India can be proud of its youth. Prime Minister Narendra Modi frequently refers to the world’s highest number of youth in India as its great asset to help the country prosper in the future. But children between 16-18 years of age are declared as ‘adults’ if accused of heinous crimes, i.e., rape, murder, dacoity. All those young persons will be tried as adults, jailed with them, facilitating their complete criminalization.
In the aftermath of the Nirbhaya gangrape in a moving bus, and in the wake of misleading propaganda by media suggesting that the juvenile involved in the crime was the most brutal, in a surcharged emotive atmosphere where consent for criminalising juveniles was manufactured, Parliament chose to replace the Juvenile Justice (Care and Protection of Children) Act of 2000 with a new 2015 Act challenging the principles of rehabilitative justice considering juvenile as criminals (juveniles between 16-18 years of age involved in heinous offences can be now tried as adults). It’s a retrograde law that does not give any chance for rehabilitative justice and reformative concepts, and against criminological conclusions solidified over centuries.
Still, this new law will not send the juvenile offender in the Nirbhaya gangrape back to prison as Article 20(1) of the Constitution will not permit a ex-post-facto legislation to work to the disadvantage of the accused. Criminal law cannot have retrospective effect. It is a fundamental right which cannot be altered. The parents of Nirbhaya should realise that this law does not fulfill their demand, but harms all youthful offenders between 16-18 in coming generations, as they will be jointly tried and jailed with adults, which might in all probability result in turning the juveniles into hardcore criminals. Do the parents of Nirbhaya want more such crimes committed by these criminalised juveniles unleashed on the streets?
According to the new law the Juvenile Justice Board (JJB) will decide whether a juvenile in 16-18 age group should be tried as adult or not. This is a great relief, in fact, as there will be no mass sending of juveniles to ordinary courts and jails of adults. The law also accommodates concepts from the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 and provides for the adoption process of orphaned, abandoned and surrendered children to be made more streamlined. This also brings in much required foster care to this country. Three new crimes are introduced. One, a person giving alcohol or drugs to child will be punished with seven years of imprisonment and/or `1 lakh fine. Two, a person inflicting corporal punishment will be punished with a fine of `10,000 or three months of imprisonment and three, a person selling a child will be fined with `1 lakh or five years in jail.
All these are fine but the introduction of the ‘judicial waiver system’ is not. This allows for the recriminalisation of juveniles and denies rehabilitation to those juveniles whom the JJB decides to treat as and along with adult criminals, without looking into criminological reasons and circumstances that caused the crime that may have been facilitated by ineffective governance and corrupt administration. The Standing Committee of Parliament rightly rejected this aspect.
Further, age determination tests in this country are not accurate and corruption-free. A deliberately wrongful determination of a juvenile as an adult will ruin a life. This raises questions about maturity level and so-called civilisation status of our society.
It is not an issue of just one individual, like the juvenile convicted in the Nirbhaya case but about millions of youth who are growing up as child labourers, living in slums, inheriting alcoholism, getting little access to education, maybe in the company of criminals, under the influence of sensational television serials which demonstrate the methods of commission of a crime, claiming to be based on real incidents, and movies projecting themes of revenge and glorifying criminals as role models.
Protests against the release and demands for extension of the detention of the juvenile offender in the Nirbhaya case are because of misconceived anger based on propaganda that he was the most brutal, which was never contended nor argued nor mentioned. Neither in the complaint nor in depositions of victims nor in the JJB order was brutality pleaded. The no-holds-barred campaign about brutality, emotionally spurred the most unreasonable and illegal demand for the extension of his detention which was rightly rejected by all judicial fora.
It is very harmful to treat juveniles who are a few months older than 16 year-old children and yet short of adulthood by separating them from others because of their involvement in heinous crimes such as murder and rape. Such treatment will not result in any additional justice, but rather will spoil the chances of the youth’s rehabilitation and reintroduction into society.
What is the research? Where is the data or analysis that shows that juveniles leaving reform homes are unreformed? At least a few of the many juvenile delinquents in rehabilitation centres can at least hope to be reformed and rehabilitated rather than be turned into incorrigible criminals, guaranteed if they were allowed to be incarcerated with adult criminals. It is factually baseless and legally untenable. Civil society should reconsider whether we are committing a serious crime by allowing juveniles in conflict with the law to be associated with mature criminals. It is totally against the notion of juvenile justice and the goal of freeing childhood and children from criminal influences.
The Juvenile Justice law, before the changes, was better as it allowed juveniles in conflict with the law to have a chance of reform at the juvenile home (if not at home) rather than languishing in bad jails with worse criminals where there is no hope for post-release rehabilitation. A chance to remove criminality, instead of killing criminals is being lost. The civil society, which is called the fifth estate now, with powerful social media support, should not forget that we are responsible for the criminalisation of childhood and we have a duty to reform and rehabilitate rather than to be retributive.
The author is an Indian academic and Central Information Commissioner.
e-mail: professorsridhar@gmail.com