It’s really an irony that the most brutal of all the accused in brutal December 16 Delhi gang-rape case, wherein a 23-year-old girl was gang-raped and brutally beaten on a bus, is a juvenile and hence shall get away with a milder punishment of three years in a correction facility. A nationwide sensation erupted when this verdict was given. It is also pertinent to know that as it was described by the police officers, he was the “most brutal” out of all the accused. India registered 23.87 lakh juvenile delinquency cases in 2012. This case has received such unprecedented publicity, that it has set the worst possible precedent for juvenile offenders.
The paper aims at analysing whether the“punishment” awarded to juveniles under the juvenile justice (care and protection of children) act is justified and proportionate to the heinous crime they commit. The intention behind the crime, the degree of the perpetrated atrocity and the severity of the crime should be the parameters to judge a case when a juvenile is involved. It is a sad state of affairs that age factor plays a major role many times.
It is unfair to the country if the perpetrators of such heinous crimes be pardoned and let loose in the society. A new juvenile law should be implemented which considers not just the age, but also the degree of atrocity conferred. What should be considered is the intention and severity of the offence and hence the age of the minor should not be the only deterrent.
Keywords: Juvenile, rape, death penalty, justice, criminal
Crime’ is present in our society from a very long time. We may disagree its hold in the society but we cannot deny its presence. However, it has been on the rise in recent times. What’s most astonishing is that the young are getting more attracted to what we can simply call the “crime sector”. It is undeniable that they are the worst affected as they are still in the initial phase of what could be a bright future. But, should minors be treated differently as compared to others who commit the same crime? Is this because of the rather lenient Juvenile Justice System? Crime at any age must be treated as a crime. Does a 17-year-old have less reasoning power than an 18-year-old? What great mental development will there be in the next one year? Is he less capable of understanding the ramifications of his actions one year before? Was the enhancement of the age of a juvenile from 16 years to 18 years in year 2000 without any basis? Are they are in a position to decide what is wrong and what is right? To answer these entire set of questions, we must have a clear insight into the Juvenile Justice system of India.
An Insight into the Juvenile Justice System of India
Young offenders were treated by criminal law in India in the same manner as adult offenders. The law governing them sentenced them to institutions like prisons where adult and juvenile offenders were dumped together. The first major legislation in this regard in India was the Apprentices Act, 1850 through which the Magistrates were authorized to act as guardian in respect of a destitute child or any child convicted of vagrancy or the commission of a petty offence and could bind him as an apprentice to learn a trade, craft or employment.[i] Then we had the Reformatory Schools Act, 1897 which made a beginning for incorporating the rehabilitative techniques in the penal philosophy for juvenile offenders. The Act provided that young offenders up to 15 years of age found guilty of offences punishable with imprisonment or transportation were not to be sent to ordinary prisons but to reformative schools.[ii] Then we had Children Acts in various states of the country dealing with juvenile courts and other institutions. The Juvenile Justice Bill was first introduced in the Lok Sabha on 22 August 1986. This Act was further amended in 2006 and 2011 and is now known as the Juvenile Justice (Care and Protection) Act, 2000.[iii]
In India, the age of a juvenile (both boys and girls) was set at eighteen years of age by the Juvenile Justice Act, 2000 to conform to the United Nation’s Convention on the Rights of the Child. This would mean that all juvenile offences would be tried by the Juvenile Justice Board and not the regular courts. The original act doesn’t have a word about rape or murder being committed by juveniles. Under the law, juvenile offenders who have committed heinous crimes (rape and murder) can only be sent to a ‘place of safety’ for a maximum period of three years.
Juvenile Justice Act, 2000 was further amended in 2006 to make it clear that juvenility would be reckoned from the date of commission of offence who have not completed eighteenth year of age thus clarifying ambiguities raised in Arnit Das vs State of Bihar[iv] . The amendment also made it clear that under no circumstances, a juvenile in conflict with law is to be kept in a police lock-up or lodged in a jail.[v]
Who exactly is a Juvenile? Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 defines “juvenile” or “Child” as a person who has not completed eighteenth year of age.[vi]
A Juvenile can be defined as a child who has not attained a certain age at which he, like an adult person under the law of the land, can be held liable for his criminal acts. A juvenile is a child who is alleged to have committed /violated some law which declares the act or omission on the part of the child as an offence. Juvenile and minor in legal terms are used in different context. Juvenile is used when reference is made to a young criminal offenders and minor relates to legal capacity or majority. [vii]
In India, under section 82 of the Indian Penal Code, nothing is an offence which is done by a child under seven years of age and under section 83 nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion. [viii]
Juvenile Justice- The world in a nutshell
In United States Definition of juvenile varies from state to state-the lowest is 14 at which a youth can receive adult sentences for serious crimes. In 2011, Wisconsin teenager Brogan Rafferty, 16, was charged with two offences: Killing a man and attempting to murder another. He was tried as an adult and sentenced to prison. The same year, a 12 year old Colorado boy shot his parents to death and attacked two younger siblings, the motives of which remain a mystery. He was sentenced in Juvenile court to seven years in detention after pleading guilty. [ix]
In United Kingdom, Youth justice and Criminal Evidence Act, 1999, says children between ages 10 and 18 are capable of committing a crime and will be tried in a separate court for youth. In exceptionally severe cases, a youth can be tried as an adult in regular courts. [x]
Dutch courts allow a maximum of two years of detention for heinous crimes committed by youth aged 16-18. Sometimes accused aged 19-21 are treated under Juvenile Law. For children between 12-25, it is one year of Detention. In extreme cases, juvenile court may apply adult criminal law for accused aged between 16-18. Popularly known as the Facebook murder, a 17 year old boy and 16 year old girl in Arhem plotted a ‘contract’ killing on Facebook after they had a spat with the victim, a 15 year old girl, in January 2012. The accused were sentenced to two years in juvenile prison and three years of compulsory therapy. The killer, who was 14, was sentenced to one year in juvenile detention. [xi]
What does the nation want?
One of the six men involved in the Nirbhaya gang-rape in Delhi, was a juvenile at the time of committing the crime. And while the rest of the co-accused was awarded death sentences recently, the juvenile walked away a free man after three years at a reformatory home as per the Juvenile Justice Act.[xii] The whole country was outraged by this judgement. The punishment for a crime must be awarded regardless of the age of the perpetrator.
In July, the Supreme Court dismissed eight petitions brought by the public asking them to rule that crimes of rape and murder committed by juveniles should be tried and punished under adult laws and that the upper age limit for juveniles be lowered to 16. The three-judge bench said in its order that “there are, of course, exceptions where a child in the age group of 16 to 18 may have developed criminal propensities, which would make it virtually impossible for him or her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking.” With great respect for the decision, I would simply like to state that is it fair that just because of the same few “exceptions” a woman or rather a few million women’s lives are spoilt and scarred forever. [xiii]
Even the subsequent petition submitted by Subramanian Swamy who asked the judges to consider the mental and intellectual maturity rather than the age especially when the young are involved in a very heinous crime was dismissed.[xiv]
In 2012, police in India charged 35,465 juveniles for alleged involvement in crimes including banditry, murder, and rape and rioting, according to NCRB[xv].
Among those who faced Juvenile Justice Boards in 2012, two thirds (66.6%) were aged between 16 and 18 years, according to NCRB data The NCRB figures showed that 30.9% were aged between 12 and 16 years old and the remainder, (2.5%,) were aged between 7 and 12 years.[xvi]
Even noted Supreme Court lawyer K.T.S Tulsi believes Crime syndicates are taking advantage of the juvenile age and increasingly involving younger boys in heinous crimes and keeping them in the forefront, knowing fully well that they cannot be punished.[xvii]This trend will take dangerous proportions if the situation is not rectified urgently. The Parliament needs to wake up to this as soon as possible and change the law, reducing the juvenile age to at least 16. “The longer it takes, we allow more and more young criminals to get away and free to commit crimes again” says Tulsi.
Caught in the Act?
The police apprehended five ‘juveniles’ for the gang-rape of a minor girl in a locality under Basistha police station in Guwahati.[xviii]The victim, aged about 12 years, was playing with the five when they lured her to a hut and raped her from Saturday night till wee hours of Sunday, the police said. All the five accused have been sent to Observation Home at Boko in Kamrup district.[xix]Within few hours of lodging of the FIR, all the five accused were apprehended. They claimed to be juveniles.[xx]
The NCRB data also shows rapes committed by juveniles have jumped by 188%. The only categories of crimes involving juveniles for which growth figures are higher are theft and robbery which recorded a growth rate of around 200% and abduction of women which recorded and exponential rise of 660%.Again, while the debate on the issue of revisiting age limit in juvenile crimes has focused on the juvenile justice act being a reformatory tool, the NCRB data is not very encouraging, especially in case of Delhi. Close to 22% of all juvenile criminals in Delhi were repeat offenders in contrast to the national average of 11.5%. Sources say even this data gives a very conservative figure as only those convicted earlier are called repeat offenders. Also those who have turned adults and continued in crime are not included. The grim picture this paints is a reflection of the failure of remand homes to reform juveniles.[xxi]
Figures on juvenile crimes by the National Crime Records Bureau (NCRB) reveal that from 2002 to 2012, there has been a 143 per cent increase in the number of rapes by juveniles. In the same period, figures of murders committed by minors went up by 87 per cent while there has been a whopping 500 per cent increase in the number of kidnappings of women and girls by minors.[xxii]
“Though there has not been a rise in juvenile crime rates as such, there has been an increase in the severity of the crimes committed by juveniles. Also the 17 year olds are aware that they are juveniles and take advantage of the fact saying you cannot take us in for questioning etc.“, says Mumbai Joint Police commissioner Himanshu Roy of the challenges the police is facing in tackling crimes by minors. [xxiii] That clearly is not enough says former IPS officer Kiran Bedi. “There is a need to revisit the juvenile justice act. For heinous crimes like rape it should be left to the judge to decide whether the act committed is committed by a child or not” she points out. [xxiv] There has indeed been a massive outrage expressed from all sections of the society.
A Common man’s Perspective.
Unfortunately, the current system serves neither the purpose of rehabilitation nor deterrence against future crime. As reported by India Today, there are 815 remand homes in India with a capacity of 35,000. However, there are 1.7 million juvenile accused in India. Remand homes in India are not conducive to the reform and rehabilitation of juveniles as envisioned by the principles enshrined in international law. Rehabilitation is certainly an important aspect but at the same time we need to protect the woman and girls of our county. What’s the guarantee that the juvenile after being let off will not commit the same crime? The interest of the society is of utmost importance and if by losing one life in the process we are able to save many more innocent lives then undoubtedly we are thinking about the safety and betterment of the society. A legal deterrent must be created to protect the vulnerable in the society has to particularly in view of the significant increase in rapes committed by juveniles. This ultimately brings us only to one conclusion. Yes, there is a need for the amendment of the Juvenile Justice Act. What can be the possible changes? Violent crimes such as rape and murder should be included in the adult criminal system for the juveniles after a certain age. .
Any individual being so insensitive towards another human being of opposite gender to sexually assault and hurt her physically so brutally shall not at all be considered either a juvenile or requires any rehabilitation, as his act are far above an act of mature and physically strong person. How can we simply classify that a 17 year old boy was unaware that he was assaulting a poor girl and killing her physically and emotionally.
The sad part about the laws is that we always look at the condition of the accused when we are considering about cases involving juveniles. : “Are they about 18? If they are, yes they are convicted. No? Okay, we need to send them to a Reformatory home!” What we fail to realize in the process is that the condition of the victim is never ever taken into notice. If it had been taken, Nirbhaya would have got justice long back. Can a 17 year old be the most brutal among a group of 5 men and still have no mental maturity to realize that what he was doing was wrong? You can never blame poverty, lack of education and other factors as reasons to let go of criminal. It’s times we realize that we need to provide justice to the “victims” and not the “criminals”.
The mental maturity of the juvenile is to be judged on the fact if he was fully aware and conscious during the execution of the crime. If not then an adult of the age of 35 who has committed a crime unintentionally should be tried at the juvenile court for the reason that he was not mentally alert when he was committing the crime. I would appeal that age is no reason to exempt somebody who has brutally raped and been the reason for the death of a future Indian when he was completely aware and conscious of what he was doing. A hard step now can be a warning to the many young minds that grow up today and design their perspectives for tomorrow considering the happenings of today. Let’s all realise that death penalty is not “killing someone” because the word itself creates wrong notions in people’s minds. What death penalty is mere penalty to someone who has caused the death (physically mentally or emotionally) of another person.
The system has become more and more sympathetic to the delinquent in spirit, and anti-punitive in purpose. Let’s come out of false hopes that India is going to be a “rape-free” nation. If this were to happen, there would not have been thousands of more rapes happening all over the country. What’s more thought-provoking is that while I sit here writing this paper, deep in my heart I know another innocent girl is being deprived of her Right to Life. Can we as able citizens of India allow this to happen? When a juvenile commits a very brutal crime and poses a threat to society, should he be protected on account of his age and freed from proper trial and appropriate punishment?
In the case of juveniles caught in terrorist activities there is a reasonable argument that they are also victims of terrorism in which they participate. Such crimes even we logically anticipate are often because they are compelled to and sometimes they are not even aware. Criminal gangs indulging in petty thefts to planned murder, terrorists, drug traffickers and other international crime operators are not any age-specific groups.
“Catch them young” should be adopted in our justice system. The system has to respond. It is not that we wish that children are hanged and inflicted with pain. There are two major things. Firstly, law should be equal for everyone and anyone. Secondly, this is only a means to protect children caught in the web of adult crimes, and also save the society” from all people with criminal instincts.
The heinous crimes such as rape, murder etc. are crimes which totally destroys the moral of the victim’s family and if it’s a rape then it’s a lifelong stigma for the girl and her family member. We must understand about the pain and problems that she goes through. The taunts and consequences she has to face in the process. Have we ever thought about the turnover of events in her life after such a situation? It’s time rape is renamed as “murder” because in reality it is nothing less than that. It is worse. When you murder someone you kill them in an instant. But when a girl is raped she is scarred for life. She is killed emotionally, mentally and physically to such an extent that many of times she regards suicide as the last resort. Is it justifiable to call it the Juvenile “justice” system then when many offenders of these crimes walk free after serving a minimal period of sentence after being proven juvenile as per the so called records.
We know only some of the incidents which are put forward. Thanks to the ever lively yet very exaggerating media of our country. We have no idea that there are lakhs of cases unreported because of the stigma attached in our society. A girl abused is regarded dead and not useful to the society’s progress. Why? Obviously. It’s her fault. It’s her fault that she stepped out of this free India. It’s her fault that she tried to exercise her rights in this so called “democratic” country. The juvenile who commits crime of this gravity should not be left to walk free after serving maximum of 3 years that too in special home.
We need to standardize the age of a child, create space for case-by-case interpretation. We need to amend the Juvenile Justice Act in such a way that for severe and heinous crimes juveniles must be tried as adults and ought to be given the same punishment. If we believe in providing true justice to the victims of such incidents, we will start with this little step to pave way for wonders to happen. And this is the voice of the people at large. Because every human being in this country believes that Justice delayed is Justice denied. It took all of us including the government one barbaric rape case to question the Juvenile Justice system. The fallacies must be recognized and removed. After all, let’s remember, criminals do not fear life, they fear death. And death is an ultimate deterrent.
[i]Apprentices Act, 1850,HELPLINE LAW,(Dec 15,2013,6:00 PM), https://www.helplinelaw.com/docs/APPRENTICES%20ACT,%201850
[ii] Reformatory Schools Act, 1897,LEGAL CRYSTAL, (Dec 15,2013,6:30 PM), https://www.legalcrystal.com/acts/51765
[iii] Juvenile Justice(Care and Protection of Children) Act,2000,YALE LAW,(Dec 15,2013,6:30 PM), https://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/india_juv_just.pdf
[iv] 2000 5 SCC 488
[v] The Juvenile Justice(Care and Protection of Children ) Amendment Act, 2006,MINSTRY OF LAW AND JUSTICE,( Dec 17, 2013, 7:00 AM), https://wcd.nic.in/childprot/jjactamedment.pdf
[vi] Juvenile Justice Act,2000,CHILD LINE, (Dec 18,2013,09:00 PM), https://www.childlineindia.org.in/Juvenile-Justice-Care-and-Protection-of-Children-Act-2000.htm
[vii] Black’s Law Dictionary
[viii]Section 82 of IPC, IPC, (Dec 15,2013,05:00 PM), https://ipcsections.wordpress.com/2010/02/26/ipc-section-82/
[ix] Juvenile justice system in USA, AMERICAN BAR, (Dec 24,2013, 09:45 AM), https://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf
[x] About the youth justice board, UK GOVT, (Dec 31,2013,09:55 pm), https://www.justice.gov.uk/about/yjb
[xi] Juvenile justice policy, NETHERLANDS YOUTH INSTITUTE,(Dec 19,2013,09:45 PM), https://www.youthpolicy.nl/yp/Youth-Policy/Youth-Policy-subjects/Child-protection-and-welfare/Juvenile-justice-policy
[xii] Juvenile justice system abetting crimes by minors? TIMES OF INDIA, (Dec 20,2013,09:00 AM), https://articles.timesofindia.indiatimes.com/2013-09-22/people/42253034_1_juvenile-crime-juvenile-justice-act-juvenile-criminals
[xiii] Juvenile Justice, JJ COMPARE, (Dec 20,2013,7:00 PM), https://jjcompare.org/2012/08/29/india-summary/
[xiv] Dismissal of Subramaniam Swamy’s plea, NDTV,( Dec 25,2013, 08:00 AM), https://www.ndtv.com/article/india/amanat-case-board-dismisses-subramanian-swamy-s-plea-on-juvenile-accused-321836
[xv] 35,465 Juveniles arrested under IPC in 2012, HINDU, (Jan 1,2014,09:00 AM), https://www.thehindu.com/news/national/35465-juveniles-arrested-under-ipc-in-2012/article4869193.ece
[xvi] Statistics of Juvenile crime, NRCB, (Jan 10,2014, 07:PM), https://ncrb.nic.in/CD-CII2012/Statistics2012.pdf
[xvii] December 16 gang rape: Juvenile gets only 3 yrs. jail. Is the law good enough to handle such cases?, INDIA TODAY,(Dec 27,2013,08:45 PM), https://indiatoday.intoday.in/story/december-16-gangrape-juvenile-sentenced-to-three-years/1/305269.html
[xviii] 5 Juveniles held in Gang rape, THE HINDU, (Dec 25, 2013, 08:00 AM), https://www.thehindu.com/news/national/other-states/5-juveniles-held-for-gang-rape-in-guwahati/article5137332.ece
[xix]Gang Rape by minors, NDTV, (Jan 10,2013,08:45 AM), https://www.ndtv.com/article/cities/girl-allegedly-gang-raped-by-friends-in-guwahati-accused-claim-to-be-minors-419629
[xx] Gang Rape by minor boys, THE TIMES OF INDIA, (Dec 27, 2013,09:35 AM ), https://articles.timesofindia.indiatimes.com/2013-09-17/guwahati/42147598_1_12-year-old-girl-police-station-five-boys
[xxi] Of all Juvenile crimes, 64% by 16-18 years old, THE TIMES OF INDIA,(Dec 28,2013,09:00 PM), https://articles.timesofindia.indiatimes.com/2013-01-06/india/36173359_1_juvenile-crimes-juvenile-criminals-reform-juveniles
[xxii] Heinous crimes by minors on the rise, shows Ncrb data, NDTV, (Dec 24,2013,08:15 AM), https://www.ndtv.com/article/india/heinous-crimes-by-minors-on-the-rise-shows-ncrb-data-415367
[xxiii] 8 Gang rapes in 8 months in Mumbai, TIMES OF INDIA, (Dec 28,2013,09:00 AM), https://articles.timesofindia.indiatimes.com/2013-12-02/mumbai/44656705_1_rti-application-nirbhaya-case-shakti-mill
[xxiv] Death Penalty true justice for humanity, IB TIMES ,(Dec 20,2013.08:15 PM), https://www.ibtimes.co.in/politics-videos-news/282/nirbhaya-case-death-penalty-true-justice-for-humanity-says-kiran-bedi.html
Books and journals
1) Juvenile justice system in India by Manish Dwivedi
2) Crime and juvenile delinquency by Sol Rubin(chapters 2 and 4)
3) Faces of delinquency by Reed and Bali
4) Child abuse and juvenile delinquency: a prospective study by Suman Kakar
5) Juvenile delinquency in India by G Deol
6) Juvenile delinquency trends in India and the United States. The Indian journal of social work by P Chatterjee, F R Gutiorrez
7) Behavior assessment scale for Indian children with mental retardation by R Peshawaria, S Venkatesan
8) An analytical study of delinquents. The Indian journal of social work by T E Shanmugam
9) Children in India and their Rights by Savita
1) Child protection and juvenile justice system by Maharukh Adenwalla
Juvenile justice in different cultural concepts: a comparison of India and Germany by prof. Abhijit d. Vasmatkar
2) The state of juvenile justice in Karnataka. Available at: https://www.achrweb.org/reports/india/jj-karnataka-2012.pdf
3) Making it work by G S Bajpai
4) Juvenile Justice: Critically Juxtaposing the Models in India and Singapore by Dr Anuradha Saibaba
5) Juvenile Justice: A Hard Look by Haveripeth Prakash
1) The Times of India
2) The Hindu
3) Deccan chronicle
4) India today
5) National crime records bureau official website
6) Indian kanoon
7) The Sunday standard
8) Mail online
9) Legal services India
10) Bar and bench
11) An outside chance: street children and juvenile justice – an international
12) The Indian juvenile justice jurisprudence and the convention on the rights of the child, https://www.workingchild.org/htm//jj.htm