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Juvenile
Law
For brutal crime, how old is young?
By Aditi Tandon
Fourteen
years after it was enacted, India’s juvenile justice law is on the threshold of historic change. Uniform so far in treating everyone under the age of 18 years as children for the purpose of criminal trial, the law is now being rewritten to allow options that would enable 16 to 18 year olds, accused of heinous crimes to be tried as adults subject to
their criminal intent.The move involves scrapping of the old Juvenile Justice (Care and Protection of Children) Act 2000 and enactment of a new juvenile justice law to address issues engendered by
changing times.
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‘Adult crime, adult punishment’
Research suggests the brain develops mostly by seven to eight years of age. Evidence shows adolescents are increasingly indulging in high-risk adult behaviour fully aware of existing laws. The new law fills a gap which disallowed scope for deterrence, leading to surrogacy of adult crime. The new law will allow boards to refer only the highly offensive ones to the adult system for trial. Children are attaining puberty at nine years. We must accept that heinousness nature of child offences needs adult treatment. Let us not confuse positive discipline with
punishment.
Jitendra Nagpal, child psychiatrist
‘Reform, not punish’
When we counselled the accused juvenile we found that he was not a violent person. What happened was an aberration in his life. It was not his whole life. If he was to be sent to the adult system for trial he would come out of jail at 37 years, perhaps more hardened than
ever.
Ved Kumari, who counselled the juvenile accused in the delhi gang-rape case
Can’t be tried like adults, say child
activists
 A fortnight ago the ProChild Network, a coalition of 58 NGOs and individuals working for children in India, condemned the government’s move to try and lower the juvenile age to 16 years. It said, “We condemn the pitching of human rights of women against the human rights of children. Even Justice Verma’s report did not consider a general lowering of age as a viable solution when addressing the problem of women’s safety. There is more need for research to back any change in the law.”
Child activists argue that a simplistic reading of the NCRB figures could lead to devastating results. They reject Maneka Gandhi’s contention that 50 per cent rapes are being committed by juveniles and argue that the NCRB data needs to be seen in perspective of age-related crimes in India.
“Children constitute 40 per cent of India’s 1.2 billion people. Of this, 73,767, 907 children are in the age group of 16 to 18 years. The number of children apprehended for rape in 2013 was 1,388, which is merely 0.002 of all children in the given age group. The number of children aged 16 to 18 years booked for violent crimes in 2012 was 6,747. In 2013 that number went up to 6,854 which is a meagre 1.6 per cent increase. Are we saying that a country as large as India cannot take care of this miniscule fraction of 16 to 18 year olds booked for violent crimes?” asks Bharti Ali of HAQ Centre for Child Rights. Activists also say that there is no data on how many convicted children have re-offended. However, the ProChild Network says its experience with juvenile justice tells them that children caught for rape did not return to the juvenile system as repeat offenders.
There was national outrage following the gang-rape of a medic in Delhi in 2012. A file photo |
 Young and criminal
2013
Children apprehended for rape: 1,388
Arrested for sex-related crimes: 28,238 2012
Children booked for violent crimes: 6,747
Held for sex-related crimes: 1,550 Juvenile population Percentage of India’s 1.2 billion people:
40%
Children in 16-18 age group: 73,767, 907 |
Although the new law proposes several path-breaking changes in relation to child protection (it seeks to declare ragging and corporal punishment as crimes) and adoption, besides introducing foster care for the first time, it has attracted attention mainly for its provision to lower the upper age limit for children in conflict with the law from 18 years to 16. This means that in cases where the Juvenile Justice Board (which hears cases involving children) is convinced that a child offender committed a grave offence like rape or murder in a premeditated manner it would
have the authority to transfer the child to adult criminal justice system for trial under the Indian Penal
Code (IPC). The child, however, would not be awarded death penalty, clarifies the law. Backing the move is Women and Child Development Minister Maneka Sanjay Gandhi who was ironically at the helm when India first enacted the juvenile justice law in 2000 and set 18 years as the threshold age for all children. “Times have changed,” she says, adding that she has every reason to believe the national crime statistics which show that 50 per cent of all rapes are being committed by juveniles who are aware of the existing law which allows them to get away with a maximum of three years in a correctional facility even for offences like rapes and murders. Why the amendment The debate around amending the juvenile justice law started in December 2012 after a 23-year-old Delhi girl died following a brutal gang-rape by six persons, including a 17 year old. While the five adult accused were sentenced to death in the case, the juvenile was sent to three years in a correctional home. National outrage followed and the government set up a three-member committee under the late Justice JS Verma whose suggestions formed the basis for a new criminal amendment law that provided stringent penalties for rape. He, however, declined to lower the juvenile age saying the state must first create opportunities required for psychological wellbeing of all children. A few months on, another case came to light in Mumbai where two juveniles were charged with involvement in the gang-rape of a telephone operator and later a journalist. Known as the Shakti Mills gang-rape case, it led to the conviction of juveniles, with the Special Public Prosecutor Ujjwal Nikam saying: “The Juvenile Justice Board has convicted the juveniles and sent them to Boston School of Nashik to learn good behaviour.” The case further fuelled national outrage and calls to amend the law for holding grave child offenders accountable became shriller. Backing these calls were the National Crime Records Bureau (NCRB) statistics which revealed that 28,238 adolescents aged 16 to 18 years were arrested for sex-related crimes in 2013 as against 1,550 in 2012. This represented an 83 per cent jump in a year, even though the percentage of crimes committed by juveniles last year constituted only 2.3 per cent of the 1,17,000 crimes recorded. Further disaggregation of the figures showed 1,388 children were arrested on rape charges in 2013 which saw 33,707 reported rapes in all. SC upholds existing law Where on the one hand the previous Congress-led UPA government left the Juvenile Justice Act untouched insofar as the upper age limit for juvenile offenders goes, on the other the Supreme Court upheld the validity of existing laws on the subject. In a verdict delivered on July 17, 2013, seven months after the Delhi gang-rape, the apex court rejected eight petitions which sought to amend laws to lower the juvenile age for heinous offences. The court concluded that the existing laws are based on sound principles contained in the Constitution and various international declarations, including the UN Convention on Rights of the Child which came into force in September 1992. India signed this convention and ratified it on December 11, 1992, later fulfilling its obligations under the same by enacting the juvenile justice law in 2000. “Article 1 of the convention provided a basis of 18 years as the upper age limit for children under the Juvenile Justice Act 2000. This age limit is supported by scientific data indicating that the brain continues to develop till a child reaches 18 years of age. In the absence of proper data we are unwilling to deviate from the provisions of the Act which represents the collective will of Parliament,” said the court in the Salil Bali versus Union of India case. The court considered the fact that in the past two years juvenile crimes as a percentage of total crimes have remained stagnant at 1.2 per cent. Again on March 28 this year, it disposed of two petitions filed separately by BJP leader Subramanian Swamy and the parents of Delhi gang-rape victim who challenged the constitutionality of the Act. They demanded that a child offender’s “emotional, mental and intellectual maturity” instead of his age be considered while deciding whether to try him as a juvenile or an adult. The Supreme Court rejected these saying, “If the legislature has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible, an enquiry by the courts must come to an end… Moreover there is a considerable body of world opinion that all under the age of 18 ought to be treated as juveniles and separate treatment be meted out to them so far as offences committed by such persons are concerned.” World experience Though the US and the UK allow transferring juveniles as young as 12 year olds to the adult system depending on their culpability, recent evidence from these nations suggests transfer policies have generally resulted in increased arrests for subsequent crimes among juveniles transferred to the adult system as compared to those retained in the juvenile system. A group of researchers at the Centre for Child and the Law at the National Law School of India (NLSI), Bangalore, recently authored a research which busts several myths related to juvenile offenders. The group defends the current juvenile justice law and produces evidence on how several states in the US are beginning to reject retributive approach to handle juvenile offenders. The report records the fact that since the year 2009, 20 US states have closed or downsized youth facilities or reduced their dependence on incarceration. “In many places the money saved is being redirected to programmes that supervise and treat youths in their communities. States that reduced juvenile confinement most dramatically also saw the greatest decline in juvenile arrests for violent crimes,” the paper says, citing US experience. It records the December 2012 recommendation of the US Attorney General’s National Taskforce on Children Exposed to Violence which said “no juvenile offender should be viewed or treated as adult”. Rejecting the belief that juveniles who commit adult crimes are fit to be treated as adults, the NLSI researchers cited a University of Alberta finding which used brain imaging to conclude that structural changes in the brain continued well into the early 20s. Jay Giedd of the US National Institute of Mental Health, an expert in adolescent behaviour, pegs at 25 years the age until which the brain changes. Besides, American psychologists, well-documented studies have shown that the vulnerability to indulge in risky and reckless behaviour is greater in middle adolescence (14 to 17 years) and this is the time when children need the most support in order to successfully complete their passage from childhood to adulthood. Child rights activists back home argue that India need not emulate the US because the number of children involved in grave crimes in India is far lower than in the US. In 2012 where 10,20,334 children under the age of 18 were arrested for such crimes in the US, the corresponding figure for India was only 33,887. Arguments for change Western experience apart, the BJP government is convinced that the juvenile justice law must have the flexibility to send children accused of grave offences to the adult criminal system for trial. The Ministry of Women and Child has received 1,000 responses to its proposal to write a new law to incorporate that change. Maneka Gandhi says, “Out of 1,000 responses we have received, 90 per cent favour our proposal. We have moved further on the draft law and sent it to the Law Ministry for vetting. After we have had inter-ministerial discussions on the draft Bill, we will take it to the Cabinet and then to Parliament for passage.” The minister says concerns around the new law are misplaced. “All the new Bill does is grant flexibility to the juvenile justice boards to look at every case and assess whether the crime was conducted in a premeditated manner. Only if the board is convinced of the culpability of the offender will it need to refer the matter to the adult court for trial. We have given the boards a window which did not exist earlier. This does not mean every child offender will have to be tried in the adult court. We have incorporated safeguards,” Maneka says. Indian child health experts are also convinced that the new law would allow a much-needed flexibility in the manner of treatment of juvenile offenders. Provisions of the new law While the existing Act (set for repeal) sets the juvenile age at 18 years for all child offenders, the new Juvenile Justice (Care and Protection of Children) Act 2014 makes distinctions proposing a reduction in the juvenile age to 16 years for two categories of child offenders — juveniles committing heinous offences like rape, murder, acid attacks and gang-rape; and juveniles committing repeat offences of attempted murders, disrobing a woman, kidnappings for
murder, armed robbery and selling minors for prostitution. It says, “In case of a child alleged to be in conflict of the law, who has completed 16th year as on date of commission of the offence under Sections 302 (murder), 326A (acid attack), 376 (rape), 376D (gang-rape) of the IPC, the Juvenile Justice Board shall conduct an inquiry within one month regarding the premeditated nature of the offence, mitigating circumstances in which the offence was committed, culpability of child in committing the offence, and the child’s ability to understand the consequences of his actions. If convinced of culpability, the board can refer the case to court for adjudication under IPC provisions.” The existing law says juveniles can only be tried by the Juvenile Justice Board (and not any courts) and face a maximum of three years in correction homes for heinous offences.
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