The role of juvenile in the Delhi Gang rape case and the helplessness to punish him proportionately led to a lot of academic writing and PILs demanding a change in legal regime for children involved in such brutal acts. In Salil Bali v. Union of India, the Supreme Court held that no judicial interference is required in the present law i.e Juvenile Justice Act (JJA) 2000, although it clearly accepted that children of the age group 16-18 tend to generate criminal propensities.
In JJA 1986 (repealed by JJA 2000), the age of juvenility for boys and girls was kept 16 and 18 respectively. The age of juvenility for boys was increased to 18 by JJA 2000 to make Indian Law at par with international conventions in this context. It cannot be ignored that there has been a considerable increase in the level of intellect, ability to perceive-grasp-act, comprehension standards and mental growth of children in the last two decades. Functional abilities of children have also by no chance decreased from 1986 to 2000 to 2013. Rather, they too have increased and with it, the level of criminal acts by juveniles has also increased. It definitely is dangerous to the citizens if the state fails in its duty to treat such offenders proportionately to the offence committed relaxing the absolute age restraint.
Although active involvement of juveniles in committing brutal crimes has not crossed the rubicon, but still it is much needed in the present situation that the state lays down a separate ‘trial and subsequent punishment policy for the age group of 16-18 years for offenders convicted for grave offences’ e.g rape, acid attacks, murder, offences against dignity of women, habitual and repetitive offenders etc. Considering high possibility of chances of reformation & the inhibition mentioned in JJA 2000, they can not be given life imprisonment or death, but a mere sentencing for 3 years at the maximum in special establishments cannot be termed to be a proportionate punishment.
For a particular age group and particular set of offences, a rational policy decision will be to enhance the upper limit of sentencing from 3 years to 7 years. A longer period of counseling and rehabilitation is inevitable for such offenders. Even after the counseling is over and such juvenile is restored in the society, a monitoring should be undertaken for at least a year to effectively implement the laws and achieve the object sought.
This policy will orchestrate a solution by not treating them completely as juveniles and also by not treating them completely as adults. It may be made operative through courts similar to special ‘Youth Courts’ in England & Wales, New Zealand etc and the ‘Teen Courts’ in various states of USA which though are magistrate’s courts yet act different from normal courts of law as well as the juvenile boards.
We can give similar powers to the magistrates in India to try such offenders to exercise their jurisdiction as a ‘Youth Court’ instead of an adult’s magistrates Court. Discretionary powers may also be granted to such Courts (which also take up evidences to approve juvenility) to see the seriousness of the offence and then punish proportionately. As for example, the offences of alleged ‘rape’ by juveniles must be distinguished from ‘consensual exploratory sex’ & ‘sexual activities by children in romantic relations’ under such discretionary powers. This will serve the twin purpose of rehabilitation and restoration in the society as well as proportionate punishment to juveniles in conflict with laws.
Moreover, this approach of “age-offence-punishment” distinction is not new altogether. A comprehensive reading of criminal laws i.e. Indian Penal Code in Sec. 82 (nothing is an offence done by a child below 7 years) & Sec 83 (nothing is an offence done by a child within the age group 7-12 years of insufficient maturity) , Sec. 27 of the Criminal Procedure Code (Power of a Chief Judicial Magistrate to try offences done by children below 16 years), sec 8(4)(age division for sending juveniles to observation homes) & 16(1)(juvenile offenders of age 16-18 who have committed serious offences to be kept at different place) of JJA, 2000 and Constitutional provisions clearly shows that the distinction is already present for & in between age groups 0-7, 7-12, 12-14, 14-16 & 16-18 years, & it only needs to be channelized properly by a simple amendment.
Under our Constitution, there is no express guarantee of “right not to be criminalized”. The brutal acts committed by juveniles are very harmful to the society but still under the current law, they somehow claim this right. Therefore, the state is duty bound to act through either of the two limbs of the constitution i.e. the Parliament or the Supreme Court (in its judicial activism), to amend or introduce provisions regarding proportionate punishment to juvenile offenders who commit serious offences.
Recently, the Delhi Police has apprehended two juveniles in the Danish tourist gang rape case. Penology is society’s response towards crimes in a democracy, but to add to our demise, ours has time and again proved to be a pseudo democracy! Even if their active participation is proved, our law disables itself from punishing them proportionately irrespective of what society demands.
It remains to be seen whether steps are taken soon enough to enact and implement a policy or the issue fades away waiting for another unfortunate happening.