By Sohail Arshad
The gang-rape and murder of a girl by six youth in Delhi has stirred the conscience of the nation. Many leaders, common people and women organisations have demanded harshest punishment to the accused. The police have filed charge sheets against five recommending death for them while leaving out the sixth who was below 18 years of age and therefore was a juvenile in the eyes of the law, though he was the most brutal among all the other ‘adults’ accused in the crime. But he will not be considered an adult though he behaved more adult than his accomplices because the statute says that anyone below the age of 18 years cannot be tried in a criminal court. He will be tried in a juvenile court and may be let off after counselling.
This appears to be a bizarre situation when the 18 year old commits a rape and murder but in the eyes of the law he is a victim and so should be taken care of. In this way, the law turns against the rape victim for whom it does not have any sympathy or concern. According to the present law, a juvenile is a person who had not completed 18 years of age. According to International law anyone below the age of 18 years is a ‘child’. This is a universally accepted definition of a ‘child’ under the United Nations Convention on the Rights of the Child (UNCRC).
However, in India the upper age limit for a child is not universally recognised in all fields. For example Sec 2 (a) of Child Marriage Restraint Act 1929 defines a child who has not achieved the age of 21 years in case of male and 18 years in case of a female. Thus, if a male ‘child’ aged 20 years of age marries, he will be considered a delinquent. However, the marriage may be legally invalid or unacceptable but that does not necessarily mean that the ‘child’ will not be able to consummate the marriage as he is sexually capable of sustaining a marriage.
Under another Act, Child Labour Protection Act, 1986, Section 2 (ii) says that a ‘child’ is one who has not completed the age of 14 years. In this respect, the law does not see any difference in physical capabilities of a girl child and a boy child. Both can be considered adult at 15 years of age and can work in industries.
In case of immoral trafficking, Sec 2 (a) of Immoral Traffic (Prevention) Act, 1956 a ‘child’ means a person under the age of 16. The age limit for a person to be considered a child is different under various other laws. The age under all the Acts mentioned below are listed:
Mines Act 1952 18 years, Merchant Shipping Act 1958, 14 years, Motor Transport workers Act 1961 14 years, Apprentices Act, 1961 14 years, Bidi and Cigar Workers Act 1966, 14 years, Plantation Labour Act, 1951, 14 years, Factories Act, 1948, 14 years. Moreover, under Section 83 of the Indian Penal Code, the law believes that anyone between the age of 7 and 12 cannot commit an offence, that is, whatever they do will not be considered a crime.
This clearly underlines the confusion in various laws that underline the lower age of a person to qualify for being a child. A 15 year old can be considered an adult if he is working in the transport department, or bidi-cigar industries or merchant navy, in factories or plantation because he will considered capable of doing the hard work an adult is capable of. But if the same commits a crime like rape or murder or dacoity, he will escape the noose and will be considered a victim by the judiciary. Times are a changing and various standards have changed over the years. The changing lifestyle of the modern world has changed the mental and biological features of the youth. The exposure of the sexual material and sex education has lowered the maturity age of the youth and they understand the nitty gritty of the sexual behaviour. The openness and liberalism in thought and practice have made the youth of today vulnerable to very moral and sexual crimes. The puberty age has also gone down due to environmental and biological changes. Now boys and girls attain puberty at a lower age in comparison to their counterparts, say, twenty years ago. Therefore, many jurists feel that major crimes may force the courts to try a juvenile as an adult.
In the given circumstances the government sticking to the same old anachronistic legislations is detrimental to the society and to safety of the women in particular. The difference in the age limits for children working in different departments is also devoid of any logic. The Indian society – both Muslim and Hindu-considers boys and girls attaining puberty as adults. Apart from it, the physical attribute of different persons are different. Some of them are physically tall and strong at a lower age and while some other are weak, short and timid even in an older age. The United Nation’s Convention on the Rights of the Child has not ignored this aspect. Therefore, it says that the upper age limit for childhood is 18 years but recognises that majority may be obtained at an earlier age under the laws applicable to the child. So the Article 1 of the Convention accommodates the concept of advancement of majority at an earlier age according to the evolving capacity of a child.
Therefore, given the biological and behavioural changes of the youth, the government may consider the advancement of majority to thwart the recurrence of such juvenile crime that shook the country. Uniformity should be brought about the age limit of a child which should be applied in all the fields. A 15 year old who works in the transport department or a plantation is considered an adult but is considered a child if the same youth commits rape and murder. This speaks of the discrepancy in the law. Therefore, the laws should be reformed to bring uniformity in the upper age limit of a child which should be applied in all the fields and conditions.
The high publicity of the case through the media and the relief given to the 17 plus ‘child’ may encourage youth of his age with criminal mentality to commit such grave crimes like rape, murder or physical assault with impunity as was demonstrated by a 16 year youth in Mumbai on the 6th of January, days after the news of charge-sheet having been filed in the Delhi gang-rape that left out the most brutal person in the crime on the basis of his minority. The Mumbaikar attacked a 25 year old woman named Shweta Singh of the same apartment with a knife several times. He was arrested and sent to a juvenile home. He is said to be a repeat offender but the police said that he is a mentally disturbed child. If the laws relating to juvenile crimes are not reformed and the age of the minority of the child is not advanced according to the social, biological and psychological changes of the society, the increasing trend of juvenile crime will pose a grave threat to the society and to the life and dignity of women in particular.
(The writer is a journalist and writer based in Kolkata. He can be contacted at sohail.arshad07@gmail.com)