The first legal hurdle, which the Mumbai Police will have to cross in court, is to ensure that two of the five gang rape accused, whose families have claimed that they are juveniles (below the age of 18), are proved to be adults who can be tried in a sessions court.
Otherwise, they will be sent to a Juvenile remand home and tried in a juvenile court, in which case they will be given a maximum ‘safe custody’ of three years.
The family of accused Chand Shaikh and Mohammed Kasim Mohammed Hafiz Shaikh have stated that the two are juveniles. However, the police have maintained that all five are above the age of 18 years.
The Juvenile Justice Act, reads a juvenile or child, according to section 2(k) of the Juvenile Justice Act, 2000, is a person who has not completed 18 years of age; according to section 2(l) of the said act “juvenile in conflict with law” means a juvenile who is alleged to have committed an offense.
So according to the law as it stands today, a “juvenile in conflict with law” would have to be dealt with according to the mechanism provided in the aforesaid act.
Soon after the December 2012 Delhi gang rape case of a para-medical student the debate over lowering the age of juvenile from 18 years to 16 years took precedent over other things.
However, as it stands today even after the recommendation of the State government appointed committee of former Justice CS Dharmadhikari, which suggested lowering the age of juvenile from 18 years to 15 years, a juvenile is any person below age 18 years.
Moreover, India is bound by the International Convention on the Rights of the child to which it is a signatory to.
According to the convention “The child, by reason of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection, before as well as after birth.
Thus if an accused is found to be juvenile at the time of the offense then s/he will have to be tried by the Juvenile Justice Board and not by a competent court. It is also that the accused can raise this claim at any time of the trial or even after judgement and the onus of proving or disproving the claim lies on both the accused and the police.
The effect of such order is retrospective.
The police will have to prove that the accused are not juveniles by providing their birth certificate, school leaving certificate and carrying out ossification test. X-rays of their chest, wrist, and shoulder would be taken and with help of a dental check come to an approximate actual age.
Commissioner of Police Satyapal Singh informed the media that all the accused were adults and the police had the necessary records to prove that in court.