This Article is authored by Advocate Anil Malhotra.
The ghastly gang rape, mutilation and beastly murder of an innocent paramedic in 2012 shocked the nation. Four death row convicts guilty and sentenced await hanging, exhausting all appeals, reviews, curative and mercy petitions, whilst a fifth perpetrator with the most horrific role escaped the noose under the garb of a juvenile. The Juvenile Justice Act, 1986, described a juvenile as a boy under 16 and a girl under 18 years of age. Upon India ratifying the UN Convention on the Rights of the Child in 1992, prescribing the age of the child as 18 years, the Juvenile Justice (Care and Protection of Children) Act, (JJ Act) 2000, changed the age of the juvenile or child to 18 years. This amended JJ Act of 2015 now defines Child and Juvenile separately as persons under 18 years. Post 2015 JJ Act, children above the age of 16 years upon assessment of physical and mental capacity and ability to understand consequences of offences, can be tried as adults by a Children’s Court. This has not been of much help. The pivotal issue today begs an answer. A juvenile above 16 years of age committing heinous offences is an adult criminal. He needs no mantle of a juvenile for protection. The age of the juvenile needs to revert back to under 16 years of age.
A Supreme Court verdict of January 9 found a “gross mistake,” committed by the framers of the legislation in the definition of “heinous offences,” under the JJ Act, 2015 as it does not include crimes punishable beyond 7 years, but have no minimum sentence. The existing definition of “heinous offences,” prescribing a maximum sentence of more than 7 years imprisonment, but not providing any minimum sentence or providing a minimum sentence of less than 7 years, cannot be considered a “heinous offence.” Consequently, filling in the gap, the Supreme Court held that all such offences will be classified as “serious offences,” till the matter is address by Parliament or by the Government by issuing an ordinance. Resultantly, the under 18 “juvenile,” who drove a Mercedes car leading to the death of a 32 year old IT professional in a hit and run case, though tried as an adult, was punished for a “serious offence,” and not a “heinous offence.” A flaw in the law led the “juvenile,” to go free.
Even though adapting to the UN Convention on child rights, an under 18 can be a “child,” under the JJ Act, 2015, but whilst defining “juvenile” separately, we can revert to the age of 16. A review of judgments of various High Courts of the past 5 years reveals that the current JJ Act, 2015, is ill equipped to tackle child offenders in the age group of 16-18 years who knowingly commit “heinous offences” of rape, robbery, murder, drug trafficking, gun running, dacoity and are often partners of mayhem, arson, looting, criminal rackets besides other organised crimes. Armed with the complete confidence of immunity of juvenile protection, these legal delinquents indulge in crime and knowingly commit “heinous offences,” with full capability and knowledge of consequences. They then reap the reward and protection as juvenile offenders. Now they will also be treated to have committed only “serious offences.”
The JJ Act, 2015 is flawed from another perspective. Any juvenile alleged to have committed an offence upon being apprehended or detained by the police, shall be released on bail, except in 3 exceptions i.e. when his release will bring him in association with any known criminal, or expose him to danger or his release will defeat the ends of justice. The gravity of the crime, role, motive, intention, criminality or degree of participation of the juvenile is of no consequence. Bail, not jail is the rule, as they know that they will neither be arrested nor apprehended, but will be on bail.
With the advancement of the age of the internet freely dispersing all possible information on every available subject on a smart phone or a computer, a 16 year old today is an informed adult, irrespective of his education, family background or societal set up. Glamour of crime, freedom, curiosity to implement explored knowledge and ability to devise analytical methods makes any 16 year old an adult. He is no longer a child. It is time therefore, that the definition of a “juvenile” particularly who is in conflict with law and who is found to have committed a “heinous offence”, should no longer be a child. In the opinion of the author, the age of the juvenile in the JJ Act should revert back to 16. A child in need of care and protection can remain to be under 18 years of age. However, criminals under the garb of juveniles must know that they are adults. There should be adult time in jail for adult crimes by juveniles in conflict with law. The benefit of reform for juveniles under 16 ought not to be extended any more to those above 18 who enjoy crime and not suffer it.