Trial as juveniles easy way out for JH rapists

A post-Nirbhaya amendment gives provision for exemption

Now that all the six accused in the Jubilee Hills pub gangrape case have been arrested, and given that five of them are minors, including the one who is just one month short of turning 18, people across India are wondering how they would be tried and what punishment they would get, if the police goes on to prove them guilty in court.

According to legal experts, they would all get away with a very light punishment if they are tried as juveniles. However, a post-Nirbhaya amendment gives the police a provision to seek exemption and try them as “adults”.

Under the Indian Juvenile Justice (Care and Protection) Act, 2015, maximum punishment which a court can award to a juvenile for any crime is three years. Those below the age of 18 are granted exemption as children from any criminal liability under Sections 82 and 83 of Indian Penal Code (IPC).

Even under the United Nations convention on rights of children, popular as Beijing Rules, Article 37(3), minors cannot be sentenced to death penalty, or life imprisonment. In fact, any decree of deprivation of liberty must be a last resort and for the shortest periods of time.

An amendment to the India’s Juvenile Justice Act was made after a huge outrage by common people, when one of the accused in the Nirbhaya case, was punished for only three years, being a minor.

However, now in India, anyone above the age of 16 can be treated as an adult if he or she commissioned a heinous crime. However, there is a condition imposed on having a preliminary assessment of mental status.

Speaking exclusively to Deccan Chronicle about the 2015 amendment, on condition of anonymity, a retired High Court judge, said, “In 2005, Supreme Court marked its judgements saying the Juvenile Justice Board must conduct a preliminary assessment to understand if the

DEFENDANTS might depend on the principle of presumption of innocence, which says any child shall be presumed to be innocent of any mala fide or criminal intent up to the age of 18 years, to protect themselves. The age of criminal responsibility establishes a minimum age, below which, children shall be presumed not to have capacity to infringe on criminal law. — A RETIRED HIGH COURT JUDGE

minors in such heinous cases have an understanding of the offence and were aware of the consequences”.

In other words, only if the juvenile board thinks after an assessment that these minors accused in the gangrape case had full knowledge and understanding of their offence, and if their actions were premeditated and planned, including awareness of consequences, could the board give exemption, the judge explained.

If invoked, this case could be one the first-ofits-kind in the country. Only then, can provisions of rigorous punishment be applied and awarded, as mentioned by Hyderabad city police commissioner C. V. Anand, at a press conference on Wednesday, when he said, “They might expect 20 years of jail term, a lifetime imprisonment or even death penalty.”

But if the board does not feel that their “mental condition” is mature about action, including premeditation and planning, and are aware of the consequences, they can walk away with a maximum punishment of three years.

BJP MLA and lawyer M. Raghunandan Rao, whose press conference leaking the details about the accused, in both video and photo formats triggered a subsequent chain of actions leading to the arrest of the accused, sought that provisions of the amendment to the Act be invoked. He added, “It does not appear as if the Hyderabad police have already sought action for application of exemption for these minors to be tried as adults in this case so far.” He, however, said that only once a charge sheet is filed, which would contour and detail the charges framed, will it become abundantly clear.

“If the police have not invoked these amendments to treat these culprits as adults, the police should do so. If Telangana police fail to do so, then I will approach the courts for invoking the amended provisions of the Act,” Rao said.

Some experts, however, said that the amended Act had not been notified and hence had not come into legal force. So the unamended previous law applied. After amendment, it was gazetted, but it is yet to be notified under sub-section 2 of Section 1 of the Amendment Act.