Legislations passed in the wake of the Nirbhaya rape have been founded more on emotion than reason – but emotions make a poor basis for policies.
The Rajya Sabha approved the Juvenile Justice (Care and Protection) Bill, 2015 last December. The new Act will replace the prior legislation – the Juvenile Justice (Care and Protection) Act, 2000. The 2000 Act was passed to meet India’s obligations under the United Nations Convention on the Rights of the Child (UNCRC). Ratified by India in 1992, the UNCRC sets the upper age limit of 18 as the definition of a child. As has been well documented, one of the more contentious issues of the 2015 Bill is that it acquiesces to the clamour that juveniles between the ages of 16-18 be tried as adults for ‘heinous’ crimes.
By doing so, Parliament has not only broken its own traditions regarding juvenile justice but also ignored scientific and expert opinion on the matter. This is not the first time this has happened either; the Criminal Law (Amendment) Act, 2013 was passed ignoring some of the recommendations made by the Verma Committee. Both these legislations were brought about by significant public pressure resulting from the rape of Jyothi Singh, a.k.a. Nirbhaya in 2012. But it is extremely foolish to formulate public policy in response to one event, no matter how reprehensible. Policies are applicable to a wide range of situations; by formulating them in reaction to only one set of events, the government runs the risk of having faulty policies, albeit popular ones.
The Bill (according to the version passed by the Lok Sabha) already shows signs of such faults. It envisages 3 categories of offences: petty (the offence attracts a punishment less than 3 years of jail), serious (the punishment is between 3 to 7 years) and heinous (more than 7 years). A juvenile, aged between 16 and 18 years, who has committed a heinous offence can be tried as an adult if the Juvenile Justice Board deems he has the mental and physical capacity to perform the offence and understand its consequences. This assessment is to then be confirmed by a Children’s Court before it proceeds to conduct the juvenile’s trial as if he were an adult. If the juvenile is found guilty and sentenced, he or she will only be transferred to a regular jail at the age of 21. At this stage the Court may release the juvenile if he/she is found to be sufficiently reformed or rehabilitated.
First, the requirement for the assessment by the Board disregards the fact that multiple medical and psychological studies have found that the brain is insufficiently developed to comprehend such consequences at this age. Moreover, the Board is expected to determine this capacity without compulsorily consulting a psychologist or medical expert (the act does however allow the Board to do so and provides a degree in child psychology as one of the many possible qualifications for board members). The Bill further stipulates that the Board has one month less to dispose of the assessment than with petty and serious cases. This haste flies in the face of reason; if anything, an inquiry into a heinous crime should take more time. When taken together with the failure to necessitate an expert opinion, this haste is baffling given that the finding of the Board has the ability to permanently affect the life of the juvenile.
No doubt, many people will claim that juveniles have relinquished the right to such concerns by committing ‘heinous’ offences. But many juveniles will not be charged with perpetrating crimes as violent as the rape of Jyothi Singh. Moreover, this assessment is only of the mental capacity of the juvenile and is not a “finding of guilt”. The stated aim of both the 2015 Bill and the 2000 Act is to protect children and as such is supposed to be primarily concerned with the rehabilitation of juvenile delinquents. This is why all proceedings under the previous act were kept confidential and a conviction would not result in disqualification for government posts. However, the 2015 Bill removes this prevention of disqualification if the Children’s Court reaffirms the Board’s decision that the juvenile could comprehend the consequences of his ‘heinous’ offence. This means that juveniles will be disqualified even if they are found innocent at the conclusion of their trial or are deemed to be sufficiently reformed at the age of 21.
Finally, we arrive at the constitutionality of the Bill (this could be a separate article in and of itself). Under Article 14 of the Constitution i.e. the right to equality, the distinction between ages could be argued to be unconstitutional. The Supreme Court has only allowed the State to treat different categories of people differently if (1) the distinction is founded on ‘intelligible differentia’ and (2) that the ‘differentia’ has a rational relation to the object sought to achieved by the Statute (a.k.a. the Doctrine of Classification).
The Statement of Objects and Reasons included in the Bill claims that it is intended: “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.”
In all fairness, this intention is carried out for most of the Act, especially Section 3. But the differentia between the two age groups is, if anything, disconnected from this worthy intention. The severity of the punishment is in no way related to the protection of children, and even if it is, treating juveniles as adults capable of being jailed is not a “child-friendly approach” and is certainly not in the “best interests of children”.
The Statement of Objects and Reasons then also mistakenly tries to take the garb of constitutionality by citing, amongst other Articles, Article 15(3) and Article 39(f). Article 15 is a fundamental right and clause (3) empowers the State to make special provisions for children, but only for their betterment. Any provision that seeks to imprison children cannot thus rightly claim legitimacy from Article 15(3). Article 39 is a less enforceable Article that instructs the State to direct its policies to achieving a particular set of principles. Clause (f) of Article 39 states that children should be “given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity” and that “childhood and youth” should be “protected against exploitation and against moral and material abandonment.”
Given that most juvenile delinquents come from situations of exploitation or moral and material abandonment the State has clearly failed in this duty. Also of note is that the learned members of the Constituent Assembly wished to extend this protection to ‘childhood’ and ‘youth’, the latter of which clearly covers the 16-18 age group.
These are just some of the flaws apparent by a cursory glance of the Bill (as passed by the Lok Sabha). Many better and qualified experts will no doubt dissect the provisions of the final Act with greater precision and detail. But what is worrying is the wave of populism that brought this Act into being; indeed, the Bill achieved consensus in a Rajya Sabha when none thought such a thing possible. This populism is acknowledged in the Standing Committee Report on the Bill as are many of the objections mentioned above.
The Committee also questioned the empiricism of the claim that heinous crimes by juveniles have been on the rise. However, despite the urging of the Committee, its objections and recommendations were disregarded by a Parliament. Even though the Bill won’t affect the juvenile involved in the rape of Jyothi Singh, political parties were eager to garner acclaim from those seeking vengeance.
Photo: Charlie Hindhaugh