Juvenile Justice (Care and Protection of Children) Bill, 2015 A Step In Right Direction
When juvenile criminals rape anyone or murder anyone, do they not realise the gravity of the situation? Why should they be let off cheaply? Why should juvenile be allowed to presume that they will come out easily after two or three years even after raping or murdering anyone?
It is high time now and without wasting any more time, Centre must immediately swing into action and make necessary changes to ensure that juvenile offenders who commit most heinous crimes like murder, rape, dacoity etc are strictly punished and not let off on bail or freed after spending 2 or 3 years in jail. This I say because a very wrong message is going among juveniles that they can commit any crime they want and after spending 2 to 3 years in prison come out and again commit a crime and again be released and this process will keep continuing till they turn adults! What utter nonsense is this?
When a juvenile rapes anyone or murder anyone, do they not realise the gravity of the situation? Why should they be let off cheaply? Why should juvenile be allowed to presume that they will come out easily after 2 or 3 years even after raping or murdering anyone?
Why should they have the licence to be let off lightly after killing anyone, raping anyone, indulging in terror act or in any other heinous crimes? Just because they are juvenile? What message are we sending to those juveniles who have criminal bent of mind? Are we not encouraging them to commit more crime and come off lightly to again commit another heinous crime? This is just not done!
Many eminent jurists and senior lawyers have felt the same way barring few exceptions. To top it all, now even the Supreme Court on April 6, 2015 urged the NDA government to bring about necessary changes in the juvenile law and make it more stringent so that it would act as a deterrent â€œat least in respect of offences which are heinous in natureâ€.
Juvenile Justice in Global Perspective
In India, the criminal age of maturity —the age at which a person can be tried as an adult —is 18. But the brutality of the rape in December 2012, just months before the teenager involved in the case turned 18, led to calls for the age limit for a juvenile to be lowered.
The Supreme Court has turned down eight petitions to this effect in recent months and is considering an application from Subramanian Swamy, a politician, who asked judges to amend the law so that mental and intellectual capability, rather than age, determines whether someone should be tried as an adult.
The first judicial decree for juveniles in India was enacted in 1850 with the Apprentice Act, requiring children aged 10 to 18 convicted in court to be given vocational training as part of their rehabilitation.
The law relating to juveniles went through several changes until the first Juvenile Justice Act, 1986, which defined juveniles as under 16 for boys and under 18 for girls. In 2000, India raised its definition of a male juvenile to 18 from 16 under the Juvenile Justice Act. Doing so was part of the country’s obligations under the United Nations Convention on the Rights of the Child (UNCRC), which it signed in 1992.
Other signatories of the UNCRC, including the U.S. and the U.K., also fixed the upper age for minors at 18. But, unlike India, criminal law in both countries provides room for minors to be tried as adults.
In the U.S., prosecutors can appeal to court requesting the case of a minor be moved from a juvenile court to an adult one. Judges in a juvenile court also have the power to rule that a minor be tried as an adult. In cases where the offence is grave, such as rape or murder, criminal courts—where adults are tried—can independently call for jurisdiction over the matter.
In the U.K., those charged with crimes while aged between 10 and 17 are tried in juvenile courts. Over 18s are treated as adults, but until they are 25 they serve their sentences in facilities for 18-25 year olds, rather than full adult prisons.
In cases where a crime is too serious to be dealt with in the juvenile justice system, or because the child is accused alongside adult co-defendants, the trial can be transferred to adult courts in the U.K.
Many people in India have also criticized India’s juvenile laws for being too lenient. The maximum punishment under the law, even for offences such as rape and murder, is three-year confinement in a reformatory. In comparison, the maximum punishment for minors in the U.K. and the U.S. is life imprisonment. Until 2005, minors could also be sentenced to death in the U.S.
In the Philippines, offenders up to the age of 21 are given more lenient custodial sentences. In Germany, those over 18 but under 21 can be transferred from adult to youth courts. In India, offenders can remain in juvenile reformatories after they have reached adulthood.
At the other end of the scale, the minimum age of criminal responsibility in India, the age at which children may be held criminally responsible for alleged crimes, is seven. This is one of the youngest worldwide. According to a Penal Reform International (PRI) 2013 report on justice for children, Jordan, Lebanon, and Yemen also set criminal responsibility at seven. In Pakistan, the minimum age is 12.
The Indian Penal Code allows room for children up to 12 years old to be considered incapable of forming the intent to commit a crime.
In the Americas and the Caribbean, the average age for children to be held criminally responsible for their actions is 11, while in Western Europe it is 13 and in the Middle East and Northern Africa it is nine.
UNICEF has called for the minimum age to be 13 worldwide. It says the same age must apply regardless of the seriousness of the offense.
The Apex Court noted the number of cases against juveniles had spiked, a statement backed firmly by the National Crime Records Bureau, which says juvenile crimes rose by 78 per cent in the last decade and the number of rapes jumped by a massive 300 per cent. One believe that juveniles even though may be exempted from death or life term but they must be sent in prison for at least 14 to 20 years so that they can’t take committing heinous crimes so lightly and coming out of jail so soon!
How long will Centre keep skipping this so sensitive issue which has the potential to either save or destroy so many lives of innocent hinging on Centre’s stand? How long will Centre keep renewing the licence to juveniles to kill, rape or bomb anyone and yet come out of jail in just few months or at the most after 2 or 3 years at the most if the Judge does not extend any leniency? How long will Centre keep forwarding the absurd logic that juveniles just don’t understand the serious consequences of raping anyone or gangraping anyone or killing anyone or committing any terror act? All this nonsense must now stop immediately the Supreme Court too now feels much the same way.
Stating that it was “extremely difficult” to accept that a juvenile delinquent would not be aware of the consequences while committing crimes like rape, murder and dacoity, the apex court said that the spurt in involvement of minors in such heinous crimes meant there was an imperative need to mull changes in the Juvenile Justice (Care and Protection of Children) Act, 2000. Justice Misra wrote in his judgment that, “There can be a situation where a commission of an offence may be totally innocuous or emerging from a circumstance where a young boy is not aware of the consequences. But in cases of rape, dacoity, murder, which are heinous crimes, it is extremely difficult to conceive that the juvenile was not aware of the consequences.”
A bench of Apex Court led by Justice Dipak Misra minced no words in sending a very loud and strong message that, “A time has come to think of an effective law to deal with the situation. We would request the learned Attorney General to bring it to the notice of the concerned authorities so that the relevant provisions under the Act can be re-looked, re-scrutinised and re-visited, at least in respect of offences which are heinous in nature.” How long will we keep treating juveniles with kid-gloves?
The Apex Court told Attorney General Mukul Rohatgi point blank that the issue was serious and required a sincere deliberation by the lawmakers since the rate at which juveniles are getting involved in crimes has increased. In a written order, a bench of Justices Dipak Misra and PC Pant observed that it can no longer shut its eyes to the danger posed to society by juveniles accused of heinous crimes like rape, dacoity, murder and drug-peddling. Rohatgi fully agreed that the crime rate by juveniles has shot up and that it called for a re-look at the existing provisions in the Act. Rohatgi also assured the bench that he would have a discussion with the competent authorities and file the government’s response by way of an affidavit. The court fixed the case for further hearing in May.
Excerpts From Judgement On S. Swamy’s Pil
Dr. Subramanian Swamy has, at the outset, clarified that he is neither challenging the provisions of Section 2(k) and 2(l) of the Act nor is he invoking the jurisdiction of the Court to strike down any other provision of the Act or for interference of the Court to reduce the minimum age of juveniles fixed under the Act as 18 years. What Dr. Swamy has contended is that having regard to the object behind the enactment, the Act has to be read down to understand that 9 Page 10 the true test of “juvenility” is not in the age but in the level of mental maturity of the offender. This, it is contended, would save the Act from unconstitutionality and also further its purpose. The Act is not intended to apply to serious or heinous crimes committed by a juvenile. The provisions of Sections 82 and 83 of the Indian Penal Code have been placed to contend that while a child below 7 cannot be held to be criminally liable, the criminality of those between 7 and 12 years has to be judged by the level of their mental maturity. The same principle would apply to all children beyond 12 and upto 18 years also, it is contended. This is how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously understood. The provisions of Section 1(4) of the Act which makes the provisions of the Act applicable to all cases of detention, prosecution and punishment of juveniles in conflict with law, to the exclusion of all other laws, would be unconstitutional if the Act is not read down. Specifically, Dr. Swamy contends that in that event the Act will offend Article 14 of the Constitution as all offenders below the age of 18 years irrespective of the degree/level of mental maturity and irrespective of the 1 Page 11 gravity of the crime committed would be treated at par. Such a blanket treatment of all offenders below the age of 18 committing any offence, regardless of the seriousness and depravity, is wholly impermissible under our constitutional scheme. The non-obstante provisions contained in Section 1(4) of the Act as well as the bar imposed by Section 7 on the jurisdiction of the criminal court to try juvenile offenders cannot apply to serious and heinous crime committed by juveniles who have reached the requisite degree of mental maturity.
The court was hearing a case wherein an accused in a murder case had claimed he was juvenile at the time of the incident and, hence, should be accorded immunity under the Act. It must be pointed out here that a juvenile cannot be sent to jail under the existing law and the maximum punishment for a delinquent can be three years’ detention in a correctional home. This so extraordinary leniency towards juveniles is the root cause for juveniles resorting to heinous crimes knowing it fully well that they won’t land up in jail for full life or even 14 years or even 10 years or even 5 years! Nothing on earth can be more ridiculous! Only one thing is more ridiculous and that is not punishing a woman for adultery even though she may be an IAS or IPS or Judge or Minister or anything else as under our law she is just like a lunatic even though she may be fully educated or educated in Oxford or Cambridge who does not understand anything when she throws away her clothes and sleeps with a stranger men on bed and can be lured away as she has no control over her senses and therefore should never be punished as we have been seeing in Section 497 since 1860 when IPC was enacted! Utter nonsense!
Adjudicating the matter, the bench noted that the accused, along with four others, had allegedly killed a man for not repaying a debt. The bench also pointed out that, “Whether in such a situation, can it be conceived by any stretch of imagination that the petitioner was not aware of the consequences? Or for that matter, was it a crime committed, if proven, with a mind that was not matured enough? Or the life of the victim is totally immaterial, for five people, including a juvenile, think unless somebody pays the debt, he can face his death.”
The bench asked the government to take action, and convince legislators to change the law and make juveniles accountable so that a juvenile accused of rape and murder cannot get away by claiming he is too young to understand the consequences of his crime. The court was hearing a plea by a murder accused, who claimed that he was less than 18 years old at the time of the alleged crime in May 2000.
Notably, a parliamentary panel had in February 2015 rejected the government’s proposal to try juveniles as adults for heinous crimes. The Women and Child Development Ministry proposed that juveniles who fell between the age of 16 to 18 years and were guilty of heinous crimes or found to be repeat offenders of crimes like kidnapping, trafficking, attempt to murder or outraging the modesty of women could be liable for a longer prison term than what has been mandated under the Act. Needless to say, time has come to think of more effective and stricter law to deal with the potentially explosive situations where juveniles are more and more turning to crime world knowing it fully well that they will come out in few months or at the most 2 or 3 years out of jail to once again commit crime and destroy the life of another innocent victim! For how long will this open mockery of law and rights of victims continue being maimed or rather murdered unabated and juveniles like married women’s licence to have sex with any stranger men and yet not go to jail will be given the licence of killing anyone and come out in a short span of time? This shameless mockery must now end once and for all keeping in view the supreme interests of victims and innocents who have to pay with their dignity and life for no fault of theirs!
Finally Centre has decided to act now. Centre has decided to insert necessary changes in the law governing juveniles. Needless to say, the primary trigger for all this seething anger against juvenile offenders stemmed primarily from the gruesome gangrape in Delhi in December 2012 in which one of the accused was 6 months short of 18 when the incident happened and according to the prevailing law he could have been given maximum three years confinement in a juvenile home and that’s all! Nothing more!
Maneka Gandhi who is Women and Child Development Minister while conceding that a teen age boy and girl experimenting sexually can also land behind bars because the Protection of Children from Sexual Offences (POCSO) Act criminalises consensual sex in the age group 16-18 and this “may be a legitimate concern” is quick to point out that, “But we cannot condone and overlook real heinous crimes with the bogey that the law may be misused. We will take the help of the best legal minds to put something into the rules to prevent the law from being misused.” She dismissed concerns over the Bill as “unnecessarily alarmist… visualising all policemen as anti-child”.
It is hard understand why there is much of furore being raised over the Juvenile Justice (Care and Protection of Children) Bill, 2014 that has a provision that allows juvenile accused aged between 16-18 who are accused of heinous crimes like rape, murder etc to be tried under the Indian Penal Code—laws under which adult offenders are tried. Prior to this, the age for juveniles was 18. A crime is a crime. Rape, gang rape, murder, acid throwing, terror act or any other heinous crime cannot be simply allowed to go unpunished or very lenient punishment extended just because the accused is a minor as most unfortunately we see right now whereby under the Juvenile Justice Act of 2000, a minor who is below 18 years of age can commit any heinous crime and still come out of jail in just 2 or 3 years! The latest National Crime Records Bureau (NCRB) data show that 66 per cent of juvenile crimes are committed by those in the age of 16-18. Furthermore, the NCRB record also reveal that while the number of rapes went up by 67 per cent between 2002 and 2012, those committed by juveniles by 137per cent!
This is just not done and sends a very wrong message and encourage those with criminal bent of mind to take advantage of their being minor and are even used as pawns by professional criminals knowing it fully well that they will come out of jail in no time! This must stop now! A minor who knows how to rape, throw acid on anyone, plant bomb on innocents or commit any other heinous crime must be given very strict punishment and must not be allowed to come out of jail in just 2 or 3 years as this only encourages them further to take advantage of their being juvenile to commit more crime! Also, repeater juveniles must be given most strict punishment so that the right message goes across to one and all that being juvenile is not a licence to commit crime and come out of jail in just 2 or 3 years only to commit more crimes and destroy many more innocent lives!
It may be noted that about 20 states in USA allow juvenile to be tried as adults and if found guilty sentenced to life imprisonment. Attention is also invited to the notable fact that in the UK anybody of the age of 17 and above is treated as an adult. Also, it has been provided that if a juvenile under 17 is involved in heinous offences like sexual assault etc, he can be tried as an adult.
One must point out there that under the proposed new Bill of 2014 dealing with juvenile justice, matters are to be presented to the Juvenile Justice Boards on a case-by-case basis, which will then decide —based on an assessment of the mental state of the child —whether the crime was committed without an understanding of its consequences. This Bill was passed by Lok Sabha on May 7. It must also pointed out here that based on this assessment; the juvenile offenders will be treated under either IPC or the Juvenile Justice Act. Be it noted, the board will be aided in this arduous task by experts concerned in arriving at the right decision. Also, what the Juvenile Justice Board will hold is a “preliminary assessment” rather than a “preliminary enquiry” into the mental and physical capacity of the child to commit such an offence. It has added by way of explanation that it is not a ‘trial’, ostensibly to address concerns that the procedure to assess the child’s capacity itself may amount to a regular trial.
The Bill also contains some other notable provisions which includes those on foster care and easing of adoption rules. It merits attention here that foster care would enable children to be placed with willing families instead of children’s homes, and the government would foot the bill for this! The Bill also envisages to make Central Adoption Resource Authority (CARA) a statutory body, which clearly means that it will have powers to regulate inter-country adoptions, and issue guidelines on adoption and other related matters. The other big change is that unlike an adult, whose fate is sealed once and for all, the juvenile may undergo a second trial at the age of 21 and if deemed reformed by the Juvenile Justice Board (JJB), he may be set free! The JJB will have the power to decide if a crime committed by a minor is heinous or not! More safety measures should be inserted to ensure that JJB does not favour a particular juvenile just because he hails from a very affluent and powerful family with tremendous political, financial and muscle clout!
One may note with a profound sense of agony that most of the eminent lawyers, intellectuals, etc very strongly bat in favour of juveniles and say that they are too young to understand the seriousness of the grave crime they have committed in heat of the moment and therefore must be given a chance to reform instead of condemning them to prison for whole life! This is nothing but utter nonsense and only encourages the potential juvenile offenders to commit more crime knowing fully well that they will be lightly let off! This is akin to letting off a married woman who betrays her husband and freely indulges in sexual acts with a stranger man who is alone punished for adultery under Section 497 of IPC even though the woman is highly qualified, is an IAS or IPS or Judge or holds any other prestigious appointment as she is considered not fit to understand the consequences of sharing bed and performing sexual acts with a stranger! This writer has seen many such cases himself where the accused juvenile while out on bail commit another heinous crime only to be let off again lightly! Most prominent being that of Akash Yadav, who had killed his classmate in Gurgaon as a juvenile and was recently again accused of murder! Many innocent people have to pay with their lives in this whole nonsense saga of protecting the rights of juveniles!
This shameful mockery of risking the life of innocents openly and bothering only for those juveniles who commit crime repeatedly is completely unacceptable! One can agree that all juveniles must not be tarred with the same brush and those who have not indulged in very heinous crimes must be given a chance to reform but there should be no leniency at all for repeated offenders or for those who indulge in most heinous crimes like throwing acid on a girl or gang rape etc! Not just the rights and rehabilitation of the accused must be taken into consideration but the rights and rehabilitation of the victim also must be taken into account! Also, those juveniles must be given the long rope and a chance to reform who are made terrorist at gun point or made to do any other crime against his wishes by blackmailing him or by any other intimidatory tactic!
All said and done, a pragmatic view would palpably lead us to the irresistible conclusion that in determining punishment even for juveniles, the deciding factor must be always the heinousness of the crime and the way in which it has been committed! It must be emphasised here that it is the bounden duty of not just parents, teachers and relatives of juveniles to ensure that they stay away from all kinds of crime but also of each and every person who is a major and this is something which one strongly feels cannot be left just to the police and judges! It is the society as a whole that must assume responsibility and do their best to ensure that juveniles don’t resort to crime and always follow the right path which will not only save many innocent lives from being destroyed but also save them from landing in prison for the rest of their lives which certainly can never be the place where they should ever land up! In schools and colleges also more emphasis must be laid on character building and moral values which will show our juvenile youth the right path and save them from being confined in prison!
By Sanjeev Sirohi