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After an excruciating, agonising and frustrating delay spanning 8 years, four perpetrators who inflicted unbearable pain and agony in gang raping a 23 year old woman have been hanged to death. The fifth criminal had been earlier found dead in his jail cell. However, the savage assault, torture and gory role of the juvenile co-conspirator, the sixth brother in crime, earned him three years in a special correctional home, a new identity and freedom. Did the criminal justice system reform him. Did anybody check. Was justice done. Should the juvenile have walked free simply because he was less than 18 years of age. The juvenile criminal partnered the dance of death, but law makes him immune from punishment. Was his criminal intention any less. Then, why the reprieve. What for the sympathy. Is the label of a juvenile, a licence or permit in law to commit heinous offences willingly, with the promise of assured pardon in the pocket. Does the age of the juvenile need to be revisited and pegged to 16. Why not.

The Juvenile Justice Act, 1986 prescribed the age of a juvenile at 16 years. India ratified the UN Convention on the Rights of the Child in 1992. The UN Convention defines “a child as a human being below the age of 18 years unless the law applicable to the child, majority is attained earlier”. To adapt to the UN Convention the Juvenile Justice Act, 1986 was amended in 2000 to prescribe 18 years as the age of a child or a juvenile. Consequently, under the Juvenile Justice Act, 2000 (JJ Act), “a juvenile in conflict with law” meant a juvenile who is alleged to have committed an offence and who has not completed the age of 18 on the date of commission of an offence.

In 2012, the Nirbhaya gang rape case, brought public outcry on the streets agitating for a stringent punishment for the juvenile offender. The Supreme Court in Dr. Subramanian Swamy Vs. Raju (2014) declined to read down the JJ Act, and refused to interfere with the age of an accused juvenile who had been found guilty of heinous offences. The mental and intellectual competence of the juvenile offender was ignored. The Supreme Court held that the JJ Act was in compliance with international conventions. A juvenile was classified as a special class as an unequal above law. Legitimacy, not certainty of law was the dictum of law. Justice, to logic of law was done, but, injustice was done to relief in law.

The Government in its wisdom amended the JJ Act which was rechristened as the Juvenile Justice Act, 2015. It empowered the Juvenile Justice Board (JJB) to decide whether a juvenile aged between 16 to 18 years ought to be treated in a Children’s Court for heinous offences. Now, even if so tried, juveniles cannot be sentenced to death or life imprisonment. The juvenile can be apprehended, not arrested. If detained, the juvenile shall be released on bail. Gravity, seriousness and role in crime cannot be a ground to decline bail. A preliminary assessment by the JJB is mandatory to ascertain mental and physical capacity of a juvenile, his ability to understand the consequences of the offence and the circumstances in which he committed a heinous offence, before he is tried by a Court as an adult under the Code of Criminal Procedure (Cr.P.C.). The process begs an answer. Is the JJB comprising of a fledgling Judicial Magistrate and two social workers equipped with the acumen, wisdom and experience, attributed to a full-fledged criminal Court empowered under the Cr.P.C. to conduct such an assessment. Delegating powers of a criminal trial through a pseudo preliminary assessment, is like missing the bus. If the cart is put before the horse, the results are obvious. The juvenile wins hands down.

To top it all, the Supreme Court on January, 9 in Shilpa Mittal Vs. State (2020) declared a “gross mistake” committed by the framers of the legislation in the definition of “heinous offences” under the JJ Act, 2015. The Court held that the existing definition of “heinous offences” prescribing a maximum sentence of 7 years or more imprisonment, but no minimum sentence, cannot be considered as “heinous offences”. Hence, the law is flawed. Consequently, filling in the gap, the Supreme Court ordered that all such fourth new category “heinous offences” under the JJ Act, 2015, for which there is no minimum sentence, will be classified as “serious offences,” until Parliament amends the law or the Government issues an Ordinance. Till then, the juvenile criminal committing a “heinous offence” and convicted after trail by a Court revels with a 3 to 7 years punishment for a serious offence. Old enough to kill, but too young to be punished.

A review of recent precedents of various High Courts in matters of juvenile crimes on issues of bail and sentences awarded after trial by Courts, indicates a trend that the JJ Act, 2015 is interpreted as a true letter of law, with no margin in the legislation for social realities and practical considerations of the role of juvenile offenders in involvement of “heinous offences” like murder, gang rape, drug smuggling and organised crime. The reason for so is not far. The JJ Act, 2015 contemplates total separation of juveniles from mainstream offenders. The JJ Act, 2015 is a special Act made by Parliament containing non-obstante clauses that have overriding effect. So much so, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) barring bail to NDPS offenders, pales into insignificance in front of Section 12 of the JJ Act, 2015 in which bail, and not confinement, is the rule. A special place for the juvenile is reserved for bail, not detention, de-hors, the very spirit and mandate of NDPS.

What then is a solution. There is dichotomy of thought. This was sought to be resolved in the statement of object and reasons of the amendment of the JJ Act, 2000. The alarm was caused by the fact that the law was ill-equipped to handle juvenile offenders between 16 to 18 years of age committing “heinous offences”. Hence, instead of lowering the age to 16 years, changes ensued and juvenile offenders between 16 to 18 years were put in a different class. Amendments were made. But, this has not served the purpose. Juvenile criminals, are still a privileged class committing organised crime with impunity and no fear of law.

We need to think afresh the UN Convention permits a child to be below the age of 18 years, unless the law applicable to the child, majority is attained earlier. Why then can we not have an amended JJ Act, 2015, which permits a Children’s Court, and not a JJB, to decide that the child i.e. a juvenile criminal has attained majority. Why not have a legislation with a judicial discretion to a competent Court to decide the age of majority and punish the crime with the same peg measure with which an adult criminal is tried and punished. A juvenile conspirator in an adult crime committing a “heinous offence” is not different. He is not a class apart. Giving him an apron of a juvenile is unfair and unjust. Law should not be a cloak for a juvenile criminal. The definition of a juvenile and a child given separately in the JJ Act, 2015 needs to be recast in a new mould.

A “child in need of care and protection” rightly enjoying benefits and privileges under the JJ Act, 2015 can be a child under 18. But for “a child in conflict with law” or a juvenile offender committing a “heinous offence”, it ought to be an exception, with age of majority to be less than 16 years of age. The gravity, heinous character, role of the juvenile perpetrator and the criminal intent of the juvenile committing a heinous offence should be the grounds for lowering the bar to 16 years of age. This change must come. The juvenile offender today committing “heinous offences” is an informed criminal. The crime is committed by him knowing fully well its results. The intentions of the juvenile criminal are clear. For him, punishment and not reform is the answer.

With the advent of technology, glamour of crime and susceptibility to ill-virtues creeping society, an iron hand of law is needed for reform. The Courts will interpret as the legislature ordains. Courts cannot legislate. Parliament must come to the rescue. The age of the juvenile has to be revisited. It is time that the law took a call. The UN Convention is not a deterrent. It has to be read down. With increasing avenues of glorified crime, the juvenile offender needs to be checked, not treated or rehabilitated. This virus ought not to infect society more. The Nirbhaya case was an eye opener. We do not need another precedent. Only if we amend the JJ Act, 2015 to change the age of the juvenile committing a “heinous offence”, can the perspective change. Short of it, we reach nowhere. The age of the heinous offence juvenile is to be put in the same basket of an adult offender and to be treated by a criminal Court as per the law of the land. This category of the special juvenile offender can no longer be a class apart. The benefit of reform for juveniles ought not to be extended any more to those offenders claiming to be juveniles but enjoy crime and refuse to suffer it.

About the author

Anil Malhotra

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