Cover Story

Of juveniles and justice

Print edition : January 22, 2016

The juvenile accused in the December 2012 gang rape and murder, after the verdict from the Juvenile Justice Board in New Delhi on August 31, 2013. Photo: Sushil Kumar Verma

The juvenile accused in the December 2012 gang rape and murder, after the verdict from the Juvenile Justice Board in New Delhi on August 31, 2013. Photo: Sushil Kumar Verma

The mother (second from left) and brother (right) of the victim in the 2012 gang rape at a rally in New Delhi on December 21, 2015, in protest against the release of the juvenile convict. The debate in parliament on the new Bill on juvenile justice was conducted under the shadow of the controversy surrounding his release. Photo: MONEY SHARMA/AFP

Maneka Gandhi, Minister of Women and Child Development. She moved the new Bill bringing down the age of responsibility for juvenile offenders. Photo: PTI

The passage of the Juvenile Justice (Care and Protection of Children)Bill, 2015, in Parliament exposes the vulnerability of the system in the wake of a misinformed and hysterical campaign for legislative changes to punish juveniles committing heinous crimes as adults.

POLITICAL maturity is considered to be an attribute of Members of the Rajya Sabha. Indirectly elected, they are expected to keep a distance from the compulsions of electoral politics while deliberating on key legislation. More importantly, as members of the second chamber, they are supposed to give due weight to reason rather than let themselves be swayed by emotions.

On December 22, however, this theoretical understanding of the Council of States came under severe test when the Upper House debated the Juvenile Justice (Care and Protection of Children) Bill, 2015, which was already passed by the Lok Sabha on May 7. Like the Lok Sabha, the Rajya Sabha, too, passed the Bill with a voice vote, overlooking serious concerns expressed by some members over certain provisions that made a mockery of the government’s intent to fulfil certain objectives of the Bill.

It was obvious that the Bill’s hasty passage in the Rajya Sabha was a surrender to the public pressure mounted against the release of the juvenile who was convicted in the case of the gang rape and murder of 23-year-old “Nirbhaya” in the capital on December 16, 2012. The juvenile, now 21, was released on December 20, three years after his conviction and sentencing, under the Juvenile Justice Act, 2000. He was taken to an undisclosed destination to protect him from public fury. To many observers, the public anger had more to do with inadequate punishment to the juvenile under the old Act rather than with the absence of legal provisions to send a juvenile committing a heinous offence to an adult prison. Seen in this light, even the 2015 Bill appeared to be a disproportionate response to the prevailing public sentiment.

The Bill, piloted by Minister of Women and Child Development Maneka Gandhi, stated that Articles 39(e) and (f), 45 and 47 of the Constitution made the state responsible for ensuring that all needs of children were met and their basic human rights were protected. The Bill then went on to claim that the United Nations Convention on the Rights of the Child (UNCRC), ratified by India on December 11, 1992, required the state parties to undertake all appropriate measures in case a child was alleged to have violated, or was accused of violating, any penal law, including (a) treatment of the child in a manner consistent with the promotion of the child’s sense of dignity and worth; (b) reinforcing the child’s respect for human rights and fundamental freedoms of others; and (c) taking into account the child’s age and the desirability of promoting the child’s reintegration into, and his or her assuming a constructive role in, society.

The concerns expressed by some members during the debate in Parliament, and by scientists and activists engaged with rehabilitation of children in conflict with the law, demonstrate how the Bill’s key provisions are at odds with these very objectives.

The 2015 Bill seeks to replace the Juvenile Justice Act, 2000, which was amended in 2006 and 2011. The 2000 Bill, also piloted by Maneka Gandhi, then Minister for Social Justice and Empowerment, sought to fulfil another international commitment—the United Nations Convention on the Rights of the Child, 1990, read with the concluding Resolution of the Committee on Child Rights (constituted under the U.N. Convention) of 2000. It mandated the Minimum Age of Criminal Responsibility (MACR) as 18 years and asked member States to act accordingly. Curiously, the 2015 Bill is not only silent on this international commitment but seriously dilutes it in Section 16, which says:

“16(1) In case of a heinous offence committed by a child who has completed or is above the age of 16, the Board (the Juvenile Justice Board) shall conduct a preliminary inquiry with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he committed the offence, and may pass an order in accordance with the provisions of Sub-section (3) of Section 19:

“Provided that for such an inquiry, the Board may take the assistance of experienced psychologists, psycho-social workers and other experts.”

Section 19(3) says that in cases where the Board, after preliminary inquiry, comes to the conclusion that there is a need for further trial of the child as an adult, it may order transfer of the trial to the children’s court having jurisdiction to try such offences.

The government justified the reduction in MACR on the plea that other countries have done so. Maneka Gandhi cited England and Australia, where she said it is 10 years. In Argentina, it is 16 years, and in France, it is 13 years. She said during the Lok Sabha debate that given the reality that children tend to mature faster and at a much younger age, it is important to define the age of criminal responsibility at a level that is in tune with the current situation.

But evidence in the United States suggests that the transfer of juvenile convicts to the adult justice system has been ineffective in addressing juvenile crime, improving public safety and checking recidivism. Juveniles who were transferred to the adult system were found to invite arrests for subsequent crimes to a greater extent than those who were retained in the juvenile justice system. Experts suggest that the progressive features of the Indian juvenile justice system should not be replaced by regressive positions adopted in other countries, particularly given the absence of empirical evidence to prove that such a policy change is warranted or that it will even work.

During the debate in the Rajya Sabha, Maneka Gandhi said the Juvenile Justice Board would decide whether a child, above 16 and below 18, who committed a heinous crime did it with an adult mind or a childish mind. A crime caused by a childish mind, according to her, was an unpremeditated, spur-of-the-moment action in retaliation to perceived injustice. She further explained that if the Board decided that the child committed a crime in a childish fashion, the offender would receive the benefit of the doubt and be given only three years’ punishment in a reform school. This, even if the offence is rape, as long as it is found to have been committed in a childish way, such as if the offender had been egged on by people older than he was.

Observers familiar with the way juvenile justice boards function are sceptical of Maneka Gandhi’s optimism. The Bill’s provisions on children’s courts— which would decide whether children above 16 found guilty of committing heinous offences would go to the adult or the juvenile system—and borstals, which would take care of children considered adults until they are 21, appear good on paper. But they are fraught with serious infirmities in practice. That the necessary infrastructure for setting up the required number of juvenile justice boards, children’s courts and borstals is not already in place can only make things worse.

Section 21 (1) of the Bill states that when the child in conflict with the law attains the age of 21 years and is yet to complete the term of stay, the children’s court shall provide for a follow-up by the probation officer or the District Child Protection Unit or a social worker or by itself, to evaluate if the child has undergone reformative changes and can be a contributing member of society.

Observers have expressed the apprehension that this provision allows the children’s courts to make a decision that is potentially subjective, is prone to arbitrariness, and may result in class-, caste- and religion-based targeting of children under the garb of assessing their potential contribution to society and the extent of reformation.

More importantly, the new legislation ignores concerns expressed by stakeholders when the Bill was being considered by the Standing Committee of Parliament. One concern was that the Bill incorrectly assumed that children were competent to stand trial as adults, whereas findings in neuroscience and adolescent psychology established their diminished culpability. Another was that the “preliminary inquiry’ envisaged under Section 16 violated the presumption of innocence as well as the test of procedural fairness under the Constitution.

Maharukh Adenwalla, lawyer and child rights activist, who was one of those who made submissions before the Standing Committee, was of the view that even the Act of 2000 was not fully implemented. The government, she said, did not even create the “places of safety”, referred to in Section 16 of that Act, to provide shelter to children in the 16-18 age group who were found guilty of serious offences. Had this been done, the grievance that the juvenile convict in the Nirbhaya case was radicalised during his three-year stint at the juvenile home would not have arisen. She also deplored the absence of any provision in the 2015 Bill to deal with the aftercare and rehabilitation of children released from special homes.

The Bill, now awaiting the President’s assent, will soon become an Act. But its constitutionality will become a serious question mark if it is challenged in the superior courts. Both in Salil Bali vs Union of India (2013) and in Dr. Subramanian Swamy vs Raju (2014) the Supreme Court upheld the constitutionality of the Juvenile Justice Act, 2000, insofar as it allowed all children in conflict with the law to be dealt with under the beneficial juvenile justice system irrespective of the gravity of the offence. Therefore, the creating of a separate class of heinous offenders within the 16-18 age group and treating them as adults is likely to be challenged as lacking empirical reasoning. Both the Delhi High Court and the Supreme Court refused to intervene when petitioners before them sought continued incarceration of the juvenile convict in the Nirbhaya case in the juvenile home beyond the mandatory three years.

Research in developmental psychology, according to experts, explains the difference in cognitive capacity and psychosocial maturity between children, including adolescents, and adults, which has as impact on decision-making in anti-social situations.

Arlene Manoharan, Fellow, Programme Head-Juvenile Justice, Centre for Child and the Law, National Law School of India University (NLSIU), Bengaluru, also made submissions before Parliament’s Standing Committee on the Bill. He said that while the cognitive levels of a 16- or 17-year-old might match that of an adult, findings showed that they lacked the psychosocial maturity of adults. He and his team told the committee that adolescents were more prone to peer influence, less likely to focus on future outcomes and less risk-averse than adults, and evaluated risks and benefits differently. Further, they said, their ability to understand legal processes and make decisions relating to their case was not the same as that of adults. Ritabrata Bannerjee of the Communist Party of India (Marxist) echoed similar concerns during the debate on the Bill in the Rajya Sabha, but in vain.

The refrain of most speakers during the debate was that the Bill could not take retrospective effect and therefore could not retrospectively punish the juvenile who was found guilty in the Nirbhaya incident. The Nirbhaya case was of course the catalyst for rallying public opinion in favour of the Bill. Thus the debate in Parliament took place under the shadow of the Nirbhaya controversy, with the victim’s parents watching it from the visitors’ gallery in the Rajya Sabha on December 22.

The non-retrospective nature of the amendment was invoked by the CPI(M)’s Sitaram Yechury to appeal to the House to take more time to study the Bill objectively and refer it to a Select Committee. In any case, he pointed out, the juvenile offender in the Nirbhaya case could not be put behind bars by the passage of this Bill. The plea fell on deaf ears. Members of the CPI(M) walked out of the House in protest before the passage of the Bill.

The plea to refer the Bill to a Select Committee was rejected on technical grounds. Shantaram Naik (Congress) and Derek O’ Brien (Trinamool Congress), who had moved motions for such reference, later backed out. But the CPI(M), the Dravida Munnetra Kazhagam (DMK), the Nationalist Congress Party (NCP), and Anu Agha, a nominated member, had backed the idea.

The Bill provides that if a juvenile is found guilty after he turns 21 for a heinous offence that he committed at 17, he will be treated as an adult. This is tantamount to bringing the retrospective clause through the backdoor and is a clear violation of Article 20(1) of the Constitution, which provides that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the offence.

The debate brought out more incongruities. Both Anu Agha and Yechury asked whether Parliament would further lower the age of responsibility if a heinous crime was committed by a child of 14 or 15. The question went unanswered by Maneka Gandhi.

To her, deterrence was the Bill’s objective. But the instances of juveniles committing heinous crimes that she cited in Parliament were all of cases under investigation. Thus the case for their defence during the trial stood compromised because of her premature conclusion about their “guilt”. The government seems to find the reversal of the principle “innocent, till proved guilty” useful to justify the Bill’s claim to deter children who may be in conflict with the law in future.

Section 2(33) of the Bill defines “heinous offences” as those for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. The Centre for Child and the Law, NLSIU, Bengaluru, has identified as many as 46 such offences, 21 of them under the IPC. Such a long list of offences may be problematic. According to a lawyer dealing with juvenile cases, it might lead to endless litigation and appeals in some cases and further marginalisation of children belonging to disadvantaged sections and without the means to carry out prolonged litigation.

During the Lok Sabha debate, the Congress’ Shashi Tharoor called the Bill regressive. He accused the government of having chosen political expediency over justice. His party colleagues in the Rajya Sabha, however, supported the Bill. In the Lok Sabha, smaller parties like the YSR Congress Party, the Telangana Rashtra Samiti and the Aam Aadmi Party expressed their reservations on the provisions for the trial of a juvenile as an adult if accused of heinous offences. Derek O’ Brien shocked many by suggesting that if what happened to Nirbhaya had happened to his daughters, he would have shot the accused.

Many Opposition MPs in the Lok Sabha pressed for amendments to the Bill, but they were superseded. Sensing the emotive mood in the House, Rajya Sabha members who had given notices for amendments did not even press for them when asked by the Chair.

Let down by Parliament, civil society has appealed to President Pranab Mukherjee not to give his assent to the Bill. Leading women’s organisations, led by the All India Democratic Women’s Association, said in a statement that the legislation would jeopardise the safety of women as never before as penalisation has substituted the reformative approach and will produce a greater likelihood of hardened juveniles in conflict with the law emerging from adult prisons.

(With inputs from Vikhar Ahmed Sayeed)

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