Contrasting Conflict: Lowering the Age of Juvenile Justice

Dhruva Sareen comments on the contrasting conflict that could arise by lowering the age of juvenile justice.

I. BACKGROUND

In a time when the common idiom ‘kids not acting their age’ has a different connotation altogether, the laws regarding delinquency have suddenly been pushed to the spotlight. On the ghastly night of the 22nd of December, 2013, a young paramedic was gang-raped and mutilated. The most brutal perpetrator amongst the demons was a minor at the time of the commission; making him in the eyes of law, not mature enough to reason his actions and thus be let off easily and triggering the nation’s woes and expressions into one of despondent sacrilege. The incident has not received satisfactory scrutiny by the rule of law as the verdict in State v Ram Singh & Ors has relieved the one juvenile in the group of the six perpetrators.In the beam of law where one side propounds the lenience on minors as a mandate for a civilized society, the other categorically demands a retributive reformation equating to the misdeed perpetrated. For those juveniles who commit even the most barbaric of crimes, Indian law cushions the punishment by making the maximum sentence to be of only three years, that too, in a reform facility. Nirbhaya was just the tipping point; there have been hundreds of incidents when children in the eyes of law have committed acts unworthy of even being limned.

The sacred rights of mankind are not to be rummaged for, amongst old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the

hand of divinity itself; and can never be erased or obscured by mortal power. With a similarly instilled ideology, the paper aims to posturize the juxtaposition that the lawmakers have intrinsically found themselves to be burdened with; much recently with the vigilant media gaze and public furore. The Juvenile Justice Act, 2000 has indubitably been a saviour for the rights of the children; however sometimes, the conflict of law with juveniles is there to stay, which is when inequity is doled out by the black quill on dull scrolls. Law without justice, after all, is nothing but a tarnished flesh-wound gaping at the dishonour it brings.

On 17th July, 2013, the Supreme Court of India dismissed pleas to reduce the age for juveniles from 18 to 16. The plea was a combination of seven writ petitions heard together which challenged the constitutionality of the Juvenile Justice Act, 2000 in response to which, the court refused to hold the act as ultra vires the constitution. Even though, this decision of the court was widely appreciated by one segment of the society due the virtue of it being an equitable safeguard of public morality and children’s rights, the counter-offensive believed that this judgment is detrimental to holistic justice.

With the recent legal skirmish between the Apex Court and the people propounding equitable relief to all, focus has been shifted on either the lowering of the age of the juvenile or the categorical exemption of the children in the age bracket of 16 to 18 being exempted from the jurisdiction of the Juvenile Justice Act.

II. INDIAN JUVENILE JUSTICE: JUSTIFIED?

A juvenileor a child is a person who has not completed 18 year of age while a juvenile inconflict with law means a juvenile who is alleged to have committed an offence. The Juvenile Justice Act is built upon a model which addresses both children who need care and those who are in conflict with law. The definition of a child is governed by several rules and conventions that India is a signatory to. The United Nations Convention on Rights of child

was ratified by India in December, 1992, thus binding India to define a juvenile to be under the age of 18.

The Standard Minimum Rules are deliberately formulated so as to be applicable within different legal systems and, at the same time, to set some minimum standards for the handling of juvenile offenders under any definition of a juvenile and under any system of dealing with juvenile offenders. The Rules are always to be applied impartially and without distinction of any kind. However, when this is read in conjunction with Rule 4, gives a specific interpretation. The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially anti-social behaviour. In India, the quantum of variance between the conditions of all the juveniles is very high by the virtue of a huge gap between the socio-economic dimensions.

The Supreme Court held has said that

There are incidents where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.

The Supreme Court itself seems to be treading on rather rocky grounds flailing flimsy arguments able to corrupt its own logic. There have been incidents when one-man classifications have been denoted by the same court so that the fundamental rights of even one

individual are not infringed. Here, under the garb of protecting a segment of the children in conflict with law, instead of devising innovative and effective rules, the Court chooses to sit idly as a by-watcher.

III. CONTEMPORARY ARGUMENTS: JUVENILE (IN) JUSTICE TO CHILDREN

Justice is not justice if it is not just to the stake of equity to all. If justice is doled out stepping on the agony and despair of children, then it is no justice. It is admitted that sometimes children can and do commit terrible crimes, and it is true that the reform and rehabilitation of child offenders under the juvenile justice system often exists largely on paper. However the solution is not to change the law, but to ensure it is better enforced. The lack of better infrastructural facilities for juvenile homes and access to quality counselling and support for child offenders is quintessentially responsible for the current encumbrance to unobstructed flow of justice.

The superintendents and staff of observation homes and special homes that by the virtue of increasing the age of juvenile from 16 to 18 in the 2000 Amendment to the JJ act, a much larger number of juveniles are to be accommodated in the lacking infrastructure. There are a total of 815 remand homes across India with a capacity of 35,000. It is imperative that the activists asserting the lowering of the age of juvenile should work for the implementation of the recommendations made by the Justice Verma Committee in harmony with those of the child rights activists. Theshelter homes/corrective institutions and CWCsshould perform the role of rehabilitating thesurvivors. Rehabilitation will be themeasure of success of the Juvenile Justice Act. However, rehabilitation when dabbling in the dregs of the lacking infrastructure that our nation is infested with, does not benefit the same purpose.

The manner in which the Juvenile Justice Act hasbeen implemented shows a complete failure of the State. Child Rights Activists believe that reformation during imprisonment and

reformation without punishment are accepted as better approaches to prevention of crime, especially in the case of children.

The children if come in contact with hardened criminals in jail, it would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society. Yet, juveniles have been forced to live behind the bars in prisons. The High Court of Delhi has given extensive guidelines regarding age-memos and age-perusal techniques that the prison authorities are obliged to follow procedure with. The objective of the Act is to provide care to the juveniles in need and to protect the child’s innocence.

There are numerous problems existent in the society that draws the scope-skillet of the Act back, thus cascading into the abstract yet adverse implementation of its functioning, if at all. The Ministry of Women and Children Development blames the ineffective administrative efficacy of the bureaucratic setup and enumerates major loopholes in the implementation of such a rehabilitative scheme. Thus, there is an imminently precarious necessity to better the infrastructure of the reformatory process that the juvenile justice aims to provide to juveniles. The guidelines stated by the Supreme Court need to be diligently followed for better implementation of the Juvenile Justice Act. Such judicial legislation has to be promulgated for better efficacious application of the provisions for the betterment of the children in conflict with law. However, the lack of proper drafting and loose provisions in the legislation itself thwart any efforts against the correction of the same.

IV. COMPARATIVE JUVENILE JUSTICE PROVISIONS

It is pretty evident from the recent happenings that the Indian Juvenile Justice Act is incapable of providing avenues to bring better law and order in the society. The Indian Penal Code only talks aboutindividuals who are under the age of 12 and thus anyone between the age of 12 and 18 would have to be dealt with under the Juvenile Justice Act. The major

grievance arising from the same is that the Juvenile Justice legislation is excessively lenient to the actions of such juveniles. Thus, there is a need to bring about certain change in the existing legislation. After Nirbhaya, a careful perusal of the provisions regarding juvenile justice in other countries has become a prerequisite.

Countries like the United States of America, New Zealand, Japan, Netherlands, England, Canada, Belgium, Australia have Criminal Law provisions that edict the transfer of a juvenile to an adult court in the cases of heinous crimes. Had the same provisions been applicable in the Indian context, the juvenile in the Delhi Gang Rape Case who have been let down with no penalty (The author contends that reformation is not in the least retributive as certain contrary views express.) would have been behind bars unable to cause the society more worry.

Over 100years ago, efforts to reform children convicted of minor crimes led to the implementation of what is now the current juvenile justice system in the United States. In the United States, the maximum age of a juvenile is 18 years. When a Juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.

In each Australian jurisdiction, except Queensland, a juvenile is defined as a person aged between 10 and 17 years of age, inclusive. In Queensland, a juvenile is defined as a person aged between 10 and 16 years, inclusive. Between the ages of 10 and 14 years, a further rebuttable presumption operates to deem achild between the ages of 10 and 14 incapable of committing a criminal act. A rebuttable presumption needs to be proven by the prosecution by proving the child to be sufficiently mature, and thenceforth, a contested trial may 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. Thus, countries such as the United Kingdom and the United States, though signatories to the same conventions that India is a part of, they have tweaked the mandate by choosing the middle path by punishing those juveniles who have committed heinous crimes the same as if they had been committed by adults.

In England and Wales, children accused of crimes are generally tried under the Children and Young Persons Act, 1933, as amended by Section 16(1) of the Children and Young Persons Act, 1963. As per the English law, if the juvenile has committed an offence alongside an adult, he is liable to be tried in the adult courts, or both of them are tried in the Crown Courts. Juveniles are sometimes tried as adults in Crown Courts for the commission of heinous offences.

Japan and Netherlands charge the juveniles to lifetime imprisonment if they are found to have committed a grave offence with due maturity and intention. Countries like Australia, Denmark, Germany, Hungary and Russia have adequate provisions to charge the juvenile offender of heinous crimes to be sentenced to imprisonment from ranging to 7 years to half the time of the adult sentence. The paper asserts there to be two alternatives; the first being the lowering the age of the juvenile from eighteen to sixteen, the second being the implementation of the harsher punishment for the mature perpetrators under the guise of juveniles. Thus, as for the second alternative, the maximum number of imprisonment/detention could be increased in consonance with the law provisions prevalent in other Common Law Nations. This would increase the ambit of the Juvenile Reformatory practices and also lead to a lower crime rate in juveniles.

V. J.S. VERMA COMMITTEE REPORT: A FLAWED SURMISE.

The Verma Committee Report is indubitably a very solemn and sincere effort into unearthing and revealing an innovative solution to the blatant injustice to each individual affected and mystically to the unaffected too. However, the contentions and assertions that it has brought

out, through which they have deduced the conclusion against lowering the age of juvenile to 16, is rather abysmal.

The author would like to primarily rebut two arguments raised by the J.S. Verma Committee Report that have been crucial in deciding the focal point of the decision.

ARGUMENT I –

The Committee members are of the opinion that with the assumption that a person at the age of 16 is sent tolife imprisonment, he would be releasedsometimes in the mid-30s; and thenceforth there is little assurancethat the convict would emerge a reformed person,who will not commit the same crime that he wasimprisoned for (or, for that matter, any other crime).

COUNTER ARGUMENT I –

• If mature and cognitive individuals are given the armour of a Special Law allowing them to commit offences under the Indian Penal Code without any liability, they would breed within themselves enraged criminals with psychotic tendencies. Fake birth certificates would throng and act as a weapon of defence against prosecution for their wrongdoings. This is against the principles of natural justice and against the nature of an intelligent civilized society.
• This argument is in direct contravention to the Juvenile Justice Act, 2000 , which categorically demands that if an individual in the 16-18 age bracket is convicted of committing a heinous crime, he shall be kept separately if the State deems it to be dangerous if he is kept in a juvenile home. However, this direction is also limited to the maximum number of years a juvenile could be kept imprisoned for the offence committed.
• The committee has substantiated its contrary arguments by admitting that in the present circumstances, with no imminent relief or a sweepstake reversal in sight, the current reformatory process and procedure is breeding more criminals including juveniles in ourprisons and reformatory system by ghettoing them in juvenile homes and protective homes where they are told that the State will protect and provide for them, but which promise is a fruitless one.

ARGUMENT II–

The Committee Report believes that the 3 year period (forwhich delinquent children are kept in the custodyof special home) is the cause for correction withrespect to the damage done to the personality ofthe child. Children, who have been deprived of parentalguidance and education, have very little chances ofmainstreaming and rehabilitations, with theprovisions of the Juvenile Justice Act beingreduced to words on paper. Thus, they should be kept for three years in reformatory prisons so that something equivalent to parental guidance is provided.

COUNTER ARGUMENT II -

I shall take an excerpt from the Committee Report itself. There is an incident regardingthe plight of a child troubled with the process of juvenile justice which has been cited in the Committee’s report which is reproduced below.The said child made a complaint in the Board that he was given beatings by the elder children inside the home. He said that he has not reported this to Superintendent of the Home, accordingly it was deemed fit to apprise the Superintendent of the situation and to ask him to file a report.

The contents of the report are iterated as -

With due respect, I would like to inform your goodself (sic) that juvenile Deepak is living in child(sic) friendly environment and enjoying his life at Prayas Observation Home, Delhi Gate. He has gained 10 kg weight in a month. As per the Juvenile (sic) he told lie to release. No elder children tease him and beat him. We are providing due care, guidance and supervision for his complete development. In future I will take care of this child.

However, the panel believed otherwise. After a personal session with the boy, it was found out that the child’s attempt to save himself from suffocation had got him beaten up by the care-taker; who also beat him up after seeing the Order from the board. The bhaiyyawho was to give him the guidance essential to his life course, firstly wrongly accused him of battering

another, beat him up for the same and then thrashed him for expressing his grievance. This is a flagrant concomitance

ARGUMENT III–

The J.S. Verma Committee Report has relied heavily on a paper by Laurence Steinberg’s in coming to the conclusion that the age of juvenile should not be reduced to 16.

COUNTER ARGUMENT III -

There is a flawed flight by the J.S. Verma Committee. Certain statements from the same paper were not given due consideration. Steinberg mentions that he and his co-authors did not see any improvement in basic cognitive processes, such as working memory or verbal fluency after the age of 16. Performance on tasks that activate the frontal lobes continues to improvethrough middle adolescence until about age 16 on tasks of moderate difficulty.

Thiswould be consistent with the notion that performance on relatively basic tests of executiveprocessing reaches adult levels around age 16, whereas performance of especially challengingtasks, which may require more efficient activation, continues to improve in late adolescence. When talking about the cortical and subcortical functioning, Steinberg categorically mentions that the basic intellectual abilities reach adult levels around age 16, before the process of psychosocial maturation is complete. Psychosocial maturity is defined to encompass elements of responsibility, perspective, and temperance. The J.S. Verma Committee Report has taken into purview very acute processes such as the snapping of synapses and the changes in dopamine receptors, notwithstanding the brazen proclamations stating that the adolescent becomes satisfactorily mature and cognitive to understand the consequences of his actions and reactions. In order to strictly pursue the law, the committee has flagrantly disregarded the contrary contentions made by the same paper they have relied their conjecture on. The committee has followed suit to the saying that it is better to risk

saving a guilty person than to condemn an innocent one. However, Rigorous law is often rigorous injustice.

VI. CONFLICT IN JUSTICE: PLAUSIBLE SOLUTION.

There is an overriding apprehension regarding the rising graph of criminal offences being committed by the Children in conflict with law. There are certain ostensible drawbacks of the current legislation on juvenile justice.

• The evil of the society can manifest themselves in the forms of juveniles who are fully capable and cognitive to understand their actions and reactions yet protected under the garb of law. Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws. The scheme of using mature and capable individuals but children in the eyes of law to commit offences appears to be lucrative for the bad elements of the society.
• Article 21 of the Indian Constitution provides a right fundamental to each individual assuring a life of peace and dignity. By shielding a juvenile fully cognitive of the cascading consequences of his acts, the Centre is at constant risk of infringing that fundamental right by protecting a class of criminal tendencies.
• Since the name and link to an offence cannot be tagged with a juvenile offender , the offender under the lacking infrastructure, if not reformed, is capable of acting as a threat to the society in rem.
• Keeping the entirety of the juvenile offenders in one bracket would lead to a multiplier effect of criminal tendencies. Those who have wriggled through this loophole, like the minor in the Delhi Gang Rape case , may adversely affect the psyche of docile individuals, corrupting their minds with criminal affinities.

The contravening opinions to the concept of lowering the age of the juvenile believe that there needs to exist a differing accountability and punishment for developing adolescents

which is in proportion to their varying psychological make-ups. This, however, is another contentious yet acceptable proposition that could work for the benefit of the society, at least in the present scenario when the dire need to amend and dictate the loopholes into clotting is one of immense necessity. A harbinger to correct such a drawback of the present circumstances would be the adoption and adaptation of the jurisprudence that the law of the United States and the United Kingdom amongst other nations follow, where they convict juveniles for the gravity of their offences taking into consideration the intellectual and emotional maturity of the individual.

In India too, the idea of such enforcement is fast on the boil. The Union minister for Women and Child Development Krishna Tirath is also amicable with the proposition of enforcing stricter penal punishment. In a recent interview, she said as quoted that,

The ministry's stand till now on the juvenile age is that it should be kept at 18 years. But in the rarest of the rare case like the December 16 gang-rape, in that I want he should get stringent punishment.

Thus, better implementation of Art. 16(1) would not prove to be enough; there is required a change in the legislation based on the laws in the United States and United Kingdom, both signatories to the same conventions and rules, have strict laws that transfer the juveniles to adult courts when and so it deems fit.

When children lose their innocence, they resemble children only in the eyes of law. With the drawl of latitudinal exposure in the society, the minds of juveniles are corrupted as a matter of certainty. In the Bombay Blasts Case, a juvenile who was tried and convicted along with adults under the Terrorist and Disruptive Activities Act (TADA), was denied the protection of the Juvenile Justice (Care and Protection of Children) Act, 2000, on account of the existence of a special act read along with S. 28 of the Juvenile Justice Act. This, though an isolated incident, demands a purview since the gravity of the crime led the courts to disassociate him from the tag of a child in the eyes of law.While rehabilitation is a legal and societal objective, this interest surely has to be balanced with creating a legal deterrent to protect

women and girls from increasing incidences of rapes by juveniles. Unfortunately the existing system neither serves the purpose of rehabilitation nor deterrence against future crime. Thus, there needs to be a change, a drastic change to the current legislation in this regard.

The ultimate aim of juvenile justice system is to rehabilitate the offender rather than to exterminate him from the society.The principles on which such protections have been granted are: natural justice (protection of basic /natural/human/fundamental rights) and of safeguarding of personal liberty. However, a person capable and mature to understand his actions and its consequences, while committing the depravity of sin, if shields himself under the false sheath of law, it does infringe jus naturale. Due to the inability of the remand homes to accommodate the growing number of juvenile offenders, the practice of looking through the holistic lens should be avoided. If the rehabilitative process is inefficient, which it is, in the present socio-economic circumstances of the country, a reversal of approach is needed to be taken. The author does not favour the detention of innocent souls through his contentions; however, the emotional and mental maturity along with the sociological psyche of the juvenile needs to be taken into consideration before the strict implementation of a vaguely drafted statute.

VII. INDIA’S ABILITY TO AMEND: INFRINGEMENT OF INTERNATIONAL LAW?

The Beijing Rules talk about taking into consideration the emotional, mental and intellectual maturity of the juvenile in the process of delivering justice. The loosely drafted legislation, however, has put a blanket ban only on the basis of age. Also, the Beijing Rules provide for rules applicable to persons between the age of 7 and 18 and does not strictly put the age of the juvenile as under 18. The juvenile justice system ensures that any reaction to juvenile

offenders shall always be in proportion to the circumstances of both the offenders and the offence. In essence, rule 5 calls for no less and no more than a fair reaction in any given cases of juvenile delinquency and crime. This ideal has not in the least been applicable in the present circumstances.The U.N. Convention provides that a child who has committed an offence under the Indian Penal Code would be guaranteed the right to be presumed innocent until proved otherwise, the right of being informed of his rights and the offences with which he has been charged, the right to a legal counsel, the right to an impartial hearing, and the right to not be compelled to confess. Reading the Rule 17 of the Beijing rules in conjunction with the Articles of the UN convention on child rights, it becomes evident that India is not prohibited to amend the juvenile justice act to categorically exempt juveniles in the age bracket of 16 to 18 from the jurisdiction of the Juvenile Justice Act.

VIII. CONCLUSION

India is a developing country with a developing law. Since the last couple of years, a fear has also developed in the society. This fear is of criminals who wield their intentions without hesitance by the virtue of inherent lacunae in the Juvenile law of our nation. Indian law recognizes the concept of a Juvenile or a child in conflict with law; however, it remains oblivious to the separate concept of an innocent child in conflict with law. It overlooks the varying psyche of individuals and sways the blanket of protection plainly on the basis of one’s age. This gives rise to the profligate demonic overt actions that the population of India has been witness to, over the past couple of years.

The law needs to be amended, or if not that, then the loopholes of the legislation need to be adequately grounded and thenceforth covered, the inability of which would lead to grave consequences.

The author believes that the contentions in the paper are reasonable and accurate and the recommendations would solve the clash and conflict in the current juvenile law.