We still remember the evening of December 16th 2012, and its aftermath. The next weeks were spent following the coverage of the brutal and spine chilling gang-rape of a young girl, who became etched in public memory as ‘Nirbhaya’ because of the courage with which she fought for her life, and gave a statement to the police.As our hearts went out to her there was a nagging worry. It is understandable why people wanted an instant change in the law. In fact, laws relating to sexual violence were in dire need of a reform. The reform that came had certain much needed features like an expansion of the ambit of rape, and defining offences such as stalking and voyeurism. However, it had some problematic features too (note the provision for mandatory minimums and statutory rape, that did not take into account the need for age proximity clauses). The tendency to effect legal reform as a response to a singular event, when the nation is in the throes of emotion, is/was worrying. Things have now come full circle, and the Rajya Sabha has passed another legal reform that many feel is a response to the release of the juvenile in conflict with law who was convicted of committing the December 16th gang-rape. This is The Juvenile Justice (Care and Protection of Children) Bill, 2015. Though this Bill is a comprehensive bill and a ‘nuanced one’ (according to the Minister for Women and Child Development), its most controversial provision allows those who have completed the age of 16 years to be tried as adults, if they have committed a heinous crime. However, the idea of having a juvenile justice framework is defeated, if we punish children as adults or keep them in contact with adult offenders. ‘Heinous offences’, are defined by the Bill as those for which the minimum punishment under the Indian Penal Code or any other law is imprisonment for 7 years or more. This issue has polarised people, and sparked a debate on whether this Bill is regressive and reactionary. We thought this was a good time to look into the deliberative/legislative process behind the passing of this bill. Regressive or Responsive? Shashi Tharoor, in his speech on the Bill, provided a scathing indictment of its provisions, and stated that ‘It’s a bad law, badly written, and badly thought through’. He relied on the provisions of the United Nations Convention on the Rights of the Child, and provisions of our own Constitution, to say that the provisions of the Bill would end up embarrassing India before the international community. His fears are not incorrect, since a reading of Article 2 of the UNCRC shows that the principle of non-discrimination enshrined in it, does enjoin the State to treat all children in conflict with law equally. Not all parliamentarians were as critical of the bill, however. Rajeev Chandrashekhar, who has been a strong pillar of support for victims of child sexual abuse, talked about the need for protecting victim’s rights as well as the children’s rights. He stated that the Parliament should have passed the bill earlier, which would have been more responsive to the sentiments of the people of India, rather than being reactive now. He mentioned that the definition of heinous offenses was too broad, and in fact it should be restricted to the categories of ‘rape, murder, kidnapping, trafficking and terrorism’. K.T.S Tulsi provided a comparative analysis with other countries, and stated in his speech that he felt the bill erred on the side of caution, and did not in any way compromise on the rights of the child. The CPI (M) walked out in protest against the Bill, and Sitaram Yechury bemoaned the fact that the Bill was not deliberated upon in a more ‘dispassionate and scientific’ manner. The myth of the prowling juvenileOne argument of those supporting the Bill is that there is an alarming spike in the crimes committed by juveniles. Let us examine the veracity of this claim. The NCRB data shows that in terms of overall crimes committed by juveniles under IPC, during the period of 2004-2014, there has been a significant increase. This shows that crimes committed by juveniles are becoming a serious issue. However, it is important to keep these figures in context. According to PRS Legislative Research, ‘over the last ten years (2003-2013), crimes committed by children as a percentage of all crimes committed in the country, have risen from 1.0% to 1.2%’.If we narrow it down to crimes committed under Section 376 of IPC, the rise is steeper. However, we cannot rule out the role played by other factors such as increase in reporting, general awareness, and the expanded ambit of rape in the Criminal Law Amendment Act of 2013 (See Table 2) . If we look at the category of ‘gang rape’ committed by Juveniles in the NCRB data, we see that states like Uttar Pradesh and Madhya Pradesh are problem areas. Similarly if we look at gang rape committed in Union Territories, the capital stands out as an outlier. We need to analyse what factors contribute to make some states real problem areas. The idea that juveniles are used by gangs to commit organized crimes, since these gangs know that juveniles will not face stringent punishments, has gained momentum. There is truth to this perception, since in 2011, the Juvenile Justice Board ordered the SJPU (Special Juvenile Police Unit) to take stringent action against adults pushing juveniles into organized crimes. This was echoed by various parliamentarians in the recent debate on the Juvenile Justice Bill. Even if this is accepted, concluding that some juveniles to be tried as adults is an abdication of state responsibility. It is the job of the State to ensure that law and order is maintained, and that organized gangs are not able to exploit children. Our efforts would be better utilized in trying to check this tendency, rather than penalizing the juvenile. Further, there may be cases where young people (say a 17-year-old boy and a 15-year-old girl), engage in ‘consensual’ sexual activity. Cases of young people experimenting or falling in love can no longer be brushed aside. Since the provisions of the POCSO Act do not recognize a child’s consent, the 17-year-old boy could potentially be tried as an adult. While both the male and female children in such a case are technically Children in Conflict with Law (CCL) and Children in need of care and protection (CNCP), the police invariably treats the male child as a CCL and the girl child as a CNCP. While we have provided a hypothetical example here, such a situation is not outlandish. We need to examine whether the new law is open to abuse on this front. If it is, then certain safeguards will have to be provided. (This might include introducing age proximity clauses in case of statutory rape, and/ or narrowing the ambit of heinous crime). What does justice hope to achieve? In our country justice and vengeance are often conflated, but there are many competing visions of justice. One such vision is restorative justice (RJ) based on the principles of ‘repair, involvement, and justice system facilitation’. RJ wants to enable ‘offenders to understand the harm caused by their behaviour and to make amends to their victims and communities’. It envisions ‘giving victims an opportunity to participate in justice processes.’ Finally it aims at protecting the public through a process in which the individual victims, the community, and offenders are all active stakeholders.The new Bill that enables children, between 16 and 18, to be tried as adults is conceptually flawed. Its intention is to punish those who have committed heinous crimes, while its focus should be on alternative treatments (such as reformation, rehabilitation and re-integration with society). According to Professor B.B Pande, who was on the drafting committee of the Juvenile Justice Act of 2000, the CCLs in the 16-18 year age group targeted by this Bill are of a relatively small number, and could easily be weaned away from a life of crime, through sustained individual care and preventive programmes. This approach helps keep young offenders from relapsing. This approach has worked effectively in Germany, and has been supported by judges who work in the Juvenile Court. Learning from this system, we should focus more on preventing new crimes, rather than punishing the ones already committed. The idea is not to establish harsher or milder punishments, but rather having an effective system that would lead to fewer victims. We must note that a lot of children in conflict with law were once in need of care and protection. The fact that they do not receive the help they need, results in them being drawn to a life of crime. Without rehabilitation as a focus of the juvenile system, we might end up becoming no country for juveniles.Srishti Agnihotri is a lawyer working in Trial Courts in New Delhi, and is engaged in providing legal aid to survivors of child sexual abuse. Minakshi Das is engaged in research and advocacy in the field of child rights.
