Opinion: Why India's juvenile law fails to control crime

Written By: Siddharth Jain
Noida, Uttar Pradesh, India Updated: Feb 20, 2018, 10:43 AM(IST)

Age of adult criminal liability lowered from 18 to 16 with certain conditions. Photograph:( WION )

The juvenile jurisprudence in India seemed to have come of age with the decision of trying the 16 years old perpetrator of the murder in Ryan International School in Gurugram as an adult in view of the original juvenile legislation being replaced by Juvenile Justice (Care and Protection of Children) Act, 2015 (The Act). The new Act lowered the age of adult criminal liability from 18 to 16 with certain conditions. This was the result of an outcry in the wake of infamous Nirbhaya gang-rape and murder case in 2012, where the most brutal of the accused was treated as a juvenile despite he was just a little under 18 years. The government did get up, took notice and made some amendments as stated above but the concept does need a deeper analysis. 

One of the arguments advanced in support of keeping the juvenile law as invasive as possible is that, till the age of 18 (now 16), the mental faculty of the child is not developed enough so as to be able to understand the nature and consequences of the action. But it is to be understood that this assertion was justified at the time when the technology was not as advanced and surrounding societal circumstances were conducive. In the present scenario, technology has provided every information at the fingertips of an individual and, as such, the child is able to imbibe that much earlier than what he would have been able to, a few decades ago. In terms of society, the prevalent hostile environment has also caused the children of a reasonable age to experience the same and start responding to it at a much younger age.

The system needs to be receptive to the environment and change its perception according to the need of the hour. The brain is only an organ of the body but the mind is referred to as the ability of an individual to be aware of things, to think and to feel. That ability differs from person to person depending upon the circumstances that child is surrounded by. As a reference, a child who is exposed to a greater degree of public interaction would end up being more street smart as compared to a child of the same age who lives in the protective environment of the household. 

The Act has, for the purpose of the application, classified the offences in three categories:
Firstly, petty - which include the offences with a maximum punishment up to 3 years. Secondly, serious - which include the offences for which punishment is between 3 to 7 years. Thirdly, heinous - which include the offences for which minimum punishment is 7 years or more. 

It is to be noted that, except heinous offences, for all other offences, the juvenile will not be trialled as an adult but would receive the institutional care for a maximum period of three years. Even for heinous offences, the minor accused, aged more than 16, would be presented before the Juvenile Justice Board and the Board will decide as to whether to send the child for trial as an adult or to send the accused to rehabilitation centre based upon the mental and physical ability of the child. 

The present form of the statute, although better than before, still leaves a lot wanting and is just not sufficient to rein in the growing menace of juvenile crimes when even the serious offences are considered to have been committed without knowing the consequences of the action. It is reiterated that mental ability is an abstract principle and it changes with the circumstances. Criminal law provides two major touchstones to determine criminal liability i.e. a guilty mind and a criminal act in pursuance thereof.  

There are certain offences where, irrespective of age, if committed, the guilt of the individual automatically follows. We cannot forget the Guwahati molestation case where a young lady was sexually assaulted for about 40 minutes in full public view. One of the perpetrators there was a juvenile. Unfortunately, even after the present amendment, this sinister offence would not make the accused liable to be trialled as an adult since the punishment for the same is a maximum term of five years. No stretch of the imagination could justify the argument that the juvenile there was not aware of his actions.

The changing paradigm of society makes it imperative to have the focus more on the offence rather than the offender, especially for the offences which inherently call for a punitive action. The rights of a victim cannot be brushed aside merely because they are in dispute with the age of the offender. It is hoped that coming years would bring with them a tilt towards reality rather than abstraction. 

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Siddharth Jain

Siddharth Jain is a lawyer and co-founding partner of PSL, Advocates and Solicitors. He specialises in Civil Trials, Competition Law, Special Leave Petitions.
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