The Supreme Court has sought clarity from the Government on whether Juveniles in conflict with law can seek anticipatory bail. Five High Courts have upheld a Juvenile’s Right to seek pre-arrest bail, whilst four others have rejected it. Four Kolkata High Court Benches have sought reference of rights of a juvenile to seek anticipatory bail to a larger bench. A dilemma prevails.
Juvenile Justice Act, 1986 (JJA) prescribed age of a juvenile at 16 years. India ratified the UN Convention on Rights of the Child (UNCRC) in 1992. It defines “a child as a human being below the age of 18 years unless the law applicable to the child, majority is attained earlier”. To adapt to UNCRC, JJA 1986 was amended in 2000 to prescribe 18 years as the age of a child or a juvenile. Consequently, under JJA 2000, “a juvenile in conflict with law” meant a juvenile under 18 years of age, who is stated to have committed an offense.
In 2012, Nirbhaya gang rape case, brought public outcry on streets agitating for a stringent punishment for juvenile offenders. Supreme Court in Dr. Subramanian Swamy (2014) declined to read down JJ Act, and refused to interfere with the age of an accused juvenile who had been found guilty of heinous offenses. Mental and intellectual competence of juvenile offenders was ignored. The Supreme Court held that the JJ Act was in compliance with international conventions. Juveniles, as unequals, were classified as a special class above law. Legitimacy, not certainty, was the command of laws. Justice, to logic of law was done, but, injustice was done to relief in law.
Government in its wisdom amended JJA which was rechristened as JJA, 2015 and does not use the word ‘Arrest’. Juveniles can be apprehended, not arrested. If detained, the juvenile shall be released on bail. Gravity, seriousness, and role in crime cannot be a ground to decline bail which is mandatory. If a Juvenile cannot be arrested, where is the question of bail. Criminal laws treat adults & juveniles at parity for anticipatory bail. JJA insulates juveniles from arrest. If there is no arrest, where is the question of bail for juveniles?
JJA empowers Juvenile Justice Boards (JJB) to decide whether a juvenile aged between 16 to 18 years be tried in a Children’s Court for heinous offenses. Preliminary assessments by JJB are mandatory to ascertain the mental and physical capacity of a juvenile, his ability to understand consequences of offenses and circumstances in which he committed a heinous offense, before he is tried by a Court as an adult under Criminal laws. Now, even if so tired, juveniles cannot be sentenced to death or life imprisonment. Process begs an answer. Are JJB’s comprising of a Judicial Magistrate and two social workers equipped with acumen, wisdom and experience, attributed to a full-fledged criminal Court empowered to conduct such an assessment. Delegating powers of a criminal trial through a pseudo preliminary assessment, is like taking the wrong bus. If the cart is put before the horse, results are obvious. Juveniles win hands down.
Review of recent precedents of High Courts in matters of juvenile crimes on issues of bail and sentences awarded after trial by Courts, indicates a trend that JJA followed in letter & practice, has no margin for social realities and practical considerations of role of juvenile offenders in involvement of “heinous offences”, like murder, gang rape, drug smuggling and organised crime. Answer for this is not far. JJA contemplates total separation of juveniles from mainstream offenders. JJA is a special Act made by Parliament containing non-obstante (overriding) clauses that have an overpowering effect. So much so, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) barring bail to NDPS offenders, pales into insignificance in front of JJA in which bail to juveniles, and not confinement, is the rule. Sad, but true. A special place for the juvenile is reserved for bail, not detention, de-hors, very spirit and mandate of NDPS.
Supreme Court judgment in Kathua gang-rape murder case overturned High Court verdict on juvenility of accused, directing juvenile to face trial as an adult. From larger perspectives, deprecating rising rates of juvenile delinquency, Supreme Court observed epigenetic clock technique for age determination and whether JJA has subserved its object of goal of reformation of juveniles. Brutal and heinous crimes by juveniles escaping adult punishment emboldens them. Juveniles willingly engaged by adult criminals in crimes of passion, terrorism, drug smuggling, robbery are immune to criminal laws. Is JJA being abused if a juvenile uses a rocket propelled grenade for terrorism attacks. Was criminal intention any less. What for sympathy. Is the label of a juvenile, a license or permit in law to commit heinous offenses willingly, with promise of assured pardon in pockets.
What then is a solution? There is a dichotomy of thought. Alarm was caused that the law was ill-equipped to handle juvenile offenders between 16 to 18 years of age committing “heinous offenses”. Hence, instead of lowering the age to 16 years, changes ensued and juvenile offenders between 16 to 18 years were put in a different class. Amendments were made. But, this has not served purposes. Exercise was futile. Juvenile offenders are still a privileged class, enjoying bail despite immunity from arrest & freedom from criminal trials.
We need to think afresh as UNCRC permits a child to be below the age of 18 years, unless the law applicable to the child, majority is attained earlier. Adult times for adult crimes must be the rule. Arrest immunity & compulsory bail for juvenile offenders must end. Law should not be a cloak for a juvenile criminal. Definition of a juvenile and a child given separately in JJA needs to be recast in a new mold.
With advent of technology, glamour of crime and susceptibility to ill-virtues creeping society, an iron hand of law is needed for reform. Courts will interpret as the legislature ordains. Courts cannot legislate. Parliament must come to rescue. Age of the juvenile has to be revisited. It is time that the law took a call. The UN Convention is not a deterrent. It has to be read down. With increasing avenues of glorified crime, juvenile offenders need to be checked, not treated or rehabilitated. Virus ought not to infect society more. Kathua case is an eye opener. We do not need another precedent. Benefit of reform for juveniles ought not to be extended any more to those offenders claiming to be juveniles who enjoy crime but refuse to suffer its penalties. Till then, law is in slumber.
