Age no bar to become criminal

GREY AREA: HOW DOES JUSTICE SYSTEM WORK WHEN CHILDREN COMMIT CRIME?

Age no bar to become criminal

Hello, I am Mohammad Ajmal Amir Kasab from Faridkot in Pakistan. I shot dead 50 people at Taj Hotel on November 26, 2008. But I am just 17 years, 11 months and 29 days old..

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Imagine a hypothetical situation where the only person caught alive by the Indian security agencies during the night of the  Mumbai terror attacks turned out to be a juvenile. If so, the maximum that our juvenile justice laws would have permitted is directing this juvenile, Kasab, to be sent to a special home for a period of three years. No police lock-up, no prisons. Forget death sentence.

With one of the accused arrested in connection with the gruesome gang rape and subsequent death of the 23-year-old medical student of Delhi claiming to be a juvenile, the demand for changes in The Juvenile Justice (Care and Protection of Children) Act, 2000 has been echoing across protest venues and news studios in the country.

“The monster should be publicly lynched.” “Better to amend juvenile laws to punish him for his sins else some angry mind will publicly shoot him down some day.” These are some of the angry demands.

Many sensible and cool heads too say the same thing. “He acted as bait to get the couple inside the bus and was then was most brutal to the girl, inflicting the maximum injuries to her. He is beyond reform and should not go unpunished,” says a senior Delhi police official close to investigation.

So much so, even the Union minister for women and child development Krishna Tirath and Congress spokesperson Renuka Chowdhary are demanding change in juvenile laws for harsher punishment to this ‘rapist’.

Yet, there is no consensus on the issue and warnings have been sounded against amending the JJ Act to exclude children committing heinous crimes from its purview or lowering the age of juvenility. This, some experts believe, would prove counterproductive and “will not act as a deterrent”.

Senior advocate and former additional solicitor general of India, Parag Tripathi, says one cannot do away with the JJ Act, but some changes are definitely required since the classical theory in relation to juvenile laws has outlived its purpose.

“The classical law is based on the assumption that a juvenile does not have full mental and physical attributes of an adult. He may have mental attributes of an adult but not physical attributes or have physical attributes and not mental. He may have neither. This is what the classical law is,” he says.

However, the line separating an adult from a child at a certain age has outlived its purpose and “additional filters” are now required,  adds Tripathi.

He suggests carving out an exception to  the JJ Act or to the law in general in the area of juveniles in conflict with the law.  There would still be a strong presumption that a juvenile will get protection when he is in conflict with this Act, but exception should also be made taking into account  the nature of that conflict, its impact on the society and the manner of committing the crime.

“All I am saying is that denial of benefit of JJ Act should be done in the rarest of rare case. Just like the death sentence is given in rarest of the rare cases. But if the juvenile acts in conflict with innocence that is attributed to children normally, then an exception needs to be made,” he says.

Should the definition of  a juvenile be brought down from 18 years to 16 years or 14 years? Senior advocate and honorary professor of law at Amity University, Ramesh Gupta, doesn’t agree.

“It was 16 years only before April 2001 when the laws were amended to make it 18 years. I am sure it must have been done with great deliberation keeping in view all the socio-economic and political factors. Suppose, the age was 16 and this accused had been 15. Then what will you do? People would say make it 14,” says Gupta, advising against any decision based on emotions.

Shanta Sinha, National Commission for Protection of Child Rights chairperson believes that instead of going for amendments in the JJ Act, we should look into the circumstances that led this boy to commit such a crime and prevent our children from being exposed to such circumstances.

Amod Kanth of voluntary organisation Prayas says reducing the age of the juvenility may prove to be a regressive step.

“The demand to reduce the age of childhood or to create an exception for certain serious offences like rape and murder appears to be based on facts which may not give complete picture about the juvenile in question and, if accepted, it will have serious and adverse consequences on the acknowledged principles and practices of juvenile justice,” he says.
Agreed, that there cannot be knee-jerk reaction to making laws. Yet, to believe that a juvenile cannot commit a heinous crime without being fully aware of his action is something that needs to be carefully considered.

Time and again the world over,  juveniles have shocked  society with their criminality.
The 1993 murder in Britain of Patrick Bulger in which two ten-year olds were convicted and the 2003 murder in the US of Cole Cannon who was beaten to death and burnt by a 14-year old along with another juvenile come to mind. It is time lawmakers woke up to reality.

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