Juvenile legislation provides for a distinct system to deal with all children who have committed offences, irrespective of the crime committed. Reformation and rehabilitation as opposed to punishment is the essence of juvenile justice – treatment of a child who has committed an offence depends on the child’s circumstances, and not solely on the nature of the offence. This is the foundation of the juvenile justice system. Tampering with this base results in adversely interrupting the holistic development of the child.
The age of juvenility for both boys and girls has been 18 years since the advent of the Juvenile Justice (Care and Protection of Children) Act 2000. The Juvenile Justice (Care and Protection of Children) Bill 2015, passed by the Lok Sabha, has overturned a well-settled principle of juvenile justice by allowing Juvenile Justice Boards to waive children above the age of 16 years who have committed an heinous offence into the criminal justice system. It has categorised offences into “heinous”, “serious” and “petty” – it is proposed that treatment of a juvenile will depend upon the type of offence committed instead of his situation.
The proponents of the Bill argue that eighteen years is not sacrosanct, especially when children are committing brutal crimes – in support of their claim they say that 17-year-olds were involved in the Delhi bus and the Mumbai, Shakti Mill, gang-rape cases, therefore, they do not merit any mercy.
It is imperative to consider as to whether such drastic change in juvenile law is warranted, especially when it has withstood judicial and expert scrutiny. It is, firstly, crucial to understand the rational for a special law treating juveniles in conflict with law differently from adult offenders, and secondly, the purpose for treating all persons below 18 years of age, without exclusion, within the juvenile justice system.
An opportunity of reformation
A juvenile offender is a product of unfavourable environment and is entitled to a fresh chance under better surroundings; the prospect of reformation is hopeful; such child does not have the same full knowledge and realisation of the nature and consequences of his act as does an adult, hence, is less culpable. The Committee on the Rights of the Child, constituted under the United Nations Convention on the Rights of the Child, which India has acceded to in 1992, in its General Comment No.10, Children’s rights in juvenile justice (2007), observes that children differ from adults in their physical and psychological development and their emotional and educational needs, which constitute the foundation for their lesser culpability. The Supreme Court, in 2005, in Pratap Singh vs. State of Jharkhand, has described juvenile legislation, “…The said Act is not only a beneficial legislation, but also a remedial one. The Act aims at grant of care, protection and rehabilitation of a juvenile vis-à-vis the adult criminals…it must be borne in mind that the moral and psychological components of criminal responsibility were also one of the factors in defining a juvenile…The modern approach is 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 his or her individual discernment and understanding can be held responsible for antisocial behaviour.”
In 2014, in Dr. Subramanian Swamy & Ors. Vs. Raju & Anr., the Apex Court upheld the treating of all persons “under 18 as a separate category for the purposes of differential treatment so far as commission of offences are concerned” under the Juvenile Justice Act 2000.
The age of 18 years has been scientifically fixed on the basis of characteristics intrinsic to children and adolescents, and not on mere whim and fancy. An adolescent requires further protection due to his critical developmental stage. It is necessary to recall that in India the age of majority is 18 years, as is the age to enter into a contract, vote, drive a car, watch certain films. Recent studies in neuroscience indicate that brain systems are still maturing at 16 years, resulting in impulsive behaviour, risk-taking and decreased levels of self-regulation. Most importantly it is a transitory phase. Furthermore, adolescence is also an age when there is increased freedom, lesser domestic restraints and development of sexual instinct, along with susceptibility to influence, which makes it most undesirable to bring them into contact with adult offenders.
The government of India justifies waiver of a child into the criminal justice system on the ground of “increasing cases of crimes committed by children in the age group of 16 – 18 years in recent years” and “data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16 – 18 years have increased especially in certain categories of heinous offences”. This contention is belied on examining Crime in India 2013, which shows that juvenile crime is only 1.2% of total crimes committed, the percentage remaining same as in 2012, of which murder and rape is a mere 9.1%. This statistics denotes criminal cases registered against children – the figure for those found to have committed the offence on completion of inquiry is much lower. With adequate inputs and resources, such miniscule numbers of juveniles can easily be handled within the juvenile justice system itself.
Denying children the protection of juvenile legislation dislodges the very essence on which juvenile justice is structured. Those against waiver are not advocating a system that mollycoddles a child who has committed an offence. It is necessary to acknowledge that the juvenile justice system is not a lenient system – it is an age appropriate system. Its psycho-socio-legal approach has resulted in a positive impact on children. If the government is interested in listening, those working with juveniles in conflict with law can narrate so many incidents where a child’s life has been reclaimed due to interaction with the juvenile justice system.
The Justice J.S. Justice Verma [Retd.] Committee, constituted by the then government of India to examine the law regarding sexual assault against women, declined to recommend reduction of the age of juvenility to 16 years. While arriving at its conclusion, the Committee referred to the decreasing rates of recidivism, as also to “the neurological state of the adolescent brain”. The Parliamentary Standing Committee that examined the Bill has also submitted its detailed objections to waiver of juveniles into the adult system. Having found waiver as unconstitutional, the Committee recommended strengthening the implementation of the existing law. It also observed, “…there were provisions in the Act of 2000 itself i.e. Section 16 to deal with children between 16 – 18 who have committed serious crime which were within the juvenile system and there was no need to push those children into adult criminal system, a move which could be described as retributive only.”
What has been most alarming is that the government of today has refused to take notice of facts and figures put before them. Rationality has given way to emotion riding on a few cases that have been widely-publicised. An attempt is being made to portray that waiver will ensure safety of women and public; this stand of the government has been rejected by women’s groups. Making laws harsher does not curtail violence. It appears that the government of India has taken the easy way out by sacrificing the vulnerable. It is hoped that ultimately reason will prevail, and the Rajya Sabha will intervene on behalf of children.
Maharukh Adenwalla is a Mumbai-based lawyer who has worked with the juvenile justice system.