In late 1970s, the Pulitzer Prize winning historian Barbara Tuchman declared: “Of all the characteristics in which the medieval age differs from the modern, none is so striking as the comparative absence of interest in children.” So central is the question of child rights in the modern world that the presence of a highly developed Juvenile Justice code has become an imperative for any modern judicial system.
India developed its own jurisprudence relating to children and the recognition of their rights with the adoption of the Constitution on the 26th November 1949 it was guaranteed that several rights be extended to children – such as equality before the law, free and compulsory primary education to children between the age group of six to fourteen years, prohibition of trafficking and forced labour of children and prohibition of employment of children below the age of 14 years in factories, mines or hazardous activities.
The Juvenile Justice (Care and Protection) Act, 2000 [JJCPCA], was enacted after years of deliberation and in conformity with international standards as laid down in the United Nations Convention on the Rights of the Child, 1989, the Beijing Rules, 1985, the Havana Rules and other international instruments for securing the best interests of the child with the primary object of social reintegration of child victims and children in conflict with law, without resorting to conventional judicial proceedings which existed for adult criminals.
The JJCPCA, 2000, is in consonance 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 JJCPCA, 2000, was Article 1 of the Convention of the Rights of the Child and reducing the age from 18 to 16 years would be against the UN Convention, which India ratified in 1992.
Scientific data indicates that the brain continues to develop and the growth of a child continues till the age of eighteen and it is then 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. Competence-related abilities mature by sixteen, but the capacity relevant to decisions about criminal culpability continues to mature till young adulthood. These findings of the MacArthur Foundation, are supported by later brain science researchers such as Laurence Steinberg who argues in his paper “Should the Science of Adolescent Brain Development Inform Public Policy?” (Issues in Science and Technology, Spring 2012) thus: “Adolescents should be viewed as inherently less responsible than adults, and should be punished less harshly than adults, even when crimes they are convicted of are identical.”
Moreover, a 2011 research based on the United States federal government’s ‘National Longitudinal Survey of Youth’ undertaken by Prof. Robert Brame submitted that “by age 23, almost a third of Americans have been arrested atleast once.” More importantly, the researchers found that the probability of a first arrest accelerated in late adolescence and early adulthood — at 18, 15.9 percent of the participants reported having been arrested — and then began to flatten out as the youths entered their 20s. Thus the fact that crime rates peak at the age 18 marks the writing on the wall that indeed the juvenile justice laws need to be extended to this upper limit of eighteen. We must remember the age old maxim –
“Ad ea quae frequentius
(The laws are adapted to those cases, which occur more frequently)
According to the recent National Crime Records Bureau (NCRB) statistics, 52.9% juveniles apprehended in 2012 belonged to families with annual incomes less than Rs. 25,000, this figure went up to 55.6% in 2014. Similarly, 52% juveniles apprehended in 2012 were either illiterate or educated up to primary level, in 2014 the number went up to 53%. So, it can be concluded with a degree of certainty that, majority of the juvenile delinquents come from poor economic backgrounds and hence, there seems to be a truly causal relationship between juvenile crime and poverty. Often, it has been argued by social scientists that one of the most deteriorating impacts of poverty on children is caused due to the lack of proper educational facilities and therefore, those juveniles convicted for severe crimes should be given education instead of punishment. Perhaps in accordance with the same line of reasoning, Justice KG Balakrishnan said in one of his recent interviews “A village boy of sixteen years, what maturity can we attribute to him? In a well-educated family of fair means, sixteen years may be a good age. But the same cannot be true in the case of ordinary, poor citizens.”
It needs to be considered, that if a child is sent to jail, after trial in an ordinary criminal court, there is no likelihood of any reformation and he would come out a hardened criminal owing to harsh conditions and more importantly, the social stigmatisation of the juvenile delinquent as a criminal and social outcaste.
The Juvenile Justice Amendment Bill states that children within the 1618 age group are to be tried as adults if they commit heinous crimes. It violates their fundamental rights guaranteed under Article 14 and Article 15(3) of the Constitution. In fact, it needs to be recognized, as has been pointed out by a long line of sociologists such as Robert Merton and Robert Agnew, that the cause of juvenile delinquency is often the failure of the social structure to accommodate people from diverse socio-economic backgrounds in its fold.
A law should be just in nature. It should never be passed in haste or out of angst. The juvenile age had been fixed at eighteen after due deliberation and on obtaining scientific evidences in its support and hence, it should not be reduced to sixteen years just because the public is angry with the release of the Nirbhaya case juvenile delinquent.