Legislators acting in response to moral outrage seen on television and during street protests and being apparently influenced by the importunate gaze of victims of crime from the gallery, does not augur well for sound law-making. It may not be right to characterise the quick passage of the Juvenile Justice (Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already been passed in the Lok Sabha in May 2015. The draft too had been slightly modified before that, based on a February 2015 report of a standing committee of Parliament. Yet, it is difficult to overcome the impression that some members may have been gripped by a bout of moral panic after the release of the youngest convict in the Delhi gang rape of December 2012. The seeming sense of urgency was undoubtedly influenced by a section of the media demanding ‘justice’ after the convict was released from a Special Home on completing his three-year term there. An impression is sought to be created that the country’s collective conscience demanded that a tough law be enacted to ensure that juvenile convicts committing heinous crimes do not get away with light sentences. An edifying aspect of this legislative episode is that there are enough voices around that understand that restorative justice is best ensured for this underclass by addressing the fundamental problems that create juvenile offenders in society in the first place, by ensuring universal access to education and social care for all children.
The Bill, which contains progressive aspects such as streamlining adoption procedures and extending the law’s protection to orphans and abandoned children, still suffers from the problems highlighted by the parliamentary panel. The government, unfortunately, did not accept the view that children in a particular age group being subjected to the adult criminal justice system will violate their right to equality under Article 14 and the objective of protecting children in Article 15(3) of the Constitution. It, however, dropped a clause that provided for treating those who had committed crimes before reaching the age of 18 but were apprehended after they turned 21, agreeing that it was unconstitutional. It extended the period of preliminary assessment (the original draft called it ‘inquiry’) by the Juvenile Justice Board to determine whether a juvenile offender should be sent for rehabilitation or tried as an adult, from one month to three months. The board’s assessment will still be subject to judicial review and may set off litigation over whether one 16-year-old was let off lightly or another was wrongly sent to an adult court. Such decisions may also be influenced by the prevailing public mood. It would have been wiser to have let the law stand in conformity with the UN Convention on the Rights of the Child, which advocates equal treatment of all children under the age of 18. The difference between sober assessment and mercurial action cannot be more starkly emphasised.
In a speech to Harvard Law School in the 1890s, Justice Oliver Wendell Holmes, Jr. called the law “the government of the living by the dead” and said “to a very considerable extent, no doubt it is inevitable that the living should be so governed”. The December 16, 2012 rape and murder in Delhi of Nirbhaya, and the consequent legislative changes spawned by the incident, illustrate just this proposition.
First, the Criminal Law (Amendment) Act, 2013, redefined the offence of rape as well as the standards of proof required to sustain an allegation. Now the Rajya Sabha has just passed the Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015, which allows for children between the ages of 16 and 18 to be tried in adult courts for heinous crimes.
Private grief, public empathy
Driving the agenda of the dead are Asha Devi and Badri Singh Pandey, parents of Nirbhaya, who are now the face of India’s response to the tragedy. For the past three years, their public mourning for their brutalised, dead daughter has been a very intense affair. They are present at every court hearing of consequence, they have attended innumerable condolence meetings, commemorations and vigils. They have not allowed their daughter’s fighting spirit to die. We feel their sorrow, and share and understand their anger. To them, the release of the juvenile offender, in this case after only three years in a correctional facility, appears to be inordinately early.
But the righteous anger of this couple has become Schadenfreude and worse for a whole mass of citizenry. Anger is being exploited by TRP-driven purveyors of outrage porn, to strike at all possible newsworthy targets. The juvenile delinquent has been demonised to the point where any revelation of his current identity is likely to result in violence against him. Parliament is being excoriated in the mistaken belief that a legislative fix could have ensured continued incarceration of the juvenile. It is being suggested that legislative inaction over the passage of the Bill through the Rajya Sabha has been responsible for the juvenile walking free. Even when informed that the Constitution of India prohibits retroactive criminal punishments, the proponents of outrage for outrage’s sake point to the grave dangers of unpunished juvenile crime. They suggest that the new legislation, which enables trying juveniles as adults, is an effective deterrent which will ring-fence middle-class India from being attacked by juvenile criminals hell-bent on rape. The absence of a deterrent law, they suggest, is akin to inviting undeterred juvenile crime.
Worse than the disease
But has juvenile delinquency reached epidemic proportions requiring legislation? Or is it a single juvenile, involved in a grossly revolting case, whose facts are being used to create a fear which did not previously exist? While television anchors have harangued us about how juvenile crime has risen by 47 per cent, they have failed to inform us that actual juvenile crime is still less than 2 per cent of reported crime figures.
Second, most of it is non-violent crime and often the result of vagrancy. Most importantly, most children in trouble with the law come from extremely poor backgrounds and are often runaways from hunger and abuse at home. Does this most vulnerable section of our society require legislation to keep it from being a menace to the rest of us? To my mind, legislation may be a remedy worse than the disease.
Harsh legislation is a cheap fix for politicians to douse public anger at events. But harsh laws do not diminish the problem, nor do they protect future victims. TADA [Terrorist and Disruptive Activities (Prevention) Act] and POTA [Prevention of Terrorism Act] did not end up reducing terrorism, but they ended up empowering lazy policing. The Act to prevent atrocities on Scheduled Castes often ends up as a vendetta tool in government employment. Section 498A of the Indian Penal Code, which was introduced to combat dowry-related crimes, has been so abused that the Supreme Court had to step in to regulate its blatant misuse; the section has been responsible for many a salvageable marriage being wrecked. Criminalising cheque bouncing has resulted in our criminal courts being flooded with cases from financial institutional lenders and magistrates ending up as recovery agents. Yet, we as a society, keep clamouring for harsher laws, which politicians enact to escape being targets of outrage. We fail to heed Irish statesman, author and political theorist Edmund Burke’s dictum that “bad laws are the worst sort of tyranny”.
As a country, our lawyers, faced with delay in the civil courts, resort to the threats of the criminal justice system, where pretrial denial of individual liberty is often the norm. The maximum proportion of female offenders in any Indian jail is women arrested under the dowry laws. Their accusers are women as well but often put up to such accusations by male relatives and lawyers. Every crime which entails prison time ends up imprisoning a family as well. Criminal laws made to benefit a particular section end up being misused against them. It is in this background that we must consider the question of whether as a nation, we are better off treating our children in conflict with the law as adult offenders to be punished or as juvenile delinquents to be reformed.
The new Act has yielded to outraged opinion by making possible the trial of a young offender as an adult if he or she is accused of a heinous crime. Heinous crime is defined as crime that carries a sentence of imprisonment for seven years or more under any law. A variety of acts, including non-violent crimes such as forgery, or even crimes of incitement such as sedition, attract a prison term of seven years or more. Under the new law, a stone-pelting teenager in Kashmir or a teenage purveyor of counterfeit currency from Kanyakumari is as likely to be treated as an adult criminal.
Pitfalls of extreme justice
We, as a nation, also have a warped attitude towards sex and sexuality, with notions of family pride and honour bound in. A lot of cases of young love and elopement do end up in police stations as charges of rape and kidnapping. An angry father of a runaway girl often has no means of restoring societal honour except by alleging that his daughter or ward was unwillingly taken away. Similarly where “love jihad”-type allegations are made, the filing of rape and kidnapping charges is usually the norm. When return is not an option for runaway teenagers, the other option is often voluntary death. When, previously, erring teenagers could be admonished, today we risk imprisoning them unless both sets of parents act maturely. We therefore need to very carefully evaluate how far we wish to traverse down the path of criminalising our youth.
From the policeman who makes the arrest, to the Juvenile Justice Board that takes the call on whether to allow prosecution as an adult, large amounts of discretion will necessarily operate. Those who can afford it can and will challenge any decision to prosecute in higher courts. The result is more likely to be greater uncertainty, and lesser justice, as criminal trials get stalled by appeals to superior courts.
“Extreme justice is often injustice,” wrote dramatist Jean Racine, and an India that disempowers the loneliest, the lost and the last will be a much harsher place. Whether safety lies in the path of harshness, or in effective implementation of existing laws, is a call for the republic to take. Justice Holmes, to return to his Harvard lecture, advised: “The past gives us our vocabulary and fixes the limits of our imagination; we cannot get away from it. There is, too, a peculiar logical pleasure in making manifest the continuity between what we are doing and what has been done before. But the present has a right to govern itself so far as it can; and it ought always to be remembered that historic continuity with the past is not a duty, it is only a necessity.”
Has Nirbhaya’s death necessitated harsh laws to deal with India’s young people or have we elders failed our succeeding generations of youngsters by exposing them to adult penalties?
(Sanjay Hegde is a senior advocate of the Supreme Court.)