Author: Sevanshi Kamdar pursuing B.A. L.L.B from West Bengal National University of Juridical Science, Kolkata.
On 16th December, 2012, India witnessed a horrifying incident. One of her daughters, Jyoti Singh, was brutally gang raped in Delhi by six beasts, out of which four were very recently hanged at the Tihar Jail. It is quite shocking and saddening to note that one of the six accused was a seventeen and a half year old boy. What is perhaps equally troubling is that he was a cook a while back in one of the southern states of the country.Yes, you read it right, one of the accused is a free bird today because of the juvenile law prevailing at that time.
Under the Indian legal framework, any boy or girl below the age of majority that is, below the age of eighteen is considered a juvenile and is treated as a juvenile offender under the Juvenile Justice Act (JJA).One of the most striking features of this law is that juveniles cannot be meted out a capital punishment or a life imprisonment sentence without there being a possibility of release, regardless of the seriousness of the crime committed by the juvenile. What is lamentable is that had that beastly juvenile been only six months older, he would also be served with capital punishment.
In 2015, an amendment was made to the JJA in light of the Delhi gang rape case. The amendment allowed for the Juvenile Justice board to exercise its discretion, by conducting a preliminary assessment by taking into account certain factors, to determine whether a juvenile offender should be tried as an adult or a juvenile. This is applicable to juvenile offenders from sixteen years of age to eighteen years of age who have allegedly committed a heinous offence that is, an offence which is punishable with a minimum of seven years of imprisonment.
I support the amendment and believe that juveniles should be tried and treated as adults in certain circumstances, namely, in cases of heinous offences like rape and murder. Instead of tailoring a one size fits all answer for this question, I believe we need to recognise the difference between childhood innocence and adult criminal behaviouron a case to case basis rather than relying on a magic number to uniformly determine the fate of all the juvenile offenders.
The Category of ‘Juvenile’
At the outset, it is conceded that a child is fragile, both physically and mentally which is one of the foremost reasons for not trying and treating a juvenile as an adult, for creating a separate category for them. In Roper v. Simmons, it was observed that the principal factors which differentiated juveniles from adults were want of maturity, greater susceptibility to surrounding influences and the high plausibility of reform. Moreover, by relying on neurological research, the Court concluded that juveniles are more reckless and act quite impulsively as compared to adults. Therefore, it is obvious that due to relatively low self-control and lack of immunity to external influences, it is fair for juveniles to not have their wrongdoing treated at par with adults. It is fair for a less stringent legal framework to go after them.
Further, if juveniles are given the same treatment as their adult counterparts, it means that they will have to serve their sentence in the company of other adult offenders. An inevitable consequence of placing juveniles in an adult facility would be the greater probability of juveniles seeing the adult offenders as their mentors or idols. They may end up picking up techniques to commit graver crimes or perhaps even learn how to get away with murder. After all, a man is known by the company he keeps. Or worse, they may be physically assaulted or sexually abused by their fellows because of their inability to defend themselves.
Hence, it is acknowledged that for all juveniles to be tried and treated as adults is quite problematic for themselves as well as the society. However, consider what happened in 2002 in Alabama. A fourteen-year-old girl conspired with her sixteen-year-old boyfriend and stabbed her grandfather. They did not call it a day and went on to stab, shoot and set her grandmother on fire; shot her aunt thrice and fourteen times stabbed her ten-year-old sister. This couplewas as criminal as it gets and such criminals cannot be allowed to be our cooks or our next door neighbours or our colleagues by virtue of belonging to the ‘juvenile’ category. They cannot go scot free after just a maximum of three years at a juvenile reformation home, as per the JJA before its 2015 amendment.I believe that such exceptional juveniles should be tried as adults for the society deserves to be protected against them.
Should they or should they not: Response
It must be noted that officials believe juveniles are able to commit crimes because the law becomes feeble when it comes to them. For instance, a Delhi Police Crime Branch official observed that gangs prevailing in South-East Delhi offer membership to young boys because both, the former and the latter are cognisant of the fact that it is quite easy for juveniles to get away with murders. 
Therefore, in view of the above discussion, I believe that the answer to the question whether juveniles should be tried and treated as adults cannot be a yes or a no. The answer will vary from case to case, from juvenile to juvenile. The rationale behind the JJA is that usually, children are unable to deal with a situation with the same maturity and sense of reasoning as an adult. It can be inferred that JJA does not focus on the nature of the crime committed but focuses on the offender. That is exactly what I propose. I propose that the fate of a juvenile, belonging to the sixteen to eighteen age group, must depend on their cognitive development and their potential to understand their criminal actions and the consequences of such actions.
Now why I do I harp on this sixteen to eighteen age group? Firstly, criminal responsibility should not and cannot be attached to a juvenile unless and until they have that minimum amount of intelligence required to determine the difference between what is right and what is wrong and to fully understand the consequences of their actions. Astudy by MacArthur Foundation Research Network on Adolescent Development & Juvenile Justice shall be helpful to understand the cognitive development of children. As per this study, the way the thought process of a sixteen-year-old or a seventeen-year-old functions is not considerably distinguishable from that of an adult. Moreover, the study also discovered that once a juvenile becomes seventeen years old, they are able to exercise fine judgment, even in situations of stress. In Ram Prasad Sahu v. State of Bihar, the Court noted that it is a well-established psychological fact that the ability to understand of a sixteen-year-old is as good as that of an adult. Therefore, the age group of sixteen to eighteen is appropriate to attach criminal responsibility.
It must be understood that it is not advocated that all juveniles aged sixteen to eighteen years must be tried and treated as adults. Though this age group is the appropriate one to attach criminal responsibility, not all children belonging to this age group indeed can be assumed to have criminal intent. I believe in addition to the juvenile’s age, their psychological temperament, intelligence quotient, past criminal record, educational qualification and their personal life in terms of who they associate with, any event that may have impacted them must be taken into account to determine the criminal competency of the juvenile. It was observed in Inre Devon T.that even though the age of the accused did not make him criminally competent, the fact that his age was close to the required age and when other factors were taken into consideration, the Court held that the juvenile possessed the required criminal competency.
Therefore, I believe that though all juveniles should not be tried and treated as adults, a window must be kept open for juveniles aged sixteen to eighteen years. If, the crime committed is heinous, violent, abhorrent and well planned, the age of the offender should not be considered in isolation. If the actions of the juvenile are so criminal, are so unlike the thought process of an ordinary juvenile and more like that of an adult, it would be safe to assume that the juvenile possessed the competency to commit the crime, they possessed a greater degree of understanding than an average juvenile. Such juveniles should be tried and treated as adults for to protect the society and to bring justice to the victims.
2012 Delhi gang rape case: What happened on December 16, hindustantimes, March 20, 2020 at https://www.hindustantimes.com/india-news/delhi-2012-gang-rape-case-what-happened-on-december-16/story-GboszJckGgslhWHpRcci4K.html Nirbhaya convicts hanged at Tihar: A look at executions in independent India, March 20, 2020 at https://economictimes.indiatimes.com/news/politics-and-nation/nirbhaya-convicts-hanged-at-tihar-a-look-at-executions-in-independent-india/2012-nirbhaya-convicts/slideshow/74725334.cms Rajya Sabha passes Juvenile Justice Bill: As it happened, ZEENEWS, December 22, 2015, at https://zeenews.india.com/live-updates/2012-delhi-gang-rape-juvenile-justice-bill-debate-in-rajya-sabha-1837111 Nirbhayagangrape case: The juvenile convict is a cook now, has a new name, May 5, 2017 at https://www.indiatoday.in/india/story/then-juvenile-is-now-a-cook-ngo-official-975490-2017-05-05 §2, The Juvenile Justice (Care and Protection of Children) Act, 2015 at https://indiacode.nic.in/show-data?actid=AC_CEN_13_14_000010_201602_1517807328168§ionId=12722§ionno=2&orderno=2 §21, The Juvenile Justice (Care and Protection of Children) Act, 2015 at http://legislative.gov.in/sites/default/files/A2016-2_0.pdf Explained: When a juvenile is tried as an adult, when not, The IndianEXPRESS, July 22, 2019 at https://indianexpress.com/article/explained/when-a-juvenile-is-tried-as-an-adult-when-not-5840823/ Roper v. Simmons, 543 US 551 (2005).