This story has been updated.
India has passed a new law that would, in cases of heinous crimes like rape and murder, try 16-year-olds as adults. In such cases, the Juvenile Justice Boards—comprising a metropolitan magistrate or a judicial magistrate and two social workers—will have the discretion to decide whether the offender should be tried by courts of law like adults, or whether the offender should be tried as a juvenile.
A renewed demand for this change came after the release of a young man who was 17-and-a-half when he took part in the gang-rape of Jyoti Singh—better known as Nirbhaya in Indian media—in December 2012. The case shook up Delhi and sparked outrage across the world, calling for an end to violence against women in India.
If only he was six months older, the young man would have been facing the prospect of capital punishment like his fellow convicts. Instead, he was sent to a juvenile reformation home and, since his release, has been placed under the care of a non-profit organisation.
To prevent such an occurrence in future, many wanted that adolescents aged between 16 and 18 years should be tried as adults if their crime carries seven or more years in jail under the law for adults. There are at least five reasons why this is a bad idea.
The law wants the Juvenile Justice Boards to take a call in such cases of heinous crimes by those aged between 16 and 18 years. The boards will determine whether the crime was committed with a child-like mind, or an adult-like mind. It couldn’t be more arbitrary than this.
The law passed by the lower house of the parliament, and approved by the upper house today, reads, “The board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence… for such an assessment, the board may take the assistance of experienced psychologists or psycho-social workers or other experts.”
Already poorly equipped with infrastructure and a shortage of counsellors and child psychiatrists, and a growing backlog of cases, the Juvenile Justice Boards could come under heavy public pressure, allow themselves to be influenced by media trials and protests in determining which 17-year-old is child-like and which is adult-like.
Sending delinquents aged between 16 and 18 years to adult prisons for seven years or more will likely ensure that there is little chance of their reformation. Spending such a prolonged period in jail with other criminals will make it hard for young delinquents to come out of the cycle of crime and punishment.
Public opinion on crime cases that capture our imagination is seldom willing to appreciate that reformative justice is the primary aim of our legal system. Public opinion worries more about retributive justice. In being driven by retributive justice towards offenders that young, we are only helping create a society even unsafe. In the Lok Sabha, the draft bill was sent to a standing committee that didn’t agree with this clause. The standing committee noted, “(The) existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system.”
Age of consent
Sixteen or eighteen was also debated in the parliament in 2013, but in another context. The Justice Verma Committee set up after Jyoti Singh’s death had recommended that the age of consent in India should be lowered from 18 to 16 years.
What has the age of consent got to do with rape? All too often, courts see girls younger than 18 years, and even boys younger than 18 years, in cases where there was consensual sex or even marriage. Since the girl was a minor, her family charges the boy with kidnapping and rape. There have been cases where courts have refused to convict such an accused.
Many in parliament, including the then-opposition and now-incumbent Bharatiya Janata Party, vehemently opposed the idea of lowering the age of consent, since the age of marriage is 18 years. Bringing down the age of consent to 16 years, they said, would promote pre-marital sex. The government accepted the objection. What could be more threatening to our patriarchal politicians than the thought of young women making their own choices about their bodies?
Now, with a new law allowing Juvenile Justice Boards to send 16-18-year olds to adult courts and jails, chances are that moments of consensual passion could turn into 10 years in jail for the boy. In cases of inter-caste and inter-religious love affairs, the chances of misuse of the new provision are particularly high.
If a 17-year-old committing rape or murder should be tried as an adult, why are we unwilling to see 17-year-olds as adults in other contexts? If the age of juvenile delinquency is to be brought down from 18 years to 16 years, then why not let Indian youth vote when they turn 16? In many states in India, the legal drinking age is as high as 25. While we want to put 17-year-olds in jail if they have sex with a woman without consent, we don’t want to give 16-18-year-olds the right to consensual sex, ignoring the reducing age of puberty.
We won’t be happy with 16 either
Just a week ago in Delhi, a 15-year-old boy raped a seven-year-old girl. The next time a street child employed by a bus driver is made to participate in a gang-rape, and it becomes a matter of public outrage, we will demand that 15-year-olds should be tried as adults. One horrific case should not make us change the definition of a juvenile. There will always be a cut-off, and we will often be unhappy with it.
The young man convicted in the Nirbhaya case, is himself a victim of life and circumstance. He was an employee of the driver Ram Singh, an exploitative employer who wouldn’t release his salary. After the incident, media reports quoted unnamed Delhi Police sources as saying that the minor was the most brutal. The Juvenile Justice Board in its judgment found no evidence of this, not even the accusation that he was the one who inserted an iron rod in the victim’s vagina.
He was a street child with no known history of crime, a poor child who had escaped poverty back in his village, and in his questioning he has repeatedly said that Ram Singh has falsely implicated him. By all accounts, the juvenile was a victim of the adult world. If, as the new law proposes, he had been tried as an adult, he could have been facing capital punishment like the other convicts.
Update: After a debate today (Dec. 22), India’s upper house, the Rajya Sabha, passed the Juvenile Justice amendment bill to lower the juvenile delinquency age from 18 to 16 years.
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