An amendment has been proposed to the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) to exclude juveniles between 16 and 18 years involved in rape, robbery, acid attack, and murder from its ambit. This amendment should not be approved for five reasons.
First, the scientific evidence on maturity of adolescents has been ignored. Studies show that the human brain undergoes key physical changes during the ages of 16 and 18, and continues to evolve until the mid-20s. Persons between 16-18 years underestimate risk and are predisposed to making poor decisions. This makes them less culpable than adults. Second, it would constitute a violation of the right to equality as it would hold certain persons between 16-18 years equally culpable as adults. It is unscientific, irrational, and opposed to the objective of reintegration of juveniles under the JJ Act.
Third, the United Nations Convention on the Rights of the Child (UNCRC) does not allow juveniles to be treated as adults. In 2000, the Committee on the Rights of the Child (CRC) criticised the definition of ‘juvenile’ in the JJ Act, 1986, under which a boy below 16 years was termed juvenile and asked India to ensure that “persons under 18 years are not tried as adults.” This recommendation was accepted by the legislature in 2000.
In 2007, the CRC recommended that: “States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.” On children and serious offences, it stated that the considerations of retribution and public safety “should always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.”
Fourth, regressive systems should not be aped. In 2008, CRC asked Britain to ensure that children are never “tried as adults in ordinary courts, irrespective of the gravity of the crime they are charged with”.
Fifth, India should learn from the mistakes of the US. According to the National Campaign to Reform State Juvenile Justice Systems, 80% of the juveniles who are released from adult prisons go on to commit more serious offences. In 2005, in Roper v Simmons, the US Supreme Court relied on neuroscience studies to conclude that juveniles are not equally culpable as adults and that the imposition of capital punishment on persons below 18 years would violate the constitutional prohibition on cruel and unusual punishment. In December 2012, the US Attorney General’s National Task Force on Children Exposed to Violence recommended that “no juvenile offender should be viewed or treated as an adult” and that laws and regulations that permit such treatment “must be replaced or abandoned.”
The proposed amendment is a political move to deceive an outraged public, that by merely amending the JJ Act and excluding these children from its purview, the nation, in particular women are going to be safer. We need a cool head and warm heart approach instead. The State must focus on the implementation of existing laws and dealing with juveniles within the juvenile justice system.
Swagata Raha is a legal researcher and consults with the Centre for Child and the Law, National Law School of India University, Bangalore
The views expressed by the author are personal