A juvenile act

Like you, I was horrified by the gang rape and murder of the young medical student valorized by the media as “Nirbhaya”. Like you, I spent nights awake thinking about the sort of men who could do this to another human being. When I first met her mother, stoic and dignified but ravaged by grief, I wept with her.

And, yet the national angst over the release of the youngest rapist, a juvenile when the crime was committed, was not the occasion to pass a law.

The law is a cold beast that views the world in black and white and does not account for emotion. In a move reeking of cowardice and an inability to withstand public pressure, Parliament voted last week to reduce the age of delinquency from 18 to 16 for heinous crimes.

In the course of the five-hour debate, some reservations were expressed. Rajeev Gowda of the Congress warned that the new law was likely to be questioned by the courts. The Samajwadi Party’s Ravi Verma wondered about the efficacy of stringent laws in deterring crime. Nominated member Anu Agha appealed for the bill to be sent to a select committee, asking whether Parliament would lower the age further if in the future a 14-year-old committed another terrible crime.

But reason had fled and, barring the Left parties, the Nationalist Congress Party and the Dravida Munnetra Kazhagam, all parties voted in favour of the bill. It didn’t matter that the juvenile had served three years in a remand home or that no law passed today could apply to his horrendous crime of 2012.

Sure, the Act has some checks and balances (reducing the age is only one of its many provisions, which include rules on adoption and trafficking). For instance, juvenile justice boards will decide whether an under-18 accused is to be tried as an adult or a child.

But how will these boards be set up? How will you prevent arbitrary functioning? Or ensure that it’s not only the poor who get penalized or that public emotion doesn’t hold sway over decisions taken by the board?

There is no word also on the contradiction between raising the age of consent while lowering the age of delinquency. How can you have one law that lowers the age of juveniles and another that raises the age of consent? What you’re really saying is that even though people under 18 are children with no capacity for sexual autonomy, they could be tried as adults for rape should they have consensual sex with under-18 girlfriends.

To understand how this works, look at the study by Rukmini S of The Hindu that found that 40% of the 460 rape trials fully argued before the Delhi courts dealt with consensual sex where couples had eloped and irate parents had then accused the boy of rape.

The cornerstone of juvenile justice is reform not retribution. And so far, the system has worked well for us. A study by data journalism initiative IndiaSpend found that repeat offences by juveniles have come down from 12.1% in 2010 to 5.4% in 2014. Because we’re upset about the One-That-Got-Away, should we now condemn potentially productive juveniles to jail, from where they are likely to graduate in hardened crime?

One of the tests of a civilized society lies in the way we treat the worst amongst us. Do we have the capacity to understand that no matter how deep our personal revulsion, we will allow due process? Within our borders, an enemy of the state guilty of a terror strike in Mumbai will be granted a fair trial because this is who we are as a nation.

The passage of the Juvenile Justice Act is a step backwards. We ask why one man has not been punished sufficiently for a horrible crime because it seems too complicated to ask why despite tougher laws, rape continues. Why survivors of sexual assault continue to be subject to public scrutiny of their personal lives. Why our compassion falls short for a four-year-old child raped in a slum in New Delhi who languishes in hospital.

We don’t want to hear that an overwhelming majority—86%—of all rapists are men known to survivors, and that they include fathers, brothers, neighbours and teachers. We don’t want to include consent, sexuality and respect in our school and college curriculums.

So much easier to blame one depraved juvenile rather than look in the mirror and confront the violence that stares back. After all, why fight the system when you can light a candle instead?

Namita Bhandare is gender editor at Mint and can be reached at namita.bhandare@gmail.com.