Under the Juvenile Justice Act (JJA), the minor who was involved in the December 16 Delhi gang rape can only be sentenced to a maximum of three years in a special home. The rationale for providing such a safeguard for juveniles lies in the assumption that they can’t distinguish between right and wrong and are prone to act rashly. In theory, such a rationale is sound. However such a formula will not ensure justice for the victims. The heinous nature of the crimes committed by juveniles in Delhi and in the Ankush Shinde cases buttresses this argument. In the latter case, a juvenile, along with five others, was convicted for multiple murder and rape. He was awarded death but was released when he was found to be a juvenile.
In Britain, a minor (under-10) is assumed to be unable to commit a crime. Between 10 and 17 years, he can be detained for such period as an adult in cases involving aggravated crimes. In the US, juvenile laws vary from state to state and the age of juveniles varies from under 16-18 years. Most states allow for provisions to treat juveniles like adults, either through judicial waiver, statutory exclusion, and/or prosecutor waiver.
The first option for India now is to amend the JJA to define a juvenile as a person below 16 years. The Supreme Court itself had said in the State of Maharashtra v. Balu (2005), that the accused being “either 17 or 19” was not “adequate or special reason” to reduce the sentence under the IPC for rape.
The second option would be to make our laws similar to that of Britain: anyone above 16 years is punishable as an adult in the case of serious offences like aggravated sexual assault and murder. In such cases, the definition of a juvenile need not be amended. So for minor offences, the safeguards under the JJ Act will apply to juveniles above the age of 16 as well.
The third option would be to authorise the Juvenile Justice Board to exercise waiver and treat those accused between the ages of 16 and 18 years and involved in heinous crimes as adults. The waiver could be decreed where the board concludes that the juvenile acted with the intention and with the knowledge of the consequences of his action, giving weight to the principle of doli capax or the capability of the accused to form the intent to commit the crime.
The last issue is whether a person below 18 years should at all be awarded the death penalty or not. At present, the JJ Act explicitly proscribes both life imprisonment and the death penalty. The overwhelming majority of states are opposed to capital punishment for minors. A balance has to be worked out between the theories of accountability and deterrence on the one hand and the theory of rehabilitation and reformation on the other.
The punishment of a juvenile must be based on the principles of penal proportionality and diminished responsibility. Thus awarding the death penalty, if allowed, should be restricted to cases of extreme culpability, where the minor knew the full import of his actions and only in the rarest of rare cases.
George Thomas is a graduate from National Law School, Bangalore
The views expressed by the author are personal