Plainclothes police escort the juvenile convict (head covered in towel) after he was sentenced to three years of juvenile imprisonment on August 31, 2013 for rape of the Nirbhaya gang.
With the Delhi Supreme Court deciding whether to publish the juvenile convict in the Nirbhaya case – the December 16, 2012, rape of a later-deceased 23-year-old physiotherapy student in Delhi – a nationwide debate is over on the treatment of juveniles as adults increases as teenage crimes increase.
Juvenile offenses registered under the Indian Penal Code (IPC) rose 47% from 22,740 cases in 2010 to 33,526 cases in 2014, according to the National Crime Records Bureau.
These data seem to support Nirbhaya’s parents’ claim that their daughter’s juvenile rapist should not be released – Minister for Women’s and Child Development Maneka Gandhi admitted that she agreed and that the government would re-arrest him if possible would. -But according to the law, he must be released after three years in prison. This could happen on Sunday unless the Delhi Supreme Court decides otherwise.
Yesterday the central government requested an extension of the youth’s stay in an observation home in order to clarify details after his release.
However, the youth crime data raises five questions, the answers of which suggest that things are not as obvious as they seem.
1) What do the NCRB data say?
“The point to note is that crime data in India is based on initial intelligence reports (FIRs) submitted by the police, not actual convictions,” said Swagata Raha, senior researcher at the Center for Child and the Law (CCL), National Law School of India, Bangalore.
Although juvenile delinquency increased by 47%, the proportion of offenses committed by juveniles in reported offenses ranged from 1% to 1.2% over the past five years.
In addition, relapses or repeat offenders among young people have decreased over the past five years from 12.1% in 2010 to 5.4% in 2014.
2) Should young people between the ages of 16 and 18 be brought to justice under the Adult Act? Or should the trial age be lowered?
The idea of lowering adolescence has been hotly debated since the Nirbhaya case.
In October 2015, a two and a half year old girl in Delhi was raped by two boys aged 16 and 17, prompting Prime Minister Arvind Kejriwal to propose that the age of rape trials should be lowered from 18 to 15 years.
Legal and children’s rights experts think this is not a good idea.
“When the Indian government turned 18 to enter the adult criminal justice system, it was the right thing,” said Karuna Nundy, attorney for the Supreme Court. “The Convention on the Rights of the Child recommends this too, and for good reason.” The move to lower the age for heinous crimes to 16 is wrong. “
There are three points to keep in mind, said Nundy:
- Juvenile justice exists so that young people who commit crimes will grow up to be responsible adults. The system wants the perpetrator to understand the exact damage caused, that the judgment takes into account what the victim or the next of kin want (but only within a legal framework) and ensures the perpetrator’s rehabilitation. Teens sent to the adult criminal justice system would only make new hardened repeat criminals with criminal networks.
- Research on the brains of teenagers under the age of 18 shows that it is difficult for them to control impulses and to resist peer pressure. Your developing brain can also be reformed.
- Adequate resources must be provided to juvenile justice to turn criminals into citizens who take responsibility for what they have done, repented and reformed.
Their views were confirmed by Raha.
“We firmly believe that anyone under the age of 18 should be treated under juvenile justice,” said Raha. “This is because of their reduced guilt and reform proneness. Treating them as adults would violate the constitutional right to equality and our obligations under the UN Convention on the Rights of the Child.”
In 2013, Bharatiya Janata Party (BJP) chairman Subramanian Swamy filed a petition with the Supreme Court to reconsider the definition of “teen”. He asked the Supervisory Committee to take into account “mental and intellectual maturity” instead of the age limit of 18 years.
His petition was dismissed by the Apex Court, which found that the provisions of the law were in line with constitutional guidelines and international conventions.
3) Should the Juvenile Justice Bill 2014 be implemented?
The 2014 Youth Justice (Welfare and Protection of Children) Act was introduced in Parliament by Maneka Gandhi in August 2014. It was adopted by the Lok Sabha in May 2015, but is still pending in the Rajya Sabha.
The bill proposes some radical changes, the most critical of which is to allow young people between the ages of 16 and 18 to be tried as adults for heinous crimes.
The CCL believes that this provision violates the constitutional guarantees of equality, the right to life and the UN Convention on the Rights of the Child.
In addition, the proposed change is based on a misinterpretation of the heinous crime data.
In the 16 to 18 age group, 844 murder cases (1.2% of all murders) and 1,488 (3.08% of all rape cases) were recorded. Experts argue that this cannot be the basis for drastic changes in youth laws.
“When reading the rape numbers, it is important to bear in mind that the Child Protection from Sexual Offenses Act of 2012 raised the age of consent from 16 to 18,” said Raha. “This has meant all forms of consensus.” Sexual activities among adolescents are also a criminal offense. We find that her friends’ families have filed several cases of rape against boys. “
Changes to rape laws, along with increased awareness reporting, have resulted in a 151% increase in the number of cases reported in five years. IndiaSpend reported earlier.
Many clauses of the proposed 2014 Juvenile Justice Act are “problematic” and violate constitutional and international conventions, Raha said.
Clause 15 (1): In the case of a heinous crime allegedly committed by a child who has reached the age of 16 or is older than 16 years, the Chamber will conduct a preliminary assessment of his mental and physical ability to commit such a crime commit. Ability to understand the consequences of the crime and the circumstances in which he committed the crime.
The “arbitrary and irrational” procedure, as it is described by experts, violates the basic guarantees of Articles 14 and 21 of the Constitution, according to the CCL.
Even medical experts claim the proposed assessment is flawed.
“Identifying the mindset of an adolescent who is alleged to have just committed a heinous crime leads to an arbitrary” opinion “that has no scientific validity,” said Shekar P. Seshadri and Raghu N. Mani, Professors, Department of Children’s and adolescent psychiatry. NIMHANS, Bengaluru, wrote in a column in the Hindustan Times.
They argued that the proposed assessment of a child’s mindset at the time of the alleged crime could not be scientifically done; This could lead to arbitrary opinions and fuel court decisions that could radically change a child’s life course.
4) Does the new draft law affect young people from the most disadvantaged backgrounds?
Yes. Fifty-six percent of youth accused of crimes come from families with a maximum annual income of 25,000 rupees, while 53 percent of youth are either illiterate or in primary school.
5) Should cases that evoke public emotion be treated separately?
The Nirbhaya case evoked a lot of emotion, aided by the brave face of Nirbhaya’s parents, notably the suggestion that the juvenile convict was the most brutal, which the Juvenile Justice Board later did not rely on on evidence.
Being emotional is part of the problem, Nundy said. “We need to remember that the steps we are taking emotionally should benefit society as a whole, not just to satisfy the consciences of angry citizens,” she said.
“We cannot begin to understand the fear that Nirbhaya parents continue to experience and we sincerely hope that they will be assisted in closing this terrible incident. However, what brings closure and peace to one family may not be the same as others. “said Arlene Manoharan, Program Director, Juvenile Justice Team, CCL. “Research from other countries shows that closure and healing of deep-seated anger, disenchantment, and pain can be more effectively reached through therapeutic interventions, including restorative justice approaches, that have worked effectively even with serious sex offenders. “
(Saha is a freelance journalist based in New Delhi.)
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