New Delhi: The Supreme Court will consider trying a juvenile accused of raping a physiotherapy student in a bus in December as an adult. The incident had provoked national outrage and mass demonstrations.

The apex court on Wednesday effectively halted the proceedings of a juvenile court that was set to announce a verdict on the accused in the 16 December gangrape case until it decides on whether he can be tried in a special court where five other men are facing charges of rape, assault, robbery and murder. The women died about two weeks after the incident.

Subramanian Swamy, president of Janata Party and a parliamentarian, on 23 July petitioned the apex court in a public interest litigation (PIL) to consider the emotional, mental and intellectual maturity of the accused juvenile, who was 17 at the time he committed the offence. Swamy’s petition challenges the legal protection India provides to those under 18 years of age.

“Why don’t we examine (the matter)? Such a grave incident (has occurred)," Chief Justice P. Sathasivam said, referring to the gangrape.

The court’s decision on the PIL may determine the fate of the juvenile, the verdict on whom is to be announced by the Juvenile Justice Board. The board had earlier postponed pronouncing the verdict till 5 August because the matter was admitted by the Supreme Court.

Additional solicitor general Siddharth Luthra objected to the PIL being heard on the grounds that criminal charges pertain only to the state and the accused, and a third party, in this case Swamy, cannot intervene and that a judicial decision cannot have retrospective effect. Luthra also cited recent PILs that sought similar relief but were rejected by a three-judge bench of the apex court, headed by former chief justice Altamas Kabir.

The apex court bench will hear Luthra’s arguments contesting whether Swamy’s petition can be maintained and heard by the court before hearing the main arguments of the parties.

Swamy’s petition questions the protection given to juveniles who commit heinous offences. Indian law, based on the UN Convention on the Rights of the Child and the international Beijing rules, “has left many unintended gaps in the statute," which need to be rectified, according to the petition. It says that while the Beijing rule requires “emotional, mental and intellectual maturity of the juvenile to be borne in mind", Indian law has fixed the age of the accused “without any ifs and buts".

“Clearly, the government has no arguments," Swamy said, welcoming the court’s stance. The additional solicitor general “is resorting to technical arguments", he said.

The Supreme Court will hear the matter on 14 August.

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