Legal Articles

Juvenile Rapists Deserve Adult Punishment

Supreme Court judgment in Shubham Sangra on November 16 overturned High Court verdict on juvenility of Kathua gang-rape murder case accused, directing him to face trial as an adult. From a larger perspective, deprecating rising rate of juvenile delinquency, Supreme Court observed epigenetic clocked technique for age determination and whether Juvenile Justice Act, 2015 (JJ Act) has subserved its object of goal of reformation of juvenile. Brutal and heinous crimes by juveniles escaping adult punishment emboldens them. Juveniles willingly engaged by adult criminals in crimes of passion, terrorism, drug smuggling, robbery and rape are under promise of juvenile justice. Is JJ Act being abused if a juvenile uses a rocket propelled grenade for a terrorism attack. Supreme Court judgement requires urgent introspection by Parliament before an army of juvenile criminals is recruited. Juvenile criminals partner dance of death, but law makes them immune from punishment. Was criminal intention any less. Ought not juveniles be castrated for rape. Then, why reprieve. What for sympathy. Is the label of a juvenile, a licence or permit in law to commit heinous offences willingly, with promise of assured pardon in pocket. Does age of juvenile need to be revisited and pegged to 16. Why not.

Juvenile Justice Act, 1986 prescribed age of a juvenile at 16 years. India ratified UN Convention on 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 UN Convention Juvenile Justice Act, 1986 was amended in 2000 to prescribe 18 years as age of a child or a juvenile. Consequently, under Juvenile Justice Act, 2000, “a juvenile in conflict with law” meant a juvenile who is alleged to have committed an offence and who has not completed age of 18 on date of commission of an offence.

In 2012, Nirbhaya gang rape case, brought public outcry on streets agitating for a stringent punishment for juvenile offender. Supreme Court in Dr. Subramanian Swamy Vs. Raju (2014) declined to read down JJ Act, and refused to interfere with the age of an accused juvenile who had been found guilty of heinous offences. Mental and intellectual competence of the juvenile offender was ignored. Supreme Court held that 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 dictum of law. Justice, to logic of law was done, but, injustice was done to relief in law.

Government in its wisdom amended the JJ Act which was rechristened as JJA, 2015 . It empowered 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. Juveniles 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 JJB is mandatory to ascertain mental and physical capacity of a juvenile, his ability to understand consequences of offences and 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.). Process begs an answer. Is 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 Cr.P.C. to conduct such an assessment. Delegating powers of a criminal trial through a pseudo preliminary assessment, is like missing bus. If the cart is put before horse, results are obvious. Juveniles win hands down.

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 JJ Act, 2015 is interpreted as a true letter of law, with no margin in legislation for social realities and practical considerations of role of juvenile offenders in involvement of “heinous offences” like murder, gang rape, drug smuggling and organised crime. Reason for so is not far. JJ Act, 2015 contemplates total separation of juveniles from mainstream offenders. 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 JJ Act, 2015 in which bail to juveniles, and not confinement, is the rule. Sad, but true. A special place for the juvenile is reserved for bail, not detention,de-hors, very spirit and mandate of NDPS.

What then is a solution. There is dichotomy of thought. This was sought to be resolved in statement of object and reasons of the amendment of the JJ Act, 2000. Alarm was caused by fact that 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 purpose. Exercise was futile. Indian Penal Code (IPC) was amended to award death penalty to adult rapists. Ironically, juvenile brother rapists in tandem, are still a privileged class committing organised crime with impunity and no fear of law. Why.

We need to think afresh as UN Convention permits a child to be below 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 age of majority and punish crime with same peg measure with which an adult criminal is tried and punished. Adult times for adult crimes must be the rule. 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. Definition of a juvenile and a child given separately in 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. 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. Juvenile offenders today committing “heinous offences” are informed criminals. Crimes are committed by them knowing fully well its results. Intentions of the juvenile criminals are clear. For him, punishment and not reform is answer.

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

About the author

Anil Malhotra

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