Is defining a ‘minor’ a ‘major’ issue in India?

Rashi Aditi Ghosh and Ankita Chakrabarty/Zee Research Group

As the debate over lowering the juvenile age gets hotter post-Delhi gang-rape case, the plethora of laws prescribing varying age bars makes the task of the policy makers even more daunting.

Defining ‘Minor’

A Zee Research Group (ZRG) study of the existing juvenile laws shows that there is no unanimity yet on the age criteria. Various ministries have their own independent definitions for a child to be called juvenile.

The central government’s Women and Child Development ministry notified last June ‘The Protection of Children from Sexual Offences Act (POCSO Act)’ prescribing the child age as below eighteen years. This Act was initiated specifically to arrest crimes against children.

In contrast, “Children in India 2012”, a report published by the Statistics and programme implementation ministry, says a child domiciled in India attains majority at the age of 18 years. However, the report states that various legal provisions in India address children with differing definitions.

Likewise, the Article 45 of the Constitution avers that ‘the state shall endeavour to provide free and compulsory education to all children until they complete the age of 14 years. The Juvenile Justice (Care and Protection of Children) Act 2000, amended in 2006, 2010 respectively declares that a “juvenile” or “child” means a person who has not completed 18 years of age.

Until 2000, juvenile delinquency as per the Juvenile Justice Act, fixed the age for a male below 16 years and that for a female below 18 years. The amended Act in 2000 brought the age of juvenile male and female at par to 18.

Similarly, Indian Penal Code in its Criminal law states that “nothing is an offence which is done by a child under age of seven years. The age of criminal responsibility is raised to 12 years if the child is found to have not attained the ability to understand the nature and consequences of his or her act.”

The difference in age prescription is even more glaring in various laws governing children in India. While Child Labour Prohibition and Regulation Act (1986) protects a child below and within fourteen years of age, the Apprentices Act (1961) meant for minor only engages a person who is not less than fourteen years of age. Like the Apprentices Act (1961), the Factories Act (1948) also allows the employment of an adolescent between 15 and 18 years but with a certificate of fitness from an authorised medical doctor. Then there is the difference in the marriageable age of man and woman at 21 and 18 respectively under the Prohibition of Child Marriage Act (2006).

Explaining the age differences prevailing in various constitutional safeguards pertaining to children, Anant Asthana, child rights lawyer at New Delhi says, “Various laws on children were formulated at different intervals of time keeping in mind the needs of different categories of children. But as per the recent developments like POCSO Act, amendments are lined up for a uniform age to consider children.”

Is there a quick-fix solution?

Opposing the idea of reducing the age bar of a juvenile, Asthana at New Delhi adds, “Lowering the age from 18 to 16 is something which has already been examined in great detail at all levels in the government on previous occasions in 2000. One incident (Delhi gang rape case) and its knee jerk reaction should not be a reason to undo a seriously considered legislative action. If that is done, thousands of children in the age group of 16 -18 will lose opportunities to reform and will increasingly suffer in jails.”

Endorsing Asthana, Priyanka Das, former legal councilor from Juvenile Justice Board, Kingsway camp (Delhi) says, “I do not support reducing the age bar from 18 to 16 as amendments have already been made keeping in view the scenario of children in this country.”

But the age debate takes an interesting perspective when juvenile crime is profiled. While apprehension of juvenile delinquents under Indian Penal Code (IPC) & Special Local Laws (SLL) within the 7-12 age group and 12-16 year age group respectively reported a drop in 2011 over 2001, 16-18 age groups registered an increase of 25.9 per cent in apprehension of juvenile delinquents under IPC &SLL in 2011 over 2001.

Rising juvenile crime graph

While the legal anomalies persist, the fact is that overall crime rate committed by children in 2011 increased by 52.2 per cent over 2001, according to the National Crime Records Bureau (NCRB). The crime trajectory has heavily leaned towards rape emerging as the most preferred crime committed by juveniles with a 188 per cent increase in 2011 over 2001.

Learning from abroad

Globally too the prescribed juvenile crime age varies from country to country: Ten in England, Wales and Northern Ireland respectively; 12 each in Canada and the Netherlands; 13 in France; 14 each in Germany, Austria, Italy, Japan and Russia, and 16 in Spain and Portugal respectively. In the US, it ranges from six in some states but is ten for federal criminal court prosecutions.

The U.N. Convention on the Rights of the Child bars both capital punishment and life imprisonment without the possibility of release for crimes committed by juveniles less than 18 years of age.