To change or not to change

Soon after the December 16 gang rape case hit the headlines, Union women and child development minister Krishna Tirath had said that the juvenile offender, one of six accused in the gang rape and murder of the 23-year-old girl, should not be let off lightly considering the seriousness of the crime. On Friday, the minister said that her ministry is now planning to include a provision in the existing Juvenile Justice (Care and Protection of Children) Act (JJA), 2000, under which juveniles over 15 years and charged with heinous sexual assault cri-mes would be treated as adults and tried in a regular court of law. But the legal age that determines who is a juvenile will not be chan-ged. The JJA, as it stands now, says that anyone below 18 years cannot be charged under the Indian Penal Code (IPC) and such offenders can, at the most, be awarded three years at a reformation home.

Society, however, is divided on this contentious issue. Some say that when a country recognises the principle of juvenile justice, the accused must get protection irrespective of the seriousness of the crime. Moreover, they add, that if the JJA has to be changed now, it can done in two ways: either by reducing the legal age that determines who is a juvenile offender or by giving a court discretionary power. Both, they feel, would be knee-jerk reactions. Chief Justice of India’s wife Minna Kabir, a voluntary child rights worker, feels that the present law on juvenile justice is fine. However, a section of the public says there’s a strong case for changing the law and the seriousness of the crime must be taken into account since juvenile crime (rape) cases have shown a spurt: there has been a 33.8% rise in such cases between 2001 and 2010. The State Transfer Laws of the United States give courts discretionary powers to transfer exceptional cases of juvenile offence to adult courts and there are strict guidelines for that. And in some states in that country, the age of criminal responsibility is under 17. In Britain, the consideration of criminal responsibility is 10 years. In the 1993 James Bulger case, the lead prosecution counsel successfully rebutted the principle of doli incapax, which presumes that young children (below 10) cannot be held legally responsible for their action, and recommended a minimum sentence of eight years to the two young offenders. In India, too, it is argued, there is a need to differentiate between criminal and civil responsibility since the juvenile years, especially the age around 17-18 years is very much a grey area when a minor can act and behave almost like an adult.

Whatever may be the future of the Juvenile Justice Act in the country, any changes in the law, as suggested by the minister and many others, will have no bearing on this particular case since any amendment in criminal law is not applicable with retrospective effect. Yet, the rising heinous crime graph in that age group and the fact that this Delhi case could fall in the category of rarest of rare cases necessitate a relook at the law.