Hurrying the law

LEGISLATING JUVENILITY : Parliament should have been more serious, for there were apparent anomalies in the Bill which required greater scrutiny.

Hurrying the law
The amendment to the Juvenile Justice Act needs careful consideration in a deliberative democracy. This is especially so after the Supreme Court’s expression of helplessness in the plea against the release of the juvenile accused in the Jyoti Singh gang rape case for ‘want of legislative sanction’.

Ironically, the proposed change in the law would be vulnerable to judicial review. According to the Bill, juveniles aged 16 years and above may be tried under the law for adults, for heinous crimes. A lot of discretion is vested with the Juvenile Justice Board, which may decide whether a child should be tried as an adult, when such offences are alleged.

The Government of India having ratified the resolution of the UN Convention on the rights of the child (1989) is bound by the concept of juvenility as proclaimed by the Convention.  Therefore, the country is obliged to treat those below 18 years of age as children and to treat them equally in the realm of penal laws as well. This equality would stand negated as the bill takes the form of law.

There were apparent anomalies in the Bill which required greater scrutiny.   The penalties prescribed do not tally with the gravity of offences enumerated in the Bill. For example, intoxication of a child would invite a sentence of imprisonment up to seven years where as selling of a child is taken as ‘less serious’, as it would lead to jail term for five years only. Such provisions which obfuscate the idea of proportionality needed further examination.

It is dangerous to hurry any enactment meant for social security for it will also pose questions of individual liberty and renovation. Legislation is too serious a matter that it cannot depend upon the crowd behaviour on the streets. It cannot rest on emotional or populist measures and the debates in the Parliament cannot be superficial or deleterious.

The Bill had serious lacunae, in constitutional terms. Treatment of juveniles between the age of 16 and 18 years is not an easy job.   This stipulation   would offend Article 14 of the Constitution by treating the unequal - the adult and the child -  equally for the purpose of prosecution in certain cases. The Bill also suggested that a child aged between 16 and 18 years committing serious offences could be tried as an adult, if he or she is apprehended, after 21 years. 

This again would mean that depending upon the age at which one is apprehended, the method of trial and nature of the sentence might vary. The prescription negates Article 20(1) of the Constitution which says that one cannot be subjected to “a penalty greater than that might have been inflicted under the law in force at the time of commission at the offence”. The oratorical discourse in the Rajya Sabha on the bill, however, overlooked all such fundamental tenets.

The Bill, on being enacted, would also do violence to the decision of the Constitution Bench of the Supreme Court in Pratap Singh v State of Jharkhand (2005) which endorsed the 2000 Act   in clear terms in the context of child rights as expounded in the U N treaty. The Court  said that for the purpose of sentencing, a person who is not juvenile under the 1986 Act(which attributed Juvenility only till 16 years of age) should be treated so in view of 2000 Act.

Better legislative synthesis

The statute, in the words of the Supreme Court “provides for beneficent consequences and… to be constructed liberally”. The unchecked discretion now vested with the Juvenile Board, which is a quasi judicial amalgamation of personalities, is an unwelcome change.

This is not to belittle the alarming growth of juvenile crimes in the country. The National Crime Bureau has published a report containing an alarming data (Crime in India-2014). A total of 31,725 cases under the Indian Penal Code were registered against juveniles in 2013 whereas in 2014, the number was enhanced to 33,526. This shows 5.7 per cent increase in juvenile crimes falling under the IPC.

The report further says that “the highest share of cases registered against juveniles was reported under the crime head ‘theft’ (20 per cent) ‘rape’ (5.9 per cent) and ‘grievous hurt and assault on women with intent to outrage her modesty’ (4.7 per cent each)” and that “these four crime heads have together accounted for39.7 per cent of total IPC cases (registered against juveniles in 2014)”.

The Rajya Sabha has correctly taken note of the ubiquity of crimes committed by the children. Chapter 10 of the report also highlights the quandaries like illiteracy, poverty and homelessness among the children apprehended in different crimes. Socio-economic studies and psychological research alone can pave way to more effective reformative agenda.

A policy paper released by the National Centre for Policy Analysis (1998) that conducted a global survey on the subject also sees “a close connection between lack of punishment and the forming of criminal habits”. Punishment for juvenile has been ‘effective’ according to the paper. The government and Parliament could have considered all these developments and explored the possibilities for a better legislative synthesis.

There is a need to redefine juvenile delinquency in the present environment at the global level after revisiting the UN treaty of 1989. However, for us, in the immediate context, an amendment to the Juvenile Justice Act by incorporating provisions for reformative rehabilitation for a longer tenure, without offending the UN treaty is quite possible and feasible.

Parliament ought to have been more serious in the matter and the discourse required a formidable   legal foundation. The point is to strike a balance between the child rights and social security without offending the egalitarian values reflected in the global treaties.

(The writer is an advocate practising in the Supreme Court and the High Court of Kerala)
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