The sentence of 3 years in the Delhi Gang Rape case, admittedly a pittance, has invoked public outcry about the age of juveniles under the Juvenile Justice Act. My own experience on the ground has indicated an alarming tendency for minors to commit grave offences such as murder and sexual assault. Where we are going wrong with our children is a debate that has to be had, no doubt. But before we attack the law, I want to stop for a second and share my own experiences with the Juvenile Justice System.
Under the Act, there is both Juvenile Delinquency as well as “Child in need of care and protection”. While Juvenile Delinquency, summarily put refers to minors who commit crimes, child in need of care and protection refers to a child who deserves the protection of the state simply because his own environment is not conducive for his growth. These principles as well as the Act itself is in line with international covenants such as Convention of the Rights of a Child. My recent interactions with an acclaimed professor of law from a leading university in the U.S.A. revealed that the American child rights fraternity are looking at the Indian child rights legislations as an ideal case scenario.
Yet on the ground the picture is very different. The Juvenile Justice Boards are understaffed, don’t sit everyday and are severely crunched for resources. Whenever the board wishes to impose community service in petty offences such as theft of a wallet, there are no facilities that can oversee the carrying out of the sentences. In spite of all the child friendly measures which the act imposes, a visit to the local observation home will reveal horror stories about how a boy caught for pickpocketing has been beaten by law enforcement authorities so badly that he now has permanent disabilities. 12 year old boys are clinically depressed and borderline suicidal. Thats the deficit between the Act on paper and the act on ground. All these horror stories exist in spite of the privileged treatment the juvenile justice act envisages for children.
In several instances where lawyers have worked with social workers to come up with a comprehensive plan to reform juveniles and present it before the board, its been outright ignored and sentences are imposed accordingly. The Act is not working for crying out loud! So how will amending the law change these problems?!
The Child In Need of Care and Protection principle is overseen by the Child Welfare Committees. Their problems and constraints are not that different from the aforementioned boards. As a result lakhs of abused, abandoned, traumatised and neglected kids continue to endure their present conditions. We know now, that these are the starting points for the career graph of an offender.
Is it only a coincidence that the boy in the Delhi case was a child labour for many years before he fell in the company of the main accused? I don’t think so.
When you look at it that way, the crime occured not because the Juvenile Justice Act was implemented, but because the Juvenile Justice Act was not implemented. The state’s complicity in this issue lies primarily in its overwhelming failure to allocate the resources and the measures necessary to implement the letter and spirit of the Act.
The problem from a victim’s point of view is not inadequate punishment. In fact it is the cumbersome investigative and trial processes thats to blame, more so when they translate to uncertainty of conviction and punishment. It is our provisions pertaining to bail that allow offenders to get out before conclusion of trials, which inevitably translates to intimidation and bribing of witnesses. When witnesses, the survivor included, come to testify, there is no guarantee that court will record the testimony and may end up granting an adjournment because the overworked prosecutor is not prepared enough or because the court is overwhelmed with too many cases on that day. Witnesses therefore dont want to come forward, nor do they want to testify. As a result, there isn’t evidence. Worse off, is the insignificant role that the survivor has in the whole investigation and trial process. The courts and the police drive home the message that she is just another witness, which undermines both the pain she underwent as well as her courage to come forward and report. The concept of victim impact statements are unheard of. Compare these to the perks that an accused has and the ball rolls heavily in his favour, abandoning the survivor and the victim’s family entirely. What makes my blood boil is that the Justice Malimath Committee recommendations intended to mitigate these pain points are yet to translate into legislative policies.
But the problem lies with the people. While we rabidly cry for the reduction of the age of juveniles, the focus goes away from the real issues which involve difficult and expensive solutions. Yes, drug peddlers do use children as mules. One might say that it is because children below 18 are awarded lesser sentences. If reducing the age of the child is the answer, then we assume that the drug peddlers will say “Oh poor fellow, he will go into prison just like the rest of us. Let us not use him”. I doubt drug peddlers are such altruistic people or so sensitive about the punishment their mules endure.
Fact of the matter is that all those guys arguing for the reduction of the age of juveniles haven’t undertaken any study to suggest that children in India grow up at the age of 16 as opposed to 18. So my appeal is that if we moot for an amendment, let us first understand the entire picture before we attack the law itself. Let us think deeply before we shout and let us do our research before we speak.
This last bit will sound cruel and inhuman. But in the heat of crisis, I do believe solutions come from an impassioned mouth. Be it 16 or 18, to assume that a person grows up the moment he reaches a certain age is preposterous. Yet the law has to make that effort to draw the line somewhere, be it 16 or 18. Such is the very nature of legislations and laws, they cannot be perfect and they are inherently absurd and devoid of common sense. No country or jurisdiction has got it bang on target. The next step would be to suggest that lets evaluate maturity of the juvenile on a case to case basis through psychiatric examinations and try the offender accordingly. But India critically lacks counsellors and psychiatrists, more so when good ones are the need of the hour. So it is not practical to suggest this change either and don’t we all complain that our laws are too idealistic and don’t accommodate ground realities?
I work with survivors and victims of sexual offences all the time. Frankly I am offended that the boy in Delhi escapes with a 3 year rap on the knuckles. But I ponder and ponder as a lawyer as to how such a situation can be corrected and I am left with no answer. But the existing voices soliciting amendments haven’t thought the issue through and speak more as reactive voices bereft of objectivity, as opposed to impassioned debators acting on solid research and well conceived solutions.
Where do I stand? I think the boy in the Delhi case was lucky and fell into the purview of a special enactment. It angers me, it frustrates me and it motivates me to continue my work in the field of assisting prosecutions. But that is no reason to attack a policy itself. Like every law, this failed in a case. Its a shameful moment for society as a whole. But it is a reminder that we should find more such boys out there and bring them within proper care before they grow up and brutally rape and kill a woman. Thats the real challenge and thats the challenge we have to meet. But killing people at 16 instead of 18 is not going to make a difference.