This article was written by Ankita Sharma a student of M. S. Ramaiah College of Law, Bangalore.
Our Society is changing and the baby boom generation is graying. The fact of concern arises with the contentions as to the humanist fundamental which is often missed when the point of dealing with delinquents, juvenile and adult arises.
The rise in youth violence is intimately tied to the social forces. Thus it can be clearly established that the life experiences for both the young and the old are changing. The explosive societal mix has been one of the major factor which attracts juveniles to commit heinous offences and also treating them as adults.
Article 14 of the Constitution obligates the State not to deny to any person equality before law or equal protection of laws within the territory of India. In India the concept of equality was not the formal equality as was observed in USA but was that of proportional equality which recognized that everyone was not equal and that the State was obligated to enact laws in favour of the weak and disadvantaged section of the society. Proportional equality was based on that of right to equal treatment in similar circumstances and that the persons who were unequally circumstanced could not be treated at par. It was submitted that through Article 14, it was recognized that weaker and vulnerable sections required special/additional protection.
Section 15 (1) of the Juvenile Justice Act, 2012 states that “in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18.”
The JJ Act allows children between 16 and 18 years alleged to have committed heinous offences to be tried and sentenced as adults. While it does not expressly lower the age of a child in conflict with law from 18 to 16 years, the effect is the same, as the Bill proposes that children above 16 years can be tried and treated as adults. It thus completely destroys the rehabilitative foundation of the existing juvenile justice system in India by adopting a retributive approach for heinous crimes committed by children in this age group. One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution.
Heinous and serious offences are punishable with imprisonment for seven and three years or more respectively under the Indian Penal Code.This policy of excluding children from the protection of juvenile law is based on a system of judicial waiver and individualized sentencing that ignores findings of adolescent culpability, procedural fairness and the amenability of children to corrective intervention. It sits incongruously with the Act’s own objectives of ensuring proper care, protection, development and social reintegration of juvenile offenders.In the case of children who have committed a heinous crime and have completed 16 years, Section 16(1) of the Act requires the Juvenile Justice Board to inquire into the child’s mental and physical capacity in order to decide whether he should be tried as an adult or not. This is based on two faulty assumptions: the first that children who commit heinous crimes are as culpable or blameworthy as their adult counterparts, and the second, that such maturity can be ascertained with scientific precision.
Indeed, every saint has a past and every sinner a future. When a crime is committed then variety of factors is responsible for making the offender commit the crime. The Supreme Court of India has also emphasized the reformatory and rehabilitative aspects of sentencing.
The data for Crimes in India, 2013” which showed juvenile crimes to be 1.2 per cent of the total crimes committed. Total IPC crimes committed by juveniles in 2013 were 31, 725, out of which 1, 884 were rape and (5.93 per cent of total IPC crimes) and 1, 007 murders which constituted 5.93 and 3.17 per cent of the total IPC crimes. Hence, 9.1 per cent of total IPC crimes constituted rape and murder. Further, the increase in number of rape cases in 2013 could be attributed to the Protection of Children from Sexual Offences Act, 2012 which increased the age of consent to sexual activity from 16 to 18 years. It is thus emphasized that NCRB data based on children was mostly not about children who were found guilty but was of those alleged to have committed an offence.
With the advent of POCSO Act 2012, sexual activity which was earlier treated as consensual was criminalized, resulting in a significant surge in rape and kidnapping/abduction cases against women. Further, a significant number of cases of rape and kidnapping included love cases and consensus elopement where girl’s parents charged the boy with rape subsequently. Hence, it is clearly evident that juvenile crime is a miniscule proportion of total crime committed and that the same is not significantly increasing, and hence does not forma a rationale for such a scheme of classification.
Research in developmental psychology explains the difference in cognitive capacity and psychosocial maturity between children including adolescents and adults that influence their decision-making in anti-social situations. Whether the juvenile understood the consequences of the offence or whether he or she had the mental and physical capacity to commit the offence is a narrow and non-holistic approach to respond to serious/heinous crimes. It fails to take into account the ongoing process of development and its impact on children, especially adolescents.
The deprivation of the protection against disqualification under the provisos to Ss. 24(1) and 24(2) violates the right to life under Article 21 and the right to equality under Article 14. The reformation inquiry u/s 21 is redundant in light of these two provisions. Even if a child is found to have undergone reformative changes at the end of a highly arbitrary assessment process, she/he will incur the disqualification attached to the conviction making it impossible to secure gainful employment, stand for elections or benefit from the fundamental principle of ‘fresh start’. These provisos constitute a flagrant violation of the right to life and human dignity as they will deprive children of a livelihood and leave them with no avenues for a dignified existence, hence violating Art. 21.
The profile of innovative programs and ideas on how the concept of separate Children’s Juvenile system can be reinvented to meet the challenge of its second century.
 Two Hundred and Sixty Fourth Report, The Juvenile Justice (Care and Protection of Children) Bill, 2014 at p. 29.
 Ibid at para 3.16.
Law & Policy BRIEF, Vol. I, Issue 8, August 2015 at p. 1.
 Ibid at p. 2.
 Elizabeth Cauffman and Laurence Steinberg, “(Im) maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults,”Behav. Sci. Law 18: 741 at742-743 (2000)