At one point of time, the 26.11.2008 Mumbai terror attack accused, Ajmal Kasab, a Pakistani terrorist, had claimed that he was a juvenile and therefore he should be given benefit of the law relating to juvenile justice in India, notwithstanding the fact that he was involved in a ghastly terror attack in which 164 persons were killed. However, his claim was found to be false. The issue of juvenile justice is again in limelight since one of the main accused in the 16.12.2012 Delhi gang rape case is also a juvenile. The law requires that this juvenile will have to be dealt with only under the law relating to juvenile justice in India and not under the normal criminal laws that apply to adults. This means that he cannot be sentenced to imprisonment and cannot be awarded the death penalty. There are strong demands from various sections of the society to consider this juvenile as an adult and prosecute him along with other five accused persons in this gang rape case, with many people demanding death penalty for this juvenile as well as for other accused persons. So, let us try to understand whether that is possible and also understand the provisions of law relating to juvenile justice in India.
Division of persons on the basis of age into four categories for deciding their criminal liability:
Indian laws have created four categories of persons (who are accused of committing any offence) on the basis of their age. The criminal liability of a person, who has committed an offence, depends on the age-wise category to which he belongs. This is explained as under:
(1) Below 7 years of age:
Section 82 of the Indian Penal Code declares that nothing is an offence which is done by a child under seven years of age. Thus, irrespective of what crime is committed by a child below seven years of age, he shall not be liable for any punishment for such crime. For example, if a six year old child kills another person, whether intentionally or accidentally or negligently or otherwise, he shall not be criminally liable for this offence. No case can be instituted against him. He can not be prosecuted for this offence. There is a complete bar for his prosecution if he is below the age of seven years. Period.
(2) Between the age of 7 years and 12 years:
Section 83 of the Indian Penal Code lays down as under:
“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.”
Thus, if an offence is committed by a child who is above 7 years of age but under 12 years of age, it will first have to be ascertained whether the child has attained sufficient maturity of understanding due to which he can judge the nature of his alleged conduct (i.e., the act of committing the offence) and the consequences thereof. For example, let’s say a child picks up a gun and shoots and kills another person. The question is whether he had developed sufficient maturity to understand that shooting with a gun can kill another person (and, in fact, also whether he understands what is the meaning of “killing”) and also that what are the consequences of killing a person in this manner. It may so happen that a child might have considered the gun to be a toy-gun (similar to a toy-gun with which he might have been playing as a child).
Now, if such a child commits an offence and he did not have the sufficient maturity of understanding the nature and consequences of his conduct, he would not be liable for that offence. On the other hand, if he had the sufficient maturity of understanding to judge the nature and consequences of his conduct (leading to that offence), he shall be liable for that offence in accordance with the provisions of law. However, even in such a case, he shall not be prosecuted and punished like adult offenders. Such a child committing an offence shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India (details mentioned below). Thus, even if such a child is liable for action for the offence committed by him, he cannot be imprisoned and he cannot be given death penalty.
(3) Between the age of 12 years and 18 years:
If an offence is committed by a person who is of the age of 12 years or above but below the age of 18 years, he shall be liable for such offence. However, he shall not be prosecuted and punished like adult offenders. He shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India. Thus, such a person also cannot be imprisoned and he cannot be given death penalty.
(4) Of or above the age of 18 years:
If a person committing an offence has completed the age of 18 years or is above the age of 18 years, he is criminally liable for such offence in accordance with the normal criminal laws of the country. For example, such a person committing the offence of murder shall be liable for punishment under Section 302 of Indian Penal Code, and his prosecution will be conducted under the provisions of the Criminal Procedure Code. Such a person is thus liable for any punishment that is prescribed for the offence committed by him. Of course, other general exceptions relating to offences (such as right to private defence) shall be available to him during such prosecution, if otherwise applicable in the circumstances of the case.
Law relating to juvenile justice:
The law relating to juvenile justice in India is presently contained in the Juvenile Justice (Care and Protection of Children) Act, 2000. This Act adopts a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation. Any offence committed by a juvenile, for which he is criminally liable as per the provisions already explained hereinabove, is required to be dealt with in accordance with the provisions of this Act only, notwithstanding anything to the contrary contained in any other law.
Let us first understand what is meant by a “juvenile”. Section 2(k) of this Act defines that “juvenile” or “child” means a person who has not completed eighteenth year of age. Thus, any person below the age of 18 years is a juvenile. Accordingly, as per the provisions of this Act, any offence committed by a person below the age of 18 years is required to be dealt with under this Act. However, this is also subject to the provisions of law as mentioned in the aforesaid four age-wise categories. Thus, if a child is not liable for any action for an offence committed by him (e.g., if he is of the age of 5 years only), no action can be taken against him even under the provisions of the aforesaid Juvenile Justice Act. However, if a child/juvenile commits an offence and does not come under any of the “complete” exemptions mentioned in the aforesaid four age-wise categories, then the provisions of this Act will be attracted and such juvenile can be dealt with only under the provisions of this Act. Such juvenile cannot be prosecuted under the normal criminal laws applicable to adults.
It is pertinent to mention that Section 16 of the said Juvenile Justice Act clearly lays down that the sentence of death penalty cannot be awarded to any juvenile, and likewise the sentence of imprisonment for any term cannot be awarded to a juvenile. Thus, a juvenile can never be sentenced with imprisonment (even for a day) and no death penalty can be awarded to him.
Moreover, as per the provisions of Section 15 of the said Act, irrespective of the gravity of the offence committed by a juvenile, the maximum that can happen to the juvenile is that he can be sent to a special home (meant for reception and rehabilitation of juveniles) for a maximum period of three years. Remember that a “special home” is not a prison. It is a rehabilitation centre for juveniles set up under Section 9 of the Act. In fact, for most offences committed by a juvenile, he may simply be let off by advice or admonition, or may be asked to perform community service, or asked to participate in group counselling, or released on probation of good conduct, or on fine in some cases, etc.
Moreover, proceedings against a juvenile for an offence committed by him are not to be conducted in the regular trial court. These proceedings are conducted by a Juvenile Justice Board that consists of three members, including a Metropolitan Magistrate (or Judicial Magistrate) and two Social Workers.
Thus, even if a juvenile has committed the most heinous offence of terrorism or gang rape, the maximum that can happen to him is that he may have to spend a maximum period of three years in a special home to rehabilitate him. No imprisonment and no death penalty is possible even in such cases.
Therefore, the juvenile involved in the 16.12.2012 Delhi gang rape case cannot be awarded the death penalty or be sentenced to imprisonment even for a single day. This is despite the fact that he was actively involved in the said gang rape, and in fact he even instigated other accused persons in that case. He was the person, who inflicted perhaps the maximum harm to the victim in that case, as per the reports appearing in the media. Yet, the law relating to juvenile justice prevalent in India does not allow any imprisonment or death penalty to him.
In a similar manner, even if a juvenile is accused of being a terrorist, having committed mass murders, he cannot be imprisoned and he cannot be awarded with the death penalty. It is pertinent to point out that even a foreign citizen is entitled to the benefit of the law relating to juvenile justice in India if he happens to be of the age of less than 18 years. Thus, if Ajmal Kasab, the Pakistani terrorist involved in the Mumbai terror attacks of 26.11.2008, had been found to be of the age of below 18 years (as he had initially claimed), it would not have been possible to award death penalty to him and to execute him. His aforesaid claim of being a juvenile was found to be false and he was found to be an adult at the time of commission of the said offence.
The readers may feel that the provisions of the aforesaid Juvenile Justice (Care and Protection of Children) Act are grossly unjust to the victims of the heinous offences committed by juveniles and to the society at large. For example, in the case of Delhi gang rape, there are widespread demands to award death penalty to the juvenile involved in that case by prosecuting him in the regular court of law. Likewise, there are also demands for amending the aforesaid Juvenile Justice Act to make provisions for creating exceptions in the case of juveniles involved in heinous offences. There is also a demand for reducing the age limit for a juvenile to 16 years from the current 18 years.
It may be pointed out that while it may be possible to amend the said law relating to juvenile justice in India with prospective effect, it will not be possible to amend it retrospectively. This means that if the age limit for juvenile is to be reduced, it can be done only for future cases and not for the past offences. Likewise, it is not possible to apply enhanced punishments to the past acts of the juveniles by subsequent amendments to the said Act. There is a clear restriction on such retrospective amendments in the provisions of Article 20 of the Constitution of India.
Article 20 of the Constitution, inter alia, lays down that “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence”.
Article 20 is a fundamental right guaranteed to all persons (whether citizens or otherwise). Article 13 of the Constitution clearly lays down that any law that is inconsistent with the fundamental rights is void. Likewise, the Parliament and the State legislatures are prohibited from making any law that takes away or abridges the fundamental rights guaranteed under the Constitution. In fact, a 13-judge bench of the Supreme Court had held in 1973 in the case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461, that basic features of the Constitution cannot even be amended. Many of the fundamental rights have also been held to the basic features of the Constitution. The list of basic features keeps on expanding as newer cases are decided by the Supreme Court. Article 20 appears to be one such basic feature of the Constitution, and it may not be possible to take away or abridge the fundamental right guaranteed under this provision even by an amendment of the Constitution.
Thus, it is not possible to award death penalty or imprisonment to the aforesaid juvenile involved in the said Delhi gang rape case even by amending the aforesaid Juvenile Justice Act since such amendment will not apply to him retrospectively due to the fundamental rights guaranteed in Article 20 of the Constitution. To some people, it may appear to be unjust or unreasonable; however, what I have mentioned above is the law of the land howsoever unpleasant it may appear to be to some people.
The only way in which the aforesaid juvenile can be punished with imprisonment or death penalty, is if he turns out to be an adult, i.e., of the age of 18 years or more by scientific tests being conducted on him to scientifically verify his age. If the scientific tests also show that his age is less than 18 years, i.e., he is a juvenile as per the aforesaid law, in that case it is not permissible under law to punish him with imprisonment or death penalty, in any circumstances.
Before I conclude this article, let me point out that the General Assembly of the United Nations had adopted the Convention on the Rights of the Child on 20.11.1989. This Convention had prescribed a set of standards to be adhered to by all member countries in securing the best interests of the child. One of the important component of this Convention was relating to social reintegration of child victims, to the extent possible, without resorting to judicial proceedings. It may be pointed out that the Government of India had ratified this Convention on 11.12.1992. Likewise, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), also lay down certain standards for dealing with juveniles. The aforesaid Juvenile Justice (Care and Protection of Children) Act was enacted by the Parliament of India in the year 2000 keeping in view the standards prescribed in these Conventions and other relevant international instruments. This fact is specifically mentioned in the Preamble of the said Act. The objective, therefore, was to ensure that juveniles are treated differently from adults in the matter of offences committed by them, with the object of rehabilitating them in a more humane way rather than punish them.
No doubt, there are some lacunae in the law relating to juvenile justice. Some of the changes could perhaps be reduction in the age-limit from 18 years to 16 years (at least in the case of male persons), and a provision for creating reasonable exceptions in the case of heinous and grievous offences subject to approval by a high-level expert body in the fact and circumstances of a case. However, there is a need to first seriously deliberate upon the changes by involving experts from different fields, instead of jumping to hasty conclusions. The fact remains that there is a need to reconcile the competing requirements of a more humane approach in the case of juveniles and the demands for harsher punishments to those who consciously commit horrifying offences knowing fully well their consequences. There is no easy answer, unfortunately, though. For each single juvenile committing a ghastly offence that calls for a harsh punishment, there may perhaps be 10 unfortunate juveniles who may have committed certain offences in compelling circumstances (many of which may be beyond their control) that call for a more humane approach in their cases. So, either extreme may not be desirable. A delicate balance may have be struck as per which most juveniles, as a general rule, are required to be treated in a more humane manner; but in some rarest of rare cases of heinous and grievous offences deliberately and intentionally committed by a juvenile, he may be subjected to prosecution and punishments under the normal criminal laws of the country after an approval by a high-level expert body is accorded in the fact and circumstances of a case.
In the ultimate analysis, one also has to keep in mind the failure of our system. More than 65 years after independence, we are yet to provide even basic education to our children and leave many of them to the unhealthy environment that forces them to do certain things that a normal human being may not do. Many of such children are in fact victims of the circumstances they live in. Therefore, a comprehensive and rational approach is needed to solve this problem.
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