This is a guest post by KISHORE
In a significant move, the Ministry of Women and Child Development has decided to repeal and re-enact Juvenile Justice (Care and Protection of Children) Act 2000. Along with its claims to streamline adoption and foster care procedures, it also proposes that juveniles above 16 years of age involved in heinous crimes should be tried as adults under the Indian Penal Code.
This is not first time that such an amendment has been advocated. One senior leader of ruling party had already gone to the Supreme Court last year with a petition for lowering the age under the law. However his petition was refused and the Supreme Court opined that there was no need for amendment as the present law (JJ act 2000) holds constitutional validity. Now this leader’s party is in power and they do not need to go to the judiciary for changes as they themselves can do it in Parliament. It is also believed that the government is not even waiting for the report of the expert committee appointed by the Law Commission of India to examine the issue. The proposal however, has always been contested by the premier child rights body NCPCR, which said there cannot be any “compromise” on the age of a child as defined by the UN and in other international conventions. We wonder if the governments’ desperation to change the law is based on popular “sentiments” and not on “facts”.
The current debate over the Juvenile Justice Act started after the incidence of the Delhi gang rape case. This case is often used as a landmark to support the demand for lowering the age of definition of childhood. That is why it is important to look into this case to examine various aspects of this demand. Since December 2012 certain sections of the media and society have been insisting that the existing act is not adequate to deal with heinous crimes. After the conviction of a 17-year boy in the above case, a number of newspapers came out with headlines which implied that the ‘most brutal’ accused would go virtually scot-free. Some newspapers emphasised the specific nature of the alleged brutality, “the boy who brutalized her with an iron rod, pulled out her intestines, then cleaned the bus and made tea” and so forth; using these ‘facts’ to argue against the seemingly absurd sentence of only three years for the juvenile. No one had a copy of the court orders and these lines were also not part of the chargesheet filed by the police. According to the investigating officer Anil Sharma, while the police had earlier said the juvenile was the most brutal of all the accused, they had withdrawn this observation prior to the verdict. Thus we fail to understand on what basis these positions were taken by the media.
Certain voices in society were also spreading the myth that the juvenile involved in the Nirbhaya case would walk “free” as soon as he turns 18 because people above 18 cannot be kept in an observation home with other children. Once again it was baseless – the fact is that the JJ Act has clear provision of a place of safety for juveniles involved in such cases. We also have the opinion of legal experts who maintain that law has always had provision for differential treatment for adolescents who commit heinous crimes. However mainstream media continued its campaign on the basis of incorrect and un-verified facts to sensationalize the issue. The demand for lowering age in JJ Act is also based on such false statements. The proposed law is also based on assumption that we need to repeal existing law because we need differential treatment for this age group.
Some lawyers have cited examples of the United States that have amended their Juvenile justice law. According to them, the jurisdiction of the juvenile courts is automatically waved when a juvenile above a certain age commits a violent crime and the case is automatically transferred to an adult court in America. The important question is: has this been able to arrest crimes committed by juveniles in these countries? The experience suggests otherwise! According to Mr. Anant Asthana, High Court lawyer and child rights activist, changes in juvenile law in America were the result of aggressive campaigns of people like John Dilulio, a professor of politics and public affairs at Princeton University. Dilulio’s efforts in the US led to the doctrine of “Adult time for Adult crime”. As a result, children as young as 12 can also be tried in adult courts in some of the states in US. But what happened thereafter is learning for all of us. John Dilulio later regretted his calculations but it was too late, as American prisons kept swelling with an increasing youth population, contaminating incarcerated youths beyond the possibility of reform. Thereby, a process of reversal towards a pragmatic approach has started setting in globally.
Asthana refers to a book “Preventing and Reducing Juvenile Crime: A Comprehensive Framework”, by American scholar James C. Howell which gives an account of the myths created around juvenile crime, “Such myths have led to a perception of juvenile delinquency as equivalent to adult crime, and some observers have come to believe that turning juvenile offenders over to the criminal justice system is a solution. This has proved to be a flawed policy, however”.
It seems that government is not ready to look into scientific research which tells us for example that adolescents can take higher risks for little rewards. It is also established by various studies that juveniles involved in crimes need educational and reformative measures to rehabilitate them and punitive measures are not as effective as reformative measures. And this is the reason that JJ act is based on the principle of reformative justice and not on retributive justice. Should a government rely on expert opinion or popular sentiment before drafting such an important piece of legislation?
It is also important to debunk the popular opinion that crimes committed by juveniles have increased many-fold in the last decade. According to NCRB data only 25,125 of 23, 25,575 cognisable crimes were committed by persons below 18 years in 2011. This means that just 1.1% of the total crimes committed in this period was by juveniles, compare to their staggering proportion of the general population – 42 %. The comparative study of data in the last 10 years (2001-2011) suggests that there is only 0.2 % increase in crime by children below 18 years and there is a decrease in these figures between 2008 and 2011. The population of children between 16 and years is almost 75 million and their share in cases of rapes is less than I % – 0.002 %, to be precise. On top of it we do not have any basis to state that juveniles repeat offence because current law is not deterrent for them and transfer to adult court will deter them.
Some sections of the media have also twisted data related to “rapes” committed by the 16-18 age group. Some newspapers have highlighted the fact that rapes committed by juveniles in the 16 to-18 age group have increased by 330%. If we examine these figures closely and look into them in terms of absolute numbers, we will find that the situation is not nearly as bad as projected by these opinions. In terms of absolute numbers of rapes committed by this age group have increased from 399 to 1449 in the last decade, which is again not very big considering there are 75 million children in this age group.
These groups further argue that, the current system serves neither the purpose of rehabilitation nor deterrence against future crime because there are only 815 remand homes in India with a capacity of 35,000 which are not adequate to host 1.7 million juveniles accused in India. They also say that remand homes in India are not conducive to the reform and rehabilitate juveniles as envisioned by the principles enshrined in international law. Child rights group are in total agreement with them that our current infrastructure is not adequate for the proper implementation of the law. However this argument does not lead to change in the existing law but for more effective implementation of it.
The problem is that the implementation of the JJ act was always concentrated on one part of the law that addresses only “children in conflict with the law” and ignores other category of “children in need of care and protection”. The existing law gives equal importance to both the categories but our system is always preoccupied with the first category. As per law it is also government’s responsibility to provide protection to children in care and protection.
It is important to underline that neglecting children in need of care and protection leads children to “children in conflict with law”. If we take the example of the juvenile involved in the Nirbhaya case, we will find that he was living on the streets for the last several years and desperately needed care and protection by the law. It is known fact that children on the street are vulnerable to all kind of dangers and influences that can lead them towards crime. However our system failed to provide care and protection to him and now when such crimes are happening, certain groups have started questioning the adequacy of the law.
We as child rights groups are not defending or justifying the heinous crime committed by accused in this particular case or similar cases. However we are opposing a change in the existing law because of such isolated cases and on the bases of false propaganda. One case or some isolated cases cannot be made the basis of making substantive changes in law. Anybody remotely related to the legal fraternity will tell us that laws are not made on exception and exceptions cannot become the bases for law.
We the people of India demand an explanation from the ruling party who committed contrary in their manifesto to what they are doing, We believe that the problem is not in the existing law and the fact is that we never made a whole hearted effort to implement it. It is not justified to demand changes in something which has not been given a full opportunity to show its adequacy and effectiveness. It is also not justified to make changes in law on the basis of emotional outrage based on exaggerated and baseless facts.
The author works with terre des homes Germany India Programme, Delhi, an organization working on child rights. However, views expressed in article are personal.