Adult Crimes, Adult Punishment:

July 16/2014 : The Women and Child Development Ministry’s move to amend laws pertaining to the punishment of juveniles accused of heinous crimes may have stirred up a hornet’s nest but has also been widely welcomed by social scientists. If the proposal goes through, the Juvenile Justice Act will be amended in such a manner as to make children aged between 16 and 18 face harsher punishments for crimes considered adult offences by a court of law. These include murder, rape, acid attack, kidnapping, gang rape and such violent crimes. Being pushed by Women and Child Development Minister Maneka Gandhi, the proposal, first mooted two years ago, has had its share of controversy, with child rights activists opposing it and a major section of people supporting it.

It all began when a fast track court awarded death penalty to the four accused adults in the brutal attack and gang rape of a 23-year-old para medic girl in a moving Delhi bus on December 16, 2012. However, a fifth accused who happened to be a minor at the time of the incident got away with a simple three years of imprisonment which was considered ‘lenient’ by every one since he was the main perpetrator of that ghastly crime. The reason cited was, since the juvenile was six months short of 18 years when he committed the crime, he was given a maximum of three years in jail mandated under the juvenile law by the Juvenile Justice Board. Since he was not tried by a criminal court despite the gravity of his crime because of his ‘minor’ status, it had thrown up a few new issues that needed clarity.

 The first and foremost among them is how rational is it to stick to the juvenile age limit of 18 when many crimes are being committed by teens. And, with early maturity of boys, is it realistic to stick to the age limit set long ago, when children could really be called children especially in matters of crime and therefore that leniency in punishment. More pertinent to the Nirbhaya case was, should the age of a young offender matter when the crime was heinous, brutal and was definitely pre meditated? While the enraged public opinion was heavily loaded against letting a juvenile criminal go almost scot free, the law and the Indian Penal Code were by his side in view of his age. If he had to be tried as an adult since he turned major at the time of conviction, the relevant law had to be amended and only Parliament could do it.

In an audacious attempt to change the law, the victim’s father had moved the Supreme Court seeking a criminal trial of the juvenile instead of by the Juvenile Justice Board. In other words, the victim’s father had challenged the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000 and sought the apex court’s direction to declare it as unconstitutional and void as “the Act puts a blanket ban on the power of the criminal courts to try a juvenile offender for offences committed under the IPC.” In response to the Supreme Court’s directive, the UPA government had prepared a draft note on amending the existing law giving effect that youngsters above 16 years of age who are guilty of brutal crimes be treated on par with adult offenders, without addressing the nitty-gritty issues. Now, Maneka Gandhi has picked up the threads left by her predecessor.

But in her over-enthusiasm to see the relevant juvenile crimes laws are amended, she may have overstated the facts, believing that stricter punishments would deter juveniles from committing serious crimes. For example, she said, “fifty per cent of all sexual crimes were committed by 16-year-olds who know the Juvenile Justice Act so they can do it. For premeditated murder and rape, if we bring them into the purview of the adult world, it will scare them.” Although this might seem a bit far fetched, yet she may not be far from the truth. Recent reports in the media claim Islamist terror organizations are also instructing their young operatives to claim juvenile protection if caught in India. They are being taught about the lax law of this land which, the instructors claim, should be used to protect the operatives if they are caught after an act of terror.

There is no proof or scientific evidence to buttress Minister Maneka's claim. In fact, her juvenile crimes data contradicts the National Crimes Record Bureau (NCRB) statistics which put the sexual crimes committed by 16-year-olds at just 2.4 per cent and their share in total such offences was 3.4 per cent last year.   It could be questioned whether the age should be reduced to fight juvenile crime. If reformation of young criminals is the motto and essence of the existing laws, will the amendments work as deterrents confuses many. A clear thought on this issue may also be that if even if one minor commits a terrible crime that does not seem to come from an innocent child's mind, where would the proposed law go wrong in punishing that evil youngster. In today's India, we are seeing children being encouraged both by family and peers to behave in a 'mature' way. Learning to work and earn early in life is one such need based act that forces children to forget innocence and match up to those around them in all manners.

While the Supreme Court is veering around the view that "You can't have a cut-off date for crime like you have for government jobs," the National Commission for the Protection of Child Rights opposes the proposal tooth and nail.

Before finalizing the draft bill it is worth looking at juvenile laws in other countries. Both in the US and the UK, the jurisdiction of juvenile courts will cease if the offender is found guilty of committing serious crime and the case will be moved to adult courts. In other words, those countries have adopted a flexible approach to punishing a young criminal and the sentence will depend on how grave the crime is. While we need not emulate in letter and spirit how other countries are dealing with juvenile criminals, those practices can be of some guidance before framing new laws that should be more deterrent in nature than reforming the young through prolonged incarceration.

In simpler words, the law must ensure age must be no bar for punishing anyone who commits a crime of a very serious nature.