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Rarest of Rare Juvenile Crime

THE Juvenile Justice (Care and Protection of Children) Amendment Bill invited diverse opinions in the Rajya Sabha on Tuesday. The bill, which was introduced in Parliament last year after public outrage because one of the offenders in the 2012 Nirbhaya gang rape case was a few months short of 18 years of age, was passed by the Lok Sabha in May. One opinion in the Rajya Sabha was that the “hurry” in passing the amendment seemed to be a firefighting response to the protests over the release of the juvenile convict. The bill must be sent to the parliamentary Select Committee for consideration of all its ramifications. This view also held that the amendment was making provisions that appeared to be sanctioning revenge.

The other view was for passing the amendment. And that would meet the expectations of the parents of Nirbhaya who were in the spectators’ gallery in the Rajya Sabha and who had been fighting for deterrent punishment to the juvenile. There cannot  be absolutely two opinions on treating juveniles accused of crime more from the rehabilitation point of view than punishment point of view. Their age is an age when reforming them is possible. In most cases juvenile delinquency is borne out of various factors and does not necessarily point to bestiality or hardened criminality. That is why to a large extent the arguments of those who wanted the amendment to be referred to the Select Committee were valid. The law had so far provided for rehabilitation and reform of juvenile convicts regardless of the nature of crime. The juvenile convict in the Nirbhaya rape case was kept in detention for three years, beyond which the law does not provide for detention. He had to be freed. Not just freed: it was the state’s responsibility to provide for his rehabilitation. It was also the state’s responsibility to provide him protection and all the assistance for “mainstreaming”.

However, there was an equally disturbing question – the question of the bestiality of the act of the juvenile convict. From all the evidence produced in the Nirbhaya rape case it was clear that the juvenile convict perpetrated the most brutal acts against Nirbhaya. He raped her along with his accomplices. The violence that he inflicted on her was not of a childish kind. In the most charitable assessment of his behaviour on the bus it can be said that he behaved as savagely as his adult accomplices. Why should not he be punished like his adult accomplices were? It was not an ordinary act of criminality which a child or young person indulges in without knowing the implications or without actually having a criminal bent of mind. It was a heinous crime. He and his adult accomplices raped and wounded her without chances of her recovery.  So he was also responsible for her death.

The amendment was not for treating all juvenile accused at par with adults for punishment and sentence. It made a clear exception. It provided for trial of juveniles 16 years or older as adults for heinous offences like rape and murder. Under law, heinous offences were defined as offences punishable with imprisonment of seven years or more. All that the amendment intended to do was to keep all the provisions in the juvenile law that were meant for reform and rehabilitation of juvenile convicts but at the same time enshrine provisions that would prove a deterrence to children and young persons who might under the influence of bad elements among adults in the society or driven to brutality under the circumstances of their life think of committing a heinous crime. The amendment made provisions to consolidate the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach.

However, there were cases in which young boys have raped a girl child of very small age when they found her alone. There were cases when they are accomplices in a conspiracy that causes death of someone. The juveniles involved in such serious crimes could not be treated as leniently as other juveniles who, let us say, had picked up someone else’s thing without intending to embark on a career as a thief or robber. Juveniles committing heinous crimes must be tried in a criminal court as adults. In prison they could be treated differently for reform, but they must serve jail terms like adults. Their cases should be treated as rarest of rare cases of juvenile crime.


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