Opinion Retribution is not justice

After demands for an amendment to the Juvenile Justice Act,2000 (JJ Act),in light of the “Nirbhaya” case,the first signs of government capitulation are visible. The ministry of women and child development has proposed that the age of juvenility in case of heinous offences be brought down to 16 years. Juveniles who are above 16 would be punishable in accordance with the Indian Penal Code or the relevant penal statute,and not under the scheme of the JJ Act. The proposed change is retributivist and ignores the principles of criminal law and international obligations that gave rise to the JJ Act. Further,there is very little authority,if any,to support the change being demanded.

India signed and ratified the UN Convention on the Rights of the Child (CRC) in 1992. One of the recurrent themes behind the CRC is the fact that juveniles cannot be held to be fully responsible for their actions. In significant part,these are influenced by society,state organs,family support,education and opportunities or lack thereof.

One could argue that these are factors in case of adults as well. However,in case of juveniles,the importance attached to such influences is greater,with the inherent immaturity and lack of understanding associated with youth. It may be argued that the age of 18 is an arbitrary number to determine whether a person has attained majority. It is,however,a legal requirement for majority in this country,not just for the application of the JJ Act,but for the exercise of several other rights,such as the right to freely enter into a contract and to vote,etc.

In order to determine liability under criminal law,the mental state of the accused at the time he committed the crime is a vital consideration. We should not condemn someone to prison unless we find that the act was committed with intention. There is ample data to suggest that such a mental state is not to be found due to age and immaturity. To insist that the juvenile be tried and punished as if he had that mental maturity is to compromise the means to achieve a pre-determined retributive end. The US Supreme Court,in the case of Roper vs Simmons,agreed with an overwhelming amount of psychological data pointing to the fact that adolescents who were around the age of 17 were vulnerable to peer pressure,coercion,were impulsive,more likely to take risks and make temporal decisions.

Another important principle underlying the CRC is that if a juvenile is found on the wrong side of the law,legal sanctions must aim to reform and re-integrate the juvenile into society. Mere punishment for the sake of punishment is clearly without merit,when the case involves someone who probably was not fully responsible for his or her actions and would have a chance at reform once he developed an ability to reflect on his actions and character.

Article 15(3) of the Constitution allows the state scope to provide special measures for women and children. This,along with the CRC,led to the enactment of the JJ Act,which removes juvenile offenders from the full rigour of criminal punishment; and for good reason. Indian prisons function in a manner not conducive to any recognised goal of incarceration. The inhuman conditions of prisons have been recognised by the SC itself. Ram Singh,another accused in the Delhi gangrape,died under dubious circumstances in Tihar jail,amidst allegations that he was tortured by prison officials as well as fellow inmates. Such institutions enforce recidivist tendencies and would ensure that a juvenile is never able to recover from any punishment imposed.

Public sentiment has been outraged in the “Nirbhaya” case because of the brutality involved. In sentencing the adult convicts,the judge rationalised the death sentence on the basis that public outrage would be satisfied only by the ultimate penalty. The demand for greater punishment on the juvenile also seems to have been fuelled on the same grounds. Here,passions having been inflamed,the only rationale being offered is retributive,with the demand being to inflict pain and suffering commensurate with the gravity of the crime. This reasoning is totally incompatible with the objectives of the JJ Act. Ironically,the amendment of the JJ Act will not affect the outcome in this instance,since a criminal law amendment cannot be enacted with retrospective effect.

The rape has also caused some members of society to speculate that crimes committed by juveniles of 16-18 years will rise. However,in the years since the JJ Act has been in force,juvenile offences have been in the vicinity of 2 per cent of crimes recorded in the country. Further,violent crimes committed by juveniles are about 7 per cent of the 2 per cent figure. There has been no eruption of violent crime since the enactment of the JJ Act,and there is no data to suggest that one is imminent.

The SC,in its decision delivered on July 17,2013,in Salil Bali vs Union of India,refused to lower the age of application of the JJ Act. The court held that the decision to use 18 was consciously made,modifying the earlier JJ Act,1986,which considered males above 16 and females above 18 to be adults. It also held that the argument for lowering the age was without scientific data. On the other hand,there was some data to suggest that the brain continues developing at least till the age of 18 and that should be held to be the first instance when an individual could be held fully responsible for his actions.

We should remember that the proposed amendment is in contravention of India’s international obligations,unsupported by scientific data,without study of long-term effects,and prompted by the public desire to see retribution as the sole marker of justice.

The writer is visiting professor,National Law School of

India University,Bangalore