Juvenile New Delhi rapist's sentence set by law, not judicial whim

India's most notorious and nerve-wrenching criminal case, the gang rape and murder of a 23-year-old paramedical student by six men in a moving bus in New Delhi on December 16 night last year, is in the news once again.

The Juvenile Justice Board (JJB) announced recently its verdict on the sole juvenile accused and gave him the maximum possible sentence of three years in a reformatory. This was the first verdict in the case. The trial court will announce Tuesday its verdict on the rest of the accused, all of them adults, one of whom committed suicide in Delhi's Tihar jail in March this year.

The family members of the gang rape victim, who succumbed to her serious injuries 13 days later in a Singapore hospital, expressed their dismay at the JJB verdict and vowed to appeal against it in a higher court.

The verdict sent shock waves throughout the country. However, those who are opposing the verdict do not understand the law of the land and that's why their outrage, though morally justified, will be futile.

The rape victim's family members had lost their case shortly after the juvenile accused was made to undergo an age determination test.

He was 17 when he committed the crime. Investigation confirmed that he was indeed a juvenile. As per Indian laws, criminals below the age of 18 cannot be tried for their alleged crime in a regular court of law. Instead such juveniles are to be tried by the JJB.

Indian laws also stipulate that the maximum punishment a JJB can hand down is a three-year sentence. Moreover, even this sentence has to be served in a reformatory, not a regular jail.

This is what the JJB has done. Its hands were tied by the laws. The JJB cannot invent a sentence which is not in the statute books.

RPN Singh, India's junior minister for home affairs, made the situation clear. "I understand that a lot of people are disappointed with the verdict of the JJB. He has been given the maximum punishment possible under juvenile law. People are demanding a stringent punishment but that can only happen if the laws are changed. Government cannot function with anger, it can only function according to the law. At least we know that the juvenile was given the maximum punishment under the juvenile law," Singh said.

The minister is right. The juvenile convict can watch TV and play games while serving his sentence in a separate cabin in a Delhi reformatory. There is nothing that the government or the judiciary can do about it.

This calls for a thorough revamp of the Indian judicial system where punishment is determined on the degree of the crime, not the age of the accused. The issue had generated a heated debate inside and outside the Indian parliament when the gang rape came to light on December 17.

The iron was hot then and the Indian lawmakers could have struck. But they failed to do so despite immense pressure created by the media.

Now it is highly unlikely that the lawmakers will take action. Meatier issues have come up between then and now. India is in election mode and parliamentary elections have to be completed within eight months from now.

Apart from fighting one another in and outside parliament, Indian lawmakers and all the political parties are readying themselves for the general elections. Amending the law to allow more flexibility in the sentencing of juveniles accused of heinous crimes is nowhere on the radar screens of Indian lawmakers currently.

And whatever the law, that oldest of judicial principles, nullum crimen, nulla poena sine praevia lege poenali, (no crime and no punishment without a pre-existing law that attains to it) applies.

In the case of this 17-year-old, the punishment is fixed, and any new law won't change it. Regrettable as that is, would we rather have a government or judges that could alter the law on a whim?

The author is a New Delhi-based journalist-author and a political commentator. bhootnath004@yahoo.com.