December 21, 2015

Juveniles in conflict with the law: Reform vs Punishment?

Three years after the gangrape of a young nursing student by a juvenile and five adults rocked the Capital city, the country is pushing for an amended Juvenile Justice (Care and Protection of Children) Act of 2014. If it succeeds, juvenile boards will have the power to decide if 16 to 18 year olds in rape and murder cases should be tried as children or as adults.

This new law, to be heard in Rajya Sabha tomorrow, is a departure from the existing law which mandates criminal cases against under-18s should be handled by Juvenile Justice Boards (JJBs) and provides for a maximum sentence of three years – without regard for the heinousness or brutality of the crime.

The Bill was introduced in 2014 as a direct result of the debate ignited when the Delhi JJB handed down a three-year sentence to the juvenile accused in the December 16th gangrape. Now we are back full circle, and it is more than obvious that 26 months was not enough time to heal the scars left behind on the family by the young man's actions.

Some of us may have had a huge part to play in the continuance of their sorrow, something that calls for a hard look at the media's sensitivity and accountability in reporting moments that involve nuanced issues.

While protests over the release of one 21-year-old are forcing Parliament to discuss the new Juvenile Justice Bill, we should also wonder if its introduction is in line with India’s obligations under the 1989 UN Convention on Child Rights. Under the convention, children should be protected from custody whenever possible and when deprived of liberty should be treated with humanity and respect and imprisonment of a child has to be used only as a measure of last resort and for the shortest appropriate period of time.

Others ponder a more basic question: How do we want to treat our children? Because, at the end of the day, who they become is the most accurate portrait of our collective conscience as a society.

The current JJA had fixed the age of juvenility at 18 for both girls and boys in line with its aims to rehabilitate and reform the juvenile offender so that they can be re-integrated into the society.  That’s why it focuses on alternative sentences; keeps kids out of jail where they will be interacting with hardened criminals.

 “The purpose for juvenile law – believes in possibility of reformation. It gives opportunity to all kids to be reformed. It is based on public policy consideration of crime prevention — reformation gives a high possibility of lessening the kids to fall back into crime,” explains child rights activist Anant Asthana while adding that “The new Bill is a highly juvenile response to juvenile crime.”

Many rely on the increase in juvenile crime rate to support the proposed law. 

And it is true that the National Crime Records Bureau (NCRB) reports that the number of juveniles found to be in conflict with law under the IPC and the SLL has risen 13.6% and 2.5% respectively in 2013, as compared with 2012.

However, “the NCRB statistics actually prove that there is something wrong with the way juveniles are growing up in our country,” says Mr. Anand Grover, counsel for the Lawyers Collective who works actively with juveniles in his practice.

Sociologists agree and attribute rise in juvenile crimes is due to a variety of factors that can’t be addressed by simply lowering the age of majority. These factors include the government’s inability to curb increase in poverty; failure of the educational system causing young people to abandon schools; increasing income disparity; domestic factors such as violence at home and failure of parental units.

NCRB data also indicates that most juvenile delinquents are from low-income families and/or a marginalized stratum of society. Studies on juveniles including studies conducted by UNICEF also show that neglected children and juveniles are easy prey to criminality.

Numerous studies stand against clubbing juveniles with adult and often hardened offenders. Many worry that this approach, along with harsher sentencing and the increasing number of juveniles whose bail is rejected thus causing them to remain in pretrial detention, will backfire and result in increase in juvenile offenders instead.

“The new laws are, though they appear to be remedy for safety, but in fact they are a prescription for more crime in society. I guarantee that in 10 years you’ll see more crime in society,” promises Asthana.

(A version of this article was published in Hindustan Times on December 20, 2014) 

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