The Rajya Sabha has passed the Juvenile Justice (Care and Protection of Children) Bill, 2015. The demand by the Communist Party of India (Marxist) and a few others for sending the Bill to a select committee was perfectly justified.  Their opposition to the Bill also had formidable juridical foundation. The topic needed careful consideration in a deliberative democracy. This is especially so after the Supreme Court&’s expression of helplessness in the plea against release of the juvenile accused in Nirbhaya gang rape case for “want of legislative sanction”. But the proposed change in the law would be vulnerable to judicial review. According to the Bill, juveniles aged 16 years and above may be tried under law for adults for heinous crimes. A lot of discretion is vested with the Juvenile Justice Board, which may decide whether a child should be tried as an adult when heinous offences are alleged. For an indeterminable minute fraction of “minors with the adult traits” the entire juvenile law is disproportionately altered, making the very law grossly uncertain.

Public pressure:

The Bill was hurried in the context of the plea by the Women&’s Commission before the Supreme Court which was summarily rejected. In my view, the matter was not to be taken to the Court by the Women&’s Commission at all for more than one reason.  Firstly, the apparent legal limits in the matter ought to have been correctly understood by a body like the Women&’s Commission which in turn should have abstained from acting like an illiterate litigant.  Secondly, having noticed the fact that the accused had already been convicted though inadeq-uately, as many might think, a second conviction or sentence of any brand, even in the guise of reformation was a legal impossibility. The principle related to double jeopardy says that no person shall be convicted twice for the same offence.

In the celebrated case of Breed v. Jones 421 U.S. 519(1975), the U.S. Supreme Court in a slightly different context held that waiver of a juvenile to a criminal court subsequent to the adjudication in juvenile court would amount to double jeopardy.  The doctrine would apply to repeated sentences by juvenile courts or by any courts for that matter on the same ‘subject matter’.  In India, Article 20(2) of the Constitution clearly accepts the concept by declaring that “no person shall be prosecuted and punished for the same offence more than once”.

The Women&’s Commission had created an emotionally charged atmosphere by putting forward a conceptually flawed proposition which implied that amendment to the Juvenile Justice Act would enable continued detention of the accused in the instant case.  It is rudimentary that a punishment which was not due at the time of commission of the offence cannot be imposed by way of a subsequent legislation. Retrospectivity in penal provisions is practically alien to criminal jurisprudence. All this fallacious and sensationalised propaganda in turn led to a sentimental ambiance for a passionate legislation, which is neither sound nor sustainable. Public pressure is not a safe source for penal statute where individual liberty is at stake.

The serious legal impediments in amending the Juvenile Justice Act, as proposed in the Bill ought not to have been overlooked by parliamentarians. The Government of India having ratified the resolution of the U.N. Convention on the rights of the child (1989) is bound by the concept of juvenility as proclaimed in the Convention.  Therefore, the country is obliged to treat those below 18 years of age as children and to treat them equally in the realm of penal laws as well. This equality would stand negated when the Bill takes the form of law.

There were apparent anomalies in the draft Bill as it stood earlier which required greater scrutiny. The penalties prescribed do not tally with the gravity of offences enumerated in the Bill.   For example, intoxication of a child would invite a sentence of imprisonment of up to seven years where as selling of a child is taken as ‘less serious’ as it would lead to jail term for 5 years only. Such provisions which obfuscate the idea of proportionality needed further examination.

Hurrying the law

It is dangerous to hurry any enactment meant for social security.  Legislation is too serious a matter and it cannot depend upon crowd behaviour on the streets.  Nor it can rest on emotional or populist measures, and the debates in the Parliament cannot be superficial or deleterious. The Bill had serious lacunae in constitutional terms. The Bill said that in cases of heinous offences, juveniles between the age of 16 and 18 years should be treated as adults.  This stipulation   would offend Article 14 of the Constitution by treating the unequal, i.e, the adult and the child, equally for the purpose of prosecution in certain cases. The Bill suggested that a child aged between 16 and 18 years committing serious offences could be tried as an adult, if he or she is apprehended after 21 years.  This again would mean that depending upon the age at which one is apprehended, the method of trial and nature of sentence might vary.  The stipulation negates Article 20(1) of the Constitution which says that one cannot be subjected to “a penalty greater than that might have been inflicted under the law in force at the time of commission at the offence”. The oratorical discourse in the Rajya Sabha however overlooked such fundamental tenets.

The Bill, on being enacted, would also do violence to the Constitution Bench decision of the Supreme Court in Pratap Singh v. State of Jharkhand (2005) 3 Supreme

Court Cases 551, which endorsed the 2000 Act in clear terms in the context of child rights as expounded in the U N treaty. The Court  said that for the purpose of sentencing, a person who is not juvenile under the 1986 Act (which attributed juvenility only till 16 years of age) should be treated so in view of the 2000 Act. The statute, in the words of the Supreme Court “provides for beneficent consequences and… to be constructed liberally”. The unchecked discretion now vested with the Juvenile Board, which is a quasi-judicial amalgamation of personalities, is an unwelcome change.

The other side:

However, debates on juvenile crimes and the means to tackle the same should go on. The issue has universal relevance. Also there are lessons from other jurisdictions. In 1996   Bennet, Dilulio and Walters, picturised  the Amercican scenario:-

“America is now home to thickening ranks of juvenile “super-predators”—radically impulsive, brutally remorseless youngsters, including even more pre-teenage boys who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs, and create serious communal disorders. They do not fear the stigma of arrest, the pains of imprisonment, or the pangs of conscience.  They perceive hardly any relationship between doing right (or wrong) now and being rewarded (punished) for it later.  To these mean-street youngsters, the words “right” and “wrong” have no fixed moral meaning”. (Body Count, New York: Simon &Schuster).

A report of the Federal Bureau of Investigation in the U.S (2002) has revealed that about 1.5 million youths under age of 18 are arrested each year in U.S for crimes which include murder.  The report further says that more than 700,000 youths are part of street gangs involved in criminal activities.

Even in the 1980s and 1990s, the U.S trend was to treat more juvenile offenders as criminals. Shay Bilchik, in the National Report series on juvenile offenders and victims, says that in the U.S the attempt has been “to strike a balance in juvenile justice systems among system and offender accountability, offender competency development and community protection”.  The definition of juvenile differs from state to state.  In Georgia, Louisiana, Michigan and Texas a person under 17 years of age is a juvenile where as in New York and North Carolina one has to be below 15 years, for being treated as juvenile. In France, children between the age of 13 and 18 could be subjected to sentence, depending upon the circumstances and the personality traits.

Indian scenario:

In India, the National Crime Bureau has published a report containing alarming data (Crime in India-2014). As many as 31,725 cases under the Indian Penal Code were registered against juveniles in 2013 where as in 2014 the number rose to 33,526. This shows a 5.7 per cent increase in juvenile crimes falling under the IPC. The report further says that “the highest share of cases registered against juveniles was reported under the crime head ‘theft’ (20 per cent) ‘rape’ (5.9 per cent) and ‘grievous hurt and assault on women with intent to outrage her modesty’ (4.7% per cent)” and that “these four crime heads have together accounted for 39.7 per cent of total IPC cases (registered against juveniles in 2014)”.

The Rajya Sabha has correctly taken note of the ubiquity of crimes committed by the children in India. Chapter 10 of the report highlights the quandaries like illiteracy, poverty and homelessness among the children apprehended in different crimes.

The policy paper released by the National Centre for Policy Analysis (NCPA) (1998) that conducted a global survey on the subject sees “a close connection between lack of punishment and the forming of criminal habits”. Punishment for juvenile has been ‘effective’ according to the paper. The legislative amendment in India could have considered all these developments, and explored the possibilities for a better legislative synthesis.

There is a need to redefine juvenile delinquency in the present environment at the global level after revisiting the UN treaty of 1989. However, for us, in the immediate context, an amendment to the Juvenile Justice Act by incorporating provisions for reformative rehabilitation for a longer tenure, without offending the UN treaty is both possible and feasible. Parliament ought to have been more serious in the matter and the discussions required a solid legal foundation. The point is to strike a balance between the child rights and social security without offending the egalitarian values reflected in the global treaties.

 

(The writer is a lawyer practising in the Supreme Court of India and the High Court of Kerala. He is the author of The Spirit of Law (2012). He can be reached at [email protected])