At one point of time, the 26/11 Mumbai terror attack accused, Ajmal Kasab, a Pakistani terrorist, had claimed that he was a juvenile and therefore he should be given benefit of the law relating to juvenile justice in India, notwithstanding the fact that he was involved in a ghastly terror attack in which 164 persons were killed. However, his claim was found to be false. The question which arises here is what would have been his fate had he actually been a juvenile.
The first and foremost thing to be considered here is to define a ‘juvenile’ and a ‘juvenile in conflict with law’. A “juvenile” means a person who has not completed eighteenth year of age. Earlier, according to the JJA, 1986, the age of boys and girls were different, but however, the JJA 2000 which repealed the JJA, 1986, brought the age of male juveniles at par with the female juveniles. Another ground for increasing the age of male juveniles by the JJA 2000 was to bring the Indian juvenile legislation into conformity with the ‘United Nation’s Convention on the Rights of the Child (CRC)’. JJA, 2000 defines “juvenile in conflict with law” as a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age on the date of commission of such offence.
Indian laws have created four categories of persons according to their age. The criminal liability of an accused depends upon the category in which that person falls. The first of these is a person below seven years of age. Section 82 of the Indian Penal Code states that nothing is an offence which is done by a child under seven years of age. The simple reason behind giving such exemption is the absence of ‘mens rea’ i.e. guilty mind or criminal intent. People who at the time of commission of the crime could not and did not know the right from the wrong should not be penalised. The second category of persons is those who are between the age of seven and twelve years. Section 83 deals with them and lays down that if an offence is committed by such a person, it will first have to be ascertained whether the child has attained sufficient maturity of understanding due to which he can judge the nature of his alleged conduct and the consequences thereof. The persons between the age of twelve and eighteen years fall into the third category and if an offence is committed by such a person, he shall be liable for such offence. However, he shall not be prosecuted and punished like adult offenders, but would be dealt with only in accordance with the provisions of the law relating to juvenile justice. Lastly, a person above the age of eighteen years is criminally liable for an offence in accordance with the normal criminal laws of the country.
Now, the law relating to juvenile justice in India is presently contained in the Juvenile Justice (Care and Protection of Children) Act, 2000. If a child commits an offence and does not come under any of the complete exemptions mentioned in the aforesaid four age-wise categories, then the provisions of this Act will be attracted. It is apt to note that Section 16 of the Juvenile Justice Act clearly lays down that the sentence of death penalty cannot be awarded to any juvenile, and likewise the sentence of imprisonment for any term cannot be awarded to a juvenile. Also, as per the provisions of Section 15 of the said Act, irrespective of the gravity of the offence committed by a juvenile, the maximum that can happen to the juvenile is that he can be sent to a special home for a maximum period of three years. These are rehabilitation centres for juveniles set up under Section 9 of the Act. In fact, for most offences committed by a juvenile, he may simply be let off by advice or admonition, or may be asked to perform community service, or asked to participate in group counselling, or released on probation of good conduct, or on fine in some cases. Moreover, proceedings against a juvenile are not to be conducted in the regular trial court. These are conducted by a Juvenile Justice Board that consists of three members, including a Metropolitan Magistrate (or Judicial Magistrate) and two Social Workers.
It is pertinent to note here that even a foreign citizen is entitled to the benefit of the law relating to juvenile justice in India if he happens to be of the age of less than eighteen years. Thus, if Ajmal Kasab, the Pakistani terrorist involved in the Mumbai terror attacks of 26/11 had been found to be of the age of below eighteen years, it would not have been possible to award death penalty to him and to execute him.
This may create a feeling that the provisions of the aforesaid Juvenile Justice (Care and protection of Children) Act are grossly unjust to the victims of the heinous offences committed by juveniles and to the society at large. It is pertinent to note here that even if the said law be amended, it will not have a retrospective effect.
However, before claiming an amendment, we must think of those unfortunate juveniles who may have committed certain offences in compelling circumstances. Therefore, either extreme is not desirable. A delicate balance must be struck as per which most juveniles, as a general rule, are required to be treated in a more humane manner, but in some rarest of the rare cases of heinous and grievous offences deliberately committed by a juvenile, he may be subjected to prosecution and punishment under the normal criminal laws of the country.
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