Juvenile Justice Amendments: Playing To The Gallery

There were other points within the Juvenile Justice Act which could have been focussed on and a meaningful, non-arbitrary amendment made. 

The Juvenile Justice Act has been amended in the last session of parliament in order to permit juveniles between 16-18 years of age to be tried as adults for heinous offences. Before the amendment no person below 18 years of age could be dealt with for any crime except by being sent to a ‘special home’ for a maximum period of 3 years, that too as a last resort. Today, Nirbhaya’s killer is walking back into society just 3 years after committing the gruesome incident with his identity undisclosed (maintaining anonymity being another requirement of our juvenile justice law).

As the Supreme Court commented in a 2013 judgment, the purpose of sending juvenile offenders to such special homes is “to rehabilitate a juvenile in conflict with law with a view to reintegrate him into society.” The Court however was careful to note that “this is by no means an easy task and it is worth researching how successful the implementation of the Act has been in its avowed purpose in this respect.” Basically we have no idea about the effectiveness of these special homes and the process of ‘re-institutionalization’ or ‘re-orientation’ they undertake. We are clueless on what is the state of the delinquent’s mind at the end of the three years. Except for some news reports containing vague and unscientific evaluations of his ‘reformed’ mind we, as a society, have no assurance that this person has any less propensity to commit a similar crime as he did 3 years ago. Yet, the law requires him to walk free.

Now what does the recent amendment do? It merely reduces the age of a person for being treated as a juvenile to 16, obviously because Nirbhaya’s killer was 17 when he committed the crime. What if a similar crime is committed by somebody who is 15? Will we have another amendment? After all, in most US states, the minimum age limit for a juvenile to be treated as an adult in cases of heinous crimes varies between 13 to 15.

Was there any scientific material based on which the government chose 16 as the cut-off age? Unfortunately, by this knee-jerk reaction and by allowing a ‘Juvenile Justice Board’ to determine if a person below 18 can be treated as an adult, the government has adapted an old English technique of determining juvenile punishment based on the principle, ‘malice supplies age’. This principle, according to the 19th century English jurist Sir William Blackstone, means “the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment.”

Today, it is well established that one cannot scientifically determine what Blackstone wants to. While deciding on what should be the appropriate age to classify a juvenile for imposing death penalty under American law, Justice Kennedy of the US Supreme Court says:

“It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014–1016. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701–706 (4th ed. text rev. 2000); see also Steinberg & Scott 1015. …trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder… Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach… The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”

The 18 year-rule adopted under the UN Convention on the Rights of the Child and under most foreign laws is only to ensure certainty in determining juvenility. By lowering this age and giving liberty to some authority to evaluate if a juvenile above that age can be treated as an adult, the amendment has let in scope for a lot of arbitrariness and uncertainty. In fact when PILs were filed challenging the Juvenile Justice Act in the wake of the ‘Nirbhaya’ incident the Supreme Court strongly refused to lower the age limit holding as follows:-

“The Juvenile Justice (Care and Protection of Children) Act, 2000, is in tune with the provisions of the Constitution and the various Declarations and Conventions adopted by the world community represented by the United Nations. The basis of fixing of the age till when a person could be treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the Rights of the Child, as was brought to our notice during the hearing. Of course, it has been submitted by Dr. Kishor that the description in Article 1 of the Convention was a contradiction in terms. While generally treating eighteen to be the age till which a person could be treated to be a child, it also indicates that the same was variable where national laws recognize the age of majority earlier. In this regard, one of the other considerations which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. Along with physical growth, mental growth is equally important, in assessing the maturity of a person below the age of eighteen years. In this connection, reference may be made to the chart provided by Mr. Kanth, wherein the various laws relating to children generally recognize eighteen years to be the age for reckoning a person as a juvenile/child including criminal offences.”

By reducing the age limit to 16 years, only to assuage public sentiment, the government has disturbed this international consensus on what should be the maximum age of juvenile. Instead of taking this unscientific approach the government may have done well to amend another provision of the Juvenile Justice Act, which is the root problem and which is far more lenient than anything prescribed under the UN convention or foreign laws; for example, the three year outer limit for keeping a juvenile delinquent under correctional care.

If the purpose of keeping a juvenile offender in a ‘special home’ is to ensure he is rehabilitated, does it make any sense to let him go after three years without determination of his mindset at the end of the stay? Importantly the UN convention does not impose any time limit. It only says “the arrest, detention or imprisonment of a child shall be….used only as a measure of last resort and for the shortest appropriate period of time.” (Article 37(b)) This “shortest appropriate period” has been interpreted to mean such time required to reform the child and a period less than life imprisonment without chances of parole. Therefore, there is no international norm requiring Indian law to restrict the term of a juvenile’s detention to just three years. Instead of amending the law to allow authorities to keep a juvenile under surveillance for as long as may be necessary, we have amended the law to adopt the much criticised practice (in vogue in several developed countries) of treating juveniles as adults based on vague and unscientific factors.

This amendment may not survive a legal challenge before Courts at least for two reasons. As mentioned above, the upper age limit of 18 years was found to be legally valid by the Supreme Court based on international practice and ‘scientific data’. The Court may not go back on this view merely because the legislature has changed its policy. Secondly, the amendment bill also makes it mandatory for a person who committed an offence between the age of 16 and 18 to be treated as an adult if he is apprehended after he turns 21. This appears to be arbitrary on the face of it. If the question as to whether an offender between 16 and 18 years of age should be treated as an adult is to be decided by a Juvenile Justice Board depending on his mindset and psychology, why should there be an automatic presumption of him being an adult only because he is caught after he is 21. One cannot think of a rational basis for this distinction. The Courts are likely to treat this cut-off as arbitrary and violative of the guarantee of equality under Article 21 of the Constitution of India.