No Justice for Juveniles A look at why reducing the age to try juveniles as adults is unethical and ineffective

In December 2015, the Indian parliament passed the Juvenile Justice (Care and Protection of Children) Act 2015, effectively allowing juveniles of the age 16-18 years to be treated as adults in the case of heinous crimes.

Photo Credit: Pradeep Gaur // Mint

This new act came in the wake of the Delhi gang rape in 2012 in which a juvenile of 17 years was also charged. Media houses, including a Times Now debate, went on a frenzy and created a narrative where the juvenile had most ‘brutally’ assaulted the victim, a narrative which was not supported by actual evidence or the victim’s testimony. Nevertheless, the narrative spread and the 2015 Act was passed despite initial reluctance by the Supreme Court in 2013.

Timeline: Juvenile Justice (Care and Protection) Act, 2015

Armed with data and an ethical code, we can argue that it was a regressive move, driven by media outrage and aimed at placating anger. It replaced the existing Act from 2000, which was in compliance with the 1989 UN Convention on the Rights of the Child (of which India is a signatory) and provided a framework for the protection, treatment and rehabilitation of children in the Juvenile Justice System. The new act goes against the UNCRC's principles of non-discrimination (in this case, by age) and of keeping the child's best interests in mind while making decisions in the context of Juvenile Justice. The reason for treating children differently than adults can be best summarized by this quote from the UNCRC:

Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children

Despite the pleas made by child rights and women’s rights groups, stating facts and numbers to show why this reduction of age will cause more harm than good, the law was not repealed.

Recently, it was declared that the 16-year-old juvenile accused of murdering 7-year-old Pradyuman Thakur in Ryan International School, Gurgaon will be tried as an adult. According to the Central Bureau of Investigation (CBI), the child in the conflict of law wanted to have examinations and parent-teacher meeting in school to be postponed. This is yet another case that proves that the Justice system panders to public sentiments rather than ensuring justice.

When you first hear of the case, it is easy to let anger seize you. If a boy just short of the stipulated 18-year mark can commit such a gruesome crime, should he not be treated as an adult? If he is capable of such violence, should justice not dictate a befitting punishment? The problem is that anger does not allow for fairness or logical questioning.

What sort of precedent does such a move set? Is the purpose of our judicial system to enable retribution or reform? What vulnerable groups are more likely to be affected by such a move given the larger social context?
Photo Credit: Pradeep Gaur // Mint

‘Heinous’ Crimes

Heinous crimes are those which are punishable with imprisonment of seven years and more.

To start with, the spectrum of crimes within the ambit of ‘heinous’ is far and wide. Except for rape and murder, heinous crimes also include burglary, cheating and stealing from a building among others. While these are serious crimes, an argument can be made to not slot them in the same category as rape and murder.

Wrongful Detention

Even if we were to deal with just cases of rape, an alarming trend has started to appear which will only be exacerbated by this decrease in age. According to an investigation done by journalist Rukmini S for The Hindu, of all the cases of sexual assault tried in the six Delhi district courts in 2013, 40% were cases of consensual sex or elopement between young couples, following which the girls’ parents had filed cases of rape and abduction.

Photo Credit: Reuters File Photo

Sex out of wedlock is taboo in India and arbitrary ideals of ‘honour’, preserved through chastity, are used to restrict an unmarried woman’s sexuality in an effort to ultimately maintain caste and religious purity. In fact the need to protect this honour is so strong that families will dismiss the woman’s sexual agency, instead preferring to pretend that the act of premarital sex was through force.

Given this phenomenon and the age of consent to sex being increased from 16 to 18, it is not unimaginable that several boys aged 16-18 years will be wrongfully charged with rape, a heinous crime, and tried as adults.

There is no question that incarceration rates in India are also heavily class-biased, data from the National Crime Records Bureau (NCRB) shows that 90% of juveniles apprehended in 2016 under the Indian Penal Code (IPC) and the Special and Local Laws (SLL) had not completed their matriculation and belonged to families earning less than Rs. 1 lakh per annum.

No relative rise in Juvenile crimes

While introducing the new Juvenile Justice Bill, Maneka Gandhi stated that juvenile crimes are the “fastest growing” crimes in the country. All evidence points otherwise.

While juvenile crime has increased from 35,465 in 2012 to 42,566 in 2014 under the IPC, we need to take into cognizance that total crime has also increased.

The rate of juvenile among the overall crime rate has stayed static at 1.2% from 2012-14. Thus, the very logic which the change in the law is based on is flawed.

We can also observe a trend of decrease in Juvenile crimes in the next few years. Juvenile crime decreased from 38,455 incidents (both under IPC and SLL) in 2014 to 33,433 in 2015 but increased to 35,843 in 2016. On the other hand, total crime rate (IPC + SLL) has steadily increased from 45,71,633 in 2014 to 47,10,676 in 2015 to 48,31,515 incidents in 2016.

The juvenile crime rate is thus, about 0.76% of the overall crime rate, a marked decrease from the static 1.2% from 2012-14.

The rate of juvenile among the overall crime rate has stayed static at 1.2% from 2012-15. Thus, the very logic which the change in the law is based on is flawed.

Photo Credit: Haq Centre for Child Rights

No concept of consequences

The UNCRC mandated the age of a child to be under 18 and signatory countries, including India, have used that definition. Neuroscientists however, have done studies that prove that people under 25 are more likely to act in an impulsive manner and are vulnerable to peer pressure. So another reason to oppose trying juveniles as adults is the idea that they do not truly understand the consequence of their actions. “Children don't have the intellectual or moral capacity to understand the consequences of their actions; similarly, they lack the same capacity to be trial defendants” wrote Jessica Reaves in piece for the Time.

India’s National Institute of Mental Health and Neuro-Sciences (NIMHANS) told the government in a joint submission with the National Law School of India University, “making the argument of maturity based on the nature of crime does not stand scrutiny. Findings in neuroscience and adolescent psychology confirm that juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less risk-averse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions.”

A comparison of juvenile repeat offenders and adult repeat offenders shows that the rate for the latter is much more.

Reformation versus Retribution

In my opinion, sending juveniles to jail along with adult criminals will not enable any form of reformation. Worries that children in conflict with the law, put through the Juvenile system, become repeat offenders is not unfounded. However, a similar trend is seen in adult offenders put through the jail system albeit, at a larger rate. This poses the question- Is trying juveniles as adults and putting them in the jail system really more effective than putting them through the juvenile system?

The primary aim of the justice system is after all reformation.

In light of this, would it not be more beneficial to work to strengthen the Juvenile Justice system to ensure the reformation of youth? We should not give in to public sentiments of retribution which are often misguided and driven by media sensationalism and selectivity. Youth committing crime are in need of reformation and care by the state and reducing the age for them to be tried as adults only serves as a regressive move towards a just system.

Photo Credit: Indian Express archives
Created By
Neha Mathews

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