The Cabinet has decided to treat 16- to 18-year-olds as adults for ‘heinous’ offences. This assuages post-Nirbhaya rage but strongly violates the rights of the child.

By clearing amendments to the Juvenile Justice Act and allowing juveniles between the ages of 16 and 18 to be tried and punished as adults for ‘heinous offences’ (offences that are punishable with imprisonment of seven years or more), the Cabinet on April 22 sounded the death knell for juvenile justice. It consciously overlooked the Parliamentary Standing Committee Report that found the transfer system proposed under the Juvenile Justice (Care and Protection of Children) Bill violative of India’s constitutional mandate and its international obligations under the United Nations Convention on the Rights of the Child. The Committee had been particularly critical of the drastic approach of the Ministry of Women and Child Development, stating that “one must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution”. It recommended that all clauses proposing “differential treatment of children between 16 and 18 years of age needs to be reviewed.”

Despite this, the Cabinet has approved the transfer system. The Press Information Bureau release states that the decision to transfer will be based on an assessment of whether “the crime was committed as a ‘child’ or as an ‘adult’”, to be undertaken by the Juvenile Justice Board that will have psychologists and social experts. What it does not spell out is that a child tried as an adult will end up in prison.

Can’t determine cause and effect

The edifice of the proposed system stands on three flawed assumptions: children are as culpable or blameworthy as adults; it is scientifically possible to determine maturity and mindset beyond reasonable doubt; and the transfer system will effectively deter juvenile crime and enhance public safety, particularly of women.

Advances in neuroscience and studies by the Research Network on Adolescent Development and Juvenile Justice at the MacArthur Foundation, U.S., show that the human brain undergoes key physical changes from the ages of 16 to 18, and this continues right until the mid-20s. This evolutionary process of the brain primarily concerns risk-assessment behaviour that is directly tied to what we term as “maturity”. Though persons in this age group may ‘know what they are doing is wrong’, it has been shown incontrovertibly that they are unable to act on that knowledge and restrain themselves. This is precisely because at this stage they underestimate risk, are susceptible to negative influences, and lack foresight. Their ability to understand legal processes and make decisions is not the same as that of adults. This is endorsed by an internationally renowned expert in child and adolescent psychiatry, Shekhar P. Seshadri, Department of Child and Adolescent Psychiatry, NIMHANS, Bengaluru. Professor Seshadri explains that “adolescents are less culpable than adults because adolescent criminal conduct is driven by transitory influences that are constitutive of this developmental stage. By nature of their psycho-biological profile, adolescents are greatly influenced by their environment, and too immature to weigh the consequences of their actions.” This predisposes them to poor decision-making — a key factor that distinguishes them from adults. But, just as they can be influenced negatively, they can also be moulded in the right way. To try and punish them like adults and send them to prison would grossly violate their right to equality.

Latest research by Bonnie and Scott (2013) shows that individualised assessments of adolescent maturity are not possible and suggesting it can be done would mean “exceeding the limits of science”. The assessment thus proposed is fraught with errors and arbitrariness and will allow inherent biases to determine which child is transferred to an adult court. When psycho-social maturity or mental capacity cannot be measured accurately, it would be a travesty of justice if children accused of breaking the law are transferred to the adult system and ultimately sent to an adult prison based on such a flawed assessment.

Jail doesn’t reduce violent crime

Despite ample evidence that punitive laws do not improve public safety or deter juvenile crime, the government is bent on importing a failed Western model. The independent Task Force on Community Preventive Services set up by the U.S. Centre for Disease Control reviewed scientific evidence on the effectiveness of transfer laws and concluded that: “….transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system. To the extent that transfer policies are implemented to reduce violent or other criminal behaviour, available evidence indicates that they do more harm than good.” The U.S. is now closing down prisons and redirecting funds to community-based treatment programmes.

Instead of dealing with the root causes of juvenile crime, such as poverty, broken families, unregulated access to pornography, or the failure of the child protection system, the government seems to be blindly targeting adolescents. This is surely an erroneous strategy to protect women or to assuage the public outrage after the Delhi gang rape, given that these juveniles will graduate from adult prisons as a much higher risk to the community.

Tragically, the grave human rights violations inherent in the transfer system were recognised by the multi-party Parliamentary Standing Committee, but dismissed entirely by the Ministry responsible for protecting children.

On being informed about the proposed law, a young boy who journeyed through the juvenile justice system said, “We learn everything from adults. From people who take drugs, we learn to take drugs; from people who make bombs, we learn to make bombs. And that is what we will learn when you send us to jail. So, if you send us to jail, we will become like them.” Another young woman, a victim of trafficking who went on to do the same to a 12-year-old-girl herself, said, “Please do not kill our spirit and hopes by sending us to jail. Help us, guide us, advise us, support us and show us the right path — don’t condemn us to a life in jail”.

With the Ministry and the Cabinet having turned their back, all hopes are pinned on Parliament to do what is right for India’s adolescent children.

(Arlene Manoharan, Swagata Raha and Shruthi Ramakrishnan are from the Centre for Child and the Law at the National Law School of India University, Bengaluru.)