As Indians, we find pride in our ability to be emotional about issues that matter to us. Unlike many in the West who pride themselves on their ability to be objective and individualistic (Even though, some part of such claim is certainly exaggerated), we think of ourselves as more human, in touch with our feelings and the reality of the people, if not the society around us.
And yet, the passage of the Juvenile Justice Amendment Bill in the Rajya Sabha is a dilemma of a surprising kind. After all, why would an emotional people be ready to condemn any juvenile offender born in or after 1999? The reason is sadly the very reason it shouldn’t have, emotion and sentiment.
To be fair the new Bill clearly states that only those Juvenile offenders between the ages of 16-18 and guilty of a ‘heinous’ offence and those apprehended before the age of 21 and guilty of ‘serious’ offences may be tried as adults; ‘Heinous’ where the offences have a sentence of over seven years and ‘Serious’ where the sentence of imprisonment is somewhere between three and five.
Now, consider this.
1. A very minute percentage of all offences under the Indian Penal Code as well as other special substantive laws are committed by juveniles.
2. Secondly, a very minuscule percentage of the aforementioned percentage accounts for serious and heinous offences, and is often committed by juveniles between the ages of 16 and 18.
3. Lastly, the age group between 16 and 18 has seen the largest growth in the number of offences in the past few years.
See it from whatever angle; the fact remains that all these facts, used by both proponents and opponents are completely contrary to any trend or progression the other might be indicating. And that is perhaps, the cruel honesty of this whole issue.
There are no cent percent, correct answers. There are only choices.
I have no qualms about the good, albeit opportunistic intention of the government or any in the opposition.
However, I do not believe this Bill is the way to do it.
Under the amendment, the Juvenile Justice Board will have just a month of preliminary inquiries to determine whether a Juvenile accused of committing a heinous crime is mentally and physically capable of doing the same. One month, plus four months of proceedings and a possible extension of two more months, that is a total of just seven months to determine the fate of a minor who may be guilty of a murder, dacoity or rape.
Now, think back to or just take an intelligent guess as to the average time a regular trial in a regular court takes to determine the guilt of a man accused of a similar ‘serious’ or ‘heinous’ crime. The answer could easily range from a couple of years to a decade.
The point is, if indeed we must try juveniles who commit such offences as adults, shouldn’t we at least ensure that the same freedom of time (Not that I condone delays in case in any way) be available to the juveniles who might perhaps need it most of all?
An argument in favour of passing this amendment to the Juvenile Justice Act was that a harsher sentence on juveniles committing heinous and serious offences under the act would deter future instances of such offences from happening again. But, is that a valid argument?
Countries such as China and Saudi Arabia are infamous for their aggrandized, spectacle-worthy sentences for crimes such as murder and rape. If a harsher punishment was indeed a true deterrent, surely a country such as Saudi Arabia, the land of beheadings and floggings would have had no crime to deal with.
Now imagine what the prospect of a harsher sentence can do to a common man. It is very uncommon to presume that a man considers the sentence for a crime before he actually commits it. Even when he does, which would presumably be after he has just committed the crime, wouldn’t he, and pardon me for putting it so bluntly, try to make sure he was never apprehended for the crime.
For instance, wouldn’t a man who has just kidnapped a girl want to make sure she never identified him as her kidnapper? The cruel possibilities of that thought are endless. A harsher punishment would only add impetus to these possibilities.
Opponents of the bill also pointed out Section 15 (7) of the JJ Amendment Act which classified offenders of the same heinous or serious offence on the basis of their date of apprehension. Prima facie, it would seem that the same clause is in violation of Article 14 of the Constitution as the date of apprehension hardly serves as a reasonable classification made for public purpose, as mandated by the courts of law.
Simply put, how can two juvenile offenders of the same heinous offence be treated and penalized differently on the basis of their date of apprehension?
Additionally, it would also seem that the clause may be in violation of other articles such as Article 20(1) of the Constitution as well as India’s commitments under the UN Convention on the Rights of a Child, 1989.
Emotional as we may be, we must not allow our sentiment and blood thirst to persist with this course of law. Not only would it validate the lynch mob demagoguery that has become common in our discussions these days but, it would also set an unfortunate precedent for any more legislation to come. There are times when are lawmakers must act out of responsibility, even when such actions go against the opinion of the general public. Today should have been one of those times.
However, it would seem now that the time has passed. For a generation of teens wanting to get their parents to treat them as adults, congratulations; the law has almost done it for them.
Thanks to this amendment, we have happily agreed to ship off our young futures to the company of hardened criminals to become just another product of the appalling and inept prisons system of India. For an amendment that claims to be equally punitive and reformatory, it is certainly more of the former as an argument can certainly be made for the fact that recidivism may emerge amongst such convicted juveniles. If it does, we will have only ourselves to blame.
After all, what is the difference between revenge and justice when our mind is dominated by such emotions?
P.S: The Justice Juvenile Act had omitted the use of the word ‘ juvenile offender’ or ‘juvenile delinquent’ in favour of ‘juvenile in conflict with law’ to prevent any criminal or accusatory overtones to attach itself with a minor. Well, now that some of them will be tried as adults, wouldn’t it be contrary to the above stated intent?