Parliament’s nod amid public outcry, courtesy the Nirbhaya case, has wiped out the dividing line between children above 16 and adults at being found at odds with the law of the land. This not only takes away the mercy from law for juveniles but also the chance to get reformed for erring young citizens, writes Anant Kumar Asthana
On 12th August 2014, Union Minister for Women and Child Development Maneka Gandhi introduced The Juvenile Justice (Care and Protection of Children) Bill 2014 in the Lower House or Lok Sabha. The bill was referred by the Chairman of Rajya Sabha to the department’s related Parliamentary Standing Committee on Human Resource Development, initially headed by BJP MP Jagat Prakash Nadda, and subsequently by BJP MP Satya Narayan Jatia, on 19th September 2014, which submitted its report to both the Houses of Parliament on 25th February 2015 stating that the Bill was based on misleading data regarding juvenile crime and violated certain provisions of the Constitution. The report also said that:
“…some incidents of juvenile crime, though a cause of serious concern should not be the basis for introducing drastic changes in the existing juvenile justice system.”
Commenting on the manner in which the Ministry of Women and Child Development functioned on formulation of drastic changes in Juvenile Justice Law, the report said:
“One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution. Therefore, drastic changes proposed in some key areas of the existing system of juvenile justice need very deep introspection. It is all the more surprising that the Ministry has very comfortably chosen to ignore the views of all the major stakeholders in this regard.”
The Committee’s clear reluctance to the drastic changes in Juvenile Justice Law is amply manifest in following observation:
“…the Committee can only conclude that the existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution.”
Putting a word of caution for our policy makers in Parliament, it also stated:
“The Committee would like to point out that such changes may lead to uncalled for situation in future. This becomes all the more worrisome as the most vulnerable section of the society, our children are likely to be adversely affected.”
Despite such an unequivocal condemnation by a Committee comprising of 32 Members of Parliament, mostly from the ruling party BJP itself, the Lok Sabha passed the Bill on 07th May 2015. In Rajya Sabha, surprisingly Congress took an overnight reversal from its previous publically stated position on the bill and on 22nd December 2015, it was the Congress which facilitated the passing of this bill. Some observers attribute this sudden change in the position of Congress to public protests in Delhi on the release of the juvenile on 16th December. Sustained campaign by the parents of Nirabhaya, and Aam Admi Party’s efforts to takeover this public cause through the active interest taken by the Chairperson of Delhi Commission for Women Swati Maliwal, who went to appeal to Supreme Court to stop the release of juvenile, worked in favour of the bill.
Passing of this bill by the Rajya Sabha was particularly significant because it demonstrated the inability of even non-elected representatives to withstand and rise above the public opinion and act on merits. The very purpose for creating the Rajya Sabha by our Constitution makers was to ensure that at least one House of Parliament never comes under constraints of electoral politics. This time it did not seem to work that way. The mother of Nirbhaya was brought to sit in the Visitors’ Gallery of the Rajya Sabha when this bill was debated and Minister for Women and Child Development even informed the House about her presence and the fact that she was watching.
The bill acquired the Presidential Assent on 31st December 2015, published in Official Gazette for public information on 01st January 2016 and came into force across India on 15th January 2016 as “The Juvenile Justice (Care and Protection of Children) Act 2015”. With this a legacy that India followed for more than 150 years came to an end.
In India, policy, even now, is to treat everybody who has not completed 18 years of age as a child. This new law carves out an exception to this policy when it treats children above 16 years of age differently by allowing sentencing of such children as adult criminals if they are accused of committing offences for which punishment under the laws is more than seven years. This single provision in this law has been under sharp criticism ever since it was floated as an idea in response to public anger against an accused in Nirbhaya case being a juvenile. Liberal reformative approach of Juvenile Justice Act of 2000 could not survive public anger and our parliamentarians succumbed to public opinion.
The process of removing children from jails and carving out a separate justice system for children aimed on reformation instead of punishment started way back in 1919-20. This was the time when the first Indian Jail Committee report highlighted a need to do so. Efforts in this direction have continued ever since. Thus, the 2015 law marks the first ever reversal of this trend. Success of reformative approach in law in dealing with juvenile crime in India is marked by the fact that in a country of more than 110 crore population, total juvenile crime has never exceeded beyond the figure of 40,000 a year and has remained almost static all these years with minor fluctuations.
The proposition that children should not be allowed to mix up with adult criminals and should not be sent to jails has not even been contested by the Minister who initiated this new law. In both the Houses, during debates, the Minister kept repeating that even those children who will be ordered by Courts to be treated as adult criminals, will not be sent to jails and will be kept separately in an institution called “Place of Safety” and will only be transferred to jails after they cross the age of 21 years and show no signs of reformation. This formula may sound acceptable but unfortunately this is not how the law will translate itself into reality.
Not many people may be aware that even when Juvenile Justice Act of 2000 was in force, which completely prohibited sending children to jails, there were scores of children languishing in Tihar Jail of Delhi. This was found to be the case by the National Commission for Protection of Child Rights and Delhi High Court had taken suo motu cognizance of this in the year 2011. The High Court had passed a series of stringent orders to stop incarceration of children in jails. Now when we have a law which legalises incarceration of children in jails, one can well imagine how it will translate into reality.
A few fallouts of the new Juvenile Justice Act are (1) It will increase the population of incarcerated people in jails or custodial institutions, (2) Litigation in higher courts will drastically increase adding to the existing workload and (3) the most disastrous one is that it will increase criminals and crime in society in the long-term.
It does not require one to be an expert of criminology to understand that jails are hardly a place for 16, 17, 18 year-olds to be kept in. And if it is done, this is tantamount to giving admission to our young impressionable youth to a university of crime. As a policy, adult sentencing of children is reputed for being a recipe of a more criminalised society. By brutalising the individuals in most sensitive and formative age of their lives behind the jail bars, one can’t think of a creating a civil society. Defining any crime for which punishment is more than seven years as “heinous” and then opening the possibility of their incarceration at a tender age in jails like other adult criminals is bound to produce catastrophic results for society and public safety.
It goes without saying that the biggest casualty of such a policy overturn will be children who may come mainly from unjustly disempowered, disadvantaged, stigmatised, condemned, neglected and poor sections of our society. Law and its safeguards may turn out to be too big for them to access and the gap between law and justice may well be left to yawn further. -- The writer is a Delhi based lawyer who mainly works on cases of juveniles in conflict with law and takes keen interest in Juvenile Justice Law and Policy.
He can be contacted at firstname.lastname@example.org