In the recent past, there has been lot of discussions over the punishment to juvenile offenders in brutal crimes such as murder or rape. Several petitions have been circulating in the country to change the laws for juvenile offenders and bring in a stringent law or modify the existing one for punishing juvenile offenders for heinous crimes. The demand to relax the age bar for juvenile offenders gained momentum after one of the accused in the most brutal rape case allegedly turned out to be a “minor”. In India, juveniles up to the age of 18 cannot be tried as adults in cases of serious crimes such as murder or rape.
According to Section 2(k) of the Juvenile Justice (Care and Prohibition of Children) Act, 2000 defines a “juvenile” or a “child” “as a person who has not completed 18 year of age” while 2(l) says a “juvenile in conflict with law” means “a juvenile who is alleged to have committed an offence.”
For those juveniles who commit such intolerant acts, the most severe punishment they will ever receive is a maximum sentence of three years in a reform facility. Certainly, a punishment this lenient for any such brutal crime shall not deter other minors from committing such offence again, nor will it likely result in penitence from the young accused.
While reading through various newspapers and reports on the punishment for juvenile offenders, I came across the report by Justice J.S. Verma panel. In his report he has cited various references to prove his disinclination towards reducing the age of a juvenile offender from 18 years to 16 years. The report bolsters its view of “no capital punishment to juvenile offenders” based on two criterions:
- The Convention on Rights of Child that disagrees with the Capital Punishment or life sentence for those below 18 years;
- Neurological state of the adolescent brain.
For ages, it has been believed that the punishment for juvenile offender should be reformatory. I won’t disagree to that but in a country like ours, do we have such arrangement? We cannot forget that there is a lack of reformatory and rehabilitation facilities in the Indian jails. Under current scenario, we do not formulise transformation of juvenile offenders in jail rather breed criminal minds in our prisons and reformatory system by isolating them in juvenile homes and protective homes. According to the same report, falling recidivism from 8.2% in 2010 to 6.9% in 2011 is an important criterion on which the panel has set its report justifying its disinclination to reducing the age of a juvenile from 18 to 16 years.
In United States of America, the age for juvenile offender is 18 years of age. In Roper V. Simmons case the issue was as to whether it was permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime?
The court held that:
“When a Juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity”
While USA has an age of 18 years for juvenile offenders, the age for criminal responsibility in England, Wales and Northern Ireland is 10 years, in Scotland is 12 years, !3 years in France and Poland, 14 years in Australia, Germany and Norway whereas 15 years in Denmark and Sweden. If we analyse, it does not seem wrong to me that the age for criminal responsibility of juveniles should be reduced to 16 years and the act should be re-visited for punishments. The lax nature of the law in our country invites young violence-prone minor individuals to take out their aggression on others.
In July, 2013 the Supreme Court had rejected petitions for lowering the age of juvenility from existing 18 years, turning down the demand in the wake of a 17-year-old’s involvement in the brutal gang-rape of Nirbhaya. However, the Supreme Court recently said that it would examine whether juvenility should be considered on a case to case basis keeping in view the maturity of the offender and the heinousness of the crime. In any way, the implication of any change in the act shall be prospective and not retrospective which means crimes till date by juveniles shall be tried in light of the present law which would attract a maximum reformatory punishment of maximum three (3) years. Infact, the judgment in the Nirbhaya case by the trial court punished the four offenders with death penalty save as for that of the juvenile offender was that of reformatory/correction home for three years. The same has led to severe outrage in the country demanding death penalty for the juvenile as well. It is demanded that the trial judges should have the discretion to try juveniles as adults or to define youth over 16 years of age as adults when it covers serious crimes. But, whatever said and done, any law cannot be implied retrospectively as I said. For now, the Juvenile offenders have to go to Corrective homes for a period of three years until the law is re-visited which shall take its own course of time.
In a country with divided views like ours, any such change shall not be easy nor as a law abiding citizen or a lawyer myself shall I endorse any such punishment to juveniles without law. However, I would wind up putting forth few important questions to myself and my society: Have you raised your kids maturely enough that you expect them to be held accountable for their actions? Will you or I take responsibility for the abandoned children or raised in a poor surrounding who take up crime easily? Have we taken enough measures to protect the young brains from getting polluted and criminalised?
Until the law change, let us introspect. Let us bring some change around because blaming is not the solution, nipping the evil in the bud is.
-AMIT KUMAR PATHAK, ADVOCATE, SUPREME COURT OF INDIA
 Amended in 2006 and 2011
 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1, 2005 U.S.