Introduction
The recent days have been marred by public outrage due to the horrific accident that took place in Pune. The accident was allegedly the result of the negligent driving of a 17-year-old, who allegedly consumed liquor before the incident. The juvenile has been sent to a probationary home and his bail, which was earlier granted, has been cancelled. Much of this latest development can be attributed to the public outrage, that is the vox populi. Regardless of the moral implications of the accident, the arrest, and the subsequent developments, one of the most important questions that has arisen concerns is regarding the procedure that was (or was not) followed. This article attempts to analyse multiple questions on bail given to the accused juvenile. Was the judge correct in granting the bail in the first instance? If so, then why was the bail cancelled later? Is the voice of the people on a greater pedestal than the voice of the law? This article will address these questions and much more, focusing on the legal implications of the infamous Porsche incident. We will comprehensively examine the advantages and disadvantages of incorporating public opinion into judicial decisions and analyse its implications for the administration of justice.
Factoring public opinion into judgements: A double-edged sword?
At the outset, it is imperative for us to accept that the people sitting at the loftiest platforms of justice are as human as us and are prone to being prejudiced or in other words, moved by the public sentiment. A pertinent question that arises is whether such factoring of public sentiment and opinion in the judgements is correct and sound in law? The answer to this is neither zero-sum nor binary. It’s not black and white and hence we need to tread in the grey areas. There have been instances where incorporating public opinion has positively influenced justice. For example, in the landmark case of Brown v. Board of Education, the U.S. Supreme Court’s decision to end racial segregation in schools was significantly shaped by the evolving public sentiment against racial discrimination. This alignment with public sentiment not only bolstered the ruling’s legitimacy but also garnered widespread support over time, reflecting society’s progressive values.
Another way to look at it is that public opinion and outrage may shape and catalyse legal reforms which happened in the case of the Sandy Hook School Shooting which sparked a debate and legislative action focussing on stricter gun controls.
Although there are pros to this school of thought, it should not be forgotten that it has a double nature. The often overlooked threat of such influence of public opinion deals with the prejudices that can get into the legal system which may influence the judge to lead the judgement astray. High-profile cases concerning celebrities can be swayed either way, defeating the rule of law.
Another example that we can understand from a sociological angle is Operation car wash which began in 2014 as a money laundering investigation. It was expanded to reveal a large corruption scheme that involved the state-controlled oil company Petrobras, numerous construction firms and a number of politicians across various parties. The inquiry revealed that these companies had formed a cartel to win contracts from Petrobras in exchange for bribes which was then fuelled by political campaigns and personal accounts. It gives a comprehensive example of how public opinion can influence judicial proceedings. The case study exemplifies the dual-edged nature of public opinion’s influence on judgements. On one side, public outrage galvanised the judiciary and law enforcement agencies to take strict actions by holding powerful people accountable and increasing transparency and accountability. On the other side, judicial decisions can be swayed away by populism leading to judicial overreach and bias in the judicial proceedings. Thus, public opinion can drive necessary reforms and enhance accountability, but it also poses a risk to the virtue of impartiality of the judicial process.
A larger threat is posed by the contradiction between the public sentiments when weighed in over a while. Let’s understand this via an example. Public opinion often portrays a short term emotional burst rather than a long-term consideration of equity and justice. Even a welcome judgement like Roe v. Wade had to push through immense public backlash as the community at large during that time was not able to understand the importance of it. It helps us understand a trend that people often protest against things they don’t comprehend or don’t associate with, with no consideration being given to the actual validity of the said thing. This is a classic case of conflict between short term public agitation versus long term judicial impact. It is essentially a question of a threat of populism or majoritarianism. Yes, the public discourse shapes the law, but to what extent should stray opinion be allowed to dismantle the established judicial positions is a question that we have no answer for.
Bail to a juvenile: Discretion or Mandate?
When discussing the bail of a juvenile or a child in conflict with the law, we must refer to The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter JJ Act). Section 12 of the Act mandates the bail of such a child regardless of the offence for which the child has been taken into custody, except for three specific conditions. The usage of the word “shall” in sub-section 1 warrants the interpretation that the JJ Board is not at a discretion whether the bail is to be granted or not. It is imperative to understand that the Act is a social welfare legislation giving effect to Article 39(f) of the Constitution of India.
Those three conditions are also there for the protection of the child. The first condition of refusing bail is that if the bail is granted then the child will be in the association of known criminals. The second condition is that the bail if granted, will expose the child to moral, physical and psychological danger. The last condition pertains to the fact that the juvenile would not be granted bail if the bail would defeat the ends of justice.
Therefore, the statute mandates bail in typical cases. Although there are exceptions, they are rarely applied. The Punjab and Haryana High Court in the case of Shimil Kumar v. State of Haryana has held inter alia that, the potential moral or physical harm to the juvenile must be evaluated on a case to case basis, again keeping the benefit of the minor as the sole focus. The court stated that in the cases where the minor was accused of heinous crimes, it would be intuitive to keep him under protective custody to keep him away from the wrath of the public at large. By acknowledging the need to protect the juvenile from potential harm, both from external dangers and societal backlash, it highlights a complex aspect of juvenile justice. The effect on society is significant as it calls for a nuanced approach to juvenile justice, one that considers both individual circumstances and broader societal impacts. Hence, the court focused on the principle that the protection under Section 12 is for the benefit and safety of the minor in question. The child’s safety must be carefully considered before any decision is made.
The argument stemming from the questionof whether the seriousness of the offence is any factor in the consideration of bail largely forms the basis of the public outcry constituting the vox populi against the teenage accused. The ongoing media trial led by journalists in the mainstream media has made it extensively clear that the judiciary is at fault without understanding the nuanced application of law in matters related to juvenile offenders. It is trite that the heinousness (or seriousness) of the offence is no consideration for the grant (or refusal) of bail. The Jammu and Kashmir High Court in the case of “X” Juvenile v. Union Territory of Jammu and Kashmir has gone on record to hold that the granting of bail to a CCL is the norm irrespective of the offence being bailable or non-bailable. The rationale for this is rooted in the jurisprudence which argues for the benefit of the child which includes welfare and rehabilitation. There is a reasonable nexus for the treatment of children other than adults. The court also stated that the exceptions given to the rule of bail in the matters of the CCL should be narrowly construed and should be applied only where necessary and not at the first resort. In effect, the judgement reiterated that there is no practical and effective judicial discretion when it comes to the case of CCL.
The court emphasised that the provisos under Section 12 are the only exceptions that can be used against the mandate of granting bail. Any other consideration would amount to an order which would be per incuriam.
The same has also been held in a recent judgement of the Allahabad High Court in the case of “X” Minor v. State of UP and Another, wherein the court has discussed the narrow construction of Section 12 and held that the exceptions are as mandatory as the main section as the word “shall” is used therein. Hence we see that the high courts have taken to a very stringent interpretation giving the utmost benefit to the minors. The Juvenile Justice Boards often take a stance contrary to these judgements but the stance is hardly sustained in appeal.
Why was the detention made in the observation home post bail?
The most logical explanation for the detention in the observation home is maybe the court has taken the refugee exception under Section 12 to protect the child from moral, physical or psychological danger from the public. The court also undertook a reading of Section 104 (although erroneously) to review the detention of the accused juvenile.
Section 12 gives exceptions to when the bail can be refused. Can the same exceptions be used to cancel the bail of the juvenile? The law is silent on this. In my opinion, the decision to cancel the bail is more rooted in the vox populi than in vox legis. The decision to detain the accused post bail does not seem legally sound. However, we would need to wait for the law to be clearer on this aspect. Recently the Bombay High Court also opined that the board erred in its judgement to assume the power to cancel the bail after granting it. It is a power not so conferred upon the JJ Board. The Bombay High Court judgement focuses on the legal aspects of the case and correctly states the position of law, which mandates the release of the Child in Conflict with Law (hereinafter, “CCL”).
The question of trying the juvenile as an adult
Another source of public outcry was the misplaced question of whether the court should try the juvenile as a child or as an adult. The statute in question is not clearon this point of law. A juvenile can be tried as an adult under the Juvenile Justice Act if the concerned minor is between the ages of 16 to 18 and has committed a heinous offence. The definition of heinous offences is given in Section 2(33) which states that heinous offences are those which have a minimum punishment of 7 years. Now when we look at the Section the juvenile is charged with, we see that Section 304 has the maximum sentence of 10 years. There is no minimum punishment.
Hence, a question arises as to whether the bar of heinous offence has been fulfilled in this case? The answer is no. It would have been a heinous offence if the minimum punishment under Section 304 was 7 years but it is not. Hence, the offence under Section 304 is classified as a serious offence and not a heinous offence. Resultantly, the juvenile cannot be tried as an adult. This is not the first time such a conundrum has arisen. The Supreme Court in the case of Shilpa Mittal v. State of NCT of Delhi had the occasion to decide whether the offence under Section 304 would be classified as a serious offence or a heinous offence.
The advocate on behalf of the appellants Mr. Luthra argued that on the literal reading of the statute, the meaning of the heinous offences would include the offence as made out under Section 304. However, the line of reasoning given by Mr Mukul Rohatgi, the counsel for the minor, is sounder. The court acknowledged the mistake of the legislature wherein a 4th class of offences are left out when the definitions of the offences are made in the JJ Act. However, the court held that it could not make a law, nor redraft the law but as the question was of huge import, it could use the inherent powers as enshrined under Article 142 of the Constitution of India.
The court held inter-alia that, “Since two views are possible we would prefer to take a view which is in favour of children and, in our opinion, the Legislature should take the call in this matter, but till it does so, in exercise of powers conferred under Article142 of the Constitution, we direct that from the date when the Act of 2015 came into force, all children who have committed offences falling in the 4th category shall be dealt with in the same manner as children who have committed ‘serious offences’.” Hence the court in line with the previously mentioned judgements, took a view favourable to the children. The court held that, “offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or a sentence of less than 7 years is provided, shall be treated as ‘serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.”
However, the judgement is open to critique, but this does not mean that the judicial officers in the subordinate judiciary should start basing their decisions based on the vox populi. Even in the infamous Nirbhaya case, one of the accused was a minor and he was not sentenced the same as the others. An argument could have been made to punish him too as the others without seeing the law but it was not done. Post Nirbhaya the laws were amended. This is the correct way to deal with laws and violations, regardless of how moral or immoral a decision is, it has to be tested on legal grounds. In the subsequent times the statute itself can be amended if the government feels the public outcry is genuine. The law is clear that the accused in the Pune accident case should not be treated as an adult (unless any stronger sections are made out). The judge would be in the wrong to hold any other view contrary to the one directed by the Apex Court.
Was this a sociological sacrifice of justice on the altar of legal interpretation?
Something that needs to be addressed is whether justice itself suffered a loss because of the wrong drafting of the law. Let’s not question the JJ Board was not wrong to give bail to the accused in the present case as they only followed the law, but lets question the legislature. Does a mere definition of a crime as done by the legislature absolve a minor of his sins? Certainly not, but it does give him relief in the process of the trial and ensures that he does not go to prison. I understand that the dark impact of the accident on the kith and kin of the deceased would be saddening but keeping all this into mind I would like to ask if the clarion call of “punish the accused”, “murder” should be accepted devoid of a legal backing. Should a democracy ruled by the constitution let something this unfair happen?
The public sentiment in the present case is strongly against the minor and believes that the minor should be tried for murder and not under Section 304 of the Indian Penal Code due to how “gruesome”, “heinous” and “immoral” the act was. Though I understand the stance, it is not legally correct as has already been mentioned in the article. The act may have been very heinous but only morally. Not legally. Hence, the hands of the law are tied. Another question that can be asked is whether the judges could not use inherent powers to punish the juvenile? The simple answer is no because a judge cannot subsume the powers within himself/herself which go against the very statute (unless there is a constitutional challenge to the statute). This type of judicial activism, if allowed, could open a pandora’s box of judgements wherein the judges would go against the statues and in effect the voice of the people as the statues are made by the representatives of the people, which is the bedrock of democracy.
The role of the judge is not to amend the law but to implement the law made by the parliament. In this case, the public outcry wants the judiciary to do something they are not empowered to do. It is nothing but the promotion of judicial activism but on a level never seen before.
I would concede that irreparable loss has been done, and I would concede that the CCL was wrong and should be punished. However, I would also urge that the said punishment should be as per the law in force. We need to project that we live in a country ruled by law not by men. The media has added an intriguing dimension to the case by highlighting the disparity between the rich and the poor. It suggests a power dynamic where the son of a wealthy individual has escaped punishment for a crime that would have resulted in severe consequences for the son of a poor man. This cannot be farther from the truth. The Juvenile Justice Act is an instrument to protect children from incarceration by the state. It is a beneficial legislation and hence has to be read in favour of the CCL.
Conclusion
The morals of a country are important but they should not supersede law. There have been n number of situations same as that of the Pune Accident. There was no hue and cry, so the matter did not rise in the papers. This matter is no different. It is a routine matter of accident and the case should be dealt with facts and law and not what the public demands. If we succumb to the trend of justice based on vox populi, we will be straying from the very road of the Constitution.
As Lord Hewart has opined “justice should not only be done, but seen to be done” in the case of Rex v. Sussex Justices, the public wants the justice to be visible. Albeit justice cannot always be seen to be done, if we apply the test of public satisfaction to the process of administering justice then the whole judicial system will collapse. Hence, in the concluding remarks, I would like to urge the populace to be aware of the laws in place and not to be enraged on the false premise as laid down by the media. The media too has a responsibility to present the complete picture and not do selective reporting. We need to amplify the statement of the Bombay High Court in this present case when it opined that “Fiat Justitia Ruat Caelum” which translates to the fact that Let Justice be Done through heaven’s fall. Justice should be done and just decisions should be undertaken regardless of the cost it takes.
