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