This is a guest post by ENAKSHI GANGULY and ANANT ASTHANA
July 17 was an important day. Supreme Court announced its judgment refusing to interfere with the Juvenile Justice Act. This was with respect to the eight petitions that were filed in the wake of the alleged involvement of a juvenile in the rape and murder of a 23 year young girl on December 16, 2012. The boy, who was found to be below 18 years, was described by the media as the most heinous of the rapists, a monster and a beast, and even the main accused—and this even before the police had filed the charge –sheets based on statements of the witnesses and evidence gathered. Should there be a fair judicial process that decides the case based on scrutiny of relevant facts or should we let media undertake a trial?
As if that was not enough, this was followed by creating a panic of increased juvenile crime, which if unaddressed will destroy the society. The 8 petitions in the Supreme Court resulted from this panic. The final order on the involvement of this juvenile is awaited on the 25th of July. Then again we can expect outpourings of emotion and anger from sections of the public.
Anyone who has tried to defend a pragmatic, strategic and well-conceived juvenile crime prevention policy inbuilt in India’s juvenile Justice Law is being accused of being irrational, unjust and even an“enemy of society”. This is because this country has never had a serious debate on juvenile crime and there were always very few who were concerned about it. There is very little information or knowledge on the philosophy and understanding behind the juvenile justice law. This incident is probably the first time in the history of India that public at large has paid attention to juvenile crime. Unfortunately what they have been served with by the media to base their opinions on is bound to shape the popular public image of all juveniles. Instead of bringing this welfare legislation on to the priority of our government and promising better results on juvenile crime prevention, irresponsible and sensational media reporting has caused serious damage
Authors of this article are persons who work with victims of sexual violence as well as juvenile offenders. It is in our interest to see that victims get justice, but also to see that juvenile justice is implemented. In other words, we wish to see that rights of all children are protected and realised. It is not about rights of victims at the cost of rights of offenders.
In this context, it must be placed on record what the Juvenile Justice Act recognises that children who commit offences must be brought before the juvenile justice system. The system must not just assess the circumstances under which the child has offended and his/her socio-psychological condition, but also make an order with an individual care plan for the child. The idea is to make the juvenile offenders understand that they have committed an offence but because they are underage, they are being given a chance to reform and re-integrate into society as a responsible citizen. This is the basis of the treatment of the juvenile in question. This has been recognised the world over as a pragmatic and more effective approach to juvenile crime prevention.
No doubt data shows an increase in juvenile crimes, just as there is an increase in crimes by adults. At the same time the reality also is that despite this increase, juvenile crimes constitute only 1% of total crimes. It is important to note that this is of one of the main reasons the Supreme Court dismissed the petitions. It said “we do not think that any interference is necessary with the provisions of the Statute till such time as sufficient data is available to warrant any change in the provisions of the aforesaid Act and the Rules.”
Already some of the facts about the juvenile in question have turned out to be wrong. There was a rumour created by media that the juvenile will be released within 6 months, as soon he turns 18. Did it happen? No. There was a rumour that juvenile was the “main accused”. The reading of the charge sheet, which records the statements of both the victim and the prime witnesses, prepared by the police, tells us that it was Ram Singh (now deceased) who was the main accused. Apart from the presence of the juvenile, there is no mention of his role in detail. So should we not await the final order from the Magistrate of the Juvenile Justice Board before condemning him?
Coming to the question of amending the law. Amendments or improvements in the law on juveniles have been regularly undertaken. There were changes in 2000, in 2006, and again in 2011 and there was a process of further amendment going on just before the Dec 16 incident. During the deliberations, amendments being suggested in terms of reduction of age, treating them as adults, punishing them harsher etc. were discussed. Studies and experiences documented over the last four decades have shown that they have only put societies at greater peril and risk. It is therefore important to strengthen the implementation of provisions for reform and reintegration for children.
The main problem, as many point out, is the inadequate-indeed tardy implementation of the law. Children who have offended are not brought into the ‘system’, not because the law allows them to ‘get away’, but because of those who implement the law. But should children be penalised because the country has failed to implement the law meant for them? Hence should we not give children a chance by ensuring that the juvenile justice law is implemented in letter and spirit before denouncing it?
We must not repeat this mistake of exaggerating juvenile crime profile and cause serious damage to a well thought and systematically evolved juvenile crime policy, more so when we have precedents to learn from. Time and again the American experiment with juvenile crime is being cited. Hence it is important to examine the American reality in some detail here. 1990s was the time when United States witnessed an unprecedented onslaught on liberal juvenile justice policies, mostly fed by the unrealistic and panic driven media reporting such as “The tsunami is coming…Juvenile crime is going up and getting worse”, (USA Today 05.09.1996) and “America is being threatened by a growing cadre of cold –blooded teens called ‘superpredators’ (Christian Science Monitor 06.02.1997 ) or “The invasion of the Superpredators has burdened the United States with children capable of remorseless brutality” (London Times.16.02.1997). Responding to these reports, an angry citizenry panicked and forced politicians and policy makers to introduce harsher provisions and reduce the age for juvenility. Political Scientist John Dilulio, who at that time became the chief theorist on “young superpredators” and had advocated for harsh measures on children, later expressed regret about his assessment and predictions of juvenile crime and admitted that they were misplaced. In 2012 he went on to sign up as an amicus brief on behalf of a juvenile who pleaded in an American court to liberalise harsh laws. The regression fuelled primarily by media reporting since 1990s onwards caused havoc to the lives of millions of American youths, based on which a process of course correction started in 2005 and is going on since then. The American experience of falling prey to media frenzy and having suffered miserably is a telling story- something Indians need to consider seriously.
Do we in India want to go the same way?
(Enakshi Ganguly Thukral is the Co-Director of HAQ: Centre for Child Rights. Anant Asthana is an advocate who represents children.)