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Don't lower the age of offenders under the Juvenile Justice Act

Jan 30, 2014

The argument to lower the age of those eligible under the Juvenile Justice Act is a case of an ointment being applied on one part of the body for an itch that is somewhere else, writes Albertina Almeida, a human rights activist.

Panaji: Parliament is seized of the issue of excluding children in the age group of 16 and 18 years, alleged to have committed serious offences, from the applicability of the Juvenile Justice Act. Let us look at this issue a little more closely.

This demand became more vociferous after the December 16, 2012, gang rape of a student on a Delhi bus, commonly referred to as the Nirbhaya case. It was argued that the main accused was under 18 and that, among all the five accused, he was most brutal. The larger argument was that children in the age group of 16 to 18, who are booked for cases of rape and murder, are generally very violent and should face exemplary punishment.

In the first place, the argument that the juvenile was the most brutal in the Nirbhaya case was not established. The world has been looking at the accused in this case – now designated as perpetrators – through the lens of media articulations, which by their very nature are based on hearsay and greatly sensationalised. This narrative has painted the juvenile as the devil incarnate. Overlooked were small news items appearing in a couple of newspapers that maintained that the minor accused was not the most brutal. Even the Supreme Court seemed to have taken note of this hyped media coverage. Even as it dismissed the case for lowering the age, it bowed to the ‘collective wisdom of Parliament’ and opined that the juvenile justice system should be strengthened. Therefore, the issue is now before Parliament for resolution.

If the statements about the minor being the main accused/culprit or the most brutal are indeed true, how would a change in the law that takes children in the age group of 16-18 years out of the purview of the Juvenile Justice Act help?

There is, in fact, a far more endemic problem to address. Who is really the ‘lead criminal’ when heinous crimes get committed? The person who executes the act or the person who instigates and influences such an act by virtue of being in a superior position in terms of hierarchy, age or any other axis of power? It is an established fact that there are many people who are susceptible to manipulation, and young people are certainly in this category.

The argument to lower the age of those eligible under the Juvenile Justice Act is a case of an ointment being applied on one part of the body for an itch that is somewhere else. The standard forms of production of evidence are difficult to adhere to in mass crimes and, similarly, standards of proof expected in crimes committed by a gang are difficult to establish. There are penalties attached to abetting a crime or being a co-conspirator in a crime under the Indian Penal Code, but they vary depending on whether the accused person is a head conspirator or not. Instigators are not perceived as the prime culprit – the commander of the crime. We need to bring precisely such an insight into our discussion of the Juvenile Justice Act without affecting the core rights of an accused to due processes of law.

This has to be particularly ensured in cases where the (alleged) perpetrators of the crime are basically persons from a lower, unstable and vulnerable rung of the socio-economic ladder, who are socialised to follow the diktat of those who exercise control over them. Reducing the age of offenders who come under the Juvenile Justice Act from 18 to 16 cannot become a basis for overlooking the necessity of recognising and penalising command responsibility for crimes, including those that entail sexual violence. In fact, with the State voicing the very same argument for reduction of age, it appears to be a sinister design to mislead the public and divert attention from the real issue of getting redressal for an increasing number of crimes against women.

At another level, it is being said that the juveniles are violent and their behaviour can impact the minds of younger children with impressionable minds often housed in the same institutions. If that is the case, surely there is scope for housing the older children who are in conflict with law separate from younger ones who are also in conflict with law? As a matter of fact, this demand for a reduction in the age of the juvenile offender is often most emphatically supported by those who run children’s homes, women and child development authorities, and those who have to adjudicate juvenile justice cases. It appears somehow that for them this is the easy way out. The application of mind and effort needed to engage with the real issues that go much deeper, prompts such kinds of superficial knee jerk responses that do little to address the endemic problem.

India has no comprehensive holistic programme for the inmates of these homes, nor individualised care plans for the rehabilitation and reintegration of either children caught up in situations of conflict with the law or those that are in need of care and protection. As a result they languish in these homes doing very little and, of course, we well know the adage that an idle mind is the devil’s workshop. An engagement with such children could go a long way in opening up their minds and helping them to overcome the negative impacts of the earlier circumstances that caused them to drift into crime.

The juvenile in the Nirbhaya case was, in fact, a child who – as the ‘India Today’ had once reflected – was a symbol “of an India where penury forces children to leave their homes in search of work in the cities”. In this case, he was about 10 when he left home. This is only to state the attenuating factors and not to deny the fact that children in such circumstances do not ordinarily go and commit such crimes. But, clearly, the world has failed these youngsters and sadly all it now wants is retribution when some among them perpetrate criminal acts. The core imperative being advanced in support of maintaining the age at 18 is based on the importance of considering factors such as immaturity, susceptibility to impressions and influences – besides other vulnerabilities – and the amenability of children to undergo reform when addressing such cases.

Mahrukh Adenwala, the human rights advocate from Mumbai, quotes a 1920 Report of the Indian Jails Committee, which opined that a child criminal is the product of unfavourable environments and is entitled to a fresh chance under better surroundings. It also observed that the prospects of reformation are hopeful, and that a child does not have the same full knowledge and realisation of the nature and consequences of his or her act as an adult does.

In case the reader should retort and say that this is a different case and that given the influences of today’s society and media, children mature earlier than in previous generations, here is a nugget from the General Comment No. 10 of the Committee on the Rights of the Child (2007), which monitors the implementation of the Convention on the Rights of the Child to which India is a signatory: children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children… Every person under the age of 18 years at the time of the alleged commission of an offence must be treated (by State parties) in accordance with the rules of juvenile justice.

(The writer is a lawyer and human rights activist based in Goa.)

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