Justice System and The Indian Constitution envisages a healthy society where children can be emancipated from abuse and exploitation. The large population of street children do not have any childhood and are born to eked out a living. Many of them do not have schooling despite the constitutional mandate to give them free education up to age of 14.

However, some children not only defy the law but quite often break it and thus get caught in the cobwebs of law. When a young person is involved in criminal case , he becomes a juvenile delinquent. The accused enters the age of criminal responsibility where he is being considered responsible for a crime. As per the international norms, and also under the juvenile Justice System in India, a minor or a child cannot be tried in the same manner as an adult. A child is treated as Doli Incapax, with no mens rea- the offender is not capable of understanding consequences of his/ her actions.[1]

Section 27 of Criminal Procedure code ,1973 discusses about the jurisdiction in case of juvenile. It lays down that any offence not punishable with death or imprisonment for life, committed by any person who at the date appears before the court is under the age of 16 years, maybe tried by the court of Chief Judicial Magistrate or any other court specially empowered by Children Act 1960, or any other law for time being in force providing for treatment, training and rehabilitation juvenile delinquents.

It is important to note that though albeit Crpc was amended in 2005, section 27 was not amended in compliance with the existing juvenile system. Thus, the provision has become redundant.

The present legislative system in India was introduced by a 1986 Act and amended in 2000. The Juvenile Justice Act (Care and Protection of Children) Act 2000, replaced the regular judicial process with a reformatory regime, favoring supervised probation or stay in an observation home over imprisonment.

The Juvenile Justice Act of 2000 was amended in 2015 which is a progressive legislation allowing children in conflict with law in the age group of 16-18 involved in heinous offence to be tried as an adult under certain circumstances . The Act does not, however, make it mandatory for all children in this age group to be tried as adults. The amendment was proposed against the backdrop of Nirbhaya Delhi Gang Rape Case [2] in which one of the offenders was 6 months short to attain the age of 18 years.

Additionally the government cited National Crime Records Bureau Data (NCRB) stating that there has been significant increase in crimes committed by juveniles especially in the age group of 16-18 years. NCRB data shows that the percentage of juvenile crimes, when seen in proportion to total crimes, has increased from 1% in 2003 to 1.2% in 2013. During the same period, a percentage of all juveniles accused of crimes increased from 54% to 66%.[3]

At present, everyone knows that there is an increasing rate of juvenile crimes and this increasing rate is creating a debatable issue of age determination. Age determination is considered indispensable in determining the maturity level of accused. According to sub- section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 a child means a person who has not completed eighteen years of age.

The Act classifies the term child into two categories:

• child in conflict with law [4] and
• child in need of care and protection[5]

The increasing crime at such an alarming rate is raising a question that whether a juvenile can be tried as an adult or not?
One of the key observations was that essentially, the trial in the regular court is offence-oriented; in the juvenile court, it is offender-oriented. In other words, in the children’s court, societal safety and the child’s future are balanced. For an adult offender, prison is the default opinion; for a juvenile it is the last resort.[6]

Thus, the present Juvenile Law in India, considers Age Determination as a paramount importance to find out whether the offender falls under the purview of Juvenile Justice Act.
According to the Act, the maximum tenure of punishment which can be given to the juvenile offenders is three years and this punishment is valid for heinous crime also. In case of an adult offender, the maximum punishment which can be given is 7 years or life imprisonment or death penalty. The reformation type of punishment under the Act includes: – Sending juvenile to Rehabilitation Centers , Juvenile Schools or making them involve in various program headed by government or NGO'S.

It is argued that the present legislation is more focused on the criminology issues pertaining to care and protection of juveniles. In the present scenario there is no need to give a minor punishment for a heinous and barbaric act just because of age factor. The minors committing heinous offences should not be considered as Juveniles, since we are eventually harboring a snake who would never leave its nature of inflicting poison.

The present law is too protective of juvenile delinquents and silent on the increasing rate of juvenile crimes. It appears that the new law has been promulgated casually and lacks mechanism to tackle child offence in the age group of 12-18 as a whole. In India, we need to guard against the complacent belief that a stint in the remand home is enough for their rehabilitation. The theory of reformation is helping the juvenile to reform but it is not helping the victim at all.

How and in what manner a juvenile who commits such crime should be dealt with is something that the legislation should vividly explicate the act. Although government has laid various legislation to stop the incidents of juvenile crimes but the present law is not creating a deterrent effect on the juveniles and thus the results are not fruitful and legislative intent is not accomplishing . We need to see the juvenile offender from the perspective of a criminal. He is a danger to society and humanity for the heinous and barbaric offence he commits and be dealt with by stringent laws instead of a welfare legislation.

End-Notes:

1. Section 82 of IPC states that a child below the age of seven years is doli incapex
2. 1998 SCC, Del 879 : (1999) 77 DLT 181
3. https://www.prsindia.org/theprsblog/juvenile-justice-bill-2015-all-you-need-know
4. Section 13 of The Juvenile Justice (Care and Protection of Children) Act,2015
5. Section 14 of The Juvenile Justice (Care and Protection of Children) Act,2015
6. the Indian Express Article When a juvenile is tried as an adult and when not