The median legal age for drinking in India is 21 years. For driving and voting, it is 18 years. The Juvenile Justice Act (JJA), 2015, passed by both (otherwise unproductive) houses of Parliament lowers the age for juveniles to be tried as adults for some “serious and heinous” crimes to 16 years.
Is that wise?
First, the background. The JJA replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. It addresses children in conflict with law and children in need of protection and care. The earlier Act was enacted to ensure compliance with the 1989 United Nations Convention on the Rights of the Child (UNCRC) that India signed and ratified in 1992. The UNCRC put out 54 articles in a comprehensive document that enshrines these rights, the most basic of which is non-discrimination of each child below the age of 18 years.
There is a provision in the JJA for trying a juvenile committing a heinous offence as an adult based on date of apprehension (above 21 years). This provision may be in possible violation of Article 14 (right to equality) and Article 20(1) (higher penalty for the same offence) of the Indian Constitution. A major provision in the JJA is to set up Juvenile Justice Boards (JJBs) and Child Welfare Committees in each district. The JJBs will be charged with conducting a preliminary enquiry to determine whether the juvenile is to be recommended for rehabilitation or to be tried as an adult.
Despite the UNCRC, the rules for minors in conflict with the law differ a great deal among countries. The minimum age for criminal responsibility varies from a low of about six years in some states of the US to 14 years for Germany. The median is about 12 and the JJA retains seven years for India. The minimum age for criminal majority also varies widely, from 13 years in some states of the US to between 16 and 18 years in most countries; median age is 17 years. There is less variation in the type of crime that allows for minors to be charged as adults. In almost all jurisdictions, murder, sexual violence, rape and violent burglary are included in the list of offences.
The JJA uses an evolutionary definition of crimes based on Indian criminal law that identifies serious offences (cheating, counterfeiting) and heinous offences (murder, robbery, rape) as criminal acts that may be subject to rules of criminal majority. It is for this that the minimum age has been lowered to 16 years. If the Indian Penal Code changes the crimes classified as serious and heinous offences, it will automatically apply those changes to the JJA. All jurisdictions, including the JJA, decry the death penalty but permit life imprisonment with the possibility of early release.
The societal angst surrounding the specifics of the Nirbhaya rape case has been so high that the discussion has focused on the numerical age of criminal majority and on the rights of the victim. This focus has been so extreme that it has taken away from the debate on the purpose of the JJA in the first place and even from other numerical issues like the minimum age for criminal responsibility.
Even though the bill has been in the public domain for more than a year, it has been passed in haste without adequate and comprehensive debate. Paradoxically, the otherwise plodding Rajya Sabha, whose role it is to temper societal emotion, has not done so here.
It appears rather likely that the Act’s nuanced provisions will come up for constitutional challenge, and that by confusing its major principle of care and protection of children, it will serve neither the interest of children nor that of victims.
As one UK penal reform note has it, “depriving children of their liberty can lead to long-term and costly psychological and physical damage, whilst overcrowding and poor detention conditions threaten their development, health and well-being. The removal of children from networks as well as from educational or vocational opportunities at critical and formative periods in their lives can compound social and economic disadvantage and marginalisation. Exposure to criminal influences and violent behaviour in detention, and in the worst instances, exposure to adult offenders, is likely to encourage repeat offending.” Neither retribution nor rehabilitation will likely be served.
In any case, the real issue with juvenile law in India is less about the law and more about its implementation. The JJA will also fail if the boards that it recommends are not created or are staffed without adequate competence. Unless something changes drastically, individual development plans will rarely be created and even less often be implemented. The architecture to ensure justice has been forsaken for the public theatre surrounding a single number.
When a self-righteous, vigilante society picks up an issue that is selectively amplified by the press, the risk of making policy detrimental to long-term interests is very high. The role of Parliament in this context is to be a deliberative body, not an echo chamber.
The JJA is unlikely to stand the test of time.
P.S.: “Adults are obsolete children,” said Dr Seuss.
Narayan Ramachandran is chairman, InKlude Labs.
Comments are welcome at firstname.lastname@example.org. To read Narayan Ramachandran’s previous columns, go to www.livemint.com/avisiblehand