Minor differences in serving justice

In the Nirbhaya <g data-gr-id="38">gangrape</g> case, one of the accused was a juvenile, just a few months short of being a major. He was also allegedly the most brutal. While the court sentenced the others to death, he was packed off to a correctional home for three years, the maximum punishment for a juvenile delinquent under the Juvenile Justice (Care and Protection of Children) (JJ) Act.

The JJ Act is premised on the principle that a juvenile offender is not mature enough to realise the full consequences of his actions. Hence, he should not be tried by a criminal court for adults; ideally, he deserves reform and rehabilitation, not retribution. Nevertheless, most people found it outrageously absurd that a 17-year-old could get away with gruesome rape and murder just because he is a child in the eyes of the law.

As the clamour for amending the law mounted, the government quickly drafted the new Juvenile Justice Bill, which allows for a juvenile offender above 16 (why 16 and not 15 is not clear, but it is bizarre to imagine the contrasting fates of two juvenile murderers, one on the wrong side of 16 by one day, the other his exact mirror image) to be tried as an adult, except that he cannot be sent to the gallows or put behind bars for life. The Bill has been passed by the Lok Sabha.

Backers of the Bill cite the American experience where the law for juvenile delinquents was similarly amended in the 1980s to check growing crime among the youth. Currently, most American states allow discretion in trying juveniles in regular courts. The dramatic rise in cases of rapes by juveniles in India over the past decade is offered as a ground for amending the current law, which by most accounts has failed in both rehabilitating the juveniles as well as deterring crime.

Critics of the Bill, many psychologists, child rights activists, and lawyers among them, find the Bill fallacious, persuaded more by popular sentiment than by logic or evidence. They too point to the American example of how the practice of punishing rather than rehabilitating juvenile delinquents has neither achieved juvenile justice nor deterred crime. The controversy surrounding juvenile delinquency—what are its causes, how does one prevent it—is full of ideological twists, turns, and blowbacks with no easy resolution in sight. At the heart of this vexed debate lies the unresolved conundrum about when does a juvenile metamorphose into an adult. Legally, that happens at the precise ticking of age 18 but that is more a matter of convention than logic.

However, science is now illuminating the dark corners of this mysterious rite of passage. Although still nascent, insights from neuroscience are being used as evidence to persuade courts to judge juveniles by different standards. These studies suggest that contrary to popular perception the brain does not stop developing at 16. Most notably, images of the prefrontal cortex, which has much to do with mental attributes such as motivation, reasoning, the ability to control sexual instincts and resist peer pressure, suggest adolescence spills over into a large part of the adult preserve. With the blessings of organisations such as the American Association of Child and Adolescent Psychiatry, juvenile justice advocates have managed to persuade the US Supreme Court to outlaw death penalty, life imprisonment for crimes other than homicide, and mandatory life sentence without parole.

But, as many sceptics have warned, mixing a shaky science and law is fraught with danger. It is one thing to deploy science to distinguish the young from the adult, but quite another to translate that into law and practice. Besides, the ghost of eugenics and Nazi experiments with genetics still haunts any attempt that links behaviour with biology—to claim that juvenile delinquents should be treated differently is dangerously akin to claiming juveniles commit crimes because of a defective biology.

The new Bill may have appeased the popular thirst for retributive justice, but the waters of juvenile justice are bound to get choppier despite the insights of science. DOWN TO EARTH