A divided opinion

JUVENILE LAW

There have been protests in the national capital over the release of the juvenile offender in the Nirbhaya gang-rape case. Many in the country strongly feel that, by this action, Nirbhaya has been denied justice. A person who has committed a heinous crime is going out free because the law says that he was a juvenile – six months less than the age of 18 years - when he committed the offence in 2012. There is an emotional reaction in this country that the Juvenile Justice Act should be amended and the minimum age for punishment be brought down to 16.

While the anguish of Nirbhaya’s parents and that of the people arguing for lowering the age for punishment is understandable, there are some issues here that need serious attention. One is that we cannot arbitrarily lower the age as India is bound by its commitment (made in 1979) to the International Convention on Civil and Political Rights. Article 6(5) of this convention specifies the cut-off age for a juvenile as 18. There are several international issues — for instance extradition of persons — linked with this age limit.

Moreover, if a person is considered ‘mature’ at say, the lowered age limit of 16, mature in comprehending the repercussions of the criminal act and undergoing adult punishment, he/she should by the same token be allowed to vote, drink and do other legally permissible adult acts at that age. So, in all activities shall we have the adult age brought down to 16?
Also, what is the logic behind lowering the number to 16? Why not 15? Or 17?
Is there a near consensus in the society on say 16 being the age of maturity? Because, that number has to stay for a long time, for several decades. It cannot be tinkered on the basis of a knee-jerk reaction to a dreadful case, however gruesome the crime may have been.

Parliament cannot — and should not — meet tomorrow on the crest of a public outrage and decide on the cut-off age in a day.

Some people say that the judges should consider the mental maturity of the accused, instead of his age, in cases where a young person is indicted of involvement in a particularly heinous crime. This is a very ill-defined and nebulous construct. Therefore, in cases of heinous crimes it is all the more unsuitable.

The present outrage is that Nirbhaya (her parents want her real name to be known which is Jyoti Singh) suffered horribly — physically and mentally; her parents and near-ones underwent mental agony that is very difficult to describe. The perpetrator of the crime is released from the remand home after three years.

The suffering of the victim/her parents does not match the suffering — if any — of the juvenile criminal. Thus, justice is not done; because the amount and intensity of suffering of the two does not match. ‘Justice’, by this definition, means ‘matching pain’ for both.

Is this how we want justice to be defined? This is not too different from ‘an eye for an eye’ kind of systems of justice that operate in some nations/ societies. A vast majority of nations of this world view such systems with a sense of horror.

In some Arab nations, a thief will have his hand cut off. So, what is ‘justice’? How do we define or measure it? Should we ‘measure’ it? This is a fundamental philosophical question. We, as a society, need to do a deep introspection over it.

We need to mull over the question as to whether we want punitive justice – pain returned by equal pain? Do we want punitive, and hence, ‘deterrent’ justice, where the pain inflicted by the society/government on the criminal is several times more than the private pain he inflicted on the victim?

Shouldn’t a society/judicial system try to ‘correct’ a person who has gone the criminal way? Should the justice not be ‘correctional’ instead of the present ‘punitive’ system of justice?
An advanced society, a nation like us that has seen long years of cultural leadership, should ‘correct’ and ‘reform’ people that have gone the negative way. The purpose of a justice system should be to make the citizens productive and useful to the society at large.

Not caged animals
Kiran Bedi, the former head of prisons and then police commissioner of Delhi, had tried introducing yoga and similar classes in the jails under her purview. The thought behind this action was to reform the prisoners. Prison should not be a place where people are locked up like caged animals.

Perhaps, such an action would lead to reactions like a caged animal would do on its release. Prisoners, when they come out of a jail, should have transformed into socially useful citizens. Prisons are called as ‘correctional facilities’ in certain countries although they still haven’t realised the true meaning of a ‘correctional’ facility.

This thought process is even more essential when dealing with young offenders or ‘juvenile’ criminals. Reforming or correcting a young mind is a lot easier. It should be done. The young ones who have stepped out, however terribly or gruesomely, should be brought back into the main stream.

A society or a government needs to reduce the incidence of errant behaviour. Like we would prevent the incidence of a disease and hence take preventive heath actions, we should take preventive justice actions.

Regular preventive maintenance is far more advisable to the occasionally needed breakdown maintenance. Same is true of the system of juvenile justice; and justice in general.

(The writer is former Professor, Indian Institute of Management-Bangalore)