With the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2014, by the Rajya Sabha, adolescents between 16 to 18 years who are found to be involved in heinous offences will be tried as adults.
Under the law, if delinquents in this age group commit less serious offence and get caught after they are 21 years of age, they would be subjected to normal legal procedure like adults sans any protection hitherto granted under the benevolent legislation.
After the Lok Sabha passed the bill in May, its swift passage last week in the Upper House, however, was preceded by the release of the juvenile convict in the December 16 Delhi gang-rape case. A feeling of outrage marked the release of the now 20-year-old convict after his confinement in an observation home for three years, the maximum period to which a juvenile can be detained.
In Canada, a youth between the age of 14 to 17 years may be tried and sentenced as an adult in certain situations. There, the Youth Criminal Justice Act governs the application of criminal and correctional law to those who are 12 years old or older, but younger than 18 at the time of committing the offence. Though trials against such delinquents have to take place in a Youth Court, for certain offences and in certain circumstances, a youth may be awarded an adult sentence.
The general practice in the US, however, is that even for such convicts, the courts are entitled to impose life sentences in respect of certain types of offences, but such life sentences without parole are not permitted for those under the age of 18 years who are convicted of murder or offences involving violent crimes and weapons violations.
In England and Wales, minors accused of crimes are generally tried under the Children and Young Persons Act, 1933, as amended by Section 16(1) of the Children and Young Persons Act, 1963. Under the said laws, the minimum age of criminal responsibility in England and Wales is 10 years and those below the said age are considered to be “doli incapax” (incapable of crime) and, thus, incapable of having any mens rea (criminal intent), which is similar to the provisions of Sections 82 and 83 of the Indian Penal Code.
Our Parliament adopted 18 as the upper limit in categorising a juvenile or a child under the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended in 2006 and 2011, in accordance with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, commonly known as Beijing Rules, 1985, and the UN Convention, 1989. It accorded due regard to international instruments for securing the best interests of the child with the primary object of social reintegration of child victims and children in conflict with law in affixing the age limit to grant benefit of salubrious law.
An outcry was raised to have a re-look at the definition of juvenile, immediately after the December 16 gang-rape incident. A batch of petitions filed before the Supreme Court for lowering the age of a juvenile to 16 years was rejected in 2013. “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/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future,” the Supreme Court observed in the Salil Bali case.
Subjective analysis
Under the new arrangement, the Juvenile Justice Board, comprising a judicial magistrate and two social workers as members, could take a primary view before deciding to send a child between 16 and 18 to a regular criminal court. There seemed to be no safeguard against the subjective analysis as well as investigating agency-generated prejudice in a particular case.
In no case, law can be enacted to deliver retributive justice. It has to allow a rehabilitative and reformation-oriented approach in addressing juvenile crimes. What would happen to the future of a country, where convicted children just above 16–16 and above comprise about 40 per cent of the population–are to be lodged with hardened criminal in jails?
Will the new amendment help in attempts in formulating a restorative and rehabilitative approach for juveniles in conflict with law? Or will it will have disastrous consequences and would put the clock back? Should a juvenile in conflict with law or in need of care and protection be not sent to a place of safety where intensive rehabilitation measures, such as counselling, psychiatric evaluation and treatment are meted out? Or should knee-jerk reactions be allowed to give their vent in the form of a regressive law to set a dangerous trend and affect millions of children in need of care and protection?
Notably, the J S Verma committee on amendments to the criminal law did not recommend the reduction in the age of juveniles in conflict with law and has maintained it at 18 years.