It’s the mentality that is responsible for a crime, not the culprit’s bone ossification record. Misrepresentation of UNCRC and Beijing Rules and widespread hypocrisy surrounding a teenager’s abilities has given rise to myths that wily nily allow culprits an escape route

The Juvenile Justice Act has been provocatively marked with wrangle between the protective approach of the Act and the rightful traditional approach of the same. The definitions constituting the law are anything but comprehensive. The concept of recognition of the rightful place of the child in society, a paradigm shift in the approach aspiring the progressive aspects of the child, hoping to deliver justice within the framework of the existing laws, has demarcated India for the last decade.

The whole issue is rather subjective since it has been an interesting character of Union to alter laws with unconstructive and meaningless definitions paving way for injustice. The hyped Juvenile Justice Act has been the target of similar reformation wherein section 2(k) (a boy or a girl under 18 years of age is a juvenile or child) and 2(I) (juvenile in conflict with law as a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence) were altered to clear it of the ‘ifs and buts’ and are perhaps not the accurate representation of the United Nations Convention on the Rights of the Child (UN CRC) and Beijing rules irrespective of the fact that UN standard minimum rules for the Administration of Juvenile Justice were adopted in 1985.

Also Articles 37 and 40 specifically and when read with the General Comment No.10, Children’s Rights in Juvenile Justice, lay down a comprehensive mechanism that States must comply with, taking note of the overall framework of the CRC and its main ‘umbrella rights’.

Rush job

Parliament in 2000, under Article 253 of the Constitution (legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body), again rushed through the enactment of The Juvenile Justice (Care and Protection of Children) Act and repealed JJA (1986). An age limit of above 18 years (earlier 16 years) was prescribed for the age of criminal responsibility in Sections 2(k) and (l) of JJA(2000), but again without any ifs or buts.

However, the claim that the JJA has been rectified on the UN standards and Beijing rules is untrue since Beijing rule 4 (1) does not specify an age limit for a Juvenile. It lays stress on the “emotional, mental, and intellectual maturity” of the offender that could be borne in mind in deciding who is a juvenile. However, section 2(k) does not hold the above qualifying explanation. It is also a false claim by the Union that the Rule of JJA of 18 years as cut-off age for juvenile is the “international norm”.

In one of the rule of JJA, the ‘bearing in mind the facts of the mental and intellectual maturity” of the offender has been considered but these words are missing in section 2 (k) of JJA. The words again are modified in JJA draft to exclude ‘emotional maturity’ of the offender.

Hypocrisy

I also feel there is assured duplicity when we talk about the age of consensual intercourse age that has been set at 16 and the juvenile crime age set at 18. Section 83 of the Indian Penal Code lays down that “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 that occasion.” When we say that a person of 16 years is declared mature enough to indulge in intercourse willingly, do we also say that the same person does not retain the ‘emotional maturity’ and ‘criminal responsibility’ to rapeIJ

The same hypocrisy is seen in the cut off age limit of 18 years for juveniles not be applicable to Child labour (Prohibition) Act 1986 (14 years) and Immoral Activities Act (16 years) that exemplify irregular constructed laws leading to frequent delusions of our social justice system.

Since the provisions of the aforesaid Juvenile Justice (Care and Protection of Children) Act are presumably unjust to the victims of the heinous offences committed by juveniles and to the society at large, there has been widespread pressure through protests and crusading to reduce the cut off age to 16 and create a group of children from 16 to 18 years under the tag of emotional maturity and criminal responsibility while adhering to the crimes committed by them. As it turns out, almost two of every three crimes by juveniles, mostly male, are committed by people in the age group of 16-18 years. To make it more understandable, National Crime Records Bureau (NCRB) data show a rising trend in crimes committed by people in this age group — particularly the more serious ones such as murder, rape and kidnapping.

Distressing

What is also distressing is the slow progress in disposing off the juvenile crime cases. It has been researched that out of all the juveniles that are sent to the court under Juvenile Justice Board, approximately only one third await trials (2011).

In the meanwhile, it may be possible to amend the said law with potential effect yet it will not be possible to amend it retrospectively. This means that if the age limit for juvenile is to be reduced, it can be done only for future cases and not for the past offences. There is a clear restriction on such retrospective amendments in the provisions of Article 20 of the Constitution of India which is also a fundamental right and cannot, in any circumstance, be violated. And since Juvenile Justice Act does not constitute imprisonment or death penalty, there is no way the juvenile accused could be punished with either of the two. The inclusion of sending the juvenile offender to a special home becomes the only retort. Amendments necessary The JJA (Care and Protection of Children), 2000 undeniably requires amendments to protect the interest of children and society at a large. Whether the changes are in the form of increasing a group for children on the basis of criminal responsibility or including certain ‘ifs and buts’ to distinguish between severity of the crimes committed by the Juveniles, what is of prime importance is its introduction into the judiciary. What is also necessary is adherence to the adjudication and disposition of matters relating to children in conflict with law. Since the Juvenile Justice System is limited in its application to the children committing offences and others in need of care and protection, a comprehensive construction of the JJA is a prerequisite.

For this we shall to await the Supreme Court’s judgment in the pending Special leave Petition of Dr Subramanian  Swamy, a former Union Minister for law and Justice. Only last week, the SC held Dr Swamy’s arguments as “maintainable” rejecting the Government’s strong plea made by the Solicitor General to dismiss his SlP at the threshold. Hence,

Dr Swamy’s argument will now be fully heard as to why the juvenile must be not only be below 18 years of age but also in heinous crimes, be “intellectually, mentally and emotionally incapable of knowing what he or she was doing”. Dr Swamy’s argument is that the UN Conventions require that the law recognise that and incorporate it in the Juvenile Justice Act.

That is, justice cannot be delivered if the crimes are to be judged merely by the culprit’s age, for it is the mentality that commits the crime and not the age.

Author, “Battered Existence”