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Sunday, September 1, 2013

Juvenile Delinquent Or Psychopath Gone Lucky ?

The Juvenile Board’s decision of sending one of the key accused in the Nirbhaya gang rape and murder case, to a reform house for 3 years, has left overwhelming majority of Indians outraged. The brutality, with which the victim was violated shook the nation's conscience, with this juvenile being the most violent of all, according to media reports. One cannot imagine how the family members of the victim would feel to first having seen the intense agony one's daughter goes through and then see the perpetrator go to a reform home for 3 years. In this case, justice itself becomes casualty as the outcome has been determined not by the merit or demerit of the case but by a mere technicality.


A lot of people have been demanding that the age of juvenile be reduced to 16 years, in fact, even the Supreme Court has been approached for reducing the age in which a person would be treated as a juvenile only until the age of 16. The Apex Court has turned down the demand. Unarguably, the gang rape of the 23 years old physiotherapy intern in a moving bus in Delhi on 16th December 2012, is the most horrific crime to have taken place in recent years the tiniest detail of which reached our living rooms. But does it really justify the demand that the minimum age of juvenile delinquents be changed to 16 years? As I write this, news comes in that a 13 year old has been charged with raping a 5-years old girl in Raipur. Of course we can’t demand that the maximum age be reduced to 12 years and of course, this is a different case. Only reducing maximum age may help punish this psychopath but it may not help the Juvenile Justice system.

It may in fact turn out counter-productive, the very concept of juvenile justice is reformatory in essence, and the idea of retribution is contradictory to it. But in cases like this one, retribution is a necessity for the family of the deceased victim as well as the society. Most juvenile delinquents held for petty offences, some of which may have been forced by circumstances, have a pretty good chance of reforming if an opportunity is provided to them (the term ‘delinquent’ originally implied failure of the parents and society and not of the child) . Reducing age limit would see them landing in prisons housing hardened criminals which effectively shuts the door for reformation. As a matter of fact they may end up as victims of greater violence, including sexual abuse. Reports of reform houses being as brutal a place is something that can be discussed in a separate post. 

Perhaps, our habit of over-simplifying policies and norms needs contemplation on. We take the average age of maturity of an individual as 18 and expect every 18 year old to have the same level of maturity. However, it is not exactly true. Transformation of a child into an adult does not happen overnight, and certainly not on the day of the 18th birthday! It is a gradual process that can take a long time to complete or happen within a short time period. Ideally, a set of factors such as biological development, mental and intellectual development, relationships (with parents, peers and even sexual relationships, if any)  can also help arrive at a decision if the particular person can be considered a juvenile or not. These processes might take considerable amount of time but such cases are not really in abundance when compared to other categories of criminal cases.

Then, there is also the contention that the age at which a child can mature to a young adult varies demographically. In the US where Juvenile Court was set up exactly 100 years before (in 1899 while Juvenile Justice Act in India was enacted in the year 2000), federal provision requires a person under 18 years of age to be treated as a juvenile, in Wyoming the age threshold is 19 years. But in states like Connecticut, North Carolina and New York a person older than 16 years of age cannot be considered juvenile and in some states the threshold age is 17 years.

For crimes such as murder or rape, a minor 14years old or higher must be tried in adult court
Source: http://www.shouselaw.com/juvenile-adult.html
Indian legislators and judiciary are not averse to borrowing legal precedence from the other democracies! Britain, from which India has borrowed most penal provisions, has in exceptional cases, such as in the murder case of 2 year old James Bulger, two 11 year old boys were tried in an adult trial court as was in the case of Mary Bell, the 10 year old notorious killer.    In case of juveniles committing horrendous crimes, the US has faced similar situation. In 2000, the California Proposition 21 was passed which paved way for increasing punishment for gang-related crimes and among other provisions, it also required that any minor 14 years of age or older and charged of murder or specified sex offences must face an adult trial. Around the same time, i.e., year 2000, the new Juvenile Justice Act was enacted in India, it was and remains a very progressive step and if implemented properly it can prevent youngsters from taking up crime as career, but thoughtless implementation would only harm it.


The Delhi gang rape and murder perpetrator being sent to reform house for 27 more months has shaken the faith of the people in India’s judicial system. In wake of the protests after Nirbhaya’s death, the Union Government did come up with laws that should be quite effective in dealing with sexual offences. But I haven’t found any reference to Juvenile law ! The Juvenile board gave the maximum "sentence" it could, bound by the law. The victim’s family seek to approach the Supreme Court which by exercising its original jurisdiction can make exception and punish the psychopath.

 In either case, it is the duty of the government to rethink and amend the act to put up a mechanism to ensure that the age threshold does not remain the only criteria. Cognitive, intellectual,physiological  development, history and psychiatric evaluation may also be employed in these kinds of cases. Courts are bound by the law, but the Parliament is sovereign because it represents the people and there is seldom such unanimity among the people as is now, in demanding punishment for all rapists, disregarding if the age is 17 or 70.        

Ref:
http://en.wikipedia.org/wiki/Emerging_adulthood_and_early_adulthood
http://en.wikipedia.org/wiki/California_Proposition_21_%282000%29
http://legal-dictionary.thefreedictionary.com/Trying+Juveniles+as+Adults

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