At What Age Should A Child Be Tried As An Adult For Heinous Offences?
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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By Sunil Garodia
First publised on 2021-07-02 08:29:06
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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.
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A boy just above 15 years of age committed the heinous crime of raping a girl just above 10 years of age, left her bleeding profusely (she later required blood transfusion and surgical correction) and warned her not to disclose the act to anyone, leading Justice Subodh Abhyankar of the Indore bench of Bombay High Court to observe that his conduct "clearly reveals that he committed the offence with full consciousness" and that the provisions of the amended Juvenile Justice Act (JJ Act) were still "totally inadequate and ill-equipped" to deal with heinous or serious crimes committed by children below 16 years of age. The judge upheld the verdicts of the Juvenile Justice Board and lower courts in denying bail to the accused while dismissing a criminal revision petition filed on his behalf.
Justice Abhyankar also took the legislature to task for keeping the juvenile age at 16. He said that "this court is also at pains to observe that the legislature has still not learnt any lesson from the case of Nirbhaya...as the age of the child is still kept below 16 years for heinous offences under...the act...this court wonders how many more Nirbhayas' sacrifice will be required to shake the conscious (sic) of the lawmakers". Although given the nature of the crime in the instant case, the anger of the judge is justified, but since the juvenile law is mainly for the protection of children, it is debatable how low the threshold can go to try juvenile offenders as adults.
After the Nirbhaya case, where one of the most barbaric offenders was a juvenile aged just below 18, parliament had amended the JJ Act to prescribe that children in the age band of 16-18 years would be tried as adults if they commit any heinous or serious offences. Clear definitions were also accorded to heinous and serious crimes to prevent ambiguity. Any crime of sexual nature was defined as a heinous crime and children above 16 years were allowed to be tried as adults if they committed such offences. But as the instant case shows, what happens when a heinous crime is committed by a child below 16? With children as small as 13 years committing rapes, how low can the legislature take the threshold to try them as adults without defeating the very purpose of the JJ Act?
This is a very tricky question. There actually cannot be a balancing act as it can be seen from the last amendment that lowering the age to 16 has now thrown up 15-year-olds committing barbaric rapes. So what does the legislature do? Ideally, there should be no upper age limit in such cases. It should be left to the nature of the crime and the individual discretion of judges to decide whether the child needs protection under the JJ Act or is fit enough to be tried as an adult. If a boy of any age commits a rape, it is a conscious and premeditated act on his part. It ceases to be a delinquent act and becomes a criminal offence. Hence, ideally again, he should be tried as an adult.
pic courtesy: from a petition by anamika ghosh on change.org
