The Other Side of Juvenile Justice by Bharti Ali and Enakshi Ganguly Thukral

 Sunima is now 12 years old. When she was seven, her neighbour who was about 19 years, forcibly took her inside his home and brutally raped her. She had to be hospitalised. The medical records showed rape. Because it was difficult to determine the age of the alleged accused, to begin with he was placed for a month in an adult jail.

He pleaded juvenility despite the fact that he had voted in the last elections. Law took its course. On the fact that his school leaving certificate based on his mother’s affidavit (which was not even duly attested) showed him to be a minor at the time of the offence, he was moved to a children’s observation home. He remained there for a month and a half, whereupon he was given bail. A medical test was done which showed him to be in the age group of 19-22 years.

In their evidence three doctors clearly state that the age of the abuser at the time of offence was 19 years or more and in no case less than that.  Despite this, based on the rules of the Juvenile Justice (Care and Protection) Act 2000 (JJA ACT) which gives the Magistrates in the Juvenile Justice Board (JJB) a discretionary power to give a benefit of one year on age verification by a medical board, he was declared to be less than 18 years at the time of the offence. He was therefore treated as a Juvenile in Conflict with Law.

Further, although convicted for rape after two and a half years of proceedings, the one month spent in the adult jail and the one and a half months in an observation home prior to bail was considered as sufficient treatment for the offence! Indeed there was no question of reform ever considered.

Sunima and her family were shattered. There had been no State support for her medical treatment, no trauma counselling and now as far as they were concerned the man who had raped Sunima was walking free. To top it all he was threatening and intimidating them.

So they went to the JJB and asked for a copy of the order so that they could look for possibilities of seeking other judicial remedies. Interpreting the JJ Act, the learned Magistrate now refused them the order saying it would “violate the right of privacy and confidentiality” of the juvenile perpetrator.  

Not only Sunima felt a sense of injustice, she was now even being denied any further remedy on grounds of protecting the rights of the so called juvenile – and this when the constitution gives every victim the right to appeal. Without a copy of the order how does a complainant decide on the next course of action and prepare grounds for it?

Sunima is not alone. Harsha is also 7 years old. A seventeen year old boy forcibly inserted his penis into her mouth. Once again the case was before the learned JJB. This time the boy was acquitted. And yet once again the parents of the young girl who was brutally sexually abused went to the JJB asking for a copy of the order to understand why? And once again they were denied a copy. It was a simple NO! There were no explanation whatsoever – written or verbal. Though the juvenile justice law denies the right to appeal against an acquittal of a juvenile, does the victim not have a right to know the grounds on which her abuser was acquitted? 

Nowhere in the Act of the Rules has it been specified that victims can be denied copies of order. If at all it lays down that records are to be maintained so that there can be appeal or revision (Section  19 (2)). The only clear statement it makes on privacy and confidentiality is to ensure that the juvenile in conflict with law does not suffer any disqualification in employment. So why is the law being interpreted in this manner? Who is to decide whether the right of the juvenile in conflict with law over-rides that of the victim to seek judicial remedy-a fundamental civil and political right of every citizen? Where are rules of harmonious construction which all judicial officers are supposedly trained in?  

More importantly- who is this action based on skewed interpretation of the law helping? Surely not the victim who feels justice has been denied and has no further recourse. Nor the juvenile, if the purpose of the law is not only protection of juveniles but also reform with behavioural change, rehabilitation and social mainstreaming. This is certainly not the way!

Several individuals and organisations have been working consistently over the last decades to bring about a child friendly and just juvenile /child justice system in the country. It was only with this view that activists, jurists and scholars have worked to change the law. The Child Act 1960 gave way to the Juvenile Justice Act 1986 which further gave way to the present Juvenile Justice (Care and Protection) Act 2000, which was amended in 2006.

The intent at every stage was the same. It was an effort to address the question – “how can we best protect and rehabilitate the child in contact with the law?” This child may be one in need of care and protection or a child who has come in conflict with the law having committed “an offence” in the eyes of the law.

The philosophy is clear. Every child must be protected, treated with dignity, given justice and a chance to make a fresh start. It is to enable this that the privacy of the children has to be maintained and the law includes specific provisions to ensure that – the anonymity of the child is maintained throughout the judicial process; names and photographs are not to be made public; records of children are held confidential. All of these have to be done with the best interest of the child in view and based on the principle of non-discrimination. In protecting the rights of a juvenile, those of a victim cannot not be violated and ignored. This is the basic principle of natural justice, which cannot be taught in any class room or training programme. This must be believed in, felt and upheld.