Amendment to the Juvenile Law in India – Its Implications

By Deepak Parvatiyar

August 8, 2014

There are some serious issues involved with the latest Union cabinet decision to approve the Juvenile Justice (Care and Protection of Children) Bill, 2014 that proposes treating minors older than 16 years as adults if charged with serious crimes such as rape.

A Real Step Back?

The United Nations International Children’s Education Fund (UNICEF) has termed the decision as a “real step back” – apprehending that the new JJ Bill could be a significant deviation from the Juvenile Justice (Care and Protection of Children) Act, 2000, which was promulgated in compliance with the Child Rights Convention of 1989 (CRC). The CRC provided in Article 40.1 that the children accused of offences should be tried separately from adults ‘in a manner consistent with the child’s sense of dignity and worth. (In 1992, India was a signatory to the Child Rights Convention 1989).

“The recent Union Cabinet approval of the Juvenile Justice Act amendment to empower the Juvenile Justice Board to decide whether a juvenile above the age of 16 years involved in a heinous crime is to be tried in a regular court, constitutes a real step back,” A UNICEF statement said.

Indeed, there are provisions in the proposed bill that empower juvenile justice boards to decide on whether a juvenile above 16 years involved in heinous crimes such as rape is to be sent to an observation home or tried in a regular court. Yet there is a clear provision that the juveniles would not be sentenced to life or death, if found guilty.

Why this New Law ?

Without any attempt to sidetracking the UNICEF concerns, it is important to understand the necessity of the new laws to discourage teenaged delinquents from committing heinous crimes such as rape and murder.

The debate over strict laws to check juvenile crimes gained currency after the widespread public outrage over the brutal gang rape of a 23-year-old on a moving bus in Delhi on December 23, 2012. The girl died and while the prime accused was later found dead in Delhi’s Tihar Jail where he was lodged, four other rapists were sentenced to death (which has recently been stayed by the Supreme Court). Yet what created uproar was that the sixth accused, a juvenile, who was supposed to be the most savaged of the six, though convicted, could be sentenced to a maximum of three years in a reformation home by the juvenile justice board. (Late) Justice JS Verma, who had headed a committee to look into laws relating to sex offences, had then suggested that lowering the age ceilings from 18 years to 16 years was “not viable” as the law was meant for general application and not for a particular case. During that period, the Supreme Court too had dismissed in all eight writ petitions that challenged Juvenile Justice Act and its several provisions as unconstitutional. The apex court had also turned down the demand for reduction of age of juvenile from 18 years to 16 years when the government stated that there is no proposal to reduce the age of a juvenile.

Subsequently, there are certain child rights activists that have warned the laws makers against the consequences of pitting women’s rights against child’s rights. Their concerns may be genuine yet they also need to reconsider the fact that the total number of rapes committed by juveniles has more than doubled from 485 in 2002 to 1,149 in 2011!

The Terror Angle

Moreover, rape by itself is just one form of heinous crimes. What about murders? Consider the gruesome killing of a 19-year-old boy by five minors, all school dropouts, in a busy Delhi market area in broad daylight on Wednesday – the day the cabinet gave its nod to the JJ Bill, 2014! On a more serious level, the whole issue of the juvenile justice system needed a re-look also in light of terrorism trends. In July this year, interrogations of a terrorist in Jammu and Kashmir brought to light a rather disturbing fact that Pakistan-based terrorist organisation Lashkar-e-Toiba a had asked its members to declare their age to be below 18 years so as to ensure that they were tried under the Juvenile Justice Act instead of the Indian Penal Code (IPC), if caught in India. The reason – The maximum punishment under Juvenile Act is three years.

Doesn’t the revelation of the LeT operative also emphasise another trend – organised gangs recruiting juvenile operatives? So, does it come as a shocker that there has been a 65 per cent spurt in the involvement of juveniles in serious crimes in India?

This explains why underage accused of heinous crimes such as rape and murder should be treated on par with adults. This also explains the concerns of the apex court when just last month, it remarked “You can’t have a cut-off date for crime”, while questioning the blanket immunity enjoyed by underage offenders.

Yet, even as we discuss the merits/demerits of the proposed bill and its impending criticism, it would be interesting to study how developed nations, particularly the US and the UK, treat their juvenile criminals.

Separate Courts for Juveniles in France, UK and the US

We find France UK and many states of the USA having separate courts for trying juveniles charged with serious offences. (A provision that the proposed Indian law seeks to make!).

In England, juveniles are generally tried in a youth court. If a juvenile is a co-accused along with an adult, then both offenders are tried in an adult magistrates’ court. Yet, there are also provisions to try juveniles as adults in Crown Court for “grave crimes”. The law there adequately provides that a murder convict who is aged under 18 shall be sentenced to be detained “at Her Majesty’s pleasure”.

Juveniles convicted for sexual or other serious offences carry a maximum penalty of 10 years’ imprisonment or more and those who are considered by the court to be dangerous may face detention for life. In case of “serious” offences other than murder, the juvenile offender may be sentenced up to the adult maximum for the same offence, which may be for life.

In the USA, cases involving juveniles could be transferred for criminal (adult) prosecution. In a paper Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction,(Published November 6, 2013) researcher Christopher Slobogin of Vanderbilt University – Law School noted that the number of juveniles transferred to adult court had “skyrocketed in the past two decades” in the USA. It is also interesting to note that till March 2005, juvenile criminals were even sentenced to death and it was on March 1, 2005 that the US Supreme Court abolished the death penalty for convicted killers who committed their crimes before the age of 18. At that time the 72 inmates on death rows were juveniles when they committed their crimes.

It would also be pertinent to point out here that in our neighbouring Pakistan, the Juvenile Justice System Ordinance could not even be implemented for over a decade.

In this context, the proposed Indian JJ law has much precedence. Yet the need of the hour is that the government takes all stakeholders, UNICEF in particular, into confidence given the sensitivity of the issue.