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Hey people, leave those kids alone
Calls for major changes in the Juvenile Justice Act, in the wake of the tragic Delhi gang rape, are well-intentioned but entirely misplaced, points out Ved Kumari.
The brutal gang rape in Delhi of 'Nirbhaya' and her tragic death has rightly led to the demand for changes in some aspects of the law and necessary measures for securing women's safety in our cities. However, using this incident, however ghastly, as the reason for bringing about "necessary changes" in the Juvenile Justice Act 2000 (JJ Act) is open to questioning.
First, we need to recognise that while many women live with the fear of rape in India, it is not children on the street that pose them the greatest danger. According to official statistics, 90 per cent of rapes are committed within homes by persons known to the victim. These include family members, relatives, neighbours, friends and others. If there is a need to amend the JJ Act, the reasons have to be found elsewhere, rather than this case.
There are demands across the country now that the child involved in this ghastly offence against 'Nirbhaya' be not treated as a child and be transferred to the adult criminal courts;and be handed out severe punishment. But such a demand is unconstitutional, as Article 20 of the Constitution clearly states that an offender cannot "be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. "
That leaves us with two real life questions: whether a lower cut-off age needs to be prescribed for defining a 'child' ? And whether the JJ Act in its present form is capable of dealing with a child like the one involved in 'Nirbhaya's ' brutal rape and death?
In answer to the first question, it may be noted that the age of juvenility was raised by the JJ Act to include boys between 16-18 years in the year 2000, as girls below that age had been already covered under the law since 1960. The current definition of 'a child' under the JJ Act is in conformity with the UN Convention on the Rights of the Child, which defines a child as a person below the age of 18, unless majority is received below that age in a given country. This convention has been signed by all but two countries in the world, including India.
It is the common belief that the only response to crime is punishment - read imprisonment - for the offender. This serves the twin purpose of retribution and deterrence. However, prisons are notorious as breeding grounds for hardened criminals, in spite of various efforts made in most to reform offenders. We need to remember this.
In any case, sending children to prison will prove hugely detrimental not only to the interests of the child but also for society, which will eventually have to face a person who may have become a much worse criminal by the time he gets out of prison. Such an individual will have no means of rehabilitation, especially with the stigma of such a prison term attached.
Sadly, the uninformed general public believes that the JJ Act needs to be amended because it provides for 'only three years of imprisonment in the special home after which the offender cannot be sent to prison'.
But there is no obligation on Juvenile Justice Boards to send a child to special offence 'merely because he has committed a serious offence'. The Act in fact permits individualisation of the sentence - by reference to the antecedents and prospects of rehabilitation, rather than the nature of offence by the child. And the JJ Act does provide for sending an older child found to have committed a serious offence to a place of safe custody, which may be coupled with an order of supervision by a probation officer imposing necessary conditions for due supervision of the juvenile.
It may be noted that India has accepted the principle of 'no punishment' for children for any offence since 1960, with the passing of the central Children Act, and the same has been provided for by the JJ Act too. Over fifty years we have found that a majority of such children do not commit the offence again. And there is no reason to believe that children on the borderline become recidivists in the absence of any systematic data available with regard to them.
While there are no words to adequately describe the anguish and anger felt each time a woman is raped, it is important to remember that adolescents need lot more supervision and direction, especially in matters relating to their newfound sexuality. The child offender in this case left home at the tender age of 6. Before marking him as the plank for demanding a lowering of the age for juvenile crime, it is important to find out what happened to him in these last eleven years? Why did he run away from home in the first place? Why did he loose all contact with this family in the last five? What all did he need to do to survive all by himself, away from the care and supervision of the family or any other responsible adult?
In any case, he is not representative of the majority of children who are found to have committed an offence. We must not let our emotions sway our better judgment. A just law is not made by reference to one case - especially the exception to the rule.
The writer is a professor of law at the University of Delhi and a former chairperson, Delhi Judicial Academy.
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