A Law Lurking In The Grey

As the Lok Sabha passes a new Act, the position of juveniles, especially those from marginalised sections of the society, becomes vulnerable

Juvenile Justice Illustration : Mayanglambam Dinesh

With the Lok Sabha passing the Juvenile Justice (Care and Protection of Children) Act, 2014, the question agitating the minds of civil society activists and organisations alike is the following: Will children aged between 16 and 18 not get a chance to reform and return to the mainstream? The Union Ministry of Women and Child Development (WED) showed haste in piloting the new Act to replace the existing Juvenile Justice Act, 2000 in spite of reservations expressed by a parliamentary committee. Yet, the amendents made to the Act are not being advocated for the first time. Subramanian Swamy of the BJP had approached the court in 2013 with a petition to lower the age of a juvenile in the Act. The petition was rejected, with the Supreme Court holding that there was no need to amend the law.

Now, the new Act has pitted civil society organisations against the government. According to them, lowering the age would inject more criminals into the societythan solving the problem of crime.

Ashish Asthana, an advocate, argues that the existing law on juvenile justice has many discrepancies and enacting a new Act to replace the old one would only worsen the problem.

“Every child under the age of 18 should get the opportunity to reform. It is important to understand that when children commit a crime, they do it under certain influences. Circumstances drive them to commit an offence. The new amendments will ignore these factors and deny most underprivileged kids their right to reform,” Asthana told Tehelka.

The ministry, on the other hand, has cited the increasing number of crimes committed by juveniles as a precedent for the need to bring in the amendments to the existing law.

The debate around juveniles began after the ‘Nirbhaya rape’ case of December 2012. It was widely reported at the time that the most brutal of those involved in the crime was a juvenile who, by virtue of his age, could be sentenced only for a period of up to three years in a remand home, as per the Section 15 of the Juvenile Justice Act, 2000; consequently, he would escape the gallows.

The American experience with juvenile justice is being argued by those pitching for changes to the law. In America, at any given point of time, if a juvenile above a certain age committed a crime, the case was automatically transferred to an adult court. This was so because a series of campaigns in the early ’90s in the US had forced the judiciary to bring in archaic and oppressive amendments to their juvenile laws. One of the chief architects of the campaign was John Dilulio, a professor at Princeton University.

Asthana says about the American experience: “The campaign led to the doctrine of adult time and as a result even children aged 12 could be tried under adult courts. But what happened later must be taken as an experience for us in India. John later regretted being a part of the campaign but it was too late and American prisons were swelling with young kids who would not get a chance to correct their wrongs.”

According to the data available with Prayas, an organisation working for child rights, 5,901 cases out of the 1,69,376 ipc crimes recorded in 2013 involved juveniles; this amounts to a mere 3.48 percent. Amod Kanth, general secretary of Prayas, says that it is a small number and is something which can be controlled. He cites 2012 figures to argue that the “majority of crimes committed [in that year] were by children living in acute poverty.” Furthermore, “out of 39,822 children apprehended, the huge majority i.e. 20,685 were found to be illiterate or less than primary educated and at least 8,183 were found to be either homeless or living without parents.”

The data suggests that stark inequality in the society is one of the primary driving factors for pushing children into crime. It would appear sensible, therefore, to begin to address the issue of juvenile offenders by working on reducing these inequalities, rather than branding them as criminals.

In addition to lowering the age from 18 to 16, there are some other contentious changes, too, such as the circumstances of offence, determination of age on the basis of physical appearance and the usage of bone ossification test for medical age determination.

The new amendments would not give an offender a chance to prove their age in a court of law; the only authority that can decide on the matter is the Juvenile Justice Board. The abstract nature of deciding one’s age by one’s physical appearance is another cause of concern. Juvenile Justice Centres are already swelling with young offenders undergoing reform; therefore, accommodating more juveniles is a constant worry for the authorities concerned.

However, some activists reason that what is missing from the current debate on juvenile justice is the potential to victimise people from the marginalised sections of the society on charges of terrorism and anti-State activities.

Tomes have been written by activists, academics and mediapersons alike on how the anti-terrorism laws have been used to frame people from the marginalised communities.

In her book Kafkaland, Manisha Sethi cites instances of state agencies fabricating evidence to implicate youths from a particular community on charges of terrorism. Her report on the special cell of the Delhi Police, titled “Framed, Damned, Acquitted,” contains some accounts of such cases. The list of many youths acquitted on charges of terrorism and similar activities has also been rising suggesting inadequacy on the part of the state agencies to deal with the problem.

Mohammad Amir Khan, who had just turned 18 in the winter of 1998, was picked up by the personnel of the Delhi Police’s special cell on charges of terrorism and more than a dozen cases, which he was unaware of, were slapped on him. However, he was acquitted 14 years later and all charges against him were dropped. During his long stay in different jails, he recalls stories of individuals, including minors, who were arrested on charges of terrorism and were later let off by the courts when a case could not be framed against them.

He recounted the tale of one Rashid, a juvenile from Kashmir. “Rashid,” he recalls, “was booked on charges of waging a war against the State. It took him three years to prove to the courts that he was a juvenile and many more years to finally prove his innocence and get relief from the courts in all the cases against him.” Khan asserts that when the new Act replaces the erstwhile Juvenile Justice Act, 2000, there is every possibility that more kids such as Rashid would be implicated by the state machinery.

On 27 April last month, according to a statement issued by the People’s Union for Democratic Rights (pudr), three minor girls, aged between 15 and 17, were picked up by the Special Task Force (stf) of Chhattisgarh Police, from Kormagundi village in Sukuma district. The girls were out to graze buffaloes when they came across around 25 stf personnel emerging from the forest. Out of fear, they began to run away from the spot only to be apprehended by the stf personnel; they were beaten up along with their family members and later taken to the Kukanar police station on the suspicion that they were Maoists. The next morning, they were produced before a magistrate and subsequently shifted to an observation home, about 400 km away, in Rajnandgaon. According to an official narrative, the three were suspected to be Maoists because they were caught fleeing from the site where a skirmish had broken out between the police and the Maoists. The Jagdalpur Legal Aid Group helped the girls’ parents file a petition for bail. The lawyers of the group pointed out that the police action was in total violation of the Juvenile Justice Act, 2000 whereby a juvenile could not be detained in a police lock-up.

The abovementioned cases give rise to genuine fears that the Justice (Care and Protection of Children) Act, 2014 could be misused.Rebecca John, a senior Advocate who has dealt with similar cases in the past, claims that there might be a hidden agenda behind the new amendments to the erstwhile Juvenile Justice Act, 2000. “It is true that the State has picked up youths in the past by fabricating cases against them, and with these new amendments, they will get a free hand in picking up even minors from the marginalised communities,” she says but qualifies it by saying that in the absence of any significant data and evidence, nothing could be concluded just yet.