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Child and punishment

The trigger for amending the Juvenile Justice Act cannot be moral panic.

The purpose of the juvenile justice system is not just to establish the guilt of the alleged offender, but to look into the underlying social causes for the alleged crime, with the aim of rehabilitating the juvenile offender.  Source: Express Photo The purpose of the juvenile justice system is not just to establish the guilt of the alleged offender, but to look into the underlying social causes for the alleged crime, with the aim of rehabilitating the juvenile offender. Source: Express Photo

BY: Aparna Ravi

The trigger for amending the Juvenile Justice Act cannot be moral panic.

A repeal and re-enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the JJ Act), the country’s primary law dealing with children in conflict with the law and children in need of care is one among several law reform projects that the new government has on its agenda. The proposed new bill (the JJ bill), on which the Union ministry of women and child development sought comments during a hasty 15-day consultation period that ended on July 3, is likely to be tabled in Parliament soon. Yet, the haste with which this law may be passed and the surprisingly muted reaction it has triggered fail to do justice to its implications for how our criminal justice system treats 16- and 17-year-olds alleged to be in conflict with the law.

Sections 14(1) and (2) together with Section 17(3) of the proposed JJ bill would allow juveniles between the ages of 16 and 18 accused of committing heinous crimes such as rape and murder, or who are repeat offenders for a broader range of crimes, including robbery and dacoity, to be tried in regular courts alongside adults, rather than through the juvenile justice system. In the case of such children, the Juvenile Justice Board is to decide, based on an inquiry whether the child is to be tried under the juvenile justice system or in a regular court pursuant to the Indian Penal Code.

A quick look at the history of the existing JJ Act would be helpful. The existing act, which replaced the 1986 act, was intended to provide a child-friendly approach to juvenile justice based on the premise that children in conflict with the law were in need of protection and rehabilitation, as opposed to retribution and punishment. The JJ Act was also drafted keeping in mind India’s obligations under various international conventions on child rights and juvenile justice, most of which stipulated 18 years to be the age of majority and recognised the need for children to be tried through a different criminal justice system. The age of majority is particularly relevant here as the JJ Act provides for children under the age of 18 to be tried exclusively by Juvenile Justice Boards and courts constituted under the act.

More than a decade later, we appear to be reverting to the 1986 legislation in at least this respect. The public outrage in the aftermath of the Delhi gangrape, where one of the accused was a juvenile and “got away” with a three-year sentence, caused many to propose that juveniles accused of committing heinous crimes deserve harsher punishment. Petitions were filed in the Supreme Court, proposing that the age of minors for purposes of the criminal justice system should be determined based on their maturity rather than biological age. The petitions further challenged the constitutionality of the JJ Act’s provisions. While the SC upheld the act’s constitutionality, the ministry seems to have acceded to the demands of public outrage, with Union Women and Child Development Minister Maneka Gandhi stating that these amendments would help reduce heinous crimes, particularly sexual crimes against women.

Yet, while the reaction to the Delhi gangrape and its aftermath is understandable, it is important that a single extreme case does not form the locus for law reform. Elizabeth Scott and Laurence Steinberg in their book, Rethinking Juvenile Justice, call this “moral panic”, where politicians, the media and the public reinforce each other in an escalating pattern of alarm in response to a perceived social threat. In the case of juvenile justice reform, the moral panic is often triggered by a single outrageous event. Where the trigger for law reform is such “moral panic”, we need to be particularly wary that the resulting changes in the law are carefully thought out and their consequences deliberated.

At least two aspects of the proposed Sections 14(1) and (2) of the new bill provide cause for concern. The first is the basis on which the Juvenile Justice Board is to make a determination of whether a 16- or 17-year-old is to be tried under the JJ Act or in a normal court. The bill does not provide much guidance but states that the board is to consider “the premeditated nature of the offence, the mitigating circumstances in which such offence was committed, the culpability of the child in committing such offence and the child’s ability to understand the consequences of the offence”. The interesting feature about these tests is that all (save perhaps the last), if decided in the affirmative, would presuppose that the child is guilty of committing the offence. And yet, the purpose of this inquiry is to determine the forum in which the child is to be tried. How is the board to make these determinations within a one-month period and before the actual trial?

Second, in subjecting certain alleged juvenile offenders to a different set of trial procedures, the JJ bill is, in essence, denying the protections of the JJ Act to certain children. The trial procedures under the JJ Act and the IPC are vastly different. Save for limited circumstances, the JJ Act provides for bail for all offences. Even in the rare situation where bail is denied, the child is to be kept in an observation home or a place of safety, and not in jail. Under the JJ Act, a child cannot be tried alongside an adult. The proceedings are to be conducted in a child-friendly manner. Perhaps the most important difference is that the purpose of the juvenile justice system is not just to establish the guilt of the alleged offender, but to look into the underlying social causes for the alleged crime, with the aim of rehabilitating the juvenile offender.

A typical trial alongside adults under the IPC would have none of these protective features, or the ultimate goal of rehabilitation. What would be the effect on 16- and 17-year-olds of going through onerous trial procedures or adult-like punishment? Would rehabilitation even be a possibility? It may be prudent to pause and consider these questions before succumbing to the temptation of “moral panic”.

The writer is a senior researcher at the Centre for Law and Policy Research, Bangalore

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