How old is old enough to be jailed for gang rape and murder?

September 3, 2013

The crime was horrific, the case shocking, and the trial long. Yet when the much anticipated first verdict in the high-profile Delhi gang rape case was pronounced in India over the weekend, there was no jubilation, just outrage.

Found guilty of the gang rape and murder of a student on a bus in December, the teenager – one of six accused – was sentenced to three years in a juvenile home, sparking anger and debate over whether India is too soft on its young offenders. Four adult defendants are on trial in a separate fast-track court. One of the accused committed suicide in jail.

The first reaction came from the parents of the dead 23-year-old student, who was beaten, tortured with an iron rod and raped on the night of Dec. 16 before being dumped on a roadside in the capital.

“It is a crime to be born a girl in this country,” the victim’s mother said after hearing the verdict. “How will I live knowing that the killers of my daughter are still alive?”

Her dissatisfaction has been echoed in many quarters.

From public protests to televised debates with lawyers, activists and politicians, and the Twittersphere, many Indians have felt a sense of injustice over the case, which put a global spotlight on violence against women in India.

But under Indian law, a juvenile is defined as a person below 18 years old and the maximum punishment – no matter what the crime – is fixed at three years in a correctional home.

“This does not seem to be right,” Pinky Anand, a Supreme Court lawyer and spokeswoman for the right-wing opposition Bharatiya Janata Party, wrote in an op-ed in The Pioneer newspaper.

“How can we subscribe to a system which does not look into the grievousness of the crime and the injuries inflicted on the victim? How can we put a seal of approval on the offender going almost scot-free only on the ground of being under 18 years of age?”


The teenager, who cannot be named, was tried as a juvenile after authorities, citing school records, ruled he was 17 at the time of the assault, a decision which shocked the victim’s family and others clamouring for him to face the death penalty.

Many want the juvenile law to be amended and the age lowered from 18 to 16, saying that if a person is old enough to rape and kill, they are old enough to pay the price.

Those who are under-age have been exploiting the lenient law to evade strict punishments for heinous crimes, they argue, adding that the high-profile verdict will promote a sense of impunity among potential offenders.

“In Delhi gang rape case it’s proven yet again that law is an ass! That justice is blind! When it need not be. It can be dynamic and proportionate,” tweeted Kiran Bedi, a former police officer and prominent social activist.

Bedi and other critics say India should look to laws in countries like Britain, where children between the ages of 10 and 17 are considered capable of committing serious offences, and punishments are at the discretion of the courts.

On Monday, New Delhi Lieutenant Governor Najeeb Jung said he was “not happy” with the verdict and that the juvenile age should be lowered to as young as 14, given that “these days young people grow up much faster.”

Last year 39,822 juveniles were apprehended in India, mostly for crimes such as theft or causing hurt, according to the National Crime Records Bureau.

This is a tiny proportion of the total number of crimes in India and far smaller than the number of juvenile arrests in many other countries. In England and Wales, 210,660 juveniles were arrested in 2010/11.


Human rights activists have warned against any sweeping change in the law because of the great emotion attached to this one verdict.

“While many have expressed dissatisfaction with this (verdict), international and domestic law provides that everyone under 18 is a child,” said Meenakshi Ganguly, South Asia director for Human Rights Watch.

“The boy has been found responsible for participating in a terrible act, but instead of being motivated by views on punishments and retribution, there should be every effort at the rehabilitation and the eventual reintegration of the child as a constructive member of society.”

Other lawyers and child rights activists have echoed Ganguly, saying that the law should not be seen as a form of revenge, but part of a larger vision of how a humane and compassionate society should treat its children.

Rather than changing the law, they say, one must look at the profile of juvenile offenders – many tend to be from poor households, have little access to education and opportunities and are often abused – and give them the chance to reform, rather than punishing them blindly.

They say investment is needed to improve the pathetic state of India’s juvenile homes so that inmates can be educated and reformed to ensure they do not become repeat offenders.

“A child does not turn into a monster in one day. Years of neglect, apathy and abuse go into turning an innocent child into a juvenile in conflict with the law,” Anant Asthana, a lawyer who has defended thousands of juveniles in court, wrote in the magazine Tehelka.

“Thousands of them (children) will land up in jails instead of getting an opportunity to reform themselves. Let our laws on children be implemented with honesty and sincerity. Snatching away the opportunity of reform from our children in not the answer.”

PHOTO CAPTION: A demonstrator holds a placard during a protest against the verdict of a teenager, who was sentenced to three years in juvenile detention, in New Delhi September 1, 2013. The Indian teenager was sentenced to three years in juvenile detention on Saturday for the December gang rape of a trainee physiotherapist, the first verdict in a case that sparked debate over whether India was too soft on young offenders. REUTERS/Mansi Thapliyal

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