The debate over the alleged role of a juvenile in a recent rape and murder case in the capital continues to rage. At the heart of the argument is the contention that the minor — who is one of the six accused in the case — should be tried as an adult because of the gravity of the crime.
The controversy over the juvenile has led to a demand for a legal redefinition of the age in criminal cases. As of now, an accused below 18 is considered a juvenile. The legal definition of a “juvenile” is found in Section 2(k) of the Juvenile Justice (Care and Protection) Act, 2000, (JJA), which states a “‘juvenile’ or ‘child’ means a person who has not completed eighteenth year of age”.
The age of adulthood for a male in India was earlier pegged at 16. But after India ratified the Convention on the Rights of a Child in 1992, and in the subsequent drafting of the JJA in 2000, it was raised to 18.
“The age of 18 was set based on a consensus among countries as the large majority had set the age of maturity at 18. This is also based upon the specific development stages of the child,” says Vandhana Kandhari, child protection specialist, Unicef India.
Since the rape and subsequent death of the victim, however, there has been an outcry for lowering the age to 16.
On Monday, the Supreme Court agreed to look into a petition filed by two lawyers that seeks to lower the age of who would be considered a juvenile from 18 to 16, a complete reversal of the change that took place in 2000.
But not everybody is convinced that lowering the age would be a wise move. “The child’s age cannot be diluted,” argues Shanta Sinha, chairperson of the National Commission for Protection of Child Rights (NCPCR). “His age is not determined by the crime he committed.”
Many, on the other hand, hold that if judged as a juvenile, the accused would get away with a mild punishment for what is clearly a heinous crime. As an adult under the law, he can get up to a death sentence, points out Y.P. Singh, a Delhi-based criminal lawyer and former member of the Juvenile Justice Board. “As a minor, he will at most get three years in a reform home, and then be monitored on his release.”
Considering the difference in punishments, there has been a demand from some quarters that the accused be tried as an adult. But Indian law does not allow such exceptions to be made. At best, one can consider a clause in Section 16(1) in the JJA, which says that if a minor above 16 years commits a crime that the Juvenile Justice Board feels is “of so serious in nature or that his conduct and behaviour has been such that it would not be in his interest or the interest of other juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit (then) shall report the case for the order of the State Government”.
But Bharti Ali, founder and co-director of Haq, a child’s rights NGO, says treating a minor as an adult does nothing to actually deter juvenile crime.
“Look at the United States,” she says. “There, minors can be tried as adults in exceptional cases. But has that affected juvenile crime rates? They have around 1,10,000 minors in jail, while in India, we have only around 44,000. There is no evidence that stringent laws and punishments deter juveniles from committing crimes.”
Legal experts also stress that one incident, however heinous, cannot be the basis for a change in the law. Some also voice the fear that sending 16-year-old convicts to jail — as opposed to reform homes where they are placed when a crime has been proved — can turn them into hardened criminals.
“Assuming that a person at the age of 16 is sent to life imprisonment, he would be released sometime in his mid-30s. There is little assurance that the convict would emerge a reformed person, who will not commit the same crime that he was imprisoned for,” the Justice J.S. Verma panel, set up to recommend changes in laws on sexual violence, said in its report last month.
Child workers stress that the legal process cannot be changed because of the outrage that people feel. “Despite what people say, juveniles do get convicted for crimes they commit. They don’t walk away free,” Ali says.
Section 16(1) of the JJA clearly states that juveniles cannot be “sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security”. Instead, the act says that the minor will be committed to an institution where he will be rehabilitated. The section does refer to exceptional cases, when it suggests a separate place of detention for the juvenile concerned. Sub-section 2 places the onus for arranging this separate detention on the state government on the Juvenile Justice Board’s recommendation.
Bipasha Roy, member, West Bengal Juvenile Justice Board, believes there should be “stringent” punishment if the “intent” of a juvenile accused is criminal. “If a person who is physically a minor but shows an adult’s mentality in committing a crime, especially for something as heinous as rape or murder, I feel the minimum sentence should be 10 years behind bars,” says Roy.
Intent, she stresses, is important because the laws that can label someone as a rapist could lead to wrongful convictions. “We’ve seen cases where a boy and girl — both minors — run off together and get married. But when the girl’s parents register a rape case against the boy, the girl automatically becomes a rape victim in the eyes of the law, even if she herself says the person accused of raping her is her husband.” In such cases, she explains, the boy has done nothing wrong, and lowering the age limit to 16 would just cause an innocent to be judged unfairly and harshly.
“The Juvenile Justice Board is staffed with competent people who can examine the details of a particular case and come to a conclusion whether an exception should be made or not,” she argues.
Singh too believes that the focus should be on reforming juveniles. “We are a reformative country and we should attempt to reform people. Lowering the age doesn’t solve anything. It increases the risk of children getting sucked into a criminal life. This is the 21st century, and we should give one a chance to change,” he says.