The Juvenile Justice Act, 2000 now defines a juvenile as one who is alleged to have committed an offence and has not completed the eighteenth year of age as on the date of commission of such offence. Before its amendment in 2001, the age of juvenile was 16. But it was raised to 18 for two reasons. First, we wanted to abide by the UN Convention which defines child as a person below the age of 18. Second, we wanted to follow the law models of western countries like the UK, the USA and France.
However, this creates a contradiction between the two Acts passed by the same Parliament. Section 82 of the Indian Penal Code, 1860 puts a blanket ban on any offence that is committed by a child of less than 7 years of age. It assumes that a child under 7 years of age is neither able to understand the physical act of his crime nor the consequences of his act. Thus, he enjoys complete immunity. However, Section 83 of the same Act, in cases of offences committed by children between the age group of 7 years and 12 years, gives discretion to the court. The court would ascertain whether the child between 7 and 12 years was capable to understand the consequences of his/her act; how he planned it; how he prepared it and how he was provoked or instigated into the act. Only if the court has reason to believe that the consequences of the act were familiar to the child, can the court award punishment for the same. But after the age of 12, IPC treats everyone alike, and even for juvenile offenders regular trial, regular sentence and regular jail " should" come into play. Thus, a juvenile criminal is a criminal who just happens to be young. But this does not happen in practice. Here, the Juvenile Justice Act, 2000 intervenes and creates special provisions for crimes committed by juveniles.
The Juvenile Justice Act gives much immunity to juvenile offenders based on their age -18 years in case of India. Therefore, no juvenile can be given a death sentence or a life sentence for any crime if he/she hasn't turned 18 at the time of the commission of the crime. A policeman wearing his uniform cannot examine him. The court has no jurisdiction over juveniles. A juvenile offender can neither be tried nor sentenced by the court. The Juvenile Justice Board is the sole authority that determines his guilt and quantum of punishment subject to a maximum detention of a period of 3 years. Moreover, he cannot be sent to jail. Rather, he is detained at a place called an Observation Home.
But why is there confusion between the two Acts passed by the same Parliament? Supposedly, establishing the age of a Juvenile that is presently 18 years, for ascertaining his criminal liability is done on the basis of his intellectual, mental, rational and perceptual maturity. The question in mind is - whether the juvenile committing the said offence is able to understand the consequences of his act or not. The Indian Penal Code very meritoriously clears this confusion. But the Juvenile Justice Act steps aside from the issue of maturity and understanding and gets overwhelmed with the spirit of reformation and gives much protection to juvenile offenders.
Child activists rest on the shoulder of the Reformative theory of punishment and plead that juvenile offenders should be given an opportunity to reform and become an equal part of the society. So far their pleas have been heard by the right quarters and thus we have the present Act. Therefore, we need to accept it with a pinch of salt that a juvenile criminal has absolute understanding about his physical act of crime, mental intention to commit the crime and its consequences. Whatever immunity we as a society are giving to a juvenile criminal is because we are besieged with the emotion of reformation.
Having said this, should we now debate about a well settled law? If yes why? There are two reasons. One, the ghastly gang- rape-cum-murder in Delhi in which the minor accused has allegedly committed the most brutal act has shifted the spot light on juvenile offenders, their age bar, nature of crime committed and the brutality committed by them. Second, over the last ten years, heinous crimes like murder and rape by juveniles have shot up between four to five times. This is indeed a sharp rise which should not go unnoticed, unanalyzed and without debate. Therefore, the big question is that even while we keep the spirit of reformation of juveniles at the back of our mind, should we link their crimes and consequent penalty to their age or to the intensity, degree and heinousness of the crime committed by them. Should a juvenile, let's say of 17 years, go scot free after committing rape or murder? Under the present law, a juvenile cannot be kept in the Observation Home after he is 18 years old. He cannot be even kept at a regular jail because when he committed the crime he was under 18. So he walks free. Delhi's rape-cum-murder juvenile accused would walk free after a few months.
To quote the example of a few developed countries; in the United Kingdom even though the age for juveniles is 18 years, if a juvenile between the age of 16 -18 years commits a serious crime like rape or murder, he faces a regular trial. In at least 20 out of 52 states of the United States of America, in cases of heinous crimes committed by anyone between the age group of 16-18, the juvenile is subject to regular courts, trial and regular jail. In France, there are special courts that are meant to deal with serious crimes done by Juveniles between the age of 16 and 18. IPC already gives discretion to court if the crime is committed by a person between the age of 7 and 12. Hence, even we can extend the age group from 7 to 16 for all the ordinary crimes committed by juveniles. The judge will have the discretion to order a regular trial if the circumstances warrant so. The judge would look into the planning, preparation, intent and other related aspects. For repeat juvenile offenders, the judge can very well use his discretion in the interest of justice. And similarly, we can have a special category for juveniles between the age-group of 16 to 18 who commit serious crimes like murder, attempt to murder, rape, robbery and dacoity. They must face regular court trial and jail. At present the Juvenile Justice Act does not account for any of the above.
Another important point made by the child rights activists is that of the 50 crore children of India only 1% are involved in crimes, therefore, rest of the 49.5 crore children should not suffer by any suggested changes in the law. But this is a self-defeating argument. Amendments in law would only affect juvenile delinquents not the rest of the 49.5 crore children. Having a higher age bar would also prove counterproductive for the welfare of juveniles as well. A higher age would embolden juveniles with delinquent tendencies to commit crime and get away, taking undue benefit of higher age. Lenient punishment would also encourage begging and prostitution gang runners to use children as a recycled stock of the game with children bearing most of the brunt at the end of the day.
The Indian Penal Code made in 1860, believed that a person of 12 years and one minute old had sufficient maturity to understand the consequences of his actions and hence should be tried in the ordinary court of law. When a 12 year old of 1860 era was mature enough to understand the consequences of his acts, then a 12 year old of today who is exposed to so much of information and worldly affairs surely has at least similar if not more capabilities. Then on the paradigm of understanding and maturity, why a juvenile should be treated preferentially?
Child rights activist have genuine humanitarian concern that most of the juvenile offenders did not have the right upbringing, parenting, education and exposure. Therefore, they should be dealt with differently by the criminal justice system. However, law is made for all sections of the society. How would their plea hold good if this horrific rape-cum-murder had been committed by an upmarket and rich juvenile of Delhi?
Therefore, we need to seriously consider the changes in our present juvenile laws and tune them to the present times, lest next brutal juvenile offender not roam freely on the streets and endanger our peace and dignity further.