The recently concluded winter session of the Parliament might have been whitewashed due to theatrics of political blame game. However, the lawmakers did not leave the temple of democracy without ringing certain loud bells. One such bell resonated with the popular aspiration of reviewing and amending the very controversial, The Juvenile Justice (Care and Protection of Children) Act, 2015.
With the release of the juvenile perpetrator associated with the Nirbhaya Rape case setting tables for public debate, the national media along with the victim’s parents and an army of anguished populace turned up the heat for the upper house of the Parliament to sail a pragmatic legislation through the rising levels of emotional waves.
As the public pressure cracked upon the legislative rationale, Rajya Sabha finally passed the much anticipated Juvenile Justice (Care and Protection of Children) Bill. Despite it being a popular legislation, it was the combination of emotional speeches in the House of elders along with the staunch opposition from the human rights activists that made experts across the academic spectrum closely scrutinise the bill.
- Sparks that fuelled the fire
It’s true that the issue of criminal liability of juveniles under the Juvenile Justice Act of 2000 soared across the public conscience due to the context which was set by the release of the juvenile offender, however, the ‘Golden Age’ criteria of 18 to analyse a juvenile’s psychological maturity to understand the consequences of a crime so commissioned has been a subject matter of public debate throughout the past decade.
The post Nirbhaya India understood the magnitude of power a united public opinion possesses in order to pressurize the government to update regressive laws and make them toe the lines of contemporary milieu of the society. However, on the given issue, the popular opinion has often faced frictional response from a large lobby of Human Rights Activists which has long defended the Golden Age rule as a parameter which is backed by a good number of psychological and scientific research studies. However, the rising rate of crimes committed by juveniles along with the growing concern for ensuring women security forced the current government to table the new bill on the floor of Lok Sabha on August 12, 2014.
Due to easily available and accessible adulterous content which invades a child’s conscience from a very early age, it would be very ignorant of us to not hold a person accountable for a heinous criminal offence just because at the time of the commission of such an act, he was below the age of 18. Maneka Gandhi, the Union Minister for Women and Child Development, highlighted during her address on the floor of the upper house that many police incidents and reports have shown that the juveniles falling within the bracket of 16-18 years misuse the protection provided under the Juvenile Act by simply asking police to send them to the Juvenile Board when they are caught committing serious crimes. She also mentioned, by citing certain incidents, that the intricacy and brutality expressed by the juveniles while committing heinous crimes such as murder or gang rape are circumstantially evident of their mental maturity.
- Shifting focus of Criminal Justice Jurisprudence
The life of Juvenile Justice Law in India has seen the shifting bastions of lawmakers while considering theories of criminal jurisprudence. In 2000, when the earlier Act was passed, the Indian approach towards criminal liability was highly influenced by Reformist or Protectionist Theory of Criminal Law. This theory has a more humane approach towards offenders and tends to reawaken the inherent humanness through counselling, training and other reformatory measures. Under the context of the UN Convention on the Rights of the Child, Reformist theory seemed both legally and morally justified to be applied on crimes committed by juveniles for their tender age is not mature enough to comprehend the consequences of their act.
However, after the recent rise in the rate of juvenile crimes and growing public outcry for reinterpreting the rationality of the Juvenile Act, both the government as well as the national media oscillated between more stringent theories of criminal law to be applied. While the government, maintaining the rational character of legislation, argued for moving towards Deterrence theory, the voices from the ground demanded Retributive Theory to be invoked.
After the tussle for finding a common ground, the new Juvenile Justice Act is intended to be the jurisprudential outcome of the Deterrence Theory of Criminal Law. This theory seeks to find a middle ground which is slightly tilted towards the retributive principle. It aims to deter the juveniles, especially the ones falling in the category of 16-18, to feel deterred and hence cease from committing the crime.
While legislating national laws, or at least for analysing them, it becomes important to see what the prevailing trend in other countries is. Similarly, while analysing the amendment to the Juvenile Act, we shall also look at the criteria adopted by different countries for the similar issue.
The minimum age at which a juvenile can be charged for an offence is 7 in India, which is lesser than the number 10 as followed in UK and South Africa and 14 as followed in Germany.
The age at which the juvenile can be charged as an adult is 13 in United States of America, 14 in Germany, 16 in South Africa and France and 17 in England. In India, as per the earlier Act, juvenile could not be charged as an adult at all. However, in the new Act, the age for charging juvenile as an adult for a criminal offence is set at 16.
- Salient Features
The salient provisions of the new Juvenile Justice Act are as follows:
- The juveniles between the ages 16-18 can be tried as adults for heinous crimes. It would also apply for a commission of a crime with a lesser outcome or a serious crime if the juvenile is apprehended after the age of 21 years.
- Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district. The role of the JJB is to determine whether the juvenile shall be tried as an adult or not while the CWC will determine institutional care for children in need of care and protection.
- Punishments for cruelty against a child such as offering a narcotic substance to a child, and abduction or selling a child have been also prescribed.
- Juvenile Justice Boards (JJBs) will be established in each district to deal with children in conflict with law or juvenile offenders. The membership will consist of a Metropolitan or Judicial Magistrate and two social workers, including a woman.
- Offences committed by juveniles are categorized as: (i) heinous offences (those with minimum punishment of 7 years of imprisonment under IPC or any other law), (ii) serious offences (3 -7 years of imprisonment), and (iii) petty offences (below three years of imprisonment). A juvenile cannot be given life imprisonment without the possibility of release or death penalty.
- If a heinous offence is committed and a juvenile is apprehended before 21 years of age the JJB will conduct a preliminary inquiry. This will determine his mental/physical capacity to commit an offence and an understanding of its consequences. The JJB will then pass an order that recommends: (i) interventions like counselling or community service; (ii) staying at an observation home for a temporary or long-term period; or (iii) refer the juvenile to a Children’s Court to determine whether to try him as an adult
- A child who is evaluated to be in need of care and protection shall be brought before a CWC within 24 hours. Subsequently, a Social Investigation Report is required to be prepared within 15 days. After evaluating the report, the CWC may recommend that the child be sent to a children’s home or another facility for long term or temporary care, or declare the child as free for adoption or foster care.
- The offence of assaulting, abandoning, abusing, or willfully neglecting a child will lead to a punishment of up to 3 years of imprisonment and/or a fine of one lakh rupees. The punishment for employing a child for the purpose of begging will attract an imprisonment of up to 5 years and a fine of one lakh rupees. A person who gives a child an intoxicating or narcotic substance will be liable for imprisonment up to 7years and a fine extending up to one lakh rupees. The penalty for selling or buying a child for any purpose will be imprisonment up to five years and a fine of one lakh rupees.
- Conclusion: Is Geometrical Construction justified?
There’s no denying the fact that geometrically structuring a parameter for accurately analysing someone’s psychological and emotional maturity is unjustified. However, that is not something that shall discourage the legislature to enact laws dealing with certain issues. Yes the harm would be caused, but would the harm be minimised as compared to other alternatives, that is something which drives legislative intent.
Many jurists have challenged the law by calling some of its features as unconstitutional. They say that the classification made between the same classes, i.e. juveniles, on the basis of date of apprehension is not reasonable and there is no reasonable nexus between the provision and the intent of curbing the rate of juvenile crimes. Therefore, it violates Article 14 of the Indian Constitution. It can also be argued that the new law also violates India’s obligation towards UN Convention on Rights of Child, to which it is a signatory, for the Convention supports the age of 18 as a criteria to evaluate maturity of a juvenile. Moreover, the Supreme Court in Pratap Singh v. State of Jharkhand said that for determining the penalty of a juvenile, the date of commission and not the date of apprehension should be taken into consideration. Since, the new law has infringed upon the Right to Life of juveniles by establishing a law which is not just, reasonable and pursuant to the due process of law, it violates Article 21 of the Constitution.
Apart for the legal point of view, many people have criticised the law for lacking scientific justification. They have invoked scientific studies that prove development of adolescent brain to argue that fixing of culpability below the age of 18 violates not only scientific reasoning but also principles of natural law.
People taking moderate positioning have questioned the Act not on content but on principle. They argued that reducing the age will not solve the problem as the criteria have been again focused on a number to determine someone’s maturity. It’s not about affixing culpability at 18, 16 or 25 years of age, but it’s about reducing the dynamism of emotional and psychological maturity of a human being through numerical convenience and then subjecting that person to a matter of life and death.
Whatever is the rationality behind the new Act, we shall not forget that this legislation has served the popular aspirations. In a democracy, the legislation shall reflect the spectrum of sociological processes and structures. However, the state being a higher institution, is also expected to posses the superior rationality regarding statecraft and governance that shall not be swayed by emotions.