It’s really an irony that the most brutal of all the accused in brutal December 16 Delhi gang-rape case, wherein a 23-year-old girl was gangraped and brutally beaten on a bus, is a juvenile and hence shall get away with a milder punishment. And being a juvenile, he shall be tried as per the provisions of Juvenile Justice (Care and Protection of Children) Act 2000 (‘JJ Act’).

Adding to woes, if his age is determined to be less than 18 years at the time of commission of offence, he shall be exempted from the normal law and would be tried by a juvenile court and if convicted, then can be sentenced only up to 3 years. The fact that he is likely to be let off with a lenient sentence, has not only caused uproar among the women activists but has also started a new discussion on lowering the age of the juvenile in heinous offences like rape, murders etc. The requests are being sent to the government to review the provisions of JJ Act for dealing with heinous sexual offences committed by minors.

We need to relook at the provisions of the new Act and also whether enhancing the age of a juvenile from 16 years to 18 years was justified in the present modern age. The Juvenile Justice Act 1986 was enacted to deal with the offences committed by juveniles, (i.e. a boy below 16 years and a girl below 18 years), in a manner which was different from the normal laws applicable to adults. The Parliament enacted Juvenile Justice Act in 1986 in order to achieve the constitutional goals contemplated in Article 15(3), 39(e) & (f), 45 and 47 of the Constitution of India, which imposes on the state a responsibility of ensuring that all the needs of children are met and that their basic human rights are protected completely. The scheme of the Juvenile Justice Act was rehabilitatory in nature and not adversarial.

The Parliament enacted a new Act in year 2000 and enhanced the age of juvenile males at par with females up to 18 years. The main objective of enacting the new law was – a) to lay down the basic principles of administering justice to juveniles; b) to make the criminal justice system juvenile friendly; c) to prescribe a uniform age between the boys and girls to be 18 years; d) to create a separate juvenile police; e) to make the law more appreciative of the development and needs of the juvenile; f) to minimise the stigma and to provide provision for their rehabilitation.

The Parliament later amended the Act and framed rules in 2007, clarifying that the benefits of the new Act shall be extended to all the juveniles’ (whether male or female) up to the age 18 years with retrospective effect. This Act was constituted in terms of the Conventions on the Rights of a Child and the United Nations Standard Minimum Rules for the administration of Juvenile Justice 1985 (Beijing Rules).

The Supreme Court also extended the benefits of the new Act to those juveniles, who had failed to raise the claim of their juvenility at the stage of trial or appeal for some reasons. The courts accepted their plea even after the disposal of their appeals

The effect of the JJ Act was so wide that hundreds of trials were transferred from the normal courts to the juvenile court, keeping in terms with the provisions of the new Act. With the intervention of various High Courts and the Supreme Court, hundreds of juveniles were released on bails and the sentences passed against them were setaside.

Let’s take the case of one Ram Deo Chauhan who was sentenced to death by the trial court for killing a family of four in 1992. During the trial, he claimed that he was 16 years at the time of offence. His medical examination suggested he was 20 years and his father deposed that he was 19 years. The Trial Court declined to give him the benefit of juvenility and found this case to be of a ‘rarest of rare category’ and opined that he deserved death penalty. The death sentence was later on affirmed by all the courts.

First review petition was rejected by a majority of judges with a dissenting view by Justice K T Thomas. The National Human Rights Commission intervened and recommended the Governor to consider the dissenting opinion of the Supreme Court. The Governor passed an order commuting the sentence from death to life. However, it was set aside by the Supreme Court and he was directed to consider the case afresh.

Second review petition was filed against this order and the Supreme Court this time upheld the decision of the Governor and commuted the death sentence to life imprisonment. A dreaded criminal, who was sentenced to death, got the benefit of JJ Act, even when his age was not conclusively proved.

The sole objective of such a beneficial legislation is to give children, who have, for some reasons or the other, gone astray, to realise their mistakes, rehabilitate themselves, rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals. This kind of benefit should be given to a child who is mentally immature and does not have a sense of criminal responsibility. The enhancement of the age of a juvenile from 16 years to 18 years in year 2000 was without any basis. The growth of a child is a continuous process and the changes, which start around puberty reach a level at the age of 16 where their prefrontal cortex (a part of a brain) is developed to an extent that it helps them to inhibit impulses and to plan and organise their behaviour to reach a goal. They are in a position to decide what is wrong and what is right.

The Parliament should consider amending this act and consider reducing the age of a juvenile to be less than 18 years. Instead of prescribing a minimum age, what should be considered is the criminal bent of mind of a juvenile and his intention to commit the offences. The Parliament can create age groups starting from 10 years and above and impose punishment after considering the mental growth of a juvenile and his capacity to understand the criminal responsibility.

The juveniles should he held accountable for the offences committed by them but may be dealt with separately than the adults.

In Australia, the statutory minimum age of criminal responsibility is now 10 years. Between the ages of 10 and 14 years, a further rebuttable presumption operates to deem a child between the ages of 10 and 14 incapable of committing a criminal act. Only if the prosecution can rebut this presumption, by showing that the accused child was able at the relevant time adequately to distinguish between right and wrong, can a contested trial result in conviction. From 14 to 18 years, young offenders may be held fully responsible for their criminal acts but are subject to a different range of criminal sanctions than adults committing the same offences.

However, under the present setup, a 17 and-a-half-year-old dreaded rapist and killer would go scot free after committing one of the most heinous and gruesome crimes of the modern times in India.

I fail to understand how would he become wiser in the next 6 months? His being 17 and-a-half-year-old is only a technicality and what needs to be done is to assess his mental criminal responsibility and not age. The law was framed to protect the juveniles, but it should be used judiciously and not mechanically because the society needs to be protected too. Juvenility is a state of development, not a birth date or a technicality.