STATUTORY RAPE : ACCORDINGLY SECTIONS SEC 376 (2) (1) (N)

450 IPC ,SEC 5(J)(ii) AND I R/W SEC 6 POCSO

BAIL UNDER 439 SEC CRPC

The society has undergone tremendous change in terms of its ideologies[1],

perspectives and its moral and ethical standard. What was considered immoral a
decade ago is no more seen in the same light. The aspiration for good life, better
opportunities and comfort has indeed opened new doors for development. Yet
the same aspirations have led us into a fast moving way of life with less time for
ourselves and personal introspection. These changes in the society and
individual have impacted children as well. They are now exposed to this fast
growing race, competitiveness and stress for better performance in every field,
which has brought a lot of complexities. Is the individual’s neglect and the
society’s apathy towards the children the root cause of their deviance?
Presently, around 42% of India’s population is below 18 years.[2] The recent
times have witnessed some of the most brutal and heinous crimes being
committed by the children. Some of the infamous crimes are as follow:
1. The Nirbhaya case.—On 16-12-2012, the capital witnessed the most
heinous crime whereby a physiotherapy student was brutally gang raped
in a moving bus in which she was travelling with a male friend. One of
the co-accused was under-age. This was one of the prominent cases that
brought out the flaw with the then juvenile system.
2. Shakti Mills Gang Rape.—Another heinous case which saw the
involvement of minors who was 17 years old at the time of committing
the sex offence. In July/August 2013, out of seven persons arrested in
two separate gang rape cases committed upon a photojournalist and a
telephone operator, in Shakti Mills Compound (Mumbai), two were
minors.
3. Hatigaon Rape case.—In September 2013, a group of five boys
(juvenile) in the age category of 12 years to 16 years; raped a 12-year-
old minor girl, by dragging her to an abandoned place and raping her
through the night. These boys were neighbours with the victim minor
girl.
4. Mayur Vihar Murder case.—In November 2013, a gang of five minors
allegedly murdered a jeweller’s wife in Delhi’s Mayur Vihar and fled
with gold and cash.
 5. Minor “Rape and Murder” case.—In April 2015, Chandigarh Police
arrested a juvenile for the kidnapping and murder of a minor girl.
6. Mercedes Hit and Run case.—In July 2016, it was the first case after
the enactment of the new JJ Act, 2015 whereby the accused was tried as
adults. The accused — 17 year and 11 months ran over a 32-year-old
marketing executive while driving his father’s Mercedes.
7. Jhabua Murder case.—On 1-3-2017, the first case after the amended JJ
Act came into effect, two minors — aged 17 and 16 years were awarded
life imprisonment. The two accused stabbed the deceased (teenager)
over a matter of 800 rupees.
NCRB Report
The annual figures released by National Crime Records Bureau (NCRB) has
revealed the following ground realities:
1. In the year 2012, police in India charged 27,936 juveniles for alleged
involvement in serious crimes including banditry, murder, and rape and
rioting. According to NCRB data, among those who faced JJB (Juvenile
Justice Boards) in 2012, two-thirds (66.6%) were between the age group
of 16 and 18 years. The NCRB figures showed that 30.9% were aged
between 12 and 16 years old and the remainder, (2.5 %) were aged
between 7 and 12 years.[3]
2. According to the NCRB data from 2002 to 2012, there has been an
increase of 143% in the number of rapes by juveniles. It also revealed
that the figures of murder have gone up by 87% while at the same time
there has been an alarming increase of 500% in the number of
kidnappings of women and girls by minors.
3. However, it is equally pertinent to note that (between 2007-2012) the
number of heinous crimes such as rape and murder account for only 8%
of the total crime committed by minors. 72% of the crimes committed
by minors are petty crimes like theft, burglary and causing hurt. Though
there is not a rise in the heinous crimes committed by juveniles as such,
there has been an increase in the gravity of the heinous crimes
committed by them.
And hence the debate is — whether the legislators should go by the gravity of
these heinous crimes or by the percentage of the minor population (which is
very less) that may commit such offence?
Was the Juvenile Justice (Care and Protection of Children) Act, 2000 far
too liberal?
The Juvenile Justice (Care and Protection of Children) Act, 2000 (in short “JJ
Act, 2000”) has been criticised on a number of occasions. While hearing a case
in 2014, with respect to JJ Act, 2000, it was opined, by the Bench of Justice
Dipak Misra and U.U. Lalit that the need for the law is to “satisfy the desire of
society”, and the punishment to befit the gravity of the crime. The Bench also
referred the JJ Act, 2000 as “far too liberal” and asked the Government to revisit
the law. In Gaurav Kumar v. State of Haryana[4], the Supreme Court had been
of the opinion that the Juvenile Justice Act of 2000 needs a reappraisal as it has
failed to deter the juveniles of the country from committing petty[5] as well as
heinous crimes.
Prominent reasons for deviance by minors
According to child right activist, Yamini Abde, the urge to do something
different, daring, extraordinary filled with thrill is one of the driving forces
behind the minors getting involved in heinous crimes like rape and murder. Peer
pressure, desire for easy money, access to internet videos on crimes and
pornographic material. Increase in aggression and sexual activity in youngsters
and the knowledge of the fact that they will not be punished under the criminal
system for them being juveniles. This absence of fear with regards to
punishment has led to an increase in the crime rate among juveniles.
Does the Juvenile Justice (Care and Protection of Children) Act, 2015
violate the fundamental rights of the children?
The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short “JJ
Act, 2015”) has been criticised for incorporating Section 15[6] and Section
18(3)[7]. It lays down that if the minor has completed or is above sixteen years
and is involved in a heinous crime then on the report of preliminary assessment
by the Juvenile Board, the case can be trialed in the Children’s Court and the
minors will be treated as adults and would be subjected to the criminal
procedure. This differential treatment of the minors between the age group of
16-18 years sparked the criticism. It was contested that this provision led to the
violation of Article 14 i.e. right to equality.
In order to ensure the protection of Article 14, that is, right to equality, among
children in conflict with the law who belong to different age group, the Act
provides for intelligible differentia. So that children who have committed petty
offences and those children who have committed heinous offences are not
treated alike and the special needs of each class for reformation and
rehabilitation is taken into account.
In order, however, to pass the test of permissible classification two conditions
must be fulfilled, namely:
(i) that the classification must be found on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of
the group; and
(ii) that differentia must have a rational relation to the object sought to be
achieved by the statute in question.
What is necessary is that there must be a nexus between the basis of
classification and the object of the Act under consideration.[8]
Basis of classification
Children under the age group of 18 years may have different mental capabilities
since the development of brain takes place at different stages in different
individuals, the severity of the crime committed may also differ thus indicating
different levels of maturity. As according to American Psychology Association
the human brain is not fully mature and the brain is still in the process of
developing, therefore, the juveniles cannot be held fully responsible for their
behaviour[9]. Hence children involved in petty crimes such as house breaking,
pickpocketing should not be kept with those involved in heinous crimes like
rape, murder, etc. as that would be prejudicial to the victim in the former case
who suffer more. In Roper v. Simmons[10], the Supreme Court opined that all
juveniles should not be grouped into a single class instead; juveniles should be
given individual consideration and evaluated on the basis of their particular
maturity level, intelligence, life experience and feelings of moral responsibility,
background history. Thus giving due consideration to the idea of differential
treatment of juveniles.
Object sought to be achieved
Data has also revealed that a lot of sexual exploitation takes place at such
observation homes by some elder inmates on the junior juveniles.[11] And one
possible way to put a check on it can be the segregation on the basis of maturity
depending upon the mental capability, the heinousness of the crime committed
and the background history of the juvenile.
The JJ Act, 2015 protects the fundamental right to life of the victim. The right to
life also includes right to justice. The previous Act by providing blanket
immunity to the juvenile offenders and subjecting them to the same punishment
irrespective of the severity of the crime committed by them denied the victim
the right to justice.
A lot of atrocities committed upon women, in the recent past, such as sexual
harassment, rape, acid attack, brutal murders have the involvement of juveniles
in it. To curb this menace the JJ Act, 2015 states under Section 18(3) that if after
a preliminary assessment, with regard to his mental and physical capacity to
commit such offence, ability to understand the consequences of the offence and
the circumstances in which he allegedly committed the offence and[12], if the
juvenile is found to have committed a heinous crime and is above the age of 16
years then the Juvenile Board may transfer the case to a Children’s Court where
they may send him to a place of safety and after the attainment of 21 years and
thereafter he shall be transferred to a jail.[13] Thus protecting the fundamental
rights to live with dignity guaranteed under the Constitution of India.
In Bodhisattwa Gautam v. Subhra Chakraborty[14], offence of rape was held to
be a violation of the right to life guaranteed under Article 21 of the Constitution
of India. Fundamental rights are superior to any other right guaranteed by any
statue. Thus making the blanket immunity to the juveniles as being ultra vires
the Constitution. In Ram Prasad Sahu v. State of Bihar[15], the Supreme Court
held that a child offender can be convicted of committing rape[16] and an
attempt to commit rape. Where a child is not eligible to be punished but is
capable of committing rape or murder it is against the principle of justice and
principle of proportionality of punishment if he is given blanket immunity. It is
a well-established medical psychological fact that the level of understanding of
a 16-year-old was on a par with that of adults.[17]
The JJ Act, 2015 under Section 47(4) states that: “Every child alleged to be in
conflict with law who is not placed under the charge of parent or guardian and is
sent to an observation home shall be segregated according to the child’s age and
gender, after giving due consideration to physical and mental status of the child
and degree of the offence committed.’’ Thus the JJ Act, 2015 indeed protects
the fundamental rights.
Are International treaties enforceable in Indian court of law?
The JJ Act, 2015 led to a huge uproar from human right activists challenging the
Act on the basis of the violation of international treaties to which India is a
signatory. India has signed and ratified United Nations Child Right Convention,
Beijing Rules and Havana Rules which are for the protection of the rights of the
children.
The constituent-makers provided the legislators with Article 51(c) which states
that “The State shall endeavour to foster respect for international law and treaty
obligations in the dealings of organised people with one another.’’ This article
of Part IV of the Constitution related to DPSP[18] is a non-enforceable part of
the Constitution and since the Constituent Assembly Debates are silent on this
point it must be inferred that the Framers intended that the will of the legislators
with respect to the international treaty obligation would be supreme and only
when these treaties have been incorporated into the domestic law through an Act
of Parliament the same can be enforced in the court of law.
Treaty obligation only turns to be enforceable in the Indian court of law when
they have been adopted into the domestic law by a certain Act of Parliament and
the same are not in conflict with the national laws as held by the Supreme Court
in Vishaka v. State of Rajasthan[19] and Kesavananda Bharati v. State of
Kerala[20]. If an enabling Act is not enacted by Parliament the rights conferred
by a treaty cannot be enforced in an Indian court. Thus making the provisions of
the international treaties non-applicable. Article 246 clearly states that
Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule, further Entry 14 states that
entering into treaties and agreements with foreign countries and implementing
of treaties, agreement, and conventions with foreign countries is a centre matter.
Is JJ Act, 2015 opposed to India’s International commitments?
The international treaties such as UNCRC, Beijing Rules and Havana Rules
signed and ratified by India, states under Rule 17.2 of Beijing Rule and Article
37(3) of Convention on the Rights of the Child[21] that children under 18 years
cannot be awarded death penalty and life imprisonment, the new JJ Act, 2015
provides the same under clause (21) of Section 2 of the Act. Thus the
international treaties and conventions and the national law don’t prohibit lesser
severe punishment than the death penalty and life imprisonment.
Further General Comment No. 10 on CRC under Point 71 states that the
reaction to an offence should always be in proportion not only to the
circumstances and the gravity of the offence but also to the age, lesser
culpability, circumstances and needs of the child, as well as to the various and
particularly long-term needs of the society.
Taking into consideration the socio-cultural economic situation and the
background of the juvenile, the punishment that best serves his interest and also
serves the interest of the society should be awarded. The punishment should aim
at the rehabilitation of the juvenile into the society. The new JJ Act, 2015
provides for reformative services including educational services, skill
development, alternative therapy such as counselling, behaviour modification
therapy and psychiatric support shall be provided to the child during the period
of his stay in the place of safety.[22]
It is worth mentioning that Article 51-A of the Indian Constitution makes a
distinction between international law and treaty obligations. If it is understood
that the international law is being referred to as customary international law
which further stands for law that is accepted as a standard law practice adopted
by the nations across the globe than the JJ Act, 2015 is in coherence with the
international practice with regards to punishment for heinous crime committed
by juvenile across the globe. If the international customary law is taken into
consideration then the position in USA[23], UK[24], and Canada[25] concludes
that the minor can be prosecuted under the criminal law for grave and heinous
crimes committed by them.
Though mens rea i.e. a guilty mind is still difficult to be proved. As according to
various researchers the human brain keeps developing until the age of 18
years.[26] But the core of understanding the graveness lies in the fact that
research also shows that by the age of 5 years human brain cultivates 85% of
their personality, skill and intellectual capability[27] is developed, the brain
recognises anti-social behaviour and has developed cognitive faculty. Thus
making the JJ Act, 2015 completely justified. Hence neither the international
law nor international conventions prohibit India from treating minors as adults
under certain situations.
Conclusion
Punishment is compelled to justify itself by its actual effect, on society, in
maintaining order without legalising brutality, on the criminal, in deterring him
or in aiding his reform.[28] The moral justification for punishment lies in its
effects — in its contribution to the prevention of crimes and the social
readjustment of the criminal. It is based on a forward looking theory. It
considers the future good we do to the society in connection with the juvenile.
Thus the validity of the said Act need not be questioned based upon the
presumption that it violated the fundamental rights and is opposed to India’s
international commitment.
The law defines the offences which it punishes in such a way as to make the
state of mind or will of the offender aware of the fact that such a course of
action would lead to such an infringement of law and a punishment will follow.
Same offence should attract same punishment and hence a child above the age
of 16 years does have sufficient maturity to understand the nature of the act
committed to forming mens rea and should not be taken to be too innocent.
* IIIrd year, NUSRL, Ranchi (95aasthamishra@gmail.com)
[1] From late 1990’s, after the liberalisation and privatisation of the Indian
economy the ideological shift from communism to capitalism took place. This
brought with it the idea of individual growth, wealth accumulation and a
competitive market. The concept of nuclear families and individual liberty.
[2] <http://censusindia.gov.in/Census_And_You/age_structure_and_marital_sta
tus.aspx> last seen 12-2-2017.
[3] Juvenile Justice in India by Saurabh Chaturvedi and Krishna Pokharel,
<http://blogs.wsj.com/indiarealtime/2013/08/31/juvenile-justice-in-india/> last
visited on 4-2-2017.
[4] (2015) 16 SCC 310.
[5] S. 2 cl (45) JJ Act, 2015, (45) “petty offences” includes the offences for
which the maximum punishment under the Penal Code or any other law for the
time being in force is imprisonment up to three years.
[6] S. 15(1) JJ Act, 2015, (1) In case of a heinous offence alleged to have been
committed by a child, who has completed or is above the age of sixteen years,
the Board shall conduct a preliminary assessment with regard to his mental and
physical capacity to commit such offence, ability to understand the
consequences of the offence and the circumustances in which he allegedly
committed the offence, and may pass an order in accordance with the provisions
of sub-s. (3) of S. 18.
[7] S. 18(3) of JJ Act, 2015, (3) Where the Board after preliminary assessment
under S. 15 pass an order that there is a need for trial of the said child as an
adult, then the Board may order transfer of the trial of the case to the Children’s
Court having jurisdiction to try such offences.
[8] D.S. Nakara v. Union of India, (1983) 1 SCC 305, para 11.
[9] Are Adolescents Less Mature Than Adults? Minors, Access to Abortion,
Juvenile Death Penalty and the Alleged APA. “Flip-Flop”, American
Psychology Association, <http://www.apa.org/pubs/journals/releases/amp-64-7-
583.pdf>.
[10] 2005 SCC OnLine US SC 12 : 161 L Ed 2d 1 : 543 US 551 (2005).
[11] Juvenile Homes are hellholes, say Aarti Dhar, The Hindu,
<http://www.thehindu.com/news/national/juvenile-homes-are-hellholes-says-
report-on-child-rape/article4637540.ece> last visited 4-2-2017 See also
<file:///C:/Users/pc/Desktop/ IndiasHellHoles2013.pdf>.
[12] S. 15(1) JJ Act, 2015.
[13] S. 19(3) JJ Act, 2015.
[14] (1996) 1 SCC 490; Rly. Board v. Chandrima Das, (2000) 2 SCC 465.
[15] (1980) 1 SCC 74 : AIR 1980 SC 83.
[16] S. 376(d) IPC defines punishment for rape which shall be rigorous
imprisonment of either description of a term which shall not be less than seven
years but which may extend to imprisonment for life.
[17] Salil Bali v. Union of India, (2013) 7 SCC 705.
[18] Directive Principles of State Policy.
[19] (1997) 6 SCC 241, paras 7 and 10.
[20] (1973) 4 SCC 225.
[21] Hereinreferred as “CRC”.
[22] S. 19(3) JJ Act, 2015.
[23] Age at which a juvenile can be tried as an adult: The age is 13 years as per
the federal law; however, this may vary across different States,
<http://uscode.house.gov/view.xhtml?path=/prelim@title18/part4/chapter403&e
dition=prelim> last visited on 3-3-2017.
[24] Persons under age 18 are tried by a “Youth Court” which is a special type
of Magistrate’s Court for those aged 10-18 years. However, for serious crimes
like murder or rape, the case starts in Youth Court but is transferred to a Crown
Court which is the same as a Sessions Court. The Crown Court can sentence the
child for offences of murder committed when the offender was a youth as well
as for “grave crimes” including sexual assault and sentence the child to
“indeterminate detention for public protection”,
<http://www.legislation.gov.uk/ukpga/Geo5/23-24/12>.
[25] Age at which a juvenile can be tried as an adult: The age is 14 years,
<http://laws-lois.justice.gc.ca/PDF/Y-1.5.pdf>.
[26] <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2892678>, last visited
on 5-2-2017.
[27] See: David Edie and Deborah Schmid, Brain Development and Early
Learning: Research on Brain Development, Wisconsin Council on Children and
Families, Winter 2007, Vol. 1,
<https://larrycuban.files.wordpress.com/2013/04/brain_dev_and_early_learning.
pdf>, last visited on 7-3-2017.
[28] H.L.A. Hart, Morals of Evolution (3rd Edn., 1915), p. 130