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What is the age of innocence?

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A new juvenile bill has reduced the juvenile age to 16 in case of serious crimes. but in the process, it has stirred a hornet’s nest

By Meha Mathur


 Dear kindly Sergeant Krupke,
You gotta understand,
It’s just our bringin’ up-ke
That gets us out of hand…



Gee, Officer Krupke, we’re very upset;
We never had the love that ev’ry child oughta get.
We ain’t no delinquents,
We’re misunderstood.
Deep down inside us there is good!

Officer Krupke, you’re really a square;
This boy don’t need a judge, he needs an analyst’s care!
It’s just his neurosis that oughta be curbed.
He’s psychologic’ly disturbed!…
Hey, I’m depraved on account I’m deprived.
— From West Side Story




 

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These are lines from a street gang of American delinquents who are poking fun at a legal system that blames society rather than the juvenile criminals for violence. As Indian society today grapples with the challenge of juvenile criminals that the western society has been facing for many years now, the big question is, should deprivation be a justification for depravation? Or should
a serious crime, which has perhaps ruined a life, be treated with the same yardstick, irrespective of age, social or economic
background?

On August 6, a day when a group of five juveniles mercilessly stabbed a 20-year-old in a Delhi market, the government approved the Juvenile Justice (Care and protection of Children) Bill, 2014. The bill will, if passed, treat minors older than 16 as adults if they are involved in serious offenses like rape and murder, and try them in courts as adults. Earlier, 16 years was the juvenile threshold in India, but the Juvenile Justice Act, 2000, amended it to 18 years in conformity with UN laws.

The demand for reducing the upper age limit for juveniles has been gathering steam ever since the gruesome rape and murder of Nirbhaya in New Delhi in December 2012. Of the five accused, the juvenile among them was alleged to be the most brutal and had inflicted grievous injuries on the 23-year-old physiotherapy student. In the Shakti Mills rape of a journalist in Mumbai in 2013, again a juvenile was involved. Further, in the murder of a 24-year-old three years back
in Chandigarh, it was again three juveniles who were involved. And on April 22 this year, a local court convicted all of them, now
20 years old.

Are they adults?

These incidents shook society and made us question why 18 should be the cut-off year for being called a juvenile. Can a 17-and-a-half-year-old then get away with most grotesque crime because of this age immunity? Even the Supreme Court questioned this aspect a few weeks ago. Minister for Women and Child Development Maneka Gandhi too demanded that juveniles accused of gruesome crimes should be tried as adults.

However, what should have got society’s overarching consensus has instead, became a subject of debate, as journalists, activists and lawyers feel that at 16, an individual is not mature and can’t fully comprehend the implications of his actions. Also, the focus should be on reforms, not retributive justice.

Several former judges of the Juvenile Justice Board (JJB) have also asked how, in the absence of specific guidelines, the mental maturity of an offender can be ascertained. Others feel the decision to amend the juvenile limit is not in sync with the recommendations of the Justice J S Verma Committee, which had said that resetting the age of juvenility was “unviable”.
“Hanging to death a juvenile is really a shortcut that might make the public feel better for a few minutes, but it does not solve the issue at hand. Retribution is no solution. We cannot exclude the possibility that the juvenile convict can be reformed. It’s not necessary that he will repeat a crime he committed at the age of sixteen or fourteen,” writes Palash K Mehrotra, author of Butterfly Gene-ration, in Mail Today.

Then, there’s the plea that most of these offenders come from extremely deprived backgrounds, and grew up witnessing violence at close quarters. Aparna Ravi, a senior researcher at the Centre for Law and Policy Research, writes in her piece, Child and Punishment in The Indian Express: “The purpose of juvenile justice system is not to establish the guilt of the alleged offender, but to look into the underlying social causes for the alleged crime, with the aim of  rehabilitating the juvenile offender.”

She cautions: “While the reaction to the Delhi gang rape and its aftermath is understandable, it is important that a single extreme case does not form the locus for law reform.” She takes a phrase—“moral panic” —that Elizabeth Scott and Laurence Stein-berg have used in their book Rethinking Juvenile Justice, to describe the “escalating pattern of alarm in response to a perceived social threat.”

Worldwide concern

There is no doubt that juvenile crimes need to be addressed as these are increasing and are not one-off cases. According to the National Crime Records Bureau, there was a 13.6 percent increase in juvenile crimes from 2012 to 2013 (31,725 cases in 2013 as against 27,936 cases in 2012). Rape cases increased by 60.3 per cent during the same period. (See box item: Juvenile Crimes, 2013).

The causes of delinquency—poverty, deprivation, broken homes, overexposure, male domination, pathological disorders — are subject matter of psychological and sociological study in themselves. But poverty and deprivation can’t be treated as reasons for giving immunity to an offender. World over, there’s the realization, as Charles D Stimson, author of Adult Time for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens, says in an article: “Some juveniles commit crimes so horrific in their depravity that justice could not be carried out in the juvenile system.”

Even the US is grappling with the dilemma of punishing such juvenile criminals. Despite the US Supreme Court voting 5-4 to outlaw the death penalty for juvenile criminals in March 2005, calling it “unconstitutionally criminal”, 19 states still allow their trial and conviction as adults. Among the cases that shook the country were:

Sarah Johnson of Idaho, who shot down her parents in 2003 because they took firm action against her for spending a night with her boy friend.Jordon Brown killed his father’s eight-month-pregnant girlfriend in Pennsylvania; the charges were initially filed in the adult court, but later shifted to a juvenile court, despite the state law, under which any person above 10 has to be tried as an adult if he kills.

TJ Lane, who killed his classmates in his Ohio school, and faces charges as adult.

In China, which faces increasing cases of juvenile crimes, especially rape, a court sentenced a 17-year-old boy, son of a famous singer, to 10 years in prison for his involvement in a gang rape in Beijing, to make an example out of him.

Calendar-struck

The key question being raised in India is, why are we obsessed with the chronological age? Dr Tulsi Patel, professor of sociology at the Delhi School of Economics, wonders: “What is so sacrosanct about the calendar? We have women who enter puberty at nine now. Are we not supposed to bring down the juvenile and adult age too? We have to see how hormones are developing in an individual. The calendar doesn’t decide hormones.”

Clinical psychologist and counselor Dr Aruna Broota says that each case is different and there should be a psychiatric evaluation of the mental functioning of the person. Like Dr Patel, she says that a person’s maturity should be determined by his hormonal development and not by his bone age. “We expect all sorts of social compliance from the same 15-year-old child. He should study on his own, help his father, and accompany his grandparents for social calls, so why don’t we expect that the child will also develop sexual understanding? Why do we brush aside that subject by saying ‘bachha hai’? We need to look at emotional capabilities. What an 18-year-old could do, a 15-year-old is doing.”

The risks of over-dependence on juvenile justice also cannot be ignored. Dr Patel says that at the back of the mind of a juvenile criminal is the awareness that he will go scot-free after three years despite the gravity of the crime. A sense of fear needs to be instilled, she says, which can only be done with harsher punishment.

Also, juvenile homes are no places for reform. A teen gets exposed to the worst forms of social behavior and crimes there (including sodomy, gang wars and drug abuse) and comes out as a hardened criminal. Worse, the police are supposed to destroy the records of the juvenile after the completion of the sentence. So, imagine the danger of the juvenile rapist in the Nirbhaya case roaming in the city once again after three years, unidentified.

Considering the sensitivity of this issue, any legal step would be really effective if we go in for a jury system to examine the cases involving teenagers. A senior editor suggested that each case needs to be looked at differently as it cannot be generally assumed that all those under 18 did not deserve to be punished for serious crimes. He says the jury should comprise of psychiatrists, sociologists, psychologists, child care specialists and members of the public, including parents.

Social change

The new bill will perhaps act as a much-needed deterrent. While it will enable persons above 16 to be tried as adults for serious offenses like rape and murder on a case-to-case basis, they will still not get death or life sentence. At the same time, the bill will have repercussions on many other laws, which will have to be amended due to the reduction in the age of juveniles. But the bigger obstacle India will have to overcome is that the country is a signatory to three international conventions—United Nations Standard Mini-mum Rules for the Administration of Juvenile Justice (Beijing Rules), 1985; UN Convention on the Rights of the Child (UNCRC), 1989; and United Nations Guide-lines for the Prevention of Juvenile Delin-quency (Riyadh Guidelines), 1990. These conventions make it mandatory for the juvenile age to be 18. It will be a challenge for the new government to reconcile our domestic compulsions with the requirements of these international protocols.

While this bill will facilitate legal restructuring, Dr Broota calls for a more fundamental shift. “What we need is right education, by which I don’t mean literacy, but restructuring family interactions. When a child sees that the men in the family don’t respect the womenfolk, he too starts perceiving the mother as a weakling. And if you don’t respect women at home, why would you respect them on the roads?”

Dr Patel also calls for deep-rooted social reforms. “Entrenched male-centric egos are at play. Even if you were to give the harshest punishment, I am not sure if the culture of violence will subside.”
Till that utopian change, here’s hoping for some reprieve on the judicial front.

— With inputs from Shailendra Singh

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