AGE AS A DETERMINING FACTOR OF MENS REA: A MISCARRIAGE OF JUSTICE By Suparna Mukherjee from Calcutta University
“There can be no keener revelation of a society’s soul than the way in which it treats its children.”
- Nelson Mandela
A child’s mind is like a fluid, capable of adjusting itself in any container provided and a child always reflects and repeats whatever he witnesses. Hence, when someone “not of age” acts or offends like an adult, the question, whether his act should be termed as ‘innocence’ or ‘offence’, imposes a complexity which threatens to endanger the balance between justice and humanity.
A child getting in conflict with law and exhibiting anti-social or illegal behavior becomes a JUVENILE DELINQUENT. The problem of juvenile delinquency occurs in all societies, simple or complex, leading to imbalance. In India, this concept is dealt by the Juvenile Justice (Care and Protection of Children) Act (“JJ Act”); first enacted in 1986[i] and subsequently amended to bring the new Act of 2015, enforced to address the increasing criminality of a child’s mind. Under the present JJ Act, which is the aftermath of the 2012 NIRBHAYA incident, a juvenile is any child under the age of 18 years; i.e., a uniform age, irrespective of gender, to demarcate innocence from guilt.
The level of juvenile delinquency in India has been considerably low, but is gradually rising.[ii] In fact, the increased share of juvenile crimes to total crimes reported in the past years is also alarming. The statistics show a steady decline in early 1990s, static in late 1990s, significant rise in early 2000 and a gradual growth till now. The incidence of Juvenile crimes encounters a cancerous growth from 15,021 in 1995[iii] to 25,601 in 2005[iv] to 33,433 in 2015.[v] Recent years have witnessed juveniles involved in rapes, gruesome murders, robberies, hurt, etc. The Nirbhaya Case is a paragon of such criminal conscience. A recent case presented a 7-year old girl raped and sodomized by three boys aged 9, 12 and 14 in west Delhi’s Paschim Vihar.[vi] Newspapers and News Channels, being pregnant with more of such horrendous incidents speak volumes regarding the juveniles’ capability to plot, scheme and commit crime like a professional criminal. Many of them understand and misuse their juvenile status to get away with mild punishment for any crime.
Now, the JJ Act, being a “reformative and child-friendly” Act, follows the principle- “Once a juvenile, always a juvenile”; i.e., a child on the date of offence or apprehension and attaining majority later shall be treated as a child. Also, the Act doesn’t allow prosecution of children under age of 12; subjects those between 12-16 years to the Juvenile Justice Board irrespective of the gravity of their crime; and requires those between 16-18 years to be inquired by the Board or the Children’s Court.
There are no settled criteria for age determination. One can submit birth certificate from any school, which may lead to miscalculation. The Board prefers basing its judgments on the age of culprits instead of their offences. An apparent child has a right to bail, whether or not his offence is bailable, unless there is a very strong reason to not do so. Moreover, the maximum punishment that can be awarded to a child below 16 years is sending him for reformative services for not more than three years. Additionally, he shall not suffer any disqualification attached to the conviction. For heinous crime by those between 16-18 years, the Board may pass order themselves or refer them to Children’s Court. They shall never be sentenced to death or imprisonment for life without possibility of release. Furthermore, the related reports shall be confidential and destroyed after the appeal period expires.
Keeping in mind the age related complexities and the immunity provided by the Act to the delinquents, it is pervasive that merely lower age of the culprits doesn’t lessen the victim’s sufferings. Thus, it will be a miscarriage of justice if age is fixed as a calculator of mens rea. The delinquents are expected to reform and rehabilitate, not escape the consequences of their actions.
Despite being a step towards curbing the cancer of child criminality, the Act is neither a deterrent nor capable of forbidding the juveniles from committing crime in future. The loopholes dwindles its pious intention of striking balance between intentional crime and innocent accidents.
Thus, the age of offender should be discouraged as the criteria for overlooking an offence. Different cases demand different approaches. However, just as leniency of the JJ Board can’t achieve proper justice by excluding all below 16 years as innocents, likewise, complete discretion in the hands of logical and strict Judiciary will also disappoint the cause. Therefore, a properly thought and well planned fusion between humanity and justice is quintessential in order to achieve equilibrium in true sense. A middle road between logic and leniency is needed to be created.
[i] Enacted due to provision of fundamental rights of child U/A 15(3) read with Directive Principles of State Policies U/A 39(e) & (f) along with fundamental duties U/A 51(A) and also accession of Indian Govt. to the Convention on Rights of Child, 1992, the standards set in UN rules for the administration of justice, 1985, UN rules for protection of juveniles deprived of their liberty, 1990 and Hague Convention on Adoption, 1993.
[ii] National Crime Records Bureau Report (NCRB); www.ncrb.gov.in
(page-2 of PDF doc., the incidence includes offences under Indian Penal Code and Special And Local Laws)
(page-1 of PDF doc., the incidence include offences under IPC and SLL)
(go to crime statisticsàcrime in Indiaàcrime in India 2015àchaptersàJuveniles in conflict with law) (page-1)
[vi] An excerpt from The Times Of India
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