Forgive them not, for they know what they are doing

The Delhi gang rape case shook the conscience of the country and targeted the Juvenile Justice Act, 2000, a progressive legislation with a reformatory regime, which enabled one of the culprits of the brutal crime to get away with just three years in a remand home.

The Act was passed to fulfill India’s obligations under the UN Convention on the Rights of the Child, 1989, the UN Standard Minimum Rules for Administration of Juvenile Justice, 1985, also known as the Beijing Rules, and the UN Rules for Protection of Juveniles Deprived of their Liberty, 1990.

India had ratified all these conventions unconditionally. The philosophy of juvenile justice is to reform young offender’s conduct rather than lock them up for decades in a prison with hardened adult criminals.

Laws governing juveniles have existed in the country for more than a century and have been consistent on the point that young offenders needed sympathetic treatment so that they can be weaned away from the path of crime.

Juvenile crimes are not restricted to assault on women. The involvement of youngsters in terrorist activities has been widely reported. The gang rape and murder of the 23-year-old woman in Delhi was committed in the most ghastly manner and shook the nation’s conscience.

The victim’s family is entitled to justice. Serious offences like rape, murder and treason need to be excluded from the scope of the Juvenile Justice Act.

The Supreme Court has pointed out that juvenile offences form only a small percentage of ghastly crimes. A juvenile rarely commits a heinous crime without the support of adults.

It is the influence of society, especially in the company of adults, that make juveniles commit serious crimes. Shielding young offenders guilty of brutal crimes from the rigours of adult justice should be resorted to only if the State is confident that they will benefit from the reformative regime.

It is no doubt the responsibility of the State to reform the juvenile offenders. A stint in a remand home is not enough for their rehabilitation. The atmosphere in most such homes is far from conducive for reformation.

Although the UN conventions did not stipulate the age of juvenile, it advocated an age limit saying that whatever age was fixed must be subject to the “emotional, mental and intellectual level” of the juvenile not being above that age level.

Instead of faithfully implementing the UN conventions, the Juvenile Justice Act of India, under Section 2(k), laid down that a juvenile is any person below the age of 18 years, without taking into consideration the emotional, mental and intellectual maturity of the subject.

Any person up to the age of 18 who commits an offence punishable under any law is not subject to imprisonment in the adult justice system, but will be subject to advice/admonition, counseling, community service, payment of a fine or sent to a remand home for three years at the most.

Had Ajmal Kasab been 17 years, 11 months and 29 days old on 26/11, he would have escaped with three years in a crowded remand home.

The UN conventions provide that a juvenile be treated as an adult in a heinous crime if it can be inferred that he knew what he was doing. Advanced countries like the USA and the UK, both signatories to the UN conventions, faced with an increase in heinous crimes by the young, have amended their juvenile laws.

Any offender above the age of 14 involved in rape or murder is treated as an adult for purposes of prosecution.

When consensual sex by a 16-year-old is allowed in India, an 18-year-old rapist must be assumed to know what he was doing and must be treated as an adult for prosecution. It is a travesty of juvenile justice to pack 1.7 million young offenders in the 815 remand homes in the country with a capacity to accommodate just 35,000.