On 18 January 2013, a month after the infamous Delhi gang rape of 16 December 2012, I posted a note in these columns titled ‘Is Our CriminalLaw Faulty?’. The note was written based on the fact that one of the criminals involved in the case was a ‘juvenile’. Incidentally, it was reported that it was this minor who perpetrated the maximum cruelty on the woman.
I had put forward my arguments as to why it is time for the juvenile law to be suitably amended. I had ended the note thus:
“The immediate practical solution would be to consider the intensity and nature of the crime committed by juveniles using the same yardstick as that of adults – the state and growth of mind of the offender rather than physical age. Laws need to be amended and drastically changed immediately considering the increase in the number of crimes and their manner and intensity. This will also help to do away with discrimination of the basis of consideration between adults and juveniles.
We need to do this immediately.”
The High Court of Punjab and Haryana, in its judgement on the bail application of a juvenile rapist, has expressed similar opinion. The juvenile had reportedly abducted two girls, locked them up and raped them for over ten days before they escaped.
Justice Mahesh Grover, in his order No. Crl.Rev.No.717 of 2013(O&M) dated 19 March 2013 on the bail application of the above juvenile, observed that benefits of being juveniles should not be accorded to minors involved in heinous crimes keeping only their biological age in mind. In the order he observed,
Before parting with the order, this Court directs that the petitioner be got examined from a competent psychiatrist/psychologist who will evaluate the conduct of the petitioner. It is imperative that the Juvenile Justice Board should not only look at the age of the accused [emphasis added] (juvenile) when determining the issue of release of such a juvenile on bail but should also evaluate the mental condition and capabilities of such a juvenile which factors predominantly help to fathom the gravity of the offence and the capability and propensity of the perpetrator [emphasis added] which in turn becomes relevant at the time of sentencing.
This is precisely what I had argued exactly two months before this judgement.
The judge further observed, “It is now imperative to understand how a person in conflict with law can be determined to be a juvenile ...”
By this observation, the judge emphasizes that biological age should not be considered as the only criterion to decide the status of a juvenile.
The Judge further observes,
The vexed questions before this Court thus are (i) as to whether the enquiry to ascertain the juvenility of an accused should be centered only on biological aspect as determinative of age ? and (ii) what sort of enquiry is the [Juvenile Justice] Board required to make and what are the factors to be considered to determine the age of a juvenile ?
The judge also makes specific observations on those who are between seventeen and eighteen years.
Would this mean that a person who is on this side of midnight which is to usher in his eighteenth birthday, would be in a cocooned protection of law but with one chime of the clock, when he crosses over to the other side of midnight, he is rendered without a protective sheath of law, simply because on being eighteen the socio-political benefits flow to him and he is regarded as an adult with sullied innocence ? In fact it is the cases of these persons who are in the twilight zone of adulthood, that arouses the concerns of the Court more, particularly when such persons are involved in commission of aggravated offences. Grave implications are manifest in this situation where a person derives immense benefit on account of immunity on his being a juvenile a day or hours before his attaining the age of 18 years, when accused of a dastardly act but looses them within a few hours on attaining this magical age. [emphasis added]
Further, the court also makes a very strong statement when it exclaims that,
If this [as in the above para] would be the intention of the Legislature, then the application of such a law in its unadulterated form would make the law look preposterous.
By delving into the aims and objectives of the Juvenile Act, the honourable judge makes it clear that it is necessary to distinguish between juveniles who are in need of care and protection and those who are in conflict with law.
A review of the working of the Juvenile Act, 1986 (53 of 1986) would indicate that much greater attention is required to be given to children in conflict with law or those in need of care and protection.
The Court further makes the following proposals:
(i) to lay down the basic principles for administering justice to a juvenile or the child in the Bill ;
(ii) to make the juvenile system meant for a juvenile or the child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults ;
(ix) to minimize the stigma and in keeping with the developmental needs of the juvenile or the child, to separate the Bill into two parts – one for juveniles in conflict with law and the other for the juvenile or the child in need of care and protection.
The court further observes thus:
The Act thus makes no distinction between a juvenile in serious conflict with law and a destitute child who needs care and protection. Rights of both under the statute would be circumscribed by the limit of 18 years ....
To the mind of this Court, over emphasis on the question of age in the cases of those above seventeen years of age but less than eighteen years as significant and determinative would be a fallacy fraught with dangers of absurdity causing acute damage and injustice to the victim in particular and society at large.
On depending on the school leaving certificate for deciding on age, the judge observes,
Declaration of the age of the child who is in conflict with law by mere reliance upon a School Leaving Certificate or even a positive proof of the certificate of registration of birth ipso facto should not be the foundational basis to declare a person juvenile more particularly, when such a juvenile is accused of having committed a heinous offence particularly when days or few months separated him from adulthood.
Reasserting his observations made earlier in the order, the judge once again emphasizes,
But in the cases of aggravated offences, what is of importance to establish whether a person is a child or not, is his ability to comprehend what is right and what is wrong, what is lawful and what is unlawful and whether he understands the consequences of his actions. It is the advancement of his mental faculty that would suggest whether he is an adult or a juvenile and for this purpose, there has to be a specialized examination of the child at the hands of experts who can evaluate the ability of such a child to segregate good and bad, the lawful and unlawful and the consequences ensuing therefrom and this would show his maturity or immaturity to answer for his deeds.
It is the factors related to growth and maturity psychologically and socially, but not entirely biologically, which would give an insight as to whether a person is a child or an adult and merely because the age of 18 years would confer a lot of social and political privileges in a civil society, would not certainly mean that a person before attainment of such an age continues to remain a child and eluding adulthood, while he in his conduct otherwise demonstrates the capability of correct comprehension.
It is, therefore, the competence of a juvenile which has to be established before the Board and the Board and the courts ought not to automatically assume that the statutory definition would confer the halo of a juvenile and give him an undeserving protection and benefits.
Apart from determining such abilities, an enquiry should also establish the social factors surrounding such a person in conflict with law, as they also possibly may reveal the cause of a distorted or a perverted mind set, which may eventually lead to an appreciation of the ability of correct comprehension.
The judge concludes his order by saying that
All these aspects are extremely significant for they would reflect and play upon the mind of the Court, when it considers the question of sentence to be visited upon a juvenile in conflict with law.
One looks forward to the day when the Supreme Court makes a similar observation and recommends suitable amendments in the Juvenile Justice Act.