Proposed changes to juvenile justice law scuttle minor convicts’ chances of reform, writes MANDAVI MEHROTRA
The sweeping and drastic amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000, tabled in Parliament, triggered a serious debate on the retributive versus reformatory approaches of the criminal justice system. In the adversarial system of adjudication, whether a revengeful, vindictive and a tit-for-tat style of punishment poses a better solution, even for juveniles and ‘children in conflict with law, is a million-dollar question.
The Bill talks about ‘the principle of best interest' and ‘positive measures' which have been exhaustively laid down. Simultaneously, the exceptional treatment of juveniles between the ages of 16 and 18 years, convicted of heinous crime, as adults for the purposes of penal consequences smacks of ‘adulteration' as the distinction between juvenile justice and adult justice is slowly dissolved.
A significant overhauling of the juvenile justice system, through this historic amendment, looks no more than a change in the reverse gear. Given that some other countries like Italy and Finland have shown a marked decrease in juvenile convicts, after they did away with their punitive juvenile justice system, the wisdom and prudence of Indian legislators is doubtful. The Nordic countries of Norway, Iceland, Sweden, Denmark, Finland, and even Italy, now give mediation, social and educational measures a precedence over prosecution and punishment, when it comes to delivering juvenile justice. In fact, these countries stand out on the international stage for being able to keep their youth imprisonment levels to an absolute minimum. Clearly, Indian legislators have chosen to tread on a path that, in all possibility, will not end not in a successful juvenile justice system.
The amendment indicates that the words enshrined in the preamble to the Juvenile Justice (Care and Protection of Children) Act, 2000, will lose much of their relevance. Moreover, the credibility of the amendment which seeks to create a new, generalised and wholesome ‘class' of juvenile offenders, aged between 16 and 18 years, within the larger class of juvenile convicts, is sure to be legally tested, against the touchstone of Articles 15(3), 39(e), 39(f), 45 and 47 of the Constitution which emphasise the rights and interests of children. The essence of these articles is should not be undermined.
The proposed Amendment to the 2000 law poses a paradox before the judiciary and the society. On the one hand it seeks harsh punishment for older convicts while on the other hand it seeks to improve the state’s handling of children in conflict with law through measures such as the appointment of a child psychologist to look into the case.
Perhaps, the legislators have grown blind towards the ramifications of punitive measures which are not just harsh but also detrimental to the child in conflict with law and the society at large. Imagine the resistant personality which will be born after the child’s malleable personality is exposed to the wicked and harsh environment of adult convicts. Rehabilitation of even the most heinous of juvenile offenders, aged between 16 and 18 years, is not impossible as their young minds can be nurtured so that they may begin their lives afresh. The absence of remorse and regret for criminal acts in juvenile convicts is a sensitive issue that cannot be resolved by harsh punitive measures.
Explanations of youth crime are not only diverse but also contradictory. They range from external factors such as broken homes, poor parental care, poverty, to internal causes like wilful irresponsibility, violent streaks of behaviour, frustration, greed and inherent wickedness. A more scientific way to deal with such acquired and/or inherent symptoms of violence and deviant behaviour is unquestionably through psychiatric support, counselling, behaviour modification therapies and the like.
Among all the revisions proposed in the 2000 law — such as clarity in the powers and functions of child welfare committees and the Juvenile Justice Boards, bestowing of statutory status to the Central Adoption Resource Authority, punitive measures for those who commit heinous offences after an inquiry regarding the pre-meditated nature of the offence and the mitigating circumstances in which the offence was committed — assessing the child's culpability in the commission of the offence, and gauging the accused’s ability to understand the consequences of his or her action are the most drastic, sensitive and crucial in the backdrop of the long-established reformatory approach.
The 14-year long uniformity of the Act on juveniles will soon come to an end. New precedence will be set and the judiciary would be called upon to adjudicate even cases that involve juvenile offenders. The judiciary’s responsibility of fair dispensation of justice, in consonance with the fundamental principles enshrined in the Bill, gets heavier. This comes at a time when the retentionist versus abolitionist debate on classification of juveniles, on the basis of the age factor, is still ongoing.
History is witness to the social re-integration of juvenile convicts through reformatory means. Revisiting this approach is not at all a bad or futile idea in the Indian milieu. After all, statistics from countries such as the US, Canada and Japan show their regret for retention of a punitive approach towards young offenders, as the figures of juvenile convicts has increased with the passage of time. Indian lawmakers must give a careful thought before making drastic changes to the juvenile justice system.