“AMENDMENT” OR “APPEASEMENT” by Shubham Verma

INTRODUCTION

Prof. P. Koteshwar Rao in his book “Pearls of Justice and Progress” says “the child is the highest, latest and greatest conscious form of the parental creative, super conscious expression of all the pervasive primordial instructable ground norm of the universe.” It is the extension of the arm of reflection of the parental love that showed its manifestation. The golden words of Maria Montessori are roaring in the ears that “humanity shows itself in all its intellectual splendor during this tender age as the sun shows itself at the dawn and the flower in the first unfolding of the petals and we must respect religiously, reverently, these first indications of individuality”. The sum and substance are that the child is an incarnation of divinity and be looked with reverberated reverence.[1]

It seems like when our legislatures were making the amendment to Juvenile Justice Act they totally forgot to consider these types of statements. Because if they would have had even a cursory look at these principles they would not have made such a hasty amendment to this law, which places a sword of Damocles over every child born after 1997 in India. This can be called a result of populist politics because it seems that this amendment has been made to appease the angry mob. There is no doubt that the incident that happened on December 16 was very unfortunate and such incidents must be condemned by the society. But does it mean that because of one incident you can put the future of a whole section of society at stake?

First let’s look at the stats, so as to have a clear idea of how much threatening this problem of juveniles is? There are only 1.2% of all the children in our country who are in conflict with the law. And the thing worth noting is, that heinous crimes, which this amendment has sought to address constitute only 2.1% of all the crimes committed by juveniles. This means those children who are in conflict with the law for heinous crimes are nominal. Then to whom are we afraid of, and why?

I wish that before taking this step our legislators would have looked on Supreme Court’s judgment in the case of Salil Bali v Union of India[2] where it was clearly laid  down  by the then Chief Justice of India Altamas Kabir, “there is little doubt that the incident, which occurred on the night of 16-12-2012, was not only gruesome but almost maniacal in its content, but such an incident, in comparison to the vast number of crimes occurring in India, makes it an aberration rather than the rule.” Moreover, to that, our legislatures even don’t bother to deny the recommendation of Justice J.S. Verma Committee which was setup on the pretext of Nirbhaya case to analyze the rape law and the age of juvenile justice. Committee report did not recommend the reduction in the age of juveniles in conflict with the law and has maintained it for 18 years. When we talk about International standard it would be appropriate to take note of General Comment No. 10 made by the UN Committee on the rights of the child, which specifically dealt with the upper age-limit for the juveniles, every person under the age of 18 years at the time of commission of the alleged offence must be treated in accordance with the Juvenile Justice Rules.

There are two assumptions which can be put in support of this amendment:

  1. That the age of 18 years for juveniles is being set arbitrarily; and
  2. That by reducing the age, for the purpose of defining a child in the act, criminality amongst children would reduce.

Dealing with these assumptions in Salil Bali case[3] it was argued that such an approach was flawed as it had been incorrectly submitted that the age of 18 years to treat persons as children were set arbitrarily and that it is so difficult to comprehend the causes and the environment which brings children into delinquency. The answer lies in the effective and sincere implementation of the different laws aimed at improving the conditions of children in need of care and protection and providing such protection to children at risk. One more argument in support of this amendment can be “a juvenile convicted of heinous offenses, was almost likely to become a monster in society and pose a great danger to others, in of his criminal propensities.” To this, I would say that by arguing this you are not justifying the amendment rather you are showing your disbelief in the system which talks about the rehabilitation and retribution of juvenile and focuses towards settling them back in the mainstream of society.

IDEA OF JUSTICE

I have a firm belief that before enacting this law the lawmakers must have asked this question to themselves, what is the idea of justice? What does actually the justice tries to serve? Does justice can only be served by punitive measure or we can serve justice even by using corrective order to wean people from error and to rehabilitate the young. These questions have more weight when it is the case of children because most of the time they commit a crime only because they are not able to understand the nature of act as they are not capable enough both mentally and emotionally to understand the consequences of such act. If we think that this new law will be effective because of deterrent effect then we should think again because in most of the cases where a child is in conflict with the law he/she is not even aware of consequences then how can a law deter him/her. More over to that recent studies not only in America but in India as well have very categorically found that the part of the brain which is helpful in making you receptive of the court proceedings as to what is going on, it does not develop before you attain a certain age and that age is after 20 yrs. So basically we are transferring a child to the adult criminal justice system, which is full of complexities where the juvenile will not properly defend himself and the reason is because he would not be able to understand the nature of proceedings that are going on. As far as the Act of 2000 is concerned it provided a very simple procedure called summery trial for that someone need not have that much of legal maturity as to understand the proceedings. But you need a fully developed brain in order to appreciate what we call a sessions trial and children at the age of 16 to 18 yrs who accused of heinous crimes and the JJB decided that they should be tried as adult would be worst sufferers. If it is not a clear violation of Article 21 of the Constitution then what would be?  At most, I can say that this amendment act is only the codification of our feudal, bloodthirsty tradition of revenge, of gouging out 10 eyes for every eye lost, which is very unfortunate. Even regarding the old law while dealing with the case CJ Kabir said, “the essence of the JJ Act, 2000 and the Rules framed there under in 2007, is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with the law into mainstream society. The age of eighteen has been fixed on account  of the understanding of the experts in child psychology and behavioral patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of abandoning them to become hardened criminals in future. There are, of course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and reintegrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.”[4]

Effect and Consequences

Talking about the effect, as I said, in the beginning, this act would be placing a sword of Damocles over every child born after 1997 in India. The large section of society which will be most affected by this law is of Poor. Studies tell us that, 55.60% of juveniles in conflict with the law are from the households whose income is less than Rs. 25000 p.a. and 58% of offenders have completed only primary education. The question is to whom are we trying to punish? These are the one who are in need of education and opportunities, instead of that we are trying to treat them as hardcore criminals. May I ask why?

We do not need this at all what we need is a response not to the nature that took place after juvenile apprehended in Nirbhaya case released but the response that reflects needs. That response is to strengthen the juvenile justice system, not to weaken and destroy it. Laws are considered an instrument of justice they cannot and should not be changed for one instance alone.

As far as the consequences are concerned, let me put you a situation before; suppose a child has committed the offense of culpable homicide not amounting to murder. Now the general practice is that police never register a case under Section 299 of IPC i.e. Culpable Homicide not amounting to Murder, it is always the court who would decide whether the case falls under Section 299 or 300 of Indian Penal Code. As the case will be registered under Section 300 of IPC which is a heinous crime the juvenile will be tried in the adult criminal court. The law provides regarding the transfer to the adult criminal justice system; there should be a psychological assessment leaving aside the nature of the crime. But unfortunately, the general practice is, the Magistrate (Head of the Juvenile Justice Board) consider it a pious duty to transfer the juvenile in a case of heinous crimes. The question is what if the session judge will find that the act falls under Section 299 of IPC which is not a heinous crime. Now, what about the juvenile who spent this much time in adult prison while the trial proceedings were going on. Is it not the violation of his Fundamental Rights under our Constitution? Is it not the violation of Article 14 of the Constitution as you carved out another category of Children of the age group between 16 to 18?

Also, this law can be very easily misused in cases of adolescence indulging in consensual sexual intercourse. If a teenager (especially boy) found to indulge in  physical relation with a girl who is also a teenager the boy now can very easily charge for rape and tried in adult court even if  the act was in consent with the girl because this is what the law is.

Studies

There is N number of studies at International level which tells that when it comes to juveniles the punitive system proves to be a disaster for them. A US study says that 80% of release juveniles from adult prison are going to commit more serious crimes. Mark Lipsey and Francis Cullen’s recent comprehensive meta-analytic review of the empirical studies concluded that incarceration generally does little to curb criminal propensities while nonresidential programs are fairly successful in this regard.[5] Recent evidence confirms that secure detention and incarceration of youths contribute to mental health problems, impair future employment prospects, and foster crime.[6]

One study found that juveniles who were detained were three times more likely than youths subjected to community-based alternatives to be subsequently committed to a juvenile facility, even after controlling for relevant factors such as the severity of the offense.[7] And even when youngsters have been able to benefit from therapy while in institutional settings, they tend to recidivate once they return to the same social environments that contributed to the development of their initial delinquent conduct. Moreover, detention can impede the aging-out process that normally diminishes criminal behavior.[8]

 

Provisions of the new JJ Act are not only contradictory with Fundamental Rights given by constitution but also in conflict with its own object which says, “to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.”[9] Child-friendly approach it says but suddenly when it comes to those cases in which the child is 16-18 years old this approach disappear. The act also talks about the Best interest of child [Sec. 2(9)], Principle of dignity and worth [Sec. 3(ii)], Principle of best interest [Sec. 3(iv)], Principle of safety [Sec. 3(vi)]. But all this kept aside when the case is about a child who is in the age group of 16-18. Is it not the act of depriving him of his right to be treated equally?

Conclusion

This amendment is based on the principle ‘Malice supplies the age’ which take us to the dark ages of Common law. The meaning of the principle is that if I have the criminal propensities to commit heinous crimes I must be treated as mature.

This doctrine of Common Law discarded long back by many civilized countries but unfortunately, we are seeing the reincarnation of it in our Juvenile Justice (Amendment) Act, 2015.

The child is the incarnation of divinity. Its innocence and smile are its greatest and enchanted virtues which can dazzle and hypnotize even a person endowed with a heart of stone. However, being physiologically and intellectually immature, the child is vulnerable to the onslaughts of harshness and its tenderness can be wounded so easily. Our justice system must be about rehabilitation and not about retribution. We confuse revenge with justice, not realizing that the two ideas are fundamentally opposed. Since the days of Buddha, no idea of justice has roomed for vengeance. Are we right in denying our 16-18-years-old children the slim chance to salvage their live and become responsible and productive citizens – just so that we can satisfy our urge for vengeance?[10] It can not be questioned that children are amongst the most vulnerable sections of any society. They represent almost one-third of the world’s population, and unless they are provided with proper opportunities, the opportunity of making them grow into responsible citizens of tomorrow will slip out of the hands of the present generation.[11] It is our responsibility it is our duty that the children below the age of 18 must be saved from prisons; we cannot sacrifice a child to appease political settlement we cannot do this just because few members of the society have some grievances in an exceptional case and to appease them we put the future of a large number of innocents at stake. What we needed actually is not this law amendment but we needed a perfect program of child protection under the juvenile law. So that we can save our most precious asset for future glory. The child is our future we must protect the child, rescue the child and do not destroy the child.

The test of any country is not what kind of malls it has, not what kind of cars running on the roads. But the test is what kind of law you have and what is the approach of the State. If you have progressive laws you are a progressive society, if you have regressive laws your society is regressive. And by having laws like this we fall into the regressive one.

[1]SUMANNALWA, HARI DEV KOHLI, COMMENTARY ON THE JUVENILE JUSTICE ACT 12 (Universal Publishing, 1st ed., 2011).

[2]Salil Bali v. Union of India (2013) 7 S.C.C. 705.

[3] Id at 705..

[4] Id, at  63

[5] Mark W. Lipsey& Francis T. Cullen, ‘The Effectiveness of Correctional Rehabilitation: A Review of Systematic Review’, 3 Ann. Rev. L & Soc. Sci 297 (2007).

[6] Barry Holman & Jason Ziedenberg, ‘The Dangers of Detention: The Impact of Incarcerating Youth in Detention and Other Secure Facilities’, Justice Policy Institute Washington, D.C. (2006).: http://www.justicepolicy.org/uploads/justicepolicy/documents/dangers_of_detention.pdf, (last seen on 11/03/ 2016).

[7] Id at 5.

[8] Richard G. Wiebush et al. ‘Implementation of the Intensive Community-based Aftercare Program’, Juvenile Justice Bulletin, U.S. Department of Justice Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (2000) https://www.ncjrs.gov/pdffiles1/ojjdp/181464.pdf, (last seen on  11/03/ 2016).

[9] Juvenile Justice (Amendment) Act , 2015.

[10] G. Mohan Gopal, ‘Don’t appease the mob’, The Indian Express, 22/12/ 2015.

[11]Salil Bali v.Union of India, (2013) 7 S.C.C. 705.

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