India’s top court unable to block release of Delhi gang rape convict

India’s highest court on Monday rejected an appeal against the release of the youngest member of a gang convicted of a fatal rape attack on a Jyoti Singh, a 23-year-old student.

Chairwoman of the Delhi Commission for Women, Swati Maliwal speaks at the Supreme Court in New Delhi on December 21, 2015. The court rejected an appeal against the release of the youngest convict in a gang-rape as the victim's parents vowed to step up protests. Money Sharma / AFP PhotoShow less

NEW DELHI // India’s highest court on Monday rejected an appeal against the release of the youngest member of a gang convicted of the rape and muder of a young student.

The convict, who remains anonymous because he was tried as a 17-year-old, had been sentenced to three years in a juvenile correctional facility after he and five other men were convicted of gang-raping Jyoti Singh, a 23-year-old studying to be a physiotherapist. Singh died of the injuries sustained during the assault in December 2012.

The crime triggered massive protests in Delhi, where it occurred, and elsewhere in India. It highlighted the severity and frequency of crimes against women in the country, where a rape is reported to the police every 20 minutes.

Four of the six men were sentenced to death, but no dates have been set for their execution. The fifth man hanged himself in prison, before the trial was completed.

The juvenile’s sentence ended on Sunday, and he was freed into the care of an unnamed NGO at an undisclosed location, as prescribed by the Juvenile Justice Act.

On Saturday night, the Delhi Commission of Women (DCW), a body of the government of Delhi, had filed a petition pleading against his release. The petition argued that the authorities had no evidence that the juvenile’s detention had reformed him, and that he still posed a danger to “women [in] particular and society at large”.

After a half-hour hearing on Monday morning, a two-judge bench dismissed the DCW’s petition, noting that the law prevented the court from ordering a further period of detention. “We share your concern, but we cannot go beyond the statute,” UU Lalit, one of the two judges, said.

In response to the petition’s request that the juvenile not be released until he is deemed fully reformed, Mr Lalit said: “Suppose the reformation takes another seven or ten years? Do we have to extend the period of his detention every now and then without any legislative sanction?”

Singh’s parents, who had led protests against the release in central Delhi on Sunday afternoon, expressed deep despair with the court’s verdict.

“What can I say? There are no words to describe our disappointment,” Badrinath Singh, her father, told AFP. “We don’t understand all these laws. We only know that the system has failed us.”

Swati Maliwal, the chairperson of the DCW, called it “a dark day in the history of the country”. She called upon Hamid Ansari, India’s vice-president and the chairman of the Rajya Sabha, the upper house of parliament, to present amendments to the Juvenile Justice Act for discussion.

The bill of amendments was introduced into parliament last year and passed in May by the Lok Sabha, the lower house. But it has been inert in the Rajya Sabha, because the upper house has been convulsed by opposition protests and walkouts.

If the bill passes into law, juveniles aged between 16 and 18 can be tried and sentenced as adults if they commit heinous crimes. Under such a law, Singh’s juvenile rapist would, in all probability, have received a death sentence, just as his co-accused did.

The bill also orders the establishment of juvenile justice boards in each district of the country, which will conduct inquiries into juvenile crimes and recommend whether juvenile criminals ought to be tried as adults or sent for rehabilitation.

Pinky Anand, the government’s additional solicitor general, said on Monday that the bill is “a high-priority item for the government”.

But an analysis by PRS Legislative Research, a New Delhi-based non-profit that tracks the functioning and activities of parliament, pointed out problems with the bill as it is framed.

“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,” said the analysis brief by PRS. “The provision of trying a juvenile as an adult contravenes the Convention.”

Apoorva Shankar, a PRS analyst who co-authored the brief, told The National that other countries such as the United Kingdom and France have also “enacted laws that differentiate between juveniles, depending on the crime”.

“In addition, a convention is not legally enforceable,” Ms Shankar said. “It is a model framework, based on which countries can pass their own laws. Therefore, in case of a conflict between a convention and a law enacted by parliament, the law will prevail.”

Derek O’Brien, a Rajya Sabha member from the Trinamool Congress party, noted in the house on Monday that only three days remained for parliament’s winter session to end, and he urged the house to pass the bill before then.

“It is incumbent upon the house to listen to what is going on outside,” Mr O’Brien said. “It is not a perfect bill, but let us list it [for discussion] and pass the bill.”