Updated: May 8, 2015 12:00:33 am
The Lok Sabha’s decision to pass the juvenile justice bill that, apart from other amendments to the existing law, contains the drastic proposal to try 16- to 18-year-old serious offenders as adults has cemented the recriminalisation of juvenile delinquency in India. This trend is similar to the one in the US in the mid-1990s, when juvenile criminality had peaked to such an extent that almost half the arrestees for seven FBI index offences were below 18. But in India, as per National Crime Records Bureau data up to 2013-14, juvenile criminality is still under 2 per cent of total crime.
The amendments to the law could expose 16- to 18-year-olds to the possibility of imprisonment till the end of their natural lives or even the death sentence, if convicted for an offence under Sections 376D and 376E. This would mean that, though such offenders are labelled “juveniles”, they would be subjected to the harshest punishment on the statute books. In this context, it is curious that the bill has kept undisturbed Section 15(g), which limits the period of custodial sentence to three years. The drafting committee of the Juvenile Justice Act, 2000, had originally proposed a custodial sentence of up to eight years, but the period was abruptly reduced to three. But the government could now have easily considered the enhancement of the period of custodial sentence. This could satisfy the clamour for harsher measures and also those who genuinely care for the ultimate rehabilitation of juveniles.
The undue haste and child-like obstinacy to press ahead with these reforms in the face of democratic dissent is intriguing for the following reasons: First, it means overturning more than nine decades of thought on juvenile justice, evolved through legislative debates and judicial argumentation. Second, it reverses commitments to the UN, flowing from several conventions and guidelines to which India is a signatory, particularly recommendations 79 and 80 of the UN Committee on the Rights of the Child, which specifically desire India to “ensure that persons under 18 are not tried as adults, in accordance with the principle of non-discrimination contained in Article 2 of the Convention”. Third, it turns down the unanimous recommendation of the joint parliamentary committee, which had strongly favoured the continuation of the existing law. Fourth, it almost debunks the spirited campaigns of child rights activists who have intensified their pro-juvenile justice agitations in anticipation of just such a kneejerk reaction to the Delhi and Shakti Mill gangrapes.
The 16-18 age group targeted by the new bill needs to be understood better in the light of NCRB data. The Crime in India 2012 report (2013 and 2014 data are unlikely to be different) revealed that the number of juveniles between 16 and 18 arrested for heinous offences was 3,273. This relatively small number could be weaned away from a life of crime through more sustained individual care and preventive programmes, rather than being pushed into an adult life of crime.
Certain sections of the print media attributed the cabinet decision to ignore the parliamentary committee’s recommendations to the April 6 order of the Supreme Court in Gaurav Kumar vs State of Haryana. The court observed: “When we said that we thought that there should be a rethinking by the legislature, it is apt to note here that there can be a situation where commission of an offence may be totally innocuous or emerging from a circumstance where a young boy is not aware of the consequences, but in cases of rape, dacoity, murder, which are heinous crimes, it is extremely difficult to conceive that the juvenile was not aware of the consequences”. With all due respect, it is difficult to appreciate such a narrow understanding of juvenile justice. Section 2(l) defines a “juvenile in conflict with law” as one who is alleged to have committed an offence. This does not permit an arbitrary division of offences into heinous and non-heinous categories, much less the classification of offences on the basis of the juvenile’s consciousness or lack thereof. However, here we are not questioning the merit of the apex court’s ruling, but what the cabinet, and now the Lok Sabha, has preferred to uphold. Even then, the cabinet had before it at least three rulings by larger SC benches, in which each of these issues had been debated, argued and decided. In all those rulings, no such lacuna was pointed out. Perhaps those opinions did not suit the government’s resolve to recriminalise juvenile delinquency.
The writer, former professor of law at Delhi University, was member of the drafting committee for the Juvenile Justice Act, 2000, and chairman of the JJ Rules, 2007, drafting committee.
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