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5 Questions To Consider When Debating The Release Of The Dec 16 Juvenile Convict

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By Devanik Saha, IndiaSpend.com: 

Plainclothes policemen escort an Indian teenager (head covered with towel) after he was sentenced at a juvenile court in New Delhi August 31, 2013. The Indian teenager was sentenced to three years in juvenile detention on Saturday for the December gang rape of a trainee physiotherapist, the first verdict in a case that sparked debate over whether India was too soft on young offenders. REUTERS/Anindito Mukherjee (INDIA - Tags: CRIME LAW TPX IMAGES OF THE DAY) - RTX132GG
Policemen escort the December 16 juvenile convict (face covered) REUTERS/Anindito Mukherjee 

As the Delhi High Court decides whether or not the juvenile convict in the Nirbhaya case — the 16 December, 2012, Delhi gang-rape of a 23-year-old physiotherapy student who died later — should be released this week, a nationwide debate over treating juveniles as adults intensifies as crimes by teenagers will intensify.

Juvenile crimes registered under the Indian Penal Code (IPC) rose 47%, from 22,740 cases in 2010 to 33,526 cases in 2014, according to data released by the National Crime Records Bureau.

These data may appear to support the contention of Nirbhaya’s parents that the juvenile rapist of their daughter should not be released–Maneka Gandhi, minister of women and child development, indicated she agreed and that the government would incarcerate him again, if it could–but according to the law he must be released after three years of imprisonment. That could happen on Sunday, unless the Delhi High Court decides otherwise.

Yesterday, the central government sought an extension of the juvenile’s stay at an observation home to sort out post-release details.

But the data on juvenile crimes raise five questions, the answers to which indicate that things are not as evident as they seem.

1) What Do the NCRB data say?

“The point that needs to be kept in mind is that data on crime in India is based on first information reports (FIRs) filed by the police and not actual conviction,” said Swagata Raha, senior research assistant, Centre for Child and the Law (CCL), National Law School of India, Bangalore.

Although juvenile crime increased 47%, crimes committed by juveniles as a percentage of total crimes reported has ranged between 1% and 1.2% over the last five years.

Furthermore, recidivists, or repeat offenders, among juveniles have reduced in the past five years, from 12.1 % in 2010 to 5.4% in 2014.

2) Should 16-18 year juveniles be tried under adult laws? Or should the age of trial be lowered?

The idea of lowering the juvenile age has been fiercely debated since the Nirbhaya case.

In October 2015, a two-and-half year old girl in Delhi was raped by two boys, aged 16 and 17, which led Chief Minister Arvind Kejriwal to propose that the age of trial in rapes should be lowered to 15 from 18.

Legal and child rights experts contend that this is not a good idea.

“When the Indian government made 18 the age to enter the adult criminal justice system, it was the right one,” said Karuna Nundy, Supreme Court lawyer. “The Child Rights Convention recommends that, too, and with good reason. The move to reduce the age to 16 for heinous crimes is wrong.”

There are three points to consider, Nundy said:

1. The juvenile justice system exists so young people committing any crime grow into responsible adults. The system wants the offender to realise the exact harm caused, that the sentence take into account what the victim or next of kin wants (but strictly within a rights framework), and ensure rehabilitation of the offender. Juveniles sent into the adult criminal justice system would just make new hardened repeat criminals with criminal networks.

2. Research on the brains of teens under 18 shows they find it hard to control impulses and withstand peer pressure. Their brains, in development, are also capable of being reformed.

3. The juvenile justice systems need to be properly resourced to turn offenders into citizens who take responsibility for what they have done, repent and reform.

Her views were corroborated by Raha.

“We are firmly of the view that all persons below the age of 18 years should be dealt with under the juvenile justice system,” said Raha. “This is because of their diminished culpability and amenability to reform. To treat them as adults would violate the constitutional right to equality as well as our obligations under the UN Convention on the Rights of the Child.”

In 2013, Bharatiya Janata Party (BJP) leader Subramanian Swamy had petitioned the Supreme Court to reconsider the definition of “juvenile”. He requested the SC to consider the “mental and intellectual maturity” instead of the age limit of 18 years.

His petition was dismissed by the apex court, which held that the provisions of the Act are in compliance with constitutional directives and international conventions.

3) Should the Juvenile Justice Bill 2014 be implemented?

The Juvenile Justice (Care and Protection of Children) Bill 2014 was introduced in the Parliament in August 2014 by Maneka Gandhi. It was passed by the Lok Sabha in May 2015 but is pending in the Rajya Sabha.

The Bill proposes some radical changes, the most critical providing for juveniles between 16 and 18 being tried as adults for heinous offences.

The CCL believes that this provision violates the constitutional guarantee of equality, the right to life and the UN Convention on the Rights of the Child.

Moreover, the proposed change is based on a flawed interpretation of data on heinous crimes.

Among the 16-18 year age group, 844 murder cases were registered (1.2% of overall murder cases) and 1,488 (3.08% of overall rapes) rapes. Experts argue this cannot be the basis for drastic changes to juvenile laws.

“While reading the figures on rape, it must also be borne in mind that the Protection of Children from Sexual Offences Act, 2012 raised the age of consent from 16 years to 18 years,” Raha said. “This has meant all forms of consensual sexual activity among adolescents are also an offence. We find that several cases of rape have been filed against boys by their girlfriends’ families.”

Changes in rape laws, besides increased reporting due to awareness, have led to a 151% increase in the number of cases reported in five years, IndiaSpend reported earlier.

Many clauses of the proposed Juvenile Justice Bill, 2014, are “problematic” and violate constitutional and international conventions, said Raha.

For instance:

Clause 15 (1): In case of a heinous offence alleged to have been committed by a child who has completed or is above the age of 16 years, the board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he committed the offence.

The “arbitrary and irrational”, as experts describe it, procedure provided under the bill contravenes the fundamental guarantees under Article 14 and 21 of the Constitution, according to CCL.

Even medical experts contend the proposed assessment is flawed.

“Identifying the frame of mind of an adolescent who is only alleged to have committed a heinous crime will merely result in an arbitrary “opinion” lacking scientific validity,” Shekar P Seshadri and Raghu N Mani, Professors, Department of child and adolescent psychiatry, NIMHANS, Bengaluru wrote in a column in Hindustan Times.

They argued that the proposed assessment of a child’s mindset at the time of alleged crime cannot be done scientifically; it could lead to arbitrary opinions and fuel judicial decisions that could radically alter the course of a child’s life.

4) Will the new Bill affect juveniles from the most disadvantaged backgrounds?

Yes. As many as 56% of juveniles accused of crimes come from families with a maximum annual income of Rs 25,000, while 53% of juveniles are either illiterate or educated till primary school.

5) Should cases that evoke public emotions be treated separately?

The Nirbhaya case evoked a lot of emotions aided by the brave face put up by Nirbhaya’s parents, especially the presumption that the juvenile convict was the most brutal, which the Juvenile Justice Board later said was not based on evidence.

Being emotional is a part of the problem, said Nundy. “We have to bear in mind that the steps we take emotionally should benefit the society at large, not just to satisfy the conscience of angry citizens,” she said.

“We cannot begin to understand the anguish that the parents of Nirbhaya continue to feel, and earnestly hope that they are supported to attain closure on this horrific incident. However, what brings closure and peace to one family may not be the same as others,” said Arlene Manoharan, Programme Head, Juvenile Justice Team, CCL.

“Research from other jurisdictions demonstrate that closure and healing of deep-seated anger, disillusionment, and pain may be more effectively achieved through therapeutic interventions, including restorative-justice approaches that have worked effectively even for serious sex offenders.”

This article was originally published on IndiaSpend.com, a data-driven and public-interest journalism non-profit.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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