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BONE OF CONTENTION

One issue in the Delhi gang rape case that has provoked a lot of outrage is the claim that the most brutal rapist of the lot is allegedly a minor (he says he is 17 years plus) and hence may not get punished for the crime.

There is debate over whether the legal age of a “minor” needs to be lowered to 16 from the current 18, and also over whether or not the 17-year-old should be allowed to go scot-free just because he falls under the legal definition of a “minor”. While those debates rage on, the first task is to establish if he is indeed 17 years old as he claims to be.

The most commonly used age determination test — and it may be conducted on this allegedly minor rapist — is a bone or an ossification test. As ossification test is a medical procedure that detects a person’s age based on a biological process known as ossification.

As we grow, our bones grow with us by adding more bone material on top of existing material. This is known as ossification. “The test is quite accurate, down to a year,” says Dr Somnath Chatterjee, a diagnostic radiologist and consultant in the department of radiology at Apollo Gleneagles Hospital, Calcutta.

But though medical experts say they are fairly accurate, in India the legal position of ossification tests is not quite clear or watertight.

First and foremost, the prosecution cannot insist that the accused undergo an ossification test. As Kaushik Gupta, a Calcutta-based criminal lawyer, points out, “The right to agree to an ossification test lies with the accused” as Sections 53 and 54 of the Code of Criminal Procedure gives an accused the right to refuse to subject himself to a medical examination.

Y.P. Singh, a Delhi-based criminal lawyer and former member of the Juvenile Justice Board, adds that ossification tests are conducted by a medical board comprising one dentist, one general physician and one radiologist. “But these tests are a last resort,” he cautions. “They are used only when there is no documentary evidence to establish a person’s age.”

The law itself says very little about age determination tests. The Indian Penal Code, for example, doesn’t mention age determination tests at all.

The closest we get to outlining the legal status of age determination tests comes from the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 49 of the law states that a “competent authority” can be asked to provide evidence of a person’s age to determine whether he or she is a juvenile. It does not, however, state who or what the “competent authority” could be, nor does it lay down any procedures to determine a person’s age.

The Supreme Court noted this fact in its 2008 ruling in the case of Babloo Parsi and another vs State of Jhar-khand and another. The apex court held that as the Juvenile Justice Act had not laid down any fixed norms to determine the age of an individual, the plea of a juvenile should be based on its own merit.

Again, in 1989, in the case of Bhoop Ram vs State of Uttar Pradesh, the Supreme Court ruled that in a case of conflict between documentary evidence and a medical report, the documentary evidence would be seen as correct.

However, though medical experts claim otherwise, ossification tests may not always be correct. Take the Patrawala kidnap and murder case of 2009 in Mumbai. In 2007, Adnan Patrawala, the son of a local businessman, was kidnapped by four men and held for ransom.

When the gang realised that the parents had gone to the police, they killed the boy. After their capture, one of the murderers, Ayush Bhatt, claimed he was a minor at the time of the crime. He took an ossification test, and the results seemed to bear out his claim. However, the test results were tossed out when the prosecutor was able to produce Bhatt’s school leaving certificate that showed he was 21 years old at the time of the crime.

“Legally, ossification tests have a two year margin of error, plus or minus,” says Kaushik Gupta. “Furthermore, the margin of error chosen is always given in favour of the accused.”

The admission of a margin of error as far as ossification tests are concerned stems from a 1982 ruling by the Supreme Court in the case of Jaya Mala vs Home Secretary, Government of Jammu and Kashmir. The apex court ruled that the age ascertained by medical examinations is not conclusive proof, and these examinations should be viewed as the doctor’s opinion with a two-year margin of error, plus or minus.

Which means, explains Gupta, that even if an ossification test shows the “juvenile” rapist in the Delhi rape case to be 19 years old, the law would insist that a two-year margin of error in favour of the accused be recognised. So the courts would consider him to be a 17-year-old, and he would therefore be tried as a minor.

“Giving an age in favour of the accused is part of universal jurisprudence,” says Majeed Memon, a Mumbai-based criminal lawyer. Pointing to the Delhi rape accused as an example, he also adds that the magnitude of the crime doesn’t matter, and nor does how close the accused is to turning 18. “He could be just 36 hours away from legally being considered an adult, but if the ossification test shows he’s a minor, then he will be tried as a minor as he committed the alleged crime when he was still a minor. That’s the law.”

The brutal rape and death of a 23-year-old girl has put the focus on the law once again. The case, many in India hope, will sharpen the laws on juvenile crime.