Rajul Jain, Legal Research Officer, Shakti Vahini
There has been much debate about the lenient attitude that the minor/under 18 male accused in the gang rape case will be receiving because of the applicability of the Juvenile Justice Act. The people have been demanding the lowering of the age bar for juvenility and the media has published several articles analysing the judgments of High Court and Supreme Court where juveniles have walked free after lenient reformative measures under the Juvenile Justice act. Criticism and blaring headlines have followed. On the face of it, it would indeed shock the conscience of any person. However, in all this debate the most important line of thinking and reasoning seems to have been lost somewhere. No one seems to have asked the important question of what led the minor accused to end up in circumstances in which he was. Why was he unsupervised? Where were his parents when he was intermingling with much older persons?
Isn’t it true that these questions are as relevant in the chain of events that led to the gang rape as the crime itself?
Jumping to conclusions and demanding that the age of minority be reduced to say 16 or even below, is probably the easiest way out of the problem. Or, so we think. And such a line of thought totally misses out on the fact that there are societal problems that shape the mentality and psychology of the youth/juveniles in the country. If next time a 14 year old is involved in a heinous crime like rape or murder, would that warrant lowering the age bar under JJ Act even further?
The main problem that needs urgent attention of the society and the government alike is the values we impart, institutional setup and educational facilities among other things that exist for the children of our nation rather than debating the moot point of the relevant age limit.
Putting it simply, the implication of lowering the age bar, to say 16, would put persons who have attained the age of 16 (and above) at par with adults and makes them criminally liable for their actions. Should they then not have the right to vote and exercise the right to choose a government like adults? How will we, then reconcile the differences which will arise in the mandate of Prohibition of Child Marriage Act, 2006 and the right of a girl/ boy to choose a life partner and settle down with him since he or she is not 21 or 18 years old, respectively.
It is quite a peculiar proposition that a person who is not mature enough to “get married” and “have children” is imputed the maturity to “scheme crimes”.
It would also result in putting behind bars a large number of youths who go astray for reasons they themselves are not responsible.
The legislation of India with respect to juveniles, as it stands currently, is largely in compliance with the UN Convention on Child Rights.
A sneak peek at the mandate of UN Convention of Child Rights
The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights. In 1989, world leaders decided that children needed a special convention just for them because people under 18 years old often need special care and protection that adults do not. The leaders also wanted to make sure that the world recognized that children have human rights too.
The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. Every right spelled out in the Convention is inherent to the human dignity and harmonious development of every child. The Convention protects children’s rights by setting standards in health care; education; and legal, civil and social services.
By agreeing to undertake the obligations of the Convention (by ratifying or acceding to it), national governments have committed themselves to protecting and ensuring children’s rights and they have agreed to hold themselves accountable for this commitment before the international community. States parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child. (1)
Prevention vs. Penalising
In the ultimate analysis it appears that the debate is much more about whether we are ready to shoulder the responsibility of a deteriorating system and society, where the youth does not have access to even some of the most basic facilities and thus go astray turning into juvenile delinquents or we want to put them behind bars and feel a sense of empty satisfaction and safety.
The emphasis of the international law as developed under the convention and the guidelines appears to focus on the prevention of circumstances that would lead to juvenile delinquency. The United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) specifically lays down as a fundamental principle that “The successful prevention of juvenile delinquency requires efforts on the part of the entire society to ensure the harmonious development of adolescents, with respect for and promotion of their personality from early childhood” and there should be the provision of opportunities, in particular educational opportunities, to meet the varying needs of young persons and to serve as a supportive framework for safeguarding the personal development of all young persons, particularly those who are demonstrably endangered or at social risk and are in need of special care and protection.
This important document further discusses the imminent role played by the family institutions and relations and states that “Governments should establish policies that are conducive to the bringing up of children in stable and settled family environments. Families in need of assistance in the resolution of conditions of instability or conflict should be provided with requisite services.” Also that “Where a stable and settled family environment is lacking and when community efforts to assist parents in this regard have failed and the extended family cannot fulfil this role, alternative placements, including foster care and adoption, should be considered. Such placements should replicate, to the extent possible, a stable and settled family environment, while, at the same time, establishing a sense of permanency for children, thus avoiding problems associated with “foster drift”. It further stresses on the role of the government to provide support to the families affected by socio-economic and cultural changes and in promoting parent-child relationship and sensitizing the parents about problems of children. It also argues for promoting and encouraging socialization by children to ensure that their developmental needs are met.
Another section in this guidelines document stresses on the role of education as a preventive measure against juvenile delinquency. Further, it calls for community based support measures for young persons, including community development centres, recreational facilities and services to respond to the special problems of children who are at social risk and also development of shelter homes and counselling, assistance and therapy-oriented interventions.
In addition to the aforementioned points it also provides for several important guidelines for mass media like “The mass media generally, and the television and film media in particular, should be encouraged to minimize the level of pornography, drugs and violence portrayed and to display violence and exploitation unfavourably, as well as to avoid demeaning and degrading presentations, especially of children, women and interpersonal relations, and to promote egalitarian principles and roles. “ It also argues for the government to provide young persons with the opportunity of continuing in full-time education, funded by the State where parents or guardians are unable to support the young persons, and of receiving work experience and that the Government should begin or continue to explore, develop and implement policies, measures and strategies within and outside the criminal justice system to prevent domestic violence against and affecting young persons and to ensure fair treatment to these victims of domestic violence.
It is important for India as a nation to evaluate its efforts with regard to development of the children against these guidelines and understand that the problem of juvenile delinquents is a result of failure of the society as a whole rather than one individual. It is our combined responsibility to protect the children of our nation than expecting them to be mature enough to understand everything at a tender age.
With the breakdown of familial relations rendering hundreds of children homeless and orphans wandering and on the streets, school education still a distant dream, mass media blaring with male chauvinistic comments of the self proclaimed god men and politicians which promote patriarchal beliefs suppressing women, lack of infrastructural and expert support for child needs, it is definitely not the children alone who are at fault.