Wednesday, 13 August 2014

If He Rapes Like an Adult He Should be Punished Like an Adult: why the mentality around the new juvenile law needs a serious rethinking

The Union Cabinet on August 6, 2014 cleared the Juvenile Justice (Care and Protection of Children) Bill, 2014
Photo Source: The Alternative
that gives powers to the Juvenile Justice Board to decide if a juvenile above 16 years, involved in heinous crimes like rape, would be tried in an adult court. The Bill comes in at a time when there has been public outrage over the fact that the minor convicted in the Nirbhaya gang-rape case was handed a three-year term in a reform home by the Juvenile Justice Board.

The public has been made to believe by media and certain sections of the political leadership that the juvenile was the most brutal and indeed responsible for Nirbhaya’s death. However, the facts in this case have been completely overshadowed by false media reporting and backed by a political agenda that seeks to encash on misdirected public anger.
The juvenile justice board in its confidential order on August 31, 2013 deprecated the "media hype" over the minor's role in the said case. The board's order made it clear that in their testimonies, neither Nirbhaya nor her male friend singled out the juvenile as the person who had brutally assaulted her with a rod, resulting in an injury that led to her death within a fortnight. In fact the board asserted that the juvenile himself had been "brutalized" by the media portrayal of him as the most brutal assailant of Nirbhaya.

Not surprisingly, neither the media nor political leaders are in a haste to take the correct facts to the public. The media in fact has taken very few steps to rectify its stance.
It is also imperative to make it clear that even in cases where a juvenile commits a crime which is identical to an adult crime, he/she cannot be treated in the same manner as an adult.

 To quote eminent neuroscientist Laurence Steinberg, “I have argued that adolescents should be viewed as inherently less responsible than adults, and should be punished less harshly than adults, even when the crimes they are convicted of are identical”.

Simply because a 17 year old looks and acts like an adult, he should not be penalized in the adult criminal system. Physical changes coupled with adult actions and mental maturity to regulate those actions are two different things. Also, contrary to public opinion, a boy who is 17 years and 11 months old is not as mature as an adult. As neuroscience and psychology explain the structural and functional changes that occur during adolescence do not all take place at a uniform pace.

 There are many who argue that drawing a line at 18 years is also treading along a slippery slope as the brain is in development stages till the age of 25. However, if at all a line is to be drawn it is better to keep 18 as the age at which we consider an individual to be an adult. An individual in India who is 17 years and 364 days would not be given the right to vote, and similarly should not be tried under the adult criminal system.

While the public is baying for “strong action”, theirs is an emotional reaction. That the law makers are giving into these emotions by enacting an ill fitted new law, is a step that is regressive and ill conceived. India moved from penal law to reformative law by repealing the 1989 juvenile law and enacting the Juvenile Justice (Care and Protection) Act 2000. By enacting the new law, we will victimize juveniles who could not be ‘cared for and protected by’ their families, the society and the government system.
Divashri Mathur

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