EIGHTEEN TILL I DIE?

 (PERSPECTIVE ON INADEQUACY OF CURRENT JUVENILE JUSTICE LAWS)

BY

Sujata Khanna, Bhavna Sharma and Anjali Mehta

The honourable Minister for Child and Women’s development caught us a bit by surprise. We read in the newspapers, her announcement that the age for trial in an adult court by an offender would stand firm at 18 years. This statement seemed to want to close the juvenile justice debate which is raging in India after a juvenile aged 17 years enticed a woman into a bus and brutally raped her along with five of his adult friends. A few weeks prior to the minister’s announcement, Justice Verma was asked to give a report on the circumstances surrounding this gangrape case and the prevailing lapses. To his credit, the learned justice reached out to each and every citizen of India, inviting their views and observations. His team and he painstakingly read through the scores of emails which reached them and in a months’ time gave their recommendations. In stark contrast, the honourable minister did not choose to reach out to her electorate at large for their views before pronouncing her statement. No doubt she was advised by experts in the field of juvenile justice and she is likely well - intentioned. Her good intentions however, though they may have pleased some of the NGO’s directly looking after juvenile delinquents, have left thousands of ordinary citizens deeply dismayed. We feel left out of the ambit of her concern. Why have our views not been taken into consideration? Does one have to be a juvenile or a delinquent to have the minister’s ear or sympathy?

However, this debate cannot and must not be swept under the carpet. We, the authors (and I am sure we speak for several others), feel the age limit for punishing juveniles for heinous crimes must be lowered to 16 years. Here are FIVE compelling reasons why;

1.       EVOLUTION IS AN ONGOING PHENOMENON

We simply cannot ignore the scientific fact that evolution is a still on-going process. Pick up any edition of a good scientific magazine and you will find articles replete with examples of how evolution is proceeding. It never stopped. Here are a few examples of such articles, amongst scores written on the subject. Peter Ward in the January 2009 edition of the Scientific American reiterates that not only are humans evolving continuously but the rate of human evolution may have increased. He says that humans continue to show genetically induced changes to their physiology and perhaps to behaviour as well. Dr. Rebecca Rogers Ackermann, Department of Archaeology at the University of Cape Town in her compelling article in the September 2006 online issue of Science in Africa, says that evolution and environment impact each other and future evolution may be possible even in our life time.

Even if we just look around us in everyday life, it is clearly noticeable that children are maturing faster... While many of us were ‘simpletons’ well into our teens, we can’t overlook the obvious fact that the current generation seems to be able to process information faster and seem more ‘aware’ of things at an earlier age. Babies today are born with a head full of hair and long nails. Gone is the bald pate of yesteryears! Sandra Steingraber Ph.D., author of a research paper “The Falling Age of Puberty in U.S. Girls” published by the Breast Cancer Fund (2007) outlines how the average age of menarche among U.S. girls has declined steadily.

Seeing that humans are evolving, it stands to reason that our laws must evolve in tandem with us. The laws of any country reflect the changes in the country and the times we live in. There was a time when slavery was legal, when shooting a native was legal and when apartheid was regularly practised. It was when people stood up and questioned these laws that things changed. People must keep reflecting and changing with the times. We can’t expect laws to be meaningful if they are not re-evaluated at regular intervals.

2. SEVERAL COUNTRIES IN THE WORLD PROSECUTE OFFENDERS YOUNGER THAN 18 YEARS OF AGE

Here is a look at how some other countries deal with juvenile offenders;

Juvenile law in the UK

There is a provision in the juvenile laws in UK to acknowledge and try juveniles with exceptionally serious crimes differently, disregarding age as the sole factor. More than enough examples are available of children 14 years or below who have been convicted for rape and indecent assault as the children were found of guilty mind (mens rea) . Much of the discussion about reforming the system centres on lowering the age to 14 or even 12 so that younger murderers may be sent to adult court. Attempts by several legislators in 1993-94 to adjust age provisions resulted in some changes, although not the sweeping across-the-board reforms many had argued for. In effect from January 1 is a law that lowers the applicable age of 707a provisions to 14 (from the present 16) and allows the use of the 707b-c process for 14-and 15-year-olds who are accused of committing murder (although not for the other serious crimes listed in 707b).

Juvenile justice law in the US

In some cases, (usually when the crime is particularly heinous), a juvenile may be tried as an adult, in which case they are subject to all the expectations, punishment, fines, and sentences of an adult court.

Juvenile laws in China

Out of step with UN rules calling for the “least possible use of institutionalization” (i.e., the UN Standard Minimum Rules for the Administration of Juvenile Justice or the Beijing Rules), China holds more than 60 percent of juvenile offenders in custody (either in prison or administrative detention) and places only 30 percent on probation.

There is, however, no universally defined age for when a young person stops becoming a juvenile and starts becoming an adult. In many cases the age is 18, but there is a great deal of variety throughout the world and even variations on juvenile law within the US

As far as the current Indian juvenile justice system is concerned, children are put into reformatory homes for three years or until they reach the age of 18. Sadly, these homes serve more to corrupt those who enter their portals than help them in any way. They are under staffed, under financed and suffer from an acute shortage of counsellors. Several children’s rights activists have made compelling and wonderful points on how it is the system which is at fault and not the child. True. However, we can’t ignore the fact that innocent people can’t be made to pay the price for failed reform systems either.

So we need to find a meeting ground where all these points are factored in: namely that the child gets a chance to reform but not at the expense of innocent citizens. Two ways to ensure this would be

1.      To segregate the mild – level offenders from the ones who commit heinous crimes

2.      Have very stringent criteria about who can leave a reform home after being thus ‘reformed’. It stands to reason that different levels of diseases require different treatments. For example, if someone has entered a reform home because hunger caused him to indulge in stealing, it is likely that he may need a lesser period of reform time than someone who has committed a heinous crime. To be truly ‘reformed’ a child committing offences like rape and murder may need 10-15 years of reform and counselling. Child rights activists should recognise this logic. Giving everyone a similar three year period of reform is illogical. Even if the desire is to avoid adult jails, at least the treatment and counselling has to follow a logical pattern. We would also benefit from high quality reform homes. If we can have world class IIT and IIM’s, why can’t we be truly democratic and have world class reform homes??

The bottom line:

Though the focus should remain on rehabilitation rather than punitive action, especially for the juvenile mind, ignoring the degree of crime committed by the same is not acceptable.
For e.g. The Penn state juvenile justice system’s main goal is "imposition of accountability for offences committed"….The idea being that the offender must repair the harm caused by their behaviour. They must be made to acknowledge the wrong impact of the crime on the community.

3 ELECTED REPRESENTATIVES IN GOVERNMENT HAVE A DUTY TO ALL CITIZENS, NOT ONLY TO DELINQUENTS.

The honourable minister, when explaining her stance, said she felt a need to protect the interests of juveniles. However we cannot take a narrow view and protect the interests of only juvenile delinquents. The government has a responsibility to all citizens. When particularly violent youngsters are given light sentences and let off on parole or set totally free, they pose a risk to other citizens who are not able to match them in violence. Especially at risk are other teenagers who are likely to be the social group these teenagers hang out with. There are several examples where criminals have been let off on parole and have been found to commit the same offences again.

We also need stricter parole laws:

In most American states, aftercare, termed re-entry of the juvenile after remand is closelysupervised by juvenile parole officers. Juvenile parole counsellors reintegrate offendersinto the community through various rehabilitation programmes. In Washington, there are 4 types of parole..intensive, enhanced, 30 day transition and sex offender parole.

(The Sex Offender Registration and Notification Act ("SORNA"), requires sex offenders convicted before its enactment, including adults and juveniles, to register with the National Sex Offender Registry.

4.A HIGH PERCENTAGE OF PEOPLE COMMITTING CRIMES FALL IN THE 16-18 YEAR AGE GROUP AND STATISTICS REVEAL THE NUMBER IS RISING.

It has become a cause of concern that many crimes are being committed by youngsters. They have the physical strength to execute them and a greater degree of the recklessness of youth.It is believed that many smart alec criminals get youngsters to ‘execute’ the crime for them on payment knowing full well that the chap will be out fairly soon. The sons of well-placed people in cities and villages who have a ‘go’ at girls before their 18^th birthday don’t suffer from any terrible consequences. Rather it is the poor girl victim who pays the physical and mental price for the young boys’ uncontrollable hormonal urges. It would be kind to remember that the victim has feelings too! When someone who does this to her gets away lightly, what is it going to do to her self-esteem? Or do girls not deserve a mention when worrying about juvenile delinquent laws? Why is the justice system not focused on the victim when the justice is ostensibly being gained for the victim?

Here are some statistics on the trend of juvenile crimes in India

In 2001, juvenile crimes in India were pegged at 16,509.

In 2011, that figure stood at 25,125.

This reflects an increase of 65% in 10 years.

NCRB( National Crimes Record Bureau) data for Delhi suggests that cases of murder committed by people younger than 18 increased by 85% between 2001 and 2011, robbery by 540%, cheating by 211% and theft by 51.46%. Amod Kanth, general secretary at the Prayas Institute of Juvenile Justice, says 16-18 is usually the age when teens become violent.

The country’s crime bureau recorded the following number of rape cases involving juveniles which sure a clear upward trend over the years:

Year       Rape Cases   

2011 ….1,210

2010…….858

2009 ……798

2008…….776

 The NCRB data for 2011 also shows that 64 per cent of all juvenile criminals fall in the age group of 16-18.This should send a warning signal to law makers of our country about the need to look at framing a more effective juvenile law.

5.WE HAVE AN OBLIGATION TO INTERPRET LAWS IN STANDARD WAYS AND NOT SUBVERT JUSTICE

The public is baffled about the legality of interpreting the law in completely opposite ways in similar types of cases.  Is the law supposed to change with a judge’s own interpretation of it? That would make for a very chaotic legal system!

In the Suryanelli rape case, the accused were acquitted on the premise that the sex was consensual and agreed to by the 16 year old girl. The judgement in that case therefore seemed to indicate that at 16 years of age, the juvenile is deemed responsible for her actions. In rape cases involving 17-18 year old boys, the boys are given juvenile sentences as they are not deemed fit enough to really know the consequences of their actions. The public would beg to ask of the legal system:

Is a 16 year old a juvenile or an adult? If a juvenile, how can consent have been given?

 Are laws meant to protect and secure us or to be such as to provide loopholes for offenders to slip through easily?

Also, if the age of childhood is 18 years then why is right to education for all ‘children’ implemented only till 14 years of age? Why this dichotomy of interpretation when talking about legal and constitutional rights of children? Why does the child labour act talk about 17 years being the age under which a child cannot work? Why not 18 years?

These are questions we definitely hope to have an answer to.

Acknowledgement: The authors wish to thank Dr Amarjeet, gen secy INTUC (CPI) for her valuable time and suggestions.

Address for correspondence: mehtanjali@gmail.com