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.
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