Krittivas Mukherjee, Hindustan Times  | Updated: Jul 15, 2014 16:14 IST

Among all the accused in the 2012 Delhi gang-rape of a 23-year-old woman, the most brutal was perhaps a teenage juvenile who is said to have penetrated her with an iron rod, pulled out her intestines and then calmly cleaned up the bus on which the crime was committed. Afterwards, he went to make some tea for his friends.

Perhaps for the first time in the history of juvenile delinquency in India, here was a crime of unparalleled savageness, a crime so depraved that is generated an unprecedented clamour for harsher punishment and demands that the teenage accused be tried as an adult.

For his part in the crime, the juvenile was sentenced to three years in a home for delinquents, the maximum punishment under Indian juvenile justice laws. What followed is a fierce debate over underage offenders in India, and public opinion, by and large, appeared to favour an overhaul of the country’s juvenile justice laws.

The government is now moving to tweak the juvenile justice law so that young offenders accused of serious crimes can be tried under the Indian Penal Code. This means their crimes would be judged as an act of an adult. Punishment in these cases, it seems, would not include life term or the death penalty.

Opinions may seesaw between the kneejerk and the lynch-mob mentality, between blaming child offenders and blaming the system, but the government must not forget that at the core of enacting any juvenile code is the main objective of rehabilitation, not retribution.

While juvenility may be considered on a case to case basis keeping in mind the maturity of the individual, his/her background and the nature of the crime, the ‘get tough’ approach must be couched in sufficient safeguards against abuse or unwitting misuse. It must not be a juvenile code born out of a sense of outrage of a lynch mob.

Read: New juvenile law must not succumb to ‘lynch-mob coterie’

One of the leading voices in the defence of the age criteria for juvenile justice was the late Justice JS Verma, who headed the committee on ‘Amendments to Criminal Law’ set up after the 2012 Delhi gang rape to provide for quicker trial and enhanced punishment for crimes against women.

Recognising the role of the system and the background of an individual in any crime, his report argues: “… We cannot hold the child responsible for a crime before first providing to him/her the basic rights given to him by the Indian Constitution.”

The government must also consider the medico-legal aspects of clubbing underage offenders with adults, for both the judicial and reformative processes.

Indian juvenile laws define a ‘juvenile’ as a boy or girl under the age of 18. Children below the age of seven cannot be tried for a crime by any court.

Now there is enough scientific evidence to prove a normal child’s thoughts usually become more organised in the 11-16 years phase. By the time he/she reaches the age of 16, the person is perfectly capable of understanding the ramifications of their actions and what they’re doing. So from a medical and psychological point of view, 16 is an age where a person has reached a level of maturity. And considering the current social climate and the things children are being exposed to, more and more children are behaving and talking like adults.

But what about a 13-year-old boy who rapes? According to the National Crime Records Bureau, about 64% of juvenile crimes in India in 2011-12 fell in the age group of 16 to 18. That leaves a substantial population of younger delinquents in whom cognitive development may not be complete but the seriousness of whose crimes may tempt the juvenile justice board to refer them to regular courts.

It is, therefore, vital that any change in existing juvenile justice laws must strike a balance between reformation and punishment after taking into view a cut-off age. It must not be informed by emotion because a kneejerk, bloodthirsty judicial system will not help us solve the problem of serious delinquency.

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