11/01/2016 3:11 PM IST | Updated 29/08/2016 9:02 PM IST

Why The New Juvenile Justice Law Is An Insult To Nirbhaya

Following the widespread public outcry over the December 2012 rape and murder of "Nirbhaya", and the protests that gained momentum again in 2015 due to the release of the juvenile perpetrator of the crime, the Rajya Sabha passed the Juvenile Justice Bill (Amendment) 2014. Preceding this, activists and the parents of Nirbhaya took to the street demanding amendments in juvenile law, and this clearly put pressure on Parliamentarians, especially the Congress-led opposition who focused largely on disrupting Parliament proceedings for much of the winter session. (I wish had the people created such pressure for the smooth running of Parliament, and thus the nation!)

Of course, it is easy to understand the outrage around the juvenile's release.

When the Supreme Court declined to extend the confinement of the juvenile convict citing that they don't have legislative mandate, naturally it indirectly meant that the Parliamentarians whose work is to legislate failed in their duty by indulging in cheap politics that stalled Parliament.

Parliamentary decisions should not be carried out just in emotion and anger. Will the political class reconsider and legislate a better juvenile act?

I feel the SC rightly said that if it orders the extension of confinement of the juvenile in the absence of legal provisions, it would amount to a violation of fundamental rights.

After the new Bill was passed, Nirbhaya's parents expressed their approval and said they hoped it would serve as a deterrent. They also added, however, that their child did not get justice.

Technically, justice is very different from punishment offered by courts. Courts have to function within frames of laws that are valid in the particular country. Justice on the other hand is defined differently in different countries and in different contexts.

Punishment by law is done mainly for two purposes. First is to make the convict suffer according to the law if a crime is done. Another is to give an example to the society so that people are discouraged from committing a crime. Democracies generally form laws which give punishment to the guilty not as a means of exacting revenge but in order to make the guilty pass through a correctional phase, except in some severe crimes.

Post the Nirbhaya case, there was a demand for a tougher rape law and for amendments in the Juvenile Justice Act. The Justice Verma Commission recommended some tougher punishments (except death penalty) for rape crimes, which were accepted by then UPA government. In August 2014, the NDA government brought a Bill to amend juvenile justice laws.

However, I do not favour the way this Bill was passed in haste. Though I rarely agree with the left parties. in this case I feel that they are right in asking the Bill to go to the select committee for further diligence as in the present form, the amendment to bring down the age is really useless.

People were agitated because of the release of the juvenile convict. But one should remember that the present Bill can't be implemented retrospectively to apprehend the released juvenile convict. Thus, the amendment should have been done with due diligence.

The present amendment has reduced the age of juvenile offenders to be tried as adults from 18 to 16.. But there are 15-year-old teens also who are accused of rape. There are 14-year-old murderers. Thus, how important is age really? For example, if a family plans to take revenge against another family, they might decide to make their 15-year-old perpetrate the crime, knowing he'll be released at the age of 18.

Further this Bill has a provision that if children are engaged in militant activities their punishment would be a maximum of seven years. Just imagine had Ajmal Kasab just 15 years 11 months and 28 days old during 26/11, would be a free man by now!

In my opinion criminality is a far more important criterion than age. Thus, the amendment should not be in the age of criminal culpability. The amendment should be in terms of non-applicability of the juvenility condition in the case of crimes like rape, murder, war against country etc. That's why legislative business should never be done in haste.

In the present case, this amendment was passed in the name of Nirbhaya. I think it is an insult to her as the right act was not legislated.

Parliamentary decisions should not be carried out just in emotion and anger. Will the political class reconsider and legislate a better juvenile act?