Buckling under public pressure, Rajya Sabha sat down on Tuesday to pass the new Juvenile Justice (Care and Protection of Children) Bill, 2014. The law that will now come into being allows children over 16 to be tried as adults for heinous offences. Mrinal Satish spoke to Scroll.in about the political tokenism of the imminent law and the many problems that it won’t fix. He is an associate professor of law at National Law University Delhi, executive director of the Centre for Constitutional Law, Policy and Governance and part of the research team that assisted the Justice Verma Committee formed after the December 16 gang-rape to recommended legal amendments to speed up trials of people accused of sexual assault.
What is your position on the debate around the Juvenile Justice Bill?
I don't think that the age of juvenility should be reduced from 18 years to 16 years. Currently, the problem with the debate is that it is ill-informed and not based on research, or on a nuanced understanding of the issues involved. The Supreme Court has ruled against the move in two judgments delivered in the last two years. A parliamentary standing committee also advised against the reduction of the age of juvenility.
Are we falling into a pattern of introducing new laws just because there is public pressure?
I would not say there is a pattern. The protests post December 16, 2012, only served as a catalyst for change that was due for nearly 30 years. The changes included expanding the definition of rape from penile-vaginal penetration to the penetration of other orifices and other forms of penetration. However, the change made to the Juvenile Justice Act indicates a disturbing trend: the politics of perceived public pressure. It also shows how the media, by not reporting responsibly, adversely impacts the legal and judicial system.
What do you think will be the fallout of the proposed amendments?
The penological justification followed by the current Juvenile Justice Act is rehabilitation. The theory of rehabilitation advocates assisting the offender in reintegrating into society. Trying children in the adult system, and incarcerating them with adult offenders, may be counterproductive and actually result in recidivism instead of preventing crime. Further, a sexual offence may also involve situations of underage sexual activity, where both parties consent to such activity but are prosecuted and punished, since the age of consent for sexual acts is 18 years. There is enough evidence to show that children in the age group of 16-18 indulge in sexual activity, and currently the Juvenile Justice Act provides a framework not to imprison them, but to provide education and counselling. With the changed law, these individuals (boys and girls) will face the prospect of being imprisoned for seven years, in an adult prison.
Is there a need to change the way we treat victims? Here is a girl we didn’t even want to name, though her parents wanted it. We have somehow magicked the actual person out of the public sphere. Yet we insist on passing stringent laws in her name...
There is certainly a need to change the way we treat victims. The name given to Jyoti Singh by the media, "Nirbhaya", is steeped in stereotypes. The "fearless one" – the rape victim is expected to be fearless, to fight. What if she doesn't? The legal system still does not believe her. It still continues to rely on rape myths and stereotypical notions about behavior expected from women. That needs to be changed for the rape law to be effective.
We also need to provide women with easier access to the legal system – an effort that the Justice Verma Committee recommended with changes to the Criminal Procedure Code and the Indian Evidence Act. Victim compensation schemes need to be strengthened, invasive medical examination procedures that rape victims are subjected to need to be stopped. There are many more such initiatives, relating to the victims of crime, that are needed. The juvenile justice amendment is a token, political move that will do little to change the plight of the victims of "heinous" crime.
How do you suggest we deal with juveniles who have committed heinous crimes but must be released after three years, under the existing law?
First, the three-year period could have been increased, without decreasing the age of juvenility. Second, effective rehabilitative methods could be worked out. Third, a mechanism to determine whether the rehabilitative methods have worked effectively could be instituted. These are more long-term and effective steps rather than the measures currently advocated.
Back in 2013, the Verma Committee did not feel the need to lower the age of culpability for sexual offences or heinous crimes. Could you explain the committee's thinking at the time?
With regard to the age of consent for sexual activity, the committee recommended that it be 16 years (which it was prior to 2012). It acknowledged that there was underage consensual sexual activity, and education is a better way of dealing with the issue than criminalisation.
How well has the Criminal Law (Amendment) Act of 2013 worked in practice? Does it leave any gaps?Cliched though it sounds, the Criminal Law (Amendment) Act, 2013, or any other law involving social issues will work only if there is a change in societal mindsets. As the working of the act itself indicates, harsher punishment does not mean a reduction in crime. In its final chapter, the Verma Committee's report recommended various ways in which societal mindsets about sexual autonomy and gender could be changed. This included introducing sex education as well as education on responsible sexual behaviour. These were long-term goals, which the committee believed would eventually lead to societal change. None of those recommendations have been implemented.
Did this week's conundrum reflect the need to reform our juvenile homes rather than introduce more stringent laws?
I wouldn't say that it showed the need to reform juvenile homes. It showed the need for a systematic study of the facilities and processes involved in the juvenile system, a system that remained woefully neglected until December 16, 2012, and remains so.