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Wednesday, December 01, 2021

Simply put: Who is a child? The 16 or 18 debate

Abantika Ghosh explains the inherent contradictions in the Juvenile Justice Bill that was passed in the Rajya Sabha on Tuesday — how, at 16, you are too young to drink but old enough to be tried as an adult.

Written by Abantika Ghosh |
Updated: December 23, 2015 5:46:04 am
The Bill has been in the making for years now (it was passed by the Lok Sabha in May) but became a political flashpoint after the Delhi gangrape of 2012 where one of the perpetrators was a youth six months short of 18 years. (Illustration by: C R Sasikumar) The Bill has been in the making for years now (it was passed by the Lok Sabha in May) but became a political flashpoint after the Delhi gangrape of 2012 where one of the perpetrators was a youth six months short of 18 years. (Illustration by: C R Sasikumar)

Why has the Juvenile Justice (Care and Protection of Children) Bill, 2015, become so controversial?

The Bill has been in the making for years now (it was passed by the Lok Sabha in May) but became a political flashpoint after the Delhi gangrape of 2012 where one of the perpetrators was a youth six months short of 18 years. His three-year period in a reformation home ended on Sunday, December 20, bringing the crowds and also the family of the rape victim to India Gate to urge that he should not walk free. There is one provision in the Bill that has been contentious from the start — that juveniles aged between 16 and 18 years who are accused of heinous offences (for which there is a sentence of seven or more years under IPC) can be tried under adult laws. This particular provision had been rejected by a Parliamentary Standing Committee, a three-member committee set up in the aftermath of the 2012 gangrape that was headed by former Chief Justice of India Justice J S Verma, and the vice-chancellors of several law universities.

Watch video Parliament Passes Juvenile Justice Bill

Why is it problematic trying a 16-year-old as an adult?

This is problematic because of two other provisions in the Indian legal system. First, the UPA government had decided that the age of consent for sex would be fixed at 18 years without exceptions. Subsequently, another law was passed to prevent child sexual abuse, called the The Protection of Children from Sexual Offences Act, 2012, or POCSO, which laid down stringent punishments, including imprisonment for seven or more years, for sexual offences against children, defined as anyone less than 18 years of age. Let’s assume a situation where a 17-year-old boy elopes with his 16-year-old girlfriend or the two have consensual sex against the wishes of their families. If the new JJ Act is passed, these two legal provisions would mean that the boy could be charged with rape — a heinous offence as defined in the Act — and because he is above 16, he could be tried under adult laws and sent to an adult prison. He would have the option of a reevaluation when he turns 21 but the stigma and the injustice of being charged criminally for consensual sexual experimentation, experts say, is not something that children should be subjected to. There are also concerns that the lowering of age would in one stroke legalise illegal detentions of children in jails across India, especially in areas affected by extremism.

Are crimes by juveniles on the rise?

While introducing the Juvenile Justice Bill in the Rajya Sabha, Maneka Gandhi, Minister of Women and Child Development, said juvenile crime is the “fastest rising” crime in the country. But studies done by activists debunk the government line. For the last three years, they say, such crimes have made up only 1.2% of the total crimes in the country. An analysis done by child rights advocate Ananth Asthana of the cases in the Juvenile Justice Board from 2007-08 to 2012-13 presents an interesting picture. Of the 266 people who were accused of rape, 69 were acquitted, 18 were adults, and 3 were discharged. Which means, 90 of the 266 cases weren’t carried out by juveniles. Of the remaining 176, 50% were cases of love affairs gone wrong and 30% were of exploratory sex by boys in the 12-14 years age group.

What was the view of the Parliamentary Standing Committee of human resource development that looked at the JJ Bill?

The committee was headed by BJP MP Satyanarayan Jatiya and had among its members Health Minister J P Nadda (before he joined the Union cabinet). After extensive deliberations with stakeholders, including NGOs, and consideration of data from the National Crime Records Bureau, the committee concluded that the “existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system…”

What was the opinion of the JS Verma committee?

The committee looked at available statistics and scientific evidence on recidivism (relapsing into criminal behavior) and also took into account India’s international commitment on protecting the rights of children to take the view that the present cut-off of 18 years should be retained. “Children, who have been deprived of parental guidance and education, have very little chances of mainstreaming and rehabilitation… We are of the view that the 3-year-period (for which delinquent children are kept in the custody of special homes) is cause for correction with respect to the damage done to the personality of the child… We have also taken note of the fact that considering the recidivism being 8.2% in the year 2010 as against 6.9% during 2011, we are not inclined to reduce the age of a juvenile to 16.”

Who is a child, according to Indian laws?

As late as in 2012, in the POCSO Act, the government reinforced the definition of a child as somebody aged less than 18 years. The minimum age at which a man can marry is 21 years, which is in keeping with recent neuroscientific evidence that the human brain does not attain full maturity before 20-22 years. As per excise laws, which are in the state domain, the minimum age at which a person is allowed to drink is 18. In some states, it is higher. No Indian can vote before s/he is 18 years of age.

What is the age of criminal culpability around the world?

According to Encyclopaedia Britannica, in most US states, juvenile courts have jurisdiction over juveniles who commit offences before they turn 18, though it is lower in some states. The court’s jurisdiction over a juvenile generally cannot extend past his 21st birthday — meaning, that regardless of the offence, juveniles are required to be released when they turn 21. In the UK, offenders aged 17 and above appear in the adult courts, though special sentencing provisions apply to offenders under the age of 21. In Japan, offenders below age 20 are tried in a family court, rather than in the criminal court system. In all Scandinavian countries, the age of criminal responsibility is 15, and adolescents under 18 are tried in a justice system that is geared mostly towards social services. In China, children from age 14 to 18 are dealt with by the juvenile justice system and responsibility for the correction of problematic juvenile behaviour lies with parents and schools. The age of adult criminal responsibility has been raised to 18 in Brazil, Colombia and Peru — children from ages 12 to 18 are held responsible under a system of juvenile justice.

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