Interview: Swagata Raha

‘Replicating a failed Western model’

Print edition : January 22, 2016

Swagata Raha: "Adolescents lack psycho-social maturity and are more prone to peer influence." Photo: K. Murali Kumar

Interview with Swagata Raha, Senior Legal Researcher (Consultant) at the Centre for Child and the Law, National Law School of India University, Bengaluru.

Swagata Raha, a senior legal researcher (Consultant) at the Centre for Child and the Law, National Law School of India University, Bengaluru, said the Juvenile Justice Bill, 2015, “incorrectly assumes that children are competent to stand trial as adults”. Currently pursuing Master of Studies in International Human Rights Law at the University of Oxford, Swagata Raha worked extensively on the campaign against the Juvenile Justice Bill and has written extensively on issues concerning child rights. Excerpts from an interview she gave Frontline:

In the discussions surrounding the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2015, a crucial component has been the absence of sufficient data on juvenile crime in India in media reportage. According to the data provided by the National Crime Records Bureau (NCRB), there is a rise in crime among juveniles in India. What are the crimes for which juveniles are apprehended?

According to NCRB data, the overall rate of juvenile crime has remained constant at 1.2 per cent of the total number of crimes committed in the last three years. In 2014, 1,488 persons in the 16-18 age group were apprehended for rape and 844 were apprehended for murder. [To set this in context, the total number of persons arrested for rape and murder in 2014 was 48,193 and 69,320 respectively]. Juveniles [16-18 years] were allegedly involved in 1.2 per cent of murders and 3.08 per cent of rapes. It must be remembered that the data on “Crime in India” are based on first information reports [FIRs] and not actual convictions. While reading the figures on rape, it must be borne in mind that the Protection of Children from Sexual Offences Act, 2012, raised the age of consent from 16 to 18. This has meant that all forms of consensual sexual activity among adolescents is categorised as offence. We find that several cases of rape have been filed against boys by their girlfriends’ families.

It should be noted that most offences for which juveniles between 16 and 18 years are apprehended are property-based offences such as theft and criminal trespass/house-breaking. Rape and murder constitute only 4.74 per cent and 2.69 per cent respectively of all offences for which they were apprehended in 2014. If we look at the data gender-wise, girls constitute 2.3 per cent and boys 97.6 per cent of juvenile offenders.

What is the proportion of juvenile offenders who commit repeat offences? Has the rate of recidivism increased or decreased over the past few years?

The rate of recidivism has actually dropped over the years. If we look at the data for the past five years, we see that the rate of recidivism fell from 12.1 per cent in 2010 to 5.4 per cent in 2014.

From the discussions in the media, it is felt that the term “heinous offences” in the recently passed Bill includes only murder and rape. Can you provide some clarity on this?

Heinous offences have been described as offences that carry more than seven years of imprisonment. We have listed at least 46 offences for which juveniles between 16 and 18 years could potentially be tried as adults. One is not looking at only murder and rape. Juveniles can now be tried as adults for offences under the Protection of Children from Sexual Offences Act; the Narcotics, Drugs and Psychotropic Substances Act; the Terrorists and Disruptive Activities (Prevention) Act; the Maharashtra Control of Organised Crime Act; and the Prevention of Terrorism Act. Further, the new system will imply that persons found guilty of offences that carry a minimum sentence will receive the minimum mandatory sentence prescribed under the law. This will undermine the principle of last resort recognised under the United Nations Convention on the Rights of the Child [UNCRC] as it leaves judges with no option but to institutionalise a person and also violates the prohibition on cruel, inhuman and degrading treatment.

One of the clauses in the Juvenile Justice Bill, 2015, states that the Juvenile Justice Board (JJB) will decide whether a child above 16 years should be treated as an adult or not in case of the commission of a heinous crime. In other words, a 16 to 18-year-old person is not automatically sent for regular trial. What are the implications of this clause?

Clause 15 of the Juvenile Justice Bill requires the board to assess whether a child alleged to have committed a heinous offence has the physical and mental capability to commit the offence, and also the “circumstances in which he allegedly committed the offence”. Latest research shows that individualised assessment of adolescent mental capacity is not possible and the suggestion that it can be done would mean “exceeding the limits of science”. The assessment proposed is fraught with errors and arbitrariness and will allow inherent biases to determine which child is transferred to an adult court. It also violates the presumption of innocence, a central tenet of juvenile justice as well as the criminal justice system, as the JJB has to arrive at this decision even before any evidence is adduced. The JJB, in a serious departure from its earlier role which had centred on ensuring the best interest of juveniles, will now be vested with the additional and conflicting role of deciding who among the juvenile offenders will be dealt with by the adult criminal justice system.

The edifice of the proposed system is based on the misconception that juveniles are equally culpable as adults. It also incorrectly assumes that children are competent to stand trial as adults. Research in adolescent psychology and neuroscience confirms that adolescents lack psycho-social maturity and are more prone to peer influence, are less likely to focus on future outcomes, are less risk-averse than adults, and evaluate risks and benefits differently. Subjecting children to the adult criminal justice system would thus violate the constitutional guarantee of equality.

India has made a grave mistake by replicating a failed Western model of retributive justice. The transfer system of juveniles to adult jails proposed in the Bill has been in existence in the United States for over two decades. The independent Task Force on Community Preventive Services set up by the U.S. Centre for Disease Control published scientific evidence on the effectiveness of waiver laws to ascertain whether this prevented or reduced violence among those transferred and among juveniles on the whole. On the basis of a review of nine studies on the specific and general deterrence effect of transfer laws, the task force concluded that: “….transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system. To the extent that transfer policies are implemented to reduce violent or other criminal behaviour, available evidence indicates that they do more harm than good.” [“Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services”, Centre for Disease Control and Prevention, MMWR 2007, preview/mmwrhtml/rr5609a1.htm]

Aftercare is a crucial aspect of the rehabilitation process once a juvenile offender completes his term at the government home. Does the new Bill sufficiently provide for aftercare?

Clause 46 of the Juvenile Justice Bill, 2015, defines aftercare to mean financial support in order to facilitate the child’s reintegration into society. One-time financial assistance as aftercare is inadequate as children require not only financial assistance but psycho-socio-legal aid and assistance through a comprehensive programme promoting independent living skills aimed at effective reintegration into the community. Many children who have crossed 18 years would require additional support, as either he/she has not had the time within the juvenile justice system to benefit from state services and recover from deprivation, exclusion, abuse, exploitation or neglect or the system has not provided all that he/she needed in order to integrate into the community. It can be hoped that the new rules will address aftercare in greater detail.

There is another worrying trend: criminals hire juveniles as contract killers apparently because they would be let off after three years. Has the Juvenile Justice Bill managed to address this?

This is one gap in the Juvenile Justice Act, 2000, that has been addressed by the Bill. Clause 83 of the Bill criminalises the use of a child by a militant group or any adult group for illegal activities individually or as a gang. This attracts a prison term, which may extend up to seven years and a fine of Rs.5 lakh. Unfortunately, these situations have been cited to support the transfer of children to the adult system. The Bill has amplified the problem as we will inevitably witness the graduation of hardened criminals from jails in a few years’ time as the U.S. system has shown.

As a legal researcher working on the subject of children in conflict with the law, you must have closely followed the debates in the news media leading to the passage of the Juvenile Justice Bill in the Rajya Sabha on December 22. What are your observations on the role of the media?

A disturbing factor in the run-up to the passage of the Bill was the series of erroneous and unsubstantiated statements that appeared in the print media as well as in television debates. This was carried over to Parliament as well. For instance, the minimum age of criminal responsibility [MACR] has been continuously conflated with the upper age of juvenility. The former is the age below which a person lacks the capacity to commit a crime while the latter is the age above which an accused person can be subjected to the adult system of prosecution and punishment. The UNCRC has stated that the minimum age should not be lower than 12 years and that state parties must aim to increase it. India has failed on this front as the minimum age of criminal responsibility is seven years, much lower than the internationally prescribed standard of 12 years. The Bill presented an opportunity to enhance the minimum age, which the Ministry and Parliament ignored.

Media debates also suggested that India can decide to treat 16-years-olds as adults because some other countries did so without any regard for our obligations under the UNCRC. On the issue of treating juveniles as adults, the UNCRC has unequivocally stated that those “state parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16- or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.” It was ignored that 50 countries, including the United Kingdom and Canada, have been found to be non-compliant with the UNCRC for treating juveniles as adults based on the nature of offence and/or their age.

The data on juvenile crime were similarly exaggerated in the media even though the NCRB report clearly stated that juvenile crime had remained static at 1.2 per cent in the last three years. Even though the investigating officer and the Juvenile Justice Board clarified that there was no evidence to suggest that the juvenile in the Delhi gang rape case was the most brutal, almost all television debates on the Bill fuelled this misconception and grounded the demands for a punitive response based on it.

Is there a case for graded punishment for juvenile offenders, such as creating age slabs such as 10 years or less, 11-15 years and 16-18 years?

The Juvenile Justice Act, 2000, and the 2015 Bill allow for a graded response to juvenile crime. The Juvenile Justice Board has the option to admonish, order community service or probation or detain the juvenile in a special home for a maximum period of three years. Age, nature of the offence, the need for supervision or intervention, and the social background of the child are factors that must be considered before arriving at a disposition outcome. Age or offence alone cannot be the basis for this decision. For instance, a 12-year-old who is found guilty of theft could be ordered to spend a year in the special home where he will receive therapeutic care and detoxification services if the social investigation report reveals that he is addicted to drugs and lives in a locality where abuse of drugs and alcohol is rampant and no responsible family member is present.

What are the aspects that the juvenile justice Bill has failed to consider?

The Bill presented an opportunity to integrate restorative justice processes such as family group conferences and victim-offender mediation within the juvenile justice system so as to facilitate healing for the victims and accountability for juveniles. However, Parliament chose to take one step back and embraced retribution instead of restorative justice.

The Bill has also failed to specify the minimum age of criminal responsibility. It has also failed to specify a fair and transparent selection procedure for members of the Juvenile Justice Board and the Child Welfare Committee.

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