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New Juvenile Justice Act: A Setback For Child Rights

01/01/2016 9:19 AM IST | Updated 15/07/2016 8:25 AM IST
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Recently, the juvenile convicted in the Nirbhaya case was released after serving the maximum sentence possible under the Juvenile Justice (JJ) Act. There was an unprecedented clamour for the juvenile to be further "punished", which was laid to rest by the Supreme Court. However, under renewed public pressure in the wake of the juvenile's release, the Parliament in its wisdom has enacted a new JJ Act.

Societies that inflict violence on children also experience violence by children.

The new JJ Bill allows juveniles aged between 16-18 years accused of heinous crimes like rape, murder, arson etc to be tried under the Indian Penal Code, i.e. tried as adult offenders. According to this law, matters are to be presented to the JJ Board on a case-by-case basis, which will then decide --- based on an assessment of the mental state of the child -- whether the crime was committed with/without an understanding of its consequences. Based on this, they will be tried under either IPC or the JJ Act. It is heartening to see that policymakers are listening to public opinion, but they also need to hear the voices from the marginalised communities. The spirit of real democracy is, as Mahatma Gandhi says, when the welfare of poorest of the poor is prioritised by government. The issue of lowering the age of a juvenile is far more complex than is apparent.

Children learn what they are taught

Societies that inflict violence on children also experience violence by children. The fact that children are in reality not fully mature is supported by studies in neuroscience. Psychologically, researchers have clearly found that older adolescents (14-17) are actually more prone to reckless behaviour. In fact, the act of engaging in such high-risk crimes only points towards a lack of maturity, rather than an excess of it. Instead of creating an enabling environment for our children to grow, as a society we are failing them and punishing them

Selective and wrong reading of data

It was sad to see the honourable members supporting the Bill relying on incomplete data, thereby creating a false impression that juvenile crime is increasing. According to the National Crime Record Bureau, only 33,526 of 28, 51,563 cognisable crimes were committed by persons below 18 years in 2014, which is only 1.2% of the total. Out of 44 crore children under the age of 18, only 2,000 are allegedly involved in any kind of rape.

It was sad to see the honourable members supporting the Bill relying on incomplete data, thereby creating a false impression that juvenile crime is increasing.

Potential for misuse

Ironically, this Bill primarily affects the most marginalised and poor sections of our society. More than 50% of the children in conflict with law come from illiterate families and extremely poor homes. This law has the potential for misuse by framing false cases against most vulnerable children, especially where they are involved in elopement/consensual sex. Children living in conflict areas would be the worst affected.

Adult prisons increase reoffending

As Shashi Tharoor pointed out in a debate in the Lok Sabha in May 2015, reoffending increases by 80% according to studies done in US. In a stark irony, even though we have not put adequate resources in our JJ system reoffending has come down. According to data from the NCRB, the number of juveniles apprehended for reoffending came down from 9.5% in 2013 to 5.4% in 2014. We cannot send children to adult prisons which are nothing but "crime ki paathshala."

Twenty-three states in the US passed laws to de-link juveniles from adult justice systems. And, yet we here in India are putting in place the same failed model.

Punitive measures are not as effective as reformative measures. This is the reason that the JJ Act is not based on the principle of retributive justice.

The Parliamentary Standing Committee in February 2015 held extensive consultations and strongly recommended against it. Honourable members have passed an act in apparent haste and under undue pressure from a charged group of citizens. For us who work for child rights it is a sad occurrence, just as it is a setback for child rights and women's rights.

Need for increased investments in strengthening JJ system

The Union Budget provides a dismal picture. The need of the hour is to increase investment into developing infrastructure, recruiting qualified staff, restoration, rehabilitation and education. Only an average of 0.045% was allocated of the total annual budgets for child protection during 2001-2014 suggests that successive governments have not considered children as their priority. The current day government should prioritise this need in the upcoming budget.

Ultimately, any legislature cannot hope to find a solution by making ad hoc amendments to the Act, when there is a need to reform the justice system.

Violates international treaties

Reducing the age of juvenility will violate guarantees made under the Constitution, the United Nation Convention of Rights of the Child and 'Beijing Rules'. In September 2015 at UNGA, India shared its vision of SDGs to make the world safer and a better place for global population. This move could send wrong signals about India's commitment towards international treaties and may have repercussions for the nation.

Save the Children India has maintained that the lawmakers need to rely on expert opinions and evidence rather than emotional popular sentiment before drafting such an important piece of legislation. Ultimately, any legislature cannot hope to find a solution by making ad hoc amendments to the Act, when there is a need to reform the justice system.

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