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Posts Tagged ‘amendment to Indian Juvenile Justice Act’

“Juveniles accused of heinous crimes will be tried as adults”.  It was reported in the national media yesterday (23/04/2015) that – after considering recommendations to the contrary – the Indian government’s Cabinet Committee has approved the amendment to the Juvenile Justice (Care and Protection of Children) Act.

Under the proposed amendment, juveniles in the age group of 16 to 18 can be tried under the Indian Penal Code (IPC) if they are accused of “heinous crimes like rape, murder, dacoity and acid attacks”.  In the interests of justice and fairness to the adolescents involved in such crimes, the proposed amendment provides that the psychologists and social expert members of the Juvenile Justice Board will assess, in every case, whether the particular crime was committed as a “child” or as an  “adult”.

This socio-legal development  touching on the highly complex issue of how mature and self-aware a “child” of 16 to 18 years who commits a brutal crime might be, comes in the wake of the horrific Nirbhaya gang rape of Delhi.  In that rape, of the four males who raped and brutalised the young woman on a private bus on Delhi’s killer roads on that smoggy December evening,  one was a “juvenile”.  While the other three rapists were given the severest sentences by the court, the “juvenile” was let off with a mere three year sentence.

It is almost three years since that judgement, and in a few months time this young person will be free to once again roam the streets of Delhi.  Possibly he will still have intact  some pre-existing psychological proclivity towards extreme violence, including sexual violence.   Possibly he will still be carrying the scars of his involvement in that heinous crime that shook the nation.

Certainly, we as a nation have not been given any evidence of whether, during his incarceration as a “juvenile”, he was put through intensive psychological counseling and rehabilitation such that he is no longer likely to pose a threat to his fellow beings, particularly women.  It is possible that the timing of the proposed amendment has been positioned against the context of the imminent release of this young adult.

In the wake of the judgement on the Nirbhaya case, two factors brought the issue of the “juvenile” to the centre stage of the debate.

One was the role of the “juvenile” in the heinous crime.  From the accounts of the other perpetrators and, notably, the dying testimony of the young woman herself, the picture that emerged of the “juvenile” was that he had been the most daring of the four rapists.  It was he who had spotted the young Nirbhaya and her male companion as potential victims for some possible ‘fun’ , and lured them into the bus with the offer of a ride to their destination.  He had also gone on to participate fully in the beating up of Nirbhaya’s companion followed by the rape of Nirbhaya herself.  And finally, it was at his initiative that the gang of four visited on her that ultimate act of brutal violence, as a punishment that she would never forget for being out ‘alone’ at 8 p.m. – and that too with a man – which resulted in her death.   The other factor that drew the spotlight was the lenient sentence meted out to him, solely due his being a few months short of age 18 at the time of the crime.

The most impassioned arguments made against the “juvenile” status accorded to him under the law, were that any male who could rape so brutally as to literally break asunder a woman’s body causing her death, deserved to be tried as an “adult”.  Surely, an adolescent capable of such violent initiatives could not be considered a safe enough member of society for early release?  Further, he was almost close to the cut-off date for “adulthood”; was it not then resorting to legalese to use reported age to classify him as a “child”?

The child rights activists, on the other hand, took shelter under the U.N. Convention on the rights of the child to which the Indian government is a signatory. In addition to his age, they highlighted the “juvenile’s” background – his disadvantaged economic and social circumstances resulting in poor upbringing,  low educational status, daily exposure to the poverty and violence inherent in slum living in the city, etc.- and argued that he was himself a “child victim” of societal malaise and deserved the right to be protected under the law against a double jeopardy.

Perhaps it is time to take the debate beyond the homogenized frameworks of  U.N. charters and the ‘objective’ criteria of age – both valid goals to work towards – and take account  of  complex cultural landscapes as they prevail in particular countries.

In India, for example, age reporting is not sacrosanct.  Birth registration is still not mandatory, nor practised universally.  Age certificates are still treated casually as something that can be drafted and altered at will depending on expediency; all that it takes  is payment of  a little grease money or use of a little political influence. I have myself witnessed this happen, where the village Sarpanch asks parents requesting an age certificate for a grown-up child, what age they would like put on the certificate on which he/she will place an official stamp of approval.  Again, children born years apart might be reissued fresh age certificates with retrospective effect to show them as having been born twins, so as to facilitate a parent’s political ambitions and meet the government’s two child norm for candidates wishing to stand for political office.  This may be more true of rural India, and among persons belonging  to educationally backward backgrounds.  Among many rural populations, there may also be a strong cultural propensity to roughly ‘estimate’ a child’s age long after the child’s birth,  by the season of the year when the child was born, or with a family event such a marriage that happened “10 or 15 years ago”, or with a local calendar.

Much of the above might be more true of large areas of the northern Indian belt.  In this culture region, for many persons, the time to deliberately exercise the right to decide what their official age should be, is when their school leaving certificate is being finalized.  In the widespread absence of birth certificates, it is the school leaving certificate that is accepted as ‘proof of age’ across northern India.  It used to be a joke that I often heard in my younger days,  growing up,  and later working, in north India.  That families – not necessarily economically disadvantaged, but in fact socially ambitious – would decide what ought to be the official age of their child (especially a son) at the time of his sitting for the school final exam, such that he would become eligible to sit for a whole host of competitive examinations, particularly the civil services examinations – each with its specific age cut-offs – that are the gateway to coveted public sector jobs.

Against the background of the social contexts briefly described above, rife with anarchic and inchoate elements, it is possible to see how the pitch might be queered for any court trying to decide whether a person who says he is three or six months short of his 18th birthday ought to be considered a “child” or an “adult” were he to stand accused of committing a brutal sexual crime – rape, acid attack – or murder.

Yet another factor adds to the complexity of the debate.  This is the discretion that the proposed amendment  grants to the supposed “experts” who will have the responsibility of assessing whether the 16-18 year old accused committed the crime as a “child” or as an “adult”.  Will those appointed as “experts” be already schooled in the necessary rigorous professional standards, universalistic cultural values, and ethical norms to give fair and just assessments?  We already have the example of professionals in other modern institutions – police, lawyers, judges, to name just a few  – who could carry their culturally derived social prejudices into their professional roles, thereby adding fuel to the already present tensions in a society that is in a state of upheaval arising out of the clash of traditional social values and mores, with modernizing forces.

Finally, drawing from the last-mentioned factor, so much of what manifests as violence and crime by adolescents arises out of everyday social processes within which young people get caught up.  A decade or so ago, a friend of mine recounted a personal story.  It was the year that his son was studying in class ten of an upmarket Mumbai school. It had just come to light that four of his classmates who belonged to a friendship group had plotted and killed the mother of one of the group so that they could enjoy the cash that the lady reportedly stashed away in her home.  It took a year for the boys’ lavish spending habits to catch the attention of the crime detection branch.  When the appalled principal of the school called a meeting of all students and parents to introspect on what had gone wrong within the school community, several classmates of the criminal 16 year olds blurted out, in all their honesty, that perhaps the fault lay with parents not being strict enough with their children.  My friend – whose own son was the mildest sort of fellow – confessed to being shocked by the children’s analysis; he had just no idea that young people in fact wanted grown ups to put more boundaries into place, and not give them untrammeled freedoms whose consequences they were unable to handle.

The proposed – controversial – amendment announced yesterday  is seen by many who oppose it as a response to the visceral feelings of public anger arising out of the singular Nirbhaya case, rather than being grounded in a larger and well-informed philosophical framework.  The answer – if at all there are any answers in a grey area where only many questions abound – probably lies somewhere in between.

If we are to mature as a democracy that can take along with it the bewildering array of social diversities and cultural temporalities that prevail in 21 st century India, we will have to agree to allow for grey areas to persist as we grow in wisdom as a modernising society.  It is not easy to legislate in a manner that takes account of all the multiple contradictory trends that swirl around us.  Yet it is a challenge that cannot be avoided.  Tentativeness, and willingness to revisit issues, keep debates and minds open, and amend amendments, is probably the key.  Simultaneously, consciously building high quality professional skills in the areas of adolescent psychology, mental health, school and community level counseling, and legal aid – skills that could be called into yeoman service in multiple social areas – is a task that should have begun yesterday.

With one of the largest populations in the world in the age group 16 to 18 years, and a society seeing unprecedentedly rapid social and cultural changes to which this highly impressionable and volatile age group would perhaps be among the first to respond, the educational, psychological, sexual and, indeed, overall well being of our young people, free from extreme panic reactions by ultra conservative social and religious elements,  ought to be among our highest priorities.

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