The Supreme Court’s refusal to stay the release of the juvenile convicted in the December 16, 2012 gangrape case, despite the fevered and illiberal clamour for his re-incarceration, is welcome. There is, of course, widespread disappointment at how little has changed since the gruesome incident that jolted a nation three years ago. Yet those agitating against the scheduled release of the juvenile convict, and for the juvenile justice (JJ) act to be amended to allow 16- to 18-year-olds accused of “heinous crimes” to be tried as adults, appear to be fuelled more by a thirst for vengeance than any high principle of justice.
It is understandable, especially in a justice system in which wheels turn slowly if they turn at all, that it would be repugnant to many people that a person guilty of committing such a terrible crime could receive relatively light punishment. Yet, creating an exception in violation of the law of the land would be an emotional response that sets a dangerous precedent. A society that professes to be governed by the rule of law cannot apply it selectively. Even if the JJ act is amended, its provisions cannot apply with retrospective effect, and the minor convicted of assaulting Jyoti Singh will still be free.
The government has rushed to comply with the call to amend the JJ act with suspicious alacrity. It has brandished the bogey of a still-unproven uptick in juvenile crime because of this “lacuna” in the Indian Penal Code as justification for a tougher law. Yet, as the experience with the new anti-rape law — also passed in the aftermath of December 16 — shows, the threat of a more severe penalty is not a more effective deterrent; certainty of punishment is. There is also a body of evidence to suggest that incarcerating children is counterproductive, and encourages them to return to a life of crime by stripping them of options. A comprehensive study in the Quarterly Journal of Economics earlier this year that evaluated the long-term outcomes for thousands of teenagers in conflict with the law in the US — which jails more juveniles than any other country — found that incarcerated children are more likely to end up in prison as adults by as much as 22 percentage points, with 16-year-olds the most vulnerable, as jail at that age spells an end to high school. Exposure to adult prisons is likely to have a similar impact on young people in India. New cognitive evidence shows that 21 or 22 is closer to the biological age of maturity than 18, and that even when teenagers’ cognitive capacities come close to those of adults, their actual decisions may differ from those of adults as a result of psychosocial immaturity. Instead of hardening the law, therefore, the government should focus on strengthening the rehabilitation and reintegration processes for adolescent offenders, so that they may rejoin society as responsible citizens.