Aristotle, the so-called wisest human being of all times, characterised adolescents as less able to control their impulses and thus, more prone to risk-taking than adults. He concluded that “the young are heated by nature as drunken men by wine.” Freud saw adolescence as an expression of torturous psychosexual conflict; Erik Erikson, as the most tumultuous of life’s several identity crises. Adolescence has always been a problem. Today, there is a consensus among developmental neuroscientists that adolescence is an age of significant changes in brain structures and functions. Significant changes do take place in brain anatomy and activity far longer into development than previously thought. Even teenagers in the age group of 16 to 18 have difficulty with impulse control and with resisting outside influences and peer pressure. They too lack the capacity to fully appreciate the future consequences of their actions. At the same time, the systems in the brain that control emotions are highly activated, leading some to describe the teenage brain as “all drive and no brakes.”
Just because the juvenile convict in Delhi gang-rape case was released last Sunday after the Delhi High Court’s refusal to entertain a petition of that anti-child crusader called Subramanian Swamy, the whole nation is debating this issue and demonstrating not only our poor understanding of juvenile delinquency but also our firm belief in the outdated theories of punishment based on retribution and vengeance. Asking for death or other harsh punitive penalties shows our regressive thinking. One fully sympathises with Jyoti’s mother, who in an emotional outburst, said “crime has won and we have lost.” It is the responsibility of intelligentsia, particularly of our TV anchors, to bring some sanity and to have an informed debate. She and the nation have to be educated that no social good would be achieved by punishing this juvenile like an adult.
Justice Krishna Iyer rightly held in a case — “regrettably, our juvenile justice system still thinks in terms of terror, not cure, of wounding, not healing, and a sort of blind man’s buff is the result. This negative approach converts even the culture of juvenile homes into junior jails.” The latest cry for blood is justified due to the consequences attached to heinous crimes committed by a few juveniles in the age group of 16 to 18. But then, the State’s response in terms of repressive laws in violation of international law is the case of remedy being worse than the disease. Putting children with adult criminals would be self-destructive and self-defeating. Adolescents, who are in conflict with law, need adult guidance not the company of hardened criminals. In the company of hardcore criminals, they are bound to become street gladiators. While committing crimes with adults, they become most brutal. In Jyoti’s case, the juvenile was an orphan who had an abused childhood and was sodomised. The FIR did not name him.
The judge noted he was not the most brutal as was widely reported. His involvement in the rape had not been fully established. Moreover, he has probably been reformed as he was the most polite and disciplined child in the home. His fault probably was that he was at a wrong place at a wrong time. Violent and heinous crimes are generally committed by adolescents when they are emotionally aroused and are with their adult friends — these two factors lead to dramatic increase in the likelihood of their impulsivity and sensation seeking. The Delhi gang-rape was tragic but using this incident to take away the rights of juveniles is not justified. Just because one of the accused happened to be a juvenile, a new Juvenile law advocated by Maneka Gandhi and passed by Lok Sabha providing for the trial of juveniles by adult courts is not justified. Let us not follow Saudi Arabia, Sudan and Yemen in punishing children as adults. We should not convert this battle into women versus children. To protect one vulnerable group, we cannot take away rights of the other.
The American Supreme Court in 2005 abolished death penalty for children below 18 years of age. Recently, it ruled against life imprisonment without parole in all juvenile crimes. It is painful to note that an otherwise liberal apex court of India has lately been insisting on harsher penalties for juveniles. Our judges should lead the country in adopting progressive and liberal sentencing policy, particularly in cases of juvenile delinquency. As to the so-called rapid rise in juvenile involvement in heinous crimes, problem is not as serious as it is made out to be. Out of the total incidences of crime, 27,936 crimes were under the Indian Penal Code (IPC) and 4,037 under the Special and Local Laws (SLL). Children committed just 1.2% of the total of 2,387,188 crimes. Thus, out of 100,000 children, only 2.3 children were arrested for commission of any offence. In the last decade, juvenile crime has shown only fringe increase. Compared to other western countries, figures of juvenile delinquency in India are quite low. The UK and USA have a rate in the range of 11 to 13 per cent. But neither the US nor the UK is thinking of juvenile trial by adult courts.
The very use of the term juvenile is problematic as it gives a negative impression and the child is conceived as one involved in a criminal activity. It surely stigmatises a child even prior to conviction. All laws on the subject from 1920-1986 had consistently used the word ‘child.’ The term ‘juvenile’ was substituted for ‘child’ in the 1986 legislation. Indian Parliament enacted the Juvenile Justice (Care and Protection of Children) Act 2000. This law laid down the uniform age 18 years for boys and girls in defining a ‘child.’ As to the date on which this 18 years age would be seen, the apex court has held that it shall be the date of the commission of alleged crime.
Subsequently in 2006, Parliament amended the law to lay down commission of crime as the day for the determination of age. The UN has also recommended 12 years as the minimum age of criminal responsibility and non-transfer of children to adult proceedings till the age of 18 years. Due to media and public pressure, by passing the new juvenile bill without proper discussion, Rajya Sabha has lowered India’s international image and has done a huge disservice to our children. The President should deny his assent to the Bill or the court should strike it down as unconstitutional as the classification made by the Bill is arbitrary and has no rational object to achieve.
Teenagers prosecuted in adult courts fare worse in life and can go on to commit more violent crimes than those who are handled by the juvenile justice system. Transfer of children from juvenile justice has serious repercussions on children and must not be done without scientific reasons for the same.
As a matter of fact, evidence shows that rate of recidivism is higher amongst the juveniles who are sent to adult criminal justice system and the proposed change would not achieve its stated objective. The transfer of a child from juvenile justice to adult courts is as severe as imposition of death penalty as it is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood. Both decisions signify a life not worth saving. Let us not condemn and demonise our children.
The author is Vice-Chancellor, NALSAR University of Law, Hyderabad. Email: firstname.lastname@example.org