The assertion of a primary accused in the Delhi gang-rape case that he’s a minor has sent the law enforcement authorities into a tizzy to verify his age. If this boy, who by all accounts was most violent in the brutal assault, is indeed below 18 years, then regardless of his role or what many of us may want his fate to be, as the law currently stands, he can and will only be tried under the special statute for juveniles. This hard reality has led to varying forms of emotional outbursts and disbelief. It has also resulted in questioning the law, finding faults with the judicial process (common practices of late) and a call for a relook of the statute under which minors are charged. All justified, but should not the current public discourse also force a dialogue on the systematic failures that lead to criminality? The young man should definitely be punished. But are others, be it children’s homes and reformatory caretakers, parents, law administrators, schools, counsellors, probation officers and employers, also not culprits for their contributions to the predicaments of these delinquents?
Let’s begin by examining the law. Juvenile is defined under the Juvenile Justice (care and protection of children) Act (“JJ Act”), as someone below 18 years. The JJ Act states that the justice system, as available for adults, is not suitable for application to juveniles. The purpose of the JJ Act, therefore, is to provide for the care, protection, treatment, development, rehabilitation and social integration of delinquent juveniles.
Disputes relating to juveniles are heard by specially constituted Juvenile Justice Boards. It’s important to clarify a common misgiving that an inquiry initiated against an accused, who at the time of the offence was a juvenile, does not abate merely upon such person crossing 18 years during the course of such inquiry.
On matters of practice, a juvenile on being apprehended by the police is entitled to bail no matter what their offence. The maximum punishment a juvenile can receive, regardless of the offence, is three years. And while, juveniles cannot be sentenced to death or granted imprisonment for life, they can be punished even after they turn 18. Any sentence awarded is not spent in a prison but instead at a rehabilitation facility or a special remand home.
Notably, the JJ Act is not the only statute under which exemptions to juveniles are granted. The Indian Penal Code also grants exemptions to children below 7 and 12 years of age.
Is there any sanctity in the 18 years threshold? Not really, but it may be pertinent to note that, there exists a United Nations Convention on the Rights of the Child. India ratified this Convention post which the JJ Act was amended to conform to the standards prescribed under it. The age of 18 is prescribed under the Beijing Rules, made under the Convention, and while it’s not mandatory, it’s founded on the principle that the age of criminal responsibility shall not be fixed too low bearing in mind the facts of mental and intellectual maturity. Below 18 years is considered insufficient throughout the world and India also regards that as the age of innocence.
But given the societal changes over the past decade, the changed nutritional diet and the exposure which children have from a very young age, it’s true that they are maturing faster and hence their faculties develop well before 18 years. Hence, now may well be time to reconsider the 18 years limit. Even in countries like U.K. or U.S.A., which have ratified the UN Convention, a distinction is made for offenders below 18 to distinguish between culpability in heinous crimes and for exceptional offences, like rape and murder.
It’s important to emphasize that the debate on lowering the age is more than just a discussion about a number. There’s data which compels a re-examination. According to National Crime Records Bureau data for 2011, 33,887 juveniles were arrested for 25,178 crimes. Of these, 1,211 were between 7-12 years, 11,019 fell between 12-16 years and 21,657 were in the 16-18 years age group. This means 64% of all juvenile criminals fall within 16-18 years. Interestingly, the data also reveals that only 5.7% of juveniles arrested were homeless while a vast majority stayed with their parents or relatives, but were from economically backward families.
The above data is perhaps as bone-chilling as the gruesome role of the juvenile in the recent gang-rape. But it also serves as evidence of the need to take a closer look at the factors driving these adolescents to crimes. One can no longer ignore the role each of us in society plays and how we may have failed in our duty towards the juveniles in conflict with law. As a nation, if we wish to continue with the reformative theory of punishment, which we must, then it’s important to overhaul the correctional and rehabilitation facilities that are integral to that theory.
While one agrees that a knee-jerk reaction to amend the statute or lower the age is both unwise and sets a bad precedence. What one must remember, however, is that the law is subject to a continuous evolutionary process, especially since the factors defining society are constantly changing. Its rightly said that, punishment is related to the aspirations of a society and the law helps to maintain the social equilibrium so that each of us and the society as a whole can live up to its cherished values and dreams. The delinquents are a part of this social mix. The choice is now ours to decide the future we want for these juveniles. Or risk becoming culprits ourselves.
Satvik Varma is an advocate based in New Delhi & an Aspen India Leadership Fellow.
Published in The Economic Times, on 14th January, 2013.