In proposing changes to juvenile law, the government has acted in a knee-jerk manner

“Hard cases make bad law,” states a common legal adage. The news that a juvenile was involved in the brutal rape and murder incident of December 16, 2012 led to demands that the boy be tried in a regular criminal court and be punished as an adult. This “hard case” has led the government to take steps to formulate a “bad law” — as shown in the proposed changes to the Juvenile Justice Act of 2000, according to which children over 16 years of age, who are charged with committing “heinous” crimes, can be tried as adults in a regular criminal court.

The Juvenile Justice Bill, 2014 requires the Juvenile Justice Board to determine whether the child should be tried in a regular criminal court if he/ she is over the age of 16, and is alleged to have committed one of the “heinous” offences listed in the section. This process is in itself problematic, as the Board will be making a determination on facts and culpability, at the initial stage. There are various other reasons why this step being taken by the government is regressive and violates the core principles of juvenile justice. However, in this piece, we focus on the crime which drew the government and society’s attention to the oft-neglected Juvenile Justice Act: rape. We argue that the government, in proposing changes to the law, has acted in a knee-jerk manner, without paying enough attention to statistics on “rape” by juveniles. We also argue that reducing the age will lead to young couples in consensual relationships being targeted and morally policed using the criminal law.

Reducing the age of juvenility

Setting in motion the process that led to the Union Cabinet clearing the draft Bill, Minister for Women and Child Development Maneka Gandhi told PTI last month that according to the police, 50 per cent of all sexual crimes were committed by “16-year-olds who know the Juvenile Justice Act so they can do it. But now for premeditated murder, rape, if we bring them into the purview of the adult world, then it will scare them.” The Minister is wrong. In 2013, juveniles were charged with 3.4 per cent of all the rapes committed in India, National Crime Records Bureau (NCRB) data show.

As we noted earlier, the first case that led to calls to reduce the age of juvenility was the December 16, 2012 incident. This was followed by the Shakti Mills case in Mumbai, and a few other rape cases in other parts of the country where juveniles were allegedly involved. One common factor in all these cases is that these were all “stranger rape” cases, where the victim did not know the offenders. But most women are raped by acquaintances. Of the 1,636 rape cases registered in Delhi last year, 96 per cent involved alleged rape by acquaintances. A study of all rape cases decided by High Courts and the Supreme Court over the last 25 years revealed that in 90 per cent of cases, the victim knew the offender. In the context of younger people being referred to by the Minister, The Hindu’s recent study of rape cases in Delhi’s district courts showed that the largest category of cases (40 per cent of all cases that were fully tried) dealt with elopement and consensual sex between young couples, and the girl’s parents filing rape charges against the boy. In most of these cases, the boy was between 18 and 20 years of age and the girl between 16 and 18 years.

Filing kidnapping cases where couples elope or are in relationships is not a new phenomenon. On May 23, 1972, an 18-year-old girl was called to the Desaiganj police station in Maharashtra for questioning. Her brother had complained to the police that she had been kidnapped by a young man and his relatives. It turned out that the young woman, Mathura, was in a relationship with the man, which her brother did not approve of. He invoked a provision in the Indian Penal Code — “kidnapping from lawful guardianship” and filed an FIR, which led to the young woman being summoned to the station. The woman was raped by two policemen in the station, who were acquitted by the Supreme Court. This case became the pivot for changes in Indian rape law in 1983. However, what we also need to note from this case is how the law provided the disapproving brother the capacity to use the criminal law to thwart his sister’s choice and sexual autonomy.

This use of ‘kidnapping’ to regulate sexual autonomy and choice of young adults is a common practice and continues till date. Parents who disapprove of their young daughters eloping with their partners file kidnapping cases since the age of majority in the kidnapping section in the IPC is 18 (for women). In 2013, Parliament took the retrograde step of increasing the age at which a woman could consent to sexual acts from 16 to 18. With the age at which a woman can consent to sexual relationships being raised, a rape charge can now be added to the kidnapping charge. This only provided an additional tool to parents and society to not only indulge in moral policing and curtailing choice, but also to use the criminal law to prevent inter-caste, inter-class, and inter-religious relationships.

Cases prior to amendments

How did courts deal with statutory rape cases prior to the 2013 amendments, when they had the discretion to reduce sentences below the statutory minimum of seven years imprisonment? In most cases where the girl was just below the age of consent (which was then 16), and the boy was around 18, courts, after convicting the boy, sentenced him either to the period he had already spent in jail during the trial, or to a period less than seven years. But the new law does not provide discretion to the court to reduce sentences by taking into consideration the age difference between the boy and the girl (“age proximity”), if the sexual act was consensual. Hence, it places young men in romantic relationships, with young women in the same category, as paedophiles.

What happens if a 17-year-old boy indulges in a consensual sexual act with a 15-and-a-half-year-old girl — a common occurrence especially in rural parts of the country? Under the proposed new JJ Act, if the Board determines that he should be tried as an adult, he will be tried by a sessions court, which has no option but to sentence him to a minimum of ten years in prison.

Rape is a violation of a woman’s sexual autonomy. Increasing the age of consent and decreasing the age of juvenility does not enhance sexual autonomy but restricts it, since it negates the agency of the woman to choose a partner, by instead facilitating filing of criminal cases against her partner. In cases of non-consensual sexual acts, the need of the hour was to strengthen the existing juvenile justice system in order to ensure that the goal of reformation was effectively achieved. However, based on unsubstantiated impressions, the government is all set to do exactly the opposite. We might soon regret these hasty changes to the law.

(Mrinal Satish is an associate professor of law, National Law University, Delhi.)

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Read mor ehere- http://www.thehindu.com/opinion/op-ed/misunderstanding-rape-condemning-juveniles/article6309522.ece