The gruesome and inhuman murder of a class II Ryan International School student, apart from posing a big challenge to the investigators, raises a few serious questions about criminology, juvenile justice and human rights.
World criminal law postulates that only when a prohibited act (actus reus) is committed with criminal intention (mens rea) a person can be punished. While criminal law (Indian Penal Code, Criminal Procedure Code) deals with crime, ‘criminology’ explains sources and causes of crime. The criminal law is evidence-specific while criminology is individual-specific, considering the sociological environments along with other factors.
The Juvenile Justice Act is a partial codification of criminological jurisprudence, i.e. theory of crime. This Act was amended recently to facilitate trial of juvenile as adult in cases of heinous crimes.
Violent extortion of confessions
The Haryana Police arrested a school bus conductor of Ryan School, Ashok Kumar, who was later released after the CBI took into custody a 16-year-old boy in connection with the murder. Kumar alleged that he was tortured by the police to confess to the crime. The CBI, however, found no incriminating evidence against the bus conductor.
CBI team claimed to have found clues in CCTV footage to suspect that the 16-year-old was the responsible for the crime. According to media reports, the boy too told his father a confession was forced out of him.
Though torture is used as a method to extort a confession, the IPC states that the same can be an offence under Section 332 (punishable with imprisonment up to three years, and grievously hurting to extort confession) and under Section 331 (punishable with imprisonment up to 10 years, liable to a fine). As per Evidence Act, Section 25, no confession made to a police officer shall be proved as against a person accused of an offence. Thus, confession to police by accused is not admissible since 1872, and causing grievous hurt to extort confession is a punishable offence with maximum 10 years of imprisonment besides fine, since 1860.
In 2017, there were number of reports of accused persons admitting to being beaten up and compelled to confess to crimes. Law schools teach that if those who are supposed guard cause injuries, it is human rights violation. The civil wrong of causing injury wrongfully should result in police or state paying compensation. However, so far, no police officer in the country has been prosecuted for extorting confession.
Juvenile injustice
A 16-year-old young boy’s mental condition will be different from that of a mature adult, physiologically and psychologically. A teenager may be confused, immature, indecisive and prone to influences of peers due to their lifestyle, education or lack of it, and other reasons. Cinema and television can be an easy influence as well. Equating a juvenile with hard core criminals is inequality, which juvenile justice does not approve.
The ‘mind’ is the real criminal behind the weapon with the method of execution of crime being an equally important factor. Hence, the basic tenet of criminal justice―mens rea is the crucial factor in determining the guilt. A lunatic, a child, a subordinate under command, a person acting under sudden provocation, or in self-defence does not possess necessary conscious criminal intention to be culpable.
The established principles of criminal law provide complete immunity from culpability to a child up to seven years of age, and conditional qualified immunity up to 12 years, followed by soft and reasonable treatment to teenagers up to 18 years of age.
The civil law presumes and rules that a person below 18 years is a child and not capable of understanding a burdensome contract, though not disqualified to receive benefits. Hence, a contract with a minor is not enforceable. Marriage laws disqualify a man under 21 years to marry, while the woman is legally permitted to marry at 18. This shows a legal presumption that a man is immature to marry till he attains 21 years.
As per the “mandate, warrant and spirit of the amendment carried in the Juvenile Justice (Care and Protection of Children) Act, 2015, a juvenile involved in heinous crime should be treated like an adult,” claimed the father of the victim. He says the teenager should not get the benefits of law as a juvenile. Father of the juvenile pleaded that he was innocent and an objective investigation considering his age is needed. Now, the Juvenile Justice Board has to decide the complexity and confusion amidst high rising emotions, with the objective use of discretionary power. It’s like walking on the edge of sword. This has to be concluded by the Board within the three months provided under section 14(3) of the Act from the date of the first production of the child before the JJB.
The JJB set up in all districts should deal with children in conflict with the law. The media cannot disclose the identity of a juvenile or call him an ‘accused’; as per law he has to be called ‘child in conflict with law’. This is based on consideration that a child was brought into conflict by other circumstances and he did not fully intend to do so. A child being tried like an adult means that he will be mixed up with other incorrigible criminals or accused in police stations, courts and in custodial prisons as well. The judicial institution and state cannot facilitate a juvenile to graduate as a hardened criminal, even if it is prima facie proved that he could be suspected of the crime.
It is argued that at 16 and above, the child is more intelligent with clear understanding and he does not deserve any sympathy. JJ Act was amended on that reasoning. Amendment Act defined ‘heinous offences’ as those “for which the minimum punishment under the Indian Penal Code (IPC) or any other law for the time being in force is imprisonment for seven years or more.” The changed law doesn’t merely encompass gruesome crimes such as rape and murder but extends to many other crimes.
Juveniles accused of counterfeiting, cheating, arson, kidnapping, causing grievous hurt, dacoity, burglary or committing theft in a building are all now liable to be tried as adults. The list includes Commission of Sati (Prevention) Act, Narcotic Drugs and Psychotropic Substances (NDPS) Act, Arms Act, Unlawful Activities (Prevention) Act, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Terrorist and Disruptive Activities (Prevention) Act, Maharashtra Control of Organised Crime Act and Food Safety and Standards Act.
Juveniles can be booked under IPC for ‘waging or attempting or abetting to wage war’ against the Government of India and for trafficking under IPC that attracts a jail term of minimum seven years. Children who are trafficked themselves or are children of commercial sex workers are also booked for trafficking. Even in case of dowry deaths, where the entire family is booked, 16 to 18-year-olds in the family can now be booked as per law. A juvenile, however, cannot be given death penalty or life imprisonment without the possibility of release.
In all such cases, the Juvenile Justice Board can refer a juvenile to a children’s court after a preliminary assessment. The children’s court, which is a sessions court, can then determine whether to subject him/her to the adult judicial system.
Criminologists questioned this ‘reform’ of law that itself facilitates brutalisation of already vulnerable juveniles. After this amendment, JJB in several cases decided the child aged between 16 and 18 years to be tried as adult accused on charges of rape and murder. The JJB has to consider the age of the child and the heinous nature of the offence, conduct a preliminary assessment if the child is mentally and physically capable of committing the crime and knows the consequences of his action, before deciding the petition.
However, practically nothing is done in ‘treating’ the child at the stage of interrogation as an adult. If the child is found in conflict with the law, he should be kept in a home where he is not expected to be subjected to a cruel environment, and is allowed to think differently. Separating him from criminal surroundings and people is the purpose of his stay in observatories rather than leaving him in third degree environs.
Newspapers are replete with reporting of the allegations that the ‘child in conflict with law’ was subjected to torture and he confessed to the crime only to retract the said confession at a later stage. It means the adult bus conductor and the teenaged 'child in conflict with law received' the same treatment during investigation, much before the JJB considered the case.
The adult, in this case, is first called the suspect where as the child ‘in conflict with law’ from day one was established prima facie. We watch sensational reports of crime, submerged in emotions and brush aside the basic tenets of justice, human rights and ignore the spirit of juvenile justice. The society, police, courts and media see both the child and adult accused of a crime through the same ‘sensational’ lens. Killing a class II student is undoubtedly inexcusable. Neither criminal law nor criminology bothers about the victim, because it is for the state to help them. By misrule and lack of good governance, we create cesspools that breed young criminals, and punish the victims. We just cannot understand that a child 'in conflict with law' is fathered by criminals around.
Criminal law needs clinching evidence beyond reasonable doubt to penalise the accused whereas criminology explains the reasons and tells the state to remove them to protect the youth and build them as constructive force of the nation. We are yet to understand the reason behind juvenile justice law, the need to sophisticate investigation methods and elevate from inhuman methods of the third degree for confessions as seen in B grade crime thrillers of Bollywood. Instead of humanising the investigation, where child is suspected, we have laws that brutalise a child. By any stretch of imagination, how civilised are we?
Sridhar Acharyulu is a law professor and a member of the Central Information Commission
Disclaimer: The views expressed in this article are solely those of the author and do not necessarily represent the views of the publication
