By Sagnik Dutta I Front Line I January 2, 2016

Interview with Ved Kumari, Professor of Law, University of Delhi, and Chairperson of the Delhi Judicial Academy. By Sagnik Dutta

Ved Kumari is a professor of Law at the University of Delhi and the chairperson of the Delhi Judicial Academy. She has worked on issues pertaining to juvenile justice for the past 35 years. She has written extensively on juvenile justice in India, child and youth rights and access to justice. In an interview to Frontline, she spoke about the larger implications of the provisions of the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015, the problems with the existing juvenile justice system, and the international experience. Excerpts:

The Juvenile Justice (Care and Protection of Children) Amendment Bill has brought into focus the reformatory approach versus the deterrent approach to justice. What are your views on the Bill?

The proposed Bill will take us back by several decades, into the 1920s. Under the Children’s Acts passed in the 1920s, the incarceration of children in prisons was permitted under certain exceptional circumstances. The first piece of legislation enacted by Parliament, namely the Children’s Act, 1960, which was applicable to the Union Territories, prohibited the imposition of a sentence of imprisonment or use of jails for children under any circumstances. A child was defined in this Act as boys below the age of 16 and girls below the age of 18. The States enacted their respective Children’s Act following the same pattern. In 1986, Parliament passed the Juvenile Justice Act, which applied to the whole of India. The Juvenile Justice Act was re-enacted in 2000 to further expand the scope of children to include boys below the age of 18, keeping in mind the provisions of the United Nations Convention on the Rights of the Child (UNCRC), 1989. Subsequently, the question of whether the Juvenile Justice Act will apply to a child committing serious offences, including offences which carry the death sentence or life imprisonment, was posed before the Supreme Court. The Supreme Court, in Rohtas vs State of Haryana [1979] and Raghbir vs State of Haryana [1981], held that the Children’s Act would be applicable in all such cases. An amendment to the Juvenile Justice Act in 2006 inserted an explanation to make it clear that in the case of persons below the age of 18 on the date of commission of the offence, final orders would be made in accordance with the provisions of the Act. The present Bill will only take us back from a progressive piece of legislation.

The government claims that National Crime Records Bureau [NCRB] data show a rise in the rate of crimes committed by juvenile offenders from 52 per cent to 66 per cent between 2003 and 2013, a claim that has been countered by the Parliamentary Standing Committee report. Your comments.

The data presented by the government are misleading. One cannot look at the rise in the crimes committed by juvenile offenders without factoring in the growth of the child population during the period. The population of children under the age of 18 went up from 41.5 crore in 2003 to 43.5 crore in 2012 as per the United Nations Children’s Fund’s [UNICEF] State of the World’s Children Report. The more relevant statistic in this context is the rate of juvenile crime as a percentage of the total crimes committed. This share went up from 1 per cent in 2003 to 1.2 per cent in 2013. So there has been no drastic increase in the crimes committed by children to warrant this new Bill. The incidence of rape by children as a percentage of the total number of rapes went up from 2.9 per cent in 2003 to 4.4 per cent in 2013. But one has to factor in the expansion of the definition of rape in 2013 as well as the raising of the age of consent for sex from 16 to 18 years under the Protection of Children Against Sexual Offences Act, 2012. [The Criminal Law Amendment Act, 2013, expanded the definition of rape in the Indian Penal Code to include all forms of non-consensual penetrative sexual acts by men on women.]

What are your views on the contentious provision of the Bill, the one which allows children in the age group of 16 to 18 to be treated as adults if they committed heinous offences?

The empirical evidence does not suggest that there is any pressing need to introduce this principle of exclusion of some children from the reformatory system as there is no drastic increase in the rate of crimes committed by children. When the policy of exclusion of juveniles committing serious crimes was introduced in the United States in 1996, they were experiencing a much higher rate of crimes committed by juveniles. There were about 8,000 crimes committed by juveniles out of a lakh. The government is merely giving in to reactionary ideas.

Also, it is important to note that the term “heinous offences” used in the Bill does not exist in the Indian criminal justice system. Schedule I of the Code of Criminal Procedure categorises offences as cognisable, non-cognisable, bailable and non-bailable. The Bill classifies all offences that carry a punishment of seven years or more as “heinous”. Union Women and Child Development Minister Maneka Gandhi misled Parliament by reading out a list of five “heinous” offences. The rationale behind the creation of the category of “heinous offences” is not clear. There are offences other than rape or murder which carry a prison term of seven years or more. The Centre for Child and the Law in Bengaluru has compiled a list of 43 such offences. Persons above 16 years can now face severe punishments even for offences that are not homicidal in nature, such as trading in certain drugs or attempts to commit robbery armed with a weapon.

Some other jurisdictions, including those of the United Kingsom and the United States, have tried to create a separate category of law for treatment of children accused of heinous offences. Has this helped in reducing the number of juvenile offenders?

Not only have these measures not been successful, but the jurisdictions that introduced these measures have acknowledged it as a mistake and are going back on this. The U.S. Supreme Court imposed limitations on the penal approach towards juvenile crime in a number of recent decisions. In Roper vs Simmons, 2005, it ruled that the death penalty for juvenile offenders was unconstitutional. In Sullivan vs Florida, 2010, the court ruled that juvenile offenders committing homicidal offences could not be given life imprisonment without parole. In Graham vs Florida, 2010, it ruled that juvenile offenders could not be granted life imprisonment without the possibility of release in case of any offence.

Is there any empirical evidence to suggest a correlation between the socio-economic strata and the commission of crime by juvenile offenders?

According to the NCRB annual report of 2013, about 50.2 per cent of juveniles belonged to poor families whose annual income was up to Rs.25,000. A large number of juveniles were also illiterate or had received education only up to the primary level. The lack of proper education as well as guidance and supervision leads to juvenile crimes.

What were the issues with the implementation of the Juvenile Justice Act, 2000, and what steps could have been taken to improve the same?

The Minister [Maneka Gandhi] informed Parliament that a juvenile justice board existed in every district. This is far from reality. Also, a number of boards do not have regular juvenile welfare officers. Almost 30 years after the passage of the Juvenile Justice Act, issues pertaining to its proper implementation still persist. The government could have focussed on resolving them.

What has been the position of the Supreme Court and the lower courts in cases where they have dealt with child offenders committing serious or heinous offences?

In Salil Bali vs Union of India, 2013 and Subramanian Swamy vs Raju, 2014, the Supreme Court upheld the constitutionality of the Juvenile Justice Act, 2000, and refused to interfere with the provisions of the Act fixing 18 years as the age of juveniles.

But in a more recent order, Gaurav Kumar vs State of Haryana in 2015, the Supreme Court asked the State legislature to rethink an effective law to deal with crimes committed by juveniles.

Source