Juvenile Justice post the Delhi Gang Rape case

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Author : ashoknigam
Published on : September 02, 2013

ashoknigam's Profile and details
Constitutional and civil Law expert, practicing at Allahabad High Court, Lucknow bench, India. Ex additional solicitor General of India

Need to amend the Juvenile Justice Law in India: Relooking at juvenile justice post the Delhi Gang Rape case

The brutal role played by the juvenile accused in the recent horrifying gang-rape of young Nirbhaya coupled with the prospect of his being left free in about four months time, has caused utter dismay, concern and outrage amongst the citizenry. It has led to demands for drastic amendments in existing Juvenile Laws providing blanket immunity to juveniles below the age of eighteen years from any punishment irrespective of the circumstances and nature of the crime.

The ensuing public debate, has unfolded a horrifying picture of “adult crimes”, including brutal murder and rape of kids, being committed by juveniles, particularly between the age of fifteen to eighteen years. Many such crimes are repeat offences where the accused were let-off after being put in Correction Homes without any punishment under the immunity clause. Hence there is a demand for removing, albeit lowering the age bar at least ,in cases of grave offences like murder and rape. Also a review of Rule 12 of the concerned Rules has been demanded , enforcing mandatory acceptance of age certificate of a given description by the Juvenile Justice Board/Court without any further verification of its authenticity.

However, the reformist view advocated by a section of society rules out grant of harsher punishment to minor offenders, irrespective of the gravity of their offences. Its supporters back adoption of a correctional approach instead, insisting that stray cases should not form the basis for amending such Laws. They also plead that sharing of the same barracks with hardened criminals may make juveniles hardened criminals themselves. Further, it is argued that many juveniles are not criminals by nature, but are often victims of their social and political environment , poverty and poor education.

The Central government itself appears to be divided on this issue. While Union Minister for Women and Child Development, Smt. Krishna Tirath, has categorically ruled out any need for amendment. The Union Home Ministry has, based on consensus arrived at a recent meeting with state DGPs, recommended lowering of the age bar for Juvenile to sixteen years.

Obviously this examination is to be undertaken in the context of the very purpose of juvenile enactment together with the larger objective of prevention of crime in the Society.

The very term “Juvenile” broadly denotes a person who, by virtue of his tender age, has not yet attained sufficient maturity or understanding to judge the nature and consequences of his actions. In law, a juvenile is considered not old enough to be held responsible for his criminal acts. Once recognized a “Juvenile”, the law concedes immunity to him from the consequences of his action which are in conflict with law.

In India, the question whether a particular juvenile accused of committing the crime has actually “attained sufficient maturity of understanding to judge of the nature and consequences of his conduct”, has not been left to the determination by the Court. Instead, Section 2 (2) of the Act lays down that “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.” And as such, he would be entitled to get complete immunity from trial through Criminal Court or any punishment under Criminal Law in view of section 17 of the Juvenile Act.

However, these provisions are in direct conflict with Section 82 and 83 of the Indian Penal Code, which bestows such immunity till the age of seven years only.

As to the offences committed by a child/person within the age group of seven to twelve years, Section 83 of the Code in effect divides them into two categories; a child, “who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct” would get a complete immunity, while the one, who is found to have attained sufficient mental maturity of understanding the nature and consequences of his action would not be entitled to any such protection.

The original Act introduced in 2000 put the age bar at sixteen years, which was enhanced to eighteen years in the year 2006 only. However, the global trend on this score has been just the reverse. In view of their own past experience, most countries are now reducing the age bar for granting immunity to Juvenile, especially against heinous crimes.

A “Get Tough” movement is sweeping the United States in the recent time, with the slogan “adult crime adult time”. In majority of its states (thirty eight states), the upper age of juvenile has been fixed at seventeen years, while in three states, it has been settled at fifteen years. Moreover all States in U.S. have now introduced provisions allowing prosecutors to try juveniles as young as fourteen as adults under certain circumstances. In some States in U.S., such as Indiana, South Dakota, and Vermont, children as young as ten can now be tried as adults. The Supreme Court in the case of Stanford Versus Kentucky ()upheld the constitutionality of death penalty for heinous crimes committed at the age of sixteen years. Seventeen out of fifty states of the United State permit execution of juvenile of sixteen years old for murder as an adult. In fact. the general tendency of State and Federal amendments in juvenile acts has been to transfer greater number of juveniles to criminal courts for prosecution and punishment as adults. Interestingly, the overall rate of juvenile crime has been decreasing since these changes have been effected in the year 1995.

Of late, many states have also introduced ‘blended sentencing’, that is a mix of both juvenile and adult sanctions to the same person, representing adoption of a middle ground between the juvenile and adult system.

Similarly in France, no criminal charge can be brought against a child up to the age of ten years; and for child between ten to thirteen years of age, only educational penalties such as placing in a specialized Centre or home are to be given, while between thirteen to sixteen years of age, minors will get only half of the adult sentence. Lastly, between sixteen to eighteen years of age, person would be remanded to Criminal Court and plea of juvenility can be set aside.

In U.K. and Wales, those below ten years cannot be charged with crime, between the age of ten to eighteen, juveniles are to be tried in Youth Courts without jury, and as to serious crimes like murder or rape, their case starts in Youth Courts but is passed on to adult Courts.

In Australia, up to age of ten years, there are no criminal charges, but between the age of ten to twelve, criminal prosecution is allowed if proven that the child understood that he was doing wrong. In most states, juvenile age bar is seventeen years and in Queensland, it is sixteen years only.

Our own experience of last twelve years has been no different. While pleading for the maintenance of status quo in juvenile law, the reformists seemto have ignored two important aspects related to juvenile crimes. Firstly, society, especially women, also need protection from a juvenile who has got sufficient mental maturity and understanding of the nature and consequences of his action, but still commits the same intentionally and in cold blood because of his criminal bent of mind. Such hardened juvenile mostly belong to the age group of sixteen to eighteen years.

Secondly, one of the basic object of granting befitting punishment is to create a deterrent effect, both upon wrong-doer as well as on others members of Society. Mere knowledge of the fact that one can escape any punishment may make a juvenile more reckless and dangerous. It may also encourage adult accomplices in such crimes to push the onus for the gravest aspects of such crimes on the juvenile , thereby escaping full punishment themselves.

It is also argued by reformists that our correction homes do not have proper correctional facilities. But this argument can cut both sides. Further, the Western experience, where superior institutional and correctional facilities exist, is no better. We should, therefore, amend the Juvenile Justice Law in a way that ensures that those juvenile who commit a heinous crime with a full understanding of their action are not let off without a trial by a criminal court while, at the same time, granting a lenient treatment to a juvenile found to have been waylaid in the particular facts of the case and who had not understood the nature and consequences of his action at that time.

Thus, the new law may provide for initial reference and retention of every accused Juvenile to the care of Juvenile Board until it is satisfied (after obtaining expert opinion which should be mandatory) that the accused juvenile did possess sufficient maturity of understanding to judge of nature and consequences of his conduct on that occasion, hence deserving to be referred to Criminal Court for trail of his offence. Where the finding is to the contrary, the juvenile in question may be retained under the care of Juvenile Justice Board. The decision of the Juvenile Justice Board should be open to judicial review at the level of the High Court.

A further provision may be made in the Act/Rules that a Juvenile in conflict with law, who has been found liable to be referred to Criminal Court for trial in the above manner, would be retained in protection home until the court finally adjudicates him to be guilty and awards sentence. Even after award of sentence, special wards can be created in jails for keeping juveniles in order to avoid their co-habitation with hardened criminals. Alternatively, the law may provide for some reduced punishment, as is prevalent in France.

Similarly, given existing levels of illiteracy and inefficiencies in administration, the authenticity and accuracy of birth certificates, even municipal certificates is often questionable.

Therefore it would be reasonable to reduce the upper age limit for treating a person as juvenile to sixteen years as before. Rule 20 of the Juvenile Rules 2007 should also be modified to provide that in cases where the accused person claims to be within the threshold age (if the age bar is eighteen, then between sixteen to eighteen years) the court can verify accuracy of such certificates by referring the accused to medical examination by a duly constituted Medical Board.

Authors contact info - articles The  author can be reached at: ashoknigam@legalserviceindia.com