The rape and murder of a girl on December 16, 2012, in New Delhi by criminals including a person a few months short of 18 years has triggered a debate about the law relating to criminal responsibility of juvenile offenders in India.

As per the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000, persons below 18 years cannot be tried by a regular court. Instead, they have to be produced before the Juvenile Justice Board that was constituted under Section 4 of the Act.

The public at large has also not been able to reconcile with this legal immunity against criminal responsibility and are questioning the moral foundations and constitutional validity of the Act.

In view of such compelling public opinion, it may be worthwhile to understand as to what is meant by `juvenile` and how other jurisdictions of the world have addressed the issue of juvenile criminal responsibility.

Juvenile is a staggeringly broad term. What distinguishes the juvenile from the adult is the level of mental and physical maturity. According to neurobiological evidence, mental and intellectual development of human beings, including conscious cognitive control of his emotions and passions leading to self-regulation, continues up to the age of 25.

As such, if we go strictly with science, a person must be treated as mentally mature not before he is 25 and the age of 18 does not constitute a developmental finality. It is a legal presumption, inconsistent with human biology.

Worldwide, a juvenile`s culpability and sentence is determined according to the nature and severity of the offence and the level of his maturity and the discretion in this regard is left to the courts.

Only persons up to the age of doli incapax, ie, the age below which no child can be found guilty of a criminal offence (seven years in India, 10 years in England, Wales and Northern Ireland, eight years in Scotland, 13 years in France; 14 years in Germany, Austria, Italy and many European countries ) enjoy immunity against criminal liability.

It is significant that the US has not ratified the Convention on the Rights of the Child adopted by the United Nations on November 20, 1989, and juvenile offenders, below the age of 18 years, were being awarded even death sentences till 2005 when it was declared unconstitutional by the US Supreme Court in Roper v. Simmons.

Subsequent pronouncements of the US Supreme Court, in Graham v. Florida (2011) and Miller v. Alabama (2012), holding that sentencing juvenile offenders to life without possibility of parole is violative of the 8th Amendment, did provide some relief to such offenders but they can still be awarded life sentences.

The European Court of Human Rights in France on December 16, 1999, in V. v. The United Kingdom, (Application No. 24888/94) ruled that the trial and conviction of a 10-year-old by the adult Crown Court, in public view, does not constitute violation of Article 3 of the European Convention on Human Rights as it does not amount to inhuman or degrading treatment or punishment prohibited by the Convention.

Concerned by the rising incidence of severe crimes by young offenders and the need to bring them to justice, the long-standing common law doctrine of "rebuttable presumption" was abolished through Section 34 of the Crime and Disorder Act, 1998.

Following this amendment, the House of Lords, in R v. JTB [2009] UKHL 20, rejected the doctrine of doli incapax as a valid defence in case of crimes committed by persons above 10 years.

In Canada, the provisions of the Youth Criminal Justice Act, 2003, were amended by the Safe Streets and Communities Act, 2011.

The provisions of the Act, inter-alia, "highlight the protection of society as a fundamental principle in the Youth Criminal Justice Act; require the Crown to consider seeking adult sentences for youth who commit the serious violent offences of murder, attempted murder, manslaughter and aggravated sexual assault" and "require the courts to consider lifting the publication ban on the names of young offenders found guilty of violent offences".

In Australia too, the law allows lifting of restrictions on naming juveniles in particular circumstances.

Thus, the provisions of the Indian Juvenile Justice (Care and Protection of Children) Act, 2000, which grant absolute immunity against criminal liability to persons below 18 years are not consistent with the legal scenario in other jurisdictions in the world.

The Act does not take into account the level of mental and physical maturity of the juvenile offender. Nor does it take into account the nature and severity of the crime.

Undoubtedly, the juvenile offender engaged in the gruesome rape and murder of the young girl on December 16, 2012, was fully mature mentally and physically otherwise he would not have been able to perform such a ghastly act, in the face of stiff resistance from the victim.

Admittedly, in view of their vulnerable status, children require a protective and caring approach while assigning criminal responsibility but this need to be balanced against the legitimate concerns of safety of the law-abiding citizen.

The juvenile justice system established on undue juvenile protection leads to further predation of society.

The provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, need to be suitably modified in order to ensure that violent offenders (indulging in heinous offences such as rape and murder) who are mature enough to understand the nature, implications and consequences of their acts, are brought to justice, on a par with adults and the people`s trust and confidence in the law and the judicial process are not eroded.

RR Kishore is an advocate, Supreme Court of India. The views expressed by the author are personal.