Introduction
In India, the main legislation dealing with cases involving children is the Juvenile Justice (Care and Protection of Children) Act (“JJA”), 2015. This Act acknowledges that children require different considerations and approaches compared to adult offenders. However, cases involving serious offences, such as the recent ‘Pune Porsche Car Accident Case’, raise questions about whether the current system adequately balances rehabilitation with accountability. In this piece, we will analyse that maturity should be a key factor in determining juvenile punishment.
Pune Porsche Car Accident Case: On May 19, a seventeen-year-old boy allegedly drove a speeding Porsche car that rear-ended a motorcycle in Pune, India killing two software engineers. Despite being underage for drinking and without holding a driving license, the child drove an unregistered car, with CCTV footage confirming alcohol consumption and the crash.
The minor faced charges under sections 304A (causing death by negligence), 279 (rash driving), 337 and 338 (causing hurt by endangering life), and 427 (mischief) of the Indian Penal Code, 1860 (“IPC”), along with sections 184 (dangerous driving), 119 (disobeying traffic signs), and 177 (general provision for punishment of offences) of the Motor Vehicles Act. Additionally, sections 304 (culpable homicide not amounting to murder) of the IPC and 185 (driving under the influence) of the Motor Vehicles Act have been invoked, highlighting the seriousness of the offence and the legal implications of reckless driving. In this case, the psychological evaluation of the minor was conducted and the matter was dealt with as per the provision of the JJA.
Juvenile Justice System in India- Do Juveniles Got Scot Free?
The JJA, 2000 was replaced by the JJA, 2015 following the Nirbhaya gang rape case in 2012. In this incident, due to the existing law, the juvenile committed the heinous crime of rape and murder. After spending three years in a special home, the child was released. The 2015 Act enacted a new provision under Section 15 (1), allowing any child aged between sixteen and eighteen years, who commits a heinous offence to be tried as an adult subject to the decision of the Juvenile Justice Board.
In case of a heinous offence, the Board must conduct a preliminary assessment, wherein the child had the mental and physical ability to do the offence, the ability to understand its consequence and look at the situation in which it happened. If the board orders the case to be transferred to the Children’s Court, the child may face punishment as per the Bhartiya Nyaya Sanhita, 2023 (“BNS”), earlier under the IPC. Certain punishments like life imprisonment and capital punishment are exceptions to it.
Fourth Category of offences explained
There are two types of offences which did not fit into any of the categories as laid down in the Act. These are offences having a minimum imprisonment of less than seven years, or there is no minimum imprisonment imposed but the maximum imprisonment is more than seven years in the BNS. This mistake was pointed out in the case of Shilpa Mittal vs. State of NCT of Delhi & Anr. These offences were termed as the fourth category of offences by the court. The Parliament included this fourth category of offences into the definition of “Serious Offences” by an amendment in 2021 to address the lacunae of some offences being out of the ambit of the JJA, 2015.
Is it justifiable to include the fourth category of offences into serious offences? Is it justifiable to classify the fourth category of offences as serious offences? Only four offences fall under the category of heinous offences in the BNS, each carrying a minimum punishment of seven years of imprisonment. These are Rape (Section 64), Robbery/Dacoity with an attempt to cause death/grievous hurt (Section 311), Dowry Death (Section 80), and attempt to commit robbery or dacoity when armed with a deadly weapon (Section 312). Under Section 103 of the BSN, if someone is found guilty of murder, they face a minimum punishment of sentence of life imprisonment, which is more than seven years of imprisonment. Therefore, murder is also a heinous offence.
Crimes like Culpable Homicide, acts of terrorism, drug trafficking etc., which indeed are grave offences do not come under the definition of heinous offences. As a result, a child who is mentally and psychologically aware of the consequences of their actions cannot be tried as an adult for committing such offences. Even in cases of repeat offences, they can only be sent to a special home for a maximum of three years. This punishment is insufficient to deter young minds.
For petty or serious offences, a child may be placed in a reformative institution for up to three years, focusing on rehabilitation over punishment to prioritise their welfare and best interests. Decisions have to be made with the child’s development in mind, assuming their innocence until the age of eighteen. These principles, outlined under Section 3 of the Juvenile Justice Act, 2015, guide the administration of justice for minors.
It is important to understand how juvenile justice works in other countries. The next section will seek to explain how it works in the USA, the UK and Canada.
Juvenile Justice System in the USA
There is no federal law in the United States that allows a child to be treated as an adult for criminal justice purposes solely because they committed a serious crime between the ages of sixteen and eighteen. However, in many states, there are legal provisions that permit adult trials for minors under specific conditions. These laws are known as criminal transfer laws or juvenile waiver laws.
American juvenile justice jurisprudence has been shaped by significant Supreme Court cases: Roper v. Simmons (2005) deemed the death penalty for youths under eighteen as unconstitutional. Graham v. Florida (2010) stipulated that sentence of life without parole for nonhomicide offences could not be imposed on minors under the age of eighteen. Miller v. Alabama (2012) prohibited mandatory life without parole terms for minors. Montgomery v. Louisiana (2016) retroactively applied these rulings and extended them to those convicted of murder and below eighteen years of age.
Juvenile transfer is the process of transferring a case from the juvenile court’s original jurisdiction—which deals with delinquency—to the criminal court so that the juvenile can stand trial as an adult. This involves statutory exclusions (certain crimes automatically go to adult court), judicial waiver (the judge decides based on specific criteria), and prosecutorial discretion (the prosecutor decides to file charges in adult court).
Cases of serious crimes such as murder committed by fifteen-eighteen -year-olds automatically go to trial in adult court. Additionally, youths previously convicted of these crimes (except assault) are also tried in adult court.
Kent v. United States (1966) outlined factors for courts to consider in juvenile waivers, including the nature of the offence, the juvenile’s maturity, and the potential for rehabilitation. Eddings v. Oklahoma (1982) emphasized age and mental/emotional development in judicial decisions, reversing a death sentence for a sixteen-year-old. These legal decisions are informed by research on adolescent development, recognizing differences between youths and adults and the importance of rehabilitation over punitive measures in juvenile justice.
India can take some valuable lessons from the Juvenile Justice System of the USA. Cases of crimes such as culpable homicide, acts of terrorism, drug trafficking etc. committed by fifteen-eighteen -year-olds could be sent for trial as an adult. These offences have a maximum punishment of death penalty or imprisonment for life. Additionally, repeat offenders could also be tried as adults. In such a trial, the court must decide based on the nature of the offence, the juvenile’s maturity, and the potential for rehabilitation.
Juvenile Justice System in the United Kingdom
The age of criminal responsibility is ten years in Northern Ireland, England and Wales, while in Scotland it is twelve years. If a person between the ages of ten and seventeen violates the law, they may be arrested and sent to court. Once individuals reach the age of eighteen, they are legally considered adults. If sentenced to prison, they will be housed in a facility for those aged eighteen to twenty-five, rather than in a full adult prison.
In the UK, cases involving children and young people are typically handled by the Youth Court, with a few exceptions. A young offender will face trial in Crown Court if he is accused of homicide, a firearms offence carrying a compulsory sentence of at least three years (and is above the age of sixteen at the time of the offence), or if the court has been informed under sections 51B or 51C of the Crime and Disorder Act 1998 in cases of serious or complex fraud or involving adult co-defendants.
A case must be sent to the Crown Court if it qualifies under the dangerous offender provisions. These provisions, which carry a minimum four-year jail sentence, come into play when a child is found guilty of specific violent or sexual offences or if the court determines there is a substantial risk of serious harm to the public.
Moreover, UK law states that only when children are charged with or found guilty of a crime that logically calls for a prison term longer than two years can children be tried in Crown Court and given sentences. For children aged ten or eleven, and between the ages of twelve to fourteen, who are not accused or convicted of committing the crime again, the court should typically avoid imposing custodial sentences. Dangerous offenders can even receive life sentences.
India could take reference from the UK Juvenile Justice System in a way that for offences which the juvenile justice board determines as posing substantial risk of serious harm to the public could be sent for adult trial.
Juvenile Justice System in Canada
Canada’s Youth Criminal Justice Act, passed in 2002, sets up a separate court system for young offenders, aged twelve to eighteen (anyone younger than twelve is considered a child). These “youth justice courts” (established by Section 13) deal specifically with crimes committed by young people. Section 13 establishes “youth justice courts” with sole competence to handle crimes that are committed by young people. The Act includes specific provisions for young people who commit a “serious offence” (an indictable offence carrying a sentence greater than five years in jail) or a “serious violent offence” (such as first and second-degree murder, manslaughter, aggravated sexual assault, and attempted murder). Section 38(2)(a) provides that custodial penalties are reserved for violent and serious offences. However, even in these cases, sentences for youth offenders cannot be longer than the maximum an adult would receive for the same crime.
A potential sentence is the “Intensive Rehabilitative Custody and Supervision Order” (“IRCS Order”) designed for serious violent criminals, such as those found guilty of aggravated sexual assault. After offender reaches eighteen years of age, the Court has the option to move them to an adult correctional facility, if it serves their best interest or the public interest. However, according to Sections 38 and 39 for serious and serious violent crimes, the Youth Justice Court may punish with the same number of years of imprisonment as would be given to an adult.
India can enhance its juvenile justice system by adopting key aspects of Canada’s model. India can prioritise rehabilitation for young offenders, and implementing a system like Canada’s IRCS Order would provide court-approved treatment and rehabilitation for young offenders with mental health conditions.
Analysing the Current Position of the Juvenile Justice System in India
We propose that for children (between sixteen and eighteen), punishment decisions should not only consider age, but also a combined assessment of the individual’s maturity level, the severity of the crime committed and the circumstances surrounding the offence. Assessment of the maturity may include psychological evaluations, past traumas, psychiatric or medical history and expert testimony, which would help in assessing the maturity level of the child. This approach should apply to all serious offences not just heinous offences. The next section will analyse the current position of law.
There is no provision for repeated offenders in Indian Juvenile law. So, if a juvenile commits a crime, he will be sent to a special home for a maximum of three years. If the same child commits the same or a different delinquent act again, provided he understands the consequences of his act, would he be treated in the same manner?
There are many countries where children of age less than eighteen are allowed to make decisions and it is presumed that they have the mental capacity to understand what they are doing. E.g.- the voting age in around fourteen countries is either sixteen or seventeen. Take the General Data Protection Regulation Act (“GDPR”) of the European Union which establishes the age of consent at sixteen years of age, however, individual member states are free to lower the age of consent to a minimum of thirteen years old. So, the law here presumes that children are ready to understand their privacy rights at the tender age of thirteen and they know who is the right person to choose as President/Prime Minister at the age of sixteen or seventeen.
In the case of children who are of age between sixteen and eighteen, they are not tried as adults. But in heinous cases, they may be tried as adults. So, if that child commits murder, he may be tried as an adult. But if the same child commits the offence of attempt to murder, an act of terrorism, drug trafficking etc., he will be tried as a child in conflict with law. All the above-mentioned offences fall under the definition of serious offence under the JJ Act which causes harm to individuals and threatens society and therefore they are extremely serious offences. For these offences, a child can get punishment equivalent to an adult in different jurisdictions as explained above but not in India. The point is that in both these cases if the child had a criminal mind or knowledge, the trial may be tried as an adult.
Conclusion
It can be concluded on the basis of the above analysis that there have been rampant instances of juvenile delinquency. Protective measures in the legal regime should not be used as a sword but as a shield, therefore delinquents who are mature enough to understand the nature of offences should not be allowed to misuse this shield. Additionally, the law should not become obsolete; it must evolve with societal progress and the accelerating maturity observed in younger children. In light of it, offences for which the juvenile justice board determines as posing a substantial risk of serious harm to the public could be sent for adult trial. Repeat offenders could also be tried as adults as done in the USA. The above analysis shows a need to add some serious offences into the definition of heinous offences or include them as a new category of offences with an increased and serious punishment.
We raise these lacunae in the law to argue that for children aged sixteen to eighteen who commit extremely serious crimes (not just heinous offences), that cause harm to individuals and threaten society, each case should be evaluated individually. This evaluation should consider the child’s mental capacity, his/her psychological evolution, the circumstances of the case, expert testimony and the nature of their actions.
Hence, it is essential to balance the rights of children in conflict with the law, implement measures for their rehabilitation, and increase their prospects of reintegration into society as good citizens. At the same time addressing the harm caused to society by their actions is crucial. Child delinquency in India can be reduced if every child has access to school, affordable healthcare, sanitation, and shelter. Additionally, non-profit organisations and the government can focus on delinquency prevention programs, research has demonstrated that such programs have better results than their cost.
This article is a part of the DNLU-SLJ (Online) series, for submissions click here.
Students, National Law Institute University, Bhopal
