With the recent ruling in the Nirbhaya Delhi gang rape case, there has once again been a clamour for amending the Juvenile Justice Act. While some of the demands may not be invalid or illogical, must an action be taken with a knee-jerk reaction to one case? We are not suggesting that one procrastinates and doesn’t take action, but shouldn’t we follow a proper process to make constructive changes? Before suggesting any amendments, shouldn’t we try and understand the purpose behind the legislation in the first place?
The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. It provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. The Act is considered to be an extremely progressive legislation and Model Rules 2007 have further added to the effectiveness of this welfare legislation. The fundamental cornerstone of this legislation is that a juvenile should be treated differently from an adult, when they are in conflict with the law. They should, instead, be given the opportunity to be reformed.
In light of the recent petition by Dr. Subramanian Swamy filed in Supreme Court seeking interpretation of the definition of ‘juvenile’ it is important to discuss some questions that are being raised. We first need to ask ourselves as a society, if a juvenile needs to be given an opportunity to get reformed. A rebuttal to this question has always been that in most cases, the juvenile doesn’t get reformed, so why even have a system of reform? But, the failure of the system of reformation does not obliterate the need for one. Shouldn’t the focus be on the reasons for such failures and correction of the same, rather than discarding the very concept that a juvenile should be treated different from an adult?
The next question is the definition of a juvenile. Why is 18 years chosen and that a person who is 17 years and 364 days considered to be a juvenile and a day later, (s)he is an adult? Many want that this age should be lowered. Some want to disregard the age of the juvenile, if (s)he has the mental maturity of an adult. Others want the nature of the crime to determine whether the person is a juvenile or not.
An age threshold tends to be objective. However, the problem with any such threshold is that one day before than the threshold (no matter what that threshold may be) will always be different from one day after. The age of 18 years is certainly debatable – some countries have the age limit as 16 years, some even lower. An age threshold is considered in many situations, not just in the juvenile justice regulations. A person below the age of 18 is deemed to be ineligible to drive, no matter how competent a driver (s)he may be. A male below the age of 21 and a female below the age of 18 are deemed to be ill-prepared to be married. There are many more examples – the voting age, the age to consume alcohol, among others. Thus, by the very same logic a juvenile who commits a crime must be treated different from an adult and given the opportunity to reform.
The problem with such an objective threshold will always be that the ‘one day below the threshold’ situation lingers. One day you are a juvenile, and the next day you are an adult. In reality, that is never the case, the transition is always gradual. One partial solution to the objective age threshold is to try and resolve the same, in a phased manner, by prescribing multiple thresholds for different situations – whether it is different, depending on the nature of the crime, or different in prescribing the period of reformation, or different in other situations. Though this somewhat addresses the problem, the intrinsic nature of a step is that each sub-step will still have the problem of ‘one day below the threshold’, albeit less pronounced than a simple ‘one age fits all’ criteria.
The call for disregarding the age of the juvenile completely, where the crime ‘deserves’ it or the person displays the ‘mental maturity of an adult in committing a certain type of crime’ brings in a level of subjectivity in determining the definition of a juvenile. The problem with subjectivity is that it is capable of being abused more often than where there is a more objective framework. Wealth, connections, media pressure, politics etc, could end up playing a pivotal role in determining who gets classified as a juvenile or not. If such subjective criteria were to be introduced, would the State be able to create a framework that clearly narrows down the ability of these provisions to be abused? It appears highly unlikely.
We are all appalled and enraged at the heinous crime committed in the Nirbhaya Delhi gang rape case – the call for an overhaul to the regulations is a fair one, but we must be constructive in our approach. As a civilization, we have moved on from being a society wanting an eye for an eye and a tooth for a tooth. It is all too easy to sit in an armchair and pronounce judgment watching raging television debates – playing the role of the judge, jury and executioner all in one.
Lowering the age threshold even if in the case of heinous crimes alone is a band-aid fix, playing on public sentiments, at the expense of children. It gives the State an easy way out—an opportunity to evade the uneasy question of the need a robust reformatory system which calls for financial investment in specialized services that include counseling, alternative therapies, life skills, vocational training, education, after-care and follow-up, backed up by trained counselors, psychologists, social workers, case managers, psychiatrists, supported by appropriate infrastructure.
Let us also focus our passion and outrage on making sure the reformatory system works.Kajol Menon & Nicole Rangel Menezes are directors at a child rights organization called Leher