The juvenile, who is a co-accused in the brutal gangrape of the 23-year-old woman in New Delhi can only be sentenced for a maximum of three years. Vicky Nanjappa speaks with eminent lawyers and judges who agree that India's Juvenile Justice Act needs to be tougher.
With the death of the victim of the Delhi gangrape, the prosecution would now introduce Section 302 of the Indian Penal Code (murder) into the chargesheet, thus giving them the option of seeking a death penalty for the accused.
However, the bigger question that needs to be debated is regarding one of the accused who turns 18 in four months. The Juvenile Justice (Care and Protection of Children Act) states that an offence committed by a person below 18 is an act of innocence.
Around eight years ago, the act was amended and the age of a juvenile under the law was enhanced from 16 to 18.
When the JJ Act was amended, our lawmakers had said, "India today needs children who can grow up to be responsible citizens of tomorrow."
Former judge of the Supreme Court Justice Santhosh Hegde, says that the amendment makes no sense in today's context.
"The mental maturity of an 18-year-old is very different today. Take the Delhi gangrape case for instance. The juvenile will get away with a three-year year reformative punishment because of his age. Can his act be considered as an act of innocence as per the law? It was a brutal act, and he did not act as an innocent while committing the crime. I personally feel that the age of a juvenile under the law should be made 15," he said.
Hegde added that in this case, the prosecution, apart from charging the persons under Section 376 (rape) of the Indian Penal Code can also add Section 302 (murder) into the case. Section 376 only provides for a sentence of life, whereas Section 302 can be punishable with both life and death. Hence the death penalty provisions can now be made applicable in this case.
The laws pertaining to a juvenile are entirely different. He or she cannot be tried under the provisions of the IPC.
Senior advocate C V Nagesh explains that the JJ Act was amended keeping in mind the age of the accused. The idea of the lawmakers was to ensure that a person of such a young age should be given the opportunity to rebuild himself and also reform.
"Any person under the age of 18 is considered to be that of a tender age as per the JJ Act. The idea was to give such a person the opportunity to enter into the mainstream after he or she is reformed. The laws ensure that such a person is not sentenced but reformed. Even in the juvenile courts, the judges, policemen and the lawyers are not allowed to wear their uniforms. The idea is not give the juvenile a feeling that he is being tried, but to make him feel that he is being counselled," he said.
State public prosecutor of Karnataka H S Chandramouli has always argued that the age limit should be brought back to 16.
"Many persons take advantage of this amendment and often would use a juvenile to commit an offence so that he or she gets away with a minimal punishment. In today's mindset, 18 is too old an age to make the JJ Act applicable," he said.
In the Delhi gangrape case, the person who is under 18 will get away by not being tried under the IPC. Even if he turns 18 at the time of the trial, he still will not be tried under the IPC as the matter taken up for consideration is the age at the time of the offence. He will be kept at the juvenile home and ordered to be reformed. Moreover, he is also entitled for bail the moment the chargesheet is filed.
As per the Juvenile Justice (Care And Protection Of Children) Amendment Act, 2006 7A, these are the procedures to be followed:
Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.
A claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act.
Who is a juvenile?
A juvenile is a person who has not completed 18 years of age. A boy or girl under eighteen years is a 'juvenile' according to the Juvenile Justice Act 2000.
Earlier, according to the 1986 Act, the age of boys and girls were different, but the Act in 2000 repealed the act of1986 and it brought the age of male juveniles on par with the female juveniles.
This was done keeping in mind the United Nation's Convention on the Rights of the Child. This defined that any person below 18 shall be termed as a child as per the law.
According to the act today, a juvenile would be exempted from prosecution and punishment. The IPC states that any crime committed by a person below the age of 12 is not a crime. However for acts committed by persons between the age of 12 and 18, there is no such immunity. But if they are found to be guilty, they cannot be treated or sentenced in the same manner as adults.
Juveniles are now dealt by the Juvenile Justice Board and they are also provided with free legal aid.