Monday, 23 October 2017

Criminal Jurisprudence Challenging the Traditional Perspective of Juvenile in conflict with Constitutional Guarantees.

‘There can be no keener revelation of a society’s soul than the way in which it treats its children’-Nelson Mandela
A Child is wet clay, one can mould them in any shape or in any forms. It is clay in a potter's hand. From the time immemorial, the concept of 'Age' has always been an unexplored topic in the theoretical aspect of a child in relation to his criminal responsibility. Recognizing the rightful place of a child from a need-based approach to a right-based approach was an apogee in the past years. Child-centric human rights jurisprudence has become one of the vital issues under the plethora of laws in the chauvinist society of today. In present times, there are alarming growths, impatience, intolerance and other negative vibes can be found in a child which needs a holistic development.
Historically, in India, children hold an integral position with their family and society as a whole. The main upbringing has always been the immediate family is it joint family or nuclear followed by the distant relatives if required. But unfortunately, the present scenario is, totally bleak. The picture is topsy-turvy. India stands highest in regard to its largest population of children as compared to the entire world. Out of 450 million children who are below 18 years old , approximate 40 million children lead the most vulnerable life. There has been a significant change in law, policy and in welfare of child over the years. Before 1839, there was a traditional view that a father had the sole rights over his children which has finally paved way to the recent changes. It was only during twentieth century that the concept of child rights has emerged. It was only post twentieth century that the traditional concept of criminal jurisprudence i.e. retribution, repression has given passage to retribution and reformative concept in juvenile justice system. Today a child is the sole master of his own developments that affects his life, and his decisions sometimes do lead him to his doom as being observed over the recent years. This is certainly true that the age of a child do protects him from a criminal trial.
Residing in a country like India, the age debate takes an interesting perspective when juvenile crime is profiled. While apprehension of juvenile delinquents under Indian Penal Code (IPC) & Special Local Laws (SLL) within the 7-12 age group and 12-16 year age group respectively reported a drop in 2011 over 2001, 16-18 age groups registered an increase of 25.9 per cent in apprehension of juvenile delinquents under IPC &SLL in 2011 over 2001[4]. It is widely accepted that crime is committed disproportionately by young people. Persons aged 15 to 19 years are more likely to be processed by police for the commission of a crime than are members of any other population group. In 2007–08, the offending rate for persons aged 15 to 19 years was four times the rate for offenders aged more than 19 years (6,387 and 1,818 per 100,000 respectively; AIC 2010). Offender rates have been consistently highest among persons aged 15 to 19 years and lowest among those aged 25 years and over. Therefore, it is a high time that the age of criminal responsibility of a juvenile or a child must be taken seriously now.
Concept of Child in India
The concept of child rights begins with the meaning and definition of child which itself is ambiguous under Indian Law. Biologically, a child or a childhood is the span of life from birth to teenage years. According to Article 1 of UNCRC (United Nation’s Convention on the Rights of the Child), “A child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.” The definition of the child as given by the U.N.C.R.C has definite bearing not only on child development programmes and on budgetary provisions for them, but also on production of statistics as applicable to different cross sections of children in terms of reference ages. In India, there are several legislations which introduce definition of a child which may differ from one with another. Minimum age range has been defined by different laws related to the protection of child rights and its development in India. Though legislations has been enacted making 18 years the age of majority, but the upper limit of a child remains at 21 years partly due to retrospective effect and partly due to present necessities.
According to, Indian Majority Act, 1875, every person domiciled in India shall attain the age of majority on his completing the age of 18 years and not before that. The Indian Majority Act, 1875, was enacted in order to bring about uniformity in the applicability of laws to persons of different religions.
According to Indian Penal Code, 1860,the age limit for criminal responsibility lies within 7 to 12 years. For the purpose of protection of a child from kidnapping, abduction and such other related offence, the age limit has been raised at 16 years for the boys and 18years in case of a girl. On defining 'RAPE', Section 375 of I.P.C exempts a person from the charges of rape if he has forceful sexual intercourse with his wife, (which is a marital rape) who is above 15 years.
But, however, post 16th December, 2012 gang-rape case of a Delhi girl, there has been certain amendments under the penal provisions. Based on the Verma Committee Report, the ordinance was replaced by a bill with the numerous changes. This new Act, has expressly introduces certain new offences to be dealt under related laws. These new offences include Acid Attack, Sexual Harassment, Stalking, and Voyeurism which has enacted and incorporated under the Indian Penal Code.
Under Immortal Traffic Act (Prevention) Act, 1986, a “Child” means a person who has not completed the age of 16 years and a “Minor” means one who has completed the age of 16years but hasn't completed the age of 18years. During 2006-2011, the trend in human trafficking cases reported under the heads of ‘Procuration of Minor Girls, Importation of girls, Selling of girls for prostitution, Buying of girls for prostitution under Immoral Traffic (Prevention) Act’, shows an overall declining trend, with year to year variation. From nearly 5000 cases in 2006, it declined over the years, touching the lowest in 2009 (2848 cases) increased to 3422 cases in 2010, and 3517 cases in 2011
For the special care of minors under Juvenile Justice (Care and Protection of Children) Act, 2000, the age limit for both girls and boys is 18 years. The word “juvenile” originates from 'juvenis' which means, young. Therefore, Juvenile Justice System is a legal structure that aims to protect the children i.e. the juvenile delinquents from the atrocious world. The ripple effect of criminal justice system has had always been manifested by tussle between the protective laws of the juveniles and the traditional laws. In spite of Constitutional Guarantees and plethora of State Legislative Laws, this tug of war has been continuing till today.

Constitutional Guarantees & Role of State Regarding Age of Criminal Responsibility:
After Independence, the constitutional provisions have inspired the developments in the field of juvenile justice. Part III and Part IV which deals with Fundamental Rights and Directive Principles of state Policy respectively contain some of special provisions with respect to children. The judiciary in India has played undoubtedly a very important role and has passed many significant judgments in favor of child rights. In Sheela Barse v Union of India [AIR1986SC1733], the Supreme Court issued directions to the state government to set up necessary observation homes where children accused of an offence could lodged, pending investigation and trial will be expedited by juvenile courts.
Our supreme court states that reducing the age of juveniles may be a violation of our prestigious constitution. But constitution functions for our betterment. So, how can right justice turn out to be a violation? Society has always been created by man himself. The main idea behind the enactment of juvenile legislation was “welfare”, and then the society also has an important role to play in matters regarding juveniles. The important sections of the society to provide help can be,the lawyers, policemen, media and other social workers including NGOs. The lawyers can extend a lot of help to the juveniles by providing free legal help and assistance to them. There are many juvenile offenders, who have to suffer a lot only because they cannot afford some lawyers to defend them. Providing free legal aid to them can lessen their sufferings Media, also being a double edged tool, can play an important role. Instead of displaying violence and crime; what can be done is that, they can show the violence or the crime scenes, giving the message how bad it is and what happens to the wrong doers.
In view of the significant increase in rapes committed by juveniles since the passage of the JJ Act, it has become necessary to create a legal deterrent to protect women and girls. India must amend the act to bring down the age bar for juveniles to 16 and transfer heinous crimes such as murder and rape committed by them to the adult criminal system. India today needs children who can grow up to be responsible citizens of tomorrow.
Contradictions on The Age of Criminal Responsibility of A Juvenile:
A child is a part of the society in which he/she resides. His immaturity motivates his actions whatever he sees around. It is due to the environment and social context that provokes him. Trying juveniles as adults has always been a controversial topic to the public. It is a strong issue to follow though considering that there are numerous arguments to put forth on both sides. Both sides will be highlighted so that a clear picture in regards to age of criminal responsibility of a child. Though, before getting into the dispute, we need to understand certain matters. Juveniles are children who fall under the age of 18.
Although in some States in the USA, the legal age varies. Yet, some juveniles are tried as adults despite their under-age. The present Juvenile Justice Act has been formed after a lot of discussions and arguments. Giving regard to the said act, the question that remains back, Will lowering of age solves our problem in of heinous crime prevention anyway? Will convicting juveniles as adults, turn out to be a better solution and create a deterrent to stop crime? Ascertaining the age is a crucial role since it ensures that a juvenile enjoys the protection he is entitled to under law. The best proof of age is the Birth Certificate or School Leaving Certificate which is normally produced by the accused in the Court or to the Police to verify its veracity.
In a pioneering country like India, age of majority has been determined at 18 years as has been discussed earlier. Our laws entrust legal responsibilities to a person above this age, be it right to caste vote, right to get married and even right to livelihood. Below this age, law entrusts rights of the minors to their parents or to their legal guardian. It is a paradox to see that the underage bear their criminal responsibility while their control lies to their parents or to their guardians. Then don't you think that when a minor or an underage or a juvenile bears their criminal responsibilities for any heinous crimes, the adults or the state must own the responsibility as well? In the debate of fixing criminal responsibilities for a minor, he is always treated as an autonomous entity while law guarantees adult control over them, which is seriously paradoxical.
Suggestion and Conclusion:
Ever since the dawn of human civilization, crime has always been one of the crucial problem ever existing. Hardly any society can think without besetting the problem because we human beings are blessed with nature of animal instinct. Therefore to think about a crimeless society is a mere myth[14]. Today the society is approaching the closing ends of welfare approach towards children and is entering the era of rights approach. Asha Bajpai writes, “this shift in focus from the ‘welfare’ to the ‘rights’ approach is significant. Rights are entitlements. They also imply obligations and goals. The rights approach is primarily concerned with issues of social justice, non-discrimination, equity and empowerment. The achievements of right based approach will depend on sincere performance of corresponding duty performed by the other stake holders in the society. It has been specially introduced in the Indian Constitution under Art 51 A (k). Upbringing of a child into a healthy adult with regard for social values is indisputably dependent upon the performance of this duty by the parents or guardians. They should try to groom their children in such fashion that they do not pick up any trait or habit which may bring the juvenile into conflict with law situation......”
Lastly I would conclude with this thought that, “We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of things we need can wait, the child cannot, right now is the time his bones are being formed, his blood is being made and his senses are being developed. To him, we cannot answer ‘tomorrow’. His name is ‘today’.
Ms. Shovonita Acharjee
Assistant Professor

Law Department

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