One of the accused, as per police record and, according to reports, the most aggressive of the lot who brutalised the young girl, is a minor of 17 years. Reports have shown that it was the minor who first lured the unsuspecting victims into the bus and that he was the most aggressive in the repeated rape of the victim.
In India the sentencing and trial of juvenile offenders is mandated and governed by the Juvenile Justice Act 2000. Section 1(4) mandates that all cases involving detention, prosecution, penalty and sentence of imprisonment involving juveniles shall be governed by the Juvenile Justice Act. Section 2(l) defines a juvenile as any child who has not yet completed eighteen years of age.
Section 15(1)(g) of the JJ Act further mandates that a juvenile convicted of any offence can be sentenced to be sent to a special home for a period of three years, maximum and thereafter be released on probation.
What this boils down to is the fact that in case the accused happens to be a juvenile the maximum time that he shall serve is three years or 1095 days in a special rehabilitation home.
Before venturing into the merits and demerits of the Indian Juvenile Justice system it would be prudent to see how the Western world deals with juveniles accused of horrendous crimes.
A somewhat similar, yet if possible more horrific situation, arose in England in the now infamous James Bulger Case in 1993. The two accused and 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.
In England, the age of criminal responsibility, is set at 10 years. This means that any individual above the age of 10 is considered fully aware of the difference between right and wrong. In case of a juvenile offender, he/she can either be tried as a juvenile or as an adult, depending again on the heinousness of the crime. In case the offender is tried as an adult the Crown Court (the UK version of a criminal court) has in its discretion to award the maximum amount of punishment as would be awarded to an adult.
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.
In fact, the Unites States has drawn a clear distinction between juveniles as victims of an unresponsive society and those who are fully aware of the heinousness of their crimes. The legislation of the country allows in certain cases, keeping in mind the heinousness of the crime committed, to try juvenile offenders as adults. The justification offered behind this waiver is to recognise the inherent and all important principle of Mens Rea or guilty conscience.
This waiver of jurisdiction by the Juvenile Board is brought about by a clear understanding that in certain cases the board may not be adequately equipped to handle the offender, particularly one who committed the crime knowing fully well the consequences of his/her actions.
Another justification offered is the prime responsibility of the State to protect society from such offenders. By waiving its jurisdiction the juvenile court recognises that the offender is beyond the scope of juvenile rehabilitation and legitimises the waiver of jurisdiction as a means of protecting society at large from the offender.
Australia too follows a system similar to the United Kingdom. The age for criminal responsibility in Australia is also 10 years, which means a child is not supposed to know the difference between right and wrong if he/she is below 10 years. From 10 years to 14 years an accused comes under what is called ‘rebuttable presumption’, this means that by default the child is supposed to be unaware of the consequences and inherent illegality of the act committed, however the prosecution is free to rebut this understanding. Any individual over 14 years of age is held accountable of any crime committed by him and whether the individual is to be tried as a minor or an adult depends again on the heinousness of the crime.
Coming back to India and the Juvenile Justice Act 2000, it is easy to notice that rather than have a flexible procedure for sentencing we have opted for a rigid and sweeping one. This is a system in which the maximum amount of sentence served by a delinquent who say partakes in armed robbery in order to feed himself is the same as the one given out to a serial rapist or murderer; just so long both are under eighteen years of age.
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’. While the swanky name change is an earnest and somewhat romantic gesture at our societies’ endeavour in recognising and unleashing the ‘good’ within each child, there is an inherent problem with the term of the sentence. 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.
In the case of the Delhi rapist, even if one were to say that the boy needs to be rehabilitated and that perhaps the reason for his barbaric and animalistic act was a deep-rooted psychological problem, there is no assurance that the issue can be dealt with in three years.
Of course, the absolute lack of implementation of the provisions of the JJ 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.
With this basic and undeniable truth it is a matter of simple calculation that in all probability the Delhi rapist shall be on the streets within the next three years that’s 1095 days with nothing more than a stint in a special home in the name of absolute and complete Rehabilitation.
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