India Has Taken A Rash Decision On Juveniles

NDTV I December 23, 2015

The Juvenile Justice Amendment Bill lowering the age of a juvenile from 18 to 16 years was passed in the Rajya Sabha after opposition parties like the Congress and the TMC resiled from their earlier stand of referring the amendment to a Select Committee for further deliberation.

The Left parties walked out of the Rajya Sabha in protest against the refusal of the Government to send the JJ Act Amendment Bill to a Select Committee as decided earlier. The Left MPs were specifically opposed to the proposal to lower the age of a juvenile from 18 to 16.

Further deliberation was all the more necessary since the Parliamentary Standing Committee of the HRD Ministry had unanimously rejected the recommendation for lowering the age of the juvenile from 18 to 16 years as proposed by the BJP government. It had held that the government was basing its argument on misleading data and that it violated certain provisions of the constitution. Apart from the CPI(M), there were other speakers from the Samajwadi Party, the NCP, and the DMK who also raised the demand, but at the end, the ayes carried the Bill through.

One of the reasons for the shift to a decision to pass the Bill without reference to a Select Committee was the successful role of the BJP, helped by sections of the media, in building up a hysterical campaign that it was because the Rajya Sabha was not passing the Bill that the juvenile in the Nirbhaya case was going to walk free. In fact, it was well known that the Act in any case had no retrospective effect, and that this would not have impacted in any way the Nirbhaya case, but this did not prevent a misleading and misinformative campaign. The entire focus in the media was not the argument for or against the amendment, but on the basis of the the specific Nirbhaya case and the images of the expressed grief of Jyoti's mother, Asha Devi.

After the High Court and Supreme Court rejected the petitions to prevent the juvenile from walking free, Asha Devi said that she felt let down and that all the assurances given to her proved to be lies. Who had given a grieving mother such false assurances? How did she come to believe that a change in law would affect her case? Is this not exploitation of grief and sorrow for political ends? Yet, day in and out, it was this grief which was used to mount an irrational campaign.

Regretfully, the Delhi Commission of Women (DCW) also became party to these false assurances, which is, perhaps, why Jyoti's mother accused the Commission of indulging in "drama." The Chairperson filed a petition on the utterly bizarre report pushed by interested parties that the juvenile had been " radicalized" by sharing a cell with a Kashmiri militant and posed a threat to society. Can an official institution such as the DCW make such grave accusations without any evidence on the basis of unverified press reports? Does she know that it was Subramanian Swamy, whose petition against the juvenile had been rejected by the Supreme Court, who first made this accusation which was never accepted in a single report of the Juvenile Justice Board? Further, just because an adolescent is a Kashmiri, does that automatically make him a recruiter for terrorist activity? Even worse, the DCW Chairperson made an entirely unverified statement that the juvenile showed "no remorse." Who told her that? Did she check with the Chair of the Juvenile Justice Board? It is extremely unfair that taking advantage of the confidentiality of all reports of the Board concerning juveniles, wild charges are made against an individual.

There can be no sympathy with any of those guilty, including the then juvenile, of the horrendous crime against Jyoti. But stick to the facts.The charge quoted by official institutions like the DCW that he was the most brutal of the criminals repeated ad nauseam in these three years is based on what? The investigation officer in the case has said it is not true that it was he who had committed the brutality with the iron rod. The charge sheet does not mention it either, nor does the report of the Juvenile Justice Board. Yet, it is this campaign which has dominated public debate on the issue.

In 2014 a three-judge bench of the Supreme Court specifically quoted the scientific evidence of the processes of brain development of adolescents as one of the reasons to reject eight petitions which sought to challenge the age of 18 in the JJ Act. In March 2014, a bench of the Supreme Court headed by the then Chief Justice P Sathasivan, along with Justices Ranjan Gogoi and Shivakirti Singh, in their judgement said "studies of adolescent anatomy clearly indicate that regions of the brain that regulate such things as foresight, impulse control, resistance to peer pressure are in a developing stage upto the age of eighteen.These are normative phenomenon that a teenager cannot control and not a pathological illness or defect…" This is not to justify juvenile crime but to find ways in which to address it.

However, when in the Rajya Sabha debate, a member raised the issue of development of the brain, the Minister made a totally confused reply. Maneka Gandhi said this is "nature versus nurture." How can a Minister refer to a debate which is about genetic traits in a person's nature as opposed to the environment which develops his/her nature, which is entirely different from what was being discussed, namely the physical anatomy of the brain? This just shows the utter lack of thought, fudging of data and the distortion of concepts in the discussion from the official side.

The issue of increase in juvenile crime, which was one of the main reasons cited for lowering the age to 16, is also entirely decontextualised. Yes, juvenile crime has increased, but not as a percentage of all crime.When our society is getting more and more violent, are our children not going to be influenced? For the last five years, juvenile crime as a proportion of total crime is 1.5 per cent. That's it. These are official stats from the National Crime Research Bureau. But the even more significant fact – that the percentage of repeat offences by those who have been through the reform process has in the last five years actually decreased from around 12 per cent to 5 per cent – was also not cited.

And who are these children? They are overwhelmingly the children of the poor. Of the 48,230 juveniles in custody in 2014, only 439 belonged to families who had an income over four lakh rupees a year. 37,000 belonged to families with an income of less that 50, 000 rupees a year or 6,000 rupees a month. Does it mean that because they are poor, their crimes should be ignored or they should be treated differently? Not at all; but to ignore the socio-economic characteristics of juvenile crime and to think that treating 16-year-old as adults is going to prevent further crime is a foolish proposition. Sending 16-year-olds to jails like Tihar to serve a seven-year sentence is more likely to create hardened criminals.

The present maximum term of three years in the JJ Act could have been enhanced through an amendment that after the three years, there could be a system of a halfway home in which the released juvenile/adult could stay, being monitored and supervised to assist in his/her mainstreaming with the aim of reform not retribution.

There are societies where children are tried under adult laws and institutions. Has it helped stop juvenile crime?

A good example is the United States of America. In 2000, by raising the juvenile age to 18, India complied with the UN Convention on the Rights of the Child. The United States of America was one of the countries which refused to comply with the Convention. In the US, the age of the juvenile differs and in some states is as low as 12-14 years. Hundreds of thousands of children are tried, sentenced and incarcerated under adult law. According to one assessment, 1.6 million arrests of juveniles were made during 2009-2010. According to another assessment, on any given day, there are 10,000 children in adult jails across America. But has this prevented juvenile crime? On the contrary, the US continues to have one of the highest crime rates among juveniles in the world.

It would have been better for justice if the JJ amendment had not been passed, if it had been referred to a Select Committee which could have weighed the various options, and come out with a law which is not one based on vengeance.