How Reliable / Authentic Is The Prescribed Procedure For Determining A Juvenile ?
A gargantuan distinction exists between a juvenile and an ordinary offender. Such distinction is most apparent in the sentence meted. While, an ordinary offender would meet the full force / the wrath of law, a juvenile offender would undergo reformative and rehabilitative treatment with a limited sentence completed under / before Juvenile or Special Care Homes. With juveniles now accused / or charged with heinous crimes, e.g.- murder, rape, dacoity etc., and likewise with the increasing number of juvenile offenders / or juveniles accused of heinous offences, the determination / or the process of determining a juvenile, is of utmost significance. Because, of the gargantuan distinction, it is apparent and evident that any alleged offender would seek to secure the relaxation in sentence by proclaiming him a juvenile, if circumstances permitted.
Consequently, it is essential and imperative to examine the determination process prescribed under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Rules, 2007 that prescribe / or provide for such determination. A quick glance, reveal the applicability of Section 7 of the Act and Rule 12 of the Rules framed thereunder. In elaborating the process, Rule 12 prescribes a four pronged approach / determination in the following order – i) a matriculation or equivalent certificate, ii) a Date of Birth Certificate from the first School attended, iii) a Birth Certificate from a Corporation / Municipal Authority / or the Panchayat and iv) in absence of either of the aforesaid, by way of a medical opinion obtained from a duly constituted Medical Board.
Under the aforesaid method, the subsequent prescription is available only and upon the failure to provide the original / or the preceding prescription. Simply put, the primary emphasis is on a Matriculation Certificate, in whose absence the emphasis would shift to a Birth Certificate from the School first attended and in whose absence the emphasis would further shift in favour of a Birth Certificate obtained from a Corporation / Municipality / Panchayat. It is only and upon the failure to produce either, medical examination would arise / could be demanded. The question I pose, is how reliable and safe is the aforesaid legislative mandate especially recognising, the heinous crimes of brutal murder or rape by juveniles / or those seeking to masquerade as juveniles? Can such tests / requirements be manipulated by those on the other side? If yes, to what extent? And lastly, the scope and their vulnerability to abuse, in a country like India.
Commenting on the applicability of the aforesaid provisions, the Hon’ble Supreme Court in Ashwani Kumar Saxena versus State of Madhya Pradesh1, held – “Once the Court, following the above mentioned procedure, passes an order, that order shall be the conclusive proof of the age as regard such child or juvenile in conflict with law.” Abhorring and rejecting other form of enquiries employed by the Court’s below, the Supreme Court in Ashwani Kumar Saxena (supra), further held – “We fail to see what types of enquiries are being conducted by the Trial Courts and the Appellate Court, when the question regarding the claim of juvenility is raised”. In decreeing, punctual insistence on Rule 12, and reprimanding any deviation the Hon’ble Supreme Court further held – “The legislature and the rule - making Authority in their wisdom have in categorical terms explained, how to proceed with the age determination enquiry”.
Since, physical appearance is both deceptive and inconclusive rendering it absolutely difficult / if not impossible for reliance to reach any conclusion with certainty, documentary evidence has attained pinnacle status. Resultantly, no conclusive reliance can be placed on physical appearance. The Hon’ble Supreme Court admittedly recognised the follies in physical appearance, in holding that they are “at times deceptive, and depend so much on the race or the region to which the person concerned belongs”2. To appreciate, the scale of deception one may observe the sharp distinction in physical appearance of the various football teams participating at the on-going under 17 FIFA World Cup at India. With primary proof, confined to documentary evidence, can we answer the questions raised ? Or is the law insufficiently poised to assist and aid in an authentic determination of juvenile status ?
Poverty and illiteracy successfully combine to fuel crime in a Society. In Studies conducted by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India, it is confirmed for the infinite time that “poor education and poor economic set-up are generally the main attributes of juvenile delinquency” 3. The Studies for the year 2011, revealed amongst others that 55.8% of juvenile arrested were either illiterate or educated till the primary level. Likewise, 56.7% of those arrested belonged to the lowest economic strata. The Hon’ble Supreme Court in Abuzar Hossain Alias Gulam Hossain versus State of West Bengal4, quoted with approval the following passage from Shri B.N. Mishra’s Book “Juvenile Delinquency and Justice System”, as under –
“One of the prominent features of a delinquent is poor educational attainment. More than 63% of delinquents are illiterates. Poverty is main cause of their illiteracy………………..”.
India’s poverty and illiteracy is no secret. Unfortunately, India remains a fertile hot-bed for mushrooming of juvenile delinquents. All the essential ingredients, exist within India’s social-economic-political milieu. Reasons undoubtedly exist for their alarming rise. While, the cause for such continued spurt need to be addressed, the other fundamental concern is to ensure that those who are not juveniles, may not be permitted to abuse, circumvent or manipulate the existing system to obtain benefits under the Juvenile Justice Act. An examination of the three prescribed tests, reveal as under –
- The First test of a Matriculation or Equivalent Certificate – is on the face of it an illogical and irrational test, in a country, where evidently 55.8% / or 63% of juvenile delinquents are either illiterate or educated till the primary level. In other words, the vast majority of almost 56% cannot even be expected to qualify for the first prescription. In other words, they would at the outset be excluded from the first test, leaving them to qualify under the remaining two tests.
- The Second Test of a Date of Birth Certificate from the first School attended – is again on the face of it, an illogical and irrational test, in a country where as recorded 55.8% / 63% are illiterate with little or no possibility of securing any School / or formal education. If, they have not received any school or formal education, question of production of a certificate from any such school is both utopian and unreal. Though, in ordinary parlance, it cannot be doubted / or questioned that the legislature in it’s wisdom when prescribing the requirement of first school attended, essentially meant the enrolment of a child at nursery / kindergarten school, since, it is the first stage of child’s formal schooling. Appreciating this Clause, the Hon’ble Supreme Court in Ashwani Kumar Saxena versus State of Madhya Pradesh (supra), held – “We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and in that situation, they could successfully raise a claim of juvenility”. Undoubtedly, the Supreme Court in it’s wisdom read this Clause to signify authenticity, since a parent while admitting his child for formal schooling at nursery / kindergarten level, would record his / her correct date of birth and thereby create unimpeachable evidence leaving little or no room for questioning it’s authenticity. Consequently, this Clause in it’s construction did not and could not mean the first school attended by a child from Standard III or Standard V or Standard VIII as it cannot by any conceivable opinion be argued that a child attended his first school from either Standard III, V or VIII. Since, the Clause is silent and does not specify / define the first school attended, it is an open truth that Certificate(s) from any Standard are produced to meet this requirement. Resultantly, this Clause is equally incompetent to ensure a correct / or an authentic determination of juvenile status.
- The Third Test of a Date of Birth Certificate from the Corporation / Municipality / Panchayat– is again on the face of it, an illogical and irrational test, in a Country where – “there may be cases in which the accused may not be in a position to provide a birth certificate from the corporation, the municipality or the panchayat, for we know that the registration of births and deaths may not be maintained and if maintained may not be regular and accurate, and at times truthful”, as observed by the Hon’ble Supreme Court in Abuzar Hossain (supra).
In other words, the legislature in prescribing the method for determining the status of a juvenile has relegated the entire thrust to the production of a Certificate of either of the categories. In a Country like India, for the aforesaid reasons and for the more predominant reason that it is no open secret, that Certificate’s are open to rampant manipulation, fabrication and are easily obtainable by exercise of undue influence / pecuniary benefits, it is both juvenile and immature to place such gospel reliance on such Certificate’s.
Our Parliament has to ensure and introduce test(s), including scientific medical test(s), that are fool-proof, authentic, credible and without any scope of fabrication or manipulation. If the Juvenile Justice Act, permits a departure for a juvenile from the rigours of ordinary criminal law, it is essential and imperative that such departure be confined only to deserving and authentic juveniles. It cannot be invoked to include and provide relief, to those who are not juveniles. Hundreds and thousand of cases come up every day, where juvenility of an accused is an issue. Based on such fallacious and illogical test(s), Court’s are daily determining the status of a juvenile. Resultantly, it requires an immediate re-examination and re-look towards ensuring that the benefits of a welfare legislation, is available only to the deserving and not the undeserving.
- Ashwani Kumar Saxena versus State of Madhya Pradesh (2012) 9 SCC 750.
- Studies conducted by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India – quoted in (2012) 10 SCC 489.
- Abuzar Hossain Alias Gulam Hossain versus State of West Bengal (2012) 10 SCC 489.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].