Involvement of Juvenile in the recent Delhi rape case has generated strong discussion for revisiting and broadening the age range for fixing criminal responsibility for serious criminal offence by Juveniles.
Legal experts, popular demand is suggesting lowering the age of Juveniles in case of serious offences and they being tried in the criminal courts under normal criminal justice system and not under Juvenile Justice Act that mandates a separate treatment for under age offenders below 18 years.
The major premise of the act is redemption and in culpability meaning possibility of Juvenile to reform and their immaturity to commit an offence.
While the demand for fixing criminal responsibility in case of such crimes is much justified, the larger question remains whether such step would really act as a deterrent or have serious ramifications on crime prevention, security of women in general society at large. A policy formulation or legislative amendment surely cannot risk amendment to seek retributive justice based on one off case but more on sound empirical and qualitative arguments.
Will lowering of age solve our problem in of heinous crime prevention anyway? As per NCRB data of 2011, juvenile crimes constitute1.1 % of IPC crimes and around 2 % of their crimes were violent of the total violent crimes that were registered.
Not discounting the infinitesimal statistics of crimes by Juveniles and treating every crime seriously, we are confronted by the question of threshold age limit to fix criminal culpability. NCRB, Statistics say among the IPC crimes by Juveniles 64% of children were in the age group of 16-18 yrs. There were at least 32.5% of crimes in the age group of 12-16 yrs. and 3.6% for the age group from 7-12 years. Crimes by Juveniles in the lowest age bracket of 7-12 yrs. actually increased by 30.6 % over 2010, highest jump among the age brackets.
Will our intuitive feeling allow us let a Juvenile of 10 yrs. Walk the gallowsfor the crime or we will react differently to the case as individuals and society? Or we keep on revisiting the age every time a grave incidence is reported against juvenile of particular age?
In case we would like to grant leniency to a 10 year old juvenile offender, on what grounds can we say his case be argued different from the case of 16 or 17 yr. old. The major premise of argument used in favour of lower age is non-culpability i.e. incapability to plan, garner resources, execute plan or understand the consequence of his/her action.
Scientific methods are inconclusive to establish such fact; the latest brain imaging technology though demonstrates difference in functioning of the adult and juvenile brain. It however cannot conclude incapability of a normal juvenile of 10 or 12 yrs. to plan and garner resources to execute a plan. Also sweeping generalization about not understanding of consequences can be made across age group. There have been cases where Juveniles as young as 10 years old demonstrated capability of meticulously planning, executing grave crimes like kidnapping and murder & destroy/hide evidences clearly to evade punishment.
One such much studied case is of two 10 year old kids in UK who kidnapped and murdered a two year old James Patrick.
Our basic premise of culpability and its relation to age stands on qualitative moral judgment. The question of threshold age determination for criminal culpability is difficult as demonstrated though lot of cases worldwide and lead all reasoning that will fail us to justify a case of 10 year old juvenile against a similar crime for 16 or 17 year old Juvenile.
Universally and even in India we have determined the age of majority to be 18 years. Our laws provides entitlements & entrust legal responsibility to individuals above this age – be it right to vote, right to drive, right to enter into organized employment, right to get married. Below this age the law entrust rights over a minor with the parents or legal guardian, they have complete control over their lives, irrespective of how they are treated in their daily lives or determine for their children.
It is a deep paradox to let underage owe responsibility for their crimes while their control lies with someone else. Does it not mean that when such criminal offences are done by juvenile the adults or the state (in case of a destitute committing a crime), should not own up responsibility as well? In the arguments favoring fixing criminal responsibility Juveniles are treated as an autonomous entity while law guarantees adult control over them, which is deeply paradoxical.
The current Juvenile Justice system has evolved after a lot of debate and discussion. It’s also held as one of the progressive legislation in the world conforming to the international standards and protocols. The problem is not in its spirit per say but in its implementation.
The basic tenor of our JJ Act is reformative. Currently it’s very difficult for the state or any one of us to say how many actually gets reformed after passing through the system. NCRB statistics 2011, quote that around11% of Juveniles were repeat offenders in 2011. This figure is only for Juveniles we do not know how many of them after turning adults have become hardened criminals as there is no mechanism to capture those data.
Prior to the amendment of current Juvenile Justice System in 2000, most of children irrespective of their offences were lodged into adult jails with hardened criminal, leaving a breeding ground for more number of criminals. With lowering of age would we really like to revert to similar kind of situation or look seriously into improving administration of the present Juvenile Justice system? The present state of administration of Juvenile Justice System leaves us with ample question regarding our intent to achieve its reformative or preventive principles. Evidences are galore of poor or shabby conditions of Juvenile Homes in our country.
Leave alone infrastructure we do not have trained manpower in Homes to even work with children Juveniles, expertise to spot and provide proper psychological counseling. Our institutions for delivering care and protection for children Homes, SJPUs, CWCs and JJBs are either under staffed or has under capacity staffs that really do not possess the skills to deliver their job.
Reports of brutal sexual abuse in some of these homes doesn’t ring alarm bell with us to take measures to make sure these children are protected. The JJ system clearly mandates segregation of children with recorded criminal offences from children who are destitute and need care and protection. However in many cases they are grouped together leaving the scope of turning an innocent into a potential criminal under peer influence.
There is no description of evidence on reasons for delinquency among children. Poverty is an often sought reason for delinquency. Globally studies have found a strong correlation between Juvenile crime with broken family or inappropriate parental care.
The discourse and serious work on children is not only lacking in our governance system it extends to our academic institutions. Our description of knowledge is very limited for formulation of policies and schemes for children. The schemes at present are very best reactive trying to solve the problem at face ignoring to address the deeper roots. We do not have data on orphaned, destitute, street children and many other facets, the scale of the problem while unknown can never lead us to clear plan for addressing them.
The case of Juvenile age revision requires careful consideration and thinking. It’s a valid concern that many of the Juvenile offenders are difficult to reform even with provision of best of the services. Provision to deter these children from making bigger offences needs to be carefully examined. A blanket approach of fixing criminal responsibility and trial in regular adult court will lead to more number of children being victimized, leaving them with a scope to develop as hardened criminals.