India Has Just Criminalized Children
23 December, 2015
The mob just drew the second blood, riding on its ‘outrage’ over 16 December 2012 Delhi gang rape case, real or pretended. It was baying for the blood of a mere individual, the juvenile convict of that case which known to be come as “Nirabhaya case’ but got much more- blood of justice itself in getting the wrongly named Juvenile Justice (Care and Protection of Children) Bill, 2015- the bill that allows trial of juveniles accused of ‘heinous’ crimes as adults, in the adult justice institutions.
Why the second blood? Because it comes just a little after Indian State’s refusal to lower the age of consent for consensual sexual activities, in a country billed to be the next super power and is, for all practical purposes, the reigning information technology superpower. Second blood, because in the same country parents of a girl, any girl, even a day short of being 18 years old, can slap a rape charge on her partner even in a consensual relation, call it sexual or sexual experimentation.
Second blood because that had added to the arsenal of the families ‘affronted’ in the ‘patriarchal society’ that India is to add a rape charge to the earlier ‘kidnapping’ one they used to throw at the juveniles in love- that is any male less than 21 years and female less than 18, even if this ‘less than’ was not a day more than being that. Second blood, though, not for being able to even charge ‘adult’ sons and daughters for being minors in a society corrupt to the core where getting falsified birth certificates is no tougher than buying a mobile phone in developed societies.
But none of this is what should enrage one against this juvenile (in) justice bill passed by the Rajya Sabha yesterday. I could have these, and a thousand more, if this was just another one in the long line of attacks launched by the incumbent government of India on the soul of the republic.
What should worry us all, indeed, is the fact that this Juvenile (IN) Justice (Care and Protection of Children) Bill, 2015 has nothing to do with the outrage it came riding on. YES, it has nothing to do with the brutal rape and murder, and the outrage that came out of. It criminalizes, and condemns to, all juveniles ‘in conflict with law’ with any crime punishable worth 7 years or more—the definition offered by the Indian state of ‘heinous’ crimes. There was an outrage on a brutal gang rape and murder; and Indian state used it to extend it to all crimes carrying a punishment more than 7 years.
If you have read that, never mind the fact that the bill turns the ‘juveniles in conflict with law’ into criminals without even giving a thought to what brought that first phrase into legal vocabulary. Never also mind the fact that the bell defines heinous crimes simply as those carrying 7 years or more (as I said earlier) as prison term and can include anything- from sedition to trafficking and not merely rape and murder.
One can easily imagine the impact of this on the children caught in the wars being waged within the republic- from Maoist insurgency in its heart to various ethnic and nationality struggles being waged on its peripheries. Would one, even with a cursory idea of how law enforcement agencies operate in such conflict zones, would be surprised seeing scores of under 18 years old being slapped with charges like waging war against the country and then tried as adults?
This Bill is blatantly unjust and goes against even women whom it claims to protect and not only children for various reasons. The arguments against the Bill are countless. The bill falls foul of international juvenile jurisprudence and many of the international covenants and treaty bodies India is signatory to. There is no dearth of studies giving evidence for the fact that lowering the age to juveniles in conflict with law to be treated as adult has not brought down juvenile crime rates in single country if not increasing them right away.
Never mind, also, the fact that the Bill also stands in contravention with Article 15(3) of the constitution of India which allows special legislation only “for” the children and not “against” them.
Most worrying thing about the passage of this bill, however, is mainstreaming of public anger and outrage as a legitimate source of lawmaking, something acknowledged by the lawmakers themselves. Take Indian National Congress MP and former Under-Secretary-General at the United Nations Shashi Tharoor’s view on the bill for instance. He has asserted during the Lok Sabha debate on the same Bill on 6 May, 2015 that
“If we pass this Bill, I say it to our treasury benches, posterity will judge us harshly. The child is our future. We must protect the child, rescue the child and not destroy the child. ... I must sadly accuse the Government of having chosen political expediency over justice.”
Even yesterday, in the Rajya Sabha, many a sane voices opposed the bill in its current form and recommended sending it to the Select Committee for further deliberations. And yet, at the end of the debate barring the Left wing parties all of them chose the same ‘political expediency’ over justice. They had to, perhaps, as Women and Child Development Minister Maneka Gandhi who moved the Bill and later replied to the debate consistently reminded the members that Nirbhaya’s parents were ‘watching’ them from the gallery.
The passage of the Bill is a dangerous development in the life of the republic also because of the fact that age of consent for sexual activities remains stuck at 18 years for both girls and boys. In a society living with the paradox of progressively increasing interaction between girls and boys and deeply entrenched patriarchal moors, it is not uncommon to see young adolescents in consensual sexual relations being charged with rape by, most often, girl’s families.
Need one remind that this bill, once signed by the President, would mark the end of the road for many of them? This should have been the reason alone for junking such a regressive bill in a society, again, known for juveniles getting named in everything- from family feuds over land to personal enmities to young couples in love getting forcibly separated by their families. The warring families, especially in cases of elopement or marrying in defiance, slap kidnapping (yet another ‘heinous’ crime) and rape cases on the boy.
Sadly, despite all the outrage against the rapists, juvenile or otherwise, these consenting adolescents are going to be one of the worst victims of the new law. Even more sadly, such injustices getting legalized by the system are often all that public outrage way to justice ended up with. The first bout of Nirbhaya Outrage, championed by civil society members opposed to death penalty and wanting lowering the age of consent for consensual sex, has ended up in getting the opposite- death penalty getting added to rape cases while no lowering of the age of consent for consensual sex.
One can only hope that the civil society segment of the outrage industry learns its lessons at least now, the lessons that outrage is no substitute to criminal justice reforms. Let’s hope till then, that the President sees the injustice inherent in the bill and returns it for a rethink, alas that is all he can do.
Samar is Programme Coordinator - Right to Food Programme Asian Legal Resource Centre / Asian Human Rights Commission, Hong Kong