By Anjaly Jolly School of Legal Studies, Cochin University of Science and Technology
Age is no doubt a very significant indicator of maturity. The criminal jurisprudence gives much relevance to the concept of mens rea for an act to constitute an offence. The spirit of mens rea is the mental intention to commit an offence. The essence of intention exists when the person is capable enough to understand the gravity of his act together with the impacts. Here comes the relevance of Juvenile Justice Act as well as the scope of the recent amendment.
The proposed change in the law was triggered by a flurry of rapes and murders over the last two years, in which minors were found to be involved. The case that caused the worst outrage was the dreadful December 2012 gang-rape in Delhi, in which a 23-year-old paramedical student died of her injuries. One of the accused, a legal juvenile who was a few months short of attaining 18 years, was tried by a juvenile court and sentenced to three years in a reform home making the entire episode a mockery. The light punishment sparked a debate on whether Indian law is soft on young offenders resulting in a huge public outcry. Rights activists maintain each case must be treated individually and children under 18 should be given a chance to reform at same time protecting the rights of the victim.
The question as to whether there is any need to amend the Juvenile Justice Act so as to exclude the heinous acts committed by juveniles above the age of 16 years from the purview of JJ enactment has been a subject of mooting for the past few years. Now, the Central cabinet has given clearance to the proposal for amendment of the Act thereby providing a solution for the confusion. But the actual question is that how far the amendment is capable of serving the purpose.
Even though clearance is given for a number of amendment proposals including facilitating faster adoption of children, setting of foster care home etc, the most vital and the controversial among the same is no doubt the proposal empowering the Juvenile Justice Board to decide as to whether a juvenile above the age of 16 who has committed a heinous crime such as murder, rape etc is to be send to observation home or tried in common court. Thus, the actual question to be determined is whether there is any rationale in giving the Juvenile Justice Board the authority to determine the same.
The pre-amended position was that even an individual who has completed 17 years and 11 months could flee punishment escaping under the veil of Juvenile Justice Act 2000. The decision rendered by the Hon’ble Supreme Court in Shah Nawaz v. State of UP and anr[1], clearly states that it is the document evidencing the age determines the age of a juvenile. Many often the wrongdoers use this as weapon to escape from the punishment by producing fake documents as proof. The amendment no doubt, provides a solution to this issue. It is also vital that the amendment does not confer to the juveniles the punishments of death and life imprisonment even in case of heinous crimes.
No doubt, the proposed amendment results in a deviation to the internationally recognized definition of child. The world community recognizes the qualification to be a juvenile as below 18 years. The same is the definition of child contained in the United Nations Convention on Rights of Child. This age is prescribed after taking into account the mental ability of the individual to distinguish between right and wrong. It is also significant to see that many civilized countries including US have adopted a different approach in dealing with juvenile delinquents especially in case of atrocious crimes.
The need of the hour is to have a psychological approach in dealing with juvenile delinquents. Such an approach helps in identifying as to whether the position of the child at the time of commission of the offence was capable of identifying the actual gravity of his act. Let us hope that the proposed amendment could resolve the existing defects in the Juvenile Justice Act 2000 in dealing with Juvenile delinquents.
[1] (2011) 13 SCC 751
