Breakdown: What are we seeking as a Society? Fear or Hope?

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!