Ananya Bansal- B. COM. LL.B. (Hons.) student Semester I, at Institute of Law, Nirma University (ILNU), Ahmedabad,
Gunjan Chawla Arora- Assistant Professor of Law, Institute of Law, Nirma University (ILNU), Ahmedabad.
Juvenile offenders are treated differently as they are believed to be incapable of understanding the nature of the consequences of their actions. However, with changing social conditioning, a colossal wave of social media and specific biological functioning in adolescence, juveniles today are well able to understand the nature of the consequences of their actions. They are using their mere age as an excuse to commit crimes. Hence, it is required to revisit the said legal stand and amend the ages considered as juveniles in the Juvenile Justice (Care and Protection of Children) Act 2015, to ensure Justice to both Prosecution and Defence.
Persons of 12 years and above should be treated as adult-offenders. Partial immunity must sustain for the age group of 7-12, however if the child-offender is found to be aware of the nature of the consequences of their actions, then they also must be treated as an adult-offender.
Nature of Consequences of Actions, Juvenile Justice, Reformative Justice, Social Media, Juvenile Justice (Care and Protection of Children) Act, 2015, Biological Functioning, Adolescence, Immediate Gratification.
‘Justice’ has a very subjective interpretation, when looked at objectively from the perspective of both, the Prosecution and the Defence. Different justice systems based on various theories of justice and fairness cater to fulfil the demands of the wronged, and caution against trial of the innocent.
The Juvenile Justice (Care and Protection of Children) Act, 2015 serves as India’s primary legal framework for juvenile justice. The Act defines a child as a “person who has not completed eighteen years of age.” It also talks about “Child in conflict with law” and “Child in need of care and protection”. “Child in Conflict with Law” under Section 2 (l3) of the Act is defined as “a child who is alleged or found to have committed an offence and has not completed eighteen years of age on the date of commission of such offence.” “Child in need of care and protection,” which has been comprehensively defined in Section 2 of the Act, includes children who due to their unfavorable social background are in dire need of protection, care and support for convalescence.
There are also certain general exceptions to the Act such as that of Doli Incapax as stated in Section 82 of the Indian Penal Code (IPC), 1860. Doli Incapax is a legal maxim meaning ‘incapable of doing any harm or incapable of committing a crime’. It provides that- “Nothing is an offence which is done by a child under 7 years of age”. Thus, law confers absolute immunity from criminal liability to children below the age of 7 years, as it is presumed that they are incapable of understanding the nature of the consequences of their actions and forming the necessary criminal intent for committing an offence. Section 83 of the I.P.C. further extends partial immunity from criminal liability to a child who is above 7 and under 12 years of age. It provides that- “Nothing is an offence which is done by a child above 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.”
Thus, immunity is conferred especially for cases where the child is ‘incapable of understanding the nature of consequences of his/her actions’. This incapacity is crucial in cases where the nature of the offence committed is inherently heinous and odious. Hence, there arises a question with regards to the fairness promised by such a clause, in cases where a juvenile may be capable enough to understand both- the nature of the act and the nature of the consequences flowing from such an act.
In this context, one cannot ignore the Nirbhaya Case of 2012 and the Ryan International Murder Case of 2017. In the former, a 17-year-old juvenile raped the deceased and on her objection to the same, inserted an iron rod through her genitals, causing severe internal injuries to the intestines and visceral tissue. In the 2017 case, a 16-year-old class XI student slit the throat of a mere 7-year-old class II student, just to defer a scheduled parent-teacher meeting and an examination. The offences committed by the minors in these cases matched the severity and horror of gruesome crimes committed by adults, however they conveniently sought the defence available to juveniles during trial. Taking into account the severity of the acts in these cases, it can hardly be argued that the offenders did not comprehend the consequences and the full extent of their actions. It is under these circumstances that the said legal stand and conditions surmounting to penalty need to be revisited with the objective to ensure that Justice is fairly executed, both from the perspective of the Prosecution and Defence.
The Supreme Court (SC) also made an observation this regard in its judgment of the infamous Kathua rape-murder case: “… the rising rate of juvenile delinquency in India is a matter of concern and requires immediate attention. There is a school of thought, existing in our country that firmly believes that howsoever heinous the crime may be, be it single rape, gangrape, drug peddling or murder but if the accused is a juvenile, he should be dealt with keeping in mind only one thing i.e., the goal of reformation. The school of thought, we are talking about, believes that the goal of reformation is ideal. The manner in which brutal and heinous crimes have been committed over a period of time by the juveniles and still continue to be committed, makes us wonder whether the [Juvenile Justice (Care and Protection of Children)] Act, 2015 has subserved its object. We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes. It is for the government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day.”
The Juvenile Justice System should not only cater to the interests of the child, but also to those of the society and the victims, who do not get the justice that they deserve because the juvenile justice laws enable juvenile offenders involved to hide behind the garb of minority based on an arbitrary age. The process of rehabilitation and protection created with the intent to ensure social re-integration in the society of the convicted minors, is now being misappropriated as an excuse to commit crimes and get away with it with minimal consequences. The system is failing at altering the conscience of the offender.
The latest report of the National Crime Records Bureau (NCRB) suggests that a total of 31,170 cases were registered against juveniles in 2021, showing a 4.7% increase over 2020, where the number of cases were 29,768. An alarming majority i.e. 76.2% or 28,539 of these cases were committed by children in the age group of 16 to 18.
Crimes committed by juveniles in the capital city of Delhi also rose by 7.6% in 2021, according to the report of the NCRB. 78 murders and 154 attempts to murder were committed by juveniles. Juveniles were also culprits in 69 rapes, 103 cases of assault on women with intent to outrage her modesty, and 109 cases under the Protection of Children from Sexual Offences (POCSO) Act.
The 2011 Population Census suggests that the child population of India is 4441.5 lakhs. Thus, according to the latest NCRB report, seven out of 100 juveniles in India are involved in a criminal activity.
India can also take assistance from the Juvenile Justice laws of other countries to assess the efficiency of its Juvenile Justice System at present.
The Compilation Report on Age for Criminal Responsibility and Treatment of Juvenile Offenders given by the HAQ: Centre for Child Rights mentions that the Youth Criminal Justice Act 2003 of Canada, prescribes the minimum age of criminal responsibility when the juvenile offenders are charged as adults is 12 years of age while that in England and Wales under the Children and Young Persons Act 1933 (as amended by 16(1) Children and Young Persons Act 1963) is 10 years. The same in the Republic of Ireland under the Children Act 2001 was raised from 7 to 12 years in October 2006, and that in Northern Ireland is 10 years. The minimum age for criminal responsibility when the juveniles are charged as adults under the Juvenile Welfare Act in Germany is 14 years. Thus, legal systems all over the world agree that due to the maturing capacity of juveniles to comprehend the nature and consequences of their actions, the provisions of the Juvenile Justice System need to be revised.
The Juvenile Justice System simply assumes that child offenders are a product of unfavourable environment and merely due to their age, believes that they were influenced by the multitude of social and psychological factors around them to commit an offence. However, the unfortunate reality is that due to the growing exposure to new ideas and perspectives today, especially with the colossal wave of social media, minors are well able to comprehend the nature of their actions and hence, are aware of both their actions and resulting impacts on the society.
Impact of Social Media
‘What one sees, he thinks. What he thinks, he talks. What he talks, he does, and what he does, he becomes.’
Social media is omnipresent in our lives in today’s age. Naturally, platforms and media vehicles from Instagram shorts to feature films, web shows to cartoons, all affect the thought process and maturity of juveniles, making them feel like adults much before time.
Various web series and feature films whether Indian or foreign, showcase mature content through which juveniles are exposed to gruesome offences such as murder, rape, theft and burglary, and sexual and physical assault. It is through these sources of media that they become completely aware of what these acts are and what will be their impact on the victim. They understand that these acts are meant to harm and in many cases fatally injure those on whom they are inflicted and that is why, they consciously choose to commit them. The media that introduces minors to such ideas and emotions also tend to make light of the severity of the tragedies that they depict, adulterating the child’s understanding of the gravity of their actions. One might argue that such content is not produced for them and hence, if they are committing offences under their influence then they are not at fault, but the fact that they are intentionally and consciously consuming such content even after the advisory caution is fundamentally wrong and the extent of blame for it, if at all, on adults and guardians close to the minor of it is a story for another day.
Today, even cartoons-solely meant for the entertainment of children-are employing violence and illustrating violent and destructive ideas and sentiments. These are the characters that children idolize, especially in their formative years of growth. It is not uncommon to see characters fight with, and plot sinister plans against each other. This gets registered in the psyche of the children, and they become insensitive to others’ pains and sorrow. They no longer feel discomfort from any elements of violence around them in real life.
Speaking of adolescents. the elder juveniles, it is needless to say that social media is an unending source of ideas, texts and perspectives, which not only add to their understanding of the society and the behaviour expected by it but also enable them to acquire analytical skills and comprehend the undercurrents of their actions.
It is this comprehension of their actions which should be taken into consideration while analysing their exemption under the criminal law for commission of crimes. Moreover, the nature of the crime committed, the chain of events leading to such commission, the knowledge about the nature of the act committed and the apprehension that the act inherently wrong and criminal shall become a determining factor in cases for not granting an exemption
Neurologists suggest that the prefrontal cortex is the area of the brain responsible for strategic planning, risk-reward analysis, and impulse control. Young juveniles are quite less likely to rely on their prefrontal cortex as much as an older juvenile or adult would. Thus, younger juveniles are more inclined to value immediate rewards and consider future consequences of their actions. However, once juveniles reach mid adolescence, they start considering the nature and consequences their actions and stop focusing as much on satisfying their present needs.
The McArthur study used a McArthur Competence Assessment Tool-Criminal Adjudication to evaluate how age and psychological structure affect a person’s decision-making skills. This tool sets out three characteristics of psychological maturity- the ability to evaluate risks, consider future consequences, and resist peer pressure. However, these may further be affected by the extent of exposure in terms of knowledge of surroundings and deciding to act against the general code of conduct and expected behaviour of teenagers. A decision to commit an act which is otherwise offensive, and actually preparing one-self to commit such an act necessarily involves the interplay of all the above three factors simultaneously. Using this tool, the study revealed that the older a juvenile, more likely he is to be competent. The likeness of incompetency decreased as the juvenile got older.
In the light of the abovementioned, in our opinion, the ages considered as juveniles should be amended under the Juvenile Justice (Care and Protection of Children) Act, 2015. Individuals of the age of 12 years and above should no longer be considered as juveniles but as adult offenders, in cases of both heinous and relatively minor crimes, as due to their increased exposure to social media and their biological functioning, they are clearly able to understand the nature of the consequences of their actions.
Children in the age group of 7-12 years, although get equal exposure to social media are generally not able to exhibit patience, resistance to impulse, and proper analysis before arriving at a decision. They might not always be aware of the nature of the consequences of their actions, but one must not rule out the possibility of them being well aware of the same as well. Hence, partial immunity must sustain for this age group as is already provided by the Act, however if it is found that the minor offender was aware of the nature and severity of the consequences of their actions, then they also must be tried and punished in a manner similar to that of an adult offender.
Lastly, it will be wrong to completely eliminate the impacts of the unique social, physiological, and mental conditions and traumas on juveniles. Hence, if the court finds that such factors have genuinely influenced the individuals of 12 years and above in leading them to commit grave crimes such that the trauma can be attributed as a reason for such conduct, then the court may pronounce a decision that it deems appropriate in this regard. Giving the court the discretion to try offenders as adults in certain cases would ensure that the Juvenile Justice System is not abused by assuming that all juvenile offenders commit crimes only under influence, and not consciously, with complete knowledge of the consequences.
There are not many existing laws on the issue discussed, apart from just those explaining the purpose, details and procedure of Juvenile Justice in India. Thus, there is a need to strike such conversations and judge the present condition of the Juvenile Justice System in India, especially in relation to its aim of reformation.
Image Source: Juvenile Justice Act 2000 (Racolb Legal, 2016), https://bit.ly/2yzT7k3