A Bill aimed for Justice to womanhood, but devoid of injustice to Juveniles: The amended Juvenile Justice (Care and Protection of Children) Bill, 2014, replaces the existing Juvenile Justice Act, 2000.
Though Justice JS Verma Committee report had ruled out lowering of juvenile age from 18 to 16 years despite demands from various quarters, the parliamentary committee on empowerment of women has asked the government in 2013 to lower the age of male juvenile from 18 to 16 years so that the offenders involved in heinous crimes against women could be tried under the criminal laws.
The committee was of opinion that in spite of the fact that the Juvenile Justice Act, 1986 was amended in the year 2000 and the age of juvenile males and females was brought at par as below the age of 18 years, it has not produced the desired results. It did claim that crimes against women committed by juvenile males have shown an upward trend on observing a total of 22,740 IPC crimes which were committed during 2010 resulting increased level of 25,125 crimes during 2011. The committee could further analyse the profile of juveniles and reveal that most of the crimes have been committed by male juveniles in the age group of 16-18 years!
In 2010, juveniles were involved in 858 cases of rape, 391 cases of kidnapping and abduction of women and 536 cases of molestation which rose to 1,149 cases of rape, 600 cases of kidnapping and abduction of women and 573 cases of molestation in 2011. Of course the reasons for juveniles getting entangled with serious crimes vary from impulsive disorder, peer pressure, disturbed environment to broken family, aggression, lavish lifestyles and uncontrolled freedom from parents.
We have read about many incidences of savage rapes from various states one after another right from the day the unprecedented crowd crusading against atrocities and rapes were going on at New Delhi after the DEC- 16 Nirbhaya incident.
The delinquent who was just short of few months to reach the attained age- 18, could get the advantage of the same despite becoming the prime accused and was responsible for causing heinous attack of the victim with an iron rod. It was really a disgrace to the Juvenile Justice Board to convict him just with a peanut punishment of three years despite he was convicted previously for committing a robbery on the carpenter from the same bus on the fateful night. He did get a credit of eight months already spent in the jail during these days; thus he was in the custody at the juvenile home only for two years and four months. This evidently proved the flawed justice system which can never act as a deterrent to sexual assaults happening in our country.
There is no guarantee that rapes will not happen as long as we have men with perverted thoughts who get sexually aroused and will see a prey in any female under any vulnerable situations. I am not exaggerating; actually majority of culprits are expected to be aware of the intensity of an offence on rape, but they still dare to take risk as they are aware of host of ample loopholes to escape from the prosecution with the connivance of the corrupt local police or politicians. Ironically the judgement in respect of the punishment to the minor who was the main culprit in the Nirbaya case had not considered as a major!
It is very regrettable that India could not get pace with the world in amending the Juvenile Justice Act while the whole world from U.S to China had rightly amended when crimes committed by Juvenile delinquents have registered an increasing trend. Our international legal obligations never prohibit us from amending the Juvenile Justice Act. It is high time that all persons from age 16 – 18 be tried in the adult criminal justice system for their involvement in heinous crimes of rape, kidnapping etc. They should not get any protection of law as Juveniles. The changed rules should have to be made applicable to all cases pending in any court of law.
If the masculine act of rape or a brutal attack on women are committed by boys below the age of 18, I would say even if 15 or 14 in case the physical power and the ‘oversexed’ state of mind of a minor will be no way inferior to that a matured adult culprit. In reality the basic mindset of Juveniles and young adults varies from society to society.
Youngsters including juveniles in slums wherein savage culture prevails are prone to encounter sex or violence even at age -14. They are wooed not only into petty crimes but for organized burglary, abductions or the so called ‘Quotations’ (Contract Killings). Similarly Juveniles in highly elite societies with less parental care fall prey to alcoholism, pornography, and fanatical sexual interests etc. which prompt them to indulge in rape or molestation. It was not only unfortunate but deplorable that the Verma Committee ignored to take note of these ground realities prior to proclaim for showing sympathy to all Juveniles under age-18.
I am was very much contented when the Mumbai Sessions Court’s gave the verdict of death penalty in April,2014 to three repeat offenders in the Sakthi Mills gang-rape cases which made the delinquents first in the nation to get the maximum punishment stipulated under the newly enacted Section – 376E of IPC. It was incredible that the new section of IPC incorporated under the amended Criminal Law facilitated the judiciary to intrepidly order the death sentence to repeat offenders of sexual assaults. The Sessions court deserved full praise for awarding the punishment for the crime that was not only against the victim and family but also against our law abiding society.
The Principal Judge Shalini Phansalkar had rightly affirmed that the common man will lose faith in the system if any leniency is shown and there should be zero-tolerance of such crimes. I have strongly advocated the remarks and suggestions of Justice Usha Mehra, who had submitted a report on the Nirbaya case. She had put forth an outcry against attempts to dilute the definitions of juvenile and advocated stringent punishment at par with adults for juvenile delinquents as well for heinous crimes. Her report enlightened the nation to initiate for a consensus approach and suitably incorporate fresh clauses in the anti-rape law to provide death sentence to perpetrators of brutal crimes. According to her the intensity of the punishment must be nothing less than capital punishment especially when rapists commit heinous sexual crimes with perversity and sadism.
How can our national government, governments in states wherever rapes were happened and particularly the local administration in our cities like New Delhi and Mumbai will erase the blemished scar on the image of India while UNICEF had already recorded on crimes to the extent of 30,000 happened during 2011 in India wherein one out of three victims are children! More than 7200 children including infants are raped every year and of course many more cases are not reported! Can we boast as the second largest democracy the world with these statistics that denounces our nation?
I quote the saying by Joseph Hall, the famous satirist and moralist and an English Bishop -. ‘’A reputation once broken may possibly be repaired, but the world will keep their eyes on the spot where the crack was’’. Still we have no option than to repair the broken reputation. We have been boasting our glorious culture and heritage whenever something untoward occurs elsewhere; we should know that we have lost our righteous legacies and we have diminished our entity of our nation to a very low level. Incensed and disenchanted cries of reaction by people of this country should not fall into deaf ears.
There is every reason for us to believe that ‘death penalty’ is not to be abolished in India while I strongly feel that, it will be the only pertinent deterrent against future crimes that entail death sentences.
The definition of a Juvenile delinquent has to be necessarily brought down to the age limit of 16 while drafting fresh laws to overhaul the obsolete provisions of all laws that are ostensibly to safe guard women’s safety. We should know that when Juvenile Justice (Care and Protection of Children) Bill,2014 was in the Lok Sabha in the last year and referred to the standing committee which recommended keeping the legally defined age of juvenile at 18 years, the government did take a bold decision to bypass the recommendations of the committee and opted to go ahead with reduction of age of juvenile offender to 16 years when found involved in a heinous crime.
Halfheartedly the government decided to delete a clause which mentioned that “any person, who is apprehended after completing the age of 21 years, for committing any serious or heinous offence when such person was between the age of 16 to 18 years, then he shall, subject to the provisions of this Act, be tried as an adult”. Then the Bill was passed in Lok Sabha on Thursady 7th May, 2015 and referred to Rajya Sabha.
During the the debate on the bill in Lok Sabha, Women and Child Development Minister Maneka Gandhi confirmed that she had never neglected the pro-child efforts but wanted to strike a balance between justice to victims and rights of children. While citing the National Crime Records Bureau (NCRB)’s data, “around 28,000 juveniles committed various crimes in 2013 and of them, 3,887 had allegedly been committed heinous crimes”, She reiterated that the new law was intended to be a deterrent to ensure that juveniles refrain from crimes and avoid spoiling their lives.
Finally a Tuesday – 22nd December, 2015 became a historical day for our womanhood. Though belated, Rajya Sabha passed the Juvenile Justice (Care and Protection of Children) Bill making Juvenile aged between 16 and 18 at par with adults in respect of heinous crimes committed by them due to pressure from whole nation’s compassion to the parents of the ‘Nirbhaya’ victim who campaigned for justice upon the release of the one of the delinquents upon getting immunity due to the age factor. Still this is not to be seen as a denial of justice to any juvenile. Because the Juvenile Justice Board has to carefully review all cases and give their consent whenever juvenile delinquents get involved in heinous crimes and entail to be treated not as a minor but adult prior to the trial in any court.
Juvenile Justice Boards will comprise psychologists, social workers and experts, according to the women and child development ministry. All cases have to be brought before these boards, which will then assess the mental and physical capability of the juvenile and decide whether the perpetrator, a boy or girl is to be tried as an adult or not.
Probably CPI (M) was not convinced with this advantage to juvenile delinquents below age-18, but above age-16, that may be the reason for its accusation of passing the bill ‘just on sentiments’ and the subsequent walk-out by Sitaram Yechury together with his team demanding the said bill is to be sent to a Select Committee.
Women and Child Development (WCD) Minister Maneka Gandhi had rightly said that the legislation was a “nuanced” one and was much needed to act as a “deterrent”. Since the statistics did prove that sexual assaults committed by boys aged above 16 and below 18 are on the rise, there is nothing wrong in lowering the Juvenile age limit to 16 only in the case of boys. Still all 16+ juveniles, both boys as well as girls committing heinous crimes can be booked under criminal laws. The amended Juvenile Justice (Care and Protection of Children) Bill, 2014, thus replaces the existing Juvenile Justice Act, 2000.
I am hopeful that President will instantly bestow his assent on the legislation and enable the new law come to being with immediate effect. I wish that the whole nation celebrate the Bill that is aimed for Justice to womanhood, but devoid of injustice to Juveniles.
Let the critics to this historical legislation make hue and cry for the deviation from the basic doctrine of “care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children ….” As stipulated in the first ‘Children Act of 1960’ which had been amended later on as a crime and punishment mechanism. This was reflected in the reluctant Supreme Court’s (Bench of Justices A.K. Goel and U.U. Lalit) in questioning the Delhi Commission for Women – “why did you not do it in the past three years?” while countering it’s demand to further detain the juvenile deliquent of Nirbhaya case till he reforms himself.
Supreme Court cannot be blamed while construing the claim that the juvenile convict has been radicalized, as a proof of poor implementation of the existing law. The court did even caution that it will become a violation of section 16 of the amended Act of 2006 if it heeds the request for shifting him to another place and kept under protective custody!
The Supreme Court expressed its subjection on 21st December,2015 to detain the accused under the Juvenile Justice Act stating that maximum period of incarceration in the Juvenile Justice Act, 2000 was not more than three years, the disappointed Chairperson of the Delhi Commission for Women- Swati Maliwal declared – “it’s dark day in history of the country” and gave an ultimatum to Parliamentarians to immediately pass the Juvenile Justice Amendment Bill that is pending in Rajya Sabha. She had tweeted – “Appeal to Shri Hamid Ansari ji to present Juvenile Justice Amendment in Rajya Sabha today. Rajya Sabha, please pass dis Bill. Don’t further let down Nirbhaya ” as a request to Vice-president for presenting the Bill in Rajya Sabha, the upper House.
At this time let me brief on the status of the Criminal Law (Amendment) Bill, 2013. It was passed by Lok Sabha ( on 19.03.2013) and Rajya Sabha ( on 21.03.2013), received Presidential assent on 2nd April 2013 and had come into force from 3 April 2013.
The said Bill had been strongly criticized by several human rights and womens’ rights organisations for not including certain suggestions recommended by the Verma Committee Report like reduction of ‘age of consent’, which was the minimum age at which a person is considered to be legally competent to consent to sexual acts. Of course it should not be confused with the age of majority or criminal responsibility etc. Fortunately the then central cabinet took note of the disadvantage to sexual victims if the age limit for ‘consent for sex’ is not maintained at age-18 and reduced to age-16. The then GoM rightly took note of the disaster in the offing if the age limit for ‘Consent For Sex’ is reduced back to age-16.
I did write against the illusion of advantage to minors in the age group of 16 to 18 by reducing the ‘consent for sex’ to age-16 during their transition into adulthood which is more vulnerable to sexual instinct and also prone to sexual molestation or assaults. It was fantastic that the government could know that it would be truly disastrous. In fact it was raised from 16 to 18 years based on the Criminal Law (Amendment) Bill, 2012 approved by Union Cabinet in April, 2012, factually terminating the ‘age of consent’ for minors who are above 16, but below 18 wherein any sexual relations with a girl or even a boy below age- 18 is considered as RAPE, regardless of whether it is consensual or not. Our young girls will get protection of law as the age limit is maintained at age-18 itself. This prevented perpetrators getting relief under law if girls sexually assaulted by them are minors at the time of the incident.
Very unfortunate that this protection of law could not be extended to the Suryanelli victim as she had suffered the rapes prior to the amendment in 2012 and had crossed age-16 then as elucidated in his decree by the ustice in the Kerala High Court- R.Basant. I would say that very cleverly R.Basant had used the then minor victim’s detrimental ‘age factor’ to the beneficial acquittal of 35 perpetrators who raped her; but still he did shed tears for her!!!!!!
Women and Child Welfare Ministry had truly wanted to maintain the age limit for ‘consent for sex’ at age-18 itself. If the limit is lowered to 16, then there are chances for perpetrators of rapes get exonerated from punishment from many rapes while they can cunningly prevail on courts proving that rape victims who are aged above 16 have consented for sexual intercourse, despite being minors! Many culprits will get shelter under law and will get relieved from rape charges as in the case of the verdict on ‘Suryanelli’ trial at the Kerala High Court. Thus the reduction of the Juvenile (boys) age limit to 16 should not affect the Juvenile (both boys and Girls) age limit in respect of ‘consent for Sex.
By Madan Menon Thottaseseri
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