In The Name of Delhi Gang Rape: The Proposed Tough Juvenile Justice Law Reform Initiative

Date01 August 2014
DOI10.1177/2277401720140110
AuthorB.B. Pande
Publication Date01 August 2014
SubjectArticle
IN THE NAME OF DELHI GANG RAPE: THE
PROPOSED TOUGH JUVENILE JUSTICE
LAW REFORM INITIATIVE
B.B. Pande*
The incident of December 16, 2012 sparked a significant social and
legal debate regarding the laws of sexual offences as well as
subjecting juveniles to the criminal justice system. The Cabinet has
proposed an amendment to the Juvenile Justice Act that would
allow prosecution of juveniles between 16 and 18 years for heinous
crimes. This essay reflects on the history of juvenile justice and
cautions against hasty reforms that would alienate and punish
rather than assimilate and reform juveniles who may offend the
law.
I. INTRODUCTION ........................................................................................ 146
II. THE OUTGOING JUVENILE JUSTICE SYSTEM ........................................ 149
A. Rationale of Juvenile Justice ............................................................ 149
1. Children's cognitive capabilities and decisional abilities ....................149
2. Age as a basis of categorization of children .........................................151
3. The 'criminal responsibility' confusion ................................................153
III. THE INCOMING JUVENILE JUSTICE SYSTEM ........................................... 156
A. Unlimited Powers of Child Apprehension/Arrest ................................157
1. Implications of extensive powers of apprehension ..............................158
2. Singling out of 16-18 age group juveniles involved in
serious/heinous offences ..................................................................... 158
3. Overburdening of the Juvenile Justice Board .......................................161
4. Trial and sentencing of the 16-18 age group children by adult courts ...162
IV. DISCUSSION OF THE PROPOSED AMENDMENT ......................................... 163
A. Fine-tuning the Technical Aspects ...................................................... 163
B. Changing the Philosophical Premise of Juvenile Justice ..................... 165
* Criminal Law Chair Professor, National Law University Delhi; Former Professor of
Law, Delhi University.
I. INTRODUCTION
The infamous Delhi Gang Rape, perpetrated by a gang of five adults
and a juvenile on the streets of Delhi in a private public transport bus
th
running through posh and well-guarded localities on 16 December, 2012
(hereinafter DGR16) has produced far-reaching social and political fall-
outs. Restricting our focus only to the legal fall-outs, we can identify the
following. First, it led to the enactment of the Criminal Law (Amendment)
1
Act, 2013, that too in less than four months. Second, the adult members of
the gang were prosecuted for offences such as rape and murder by a special
court and sentenced to death for the offences (one of the principal accused
committed suicide inside the prison). The Delhi High Court confirmed the
death sentences of all the four accused, but the Supreme Court has
temporarily stayed the execution of sentences. Like the adult members, the
juvenile member of the gang has also been convicted by the Delhi Juvenile
Justice Board and awarded the maximum custodial sentence permissible
under the juvenile justice law. Third, the newly formed Central Government
has undertaken a serious legislative initiative to repeal the earlier juvenile
justice law (that was perceived as having dealt with the juvenile member of
the DGR16 leniently) and replace it with a harsher version of juvenile
justice law to deal with the 16-18 age group involved in serious/heinous
offences through the proposed Juvenile Justice Bill, 2014.
The Criminal Law (Amendment) Act, 2013 has substantially altered
the normative landscape of the law of sexual offences. It not only makes
changes to the rape offence, but attempts to provide a fool-proof and
comprehensive list of sexual offences by criminalizing sexual harassment
under Section 354A, intentional disrobing or making a woman naked under
compulsion under Section 354B, voyeurism under Section 354C and
stalking under Section 354D of the Indian Penal Code. Even well-
intentioned legislations may not be enforced, or even perceived by the
community in the same spirit that it was enacted. The norms asserted by
1 rd
On 23 December, 2012 the Government of India appointed a Committee headed by Justice
J.S. Verma to inquire about the incident and propose changes to the law with a view to ensure
rd
protection of women. The Committee gave its final Report on the 23 January 2013,
rd
followed by the Government issuing an Ordinance on 3 February 2013. The Ordinance was
presented as a Bill which was discussed in the Parliament and approved by both the Houses.
nd
The President gave assent to it on 2 April, which brought the Act into effect retrospectively
rd
from 3 February 2013.
146 Journal of National Law University, Delhi [Vol. 2

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