From a child detainee in a Naxal-hit village to the boy next door, any offender in the age group 16-18 can be tried as an adult and jailed once proposed changes in the juvenile justice law clear Parliament.
Child rights activists, legal eagles and heads of law schools are warning that the stringent Juvenile Justice (Care and Protection of Children) Bill, 2014 — drafted after the uproar over the December 2012 Delhi gangrape in which one of the accused was a juvenile, it has already cleared Lok Sabha — will legitimise illegal detention of children, allowing police to press criminal charges.
Teenaged children will be in the same bracket as adults being tried for heinous crimes like rape, murder, dacoity, kidnapping, drug trafficking and sedition — the minimum sentence in such cases is seven years in jail. This also goes against the grain of the United Nations Convention on the Rights of the Child which mandates that no person aged under 18 can be tried as an adult.
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A teen boy and a girl “experimenting sexually,” say activists, can also land behind bars because the Protection of Children from Sexual Offences (POCSO) Act criminalises consensual sex in the age group 16-18. This, even Women and Child Development Minister Maneka Gandhi concedes “may be a legitimate concern”.
“But we cannot condone and overlook real heinous crimes with the bogey that the law may be misused. We will take the help of the best legal minds to put something into the rules to prevent the law from being misused,” she told The Indian Express.
Strengthening suspicions of child rights activists and lawyers, Gandhi told Parliament that one of the first calls she received after assuming office was from police officers asking her to make age-related amendments in the law for juveniles.
She dismissed concerns over the Bill as “unnecessarily alarmist… visualising all policemen as anti-child”.
“The law has ample safeguards. There is provision for a special child welfare police officer and juvenile police unit in every district and active juvenile justice boards. They are presuming everything will only be left to the police. In fact, the Bill takes things out of police hands,” Gandhi said.
Professor R Venkata Rao, vice-chancellor of the National Law School of India University in Bengaluru, disagrees.
“Children recruited into extremist groups are essentially victims and this Bill will legitimise their victimisation by trying them like adults and imprisoning them even though the state failed to protect them from being manipulated by adults,” he said.
“The POCSO Act criminalises consensual sex in the age group16-18 and the Bill, if passed by Rajya Sabha, will potentially send hundreds of young adolescents in love or engaged in normal sexual exploration into the adult criminal justice system, and subsequently into jail. Is this how we want to treat the youth of our country?”
Rao and 10 other vice-chancellors of law universities have signed a statement opposing the move to transfer juvenile offenders to the adult justice system.
The signatories are Professor Gurdip Singh Bahri, Dr Ram Manohar Lohia National Law University, Lucknow; Dr Faizan Mustafa, NALSAR University of Law, Hyderabad; Dr Poonam Saxena, National Law University, Jodhpur; Dr Paramjit S Jaswal, Rajiv Gandhi National University of Law, Patiala; Dr Rose Varghese, National University of Advanced Legal Studies, Kochi; Dr Shrikrishna Deva Rao, National Law University Odisha, Cuttack; Dr Vijender Kumar, National Law University and Judicial Academy Assam, Guwahati; Professor C Raj Kumar, O P Jindal Global University, Sonipat; Professor Manoj Kumar Sinha, Indian Law Institute, New Delhi; and, Professor P Ishwara Bhat, West Bengal National University of Juridical Sciences, Kolkata.
In their statement, they have quoted reports of the department-related parliamentary standing committee and the Justice J S Verma committee, both not in favour of changing the age of juvenility.
Senior advocate Gopal Subramaniam, who was a member of the Verma committee to suggest amendments to the criminal law for speedy disposal of cases of sexual assault, said the committee in its report was very specific that there was no need to change the definition of juvenility.
“The committee took the view that to treat a person under adult law, a person’s brain should function like that of an adult. Neuroscientific evidence suggests that does not happen before 18. The amendments do not take into account social reality either. Concerns about misuse of POCSO, once the new Act is through, are very legitimate,” Subramaniam said.