After a five-hour long debate, the Juvenile Justice (Care and Protection of Children) Bill, 2014, was finally passed in the Rajya Sabha on Tuesday. Present during the discussions were the parents of the victim of the horrific December 16 gang-rape. The new Law provides for a selective system where the juvenile justice board will have the discretionary power to transfer a child in the age group of 16 to 18 accused of “heinous” crimes, to an adult criminal justice system for trial and conviction. Moreover, anyone between the ages of 16 and 18 who commits a less serious offence may be tried as an adult if he is apprehended after he attains the age of 21. Union Women and Child Development Minister while giving details of the Bill said that borstals — an institution meant for housing adolescent offenders till the age of 21 whatever be the sentence— would be set up under the proposed law to house juveniles accused of a heinous crime. At 21, the behaviour of the offender will be assessed – and sentence curtailed if signs of reform are evident. Many in favour of the Bill argue that people do not need to attain the age of 18 years to learn that murder and rape are wrong. No one needs to be 18 years old to realise that sadistically torturing and abusing anyone is something that is wrong. The retrospective action was never in question, but the idea that being below a certain age should give you free license to commit atrocities and then walk free cannot be condoned, they argue. When a convict commits a brutal rape or murders, the focus ought to be on punishing the convicted, not helping them.
Such a view, however, forgets to answer a primary question. As Congress MP Shashi Tharoor asked during a debate on the issue, “What does justice seek to serve? Does the state exercise its punitive powers for retribution or do we hope to use the justice mechanism as a corrective to wean people from error and rehabilitate the young?” When it comes to children, this question takes greater precedence. Science has proven that an individual below the age of 21 is not often mentally or emotionally developed enough to not give in to impulses. According to numerous studies, the frontal cortex of the human brain, which is responsible for decision-making and impulse control, reaches full maturity only by the time a person turns 21 or 22. In other words, except for areas related to impulses, the rest of the brain can perform all adult actions. Suffice to say, before the frontal cortex reaches full maturity, a person’s ability to fully comprehend the consequences of their action is compromised.
Before moving on, it is imperative to understand that no one is justifying the brutal acts committed by the convicted minor in the December 16 gang-rape case. However, the current law, which applies to all juveniles across the board, cannot be determined by one horrific example. In other words, the law is for general application and not for a particular case. The Justice Verma Committee, a three-member commission tasked with reforming and invigorating anti-rape law, said in its report, “We cannot hold the child responsible for a crime before first providing him the basic rights given to him by the Constitution.” Numerous examples worldwide have proven that transferring a child to adult prison system has failed to prevent repeat offences and lower juvenile crime rates. Moreover, what detailed provisions has the government made to jail convicted minors in separate facilities from hardened adult criminals? What’s worse, budgetary allocation for the development of children has faced drastic cuts under the present government. How does the Centre intend to strengthen the system and administer the provisions of this bill if adequate funds are not spent? Does India have the requisite institutional capacity to bring the law into practice, without undermining the rights of a child? Our juvenile justice system is already poorly equipped with infrastructure and a shortage of counsellors and child psychologists, and a growing backlog of cases.
One of the underlying rationales behind the passage of the bill was the supposed spike in juvenile crimes. Suffice to say, this fact is patently wrong. According to data available with the National Crime Records Bureau, the number of juvenile crimes went up from 35,465 in 2012 to 42,566 in 2014, under the Indian Penal Code. However, it still formed only 1.2 per cent of the overall crime rate over the last three years. When it comes to “heinous” crimes, in 2014, of the 33,981 murders committed, of which 841 (2.5 percent) were committed by juveniles. Similarly, of the 36,735 rapes in the year, a mere 1,989 (5.4 percent) were committed by juveniles. Experts contend that the slight spike in the juvenile crime rate in the last three years has largely been due to the natural increase in population. It is a classic statistical error to presume that the juvenile crime has spiked when absolute numbers are merely understood in isolation. Talking about statistics, majority of children in conflict with the law come from poor and illiterate families. In 2013, 77.5 percent of the children arrested came from families with a monthly household income of Rs 4.200. Moreover, 87 percent have not received a higher secondary education. Instead of giving these children an opportunity to integrate into our society, they will now be tried under the adult legal system. Experts, therefore argue that instead of properly implementing the existing provisions for rehabilitating children in conflict with the law, they are being held responsible for the failures of the juvenile justice system. Suffice to say, the government should have fixed the juvenile justice system first. To make matters worse, two years ago, our Parliament introduced a law that criminalised consensual sex between minor teenagers. The new law now raises the possibility of 16-year-old boys being convicted of rape for having consensual sex with girls of the same age. In conclusion, the new law will prevent another juvenile convict from escaping stringent punishment, like in the December 16 gang-rape case. However, we must ask ourselves if the costs of trying minors as adults could outweigh the benefits? Debate on the subject must carry on, irrespective of the Bill’s passage.