What You’ve Probably Not Noticed About The Juvenile Justice Bill

Posted on December 26, 2015 in Society

By Abhimanyu Singh : 

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
Image source: REUTERS/Anindito Mukherjee

The new Juvenile Justice Bill has created a furore and it was not unexpected. The issue has been on the boil for three years, since the gruesome rape and murder of Jyoti Singh Pandey on 16 December 2012. Public sentiment has been greatly attached to the case. Somehow, during these three years, a misconception spread that the juvenile rapist was the most brutal of the six who assaulted Jyoti. This made the juvenile’s recent release abhorrent to a substantially large section of the population who wanted stricter punishment for him, notwithstanding the fact that there was no provision in the law for doing so. This group seeking harsher penalty on the juvenile was led by Jyoti’s mother Asha Devi, which added an emotional charge to the demand.

In a special gesture, the Rajya Sabha decided to pass the Juvenile Justice Bill earlier this week as a nod to public sentiment, considering the timing of the new protests against the release of the juvenile.

The new Bill does not seem to please anyone in particular and in that lies its worth. Any nuanced piece of legislation which does not play to the gallery – on any side of the ideological divide – is bound to be criticised by those who either hold extreme views or the ones who have made up their minds that the incumbent government can do nothing right.

Bill’s Liberal Provisions Are Being Under-Looked

I was surprised, for example, that even the very erudite Brinda Karat of the CPM seems to believe that juveniles over 16 years of age will be sent directly to Tihar following the new law.

“Sending 16-year-olds to jails like Tihar to serve a seven-year sentence is more likely to create hardened criminals.
The present maximum term of three years in the JJ Act could have been enhanced through an amendment that after the three years, there could be a system of a halfway home in which the released juvenile/adult could stay, being monitored and supervised to assist in his/her mainstreaming with the aim of reform not retribution,” she wrote in an opinion piece right after the law was passed by the Upper House as the Winter session of the Parliament drew to a close.

The irony is, this is exactly what the Act stipulates. Section 16, clause one of the new Act says that “In case of a heinous offence committed by a child who has completed or is above the age of 16 years, the Board shall conduct a preliminary inquiry 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, and may pass an order in accordance with the provisions of sub-section (3) of section 19: Provided that for such an inquiry, the Board may take the assistance of experienced psychologists, psycho-social workers and other experts.”

This is what sub-section (3) of section 19 says: “Where the Board after preliminary inquiry under section 16 comes to the conclusion that there is a need for further trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.”

Put simply, just because someone is 16 years of age or more, and has committed a heinous offence – murder or rape for example – they will not even be automatically tried as an adult. The new Act puts in a new system in place to first determine if the accused should be tried as an adult. (The Board here stands for the Juvenile Justice Board which will consist of a judicial officer and two social workers, one of whom must be a woman.)

Once the Board decides that a child over 16 should be tried as an adult and sends the case to Children’s Court, the usual method of conducting a criminal trial, under the Code of Criminal Procedure, will kick in. However, the child, to start with, cannot be sentenced to life imprisonment without possibility of release or death, which is in tune with the international convention on child rights to which India is a signatory and which is invoked at the beginning of the new Act.

Moreover, even if the Children’s Court decides to convict them, the new Act says that the order for the same must contain a rehabilitation plan which should be followed up by a social worker or a government official.

The Act then goes on to say that “The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:
Provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.”

It is to be noted that the new law has provided for exactly what Ms. Karat believes is missing: a half-way home where an attempt can be made to bring them back to society. Nowhere does the law say that the child who is over 16 and has committed a serious offence will be sent directly to Tihar if convicted.

In fact, the new Act says that once the child is 21, and their sentence is not yet over, a fresh look will be taken at their situation and if found sufficiently rehabilitated, they shall be released and no records of their crime and incarceration will be kept.

A Necessary Stop-Gap Measure

Of course, this does not absolve the state of its duty. I do agree with those who say that the law will end up hurting the poor more as most juveniles come from such a background. Article 39 of the Indian Constitution, which delineates the Directive Principles for state policy, provides that the state should make sure that children are accorded every opportunity to develop themselves in a wholesome manner and their lives should be free of exploitation and drudgery. It is indeed shameful that after so many years of independence, we have not been able to make that pledge a reality and till that happens, the law will only be a stop-gap measure, a reminder in fact of our failure. But sometimes, stop-gap measures too are needed till the long-term plan reaches fruition.

The matter of proper implementation of the new law has also been raised. Naturally, a complex piece of legislation can come undone if it is implemented in a slip-shod manner or attempts are made to misuse it. It will be incumbent upon the state to make sure that it does not happen.

For example, concerns have been raised that false rape charges can be thrust by parents of the girl in cases of elopement by a minor couple. This means the Board would need to apply its mind with great precision to reach a decision. It must be mentioned here that it is indeed worrisome that the judicial officer would have the final say in case of a dispute among members of the Board. This right should be given to one of the social workers instead who have more familiarity with the situation on the ground.

On one another matter, there seems to be some confusion. The Act says the juvenile convict can not be awarded a death sentence or a life term without possibility of release. However, it does not stipulate the maximum number of years that they could be made to serve.

Finally, it is welcome that the Act also stipulates punishment for crime against children, including their use by militants.

It remains to be seen how the Act is implemented and applied practically.

To know what Jyoti Singh’s mother Asha Devi has to say about the Bill, read an exclusive interview with her here.