Why you should oppose the Juvenile Justice (Care and Protection of Children) Bill 2014

Since the Nirbhaya rape in Dec. 2012, media has been repeatedly demonizing children found involved in commission of serious offences, leading to a public outcry against the protective approach of the Juvenile Justice Act 2000. Children have become the target of media attack and very severe scrutiny if they commit an offence. Even though the child involved in Nirbhaya was found not be the most brutal, he continues to be referred like that just because one police officer said so without any reason.

India’s history of juvenile justice goes back 150 years when India enacted the Apprentices Act in 1850 to bind over petty offenders as apprentices rather than send them to prison as deleterious effects of prisons got to be noticed on children kept there. Since then, India moved only in one direction of bringing more and more children with the protective umbrella of juvenile justice. 1920s introduced the era of Children Acts by different States all of which introduced the principle of use of prisons as an exception for children found to have committed an offence. In 1960, the first Central Children Act applicable to Union Territories passed as the Model Act and followed by other State, prohibited keeping children committing any offence in prisons and police stations. The Juvenile Justice Act, 1986 extended this prohibition uniformly across India to boys below the age of 16 years and girls below the age of 18 years. The existing law governing the subject, namely, the Juvenile Justice (Care and Protection of Children) Act 2000 extended this protection uniformly to boys and girls below the age of 18 years.

However, this direction is being reversed by the Juvenile Justice Bill 2014. As per the scheme in this Bill, 16-18 years old children committing offences punishable with minimum 7 years of imprisonment may be transferred to the adult criminal court by the Juvenile Justice Board after an ‘initial assessment’ of the circumstances of commission of the offence or whether the child committed the offence with a mature or child-like mind. The children so transferred, on conviction will be sentenced to seven to twenty years in custody. Till the child attains the age of 21 years, he will be kept in a place of safety after which he will be transferred to adult prison if the adult Criminal Court determines that he has not reformed. Children convicted by the adult criminal court in all cases will suffer life-long disqualifications attached to commission of an offence, even if judicially determined to have reformed at the age of 21 years of age.

Many reasons why this law must not be passed:

1. In the year 2013, as per the National Crime Records Bureau, out of the total children who were arrested (and not convicted) for commission of any offence in India, 77.5% came from families with income less than Rs.50,000/ per annum; 87% of them had education less than matriculation. Only 3 children out of one lakh children were arrested for any offence. The contribution of juvenile delinquency has remained almost static with insignificant increase from 1.0% in 2003 to 1.2% in 2013. Hence, it is a myth that the reason for these changes is tremendous increase in juvenile delinquency.
2. The 60% increase in rape cases among children in 2013 from 2012 must be seen in the light of the changes introduced by the Protection of Children against Sexual offences Act in 2012. It increased the age of consent for sex by girls from 16 years to 18 years; expanded the definition of rape to refer to not only peno-vaginal rape but also anal, oral, object and finger rape; and made it gender neutral. With the increase in age of consent, the Courts are flooded with ‘love cases’ filed as rape. The Hindu newspaper did a study of all pending rape cases in Delhi and found that 40% of them were love cases.
3. There is no reason to adopt the failed system of transfer of children to adult courts that America started 25 years ago. All researches being published now in USA have found that children sent to adult criminal courts commit more violent offences in their life later compared to the children who were dealt with under the juvenile justice system.
4. All those countries that have cut off age of less than 18 years or exclude children below the age of 18 years from juvenile justice are in violation of the General Comment No.10 of the UN Committee under the Convention on the Right of Child. India will perhaps be the first country in the world who will be non-complying after having complied with its obligation under the CRC.
5. With the development of adolescent brain science, there is incontrovertible evidence that adolescent’s brain is different in its structure and functioning from that of the adult brain. In fact, adolescent children are most vulnerable to taking risky and thrill seeking behaviour, specially sexual pleasure because their frontal cortex which allows adults to control their impulses, is not fully developed. They are like being in a driver’s seat in a car without the breaks. Treating such children as adults violates the Fundamental Right to Equality.
6. The psychiatrists are also of the firm opinion that it is impossible to assess whether the child has committed the offence with mature or child-like mind. Such provision will only result in arbitrary transfers. It is well known that it is the poor and marginalized who are sent to prisons disproportionately across the world. Given the educational and economic background of majority of the children, they will become the easy target for being given prison sentences by this transfer system.
7. In the absence of additional budgetary commitment by the Government, there is no reason to believe that this Bill will be better implemented. There is no way to keep children in Place of Safety as none exists and none can be established in the absence of any additional budget. All children transferred to the adult criminal justice system will be locked up either in prisons or in a Special Home. Despite the provision for keeping violent older juveniles in Place of Protective Custody, the sole juvenile offender convicted in the Nirbhaya Case has been kept locked up in one room of the Special Home declared as Place of Safety.
8. The JJ Bill 2014 was examined by the Department-Related Parliamentary Standing Committee of the Ministry of Human Resource Development headed by Dr. Satya Narayan Jatia from the BJP. In its 264th Report on the Juvenile Justice (Care and Protection of Children) Bill, 2014 (PSC Report) tabled on 25th February 2015 in Parliament, the PSC pointed out the provisions that are unconstitutional and violate many international instruments including the Convention on the Right of the Child. The PSC severely criticized the Ministry’s intent to enact a new law, “which radically changes the legal framework in respect of juveniles aged between 16-18 year olds accused of committing ‘heinous offences’ without any rational basis.”

Despite such clear evidence and constant opposition from academics, activists, lawyers, child, women, and human rights groups, and many others, the Government is going ahead with this legislation which will impact the future of not only the children so transferred but of India. Prisons are known to be breeding grounds for criminals but the government has turned a blind eye to the fact that by keeping young persons in custody for long periods ranging from 7-20 years in the company of other violent and serious offenders cannot reform them. Stigmatized for life without the possibility of fresh start, having grown up in the company of other hardened criminals, they will have no option but to live a life of crime.

Nirbhaya put India on trial for its failure to take care of its women and children. Instead of doing an introspection into the reasons for its own failures and improving implementations of the Juvenile Justice Act and addressing the patriarchal biases against women, it wants to absolve itself from the blame by passing it on to the children. They have no control over the circumstances that may make them achieve glory or push them in to the gory prisons.

India needs to first take care of crores of its children in need of care and protection, who suffer from malnutrition, are out of schools, are in the streets, are exploited and abused as child labour, etc., so that none of them grow up in the company of adult offenders.

If you love children, kindly raise your voice so that India is not pushed back 100 years when we used to send some children to prison. Developments in neuroscience, behavioural science, psychiatry, psychology, anthropology, sociology, criminology, penology, victimology, etc., now offer many more constructive and positive ways to deal with children committing crime than what we had in the 1920s. Surely, India has sufficient resources and expertise to bridge the hiatus between child offenders and victims through restorative justice and care jurisprudence. Children’s voices were not heard in the framing of this Bill. We need leaders who must come forward and speak for the voiceless children of the minorities and marginalized sections of society and exhort other eminent citizens to do the same.

We appeal to you to raise your voice against this retrograde law that will destroy the future of children of India. More than 7 crore 16-18 years old children are at risk as any one of them can become the victim of this law with long term adverse effect for his future, specially the children belonging to minority and marginalized sections.

Prof. Ved Kumari, Law Centre-I, Faculty of Law, University of Delhi