By- Saura Datta
On Tuesday, Supreme Court judges, while hearing an appeal against a murder-accused under the JJ Act, expressed their disapproval about what they termed as a form of blanket immunity that is granted by the law. They urged the government, somewhat mysteriously, to “go by how the neurons are going”. Essentially, the Bench wanted a paradigm change in how juvenile criminality and recidivism are regarded by the law.
Since the infamous gang-rape case in Delhi in 2013, in which the individual who committed the most gruesome acts turned out to be a juvenile, there has been a shrill, concerted cry to amend the law. Sections 2 (k) and (l) of the JJ Act provide that no person below the age of 18, irrespective of the crime or actions, shall be prosecuted or punished under regular criminal law. Instead, a Juvenile Justice Welfare Board will deal with the case, and instead of incarcerating the perpetrator, will send the guilty to a welfare or borstal home for reformation and possible rehabilitation.
Immunity not impunity
Here is the crux of the problem. There is a perception, which seems to be getting stronger by the day, that the law grants not merely immunity but impunity to juveniles, who consequently go on to commit violent and heinous actions. This is why rape and murder cases involving juveniles attract so much protest – surely, the protestors argue, not without reason, an individual old enough to contemplate and perpetrate such a crime should not get away with only three years in a reformatory, without being made to pay adequately for the suffering he or she has caused.
All laws are made with particular objectives; any changes must satisfy certain elementary criteria. Foremost among them is the overall goal of the law – any modification that seeks to dilute this principal goal will not only be unjust, but patently illegal. Second, changes or reform must be based on unimpeachable evidence, not public opinion, no matter how vociferous, or a misunderstanding of the situation.
18 not arbitrary
In July 2013, the Supreme Court disposed of a batch of petitions that challenged the law on the grounds of unjust leniency. In its judgment dismissing the contentions, the Court went to considerable lengths to emphasise that the age limit of 18 years was not an arbitrary one. It was arrived at after intense deliberations and painstaking research, and was in line with India’s international obligations under a comment of the UN Committee on the Rights of the Child, which dealt specifically with the upper age limit for juveniles.
As for the canard that the law allows a juvenile offender to go scot free after he turns eighteen, Section 15(1)(g) of the JJ Act was amended in 2006 so that even juveniles who attain majority during their term still have to serve the mandatory sentence of three years.
They’re taking advantage
The prevailing ideas about juvenile criminality seem to be captured by Maneka Gandhi’s statement: three years is too little for brutal crimes, and the light punishment only encourages more offences of this sort.
According to the National Crime Research Bureau’s data, the incidence of juvenile crime rose from 17,819 in 2003 to 31,725 in 2013. The incidence of rape committed by minors increased from 466 in 2003 to 1175 in 2013 and that of murder increased from 465 in 2003 to 990 in 2012. But – and this elides most of the loquacious proponents of tough, deterrent punishments – the incidence of offences is not a reflection of the reason(s) why they are being committed in the first place.
The retributive impulse stems from a faulty premise: that murder or rape committed by a young offender is the same as one committed by an adult. What we know, from both science and common sense is that an adolescent’s act differs significantly from that of a mature adult. Adolescents are works in progress. The regions of their brains governing impulse control and risk avoidance have not yet fully formed. They are uniquely susceptible to the hormonal spikes of puberty. They succumb more readily to negative external influences such as peer pressure and the influence of unstable environments.
Fortunately, biological and behavioural evidence demonstrates that the volatility and violent impetuosity that are often seen in adolescents are transitory. Incarcerating a juvenile offender for life would amount to cruel and unjust punishment, since it is unlikely he will be a permanent risk to society. In “Less Guilty by Reason of Adolescence”, research in the United States proved that capital punishment for juvenile offenders would be a greater violation of their right to life than even the violent the crimes they had committed.
In Miller v Alabama (2012), the United States Supreme Court recognised that adolescents are unfinished products, developmentally and morally, and determined that these factors hold constitutional significance. In assessing culpability and moral responsibility, the Court emphatically stated that youth matters. Indeed, it noted that a sentencer “misses too much if he treats every child as an adult.”