Why opposition to JJ Bill was ill-informed, even as more needs to be done

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 18^th birthday? Do heavens open up and bless this person with wisdom on that divine day (18^th 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! 

Bihar defeat is Modi's defeat

Had drafted this note in longhand on the 9th of November. Lethargy had stopped me from posting it for 8 weeks. Though dated, still posting it so that it at least appears in the timeline of 2015.

Claiming ‘I-told-you-so’ post occurance of an event carries high credibility risks, particularly when there is like evidence of one actually having said so. For this reason and this alone, and even after discounting the lusty cheerleading going on till around 11 AM on October 8, words of many pundits, who now claim to have had foretold BJP’s debacle, are flummoxing.

Did not the Modi brigade claim an overwhelming mandate for development all along? Did it not claim that Modi’s INR 1,75,000 Crores package was a deal-sealer, that Modi’s personal appeal was transcending caste/class barriers and that people are voting for Modi in droves or that Modi’s attack on possibility of reservations for minorities had stymied the desertions of backward classes and had re-rallied support for the BJP?

Just what did happen in a mere hour that the cheerleading got replaced with a list of sage reasons, ranging from the lazy intellect of Biharis to weird conspiracy theories. All sort of reasons but scarcely any blame getting attributed to the Modi-Shah duo or any the BJP’s lackluster governance. It was quite striking when you consider that only an hour earlier, paeans were being sung to them for their vision, sagacity and efforts. Now, if credit was to be given for good show, how can the same people not be blamed for a bad show? Just how different from Congress is this ‘party with a difference’. There too, all victories are by the ‘Grace of Gandhis’ and all defeats ‘collective responsibility’?

This intermittent blogger, to all those who had cared to ask, had all along maintained that there was no way the BJP would win in Bihar, and that too for the most simple and obvious of reasons.

Modi triumphed in 2014, buoyed by a ‘wave’. Then, the general public voted for an icon, an idea that would deliver them from the hopelessness all around and guide them to a better future. Seventeen months in power is a long enough time for people to form impressions whether their hopes are being fulfilled. If they are not, people may still cling on hope, but definitely will not rally around the hope-giver like they had done previously. And even otherwise, Modi wave was a catharsis of frustrations, blood and tears of many. Our most successful politician ever, Mohandas Karamchand Gandhi knew that public emotions cannot be aroused again and again. Hence, he kept a lag of a decade in between each of his major mass movements, from the non-cooperation to the Civil disobedience to Quit India.

Can we rationally expect people to come out and vote in droves for a messiah who may be false? Can people really be expected to vote for someone who seems disconnected with the masses, disowns electoral promises, talks haughtily and most critically, under whose rule, the humble onion, dal and mustard oil became food for the not-so-humble?

To all those who claim that the outcome of even 2014 would have been different had Nitish-Lalu allied in those elections, I beg to differ. History shows that individual vote shares of 2 parties do not translate into an absolute total when win alliance. Most candidates being their own loyal votes too, the core vote of the party could be lesser than the increments provided by the candidates. A case in point would be Maharashtra where the combined vote shares of NCP-Congress when they had contested separately was over 50%. If elections were sum of core vote shares, there would not have been any point in strategising, in conducting strenous campaigns. Outsiders like AAP would never have made an impact anywhere. So the claim that the BJP was at a huge disadvantage needs to be dismissed. To say that backward castes polarised is disingneious. Major chunks of even Brahmins and Rajputs have voted for Mahagathbandhan. Moreovr, polarization carries an inherent risk of counter-polarisation. Given the Modi wave in 2014, there is little to suspect that even a Nitish-Lalu combine could have worsted NDA in Bihar.

Many Modi apologists keep on claiming that 17 months is too small a period to undo 60 years of mess.

Was India really a complete mess in these last 60 years? No, it wasn’t! And does it really take 5 years to make a difference to the lives of people? Again, no – it doesn’t!

A case in point – only a few months in the NDA’s first regime in Bihar, there was a perceptible improvement in law and order. The first few months of UPA saw such momentous (some may say disasterous) actions in terms of NREGA, RTI and so on. Each spell of Mayawati’s rule in UP invariably sees an improvement in general administration. Modi’s own 1^st stint in Gujarat saw a dramatic improvement in the relief and rehabilitation measures being taken for the earthquake survivors. Kayan Singh’s 17 month old Government, even when pre-occupied with the Ram temple liberation movement, gave the best governance UP had had in years.

Just how long is incrementalism or planted stories on Modi’s work ethics going to sway the gullible masses? If we believe that Modi’s promises led people to vote for him, how can we reject the hypothesis that his u-turns on those promises disillusioned at least some of his voters, who if not voting for his opponents, did not vote for him this time? That if people rallied to vote for him driven by his promise to get black money stashed abroad back to India, would at least some of them, not reacted with disgust when the party president called those promises mere jumla?

In isolation, neither Modi’s taste for rich dressing, his insipid governance, his u-turns would have been strong enough to prompt people not to vote for the BJP. But together, they certainly take away the sheen off the self-proclaimed deliverer and show him to be just another politician, a glib talker, a jumla master, an alliterating demagogue, but at the end of the day, just another self-serving politician, in service to the suited-booted of the world.

Now, if the voter had to choose between just another politician and his own caste brethren, why would he overlook his caste loyalties? On the other hand, if he had felt that the great leader was actually working to change his (the voter’s) life for the better, he would have cared little for caste or the contrived controversy over Mohan Bhagwat’s comments (which I maintain, going against conventional wisdom, was factual and had nothing objectionable in it)

On governance, just how credible an attack on Nitish for his mis-governance when the BJP was very much a part of his government for 8 years? Personally, I had relied on the average Bihari’s appreciation of Nitish’s efforts in delivering them from jungle raj to bless him with their votes. They did. I dare say that Nitish could have fought alone and still managed a comfortable number of seats to gain support from Congress and RJD to form a government with less dependence on Lalu for survival.

Ever since the impact of Nitish’s governance had been manifest on ground, the NDA had hardly lost any election in Bihar, be it the general elections or bypolls. Hence, to claim that the Bihari does not reward good governance is plain lazy blame-shifting,

Finally, the Lalu factor. The media loves to write off people. It loves to deify people. Then it loves to write them off again only to deify at a later date. It is simply because extreme tales grab eyeballs much more than plaid staid facts. Even in the worst of times, Lalu commanded some 20% vote share in Bihar. Any commander of 1 in 5 voters in the state is a formidable force, particularly in the 1^st-past-the-post electoral system of India. That the RJD came back from the dead is a story only for those who confuse sensationalism with news. RJD was never dead. It simply prospered again in the right conditions.

If anything, the story of RJD’s rejuvenation should provide a jolt to those Modi-worshippers who had actually started believing in fanciful tales of a Congress-mukt Bharat.

In its worst ever performance, the Congress has managed to win over 18% of votes. A few right alliances, a few more failures of Modi, a little more of people shedding their hopes and it won’t be long before the Congress, aided by dispirited Modi supporters staying at home, wins a vote share of 23%-25%, sufficient enough for them to form Government once again.

Some optimistic right-wingers believe that Modi/BJP will learn their lessons from this defeat. Lessons they will surely learn, but all the wrong ones!

Rather than focusing on making people’s lives better, the trio of Modi-Shah-Jaitely is likely to focus on keeping the ‘fringe’ in control. That the BJP’s performance post ‘cow-polarisation’ in Seemanchal was comparatively much better than in rest of Bihar would be lost.

We know what happened in 2004. Then, the arch-secular BJP was routed and it took 10 years of UPA misrule for it to make a comeback. Let’s make no mistakes; Modi would not have become the phenomenon that he became had the UPA under Rahul Gandhi not been his alternate.

Today, if elections are conducted, inspite of all the disillusionment, Modi may still emerge as the leader of choice, though by a much reduced majority. The same Bihar which has voted for Nitish-Lalu now may still vote for Modi as PM. All this for 2 reasons. There are still vestiges of hope. People do not want to lose hope till they can. And even more importantly, there is no credible alternative to Modi on the horizon right now.

Yet, it will take only a few more mis-steps and a sustained campaign by a re-branded Rahul or a Priyanka or even a Nitish, to ensure that Modi and the BJP get confined to history in 2019. The diiference with 2004 would be that this time, the exile would be much longer. While Modi could not deliver a Congresss-mukt Bharat, the next rulers would definitely ensure a BJP-RSS mukt Bharat in their rule.