On July 17, almost seven months to the day when a 23-year old woman was raped and brutalised in a moving bus in Delhi by a group of men including a juvenile, it became legal. If you are less than 18 years of age, you can get away with rape and murder in this country.
And, you can count on the courts and social activists to be your guide and philosopher. At least this is what the Supreme Court verdict of that day amounts to saying. A three-judge Bench of the apex court headed by then Chief Justice of India Altamas Kabir upheld the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which shields juveniles from harsh punishment for even the most heinous of crimes they commit, and defines a juvenile as one who has not completed 18 years of age. The Bench dismissed a bunch of petitions that sought the lowering of the juvenile age to 16.
The justices, being learned persons who have emerged from the country’s hallowed intellectual chambers, and who don’t represent the riff-raff of society which understands only ‘knee-jerk' reactions, justified their ruling with a number of patronising arguments, without of course failing to pay lip service to the December 16 incident that had given rise to the petitions which they dismissed casually on the ground that “interference in the law is not necessary”. Before the likes of us, who understand neither the law nor behavioural science, convulse into yet another knee-jerk reaction on why the highest judiciary's interference in the law is ‘necessary', listen to the Bench's sage caution: “Knee-jerk reaction to the situation could set a dangerous trend and affect millions of children in need of care and protection”.
Which millions of children are the judges talking aboutIJ They cannot be the same that we are talking about — and those that are indeed the talking point: Juveniles who are charged with gravest crimes such as rape and murder. They have been accused of brutality and torture — of inserting iron rods and wrenches into private parts and turning and twisting them; of beating victims senseless and repeatedly brutalising them; of telling their interrogators that they did the crime knowing that they would be let off lightly because they are juveniles. Are such brutes in need of care and protection or a strong dose of stringent punishmentIJ
And, how can a change in the juvenile justice law “set a dangerous trend and affect millions of children...”IJ The ‘millions of children' are not going to be affected if the juveniles accused of rape, sodomy and cold-blooded murder are tried as regular criminals. Nobody is suggesting that juvenile pick-pockets and idli thieves should be treated like dacoits and killers. If the learned judges believed it was much too comprehensive and unnecessary to amend the Juvenile Justice Act across the board, they could have ruled that, faced with grave offences, a minor could lose the protection of the Juvenile Justice Act and be tried under regular provisions of the law. Or at the very least, the Bench could have directed the Government to study the possibility of amending the law accordingly, and list out the offences (to be kept at a bare minimum) that would not fall within the juvenile justice law's ambit. This has been the demand of many sections of society.
But the apex court — in this case led by the then Chief Justice himself — lacked the will to push for change. Instead of being led by the basic jurisprudence of ‘punishment commensurate with crime', at least in heinous offences, the judges appear to have been influenced by teary-eyed activists who feel so compassionate about the juvenile criminals — one of them even pleaded on a television programme that we must “please let” the minor accused in the December 16 case “to reform” — that they have run out of compassion for the victims. They have fallen for the nonsense that minors have to be tried only under the juvenile justice law because the Act is reformative, and not retributive, in nature. We are now to believe in the rubbish that after serving a piffling three years in a reform home, a juvenile accused will join the mainstream as a reformed man. What must motivate that reformIJ It certainly cannot be the small tenure of the juvenile’s so-called incarceration.
It's quite a coincidence that some of the terms used by the Bench headed by then Chief Justice Kabir to rule out change in the Juvenile Justice Act should be so similar to that used by Justice Kabir's wife and well-known child rights activist Minna Kabir, in some of her recent writings. While frowning upon the demand for ‘street justice' (whatever that means) for the juvenile offenders, Minna Kabir had written months ago in the wake of the December 16 incident that, instead of “knee-jerk reactions”, it was important to revisit the juvenile justice law. Remember, the Bench too had used the ‘knee-jerk' argument to disfavour alterations in the juvenile justice Act.
Not just this, the apex court Bench headed by Altamas Kabir ruled out changes in the juvenile justice law because the number of incidents that involved minors in grave crimes was too small to merit such alterations. “Such an incident, in comparison to the vast number of crimes occurring in India, makes it an aberration rather than the rule”, the Bench observed. Minna Kabir, not surprisingly, had expressed a similar thought months earlier. She had written, “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…” Reflect on the repeated use of the word ‘only', and you get an understanding that such activists are not just keen, but desperately keen, to downplay the most terrible crimes committed by juveniles. They don't want to tell you that of the total crimes (some of them gruesome) committed by juveniles, almost two-thirds have been by accused in the age group of 16-18 years in recent years. And that's a rise over the earlier years.
Perhaps the Supreme Court is waiting for juveniles to take to heinous crimes on a more regular basis, so that our learned judges can then interpret or suggest changes to the Juvenile Justice (Care and Protection of Children) Act, 2000. Just as the judiciary meekly allowed a political system that patronised and promoted corrupt and criminal politicians to flourish for decades and then decided to crack the whip when things spun out of control. Get the message: It's not enough if rape accounts for ‘only' less than five per cent of the total crimes that children have committed over the decade; the figure needs to be more impressive for the law to change. Thank you, honourable judges, for this valuable rule of the thumb.
Meanwhile, the large-hearted activists (whose hearts cry only for the accused) can continue with their efforts to ‘reintegrate' the juvenile rapists and murderers in the ‘mainstream' of society, even as the lives of the victims and their families disintegrate.