Retribution is not justice
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The proposed amendment to the Juvenile Justice Act ignores international obligations and principles of criminal law.
After demands for an amendment to the Juvenile Justice Act, 2000 (JJ Act), in light of the "Nirbhaya" case, the first signs of government capitulation are visible. The ministry of women and child development has proposed that the age of juvenility in case of heinous offences be brought down to 16 years. Juveniles who are above 16 would be punishable in accordance with the Indian Penal Code or the relevant penal statute, and not under the scheme of the JJ Act. The proposed change is retributivist and ignores the principles of criminal law and international obligations that gave rise to the JJ Act. Further, there is very little authority, if any, to support the change being demanded.
India signed and ratified the UN Convention on the Rights of the Child (CRC) in 1992. One of the recurrent themes behind the CRC is the fact that juveniles cannot be held to be fully responsible for their actions. In significant part, these are influenced by society, state organs, family support, education and opportunities or lack thereof.
One could argue that these are factors in case of adults as well. However, in case of juveniles, the importance attached to such influences is greater, with the inherent immaturity and lack of understanding associated with youth. It may be argued that the age of 18 is an arbitrary number to determine whether a person has attained majority. It is, however, a legal requirement for majority in this country, not just for the application of the JJ Act, but for the exercise of several other rights, such as the right to freely enter into a contract and to vote, etc.
In order to determine liability under criminal law, the mental state of the accused at the time he committed the crime is a vital consideration. We should not condemn someone to prison unless we find that the act was committed with intention. There is ample data to suggest that such a mental state is not to be found due to age and immaturity. To insist that the juvenile be tried and punished as if he had that mental maturity is to compromise the means to achieve a pre-determined retributive end. The US Supreme Court, in the case of Roper vs Simmons, agreed with an overwhelming amount of psychological data pointing to the fact that adolescents who were around the age of 17 were vulnerable to peer pressure, coercion, were impulsive, more likely to take risks and make temporal decisions.
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