Six people have been nabbed in relation to the gangrape of a minor girl in Hyderabad – a crime that has caused shock and outrage – and of them, five are minors, apart from an 18-year-old. One of the minors – children in conflict with law (CCL) – allegedly involved in the offence is an AIMIM MLA’s son.
Understandably, there is outrage over the incident, with many people questioning the fairness of the five accused boys being dealt with under the Juvenile Justice (JJ) Act, while the sole 18-year-old will be tried as an adult. Many argue that all of them should be treated as serious offenders and tried as adults – something that the Indian law allows for under certain circumstances. According to the amendments in the JJ Act, 2015, minors who committed heinous crimes can be tried as adults if they are over 16 years of age at the time of the crime.
So what constitutes a heinous offence? This is determined on a case-to-case basis, and includes crimes for which the minimum punishment under the Indian Penal Code (IPC) is seven years or more (subclause 33, section 2, JJ Act). Therefore, murder, rape, gangrape would constitute heinous crimes, but not every minor who is found to have committed one of these will be tried as an adult. The decision of whether a minor will be tried as an adult or not is taken by the Juvenile Justice Boards (JJB) in each state.
The amendment to the JJ Act came in the aftermath of the 2012 Delhi gangrape and murder, where one of the offenders was 17 years old.
In the case of heinous crimes such as the Hyderabad gangrape, the minor goes through a preliminary assessment by the JJB “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,” as per section 15 of the JJ Act. Based on this assessment, the JJB decides whether the CCL will go through an inquiry process by the Board itself, or if he/she should be transferred to the criminal justice system to be tried as an adult.
“We usually seek the assistance of a district hospital psychiatrist, who will then send back a report saying that the child had the capacity to commit or not commit the offence. Apart from that, we also call for a social investigation report, which looks into the conditions at the CCL’s home while he was there, things like who are the neighbours and peers; what kind of influences he had. Then, we also talk to the child to understand their maturity, to gauge whether they understand what they are doing, its consequences etc.,” Geeta Sajjanshetty, a member of the JJB in Kalaburagi, Karnataka, tells TNM.
Dr Kalpana Purushothaman, a counselling psychologist and a JJB member in Bengaluru, states that in cases where the CCL is 16 years or more and is alleged to have been involved in a heinous offence, the JJB is required to invoke Section 15(1) of the JJ Act and assess whether the minor had the physical and mental capacity to commit the alleged offence, has an understanding or awareness of the consequences of their actions, and enquire into the circumstances that brought them into conflict with the law.
For this, JJBs can take the assistance of mental health practitioners like psychologists, psychiatrists, counsellors, social workers, etc. to understand the psychosocial background of the CCL. The boards begin any such assessment with the basic principles of natural justice, which includes presumption of innocence. “As JJB members, we presume that the child is innocent and then the inquiry happens about who was involved [in the offence], what happened etc.,” she says.
When the social investigation report is prepared, many questions are asked, including the relationship between the minor and parents, the conditions at home, whether the minor is a victim of abuse, whether the minor uses drugs or alcohol, etc.
After the report comes in, a date for the hearing of the arguments – from the public prosecutor as well as the CCL’s counsel – is set. Based on this and the assessment, the JJB takes a call whether the minor will undergo an inquiry before the JJB and be sent to a ‘special’ (rehabilitation) home for a duration of time, or if he will be sent to trial as an adult.
These aspects and guidelines notwithstanding, the experts TNM spoke to acknowledged that ultimately, deeming a CCL fit to be tried as an adult depends on the JJB members. “That can be arbitrary as it depends on individual sensitivities and also undermines the presumption of innocence,” says legal researcher Swagata Raha, who is the Head of Research at Enfold Proactive Health Trust.
“Especially in cases where there is significant public outrage, the JJ Boards are also likely to be influenced or feel pressured by what is happening around them. That’s why it is important to ensure that the members and chairpersons who are appointed to these Boards are professionals vetted for their sensitivity to deal with children’s issues and trained to withstand such pressures,” adds Dr Kalpana, who has been working with CCLs for the last 14 years.
The reformative approach exists in law because of the well-entrenched standards on juvenile justice – domestically and internationally. “There is a reason why minors are looked at differently – it is because the adolescent brain is still developing. So, when you're looking at a 17-year-old, they may not look very different from a 19-year-old, and even behave like an 18-year-old, or may have done acts that someone older than them might do. But having said that, when you look at behavioural sciences, you look at neuroscience, you look at human rights standards, we see that there is a reason why children and adolescents as a class are recognised as vulnerable, and deserving of protection from the state,” explains Swagata.
“Irrespective of how heinous the offence, children below the age of 18 have to be dealt with within the juvenile justice system because there is hope for reform. The whole idea of this is to hold them accountable, but at the same time the focus is going to be in terms of rehabilitation because it is possible,” she says.
“This is the challenge with any kind of arbitrary age line,” says Swagata. “That way, one can argue why a person who is 18 can cast a ballot but a 17-year-old can’t. So an age line is always going to make us uncomfortable because there will always be people on either side, who would have lost a benefit or who would have been subjected to something far more severe.”
This is why some countries are turning to neuroscience when it comes to deciding the cut-off for who can be considered a juvenile, and therefore have a better chance at rehabilitation – Croatia and Germany, for instance, have allowed for youth up to the ages of 21 and 20 years respectively to be sentenced as juveniles.
Geeta acknowledges that despite these processes, we often do not have the tools to gauge the maturity of a minor for instance, because it would depend on the frameworks of JJB members, the access to mental health practitioners to assess the minor, and other such factors.
However, Vidya Reddy of Tulir – Centre for Prevention and Healing of Child Sexual Abuse is of the opinion that these minors be held accountable and responsible for their actions. “In today’s day and age, we live in a sexualised world. Young people have access to technology and we cannot look at these crimes the way we looked at them even 10 years ago. There has to be accountability and responsibility fixed for this kind of behaviour. If they are tried as juveniles, there are only eight options as punishment for them – this ranges from social service to admonition to time at a special home for children. This is not commensurate with their crime, which involved planning and did not seem like an impulsive spur-of-the-moment act.”