This Article is authored by Advocate Anil Malhotra.
Reportedly, Hyderabad police has sought trial of minors in Jubilee Hills ghastly 2022 gang-rape case as adults to ensure maximum punishment. In 2012 Nirbhaya case, after an excruciating, agonising and frustrating delay spanning 8 years, four perpetrators who inflicted unbearable pain and agony in gang raping a young woman have been sent to gallows after their repeated pleas of juvenility failed them from noose. Fifth criminal had been earlier found dead in his jail cell. Savage assault, torture and gory role of sixth juvenile co-conspirator in unison, earned him three years in a special correctional home, a new identity and freedom. Death for five, freedom for sixth. Why anomaly. Did criminal justice system reform him. Did anybody check. Is justice done. Should juvenile have walked free simply because he was less than 18 years of age. Juvenile criminal partnered dance of death, but law makes him immune from punishment. Was his criminal intention any less. Ought he not to have been castrated. Then, why reprieve. What for sympathy. Is label of a juvenile, a licence or permit in law to commit heinous offences willingly, with promise of assured pardon in pocket. Does age of the juvenile need to be revisited and pegged to 16. Why not.
Juvenile Justice Act, 1986 prescribed age of a juvenile at 16 years. India ratified UN Convention on the Rights of Child in 1992. UN Convention defines “a child as a human being below the age of 18 years unless the law applicable to the child, majority is attained earlier”. To adapt to UN Convention Juvenile Justice Act, 1986 was amended in 2000 to prescribe 18 years as age of a child or a juvenile. Consequently, under Juvenile Justice Act, 2000 (JJ Act), “a juvenile in conflict with law” meant a juvenile who is alleged to have committed an offence and who has not completed the age of 18 on date of commission of an offence.
Nirbhaya gang rape case, brought public outcry on streets agitating for a stringent punishment for the juvenile offender. Supreme Court in Dr. Subramanian Swamy Vs. Raju (2014) declined to read down JJ Act, and refused to interfere with age of an accused juvenile who had been found guilty of heinous offences. Mental and intellectual competence of juvenile offender was ignored. Supreme Court held that JJ Act was in compliance with international conventions. A juvenile was classified as a special class as an unequal above law. Legitimacy, not certainty of law was dictum of law. Justice, to logic of law was done, but, injustice was done to relief in law.
Government in its wisdom amended JJ Act which was rechristened as Juvenile Justice Act, 2015. It empowered Juvenile Justice Board (JJB) to decide whether a juvenile aged between 16 to 18 years ought to be treated in a Children’s Court for heinous offences. Now, even if so tried, juveniles cannot be sentenced to death or life imprisonment. Juveniles can be apprehended, not arrested. If detained, juveniles shall be released on bail. Gravity, seriousness and role in crime cannot be a ground to decline bail. A preliminary assessment by JJB is mandatory to ascertain mental and physical capacity of a juvenile, his ability to understand consequences of offence and circumstances in which he committed a heinous offence, before he is tried by a Court as an adult under Code of Criminal Procedure (Cr.P.C.). Process begs an answer. Is JJB comprising of a fledgling Judicial Magistrate and two social workers equipped with acumen, wisdom and experience, attributed to a full-fledged criminal Court empowered under Cr.P.C. to conduct such an assessment. Delegating powers of a criminal trial through a pseudo preliminary assessment, is like missing the bus. If cart is put before horse, the results are obvious. Juveniles win hands down.
Supreme Court on January, 9 in Shilpa Mittal Vs. State (2020) declared a “gross mistake” committed by the framers of the legislation in the definition of “heinous offences” under the JJ Act, 2015. Court held that existing definition of “heinous offences” prescribing a maximum sentence of 7 years or more imprisonment, but no minimum sentence, cannot be considered as “heinous offences”. Hence, law is flawed. Consequently, filling in gap, Supreme Court ordered that all such fourth new category “heinous offences” under JJ Act, 2015, for which there is no minimum sentence, will be classified as “serious offences. Parliament amended law and now offences for which minimum punishment is imprisonment for 7 years or more are classified as heinous offences. Old enough to rape and kill, but too young to be imprisoned for life.
A review of recent precedents of various High Courts in matters of juvenile crimes on issues of bail and sentences awarded after trial by Courts, indicates a trend that JJ Act, 2015 is interpreted as a true letter of law, with no margin in legislation for social realities and practical considerations of role of juvenile offenders in involvement of “heinous offences” like murder, gang rape, drug smuggling and organised crime. Reason for so is not far. JJ Act, 2015 contemplates total separation of juveniles from mainstream offenders. JJ Act, 2015 is a special Act made by Parliament containing non-obstante clauses that have overriding effect. So much so, Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) barring bail to NDPS offenders, pales into insignificance in front of Section 12 of the JJ Act, 2015 in which bail to juveniles, and not confinement, is the rule. Sad, but true. Special place for juveniles is reserved for bail, not detention, de-hors, very spirit and mandate of NDPS.
What then is a solution. There is dichotomy of thought. This was sought to be resolved in statement of object and reasons of amendment of JJ Act, 2000. Alarm was caused by fact that law was ill-equipped to handle juvenile offenders between 16 to 18 years of age committing “heinous offences”. Hence, instead of lowering age to 16 years, changes ensued and juvenile offenders between 16 to 18 years were put in a different class. Amendments were made. But, this has not served purposes. Exercise was futile. Indian Penal Code (IPC) was amended to award death penalty to adult rapists. Ironically, juvenile gang rapists in tandem, are still a privileged class committing organised crime with impunity and no fear of law. Why.
We need to think afresh as the UN Convention permits a child to be below age of 18 years, unless law applicable to the child, majority is attained earlier. Why then can we not have an amended JJ Act, 2015, which permits a Children’s Court, and not a JJB, to decide that child i.e. a juvenile criminal has attained majority. Why not have a legislation with a judicial discretion to a competent Court to decide age of majority and punish crime with same peg measure with which an adult criminal is tried and punished. Adult times for adult crimes must be the rule. A juvenile conspirator in an adult crime committing a “heinous offence” is not different. He is not a class apart. Giving him an apron of a juvenile is unfair and unjust. Law should not be a cloak for a juvenile criminal. Definition of juveniles and a child given separately in JJ Act, 2015 needs to be recast in a new mould.
A “child in need of care and protection” rightly enjoying benefits and privileges under JJ Act, 2015 can be a child under 18. But for “a child in conflict with law” or a juvenile offender committing a “heinous offence”, it ought to be an exception, with age of majority to be less than 16 years of age. Gravity, heinous character, role of the juvenile perpetrator and criminal intent of juvenile committing a heinous offence should be grounds for lowering bar to 16 years of age. This change must come. Juvenile offenders today committing “heinous offences” are informed criminals. Crime is committed by them knowing fully well results. Intentions of juvenile criminals are clear. For them, punishment and not reform is the answer.
With advent of technology, glamour of crime and susceptibility to ill-virtues creeping society, an iron hand of law is needed for reform. Courts will interpret as legislature ordains. Courts cannot legislate. Parliament must come to rescue. Age of the juvenile has to be revisited. It is time that law took a call. UN Convention is not a deterrent. It has to be read down. With increasing avenues of glorified crime, juvenile offenders need to be checked, not treated or rehabilitated. This virus ought not to infect society more. Nirbhaya and Jubilee Hills cases are eye openers. We do not need another precedent. Only if we amend JJ Act, 2015 to change age of the juvenile committing a “heinous offence”, can perspectives change. Short of it, we reach nowhere. Age of heinous offence juvenile delinquents is to be put in the same basket with an adult offender and be tried by a criminal Court as per IPC and Cr.P.C. This category of the special juvenile offender can no longer be a class apart. Benefit of reform for juveniles ought not to be extended any more to those offenders claiming to be juveniles who enjoy gang rape and murder but refuse to suffer its penalties. Till then, soul of Nirbhaya will not RIP.