India’s National Response to Climate Change

Ajay K Jha

International negotiations in climate change faces continued bottlenecks. Conference of Parties, Annual High Level meetings of the United Nations Framework Convention on Climate Change (only international treaty to ensure global cooperation towards climate stabilization) and Meetings of Kyoto Protocol (CMP), which laid down science based targets for the developed countries emission reduction) have failed to lead to adequate mitigation efforts by the developed countries. The Conference of Parties at Durban decided to have a new framework of international cooperation where going beyond Kyoto Protocol, all developed and developing countries are likely to contribute to mitigation and adaptation doing away with the concept of Common but differentiated responsibility based on respective capacity, which was bedrock of the equity consideration in the climate change agreement. Without going into details of this proposed transformation, it is highly unlikely that the new treaty will provide the transformational shift, which is required to keep the rise in global temperature below 1.5 or 2 degrees Celsius and 400 ppm of carbon concentration in the atmosphere.

In the face of global impasse, national and sub national policies on climate change are becoming increasingly important. A number of developed and developing countries have adopted policies and legislations at national and sub national levels to reduce emissions and emission intensity. It is encouraging to see that developing countries have taken a lead in adopting national and sub national policies and offers on the tables show that developing countries are leading the way in mitigation than the developed countries that have been primarily responsible for bringing about this crisis. The current paper attempts to track India’s progress on its national and sub national climate policies, and peoples participation in the climate or environmental policies (or rather the lack of it).

India’s Position in International Negotiations

India’s national policy on climate has essentially drawn its reference from its international position in climate negotiation and therefore, it would be worthwhile to have a look at India’s stance at global climate negotiations.

India has been one of the important countries to have acknowledged importance of having development strategies integrated with objectives of environmental and social protection. Mrs. Indira Gandhi was one the only Head of the State to have participated in the famous Stockholm Conference (1972), which for the first time brought environment on the global political agenda. Subsequently, Rio Conference on Earth and Development (UNCED, 1992) reiterated this global intention by listing impressive outcomes in the UN Convention on Biological Diversity (UNCBD), UN Convention against Desertification (UNCCD), and UN Framework Convention on Climate Change (UNFCCC), and Agenda 21. India played a significant role in shaping global environmental policies. Nationally also India enacted a slew of legislations for protection of environment, biodiversity, water and ambient air etc. However, over the period there has been a significant and perceptible shift in India’s policy and its position in international negotiation, which has raised curiosity internationally, but has also been subject to scathing criticism at home.

Having the advantage of very low per capita emission of the GHG (1.6 per tone of carbon emission n per capita, as opposed to 20 tonnes of the US, and 4 tonnes global average), India initially harped on the per capita principle (right of countries to atmospheric space should be determined on per capita emission basis) and refused to acknowledge any role for developing countries and India in climate stabilization efforts. Prime Minister of India declared in 2008 that India’s per capita emission will never surpass those of the developed countries. However, gradually India could understand that the position has led to its isolation in the international community, and a shift was necessitated to maintain its leadership role globally and among developing countries. Preceding the Copenhagen COP Meeting (2009), India declared in the Major Economies Forum Meeting at La, Aquila that India will reduce its emission intensity (emission per unit of the GDP). In Copenhagen COP, following China’s declaration, India declared that it would reduce its emission intensity by 20-25% (on a 2005 baseline) by 2020. Since then India has steadfastly guarded its position and India’s domestic policies have also targeted 20-25% reduction in emission intensity, and have been essentially based on India’s international pledge. The nature of the current paper does not allow us to go deeper to explore whether this target is ambitious enough, however, it will suffice to say that many countries have understood that having ambitious climate policies is in their national interest, and have gone beyond their international pledges and adopted more ambitious national and sub national policies.

India’s National Action Plan on Climate Change and Recent Developments

Prime Minister of India declared a National Action Plan on Climate Change (NAPCC) on 30th June 2008. The NAPCC laid down 8 Missions as; National Solar Mission, Mission on Enhanced Energy Efficiency, Mission on Sustainable Habitat, Green India Mission, National Water Mission, National Mission on Sustainable Agriculture, National Mission on Sustainable Himalayan Ecosystem and National Mission on Strategic Knowledge.

 

The NAPCC attracted severe criticisms from the civil society and the experts. It was alleged “the NAPCC has been formulated through a most non transparent manner, and it will neither benefit people or the climate.”[1] It was alleged that NAPCC does not question the current non sustainable, high emissions pattern of economic development. This must include differentiated ecozone planning, district level vulnerability and contingency planning for disasters, industry based reduction of emissions, and peoples control mechanisms over the commons.[2] Other criticisms were based on lack of clarity on goals, targets and timelines, lack of prioritization, and complete lack of equity.[3]It was dubbed as a wish list without any roadmap. Women’s organizations criticized it for being insensitive to gender concerns in the climate change.

Even after 5 years of being launched, there has been no systematic review or assessment of the NAPCC by the government. An informal stocktaking of the NAPCC, in late 2011, summed up the developments as “many of the missions except solar mission, energy efficiency, green India, water mission have failed to take off due to lack in the clarity of targets at operational level.” Planning Commission working group, while formulating 12th FYP suggested merging many missions and scrapping few, for the lack of financial resources and implementability. An assessment done by the IIT Madras and IIT Mumbai groups (2011-12) reiterated the lack of clarity on targets, timelines, modalities and financial resources, as major constraints hampering the implementation of the NAPCC.[4]As a matter of fact, only few missions of the NAPCC have moved forward as expected.

Jawaharlal Nehru Solar Mission has registered an impressive growth, and has achieved the target of generating 1000 MW of solar PV in the first phase (2010-2013). However, the progress on off grid and solar thermal has remained limited with solar thermal capacity creation of only 5.5 MW against the target of 470 MW. However, the achievements have been marred by gaps in the policy and regulatory lapses. LANCO cornered 1/3rd of the projects (235 MW) in the first phase by operating through many front companies of dubious credentials, while the target was to limit the participation to 20 MW-40 MW, so as to prevent monopolistic practices in the solar sector. Flawed policies and lack of emphasis on domestic content requirement (DCR) also resulted in most capacity creation through imports rather than enhancing domestic capacity, and focusing on big projects it neglected people participation through small cooperatives. The Solar Mission is the most expensive solar programme of the world (will require 2 lakhcrore of investment of public money).[5]As far as domestic capacity creation is concerned, it is wilting under US and Chinese competition. The big players in the solar market have lobbied against DCR as it might increase their costs.[6]

The National Mission on Enhanced Energy Efficiency has also witnessed a major progress. Partial Risk Guarantee Fund (PRGF) and the Venture Capital Fund for Energy Efficiency (VCFEE) set up as incentives for companies to achieve emission efficiency. PAT (Perform, achieve and trade) was launched as another incentive on the lines of the Cap and Trade Scheme of the USA. Under the PAT specific energy consumption (SEC) targets have been identified for designated consumer (DC) companies across 8 sectors, with targets to be achieved by 2014-2015. Bureau of energy efficiency (BEE) has also framed labeling standards for a number of home appliances. However, it also remains beset with many problems; viz. focus on EE without integration with R&D, poor coordination with states, PAT is available only for big companies, not SMEs while Indian industry is dominated by SMEs.

National Water Missions seeks to introduce water use efficiency of 20%. However, it is largely focused on mountain watersheds and wetlands, with little concerns for water demand management and irrigation. The mission continues with age old model of centralized water resource development projects, long distance water transfers and canal irrigation. Emphasis could have been better laid on developing and strengthening local authorities for management of water resources. The mission also reveals poor inter disciplinary coordination and fails to capture the complexity of the domain. The only benefit that mission provides to the people is that it promises to put all data related to water use in public domain.[7] There has been little progress besides release of some policy documents, National Water Mission, restructuring of Central Water Commission, and draft Guidelines for development of water use efficiency in rural, urban, industrial and irrigation sector, web enabled water resources information system of India (India-WRIS), are few things that the Mission could achieve till now.

The Mission on Green India has progressed faster than the NAPCC, because of lure of international funding that India looks forward to seek from REDD+ Programme. However, the achievements have been limited on the ground. The states were supposed to provide bridge plans (by the end of 2011) and five to ten years perspective plans (by Feb 2012), which they are yet to submit. The state governments are also supposed to identify land and seek funding. A fund of INR 45,00 crore per annum has been earmarked for the GIM, any additional support required is planned to be met from external funding. Ministry of finance has allocated INR 500 crore from the National Clean Energy Fund (NCEF) for the bridge plan and for the GIM.[8] Union Budget 2011-2012 announced INR 200 crore as the take off fund for the GIM. However, recent developments suggest fast movement and MOEF is organizing one workshop in each state every month on REDD + preparedness. All the SAPCCs are also bent upon earning money from REDD + Programme.

National Mission on Sustainable Agriculture seeks to mainstream mitigation and adaptation in agriculture through a number of centrally sponsored schemes namely National Food Security Mission, National Horticulture Mission, Rashtriya Krishi Vikas Yojana. The Mission was launched with the 12th Five Year Plan in 2012. The mission is highly technology driven and promotes GMOs, Bio-fuel, no till agriculture, which is not in consonance with the reality of the small and marginal farmers. There is very little support for adaptation, risk insurance and coverage etc. also there was no coordination between centre and states and centre having no control over state projects and priorities. The mission is so much obsessed with improving water use efficiency in irrigation so it spent INR 950 crore out of the budget of INR 13500 crore on drips and sprinklers!!

Besides, these missions there have been almost no development in the rest of the missions worth mentioning.

Sub National Plans; State Action Plan on Climate Change[9]

The MOEF asked the states of formulate State Action Plan on Climate Change (SAPCC) to support the NAPCC in Aug 2009. States started reluctantly to formulate the SAPCCs after flunking many deadlines. By now over 20 states are in the various stages of formulation and submission. 5 SAPCCs (MP, Rajasthan, Sikkim, Tripura, Arunachal Pradesh) have been approved by National Steering Committee on Climate Change and 6 SAPCCs (AP, Assam, Mizoram, Meghalaya, Odisha, West Bengal) are under consideration by the Expert Committee. Many coastal and highly vulnerable states like Gujarat, Tamilnadu and Kerala, and Maharashtra are yet to submit their plans. Most of the plans are based on the framework of the NAPCC, have a very wide sweep and include energy, agriculture, water, forests, urban development, health, animal husbandry, energy efficiency etc.

A peep in the SAPCCs manifests that it is highly non transparent and top down. No information is available even with the MOEF regarding the process and timeline. It has been essentially a consultant driven and bureaucratic exercise, with no ownership of the states. Except in the MP, nowhere meaningful consultation with experts, affected communities, civil society has taken place. There is no deadline, no clarity till when and how plans will be finalized, what is the basis. There is also huge amount of hankering over finances to implement the plans.

Most of the plans have no concern for equity, rights of people and gender. Plans do not talk at all about increasing access and equity in energy, water or natural resources. They also remain equally insensitive to gender concerns in climate change. None of them even mention the UN Declaration on the Rights of Indigenous Population (UNDRIP). Many of the states are being helped by World Bank, UNDP, DFID, GIZ etc. and have clear imprints of international negotiations rather than local concerns and priorities. Most of the states have actually developed these plans without any mapping, vulnerability assessment of regions or sectors. States either do not have much vision in missions on energy efficiency, industries, health, livelihoods and urban planning. None of the plans show even scant affinity with the people who are being affected due to climate change impacts. Most of these plans pay lip service to agriculture and food security. While most of the states acknowledge importance of agriculture many of them propose actions which will harm agri and endanger Food Security. Plans talk about “modern scientific agriculture”[10] propose a set of actions to improve agriculture including “modernization of agriculture, biotechnology, seed replacement increased use of fertilizers….,”[11]and “zero tillage agriculture”[12] etc. Rajasthan includes “exploring carbon sequestration potential of carbon deficient soil” and “increased use of biotechnology”. Odisha has also given extensive treatment to agriculture in the plan however; it failed to allocate single Rupee to agriculture in the first draft! As far as agriculture is concerned, “it’s more of the same” except for some research proposed for vulnerability mapping for specific agro-climatic zones and crops.”[13] The actions suggested will harm small holder farmers and endanger food security than enhancing it.

SAPCC have been criticized for being consultant driven, having inappropriate procedure, process and institutional arrangements, and lack of vision on implementation and funding. Till now none of the states have started implementation, and there is no timeline declared. Financing has been the most knotty issue with states expecting big money from the central government, while central government wants them to depend on their own resources. States have failed to make a robust financing plan for the implementation of the SAPCC. While Odisha’s estimated budget for climate change is INR 17,000 crore, West Bengal’s budget is more than INR 30,000 crore (excluding many activities that don’t have budget estimates) and Haryana’s is around INR 50,000 crore. Sikkim has allocated nearly INR 7000 crore on improving floriculture activities and INR 10,000 crore on replantation for area expansion under the cardamom programme (next 10 year period). This accounts for almost 20% of the budget for the national Mission for Sustainable agriculture (NMSA) for 2011-2016. Haryana proposes to use INR 15,000 crore on energy efficiency in agriculture, which is more than 15% of the NMSA budget for 2011-2016.

According to recent estimates, the NAPCC will require INR 230,000 Crore (USD 37.16 billion). There is very little clarity on how it will be mobilized. Similarly with SAPCCs, there is very little understanding on whether the state government will be provided any resource to implement SAPCCs, and how the centre will determine vulnerability and establish equity between the states in providing finances. Finance besides institutional arrangement, monitoring, and interdepartmental cooperation are going to be major challenges in implementation of the State Action Plans.

Reference

The paper was prepared for the APRN Biennial Conference, 1^st to 4^th September, Hong Kong. It draws from an earlier paper of the author “Reflections on the National and Sub national Climate Policies of India; Leader Abroad and Laggard at Home” (Occasional Paper Series, published by PAIRVI, Nov 2013)

[1] There is little Hope, South Asia Network on Rivers and Dam, August, 2008

[2] Coalition for Dignity and Survival, 2010.

[3] NAPCC between Devil and Deep Sea, Ajay K Jha, Occasional Paper Series, Paper Series, PAIRVI, August 2008

[4] National Action Plan on Climate Change, IFMR, 2012

[5] Centre for Science and Environment, 2013

[6] TOI, Delhi, June, 2014

[7] There is Little Hope, SANDRP, 2008

[8] NCEF has been created by putting a cess of USD1 per ton of coal (both imported and domestic), lies largely unused due to lack of innovative renewable energy projects.

[9] This section is largely based on the authors previous critique on SAPCCs titled “Much Ado about State Action Plans; they are business as usual” published as Occasional Paper Series of PAIRVI in 2012.

[10] Manipur State Action Plan on Climate Change

[11] Madhya Pradesh State Action Plan on Climate Change

[12] West Bengal State Action Plan on Climate Change

[13] “Much Ado about State Action Plans; they are business as usual” published as Occasional Paper Series of PAIRVI in 2012.

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Jayant Sinha Expresses Disappointment on FfD Not Delivering on a Global Tax Body

Ajay k Jha, 15th July, Addis Ababa

In the 3rd Conference on Financing for Development (FfD), Indian state minister for finance Mr. Jayant Sinha expressed deep disappointment over the Conference not taking up the issue of an intergovernmental tax body, which India espoused strongly on behalf of the G-77. He hailed 3rd Conference on FfD as landmark event and the SDGs as being ambitious and extensive scope and for their depth to address “poverty, which remains the single largest challenge for the humanity.”

The Minister also said that India’s development agenda is very similar to the SDGs and that India’s vision of development is the development of the antyodaya or the poorest of the poor.

World leaders are meeting here at the Ethiopian capital at Addis Ababa from 13th to 16th July to discuss how sustainable development goals, which have high priority on the post 2015 development agenda of the United Nations can be financed. In September this year, the United Nations and the international community will adopt the Sustainable Development Goals during the United Nations Summit on Sustainable Development. The SDGs are a set of 16 goals and indicators having been arrived at through an intergovernmental process since Rio+20 Conference on Sustainable Development.

The Conference on financing for development begins on a note of failed promise of the developed world to provide 0.7% of their Gross National Income to the poor and developing countries (known as the overseas development assistance or the ODA) in the spirit of international solidarity, as decided in the Mexican town of Monterrey in 2002. The second Conference on financing for development at Doha held in 2008 strengthened this call, however, till date developed countries have been able to allocate only 0.29% of their GNI (USD 135 Billion) to the poor and developing countries in 2014. The ODA target of 0.15-0.20% to the LDCs dropped by 15% to USD 25 billion. Among the developed countries only 5 including the Denmark, Luxemburg, Norway, Sweden and the UK have met their ODA targets. Only few of the 70 odd High Income Countries provide ODA, some other developed countries do provide some development assistance, but authentic data on these development assistance remains difficult to find and much of these also include humanitarian assistance and climate finance, which should have been in addition to the development assistance, which need to focus on poverty eradication as committed earlier.

While for the poor and developing countries the conference is an opportunity to mobilize commitments of rich and developed countries for providing finance, technology and capacity building assistance for a sustainable and low carbon development pathway; in contrast for developed countries the conference turns out to be an opportunity to ho to repudiate their earlier commitments. The entire debate on the SDGs and post 2015 development agenda of the United Nations has been characterized by deep differences between developed and developing countries represented by G-77 and China. While developed countries have insisted that financing development is primarily the responsibility of respective countries and they should increase their GDP tax ratio and strengthen South-South cooperation and attract private finance. They also insist that ODA should be directed to leverage private finance towards sustainable development. However, in contrast, developing countries have been shrilling their demands to developed countries to fulfill their ODA commitments, plug loopholes in taxation and illicit financial flows from developing countries, technology and capacity building cooperation, and climate finance, which they insist is in accordance to the historical responsibility of the developed countries also known as common but differentiated responsibility or CBDR. However, despite these demands, the outcome document of the Conference is highly skewed in the favour of developed countries with little reference to the issues critical for developing and poor countries except a half hearted Technology Facilitation Mechanism body at the UN. G-77 and India faces increased pressure from the US, EU and the host Ethiopia to accept the outcome document, (as it is) in order to save the Conference from an obvious failure.

The sticking point in the negotiations is that while developed countries want developing and middle income countries to increase their domestic resource mobilization and enhance institutional capacity to increase their GDP tax ratio, they fail to acknowledge that it is not possible without plugging the loopholes in taxation and illicit financial flows from developing and poor countries to rich countries. According to an estimate against the USD 135 Billion of ODA, the capital flight from the third world to the developed world runs into Trillion Dollars in forgone taxation to the big TNCs, trade mispricing and illicit financial flows. India have been championing a demand for intergovernmental tax body, which should allow the international taxation rules to be made by member countries rather than under the domination of the OECD and other developed countries, however reportedly it might have to compromise its stance under the international pressure.

With the end of the Conference coming closer and no sight of developed countries committing to fulfill their ODA commitments and shortfalls, the Conference might meet the same insignificant fate as the previous. With declining political will and finances and without any dent in the inequitable global economic and political architecture, poor people in the world will have to hang on to their dreams of having a sustainable life. Till the life allows!

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The Uncertain Emission Figures and Enterprising Solutions!

by Nirma Bora

The major greenhouse gases emitted by livestock are methane and nitrous oxide. Livestock mainly emit

methane due to anaerobic fermentation in their digestive system while nitrous oxide is released from its manure. These emissions became widely talked about when in 2006 the United Nations concluded that the livestock industry was a big contributor to climate change. The Food and Agriculture Organization (FAO), agency of the United Nations that leads international efforts to defeat hunger, in its report titled ‘Livestock’s Long Shadow’ quantified the emissions from livestock as 18% of the total anthropogenic emissions of the world.[1] Ignoring the contamination and emission by industries and transport, it held livestock business among the ‘most damaging sectors’ to the earth’s increasingly scarce resources, contributing among other things to water and land pollution. However, if the trends in global GHG emissions are considered by sector, it is the electricity/heat that contributes to 42 percent and transport that contributes to 23 percent of the global GHG emission (IEA, 2014).

Much later after seven years, the 2013 Assessment Report of the FAO, revised figures for livestock emission. It now estimates that the global livestock sector accounts for as much as 7.1 gigatonnes of CO2-equivalent every year, representing 14.5 percent of all human-related greenhouse gas emissions (Gerber, 2013). Nevertheless, the revised model too calculated livestock sector emission by assessing all sources of emissions along the livestock supply chain. The figures by FAO included not just emission from the animal but the total the amount of greenhouse gases emitted from ‘every aspect’ of raising meat and dairy, including feed production and meat processing. FAO did not do the same when estimating the greenhouse gases from cars (Lutey, 2012). The latter report ignored greenhouse gases actually created during the car’s production and instead zeroed in on tailpipe emissions. Besides, it is not livestock per se which are responsible for increased greenhouse gasses; it is the corn/ soybean/ chemical fertilizer/ feedlot/ transportation system under which industrial animals farming is practiced.

Even among the specialized agencies of the United Nations, there exists large discrepancy on global emissions figures from livestock. In 2013, Food and Agricultural Organization (FAO) of the UN estimated the total global emissions from livestock sector as 14.5 percent (Gerber, 2013). This number was quite low in the 2012 United Nations Environment Programme (UNEP) Report that measured the total emissions from agriculture as 11 percent of which livestock emissions were mere 4.7 percent (UNEP, 2012). Another UK based environmentalist reports that direct emission of methane and nitrous oxide from livestock makes up around 9 percent of total man-made greenhouse-gas emissions. It is emissions from elsewhere in the livestock supply chain, such as transport and feed production that boosts this figure to 18%. (Kalauher, 2014). Due to large variations in the emissions figures given by different UN agencies and scientists, neither validity nor reliability of the data could be established.

The ambivalent emission figures, however, have paved way for enterprising opportunities in the name of addressing the issues of rising emission and food insecurity.  These have ranged from providing ‘meat alternate’ as in Europe and the US to the very bizzare proposal of mass culling of feral camels in Australia (which was later called off by the government). As food choices impact both health and the environment, entrepreneurs have come up with ‘Meat Substitute’[2] made mainly from plant-based food like soy, pea, and amaranth. However, the fake meat business, which has been around for decades, could never really take off as products are usually expensive and, to meat lovers, taste as bland as they look. As flesh seems hard to fake, another approach has emerged which is to grow actual meat in a lab – animal muscle tissue sans the animal itself– and this is being pioneered in Europe. The Dutch Scientist, Mark Post’s, innovation in 2013 of a burger made of cultured beef, biologically identical to beef, is the latest meat sensation for the future (The New York Times, 2013). [3]

While the world has not yet adequately understood the effect of genetically-modified crops on health and environment, one can only imagine the consequences that 'lab-grown meat' would have. The presence of significant amounts of antibiotics and anti-fungals for storage, and hormones to promote meat-growth, would provide over-exposure of humans to antibiotics and build resistance to medicines, hence, making humans take in larger doses of antibiotics to combat infectious diseases. The cultured meat is expected to be available in 10-15 years and ultimately replace the reign of industrial meat as happened with wool since synthetic fibres arrived.

While livestock shares part of the blame for rising global temperatures, its industry continues to grow stronger than ever. All efforts to deal with the crises seem to favour science, technology and corporate than actually reduce emission and provide food security. If the trend of dairy and meat business continues to expand through factory-farm and lab, it will deprive livelihood for 987 million or about 70 percent of the world’s 1.4 billion “extreme poor” (Livestock in Development, 1999).  With efficient practices available that manage livestock through better feeds and feeding techniques, improved breeding and animal health, manure management techniques as well as changes in human dietary plan by cutting down on meat; solutions like devising lab-grown animal or their mass-culling is an undesirable answer to reducing emission, removing global hunger, and ensuring food security.

Reference

[1] Global emission from transport stand at 13% based on 4th Assessment Report of IPCC (2007).

[2]  It is known by different names like meat alternative, mock meat, faux meat, imitation meat, or vegetarian meat or vegan meat. 

[3] Cultured Beef is created by painlessly harvesting muscle cells from a living cow. Scientists then feed and nurture the cells so they multiply to create muscle tissue, which is the main component of the meat we eat. It is biologically exactly the same as the meat tissue that comes from a cow.

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Amendment in Conflict with Law: Reducing Chances for Juveniles to Rejoin Society

by Mairaj Fatima

Introduction

 With the enactment of the Juvenile Justice (Care and Protection of Children) Act in 2000, India’s juvenile justice legislation was brought in line with the Convention on the Rights of the Child (CRC) and international standards, focusing on some of the key principles of juvenile justice: deprivation of liberty as last resort, restorative and reformative justice, diversion and alternative sentencing, and separate protection structures and qualified personnel. Recently in 2015, the Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, has approved the introduction of Amendment to the Juvenile Justice (Care and Protection of Children) Bill 2014. But, later, realizing the sensitivity of the matter, the Prime Minister insisted on taking up the issue in the Parliament only after a group of senior ministers have studied its finer points. The Supreme Court had said that there is a need to re-look at various laws dealing with juveniles involved in heinous crimes like murder and rape and asked the government to see whether necessary changes could be made to have a deterrent effect.

The new proposed Act provides that in case a heinous crime has been committed by a person in the age group of 16-18 years it will be examined by the Juvenile Justice Board to assess if the crime was committed as a ‘child’ or as an ‘adult’[i]. However, the UN CRC (article 40.1) states that children who are accused of offences should be tried separately from adults “in a manner consistent with the child’s sense of dignity and worth”. This is further supported through international standards like the Beijing Rules and the Riyadh Guidelines laying out procedures for the administration of juvenile justice and prevention of juvenile delinquency[ii] (UNICEF, 2014). India has ratified the UNCRC nearly 25 years ago, and with this amendment India is in serious danger of going back to that promise.

What the Amendment Says

The most disputed change to the existing Act, in the wake of recent cases, is the fact that a juvenile between the ages of 16-18 will be tried as an adult for heinous offences. A “Heinous” offence is defined as an offence for which the minimum punishment is imprisonment for seven years or more. Also, any 16-18 year old, who commits a lesser, i.e., serious offence, may be tried as an adult only if he is apprehended after the age of 21 years. The Juvenile Justice Board will be tasked with conducting preliminary inquiry into the nature of the offence and other circumstances. Such inquiry is needed to be completed within a month.

This particular clause has proved to be very contentious, as some experts argue that the JJB is meant to be act from the point of view of the child rather than decide whether the child should be pushed into the adult criminal justice system.

The bill proposes the setting up of JJB and Child Welfare Committees in every district. It also brings in changes to adoption measures. A single person is now eligible to adopt a child, however, a single male is not allowed to adopt a girl child. The bill also provides ‘Aftercare’ of person between the ages of 18-21 years who have left institutional care, with a view to help them enter mainstream society[iii].

Mixed Reactions to the Amendments

The proposed law for prosecuting juveniles aged between 16 and 18 years for heinous crimes in regular courts have drawn bouquets as well as brickbats from jurists and child rights activists. While many welcome the Cabinet's clearance to the amendments to the Juvenile Justice Act, some law experts and activists have come out against it. Experts say that the amendment violates basic child rights[iv]. Some argue that the current law does not act as a deterrent for juveniles committing heinous crimes. Another view is that a reformative approach will reduce likelihood of repeating offences[v] (PRS India).

P. Baburaj, a former member of the Juvenile Justice Board, has strongly criticized it on the grounds that it will create an adverse impact in rehabilitation of juveniles in conflict with law. He said by approving the Bill, the government has accepted its failure to ensure rights to the children in this country. ‘’The juveniles in the age group of 16-18 years will be in traumatic situation if they are brought before the criminal court for having committed serious crimes. The basic premise to enact such a law is public anger over a recent crime pertaining to rape and murder. But such step obviously will lead to retributive justice, not juvenile justice[vi]” (The Hindu, 2015).

The provision of trying a juvenile committing a serious or heinous offence as an adult based on date of apprehension could violate the Article 14 (right to equality) and Article 21 (requiring that laws and procedures are fair and reasonable).  The provision also counters the spirit of Article 20(1) by according a higher penalty for the same offence, if the person is apprehended after 21 years of age[vii] (PRS India).

The Supreme Court of India, in judgments delivered in July 2013 and March 2014, supported the position that all children accused of crimes must be tried under juvenile justice laws[viii]. But now the Supreme Court has asked the government to re-visit the law so that a juvenile cannot get away with rape and murder by claiming he is too young to understand the consequences of his crime. In a written order, a Bench of Justices Dipak Misra and P.C. Pant observed it can no longer shut its eyes to the danger posed to society by juveniles accused of heinous crimes like rape, dacoity, murder and drug-peddling. The order comes even as Attorney General Mukul Rohatgi showed “grave concern” and admitted to an increase in such crimes by juveniles.[ix]

The Standing Committee who examined the Bill observed that the Bill was based on misleading data regarding juvenile crimes.

Misconception and Anger Resulted in Amendment

The demand for changes in the Act came out of anger after Delhi rape case 2012. There is a perception that many juveniles are committing violent crimes, especially rapes, and this can be addressed by the government’s amendments. The factual data reveals that in 2013, 1388 cases of rape were registered against juveniles in the 16-18 years age group. This amounts to less than 5 percent of all rape cases registered that year. Further when the Parliamentary Standing Committee examined the matter, it found that many of the juvenile rape cases could be attributed to the increase in the age of consent of sexual activity from 16 to 18 years. A closer look at the government’s crime statistics reveals that almost 80 percent of juveniles accused of crimes belong to the family having annual income of less than 50,000 and more than 50 percent of them did not complete primary school[x] (Kanimozhi Karunanidhi, 2015).

In February 2015, the standing committee also disagreed with the government’s move to stiffen penalties for minors, stating its view that all children below 18 years are amenable and should be treated as children. “Some incidents of juvenile crime, though a cause of serious concern should not be the basis for introducing drastic changes in the existing juvenile justice system,” the 32-member committee headed by Jagat Prakash Nadda, India’s federal health minister said in a report[xi] (The Wall Street Journal, 2015). The report further stated that India’s national crime statistics suggested that the percentage of juvenile crimes — just 1.2% of the total crimes committed between 2012 and 2013 — was a “miniscule proportion.” “Such small numbers can most easily be dealt with under the juvenile justice system with appropriate infrastructure and human resources,” the committee said.

Conclusion

UNICEF urges the debate on the JJ Act amendment to be informed by widely available research findings and evidence: “Worldwide, evidence shows that the process of judicial waiver or transfer of juvenile cases to adult courts has not resulted in reduction of crime or recidivism. Instead, investments in a working system of treatment and rehabilitation of children have shown to lead to better results in reducing recidivism”, says Louis-Georges Arsenault, UNICEF Country Representative[xii]. 

Actually, this is a case of the government succumbing to mob pressure. By changing the law, the government is changing the emphasis of juvenile law from reform to punishment. We must weigh the benefits of changing the law against its costs. While it satisfies the demands of a large section of society, it goes against the principle that juveniles should be rehabilitated. 

When we, as a society, have collectively failed to provide our children with the right environment to grow in, how fair is it for us to penalize them under an adult criminal system? The question as to whether there is any need to amend the Juvenile Justice Act so as to exclude the heinous acts committed by juveniles above the age of 16 years from the purview of JJ enactment has been a subject of mooting for the past few years. The actual question is that how far the amendment is capable of serving the purpose.

It is very important that we should consider all angles before going to amend the Act. It is our duty that we provide an environment to our children in which they can develop a decent personality, have higher education, and got an opportunity for better skilled jobs. Poverty is also one of the major cause which driven these children into grey part of the society. We need to look at these points and implement the laws properly without violating child rights. Instead of reducing juvenile age, we need to target the other causes which are forcing a child to commit such crimes.

Reference

[i] PIB, India

[ii] UNICEF India urges focus on reformative juvenile justice system and shares concerns about Juvenile Justice Act amendment. UNICEF, 2014

[iii] Aditya AK, Bar and Bench 2015

[iv] IBNLive, Law experts oppose amendment to Juvenile Justice Act, say it violates child rights, August 7, 2014

[v] The Juvenile Justice (Care and Protection of Children) Bill, 2014, PRS India

[vi] The Hindu, Amendment to Juvenile Justice Act criticized, April 25, 2015

[vii] Ibid5

[viii] Amnesty International, Children must not be treated as adults under new juvenile justice law

[ix] Relook law on juveniles, SC tells govt., The Hindu, April 7, 2015

[x] The Hindu, 2015

[xi] Indian Cabinet Gives Nod to Change in Juvenile Age for Serious Crimes, The Wall Street Journal, April 23, 2015

[xii] Ibid2

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