It is heartening to read that the Supreme Court (SC) has decided to examine the constitutional validity of the provision that gives the definition of juvenile in the Juvenile Justice Act (JJA) which treats an under-18 person as a minor. It has been contended before the SC by way of a PIL that Sections 2(k), 10 and 17 of the JJA dealing with the issue are irrational and ultravires the Constitution. The topic came into focus after the December 16 gang rape and the juvenile accused in this case, who is facing trial in a juvenile court, can only be given a maximum sentence of three years in a remand home.
There are reports that indicate that juveniles between 16 and 18 years are increasingly committing serious crimes and are also being hired for committing such crimes thanks to the glaring loophole in the JJA. According to the National Crime Records Bureau, the number of juveniles arrested for murder has doubled while those booked for rape has increased by over 7.5 times in the past five years. Rapes by juveniles have increased by 188%, thefts and robberies by about 200% and abduction of women by 660% during the same period. In 2007, 52 juveniles were arrested for murder and 20 for rape. The numbers rose to 111 for murder and 152 for rape in 2011. In more than 70% of the cases, the offenders were between 15 and 18 years.
India is among a very few countries to have 18 as the age of criminal responsibility. In Britain, anybody above 17 is an adult and separate youth courts try people under 18. A person under 17 can be tried as an adult in a limited number of serious offences like sexual assault, child sex offences committed by children, sexual activity with a child family member. When a youth offender is jointly charged with an adult, the charge is heard and tried by a regular court.
In the US, there are special juvenile courts to deal with under-18 delinquents. Around 20 US states allow them to be tried and sentenced as adults to life imprisonment. In June 2012, the Supreme Court barred mandatory life sentence without parole to juveniles. In 2012, a 13-year-old boy, who was accused of beating a half-brother to death while sexually abusing another 5-year-old in Florida, was charged as an adult. In 2011, a Colorado boy pleaded guilty to killing his parents when he was 12. The boy got a seven-year term in a juvenile facility and three years parole. In France, anyone under 18 can only be tried by special juvenile courts. A separate juvenile Assize court tries serious offences committed by minors between 16 and 18 years. In 2002, a law was enacted to provide tougher criminal response to juvenile delinquency. The thought behind such legal options is that a child who is 14 and above may not know the law stricto senso but has a sense of right and wrong. How can one sell the argument that a 14-18-year-old child does not know that killing/raping someone is wrong?
The Indian Penal Code lays down a practical approach for attributing criminal liability. Section 82 provides that nothing is an offence that is done by a child under seven years. Section 83 says nothing is an offence which is done by a child above seven years of age and under 12 and who has not attained the maturity to understand or judge the nature and consequences of his conduct. Taking from Section 82 and 83 of the Code, it follows that any child who is above 12 has ‘attained the maturity to understand or judge the nature and consequences of his conduct’ unless such a child suffers from mental impairment.
Hence the law must, in terms of Article 14 of our Constitution, lay down ‘intelligent classification’ for the treatment meted out to children below 18 years who indulge in criminal activities depending on the nature of the crime, reasons for such commission, manner in which the crime was committed; if the crime was a grotesque act etc. The more heinous the crime, the more severe treatment should be meted out to the offender.
Punishment does not always bring about reformation but it acts as a deterrent. This phenomenon where almost-adult children are seen indulging in grave criminal acts without any fear of the law must be stopped. The definition of juvenile should be altered and some classification has to be made. The gravity of an offence should determine the punishment and whether the person should be tried as an adult in case of heinous offences. Whether the court should have discretion to award stringent punishment to a juvenile in heinous crimes or the gravity of offence should determine the nature and quantum of punishment is a moot question but it is certain that no mastermind of a gang rape can walk away free in society.
Pinky Anand is a senior advocate
The views expressed by the author are personal