With the recent rape of a four-year old in Delhi allegedly by juveniles, there is a growing clamour to treat juveniles between the age group of 16-18 years, accused of heinous crimes, as adults. Experts make the scientific, social and legal case against this move.
It was the year 2000 and Maneka Gandhi, Minister of State for Social Justice and Empowerment in the NDA government, had spearheaded a landmark bill called the Juvenile Justice (Care and Protection of Children) Bill 2000. The bill was seen as progressive as it took a holistic view in dealing with children who came in to conflict with the law as well as those in need of state care. 15 years later, Maneka Gandhi, now Minister for Women and Child Development, is seeking to reenact the law.
There are forty amendments in the Juvenile Justice (Care and Protection of Children ) Bill, 2014 dealing with issues ranging from changes in adoption procedures to child labour practices to sentences for child trafficking. The Lok Sabha passed the bill on May 7, 2015. Outside the houses of Parliament child rights experts have challenged various provisions of the bill especially the controversial move to treat adolescents accused of heinous crimes as adults. Here are their arguments against the move.
The scientific argument
Neuroscientists have found that older adolescents (14-17) are more prone to reckless behaviour and physiologically unable to internalise the impact of the consequence of their actions. Dr. Harish Shetty, a renowned psychiatrist explains, “Adolescent brain behaviour indicates that the pre-frontal cortex sleeps and the behaviour is controlled by the amygdala — the part of the brain which controls emotions. Parental guidance during this time teaches teenagers to think before they act i.e. put a thought before an action. Hence, maximum cases of juvenile crime is an act of emotion and very rarely logical.”
The social argument
Of all the crime reported in India, just 1.2% is committed by juveniles. 7% of these children were arrested for rape and murder. Further, National Crime Records Bureau data last available for 2013 shows that 1,388 cases of rape were registered against juveniles in the 16 to 18 year age group. This amounts to less than 5% of the total rape cases registered that year—a far cry from the image created of juvenile crime getting out of control.
One of the biggest criticisms of the proposed changes to the Juvenile Justice Act, is the lack of implementation in almost every aspect of the existing law—from empty positions for magistrates, the lack of physical infrastructure for case files to an extremely low probation officer to child ratio and the lack of trained social workers. Dr. Asha Mukundan with the Centre for Criminology & Justice at Tata Institute of Social Sciences says, “The biggest concern for us is the push for amendments when the original act has never been applied in its truest spirit. In almost every district in India, case files are stored in sessions courts, brought to the Observation home on days of hearing, no police units for children and probation officers who are unable to do the required background check due to sheer workload. How can the Centre change a law that impacts the most vulnerable of the society without taking into consideration the ground reality?”
The Legal argument
The Constitution guarantees fundamental rights to every Indian. Under Articles 14 and 15(3) of the Constitution, every individual is guaranteed equality before law, prohibiting discrimination in any form. The amendments to the Juvenile Justice Act will create a group of individuals who will be discriminated against because though they are minors before the law they will, if found guilty, be punished as adults.
The Supreme Court of India has upheld the constitutionality of the existing juvenile justice system. In the cases of Swamy vs Raju (2014) and Salil Bali vs Union of India (2013), the apex court observed that, “There are, of course, exceptions where a child in the age-group of 16 to 18 may have developed criminal propensities, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children into mainstream society rather than to allow them to develop into hardened criminals.”
Maharukh Adenwalla, a lawyer and member of the Mumbai Working Group on Juvenile Justice believe if the new law is enacted it will face legal challenges. She says, “No law, domestic or international, allows for a transient age of culpability. There has to be a cutoff point beyond which you are considered an adult. There is a cut-off point that acknowledges the ability of child to have criminal intent which is ten years old in most countries, similarly we have to acknowledge that there is an age of juvinility.”
She adds “The government is arguing that we now have a generation of children who are more mature and can actually premeditate crime and hence they should be tried as adults in cases of heinous crimes. However, there is no move to reduce the age of voting or the age of consent or the age of marriage so on what basis can you claim that someone is mature enough to commit a crime? There is no way one can measure brain maturity to declare someone an adult and law does not allow for a case by case basis for changing of criteria.”
This law will also contravene the United Nation’s Convention on the Rights of a Child (UNCRC) which says that any person under the age of eighteen is considered a minor. India signed and ratified the UNCRC in 1992. Besides drawing global condemnation this law may also be challenged in the International Court of Justice.
The government has admitted that the amendment to try minors as adults is a direct consequence of the brutal rape and muder of Jyoti Singh in New Delhi in December 2012 where a 17-year old was one of the five convicted of the crime. Reportedly the most brutal of the lot, because he was a juvenile he received a three year term in an observation home. While the move may appease public sentiment women’s rights activists believe that these cases are exceptions. If the government seriously wants to address heinous crimes against women it needs to enforce laws effectively with the overwhelming majority of those responsible for these crimes – adult men. Ritu Dewan, President of Indian Association for Women’s Studies, says, “Our research till date shows that the majority of crimes against women are committed by men known to the victim—especially who are in positions of power like relatives, teachers and police men. Crimes against women by juveniles is a miniscule figure and the Centre should look at instituting reform as our societal structures still consider women a second class citizen.”
The Juvenile Justice(Care and Protection of Children) Bill, 2014 will look for safe passage in the Rajya Sabha next and that will be in the monsoon session of parliament. It may face a challenge there with the Congress likely to oppose the bill. Party MP, Shashi Tharoor made this statement in the Lok Sabha, “How can we pass a law that will jeopardise the other 99.98% children in this country because the government wishes to over-react to a handful of cases.”