Justice J S Verma committee report has gone into all the issues but refrained from lowering the age for making a classification for juvenile.

However, the bench said it will not go into the Justice Verma Committee report as the issue before it was purely a matter of law. 

Vahanvati said the Centre was ready to assist the court and state governments can also be asked to address and there are NGOs which are also active on the issue.

The bench, however, said, "The states have no role and we are not going to hear the NGOs."

It said since the matter is related to fixation of age and the JJ Act was based on international convention, there are countries which have fixed 16 years and some retained 18 years for the purpose of defining juvenile.

"We are only considering it for the purpose in the backdrop of Artice 14 and 21 of the Constitution," the bench said as the PIL mentioned that the categorization of accused person as 'Juveniles in conflict with Law' and the related provisions thereof as provided in JJ Act are violative of the Fundamental Rights of the citizens.

The counsel, appearing for the petitioners, said the maturity of mind and reason in a child is not uniform in all children upto the age of 18 years and the definition of juvenile under section 82 and 83 of the Indian Penal Code is a much better classification of children in accordance with their age in respect of the offence committed by them.

He submitted that the child upto the age of 7 years is totally exempted from any criminal liability and in case of children between the age of 7 to 12 years there is judicial discretion to judge as to the maturity level of the child in respect of the offence committed.

Section 82 provides that nothing is an offence which is done by a child under seven years of age.

Section 83 says nothing is an offence which is done by a child above seven years of age and under twelve and who has not attained the maturity to understand or judge the nature and consequences of his conduct.