It is well accepted that a
state can be said to have ‘failed’ if (i) it loses control over its territory
or cannot use legitimate physical force to regain it; (ii) there is an erosion
of legitimate authority to make collective decisions; (iii) inability to
provide public services; and (iv) is unable to interact with other states as a
full member of the international community.
While India is not yet a
failed state, in spite of continuously having lost territory since independence; and her increasing inability to provide basic healthcare and education to its
citizens, it seems that it is rapidly fulfilling another criterion of failure,
i.e., capability to make and execute effective legislation.
The last couple of decades
have witnessed three disturbing trends in the legislative process – one, the
parliament has been spending less and less time in debating a law. Many of the new laws
being passed are done so without any discussion (other than in the standing
committees) at all in the parliament. More sadly, laws have been party instruments. Rarely if ever,
does a parliamentarian questions or takes a stand contrary to the ‘party’ stand
on any legislation. This forced concurrence ensures that the legitimate concerns of society routinely gets suppressed by the party whip. The second disturbing development has
been the disproportionate rise in the power of ‘civil society’ to dictate
legislation. From the draconian ‘anti-rape’ bill to ‘POCSO’ (Protection of
Children from Sexual Offences Act 2012), to Right to Education, to Right to Food
and ‘Promotion’ of Communal Violence bill, many legislations/proposed bills are
more reflective of the ideologies of vested interests rather than a solution to needs of the general public. This influence stands in direct contrast with activism
against GM seeds or Land acquisition bill, where the modus operandi adopted by
the activists is grassroots driven and more intended towards maintenance of
status quo. The third trend is the much commented upon ‘legislation by decree’, where more and more court pronouncements are becoming/replacing legislature enacted laws. In some ways, it may be good,
particularly where the legislature has abdicated its responsibility to govern. But overall, it incontrovertibly changes the way India was supposed
to be governed.
A sad manifestation of our
weakening legislative systems is the fracas on the Juvenile Justice bill.
First, in 2000, without any rhyme or reason, the NDA Government raised the age
bar for criminals to be considered as juveniles’ upto 18. Worse, it capped any
‘punishment’ to 3 years, that is if time spent at a remand home, with TV and
other entertainment amenities and money for rehabilitation on completion of
remand, can really be called punishment for heinous crimes. Now, when the
current NDA government planned to revamp the law, rather than looking at
systemic improvements, it took a short cut and simply decided to reduce the age
limit for juveniles to 16 in case of heinous crimes. While this step by itself
is half-hearted and leaves much to be desired, what was revealing was the
cacophony of the ‘activists’ and reactions of the opposition parties.
Much was made by the activists
on how India was taking a regressive step, that it had won lots of
international renown by its 2000 Act and that the current step would bring it
in the category of Iran and Sudan! On how scientific studies had ‘proved’ that
a person was a ‘child’ till he turned 18 or that how it the societies’ fault
that the ‘child’ had committed crimes and how it should be the responsibility
of all of us to rehabilitate him. A lot of noise was created on how the current
Act ran contrary to International Commitments India had made under ‘Convention
on the Rights of the Child’ and that India would face International censure and
even have the Act stuck down by the court, when challenged.
Let’s meet these objections
one-by-one.
Just where is the evidence of
this supposed ‘renown’ which India had won? Where are the laurels which India
had supposedly won and just how many countries followed in amending their laws
allowing ‘Juveniles’ to commit crimes with impunity? Sadly, there are none beyond
the fertile imagination of these activists. For argument’s sake, say India was
feted heavily by other States for this Act. So, should a failed moved be
carried on because it meets someone else’s worldview?
As regards scientific, just
how believable these studies can be which protects a criminal as juvenile till
he/she is a day short of her 18th birthday? Do heavens open up and
bless this person with wisdom on that divine day (18th birthday),
that anyone below this age doesn’t possess? At one level, we have numerous
studies indicating that on account of various dietary and environmental
factors, children are hitting puberty earlier than usual, some as early as 10
years. Scientifically, puberty is a period when the mental and judgmental
faculties of a child develop at a fast pace. With so much exposure to external environment,
coupled with early puberty, do we really have to believe that an 18 year old
remains a ‘child’?
On the responsibility of
society – well, the human civilization demands that people adhere to a certain
set of principles, violation of which invites punishment. We are expected to
rise above the laws of the jungle and overcome our base instincts. A mindset
which excuses crimes on account of the deprivation of the criminal is the most
certain path to end of civilization. And just how unfair is it to 1) the
victims of the crime; and 2) those who overcame their barriers and stuck to the
right, civilized path? Protecting and rewarding the criminal simply does not
pass the test of natural justice, is absurd and detrimental to the entire society,
even with all its warts.
Finally, the most quoted one –
one couched in legalese, on how India is contravening its commitments under ‘Convention
on the Rights of the Child’, which if the risk of International strictures are
not enough, puts us in the category of, horror of horrors, failed states like
Sudan and Iran!
As is likely, most of the ‘activists’
parroting this line do not seem to have bothered having read the declaration
even cursorily.
Even if we move beyond the
non-binding nature such pious declarations, the Article 1 of Part 1 is itself
revealing. It states:
For
the purposes of the present Convention, a child means every human being below
the age of eighteen years unless
under the law applicable to the child, majority is attained earlier.
So, the convention takes into cognizance
the fact that different Nations have a sovereign right to define their own
laws. More critically, the convention allows flexibility in the age of maturity
for the same child, in the same country.
Article 38(2) states:
States
Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen
years do not take a direct part in hostilities.
Article 38(3) further states:
States
Parties shall refrain from recruiting
any person who has not attained the age of fifteen years into their
armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained
the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest
Very clearly, the convention
itself is not rigid about 18 being the Rubicon below which any person is most
definitely a child. Not only that, as per the above article, it acknowledges
the fact that the treatment of children at fifteen need to be differentiated vis-à-vis
people who are older.
Article 38 speaks about
punishment to for criminals. It states
States
Parties shall ensure that:
(a)
No child shall be subjected to torture or other cruel, inhuman or degrading
treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall
be imposed for offences committed by persons below eighteen years of age;
(b)
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of
a child shall be in conformity with the law and shall be used only as a
measure of last resort and for the shortest appropriate period of time;
(c)
Every child deprived of liberty shall be treated with humanity and respect for
the inherent dignity of the human person, and in a manner which takes into
account the needs of persons of his or her age. In particular, every child deprived of liberty shall be
separated from adults unless it is considered in the child's best interest not
to do so and shall have the right to maintain contact with his or her
family through correspondence and visits, save in exceptional circumstances;
(d)
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance,
as well as the right to challenge the legality of the deprivation of his or her
liberty before a court or other competent, independent and impartial authority,
and to a prompt decision on any such action.
Just which part of the above conventions is the JJ Act violating? Even for most heinous of crimes, the below 18 criminal still won’t be accorded capital punishment or life imprisonment. Rest all other clauses have been addressed likewise. If some aspect of the other homilies don’t really happen in real-life, it is true for all laws and all sections of Indian society. That our basic systems are dysfunctional are no reason to give free license to any category of people to commit crimes.
Full text of the Convention can be accessed here.
Now on the disdainful International
company we are now supposedly keeping - Interestingly, this convention,
probably because of its pious nature, has been ratified by almost all countries
signatory to it, a glaring exception being the USA. Refer to the status map here. As an aside, India should
walk out of this convention simply on account of the map showing Kashmir and
Arunachal as distinct territories.
Anyway, as the below link and map indicate, even Sudan and Iran, not to speak
of Zimbabwe and Saudi Arabia have ratified this treaty. Just how has it made a
difference to their execution of children for ‘crimes’ such as blasphemy or
homosexuality?
It will be a sad day for
society if this law, if challenged in courts on the grounds of it supposedly violating
International conventions, is not defended and utter fallacies of the said
argument pointed out. There is reason to suspect that this might happen as
previous, on a petition asking the court to reject the bar of 18 for juveniles
to be declared criminals, ‘activists’ had succeeded in convincing the court of
the ‘scientific’ basis of the age bar and India’s commitments under
International conventions.
Some ‘activists’ have mocked
the law asking if this will prevent further rapes? Nothing amazes more than the
sheer stupidity of some arguments forwarded by the ‘intellectual classes. No
law in the world had ‘stopped’ any crime. In spite of murder, theft, assault
being criminal offences in all societies since the dawn of civilisation, they
still happen. Laws are meant to deter, and to provide a sense of justice to the
victim/victim’s family. If some words written on paper or engraved on stone
were to finish crimes, we would all have been living in utopia for millennia!
A manifestation of shallowness
of our society has been the debates on the supposed draconian provisions of the
bill focusing only on rape. The so-called juveniles do not only rape, they also
commit armed burglary, murders, murderous assaults and are even involved in
terror activities. Just which of these is a ‘gentle’ crime so as to merit only
a rap on the knuckles? Maybe the activists can adopt the sweet juveniles and ensure
that all the deprivation the latter have had is addressed by their caring hearts.
Why force society at large to bear the cross of convictions of some?
The way statistics have been
used to defend juvenile crimes would put Goebbels to shame. Most pro-criminal
activists have claimed that crimes committed by juveniles in the age-group
16-18 are only 1.2% total crimes committed by all and hence is ‘normal’. This
is ridiculous as comparison is made like-to-like. Just what is the proportion
of crimes committed by this age bracket in the total crime committed by people
upto 18 years of age?
More importantly, the
involvement of criminals in this age bracket has shown an increasing trend in
the last few years. There is enough anecdotal evidence to believe that even
criminal gangs are using this group to commit crimes, even supari murders on
account of the virtual lack of any punishment to them.
The revision of Juvenile
Justice Bill was long overdue and is a step in the right direction. Kudos to Maneka
Gandhi for doggedly pursuing the bill in spite of resistance or indifference
from all. To take a stand against powerful ‘activists’ and succeed is nothing
short of a miracle, something which she achieved, aided in no small part by the
public outrage consequent to Nirbhaya’s parents taking to streets against
release of the so-called juvenile. Had it not been for Nirbhaya’s parents, our
ruling classes would not have been shamed enough to act on the bill and ensure
its passage. Lastly, kudos to TMC’s Derek O Brien. He is not very much off the
mark when he claims that the bill is TMC’s bill as had it not been for his
intense lobbying, the bill would not have been listed in the Rajya Sabha for discussions.
Much
needs to be done
Does the above unequivocal
support for the JJ Amendment bill means that the bill is devoid of faults.
Definitely not! Systemic issues remain and much needs to be done to ensure that
not only are crimes committed by children dealt with in the best possible
manner, the rights of the society, the parents and the children themselves are
protected adequately.
Firstly, the concept of age defining whether the criminal needs to be punished is archaic and runs counter to the principles of natural justice. Most developed countries, with much more refined laws and sensibilities than India, and much more pro-actively engaged in child welfare treat crimes and criminals for what they are. When achievements of children are not discounted because they are ‘juveniles’, how can their crimes be? We will certainly have cases where 15 year old children will commit heinous crimes. What knee-jerk reaction will be taken then?
Second, except for very few
countries, there is no upper limit to period of ‘punishment’ to be accorded to
the child criminal. Just what is the logic of 3 years in remand home being the
maximum punishment for all crimes, irrespective of the age of the criminal?
This upper cap is intensely artificial and rather than acting as a deterrent,
promotes a culture of impunity among the criminal minded children.
Lastly, the JJ Law, POCSO, and
the anti-rape provisions of our laws do not take into account social realities
and even the sexual rights of a child. In the current state of affairs, mere
allegation of rape is sufficient to put the boy/man behind bars, with the onus
of innocence lying on him. POCSO recognizes various contacts of sexual nature
with anyone below 18 as a sexual offence. It conveniently ignores that post
puberty, children do engage in, even if uninformed, voluntary, consensual sexual
activities, most of the time with their schoolmates/friends or even relatives
of the same age-group.
Currently, a sub-18 boy, if
found ‘guilty’ of sexual relations with a sub-18 girl is a rapist. The consent
of the girl is of no value. In the previous version of the law, at least the boy
victim of his lust/love would get away with 3 years in a remand home. Now, he
would spend 7 years with hardened criminals. If this boy/man was say 19, rather
than 18 (now 16), and the girl even 17 years, 11 months 354 days, the consent
of the girl is still immaterial and the boy/man does not even have the
protection offered by the JJ Law.
Realistically, sex between
children has been happening since ages and will continue to happen. Till a few
decades back, consummation of marriages once the girl had reached puberty was the
norm. Islamic jurisprudence recognizes a girl having her cycles as adults. Most
western countries recognize the sexual nature of pubescent children and have
taken care to accommodate nature while drafting strict child-protection laws. There,
the age of consent (for sex) is more realistic and whether the accused is a
criminal or not, is defined by the age difference between him and the supposed
victim, generally 3 years.
In its current form, the law
is being used by parents whose girl-child has eloped to ‘punish’ the boy by
charging him with rape.
We may find sexual contact
between children reprehensible and even revolting. But is it criminal?
In all, is the current Act
free of lacunae? Certainly not. But is it an improvement over the previous
maudlin bill? Most definitely, yes!
