Rape is no child’s play
The General Assembly of the United Nations adopted the Convention on the Rights of the Child on 20 November 1989 wherein it prescribed a set of standards to be adhered to by all state parties in securing the best interests of the child. The Convention on the Rights of the Child emphasises social reintegration of child victims, to the possible extent, without resorting to judicial proceedings.
Even the Constitution of India has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, imposed on the state a primary responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected.
The Parliament first enacted the Juvenile Justice Act 1986 to deal with offences committed by a juvenile (i.e a boy below 16 years and a girl below 18 years). In consonance with the principles of convention of the right of child and the provisions enumerated in the constitution, the parliamentarians enacted the Juvenile Justice (Care And Protection Of Children) Act 2000 and raised the age of juvenile males, at par with the females, to 18 years to consolidate and amend the law relating to juveniles in conflict with law; and children in need of care and protection, by providing proper care, protection and treatment by catering to their development needs. This also resulted in adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.
The gang rape and brutal assault which resulted in the death of the paramedical student in the capital city on 16 December 2012 shook the conscience of the entire nation. The youth took to the streets and marched towards the Parliament and their protest was responded by water cannons and lathi charge by the government. But the spontaneous outcry throughout the nation forced the supreme law makers in the country to bring about necessary changes in the criminal law. Both houses of Parliament witnessed debates and passing of the Criminal Law (Amendment) Act 2013 whereby enlarging the definition of rape; and making the punishment more stringent for the offences committed against women under various sections of the Indian Penal Code.
There was a demand by various sections of the society and a number of petitions were filed in the Supreme Court and before the Juvenile Justice Board (JJB) on the issue of lowering the juvenile age but without success. Even the Justice Verma Committee, which was formed after this Nirbhaya case for amending the criminal justice act, was at odds with the idea of lowering the age bar. Women and child development minister Maneka Gandhi’s statement that juveniles who commit rape should be tried as adults has revived this unsettled debate on lowering the age bar of juvenile delinquents from 18 to 16 years. The minister said she was personally working to amend the law.
In Subramanian Swamy & Ors. Vs Raju Thr. Member Juvenile, a criminal appeal filed before the Apex court, it was pointed out that the practice of statutory exclusion which ensures that perpetrators of certain grave offences are prosecuted as adults; ‘judicial waiver’, granting discretion to special juvenile courts to waive jurisdiction and transfer the juvenile’s case to an ordinary court of law and also the policy of concurrent jurisdiction of both the ordinary and juvenile courts giving discretion to the prosecutor to initiate proceedings in the more suitable court are followed in such jurisdictions.
The Supreme Court refused to be tempted to enter into the said arena which they maintained was primarily for the legislature to consider. Courts should confine its scrutiny to the legality and not the necessity of the law to be made or continued. It was also contended that there has been a huge increase in the number of crimes committed by juveniles in recent times and statistics shows that the graph is on the increase. The Apex Court held that the courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued, and thereby refused to deliberate on lowering the age of juvenile involved in ghastly and heinous crimes.
There is a need for a nationwide debate on whether or not to lower the age of the juvenile in a heinous crime? A view which argues in favour of the victim and holds that the instant Act be read down in consonance with the rights of victim as protected by various fundamental rights including Article 14 and 21 of the Constitution of India.
A time has come when people of the nation through their duly elected representatives in form of legislators who collectively represent their voice must come forward, debate the issue in light of the increasing crime and atrocities committed especially against women by juveniles in the age group of 15 to 18 years of age with intention, and full knowledge of the repercussion on both the accused as well as the victim in the offence committed by them.
The author is an advocate