CHILD RIGHTS IN THE CRIMINAL JUSTICE SYSTEM: NEED FOR LAW REFORM Basically, between the age of 7 and 12, the CrPC provides for a presumption of innocence in favour of children, but if the prosecution can prove and provide evidence on the contrary, then the child can be prosecuted. But if the child is below seven years, then he or she enjoys absolute immunity and can in no circumstances be held liable. Such a child is doli incapax.6 In doli incapax under IPC, the presumption of Section 83 is rebuttable, and the burden of rebutting lies upon the defendant. Before 2015, the age of juvenile in conflict with law was 18 years.7 This was in consonance with the UN Convention on Rights of the Child which India has ratified.8 But after 2015, The Juvenile Justice (Care and Protection of Children) Act 2015, was passed by the Parliament of India amidst intense controversy, prolonged debates and street protests by child rights groups, as well as some members of Parliament.9 The need for this change and the shift in focus was the incident of 16 December 2012.10 6 7 8 9 10 Incapax in ‘doli incapax’ may refer to the inability to commit any crime because of the lack of understanding and nature of the act. This is a common law principle. Juvenile Justice (Care & Protection of Children) Act, 2000. The Convention on the Rights of the Child (CRC) was approved by the General Assembly of the United Nations on 20 November 1989. The Convention was formally opened for ratification on 26 January 1990, the Government of India ratified the CRC on 11 December 1992. Bajpai, Asha, “The Juvenile Justice (Care and Protection of Children) Act, 2015: An analysis,” Indian Law Review, 2:2, 191203, DOI: 10.1080/24730580.2018.1552233 On 16 December 2012, a 23-year-old paramedical student was brutally gang-raped by six men in a private bus in New Delhi. The victim later died. Five persons were apprehended in connection with the crime. One of them, identified as Raju (name changed to protect identity), was below 18 years of age on the date of commission of the crime. He was just a few months away from turning 18, which was the age of majority under the then prevailing Juvenile Justice (Care and Protection of Children) Act, 2000 (‘JJ Act 2000’). Accordingly, in compliance with the provisions of the JJ Act, 2000, he was referred for inquiry to the Juvenile Justice Board. India saw pitched battles over whether the law should be amended to treat juveniles between the age of 16 to 18 who had committed ‘heinous’ offences, as adult offenders. The reasoning was that if someone just below the legal limit of 18 commits a heinous crime like rape and murder, that merits harsh punishment, consequently their age should not give them an ‘easy way out’. The verdict of the JJB dated 31 August 2013 handed down three years stay in a special home for reformation and rehabilitation, to the juvenile member, as per the provisions of the JJ Act, 2000. This generated a fresh round of debate on the legality and the very existence of juvenile justice laws. Questions were again raised as to why should juveniles above the age of 16 indulging in violent crimes like rape and murder not be treated, and given the same tough punishment, as adult criminals. 49