Juveniles get retribution
Ved Kumari, December 27, 2015
Losing farsight: Putting teenage offenders among hardened criminals will strike at chances of reformation
The winter session of Parliament, where proceedings in the Rajya Sabha was paralysed for most part, was suddenly galvanised into action under pressure from people demanding passage of the bill to lower the age of a juvenile in cases of heinous crimes from 18 to 16 years. This amendment, made at the instance of the 2012 Delhi gang-rape case, may have massive ramifications.
In the name of justice for Jyoti Singh, the Delhi gang-rape victim, Parliament has passed a retrograde Juvenile Justice (Care and Protection of Children) Bill, 2014, taking us back to the 1920s when children were exceptionally sent to prison. The reasons are: “Imprisonment” of the “juvenile rapist” for three years was injustice to the victim; juvenile was the most brutal; his release showed gap in the existing juvenile justice system; he posed threat to the safety of women; he has not been reformed; he was radicalised; juvenile crime has risen sharply and the only way to protect women is by sending 16 to 18 year old juveniles committing heinous offences to prison for long terms.
We have also been made to believe that if this law was passed earlier, it would have been applied to this case to prevent the convict’s release; this legislation contains sufficient safeguards to ensure that only those who deserve severe punishment will be sent to the adult system; they will go to jail only after attaining the age of 21 years and if they have not reformed by that age.
It has been wrongly stated that the juvenile was “imprisoned” for three years. No child is punished under the existing law and juveniles are sent to a special home for their reformation. The period of three years is sufficient to fulfil the purpose for which juveniles are sent to special home, namely, to bring about attitudinal and behavioural changes. If a juvenile is not reformed during this period because no arrangements have been put in place by the government, the government needs to answer why is it so.
There was nothing on record to prove that the juvenile was the most brutal as per the Juvenile Justice Board which noted that in the two statements made by the victim, she did not single out the juvenile to be so, her male friend who filed the FIR did not state so and even the final report filed by the police did not say that the juvenile was the most brutal. On his radicalisation, if true, it is the state that has to answer who was responsible for it as the juvenile did not go out seeking company of the radical element.
The bold headlines of “Over 50 per cent of juvenile crime is sex offences” and “increase of 50.6 per cent in juvenile crime” are far from truth. Crime figures as published by the government shows that rape constituted only 5.9 per cent of total juvenile crimes. In terms of proportion, too, rape by juveniles constituted only 4.7 per cent of total rapes committed in 2014. While rape by minors in the last 10 years has registered an increase by 1403 cases, the number of children increased by 2 crore during this period. Juvenile crime to total crime has remained static at 1.2 per cent in the last three years. And it must be noted that it is at such miniscule scale despite no punishment given to any juvenile.
In contrast, the US suffered a panic attack when its juvenile crime rate shot up to 8,476 cases in 1996 and it started excluding more and more juveniles to criminal justice to suffer harsh punishments, including death penalty. After 25 years of this approach, research studies found that children sent to adult system later committed more offences compared to children dealt within the juvenile justice system. As a consequence, the US has started bringing youngsters up to the age of 18 years within the juvenile justice system in more and more states, but India has chosen to adopt this failed system.
The myth that “severe punishment deters” has been at the bottom of this draconian law despite our own experience since 2013. In spite of the provision of mandatory minimum imprisonment for 20 years, life imprisonment without possibility of release and even death penalty for rape in the Indian Penal Code, there is no downward trend in rapes.
Truth, juvenile justice and its rationality have been lost in the emotional campaign run for exclusion of children from juvenile justice by Jyoti’s parents and their naked grief before the gullible public.
Future looks bleak
The future with this legislation is also bleak. The safeguards under the new juvenile justice law when enforced will present new challenges to the judges to distinguish bad and good rapes so that juveniles committing bad rapes are only tried as adults. Each decision to transfer or not will be open to appeal by the juvenile or the victim. It means that it may be years before even the question of jurisdiction is settled.
Once this is settled and the juvenile is tried and convicted by the adult court, he will be sent to the mandatory minimum sentence of seven, 10, 20 years or life imprisonment as prescribed by the IPC. Period of this imprisonment till the age of 21 years will be spent by the juvenile in a “Place of Safety.” Then, an assessment will be made and if he has reformed, he will be freed. Otherwise, he will spend the rest of his sentence in prison.
The sole purpose of the existing Juvenile Justice Act is to reform them. Even then, we have been told nothing was in place to reform the juvenile convict in the Delhi gang-rape case despite the national limelight. With this state of implementation of the exclusively protective legislation, there is no reason to believe that reformation will find a place under the new law passed to subject juveniles to harsher punishments. It means that juveniles tried as adults will mechanically end up in prison for not being reformed.
The irony is that all juveniles who are tried as adults, including the juvenile who may be released at the age of 21 years for having reformed, will suffer the stigma and disqualifications attached to conviction for an offence. It means that all doors for their reintegration and mainstreaming will be closed.
Minister for Women and Child Development Maneka Gandhi has still not contemplated and addressed the question whether women and public at large will feel safe when they will face these young men of 25, 28 or 38 years of age with no future but having grown up in the company of other violent offenders of their own age having committed all kinds of heinous offences.
The large-scale negative impact of this law will be felt after 10 years when juveniles tried as adults will start coming out of prisons. What’s more frightening is there may be a demand for further lowering the age of exclusion with each violent offence committed by a juvenile just on the borderline of the existing cut-off age. Whichever way the future goes, the process of exclusion of more and more juveniles from juvenile justice has begun.
(The writer is Professor, Faculty of Law, University of Delhi)
In the name of justice for Jyoti Singh, the Delhi gang-rape victim, Parliament has passed a retrograde Juvenile Justice (Care and Protection of Children) Bill, 2014, taking us back to the 1920s when children were exceptionally sent to prison. The reasons are: “Imprisonment” of the “juvenile rapist” for three years was injustice to the victim; juvenile was the most brutal; his release showed gap in the existing juvenile justice system; he posed threat to the safety of women; he has not been reformed; he was radicalised; juvenile crime has risen sharply and the only way to protect women is by sending 16 to 18 year old juveniles committing heinous offences to prison for long terms.
We have also been made to believe that if this law was passed earlier, it would have been applied to this case to prevent the convict’s release; this legislation contains sufficient safeguards to ensure that only those who deserve severe punishment will be sent to the adult system; they will go to jail only after attaining the age of 21 years and if they have not reformed by that age.
It has been wrongly stated that the juvenile was “imprisoned” for three years. No child is punished under the existing law and juveniles are sent to a special home for their reformation. The period of three years is sufficient to fulfil the purpose for which juveniles are sent to special home, namely, to bring about attitudinal and behavioural changes. If a juvenile is not reformed during this period because no arrangements have been put in place by the government, the government needs to answer why is it so.
There was nothing on record to prove that the juvenile was the most brutal as per the Juvenile Justice Board which noted that in the two statements made by the victim, she did not single out the juvenile to be so, her male friend who filed the FIR did not state so and even the final report filed by the police did not say that the juvenile was the most brutal. On his radicalisation, if true, it is the state that has to answer who was responsible for it as the juvenile did not go out seeking company of the radical element.
The bold headlines of “Over 50 per cent of juvenile crime is sex offences” and “increase of 50.6 per cent in juvenile crime” are far from truth. Crime figures as published by the government shows that rape constituted only 5.9 per cent of total juvenile crimes. In terms of proportion, too, rape by juveniles constituted only 4.7 per cent of total rapes committed in 2014. While rape by minors in the last 10 years has registered an increase by 1403 cases, the number of children increased by 2 crore during this period. Juvenile crime to total crime has remained static at 1.2 per cent in the last three years. And it must be noted that it is at such miniscule scale despite no punishment given to any juvenile.
In contrast, the US suffered a panic attack when its juvenile crime rate shot up to 8,476 cases in 1996 and it started excluding more and more juveniles to criminal justice to suffer harsh punishments, including death penalty. After 25 years of this approach, research studies found that children sent to adult system later committed more offences compared to children dealt within the juvenile justice system. As a consequence, the US has started bringing youngsters up to the age of 18 years within the juvenile justice system in more and more states, but India has chosen to adopt this failed system.
The myth that “severe punishment deters” has been at the bottom of this draconian law despite our own experience since 2013. In spite of the provision of mandatory minimum imprisonment for 20 years, life imprisonment without possibility of release and even death penalty for rape in the Indian Penal Code, there is no downward trend in rapes.
Truth, juvenile justice and its rationality have been lost in the emotional campaign run for exclusion of children from juvenile justice by Jyoti’s parents and their naked grief before the gullible public.
Future looks bleak
The future with this legislation is also bleak. The safeguards under the new juvenile justice law when enforced will present new challenges to the judges to distinguish bad and good rapes so that juveniles committing bad rapes are only tried as adults. Each decision to transfer or not will be open to appeal by the juvenile or the victim. It means that it may be years before even the question of jurisdiction is settled.
Once this is settled and the juvenile is tried and convicted by the adult court, he will be sent to the mandatory minimum sentence of seven, 10, 20 years or life imprisonment as prescribed by the IPC. Period of this imprisonment till the age of 21 years will be spent by the juvenile in a “Place of Safety.” Then, an assessment will be made and if he has reformed, he will be freed. Otherwise, he will spend the rest of his sentence in prison.
The sole purpose of the existing Juvenile Justice Act is to reform them. Even then, we have been told nothing was in place to reform the juvenile convict in the Delhi gang-rape case despite the national limelight. With this state of implementation of the exclusively protective legislation, there is no reason to believe that reformation will find a place under the new law passed to subject juveniles to harsher punishments. It means that juveniles tried as adults will mechanically end up in prison for not being reformed.
The irony is that all juveniles who are tried as adults, including the juvenile who may be released at the age of 21 years for having reformed, will suffer the stigma and disqualifications attached to conviction for an offence. It means that all doors for their reintegration and mainstreaming will be closed.
Minister for Women and Child Development Maneka Gandhi has still not contemplated and addressed the question whether women and public at large will feel safe when they will face these young men of 25, 28 or 38 years of age with no future but having grown up in the company of other violent offenders of their own age having committed all kinds of heinous offences.
The large-scale negative impact of this law will be felt after 10 years when juveniles tried as adults will start coming out of prisons. What’s more frightening is there may be a demand for further lowering the age of exclusion with each violent offence committed by a juvenile just on the borderline of the existing cut-off age. Whichever way the future goes, the process of exclusion of more and more juveniles from juvenile justice has begun.
(The writer is Professor, Faculty of Law, University of Delhi)
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