Juvenile injustice

On Tuesday, India joined the league of countries that punishes its children. All political parties in the Rajya Sabha gave in to the pressure generated by the false propaganda about the juvenile found to be involved in the horrendous December 16, 2012, Delhi gangrape case. It is a travesty of justice that such a draconian law has been passed based on sensationalism and misleading facts, presenting children as the biggest danger to the safety of women in India. The sustained negative media campaign not only singled out the juvenile involved in that case, but also the whole juvenile justice system without any basis.

The media and the rape victim’s parents have been crying hoarse referring to him as the most brutal, even though the juvenile justice board had categorically noted: “It is true that the juvenile had been found to have been involved in the present case, there is no evidence on record to show that he was most brutal or that he had caused the maximum damage.”

The rape victim deposed twice before her death — once before the sub-divisional magistrate and, second, before the magistrate. On neither of the two occasions did she single out the juvenile to be the most brutal. In the first information report filed or the police report submitted to the court, there is no reference to this child being the most brutal. This juvenile was arrested after another accused Ram Singh named him. Ram Singh later died in judicial custody.

This juvenile had run away from home six years before that fateful night, and had been trying to make two ends meet on his own, doing whatever work he would get. All these six years, despite brutalization on the streets, he did not commit any offence. His behaviour in custody for three years has given no occasion to complain. His psychologist reported that he was undergoing silent therapy through art and painting. The superintendent was proud that his painting won a prize. Other officials interacting with the child all say that he is a nice young man who enjoys treating them with his cooking. Despite this record, some leak from unidentified sources became the basis for the sustained outcry of him being the most brutal of all the six rapists.

This propaganda led to the shift of focus from the brutality perpetrated by five men to juveniles committing offences. Even though many more adults than children rape women and children, 16-18 years old have been presented as the highest threat to the safety of women in India.

In 2014, rapes by adults were 48,193 compared to 1,989 by juveniles. Juveniles constituted only 4.7 per cent of all those arrested for rape.

While women groups disassociated themselves from the demand for punishing children as adults, the victim’s mother asked for it in the name of protection of women. Her anguish is understandable. So is her anger. But let us not be blind to the reality of rape in India — more than 90 per cent of rapes in our country are committed by people girls and women know and they are raped in homes. Stranger rapes on the streets are much less in number.

Government and media repeatedly flashed the sensational figure of 50 per cent increase in the last 10 years in juvenile crime and made the public believe that the protective approach of juvenile justice has resulted in encouraging children to commit crime in the absence of deterrence. The truth is that in the last 10 years, share of juvenile crime to total crime in India increased from 1 per cent to 1.2 per cent and has remained static at 1.2 per cent in the last three years. In actual terms, while the number of children arrested for any offence increased by 14,297 since 2004 to 2014, the number of total children out of which some committed an offence increased by close to 2 crore.

Hence, in 2014, only 2.7 children out of one lakh were arrested for an offence compared to 1.8 in 2004. By any stretch of the imagination, can these figures be the basis for national panic justifying passing of this drastic law that takes us back to where we were a hundred year ago The Children Acts of 1920s provided for sending some children to prison.

Tuesday’s discussion in Parliament showed either ignorance about the issue or a concerted effort to mislead the country. In her answer to questions relating to the implementation of the current Juvenile Justice Act, Maneka Gandhi, minister for women and child development, misled the Rajya Sabha by saying that every district has a juvenile justice board and a juvenile special police officer. The truth is that many states have given additional charge to a magistrate to function as the JJB magistrate and the situation is much worse in the case of special juvenile police officer and welfare officer.

The minister would have us believe that there are sufficient checks and balances and only those juveniles who have committed heinous offences with “adult like” mind will be sent to the adult court; that such cases will be examined by the adult court; and that such children will first be kept in a place of safety till the age of 21 when an assessment will be done. If they are reformed, they will walk out of the system — albeit with disqualifications attached. If not reformed, they will be transferred to adult jail to complete their sentence which will not be for life or death penalty.

The question that Rajya Sabha members forgot to ask is, why wasn’t this juvenile in the Delhi gangrape case reformed as claimed by another leak The current law mandates ensuring reformation and an individual care plan at the time of release. “Who is responsible ” asked the Supreme Court when the chairperson of the Delhi Women Commission approached it for stopping his release. Her answer was, “I am not government”. Panelists on TV channels are claiming no efforts were made to reform him. He was given no training. Learning cooking and tailoring is not sufficient. If all this is true, who is responsible

Who will be responsible when, under the new law, children tried as adults will not reform because the state made no effort to reform them while they were in a “place of safety” till the age of 21 Who will be responsible when they will come out from jails, having grown up in the company of other violent offenders for 7 to 20 years Who will be responsible when they will be barred from any employment and would have no option but to take to a life of crime as all other channels would have been closed to them Will India’s women and society be safer then

The writer, former chairperson, Delhi Judicial Academy, is professor of law, University of Delhi. She has been working on issues of juvenile justice for the last 35 years.