By Aditya Singh Raghav
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United Nations Convention on the Rights of the Child (UNCRC) was signed on 30 November 1989 to provide a mechanism in International Law for the protection of the rights of children. The convention defines a child as any human being under the age of 18 unless the age of majority is attained earlier under national legislation. Any member state violates the convention if any person below the age of 18 is tried as an adult and not according to the juvenile justice system. India recently enacted Juvenile Justice (Care and Protection of Children) Act 2015 and section 15 of the 2015 Act now allows children of age 16 to 18 years to be tried as adults for the commission of heinous offences. Many criticize this step as it violates the UNCRC. There are several reasons for reducing the age which we will read further in the article.
Changes in circumstances require
changes in laws to adapt for the betterment of society. It seems that Juvenile
Justice Act of 2015 does not violates the UNCRC. The convention clearly states
that any person under the age of 18 is a child but society is subject to change
and as time passes, there are many changes in the society.
Why
India lowered the age?
When
the Juvenile Justice Act of 2000 was passed, any person under 18 years was
considered a juvenile and could not be tried as an adult. It was understood
that under the age of 18, a person cannot have the mental culpability to do a
crime. But as time passed, juvenile crimes increased. When the bill was passed
in 2014, an NCRB report showed the increase in crimes committed by juveniles of
the ages 16 to 18 years. The NCRB data showed that the percentage of juvenile
crime increased from 1% in 2003 to 1.2% in 2013. During the same period, 16 to
18 years old accused of crimes as a percentage of all juveniles accused of
crimes also increased from 54% to 66%. This data played an important role in favouring the lowering of
the juvenile age to 16 years as most of the crimes committed by juveniles were by
of juveniles aged 16 to 18 years. The main reason for the increase in juvenile crimes
was that children did not fear the law as they knew they would get away with
the crime – this resulted in the increased crime rate. The only way to stop
such juveniles from committing crimes is to sentence them with harsher
punishments which they deserve for the crime committed so that they don’t
commit crimes in the future.
However, the demand for lowering the age of juvenile climbed sharply after 2012 – after the Nirbhaya case (Delhi Gang Rape Case), legally known as Ram Singh vs The State of Delhi. Under this case, a juvenile was also accused of committing rape along with four adults and he was tried under the juvenile justice system. This decision was highly criticized by the public as the juvenile was considered to be the most brutal one when the crime was committed and he was not given strict punishment. Public protests were held demanding harsher punishments for the juvenile who was 17 years old at that time. After this incident the J.S. Verma Committee was formed to amend the criminal law system in the country. The committee was of the opinion that if a person of age 16 is sent for life imprisonment, they would be released in their mid-30s and such punishment would not reform them, so the juvenile age should not be lowered from 18 to 16. However, there are some flaws in the report:
- There can be a misuse of juvenile justice system. The evil of society can manifest themselves in the forms of juveniles who are fully capable to understand their actions and reactions but are protected under the law. Criminals can use fake birth certificates to get protected by juvenile law. This is against the principles of natural justice.
- The name and other information of these juveniles are not made known to the public, and these criminally minded offenders can be a threat to society. Intelligent criminals can take advantage of this loophole.
- Any person below the age of 18 is not tried as an adult, similar to what happened in the Nirbhaya Case, where it could be easily perceived that the minor was having criminal tendencies as he acted brutally. This may adversely corrupt the minds of such juvenile offenders with criminal affinities and they might become a bigger threat to society in future.
All
these points show that why there is a need to lower the age from 18 to 16 years
which is beneficial to both juveniles and society in general. It has also been seen
that observation homes and special homes constructed for juveniles lack infrastructure.
These rehabilitation centers do not benefit the juvenile offenders and it shows
a complete failure on the part of the State in reforming juveniles. Many Child
Rights Activists believe that reformation during imprisonment can be a better
approach if there is no possibility of complete reformation of children in such
rehabilitation centers and child homes.
Need for Stricter, and
not more lenient, Laws
The
Juvenile Justice Act of 2000 was very lenient towards the actions of juveniles.
It was important to bring changes in the law and section 15 of Juvenile Justice
Act 2015 brought the changes required to improvise juvenile justice legislation.
Countries
like US, New Zealand, Japan, Netherlands, England, Canada, Belgium, and Australia
have certain Criminal Law provisions that provide for transfer of a juvenile to
an adult court in the cases of heinous crimes. If same provisions were
applicable in India, then the juvenile in the Delhi Gang Rape Case could have
been convicted as an adult rather than being tried under a juvenile court.
In
England and Wales, children accused of crimes are tried under the Children and
Young Persons Act 1993. As per the English Law, if a juvenile commits offence
alongside an adult, he is tried in the adult court.
Japan
and Netherlands have also provided provisions in their criminal law system for
life imprisonment to juveniles if they are accused of grave offenses. Such laws
would increase the scope of Juvenile Reformatory practices and will also lower
the juvenile crime rate.
Ineffective Reforms
There
has been a serious rise in incidents of rape, kidnapping, and murders committed
by juveniles. This shows that rehabilitation of juvenile offenders is not
working properly. To reduce the crime rate it is important that juveniles
accused of heinous crimes be tried under the Indian Penal Code in normal courts
and not under juvenile courts. Today, there has been a lot of awareness
regarding crimes in the country and especially of crimes like rape, murder etc.
So to say that the juvenile who was accused of raping a 23-year old woman in
the Delhi Gang Rape case was not aware of the crime and its consequences is not
correct. Exposure to television, newspapers, internet, etc. has made teenagers
knowledgeable about crimes and their punishments. The age of innocence ended in
the late 1990s and not being aware of the crimes and their consequences cannot
stand as a wall between accused juveniles and giving strict punishment to them.
Do juveniles accused of
Heinous Crimes not have the required Criminal Intent?
One
of the reasons for dealing with juvenile matters in the juvenile courts and not
in normal court is absence of required criminal intent. To say that the
juvenile accused of Delhi Gang Rape case did not have the mental capacity to
know the severity of the crime and consequences of his actions is like pulling
the wool over one’s eyes. The behavior and actions of the juvenile in
committing the crime is enough to show that the juvenile had the required
criminal intent as it was also stated that he was the most brutal one. His
brutal actions carried the criminal intent and he should have been tried in
normal court like other four accused in the case and should not have been given
the blanket immunity usually given to juveniles.
Rehabilitation has
become a facilitator of crimes rather than being a reformer
A
major loophole in previous juvenile justice system encouraged juveniles to do
crime. A large number of juveniles are pushed into crimes by their family
members or local criminals who seek to take advantage of the juvenile justice
system. This proves to be an incentive for committing crime rather than a tool
to reduce crimes. Lowering the age from 18 to 16 years for commission of heinous crimes will prove to be a good step
in stopping juveniles from committing crimes as no one would be able to take
advantage of the age criteria.
Conclusion
It
seems that a mistake was committed when Juvenile Justice (Care and Protection
of Children) Act 2000 was passed. However, provisions were amended and now,
under the Juvenile Justice (Care and Protection of Children) Act 2015, juveniles
of ages 16 to 18 years can be tried as adults in normal courts for commission
of heinous offences. To reduce the crime rate among juveniles, it is important
to punish them for offences like murder, rape, kidnapping etc. like adults
instead of letting some of them misuse the protection under juvenile justice
system.
This
step of reducing the juvenile age from 18 to 16 years can be effective in reducing
the crime rate as fear of law will not allow juveniles to break the law and do
illegal acts and if they do break the law then juveniles will be punished like
adults. Section 15 of the Juvenile Justice Act 2015 does not contravene Article
37(a) of the UNCRC, which laid down provisions which define special status to a
child below 18 years of age but stated that:
“No
child shall be subject to the torture or other cruel, inhuman or degrading
treatment or punishment. Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for offences committed by
persons below 18 years of age.”
It
is not violating the UNCRC as laws need to be changed to compete with the needs
of society and to cope with new problems in the society occurring due to
increase in crime rate in the country. Lowering of juvenile age will create a
fear among them and crime rate among juveniles will drop. For betterment of
society such lowering of juvenile age is
a good step.
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Aditya is a 2nd year law student at National Law University Delhi. An adventurous person, he actively participates in sports activities and loves to go trekking. He is a football fan and you can easily find him discussing football matches with his friends. His interests include Commercial Law, Constitutional Law, Criminal Law and Competition Law.
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