Cameraperson: Abhishek Shukla
Editor: Vishal Kumar
On Friday, 31 January, the Jamia shooter was produced by the Delhi Police before the Delhi Gate Juvenile Justice Board – not a regular Magistrate.
The Board has remanded him to 14 days’ custody, during which time the police are to verify his claims of being a minor. These claims were raised soon after he was arrested by the police on Thursday, 30 January, following his brazen actions at an anti-CAA protest.
According to an Aadhaar card and Class X CBSE Board exam mark sheet, the shooter’s date of birth appears to be 18 April 2002 – which would mean that he was under 18 years of age at the time the offence was committed.
This means, he is to be tried in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act 2015, and not as a regular adult.
But, Doesn’t JJ Act Allow Certain Minors to Be Tried as Adults?
The JJ Act 2015 was a new legislation with a number of new provisions meant to improve India’s treatment of “children in conflict with the law” ie offenders under the age of 18.
The most prominent new change that this Act made from the old juvenile law was that minors between the ages of 16-18 years could be tried as adults in certain circumstances.
This change arose out of the outrage that followed the Nirbhaya gang-rape and murder in December 2012, where one of the accused was a minor, and so, despite allegations that he had played a significant role in the gruesome crime, the maximum punishment he could be given was three years’ imprisonment – which is what he was awarded.
Section 15 of the JJ Act 2015 sought to address this by saying that in cases where the accused juvenile was above 16 years of age, and was accused of committing a “heinous offence”, the Juvenile Justice Board (which takes up cases against minors instead of regular courts) could conduct an assessment to see if the minor had the physical and mental capacity to understand the consequences of their actions.
This is because the reasoning behind not trying juveniles as adults is that they lack the ability to comprehend why their actions are wrong, and should not be punished to the same extent as an adult, who can. If the juvenile did have such an ability to understand what they were doing, then this reasoning doesn’t apply.
To ensure that this wasn’t applied to less serious crimes, the JJ Act includes a tiered categorisation of criminal offences. The option of trying a juvenile as an adult only arises when it comes to the most grave of these: “heinous offences”.
Section 2(33) of the JJ Act defines “heinous offences” as those crimes for which the minimum punishment under the law is seven years’ imprisonment or more.
If the Juvenile Justice Board thinks that the juvenile in such circumstances should be tried as an adult, then it can refer the case to the Children’s Court established for this purpose as per Section 18 of the JJ Act.
So, Why Can’t This Apply to the Jamia Shooter?
The FIR against the Jamia shooter accuses him of attempt to murder (under Section 307 of the Indian Penal Code) and various offences under the Arms Act.
While it may seem logical for attempt to murder to be a “heinous offence”, under the JJ Act, attempt to murder doesn’t fall within its definition as it does not prescribe a minimum punishment.
According to the text of Section 307, a person convicted of attempt to murder
“shall be punished with imprisonment of either description for a term which may extend to ten years... and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.”
As there is no minimum punishment prescribed for attempt to murder, therefore, a juvenile accused of this offence cannot be tried as an adult utilising Sections 15 and 18 of the JJ Act.
This issue recently came up before the Supreme Court in the the Civil Lines hit-and-run case, where a juvenile who was over 16 years of age killed a man while speeding in his car. The juvenile was charged under Section 304 of the IPC (culpable homicide not amounting to murder) which has similar language to Section 307 and also doesn’t have a minimum punishment prescribed.
The apex court held that offences like that could not be categorised as “heinous offences” under the JJ Act and so juveniles charged with these offences cannot be tried as adults. The court noted that this appeared to be a lacuna in the law, but held that it couldn’t interpret the law to correct this – it is up to Parliament to amend the IPC or the JJ Act to resolve this issue.
In the meantime, going by the law, the Jamia shooter cannot be tried as an adult – unless it turns out that he is, in fact, not a minor.