In the light of the release of the juvenile
convict of the 2012 Delhi rape case, we have seen the rise of a lot of angry
voices, and rightly so. An individual, a prime accused who is convicted of
brutal rape and murder of a girl, has been set free after only 3 years. It understandably
enrages many. But the punishment that was served was only a reflection of the
course of existing law on juveniles, i.e., Juvenile Justice (Care and
Protection of Children) Act 2000. So there’s
no point in blaming the courts for doing their jobs (Read no point in
criticizing the Delhi High Court for refusing to give a stay order)
However,
many people have been rightly criticizing the sorry state of democracy in the
country where no bill has seen the light of the day in the past two sessions in
Rajya Sabha. Thanks to the strong political ethics (yes, that’s sarcasm)
followed by the top two most parties of India, some much needed bills are
biting the dust of the shelves of Rajya Sabha. (The story of Congress vs BJP
tug of war in Rajya Sabha is a story for another day)
One
of those bills stuck in the Upper House happens to be an amendment to Juvenile
Justice Act, introduced by the Union Minister for Women and Child Development
Maneka Gandhi.
According to the
bill that was passed in Lok Sabha, “The
new proposed Act provides that in case a heinous crime has been committed by a
person in the age group of 16-18 years it will be examined by the Juvenile
Justice Board to assess if the crime was committed as a ‘child’ or as an
‘adult’. Since this assessment will take place by the Board which will have
psychologists and social experts, it will ensure that the rights of the
juvenile are duly protected if he has committed the crime as a child. The trial
of the case will accordingly take place as a juvenile or as an adult on the
basis of this assessment” (source from: PBI)
It is here that the
debate rages, from people from all quarters throwing their arguments and counter
arguments.
On one hand, I
believe that the very idea or the principle behind law, other than giving
justice to the victim, is the concerted belief of the society to drive in a
sense of deterrence and a fear of conviction into the society at large from
committing a similar crime. In that light, to see a prime accused escaping the
cusps of stringent laws just because of the convenience of falling under age by
a mere couple of months can indeed act as counter deterrent. So, by that logic,
do we allow the breeding of 17 year old murderers, rapists? Of course not. But
our laws are indirectly implying, or at least have paved a path for that. So yes,
I do believe that there is a need to amend it.
But where do we
draw the line? Where does a child end and an adult begin? Can there ever be a
generalized acceptance worldwide?
On these lines, the
counter argument has been that, amending law for a one off incident is nothing
but a knee jerk, highly emotional, reaction. Especially considering that the
law pertains to children, and that greater care need to be given to detail in
case of any change. They say that a child, anyone less than 18, needs reform
and not prison, and deserves a best chance at life by undergoing rehabilitation to ease back into the society.
But my question is
that can we categorize a rapist and a murderer as a child anymore? It is tough.
It is extremely tough. Sure, large sections of the civil society too gulp down
here but are ready to take the bullet for larger interests.
The entire argument
is very precarious to say the least, it’s deterrence vs reform, in its essence.
What do we choose?
There has been an
internal battle within me that is struggling to take sides. But when I sit back
and do look at the amendment, there is a semblance of balance in it. It aims to
strike a balance between these arguments by leaving it to a team of psychologists
and social experts to determine if any accused, in the age group of 16-18, be
treated as a child or an adult, based on the crime.
So that way neither
all who are between 16-18 would be treated as adults nor all accused rapists
would be treated as children.
I think this arrangement
is an ideal set up where it should pacify people from both sides of the
argument. While the ones from deterrence side are already championing this, the
ones from reform are skeptic of the practicality of it.
Will the JJB
(Juvenile Justice Board) be fair and free while determining whether an individual
should be treated as a child or adult? What if there is case where a 16 year
old from lower caste elopes with a girl from higher caste and later is framed
for rape? Can the JJB, examining those circumstances, be able to carry a free
and fair trial even if it obtains high pressure from the opposite party involved
in the case? These are the contentious issues for many. It is here that many compromise for the larger interests by criticizing the amendment.
But this drags the
argument into the ifs and buts too. There would be too many ifs and buts behind
any law. I think that this amendment is the best bet to curb the rising juvenile crimes as validated factually by the data of National Bureau of Crimes records which indicated at a sharp increase in the number of heinous crimes committed by juvenilles in the last three years. So it becomes that much more important to iron out finer details for smoother implementation of this law and to nullify any contentious clauses.
But any which
way I see, I don’t think there is even a remotest of remote possibilities of this
law being passed in Rajya Sabha in the next few days to be able to be applied
to the Nirbhaya (or Jyothi Singh! As her mother asks us to refer to) case as
long as the accused is still in period of appeal. With only last three days to
the winter session of parliament, there is no way this could be passed.
And even if it does
get passed in the next session, in my own amateur understanding of law, I don’t
see this law prosecuting the accused here, as it might directly fly under two
clauses of article 20- article 20 (1) which states that a person cannot be
persecuted retrospectively (i.e a law cannot be applied in reverse) and article
20 (2) the principle of double jeopardy stating that a person shall not be
prosecuted or punished for the same offence more than once. While I do know
that, as long as it is within the period of appeal (as it is now), there is a
scope of hope for the deterrence arguers and the Supreme court’s stand in this
regard would be momentous once again tomorrow. I’m not a student of law, nor
have a superior understanding of it otherwise either, but if any of you reading
this article have clarity on this last aspect, do drop a comment and let me
know! And also do share your opinion of where you stand on this argument. Are
you on the deterrence wagon? Or do you believe in hope, change, reform, giving
that one greater chance?
May the Justice be
within us all! Peace out!