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January 11, 2016

Juvenile (In)Justice Bill Criminalises Children, Not Rape!

[This is an AHRC Article, republished in the Kashmir Times and Counter Currents.]


The mob bayed for the blood of juvenile convict of 16 December 2012 Delhi gang rape case. With the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2015 in Rajya Sabha, it got the blood of India’s children on its hands. Yes, the JJ Bill has not much to do with rapes and murders. It in fact, allows trial of all juveniles accused of ‘heinous’ crimes as adults, in the adult justice institutions.

What are these heinous crimes? The government of the day, as all its predecessors, is very lenient on that. It defines any crimes carrying sentence of more than 7 years as ‘heinous’- rape and murders are definitely heinous but then it also includes charges the state love so much- sedition for instance.

The passage of the bill would not help much in controlling crimes against women, even adding death sentence in the punishments for rape did not. It would, however, help the government of the day in to use children caught in the hundreds of wars being waged within the republic- from Maoist insurgency in its heart to various ethnic and nationality struggles being waged on its peripheries. Would one, even with a cursory idea of how law enforcement agencies operate in such conflict zones, would be surprised seeing scores of under -18 years olds being slapped with charges like waging war against the country and then tried as adults to teach their parents and communities a lesson?

The passage of the JJ Bill would not be of help much in controlling crime against women but it will certainly give families yet another weapon to control their children and stop them from challenging casteist and patriarchal norms by falling in love. These families, as anyone with even a cursory knowledge of Indian justice system would be aware of, could earlier get their defiant kids in love to shelter homes by slapping charges of kidnapping and rape even for consensual sexual relations and elopements for marriages, now they can get them sent to prisons straight away.

Indian courts are not unaware of this oft used tactic by the families, generally the girl’s side to bring back their children- that is any male less than 21 years and female less than 18. The courts, when they realised that the cases were of love and not kidnapping, have often even tried to help these youngsters on threshold of adulthood. They would often try to save the girl from emotional and physical torture by not handing them over to their families but sending them to shelter homes. They would now be toothless if the boy is found to be aged a single day more than 16 years and would have to send him to adult prisons.

JJ Bill would not, and cannot curb rapes in a society that rewards rapists with Union Ministership and makes them chairperson of its parliament. It would certainly help the families even to control their ‘adult’ sons and daughters by claiming that they are minors. In a society corrupt to the core where getting falsified birth certificates is no tougher than buying a mobile phone in developed societies, after all.

Sadly, despite all the outrage against the rapists, juvenile or otherwise, these consenting adolescents are going to be one of the worst victims of the new law.They would, however, not be the only ones. The bill also threatens the children caught in the family feuds running for generations, a hallmark of most of Indian countryside. Who does not know that all members of the family including children get named in the first information reports lodged whenever such feuds turn violent? This Bill will see many of such children above 16 serving time in adult prisons.

And these are the real threats inherent in this Bill as it is passed by the Rajya Sabha. There are other and very valid arguments, but they are mostly beside the point. To count just a few, the bill falls foul of international juvenile jurisprudence, and many of the international covenants and treaty bodies India is signatory to. There is no dearth of studies providing evidence for the fact that lowering the age to juveniles in conflict with law to be treated as adult has not brought down juvenile crime rates in single country if not increasing them right away. The Bill also stands in contravention with Article 15(3) of the constitution of India which allows special legislation only “for” the children and not “against” them.

The second most worrying thing about the passage of this bill, after the threat it poses for Indian children, however, is mainstreaming of public anger and outrage as a legitimate source of lawmaking, something acknowledged by the lawmakers themselves. Take Indian National Congress MP and former Under-Secretary-General at the United Nations Shashi Tharoor’s view on the bill for instance. He had asserted during the Lok Sabha debate on the same Bill on 6 May, 2015 that

“If we pass this Bill, I say it to our treasury benches, posterity will judge us harshly. The child is our future. We must protect the child, rescue the child and not destroy the child. ... I must sadly accuse the Government of having chosen political expediency over justice.”

Even yesterday in the Rajya Sabha many a sane voice opposed the bill in its current form and recommended sending it to the Select Committee for further deliberations. And yet, at the end of the debate barring the Left wing parties all of them chose the same ‘political expediency’ over justice. They had to, perhaps, as Women and Child Development Minister Maneka Gandhi who moved the Bill and later replied to the debate consistently reminded the members that Nirbhaya’s parents, were ‘watching’ them from the gallery.

The passage of the Bill is a dangerous development in the life of the republic also because of the fact that age of consent for sexual activities remains stuck at 18 years for both girls and boys.

One can only hope that the civil society segment of the outrage industry learns its lessons at least now. The lesson, that outrage is no substitute to criminal justice reforms. Let’s hope that they learn, at least now, that mobs can lynch but not deliver justice. One needs a functioning legal system for that, a system that delivers and not keeps on piling up cases for trial with a backlog running in hundreds of years- like ours with more than 1,25,433 cases of rape alone awaiting trial in 2014, with 90,000 of them pending from previous years. One needs a legal system that addresses grievances and does not need outrage to do that.
Let’s hope till then, that the President sees the injustice inherent in the bill and returns it for a rethink, alas that is all he can do.

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