#NoPrisonForChildren: Why Lowering The Juvenile Justice Age Is A Step In The Wrong Direction

“There can be no keener revelation of a society’s soul than the way in which it treats its children.” - Nelson Mandela, as quoted by the BJP manifesto on child protection laws in the country.

[Editor’s Note—Recently, the government’s hasty decision to amend the Juvenile Justice act, allowing minors above the age of 16 to be tried in courts as adults, came to our attention and we felt compelled to bust certain myths around the issue. Taking statistical and societal complexities into account, we’ve felt from the start that this is not a bill that should be passed without deeper conversation. A conversation every single one of us ought to be a part of. We’ve also maintained that imprisoning children is not the way to correct the deeper ailments Indian society is afflicted with. So in an attempt to unravel the issue further, we have been working on a series of stories to provide us with more insight into the world of child criminals in India. Not to mention the terrible chasm that exists between reformation and incarceration.Watch out for them and get further involved by visiting this website for more information on the issue and signing this petition.]

When I was 16 years old, my best friend and I were offered Rs. 5,000 to deliver a briefcase from Churchgate to Vadala. The offer came from a trusted friend and his only condition was that we “don’t open the case.” After far too much thought for two supposedly well-adjusted teenagers, we eventually declined despite being seriously tempted by the chance to make such quick money. Had we done it and been caught (presumably with narcotic substances) we might have been let off with a judicial slap on the wrist back in 2006, brutal parental disciplining notwithstanding. If this were to happen in 2014, however, we could have been put in prison for 7 years or life, for a decision we would never have made had we been a little more mature. The cabinet’s recent decision to amend the Juvenile Justice act that allows minors above the age of 16 to be tried in courts as adults, has assured that. 

The above example was by no means an attempt to trivialise an issue which is largely being portrayed as a safety hazard against juvenile rapists and murderers, catalyzed by a juvenile’s involvement in the brutal Delhi gang rape of 2012. It is, however, an effort to showcase that the consequences of this amendment are more far-reaching than you think – and much closer to you as well. We have a tendency to be swayed in whichever direction the media overkill is blowing but just this once, we need to make sure our emotions about one issue don’t fog up our judgment about another. You thought this amendment would only affect marginalised communities? Think again. You thought public safety would improve because of it? Think again. Most importantly, you’ve been led to believe that the data backs it up. This just isn’t true either. 

By 2020, every 3rd person in this country will be close enough to this targeted bracket for it to sting so allowing this law to be amended in this capacity requires your position more than ever too. Drown out the biased din around you, and take a look at these--a few glaring realities that defy all the things you might have assumed to be true.

Assumption #1: Murder & Rape are the only crimes juveniles will be tried for as adults.

The Reality:

While there’s a growing sentiment that the all-powerful ‘juvenile board’ (usually comprising of a lawyer, a social worker and an insensitive magistrate who tends to get his way) will decide which cases are grave enough to be dealt with like this the law very clearly includes several other infarctions under ‘heinous crimes.’ Take The Drugs and Psychotropic Substances Act (1985) for example. You could go in for years, even life, for growing and carrying commercial quantities of poppy and cannabis. Maybe you were hosting a party and someone brought enough weed for 50 people. You may not have had any part in it but the point is, that’s enough. And it’s a situation more of us can relate to than we care to admit.

Then there’s Section 7 of the bill. Even if a person over 21 years of age is caught for a heinous offence he or she committed as a juvenile, they can be tried as an adult. Like every law on this list, this one’s practically begging for manipulation. Picture the heart-broken girl coming out of a rough break up with her college boyfriend. What’s to stop her (or her parents) from claiming she was raped since she was 17 years old and leaving the boy (now, man) to face the consequences? And let’s not even get into the likelihood of abuse in the case of two younger-than-18 teenagers having consensual sex. Yes, the same possibilities have been projected for adult rapists based on these new laws but is it really fair to instill this same fear in the young?

Most importantly, though people believe that it is limited to IPC acts alone, this new bill actually allows for a juvenile to be given a life sentence under other acts as well as the Juvenile Justice Act. Up until a few hours ago, it even allowed for the death sentence but luckily, this was reformed today. These include The Arms Act and The Unlawful Activities (Prevention) Act (1967) among others.

Even if its makers are portraying this to be in direct relation to particular crimes, it’s unbelievably dangerous to allow a rhetoric like this to be the law of the land and not expect it to be used against certain children.

Assumption #2: If Juveniles can commit ‘adult crimes’ then they are fit to be tried as adults.

 The Reality:

This is where the subjectivity usually comes in. Why is it so difficult the see the contradictory nature of this argument? Studies across the globe suggest exactly the opposite, and considering there’s little else the world can agree on, there’s good reason as to why we do agree on 18 being the cut-off age for adult trial. Biologically speaking, it has been proven that the brain system develops at different times throughout adolescence. Psychologically speaking, 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.

A report of the Indian Jails Committee 1919-1920 itself states, “It is now generally recognised that the ordinary, healthy child criminal is mainly the product of unfavourable environment and that he is entitled to a fresh chance under better surroundings.”

This may be met with vicious backlash but even ‘accused no. 6’ of the Nirbhaya case, the juvenile who lies at the heart of this amendment, could be considered an example of this. Just a few months shy of adulthood, he worked seven jobs in five years to survive post running away from his home in Badaun doing everything from selling chhole-bhatoore, assisting a milkman and conducting a bus to providing cleaning services at the fringes of society in Delhi. All his employers considered him highly intelligent and none could have predicted his involvement in the horrific incidents of December 16th, 2012. 

This is not to justify his acts on the day of the crime, there is no justification for sexual violence whoever the perpetrator is. There’s no denying that his behaviour was so cold-blooded it seems impossible that he didn’t know what he was doing either, but can we really say with complete certainty that he wasn’t influenced by adults he may have wanted to impress with his ability to keep up, especially considering his lack of a real childhood or role models? As a recent article by scroll so aptly put it, “it is not that difficult to imagine teenagers seeking the approval of their older peers by trying to outdo them in bravado. On the evening of December 16th, when the deed was done, accused no. 6 was the one left to clean up the mess on the seats and the floor, and then make tea for everyone else after.  It’s what teenagers do, when they want to fit into the world of adults.” 

Assumption #3: The Data backs it up.

The Reality: 

No disrespect to Maneka Gandhi, our union cabinet minister for women & children and all-round street dog saviour, but her irresponsible claims citing that juveniles commit 50% of rapes and murders is grossly off mark. There is also an assumption that Juvenile crimes have been hugely on the rise. Statistics relating to children in conflict with the law are often misunderstood and misused and there is a need for great caution before we start projecting a very sorry picture of young adolescent boys as the only monsters around.

In reality, from 2003-2013, these crimes have only increased from 1-1.2%. For a larger context still—Children constitute 40% of the country’s 1.2 billion population. Of these, 73,767,907 children are in the 16-18 year age category. The number of children in the 16-18 year age category apprehended for rape in 2013 is 1388, amounting to 0.002% of all children in the country in this age group. The number of children in the 16-18 age category booked for violent crimes in 2012 was 6747 and it did go up in 2013 by 1.6% to 6854. However, even this, like the rise in adult rape cases, can be explained by the fact that the volume of reporting is also on the rise.

If the government really does go ahead with this amendment, what they’re really saying, and what we’re really agreeing to, is that they cannot even make an effort to rehabilitate as few as 1388 children in a country that’s a billion people strong. If that’s really the case, then we have more problems than we previously anticipated.
Moreover, the majority of juveniles apprehended for murder and rape in 2013 hail from deprived socio-economic backgrounds, not having completed their primary education, which only signifies another major failure on the part of those who are pushing to prosecute these children further.

Assumption #4: The bill is anti-poor, so it’s unlikely to touch the rest of us.

The Reality:

It’s true that a majority percentage of juveniles involved in heinous crimes come from poor & marginalized backgrounds who are being targeted by this bill, but it’s just as capable of toppling over anyone from other ‘stratas of society.’ The above-mentioned examples of manipulation are far more likely in these communities so don’t be so sure that this bill won’t come back to haunt just about anyone.

Assumption #5: Retributive systems of reform are more effective than rehabilitative for these juveniles who commit ‘serious’ offences.

 The Reality:

It’s equally true that the lack of data around juvenile rehabilitation in India is shocking and there is no current data around how many of these juvenile convicted for rape have re-offended however, the experience of organisations working with children in conflict with law says that children caught for the offence of rape do not come back into their system as repeat offenders.

Moreover, ProChild Network, a coalition of child rights organisations, practitioners, lawyers, have clearly stated that “it has been widely and historically proven that children can indeed be reformed and should not be subjected to an adult system which is based on the ethos of punitive justice.” 

Assumption #6: Enacting this new law will deter juveniles from committing future crimes, thereby ensuring public safety. 

The Reality:

Make no mistake about it, this entire (volatile) uproar has come about while considering the very serious issue of the lack of public safety we’re experiencing in the country right now. But just like there is no concrete data around repeat offenders in the system, there is none to support this assumption either. There’s plenty that suggests the exact opposite though.  In the U.S., where such a law had been attempted in the past, it was found in a comparative study by Jeffrey Fagan that “New York kids who were treated as adult criminals were rearrested faster, more often, and for more serious crimes, and more often were returned to prison and there were 34% more re-arrests for this lot than there were for the youth retained by a youth justice system.”

Now that you have a slightly wider perspective on the issue, it’s time to raise some serious questions.

Until now, at least the rhetoric we had in terms of Child Protection laws was in place. Even if we cannot claim to have all the resources in place for proper rehabilitation, shouldn’t we be working towards building that rather than one that deeply endangers children? Considering the entire bill is based on misguided data, how can we possibly amend it without re-evaluating them entirely? And perhaps most importantly of all, is it not incumbent on all of us as the current youth of the country, to push for being better than this?

I’m not condemning sexual violence by anybody here because there is nothing I understand better than the outrage against rape. I’m that 25-year-old woman who lost her sense of safety just like so many others before her; made aware from an early age, just how crippling her gender could be. But I haven’t forgotten what it was like to be a misguided teenager either. In the past year alone, we’ve managed to further brutalize our women, criminalize homosexuals, and abandoned the children we’re supposed to protect. If we continue down this road, pretty soon...
A. we will be no country for humanity.
B. the only victims left will be straight, angry men.
C. we’ll have nothing left to fight for. 
Take your pick. Or we could add a fourth option in there, and rewrite our own inevitable future. 

[Special thanks to The Centre for Child Rights and law, National Law School Bangalore and HAQ: Centre for Child Rights for the research. More thanks still to Leher, a child rights organization working to make child protection a shared responsibility, for all the guidance.]