Revisiting the age of Juveniles as far Heinous Crime are concerned:Judicial

perspective

Introduction
Crime has amassed a place in the society from a time immemorial. We may dissent (disagree) its
grasp/ clinch but we cant deny its existence. Now a day one of the most concerning problem is
juvenile crime. Even in a recent time most bewildering fact is youth are getting more attracted
towards the world of crime. It is undeniable that they are the worst affected as they are still in the
initial phase of what could be a bright future. Heres the question which comes into the mind is
that are they really count as a juvenile after knowing that most of the heinous crime in todays
contemporary world committed by them? Or we rely on these words that they are only child,
they doesnt understand, their brain is not fully developed, they can't make good decisions. "Our
juvenile system is criminalizing our children. We are incarcerating kids and they don't
understand why." The idea of non-blameworthiness of juveniles dates back to approximately
2000 years ago, when both Roman and later canon (Church) law made distinction between adults
and juveniles based on the notion of age of responsibility.1 Children came to be classified as
infans, proximus infantia and proximus pubertati. Generally infans were not held criminally
responsible as we all know they are not mature enough to get the idea of the intentness/
thoughtfulness or consequences of the act, but children who attained adulthood, knew the
consequences. As our law too defined, juvenile is a person who has not completed the age of
eighteen

years.2

Similar

definition

has

been

given

by

the

International

Perspective, a Child means every human being below the age of 18 years. But, should the
minor treated differently for the same crime from others as they doesnt attain the age of
maturity? Or is just because of our juvenile justice system? Crime at any age must be treated as a
crime either done by juvenile or other person. If we give a thought, is it justified to punish a
person who commits grievous crime in accordance to juvenile justice system mere because of his
1 Juvenile Justice Juvenile Justice: A Text/Reader [Richard A. Lawrence, Craig Hemmens]
Publisher: SAGE Publications, Inc (March 13, 2008)

2 Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000

age? Does a 17-year-old have less reasoning power than an 18-year-old? What great mental
development will there be in the next one year? Is he less capable of understanding the
ramifications of his actions one year before? Was the enhancement of the age of a juvenile from
16 years to 18 years in year 2000 without any basis? Are they are in a position to decide what is
wrong and what is right? Juvenile heinous crimes such as murder and gang rape, these trends
were so disturbing and also affect society as a whole as society is anguished by such acts of
juveniles. To find answer these entire set of questions, we must have a clear insight of
circumstances and reasons which compel them to commit such heinous crimes.

Reasons for juvenile crime: Is society the reason or the family?

The word Juvenile has been derived from Latin term juvenis meaning thereby Young.
The term delinquency has also been derived from the term do (away from) and liqueur (to
leave). The Latin initiative delinquere translate as to emit in its original earliest sense
Originally the term juvenile referred to any child found to be within the jurisdiction of the
juvenile court. It included children accused of status offences and children in need of assistance.
The term delinquent was not included to be derogatory; its literal meaning suggested a failure of
parents and society to raise the child, not failure of the child. We all know no one is a born
criminal; it is the circumstance which makes him so. The socio- cultural environment both inside
and outside of home in which they bought up, plays a significant role in shaping ones life and
overall personality. Some of the most common causes which are associated with Juveniles crimes
are Poverty, Drug Abuse, Anti- social peer group, Easy availability of fire arms, Abusive parents,
Child sexual abuse, Family violence and Role of Media to some extent.
Social Media is a huge part of lives of everyday where if there are some advantages from the
social media than on the other hand beyond any doubt it does also plays a vital role in youth
violence because of the obscene and violent contents or materials contain in social media.
Cyber bullying phenomenon, Twitter, Facebook, and YouTube have become a platform for youth
violence. A news channel of US covered a story where they interviewed a Chicago resident that
showed correspondents how sites were used by gang members to promote violence. It showed

how gangs used social media sites to make threats, call out rival gangs, promote violence and
recruit members. This activity led to real Stomp-Outs, real shootings, and real deaths.
Continual exposure to violence like this can have adverse effects on youth. Meta-analyses of the
unhealthy effects of media-violence have shown that youth who view media-violence on a
regular basis are more likely to exhibit antisocial behavior, ranging from imitative violent
behavior with toys to criminal violence, acceptance of violent behavior, increased feelings of
hostility, and desensitization toward violent behavior. This information is not applicable to all
youth who view it, but imagine a young impressionable pre-teen and some other juveniles who
do get attracted towards such act may think this behavior (hostile fights) is acceptable. Similarly
social media also abet juvenile delinquency in the form of rapes or gang rapes as the obscene
videos or the contents displayed on social media instigate the juvenile especially the illiterate
ones because of which they does rape. Some even does gang rape for the sake of entertainment
or to satisfy their need after intoxication because they could not judge after getting intoxication
the juveniles lose control over their mind and are not in a position to apply their mind on the act
they are about to perform and lack the sufficient amount of knowledge to understand the
consequence of the offence they have committed and they take the excuse that they were
intoxicated .Though according to survey it has been found that after getting intoxicated the
offenders who does such offences when go to their home they easily identified their family
members or the person they meet ,than why cant they identified that the offence which they are
committing are heinous in nature?
With no doubt I strongly support the notion that media does influence juvenile delinquency to
some extent. The impact of mass communication is evident in all areas of life. Juvenile crime is
also affected by it, only more so because minors lack the ability to sift out the irrational from the
rational and logical view.
On the other side we shouldnt fail to remember the family role in juvenile delinquency although
family is not solely responsible for it because it is not pressingly the parents who is accountable
but somewhere they are carrying the load of it, as in this centurial time parents are not that much
concern about the child nurturing/sustenance due to this children are getting less support from
their family and this drawn to hand out more and more time in front of televisions, computers,
and surfing the Internet which does even contain in-fitted things in resultant at the helm of the

delinquency problem. There are instances when children who return home to empty houses have
to await the return of their parents. Tendency is that the children are probably home alone, and as
a result, creates an emotional vacuum, where children grow up without any values or goals.
Separation of father and mother of the child at his very tender age also leads to juvenile
delinquency because he or she could does not get the adequate support from his family which is
a very strong reason behind juvenile delinquency. As increase in number of juvenile crimes is the
lack of guidance which they are receiving from their parents and their support. In an
investigation of high-delinquency areas in New York City, Craig and Glick found three factors
related to increased likelihood of delinquency3:
1) Cursory or inadequate supervision by the mother or surrogate mother;
2) Capricious or bizarre strict discipline; and
3) Lack of solidarity of the family.
However we cant only blame the parents because many a time it is the child only who listen
only to their peers. The research has done as regards to juvenile behavior dealing with girls and
boys, and bring into being that girls tend to be juvenile delinquents when they lose emotional
touch with whom they are very much attached to. Most girls are arrested for depraved act of,
running away, gang involvement, and sex offenses; while most boys are arrested for vandalism,
theft, assault, rape, drugs and some other offenses.

Juvenile Justice System in India

Two major legislations commanded the criminal system in India which are the Indian Penal
Code, 1860 (IPC) and the Code of Criminal Procedure Code, 1973 (CrPC) which play an
integral role in our society. The former provides the substantive part laying out the rights and
responsibilities and the later lays down the procedure to be followed by a Court of Law in a
criminal proceeding. The IPC has set the age of criminal responsibility at 12 years. An offence
committed by a child under the age of 7 years is not punishable. 4 Also, an offence committed by
3 US Report
4 Sec 82 of the Indian Penal Code, 1860

a child above the age of 7 years but below the age of 12 years will not be punishable if it seems
that he does not possess sufficient maturity to judge the consequence of his actions.5
It is affirm that children needs development for they cannot be position in the same category as
adults under the Criminal Justice system of the country. We shouldnt turn back on the physical
and mental immaturity and dependency on others are the most eminent features of childhood 6
and with this reason India has bring to completion this obligation by enacting the Juvenile Justice
(Care and Protection for Children) Act, 2000 (JJ Act) 7 that also confined the age of juvenile less
than 18 years. This age of 18 has been rooted to bring in conformity with the definition of child
under the UN Convention on the Rights of Child. The Act also avails sentencing option include
advice/admonition, counseling, community service, payment of a fine or, at the most, or
detention in a remand home for a maximum period of three years.8 As section 10 of the Act states
that any juvenile in conflict with law who has been apprehended by the police, should be placed
under the charge of the Special Juvenile police unit or the designated police officer who shall
produce the juvenile before the Board within a period of 24 hours. In every district the
constitution of Child Welfare committee has also been provided by the Act for the care,
protection, development of children in need of care and protection 9. Next to this several children
homes, shelter homes and other provisions constitute by the Act to help the accused juvenile for
after care and to restore their regular life once they leave that homes.10

5 Sec 83 of the Indian Penal Code, 1860

6 VED KUMARI, THE JUVENILE JUSTICE SYSTEM IN INDIA: FROM WELFARE TO RIGHTS, 11
(Oxford India Paperbacks) (2010)

7 BRYAN A. GARNER, BLACKS LAW DICTIONARY, 884 (Thomson West) (2004).

8 Section 6, JJ Act, 2000
9 Section 29, JJ Act, 2000
10Section 44, JJ Act, 2000

Although the Act is a central Act, which came into force on April 1, 2001, throughout the country
but it is based on:
(i)
(ii)
(iii)

provisions of the Indian Constitution;

United Nations Convention on Rights of the Child, 1989;
United Nations Standard Minimum Rules for the Administration of Juvenile Justice,

(iv)

1985 (the Beijing Rules);

United Nations Rules for the Protection of Juveniles deprived of their Liberty, 1990.

The laws under UN Convention & our Constitution

The united Nation has been constituted various Articles under the Convention for the protection
of child rights which empowers States Parties undertake to protect the child from all forms of
sexual exploitation and sexual abuse. For these purposes States Parties shall in particular take all
appropriate national, bilateral and multilateral measures to prevent:11
a) The inducement or coercion of a child to engage in any unlawful sexual activity;
b) The exploitative use of children in prostitution or other unlawful sexual practices;
c) The exploitative use of children in pornographic performances and materials.
All appropriate national, bilateral and multilateral measures shall be hauling by the State Parties
to prevent the abduction of, the sale or traffic in children for any purpose or in any form 12 and
shall also protect the child against all other forms of exploitation prejudicial to any aspects of the
childs welfare.13
The constitutional provisions have inspired the developments in the field of juvenile justice. Part
III and Part IV which deal with Fundamental Rights and Directive Principles of state Policy
respectively contain special provisions with respect to children.

11 Article 34 of the UN Convention

12 Article 35 of the UN Convention
13 Article 36 of the UN Convention

Despite of stake various provisions for safeguarding the child rights, the U.N. Convention and
the Beijing Rules do not prohibit subjecting children/juveniles to the regular criminal justice
system under certain circumstances. It provides that a child who has been accused of having
violated the penal law shall have the following guarantees:14

to be presumed innocent until proven guilty according to law,

to be informed promptly of the charges against him and to have legal or other appropriate
assistance in the preparation of his defence,

to have the matter determined without delay by a competent and impartial authority or
judicial body, not to be compelled to confess guilty, and to examine witnesses.

Moreover, the state can establish a minimum age below which children shall be presumed not to
have the capacity to infringe the penal law. Therefore, in accordance with the U.N. Convention,
the JJ Act could have established an age limit, such as 14 or 16, below which a person could not
be deemed to have the capacity to commit an offence. In short, the U.N. Convention does not
prohibit prosecuting a child under 18 who has committed an offence under the regular penal
laws.

A Glimpse of Juvenile Law in other Countries: A comparative outlook

In this millennium time, it would be effectual to look at the juvenile laws of different countries
and minimum age of criminal responsibility set by their legislators. A study of current Minimum
Age Criminal Responsibility worldwide shows that most countries have set the same at ages
between 7 to 14, however they have at the same time made provisions for special treatment of
offenders falling under the age of 18.
1. Australia has several different legislations and courts governing the juvenile justice in
different regions. For instance, in New South Wales, a person under the age of 18 and
committing an offence is dealt by a Childrens court as per the provisions of the Young
14 Article 40 of the Un Convention

offenders Act, 1997 and Children (Criminal Proceedings) Act, 1987. However, police
charges for very serious offences are dealt with by District Courts and Supreme Courts.
2. In U.S.A age to determine juvenility varies from state to state, in most of the states it is
18 years but in few it is 17 years and 16 years respectively. Many states permit execution
of juvenile of 16 years for murder as an adult and could be tried by criminal as per the
gravity of the alleged offence. Till now many juvenile offenders have been executed
under capital punishment but in 2005 Supreme Court of U.S.A in the case of Roper v.
Simmons, held that it is unconstitutional to impose capital punishment for crimes
committed while under the age of 18.
3. In U.K child between 10 to 18 years becomes criminally responsible for his action and be
tried by the Youth Court and could be tried in an adult court as per the gravity of the
offence committed.
4. In FRANCE a child of 10-13 years are punished by placing in a Special Centre while
those of 13-16 years will get only half adult like punishments. Children of 16-18 years
are punished just like adults.
The basic rule which is followed by most of the countries legislature is that the plea of juvenility
would be set aside and he would be tried in a criminal court if the crime committed by the minor
is a heinous one such as murder, rape etc.

The logical problems and drawbacks of Juvenile Justice System

As of now, one of the biggest challenge posing a big question mark on the face of all the judicial
authorities in regards to the juvenile is to what should be the criteria of classifying as to whether
the case of juvenile be tried in a juvenile court or not? Should the age be the only criteria for this
purpose? Should the judges follow the JJ Act blindly in black and white, without going into the
intention and purpose of the legislators behind enacting such type of legislation?

The words spoken by the former Chief Justice of India, Mr. Altamas Kabir, for rape It is not a
crime against body but the soul itself. If the soul of the woman has to be saved one has to
understand the psychology.15
"The mental maturity of an 18-year-old is very different today. Take the Delhi gangrape case for
instance. The juvenile will get away with a three-year year reformative punishment because of
his age. Can his act be considered as an act of innocence as per the law? It was a brutal act, and
he did not act as an innocent while committing the crime.16
Now the question is facing towards us all is that whether such modest punishment for such a
heinous and grievous act is enough for fulfilling its purpose?
Lack of coordination amongst various institutions involved in the process is also considered as
failure to implement the Act apart from financial crunch in the institutions which is a
sdiscouraging factor in implementation of the beneficial legislation.
The Act has not prescribed minimum age below which the Act would not be applicable. The Act
fails to expressly lay down the age of innocence.
Other factors behind the loopholes in the Juvenile Justice System are:1. The concept of parental responsibility encouraging child delinquency is also missing in the
Act. It has been noticed that many a times parents are responsible for putting their children
where they are exploited and abused.
2. The education, recreation and training of the children in observation homes have not been
properly provided for. The Act has also failed to consider basic or school education.
3. The Act has failed to provide for procedural guarantees like right to speedy trial.
4. The juvenile justice adjudicatory cadre is drawn from the cadre of Magistrates of the state
judiciary. The other implementing agencies and institutions like police are also not separate.

15 Editorial, CJI promises swift justice for crimes against women , FIRSTPOST.INDIA (Jan 2, 2013)
16 Vicky Nanjappa, Why we need tougher juvenile crime laws, REDIFF NEWS(Dec 29, 2012)

Lack of institutional infrastructure and trained manpower has contributed a lot to blur the
objective of the legislation.
5. The coverage of the Act is quite limited and a large number is still away from its purview. The
children affected by drug abuse, HIV/AIDS, militancy, disaster etc. do not have any redressed
under the Act and the issues like marriage, female feticide, working children, street children is
also not covered under it.
6. The problem gets engraved due to lack of support services to venerable families which are
factories for turning their children into delinquency.
7. The police which have a direct and immediate contact with the juvenile delinquents more than
often violate the procedure for handling the juvenile and police indifference in implementing the
law is most disappointing and the problem of special care and needs of the disabled children
have been ignored by the Act.
A somewhat similar, yet if possible more horrific situation arose in England in the now
infamous James Bulger Case in 1993. The two accused convicted of torturing and murdering a
two year old child, were both 10 years old at the time of the offence. They were tried as adults
and convicted for life with a minimum sentence of eight years. Similarly in the United States the
case of Kent v The United Case in 1966, saw a juvenile, who was convicted of house breaking
robbery and rape, tried as a major. He was sentenced to thirty to ninety years behind bars.
The biggest reason for our current system is the supposed rehabilitation of the offenders. A
glimpse of this may be found in the rechristening of the word offender to Juvenile in conflict
with the law. There is no logical or scientific reason which shows that total and complete
rehabilitation can be achieved by a delinquent/ offender/ child in conflict with the law within a
maximum period of three years.
The absolute lack of implementation of the provisions of the Act after a juvenile completes his
sentence is another concern. India's massive population makes it impossible to track and ensure
that a juvenile once released continues with his therapy or even reports regularly to his parole
officer.

Is there need for change?

We all know judicial system has played a substantial role in delivering justice. Even judiciary has
passed significant judgments in the favor of child rights. But we shouldnt forget the most brutal
case of 2012 gang-rape case, famously known as Nirbhaya Case; 23-old medical student was
brutally beaten and gang-raped in a moving bus in the southern part of Delhi. A total of 6
offenders were involved in the crime, one of which was a 17-year old juvenile. This leads to
several protests in various parts of the country demanding stricter punishment for juveniles in
India. Simultaneously it raised a biggest question our judicial system as we all know the main
accused, because of the age factor considered under juvenile delinquency and exempt from the
rigorous punishment. But here the point comes which needs to be considered is that Is it
justified to judge these accused or criminal on age criteria? The debate on this issue now-adays, whether the accused of such heinous crime, irrespective of his age considered as adult and
punished rigorously or lowered the age worked beneficial to slender the crime like rape and
murder?
Another incident has been committed in Coimbatore; a 13 year old boy abused his 5 year old
neighbour after luring her in a secluded place. The boy escaped after hitting the mother when she
rushed on after hearing her daughters wails.
However, many activists has different perception on it, as Mamta Sharma, Chairperson of
National Commission for Women (NCW) has endorses her view to lower down the age of
juveniles from 18 to 16 years under the Juvenile Justice Act. She said, This is a debatable issue
and the matter should be looked into considering both psychological and legal side. But if you
see the crime data, 45% of rape cases registered has juveniles as accused. With changing
sociological situations, laws need to be amended. The age of juveniles under the JJ Act should be
lowered to 16 years, There is a two sides of a coin same as in the views as according to Sanjay
Gupta, Director of NGO Childhood Enhancement Though Training and Action (Chetna), the
"useless" proposal based on one incident will have grave consequences for several other
juveniles. It would be prejudicial to treat all juveniles in conflict with law as criminals. Many
juvenile sex offenders are themselves first victims, particularly street children and children in

poor families would have been repeatedly abused by others and turned into offenders over a
period of time, says activist A Narayanan.17

Whether reducing the age can turn out to be counter-productive?

Due to rapidly increase in rape cases, compel people demanding for stricter laws for juvenile
offenders in furtherance a reduction in age from 18 years to 16 years. To examine the question of
whether juvenile maturity should be used as a yardstick before referring trial to the Juvenile
Justice Board in case of serious and heinous offences.[xli] In response to the same, The Women
and Child Development Ministry proposed an amendment to charge juveniles between ages of
16-18 years of age involved in heinous crimes under the Indian Penal Code. However, the
amendment has faced strong opposition from agencies like NCPCR, CRY, UNICEF and others
citing the reason that it stands against the UN Convention on Child Rights which has been
ratified by India.[xlii] It has been argued that such an amendment would result in retributive
justice rather than restorative and reformative justice. The US SC in the case Roper
v. Simmons[xliii], agreed with an overwhelming amount of psychological data pointing to the
fact that adolescents who were around the age of 17 were vulnerable to peer pressure, coercion,
were impulsive, more likely to take risks and make temporal decisions.[xliv] The main aim of the
Juvenile Justice Act is to save young offenders from getting sucked into the criminal justice
system so early on in life and to allow them to reform. However, such amendment would not
only defeat this aim but also not allow the offender to recover from the punishment leaving his
future in the dark. Juvenile offenders are allowed some leeway on account of the fact that they
may be immature and not fully capable of understanding the consequences of their actions. Many
further argue that following on the footsteps of US and UK may not work for India as the crime
reality and trends varies considerably from that in India. The number of children being charged
in US and UK is much greater as compared to in India.[xlv] Juvenile delinquency has been
known to arise due to several factors including family influence, the social environment a
juvenile has been brought up in and peer pressure. At times, the demands of wants and needs are
intensified by a society that consists of high mobility, social change, and is materialistic. Also,
social changes can create anxiety and disillusionment for adolescents and thus they commit
17 Santosh, NCRB Report: 1316 Juveniles booked for rape last year, THE NEW INDIAN EXPRESS,
June 17, 2013 (January 15, 2013)

delinquent acts.[xlvi] In US, some of the most frequent juvenile crimes include thefts, gun
violence and drug abuse. The increasing divorce rates and broken families is touted as one of the
main reasons for delinquency as it leaves the juveniles with an emotional vacuum. Child welfare
activists in India argue that that the Juvenile Justice Act is essentially a welfare law and has been
created for the care and protection of the children. Further, they believe that every juvenile is
made a criminal due to the lack of required amenities and education for the child which the
nation is obligated to provide.

Conclusion
Taking all of the above factors and elements into consideration, the
issue at hand remains that India is indeed facing an increase in
youth crime which covers not just minor offences but also grave and
heinous offences. A law must not be amended because of single act of barbarism; because
law is for all and for all time to come. Though it is true that children in the age group of 16 to 18
years are increasingly being found in commission of heinous crimes but it is only a little
percentage of all the crimes committed in India throughout the year. Indian Legislators

should not make a mistake due to public pressure and need to make
a well thought out decision.
The Pro side argues that a crime is a crime, no matter what the age is. Only because a child
commits a crime it does not mean that the victim didn't suffer. It is believed that the juvenile
court has been established with the age factor in mind rather than focusing on the crime factor.
When there are harsh punishments on juveniles who commit crimes, others will learn from their
mistakes and will deter them from committing crimes. Finally, it is simply harmful to assume
protection for a group and say they have no responsibility.
The Con side argues that juveniles should not be tried as adults. The juvenile courts are
necessary because children cannot be tried in the same manner as adults. On most occasions,
you'll find that the kids who have committed a crime are very young. It is understood and proven
that at an early age, it is impossible for children to have the mental ability like that of a normal
adult and if amendment will be made it will be effecting the larger part of the society. If we

continue to transfer juveniles into the adult court system we are ending with their opportunity to
become a productive citizen.
While debating the amendment in Parliament it must be discussed that whatever we as a society
want to have a justice system based on retribution and punishment which is reformative and
assimilative for the juvenile offenders. The state as well as the society has a responsibility
towards our children in the sense that they would not become wayward and remain in the social
mainstream; hence care and protection must be the main motto while amending the Juvenile
Justice (care and protection) Act and not punishment.

Stricter punishments will definitely sacrifice on certain child rights

such as education and affect their future, but one cannot deny that
change is the need of the hour and India cannot afford to see more
incidents like Nirbhaya.

http://abcnews.go.com/US/chicagos-gang-violence-fueled-social-media/story?id=17464743
http://www.rediff.com/news/report/delhi-rape-why-we-need-tougher-juvenile-crime-laws/20121229.htm
http://www.firstpost.com/india/cji-promises-swift-justice-for-crimes-against-women-576502.html