By C.S. Krishnamurthy
Earlier, Maneka Gandhi, Union Cabinet Minister for Women & Child Development said that juveniles who commit rape should be tried as adults. Her efforts to get the law amended so that 16 to 18 year-olds who account more than 50 per cent of the sexual crimes should be brought out of the purview of the Juvenile Justice (Care & Protection of Children) Act (JJA), yet to bring fruit. There is a need to reduce the age of juveniles from 18 to 16 in the JJA and debate on this is already going on. While there seems near-unanimity among most segments of the society to do so, experts are of the opinion that this would open a pandora’s box. There are very strong groups who advocate that juvenile should be judged by the magnitude of the crime, not age, a possible deterrent for others.
Is it right to call Juvenile Act lenient? When we are frequented by cases of juveniles who are involved in such abominable acts of crime that are horrific in their nature, the society obviously lashes back. While, it is shocking if a child of 17 years could commit such crimes, another school of thought argues that the juveniles have been into all kinds of crimes like rape, murder etc. but media, of late, has exposed it in a big way. Why the child has committed such crimes?
The inherent flaw in JJA is to reform and correct and never meant for punishment. A big debate has triggered after Juvenile Justice Board declared the sixth accused in the infamous Nirbhaya case as “minor”. Political parties and activists have demanded that the juvenile accused, the most brutal among the six, be treated on par with the rest. The minor-accused was then declared as 17 years, 6 months and 24 days old. Section 15(g) of the JJA mandates that a juvenile aged between 16–18 years, if convicted of any offence can be sentenced to a special home for a maximum period of three years and thereafter be released on probation. However, Section 16 of the Act also provides a juvenile can be confined till s/he attains 18 years of age, and cannot be sent to jail thereafter, which in effect resulted in this case. If the severity of the crime has no consequence in this case, there is a serious conflict between law and legitimacy.
A child cannot rape, nor rapist be a child
Child rights activist Nina P Nayak, Member of National Commission for Protection of Child Rights (NCPCR) argues that “there should be no change in the age of the juveniles. If juvenile commits crimes like rape or murder, it is the failure of the system. Punishing a child cannot be approved…” In India, 18 is reckoned as the cut-off age for child labour, marriageable age, drinking, driving, contracting and hence more thought should engage the age amendment perspective.
However, a 16-year old has enough knowledge to differentiate between right and wrong. Any girl child on attaining puberty is an adult regardless of age. Juvenile Justice system may be applicable only to minor offences where there is no bodily harm is inflicted, though punishment can be severe for a repeat offence. Tougher laws, stringent action and a proper mechanism to look into the aspect of updating laws as society changes are becoming imminent. When a juvenile rapes/kills, does he instantly become an adult or does he maintain some trappings of childhood, despite the gravity of his action? Studies suggest that the brain may not be fully developed until 20 years of age. Should we give up our children and consign them to the adult penal system, where rehabilitation is not a priority?
It is argued that mind continues to develop even after the body has physically matured. The U.S. Supreme Court, for instance, in the 14-year-old Nathaniel Brazill case, has ruled capital punishment as unconstitutional for anyone who hasn’t celebrated his 16th birthday.
Putting the juvenile offenders with hardcore criminals will make them fodder for the elements who will readily accept such disgruntled teenagers. Even as lawmakers’ reason, merits of death sentence for rapists would bring down the crime rate. However, there are those also who warn that it may lead men killing women after rape to avoid death penalty.
Crime, not the age, should be the criteria, but the quantum of punishment must weigh if the juvenile’s brains and thought process are alert to know that s/he had committed a grave act, before sentencing.