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Saturday, 31 August 2013

Does Crime Heed Age ?


      The perceived inadequacy in the sentencing of the delinquent juvenile in the Nirbhaya case has provoked debates on the strength of juvenile laws of our country. There is pervasive unrest and non reconciliation with the fact that the most brutal perpetrator of the abhorrent offence was sentenced for a period of only three years. First things first. The ire of laymen in the present scenario need not be misdirected towards the Juvenile Justice Board presided over by the Principal Judicial Magistrate, which handed down the sentence to the guilty. This is for the obvious reason that the Board had no room to interpret the sentencing afforded by the Juvenile Justice (Care and Protection of Children) Act (JJ Act) in any more suitable manner than it has now. In fact the Board has handed down the maximum sentence that the law could afford under the circumstances.  

          I read a reported tweet of Ms. Kiran Bedi stating "Courts need not be mechanical robots. We make laws and then interpret them not to be enslaved but do justice to victims too". While the rhetoric of the statement is by and large not incorrect, it is delusional of one to expect that Courts will enhance the sentencing of any convict beyond what the law enables it to award. This is because the law of our land mandates that penal (criminal) laws are to be interpreted exactly as they are codified since they determine someone's liberty or the taking away of it. The Courts cannot invent or manoeuvre sentencing for a proven criminal to suit popular expectations. It is however another thing that the law itself may be inadequate to dole out an appropriate response of the State against a shocking crime as the one in the present case. In the Nirbhaya case, the juvenile was charged by the investigators, to have been the most barbaric in the gang while committing the heinous crime. It is yet to be ascertained from the Board’s order as to what extent his barbarism has been established as charged. Be that as it may, once the accused has been found guilty, what has added insult to injury is the fact that he was only a few months younger than being eighteen years old, for which the law enabled him to be treated as a juvenile. The circumstances of the 'Nirbhaya' case force one to wonder whether the JJ Act must come to the rescue of such a person who is capable of partaking in a brutal gang rape exhibiting actions of the most diabolic, inhuman and ghastly order. 
             This is where I have a suggestion to make. The Parliament need not completely turn the JJ Act on its head. What it can do is, keeping in mind situations where the accused displays sufficient maturity of action at par with adults, make room in the law for Courts to treat the actions of a juvenile as ones deserving consideration like those of adults. It is well known how the Hon'ble Supreme Court has passed a series of rulings to determine the broad and near exhaustive principles for considering as to whether a death sentence is to be awarded in any particular case. The Legislature of our country must take a leaf from that book and introduce appropriate provision in the JJ Act which would make it possible for Courts to delineate between cases where a juvenile's actions smack of an immature display of choices whilst committing ordinary offences and cases where except for the mere fact that the accused is days away from exceeding his juvenility, there is nothing ordinary about his alleged actions. In other words the law must enable adjudicators to deal differently with juveniles accused of ordinary offences and those accused of heinous crimes. Once such a provision is in place the Courts will have the handle to deal with cases like that of the juvenile in the Nirbhaya case, in an appropriate manner. The Legislature could either enable the Courts to treat the case of the latter category as per the stringency of IPC or the particular provision could also prescribe higher punishment in the JJ Act itself. 

But the discussion would be incomplete without restating of the observations of the Hon'ble Supreme Court in the matter as to whether the in case of heinous crimes like murder and rape etc., the juveniles should be tried under normal laws. The Court observed inter alia that :
“If what has come out from the reports of the Crime Records Bureau is true, then the number of crimes committed by juveniles comes to about 2% of the country’s crime rate "
“In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles....In the absence of any proper data, it would not be wise on our part to deviate from the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which represent the collective wisdom of Parliament”

While admitting that there could be exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, the Court said,

“but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.”

        In all fairness I must admit that while the observations of the Hon'ble Apex Court are true to the vision and the object of the JJ Act when read with the statistics quoted by it, it would be fitting to the need of our times that the Legislature took care of the expectations of the victim and his / her family from our judicial process while considering the adequacy of the JJ Act. 

17 comments:

  1. I don't remember the source but i read in a national daily that in fact crimes by juveniles have increased abominably though the site of NCRB states what you have written.

    But it has occurred to me-those who are criminally inclined from early adolescence--will they not be emboldened to commit such crimes before 18 yrs in order to escape punishment?

    On the other hand it is also essential to reform them if possible.

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    1. I agree Indu ji that's a dilemma that will worry the authorities. But as I'v mentioned the expectations of victims must also be a matter for consideration here.

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  2. I share your concerns which is a general perception amongst general public.The law makers ought to make provision to provide JUSTICE to victims too.

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  3. I dont think crime has any age, worse crimes have been done by juveniles as well as old men. Tunda and Hafiz Saeed are examples of old men who should pray for betterment of life are doing just opposite, killing people.

    But law is a law and nothing can be done about it

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    1. Exactly my point. That being said, one has to consider the fact that there are certain kind of crimes which are committed in instant provocation, where a more mature display of response could alter the consequences. If we observe around us many such instances can be found. In such cases, the age of a person, particularly tender age, should be considered while making provision for punishment of the young offenders involved in those crimes.

      Thanks for sharing your point of view.

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  4. I don't know, Anupam. I do believe in second chances and i guess, the confusion that's ensued thanks to this particular case is perfectly understandable. But heinous crimes need to be punished. And cases like these can change things or set an example by deviating from the law and set precedents. Don't you think? Do they really need to wait till additional provisions are made?!

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    1. I understand your concern here Prachie. But in a system governed by rule of law and established processes of justice delivery, Courts have to act as per the law allows them to. As I have mentioned in the post, criminal law is an area where the hands of Courts are tied to a great extent. The reason being that since a verdict of guilty in criminal trials will result in deprivation of a person's freedom, all care should be taken by Courts to not transgress what the law permits them to do while interpreting and applying the relevant legal provisions.

      For example if a person is found guilty of committing death by rashness or negligence (e.g. hit and run cases), then Section 304 of the Indian Penal Code provides for a maximum punishment of 2 years, notwithstanding the fact that the victim may have died due to the collision. The Court cannot sentence the accused for more than those prescribed two years.

      It is therefore the Parliament which must take cognizance of the collective public opinion in the country (since it is house of the people's representatives) and make laws to fit the expectations of those who have elected them. They lawmakers must make laws keeping in view the expectations of the victims. That's why I've suggested in my post for introducing provisions in the JJ Act which will enable the Courts to deal differently with juveniles accused of ordinary crimes and those accused of heinous and brutal offences.

      The Courts by themselves are not permitted to punish beyond the prescribed punishment, no matter how differently they feel.

      Thanks for sharing your opinions Prachie

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    2. That's Section 304 A of IPC (not Section 304)

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  5. If someone who is under 18 can rape or kill, does that mean that after turning 18 they can give back respect and honor to the one raped or give back the life taken. When a deed is done, its done and the only way out is to face the punishment meted out. Only problem is in our country the punishment for anything outrageous is something ridiculous.

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    1. In most of the cases, yes, I agree with what you've stated.

      Thanks for sharing your thoughts AT.

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  6. Considering the various aspects of this brutal crime lead me to believe there shouldn't be any second chance for such a gruesome act. When your age didn't stop you from committing the crime, then why should the law step back or think twice in punishing you?

    I strictly object his leaving or delaying his owing punishment. Leaving him would be encouraging teenagers to be attempting such acts smartly.

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    1. Fair point Mousumi. Thanks for sharing

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  7. You echoed the thoughts in my mind Anupam - that the courts had little leeway in sentencing the 'juvenile'.

    While the Honorable Supreme Court may be right in its estimate of juvenile crime I think that modification - maybe on the lines of what you suggested - are vital. It is a sad fact that some juveniles do commit heinous crimes and it is necessary that they are punished as adults if they made adult choices. Even if it is one single case, trivial sentences on what may seem to be technicalities would cause people to lose faith in the judiciary - as, indeed, it seems to have done. That lack of faith is a far more serious thing than the stats cited by the Honorable Supreme Court may indicate.

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    1. Agree Suresh ji. Hope the lawmakers are thinking about it. Oh ! they are busy discussing missing coalgate files...

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