Juvenile justice

Why Maneka Gandhi's plan to lower the age for juvenile crimes is wrong

India's minister for women and child development should also ask what drives children to commit sexual crimes.

Amid the hysteria following the gang-rape and murder of two teenage girls in a village in Uttar Pradesh's Badaun district earlier this year, Maneka Gandhi, India's women and child development minister, came across like a calm person with a plan. "I see no point in visiting the village," she said. "It is not a tourist site. I'd rather work on a constructive programme to ensure the safety of women."

The two girls were found on May 28 morning hanging from a tree. Their post-mortem report showed that they had been raped and had died from strangulation, having been hanged while still alive.

Earlier this week, Gandhi finally outlined one measure, even while not saying anything about the growing complications in the investigation into the murders. Talking more generally about the need to tackle the epidemic of crimes against women in the country, she said offenders who are from 16 to 18 years of age should be tried as adults for so -called "serious" crimes.

Her proposal has been backed by a recommendation from the Supreme Court that the Juvenile Justice Act be revised and is now awaiting Parliament's approval.

But Gandhi’s rationale for amending the law is based not on data, which she could have obtained from the National Crime Records Bureau, but a chat with the Delhi police. She said that the police had told her that half the rapes in Delhi were committed by juvenile offenders. Yet the Bureau's data shows that 16-year-olds committed no more than 2.4 percent of all sexual crimes in the country.

If only Gandhi were willing to talk to more people.

Young minds
Pro-child-rights groups would tell her that 20 years ago, reeling under a spate of murders, the US had also passed stringent laws like the ones India proposes to introduce in order to deal with juvenile crimes.

Children as young as 12 were tried as adults for serious offences. But research funded by the US's department of justice found that children transferred to adult facilities were more likely to return to a life of crime and turn violent than their peers in juvenile justice systems because of the way those in the adult facilities were treated.

The Indian state, unfortunately, is yet to bring out any in-depth studies on juvenile homes, incarceration in adult prisons and the rates of recidivism in both. But perhaps Gandhi can learn from the US example.

Another person Gandhi should call is psychiatrist Achal Bhagat, who founded the department of psychiatry and psychology at Apollo Hospitals, a Chennai-based chain of hospitals, and then at Medanta, a speciality hospital in Gurgaon. Bhagat, who regularly counsels children who have been perpetrators as well as victims of sexual abuse, said a human being's brain between 16 and 18 years of age is socio-emotionally wired to almost entirely seek "thrill, approval and adventure, unlike the brain after 25 years, when it begins to recognise a need for cognitive planning and governing impulses".

Human rights advocate Vrinda Grover and Delhi University professor of law Ved Kumari could also enlighten Gandhi that her proposed revision of the juvenile law is against India’s international commitment to child rights. They would tell her that the UN Convention on the Rights of the Child, an international treaty that India signed and ratified in December 1992, states in article 37 (A): "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” This includes sexual offenders.

Others familiar with the subject could also tell her that Article 6(5)  of the International Convention on Civil and Political Rights, which India signed in April 1979, says: "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and on pregnant women."

But in addition to all this, Gandhi must surely ask this crucial question: what drives children to crime in the first place? She ought to be particularly interested in asking this about juvenile sexual offenders because she is proposing to revise the law primarily to keep women safe from this group.

Root causes
The government’s proposal to ban sex education in schools means that educational institutes will equip sexually curious children with a bare minimum information about their bodies, restricted to grey-scaled diagrams and a hushed discussion about menstruation.

To leave the larger, crucial discussion about consent and bad touch to parents alone is problematic, because instead of encouraging a healthy and open discussion among peers at school, where adolescent sexual urges often play out, it relegates sexuality to a hushed discussion at home.

According to a 1997 report from Recovering and Healing from Incest, a non-profit group that works with victims of child sexual abuse, 64% of incest survivors were abused between the ages of 10 and 18 years, and 19% of them continued to live with at least one of their abusers.

What happens to the child that is not taught about sexuality or one who does not even go to school, where he might, in the absence of proper sex education, learn something from fellow students? What happens to the child who has no parents or, like the majority of RAHI's respondents, learns about sex at home from his abuser? Failing to receive adult guidance on how to deal with his inevitable sexual yearning, he turns to grown-ups who do talk to him, their canned voices and bodies filtering to him through cinema, pornography and daily reports of rape.

Accused No. 6

At the heart of this issue of juvenile justice lies the following question: how should the state treat an individual that is not old enough to drive a bus, but commits cold-blooded murder with his friends on a joyride around the city? Sending him to a reform home for three years, while the others are sentenced to death does not feel like justice, especially if one were to factor in the grisly details. To follow Gandhi’s recommendation, would be to treat children as ‘miniature adults’ with longer lifespans, i.e., attribute to them the same cognitive capacity of an adult who commits the same crime.

Accused No. 6 from the December 16th gang rape, even if he was just shy of 18, was not a man of 35 like Ram Singh, the eldest of the group. If we must, as Ms Gandhi urges us, consider that we live in a changed world, where children attain maturity faster than ever before — we cannot ignore the evidence that adults around them can, and often do act like cruel, unthinking teenagers. Accused No. 6 worked seven jobs in the five years since he ran away from Badaun, where he had lived with his mother, two sisters and a disabled father. He worked at a couple of dhabas, sold chhole-bhatoore, assisted a milkman, and doubled up as bus conductor and cleaner on the fringes of Delhi. His employers (including at one point, Singh) found him to be smart and highly competent, and were disappointed to lose him as an employee when he left the job to seek better prospects and a “respectable life”.

By contrast, Ram Singh, as described by his friends and neighbours at Ravi Dass camp, was a troublemaker. Particularly since the death of his wife, and an accident that left him with a metal rig in his arm, he had turned into a violent alcohol addict, notorious for flying into a rage, picking fights and spying on women who used the public bathroom at the Ravi Dass camp.

On the evening of December 16th, Accused No. 6 showed up at Singh’s home looking for the 8000 rupees that he had lent his boss while he worked for Singh as a bus-conductor. Singh did not have the requisite cash, but asked Accused No. 6 to join him, Mukesh, Pawan, Akshay and Vinay for an evening of drinking. Allegedly, it was Singh who then suggested to everyone that they accompany him on a joyride on the private bus he drove.

While it is admittedly hard to imagine the gentle, if somewhat erratic teenagers one may know, as the wielders of lethal libidos and iron rods that could ultimately result in disembowelment and death — it is not that difficult to imagine them seeking the approval of their older peers by trying to outdo them in bravado. It is not hard to picture Accused No. 6, lonely and broke that night, thrilled at finding the company of friends, some that he might have even looked up to. Or that having worked with Singh as a conductor before, he was the one asked to lure an unsuspecting couple into the bus, while the others pretended to be passengers on it. He was the one as usual, when the deed was done, left to clean up the mess on the seats and the floor, and then make tea for everyone else after.

It is what teenagers do, when they want to fit into the world of adults.


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