Shubhankar Tiwari

The current method for the determination of age under the Juvenile Justice Act—the ossification test—is flawed.

INTRODUCTION

It is beyond a shadow of a doubt that ‘age determination’ has been one of the most debated aspects of the Juvenile Justice Act, 2015 (hereinafter, JJ Act). The controversy over the age of Jamia shooter Gopal Sharma is a recent example of that. The main reason behind this debate is that the JJ Act gives a certain level of privilege to the juveniles accused of a crime. One of such privileges, as held in Hari Ram v. State of Rajasthan is that the JJ Act is rehabilitative and not adversarial.

In this paper, the author discusses the current procedure of age determination under the JJ Act and identifies its inherent lacunae by deconstructing ossification as a process. While the judiciary has already made it clear that merely a blind and mechanical view cannot be adopted for age determination, this article shall explore the possibility of reaching a medico-legal solution, which is an amalgamation of both- the objective and subjective perspectives.

Furthermore, it is clarified at the outset that no test/ method in this respect has been given a conclusive value by the Indian courts to date. However, the primary cause of concern is the frequent usage of the ossification test for age determination and the reason why it is problematic.

STATUS QUO

According to Section 94(2) (iii) of the JJ Act, in a situation where the accused is not able to produce his/her date of birth certificate or matriculation certificate, ossification test is used to determine whether his/her claim to being a juvenile holds good or not. It is conducted by the Child Welfare Committee (CWC), an institution established in pursuit of seeking juvenile justice in its truest sense.

Apart from the unavailability of the required documents for age determination, the false statement of age made by the parents/guardians at the time of admission to schools is also an equally problematic situation before us. This was first recognized in Brij Mohan Singh v. Priya Brat Narain Sinha and then substantiated upon in Umesh Chandra v. State Of Rajasthan. Sometimes even schools have aided the students on a mass scale in fudging/ fabricating their age and thereby falsely claiming the benefit of juvenility. Moreover, there have been instances when the courts rejected the documentary evidence when the same was not in compliance with the Indian Evidence Act, 1872. Consequently, the inherent vacuum in the legal proofs/ documents to provide concrete evidence of age increases the dependency of the courts on these tests.

It is noteworthy that Section 94(2) (iii) of the JJ Act does use the phrase ‘ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board‘. However, presently in India, no other method of age determination is used apart from the ossification test for the purposes of the JJ Act. Such a practice goes against the very spirit of this section. Furthermore, the very fact that the ossification test has specifically and separately been mentioned as a test for age determination in the section, shows the legislative bias in its favour. However, the credibility of the ossification test has been called into question on numerous occasions, which raises doubt over its utility in the context of our juvenile justice system.

Notably, in the year 2016, a division bench of the Hon’ble Supreme Court of India comprising of Justice Banumathi and Justice Sikri, regarded the ossification test as a persuasive but not a conclusive test for age determination. The main reason for the same was the high margin of error associated with the test, which extends up to two years on either side.

There are further issues that the ossification test raises, which the author seeks to identify and address in the next two sections. The author would then utilize the broad scope of Section 94(2) (iii) to suggest a more viable and reliable alternative for age determination.

DECONSTRUCTING OSSIFICATION

Before delving into the intricacies of this discussion, it is better to get acquainted with the process of ossification in the first place. Ossification leads to the formation of bone cells (osteoblasts), which is why it’s also known as osteogenesis. Since the ability to form bones is associated with biological and skeletal maturity, ossification qualifies as a test for age determination. The standard and most common procedure compare the X-ray of the left wrist (as it is less prone to fracture and deformation) with the radiographs present in the standard atlas (Greulich & Pyle method) or the local regions of interests. Prima facie, the method does look alluring and reliable as it was developed after years of testing and research. However, a bare perusal of the medical limitations of this test indicates that the uncertainties clearly outweigh the evidence.

Accuracy is the highlight of a good test for age determination. The simple reason is the high stakes of the people at margin i.e., whose estimated age through the test lies in the 15-19 years range. This range becomes even more significant in light of the 2015 Amendment regarding the trial of a child above 16 years as an adult in case of heinous offences. It is noteworthy that higher punishment is not the only reason why the stakes of juveniles in such a case are high. Such kind of a trial snatches away their Right to Fresh Start according to which their criminal records would be destroyed post-rehabilitation. This clearly indicates how essential it is to come up with an accurate age estimate.

As of now, in a situation when the age estimated through the ossification test may fall on either side of the 16^th or the 18^th year mark, the Indian courts award any benefit of the doubt to the accused, as was held in Shweta Gulati v. State (NCT of Delhi). However, the high margin of doubt obtained by the ossification test is prone to manipulation by its beneficiaries.

WHY IS THE MARGIN OF ERROR SO HIGH?

The major problem with a test focusing on skeletal examination is the genetic distinction in the growth rate of the bones of different individuals. Ethnicity-based differences in the skeletal proportions have commonly been observed. For instance, the difference in the built of an African and a southeast Asian. Even within India, such differences are noticeable across different regions. Significant differences in skeletal growth patterns have been noticed even amongst siblings. Ultimately, it becomes immensely difficult to set a fixed standard for skeletal examination, which may truly be precise for age determination.

Individuals may attain skeletal maturity as early as 15 years or as late as 20 years. Apart from these normal trends, the increasing cases of deficiency diseases like osteogenesis imperfecta and osteomalacia (rickets) also increase the variance and thereby decrease the degree of precision. The main reason behind this variance is that the standard atlas used as a reference in the ossification test does not take into account these skeletal deformities. This is to say that, it places the people with and without such deformities on the same pedestal.

The UNICEF report on The State of the World’s Children 2019, states that 35% of children below the age of 5 years in India have stunted growth and deficiency of Vitamin D, which eventually leads to skeletal deformities. This very figure shows that having one standard of age determination for everyone is critically problematic. And the very fact that such skeletal deformities have not been taken into account shows how unreliable the margin of error obtained through the ossification test, i.e., two years is.

While the atlas might provide us metrics to assess whether the bone development is taking at a healthy pace or not, it certainly cannot give an accurate age estimate. Even these metrics per se are also not very reliable since they’re based on a study conducted on 1000 white middle-class American children way back in 1958-59. This further buttresses the contention that ‘ossification test’ when placed in the Indian context is not an accurate but rather an obscure measure to decide the fate of an accused.

WHAT IS THE SOLUTION TO THIS PROBLEM?

In light of these discrepancies, the question arises as to what could be an appropriate solution to this problem? This is where we enter the realm of forensic dentistry, which is currently used by the U.S. Immigration Department for age determination. Under forensic dentistry, the author proposes the Demirijian Method. It is primarily based on the stages of development of the mandibular third molar (commonly known as, wisdom tooth). Further, this test is specifically concerned with individuals in the range of 15-19 years of age, making it suitable for the purposes of the JJ Act. This is because the development of the roots of the wisdom tooth takes place in this period. Several other features of this test also render this test suitable for adoption in the Indian context.

Firstly, the enamel of a tooth is one of the strongest and most resilient parts of the human body. Moreover, as teeth are protected by various hard and soft tissues, they are resistant to external factors like high temperature, acidic or alkaline decomposition, etc. Secondly, this measure has a comparatively lower margin of deviation in the estimated age, i.e., 0.76 years. Thirdly, even across different ethnic groups, there are very few deviations in the growth rate, formation, and structure of the wisdom tooth. Fourthly, this test not only keeps into account the standard emergence phase (commonly, but wrongly referred to as ‘eruption’) but also other anomalies like overcrowding of the molar, ankylosis, or the delayed emergence or extraction of the milk teeth. Fifthly, it is noteworthy that forensic dentistry is already used by organizations like the Indian Dental Association for conducting dental research and orthodontic treatments. So the question of whether we have ample technological resources to introduce this test for age determination is also satisfactorily addressed.

There are several other tests for age determination that may be considered as a replacement for the ossification test. In the field of the skeletal examination itself, the advanced methods like Tanner & Whitehouse, Gilsanz & Ratibin and Magnetic Resonance Imaging (MRI test) are relatively newer and use better quality equipment for age determination than the current standard ossification test. However, the superiority of forensic dentistry over the skeletal examination, as proved above, always gives Demirijian method an edge over others. Proven facts like dental growth rate deviation being lesser than the skeletal growth rate deviation and that the resilience of teeth is higher than that of the bones further strengthen this contention.

Moreover, even in the realm of forensic dentistry itself, there are other tests like the Bang & Ramm’s method of dentine translucency. However, this test is only useful to determine the age of older persons as teeth begin to appear translucent post the third decade of human life. Therefore, for the purposes of the JJ Act, Demirijian’s method stands out and remains the most viable choice.

CONCLUSION

In a country of 1.3 billion where a significant portion of the population lacks the means to supply the courts with relevant documents to prove their age, our dependency on these technical measures is already very high. Problems like fudging or forgery of documents aggravate the concerns further. However, the aforementioned analysis shows that forensic dentistry, i.e., Demirijian’s method of age determination, adequately addresses the problems of accuracy and variance associated with the ossification test without creating any known problems on its own as of yet. Moreover, in light of the 2015 Amendment, after which our Juvenile Justice system no longer remains an absolutely welfare-based model, it becomes all the more apropos to question the use of the problematic ossification test. At this point, Demirijian’s method appears to be the most appealing answer to this problem.

The author is a student at the National Law University, Delhi.

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