“That boy everyone calls juvenile, he beat her with an iron rod. He inserted it into her body till it went all the way up and yanked it out, and with it, her intestines. As she shouted for him to stop, he screamed at her, 'Saali, mar! (Die, bitch)'. Yet the law calls him a juvenile,” said the mother of 23 year old victim of Delhi gangrape, making a strong case for death to the sixth accused, allegedly a juvenile.
The mother of the victim is not alone in wanting death for the sixth accused, who is said to be close to 18 years old. The sheer bestiality of the crime has pitched those who want juveniles to be treated as adults in exceptional cases of severe crimes against those who believe that there is no need for exceptions, as the law is clear on how minors should be treated.
Juvenile offenders or juveniles in conflict with law are tried under the Juvenile Justice Act (JJA) which defines 'juvenile' as a boy or a girl under the age of 18. Capital punishment or life imprisonment cannot be imposed for offences committed by persons below 18, irrespective of the gravity of the crime.
Further, India is a signatory to the United Nation Child Rights Convention which has fixed the age of a juvenile at 18, and which says that the best interest of the child shall be the primary consideration in all actions concerning children.
Since the enactment of the JJA, there has never been a case where a juvenile was tried or treated at par with adult because of the nature of the crime he or she committed. In fact, there are many cases where, during the trial in a regular court, the accused turned out to be juveniles. Such cases were shifted to juvenile justice boards with immediate effect.
However, in the wake of Delhi gang rape, there have been demands to create a window in the existing law for exceptions in cases where juveniles are convicted for committing crimes of a heinous nature.
Delhi based lawyer Shweta Kapoor’s public interest litigation filed in the Delhi High Court demands amendments to the JJA 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,” says the PIL.
The litigation argues that if a juvenile is convicted for committing a serious crime the age of 16, the juvenile in question should remain in an institution meant for juveniles only till he is 18. After that, the juvenile should be treated like an ordinary criminal and subjected to the imprisonment meant for adults, adds the PIL.
Delhi based additional public prosecutor Richa Kapoor believes that an exception should be made in cases in which the documentary evidence is non- conclusive or there is no documentary evidence at all to establish juvenility of the accused. “The court should weigh the criminal conduct of accused and method of crime rather than relying on a bone test which is non- conclusive,” says Kapoor.
Writing for The Times of India, senior Supreme Court lawyer Vikas Pahwa says that at the age of 16, the brain can differentiate between right and wrong. Arguing in favour of amending the JJA, Pahwa says that rather than setting a blanket minimum age, there can be different age groups starting from ten years. The treatment to the juvenile offender can vary depending on his mental growth and capacity to understand criminal responsibility, says Pahwa.
Yet, child right experts and lawyers who are against any amendments to the JJA say that one case cannot be the basis to incorporate blanket changes in the law regarding age or penalty for grave offences.
Maharukh Adenwalla, a Mumbai based senior lawyer who works on the issues of child rights, says that the JJA is perceived as a lenient law, as it is reformatory and not adversary in nature. “JJ Act is not a lenient law but an age appropriate law. The philosophy behind the Act is the belief that children are not able to cope with the situation in the same way as adults, as they can be easily influenced and can be easily reformed as well. Therefore, it is not the offence but the offender that we need to deal with.”
This reformatory nature of juvenile jurisprudence is the basis under which juveniles are placed in specialised settings since the enactment of Bombay Children’s Act (BCA) 1948. The BCA had the provision of a classifying centre for juveniles found to have committed offences. “If a juvenile offender is kept with adults, there is a high risk of him getting influenced by hardened criminals or being abused by them,” says Adenwalla.
The JJ Act 2000 says that if the juvenile has attained the age of 16 and the offence committed is of serious nature, he/she can be sent to a place of safety- which is different from a regular observation home meant for juveniles, but cannot be a police lock- up or jail- for a maximum period of three years.
The Indian Penal Code has fixed seven years as the age of criminal responsibility in India. It means no act by a child under seven years of age can ever be an offence. Professor Ved Kumari, former chairperson of Delhi judicial academy says, “Seven years is a very low age if you compare it with most European countries where the age of criminal responsibility varies between 13 and 15. Now, on the other end, if you create another segment for children closer to 18, it will not be fair.”
Professor Kumari says that the option of treating some juvenile offenders as exceptional depending on the seriousness of the offence will only complicate the interpretation of the law. “It will be the same situation we have today in the rarest of the rare cases. What forms rarest of the rare, depends on the interpretation of the judge. Similarly, which case warrants exceptional treatment, will vary from magistrate to magistrate,” she said.
Child rights experts argue that creating a scope of strict treatment for children closer to 18 convicted for heinous crimes may be the easiest response to society’s vengeance, but not the best one. “More than 90 per cent of all delinquency is a response to how society treats a child. More than 40 per cent of India's children are marginalised through trafficking, poverty, addiction, labour, abuse, disability, addiction, calamity, conflicts, exploitation etc. Rather than addressing this issue, we are talking about trying juveniles on case by case basis,” says Nishit Kumar of Childline India Foundation.
“People need to understand that every juvenile delinquent is not Hannibal the cannibal. Few are psychotic- with criminal tendencies. But the bulk of them turn to crime when they are brutalized,” he adds.