The horrific beating and gang rape of a 23-year-old physiotherapy student in Delhi in 2012 sent shockwaves across India. Six men, including a juvenile, were arrested and charged with sexual assault and murder. Of the five adults, one died in police custody (officially suicide but some suspect murder) and the remaining four were sentenced to death by hanging. The juvenile was sentenced to the maximum sentence possible under Indian law – three years in a reform institution.
The Nirbhaya case, as it came to be called in the media, was not the first gang rape in India, nor has it been the last. Its brutality is not unique either and yet it caught the nation’s attention. There was a public outcry for the death penalty or even something cruel and unusual. This was further fuelled by the juvenile sentencing, which in comparison to the adult equivalent, was a mere slap on the wrist. There was widespread demand to lower the juvenile age limit from the present 18 to 16 from the public, including prominent people like the Delhi police commissioner, Karnataka state public prosecutor HS Chandramouli, and Subramanian Swamy. The ruling Congress Party was also quick to jump on the bandwagon.
The anger the country felt in the aftermath of the Nirbhaya nightmare is understandable. However, amending the Juvenile Justice Act is a broader issue than the Nirbhaya case. Leaving aside discussions on whether lowering the juvenile age limit will achieve the stated goals and even ignoring the broader philosophical issues such as the death penalty, the purpose of the justice system – punishment or rehabilitation – and even the basis of the definition of ‘juvenile’ – physical or mental – there are legal quandaries in lowering of the juvenile age limit.
One obstacle to amending the Juvenile Justice Act is the United Nations Convention on the Rights of the Child, an international treaty India signed and ratified in December 1992. Although Article 1 of the CRC allows each acceding state to define the juvenile age limit, Article 37(a) nevertheless stipulates that “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”
A second hurdle to reducing the juvenile age limit is the International Convention on Civil and Political Rights, which India acceded to in April 1979. Article 6(5) of the ICCPR states, “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”
As per India’s international commitments, it may well lower the juvenile age limit from 18 to 16 but may not pursue the death penalty or a sentence of life imprisonment without possibility of parole. Thus, a new category is created between juvenile and adult. This is not very helpful for Indian bureaucrats who are considering a waiver of the juvenile age bar only in cases of the most grievous crimes such as murder, acid attack, rape, and repeat offenders in cases of robbery, kidnapping, and dacoity. In essence, international law prohibits the very sentences for which Indian legislators are considering lowering the juvenile age limit.
India may still withdraw from the treaties or enter into the record certain exceptions in congruence with new national laws. However, this move is bound to result in international pressure and greater difficulty in concluding extradition treaties with other states. For example, European law forbids extradition in cases where the offence for which extradition is requested carries the the death penalty under the law of the requesting country. Some countries such as the United States enact automatic sanctions if a country’s human rights ratings fall below a certain level. India narrowly escaped sanctions over not doing enough to prevent child trafficking in 2011 thanks to political reasons.
None of this is to argue that the juvenile age limit should not be lowered or that it should be. In the landmark Roper v. Simmons case in the United States, the Supreme Court ruled that capital punishment may not be imposed for crimes committed as minors. The opinion, delivered by Justice Anthony Kennedy, declared that minors had diminished culpability due to immaturity and therefore their execution was cruel and unusual under evolving standards of decency. The opinion also cited significant US legal opinion as well as international consensus in its favour.
The US Supreme Court did not deny the brutality of some of the crimes committed by juveniles but made the interesting point that this very factor – the brutality of the crime – may overpower any mitigating arguments based on youth as a matter of course if the application of the death penalty was allowed.
However, many question the diminished culpability of juveniles. Setting the age of adulthood at 18 is arbitrary and is a cultural evolution more than a scientific one, dictated more by going to college or being drafted for military service. In a media-saturated age, juveniles today are far more aware than their predecessors were. However, awareness is not the same as maturity – in fact, researchers have shown that adolescence can last well into the mid-20s for many people while some attain a maturity much earlier.
The argument to lower the juvenile age limit in select cases is exactly what the Roper v. Simmons opinion warned against – the lower age limit is sought only for some crimes as the public is swayed by an emotional response to their brutality than by reason alone. If India’s legislators genuinely felt that juveniles today were attaining a certain level of maturity earlier, then why is the age of adulthood itself not lowered? How is it possible for someone to be mature enough to commit rape, dacoity, or murder but not to drink, join the military, or vote?
It is also unclear why the arbitrary juvenile age limit of 18 should now be moved to the equally arbitrary age limit of 16. Should rapes that have been committed by boys as young as 15 be forgiven? Or should the limit be lowered even further? Does India now not recognise childhood, mandating that adult crimes receive adult punishment? Juvenile crime is indeed becoming more of a problem in scale as well as intensity but lowering the juvenile age limit is unlikely to be the magic bullet to solve the problem.
It would be interesting indeed to see the challenge to the international consensus by India if it were to lower the age of adulthood uniformly. However, such a move must be informed by reason and debate rather than frustration and an emotional reaction to cases like Nirbhaya. The problem with doing a copy-paste job on the structure and workings of government from a 19th century colonial master is that there is much Indians have not discussed among themselves.