Remedy worse than malady

Last Updated 02 August 2014, 18:55 IST

To amend the law is the prerogative of the government. This power, however, must only be exercised after sober deliberation, based on information and analysis, even more so when the government enjoys a majority in Parliament.

On June 18, 2014, the Ministry for Women and Child Development announced its intent to repeal and re-enact the Juvenile Justice (Care and Protection) Act 2014. The proposed legislative changes are ostensibly directed at protection of women and strict punishment for the adolescent juvenile offender.

Undeniably, the widespread nature of sexual violence against women is alarming and determined and sustained government action is required to abate this spiral of violence. The tectonic shift advocated in the revised bill to exclude juveniles aged 16-18 years who commit heinous crimes, from the rehabilitative purview of the JJ Act, however, promotes neither safety nor deterrence. Akin to the death penalty, this is a mirage, and freedom, security and equality will continue to remain elusive for women.

The JJ bill abandons the reformative principle and adopts a punitive and retributive approach, even though NCRB data shows a decline from 4.7 per cent in 2012 to 4.1 per cent in 2013, in rape cases involving juveniles. NCRB statistics refute the high decibel alarm propelling the JJ Bill, with juvenile crimes constituting a miniscule fraction of 1.2 per cent of the total IPC crimes committed across India, in 2012.

The amendments to Sections 14 and 17 of the JJ Bill, carve an exception for adolescent juveniles based on gravity of crime, in breach of domestic and international jurisprudence.

Under the proposed JJ Bill, if a juvenile aged 16-18 years commits the crime of murder, rape, gang rape or acid attack; or is a repeat offender of robbery, kidnapping, abduction, human trafficking etc., the JJ Board, after a preliminary inquiry, can either continue with the adjudication or transfer the child to a court in the adult criminal justice system, for trial. Upon conviction, the child will be punished and sentenced as an adult; and incarcerated in the adult jail.

The only mercy shown is that the sentence of death or imprisonment for the remainder of life, would not be inflicted, thereby unwittingly betraying faith in the reformation of the offending juvenile.

 This proposed judicial waiver and transfer system, imitates a failed experiment of the USA and the UK that did not curtail juvenile crime or prevent recidivism. According to the 2007 Task Force set up by the US Centre for Disease Control, “…. transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system.”

A 2011 study of the US Department of Justice concluded, “Longer stays in juvenile institutions do not reduce recidivism, and some  youth, who had the lowest offending levels, reported committing more crimes after being incarcerated.

In December, 2012, the US Attorney General’s National Task Force on Children Exposed to Violence, recommended that laws prosecuting juveniles as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore and diminish their capacity to grow must be replaced or abandoned. While the USA and the UK are rapidly reversing this trend, the Ministry is embarking on a path, flashing with danger signposts.

 To argue that the heinous nature of the crime itself demonstrates the mental maturity of the juvenile is fallacious. Recent studies in neuroscience confirm that juveniles have a propensity to take risk  and are susceptible to peer pressure and negative influences, unable to weigh risks and benefits, as the pre-frontal cortex or the CEO of the brain, which enables planning, reasoning, impulse control and judgment, matures slowly with the adult brain formed around the age of 25 years.

Post the 2012 Delhi gang rape, the Supreme Court twice upheld the constitutionality and the need for a separate juvenile justice system for all under 18 years. The Supreme Court’s verdicts in these PILs were premised on and guided by the constitutional mandate. The JJ Bill seeks to undo this judicial wisdom, relying on little else than numbers in Parliament. 

 In 2000, it was the NDA government that amended the JJ law, prescribing 18 years as the defining age for juvenile and placing all juveniles in conflict with law within its jurisdictional ambit, in compliance with its international obligation under the UN Convention on Child Rights.

Today, even as statistics, science and studies establish that more intensive efforts at rehabilitation and counselling rather than coercion and control, can reduce juvenile recidivism, the intransigence of the Ministry is puzzling. At the UN, India will be hard-pressed to explain this regressive move and exposes itself to reprimand.

 The Ministry’s alibi of spiraling crimes against women to drastically amend the JJ law lacks rationale, conviction and justification. Pertinently, rights groups have decried these amendments as a knee-jerk and ill-conceived response.

When stringent punishment holds no fear for the adult male to rape a woman, it belies comprehension how the same would deter a rash and impressionable juvenile. Will not the juvenile offender discarded in the adult prison system resurface as a hardened criminal? Instead, the interests of women will be safeguarded if  greater attention is given to the proper functioning of the correctional home and institutes.

Psychological counselling and skill building for such juveniles are also needed. Implementation and not amendment of the JJ law should be the guiding mantra of the Ministry.

(Supreme Court lawyer and  women’s rights activist)

(Published 02 August 2014, 18:55 IST)

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