Updated: December 22, 2015 11:51:19 am
THE Supreme Court refused to extend the detention of the juvenile convicted in the 2012 Delhi gangrape saying it has to go by the law as it stands today. Lawmakers in Rajya Sabha will debate the amendments to the Juvenile Bill Tuesday that allows 16 to 18-year-olds accused of heinous crime to be treated as adults. Lost in the outrage — riding on a distraught mother’s anguish — are voices of dissent that have warned against these amendments, calling them draconian and, in themselves, a crime against children.
These voices, beginning with the Justice J S Verma Committee itself — that was formed after the gangrape — warn that the amendments put all children at risk across all classes. They include the related Parliamentary standing committee, vice-chancellors of the nation’s top law universities apart, child rights activists and legal scholars.
The amendments to the Juvenile Justice (Care and Protection of Children) Bill, 2014, that allow heinous offenders aged between 16-18 to be tried as adults if the juvenile justice board is so inclined, they say, are against established scientific and socio-legal evidence. They also come on the back of a stringent law against child sexual abuse that could end up incarcerating adolescents indulging in “consensual sexual experimentation.”
When the UPA government passed the Protection of Children from Sexual Offences Act, 2012, that laid down in clear terms that the age of consent for sex is 18 years, even then activists had warned against such misuse. Read along with that law, the new JJ Act can be misused by families or police to victimise teenage boys and girls for indulging in sexual exploration that is natural for their age. Both rape and kidnapping charges can lead to a seven-year sentence or more.
Faizan Mustafa, vice chancellor of NALSAR (National Academy of Legal Studies and Research) University of Law in Hyderabad, touches the nerve of the debate. “It is very unfortunate that we seem to be playing women against children,” he told The Indian Express. “We are opposed to the law because vengeance seems to have become the focal point of our view of justice. It is regressive because all studies show a high rate of recidivism if you treat juveniles as adults. Justice Krishna Iyer had said our jails are universities of crime. Such a legislation would put us on par with countries like Saudi Arabia, Sudan and Yemen.”
Justice Leila Seth who was in the three-member J S Verma Committee that looked into changing laws in the wake of the gangrape and ruled against a revision of the age says the committee had many reasons for taking such a stance. “We felt that if a child less than 18 years is subjected to a normal trial and a normal jail, there remains no chance of a rehabilitation, they often turn into hardened criminals, repeat offenders. Moreover, the child’s brain at that age is still in its formative stage, they are not fully mature yet to understand the full implications of their action. It also goes against the United Nations Convention on Child Rights which mandates that 18 years is the cut-off age for children,” Seth told The Indian Express.
Members of the political class who have suddenly woken up to the “urgency” of the Bill — pending for three years — do not deny that the Bill has loopholes. Says Derek O’Brien, leader of Trinamool Congress that has been pushing for the JJ Bill to be taken up immediately: “Are we looking at passing a good Bill or an ideal Bill or no Bill at all? This is actually a social issue, I will speak on it at length in the House. But it needs to be discussed.”
The case for which O’Brien feels the need to fast-track the law can’t apply with retrospective effect — whether the new JJ Act is passed or not, the 20-year-old convicted for Jyoti Singh’s rape cannot come under its purview.
Not everybody agrees with O’Brien, though. CPM’s Sitaram Yechury underlined that there are serious issues which need to be clarified. He said the nature of crime should be taken into account while enacting the law and said there is need for developing a consensus. “If you bring down the age of juvenile from below 18 to 16… just as an example, if another boy who is 15 years and 10 months in age commits a similar crime, what will you do? So age should not be the restriction to define crime that recommends punishment based on nature of crime committed,” he said. Some parties remain in favour of referring the Bill to a Select Committee.
Critics argue that if passed, the Bill, in its present form, takes India to the 1920s when Children Acts of that period had similar provisions sending some children — in special circumstances — to adult prisons. “Since then we have constantly moved forward to extending the protection of juvenile justice system culminating in the JJ Act 2000 extending its care and protection approach to all children below the age of 18 without discrimination. Maneka Gandhi has specifically referred to the direction from the CRC Committee for increasing the age from 16 years to 18 years in case of boys to fulfill India’s obligation under the Convention on the Rights of Children. Ten years later, the same Maneka Gandhi is proposing the law to exclude children between the age of 16-18 to be tried as adult offenders,” says Ved Kumari, professor at the Faculty of Law, Delhi University.
She also disputes repeated assertions from the government in various fora about the rise in juvenile crime; the rate, she says, has remained constant at 1.2% over the last three years. There are also concerns, she said, about the plight of young girls accused of heinous crimes and the treatment they will get in an adult prison.
The National Commission for Protection of Child Rights had recommended that the law should include an “age-gap provision” to ensure there is no misuse against consenting adolescents. An age gap provision means that a pre-determined age is treated as age of consent, provided the gap in age with the sexual partner is within a prescribed limit. That did not find favour with the government.
Activists point out that the legislation also falls foul of Article 14 of the Constitution that mandates equality before the law irrespective of religion, race, caste, sex or place of birth and also Article 15(3) which permits only special legislation “for” children and not “against” them. The law defines heinous crime as any offence that is punished with seven years imprisonment under IPC inluding rape, murder, gangrape, dacoity, kidnapping, drug trafficking, sedition.
There are also concerns about the law legitimising illegal detention of children especially those for alleged involvement in extremist activities. The provision to reduce the age to 16 years was also rejected by the Parliamentary standing committee for human resource development, an objection that was overruled by the Women and Child Development ministry to push the provision through by taking it back to the cabinet. (Additional Reporting by Manoj CG)
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