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India clears the conflict on age of juvenile offenders: What about Bangladesh?

Zahidul Islam Biswas
Like many countries across die world, the situation of children coming into conflict with the law was an issue of serious concern in India. The 1986 Juvenile Justice Act allowed the courts to adopt a soft approach towards a young man if he committed a crime before he attained 16 years of age. In 2000, a new law was enacted extending the same relief to the accused if they were below 18 years of age. In this 14-year interval, thousands of youth between the age group of 16-18 faced trial like normal criminals. Many are still under trials. In contrast, those below 18 years of age were treated as juveniles under the 2000 Act, which came into effect from April 1,2001.
The Indian Supreme Court in a recent judgment set right this major dichotomy between the Acts of 1986 and that of 2000, and said all accused between the age group of 16-18 years, convicted or still facing trial as criminals across the country under the old law, would now be treated as juveniles under the new law.
A Bench comprising Altamas Kabir and Cyriac Joseph JJ. of the Indian Supreme Court said the intent of the Juvenile Justice Acts were 'to give children, who have for some reason or the other gone astray, to realise their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals'. For this reason, it held that two separate definitions of "juvenile", one terming them as below 16 years and the other less than 18 years of age, operating simultaneously was unacceptable.
Mr. Justice Kabir in his judgment made it clear that ’ [t] he law as now crystallised places beyond all doubt that all persons who were below the age of 18 vears on the date of com-
mission of the offence, even prior to April 1, 2001, would be treated as juveniles, even if the claim of juvenility was raised after they had ' attained the age of 18 years on or before the commencement of the Act and were undergoing sentence upon being convicted'(as the part of judgment quoted in the report ofTimes of India on 7 May 2009).
This path finding judgment from the apex court of India came following a plea of one Hari Ram, who was facing trial as a normal criminal being disqualified to be treated as a juvenile under the 1986 law for he was 17 years of age at the time of commission of the crime. The Supreme Court bench allowed the plea
and commented that the implementation of the Juvenile Justice Act 'requires a complete change in the mindset of those who are vested with the authority of enforcing the same, without which it will be almost impossible to achieve the objects of the Act'.
It may be mentioned here that determination of age of juvenile offenders is a serious problem in Bangladesh legal system also. The definition of child or juvenile is not uniform in the laws of Bangladesh. Different laws have defined children for their criminal responsibilities in different ways. According to Bangladesh Penal Code 1860, the age of criminal responsibility begins at the age of nine.
Section 82 says that 'Nothing is an offence, which is done by a child under nine years of age', the following section provides that 'Nothing is an offence which is done by a child above nine years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion'.
However, for the purpose of juvenile justice administration the Children Act of 1974 defines a child as any person under the age of 16 years.
Bangladesh is also a party to United Nations Convention on the Rights of Children (UNCRC). The UNCRC defines a child as any person under the age of 18 years and requires the States Parties to set a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. Though the Convention does not set any particular minimum age of criminal responsibility, the United Nations Committee responsible for monitoring the compliance with the UNCRC has criticised jurisdictions in which the age is set at 10 or below.
The child population under age 18 is around 60 million in Bangladesh. Various researches suggest that these children, specially the city children, are prone to involve in different criminal activities.
Hence, proper functioning of the juvenile justice system is a great concern and for that purpose the determination of age of juvenile offenders is extremely important. Here, Bangladesh has a lesson to learn from its Indian counterpart.
Zahidul Islam Biswas is an advocate of the Supreme Court of Bangladesh. He is currently with the Centre for the Study of Law a^a Governance, Jawaharlal Nehru University, New Delhi.