The Indian government wants to amend the juvenile justice laws to make them more stringent, largely to gratify the emotional demands that had erupted in the wake of the 2012 Delhi gang-rape. There were arguments then that the sentence given to the minor convicted in the case under the Juvenile Justice Act, 2000 was not commensurate with the alleged enormity of the crime – that three years in a remand home was too light a punishment, given that the 17-year-old had by then already spent eight months in the facility. The result: proposals for a harsher law.

Among the many changes proposed by the government, the most striking one states that in a case involving a minor aged 16-18 years, the juvenile justice board will decide the nature of the crime. If it is deemed “heinous”, the board can decide if the minor should to be treated as an adult. Among the many arguments made against this provision – besides the humane reasoning that a minor may not be able to rationally define his actions – there is also the view that this violates the constitutional principles assuring equality.

If cleared, this new law will supersede the Juvenile Justice Act of 2000, which was debated and passed after another minor was sentenced to a life term: Chenchu Hansda.

Graham Staines murder

Chenchu Hansda, at 13, was the first accused to be sentenced in the murder of the Australian missionary Graham Staines and his two young sons, Philip (10) and Timothy (6), in Odisha in January 1999. Hansda was arrested in April that year and sentenced in June. It would be another year before the mastermind of the crime, Dara Singh of the Bajrang Dal, was arrested.

On the night of January 22, 1999, Dara Singh rounded up several followers and descended on Manoharpur village in Odisha’s Keonjhar district, where Staines had gone on the occasion of a festival. Singh reportedly whipped up passions against Staines, who he claimed was engaged in proselytisation and converting adivasis. Staines had been working in the area for more than two decades and his work among lepers and the adivasis was well known. Dara Singh, in contrast, had had a few run-ins with the law, and was accused of several crimes, including murdering a Muslim trader he accused of cattle smuggling.

Hansda, who lived in the district, was seen by some witnesses after the crime, when the van used by Staines and his sons lay in a mass of charred ruins. It was this that sealed his fate and the sentence was read out to him by a special court that read provisions of the Juvenile Justice Act 1986, in consonance, with the Criminal Procedure Act.

Dara Singh was sentenced to death in 2003, but this was commuted to life imprisonment in 2005 by the Odisha High Court, which also acquitted 11 other accused. This prompted a fresh appeal against Hansda’s sentence. He was now in a remand home and yet it took three years before he was finally allowed to leave the institution and return to his village in 2008. His role in the murders, as it appears, could never be clearly established.

Reformative, not punitive

The Juvenile Justice Act of 2000 was seen as enlightened and a considerable improvement on the older law of 1986. It was in accordance with the United Nations’ Convention of the Rights of the Child (1990), to which India is a signatory, and the UN’s Beijing Rules of 1985 that laid down standard minimum rules for the administration of juvenile justice. The 2000 Act, recognising the needs of children in need of care and protection and children in conflict with the law, specifically clarified that juvenile jurisprudence needs to be restorative and reformative in nature and not punitive.

The new proposed law, on the other hand, can be described as many things but not enlightened.

As clarified by the Ministry of Women and Child Development, it cites the records of the National Crime Records Bureau to refer to a rise in juvenile crimes in the last decade. However, even the Parliamentary Standing Committee that examined this bill had expressed reservations about these statistics.

In its report, the Standing Committee had pointed out that the Act of 2000 was not properly implemented, while noting the pending cases before the Child Welfare Committees and Juvenile Justice Boards, which reflected an inadequacy of personnel and dismal infrastructure. Further, it said that there were no services for children in terms of counselling, case work, treatment and mediation, indicating the failure of juvenile justice system. A majority of juvenile offenders, it said, came from poor, illiterate families and were homeless or living without parents.

Hence, “it is not the stringent punishment for juvenile offenders that will result in reduction of juvenile crime, attempts should be made to improve the socio-economic condition of families thereby satisfying the developmental needs of children”, the committee recommended.

The Act of 2000 had made a stipulation for aftercare help, entitling a minor to financial and other assistance for a period of three years after he leaves the remand home. The new law proposes only a one-time financial commitment – beyond everything else, this is where it most glaringly fails minors. By the time he left the remand home in 2008, Hansda was 23 years old. He had remained unschooled and had no profession to fall back on.

While the system of District Child Protection Units, District Child Protection Units, the Juvenile Justice Boards and the Child Welfare Boards will be monitored stringently as per the new law, it is these institutions that need to be strengthened to ensure children in need, even those who may be in conflict with the law, are not failed.