PAPER

TO BE PRESENTED

AT

NATIONAL SEMINAR

ON

„JUVENILE JUSTICE AND HUMAN RIGHTS:

(CONTEMPORARY ISSUSES CHALLENGES AND OPPURTUNITY)

SUBTHEME: SETTING AGE FOR CRIMINAL RESPONSIBILITY; WHETHER SUCH AGE NEEDED TO

LOWER FOR SERIOUS CRIMES LIKE RAPE AND MURDER? JUDICIAL APPORACH

ORGANISED BY

THE ICFAI UNIVERSITY,

FACULTY OF LAW, DEHRADUN

…………………………………………………………………………………………………

TO BE PRESENTED BY

MISS. PARIKRAMA. JAIPRAKASH KHOT

LAW STUDEENT (NLCVTH YEAR)

MANIKCHAND PAHADE LAW COLLEGE,

AURANGABAD, MAHARASHTRA

CONTACT – 8275354002, 9850596842

EMAIL –advpjkhot@gmailcom

NATIONALITY- INDIAN

ABSTRACT

“Childhood is a notion that is subject to constant revision in any given era or place”- this

phrase has assumed significant importance in the present legal scenario making it inevitable

to analyze if this understanding is indeed true or not. In the aftermath of NIRBHAYA‟S case

in India a big debate arose with regard to correctness of exiting age of criminal responsibility

in India.

There was a great hue and cry to revisit the minimum age of criminal responsibility at least in

case of heinous and serious offences. Because of the great rising pressure from the public at

large, the Indian cabinet has introduce far reaching changes in the Juvenile law and has

introduced a new bill i.e. JUVENILE JUSTICE ( CARE AND PROTECTION OF

CHILDREN) ACT 2014 ,and empowered the juvenile boards to try the juvenile in heinous

and serious offences like rape murder etc.

But it must be made clear that the object of this new bill is to REFORM and not to PUNISH.

as according to present juvenile law, any case relating to minor can be tried only in juvenile

board and the maximum sentence awarded is only three(3) years without any distinction of

any kind of crime , this resulting no deterrence for law among the teenagers.

As a result of which on the year 2013 there was overall 13% increase in the offence rate by

the juvenile‟s. Previously there were 27,936 juvenile offender in 2012. But this number rose

to 31,725 in 2013. And the highest rate if increased offences are offences against women.

According to report of NCRB, there is

132.3% increase in rate of Assault.

70.5% increase in offences of insult or out raging the modesty of women.

And 60% increase in cases of Rape.

According to the report in 2013 approximately 1396 juvenile were booked for

the offence of rape.

Thus the hon. Apex court in SALIL BALI VS. UNION OF INDIA ( W.P 10 OF 2013) held

that „ the age of criminal responsibility in a legal system that recognize the concept of age of

criminal responsibility for juvenile should not be fixed at too lower the age level, keeping in

mind the emotional, mental and intellectual maturity of the juvenile.‟

To conclude my abstract I would like to quote a statement of MR. G.E. VAHANAVATI,

hon. Attorney general of India “why a minor has turned offender?? Has the society failed??

OBJECTIVE

This research has be done with the broader objective of understanding the present juvenile

law and the need for amendment in it in order of revisiting the minimum age for setting

criminal responsibility especially in cases of heinous crimes.

METHODLOGY

As this subject is a vital legal issues in present legal scenario researcher have adopted both

doctrinal and non. Doctrinal methods for deep and detail research of the topic.

KEYWORDS

Minimum age, revisiting age of criminal responsibility, heinous offences,

INDEX

1. Introduction

2. Objective

3. Definition

4. Historical development of children law in India

5. Age for setting criminal responsibility in India

a. Legal basis

b. Scientific basis

6. Global scenario on the issue of age

7. The number speaks

8. The voice of common man

a. For the motion

b. Against the motion

9. The judicial approach

10. Recommendations

11. conclusion

INTRODUCTION:

“OUR GREATEST NATURAL RESOURCE IS THE MINDS OF OUR CHILDREN!”

WALTER DISNEY 1

Children are the future of our country. So it is responsibility of every one that they should get

a safe and secure environment. As they are greatest natural resource and asset of any country,

they must be allowed and provided opportunity to grow up to become robust citizens,

physically fit, mentally alert and morally healthy, endowed with skills and activations needed

by the society. They must be provided with equal opportunities for development during the

period of their growth.

But, the delinquent behavior of this important asset of country has now

become issue of great concern. Juvenile delinquency is on increase today and is raising one of

the major issues faced by the world at large. The last decade has witnessed a huge leap in the

rate of juvenile crimes.

Brutal assault and rape incidence on 16th

December 2012 generated a

wave of shock and anger not only in India but also in the whole world. The heinous act in

which one of the accused was alleged to be juvenile raised a fresh debate on revisiting the age

of juvenile in India. It once again raises voice on setting minimum age of criminal

responsibility especially in case of heinous and serious offences like rape and murder.

OBJECTIVE:

The objective of this research is to find out answers of few important questions like,

Are the juvenile laws in the country too soft and lenient and require reconsideration?

How does one can ascertain reasonable punishment for a child?

How can one ensure deterrence as well as reformation and restoration?

1 www.brainyQuotes.com

Is it the need of hour to revisit the age for setting minimum age of criminal

responsibility?

Impact of global scenario

This research is done with the broader objective of understanding the present juvenile

law and need of amendment in it to curb the issue of juvenile delinquency.

DEFINATION:

Before finding answers to the above mentioned questions, it is important to know the

meaning of few basic terms.

CHILD:

1. According to Wikipedia, the free encyclopedia,

. “Biologically, a child is a human between the stages of birth and puberty”

2. The United Nations convention on the RIGHTS OF CHILD2, defines child as,

“Human being below the age of 18 years unless under the law applicable to child,

majority is attained earlier.”

(This definition is ratified by 192 out of 194 member countries of U.N.O)

JUVENILE:

1. According to Cambridge learners dictionary,

“Juvenile is relating to a young person not old enough to be considered as an adult.

2. According sec. 2(k) of the juvenile justice (care and protection of children) act,

2000 “juvenile or child means a person who has not completed eighteenth years of age.

MINIMUM AGE FOR SETTING CRIMINAL RESPONSIBILITY (MACR)

“IT is the age below which a person is immune from any criminal liability due to lack of

maturity and judgment to understand the consequences of one‟s actions.”

2

HISTORICAL DEVELOPMENT OF JUVENILE LAW IN INDIA:

“The more you know about the past, the better you are prepared for the future.”

Theodore Roosevelt 3

So, while discussing this important issue of setting minimum age for criminal

responsibility, we must first put a glance on the historical development of children law in

India.

The first special legislation for juvenile in India was enacted in 1850 with THE

APPRENTICE ACT, requiring children aged 10 to18 convicted in court to be given

vocational training as part of their rehabilitation. Next was the REFORMATORY

SCHOOLS ACT, 1876 & 1897. Under this act the court could detain delinquents in a

reformatory school for period of 2 to 7 years, but only up to 18 years of age. Then came

THE INDIAN CHILDREN ACT from INDIAN JAIL COMMITTEE( 191-1920) . also

provisional government enacted special legislation separately for their respective area,

containing provision of specialized mechanism for treatment of juvenile.

The law relating to young people went through number of chances from time to time

until THE JUVENILE JUSTICE ACT, 1986 defined juveniles as under 16 for BOYS and

under 18 for GIRLS. However this act was critised by human activist, because it put

children who had committed crime in reformatories alongside those who were neglected

and in need of care from state.

In 2000, India raised its definition of a male juvenile to 18 from 16 under the

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) Act, 2000. Actually

doing so was a part of nation‟s obligation under the United Nation‟s obligation under the

United Nation‟s Convention.

Later an amendment was made to the Act in 2006, with main emphasis on speeding up

administration of justice for Juveniles and the Model Rule 2007. Later on based on

resolution passed by the CONFERENCE OF CHIEF JUSTICE OF INDIA IN 2009, several

High courts constituted JUVENILE JUSTICE COMMITTES to be headed by sitting judges

of High court. The JJ Act was further amended in 2011 and some provisions in the original

Act of 2000 were deleted as they were discriminatory to the person affected from leprosy.

3

AGE FOR SETTING CRIMINAL RESPONSIBILITIES IN INDIA:

The domestic law of all country has laid down a minimum age below which a person is

exempt from prosecution and punishment. The rationale for such exempt is the „MEN‟S

REA‟ i.e. not to criminalize the Act‟s of those who at the time of commission of crime do

not know the right from the wrong .Persons below that age do not realize nor intended the

consequences of their act.

However this age can fixed by taking into consideration two important issues:

Legal basis for fixing the age

Scientific basis for fixing the age

1. Legal basis for fixing the age:

The JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,

2000, is in tune with the provision of the Indian constitution, the highest law of the

land and the various declaration 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 JJ (CPC) ACT, 2000 was the

Article 1 of the UNITED NATIONS CONVENTION OF THE RIGHTS OF THE

CHILD.

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.

2. Scientific basis for fixing the age:

In this regard, one of the other consideration which weighed with the legislation in

fixing the age of understanding at 18 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 is at that point of time that he can be

held fully responsible for his actions. Along with the physical growth, mental growth

is equally important in assessing the maturity of any person.4

4 Salil bali vs. union of India wpc no. 10 of 2013

GLOBAL SCENARIO ON THE ISSUSE OF AGE:

1. SCENARIO IN CANADA5:

In regard to Canada, it was referred to The Youth criminal justice act, (YCJA)

2003, as amended from time to time, where the age responsibility has been fixed

at twelve (12) years. However, it is interesting to note that, according to criminal

Justice Delivery system in Canada, youth between the ages of 14 to 17 years

may be tried and sentenced as an adult in certain situations.

2. SCENARIO IN U.S.A6:

In U.S.A, in several states, no set standards have been provided, reliance is placed

on the common law age of seven in fixing the age of criminal responsibility, the

lowest being six years in North Carolina as per Juvenile Justice and

Delinquency Prevention Act, 1974.

The general practice in the U.S.A however, is that even for children, the courts

are entitled to impose life sentences in respect of certain types of offences, but

such life sentences without parole were not permitted for those who are below the

age of 18 years convicted of murder or offences involving violent crimes and

weapons.

3. SCENARIO IN ENGLAND AND WALES:

In England and Wales, children accused of crimes are generally tried under the

Children and Young Persons act, 1963, the minimum age of criminal

responsibility is ten( 10) years and those below the said age are considered as doli

in capax, which is similar to the provision of sec. 82 & 83 of IPC.

5 THE YOUTH CRIMINAL JUSTICE ACT, 2003

6JUVENILE JUSTICE AND PREVENTION OF DELIQUENCY ACT, 1974

THE NUMBERS SPEAK:

Let‟s put a glance on the number of incidence and rate juvenile in conflict with

law

S.N. YEAR JUVENILE

CRIME

TOTAL

COGIZABLE

CRIMES(TCC)

RATE OF

CRIME%

1 2002 18560 1780330 1.8

2 2003 17819 1716120 1.7

3 2004 19229 1832015 1.8

4 2005 18939 1822602 1.7

5 2006 21088 1878293 1.9

6 2007 22865 1989673 2.0

7 2008 24535 2093379 2.1

8 2009 23926 2121345 2.0

9 2010 22740 2224831 1.9

10 2011 25125 2325575 2.1

11 2012 27936 2387188 2.3

NATIONAL CRIME RECORD BUREAU REPORT OF 2012

A study of crime rate in past decade shows that even though the

percentage of juvenile crime compared to total crime has increased by

a mere 0.7% over the span of 10 years, but the percentage of juvenile

involved in the offence of Rape has increased by an alarming 53%.

The police in the country have booked as many as 1316 juveniles on

rape charges in 2013.

One of the 1316 offenders was a 13 years boy in Coimbatore who

sexually abused his 5 years old neighbor.

In 2013 there was highest increase in crime against women.

132.3% rise in case of assault

70.5% increase in insult

60% increase in rape

The numbers speaks for them.

THE VOICE OF COMMON MAN:

AGAINST THE MOTION( NO NEED OF REVISITING THE AGE OF

SETTING CRIMINAL RESPONSIBILITY):

1. Children need love, especially when they think they don’t deserve it.

Harold s. Hulbert, child psychiatrist

2. Concept of age is very crucial matter. If a person is minor or child, he cannot be

tried in the same manner, as that of an adult since at the time of the commission of

the crime, the child was not capable of understanding the degree of such offences

nor did he understand the consequences of his action.

3. The minor or child lacks MEN‟S REA i.e. an essential element to decide to decide

criminal liability and was doli incapax i.e. incapable of understanding the right

from the wrong.

4. During the adolescence year‟s children are still trying to deal with h society, their

own inner battle peer pressure, lack of direction, impulsiveness and lack of

identity. At such age when they shoulder no responsibility, maturity is not

expected from them to understand the consequences of their act. Therefore, it will

be unjust to convict them in manner of adults.

5. Psychologically speaking, it can be said that, problems lies with the parents and

not the child, which means it is primary duty of parents and primary education

moral and responsibilities.

FOR THE MOTION( YES, REVISITING THE AGE IS NEED OF THE

HOUR):

1. A crime is a crime. No matter what the age is only because a child commits a

crime it does not mean that the victim didn‟t suffer.

2. They also argue that the juvenile courts have been established with the age

factor in mind rather than focusing on the crime factor.

3. Trying juvenile as an adult especially for heinous and serious offences will not

make them understand the consequences of their action , but also deter them

from committing any further crime and they will be fully aware that they are

not given any special consideration because of their age factor.

4. It is also argued that by trying juvenile as adults will lower the crime rate in

society and make it a safer place to live when there are harsh punishments to

juvenile who commit serious and heinous offences others will learn from them

n& will deter them from committing crimes.

5. Also if any individual although juvenile / child infringe life, liberty, and the

purist of happiness, they should be tried as adult regardless of their age.

6. When a 12 year old of 1860 was mature enough to understand the

consequences of his acts, then a 12 year old of 2015 who is exposed to so

much of information, social media surely has at least similar if not more

capabilities. Then on the paradigm of understanding and maturity, why a

juvenile should be treated preferentially.

7. Ranjana kumari, of centre for social research- said that” rehabilitation

sentence for the youth in Delhi gang rape and murder case had left a great

discomfort throughout India. He woul; d be responsible only if he is 18 instead

of 17 and half. Justice has not been delivered; rather it has sent a message to

society and youth especially that you can get away with it if you are under 18.

THE JUDICICAL APPORACH:

IN Sheela Barse vs. secretary, children aid society, (AIR 1987 SC 656)

THE HON Supreme court commented upon setting up dedicated juvenile courts and special

Juvenile courts officials and the proper provision of care and protection of children in

observation homes. Hon. Supreme Court also stated that reducing the age of juvenile may be

violation of our prestigious constitution.

The hon. Apex court in SALIL BALI VS. UNION OF INDIA ( W.P 10 OF 2013) held that

„ the age of criminal responsibility in a legal system that recognize the concept of age of

criminal responsibility for juvenile should not be fixed at too lower the age level, keeping in

mind the emotional, mental and intellectual maturity of the juvenile.‟

RECOMMENDATIONS:

1. Separate facilities should be used for children who are detained namely no mixing

with adults.

2. The policemen and especially “special juvenile police unit” should work tighter with

other trunks of the society to fuel the working of the apprehension of juvenile; they

should be trained in child psychology.

3. The media should now act more responsibly. Instead of blatantly displaying violence

and crimes, media acting as a double edged tool, should educate and reflect upon the

violence or the crime scene, along with the message on how bad it is and its fatal

consequences, which are bestowed upon the offender.

CONCLUSION:

Juvenile delinquency is a tremendous burden on the society and keeping in mind the present

situation, it can be said that the number of crimes being committed by the juveniles is

increasing and is increasing and is to be checked. The crimes are sometimes of heinous nature

like murder, rape, robbery; Age must not be a sole criterion to award a lenient punishment to

the offender.

Finally I would like to conclude, with a thought,

“We are guilty of many errors and many faults but our worst crime is abandoning

the children neglecting the foundation of their life many of things we need can wait but the

child cannot. Right now is the time his bones are being formed his blood is being made and

his senses are being developed. To him we cannot answer tomorrow his name is today”7

7 Gabriela mistral, Nobel Prize winning poet from Chile