Laxmi Khawas, IILS
Age determination has been a tricky and controversial issue in juvenile justice. A number of cases have been decided by the courts in this regard. In the context of juvenile legislation in India, a juvenile is a person who has not completed eighteen years of age as stated in the Section 2 (k) of Juvenile Justice Act, 2000. Only children below seven to twelve years of age who are sufficiently mature to understand the repercussions if their act and children between twelve to eighteen years of age can be tried under Juvenile Justice Act as children below seven years of age have been granted blanket immunity, as mentioned above, by the Indian penal Code. The objective is not to treat such children as adults for their criminal behaviors but to reform and rehabilitate them. I call the issue of age determination controversial because there is no clarity on the point. Even in the case of Indian Penal Code, sections 82 and 83 provides that children below and above seven years of age but it is silent about seven year old children. Who is to determine the age bracket they fall in? Section 49 (1) of the Juvenile Justice Act, 2000 confers the power on competent authority to determine whether the person brought before it is a juvenile, if he/she appears to be so. But the procedure to determine juvenility of a person cannot be relied on. The two ways to determine age of the accused are documentary evidence and medical evidence.
In Jaya Mala v. Home Secretary, Government of J&K (AIR 1982 SC 1297) the apex court held that the age as ascertained by medical examination is not conclusive proof of age. It is mere opinion of the doctor and a margin of 2 years could be on either side. In another high profile case, Bhoop Ram v. State of UP (AIR 1989 SC 1329) the court held that in case of conflict between documentary evidence and medical report, the documentary evidence will be considered to be correct. This leads one to the conclusion that all that it needs to establish and convince court that a criminal is a juvenile is documentary proof. Now documentary proof is one of the easiest things to obtain in our country whether it is to get a license one is legally not entitled to or for furnishing age proof in the court. In such a case, even if we were to turn to medical examination, which is held not to be hundred percent conclusive proof by even medicos.
Smt. Kamlesh and anr. v. State of UP (2002 CriLJ 3680) the court maintained that a professional witness is prone to side with a party that engages his/her services. Thus, a doctor is not always truthful. Now, if age cannot be determined conclusively by using either documentary evidence or medical evidence, what is to be done? The Apex Court in Babloo Passi and anr. v. State of Jharkhand and anr. held that no fixed norm had been laid down by the Act for the age determination of a person and the plea of the juvenile must be judged strictly on its own merit.
Further in Pratap Singh v. State of Jharkhand (AIR 2005 SC 2731) where the court held that “the reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court.”
