By Noor Ameena:
This year, the world celebrated the 25 years of United Nations Convention on Rights of Children. India was one of the earliest signatories to United Nations Convention on Rights of Children, and one of those progressive states which enacted legislation for the care and protection of children in conflict with law (any child who has come in contact with law as a result of committing a crime or being suspected of committing a crime) and children in need of care and protection (abandoned children). It is an internationally accepted principle that any individual below the age of 18 years shall be deemed a ‘child’. Last week, when Rajya Sabha passed the Juvenile Justice (Care and Protection) Bill, 2015, which proposed to lower the age of criminal responsibility from 18 to 16 years, it came as a blow to the child rights activists across the country.
The Bill provides that in case a heinous crime has been committed by a person in the age group of 16-18 years, the Juvenile Justice Board may determine, if they should be tried as a child or an adult, after conducting a preliminary assessment as regards the capacity of such individual to understand the nature and consequences of his act. JJB may seek the aid of psychologists or psychosocial workers in conducting such assessments. Where JJB holds that the case is fit to be tried as an adult, the case is transferred to Children’s Court, which is a court designated to try the offences against children. The Children’s Court again looks into the question whether the child is fit to be treated as an adult, and if it finds it proper, the juvenile would be tried as an adult.
They can be conferred with any punishment prescribed under the law except the death penalty and imprisonment for life without release. Once convicted, these children will be moved to a ‘place of safety’ (which is different from Special Homes for Juveniles). If a person has completed 21 years, but has not completed their term in place of safety, the Children´s Court by itself or through a probation officer or the District Child Protection Unit or a social worker, can evaluate if such child has undergone reformative changes and if the child can be a contributing member of the society. Thereafter, they shall be released on such conditions which include monitoring for the rest of their term, or shall send them to jail for completion of the remaining term.
What is a heinous offence? A ‘heinous offence’, as defined in the Bill, is any offence under IPC or any other law in force, for which the punishment is a minimum seven years of imprisonment. This would by far include all offences like theft in dwelling house (S.381), robbery (S.390, IPC), dacoity (S.391, IPC), preparations for dacoity (S.399, IPC), belonging to a gang of persons habitually committing dacoity (S.400, IPC), dishonestly receiving stolen property obtained by dacoity (S.412, IPC), habitually dealing with stolen property (S.430, IPC), mischief (S.436-8, IPC), house trespass (S.450, IPC), counterfeiting (489A), abetment of offences punishable with death or imprisonment for life if the offence is not committed (S.115, IPC), collecting arms (S.121, IPC), culpable homicide not amounting to murder(304-Part I), attempt to murder, abetting commitment of suicide, voluntary hurt for extorting property (327), grievous hurt by acid attack (S.327, IPC), kidnapping or obtaining the custody of minor (S.363A, IPC), kidnapping or abducting to murder (S.364, IPC) and many other provisions.
Several other enactments like Narcotic & Psychotropic Substances Narcotic Drugs and Psychotropic Substances (NDPS) Act, Arms Act, Unlawful Activities (Prevention) Act, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Arms Act, Terrorist and Disruptive Activities (Prevention) Act etc. also prescribe offences punishable with imprisonment of seven years or more, thus bringing them within the purview of ‘heinous offence’. Thus, a 16-year-old could now be tried as an adult depending on the judgement of the Juvenile Justice Board in almost all kinds of crimes where a child could possibly land in, or be forced into, thus defying all the logic behind a juvenile justice system.
The popular outcry to reduce the age of criminal responsibility to 16 years became louder post the ‘Nirbhaya’ case, where the media reports projected a 17-year-old, and convict in the case as a monster. “Old enough to rape, old enough to hang” was the popular slogan. The Justice Verma Committee, which was constituted soon after the incident, had rejected the proposition that the age of juveniles should be reduced to 16. The NDA Government which came to power one year after this incident, took up this and brought the Juvenile Justice (Care and Protection) Bill, 2014 which sought to reduce the age of juveniles, among several other things. Increase in juvenile crimes- a myth or reality?
The basic premise in which the argument in favor of the treatment of children between 16-18 years of ages as adults itself is wrong, and is built upon certain misconceptions. The Statement of Objects and Reasons of the Bill states that there is an increase in the crimes by children in the age group of 16-18 years, especially in certain categories of heinous offences. However facts and figures show that juvenile crimes constitute only a minuscule of the total IPC crimes committed. Percentage of Cases of Juveniles in Conflict with the Law to Total Cognizable Crimes has remained between 1-1.2% between 2003 and 2014. As per National Crime Records Bureau, the total number of juveniles apprehended under IPC and Special Laws in the year 2014 amounts to 48230. Juveniles between 16 and 18 years apprehended for murder and rape constituted 1.7% and 3% respectively of all juveniles apprehended. They also constituted a meager 2.4% (844) and 4% (1488) of all persons arrested for murder (33981) and rape (36735) in 2013. Hence the perception that the children engage in significantly high number of criminal activities and that the malaise of sexual offences and other crimes in India would disappear/ even reduce once the juveniles are lodged in jail is clearly overstated.
Laws are not to be made on passions and emotions, but on facts, logic, reason and experience. When a law is made, it should be based on the generality of the situation, and not on exceptions. If laws are made to uphold the popular sentiments based on the exaggerated media reports unsupported by facts, it is likely to be counter-productive. Even if we are to believe that the juvenile in Nirbhaya case was the brutal of all, that one incident is not sufficient to justify a policy change in this direction.
If we look at the social milieu of the children who are alleged or found to be in conflict with law, it can be seen that most of them belong to a weak socio-economic background. More than 50% of the total juveniles apprehended has either not gone to school at all, or have dropped out after primary level; and more than 75% of them belong to families with an annual income less than Rs.50000. So, if we bring in an amendment now, it is those who constitute disadvantaged lot who will suffer. As a system, we failed them once, and now we are failing them again.
Several studies in neurosciences and developmental psychology have found that adolescence is a period of tremendous psychological, emotional, hormonal as well as structural development in brain, and a period of great vulnerability. An eminent psychologist from Bengaluru explains that “adolescents are less culpable than adults because adolescent criminal conduct is driven by transitory influences that are constitutive of this developmental stage. By nature of their psycho-biological profile, adolescents are greatly influenced by their environment, and too immature to weigh the consequences of their actions.”
Juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less risk-averse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions. The very age factor that makes them susceptible for negative influences makes their possibility for reforms as well. It is an often quoted argument that the children of present has access to information of all sorts, and know the consequences of their actions. However, what is to be noted is that information is no proof of maturity. Similarly, the brutality of a juvenile is no indicator that they cannot be reformed as responsible citizens of the nation.
Many people worry about the brim- what distinguishes a person who is 17 years and 11 months old and another who is 18 years and one month old? But this dilemma is bound to continue. As Sitaram Yechury quite eloquently put, “that you are now reducing it from 18 to 16. Tomorrow, if some 15-year and-eleven-month old commits a horrendous crime like this, then what? Will you come back here to again change it? Most of the recruitments into the ISIS are taking place at the age group of 14 and 15. Is terrorism not a heinous crime, Sir? Now, if that is 14, what are we doing? Are we going from 18 to 16, 16 to 14 and then go down further?”
One thing should be very clear. What is it that we seek to achieve by trying a juvenile as an adult and sending him to prisons? Are we proposing that we send our children to those already overcrowded jails, to be in contact with hardened criminals, and what else? Is it a finishing school for criminality that we are looking forward to for our children? Let us not forget the fact that many of these children are neglected children, the ones who have seen and suffered violence in their lives, who were born in streets or who have run away from homes. It is only reassuring that we give them a second chance in life. The people who work with the juveniles in conflict with law testifies that given developmentally appropriate treatment, proper care and counseling, we shall bring back these children back to track, to be law abiding citizens. The thirst for blood might come from an emotionally charged populace, but that does not augur well for responsible policy makers of the nation.
The transfer system that we envisage in the Bill is something which has been proven as counter-productive across the globe. Many countries like US & UK which followed this kind of transfer system has now accepted that it was not effective in reducing juvenile crime rate, and are preparing for a policy change. According to the National Campaign to Reform State Juvenile Justice Systems (U.S.), 80 per cent of the juveniles who are released from adult prisons go on to commit more serious offences. Over the past one decade, 23 states in US have enacted 40 pieces of legislation to reduce the prosecution of youth in adult criminal courts and end the placement of youth in adult jails and prisons. We ourselves had given away with it pro-actively in 2000, through the enactment of the Juvenile Justice (Care & Protection) Act, 2000, and surprisingly by the same Minister who is now pushing forward for quite the opposite. The Parliamentary Standing Committee which scrutinized the Bill has also expressed its strong dissent as against this provision.
The Juvenile Justice (Care and Protection) Act, 2000 was a well thought out, progressive piece of legislation. It lays down a clear framework for the rehabilitation and reintegration of juveniles, which includes provisions like social investigation, Individual Care Plans, education, counseling and vocational training. There is enough space within the current system to specially deal with those children between 16-18 years who has committed serious offences. However, several of its provisions were hardly used, and the requisite infrastructure for the implementation of the same was not built. The JJBs or CWCs are not sufficient in number, while many CWCs just exist in paper; special homes are inadequate; The Child Welfare Officers appointed in the police stations do not have sufficient expertise or training; inadequate counseling support and recreational measures. There is lack of coordination among the various statutory bodies, their accountabilities, performance appraisals, training and capacity building; and there is hardly any monitoring.
Every time an issue crops up, there is massive public outcry and heightened media attention, the Government responds with a new law and everyone is satisfied. That is perhaps the easiest thing to do than setting things right. What is required at the moment was a greater commitment towards the existing juvenile justice system in terms of financial allocation, training and cadre-building for its effective implementation.
It is really unfortunate that out of all the vices that has transpired in Indian soil, we today find our children as our greatest enemies. If some of our children have drifted into the world of darkness, it was because the world around him did not show him enough light to move on. Let us light a lamp, and bring them back, instead of pushing them in perpetual gloom. Now, the Juvenile Justice Bill, being passed by both the Houses of the Parliament, is before the President for his assent. We can only hope that the President would send the Bill for reconsideration of the Parliament.