NEW DELHI: The involvement and apparent brutality of the juvenile in the 16th December, 2012 gang-rape case sparked a debate on the minimum age requirement for instituting a criminal proceeding against an adult. In the wake of this debate Maneka Gandhi, the Women and Children's Development Minister, introduced a bill in the Lok Sabha that was passed in December 2015. This meant that children between the ages of sixteen and eighteen involved in heinous crimes to be tried as adults and receive the maximum punishment. This faced major opposition. While the proponents of the reduction in the age of majority emphasise on the need to try those accused of adult crimes as adults, the anti-amendment groups feel that the commission of crimes by juveniles is grounded in their compelling socio-economic conditions. There is a need to improve the conditions of the juvenile homes to ensure that they get another chance to live their lives as ordinary citizens.

This amendment has been the subject of renewed debate over the past couple of months because of a boy from Delhi who has been accused of a hit-and-run two months ago. The boy was seventeen at the time, but turned eighteen four days later. Adding to this debate is the fact that the juvenile has been guilty of three prior of driving-related offences, and more importantly the fact that in India you have to be eighteen to even get a driving license. On June 4th, the Juvenile Justice Board allowed the boy to be tried as an adult and accordingly transferred the case to the Sessions Court.

This article looks to understand the traditional approach to ‘juvenile justice’ and aims at helping people understand the complete reasons for the debate so they are able to arrive at an informed decision for themselves.

Traditional Understanding of Juvenile Justice

Historically, as States transformed their conception of justice from retributive to an increasingly restitutive sense, children came to be seen as in need for protection from the law and by the law. States have since based juvenile justice on two basic grounds. Firstly, the notion of parens patriae or "parent of the nation" refers to the power of public policy of the State to protect and rehabilitate any minor. This is corroborated by the welfare function discharged by the State that upholds the notion that no child can survive without requisite care, and in exceptional circumstances imposes the duty upon the State to provide this care. Alongside the welfare proposition, the rights based approach places a premium on 'children's rights', wherein the State provides special protection to minors, including protection from criminal law. As the State undertakes the duties of the parent, it becomes fundamental to rehabilitate child delinquents, with the continuous hope of reformation. The parent will not severely punish their child or, in the case of criminal law, give maximum punishment, as the mind of the child is easily mouldable and influenced, thereby always leaving scope for reform.

Secondly there exists an assumption that a child does not have the mental ability for the requisite mens rea to commit a crime. A person's brain is said to not fully develop until the age of eighteen and therefore until this age it is said to be impossible for someone to understand the consequences of theirs actions and tell right from wrong, or dolci incapax. As mens rea is an essential ingredient for crime it is not possible for a minor to be convicted due to lack of intent to commit the crime.

Traditionally, for these two reasons, people under the age of eighteen have been considered minors for the purpose of criminal offences and tried as juveniles. Thus, their sentences are aimed more towards rehabilitation rather than punishment.

Contemporary Debates in Society

Advocates for the decrease in the age of majority often base their arguments on inaccurate empirical and statistical data or false claims. Mamta Sharma was quoted as saying, "45% of rapes are committed by minors and by sending them to correctional homes we are encouraging them." Whereas according to the National Crimes Record Bureau, out of 33,704 rape cases registered in 2013, only 2,074 were by juveniles, which amounted to 6.15%. Maneka Gandhi has also repeatedly said that doubling of the number of rapes committed by juveniles shows that juveniles are taking undue advantage of the law to perpetuate their ability to commit crimes without facing any dire consequences. However, most studies indicate that the majority of these cases involved consenting couples and the rest predominantly included parents, of the girl of an eloping couple, filing for rape and abduction; these cases get quashed or the parties refuse to show up. Also, the chairmen of the National Crime Watch falsely stated that the juvenile involved in the December, 2012 rape case was the most brutal of the six offenders, which led to widespread media coverage and attention to this issue. Conversely, this was subsequently clarified by the Court to not be the case. Proponents of this cause often fraudulently make up certain facts and figures in order to solidify their arguments and stir up emotions against juvenile delinquents; the true picture tells a different story altogether wherein juveniles commit only 1.2% of all crimes, most of which are petty in nature.

Others claim that a harsher punishment will deter juveniles recruited by criminal gangs that exploit legal loopholes to their advantage by ensuring that the juvenile offender escapes criminal liability. One needs to view the punitive provisions in light of the fundamental object of the Juvenile Justice Act i.e. to choose reformation over punishment, with the aim of reintegrating the juvenile into society. Alternatively, the severity of the punishment is subservient to the need for improved correctional facilities and counselling to the delinquent. Crimes such as rape by minors is not caused due to an inherent evil but due to the social environment where boys are taught to ill-treat women. Therefore, one must work to change these societal norms and beliefs to fully do away with such crimes instead of according harsh punishments to minors as it would lead to institutionalisation. A person who grows up in jail is likely to become a criminal on account of exposure to such a lifestyle at an impressionable age. Whereas, most juveniles who have undergone counselling within the reformatory system have not become repeat offenders. Furthermore, minors being used by criminal gangs to commit crimes should not be punished by the State for being victims of compelling socio-economic circumstances; instead, the hardened adult criminals as the leaders of crime rackets and employers of minors should be the ones receiving punishment. Also, the United Nation's Beijing Standard Rules ask States to treat all persons below the age of eighteen as children, and prohibits treating any 'child' as an adult in domestic criminal law jurisdictions. Therefore, by reducing the age of majority, as mentioned in the amendment to the Juvenile Justice Act, the country is liable for fine by the United Nations, which can possibly be accompanied by strained relations and a worsened international reputation.

It is often argued that with modern technology and information, the mind of people between ages sixteen and eighteen is fully mature. Therefore, these people can distinguish right from wrong and possess the requisite knowledge and intention while committing crimes. However neurological studies conducted by leading organisations, including the United Nations, show that the brain does not fully develop until the age of eighteen. The brain area that controls impulses is the weakest in adolescents and while committing crime, reward centres are activated in the brain that arouse stimuli. Thus, even though adolescents know right from wrong, they often are unable to act in furtherance of that knowledge. A juvenile who is sixteen years old may know what sex is, but does not comprehend the damage a sexual crime can bring about. A minor's participation in 'adult crimes' like rape and murder does not imply maturity; rather it is direct evidence of the vulnerability of juveniles to reckless behaviour. This vacillate and indecisive mind of the juvenile is likely to turn worse psychologically if they are dealt within the bounds of the criminal justice system.

Many others want India to adopt certain laws that give criminal punishments to juveniles as they are implemented by other countries such as the United States of America and United Kingdom. In the United States, twenty state Supreme Courts allow juveniles to be tried and treated as adults, and be sentenced unto life imprisonment. Until 2005 most of theses courts mandated capital punishment for juveniles. In the United Kingdom a person below the age of seventeen can be tried as an adult if accused of serious offences like sexual assault, child sex offences or sexual activity with a child family member. However, it is very dangerous to blindly adopt laws without understanding the reasons behind the adoption of these laws in their parent country and exploring the possible contextual differences. Through the end of the twentieth century until now, USA has had the highest juvenile crime rate in the world with 4,000 out of every 100,000 persons below the age of eighteen having been charged with crime. This was seen as a resultant of the economic and psychological conditions of people, attributable to racial segregation and injustice. In these terms there exists a stark contrast between USA and India where only 3 out of every 100,000 juveniles are charged with crime. Therefore, the strict regulations that were required in USA in order to curb juvenile crimes are not required here, as these were laws enacted in a situation of extreme crisis, the extent of which does not apply to India.

Some find it unjust that a person only three months or even one day short of turning the age of majority will go unpunished, whereas if the crime, such as rape, was committed a few days later would possibly be charged with the maximum punishment. However, we need to understand that allowing the lowering of age in certain cases will create ambiguity in the law and, in doing so, this age bar will be liable to further decrease in the future, thereby leading to a slippery-slope. Until 1958 the age of majority was twenty-one years; after a number of cases the legislature decided for the reduction to eighteen. This creates a possibility in the future with a constant reduction that courts will be charging toddlers with offences such as murder and handing maximum punishment. A similar age bar exists in obtaining licences, committing to contracts, consenting to intercourse and even having the right to vote, as the minor does not have the mental ability for these acts and he cannot garner the fault element to commit a crime.

Conclusion

As traditionally understood, juvenile justice aims at providing an alternative system of "justicing" for juveniles in the investigation, pre-trial custody, trial and sentencing stages. Hence the amendment to the Act, that lowered the age of majority for heinous crimes, defied the basic fundamentals of this Act that aims at reformation rather than penalisation. It is necessary to keep faith in the processes of reform, through counselling and sensitisation, especially in case of juveniles. The State should instead improve juvenile homes and correctional facilities by improving infrastructure, funding research and employing qualified professional services in the field of behavioural correction. There is a growing need to improve the economic conditions that coerce juveniles to commit crimes, especially in areas of high crime rate.

Justice is overarching principle guiding receipt of a deserved reward or punishment as a consequence of an act. It is important for us as members of a society to remember that the youth within the juvenile justice systems are, most of the time, those who simply haven't had the right mentors and supporters around them - because of circumstances beyond their control. Punishment should never be delivered to those who do not have monopoly over their own choices, and therefore juveniles should be kept outside the ambit of criminal law.

Endnotes

A. Newspaper Articles

  • "'Most brutal' of Delhi rape accused waits to know his fate". Hindustan Times. 3 January 2013.
  • "Different Shades of Rape in Delhi". The Hindu.
  • "The Secret Life of a Killer". David James. The Sunday Times Magazine: 22–34.
  • "Blood on boy's shoe 'was from victim'". Edward Pilkington (11 November 1993).
  • Juvenile Justice Act amendment: Not the end of the debate. Hindustan Times. January 5, 2014
  • Modi Cabinet approves amendments to Juvenile Justice Act. Times of India
  • With older juveniles getting away, Juvenile Justice Act needs to be amended. Hindustan Times
  • This is No Childs Play. The Hindu. Aug 23, 2013


B. Websites Articles

  • Juvenile Justice Act: Why lowering the juvenile age limit is no magic bullet. dnaindia.com
  • Protecting children’s rights in criminal justice systems: a training manual and reference point for professionals and policymakers. www.penalreform.org
  • How should young killers be treated? Anne Taylor. bbc.co.uk
  • "Every parent's nightmare". Mike McKay (26 October 2000). BBC News. Retrieved 2 October 2012.
  • UNICEF India urges focus on reformative juvenile justice system and shares concerns about Juvenile Justice Act amendment. unicef.org.
  • Bill to amend Juvenile Justice Act introduced in LS. www.news.oneindia.in.
  • Juvenile Justice. global.encyclopedia.com


C. UN Resolutions

  • (1989) "Convention on the Rights of the Child", United Nations. Retrieved 2/23/08.
  • UNICEF, Convention on the Rights of the Child, 29 November 2005.


D. Journals

  • Rethinking Juvenile Justice: Arnit Das style,by Prof. B.B. Pande; Cite as : (2000) 6 SCC (Jour) 1
  • A Guide to the Typical Offences Handled by Youth Courts; Robert Flores
  • The Rule of Sentiment; Flavia Agnus


(Edited by MISHAAL NATHANI)

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