Hyderabad: Now that all the six accused in the Jubilee Hills pub gang rape case have been arrested, given that five of them are minors under the age of eighteen, including one of them 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. Minors, those below the age of 18, are granted exemption as children from any criminal liability under sections 82 and 83 of 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 has 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 has marked its judgements saying the Juvenile Justice board must conduct a preliminary assessment to understand if the minors in such heinous cases have an understanding of the offence and are aware of the consequences”.
In other words, only if the Juvenile Board thinks after an assessment that these minors accused in the gang rape case have full knowledge and understanding of their offence, and if their actions were premeditated and planned, including awareness of consequences, can the board give exemption, the judge explained.
If invoked, this case could be one the first of its 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 time, a lifetime imprisonment or even death penalty.”
But if the Board does not feel their “mental condition” is one of maturity 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.
However, 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, 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,” Mr Rao said.
Speaking specifically about one of the minors in the case, who is a month short of turning 18, advocate P. Vasudev said that as per old norms of the JJ Act, he would be continued to be tried as a juvenile even after he turns an adult. “The age of the juvenile would be considered as it was on the date of offence. Even if a person is one day short of turning 18, they would be considered as a juvenile,” the advocate explained.
Another retired high court judge said the defendants may depend on the principle of presumption of innocence, which says any child shall be presumed to be an innocent of any mala fide or criminal intent up to the age of 18 years, to protect themselves.
“India is a signatory to the United Nations Convention for the Rights of the Child (Beijing Rules), which state that age of criminal responsibility should be set bearing in mind ‘mental and intellectual maturity’ of offenders. This was the foundation wisdom when the age of majority in the Juvenile Act was challenged in the Supreme Court. The age of criminal responsibility establishes a minimum age, below which, children shall be presumed not to have capacity to infringe on criminal law,” he said. This is called Doli incapax in Latin, meaning ‘incapable of evil’.
Post the amendment in the Supreme Court, in India, that age was lowered from 18 to 16, wherein, children below 16 cannot be tried as adults under any circumstance, but those between 16 and 18, can be in specific cases, can be tried in court as an adult.
“As per the new Juvenile Justice Act, which replace the JJ Act of 2000, under which maximum punishment juvenile offenders can get is three years in a child remand home, minors above 16 can be tried as adults for heinous crimes, if established, they had ‘committed the crime with an adult mind’, not a child-like mind,” a lawyer from criminal court of Nampally said.
As per several legal experts and jurists, the police can apply this amended ruling to and go to the Juvenile Justice Board, and given it was a “heinous crime”, ask it to conduct a preliminary assessment with regard to the mental and physical capacity to commit such offence by these five minor accused.
Senior Advocate of the High Court, L. Ravichander said that unless the JJ board steps in and invokes the amendment, the accused in the case should be tried as minors.
“If death is the answer, why are the rape cases not decreasing after capital punishement in Nirbhaya case? Or an ‘encounter’ in Disha case? I don’t know how the Police Commissioner comes to a conclusion of grave punishments without the JJ board saying anything about their age and the 2015 amendment. I am not aware of the JJ board stepping in counselment of the amendment and until that happens, then they are to be considered as minors. The JJ board should look into their social life and the circle of minors as their mere libidinous status should not be enough to give them ‘a death penalty’.” he said.
Senior Advocate Gopal Sharma said that police must provide proof that these accused involved in the gang rape are minors. “The JJ Act will only attract a 3 years punishment and not ‘20 years jail and death penalty’ as mentioned by Police Commissioner CV Anand. The police are trying to save the accused by categorising them as juveniles and we need to prove that they are actually under age. The press conference was held under pressure by the government and the commissioner did not mention anything about the JJ Act or the 2015 amendment. As the offence is heinous, they should be tried under the PoCSO Act,” he said.
If the Board, which may take assistance of experienced psychologists or psycho-social workers or other experts, assesses them fit, the police can then take them to court for trial as an adult. However, the Board’s decision can be appealed.
Since gang rape is a “heinous offences” for which minimum punishment under the Indian Penal Code or any other law is imprisonment for seven years or more, they could then be tried under CrPC and not under the Juvenile Justice Act....