INCREASING THE AGE OF CULPABILITY WITH RESPECT TO THE OFFENCE OF RAPE

Introduction

The word ‘culpable’ means deserving to be blamed or being held responsible for something wrong. The age of culpability or criminal responsibility differs for children or juveniles than adults.

Section 82[1] of the Indian Penal Code (IPC)[2] dictates that “nothing is an offence which is done by a child under the age of seven years”. Furthermore, section 83[3] of the IPC reads, “nothing is an offence which is done by a child above seven years of age and under twelve who has not attained sufficient maturity of understanding to judge nature and the consequences of his conduct on that occasion”. It is believed that children who come in conflict with the legal system are the ones who require protection and care, and they need not be punished as adults. This is because of the underlying assumption that children are innocent, dependent and vulnerable in society. Children who have gone astray are believed to act in such a way because of multiple environmental conditions such as peer pressure, parental neglect and poverty. They can be under the spell of bad influences and not even recognize it. These children are not to be punished for a crime they committed but should be given proper care and protection so that they might become productive citizens of society someday.

The Juvenile Justice Bill was first introduced in 1986 to protect, rehabilitate, care and develop juveniles who conflict with the law. Juvenile delinquency means the commission of crimes by a young person who is usually below the age at which ordinary criminal prosecution can occur. The Juvenile Justice Act 1986[4] applied to boys under 16 and girls under 18 years. As per the act, all the neglected and delinquent juveniles were placed under observation until their inquiry is conducted. After the inquiry, all the neglected juveniles were sent to juvenile homes and all the delinquent juveniles were sent to special homes for rehabilitation.

The Juvenile Justice (Care and Protection of Children) Act 2000[5] dealt with the following problems:

i. Juvenile in conflict with the legal system

ii. Protection and care for the children who require it

iii. Child’s rehabilitation

The 17-year-old juvenile involved in the rape and murder of the 23-year-old pharmaceutical student, Jyoti Singh, also known as ‘Nirbhaya’,[6] was tried under the Juvenile Justice (Care and Protection of Children) Act 2015[7]. This act allows persons between the ages of 16 and 18 to be treated as adults for serious offences. Furthermore, any juvenile between the ages of 16-18 years who committed a less serious offence will be treated as an adult only if he is arrested after the age of 21 years.

The Juvenile Justice (Care and Protection of Children) Bill, 2014 was enacted as the juvenile involved in the Nirbhaya rape case was just six months away from attaining the age of 18 years. The juvenile in the discussion also inflicted serious injuries on the victim, leading to her death. Section 27 of The Code Of Criminal Procedure 1973[8] reads, “Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or brought before the court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any court specially empowered under the Children Act,1960(60 of 1960), or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders”. This section ensures that the trial of delinquent juveniles is taking place in a courteous manner.

One view to look at this is that children and juveniles should not be treated as adults for the crimes they committed due to the hope that with proper care and protection, they may become productive citizens of the country. There is an opposing view which makes people think that offenders should be punished without regard for their age or maturity at the time of commission. The primary aim of this notion is to remove misfits from society. It is due to the popular belief that A person of 16 years and older is mature enough to assess the nature and consequences of the crime they committed; hence, they deserve to be treated like adults. India can act as a suitable example to demonstrate the shift from the welfare model to the crime control model of juvenile justice. This is evident by replacing the Juvenile Justice (Care and Protection of Children) Act 2000 with the Juvenile Justice ( Care and Protection of Children) Act 2015[9] . The former was more protection and rehabilitation oriented, while the latter is more punishment oriented.

The significance of studying this topic is to understand the importance of rehabilitation for a juvenile. Rehabilitation of juvenile offenders not only increases public safety but also reduces the burden on the taxpayer. It also adds to the economic productivity of the country. When a 16 or 17-year-old is put into an adult prison system, it curbs their chances of obtaining proper education, employment and housing facilities by the time they get released. Studies show that juveniles in adult prisons are more likely to commit suicide than those in special facilities. Any person who is below 18 years can be treated as an adult only when they commit crimes such as rape, murder and armed robbery due to the severity of those crimes. Juveniles who commit less serious crimes must be given a chance at redemption. Rehabilitation provides a safe and secure environment for the juveniles to grow and keeps them away from negative influences.


Structure of Juvenile laws

The United Nations General Assembly adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice on the 29th of November, 1985. These rules are also commonly referred to as the Beijing rules. Clause 4.1 of the rules reads as “those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity”. It is understandable from the mentioned clause that The United Nations did not fix any specific age limit for Juvenile laws and instead left it at the discretion of its member countries, keeping few relevant doctrines in mind. After the adoption of the Beijing rules, India enacted the first Juvenile Justice Act, 1986[10] , which was later repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000[11] and eventually amended to the Juvenile Justice (Care and Protection of Children ) Act, 2015[12].


Classification of offences

After the infamous Nirbhaya[13] gang rape in Delhi, it seemed evident that a change in the Juvenile laws was necessary, considering that one of the accused in the rape and murder case was a minor six months away from being tried as an adult. The Rajya Sabha passed the Juvenile Justice Bill in 2014 after many people protested against the release of the Juvenile convict in the Nirbhaya[14] case. The Juvenile Justice ( Care and Protection of Children ) Act, 2015[15] divided crimes into three categories, namely: petty offences. Serious offences and Heinous offences. Petty offences are those for which the maximum punishment provided under any law, including The Indian Penal Code, is imprisonment of up to three years. Serious offences are those for which the punishment under any law is imprisonment between three to seven years. Heinous offences are those for which the minimum punishment under any law is imprisonment for seven years or more.

Rape constitutes a heinous crime. If a child below the age of sixteen years has committed a heinous offence, the procedure prescribed for a serious offence is followed. If a child above sixteen commits an offence, he can be ordered to be tried as an adult. A board will conduct a preliminary assessment regarding the physical and mental capacity of the child to commit such an offence, the circumstances which must have led the child to commit the said offence and the child’s ability to understand and comprehend the consequences of committing such offence. The board can seek the assistance of experienced psychologists or other experts for this purpose. The preliminary assessment does not take the merit of a trial or allegations against the child into the discussion.


Should rapists under the age of 18 be tried as minors?

Let us take the example of the Juvenile convict in Delhi’s gang rape (Nirbhaya[16]) case. Soon after the brutal rape and murder of Jyoti Singh, calls grew louder for juvenile rape offenders to be tried as adults in a criminal court. However, The Supreme Court did not allow the minor convicted in the discussed case to be tried twice. The minor in the discussion was given the maximum possible sentence, three years in a reform home. However, the parents wanted the juvenile offender to be tried in a criminal court. The Ministry of Women and Child Development informed the top court that it was legally not permitted to put the juvenile offender on trial again.

Although Juvenile crime in India is on the rise, it forms a very small percentage of the overall crime rate in India. Many Indians favour lowering the age of culpability from 18 to 16. However, the age of consent, the age to acquire a driving license, and the age to vote or engage a lawyer is 18 in India and such factors must also be considered. The age of majority in many other countries such as Australia, the United Kingdom, New Zealand and Ireland is 18. It is also equally important that one should not confuse between legal majority and criminal majority. The age of criminal responsibility establishes a minimum age, and it is assumed that a person below the specified age does not have the mental or physical capacity to infringe the criminal law on purpose. Although it was always recommended that the age of criminal majority be lower than the age of legal majority, the United Nations treaties recommend that the age of criminal responsibility be kept high so that children who are incapable of making moral decisions are not unfairly tried in either juvenile or adult court.


Conclusion

The author is of the opinion that juvenile criminals are owed less severe punishments due to their psychological, behavioural and neural immaturity. This conclusion is reached after extensive research into the juvenile justice laws in India and considering basic facts such as the age of the legal majority in India. Scientific evidence shows that a person becomes an adult and acquires the mental and physical capability of acting like a full-fledged adult at the age of 25. According to neuroscientists, 18-year-olds are only halfway through brain development which starts at puberty. According to them, the prefrontal cortex of the brain, which is responsible for the function of decision making, is not fully formed until the age of 25. So, one can only assume that there is space for error and lack of judgement at the age of 18, for which a juvenile should not be tried unfairly in juvenile or adult courts.


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[1]The Indian Penal Code, 1860, §82, Act No. 45 of 1860. [2] The Indian Penal Code, 1860, Act No.45 of 1860. [3]The Indian Penal Code, 1860, §83, Act No. 45 of 1860. [4] Juvenile Justice Act,1986 , No. 53, Acts of Parliament, 1986(India). [5] Juvenile Justice (Care and Protection of Children) Act 2000, No. 56, Acts of Parliament, 2000(India). [6] Mukesh Vs State (NCT of Delhi), 2017 SCC OnLine SC 533. [7] Juvenile Justice (Care and Protection of Children) Act,2015, No.02, Acts of Parliament , 2016(India).

[8] The Code of Criminal Procedure, 1973, §27, Act no.2 of 1974. [9]Supra note 7. [10]Supra Note 4. [11]Supra Note 5. [12]Supra Note7. [13]Supra Note 6. [14]Supra Note 6. [15]Supra Note 7. [16]Supra Note 6.



This article is written by Srilakshmi Sravani Kesapragada of Symbiosis Law School, Hyderabad.

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