The Lok Sabha - which is to say, the brute majority of the BJP in the lower house - passed on Thursday the Juvenile Justice Bill, which should more appropriately have been called the Juvenile Injustice Bill. By changing the law to ensure that 16 to 18 years olds can now be tried, convicted and sentenced as adults to twenty years in prison for "heinous offences", it has regressively plunged our nation into the darkness of 19th century jurisprudence.
The proposal will put in place a selective system, whereby the Juvenile Justice Board will have discretionary powers to transfer a child in the age group of 16-18 years, accused of rape, murder, kidnapping, robbery, dacoity, and other offences which are punishable with imprisonment for a minimum term of seven years, to an adult criminal justice system for trial and conviction. An excuse for this barbarism is not hard to find. It is a reaction to the horrific Nirbhaya case of 2012, which shocked the national conscience, especially when it was learned from the media that the most heinous acts in that criminal episode were allegedly the doings of a juvenile. When the media suggested that it was likely he would get away with minimum punishment, and that the system might leave a predator free on the streets, there was understandable uproar in all quarters. Someone close to me, naturally agitated and emotional, said: 'If he is old enough to rape, he is old enough to hang.'
The problem with such an approach is twofold. It treats children as adults, which is wrong morally, legally, ethically, emotionally, and constitutionally. A 16-year-old may be physically a man but does not have the mental maturity of an adult. During the immediate aftermath of the Nirbhaya tragedy, the UPA undertook extensive consultations in 2013, which confirmed that the arguments for punitive action were based on fear, moral outrage, misinformation, and ignorance. This is why we did not give in to popular demand for such a change. And secondly, entire laws, which apply to the cases of all juveniles across the board, cannot and should not be determined on the basis of one bad example, no matter how horrifying or terrible it might be. Laws should be studied instruments of justice; they cannot be based on a specific instance alone, and it is the duty of the government of the day to ask itself whether good law and good justice can ever be born out of an impulsive reaction to emotional headlines.
This Bill defies all logic. International examples show that transferring children to the adult system has failed to prevent repeat offences, failed to reduce the juvenile crime rate and failed to promote public safety. In fact, it will increase the risk to public safety because convicting a child in an adult criminal trial will not just deny the child the fulfilment of his basic rights and his physical, emotional and intellectual development - twenty years in jail will eventually churn out hardened criminals rather than reformed adults, defeating its declared purpose. A US study has established that 80% of the juveniles released from adult prisons go on to commit more serious offences. Sojailing more children will be neither in the best interests of the child nor of society as a whole.
Of the 472 million children in our country, only 1.2 % actually committed crimes in 2013. The number of children who committed "serious and heinous crimes" was miniscule. In 2013, of all the children apprehended for crimes under the Indian Penal Code, 2.17% were accused of murder and 3.5% were accused of rape. That is 2.1% of 1.2% -- a tiny figure for whose crimes we are turning our system of justice upside down. These figures of the National Crime Records Bureau account for the FIRs registered and not the children who were actually found guilty. They do not justify this stringent and completely retrograde step.
Worse, this provision will predominantly affect the country's poor and marginalised sections of our society -- OBCs, SCs, STs and minorities. A majority of the children in conflict with law come from illiterate families and poor homes. Statistically, in 2013, 77.55% of the arrested children came from families with a monthly household income less than INR 4,200, and 87% of the offenders had not even received a higher secondary education. Such socio-economic conditions only reiterate the urgency to develop better reformative facilities for educating and reintegrating children with criminal tendencies into mainstream society, rather than subjecting them to a harsh justice system and twenty years' jail, especially when such children lack adequate legal representation. This would never succeed as a deterrent: it will simply make them unfit for normal life after they are freed. The government could have raised the punishment for heinous crimes by kids from three to a maximum of seven years rather than taking the extreme step of considering a child no longer to be a child.
It is really the Government's job to implement the existing provisions for rehabilitating children in conflict with law. It cannot shrug off its responsibility by holding the children accountable for failures of the juvenile rehabilitative system of our country. The Government should fix the Juvenile Justice system, not by pass it and victimise our children. Instead, it is trying to brush the real issue under the carpet, to put behind bars the problem we face. Political convenience for the BJP has trumped justice for India's children.
In Parliament, I spelled out in great detail why the Bill not only lacked a rational social objective but also constitutional validity. The selective and unequal treatment of children between the age group of 16-18 years clearly violates the fundamental rights guaranteed under Article 14 and Article 15 (3) of the Constitution. While Article 14 extends equal protection of law and equality before the law, Article 15(3) allows the state to enact special provisions for protecting children, for they are vulnerable and require special care and protection. The existing juvenile system recognises that 16-18 years is a sensitive age which requires greater emphasis on reformation and rehabilitation than on punishment. The new Bill goes in the opposite direction.
The Bill also creates a trial before the trial by giving the Juvenile Justice Board one month for a preliminary assessment of whether the child should be tried as an adult - a period so short that it could lead to a presumption of guilt, which itself violates the Constitution. As the Justice Verma Committee observed in 2013 while rejected the case for a draconian new law, "We cannot hold the child responsible for a crime before first providing him/her the basic rights given to him by the court."
Ironically we can't even be sure the child we're trying really is the age he appears to be. Our courts rely on the Matriculation Certificate of a child or his Birth Certificate from a School or a Municipal Corporation. However, many government and municipal schools often record age on the basis of the physical appearance of a child, and in many cases parents give an earlier age just to get the child into school (ask Gen. V.K. Singh!)The children who would be immediately affected by this legislation were born at a time when the level of birth registration was just 58% (in 2001). Since the estimated age can have drastic repercussions on the life of a child, the presumption should in fact be that the child is younger than the date mentioned in his school certificate. The law makes no allowances for this Indian reality.
This government may not be embarrassed to shame us before the world, but the Bill violates India's undertakings under the United Nations Convention on the Rights of the Child of 1989, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 or the Beijing Rules, and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 -- all of which require a child or a young person, accused of an offence, to be treated differently from an adult. This Bill is an equal-opportunity offender: it violates every principle it can possibly violate. Condemnation by the UN Committee on the Rights of the Child will certainly follow.
OK, forget the UN; what about India? There are no special provisions or guidelines for either a female juvenile in conflict with law or a juvenile sex offender. Misuse is likely: if children are found indulging in consensual sex, it is possible that the male can be charged with rape and sent to the adult crime system.
Even though the Juvenile Justice Bill could bring about some much needed reforms in adoption and foster care, it disappoints in its inability to justly treat children in conflict with law. An important principle of jurisprudence that all law students learn is '
Lex iniustanon est lex': 'an unjust law is no law at all'. This Bill is unlikely to withstand the scrutiny of the Courts, that is if it passes the Rajya Sabha at all.
The need of the hour is not this Bill. It is to focus our attention on the effective implementation of the existing Juvenile Justice legislation. In our country, child protection under the law has been marred by insufficient investments, lack of adequate number of Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC), lack of institutional services such as Shelter Homes, Special Homes, and Observation Homes, and the absence of an effective monitoring and coordinating mechanism. Can the Minister argue that our country possesses adequate administrative and judicial provisions to operationalize the Bill? Will the Finance Minister give her the resources she needs or do again to her request what was done to the anganwadis - cut them to the point of unviability?
I doubt it. This government has shirked its responsibilities to finance such essential work. Budgetary allocations for the development of children have faced drastic cuts, with a reduction of 55% in allocations. In fact, the Integrated Child Protection Scheme (ICPS), the primary scheme for creating a safe environment for children in need of care and protection, has been allocated just INR 400 crores, almost 11% less than its revised estimate for last year. Child Welfare Officers have not been appointed in Police Stations across the country. Even though the Bill now provides for a National Commission for Protection of Child Rights and a State Commission for Protection of Child Rights for monitoring the implementation of the provisions of the Bill, they could become as redundant as the existing institutions, especially if this government starves them financially.
The Juvenile Justice Bill, despite a few positive provisions, makes one cardinal error: it forgets that our justice should be about rehabilitation, not retribution. We must not sacrifice our values and our children for political gain. That is what the BJP has done, and the nation must rise against it.
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Dr Shashi Tharoor is a two-time MP from Thiruvananthapuram, the Chairman of the Parliamentary Standing Committee on External Affairs, the former Union Minister of State for External Affairs and Human Resource Development and the former UN Under-Secretary-General. He has written 15 books, including, most recently, India Shastra: Reflections On the Nation in Our Time.)
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