Not a minor danger
Should an underage person be punished in the same manner for, say, stealing a loaf or two of bread and for raping a woman's gut out? Chanakya writes.columns Updated: Feb 02, 2013 22:05 IST
Not every child may strictly be a child. In the movie, City of God, the 12-year-old Li'l Dice grins and kills mercilessly on his way to becoming mob boss Li'l Zé as a grown up. Or in the film Boy A, for instance, Jack is released from prison at 24 with a dark secret: as a boy, he had kidnapped, tortured and killed a much smaller child.
You may say that's cinema. But children, especially young adults whom we call legally minor, have done far worse in real life. Police accounts say that one of the six accused in the Delhi gang rape, a young man whose school certificates claim he was a few months less than 18 - the age at which Indian law begins to punish you as an adult - was, for instance, the most brutal of those who raped the 23-year-old in a bus late on December 16 last year.
After apparently ensnaring the girl and her friend to the bus, he raped her twice, once when she was unconscious. He attacked her with an iron rod, causing irreparable damage to her intestines. He then threw the girl and her friend out, before trying to run the bus over the victim.
A young man capable of such detailed and considered depravity may now walk free with just three years in a remand home. The police, for some reason, have not asked for a bone test to ascertain his age. They trust his school certificate from Badaun in UP. We know the truth about educational certificates in India, don't we? Many families, even well educated ones, comprise some member whose age has been fudged to avail a longer term in service or some such benefit. Fake certificates are openly advertised online. A racket was busted in Goa recently for faking certificates of at least nine universities.
However, there is a much bigger issue than the ossification test: should somebody who is physically and mentally capable of inflicting the worst kind of adult brutality be treated as a minor? Should an underage person be punished the same way for stealing a loaf of bread and raping a woman's gut out?
What could be the repercussions of letting off lightly a minor perpetrator of a heinous crime?
On February 12, 1993, James Patrick Bulger, a three-year-old from Kirkby, Britain, was kidnapped, tortured and murdered by two 10-year-old boys, Robert Thompson and Jon Venables. The child was picked up from the supermarket when his mother was not looking by the two boys who were bunking class and looking for some unimaginably devious fun. He was taken near the rail tracks, tortured, killed and the body left to be run over by a train. The two became the youngest convicts in modern British history, and were released when they were 18.
Nine years later, Venables returned to prison for violating the terms of his release. Even this time it wasn't any small crime: he was reportedly sent back to jail indefinitely for child pornography. Boy A is loosely based on the Bulger murder. The lesson: if you unleash a violently criminal person on civilised society based on his date of birth and not on the nature of his crime, you put that society at serious risk.
India's erstwhile British rulers, way back in 1860, when children were not even exposed to violent video games or carelessly strewn online porn, took a harsher view of such crimes while creating the Indian Penal Code. The age for criminal responsibility or doli incapax (which presumes that a child less than a certain age cannot be held legally responsible for his or her actions) was set at seven. The judge had the discretion to hold a child between seven and 12 guilty based on the planning, preparation, intent and the weapon used. But the moment a child turns 12, he would be tried and punished as an adult.
The Juvenile Justice Act of 2000, for largely good reasons, replaced that with a gentler approach - a child below 16 could not be tried in an adult court, given adult punishment and sent to a jail. The age was subsequently raised to 18.
In countries like Britian and Australia, the age of criminal responsibility is 10 years. The US distinguishes between juveniles as victims of a harsh social environment and those who are aware of how terrible their crime is.
Also, most advanced countries have strict terms of release from juvenile homes and fairly developed mechanisms to track the offender after their release. Indian prisons and remand homes are notorious for failing to track the mischief of even serving inmates. After release, most possibly as early as 2016, the 'juvenile' rapist of today may turn into a 21-year-old psychopath on the prowl, anonymous under the cover of India's billion-something population.
The prospect makes me cringe. Wisdom demands that the law treat minors committing petty crimes gently. It also demands that minors mentally and physically capable of committing heinous, adult crimes be treated like adults, and punished like the devils they are.