Nirbhaya case: SC rejects DCW plea, says can't stop juvenile's release

The Supreme Court on Monday dismissed a plea of Delhi Commission of Women chairperson Swati Maliwal against the release of the juvenile offender in the December 16 gang-rape case, saying "there has to be a clear legislative sanction" in this regard.

"If anything has to be done, it has to be done according to the law. We have to enforce the law," a vacation bench comprising justices A K Goel and U U Lalit said while refusing to entertain the plea of Maliwal filed in her official capacity as the DCW chief.

The bench did not agree with the submission that the juvenile offender can be subjected to the reformation process for a further period of two years under the juvenile law.

"Will we not taking away somebody's right to life guaranteed under Article 21 of the Constitution. There is nothing in the law to provide that," the bench said when the counsel for DCW cited provisions to drive home the point that the delinquent juvenile can be allowed to go through the further reformation process.

At the outset, the counsel for DCW assailed the order of the Delhi high court order saying that it did not consider the provisions of the Juvenile Justice (Care and Protection of Children) Act.

He said that the juvenile, who is in conflict with the law, has to undergo the reformation process and there is an Intelligence Bureau report which indicates to the contrary and that the juvenile has been rather radicalised further.

Additional Solicitor General Pinky Anand, appearing for the Centre, supported the DCW's submissions saying that the juvenile can be kept under observation till such time the reformation process is on.

"You are supporting them without making the law," the bench said, adding, "There must be some legislative sanction behind it. In no case it can get extended."

"We share your concern, but cannot do anything without legislative sanction," the bench further said, adding that the period cannot be extended beyond three years.

In an order on the intervening night of December 19-20, the Supreme Court had refused the move of DCW to stay the juvenile's release by giving an urgent hearing. In its order pronounced at 2 AM, the apex court vacation bench had posted the matter for hearing for on Monday.

The juvenile, who is now 20-years-old and was known to be the most brutal of the attackers, was released on Sunday and sent to an NGO.

The Special Leave Petition filed by DCW against the order of the Delhi High Court, which refused to restrain the release of the convict, was referred by Chief Justice of India T S Thakur before the vacation bench of the apex court.

Lawyers opposing the release of the juvenile offender, including senior advocate Guru Krishna Kumar and Devdutt Kamath, had rushed to Justice Goel's residence at around 1.30 am after Maliwal was told by the court's Registrar that the matter has been assigned to the vacation bench.

The grounds taken in the appeal against the high court order say that no mental assessment of the state of mind of the juvenile convict had been taken into account while taking the decision to release him.

Six persons, including the juvenile, had brutally assaulted and raped a 23-year-old girl in a moving bus in south Delhi on December 16, 2012. The victim had died in a Singapore hospital on December 29, 2012.

Mukesh, Vinay, Pawan and Akshay were awarded death penalty by the trial court in the gang rape and murder case which was later confirmed by the Delhi high court.

Their appeals are pending before the Supreme Court.

Accused Ram Singh had allegedly committed suicide in Tihar Jail on March 11, 2013, and proceedings against him were abated following his death.