Justice cannot follow a tough act by Professor BB Pande


Justice cannot follow a tough act


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Equating juveniles with adult criminals is neither scientifically correct nor normatively defensible



The August 31 verdict of the Juvenile Justice Board (JJB) in the Delhi gang rape case, handing down a bare three-year custodial sentence to the juvenile member, has generated a fresh round of debate on the legality and desirability of juvenile justice itself: why should juveniles above 16 indulging in violent crimes not be treated as adult criminals? Why should juveniles who are privy to a heinous crime not be given the same punishment as others? Why should our juvenile justice law not follow the 1990s American society’s ‘get tough with violent juveniles’ approach? The debate has spilled over to visual and print media (Aparna Viswanathan’s article inThe Hindu , September 9, 2013, and scores of letters to the editor) as well as the pending Special Leave Petition in the Supreme Court ( Dr. Subramanian Swamy Vs. Raju , Member, JJB).

The American model

Our juvenile justice makes no distinction between the age group or the violent or non-violent criminality of the juveniles just like American society till the end of the 1980s, when the U.S. Supreme Court, in Stanford v. Kentucky (192 U.S.361 at 395-96 (1989)), strongly endorsed the observation of the Task Force on Sentencing Policy Towards Young Offenders thus: “Youth crime … is not exclusively the offender’s fault; offences by the young represent a failure of family, school and social system, which share responsibility for the development of America’s youth.”

However, in the U.S., things changed dramatically as the 1990s witnessed a shift towards retributive juvenile justice policy. Such a shift was the outcome of a massive rise in the incidence of juvenile offences (the rate of juvenile offending in the U.S. was almost half the total crime rate) as well as extraordinary violence and brutality of juvenile crimes. A substantially large percentage of juvenile crimes related to offences involving confrontation with victims (homicides, forcible rapes, aggravated assaults and robbery) and narcotic crimes. As a strong response, Congress felt compelled to resort to a “get tough” approach, leading to the amendment of the Federal and State juvenile justice laws by introducing transfer proceedings before the court in all cases where a juvenile above 15 years was involved in a violent crime or narcotics crime. The continued spiral of violent juvenile criminality evidenced in several school shooting cases involving juveniles less than 15 years led Congress to further tighten the re-criminalisation noose by leaving transfer or waiver to prosecutorial discretion without due process safeguards for many new kinds of delinquencies, and reducing the juvenile age limit to 14 or 12 years. In many States, the age limit was waived altogether. However, in recent times, under the influence of brain science research, the re-criminalisation trend appears to be abating, as evidenced by the U.S. Supreme Court ruling in Roper v Simmons (2005), which abolished the juvenile death penalty and later in a 2010 ruling in Graham v Florida , which prohibited sentencing juveniles of crimes other than homicide to life without parole.

Therefore, the U.S. re-criminalisation model has hardly any relevance for India where, for a period between 2001 and 2011, the juvenile delinquency rate has ranged between 1.6 to 2.1 per cent of the total crimes (as against half of the total crime rate in the U.S.) and of these only 5 to 8 per cent are violent crimes like murder and rape (as against a substantial percentage of violent crimes in the U.S.).

Brain science insights

There was very little scientific basis for the American re-criminalisation aberration, but it did inspire brain science experts to undertake a scientific exploration of the adolescent brain system and establish that any deviant behaviour is a function of two distinct sets of brain systems, namely, the socio-emotional system and the cognitive control system that involve different regions of the brain which mature along different timetables. Thus competence-related abilities mature by 16, but the capacity relevant to decisions about criminal culpability continues to mature till young adulthood. These findings of the MacArthur Foundation, Washington, are supported by later brain science researchers such as Laurence Steinberg who argues in his paper “Should the Science of Adolescent Brain Development Inform Public Policy?” ( Issues in Science and Technology , Spring 2012) thus: “Adolescents should be viewed as inherently less responsible than adults, and should be punished less harshly than adults, even when crimes they are convicted of are identical.”

Therefore, just because the public is angry with juvenile criminals, including the Delhi gang rape juvenile, should we disregard scientific evidence and reverse the long-accepted juvenile justice policy?

In line with U.N. norms

The roots of Indian juvenile justice can be traced to the 1920s when the Indian Jail Committee, 1919-20, for the first time, recommended a distinct and comprehensive handling of child offenders, leading to the enactment of the Children Act in several progressive provinces like Madras, West Bengal and Bombay, in 1920, 1922 and 1924 respectively. Dealing with child offenders through a different and exclusive system of justicing received a fresh and renewed impetus with the passage of the U.N. Rules for the Administration of Juvenile Justice, 1985, and the U.N. Convention on the Rights of the Child, 1989 — both the instruments are duly ratified by the Government of India. As a sequel to the U.N. Rules of 1985, the first Central law on the subject, the Juvenile Justice Act, 1986, was enacted with a view to imparting uniformity and bringing juvenile justice in line with the current international trends. The ratification of CRC 1989 in 1992 and the submission of Action Taken Report led to the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000.

This new juvenile justice law differed from the earlier laws in three important respects: first, the Juvenile Court had been replaced by a three-member Juvenile Justice Board (a magistrate and two social work members); second, the age of juvenility was raised for the male child from 16 to 18 years, and, third, custodial sentence under Section 15 (1) (g) was to be limited to a maximum of three years. Of the three, the latter two have become very controversial. The age issue was resolved very much under U.N. pressure, because the U.N. Committee on the Rights of the Child in its 23rd Session vide Resolution 26 and 27 (dated 23/02/2000) expressly observed: “Of particular concern to the U.N. Committee is the very low age of criminal responsibility … And possibility of trying boys between 16-18 as adults.” Raising the age to 18 was later supported by brain science scholars like Laurence Steinberg who takes it as “presumptive age of majority,” which is the mean between 15 and 22 years. However, the provisions relating to sentencing, particularly the limitation of three years on custodial sentence, are the weakest link in the juvenile justice law that calls for unmediated reform.

Need for reforms

The juvenile justice system is in operation throughout the country but very little effort has gone into creating the required infrastructure and developing skilled manpower. The J J Act 2000 has expanded the ambit of the law and created an obligation to cater to the adjudicatory and custodial needs of the 16-18 age group, without caring for their special needs. Particularly problematic is the limitation of a maximum period of three years for a custodial sentence. Such a short period is neither justifiable on grounds of deterrence nor adequate for any kind of reform programme. For example, under the U.K. system even for the most brutal crimes a juvenile is tried by a Youth Court, but sentenced at Her Majesty’s pleasure. In Re Rebert Thompson and Jon Venables , in 2000, the House of Lords was required to decide a matter of tariff and Chief Justice Lord Woolf agreed on an eight-year sentence because the main object of juvenile sentencing was to reform and ultimately rehabilitate the juvenile. In the words of Lord Woolf: “In the case of both these young men, the information before me makes it clear that they have done all that is open to them to redeem themselves. While their crime remains horrendous, they are entitled to credit for this.” Therefore, the most urgent reform in the juvenile justice law is to enhance the ranking of custodial sentence and increase its maximum limit, during which meaningful reform programme can be implemented to ensure that the juveniles in conflict with law are really redeemed and society feels it is adequately protected.

(The author is a former Professor of Law and a Member of the Juvenile Justice Drafting Committee and Chairman of the J J Rules 2007 Drafting Committee)