Dr S Saraswathi
In one of the most brutal cases of gang rape-cum-murder that occurred in New Delhi last December, the worst of the criminals is said to be the juvenile offender – “juvenile” by legal definition. But, he has escaped with a token punishment of three years assignment in a remand home which, however, is the maximum punishment that can be inflicted on a juvenile. His four “adult” crime mates are awarded death penalty which means that the crime deserves the highest punishment. The age factor has saved the worst offender of this gang.
Since this case, there has been heated debate over the juvenile age and the punishment under Indian law. In many other instances of rape, a defence has been sought under age factor even if the nature of the crime and the mode of execution show adult knowledge and maturity. In the more recent Mumbai gang rape case, for instance, one of the accused claims to be a juvenile.
There is an alarming increase in reports of rape cases. But more alarming is the involvement of juveniles in many instances. The latest reported from Guwahati is the rape of a 12-year-old girl by five boys — all claiming to be minor by age between 15-16 years, followed closely by another rape of a teenaged girl by a teenaged boy near Chennai.
Strong opinions are expressed both for and against harsher punishment for juveniles convicted of heinous crimes such as rape and murder. There are some valid points on both sides making it difficult for impartial observers to take a firm stand.
But, it seems that the question can neither be dealt with as a pure issue of crime and punishment nor exclusively as a question of child rights. Champions and activists of child rights are anxious to safeguard the hard won universal acceptance of special treatment of children. Even some activists of feminist groups clamouring for death penalty for rapists have a soft corner for juvenile culprits.
In the distant past, criminal law was crude and inhuman. Humanitarian revolution was needed to introduce concepts of reformation of the offenders as an important object of punishment.
Presently, we have advanced system of law and justice, and a host of rights and privileges. The United Nations Standard Minimum Rules for Administration of Juvenile Justice (1985) known as Beijing Rules have laid down broad principles for juvenile justice system for universal application. The Rules state that the age of criminal responsibility “shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental, and intellectual maturity”.
Many of the rules have been adopted in India in the Juvenile Justice Act, 1986, and its refined version – The Juvenile Justice (Care and Protection) Act, 2000. Under this law, a “juvenile in conflict with law” means any person who is alleged to have committed an offence and who has not completed 18 years at that time.
The legal framework for juvenile justice is “restorative” and not “retributive” in nature. The Act is intended to provide for reintegration and rehabilitation of children in conflict with law with the mainstream society.
But, crimes have not diminished. New forms of crimes, sophisticated methods of crime execution, and wider network of criminal gangs have grown all over the world. An important aspect of the expansion is more involvement of youth in crimes.
According to the data of the National Crimes Record Bureau (NCRB), crimes committed by juveniles constituted 1.2% of the total crimes reported to the police in 2012. Among juveniles, the most vulnerable is the age group 16-18 years constituting about 2/3 of the total juveniles brought before the Juvenile Boards. This age group is represented in several rape cases.
The Supreme Court has recently dismissed a spate of public interest petitions seeking reduction of upper age limit of the juvenile accused of rape and murder from 18 to 16 years. The court admitted that there may be cases of children in the age group 16-18 developing “criminal propensities which would make it impossible for him or her to be reintegrated into mainstream society”. But, the court declined to lower the age limit as suggested on the ground that such cases are “not of such proportions as to warrant any change in thinking”. The age 18 was fixed in 2000 after consultation with experts.
Thus, the court has taken age as the only factor determining criminal responsibility. Against this contention, there is a view that mental and intellectual maturity of the offender and not age should be considered in dealing with very serious offences like rape and murder. Holders of this view think that the gravity of the crime and the cruelty exhibited by the offender have to be taken into consideration in deciding whether the offender should be treated as a child or an adult.
In the US, not all minors – that is under 18 years – are considered juvenile in terms of criminal responsibility. In more serious violent cases, the age at which a minor can be treated as an adult varies, but no minor can be sentenced to death.
Many studies in criminology confirm the presence of “criminal career” actively pursued by repeat offenders. K.D. (known depredator) is a common term in police usage. Young offenders unless properly treated so as to voluntarily liberate themselves from criminal propensities, are likely to grow into mature criminals.
It is not enough to put juveniles in remand homes. Crimes are committed by anybody irrespective of age factor in a complex of “interconnected systems” in which the family, peers and their lifestyle, the school, the community with its opportunities and support systems, and the surrounding physical conditions play a significant part. What got the juvenile into trouble must be addressed by specialists. The trouble may be detected as much in the environment as in the individual psychology of the juveniles.
Treatment of youth in remand homes has to successfully deal with the problems of the juvenile in question if the remand home therapy is to be effective. Otherwise, it will be just a form of imprisonment. The functioning of remand homes has to change according to changing concepts of crime and punishment. For, we still have to believe that juveniles – particularly the first time offenders – can be given a chance to mend their ways.
This is not to belittle the gravity of crimes like rape. There can be no justice or compensation for the loss of rape victims. The clamour for justice for the victim is meaningless in rape cases. Such crimes have to be prevented.
Therefore, instead of debating the issue of age of juveniles, we have to turn attention to treatment and rehabilitation systems. Social ecology is as important as individual psychology in crime stories. A juvenile under 16 or over 16 years of age returning to the same old social environment after residing three years in a remand home as a punishment for a grievous crime like rape is not likely to show any substantial change. Society has a lot to answer for the environment it has created. (INFA)
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