After three years in a correction home, the juvenile offender in the horrific Nirbhaya gangrape case is walking free and there is nothing the courts can do about it. This has once again sparked an outcry, but raw emotion does not wash in court when the law does not address the issue. The juvenile justice law as it stands now, does not allow a juvenile convict to be kept beyond three years in a correction home under any circumstances. This was the stand taken by the Delhi High Court, which the Supreme Court has now reaffirmed. In fact, when the additiol solicitor general told the Supreme Court that the Central government is mulling an amended law, the apex court wondered how long it would take! The problem is with the Rajya Sabha doing hardly any legislative work presently; political parties have thought it fit to quarrel endlessly and stall its conduct of business through repeated adjournments. The Rajya Sabha has not had time to take up for consideration the amended Juvenile Justice (Care and Protection of Children) Act, 2000, passed by the Lok Sabha on May 7 this year. This amended law provides that juveniles in the age group of 16-18 years, if involved in heinous crimes, will be tried by crimil courts if the Juvenile Justice Board allows it. The psychologists and social experts on the board will first assess whether the juvenile committed the heinous crime as a ‘child’ or as an ‘adult’. While reform bills like the Goods and Services Tax (GST) are hogging the headlines as being unfortutely held up in the Rajya Sabha stalemate, other critical legislations too continue to be in limbo.
Parents of the victim in the 2012 Delhi gangrape case are now lamenting that the courts have failed them, asking ‘how many Nirbhayas would it take for the laws to change?’. The Delhi Commission for Women (DCW) chief has castigated the Rajya Sabha for ‘cheating the country’ by keeping the proposed amended law pending, which could have allowed stronger punishment to the juvenile offender. Whether or not in response to this anger on the streets, the Rajya Sabha is set to take up discussion on the juvenile justice bill on Tuesday. Reportedly the standing committee examining the bill has found some lacue — particularly, that the bill violates certain constitutiol provisions, and that the government wrongly cited tiol Crime Records Bureau (NCRB) data about a spike in juvenile crime. Covering ten years from 2003 to 2013, the NCRB data had shown that 16-18 year olds accused of crimes as a percentage of all juvenile offenders increased from 54 to 66 percent. But according to the parliamentary committee, the NCRB data was misleading as it was based on FIRs and not actual convictions. The committee is also said to have suggested that the approach towards juvenile offenders should be ‘reformative and rehabilitative’. In fact, this is precisely the approach taken in the existing juvenile justice law, which is in keeping with the United tions Convention on the Rights of the Child (UNCRC) that India ratified in 1992. As many as 191 countries have ratified 18 years as the age of juvenility in defining a child. However, sigtory countries like Britain, France and Germany try juveniles as adults in case of certain crimes. A similar position has been taken by the US, which has not signed the UN convention. The death pelty for juvenile offenders has almost been abandoned worldwide, though countries like Chi, Iran, Pakistan and Saudi Arabia figure among seven countries that have carried out such executions since 1990.
The legal position taken by the larger intertiol community is that as far as children are concerned, the severity of the crime need not always be equated with the severity of punishment. It is contended that the child may have developed ‘socially’ but not ‘emotiolly and cognitively’, and so is uble to correlate the relationship of the crime with the consequences. So the UN convention mandates that no child can be tried in the adult justice crimil system until he is 18. The stress is on reformative justice, not retributive justice; juvenile offenders are sought to be reformed, rehabilitated and reintegrated into society. The reason why the juvenile offender in the Nirbhaya case triggered so much public fury is that he was supposed to have been the cruellest among the brutal gang of rapists, that it was he who inflicted the most gruesome injuries to the 23-year old paramedic. But the Juvenile Justice Board in its judgment has said that there’s no evidence on record to prove this allegation widely reported in the media. Those opposing his release have also argued that he has been radicalised during his stay in the correction home, and will pose an even greater threat to society. After the convict’s release on Sunday, he has been whisked away to an NGO at an undisclosed destition. The government will give him a one-time fincial grant of Rs 10,000 and a sewing machine, so he can rent a tailor shop and start anew. But can his identity be kept secret for long under relentless media glare? It is therefore a very complex and emotive issue that our lawmakers should be applying their minds to. Legislative business cannot be held hostage to political wrangling.