Crime has a deep root in our society and so; the offences are committed by the youth of the State. It is a well-settled principle that “Crime shakes the conscience and punishment restrains people from committing an offence.”
Juvenile delinquency is a subject of a great concern among the States. The term ‘Juvenile’ means a young person or any person relating to the nature and characteristics of a child, whereas ‘Delinquency’ means ‘a criminal offence or misconduct’. The term ‘Juvenile’ originates from the Latin term “Juvenis” which means “young”. A State has to discharge twofold responsibility towards the children residing in their territory. They have to ensure that laws in their land are such that they fulfill the requirement of care and protection on one hand and child in conflict with the law, on other. To ensure protection from contravention with laws, herein, means to treat the child in distinction with an adult offender, while levying the punishment. India, till this date, has achieved this twofold objective successfully. 2012 was a landmark year in the Juvenile Justice System. This was the year when India witnessed the brutal sexual assault and rape case. In this year, the conscience of State was shaken and the people started whispering about the reduction of age of a Juvenile from 18 years to 16 years for such heinous crimes. To deal with the shaken conscience, the Legislature introduced the new Juvenile Justice (Care and Protection Act), 2015. The new JJCPA, although is a landmark Statute to counter with the offences committed by the child but, has certain provisions that can be seen in contradiction to the welfare of the children, found in conflict with the law. The two provisions, which were highly criticized, are:
(i) Reduction in age to treat juvenile and
(ii) Sending a juvenile to jail after he reaches, age of twenty-one.
The provisions of the JJCPA, 2015 provides, a child found in conflict with laws of the State shall be treated as a non-juvenile and therefore, has to face trial like an ordinary individual found in conflict with the law. The reasoning behind this can be traced in ‘JJCPA Bill, 2014’, wherein, the government said, in past years, children falling in the age group of sixteen to eighteen are highly involved in heinous offences and this toll is rising every year. Hence, there was need to introduce a new enactment. However, with introduction of Bill and later, when it turned into an Act, it was a hotline issue for criticism. The JJCPA Act, 2015 was criticized mainly on two grounds:
(i) Age of juvenile, which was reduced to sixteen in case of heinous offences and
(ii) Sending the juvenile to jail after attainment of twenty-one years of age.
2. Juvenile Justice: India and the Globe:
2.1 India on Juvenile Justice
India has a long historical backdrop in Juvenile Laws. In ancient India, a parent was supposed not to punish a child who is under five years of age for any offence. The prevailing laws in ancient India believed that a child of such tender age should be nursed and educated with love and affection only. Some Smritis, like the Braha-Yama and the Sankha say that a boy over five and less than eleven, if guilty of some Patakas such as drinking Sura, has not to undergo penance personally but his brother, father or other relatives or friends have to undergo for him and that if, a child is below five years, then whatever the act may be, it is not deemed to be a crime nor a sin and the child consequently is not liable for any punishment or prayaschita.
India received its first Legislation in the year 1850 which was ‘The Apprentice Act 1850’. According to this Act, children between the ages of ten to eighteen convicted in the courts were required to be provided with vocational training as a part of their rehabilitation process. Next in the row is the ‘Reformatory Schools Act 1897’. According to this Act, children up to the age of fifteen years may be sent to Reformatory Cell. Later, India introduced the ‘Juvenile Justice Act 1986’. The Act was introduced to meet the principles set by the United Nation for administration of juvenile justice. This Act, establishes a uniform legal framework for juvenile justice. However, India repealed this Act by the ‘Juvenile Justice Care and Protection Act, 2000’. The JJCPA 2000 was introduced in order to rationalize and standardize the approach towards juvenile justice in keeping with the relevant provisions of the Constitution of India and International obligations in this regard. Afterwards, India witnessed several amendments in the JJCPA, 2000. However, all amendments were made to meet the core principles of welfare of children.
In 2015, India came with another Statute, which governed the subject matter of juvenile delinquency. This Act repealed the existing JJCPA, 2000 and is the recent law in practice. The JJCPA, 2015 came into force in the year 2016. The JJCPA, 2015 introduced certain beneficiary provisions, which were not in the earlier Act. One of such historical provision is with regard to adoption. The Act however classified juveniles into two categories viz. ‘juvenile in conflict with the law with respect to heinous offences’ and ‘juvenile in conflict with the law in respect to non-heinous offences’. For the purpose of heinous offences, the one who completes the age of 16 can now be tried as a non-juvenile. Under non-heinous offences the age limit is still 18 years.
2.2 Global efforts on Juvenile Justice
Universal Declaration of Human Rights was the first international document, which dealt with the issue of Childcare. Article 25 of the Universal Declaration of Human Rights confirms that a child is entitled to special care and assistance. The International Covenant on Civil and Political Rights, through Articles 23 and 24 and the International Covenant on Economic, Social and Cultural Rights through Article 10 confirms the provisions for the care of the child. Battery of international documents affirms that, a child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The UN on November 20, 1989 adopted a convention with the nomenclature ‘Rights of the Child’ (CRC). This Convention came into force on September 2, 1990 and till September 29, 2012 it has 193 States as parties. It is the first Global Convention that ensures protection of a child’s civil, political, economic, social and cultural rights. Three optional protocols were added to the CRC, to ensure the child rights and their development. International Community adopted the two protocols on May 25, 2000 in New York, while the third protocol was adopted on December 19, 1911 by the General Assembly, opened for the signature on February 28, 2012. The third protocol was introduced with the intent to facilitate a procedure for individual complaint from the children.
Apart from these, the other global accords, which are worthy to consider, are Beijing Rules of 1985, Riyadh Guidelines of 1990 and the Havana Rules of 1990. These three were accorded to ensure proper establishment of juvenile justice system within the state territorial.
The Beijing Rules on age of criminal responsibility states that the concept of age of criminal responsibility for juvenile should not be fixed too low an age level, keeping in mind the emotional, mental and intellectual maturity of children.
Article 1 of the UN Convention on Rights of the Child, states that a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
3. Age as an Issue:
3.1 Competent Age for Juvenile
a. The Issue India is a state, with no uniform opinion regarding the age of majority. The practice adopted by India is fixing the age of majority in accordance with the nature of the act. However, majority of statutes lay down eighteen years as the age of majority. The Indian Contract Act, the Indian Penal Code, the Indian Majority Act, et cetera are the acts which set eighteen as the sound age for majority. Further, in India when a statute is silent on the age of majority, it is governed by the provision of the Indian Majority Act and hence, the age is taken as eighteen. The Indian Penal Code lays down that “nothing is an offence which is done by a child under seven years of age”. Further, the Act also lays down, “nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on the occasion”. So, if we take into consideration the criminal responsibility of children in India, then it is worthy to say that a child below the age of seven, is not considered as an accused and when a child crosses the age of seven but is under the age of twelve, then also he may be exempted from responsibility of offence.
In Canada, a person attained the age of twelve or more is considered as responsible for the commission of an offence. S. 13 of Criminal Code of Canada is in pari materia with the provisions of s. 83 Indian Penal Code. Furthermore, as per Criminal Justice Delivery System in Canada, a youth between the ages of 14 to 17 years may be tried and sentenced as an adult in certain situations.
b. Why 18?
Why the age was fixed to eighteen in JJCPA, 2000 and is reduced to sixteen in JJCPA, 2015. Therefore, it is necessary to find, competent age to fix criminal responsibility of a child, found in conflict with law. In this regard I would like to refer the research paper of Mukesh Yadav and Pooja Rastogi. According to their work, the age was fixed to eighteen because of the scientific reason that the human brain continues to develop and the growth of a child continues till he reaches to eighteen years. It was mentioned by them that, Along with physical growth, mental growth is equally important, in assessing the maturity of a person below the age of eighteen years.
Ahead, I would like to refer the report of Parliamentary Standing Committee on ‘JJCPA Bill, 2014’, which read as “Referring to the report of Indian Jail Committee 1919-1920, the stakeholder submitted that it was well settled that children should not be treated as adult offenders. Referring to figures relating to juvenile crimes, it was pointed out that juveniles committed only 1.2% of total crime in our country and out of this, 1.2%, only 7% comprised things like murder and rape. The number was extremely low which could be tackled under current system. ……. There was no need to push juvenile offenders into adult criminal system.”
The Learned Solicitor General in Salil Bali v. Union of India while responding to the assertion that juvenile age should be fixed at sixteen submitted before the Hon’ble Supreme Court that, Parliament consciously fixed 18 years as the upper age limit for treating a person as juvenile and children, taking into consideration the general trend of legislation, not only internationally but within the country as well.
The National Crimes Record Bureau (NCRB) report of 2016 lays down as below:
Year Total offences reported Total offences reported against juvenile
2014 45,71,663 38,455
2015 47,10,676 33,433
2016 48,31,515 35849
Category of offences Total offences reported Total offences reported against juvenile
Murder 30,450 892
Kidnapping and abduction 88,008 1,538
Outraging the modesty of women 84,746 1,540
Rape 38,947 1,903
Category of offence Below 12 years 12-16 years 16-18 years
Murder 13 263 901
Outraging modesty of women 10 329 94
Kidnapping and Abduction 4 162 1561
Rape 29 46 2054
Child is the incarnation of diversity and if guided with care and love then, asset and if not, then a destruction. It is concluded that by reducing the age from eighteen to sixteen the legislature not only go in contradiction with laws of land but also force the vulnerable group of this land to remain in vulnerability. The JJCPA, 2015, although, a great statute but the provisions of treating the child, falling in age group of sixteen to eighteen as a non-juvenile and after attaining the age of twenty-one, remand him in jail were out of box. On reducing age of juvenile and remanding them in jail, after age of twenty one, it becomes worthy to comment, that It’s better to hang, rather to leave in society, You hanged the life, Now, releasing a destructive soul.
Herein, I would like to refer to the two judgments of the Hon’ble Supreme Court, which decides in same track. Hon’ble Justice Sarkaria, in Kakoo v. State of Andhra Pradesh, while reducing the rape punishment of a juvenile, observed that an inordinate long imprisonment term is sure to turn a juvenile into a delinquent and obdurate criminal. The other judgment of the Hon’ble Supreme Court says that, every child has the right to love and affection and of moral and material security and this is possible if the child is brought up in family. It is mentioned here, reasoning provided behind reduction of age is contrary to itself. The NCRB report and the Parliamentary Standing Committee report on the ‘JJCPA Bill 2014’ are the evidence of these words. It is not a mistake, if I consider these provisions as bad in law and interest of the Nation.
The point is to be noted that a child cannot be sentenced for life or with death. Therefore, one day he will part of this society. The question is, that on that day is he reformative to the extent that he can be considered as a reputed citizen? From the above views, the answer will definitely affirmative. The reason is, in his crucial age days, he was treated and grown as a heinous offender.
I am satisfied with the scientific reasoning provided for the age to be fixed at eighteen. The NCRB report also, depicts the same. From the figures shown by NCRB, although it is transparent, that sixteen to eighteen years is, that class of juvenile, whose involvement is much more than the other two classes’ viz. below twelve and twelve to sixteen years. It becomes necessary to mention here, that these figures are the wake call for the legislature and executive that our future is in great need of wall created with love and care. Instead, treating them in such a harsh manner, the legislative and executive should discharge their obligation towards care and protection of children. It is a wrong approach, to consider a child of sixteen to eighteen as, competent to know the consequence and nature of offence like rape. Because, a child incompetent to decide it’s government, life partner as well as sex partner, how can be competent to know the consequence of the offence he had committed. The legislature reached to a wrong conclusion that the call of hour is to reduce the age. It was not the call of hour, but was the sentimental need of society, considering which the legislature adopted this approach. It is concluded that the age group of sixteen to eighteen is a crucial life stage, hence requires a great care and protection. Days were there, when we adopt the retributive approach, nowadays we are living in an age of reformative theory. Remanding a juvenile in prison for a long period is neither reformative nor a welfare decision. It not only destroys the future of the child, but also destructs the Nation.
At last I like to close this paper with the words of Aldous Huxley who said:
“A million million spermatozoa
All of them alive;
Out of their cataclysm but one poor Noch
Dare hope to survive;
And among that billion minus one might have chance to be
Shakespeare, another Newton, a new Donne”.
Navin Kumar Jaggi