Politicians, as well as women social activists in the country, seem ecstatic that they have brought about a major change in the law governing juvenile crime.
According to the Juvenile Justice (Care and Protection Bill) 2014 passed by the Parliament, a juvenile offender in the age group of 16-18 can be prosecuted if he has been found guilty of a ‘heinous’ crime. Of course, this will be done after a review by the Juvenile Justice Board.
The same law defines ‘heinous’ as any crime that is punishable with a sentence of seven years or more under the Indian Penal Code or any other law in force. By this definition, all crimes such as murder and rape accompanied by violence will naturally qualify for being regarded as ‘heinous’. Until now, the expression was generic and subject to various interpretations. It was like the old saying, ‘One man’s meat is another man’s poison.’ Now, at least the legal position is clear.
Social Control over Potential Offenders
Not many jurists are excited about lowering the age for fastening criminal liability. They believe that this was a knee-jerk reaction to Nirbhaya, one that would hardly deter future crime. According to them, more draconian laws do not mean less crime. This is the experience world over. We know that the Nirbhaya conviction was just an accident, resulting mainly because there was overwhelming evidence, accompanied by an unprecedented public clamour for bringing the offenders to book. Not many cases will have such a level of publicity or proof against those arraigned in a court of law.
It is interesting to speculate what Cesare Beccaria and Jeremy Bentham, two classical criminologists would have thought of what India has done. The former promoted the cause of a humane system that would exercise social control over potential offenders. In this light, it is unlikely that lowering the age of responsibility would have passed muster with Beccaria.
Bentham – a Utilitarian, however, believed that every offender analysed the pleasure and pain arising from criminal activity, before resorting to crime. I wonder whether a juvenile of 16 can do such an analysis before indulging in crime. Modern criminology, however, has gone beyond Beccaria and Bentham to identify social factors such as broken homes, poverty, and bad companionship contributing generally to crime, and to juvenile delinquency in particular. When the situation is so complex, haste to lower age of responsibility seems irrational.
Delay in Trial Process
Wisdom demands curbing the tendency among policy and law makers to rush with a new law whenever there is a crime wave or a horrific crime such as the Nirbhaya case.
Deterrence comes more with certainty of punishment than the quantum of sentence. As we know, in our country there is no certainty because of the enormous time taken by investigation, as well as trial (the Salman Khan case is a very recent example). Any law, therefore, that addresses only severity and not certainty, does not assure us a society with lower levels of crime.
Debates on Death Penalty
Generally speaking, criminal responsibility in most of the countries begins at the age of 18. If you survey criminal laws of countries across the globe, crime attended with violence receives more serious attention than white collar crime. This is how it should be, if law abiding citizens are to live peacefully. This takes us to the hackneyed debate over the need for death sentence in our statutes.
When the ultimate penalty is questioned even in the case of adults, award of such a penalty to the juvenile (under the definition carried by the amended Juvenile law) becomes inconceivable. This philosophy dictates criminal law across the West.
In 2005, in Roper vs Simmons, the US Supreme Court struck down death for juveniles under 18. This sensational decision spared up to 70 inmates who had been on death row for committing murders. (We in India are talking of just one juvenile who has been protected against death sentence in the Nirbhaya episode.)
In the UK, as early as 1908, execution of juveniles under the age of 16 was banned by the Children’s Act. Since then, UK has given up the death sentence for murder. However, on paper, death remains for offences such as espionage, piracy with violence and treason, but no executions have taken place yet.
Prevention of Crime
Internationally, the trend is against lowering the age of criminal responsibility. Wherever, for instance in Florida, such an attempt is made, there has been a huge protest by civil liberties organisations.
By passing the Juvenile Justice (Care and Protection of Children) Bill 2014, we are seeking to buck the trend. This has been under pressure on the legislature, following Nirbhaya. The hitherto never seen unanimity among political parties on this issue appears one of appeasing their constituencies across the country.
It is difficult to measure the deterrence of any law, even when it applies to those above 18. This is more so in the case of penalties for a juvenile crime. Statistics are going to be low, and any research on such a slender base may not make us wiser.
We would do well to concentrate more on mending social conditions that promote the under-18 to resort to crime. We should also concentrate on extirpating criminal gangs that lure juveniles or force them into activities such as begging, stealing and becoming subjects of pornography. I am afraid this has not received the attention it so badly needs.
(The writer is a former CBI director.)
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