The argument over the Juvenile Justice Act India

MIGUEL DAS QUEAH argues that there should be more emphasis in creating preventive systems of care and protection that would deter criminal behaviour amongst children

On the 22nd May of 2012, the Government of India passed a new law to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith, that came to be known as “The Protection of Children against Sexual Offences Act of 2012”.

 On the 16 December 2012 a female physiotherapy student was gang raped in a moving bus, by four men, in New Delhi. She succumbed to her injuries thirteen days later, despite receiving treatment in India and Singapore.

 The incident generated international outrage and was severely condemned by many organizations including the United Nations Entity for Gender Equality and the Empowerment of Women, who urgently called upon the Government of India to undertake every progressive measure in their capability to take up radical reforms for ensuring justice and to reach out with healthy public services for making women’s lives more safe and secure”.Massive public street protests took place in Delhi and in major the cities throughout the country.

 On the 22 December 2012, a judicial committee headed by Late Justice J. S. Verma was appointed by the Government of India to submit a report, within 30 days, to recommend amendments to the existing criminal law to sternly deal with cases of sexual assault.

 On the 23 of January 2013, the Committee, thereafter, submitted a report after considering about 80,000 suggestions received by them from public  and particularly prominent jurists, legal professionals, NGOs, women rights groups and the civil society.

 The report clearly indicated that shortcomings on the part of the Government and the Police were the primary cause behind the growing crimes against women in India. The suggestions of the report included the need to review the maximum punishment for rape as life imprisonment and not death penalty and some other stringent sanctions against rape.

 On the 1st of February 2013, the sitting Group of Cabinet Ministers approved about bringing in an ordinance, for giving life to the changes in law as suggested by the Verma Committee Report. According to former Minister of Law and Justice, Ashwani Kumar, 90 percent of the suggestions given by the Verma Committee Report have been incorporated into the Ordinance.

 The ordinance was subsequently replaced by a Bill with numerous changes. The Bill was passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, making some changes from the provisions in the Ordinance. The Bill received Presidential assent on 2 April 2013 and came into force from 3 April 2013 as “The Criminal Law (Amendment) Act, 2013”

 In April 2013, a five-year-old girl was raped in Delhi by her adult neighbour.For three days, the child was kept locked up and assaulted by the neighbour in a basement just below her home.

 In May 2013, a four-year-old girl was araped and sodomised by her neighbour in South Delhi. The police said that the girl alone at her home when the incident took place. Her parents had gone out for work.

 In June 2013, it came to notice that a twelve year old girl was repeatedly raped by her father for over a year in Madhya Pradesh.The girl’s mother had died two years ago and she was living with her father since.

 In July 2013, a group of men brought a sex worker into the Shakti Mills compound in Mumbai and raped her. Following the assault the offenders recorded a video clip and took photographs of the victim to intimidate her.

In August 2013, a 22-year-old photojournalist, who was interning with an English-language magazine in Mumbai, was gang-raped by the same group of men when she had gone to the deserted Shakti Mills compound,in South Mumbai on a work assignment.

In September 2013, a 32 year old physically challenged woman was gang-raped on in the Ahmednagar area near Shirdi in Maharashtra.

The woman, who can’t speak or hear, was kidnapped by four men who took her to the fields near her home and raped her.

 In October 2013, a 13 years old in Uttar Pradesh was gang-raped and set on fire by three men. The eighth-grader had been returning from a farm with her older sister when the assailants appeared. After they raped the girl, she and her sister threatened to turn the men in. In response, the three men apparently set the younger girl on fire.

In November 2013, a 17-year-old girl from Ghazipur in Uttar Pradesh was raped and killed by her father Ramesh Rajvar in Bhayander on the outskirts of Mumbai. The father along with his friend took the girl to Borivali National park in western suburban Mumbai and the two took turns to rape her and then strangled her to death.

In December 2013, a 21-year-old woman was gang-raped twice in one night by two unrelated groups of men in Karaikal, Pondicherry.

In January 2014, a Danish woman was gang raped by a group of men after losing her way near her hotel in Delhi.

In February 2014, a 15 years old rag-picker girl of Sua road in Gyaspura, Ludhiana Punjab was found dead in a vacant plot half a kilometer away from her home in a slum area; post mortem report suggested that she was raped , sodomised and strangulated to death.

In March 2014, a 17-year-old girl committed suicide after she was kidnapped and gang-raped for three days in a village near Jhunjhunu’s Sujangarh town in Jaipur. The girl jumped into a well when the kidnappers dropped her near her house after exploiting her.

In April 2014, a 13-year-old girl had been raped by two youths at the Murshi forest in the Itmadudaulah area in Agra after she was picked up when she had gone to buy vegetables.

In May 2014, two minor girls went out to the fields to relieve themselves on and did not return. Their bodies were found hanging from a tree in Badaun a village in Uttar Pradesh. Both of them had been raped and murdered.

In June 2014, a 14-year-old girl died after a Shashtra Seema Bal (SSB) constable raped and poisoned her at Gaighat village in Uttar Pradesh’s Motipur area.

In July 2014, Women and Child Welfare Minister Maneka Gandhi announced that juveniles who commit rape should be tried as adults. She also said that she was working to amend the Juvenile Justice Act so as to reduce the age of the Juvenile from 18 to 16.

“We are changing the law and I am personally working on it to bring 16-year-olds into the purview. According to the police, 50 per cent of the crimes are committed by 16-year-olds who know the Juvenile Justice Act,” the Minister said.

“But now for premeditated murder, rape, if we bring them into the purview of the adult world, then it will SCARE them,” she added.

A common evaluation of the never ending documentation on the incidents of rape in the country, few of which I have somehow managed to assemble in the first part of my article, should generate adequate interest to know, if at all , those mostly adult offenders knew about the existence of the two strong Indian legislations , namely “The Protection of Children against Sexual Offences Act of 2012” and the “The Criminal Law (Amendment) Act of 2013”, before they unleashed their brutality on innocent girl children and women? Both the protective and the preventive legislations did not seem to effectively  “SCARE” all those many perpetrators of crime at all.

Should I then presume that all those adult offenders had no idea about the enacted laws? Had they known the laws and the fact that the provisions therein could get them into trouble, they would’ve been “SCARED” to commit those crimes and, therefore, would’ve refrained from committing them.

Studying the present scenario, through opinions expressed by the Ministry of Women and Child and many other august institutions,  the only ones that are actually assumed to be aware about the intricate legal provisions are the children, especially the ones that belong to the age group of sixteen to eighteen. It has been surmised that these children are well aware that they might have to bide at a nice holiday home for just three years, if they ever get caught by the men in uniform upon the commission of a serious offence. So, they very conveniently rape and kill and loot, again and again.

However, popular sentiment echoed that such mischief making children cannot not be allowed to continue on their tirade against humanity. Such criminals should be shown that they cannot get away that easily. They need to be struck by their knees, nipped at the bud before they unleash the venom of rape, loot and murder in our otherwise law abiding Indian society. In the most formative years of their life, that is between the age of sixteen to eighteen, their fertile minds could become the most dangerous entities of destruction to our nation, if not culled at the right time. Therefore, it becomes essential to unanimously pull down the age of offence to sixteen in our Juvenile Justice( Care and Protection of Children) Act 2000, the nodal charter that protects children from severe sanctions in the event of a conflict with law . Such a decisive step, I am made to understand, should be enough to “SCARE” those teenagers and, thereupon, they shall not rape, not kill and not loot.

Undeniably, in the interest of public good and in the wave of the public mood, the concerned Ministry has beckoned the will of the Parliament to inscribe the mark of criminal offence in India as sixteen. Once you’re sixteen, and you commit an offence, you shall be treated as an adult offender and shall, thereby, be subject to sanction like any other adult in the country. You can be picked up the police, you can be beaten up for a confession and you can be imprisoned for life.

However, it should also become essential to examine the state of affairs beyond that usual sixteen to eighteen age bucket.

In June 2013, a 10-year-old girl who was raped by four minors in Turbhe in Navi Mumbai. The four minors were aged between 14 and 16 years.

In September 2013, a 12-year-old girl was allegedly gang raped by five minor boys in the Hatigaon area of Guwahati. The five boys aged between 12 to 15 years, who are her neighbours and play together, called her outside her house and then gang-raped her, according to the FIR filed by the mother at Basistha police station.

In February 2014, a 14 year old boy, raped a 13-year-old girl, whom he knew very well as neighbours, in Ramgarh in Ranchi. The boy had an adult accomplice.

In May 2014, a 10-year-old girl was gang-raped by three minor boys in Jabalpur district in Bhopal. Three boys aged between 12 to 15 years, who are her neighbours, entered her house and gang-raped her taking turns in front of her six-year-old sister.

In July 2014, a 15-year-old girl was allegedly abducted and gang-raped by five persons, including at least two juveniles of 14 and 16 respectively, in Uttam Nagar area of west Delhi on July 19.

Now, evaluating the aforementioned scenario, should I not, reasonably  , recommend that the age of criminal responsibility actually be pulled down to fourteen or, maybe, even twelve?  Didn’t the Hon’ble Chairperson of the National Commission for Women very confidently announce that children already become matured by the age of twelve? It would, then, be preposterous to overlook the crimes committed by the children from the age group of twelve to fifteen. Following the huge public debate on the current issue these twelve to fifteen year olds would be well very well informed that they might have to bide at a nice holiday home for just three years, if they ever get caught by the men in uniform upon the commission of a serious offence. So, they would very conveniently rape and kill and loot, again and again.

I do understand that there is a strong, uncompromising conviction and adamance, on the part of the leadership, to immediately deal with problems related to Juveniles in conflict with the law. There seems to be an urgency in bringing down the children from the age group of sixteen to eighteen under the purview of law, as a deterrent to crimes committed by children of that age.

However, it becomes extremely crucial for each one of us to analyse why children, in the first place, should commit such heinous acts of crime. It also becomes crucial to examine the genesis of crime amongst children at the age eighteen, sixteen or even fourteen. There is enough evidence to suggest that there is a complete collapse in the social order and , therefore, it become all the more important to identify the reasons for the same. In our legal systems, we often, take recourse to fixing individual blame rather than understanding the more complex background that breeds such awful acts of crime and violence.

I believe, law should be a mechanism that should be reformative in its character rather than being strictly retributive. The use of punishment cannot be the only premise to restore clarity to the social order. It is necessary to delve into a welfare analysis, to realize why and how criminal situations and behaviours occur- without justifying the crime of course. A welfare analysis should involve the identification of a social chain, a chain to trace social injustices that give birth to criminal behaviour amongst children. If the social welfare chain of the incidents of child crimes were to be studied thoroughly there would be ample evidence of the failure, on the part of the state, to secure social justice for those many children who have accidentally brushed themselves against the law.

Former Chief Justice of India, K Subba Rao, affirmatively remarked that “Social Justice must begin with the child. Unless a tender plant is properly nourished, it has little chance of growing into a strong and useful tree. So, the first priority in the scale of social justice should be given to the welfare of children.” Childhood is the time at which moral standards begin to develop in a process that often extends well into adulthood. Former President of India, in his book The Indomitable Spirit said “Give me a child for seven years, afterwards, let the God or the devil take the child, they cannot change the child.” That clearly implied that if a child is brought up in an environment of freedom, dignity, prosperity, good learning and morality, there can be nothing that can stop a child from being a good human being. Inversely, if a child is brought up in an environment of oppression, indignity, poverty, illiteracy and immorality we can never expect a child to be conscience keepers of the society.

 On the 29th of November, 1985, The UN General Assembly adopted “The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) “

 The United Nations Guidelines for the Prevention of Juvenile Delinquency were first elaborated at a meeting held by the Arab Security Studies and Training Center in Riyadh and thus designated as the Riyadh Guidelines. They set forth standards for the prevention of juvenile delinquency, including measures for the protection of young persons who are abandoned, neglected, abused or in marginal circumstances – in other words, at “social risk”. the Guidelines cover the pre-conflict stage, i.e. before juveniles come into conflict with the law.

 The Member States had committed themselves to endeavour to develop conditions that will ensure for the juvenile a meaningful life in the community, which, during that period in life when she or he is most susceptible to deviant behaviour, will foster a process of personal development and education that is as free from crime and delinquency as possible.

 They also guaranteed that sufficient attention would be given to positive measures that involve the full mobilization of all possible resources, including the family, volunteers and other community groups, as well as schools and other community institutions, for the purpose of promoting the well-being of the juvenile, with a view to reducing the need for intervention under the law. However, common observation would suggest that India has miserably failed to upkeep the promises made under the aforementioned International treaty.Our country has been unable to provide the necessary protection to many of our children who are growing up amidst deprivation, violence and crime.

 8 million children in India are having to live in sullied slum areas of the big cities. Most of these 8 million children are having to live in one-roomed rickety shanties where they are forced to witness sexual activity between their parents every single night. Should we assume that their innocence to be preserved amidst the carnal groans of their adult guardians?

In Delhi itself, more that 50000 street children are having to sleep on the predatory streets of the capital city, most of them being victims of some form of abuse or the other. Many of these unattended children, who come in contact with criminal adults, grow up to fall prey to mental health problems like the stockholm syndromes, child sexual abuse accommodation syndromes or post trauma stress disorder syndromes. Should we then assume  their behaviours to reflect simplicity and honour?

 About 344 million poor children living in the depths of rural India. About have to make do with the abysmally low and substandard learning facilities and infrastructure , provided under the Sarba Siksha Abiyan Mission of e Government of India, not remotely comparable to the private school education hosted in the big cities. Should we now assume them to be models of propriety, in the midst of such appalling mediocrity?

 About 269 million Indians are living in abject conditions of poverty and deprivation, not having enough even to afford a single meal a day.Most of their children are being pushed into the workforce, having to deal with physical and emotional stress, at an age when they were supposed to be running behind butterflies, listening to fairy tales and playing with their friends in decorated school gardens. Should we then assume these children to grow up with feelings compassion and nation-building?

 Any legal system cannot realize the idea of justice and welfare by isolating itself to the point of punishment alone. Social welfare should not solely be aimed at revenge but should promote efforts at reconciliation and social reconstruction. A condemning criminal justice system would only silence the human suffering, not cure it. By tracing the reasons for juveniles in conflict with law , a rehabilitation process of the reasons and results of the problem of child crimes can be put in the already existing institutions and systems. This would ensure social development, for which any human rights sensitive person, certainly is the core aim of law.

 Rather than focussing on the stigmatisation of children from the age group of sixteen to eighteen, there should be more emphasis in creating preventive systems of care and protection that would deter criminal behaviour amongst children at the source. Large scale public delivery and social work interventions should be put in place to ensure that children grow up in an environment of care and support. In fact, another component of the Juvenile Justice (Care and Protection of Children) Act clearly describes the progressive measures that are to be undertaken for “Children who are in need of car and protection”. If Juveniles committing crimes, from the age group of sixteen, are aware of the protection from sanction under the provisions of the age of criminal responsibility, the actualisation of the other part of the same Act, by the State and the civil society, could be used as an effective deterrent mechanism to prevent criminal behaviour amongst those very children, in the first place.

In November 1989, among many other things, the Member Nations that created the United Nations Convention on the Rights of the Child, recognized that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.

The Member Nations also bore in mind that, as indicated in the Declaration of the Rights of the Child, “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.

 Article 1 of the United Nations Convention on the Rights of Child clearly states that every human being below the age of 18 years shall be called a child.

In Article 27 , State Parties recognized the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.

In Article 37, States Parties committed to ensure that: No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

In Article 40, the States Parties vowed to recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

Therefore, it is time, we reflect on the ideals enshrined in the Convention and take collective responsibility for the welfare and development of the children of our country. Our approach towards children should always be protective rather than being punitive. I believe, it is more important to trace the crime, and not the criminal.

“It is the worst form of poverty that children should suffer, so that I may live my life” – Mother Teresa.

 Ref:

United Nations Convention of the Rights of the Child, Bare, 1989

Juvenile Justice (Care and Protection of Children) Act, 2000

Protection of Children from Sexual Offences Act 2012

The Criminal Law (Amendment) Act, 2013

Social Justice and Law, K.Subba Rao(1974) Pg 110

The Indomitable Spirit, APJ Abdul Kalam

Right to Life: The Pluralism of Human Existence, Parul Sharma

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)

Census 2011

NCRB 2013

Migel Das Queah

Migel Das Queah

Miguel Das Queah is a Social Worker, working on Child Rights & Protection in Assam, and can be contacted at miguelqueah@gmail.com