Nothing essential alters within us the day we turn 18. We do not feel significantly more mature, intellectually capable, or recognisably different in any fashion. Our legal selves, however, are transformed utterly from one day to the next. The age of majority is a legal fiction, an instant, arbitrary division that is the equivalent within penal codes for what in real life is a gradual process of maturation whose speed varies from one individual to the next. Such arbitrariness is unavoidable, for laws must draw lines somewhere, but we ought to remain conscious of the superficiality of those lines, their uncertain relationship with lived life, even as we acknowledge their necessity. We must, in other words, develop a double vision in response to the gap between legal fiction and experienced reality.
In the case of the rapist who was 17 years old on December 16, 2012, this involves acknowledging his legal right to be treated as a minor, while recognising his moral responsibility for what he did to Jyoti Singh. By the time I got to the age he was when he raped and disembowelled Jyoti, I knew quite clearly that violence was unacceptable except in self-defence, and horrific acts of the sort he perpetrated unpardonable. I suspect every reader of this column would affirm their own awareness at that age of these basic moral facts. Our recognition that he received an extraordinarily lenient sentence despite being more or less as morally responsible as his companions shines a spotlight on the gap between law and experience, and impels some of us to try and close that chasm by demanding juveniles be tried as adults in cases of rape or murder. New legislation, however, only sets up another arbitrary boundary. Anybody who has heard of the James Bulger killing will be aware that minors much younger than 16 can commit acts appalling enough to shock a nation.
The age of majority is often confused with two other legal fictions, the age of criminal responsibility and the age of consent. India has one of the lowest age thresholds for criminal responsibility, and one of the highest for consent. Anybody above the age of seven can be tried for a crime, but nobody is considered fit to give sexual consent until they are 18. The latter limit has been raised three times since Independence, the last occasion being two years ago, when a law was passed in response to public outrage following the Delhi bus rape. Minors between the age of seven and 18 charged with crimes are tried in special courts, given short sentences, and sent to remand homes rather than prison. With the passing of the Juvenile Justice Act, the second law to be influenced by the Jyoti Singh rape and murder, the age at which minors can be tried as adults has been reduced to 16. The new law will bring no closure to Singh’s parents, since it will not be applicable retrospectively.
Separate jails
I am not against the idea of 16 year-olds being tried as adults, as long as they are not placed with fully mature prisoners at too young an age. There are countries with separate jails for criminals under 25, a second line drawn in the sand which brings legal fiction a little closer to reality, but India cannot afford such intermediate facilities. I hope enough thought has been given to the manner in which juveniles tried as majors in the future will be introduced into adult facilities. The new legislation reduces the chances of perversions of justice such as the speedy freeing of perpetrators in the Shakti Mills and Delhi rapes. It will also deter some juveniles from committing crimes. But it brings with it new threats and costs that could outweigh these benefits.
Two years ago, India introduced a law that criminalised consensual sex between minor teenagers, as also between males who had reached legal adulthood and females who had not. By raising the threshold of the age of consent to 18, including no clause allowing consensual intercourse between lovers whose ages were proximate, and introducing stringent minimum sentences, it made 18-year-old boys having sex with 16- or 17 year-old girlfriends liable for long prison terms. As if that wasn’t bad enough, the new law raises the possibility of 16-year-old boys being convicted of rape for having consensual sex with girls of the same age. Some safeguards have been built into the legislation, but given how slowly the law works in India, the very threat of such a sentence is potent. Consider how few gay men are actually convicted under the controversial Section 377 of the Indian Penal Code, which Shashi Tharoor tried and failed to amend in Parliament last week, and how many are harassed, blackmailed and extorted because it exists. Every minor couple in a secret relationship will henceforth fear not only discovery by parents, but imprisonment for the boy.
And so it is that an agitation fought for the rights of women, precipitated by the actions of men who hated the sight of an unmarried couple out on a date, has further undermined the cause of consensual sexual pleasure. I’d invoke the law of unintended consequences, but given the broad denunciation in India of sex outside marriage, it looks more like a well thought-out plan.
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In the case of the rapist who was 17 years old on December 16, 2012, this involves acknowledging his legal right to be treated as a minor, while recognising his moral responsibility for what he did to Jyoti Singh. By the time I got to the age he was when he raped and disembowelled Jyoti, I knew quite clearly that violence was unacceptable except in self-defence, and horrific acts of the sort he perpetrated unpardonable. I suspect every reader of this column would affirm their own awareness at that age of these basic moral facts. Our recognition that he received an extraordinarily lenient sentence despite being more or less as morally responsible as his companions shines a spotlight on the gap between law and experience, and impels some of us to try and close that chasm by demanding juveniles be tried as adults in cases of rape or murder. New legislation, however, only sets up another arbitrary boundary. Anybody who has heard of the James Bulger killing will be aware that minors much younger than 16 can commit acts appalling enough to shock a nation.
The age of majority is often confused with two other legal fictions, the age of criminal responsibility and the age of consent. India has one of the lowest age thresholds for criminal responsibility, and one of the highest for consent. Anybody above the age of seven can be tried for a crime, but nobody is considered fit to give sexual consent until they are 18. The latter limit has been raised three times since Independence, the last occasion being two years ago, when a law was passed in response to public outrage following the Delhi bus rape. Minors between the age of seven and 18 charged with crimes are tried in special courts, given short sentences, and sent to remand homes rather than prison. With the passing of the Juvenile Justice Act, the second law to be influenced by the Jyoti Singh rape and murder, the age at which minors can be tried as adults has been reduced to 16. The new law will bring no closure to Singh’s parents, since it will not be applicable retrospectively.
Separate jails
I am not against the idea of 16 year-olds being tried as adults, as long as they are not placed with fully mature prisoners at too young an age. There are countries with separate jails for criminals under 25, a second line drawn in the sand which brings legal fiction a little closer to reality, but India cannot afford such intermediate facilities. I hope enough thought has been given to the manner in which juveniles tried as majors in the future will be introduced into adult facilities. The new legislation reduces the chances of perversions of justice such as the speedy freeing of perpetrators in the Shakti Mills and Delhi rapes. It will also deter some juveniles from committing crimes. But it brings with it new threats and costs that could outweigh these benefits.
Two years ago, India introduced a law that criminalised consensual sex between minor teenagers, as also between males who had reached legal adulthood and females who had not. By raising the threshold of the age of consent to 18, including no clause allowing consensual intercourse between lovers whose ages were proximate, and introducing stringent minimum sentences, it made 18-year-old boys having sex with 16- or 17 year-old girlfriends liable for long prison terms. As if that wasn’t bad enough, the new law raises the possibility of 16-year-old boys being convicted of rape for having consensual sex with girls of the same age. Some safeguards have been built into the legislation, but given how slowly the law works in India, the very threat of such a sentence is potent. Consider how few gay men are actually convicted under the controversial Section 377 of the Indian Penal Code, which Shashi Tharoor tried and failed to amend in Parliament last week, and how many are harassed, blackmailed and extorted because it exists. Every minor couple in a secret relationship will henceforth fear not only discovery by parents, but imprisonment for the boy.
And so it is that an agitation fought for the rights of women, precipitated by the actions of men who hated the sight of an unmarried couple out on a date, has further undermined the cause of consensual sexual pleasure. I’d invoke the law of unintended consequences, but given the broad denunciation in India of sex outside marriage, it looks more like a well thought-out plan.
