The Lok Sabha on Thursday the 7th May, 2015 passed the Juvenile Justice (Care and Protection of Children) Act, 2014 which will allow children in the 16-18 age group to be tried as adults if they commit heinous crimes. The bill will now be debated in Rajya Sabha, where the Government despite lacking a majority in that House, will be hoping it is passed.
The amendments were prepared in the backdrop of public outcry over the Delhi gangrape case of 2012 in which a juvenile accused received a lighter punishment because of his age. However, the amendments have not taken care of the well -trained adolescent Juvenile Terrorists (between the age group of 14-18 years) who can create havoc by killing many innocent people and can get away by lighter punishment because of his age. The members of Parliament should seriously note that the well-trained terrorists Ajmal Kasab who recently in the year 2008, created havoc at Mumbai, by killing many innocent people/police officers, had also taken a plea that he is a juvenile. Therefore, the members of Rajya Sabha/Parliament should insist on amendment in the JJ Act that there should be a provision of ‘death sentence’ for adolescent juvenile terrorist/s between the age group of 14-18 years.
The Juvenile Justice (Care and Protection of Children) Bill/Act, 2014, mooted by the Ministry of Women and Child Development (WCD) headed by Maneka Gandhi, had been in the works for more than six months. One of the significant amendments/changes is that a minor above 16 years of age could be treated as an adult by a court if he or she has committed a heinous crime like rape, dacoity, murder or acid attack and the decision will be taken by the Juvenile Justice Board. As per Section 2(33) of the said Bill/Act “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.
The amendments/changes were introduced following public uproar after the Nirbhaya Gangrape in December, 2012. Subsequently, there have been a series of cases including the Shakti Mills rape case in Mumbai where juveniles were involved and got away with a maximum of three years in reformatory home.
Women and Child Development ministry officials have cited National Crime Record Bureau (NCRB) data that indicates that the number of children apprehended for heinous crimes, especially in the age group of 16-18 years, had gone up significantly in recent time. As per the report of 2013 the total juvenile in conflict with law apprehended under the Indian Penal Code (IPC), 66.3% were in the 16-18 age group.
The amendments/changes also include provision for the introduction of foster homes and simplifying the adoption process that were accepted by the Parliamentary Panel.
Recently, the Supreme Court on Monday, the 6th April, 2015 said the time had come to think of an “effective law to deal with the situation arising from the increasing involvement of juveniles in heinous offences”. The Courts concern was expressed in a case where a boy, aged 17 years and 8 months, who was part of mob that attacked a gathering and killed nine people, was seeking to take advantage of friendly trial and lenient punishment prescribed under the Juvenile Justice (Care and Protection of Children) Act, 2000. Those under 18 are termed juvenile under laws.
Attorney General Mukul Rohatgi had said in an earlier hearing “the Centre understand the nation’s concern and is engaging the attention of the competent authority.” Rohatgi and Additional Solicitor General Tushar Mehta had further said “This involvement of juveniles under the present Act is increasing and has become a matter of grave concern.”
The Bench said, “we are inclined to think that the concern expressed by the Attorney General is absolutely correct and we are of the convinced opinion that he will put it across to competent authorities so that care is taken to the extent that the nature of the offence has some nexus with the age in question, for the cry of the collected (sic) is to live in a peaceful society that respects life, dignity and others’ liberty.” Though the Bench left it to the trial court to determine the correct age of the accused and whether he was a juvenile at the time of the crime, it said, “The issue that emerges is whether in such a situation (where the accused was part of an illegal congregation that killed nine people) can it be conceived by any stretch of imagination that the petitioner was not aware of the consequences? Or, for that matter, was it a crime committed, if proven, with a mind that was not mature enough?” The Bench requested the Attorney General to bring it to the notice of the concerned authorities so that relevant provisions under the Act can be relooked, rescrutinised and revisited, at least in respect of offences which are heinous in nature. The Bench sough answer from the Centre by the first week of May, 2015.
Mounting pressure on the Centre to take a relook at the law providing mild punishment to juveniles even when they are involved in heinous offences, Supreme Court on the 6th April, 2015 requested Parliament to “rethink” differentiating juveniles involved in innocuous crimes from those having a hand in serious offences. As the Centre shared the Supreme Court’s concern, a Bench of Justices Dipak Misra and Prafulla Chandra Pant said, “it is apt to note that there can be a situation where commission of an offence may be totally innocuous or emerging from a circumstances where a young boy is not aware of the consequences, but in cases of rape, dacoity, murder, which are heinous crimes, it is extremely difficult to conceive that the juvenile was not aware of the consequences. It’s time to think of an effective law to deal with the situation.”
In view of the above, the Legal Committee of All India Business Council of 609-B Niranjan, 99 Marine Drive, Mumbai – 400 002, have made following submissions/suggestions in the matter for kind consideration by the CJ of Supreme Court of India as well as the Central Government, Parliament and the competent authority and all others concerned.
IT APPEARS THAT NO ONE HAS CONSIDERED ABOUT THE HAVOC WHICH CAN BE CREATED BY WELL TRAINED ADOLESCENT JUVENILES IN THE AGE GROUP OF 14-18 YEARS
1. In recent past, out of the eleven well- trained terrorists who co-ordinated the attack on Hotel Oberoi, Taj and other places in Mumbai on 26-11-2008, only one terrorist, Ajmal Kasab, was caught alive. The said Ajmal Kasab was jailed and a long legal battle commenced. The Learned Counsel for Ajmal Kasab had taken the plea that Kasab is under 18 years of age and that, therefore, the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as the “said Act”) are applicable and that the trial cannot be proceeded further in the regular Court. However, after making relevant medical test/s, the Court rejected the said plea and continued the trial. Finally, after about 4 years, the said Kasab was hanged on 21-11-2012.
2. If the said Kasab was found to be under 18 years of age, the Juvenile Court could not have done much in the matter in spite of the heinous crimes committed by him. From the above experience, it is submitted that the concerned ministers of the Central Government, leaders of various political parties, Senior Advocates of Supreme Court etc., should have taken immediate steps to get the necessary amendment made in the definition of a child, to save such a situation and for that, if need be, the same should have been amended by declaring ordinance to that effect. It is further submitted that, the Chief Justice of SC can also suo motu take up this issue with the centre, to safeguard the security of our nation as a whole. However, no serious attention is focused on adolescent juvenile terrorists and no suitable amendment is made in the definition of a child under the Act till date.
3. Time and again, India has been receiving threats from various terrorist organisations and India also receives secret information about the probable targets of such terrorists who can create havoc in different parts of our country. It may be seriously noted that adolescent juvenile terrorists in the age group of 14-18 years can attack different parts of our country simultaneously. After creating havoc by killing many innocent people with the help of modern weapons and by bombing important projects, if such terrorists surrender before the police and each of them show his/her age proof of being under 18 years (now 16 years), then what? The Police will be bound to send all of them to an ‘Observation Home’ established under the Act of 2014. Further, the names and photographs of such terrorists/offenders cannot be disclosed and/or published in media like newspapers, T.V., etc., as the same is prohibited under the Act. In such a special situation, the Government will be helpless to take any action against such juvenile terrorists.
4. In view of the above, it is high time to make suitable changes in the definition of a “child” given u/s. 2 (12) of the Act, which is reproduced below:
“Child” means a person who has not completed eighteen years of age.
We submit that the following words should be added in the above definition of a child with immediate effect and if need be, by special ordinance of the Central Government:
“And, in the case of a person who is alleged to have or committed a heinous crime/s like murder or rape or any act/s of terrorism has not completed fourteenth year of age.”
5. Under the provisions of the Act, even if an adolescent juvenile in the age group of 14-18 years commits a heinous crime like murder, rape, etc., he almost goes unpunished, by virtue of the provisions of the Act. Practically it amounts to giving an open licenc e to a juvenile to murder, rape and/or to take revenge on persons, who do not act as per his desire, by breaking limbs of such persons, pouring acid on face, etc., without fear of any severe punishment in law. A trained adolescent juvenile of the age group of 14-18 years is also capable of creating havoc by hijacking our country’s important and confidential military data from our computers and can also commit such other various cyber crimes including other crimes like disturbing our electric and water supply to ruin our country in all respects. Can such a person be called a child? Do we need to take care and give protection to such children under the provisions of the Act? Certainly not. We seriously suggest that there should be a provision under the present Act of 2014, that, an adolescent juvenile terrorist, of the age group of 14-18 years, can be awarded life imprisonment or death sentence by the Court, like in case of other adult criminals.
6. Dictionary meaning of a child is a newly born boy or girl upto the age puberty which means when the boy or girl becomes capable of sexual reproduction after the age of 14 years and they have also become adolescent, capable of becoming well-trained terrorists.
7. As reported in the Times of India, Mumbai, of 9th September, 2013, according to the National Crimes Record Bureau, juvenile crimes in the city have increased by 34% in the year 2014 as compared to the year 2011. The Bureau has further reported that most juvenile delinquents were in the 16-18 age groups. Further, the statistics reported by the bureau appear only to be the tip of an iceberg, for the simple reason that all the crimes that may have been committed by children of the age group of 14-18 years do not come to light for several reasons viz;
In most of the cases, where heinous acts are involved, no names and/or photographs of such persons are published as per the provisions of the Act.
In case of rape, the parents of such victims are mostly reluctant to make police complaint in order to save the victim/s from further harassment and to avoid complications at the time of marriage proposals.
The family members of the victim/s are always under a threat that unless they withdraw their complaint from the police department, some other family member/s may become victim/s of such other juveniles between the age of fourteen to eighteen years, who have no fear of being severely punished under the provisions of the said Act.
Further, rival parties in business, politics, etc., square-up their account in many cases by misusing the provisions of the Act, without going to any Court of law. In any case, the percentage of crime rate cannot be the base for justification of heinous crimes being committed by adolescent juveniles under the age group of 14 to 18 years, for the reasons stated in detail hereinabove.
8. In fact, to be in tune with the provisions of the Constitution and the various Declarations and Conventions adopted by the world community represented by the United Nations, we are not seeking to lower the age of juveniles from 18 to 14 years but by amending the definition of a child as suggested above, we are seeking to close the doors for making heinous crimes and also to close the doors for the army of terrorists between age group of 14 to18 years who can attack and create disturbances in different parts of our country without fear of severe punishment under the Act. Many sovereign countries have made suitable changes in the juvenile law as per their requirements and have not blindly adopted the similar provisions as adopted by other countries for example, in the case of United States of America, although the traditional age of majority is 18 years, nearly all States permit persons less than 18 years to be tried as adults if they commit serious/heinous crimes (rape, robbery, murder etc.). Recently, during the visit to other countries our Hon’ble PM Shri Narendra Modiji has said that, all countries should have one voice to fight against terrorism and for that we suggest that other countries should also follow and make provisions in their respective juvenile laws similar to as suggested by us herein.
9. In our humble opinion, under the provisions of the present Juvenile Justice Act, the citizens are deprived of their fundamental right of protection of life and personal liberty and this violates Articles 14 and 21 of the Constitution of India. Therefore, the necessary amendments as suggested above be included and/or be made in the above referred Juvenile Justice (Care and Protection of a Children) Bill/Act, 2014 in order to provide national security against probable attacks by adolescent juveniles under the age group of 14-18 years.
10. In the meantime, we suggest that the Central Government should issue ordinance, as may be required in law, to give immediate effect to our above suggestions in the present Juvenile Justice Act, 2000 and/or 2014. In fact, the previous Government should have implemented our above suggestions much earlier in the year 2009 when the terrorist Ajmal Kasab had taken the plea that he was juvenile under the age of 18 years and he should be sent to Observation Home. The delay being caused in the matter gives benefit to Juveniles under the age of 18 years though they may have committed heinous crimes and/or acted as a terrorist and for which the Supreme Court wants law to get tough on juveniles in heinous crimes.
S. P. Jain & V. R. Ghelani