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Written by G Mohan Gopal I The Indian Express I December 22, 2015
The juvenile justice bill, to be debated by the Rajya Sabha today, confuses revenge with justice
Our Parliament is on the verge of committing a heinous crime against its youngest citizens as it discusses the Juvenile Justice (Care and Protection of Children) Bill, 2014 in the Rajya Sabha today. If it passes this bill, it would be placing a sword of Damocles over every Indian born after 1997, including children yet to be born.
Under current law, children below 18 years of age are subject to criminal action only in a specialised juvenile justice system that is required to reintegrate children, who are in conflict with the law, back into society as productive citizens. An underfunded and neglected juvenile justice system in India is far from realising this mandate at present. But that is a justification only to strengthen it, not to abandon a humane and rational policy.
The BJP government’s juvenile justice bill, already passed by the Lok Sabha, will reverse the existing law if it gets the Rajya Sabha’s nod. It would put children aged 16-18 years, who are accused of committing crimes punishable by seven or more years of imprisonment, in the adult criminal justice system.
The bill’s passage would imply that children in the age group of 16-18 years will be under constant risk of being thrown into a brutal and violent adult prison, if they are accused (with or without any basis) or convicted of a crime punishable by more than seven years. All children, including those belonging to the upper and middle classes, are at risk under the proposed law. The poor are typically the victims of the criminal justice system more than they are victims of crime. The new law will naturally be disproportionately applied against their children — especially children belonging to the SC, ST, OBC and minority communities.
In return, this change will bring no benefit to society. Crime will not be deterred by harsh punishment, as we have seen in the case of the Criminal Law (Amendment) Act, 2013, post the Nirbhaya rape case. It will not make India safer — it will actually put Indian society at greater risk. The 10,000 or so children transferred to adult prisons every year under the proposed amendment are likely to be indoctrinated in prison, by hardened criminals and terrorists, and are almost certain to be sucked into the world of crime. They are likely to be raped and dehumanised in adult prisons. Many will emerge from jail only to begin a career in crime, becoming dreaded criminals who commit horrific deeds. We have no capacity in our brutal, corrupt and broken prison system to prevent this outcome. There is little doubt that this bill will increase crime and make India less safe.
The law blindly copies and applies to India the failed, and much criticised, policy of the United States, which involves “transferring” children to the adult criminal justice system. The US has one of the worst systems of criminal justice in the world, with a high crime rate, high incidence of violence, massive corruption and brutality in the prison system, and the harshest punishment, including the highest rate of imprisonment.
The US is also the global laggard in juvenile justice. It is the only member country of the UN that has not ratified the UN convention on the rights of the child. It can, therefore, treat children in the US in a manner that does not comply with the global standards mandating how a civilised and humane nation must treat children who are in conflict with the law.
Indian conditions are very different from those in the US. We need a response that reflects our needs. That response is to strengthen the juvenile justice system, not to weaken and destroy it. The proposed law violates not only Indian constitutional standards but also our international obligations.
Then, why is this law being pushed through with support from so many MPs? The proposed bill is backed by a section of the public — mainly India’s more privileged upper and middle classes, who fear becoming victims of such crimes — that is very vocal with its opinions. Their uneducated view is that the only way to deal with crimes committed by 16-18-year-olds is to inflict maximum physical pain and mental suffering and establish deterrence. But if this approach worked, countries like China the US and Saudi Arabia would have had no crime at all. Nor would India have seen any rapes after the enactment of tough anti-rape legislation in the post-Nirbhaya period.
The new law codifies our feudal, bloodthirsty tradition of revenge, of gouging out 10 eyes for every eye lost, of taking 10 lives for every life lost. Our lawmakers seem to have been mesmerised by the frenzied chant of the lynch mob — “if you are old enough to rape, you are old enough to hang”.
We confuse revenge with justice, not realising that the two ideas are fundamentally opposed. Since the days of the Buddha, no idea of justice has room for vengeance. Gandhiji reminded us that an eye for an eye would make the whole world blind. Will the Rajya Sabha forget Gandhiji’s injunction at this crucial moment in our history and sanction vengeance against our children? Are we right in denying our 16-18-year-old children the slim chance that a juvenile justice system would give them — a chance to salvage their lives and become responsible and productive citizens — just so that we can satisfy our urge for vengeance?
There is not a shred of scientific evidence that points to any proven social benefit in sending 16-18-year-old children to adult prisons. On the contrary, this approach runs counter to international experience, which supports the current minimum age of 18 years for being subjected to the adult criminal justice system and, if anything, argues that it must be further raised.
Appeasing lynch mobs is not a sound basis for policymaking. There can be no Make in India unless we first make India just and humane for its youngest citizens. Keeping 16-18-year-olds in the juvenile justice system gives society the best chance to save their futures and save itself from them in future.
The writer is former director of the National Judicial Academy and former director of the National Law School of India, Bangalore