OP. ED.

Introduction

Children are always cherished everywhere as embodiment of innocence, virtue, sheer beauty perhaps the only closer embodiment of Him. They are future citizens of the world, the true torch-bearer of a nation and entitled to the equitable principles of intergenerational equity, a rightful candidate of the peaceful world, pollution-free ambience and righteous society. Along with other laws, criminal law is often employed to protect innocent children from the attack of the depraved mind. Criminal law also decides on the age group of children for fixing the immunity/liability of the children depending upon their mental maturity. The criminal laws of various countries usually treat children below seven years age as Doli Incapax, who are completely excusable from crime; due to lack of mental maturity or absence of guilty mind — the mens rea. Children above seven and up to 12 are presumed to be innocent of an offence, unless sufficiently mentally mature to understand the nature of the act or omission. These are the provisions (Sections 82 and 83) of the main substantive Criminal Code of the land — the Penal Code, 1860[1]. Procedural criminal law, Criminal Procedure Code, 1973 in Section 360 provides for a separate trial for child offenders with special reformative aim of bringing them back to the mainstream of the society. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter mentioned as “JJ Act”), a special law was enacted to reform criminal justice system for children keeping in view India’s international obligation to the Convention on the Rights of the Child adopted in UN General Assembly in 1989. India ratified it in 1992. In the body of the JJ Act, 2000 under Section 2, the juvenile has been defined as a person who has not completed 18 years of age. Two important terms “juvenile in need of care and protection” and “juvenile in conflict with law” have been coined. Juvenile in conflict with the law means a person who has committed an offence under a criminal statute and is punishable under it. “Juvenile in need of care and protection” means a person who are street children, without any guardian, are neglected, are in danger of being abused by any guardian, terminally ill or abandoned, etc. Juveniles cannot be given the death penalty as per hitherto provision of Section 15 of the JJ Act, 2000; they can be kept under observation by a special official up to a maximum of three years. In other situations, they can be released after admonition by a Juvenile Justice Board and in some cases, if the juvenile is over fourteen years and earning has to pay fine or their guardian has to pay fine.

In 2013, in Delhi the brutal gang rape of a paramedic student “Nirbhaya” happened in a moving bus; where a juvenile was also a member of the ghastly assembly. It is said that he was the cruelest perpetrator and because of his age treated leniently under the scheme of the JJ Act, 2000. And was released after being confined for three years of supervision. This incident created a fear psychosis in the mind of the masses and there was a demand for speedy, ultimate preventive, disutility ? capital punishment. In this emotional backdrop the JJ Amendment Act, 2015 was enacted.[2]

Now three issues can be raised and dealt in the next paragraphs:

  1. Should a juvenile sometimes be tried as an “adult” as per Section 19 of the provision of the JJ Amendment Act, 2015?
  2. Are we aware of the rule/standard dichotomy?
  3. Whether societies’ expectation of capital punishment for a juvenile guilty of a heinous crime shall be met irrespective of the evil consequence to the concept of rule of law in a civilised country like India?

We try to analyse the issues one by one:

In our Constitution under Article 15(3) children are given a special status along with women. The Scheme of JJ Act, 2000 was in consonance with the International Convention on the Rights of the Child passed in the UN General Assembly in 1999. Thus the whole scheme of the JJ Act, 2000 was reformative and the aim is to bring a juvenile to the mainstream of the society as a useful contributor towards the State. While passing the JJ Amendment Act, 2015, it was laid down that the heinous juvenile offender of sixteen to eighteen may be tried as an adult.  Now the question is, what a heinous crime is. Is the benchmark — the quantum of punishment prescribed in substantive Criminal Law Code of IPC or other laws or the Judge’s sense of repulsion to the crime committed or requirement of further prevention of crime based on social investigation report of a juvenile?  We know that it is not possible to efficiently measure the societies’ reactions in a cost-effective way. If a juvenile destroys authority to adopt or adoption deed under Section 477 of the Penal Code or defame a State official under Section 499 IPC, based on the quantum of punishment — are these offences meritorious enough to be treated as heinous as an adult offender?

Then we can also pose a rider when a juvenile is termed as a heinous offender from a perspective of a reasonable common man? If the answer is always from the retributive instinct of vengeance, then the solution is capital punishment for a juvenile. Reflecting on it, it is irrational itself, because practically a child is born innocent and he picks the deviant values from the peers, the society where he lives. Crime sometimes a learned process and society is also responsible for it. Deviant behaviour of juveniles often results from lack of self-esteem, education, economic, social and political status, feeling of alienation, and insensitive treatment by adults and a result of discouraging environment.[3]

Society should try to reform a child but if there is hardly a chance of reform. Only in rare cases, he is a threat to society and he may be condemned to life imprisonment with hard labour with limited chance of commutation and remission. This decision also shall not hurt the society economically, as the juvenile shall contribute positively through hard labour for the community. Juveniles cannot be detained under Preventive Detention Acts as their detention is only with the aim of there formative relocation to the society as per Section 1(4)(i) of the JJ Amendment Act, 2015.

The rule/standard dichotomy always creates a problem for rule-based society.[4] As for example, the rule of a certain age for ascertaining a minority shall leave an escape route to the sufficiently mature minor, a prospective juvenile. We still believe exception proves the rule and to achieve justice as it protects — a majority of the minor population who are not sufficiently mature enough. Even the law recognises this mental immaturity and minors’ contract are treated as void, incapable of enforcement as declared in Privy Council ruling in Mohori Bibee v. Dharmodas Ghose[5] (1903, Privy Council). In property laws unborn person, until they reach legal maturity are not full-grown owner, always under the lawful control of a guardian.

If we opt for a standard element in law like “good faith”, “mala fide”, “reasonableness” these are open to evil of multitude of subjective conjectures.

The solution to these problems of dichotomy is perhaps promoting the flexible rules with scope of making sufficient discretion, the limited exceptions with preventive screening like life imprisonment with hard labour — which is nothing but disutility or preventive measure.

There is an economic analysis of the criminal law that, human being are rational choice maker, thus always calculate profit and loss of any act or omission. Thus criminal law imposes enough cost or disutility in the form of punishment for the volitional act of rational human being. Universal Declaration of Human Rights in Article 1, explains that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” If this declaration is indeed true, then separate convention for children is not required at all. Children are special constitutional class, who most of the time a victim of the situation, which determines their fate. They are hardly their own master in the sense that they follow intentionalist discourse. Their choice is not reasoned free and not liable to be dealt with harsh disutility.

One can argue that there are enough safeguards under Section 3 of the JJ Amendment Act, 2015 as for example, it is laid down that, the Central Government, the State Governments, the Board and other agencies, as the case may be, while implementing the fundamental principles, namely:

  1. Principle of presumption of innocence, (up to the age of eighteen years from criminal act or omission).
  2. Principle of dignity and worth, (all human being are equal in worth and dignity).
  3. Principle of participation, (children shall be heard in proceeding and due regard shall be given depending upon the mental maturity of the children).
  4. Principle of best interest, (children’s best interest shall be the only consideration for the growth of the child’s full potential).
  5. Principle of family responsibility, (the primary responsibility for the care and protection of the children shall be the biological family, or adoptive or foster family).
  6. Principle of safety, (children in contact with care system shall not be maltreated or abused and it has to be seen that he is not abused even after).
  7. Positive measures, (the resources of the family and community shall be utilised in such a way that in an encouraging environment there shall be all-round development of the child and the requirement of the intervention by the Act is lessened).
  8. Principles of non-stigmatising semantic, (adversarial and accusatory words are not to be used against the child in any proceeding).
  9. Principles of non-waiver of right, (any rights or fundamental rights of children cannot be waived even by non-exercise by the children, Board or any authority).
  10. Principle of equality and non-discrimination, (there shall not be discrimination based on sex, caste, ethnicity, place of birth, access to resource and equality of the opportunity).
  11. Principle to right to privacy and confidentiality, (throughout the judicial process children’s privacy and confidentiality shall be protected).
  12. Principle of institutionalisation as a measure, of the last record, (a child shall be taken under institutionalised care after reasonable enquiry).
  13. Principle of repatriation and restoration, (any child under the scheme of the JJ Act shall be reunited with the family at the earliest and given the same socio-economic status to him before he came under the Act and unless it is not against his interest).
  14. Principle of a fresh start, (all the past records of the juvenile under the Act shall be erased unless there is a demand of special circumstance).
  15. Principle of diversion, (children in conflict with the law shall be dealt with other than judicial proceeding if it is not against the interest of the society).
  16. Principles of natural justice, (in a judicial proceeding concerning children fair hearing shall be given, rule against bias shall be applied by all persons and bodies).

But these principles are mere magic words[6], explained as — prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage. For children because as like other powerless groups hardly they have any meaningful impact on the powerful State officials like judiciary, police or probation officers. We can easily imagine even a juvenile of eighteen years age may not make a beneficial rational choice for meaningful consultation from a lawyer as enshrined under Article 22(1) of the Constitution, simply because of his mental immaturity. Neither he is able to prepare his defence if he gets to know the ground of arrest or detention. These principles are like directive principles of the Indian Constitution creating moral values for the State officials. The fair trial principle simply gets vitiated if a juvenile is treated as an adult who often lacking mental maturity. Juveniles usually cannot assert their rights properly.

Criminal Law (Amendment) Ordinance, 2018[7] provides the death penalty even for juveniles in some cases when gang rape is committed against the person of a minor below twelve years of age. We know in Bachan Singh v. State of Punjab[8], the Supreme Court has laid down that life imprisonment is the rule, death penalty as an exception. Thus Judges in most cases shall be reluctant to impose death penalty and needs to cite a special reason. Moreover, the death penalty is not thought to be a deterrent for crimes committed under sudden passion or grave provocation, or motivated offender. Rape and murder shall not decrease by passing the death penalty and offenders shall try to obliterate evidence. The conviction rate of crimes in India is hovering around (46.90)% in 2015, which is satisfactory compared to the previous era and thus we can stress on reformatory institutional care based approach for children[9].

Influence of the Mental Health Act, 2017 on the Juveniles

This Act was enacted in India, inconsonance with India’s international obligation to the Convention on the Rights of Persons with Disabilities held in United Nations Headquarter in 2006. This Act replaces the previous Mental Health Act, 1987. In this Act, minor has been defined as who have not completed 18 years. The definition of mental illness has been given as, (s) “mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence. Unfortunately, in India legal insanity described in Section 84 of the Penal Code still follows the archaic M’Nanghten rules. Here a person is criminally liable if his cognitive faculty is working, that is, he knows the nature of his act and it is wrong or contrary to law. He will not get any “diminished responsibility”[10] relief for mood swings, impaired behaviour, impaired mental or physical condition unlike in England. In India, there are about 3000 psychiatrists for 120 crore people. Juvenile with mental illness often indulges in crime. State can detain their liberty, and keep them in Government and private institutions. But the Act is silent about the expenditure to be incurred in private institutions. Juveniles with mental illness cannot get admission to hospitals immediately like other patients. The doctor has to examine and verify that his illness requires admission and his decision is coming out of free will. This examination period is for 7 days which can expose the juvenile to danger. Despite statutory declaration mental persons are treated in India with cruelty due to lack of ignorance of the general population. This Act imposes a heavy burden on families to give care to the mentally ill persons, like admitting them in health care institutions. This caused resentment in the mind of mentally ill persons towards the family members. Crime in many situations is result of mental illness which can be cured with timely psychiatric intervention. The Mental Health Act, 2007 provisions are declaring noble human rights, but practically there are a lot of gaps in the Act.

Conclusion

Legislators are not immune to the emotional pressure created by the people. But they are armed with resources, like skilled criminologists, Judges, lawyers, and police force. They can reflect over any policy they make and its impact in the future. Rationality is the benchmark of the rule of law in a democratic country like India.  One can suggest that, there cannot be any deviance from the concept of the “categorical imperative” of Immanuel Kant, even when the majority do not want it. According to Kant, human beings occupy a special place in creation, and morality can be summed up as an imperative or ultimate commandment of reason, from which all duties and obligations derive. He defined an imperative as any proposition declaring a certain action or inaction to be necessary. “Act only according to that maxim whereby you can, at the same time will that it should become a universal law.” Thus barring a few, mere good is subjective but right is always desired as per community legal and moral standard. The children turned juveniles in most of the situations are more amenable to reform. Making juveniles criminally liable as adults without any rationality; expose the society to graver consequences, dogmatic insensitiveness.


 †  Assistant Professor, SLS, Pune, e-mail: bibhabasumisra@gmail.com.

[1]  K.D. Gaur, Textbook on the Indian Penal Code, Fifth Edition, Universal Law Publishing Co., 2014 at p. 117.

[2]  <http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF> visited on 5-10-2018.

[3]  Larry J. Siegel, Criminology: The Core Fourth Edition, Social Process Theories  p.173.

[4]  Lloyd’s  Introduction to Jurisprudence, Seventh Edition, Sweet and Maxwell p.1041.

[5]  1903 SCC OnLine PC 4.

[6]  Hagerstrom’s concept of magic in legal or in language: Lloyd’s Introduction to Jurisprudence at p. 858. He explains that as prospective spouses are made to go through marriage ceremonies and the rituals make them and other onlookers made to believe that the couple is now altogether different from the position before marriage.

[7]  <www.prsindia.org/ordinances/The20%criminal%20> visited on 5-10-2018.

[8]  Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[9]  Source: <www.ceicdata.com>.

[10]  Diminished responsibility in England is a partial defence under S. 2(2) of the Homicide Act, 1957.

Legislation UpdatesNotifications

S.O. 4700 (E).—Whereas the Central Government is of the opinion that the area comprising the whole of State of Nagaland is in such a disturbed and dangerous condition that the use of armed forces in aid of civil power is necessary.

2. Now, therefore, in the exercise of the powers conferred by Section 3 of the Armed Forces (Special Powers) Act, 1958 (No. 28 of 1958) the Central Government hereby declares that the whole of the said State to be a ‘disturbed area’ for a period of six months with effect from 30th December, 2019 for the purpose of that Act.


Ministry of Home Affairs

[Notification dt. 30-12-2019]

Legislation UpdatesRules & Regulations

F.No.S-11011/17/2017-Ins.I —In exercise of the powers conferred by Section 49 of the Life Insurance Corporation Act, 1956 (31 of 1956) and with the previous approval of the Central Government, the Life Insurance Corporation of India hereby makes the following regulations further to amend the Life Insurance Corporation of India (Recruitment of Apprentice Development Officers) Regulations, 1999, namely:-

1. Short title and commencement — (1) These regulations may be called the Life Insurance Corporation of India (Recruitment of Apprentice Development Officers) (Amendment) Regulations, 2019.

(2) They shall come into force on the date of their publication in the Official Gazette.

2. In the Life Insurance Corporation of India (Recruitment of Apprentice Development Officers) Regulations,1999 (hereinafter referred to as the said regulations), in Regulation 2, in sub-regulation (1), for clauses (a) and (b), the following clauses shall be substituted, namely:—

‘(a) “Agents Category” means–
(i) an individual appointed or engaged by the Corporation for the purpose of soliciting or procuring insurance business including business relating to the continuance, renewal or revival of policies of insurance pertaining to the Corporation; or

            (ii) an individual who has been appointed as an agent under the Life Insurance Corporation of India (Agents) Regulations, 2017;

(b) “Agents Regulations” means the Life Insurance Corporation of India (Agents) Regulations, 2017;

3. In the said regulations, in Regulation 4,-

           (i) for clause (a), the following shall be substituted, namely:-

          “(a) (i) an applicant from Employees Category for recruitment as an Apprentice Development Officer in both Urban and Rural area shall possess a Bachelor’s Degree of a University in India established under a statute or approved for the purpose or the Fellowship of Insurance Institute of India, Mumbai;

          (ii) an applicant from Agents Category for recruitment as an Apprentice Development Officer in both Urban and Rural area shall possess a Bachelor’s Degree of a University in India established under a statute or approved for the purpose or the Fellowship of Insurance Institute of India, Mumbai;

         (iii) an applicant from Others Category for recruitment as an Apprentice Development Officer in both Urban and Rural area shall possess a Bachelor’s Degree of a University in India established under a statute or approved for the purpose or the Fellowship of Insurance Institute of India, Mumbai.

         (iv) The number of Apprentice Development Officers recruited from among the Employee Category shall not exceed 15%, from Agents Category shall not exceed 25% and from Others Category shall not exceed 60% of the total number of vacancies for recruitment of Apprentice Development Officers:
Provided that the Recruiting Authority shall conduct recruitment for each category:

                Provided further that if the required numbers of candidates are not available from any category to fill in the vacancies earmarked for that category, the Recruiting Authority may conduct special recruitment for that category to fill the said vacancies.

Refer the link for detailed notification: NOTIFICATION

[Notification dt. 01-03-2019]

Life Insurance Corporation of India

 

Case BriefsSupreme Court

Supreme Court: In the case where the role and power of the Central Government while dealing with the request of a State Government for reservation of lands for government companies or corporations owned and controlled by the State Government under Section 17A(2) of the Mines and Minerals (Development and Regulations) Act, 1957 was in question, the Bench of Madan B. Lokur and Deepak Gupta, JJ held

“The State Government being the owner of the land and minerals, has a right to make a proposal to the Central Government to reserve lands not held under a prospecting licence or mining lease for exploitation by the State Government companies or undertakings but approval of the Central Government is necessary.”

The Court further clarified that each case has to be decided on its own merits and that the Central Government cannot be bound by any specific parameters. However, the Central Government can not only take into consideration factors of national security or public interest but also economic factors, the policy of the Government and all such other factors which are relevant to decide the issue whether the land should be reserved for exploitation only by State Government Undertakings;

Regarding the question as to the scope of applicability of Section 11(1) and Section 17A(2) of the Act and the effect of the right of preference granted to Reconnaissance Permit holder in terms of Section 11(1) of the Act while dealing with a matter under Section 17A(2) of the Act, the Court held that  Section 11(1) and Section 17A(2) of the Act have no connection with each other. Section 11(1) of the Act deals with preference to be given to Reconnaissance Permit holder and Prospecting Licence holder while considering their case for grant of Prospecting Licence and Mining Lease respectively. This has nothing to do with reservation of land under Section 17A(2) of the Act. The only connection, if it can be called that, is that if a land is held under a Prospecting Licence or Mining Lease, then action under Section 17A(2) of the Act cannot even be initiated. [Geomysore Services (I) Pvt. Ltd.v. Hutti Goldmines Co. Ltd., 2018 SCC OnLine SC 503, decided on 08.05.2018]

Case BriefsSupreme Court

Supreme Court: In the case where a Medical Institution was aggrieved the Government order dated 31.05.2017, which resulted into non-renewal of the permission to admit students for the academic year 2017-2018, the 3-judge bench of Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ held that the order was non-reasoned and directed the Central Government to afford a further opportunity of hearing to the petitioners as per Section 10-A of the Medical Council Act, 1956 and also take the assistance of the Supreme Court mandated Oversight Committee. The matter will be taken up on 24.08.2017.

Stressing upon the need to have institutions which are worthy to impart medical education so that the society has not only qualified doctors but doctors with impeccable and sensitive qualities, the Court said that the objectivity of the Hearing Committee and the role of the Central Government assume great significance in this regard.  The real compliant institutions should not always be kept under the sword of Damocles. Stability can be brought by affirmative role played by the Central Government and the stability and objectivity would be perceptible if reasons are ascribed while expressing a view and absence of reasons makes the decision sensitively susceptible.

The Court said that the direction of the Central Government for compliance verification report should not be construed as a limited remand as is understood within the framework of Code of Civil Procedure or any other law. The distinction between the principles of open remand and limited remand is not attracted. It was clarified that it would be inapposite to restrict the power of the MCI by laying down as an absolute principle that once the Central Government sends back the matter to MCI for compliance verification and the Assessors visit the College they shall only verify the mentioned items and turn a blind eye even if they perceive certain other deficiencies. The Court said that the emphasis is on the compliant institutions that can really educate doctors by imparting quality education so that they will have the inherent as well as cultivated attributes of excellence. [IQ City Foundation v. UOI, 2017 SCC OnLine SC 842 decided on 01.08.2017]