Is the law reformative or retributive?
December 2012 was the month of shock and dismay. A horrifying incident broke all boundaries of restraints and silence and led men and women to highlight the supremacy of democracy and change.
A countrywide protest and demonstrations forced the government to take a punctilious stance against sexual assault, rapes and gang rapes and child rights. Nirbhaya is now forever etched in the minds of the people and so is the crime of the juvenile who was one of the rapists of Jyoti Singh, a medical student. Her only fault was that she was returning from a night show with a male friend. Her rapists’ reasons were that she fought back and asked for it because women of our proud country do not wander around with men before marriage.
In the event of the brutal gang rape in Delhi, not only, the new amendments were made under sexual offences of criminal law, but the criminal scope of juveniles was also widened through Juvenile Justice (Care and Protection of Children) Act, 2015.
What was the need to introduce the new Bill?
The Juvenile Justice Act, 2015 was passed in the wake of public fury on the release of the juvenile after serving a maximum of three years of imprisonment. Maneka Gandhi, the Minister of Women and Child Development first introduced the amendment bill in the Parliament. The Union Cabinet approved the draft law by overriding the recommendations of the Parliamentary Standing Committee. It took almost fifteen months for the Rajya Sabha to pass the bill after the Lok Sabha. Observers believe that the Bill was hastily passed by the Parliament to calm the public anger and their sentiments.
The juvenile delinquency is a behavior not uncommon to the subject matter of criminology and sociology. But there always had been an effort to ameliorate the actions and behavior of young offenders. A belief is that the rehabilitation and care and protection of children can make their lives better. Therefore, the juvenile laws aim to protect the children found to be in conflict with the law.
The protection of child rights in India has a history since colonial times.
Under the Apprentice Act, 1850 and The Reformatory Schools of 1897 an attempt was to keep children with petty offences away from the adult criminal judicial system and to provide them reformatory institutions. Post Independence, the Children’s Bill, 1960 was passed in Parliament following the 1959 UN Declaration. It was the first central legislation on the subject of children’s rights when found in conflict with the law. Prior to this, each state had a separate juvenile legal system.
In 1980’s India became a participant to adopt the rules of the Sixth and Seventh U.N. Congress on the Prevention of Crime and Treatment of Juvenile Offenders, also known as Beijing Rules. It led to the enactment of first Juvenile Judicial Act in 1986. The Act extended the protection to boys below 16 years and girls below 18 years along with the establishment of Advisory and Children’s Boards and Children’s Fund.
The 1990’s were a period of series of developments like globalization. There was also a tendency to move towards restorative justice. It is in this light of global momentum, India ratified the U.N. Convention on the Rights of the Child (UNCRC) in 1992 and enacted Juvenile Justice Act of 2000. It called for Juvenile Justice Board and defined a juvenile as a person (whether a boy or girl) below the 18 years of age.
The new 2015 Act, is now in place of Juvenile Judicial Act, 2000.
Populist opinion and media play a significant role in politics. What prompted the government to take a new step was not only the shame that it carried on its back as the “Rape Capital of India” but also a number of misleading suggestions by the media houses to ascribe juvenile as the “most brutal” amongst the five rapists. The final move came when PILs were filed against the juvenile seeking to try him in an adult court instead of Juvenile Justice Court, as the offender was just three months short of 18 years of age.
One of the PIL petitioners and SC lawyer, Shweta Kapoor, said “ Minds of juveniles are well developed and do not need care and protection of the society. Rather society needs care and protection against them”.
However, in the history of juvenile laws, the new act has faced more dissatisfaction and opposition than any other legislation introduced before.
One step forward, two steps back. The JJ Act, 2015 is a regressive law and unsupportive of the international juvenile system.
Let’s take a look at the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 to understand its viability.
1) The bill mandates people between16 and 18 years of age will have an adult trial for heinous crimes like rape and murder, punishable with imprisonment of seven years or more (Section 2)
2) It gives authority to Juvenile Justice Board (which now includes a group of psychologists and sociologists) to decide whether a child between 16-18 years of age be tried as an adult.
3) The bill adopts some changes like the period of preliminary assessment of juvenile offenders is increased to 3 months to assess the capacity of child’s crime.
4) It introduces foster care system in India and makes adoption process of orphaned and abandoned children more efficient by adopting the concepts of Hague Convention and Inter-Country Adoption, 1993.
5) The proper implementation and juvenile cases are under the authority of National and State Commission for Protection of Child Rights.
6) The Act under the care and protection chapter includes many offences that did not appear in any other laws. These include kidnapping and abduction of children, giving of narcotic drugs, intoxicating liquor and tobacco products, illegal adoption or sale or procurement of children, use of children in militant or terrorist groups and offences against disabled children.
It is, however, important to note that the new law did not apply to the juvenile involved in Nirbhaya gang rape as it has a non-retrospective effect. CPI (M)’s Sitaram Yechury who walked out of the House in protest of the bill, also invoked this point.
The whole idea of providing a stringent punishment to the juvenile that began with the demands of Nirbhaya’s parents was rather fruitless and created hurdles for the young offenders who will now face an adult trial. But the proponents of the bill believe that it’s a measure to scare them with harsher punishment to bring a change.