By: Ameya Naik<\/p>\n
This is a topic I\u2019m not working on directly right now, but that concerns me\u00a0tremendously. Some readers may recall the nationwide outrage that gripped India in\u00a0December 2012 when a young pharmacy student was brutally gang-raped and\u00a0assaulted in New Delhi, an assault that inflicted injuries which eventually caused her\u00a0death.<\/p>\n
This rape and assault took place on a \u201cprivate bus\u201d \u2013 one of many run by contractors\u00a0to supplement the city\u2019s public transport on busy or under-served routes \u2013 and\u00a0revealed many flaws in the current measures for women\u2019s safety in Delhi. The bus in\u00a0question had driven around for hours as the rape took place and passed multiple\u00a0police checkpoints on its route, raising questions about the focus and efficacy of\u00a0policing and patrol practices. The people of Delhi had taken to the streets in\u00a0unprecedented numbers that December, to protest the laxity of law enforcement that\u00a0permitted such an atrocity, and to demand better mechanisms be put in place.<\/p>\n
Whatever their failings in prevention, the police were exemplarily swift in locating and\u00a0arresting the alleged perpetrators. It subsequently emerged that one of the accused\u00a0was a minor; under the prevailing Juvenile Justice Act (2000), he could not be\u00a0prosecuted in a regular court for his role in this atrocity. News reports sparked some\u00a0confusion on what exactly that role had been: some claimed he had been \u201cthe most\u00a0brutal\u201d assailant, others that he was only a lookout, still others that he was not even\u00a0a minor.<\/p>\n
Regardless of the details, the prospect that one of those responsible for so inhuman\u00a0an act may \u201cescape punishment\u201d on the grounds of minority became a target of\u00a0public ire. Many writers expressed disgust at the idea that 16- and 17-year-old men\u00a0may cynically take advantage of their minority to commit even the gravest offences,\u00a0and escape lightly because they must be treated as juvenile offenders. Calls for\u00a0capital punishment to be imposed in this case were common, and there was a\u00a0chilling lack of concern when another accused was found hanging in his jail cell,\u00a0having apparently committed suicide.<\/p>\n
The erstwhile government\u2019s response to the protests at India Gate had been\u00a0inexplicably heavy-handed: riot police, tear gas, water cannons etc. Today\u2019s\u00a0government \u2013 then the opposition \u2013 now seems to be adopting an equally clumsy\u00a0approach to the matter of juveniles accused of grave crimes: last week, the Lok\u00a0Sabha (lower house of Parliament) passed a law that proposes to have persons\u00a0above the age of 16 who commit such offences tried before the regular judicial\u00a0system, as adults.<\/p>\n
That bill \u2013 The Juvenile Justice (Care and Protection) Bill – is now before the Rajya\u00a0Sabha (upper house) for deliberation. This, despite apprehensions expressed by the\u00a0Parliamentary Standing Committee that reviewed the Bill that it was a knee-jerk\u00a0reaction to an emotive issue. The bill proposes that if a 16- to 18-year-old commits\u00a0an offence for which the Indian Penal Code prescribes a sentence of 7 years or more\u00a0(\u201cheinous offences\u201d), and is then apprehended when 21 years or older, the Juvenile\u00a0Justice Board must review whether the accused can stand trial as an adult. This\u00a0presumably involves an assessment of the mental state or maturity of the accused at\u00a0the time of the offence.<\/p>\n
As a Member of Parliament (the one I worked for before grad school, as it happens) noted in the Lok Sabha\u2019s debate over the bill, this proposal runs counter the\u00a0Convention on the Rights of the Child (CRC), to which India is signatory. The CRC\u00a0requires that all persons below the age of 18 be treated \u2013 uniformly \u2013 as children.\u00a0This varied treatment is also a concern under the Indian Constitution, in that it\u00a0appears to violate the Fundamental Right to equality before law, and to set up two\u00a0different penalties for the same offence even when the offender is of the same\u00a0standing, based on age at the time of apprehension.<\/p>\n
What concerns me most, though, is this: as a solution, the proposed system is wholly\u00a0disproportionate to the incidence of the problem. Worse, data from existing cases of\u00a0alleged rape by a minor reveal a disturbing trend, which this development would\u00a0surely exacerbate. Rukmini Srinivasan and Mrinal Satish examined all such cases\u00a0heard in Delhi\u2019s courts. As they reported in The Hindu, the vast majority of such\u00a0cases involve minor girls who have eloped or are in relationships against their\u00a0parents\u2019 wishes. These are usually filed by the parents of the girl, rather than the girl\u00a0herself, and practically none have actually resulted in convictions.<\/p>\n
This research adds on to other studies \u2013 as well as mountains of anecdotal\u00a0evidence, and obiter statements in many judgments \u2013 to the effect that the quality of\u00a0investigation into cases of alleged rape is sorely lacking, and that the whole\u00a0procedure \u2013 from complaint to trial \u2013 risks re-traumatising rape survivors. Various\u00a0news stories have also looked at police attitudes in relation to rape, which may\u00a0gently be described as archaic and patriarchal, entirely consistent with a system\u00a0where parents of an eloped girl may be more comfortable approaching the police\u00a0than a girl who actually has experienced rape.<\/p>\n
Sexual violence against women and girls in India is, beyond a shadow of doubt, a\u00a0pressing concern \u2013 and one with legal, social, political, and policy-level implications.\u00a0While measures to address this problem are welcome, they must pass the most\u00a0basic of tests for any policy intervention: that they actually improve the\u00a0circumstances of those most affected by the problem. At a minimum, they must not\u00a0exacerbate the vulnerability of those whose agency is already challenged and\u00a0suppressed.<\/p>\n
It is not at all clear to me that this latest amendment to the Juvenile Justice Laws\u00a0passes that test.<\/p>\n","protected":false},"excerpt":{"rendered":"
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