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Danish Raza, Hindustan Times | Updated: May 31, 2015 11:36 IST
The amendment to the Juvenile Justice (JJ) Act 2000 – recently passed by the Lok Sabha – allowing juveniles in the age group of 16-18 years accused of heinous crimes to be tried as adults has prompted a debate on India's legislation to deal with juvenile delinquents.
In its original form, the JJ Act gives powers to the Juvenile Justice Board (JJB) to conduct an inquiry to decide on offences committed by minors. The orders that the JJB can pass include allowing the juvenile to go home after advice or admonition, ordering him to perform community service, placing him under the care of a parent or guardian, and directing him to be placed under a fit institution or a special home for a maximum of three years. The Board can also place juveniles aged 16 or above, who have committed a heinous offence, in an institution called 'place of safety' for three years.
According to the proposed changes in the Act, in cases where the accused is between 16 and 18, the JJB will decide, on a case-by-case basis, whether the accused should be treated as an adult or as a child. The Board, aided by a team of experts, will decide this based on the assessment of the mental state of the accused.
The amendments also talk about the classification of different crimes as "petty", "serious" and "heinous", providing for differentiated processes for each category.
Under the existing law, only those 18 years and above are tried under IPC.
Many see the proposed amendments as a sign of the central government bowing to public clamour for a tough law to deal with hardened juvenile criminals, that spiked in the wake of the December 16, 2012 gang-rape case. The JJB sent one of the offenders, a juvenile, to an observation home for three years.
A major criticism to the proposed changes is that the existing law was never implemented properly.
"The JJA (2000) has not been implemented completely and the present government has amended the act without contextualising the act from the parens patriea philosophy. Additionally, the budget allocation for the juvenile justice system, infrastructure, man power is abysmal. Without gauging the output of the existing JJ system, if the law has been amended it does not portend a bright future for children," said Dr Ruchi Sinha, project director of the resource centre for juvenile justice, Tata Institute of Social Sciences, Mumbai.
The Parliamentary Standing Committee which examined the bill also expressed reservations about the proposed changes. "The existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to a different or adult judicial system as it will go against articles 14 and 15(3) of the Constitution," the committee observed.
While the opponents have been negated, the government has attempted to ensure that the amended law will not be misused. A cabinet press release regarding the proposed changes said, "Since this assessment (the crime was committed as a child or as an adult) will take place by the JJB, which will have psychologists and social experts, it will ensure that the rights of the juvenile are duly protected."
Child rights activists have also questioned the assumption that extreme punitive punishment acts as a deterrent.
"Various studies conducted in America, after 25 years of the transfer system, have shown that children transferred to the adult criminal justice system commit more serious offences later in life compared to those children who were dealt with under the JJ system," said Enakshi Ganguly Thakurta, co-director, HAQ centre for child rights.
Dr Ved Kumari, faculty of law, Delhi University, agreed. "There is no mechanism in the world to determine whether the crime was committed with the mind of an adult or a child," she said.
However, the spurt in the number of crimes committed by juveniles is being cited in support of a harsher treatment of juvenile delinquents. "Considering that the rate of heinous crimes committed by juveniles has increased manifold, the proposed amendment is a welcome step," said senior lawyer Pinky Anand.
Dr Ved Kumari believes that data related to juvenile delinquents should be viewed in totality. "There is no rationale in looking at the absolute number in these years. One has to look at this increase in some context. For example, has there been a change in the rate of crime (committed by adults too) during this period or is it disproportionately high if we consider the total number of children in those age groups or is it abnormal compared to the rise in the adult crime?" she said.
In a political over-reaction to the horrific Nirbhaya case of 2012, which shocked and shook the national conscience, the Government has pushed through the Lok Sabha a Juvenile Justice Bill that would try and convict as adults children between 16 and 18 accused of serious crimes.
It's always a bad idea to make a sweeping law because of one case, but all the more so when the proposed change is based on emotion rather than research or facts. I'm not just arguing emotionally that kids shouldn't be punished like adults. The facts are that the proposed change doesn't work. There's plenty of evidence that transferring kids to the adult criminal justice system for trial and conviction has failed to prevent repeat offences, failed to reduce the juvenile crime rate and failed to promote public safety. Jail makes hardened criminals out of children. A US study has established that 80% of the juveniles released from adult prisons go on to commit more serious offences. So jailing more children will be neither in the best interests of the child nor of society as a whole.
Proponents of the Bill argue that crimes by juveniles are on the rise. Not true: Of the 472 million children in our country, only 1.2 % actually committed crimes in 2013. The number of children who committed "serious and heinous crimes" was miniscule. In 2013, of all the children apprehended for crimes under the Indian Penal Code, 2.17% were accused of murder and 3.5% were accused of rape. That is a total 5.6% of 1.2% of children – a tiny figure for whose crimes we are turning our system of justice upside down.
Worse, this provision will predominantly affect the country's poor and marginalised sections. A majority of the children in conflict with law come from poor homes. In 2013, 77.55% of the arrested children came from families with a monthly household income less than Rs.4,200, and 87% of the offenders had not even received a higher secondary education. We should be educating and training them, not punishing them.
Ironically we can't even be sure the child we're trying really is the age he appears to be. Kids who are today 14 were born at a time when the level of birth registration was just 58% (in 2001). In many cases parents give an earlier age just to get the child into school (ask Gen. V.K. Singh!) The law makes no allowances for this Indian reality. We may end up punishing a 15 year old child, thinking he's 16. If you're between 16 and 18 in India you can't vote, you can't drive, you can't inherit property – but under this Bill you can be sent to an adult prison for 20 years. Why can't the normally compassionate Maneka Gandhi see what's wrong with this picture?
It is really the Government's job to implement the existing provisions for rehabilitating children in conflict with the law. In our country, child protection under the law has been marred by insufficient investments, lack of adequate number of Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC), lack of institutional services such as Special Homes, and the absence of an effective monitoring mechanism. The Government cannot cast aside its responsibility by holding our children accountable for the failures of the juvenile rehabilitative system. The Government should fix the system, not bypass it and pass a law that victimises children. The Bill also creates a trial before the trial by giving the Juvenile Justice Board one month for a preliminary assessment of whether the child should be tried as an adult – a period so short that it could lead to a presumption of guilt, which itself violates the Constitution. As the Justice Verma Committee observed in 2013 while rejected the case for a draconian new law, "We cannot hold the child responsible for a crime before first providing him/her the basic rights given to him by the court."
I've argued in Parliament that the Bill violates constitutional protections as well as India's commitments before the United Nations. Most important, it betrays the trust of our nation's children that we will create an India that protects and nurtures them. This misguided change must not be allowed to become law.
The author is a Member of Parliament for Thiruvananthapuram Lok Sabha
The Lok Sabha recently passed amendments to the Juvenile Justice Act, as suggested by the Ministry of Women and Child Development. One very significant amendment is to treat juvenile offenders in the 16-18 age group committing heinous crimes, as adults and penalise them under the Indian Penal Code (IPC). It must be noted that IPC is an archaic colonial code the objective of which was not justice but to force people to mend their ways. Therefore, we must revisit the IPC and other such laws and reflect on them, time and again. While we do see the need for this amendment, we hope for its effective and meaningful implementation, with not just a blind follow up of the law which is limiting and unjust to the people of the society.
Incarceration as a method to treat juveniles would be an unethical and non-corrective measure. Since the nature of the same is not to develop child into a better person but only provides a negative environment to juveniles.
However, we must understand that women are increasingly facing brutal attacks from not just the 'adults', but from a mushrooming number of 'children' from the age group of 14-17 years. Delhi Police data of 2014 showed that 6 juveniles were committing offences each day. Out of total registered crime committed by juveniles, 111 were of heinous nature. NCRB data of 2013 shows that out of the 43,506 registered crimes by the minors, 28, 830 involved minors in the age group of 16-18 years. NCRB data additionally reveals that there was an alarming increase of 143 percent in rapes by juveniles from the year 2002 to 2012. This gruesome reality has to be counter-attacked by some corrective measure in the society which cannot just attack the offenders but the roots in society.
In the United States, when a juvenile of a certain age commits a serious crime or violent crime, the jurisdiction of the juvenile court is waived and transferred to adult courts. Similarly in UK, they have a special type of 'Youth Court' which issue community sentences, youth detention and rehabilitation programs.
There is a dire need for reform in our judicial system and for laws which must meticulously investigate each and every case. Such cases must be reviewed by a team of experts set up by the Juvenile Justice Board. The team should include psychologists, lawyers, and civil society groups who can provide a holistic view of the case by ascertaining different dimensions within it and help in bringing justice to the victim. There are corrective centres for juveniles in many countries that are largely housed separately from the serious crime adult offenders and provide education to overhaul their mindset and better their future.
It is also vital to not only look at the figure of the juvenile's age but the nature of the crime and the intent with which he carries out an attack on the women. It should be reckoned that the juvenile was in full control and knew of the repercussions of the crime.
We do realise that corporal punishment is not a corrective measure but we must also acknowledge the increasing brutality against women and girls, even by juveniles. We must remember that a brutal attack or even ogling at a girl in the public space emerges not from a juvenile's mind but is a larger manifestation of the misogyny he witnessed in society and learned from it to survive in the environment.
The author is director, Centre for Social Research