One of the accused claims himself to be a few months short of 18 years and ironically, he is the one alleged to have inflicted the maximum brutalities on the late rape victim
The recent Delhi gangrape case has once again brought to fore if the age limit prescribed by the Juvenile Justice (Care & Protection of Children) Act, 2000 (“JJ Act”) needs to be revisited given that one of the accused, who is said to have inflicted the late rape victim with the maximum brutalities, is claiming himself to be a few months short of 18 years. Section 2(k) of the JJ Act defines a “juvenile” or “child” as someone who has not attained the age of 18 years and since one of the accused is claiming immunity on those grounds, this issue has gained prominence.
Under the 1986 Act, a boy who has not attained the age of 16 and a girl who has not attained the age of 18 were to be treated as juvenile. The significant departure in the 2000 legislation, in defining a juvenile, was two-fold:
- increasing the age bar to 18 years and
- doing away with the separate categorisation based on gender
Thus under the JJ Act, a boy or a girl (replaced with ‘child’ in the 2000 legislation) will be treated as a juvenile if he/she has not attained the age of 18 years. Another aspect of the JJ enactments (both 1986 & 2000) that needs to be highlighted is that any juvenile who is found to have been involved in a crime, would be considered to be in conflict with the laws of the land but is to be treated as delinquent and not as a criminal. Based on this premise, the JJ Act provides for an elaborate mechanism for dealing with such delinquents and the objective is to introduce a reformation programme for such delinquents.
It is also provided that once apprehended, the Juvenile is required to be presented before the JJ Board (a specialised body to deal with such cases) and not before the regular Court and shall be entitled to bail unless there are circumstances to show that such an order would defeat the ends of justice. Also, a juvenile is not to be sent to police custody and is required to be kept in an observation home during the time the trial of the case is conducted. It is also mandated that a juvenile is to be tried separately if other involved in the crime were adults. Additionally, it is also mandated that a delinquent cannot be sentenced to life imprisonment or death irrespective of the nature of crime and if found guilty, is required to be kept in an observation home for a period of three years as an outer limit.
In other words, even if the juvenile is proved to be involved in a heinous crime and despite the fact that he/she is proved to have inflicted the kind of brutalities, as alleged in the Delhi gangrape case, he can be kept in an observation home for a period of three years only. While the legal position remains thus, the question that has begged attention from time to time and in the instant case as well is how to determine the correct age of the juvenile. There have been instances where determination of age of a person claiming to be a juvenile has been controversial to say the least. As mandated in Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007(JJ Rules), the age of a juvenile can be determined by physical appearance and documents available.
The documents that can be used as evidence are:
- matriculation certificate if not available
- date of birth certificate issued by the School first attended, if both not available
- certificate issued by a corporation, municipal authority or panchayat.
It is also provided that in the absence of any document mentioned in (i), (ii) & (iii) the Court or JJ Board, as the case may be, can seek medical opinion for determination of age. However, it is also provided that in case the age could not be determined conclusively by this mode, benefit of doubt would be in favour of such a person claiming to be a juvenile by considering his/her age on the lower side within the margin of one year. The usual medical test conducted to determine the age of a juvenile is “ossification test” by taking X-ray of the bone joints, dental X-ray of the accused.
However, it has been held in several cases of the Supreme Court that this mode of determination is not conclusive proof. In a given situation where the age could not be determined conclusively, the accused/juvenile is entitled to be given benefit of doubt and thus the probability of error cannot be ruled out.
Post the Delhi gang rape incident, there is a clamour for revising the age bar as stipulated in the JJ Act by reducing it to 16, thereby bringing it to the pre-2000 stage but the moot question is; if this would be sufficient to meet future eventualities where for example the brutalities, as inflicted in the instant case, is by a child who is say 15 years of age? Would it thus not be expedient to address this issue in a more objective manner?
One way of addressing this issue is to consider the mental criminal responsibility aspect of a child that is to say when a child becomes responsible enough to distinguish right from wrong. Countries around the World have adopted this approach. In Australia, for example, the statutory minimum age of criminal responsibility is now 10 years. Between the ages of 10 and 14 years, a further rebuttable presumption operates to deem a child between the ages of 10 and 14 incapable of committing a criminal act. Only if the prosecution can rebut this presumption, by showing that the accused child was able, at the relevant time, to adequately distinguish between right and wrong can a contested trial result in conviction.
From 14 to 18 years, young offenders may be held fully responsible for their criminal acts but are subject to a different range of criminal sanctions than adults committing the same offences. In UK, the age of criminal responsibility is 10 and those between 10 to 17 years of age can be arrested for a crime, though to be separately treated from adults (18 and above) and tried by Youth courts. In the USA, different states have set different age limit to determine if a person is a juvenile and juvenile courts have no jurisdiction to try heinous crimes like murder. In fact, Section 82 of the Indian Penal Code provides that nothing is an offence which is done by a child under 7 years of age.
Section 83 provides 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”. Though the IPC is silent about offence committed by persons between 12 to 18 years of age, this issue has lost significance in view of the provisions made in the JJ Act setting an age bar of 18 years which in any event makes Sections 82 & 83 of IPC redundant.
In a recent judgment pronounced on 13.09.2012 (Ashwini Kumar Saxena vs. State of MP), the Supreme Court set aside the conviction of the accused under section 302 (murder) on the ground that he was 17 years 11 months 25 days of age when the crime was committed based on the provision made under the JJ Act. Thus a difference of only 5 days saved the accused from the gallows and this is nothing but a lacuna in the current legislation and needs to be set right.
Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.