The history of child rights in India is not a happy one. After a long struggle, the juvenile justice system was put in operation through an Act of Parliament. All, below the age of 18 years, are hitherto protected as juveniles or non-adults. Some recent incidents seem to have caused a questionable sway in the minds of Parliamentarians that the age of 18 should be brought down to 16. The media had its own role to pay in this. The Standing Committee of the Parliament has reportedly not favoured any alterations. The evidence from other countries including the US and many others does not justify such an alteration.
There has not been sufficient attention and investment to make the Juvenile Justice (Care and Protection of children) Act, 2000 suitably effective. The categorisation in the Act relating to children in need of care and protection of children in conflict with law has not received adequate attention. No programme has been pursued with any zeal to serve the cause of juvenile reforms.
The Indian population includes 30 per cent children. Thousands of children have no one to turn to for elementary healthcare. For many of them, school is out of bounds. We have a Right to Education Act, and “education” as a Fundamental Right in our Constitution. But around 50 per cent children drop out of the schools before they cross Class-VIII. Some of them are exploited as child labour; some in the process get improperly persuaded to indulge in criminal activities. Before the protective law came, they were to be housed with the other adult criminals, who are already behind bars. India spends less than one per cent of its GDP on child protection. Reliable reports indicate that about 80 per cent of juveniles involved in crime belong to families having an annual income less than fifty thousand rupees, and more than 50 per cent of them have never crossed the primary school.
The recent cases seem to have pushed the Government to pilot the emotion-motivated amendment. In the age group of 16 to 18 years, the persons involved in the alleged rapes constituted about 2.5 per cent. Similarly in the age group of 16 to 18, the rate at which crimes are committed by children is less than two per cent. The amendment to the Act of 2000 militates against the UN Convention on Rights of the Children, which stands ratified by India, and the provisions of the Constitution of India. We have also not adhered to the basic international principles of juvenile justice.
Revealing statistics come from the New York State in the US, which unlike most other States, treats 16 or 17 years old as “adults”. Statistics also reveal that juveniles in New York reoffend at a higher rate than other States of the US. Within the next 10 years of their life, almost 89 per cent of the boys and almost 81 per cent of the girls, who have been in incarceration with other adults, are found to be rearrested on the allegation of involvement in criminal activities. The experience of New York amply demonstrates the undesirability of enabling 16 or 17 years old in India to be co-prisoners of other adults, many of whom are charged or convicted with heinous crimes. As the juveniles grow up under the influence of the master criminal adults, they gradually turn into a gang of hardened criminals.
Unfortunately, the Government, or for that matter no political party, has stated and analysed the performance and implementation of Juvenile Justice (Care and Protection of Children), Act, 2000. But in some recent cases, 16 to 17 years old were implicated with heinous crimes of rape and murder. They were granted their due under the juvenile justice system, which has come to settle down in the international arena. The facts hitherto available do not justify the amendment. Representatives of the people cannot be immune to the requirements of the juvenile justice system. The provision in the present Act according a differential treatment to non-adults, i.e., juvenile could have been tinkered with by making the sentence in the particular sections longer than three years. We could have invested in a mandatory system to help the juveniles through effective diligence and training. Unfortunately, the Act of 2000 was yet to be appropriately implemented. At this juncture, this populist, irrational and influenced by subjective opinion, including those of the media, led to the unwarranted amendment contrary to the long run interest of the society.
Unfortunately, none of the political leaders articulated any arguments against the amendment, especially when it was not going to benefit the juvenile, as a part of our society in a positive manner.
It is time the government invested in facilities for juvenile delinquents and nursed their wounds in a meaningful and purposive manner. This juvenile is the feeder source of the youth power. The adult that constitutes the youth power is conditioned by the indelible experiences of the juvenile years. The youth, therefore, have a duty to protect themselves by protecting the juvenile. They have hardly expressed any opinion in this matter. I am sure no political party consulted its youth wing before taking a public posture in this matter. Events, however hurtful they may have been, cannot justify a general change in law without evaluating the social consequences of the concerned amendments. One gets the feeling that the youth have been outsmarted and have been robbed of their rights. A rethinking to set the laws right has to emerge from within the youth community. This is a matter affecting their future in an irremediable manner.
let the above issues be debated by the youth power with the legislators and let the youth place their demands before a committee of the Parliament. The deliberations between the legislators and the representatives of youth power should be transparent and made public. But unfortunately, the elders in the society throttle any such active participation by the members of the community of youth. Old may be wise but does not thereby acquire monopoly to choke the channel of deliberation towards attaining better quality of social legislation.
To push the youth power to be inspired and participate in such a dialogue requires a certain amount of openness and magnanimity on the part of those who have styled themselves as “elders”. They must open the doors of access and grant opportunities for deliberations. This requires some pioneering and path-breaking steps on the part of those who have hitherto kept the decision-making power as their exclusive domain. To achieve this, we must all act and that we the “elders” should get over our inhibitions and turn pragmatic and rational. This is not confined to the concern of the youth power alone as it involves the future shape of the entire society. And this concerns all of us!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. yantdas@hotmail.com)