Crime and commensurate punishment
Today, the Juvenile Justice Bill that seeks to equate 16 to 18-year-olds with adult criminals will be presented in the Rajya Sabha. Will the rights of children below 18 be protected here at least?
It is also called The House of Elders. And beginning today, the Rajya Sabha needs to play its role, to protect not only the teenagers of this country but also their parents. For today, the Minister of Women and Child Development is slated to demand the passing of a bill, which if made into law, will instantly violate every elected government’s compact in protecting all its people, be they voters or children. As also every international pact that India has signed guaranteeing the rights of children below 18 years of age.
The government has already passed the Juvenile Justice Bill in the Lok Sabha. Put it down to its numbers therein, or the personality-oriented politics of today that makes something so fundamentally issue-based almost irrelevant. Or that they don’t know that they have sent teenaged boys (and girls) to certain sodomisation in adult jails. Or perhaps some of them do know, but presumably by their rough reckoning, a little “punishment” befits a “heinous” crime. But whatever the case, they don’t care that in throwing teenagers aged between 16 and 18 to the wolves, under the guise of punishing them for “heinous” offences, is to go against the legislative commitment in the Preamble of their own Bill. The Juvenile Justice Care and Protection of Children Bill, 2015 is on the Internet, and its lofty opening paragraphs go against the ruling. As does the report of the Parliamentary Standing Committee to which this Bill was sent, which rejected the clause.
The “16-18 heinous offence” clause in the Juvenile Justice Bill, apart from being wrong at so many levels is also a failure of imagination to come up with a collective political solution that can stand the test of time. This author has been fortunate to be part of a process that began when Atal Bihari Vajpayee was Prime Minister. It eventually culminated into the watertight Protection of Children from Sexual Offences Act or POCSO 2012, under the United Progressive Alliance government, protecting minors (understood as being under 18) from adults (above 18) from any and all forms of sexual abuse. There is a quiet sort of pride in knowing that a nation came together — government, bureaucrats, police, retired judges, stakeholders such as principals and grandparents — with suggestions for a law so comprehensive that today it has become a ready reference for other countries to consider. Incidentally, the watertight POCSO will be tinkered with, should the government succeed in treating 16 to 18 year-olds as adults.
During POCSO, a fierce debate had risen on whether 16 to 18 year-olds should be considered as minors at all. Readers might recall how middle-class, working professionals and young parents vehemently opposed the lowering of the minor age, including in this newspaper. Their voices were heard. Agreeing with them were the present Finance Minister Arun Jaitley, present External Affairs Minister Sushma Swaraj, and the present HRD Minister Smriti Irani.
Why do teenagers not have these three powerful Ministers on their side today? Especially since 16-18 year-olds are to be judged for “heinous” crimes without explaining what “heinous” means? The Minister does not bother to spell out (consultations with the Law Ministry and an approval by the Prime Minister would have served the purpose of this Bill) on what actually constitutes “heinous”. Instead, bizarrely, the word is equated with its punishment.
There are two other innocuous, but deeply disturbing, words that find their way into the Bill. Chapter I, Page 5 (33) says “Heinous offences” includes offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. The word “includes” lays the entire system and not just the juvenile vulnerable to misinterpretations and gross misuse by those with different agendas at every level the case goes through. The author has submitted this to the Parliamentary Standing Committee, and also sent emails and letters to the Prime Minister and other Ministers and MPs.
“The Bill that can turn into a law today has a word so innocuously draconian that it can affect the rights of all Indian children in future, as also their parents. ”
Second, Chapter II, Page 8 (14) says under ‘Principle of fresh start’: All past records of any child under the Juvenile Justice system should be erased, except in special circumstances. This author has pointed out that the phrase “except in special circumstances” is dangerous and leaves something so sensitive totally open-ended. It can lead to, among other things, racial profiling of the child — and his/ her family — on the lines of family background, caste, community, and religion. The “circumstances” must be specified.
Heinous offences
There is no stated legal definition of the word “heinous”. There is no law to quantify or qualify what “heinous” should mean. In such a case, it could just as well be used in a civil context and not just a criminal one. When asked about the definition of “rarest of the rare”, Supreme Court Advocate Subhangi Tuli says the following. “In Bachan Singh vs. State of Punjab(1980), the Supreme Court said that the death sentence can be declared by judges when the option of life imprisonment is “unquestionably foreclosed”. It also lays down the principle of weighing aggravating and mitigating circumstances. A balance sheet has to be drawn up, to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime that renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?”
There is no stated legal definition of the word “heinous”. There is no law to quantify or qualify what “heinous” should mean. In such a case, it could just as well be used in a civil context and not just a criminal one. When asked about the definition of “rarest of the rare”, Supreme Court Advocate Subhangi Tuli says the following. “In Bachan Singh vs. State of Punjab(1980), the Supreme Court said that the death sentence can be declared by judges when the option of life imprisonment is “unquestionably foreclosed”. It also lays down the principle of weighing aggravating and mitigating circumstances. A balance sheet has to be drawn up, to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime that renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?”
Suppose the above guidelines are also taken for “heinous offences by those in the 16-18 age band. Suppose “death sentence” and “life imprisonment” (since neither are applicable to citizens under 18) are replaced by “adult court” and “adult jails”. Can the state-level Juvenile Justice Boards (JJB) be trusted to apply the same guidelines strictly to juvenile crimes? But they are not qualified for such gravity; in fact most state-level JJBs have no domain-specific professionals on board other than the Magistrate. It is no secret that the juvenile justice system is as broken as the adult legal system is overburdened.
Thus, “heinous offence by those between 16 and 18” can mean anything. It will include the violation of rights of not only a teenager (for in the current collapsed law and order, all are guilty until proven innocent) but also, by extension, the violation of the civil rights of any parent who has a 16 to 18-year-old who has been foolish enough to cross a boundary. Can the police use “heinous offence by 16 to 18-year-old” to enter an ordinary home, when there is no definition of it or specific law on it, for the purpose merely of harassing the parents? In a country where rights can quickly turn into shifting sands, that should set alarm bells ringing.
The Bill that can turn into a law today has a word so innocuously draconian that it can affect the rights of all Indian children in future, as also their parents. “Heinous offences”, if it stands in the statutes without definition, condemns India’s future citizens. No government, once it holds such a sword over its citizenry’s head, will reverse it.
Yes, even if only a minuscule percentage of teenagers in the 16-18 age group are rapists-murderers, the problem needs to be addressed. Approximately every second person in India is less than 30 years of age today. This means increasing crime among teenagers, especially sexual crimes. Accordingly, this author has submitted seven detailed solutions (including the definition of the word “heinous” and the idea of specially structured juvenile jails) aligned with international and UN conventions that specify that all offenders under 18 should be treated by law differently from an adult. Justice must not only be seen to be done but must also be actually done. And speedily, unlike the delayed process of the adult system.
A politician’s carelessly enacted law can, instead of “reforming” a teen-convict, create the face of pure evil. When these boys (and girls) come out from adult jails, they will be hardened criminals, drug addicts, and members of gangs that will have recruited them while they were inside. They will have been raped and sodomised many times over. They will then wreak vengeance on other young bodies in society.
It is now over to the House of Elders. They must ensure that no law is passed in an artificial hurry if it needs to be perfected. After all, why should it be so wrong to get it fully right?
Author-activist Pinki Virani catalysed India’s Passive Euthanasia Law, and the law against sexual abuse of children (POCSO) includes several of her suggestions.
