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#Foodforthought : What should be the Age of Criminal Responsibility?

Above what age can one be held as a ‘criminal’?

December 16, 2012, will always remain as a dot of black shame in the history of India. The gang-rape committed on a 23-year-old in a moving bus in the densely populated area in Delhi left the whole country in shock. What was even more shocking about this incident was the heinousness of the rape that was committed. There were six accused- Akshay Thakur, Pawan Gupta, Vinay Sharma, Mukesh Singh, Ram Singh, and Mohammad Afroz. Ram Singh was found hanging in his cell in Tihar in March 2013. The group of accused also included a juvenile, Mohammad Afroz.  Notably, the juvenile was the one who carried out the most brutal form of attack. What should be the Age of Criminal Responsibility?

The fact that he was below 18 years of age and constituted a ‘juvenile’, he could not be booked under the punishment of rape as an adult and hence, was sent to a correctional institution. This led to a huge debate in the country and also showed a flaw in the law of the land. Following this Juvenile Justice (Care and Protection of Children) Act 2015 was passed in which juveniles in the age group of 16–18, involved in heinous offenses, can be tried as adults. This incident not only led to a landmark change in the Juvenile Justice Act, but major changes were also made in section 375 (Rape) of the Indian Penal Code. The other four have been awarded the death penalty.

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What this incident brought to light was the age of criminal responsibility. According to Beijing rule 4 (1)- “The beginning of the age of criminal responsibility shall not be fixed at too low an age level bearing in mind the facts of mental and intellectual maturity.”

Below 18 years a person cannot be considered criminal is a flawed ideology

In consonance with this principle, the Indian government had observed that a juvenile below 18 years of age is free from criminal responsibility. This law is what then put the whole country in chaos. How can someone who acted in such a harsh manner be spared because he is not 18 years old? It questioned not only what constituted criminal responsibility, but also how deciding that a child below 18 years does not have the mental capacity to know what he or she is doing to be a flawed ideology.

The juvenile at the time of committing the act was a few months short of being 18 and here it becomes important to understand how intellectual and mental maturity develops in a person.

Looking at the crime committed by the juvenile it cannot be said that he was unaware of the consequences of his act. This is also something that was highlighted by M Venkaiah Naidu, Rajya Sabha Chairman after the Hyderabad veterinarian rape and murder case. Fixing an age for when mental maturity happens is not the best way to deliver justice. This is because the formation of intellectual and mental maturity differs from one person to another. The social environment that one lives in has a huge role to play in deciding the mental status of the person.

The capacity of the person to engage in criminal conduct and the process by which the person is held responsible for that conduct are distinctions that need to be addressed if criminal responsibility is to be applicable. Different countries have different age for criminal responsibility that is based on the history, culture, and statistics of crime in their country. Owing to this difference, it is important for India to also assess the situation in the country and then decide its laws.

The 2015 Amendment of the Juvenile Justice Act saw a lot of opposition from child right activists as they said that it would be a regressive step and the law ought not to be changed in light of public outcry over a single case, however, the women activists and public pressure have demanded that the juveniles in such cases be treated at par with adults.

This amendment not only provides to look at exceptions from case to case basis, but it also leaves the judiciary with a much larger work of considering the nature of atrocity, mental culpability, intellectual capacity and circumstances affecting the juvenile in punishing him as an adult.

Final Thoughts

As age is just a number, it alone should not be allowed to override the need of balancing the interests of the juvenile and the greater interests of protecting the society from such crimes. Therefore, due consideration ought to be given in cases of heinous offenses particularly the ones against women.

Considering the pace at which advancement is approaching and how children are no longer unaware of what they are doing and have the mental capability of making decisions, it is possible that in the coming future the government will have to amend this Act again.

That being said, it is also the responsibility of the state to ensure the overall development of the child and offer them facilities for growth and a healthy life. Because most juveniles belong to lower economic strata, it is important to teach them human values, provide education, guidance and proper resources. It is also important that juveniles in correctional homes are provided for in the best possible way.

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Harshita Bajaj

Harshita has a background in Psychology and Criminology and is currently pursuing her PhD in Criminology. She can be found reading crime thrillers (or any other book for that matter) or binge-watching shows on Netflix when she is not in hibernation.
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