By Ipshita Agarwal

Edited by Shambhavi Singh, Senior editor, The Indian Economist

India is a country where it takes outrageous incidents to wake people up. But they do wake up. There is a stir, some protests, activists calling for change, and if the incident could muster enough support, a debate to change the law ensues. The Parliament is drawn in, and in some rare cases, an amendment to the law is approved and passed. In recent public memory, the December 2012 gang rape case in Delhi has probably witnessed the most widespread outrage, anger and dissent. People from all walks of life came together to protest and the Government was forced to amend the concerning laws last year. Talks of amending the Juvenile Justice Act also began sometime back. They gained momentum as the frequency of rapes committed by juveniles rose. It reached its peak with outrage over the Shakti Mills rape case. On 12th August 2014, the Parliament passed an amendment to the Juvenile Justice Bill 2014, reducing the age of juveniles from 18 to 16 for heinous crimes, giving the judiciary the power to try juveniles in the 16-18 age group in an adult court in some cases. As the victim Nirbhaya’s family welcomed the move, many other supporters of reformative law and child right activists condemned it.

THE BACKGROUND-

The Juvenile Justice Act 2000 provides for ‘juveniles in conflict with law’ to be 18 years of age or below. The law was seen to be extremely progressive because of its nature of being reformative. The Act provided for a maximum of 3 years of punishment in a juvenile reform home for any crime committed by a juvenile. The belief was that criminals in this age group should be given a chance to reform themselves by staying in juvenile reform homes instead of jails, which would only make them hardened criminals. Indian law as a whole is known to be reformative rather than punitive in nature. The Juvenile Justice Act, 2000 is a reflection of this nature as it seeks to give the juveniles a chance at reformation.

However, recent rape cases such as the ones stated above caused the public to demand harsher punishment for juveniles involved in heinous crimes like rape and murder and for them to be tried in adult courts.

THE JUVENILE JUSTICE BILL, 2014-

Women and Child Development minister, Mrs. Maneka Gandhi expressed her displeasure regarding the rise of serious crimes committed by juveniles in India. She said that according to the police, 50 per cent of all sexual crimes were committed by “16-year-olds who know the Juvenile Justice Act so they can do it. But now for premeditated murder, rape, if we bring them into the purview of the adult world, then it will scare them.” She proposed an amendment to the Juvenile Justice Act, 2000 which would allow juveniles in the age group of 16-18 to be tried as adults for heinous crimes on the discretion of the Juvenile Justice Board. The amendment was passed in the Parliament this week.
However, Mrs. Gandhi’s statements were ill-informed. As per National Crime Records Bureau (NCRB) data, juveniles were charged with 3.4 per cent of all the rapes committed in India in 2013.

Nevertheless, keeping wrong facts aside, what Mrs. Gandhi contested as an argument for the amendment was basically a ‘fear of the law’ , i.e. a punitive approach to deal with juveniles. The Bill was passed with only a 15-day consultation period and hardly any debate. However, what we, as a country needed to decide was – What kind of laws do we want as of now? What function do we want our law to perform? Are we willing to become regressive for the sake of justice or would we rather be progressive at the cost of not appropriately punishing the guilty? Is there a middle ground?

SOME ANSWERS-

The Juvenile Justice Bill, 2014 is seen by many as the need of the hour to curb the rising crimes committed by juveniles and to inculcate a fear of the law in their minds. This reasoning is based on the premise of law having to set an example of punishment to discourage juveniles. Rape is the right of assertion by a man over a woman, a display of superiority and force. Juveniles are well aware of the gruesomeness of this crime when they commit it and how it destroys the dignity of a woman. Thus, the law should provide for these juvenile ‘criminals’ to be tried in adult courts and serve the adult punishment for rape.

It sounds very reasonable.

However, what it fails to take into account is the overall moral and ethical connotations attached to such a law. All over the world, it is believed that juveniles should be given a chance to reform themselves. It is believed that putting them in jail will only make them hardened criminals when they come out. Empirical evidence supports this belief. When you reduce the age of trying a juvenile in an adult court, you take away any chance of reformation and mostly prepare him/her to become bitter, and live in contempt of the law.

More importantly, for a crime like rape, reducing the age for juveniles to 16 without reducing the age of consent basically means setting out the field for false allegations on boys in consensual relationships with girls of the same age by the girls’ families. In the case of statutory rape, where consent was immaterial, the boy will now be treated as a pedophile and we will see increasing moral policing. In a country where honor killing is a very real and common phenomenon, this law will now provide such families with a legislative support to allege rape, even in cases of consent. Enacting this law without a corresponding change in the age of consent reflects the ignorance of the law makers.

Moreover, by passing this amendment, the Government has expressed its lack of faith in the reformative ability of the juvenile justice homes in India. When the juvenile accused in the Nirbhaya gang rape case was sent to the Majnu Ka Tila reform home in Delhi, there was much news about the pathetic state of reform homes all over the country. Where a juvenile is expected to undergo reformation, there exists an apathetic environment with a lack of infrastructure, basic living conditions and complete negligence regarding psychological support, counseling, vocational training etcetera. Understanding that these homes are mostly not able fulfill their reformation responsibility, the Juvenile Justice Bill provides for an alternate mechanism to punish the guilty, than provide for a stronger legislative and administrative support to make the juvenile homes ‘reform-oriented’.

CONCLUSION-

In the short run, the Juvenile Justice Bill, 2014 may provide for a stronger punitive approach to immediately curb the rise in gruesome crimes committed by juveniles; however, its long term implications have not been considered. Punitive law is commonly considered retrograde as it goes against the very belief of righteousness and reform. Rape is a crime that mostly results from the desire of power that men want to exercise over women. Even with the law in place for adults, there has been a steady rise in the number of rapes across India. The question I ask is – If the (adult) law in itself was capable of deterring rapists by inculcating fear, shouldn’t the number of rapes being committed by these adults have gone down, especially after the 2013 amendment which provided for harsher punishment? Sadly, empirical evidence proves otherwise. Fear of conviction does not exist in most rapists’ minds, and that fear, even if it existed, would do little to prevent them from committing the crime.
Given that we understand this, if we expect the Juvenile Justice Bill, 2014 to bring about a decline in such crimes committed by juveniles due to fear of harsher punishment, we are simply being ignorant of the facts before us.

What we need today is a legislation that strengthens the implementation of the laws that exist. Better administrative and legal procedures to ensure that rapists are convicted and sentenced in due time will go a long way in creating the ‘fear of law’ that this bill seeks. Better reform homes will go a long way in reforming juveniles, thereby making sure that we do not have more hardened criminals who live their lives in contempt of the law due to the apathetic treatment meted out to them during their sentence period.

What the law makers, activists and we as a country, need to decide upon is a common vision for the law that we seek to put into place. If we seek to reform juveniles and reduce the long term implications of their crimes, we need a stronger legislative and administrative mechanism to improve the condition of juvenile homes. Knowing that harsher rape laws have not succeeded in curbing the incidence of this crime among adults, passing another law which hopes to reduce these crimes based on a fear of these ‘harsher laws’ speaks of the ignorance and short sightedness of the law makers.

Ipshita is a second year student pursuing B.Com Honors at SRCC, Delhi University. She loves to read, interact and network. Books are her first love and she dreams to set up a chain of bookstores around the globe. Writing is her passion and she is particularly interested in the fields of public policy, politics and international relations. She aspires to build a career in public life and take up writing as a medium to bring change.

Posted by The Indian Economist | For the Curious Mind