Changes now made to the juvenile justice Act ought to have come years ago. The trial of minors accused of serious crimes is permitted in many democratic countries
The Supreme Court’s order, upholding the death sentence for the four accused in the Nirbhaya rape and murder case, has largely been met with applause. There has been a widespread sense of contentment that justice has finally prevailed and that there has been a closure.
The top court’s ruling was indeed unusual — it was ‘the rarest of rare case’. The brutality and torture undergone by Nirbhaya raised the collective conscience of the people and forced them to take note of the menace lurking on Indian roads. There were candle light marches and protests in solidarity with her. And the demand was just one — “hang the rapists”. The accused deserved no mercy. Rightly so, the case became a turning point and the apex court’s judgement will to some extent alleviate public’s faith in the justice delivery system and infuse a sense of fear among the rapists.
However, the reality is that all positive. One of the perpetrators of the crime, a juvenile, continues to live as a free bird, in anonymity, after having served three years in a remand home. The judiciary was tied by the law of the land as the juvenile fell short of a few months to be tried as an adult. Considering that his conduct was as heinous as the other accused, or by some accounts worse than those of five others (one of them died in jail), his freedom seems a travesty of justice.
Today, while he remains free, there are no chances to bring him to justice, at least in the Nirbhaya case. This shall remain a matter of enduring regret. The saving grace, however, is that an enraged India’s voice against the establishment’s apathetic attitude to the incident finally yielded results. The Government was forced to amend the Juvenile Justice (Care and Protection of Children) Act, 2000, which had been providing a ‘protective’ shield to hardened juvenile offenders.
Now, at the very least, there cannot be a juvenile, who commits a ‘heinous crime’, getting away by serving a few years in a remand home, (which was hardly a punishment). Juveniles aged between 16 and 18 years will now have to face the consequences as any other adult does and will also be subject to the Indian Penal Code (IPC).
However, the Government’s decision to make the changes in the juvenile Act re-ignited the debate on how juveniles, who commit crimes, must be treated. At the forefront of this debate were human rights activists. Their argument was simple: The Government, instead of giving in to popular pressure, must ensure reformation and rehabilitation of young offenders, as juveniles are still learning and not mature enough to understand the consequences of their actions. They, therefore, deserve to be treated with compassion.
The hue and cry raised by these people was completely misplaced. In fact, most juvenile offenders are well aware of the provisions of the law that could help them escape lightly. Moreover, it’s not necessary that a juvenile rapist will turn a new leaf in reform homes. He can become a repeat offender.
While the lamenting brigade’s logic may hold true for those juveniles who engage in petty misdemeanours, it cannot be the case for those committing heinous crimes such as rape and murder. lines must be drawn and this is what the new amendment has sought to do.
No one is suggesting that all children, who commit a crime, must be tried under the IPC. To be sure, it’s not that the court will blindly start a case and instantly push the culprit under the adult justice system. The judicial process has well-laid down checks and balances for a fair trail. Once the case is registered, it will be passed on to the juvenile justice court, which will decide the nature of the crime and also give its recommendation on whether the juvenile is to be recommended for rehabilitation or tried as an adult for a heinous crime.
To further simplify matters, based on the Indian criminal law, what kind of an act amounts to heinous crimes, too has been defined. As per the law, serious offences are those like that of cheating, counterfeiting etc and heinous offences include that of murder, robbery, rape etc. Arguably, even in the case of heinous crimes, it’s not essential that the ultimate punishment is death sentence. Depending on the nature of the crime, it may be the case that a juvenile may have to serve a few years in jail.
While the amendments should have a come long time ago, for various reasons — the lack of political will and also the lack of reformatory zeal on the part of the apex court — the change took time in happening. What was astonishing was that the court — in this particular case the Bench that was hearing the matter, which was headed by the then Chief Justice of India Altamas Kabir — went against the popular demand and took a controversial decision to allow the trial of the teenager accused in the case, as a juvenile and not as an adult.
The Bench was of the view that after undergoing reformation, the juvenile would be fit to join mainstream society. Just for argument’s sake, even if we are given to trust this statement, given the number of cases of repeat offenders one wonders if a small tenure in a reform home can bring the so-called reform in a serious criminal. We must also not forget the pathetic conditions of our reformatory homes.
Sadly, Justice Altamas Kabir seemed to be on the same page as teary-eyed activists who did not want the juvenile Act changed. His wife Minna Kabir, a well-known and reputed child rights activist, too was opposed to such a change, though there is nothing to suggest that Justice Kabir was guided by his wife's opinion. However, it is true that in the wake of the December 16 incident, Minna Kabir had written that, instead of “knee-jerk reactions”, it is essential that the juvenile justice law be revisited but not to provide for trial of a juvenile as an adult. And, this is what the Bench, headed by Justice Kabir had to say, “Knee-jerk reaction to the situation could set a dangerous trend and affect millions of children in need of care and protection.”
Apparently, Justice Altamas Kabir was also taken to believe that since the number of minors involved in grave crimes was small, such alterations must not be made. Coincidently, Minna Kabir said, “The child crime rate from 2000 to 2012 reflects that juvenile crimes accounted for only 0.5 per cent of total crimes committed. Rape accounts for only about 3.5-4.45 per cent of the total crimes committed by children…”
Even now, with the new amendments in force, the battle against making public places safer for our women does not end here. As a matter of fact, ever since this incident, there has been a surge in the number of rape cases being reported. According to the National Crime Records Bureau, 34,651 women were raped in India in 2015 — an appalling rate of 95 per day. The Rohtak incident is only among the latest.
legislation alone will not tackle the problem. Efforts must be made to improve the overall conviction rate, which can only happen through better policing and investigation, without which the new legislation will make no sense. Most importantly, it has now become all the more necessary for the police to deal effectively. Because, with stricter laws, the punishment too becomes harsher. Then the need arises for the police to present before the court a water-tight case so that the maximum punishment is upheld held. On its part, the court too becomes doubly careful. It does not want an iota of doubt to remain, because sentencing someone to death is not a joke.
(The writer is Senior Assistant Editor, The Pioneer)
