December 16th, 2012. We all remember that date. It’s been burnt into the memory for some people because of the horrific incident that took place whereas for some others the repeated emphasis and spotlight on it has made them accustomed to it. Regardless, what happened on that eventful night shook the entire nation so to say; but to be honest it was what happened after that day that was both immensely gratifying as well as shameful. Scores of people gathered on the streets to fight for justice not just for the infamous “Nirbhaya” but for every woman, girl who has been a survivor or victim of horrific sexual assaults. One of the key issues that came up with this case was the punishment to be given to the Juvenile in the accused. When after initial proceedings of the case, the juvenile was let off with just 3 years in a reform home the anger erupted again as people could not believe that just because he was a couple months short of being 18, he wouldn’t be tried before a criminal court. The Juvenile Justice (Care and Protection of Children), 2000 does not permit detention of juveniles beyond three years irrespective of the gravity of the crime, the principle behind this is that juveniles lack the physical and mental maturity to take responsibility for their crimes and because their character is not fully developed, they still have the possibility of being rehabilitated, and it is exactly this that demanded and brought about a review of the entire act and amendments were made. The Juvenile Justice Act was enacted in the year 2000 with an aim for incorporating India’s international obligations under international law under its domestic legislations.
The Bill was drafted in June by the Ministry of Women and Child development to change the country’s juvenile justice law. The Juvenile Justice Bill, 2014 seeks to enact a law by consolidating and amending the law relating to children who are in need of care and protection. It seeks to cater to their developmental needs through proper care, protection and treatment by adopting a child friendly approach in the adjudication and disposal of matter, and for rehabilitation through processes provided and institution established under the proposed new enactment.
The Juvenile Justice Bill primarily consists of two parts, 1. Child in conflict with law 2. Child in need of care and protection. The bill also included the presence of a child welfare committee to look after matters pertaining to “Child in need of care and protection” and juvenile justice boards to look after matters pertaining to “Child in conflict with law. Despite it being true that the proposed amendments came against the backdrop over the lighter punishment of 3 years given to a minor convicted in the December 16th, 2012 Delhi gang-rape case the bill concerned itself with a lot more than just the issue of Juveniles convicted in heinous crimes.
Amendments
When introduced, all debate and focus went to the provision of reduction of the juvenile age from 18 to 16 years, which though being true was not the key and only feature of the Amendments proposed. One key feature introduced is the concept of foster care in the country, for those who don’t want to adopt. Some other salient Amendments proposed are:
1. the bill is to pave the way for 16-18 year olds to be treated as adults when involved in heinous crimes such as rape, acid attacks, etc.
2. It empowers the Juvenile Justice Board to decide whether a minor above 16 years involved in a heinous crime is to be sent in an observation home or tried in a regular court.
3. The bill stays firm on the stand that Juveniles cannot be given death sentence or life imprisonment under any circumstance.
4. It criminalises corporal punishments and ragging, with the punishments for them being. Corporal Punishment – A jail term of maximum 3 years. Ragging- A jail term of maximum 3 years or fine of Rs.10, 000 or both
5. Also includes facilitation of faster adoption of children and setting up of foster care homes. The Central Adoption Resource Authority (CARA) has been proposed as the statutory body, which will have powers to regulate inter-country adoptions along with issuing guidelines on adoption and related matter. Though even in the past there had been cases where CARA guidelines had been relaxed to facilitate adoption, a permanent change was required to accommodate changing circumstances. In the case of Hashmi v. Union of India (2014) the apex court held that the right to adopt and to be adopted is a fundamental right, and also held that every person, irrespective of the religion he or she professes is entitled to adopt.
Questions.
Of course there’s questions. Specifically why questions, so we’re going to tackle two of them and explain the reasons behind them better. 1. Why can’t the juvenile age bar be reduced completely to 16? What is the apprehension behind it? Ans. The critical reasons as to why there’s a distinction between crimes committed by persons above and below the ages of 18 is: Maturity and Hope for reformation. It is genuinely believed that children per se do not attain maturity or understanding of their actions and the resulting consequences and hence should not be punished without been given a chance. This age of maturity after much deliberation and debate was set at 18, being a societal as well a scientific age of attaining adult hood per se. So the key issue regarding maturity in juvenile cases becomes that should the law hold someone absolutely accountable for committing an act which he doesn’t completely understand or cannot apprehend the consequences of it? The idea that needs to be kept in mind while trying to answer such a question is that India follows a system or retributive as well as transformative justice, which basically means that the law believes that justice isn’t served just by giving a reasonable enough punishment to the perpetrator but when the perpetrator is also given an environmental and the opportunity to reform himself/herself to be a part of the society. With that in perspective, it’s undeniable that the possibility of a juvenile reforming him/herself and becoming a functioning part of a society again is quite high and that chance cannot be denied to them. Due to these reasons primarily, the juvenile age should not be reduced to 16, also just reducing the age won’t serve as a magic bullet to tackling the problems of increasing juvenile crime. By reducing the age to 16, do we mean to say that a juvenile of the age 15 committing a murder or rape should be let off the hook? It will serve more as a deterrent than bringing any change whatsoever. As mentioned in the Justice Verma Committee report, “Assuming that a person at the age of 16 is sent to life imprisonment, he would be released sometime in the mid-30s. There is little assurance that the convict would emerge a reformed person, who will not commit the same crime that he was imprisoned for. Our jails do not have reformatory and rehabilitation policies. We do not engage with inmates as human beings. We do not bring about transformation.” To subject a child to such brutality when there is hope for reformation is gamble we shouldn’t be so ready to take.
2. When it is being agreed that juveniles committing heinous crimes will be tried as adults in courts, then why can’t they be given death sentences or life imprisonment? Ans. The answer to this lies in the landmark judgement in the Roper v. Simmons case in the United States. In this case, the Supreme Court rules that capital punishment may not be imposed for crimes committed as minors. The opinion delivered by Justice Anthony Kennedy declared that minors had diminished culpability due to immaturity and therefore their execution was cruel and unusual under evolving standard of decency, and this opinion has stood and been cited in numerous other cases. However there are also many that question the diminished culpability of juveniles and opinions prevail that setting the age of adulthood at 18 is arbitrary and is a cultural evolution more than a scientific one, dictated more by going to college or being drafted for military service and not just by the psychological assessment of attaining maturity. The argument to lower the juvenile age limit in select case is exactly what the Roper v. Simmons opinion warned against – the lower age limit is sought only for some crimes as the public is swayed by an emotional response to brutality than by reason alone.
THE QUESTION THAT NEEDS TO BE ASKED:
As a nation with the largest population of children in the world, have we given much thought to the reason behind which children turn to crime? That’s the question that needs to be thought of, discussed, debated and corrected. The reason why children turn to crime, why juvenile crime is increasing at an alarming rate. So, have we given thought to the reason? No, instead we jump to wanting to reduce the age of a child to 16 years and make amendments to laws the will affect the greater part of society that needs such laws protecting them. The issue of neglect in a country where a third of the population lives below the poverty line is impossible to overlook.
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