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.
