Trying minors as adults for rape: Will amending Juvenile Justice Act deter crime?

The union cabinet on Wednesday approved amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000 that may have far-reaching effects on how the Indian courts will deal with a juvenile if the individual is accused of committing a heinous crime like rape or murder.

As per the provisions of the existing law a “‘juvenile’ or ‘child’ means a person who has not completed eighteenth year of age”. The latest cabinet nod is for the proposal that empowers the Juvenile Justice Board to decide whether a juvenile above 16 years involved in heinous crimes is to be sent to a observation home or tried in a regular court to face trial like any other adult.

According to the Bill, in no case can a juvenile involved in a heinous crime be sentenced to death or life imprisonment either when tried under the provisions of JJ Act or under the provisions of IPC.

The proposed amendments include facilitating the faster adoption of children and setting up foster care homes.

The Ministry of Women and Child Development intends to make the Central Adoption Resource Authority (CARA) the statutory body, which means it will have powers to regulate inter-country adoptions along with issuing guidelines on adoption and related matter. The proposed changes in the law come against the backdrop of outrage over after the minor convicted in the 16 December 2012 Delhi gangrape case was given a punishment of three years in a reform home . The bill will however first go to Parliament for debate.

As per statistics available with the National Crime Records Bureau (NCRB), there has been a sharp rise in rapes committed by juveniles.

While in 2010, the figure was at 858, it became 1149 in 2011 and 1316 in 2012. The number of juveniles held for rape in 2013 is 1,388.

Owing to the rise and brutality of sexual assaults particularly by juveniles on young girls and women, there was an increasing sense of urgency to create legal avenues for some deterrence to warn off the under-age perpetrators.

However, India being a signatory to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) that came into effect on 29 November 1985 had so far refrained from making any changes to its Juvenile Justice laws due to the following clauses:

“2.2 For purposes of these Rules, the following definitions shall be applied by Member States in a manner which is compatible with their respective legal systems and concepts:

(a) A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult;

(b) An offence is any behaviour (act or omission) that is punishable by law under the respective legal systems;

(c) A juvenile offender is a child or young person who is alleged to have committed or who has been found to have committed an offence.

But following the Delhi gangrape incident, BJP leader Subramanian Swamy had approached the Supreme Court seeking changes in the laws for those juveniles who willfully commits heinous crimes.

“The Supreme Court suggested that we should go to Parliament and Parliament should amend the legislation. That is what the present government is trying to do. It has been a long time since the Beijing Rules were brought into force and the society and times have changed a lot now. But I still say that the age a person is considered to be an adult by law should be 18 but this should hold only in crimes like petty thefts of a bicycle or a pastry. This cannot be same as heinous crimes like murder, rape and terrorism. Now even the al-Qaeda is calling for recruitment of juveniles in India to expand their terror network. For the heinous nature of crimes we should definitely have a hard stick,” Swamy said during a debate on CNN-IBN.

Former Delhi Police commissioner PR Kakkar considered Wednesday’s decision by the Union government as a step forward.

“So many years have passed since India became a signatory to the UN convention. It is a good thing that a magistrate has to decide if the accused goes to a reformatory or faces regular trial. This will check misuse of the law. There is no doubt that juvenile crime has increased tremendously in the last few years. I can’t say how much of a deterrence this new amendments will become but at least it will send a message to the juveniles. It is certainly a step in the right direction,” Kakkar said.

Notwithstanding the arguments put forward in support of the amendments, human rights lawyer Vrinda Grover had a completely different take.

“We want juvenile crimes to come down but we also need increased security for women. In 2009 India criticised the UN for bringing down the age limit for the applicability of the juvenile justrice rules to below 16. This whole system of judicial waiver is not new. US tried to bring down the age limit to curb crimes among juveniles but the experiment failed. Many studies say these juveniles may become repeat offencders if treated as adults. In many cases the deterrance do not work. Crimes can be curtailed through proper counselling,” Grover said.

This observation was immediately rebutted by the police officer. “Nearly 80-85 percent people who got punished for heinous crimes do not commit the crime again. Expecting all juveniles to repeat offence is wrong,” Kakkar said.

Senior advocate CA Sundaram felt that not all juveniles are unaware of the gravity of the crime.

“The Juvenile Justice Act brings a different mechanism to the notion that all juveniles are not aware of the consequences of their action. Where the offences are such as rape and the juvenile forces himself on someone he fully knows the effect of his action. The act does not give blanket cover for everybody. What would have been the reaction if Ajmal Kasab was a 17-year-old and sent to a correction home?” Sundaram asked, challenging the idea that approved changes in the Juvenile Justice Act are not appropriate.