Is India stepping back from reformative justice?

A 23-year-old pharmacy student was brutally gang raped by six men on a moving New Delhi bus in Dec 2012. Later, she died from her injuries whilst in hospital. Four of the six rapists were sentenced to death, one was found dead in jail, and the sixth, described by witnesses as the most savage, was confined to a reformation house for three years because at 17, he was still a juvenile.

Fast-forward to August 2014, the Union Cabinet approves a bill, a provision of which if passed, would allow 16-18 year olds to be tried as adults when arrested for heinous crimes such as rape and murder. By dropping the juvenile age from 18 to 16 yrs, the JJ Bill 2014 will allow the magistrate of the Juvenile Justice Board to decide whether to try a suspect between 16-18 years as an adult under the Indian Penal Code or as a juvenile, for which the maximum punishment is only 3 years confinement in a reformation house. A death sentence or life imprisonment will still not be permissible for minors under the Indian Penal Code.

India has seen a sharp rise in violence against women committed by minors in recent years. The total rapes by minors rose from 485 to 1,149 in 9 years. The Chairperson of the National Commission of Women, Mamata Sharma is in favour of the move. She says that Government data shows that crimes committed by juveniles increased from 27,936 in 2012 to 31,725 cases in 2013. “ There has been a whopping 132.3% rise in cases of assault on women, with a 60% increase in rape cases. Delhi alone saw 137 cases of rape committed by juveniles during the year 2013” she told Gulf News.

The united nations children’s fund (UNICEF) responded to the approval of the bill by stating it was a “real step back”, saying that the new bill could be a significant deviation from the Juvenile Justice Act, 2000, which was drawn in compliance with the Child Rights Convention of 1989. “The recent Union Cabinet approval of the Juvenile Justice Act amendment to empower the Juvenile Justice Board to decide whether a juvenile above the age of 16 years involved in a heinous crime is to be tried in a regular court, constitutes a real step back”, the statement read.

Human rights activists agree. ProChild Network, a coalition of child rights organizations, practitioners, lawyers and academics in India has strongly denounced the reenactment of the bill, in particular, the provision in discussion. Child Rights’ activist, Arlene Manoharan says, “we believe that the revised draft of the amended Juvenile Justice Bill has also misrepresented some facts: the new bill makes it possible for a juvenile to be sentenced to death and life imprisonment for offences under laws other than the Indian Penal Code. Now a juvenile found guilty of offences under the Narcotics Drugs and Psychotropic Substances Act, Schedules Caste and Scheduled Tribes Prevention of Atrocities Act, Commission of Sati (Prevention) Act, Unlawful Activities Prevention Act, and the Maharashta Control of Organized Crime Act, could be sentenced to death or life imprisonment without possibility of parole.”

Activist Bharat Ali told Gulf News, “There’s an underlying attitude of criminalization of all juveniles in the bill which is a dangerous move away from the principles of reformative justice. We strongly condemn all sexual violence, be it by adults or juveniles, none of which can be justified by any means whatsoever. But we also condemn pitching human rights of women against human rights of children since that will not provide an answer to creating public safety or a healthy society. This bill is a misguided attempt at promoting public safety as it is based on a flawed reading of the data on juvenile crime.”

Deepak Parivar argues in his article for www.elections.in/blog that apart from the discussion around violence against women, the bill responds to current terrorism trends as well. He says in July this year, interrogations of a terrorist in disputed territory, Jammu and Kashmir brought to light a rather disturbing fact that terrorist group Lashkar-e-Toiba asked its members to declare their age to be under 18 years so as to be tried under the Juvenile Justice Act with its relatively mild consequences.

Besides terrorists, he says, organized crime rings now also recruit juvenile operatives and that it comes as no surprise that there has been a 65% increase in the involvement of minors in serious crimes.

But Manoharan believes that the misconception that the present Act gives impunity to juveniles who committed crimes needs to be dispelled. She argues that the existing law provides for juveniles to be held accountable for their actions in a manner that enables them to reintegrate into the community with dignity and hope. And that evidence from across the world shows us that sending children to the adult justice system produces career criminals.

The bill also encompasses procedures handling the rehabilitation and social integration of children in need of care and protection, allowing for smoother adoption processes and stronger punitive measures against offenses committed against children, including the abandoned.

The Indian Supreme Court rejected previous attempts to revise this provision, dismissing eight writ petitions that challenged the Juvenile Justice Act and its provisions as unconstitutional.