The 2015 Juvenile Justice Act puts troubled children in the hand of bad adults
MD, a troubled teen aged street boy, was a regular visitor to my place of work, which at the time was housed in a municipal school in Mumbai. As he walked up to our 2nd floor office, he would eve-tease young girls from the school. Once or twice, he even tried to get close to them. Mama (uncle) the school watch-man, kept a close eye on him, ensured he didn’t cause anytrouble, repeatedly corrected him caringly, but never stopped him from entering the premises. MD visited us every day. What drew him to us was the nurturing and affection he received from everyone in the office.
If Mama and MD were around today, and if Mama had followed the public outrage, which led to the passing of the new juvenile justice law, would he treat MD with the same concern and care? Would he have begun to think of MD as a monster, and stopped him from entering the school building? Who would MD go to?
The new Juvenile Justice (care and protection of children) Act (JJ Act), 2015, excludes certain children between 16-18 years of age, who commit heinous crimes, and treats them as adults. Data on juvenile crimes tells us that almost 80% of the children apprehended, are like MD, from economically and social backward families. Any basic reading on India’s poor will tell you that they are low caste, tribal, from certain regions, religions or communities. As the law begins to take effect, it is a serious worry that thousands of children who live on the fringes of society, struggling their whole lives for survival, will have no one to fight for them, and may eventually end up in prison. With a clear direction in the law to criminalize such young people, people too, in time, will view such poor youth with fear and suspicion, and will want to cast them away. This is unjust and unfair.
And there is a lot more to consider.
15-year old Savita Kumari, ran away with 17-year-old Pavan Kumar to Delhi where he worked as a construction labourer. She found him very impressive - his clothes, his money, and his mobile phone. In a few months she returned home disillusioned. The fight, which ensued between the two villages reached a flashpoint, when a compromise was reached. Savita was forcibly married to Pavan. The only other way this case would have ended is that, Pavan would have faced a charge of rape and Savita would have been married off to someone else.
Those who work with children in communities know that the bulk of children who face charges of rape, are actually teenagers in consensual sexual relationships Young people eloping is becoming more and more common, both in poor rural as well as in urban communities. It is almost endemic. Boys and girls do not necessarily want to marry, but since romantic relationships and consensual sex are taboo, they ending up running away.
Under the Protection of Children from Sexual Offences Act (POCSO), a child cannot consent to a sexual act until the age of 18, so any act of sex, even consensual, is deemed to be rape. The age of consent under POSCO, raised to 18 from the earlier 16 years of age, and the judicial waiver in the new JJ Act, allowing children to be tried as adults, form a lethal combination, where children like Pavan could be tried as adults and face harsh sentences in prison.
While the law states that juvenile justice boards (JJBs) will be equipped with expert psychologists, who will conduct a preliminary assessment to determine whether a child should be tried as an adult based on an assessment of mental and physical capacity of the child, circumstances in which the offence was allegedly committed and the child’s ability to comprehend the consequences of the offence, will the JJB and their expert psychologists, be able to act in a just and fair manner, when confronted by an angry mob and screaming media, who want to play judge, jury and hangman, demanding justice for the victim, revenge against the boy?
More likely than not, the JJBs, whose members are local, and from the district, will succumb to the pressure. They will prefer to wash their hands off the case and will end up transferring most cases to the adult court. And thousands of children like Pavan Kumar will lose their chance of getting reformed. Whether or not the thousands of JJBs in this country, will be able to recruit expert psychologists at a poor wage is a separate matter.
The poor teenagers of society are not the only ones who are eloping or in consensual sexual relationships. The judicial waiver in the JJ Act, 2015 will not only affect the youth on the sidelines of society, but will also affect the urban, elite, rich, powerful strata of society, who assume they are immune, and they too could end up in prison for long durations,which may include life sentences.
A, a teenage boy, raped G. A reputed organization with expertise on juvenile justice worked intensively with both A and G giving them a lot of counselling and support. They helped A to accept his actions, and to accept himself, after what he had done, and helped G to deal with the trauma, heal, and begin to move forward with her life. After a while, the agency facilitated an interaction between A and G. A apologized to G and begged her for forgiveness for his actions. G found that she was able forgive A, in time, and felt that it was helpful in her process of healing and moving forward.
The JJ Act 2015, has taken a big step away from its progressive legacy of reformative justice for juveniles, and has regressed towards revenge and retribution. The innovative programs run by organizations such as the one that intervened in the case of A and G, should have been studied, and scaled up. Instead, now A stands a good chance of going to jail. He will also fall within the disqualification clause, which will ensure that he will not be able to get a government job, or apply for a passport, among other things. There is a high likelihood that he will come out of prison, trained and eligible, only for a life of crime.
A district level baseline study for child protection conducted by an NGO across 4 districts in 3 states covering 117 villages, found that 87% of communities perceived drug addiction and substance abuse to be a real threat to their children. Some of the children started using drugs when they were just 8 years old.
The study presented reasons for the same. Poverty drove children to work, working gave children access to money, becoming a contributor to the family income, made them independent of parental controls.These young growing bodies, saddled with adult like responsibilities to earn and support their families, coupled with the stress of hard physical labour for long hours, led them to using drugs and alcohol as coping devices. The new JJ Act, 2015, defines all offences punishable with 7 years of imprisonment and more, as heinous offences, and could send children between 16 and 18 to prison, if caught with commercial quantities of drugs, or if they are in premises that contain commercial quantities of drugs, or even sharing one’s own premises with those who are peddling/or caught with commercial quantity of drugs. A very large number of children could now face adult sentences for drug related crimes.
“Whenever there is fear of agitation or trouble in the district, the authorities round up and put away young people, sometimes even for just standing in a group,” the voice of young people in a district affected by conflict.
In areas affected by conflict and civil strife, young people often complain of being ‘picked up’ by the authorities without much reason. Young people can now be tried as adults for waging war, abetment of crimes, and trafficking. One worries that the new law could lend itself to be manipulated, by those with vested interests, and used to put away certain groups of children from certain regions and communities.
The new JJ Act, 2015, denies children the right to make mistakes.
A phenomenon inherent to childhood and adolescence. Child psychologists, world over, have established that adolescence is a time when children are going a great deal of changes-physical and hormonal. It causes emotional turmoil, an intense desire to fit in with peers, and results in rash decisions which could have grave consequences. International brain science experts have also put out evidence which prove that adolescent brains are not fully developed, the parts in a human brain required to make rationally assessed decisions simply do not exist in the adolescent brain.
The broad definition of heinous offences, include, as enumerated by legal experts, 46 offences for which children could get put away for years. Under the erstwhile juvenile justice regime, the State fulfilled its commitment to protect children.Unconditionally. It recognized that all children in their adolescent years are prone to experimenting, predicted that some would make mistakes, and provided space for second chances - for them to be reformed and rehabilitated. Even if they made grave mistakes.
The government ignored facts, which clearly point out that over the last decade children apprehended for crimes never exceeded 1% of all those apprehended for crimes. Instead of addressing why this small proportion (~0%) of children from out of 400 million, fall out of family and community safety nets, and doing something about it, the government has pandered to mob emotions and abandoned a progressive legacy of more than a century, whose thrust was on reformation of children who committed crimes. India chose retribution and revenge instead, and made a decision to send children to prison.
Children like MD, Pavan Kumar, A, and thousands more, are products of a state and society which looked the other way, and did nothing for them when they needed help. When they make mistakes, and as children they will make mistakes, they will not get a second chance. They will be sent to prison, and when they come out of prison, they will only be fit for a life of crime. Is this really what India wants?
(The write is co-founder and Director, Leher, a child rights organization; the views expressed here are personal)