This is no child’s play

August 24, 2013

The role of minors in heinous crimes has aroused public interest. Among the questions raised are: why should children be accorded different treatment from adults in matters of serious offences? What should be the age standard for differentiating a child from an adult? 

In July, the Supreme Court disposed of several petitions, filed mostly in the aftermath of the infamous Delhi gangrape incident of December 2012, which questioned the constitutional validity of the Juvenile Justice Act. These petitions had questioned the very idea of “different treatment to the child offender,” propagated way back in 1919-20 by the Indian Jail Committee. This principle, which was enshrined in the pre-independence Provincial Children Acts and was supported by Supreme Court rulings in the late 1970s and early 1980s, received legislative recognition in the first uniform and comprehensive Central Law Juvenile Justice Act, 1986, followed by the JJ Act. The UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985 and the UN Convention on the Rights of the Child, 1989 (ratified by the Government of India in 1992) significantly influenced our new laws in defining ‘juveniles’ and ‘children’, providing processing and dispositional alternatives. 

The petitions that challenged the Act did so on three grounds. 

•The JJ Act is violative of Articles 14 and 21 and thus ultra vires the Constitution 

•Section 2(k) and (l) of the Act that defines ‘juvenile’ or ‘child’ as any person below the age of 18 years runs contrary to Sections 82, 83 of Penal Code that confers total exemption to children below seven years of age and partial exemption to those below 12 years only. 

•Sections 19 and 21 that prohibit creating judicial records of juvenile proceedings and publication of juvenile names and identity are in conflict with the interests of the society. 

At stake in these hearings was over nine decades of juvenile justice jurisprudence in India. 

Fortunately, the Supreme Court squarely rebutted the constitutional ultra vires arguments in its ruling disposing of the petitions: “The JJ Act is in tune with the provisions of the Constitution and the various declarations and conventions adopted by the world community represented by the United Nations” (para 44). 

New jurisprudence 

In doing so, the court also propagated a thesis that after the adoption of the Constitution, a new jurisprudence relating to children evolved and different treatment to child offenders was a part of this new child-centric jurisprudence. The court was equally emphatic in its rejection of the arguments for lowering the age to 16 years for two main reasons: first, Article 1 of the UNCRC requires the state parties to treat all persons below 18, irrespective of gender, as children, and second, there is adequate scientific data to indicate that brain growth continues till the age of 18. Therefore, the court explicitly preferred to go with the “collective wisdom of the Parliament” on the issue of age. The court also appeared to be giving a fair chance to the petitioner when it invited scientific data to prove the earlier onset of cognitivity. This way the court answered and dismissed all the petitions in a logical and a legal manner. But was this enough? Since this verdict came from a three-judge Bench, it is likely to give to the juvenile justice law a fairly long lease of life. 

Reacting to failures

What prompted the petitioners in those cases to mount a challenge to the JJ Act? It is possible that a small section among them may have been opposed to juvenile justice law in principle, but a majority was simply reacting to failures in implementing the Act. 

They were convinced that the care and protection of under-privileged children was more or less a sham; that unscrupulous persons were deploying children for the commission of organised crimes such as drug racketeering and human trafficking; that uneducated young men pose a menace to girls and young women, and so on. In fact, many of these concerns were brought expressly to the attention of the court. The court’s own observation reveals it was fully aware of the risks of non-implemented or under-implemented juvenile justice law: “[…] it is […] better to try to re-integrate children with criminal propensities into [the] mainstream than to allow them to develop into hardened criminals, which does not augur well for the future.” (para 48)

In dismissing these petitions, why then did the court not go beyond the point of a simple “no”? Why did it not do anything more to address the anxieties of the interveners and scores of others who aspire for an effective juvenile justice system, and the growing despair reflected in the petitions? Why were those responsible for the implementation of juvenile justice law not asked awkward questions and not directed to work on an urgent action programme? 

It maybe be alright to talk of the virtues of judicial restraint and institutional conservatism in ordinary state of things, but when issues are raised concerning the most vulnerable sections of our society and doubts are raised about universally accepted norms and ideas, the occasion arises for a higher responsibility on public institutions to speak up loud and clear, and speak in a manner that will change things in the right direction. 

This is all the more important in a case like the present one, which had a Bench presided over by then Chief Justice Altmas Kabir, who knew more than anybody else about Indian children and who felt more than anyone else about them. 

The Hindu