Man cannot so far know the connection of causes and events, as that he may venture to do wrong in order to do right,” observed Samuel Johnson in his novel, Rasselas. The media coverage of the Delhi gangrape and the hasty legal reforms that followed seem to prove this true. We have been carried away by emotions and the rule of law is not a principle we cherish anymore. We want spontaneous, retributive and rough justice.
Because one of the accused in the Delhi gangrape case was a child, we now propose to take away the rights of our children. The government has already introduced a new bill that allows ordinary courts to try children aged between 16 and 18 for heinous crimes. Pointing to an alarming spurt in the involvement of juveniles in such crimes, the Supreme Court has sought a categorical response from the Centre on whether it is considering bringing down the juvenile age from 18 years. Under the existing law, a juvenile delinquent, irrespective of the crime, cannot be tried in an adult court and the law prescribes a maximum punishment of three years in a reformatory home. The Supreme Court itself, as recently as March 2014, had refused to lower the age.
But recently, even an otherwise liberal Supreme Court has gone with the tide. Not only does it seem to favour lowering the juvenile age, but it also advocates punishing children according to the gravity of the crime, citing “societal demands” as a reason. The same apex court handed out the death penalty in the Parliament attack case, appeasing the so-called “conscience of the nation”. This is a regressive way of thinking.
Our judges seem to genuinely think that in serious offences, “justice” means nothing more than punishing the convict. They subscribe to dated notions of retribution and a deterrence-based penology, unable to appreciate a juvenile justice that centres on reforming the child. The apex court is worried about the rise in juvenile crimes, particularly heinous offences, but the numbers suggest the problem is not as acute as it is made out to be by the media, the government and now the judiciary. In 2012, India had approximately 434 million children below 18, of which about 40 per cent were vulnerable to committing crimes. However, the number of children accused of offences is strangely low. Children committed just 1.2 per cent of the total of 23,87,188 crimes. Moreover, 65 per cent of the crimes committed by them were property-related offences such as theft. In the last decade, juvenile crime has shown only a marginal increase. Compared to Western countries, juvenile delinquency rates in India are quite low. Rates in the UK and the US range between 11 and 13 per cent.
The court had already ruled that juvenile courts were competent to try all offences, including serious offences punishable with death or life imprisonment. It had also held that even children who have committed offences under terror and drug laws would be tried by juvenile courts — the gravity of the alleged crimes would not displace the jurisdiction of the juvenile courts. It is shocking that the apex court should now go back on juvenile justice and observe that our law is “too liberal”. The apex court had held that the accused would be considered a juvenile if he or she were below 18 on the day the crime was committed. Subsequently, in 2006, Parliament amended the law to lay down that the date of the crime would be relevant to determining the age of the offender. So the recent instance of a 40-year-old being convicted as a juvenile should not worry us.
The apex court has not been showing much mercy to children. In the Mumbai blast case, one Moin Faridulla Qureshi, who was 17 years and 3 months old the day the crime was committed, was given life imprisonment, even though he had been in jail for 13 years. In a case where a 16-year-old child had kissed a girl of the same age by force, the Supreme Court upheld six months’ imprisonment and refused to take into account that 18 years had passed since the offence was committed.
There is no scientific rationale for concluding that children aged between 16 and 18 cannot be reformed. In fact, even older adolescents are totally different from adults as their brains are not yet mature and they cannot yet make reasoned decisions. The teenage brain is rightly described as having “all drive and no brakes”. Teenagers prosecuted in adult courts fare much worse in life and can go on to commit more violent crimes than those who are handled by the juvenile justice system. Transferring a child from juvenile courts to adult courts virtually amounts to ending his or her life. The decision to send a juvenile to an adult court is a decision to finish his or her childhood.
The writer is vice chancellor, NALSAR University of Law, Hyderabad