LAW FOR JUVENILE : IS IT REALLY ABSOLUTE ?

BY – MADHUSHREE PAUL

WHO IS A JUVENILE?

The dictionary meaning of the term “Juvenile” is “Youthful”; “of or For young people”; “often immature”; “an actor playing a juvenile part.” So Juvenile Law deals with law for such people who are mentioned above.

According to the legal terms, a juvenile is an individual belonging to the age group of 16 to 18. They are not minors and not adults either, but floating between the two. The term is specifically used to define a “child” who unlike adults, cannot be held liable for his crimes. The reason being that the child has not reached the prescribed age to be held liable.  

Crimes in India have an exclusive spectrum of its own, stretching from mere pickpocketing all the way to assault, rape and murder. There are cases of people being burned alive just because of their skin complexion. Like seriously! Not kidding! Straightaway set on fire. Check this out:

“She’s fair. He’s dark. So, Bareilly wife sets husband on fire”

This is just one of the numerous examples showing that to commit a crime one does not really need a valid reason. It could be something as simple as snoring and one of the spouses kills the other, or like this case, the wife couldn’t just sign herself up for a divorce. She had to go as far as burning her husband up. 

The most unjustifiable crime that is committed in our country is “Honour Killings”. There are numerous cases to uphold the ground. A lot of times the perpetrators for these killings are minors and teenagers. The family members or the community feels at peace with the fact that a minor boy has been tasked to kill a person probably tarnishing the “honour” of the community. And the children also feel it’s honourable to contribute to honour killings. The concept “Honour killing is Honourable” is embedded into their little heads.

So, when does the juvenile comes into the scene?

 There is still always a reason (only reason and not justification) as to why someone would commit such crimes, specifically the juveniles. It is important to understand that no one is born with criminal tendencies, there is always a reason behind the committing of such crimes. It could be because of hatred towards others, frustration, fear, peer pressure, or it could be something as clichéd as wanting to prove masculinity, which is an accepted challenge in a society powered by patriarchy. It could be economic problems, social abuse, physical and mental torture, drugs, sexual drive and most importantly lack of communication. Children who do not have any parental guide tend to follow along this road and children who do have parental guide also tend to follow along but are less in numbers. But no crime should go unpunished, specifically crimes of heinous nature, crimes that tend to steal away one’s virtue. 

Now, this is where the whole concept of juvenile justice gets a bit, a teensy bit confusing. The conundrums begin here:

READ ALSO : CHILDREN DEATHS AND HEALTH CRISIS IN INDIA

HOW DOES ONE RECOGNIZE A JUVENILE? 

Post-independence, due to the disturbing amount of chaos rummaging around all throughout India, minors and teenagers had a tendency to incline and get involved in crimes and usually did commit criminal offences under nobody’s command. The first act passed in independent India was The Children Act, 1960. This Act specifically provided for the protection and care of neglected children also making sure that they get better homes and get sufficient nurturing. It introduced sex discrimination stating the age group to which delinquent children would belong, “Child in case of a boy is below sixteen and in case of a girl is below eighteen.” The Juvenile Justice Act, 1986 deals with Law For boys under the age of 16 to be juvenile and For girls, the age limit was 18 years.

Later in 2000 Juvenile Justice (Care and Protection) Act, 2000 provided a uniform age of 18 years for both girls and boys but in 2014 a bill was introduced to replace the prescribed age, stating that juvenile criminals in the age group of 16 – 18 years can be tried as adults for serious crimes. It was dismissed without a second look.

The “quantity” and “quality” of crimes committed by minors and teenagers have been increasing day by day. At times minors just about to attain majority commit these crimes in hope that they won’t get tried at all because they are not eighteen. According to the National Crime Records Bureau report, in 2014, the highest number of minors were apprehended for thefts (8,863), criminal burglary (3,802) and rape (2,144).

As far as the Law is concerned, to know if one is a juvenile or not, the only requirement For that is his or her age, if they belong to the prescribed age, that shall pass them as a Juvenile. Then again, if we go with the dictionary meaning, a juvenile is youthful, generally, a minor or acting the part of a juvenile, pay more attention here, “Acting the part of a juvenile?”

Unfortunately, there seems to be an enormous blind spot that none of these acts took into heed. The “blind spot” is the age group provided for both boys and girls that has been stated, is an exact whole number. 

Eighteen is eighteen. Period. 

What if the delinquent juvenile is 17 years and 6 months old, just short of 6 months into becoming an adult as far as the law suggests? What if the Juvenile had committed the heinous crime of rape and when that did not suffice him and his inmates, went as far as shoving an iron rod into the vagina of his victim?

“The Nirbhaya Case” – The incident that shook India.”

After 9 months of such an abominable act, the “Juvenile Delinquent” was sentenced to a correctional home for 3 years. After 9 months. During which he attained majority. Since the number is at play here, the convict was 18 years and 3 months old. Yet, he was tried as a juvenile. Because it was so clear that he was not thinking properly, probably was going through some mental disturbance, such mental disturbance that he decided to commit such actions. He was tried as a juvenile even when he attained majority because at the time of the offense he was just a minor, a child, who doesn’t understand a thing about right or wrong. A 17 year and 6 months old child. And the sad truth is that in our Law this is not the first time that an individual has been let go For being a Juvenile because he is not 18. Does this resonate a fair declaration, especially if the accused is just 3 months away from becoming an adult? Does 6 months from being an adult makes a person equivalent to one who does not have a sound mind and does not know how to make decisions properly? 

The Nirbhaya case acted as a trigger to protests and public outrage, that led to the amendment in 2015 of the Juvenile Justice Act, 2000, which states that any person who has not attained the age of 18 years is a child though, there are, in fact, two additional provisions so that children committing such crimes can be tried accordingly. These are:

  1. child in conflict with the law;
  2. child in need of care and protection.

READ ALSO : THE IRONY IN THE UPCOMING CITIZENSHIP AMENDMENT BILL

CLAIM TO JUVENILITY – A POSSIBLE ARBITRATION OR A BLIND SPOT?

 Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 also provides for “claim to juvenility”

The juvenile justice board has to decide the claim of juvenility before the court proceedings but the claim of juvenility can be raised before the court at any stage of the proceeding and even after the disposal of the matter by the Board. The board has to consider Rule 12 of the Juvenile Justice Rules, 2007 in order to determine the claim of juvenility.

In Raju v. the State of Haryana, Criminal Appeal No. 1175 of 2014, The Supreme Court opined that “the date of birth of the appellant was 12.07.1984 and as such he was aged 16 years, 2 months and 2 days at the time of the commission of the offence dated 14.09.2000. in such circumstances… no doubt that the inquiry conducted by the Registrar (Judicial) upon the direction of this Court in the instant matter amounts to an inquiry conducted by this Court itself, and is conclusive proof of the age of the appellant as provided in Rule 12(3) of the 2007 Rules.”

In the case of Gaurav Kumar @ Monu Vs. State of Haryana [Criminal Appeal Nos.283-285 of 2019 arising out of SLP (CRL.) No.2366-2368 of 2015] where the accused was charged under sections 326, 506, 148, 149, 170, 171 and 302 of the Indian Penal Code had appealed for a claim of juvenility but the accused was found to be of 18 years at the time of commencement of the offence and the application was dismissed.

But in the case of Arnit Das v. the State of Bihar, the Supreme Court held that the date to decide in the claim of juvenility should be the date on which the accused is brought before the competent authority. Which is, in fact, a very valid point to be acknowledged and opens gates to all possible situations where a juvenile can be tried as an adult. But then again, what if the accused is 17 years and 9 months old when he committed the crime and is charged for the crime a month later, and is brought to the authority when he is 3 weeks short of attaining majority? 

There are numerous cases providing relief to the accused based on his age. There are other Juvenile who have been tried as adults under our Law For the numerous no. of cases as well, but that is the biggest conundrum of all. Should it all be based on age? A whole number that shall decide whether a person is to be tried as a juvenile or an adult? A whole number that shall either send a person to a reformative home for three years or gets punished as has been prescribed by the Indian penal code.

Now if thought For the betterment of the Juvenile which is necessary For the society this Law shall be the biggest and most sensible arbitration of all, determining the age and sending the juveniles off to reformative homes to become a good human being, learn the difference between right and wrong and build conscience. But that is all, there isn’t more. That is the only 3 years the juveniles have to endure. And what if the juvenile is still not fit to walk between innocent people because he still hasn’t got his bearings right? What if for three years all he thought was when he would get out and punish the people who put him in there in the first place. Nothing is impossible. And then the law might say that this time if he commits a crime he shall be punished as an adult. But that doesn’t really cover the whole prospect of a reformative home. If the juvenile is still instilled into his crimes and the sheer drive of pleasure it gave him, he will go out and repeat it again. What is the point then?

What if the children in the age group of 16 to 18 are committing crimes by just acting the part of “juvenile” as was suggested by the dictionary meaning? Maybe the future amendments (if any,) should take the dictionary meaning literally.

READ ALSO : PERKS OF BELONGING TO THE LGBTQ COMMUNITY

IS THERE A SCOPE OF ARBITRATION AT ALL?

The mere fact that the Juvenile justice Law is based on the simple psychological fact For as to how a brain works, which is a continuous clash with the other fact that most minors commit crimes and think they’ll get away with it. What is actually needed is specific laws that do not pose a whole number at someone’s age but gives the scope to understand one’s mind and introduces strict reformatory, retributive care for the juveniles.

“The provisions of Sections 82 and 83 of the Indian Penal Code have been placed to contend that while a child below 7 cannot be held to be criminally liable, the criminality of those between 7 and 12 years has to be judged by the level of their mental maturity.” Dr Subramanian Swamy And Ors vs Raju The Member Juvenile Justice. In this particular case, a young lady (of age 23) and her friend were sexually assaulted by five men out of which one was a Juvenile. The four adults were found guilty of their crime and were sentenced to capital punishment. The Juvenile was to be tried in the Juvenile justice board when the petitioner appealed a writ to the High Court of Delhi, stating that the Law giving criterion For 18 years does not constitute for grave and heinous crimes, crimes, in particular, that shakes the humankind, to at least adjudicate the juvenile under the prescribed punishment in the Indian Penal Code. The appellant also stated that by not punishing the juvenile, it was violating her fundamental rights as a victim.

The High Court dismissed the writ as it was against the order of the Juvenile Justice Board and that retributive remedies should be applied first rather than jumping into punishing an offender. The examining of the mental maturity For a juvenile, who has committed a heinous crime, is by far the most solid ground of arbitration that could be found in the Juvenile Law of India. Examining the mental maturity of a child will definitely feed the whole numbers introduced by the laws into flexibility, but this has its own problem. As stated above, the criminality of one’s mind, aged between 7 to 12 years has to be judged by their mental maturity. 

Let’s just bring up a hypothetical situation here. There are twin sisters, who are 6 years old, and they are 30 minutes apart. And let’s also bring up one of the devastating situations here, yet which is mostly looked at as “it doesn’t matter”. Let’s, with open arms, welcome the Indian Concept of Skin Complexion. 

Both the parents are working, let’s go a bit deeper and say the father is fair complexioned and the mother has brown skin, beautiful chocolate brown skin. And she’s fair in mind too, for everything else, except, when it comes to skin complexion, brown is in the bottom of the list because, like most kids were thought, “If you’re brown, just turn around” (yes, that rhymes!) and don’t show your face, because you’re not beautiful, and you’re not worth it. Kudos to the fairness promoting advertisements, you’ve done your job too well! Let’s add one last minor detail, the younger twin has inherited her father’s skin, and the older, oh so unfortunate for her, has inherited her mother’s. And now a very, very natural scenario, where the mother is trying to make her older daughter fair because let’s face it, she won’t ever get a job, get a husband, never make friends, it gets even more enjoyable from here when both the sisters are together and everybody is commenting on how white the younger one is and how black (that’s the term Indian’s use) the older one is. The older always is bullied and the younger gets praises.

As of how far the relationship goes, the sisters are best of friends. And that triggers emotional helplessness between both of them, projecting the mere fact of skin complexion into something that’ll bring doom if not corrected soon. So, this one fine day, when the kids did not have to go to school, and since both the parents were working, they were left alone and the younger was feeling sad for the older one and decides to make her fair. Now, a 6-year- old, what sort of magic could one possibly imagine to really come up with a remedy that will change one’s colour? Putting on fairness creams? That’s what the mother has been doing since the past 6 years. Using home remedies to fix the situation? They’re six years old, cannot reach the kitchen cabinets, don’t know how to use a knife, and there’s the possible fear that they’ll cut themselves. What could they possibly do? Well, they always see their mother doing laundry and they even witness it every single day how amazingly and miraculously the dirty, filthy brown school uniforms transform into beautiful whites (mind it, they are desperate!) All the younger sister would need to do is make her sister get into the washing machine and the younger would switch it on. So, the older one-hopped in, the younger on closed the door, and no, she did not forget to add in all the detergent they could use to make the older fair, and the younger started the machine. 

(Although this situation might seem like it is out of context, it really isn’t. Just keep the situation in mind as you read further.)

The reason for using such details, like – 

The sisters being “twins” was to keep both individuals at the same stage, which is, in fact, a very young age that strongly resonates innocence. A 6-year-old doesn’t even know if she’s committing a crime. 

The skin complexion, as it is one of the major reasons even today, is looked at as inferiority, which showcases peer pressure, frustration, bullying and superficial beliefs and eventually leads to desperation. 

The gruesome and a somewhat absurd usage of the washing machine was also to protect the innocence of the younger sister. Since both the sisters were 6 years old, both were, in fact, innocent of what they were doing. 

But had it been a slightly different situation, what would have happened? If they were not twins (changing their stage: setting them on an unequal base) and they are old as well, one being 17 and the other being 16, and due to the same complex of skin complexion, the older is jealous of the younger because she always gets bullying and people call her names and praises her sister, maybe she likes this boy who claims to be in love with the younger sister and does not even look at her. And the last detail to add would be that the younger and the older are not good friends. The younger doesn’t give heed to the older and calls her names as well. Out of sheer frustration and anger, she kills the younger sister, not by the washing machine (a 16-year-old wouldn’t fit in) but with a knife, or maybe she just sets her sister on fire, there can be numerous aspects to this situation. A situation where the younger is disgusted by her older sister and kills her out of sheer hatred.

Imagine what a 6-year-old twin would feel as she grows up realizes that she killed her sister. Will she be able to accept herself and let her believe that it was not her fault? Would she ever feel sanity in her mind again? 

There have been cases of this sort before and most have been because of discrimination. And not specifically minors but adults as well. That’s the whole spectrum of crime rummaging through the world in fact. Minors and teens are run by superstitions and stereotypical beliefs taught to them by society. The primary reason for this is lack of education. Unless there are sufficient education, awareness and a full proof system all throughout India there cannot be an end to Juvenile crimes. The whole numbers in the juvenile laws of India pose the biggest problem of all. Even the possible chance of arbitration is not absolute. Nothing in the Juvenile Law is absolute not the reformative theories nor the punishment and then there is also no guarantee For that there won’t be any repeat offenders. The only thing absolute about the Juvenile Law is the whole number of age For the offenders. 

READ ALSO : [STAR SARCASM] ELECTION LAW AND THE MODEL CODE OF CONDUCT

REFRENCES