Written By: Nirmalya Dutta | Updated : August 25, 2013 11:48 AM IST
On Saturday, the grandmother of Chand Hussain Abdul Sattar Shaikh one of the youths arrested in the Mumbai gang rape case showed his birth certificate to the media which claimed that he was less than 18 years of age. While the jury's still out on Shaikh's real age, the escape route that the legal system gives juveniles has many activists demanding that the juvenile age be lowered when dealing with serious offences like rape and murder.
There was similar widespread disbelief during the aftermath of the horrific December 16 Delhi gang-rape when it emerged that the sixth accused could only be tried by the Juvenile Justice Board (JJB) and given a maximum sentence of three years in a correctional facility. Despite protests, the Supreme Court decided to allow the JJB to deliver its verdict though it did admit a plea seeking the fresh interpretation of the term juvenile in the statute of the basis of mental and intellectual maturity of minor offenders instead of the age limit of 18 years while fixing their culpability. Does a 17-year-old have less reasoning power than an 18-year-old? What great mental development will there be in the next one year? Is he less capable of understanding the ramifications of his actions one year before? (Read: How age determination tests work)
Is a juvenile unfit to understand the ramifications of his action?
Developmental paediatrician Dr Leena Deshpande says that it's simply not possible that a juvenile is incapable of understanding what he is doing. 'A normal child's thoughts usually become more organised in the 11-16 years phase. By the time he/she reaches the age of 16, the person is perfectly capable of understanding the ramifications of their actions and what they're doing,' she says. So from a medical and psychological point of view, 16 is an age where a person has reached a level of maturity. Dr Deshpande also added that considering the current social climate and the things children are being exposed to, more and more children are behaving and talking like adults and there is a need to re-think the juvenile age.
So, who exactly is a 'juvenile'?
The definition of a juvenile varies from country to country. In India, the age of a juvenile (both boys and girls) was set at eighteen years of age by the Juvenile Justice Act (JJA) 2000 to conform to the United Nation's Convention on the Rights of the Child. This would mean that all juvenile offences would be tried by the Juvenile Justice Board and not the regular courts. This is done because juvenile criminals were often treated as harshly as adults and would turn into hardened criminals. This act looked to end child labour, reform marriageable age and improve the lives of children throughout the country. The act was passed only after consulting psychologists, legal experts and others but it seems that it has failed us badly. The law left many loopholes which would be exploited time and again. The original act doesn't have a word about rape or murder being committed by juveniles and it didn't seem to occur to the legal eagles that perhaps juveniles who had crossed puberty were capable of rape at all! Under the law, juvenile offenders who have committed heinous crimes (rape and murder) can only be sent to a 'place of safety' for a maximum period of three years.
Is it a good idea to reduce the age?
The Justice Verma report suggested that the age of juveniles shouldn't be reduced. This would lead to various other issues. Defending the panel's recommendations, Prof Shanta Sinha, chairperson of the National Commission for Protection of Child Rights, argued 'it will be difficult to reduce the age bar as India has signed and ratified the UN convention on the rights of the child where the age limit for juveniles has been fixed at 18 years'.
While the SC has considered a PIL where the plea is to grant discretionary powers to trial judges to transfer a minor's case to regular courts after considering the nature of the crime, civil and child rights activists warn of repercussions if the law is modified. 'Sending to prison minors who commit crimes because of the circumstances they grow up in would only turn them into hardened criminal,' Flavia Agnes of Majlis told TOI. 'It is no solution to reduce crimes against women. We must examine the issue dispassionately and be kinder as a society and considerate towards children.'
So what can be done?
Setting a simple number as an age to signify maturity isn't the solution. Minor laws vary across the world. In the UK, 16-year-olds are allowed to drink beer and cider, have sex and be detained for longer periods for more heinous crimes. They are allowed to make most of their decisions and even provided with contraceptives to prevent unwanted pregnancies. The USA defines its minors as under-18, but the laws vary from state to state. 90% of the states in the US however allow discretionary waiver to try underage accused in adult courts for offences like murder or rape. Similar laws are needed in India, jurists feel. (Read: India - no country for women)
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