If you are old enough to rape, you are old enough to face the rap for it. Or so believe many of the indignant Indians infuriated by the ultra-light sentences that juvenile offenders get, even when accused of horrific crimes. Public outrage after the Delhi girl Nirbhaya’s most brutal rapist and killer was given just three years in a reform home because he was a few months short of 18 at the time of the crime – while his partners in the hideous crime got sentenced to death – has finally resulted in the government attempting to change the law. Nirbhaya’s monstrous young rapist had been given the maximum sentence allowed under the Juvenile Justice Act. But it seemed so little, so light, so grossly unfair.
So now the new BJP-led National Democratic Alliance government is attempting to change the Juvenile Justice Act (JJ Act). Maneka Gandhi, minister for Women and Child Welfare, is personally supervising the process. Too many youngsters take advantage of the fact that they are under 18, she explained, and go ahead and commit rape and murder. They know they will get away lightly for the gravest offence. So it has been proposed that young offenders between 16 and 18 years of age would be liable to graver punishment than the three years of reform that the JJ Act allows if they are guilty of crimes like murder, rape, kidnapping, trafficking or an acid attack. And if they turned out to be repeat offenders in crimes like attempt to murder or outraging the modesty of a woman. But they would still be somewhat protected – these youngsters would not get capital punishment or life sentences. The Juvenile Justice Board would decide whether he was to be tried under the Indian Penal Code (IPC) or the JJ Act. And for that it would analyse the nature and the gravity of the crime, the culpability of the juvenile and his ability to understand the consequences of his act, it would study the social investigation report to find mitigating circumstances if any.
After all, a 17-year-old is as capable of horrible crimes as anyone above 18, so why this mollycoddling? “You can’t have a cut-off date for crime like you have for government jobs,” said the Supreme Court this week, asking for a more stringent law for juveniles.
In March, the Supreme Court had refused to lower the age and redefine ‘juvenile’, rejecting petitions by Nirbhaya’s parents and Subramanian Swamy. The fact is, once you define someone as a child, you need to protect his or her rights. And child rights activists have been crying themselves hoarse about how lowering the age and redefining juveniles would be an attack on child rights. If a 17-year-old is a child, he cannot be tried as an adult. The focus of the justice process here must be on course correction for a child ‘in conflict with the law’. It cannot be retribution.
In your dreams, you may wish to say. We do not live in a Utopia. Children over 16 are old enough to understand and take responsibility for what they are doing. Especially if they are destroying someone’s life. Get real. So it is not surprising that those focussed on women’s safety welcome this step to rap young rapists hard. Children grow up faster these days, said Mamta Sharma, head of the National Commission for Women (NCW), thanks to the internet even 12-year-olds are pretty mature. To stop rape by juveniles, we must study why children rape, she suggested. But it was wrong to let brutal rapists, like the juvenile accused in Nirbhaya’s gang rape and killing, go free. And Barkha Singh Shukla, head of Delhi Commission for Women, was even more direct. How can we let rapists go, she asked, just because they are juveniles? But the logic that if one is old enough to commit a crime, he is old enough to be tried as an adult for it is flawed. A child does not always know what he is doing, and one needs to acknowledge that.
The nation needs to debate this at length. Not to redefine juvenile – but to mark out a twilight zone, where sometimes a juvenile is treated more as an adult than as a child. Punishing the accused is necessary. And defining our boundaries of punishment is essential to remain civilised. But what we need more urgently in the area of child rights – more than defending the rights of almost-18 killers and rapists – is the protection of child victims, especially children who are vulnerable to rape and gory murder. India is among the countries noted for the highest child sexual abuse. Most victims of sexual assault in India are children – vulnerable children from poor backgrounds who are easy prey for predators. Routinely we read of little kids – infants, toddlers, five and six-year-olds – being brutally raped, maimed and often killed. What exactly are we doing about that? And what are we doing about the horrendous state of juvenile homes where kids face a fate worse than they may have faced in jail?
Theorising on child rights is important. But it is also necessary to look at the larger picture, debate extensively and choose our battles.
Antara Dev Sen is Editor, The Little Magazine. Email: sen@littlemag.com
