Juveniles – The criminal who happen to be young

[Volume 2, Issue 2] – February, 2017

Author – Ankur Taneja, B.Com., LL.B., (3rd Year), Symbiosis Law College, Noida

There is a quote by a renowned American author and Professor Issac Asimov,

“Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition.” 

Before talking on who a juvenile is, I would first like to explain why I am discussing this issue here. Well, juveniles tend to be the youth of today as well as tomorrow. Juvenile in conflict with law is one of the most important issues which need to be dealt with. It is an issue which seems is always going to exist in our society. The change in the level of exposure and social environment has resulted in corroding the mindset of the juveniles, so much so that its treatment has become next to impossible. Moreover the current juvenile justice system neither provides rehabilitation of juvenile offenders, not does it create deterrence among the potential ones.

But who exactly are juveniles? On hearing the term juvenile, the first thing that pops into our mind is a young criminal child. But legally, juvenile has got a precise definition. According to section 2 clause (k) Juvenile Justice (Care and Protection) Act, 2000((Juvenile Justice (Care and Protection of Children) Act, 2000 Wikipedia, https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2000 [last visited Jan 25, 2017])), juvenile means a person who has not completed the age of 18 years. In very simple terms, it would mean all the children below the age of 18 years.

Juvenile in conflict with law is one of the major problems of 21^st century. But, this does not mean that it did not exist in 19^thand 20th century. In the previous centuries, the delinquents were less in number. So, the authorities were indifferent towards the delinquents and their treatment. However, in the late 19^th century, due to distressing state affairs, need for proper reformatories for the delinquents were felt. This was felt not only in India, but in most parts of the world. In India, the beginning of juvenile justice machinery began with the Apprentice Act, 1850 which enabled the courts to prevent the children below 18 years from imprisonment((Juvenile Justice System & its Delinquency in India Legalservicesindia.com, http://www.legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html [last visited Jan 25, 2017])). The court had the power to bind the children between 10 and 18 years as apprentices. This act later became a part of Indian Penal Code, 1860.

In 1920, Madras was the first presidency town to come up with Madras Children Act which dealt with the custody, trial and punishment of young offenders. In the next 20 years, several children’s’ act was passed. Almost all the states, apart from Meghalaya, enacted children Act before 1986. However, the legislation of The Juvenile Justice Act, 1986 replaced all the Children Act. According to the Juvenile Justice Act, 1986, Juvenile was considered to be a boy below the age of 16 years and a girl below the age of 18 years. This act was further amended in the year 2000 and the new act came to be known as Juvenile Justice (Care and Protection) Act, 2000. This act obliterated the variation on the basis of sex and stated juvenile to be all the children below the age of 18 years.

Now, talking about the theoretical aspect of this law, it stated that a juvenile cannot be held responsible for his criminal act because he is not mature enough to distinguish between what is right and what is wrong. It placed emphasis on two aspects: first, the gravity of offence i.e. how criminal the act of a person is and second, the circumstances responsible for commission of his act.

Discussing about this, I would like to say law is absolutely right. But, it was right a few years back. With the change in the level of exposure and social environment of the children, the acts of the juveniles are becoming more and more cruel. So keeping this into consideration, the stringency of juvenile law is the need of the hour.

The Juvenile Justice Act was enacted in the year 2000 to do away with the deficiencies that the Act of 1986 had. The Central Governmnemt had passed a new act by the name of Juvebile Justice Act, 2000 after India ratified the Convention on Rights of a Child in the year 1992((Convention on the Rights of the Child, General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990, in accordance with article 49. Available at: http://www.ohchr.org/en/professionalinterest/pages/crc.aspx [ Last Visited on 24^th Jan, 2017])).This was done with a view to include those principles which were decided in the Convention and further make the judicial system for children compact and one which fault free.

The new act of 2000 had now repealed the The JJA Act, 1986 and a change was made with regard to age between male and female juveniles. The age of juvenile in conflict with law for male and female had been fixed at 18 years.

There are a number of causes responsible for juvenile delinquency, the first and foremost being Urbanization. The shift in the habitat has exposed children to a world that is cruel and brutal. Media should also be held responsible for polluting young minds. The second factor is family. Lack of positive communication by guardians is a major factor resulting into juvenile delinquency. A child hears things from his parents and on the basis of that, he differentiates between what is right and what is wrong. The next factor is neglect. Every child needs love, affection and attention but when these are unavailable the child seeks other ways to satisfy himself and this often leads to indulgence in crime. Biological factors also contribute to delinquency. There are several children who attain puberty early and when the child does not get a proper guidance in such a scenario, then delinquency is likely to develop. The socio-environmental factors are also essential in contributing in delinquency. Whatever a child sees and hears, he learns the same and adapts himself accordingly. And this affects his behavior and temperament. The last two factors, poverty and illiteracy, can be clubbed together. This is because poverty and illiteracy go hand in hand. All these factors have transformed a juvenile into a delinquent. 

According to National Crime Records Bureau, on classifying the delinquents on the basis of economic status, we can see that families that have income Rs. 25,000 or less constitute a major part of juvenile delinquents. This is because parents are unable to send their children to schools resulting into lack of education.

Moreover, children who have attained education more than primary schooling but less than higher education are the ones who have the tendency to be more delinquent. This is basically because at this age, they attain puberty and if all the factors, some of which I discussed above, are not appropriate, there are chances of a child becoming delinquent.

With such a rise in the number of delinquents, the question arises: is our Juvenile Administration effective enough to deal with them? The answer is NO. Our Juvenile Administration is not effective enough. The first major problem is lack of sufficient number of Juvenile courts in India. Most of the states are yet to have Juvenile Justice Courts to cover all the districts as required under Juvenile Justice Act, 2000. The second major problem is of course the time effectiveness. The legal procedure in dealing with these cases are so time taking that years pass by but judgment is not passed. Neither the accused gets punishment, nor does the victim get justice.

Saying punishment, two major things come in my mind- the sort of punishments delivered and the sort of punishment ought to be delivered. In the three cases, the Delhi gang rape case((2012 Delhi gang rape Wikipedia, https://en.wikipedia.org/wiki/2012_Delhi_gang_rape [last visited Jan 22, 2017])), Shakti Mill gang rape case(( 2013 Mumbai gang rape Wikipedia, https://en.wikipedia.org/wiki/2013_Mumbai_gang_rape [last visited Jan 22, 2017])) and Om Prakash vs. State of Rajasthan((Om Prakash v. State of Rajasthan, (2012) 5 SCC 201)), two things were common- gruesomeness of the crime and juvenile delinquency. The accused, the juveniles, the sex-starved goons in the shape of humans, max to max, were a year younger to be declared an adult. But, their mental maturity was like an 18 year old human being. So here I raise a question. Does a 17 year old have less reasoning power than an 18 year old? According to me, this 17 and 18 are mere numbers. In today’s conditions, these numbers should not be given importance to justify mental maturity of juveniles.

In the present scenario, the laws emphasize on reformation of delinquents. But, should the punishment actually be reformative, i.e. Stressing on reformation of delinquent, or should it be retributive, i.e. Giving punishment in proportion to the gruesomeness of the crime? Well, I personally feel that it’s high time now. Laws should be amended. Along with reformative punishments, stress must be placed on retributive punishments. However, whether the punishment would be reformative or retributive, it would depend on the act of the juvenile delinquent. And so here goes the saying, as you sow, so you reap. The more heinous the act is, the harsher the punishment gets. And this, according to me, would be just in the current environment.

Countries all around the world, such as US, UK and France have realized the need for change and have acted accordingly. US Juvenile Justice System involves both incarceration as well as alternative schooling programs. In UK, children between 13 and 15 years who commit crime are tried under Youth Court((Youth Offenders: Legal Guidance: The Crown Prosecution Service Cps.gov.uk, http://www.cps.gov.uk/legal/v_to_z/youth_offenders/ [last visited Jan 24, 2017])) and if the crime committed is serious, the case is transferred to Crown Court. Similarly, in France, if a minor between 13 and 18 years commits an offence, punishment can be educational as well as criminal, in special circumstances((Comparative juvenile criminal law Wikipedia, https://en.wikipedia.org/wiki/Comparative_juvenile_criminal_law [last visited Jan 23, 2017])).

Now time has come for India to amend its laws. Infamous occurrences have already happened. And if no action is taken now, worst may happen.  Actions for preventing juvenile delinquency must also be undertaken. Early phase intervention represents one of the best approaches to prevent juvenile delinquency. Punitive punishments must be given importance to frighten the potential offenders. Development programmes, professional training and vocational education are the areas which can prevent delinquent activities. Arlen Specter, a United States Senator from Pennsylvania, quoted, “when the students are occupied, they are not juvenile delinquents. I believe that education is a capital investment.” Involvement of NGOs can also help in preventing juvenile delinquency. The provision of basic amenities should also be included in preventive measure. Last but obviously not the least, check on exposure is an important method of dealing with juvenile delinquency.

After dealing with all the important topics on Juveniles, the most important question is- why to bring this issue in the glare of publicity. When the report of Justice Verma Committee was rejected, when government did not feel right to approve his report, when the bench felt it would be just to send the 17 years and 6 months old juvenile in a reformatory home for 3 years for such a heinous act, rather than punishing him, why should this topic be brought again and again into limelight? Well, this issue is something which might be suppressed for some time period. But then, in a long run, incidents will happen again and again which will definitely question the existing laws. What has made the situation worse is that our present juvenile justice system neither provides reformation nor does it fulfill the purpose of deterrence against future crime. So before it’s too late to act on it, it would be better if we take action now.

Thus, there is an urgent need to bring a change in our society. The Juvenile Justice Act was passed in 2000 with the purpose of incorporating into domestic law India’s obligations under international law as a signatory of United Nations Convention on the Rights of the Child, 1989, United Nations Standard Minimum Rules for Administration of Juvenile Justice, 1985 and United Nations Rules for Protection of Juveniles Deprived of their Liberty, 1990. Underlying these international texts is the legal philosophy that juveniles lack physical and mental maturity to take the responsibility for their crimes because they are not fully developed. They believe there is still a possibility of them being rehabilitated.

However, the interest in protection of juveniles has to be balanced with the interest of protecting vulnerable members of society from violent crimes committed by persons less than 18 years of age. I personally feel that there is a vital need to amend the law when societal conditions are radically changing over time. As per the reports of the National Crime Records Bureau, the violent crimes by juveniles against women are very troubling. ‘Crime in India 2011’ suggests that the number of rapes committed by juveniles have more than doubled over a past decade from 399 rapes in 2001 to 858 rapes in 2010 whereas ‘Crime in India 2012’ records an increase from 485 rapes in 2002 to 1149 rapes in 2011(( Balancing the juvenile act The Hindu, http://www.thehindu.com/todays-paper/tp-opinion/balancing-the-juvenile-act/article5108496.ece [last visited Jan 18, 2016])). Comparing both the data, we derive that there is a substantial rise in the number of rapes by juveniles by nearly 300 between 2011 and 2012 itself, which is almost as much as the increase over the entire previous decade. This proves the inevitability to make amendments in the Juvenile Justice Act.

Several other countries like U.S. and U.K., both being the signatories to the United Nations Convention, have also faced an increase in aggressive crimes by juveniles. But unlike India, they have taken action to amend their laws. In most states of U.S., the case of a juvenile above a certain age, usually 13 to 15 years, gets transferred to adult court if he or she commits a serious crime. Similarly, in U.K., the juvenile is tried in the Youth Court which is a special type of magistrate’s court for those aged between 10 to 18 years. The Youth Court can issue community sentences, behavioral programmes, youth detention and rehabilitation programmes which last for three years.

Juvenile courts focus on rehabilitation unlike adult jails and prisons, where criminals are subject to incarceration and a much harder sentence. While rehabilitation is certainly an indispensable legal and societal objective, this interest needs to be balanced with creating a legal deterrent to protect women and girls from increasing incidents of serious crimes by juveniles.

Observing the rise in inhuman crimes by juveniles against women, there has been innumerous arguments for lowering the age of juveniles committing heinous crimes. Some of the lawyers and activists are with the motion, while others are against it. For the experts who affirm that the age should not be reduced, they are of the opinion that the juveniles are not mature enough to commit such horrific crimes themselves and are lured by elders to the world of crime. But taking into consideration the 2012 Delhi gang-rape case, a 17 year old boy was one of the persons out of 6, who thereby allegedly gang raped a girl and later on crossed all the limits of brutality.  It was he, the 17 year old, who brutalized Nirbhaya by inserting an iron rod in her private parts. If this example is to be taken into consideration, the above argument gets revoked. Another case which came into limelight was the 2013 Mumbai gang-rape case. This is not just the end. If enlisted all the serious crimes committed by juveniles such as rape, murder, etc., it would be infinite.

However, there are lawyers who believe that the age should be lowered. Mr. Najeeb Jung, who took over recently as Delhi’s Lieutenant Governor cited on 2012 Delhi gang-rape case, “the juvenile age should be lowered to 16 years at least. These days’ young people mature much early. Even if juvenile age is lowered to 14 years, there would be nothing wrong with that.”((What is the Age of Responsibility? Governing.com, http://www.governing.com/topics/public-justice-safety/What-is-the-Age.html [last visited Jan 22, 2017]))

According to my opinion, the age of juveniles should be lowered to 16 years. However, it should be lowered only for serious crimes like rape, murder, acid attack, etc. and juveniles should be tried under normal procedures. Such crimes committed by juveniles between 16 to 18 years should be treated as crime by adults. There are lawyers who assume lowering the age would do more harm than good. But, if the juvenile offenders are mature enough to commit such heinous crimes, they must be mature enough to face consequences.

The juveniles, in the present scenario, are highly exposed to the surrounding comprising sex, drugs, social networking, etc. due to which they become mature before age and are in a position to commit crimes. Thus, apart from considering the age factor, while giving a judgment, the mental maturity of a person and his ability to understand and comprehend the situation must also be given importance. The accused, if at the borderline of adulthood, commits heinous crimes, they must be booked under stricter laws.

The United Nations Standard Minimum Rules for Administration of Juvenile Justice, 1985((http://www.oijj.org/sites/default/files/paper_oijj_re-_revised.pdf [last visited Jan 20, 2017])), also known as Beijing Rules, provides that the reaction shall be in proportion to the circumstances and gravity of the offence as well as the needs of the juvenile and the society. It does not fix 18 years as the age of a juvenile. Instead, it provides rules which are applicable to the persons between 7 and 18 years. Therefore, international legal obligations of India do not prohibit it from amending the Juvenile Justice Act to provide that the persons between 16 to 18 years committing heinous crimes shall be tried in the adult criminal justice system and not by the Juvenile Justice Board.

It is very unfortunate to say that the current system neither provides rehabilitation to the juvenile offenders, nor does it fulfill the purpose of deterrence against the future crime. The crime in India is on extreme rise, and it should be tackled with stricter laws, even if it requires reduction in the age limit.

“A child is born innocent and if nourished with tender care and attention, he or she will blossom with faculties’ physical, spiritual, moral, mental, into a person of stature and excellence. On the other hand, noxious surroundings, neglect of basic needs, bad company and other abuses will spoil a child and would likely turn him into a delinquent”.

At last, I would conclude by saying a quote by William Godwin, “It is probable that there is one thing that it is of eminent importance for a child to learn. The true object of juvenile education is to provide, against the age of five and twenty, a mind well regulated, active, and prepared to learn. Whatever will inspire the habits of industry and observation, will sufficiently answer this purpose.” (([21St Century Testament]))

But before leaving, I would like to pose a question to all of us, and also our leaders sitting in the respective legislative houses – If not now, then when? If not here, then where? And if not us, then who?