JUVENILE SHOULD BE TREATED AND TRIED AS ADULTS IN RAPE CASES

INTRODUCTION

‘An innocent mind cannot have a guilty mind’, this statement had been followed in every legal aspect but if an innocent mind is contaminated, then can it be considered guilty? The Indian justice system consists of reformative method too, i.e., a convict will be imprisoned for the crime he commits; based on the nature of the crime the time period of imprisonment is fixed. In cases that involve a juvenile (a young person who is psychologically underdeveloped),  there are special courts to handle them like juvenile justice boards or juvenile courts. These kinds of courts presently follow the procedure of Juvenile Justice (Care and Protection of Children) Act, 205 and The Code of Criminal Procedure, 1973 but before the passing of the Juvenile Justice (Care and Protection of Children) Bill 2014, the Juvenile Justice (Care and Protection of Children) Act, 2000 was followed.  Many changes happened between the 2000 and 2015 Act, which will be discussed further.

HISTORY OF JUVENILE JUSTICE BILL, 2014

The 2012 Delhi Gang rape case was not only devastating but unbelievable. A 23 year old female was beaten, gang-raped and tortured in a bus while she was travelling with her male friend. Six people including the driver of the bus raped her and also beat her friend.

The gang rape was so heinous and outraging, the whole case got a huge media coverage all over India as well as abroad. 11 days after the assault the female victim was transferred to hospital in Singapore for immediate treatment but two days later she died.

This case led to a huge protest against the government to provide adequate measures for women’s safety. The six convicts out of which 5 were adults were convicted for sexual assault and murder. One of the convict committed suicide in Tihar Jail while the rest 4 were hanged  on 20th March 2020. One of the accused was a few months younger than 18 years of age and was tried under the juvenile court, which resulted in 8 writ petitions challenging the act but in 2013 Supreme Court held the Act to be constitutional. Later on, people demanded for reducing the age of juvenile from 18 to 16 years which was also turned down by the Supreme Court at the time.

In 2014, Maneka Gandhi introduced a bill to the Parliament for the reduction of juvenile age from 18 to 16 years which was cleared by the Cabinet in 2015 after some changes and was passed by the Lok Sabha on 7th May 2015.

CHANGES IN JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT

There are considerable amounts of changes in the act through the bill which actually helped in improving the nature of the act. The changes of the act are as follows:-

● The Act amends the nomenclature from ‘juvenile’ to ‘child’ and ‘child in conflict with law’. It also removes the negative connotation associated with the word “juvenile”.

● It also contains some new and precise definitions, including orphaned, abandoned and surrendered children and petty, severe and heinous offences committed by children.

● Special guidelines are used to deal with juvenile criminals who commit abominable offenses between the ages of 16 to 18.

● It facilitates the establishment, in each district, of juvenile justice boards and child welfare committees. At least one woman each should be a member of both.

● A new chapter is introduced on the adoption of orphan, neglected and abandoned children to optimize adoption procedures.

● A status of a statutory body was granted to the Central Adoption Resource Authority (CARA) for the better execution of its role.

● The Act stipulates that the adoption of a child by a court shall be final. 629 adoption lawsuits in different courts are currently pending.

● The Act included many new offences against children (such as unlawful adoptions, use by terrorist organizations of children, offenses against disabled children, etc.) that are not safeguarded by any other statute.

● The compulsory registration under the Act shall be made within 6 months from the implementation of the Act for all Child Care Institutions, whether run by the State Government or by voluntary or non-governmental organisations.

CRITICISM OF THE CHANGES

The bill was criticized by many Child Right Activists and Woman Rights Activists, stating it to be a regressive change. Even member of the parliament, Shashi Tharoor argued that the law was in violation of international principles, and most children who violate the law came from families of the underprivileged and illiterate. He said that instead of being punished they should be educated.

CONCLUSION

The human brain continues to develop until the age of 18, as according to various experts. The core of the interpretation is that research also indicates that at the age of five, the human brain develops 85% of its personality, ability and intellectual capacity, recognizes anti-social behavior and has developed cognitive faculties, so considering these facts Juvenile Justice Act, 2015 is justified and no international law prohibits India from treating minors as adults under considerable circumstances.

The Nirbhaya case, Shakti Mills case, Hatigaon Rape case, Mayur Vihar Murder case, Mercedes Hit and Run Case etc all are infamous crimes committed by juveniles. All crimes are heinous in nature, knowledge of good and bad is developed by the surrounding of the child, a child’s personality development is enough to ensure whether he knows the difference between right and wrong. Considering the amount of rising cases with juvenile involvements in those cases, and the explicit nature of the crime, the validity of the act need not be questioned as it is based on progressive theory for the benefit of the society.

The law never outlooks the state of the mind of a person while committing a crime and based on which the punishment is provided to the convict. The nature of the crime like rape, provides full awareness and knowledge of the act, considering this fact that a 16 year old have a knowledge of the performance of sexual act, he have sufficient amount of maturity and understanding of the crime to form mens rea and thus should be treated and tried as adults in such cases.

[The author is Deeksha Karunakar, 4th year law student of Law College Dehradun, Uttaranchal University.]

● Juvenile Justice Act (2000) <https://indiankanoon.org/doc/148942/>accessed April 21, 2020.

● Juvenile Justice Act (2015) <http://cara.nic.in/PDF/JJ act 2015.pdf> accessed April 21, 2020.

● Mukesh & Anr v. State for NCT of Delhi & ors[2017] 6 SCC 1.

● “Juvenile Justice Act: Government Gives Nod for Proposal to Try 16-18 Year Olds under Adult Laws” (DNA IndiaApril 22, 2015) <https://www.dnaindia.com/india/report-juvenile-justice-act-government-gives-nod-for-proposal-to-try-16-18-year-olds-under-adult-laws-2079805> accessed April 21, 2020.

● Ani, “Cabinet Approves Amendments to Juvenile Justice Bill” (Business StandardApril 22, 2015) <https://www.business-standard.com/article/news-ani/cabinet-approves-amendments-to-juvenile-justice-bill-115042201237_1.html> accessed April 21, 2020

● Drishti IAS, “GoM Reviews Amendments to the JJ Act, 2015” (Drishti IASFebruary 22, 2020) <https://www.drishtiias.com/daily-updates/daily-news-analysis/gom-reviews-amendments-to-the-jj-act-2015> accessed April 22, 2020

● Johnson SB, Blum RW and Giedd JN, “Adolescent Maturity and the Brain: the Promise and Pitfalls of Neuroscience Research in Adolescent Health Policy” (The Journal of adolescent health : official publication of the Society for Adolescent MedicineSeptember 2009) <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2892678/> accessed April 22, 2020