The Bihar police have arrested Ruby Rai, a 17-year-old girl, under Sections 420, 465, 467, 468, 471, and 120(B) of the India Penal Code on 26 June 2016 and have duly sent her to jail, i.e. an adult jail. Her alleged crime is that of cheating to secure top rank in the state senior secondary school examination. Questioned by a journalist after the exam, she couldn’t correctly answer even the most elementary questions. She is not the only one to be caught red-handed. There are three others who all failed to answer basic questions on subjects they had just “topped” in the exam.
The rot in the educational institutions of most Indian provinces is near total. They are so infested with various syndicates engaged in cons, corruption, and forgery that their being institutions is a fact that has become secondary to the institutionalised Mafiosi that rules within. This Mafiosi, duly known as cheating mafia, admission mafia, selection mafia, and so on, have grown like parasites to take over the hosts.
The most infamous of them all has operated in the Madhya Pradesh Professional Examination Board (MPPEB), popularly known by its Hindi acronym, Vyapam. The Vyapam exam scam is now under a Central Bureau of Investigation probe for the suspicious serial deaths of 43 people associated with the scam.
Ironically, from the state to the common people, everyone knows this. They know that most of the teachers they are paying to teach their children have, in fact, bought not earned their degrees. They know that the cops the state pays to protect them have done the same. There have even been instances when the top administrative jobs of provinces being bought and sold becoming public, with the emergence of open rate lists. Ravinder Paul Singh Sidhu, ex-Chairperson of the Punjab Public Service Commission (PPSC), for instance, was arrested in 2002 and convicted in 2014 for openly selling jobs to aspirants.
The parasitic education Mafiosi rules in Bihar as well, and if the cycle is to be broken, the syndicate must be smashed. Arresting Ruby Rai, a minor, and that too after flouting the law of the land, cannot be the way ahead for society. Firstly, she could not have done this cheating on her own. She, after all, is a minor, and someone completely dependent upon her parents, who likely made the deal for her. They are roaming scot free, uncharged! Then there would be administrators in the school where she was tested, right up to the board that governs the examination and prepares the question sheets, and everywhere in between. Some charges have been made and a few arrests too, but the full nature of the racket has not been exposed.
The moot point here is how could the police send a juvenile to an adult jail in complete violation of the Juvenile Justice (Care and Protection of Children) Act 2015 (hereafter JJ Act)? When confronted over this travesty, Manu Maharaj, the Senior Superintendent of Police, who is leading the investigations into the alleged crime, asserted that it is Ms. Rai’s responsibility to prove that she’s a juvenile. He promised that she would be produced before the Juvenile Justice Board if she did so.
The top cop has got it the wrong side up. The JJ Act, promulgated on 15 January 2016, stipulates, in no uncertain terms, that it is his responsibility to prove the age, and not that of a child in conflict with the law. Furthermore, the JJ Act makes it absolutely clear that the birth date recorded on the matriculation certificate or birth certificate by a civic body would be proof enough and only in the absence of either of these can the child’s age be medically determined. The police should have verified her age using her matriculation certificate; failing to do so exposes the real worth of their investigative prowess.
Section 94 (2) of the Act states the following:
“(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.”
Top cop Many Maharaj would also know that the JJ Act, through Section 4, is the supreme authority in dealing with the children in conflict with law, and overrides any other law that might exist.
The police cannot justify its epic ignorance by invoking the bogey of heinous crimes. Yes, in the case of heinous crimes, the JJ Act allows – despite major opposition from civil society and despite being in contravention of many international laws – the trial of children as adults. However, the police cannot use this as justification because the Act defines heinous crimes as those carrying a minimum sentence of 10 years. The charges slapped on Ms. Rai under Sections 420, 465, 467, 468, 471 and 120(B) of the IPC are that of forgery and cheating and none of them carries a minimum sentence of 10 years.
Furthermore, even when a child in conflict with law commits a heinous crime, if it is so recognised, the police are not allowed to simply go ahead and treat the juvenile as an adult. In such cases, Section 15 (i) of JJ Act orders a verification of the child’s mental and physical capacity to commit such an offence before proceeding:
“15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18: Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.”
Evidently, the police have flouted the JJ Act and made a mincemeat of it in this case. The joke that passes of as investigation doesn’t stop here. The police can merely arrest an accused. Only a magistrate can send him or her to judicial custody. Alas, our magistracy has hardly ever been found wanting in obliging police requests for sending people to jail, whatever the (de)merits of the case may be. No wonder the man in black robes chose not to bother with the procedure and showed scant regard for the law in sending Ruby Rai to jail.
So why was she sent to jail flouting all rules? Perhaps the reason is in the fact that the scandal has come hot on the heels of mass scale cheating in the same exams last year, which hit eyeballs across the world and thus outraged local people. The outrage forced the political leadership to be seen to be doing something; in turn the pressure may have forced the police to act and hence the arrest of red-handed student.
Would the arrest, even if wrongful, help deter the same kind of cheating? It was likely her parents that planned it. And, it was society’s emphasis on the ends, not the means, which assisted the same. It was the corruption endemic in the institution that made it possible. And, it is society’s active collusion and a broken criminal justice system that will make the corruption persist.
The system cannot be cleaned up by individual cosmetic acts of arresting children least responsible, and perhaps not even fully aware, of the criminal acts. It calls for a systemic overhaul of the educational institution of the states and weeding out rackets in examinations and admissions and all other aspects in which the syndicates are most infested.
It calls for enrolling the police and judiciary in a refresher course to ensure that they know the law they are supposed to enforce.
The case of Ms. Rai has exposed the decadence in Bihar’s education system. Her arrest has exposed the dysfunction in the police and judiciary.
Rai’s re-examination is one thing.
But who will join the call for a re-examination of the police officers and the magistrate complicit in sending a child to adult jail?
Samar is Programme Coordinator – Right to Food Programme Asian Legal Resource Centre / Asian Human Rights Commission, Hong Kong