article has been authored by Divya Sharma, a second year law student at National Law University, Jodhpur.
“Old enough to do the crime, old enough to do the time.” This phrase has been used by those who advocate that juvenile offenders should be treated as adults. With crimes happening every minute, every day, the debate that has caught momentum is related to not the crimes but who is actually doing it. It is well acknowledged a fact that criminals are not only adults. Several heinous offences have being committed by the juveniles. In fact, in last few decades the crime rates of children under the age of 16 have increased. However, the approach that India has towards the offenders is influenced by their age, leading to differential treatment. This differential treatment is not justified under the mere banner of a number called age. It takes into consideration what forms the part of life of a juvenile at that point of time. Most justice systems have redefined juvenile offences as delinquent acts to be adjudicated within a separate juvenile justice system, designed to recognize the special needs and immature status of young people. The article analyses various factors that are used to determine a different treatment of a juvenile offender.
The evolution of Juvenile justice system in India
1) Pre-Independence Era
Differential treatment for children can be traced as far back as the Code of Hammurabi in 1790 BC, the responsibility for their supervision and maintenance being vested on the family. During the colonial regime, in 1843, the first centre for these children called “Ragged School” was established by Lord Cornwallis. After 1850, the Apprentices Act was passed which, chronologically was the first law which required that children between the ages of 10-18 convicted in Courts, to be provided vocational training as part of their rehabilitation process. Another landmark legislation was the Reformatory School Act, 1876 and 1897. Under the Act, the court had the right to detain delinquents in a reformatory school for a period of two to seven years but after they had attained the age of eighteen years, they were not to be kept in these institutions. Moreover, The Act of Criminal Procedure, 1898 provided special treatment for juvenile offenders. The Code provided probation for good conduct by offenders up to the age of twenty-one. Then Indian Children Act was made by the Indian Jail Committee (1919-1920). Under this act, individual provincial government got the right to enact separate legislation for juvenile in their respective jurisdictions. Provinces of Madras, Bengal and Bombay passed their own Children Acts in 1920, 1922 and 1924, respectively. These laws entailed provisions for the creation of a specialized mechanism for the treatment of juveniles.
The most important post-independence legislation was The Juvenile Justice (Care and Protection of Children) Act, 2000 (“the Act”), brought in compliance of Child Rights Convention 1989. It was under this act that anyone below the age of 18 was considered as a child and was never allowed to be tried as an adult. This was the provision that caused an uproar in India after the “Nirbhaya Delhi Gang Rape Case”, the incident that took place on December 16, 2012 and shocked the whole nation. It not only left the nation shook and disgusted, it raised questions on the applicability of law in realm of juvenile justice because of one of the accused’s age being 6 months short of 18 years. This involvement of a person less than 18 years of age, in such a heinous crime of rape, compelled the Indian Legislation to introduce a new law and thus, the Parliament came up with a new law known as “Juvenile Justice (Care and Protection) Act, 2015. This Act replaced the existing juvenile laws and introduced a few remarkable changes. One of the remarkable changes was that juveniles in the age group of 16 to 18 years were to be tried as adults if accused of committing a heinous crime. Along with this landmark change, another alteration made by the Legislature was the Criminal Law (Amendment) Act, 2013, which was the direct result of nation’s fight for the Nirbhaya incident.
The Juvenile Justice (Care and Protection) Act, 2015 and Recent Juvenile Offences: An Analysis
The Act has been based on the principle of ‘doli incapax’. This principle finds its place in the Section 82 and 83 of IPC. Under this, it is assumed that a child below the age of 7 “lacks the ability to understand the nature and consequence of his act”, and thus lacks the required mens rea. Only child between the age of 7-12 can be convicted, provided that, the act they have committed is a heinous crime and they have knowledge and has attained the sufficient knowledge to understand the consequences of their act.
According to Section 2, sub-section 12 of The Juvenile (Care and Protection) Act, 2015 a “child” means a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories: –
1. “child in conflict with law” , and
The child who committed an offence and he or she is under the age of 18 years on the date of commission of the offence is basically termed as a “child in conflict with law”. The second category is “child in need of care and protection” means a child as defined under Section 14 of the Act. However, after the amendment, it was decided that a person falling in the age bracket of 16-18 can be tried as an adult depending on the nature of the offence. Which means, this amendment created a difference between a child and a juvenile, stating that any person who is accused of a crime and is in the age group of 16-18 is a juvenile, and not a child and thus can be tried as an adult in the court proceedings if accused of committing a heinous crime. If the element of heinous crime is found missing, the case is heard by the juvenile justice board.
In order to understand this landmark change, it is important to recognise the brutalities that victims have faced and have fought against for the courts to realise the need for this change. As already mentioned, the incident that paved way for this amendment was the case of Mukesh and Anr vs. State of NCT of Delhi & Ors, popularly known as the Nirbhaya rape case. It was argued in this case that the age of the accused should not act as a veil on the nature of brutality he inflicted on the victim. It was found that he was responsible for physically torturing the victim with an iron rod, hurling abuses and inflicting internal ruptures in her body. Owing to the ignorance of laws towards such heinous offences done by so called “children”, Advocate Shweta Kapoor filed a PIL in Delhi High Court, demanding amendments to the Juvenile Justice (Care and Protection) Act, 2000 to deal with children who have attained the age of 16 and are involved in serious crime. “Minds of juveniles who have attained the age of 16 and commit serious crimes are well developed and they do not need care and protection of the society. Rather, the society needs care and protection against them,” said the PIL.
It was argued through the PIL that if a person aged 16 is convicted of a crime, he could be kept in the institutions made for juvenile justice, however, once they attained the age of 18, they must be treated like an ordinary criminal. It was emphasised that there was a need to understand that a blanket minimum age facilitates escape of those young people who are very well capable of differentiating between right and wrong and yet go ahead with committing serious offences. Another similar case, involving a juvenile, accused of a heinous crime was the case of State of Maharashtra vs. Vijay Mohan Jadhav & Ors., known as the Shakti Mills rape case. One of the accused rapists in the case was a juvenile. In both these aforementioned cases, one of the main accused was a juvenile and thus got away with just three years in a remand home, while the accused adult offenders were given the death sentence. The questions that come to mind is, is this punishment enough to rectify a young individual? What kind of punishment should be given to such culpable youths who were capable of treating a living being as an object and make them a victim of their ruthless behaviour? It makes us question our very premise of reforming a convict!
Another aspect worth deliberating on is the definition of the word ‘heinous’. In order to try a person 16-18 years old, as an adult, he must be accused of a heinous crime. The 2015 Act, in section 2(33), defines ‘heinous crimes’ as “those crimes for which the minimum punishment under the IPC or any other law for the time being in force is imprisonment for seven years or more.” It cannot be denied that allowing the trial of a 16-18-year-old as an adult in certain cases is an achievement for Indian legal system, however, this very definition of heinous seems flawed. What the definition is based on is entirely a time duration of punishment and not the type of offence or characteristic of the offence committed. This was witnessed in the case of Saurabh Jalinder Nangre vs. State of Maharashtra. In this case, the High Court dealt with a writ petition, raising the issue regarding necessity of sending the juvenile to children court. The offence committed was of attempt to murder punishable under Section 307 IPC. Under the premise of the said definition of heinous crimes given in the 2015 act, the court decided that “In the present case, all the petitioners though are between the age group of 16 to 18 years, they have not committed heinous offences and, therefore, their case is not covered under section 15 of the said Act and thus the case cannot be transferred to Children's Court. Hence, the inquiry is to be conducted by Juvenile Justice Board, Sangli . So, the court completely set aside the fact that those 17-year olds made an attempt to take away someone’s life and do an irreparable harm, and decided to treat them as juveniles and exempting them from the punishment they deserved. It is important to note that setting such definition makes crime look like a result of age cycle, while the reality is that crime is what a kind makes you do and 16 years of age is enough for a person to be scrupulous and think about what is right and wrong. Moreover, attempt to murder is in a layman’s language a failed action of murdering someone. When at this age they were capable enough to thinking and acting upon the desire of killing someone, why were they not capable enough to be tried and punished as adults?
Crime is just not a wrong prohibited under a statute. It is a wrong that scholars have defined as morally reprehensible, and causing damage way beyond just the victim. That is the reason why crime is focussed on as a wrong against state. While dealing with the accused of these crimes, we look at the people who blatantly go ahead with not only defying the authority of law but also damaging the stability of the society. These violations are not restricted to any group, as such, be it age, class, gender or any other classification. Time and again, through various crimes, we have seen that a criminal has to group to stick by, no classification to differ him from, its just him and his act. On the similar lines, this strict distinction of a person less than 18 years of age not being tried as an adult was a flawed concept. And it is a development of Indian justice system to do away with this loophole. It is important to understand that while hearing a case, the circumstances of the said case, the nature of act done should be used as parameters to analyse whether the so-called juvenile was capable of understanding his act or not. Moreover, the definition of heinous crimes, should be reconsidered. Just putting a threshold of punishment in terms of years does not reflect the mindset of criminal and doesn’t convey the pain of the victim.