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

Voicing violence: Has the new Act made a difference?

Photo Source: www.indiatimes.com
 

A 16-year-old girl in Kolkata was gang raped twice in October, the second time immediately after she registered an FIR with the police. The rape of the minor is an example of how despite the passage of a stringent Act against sexual crimes and a promise of providing an environment of greater safety for women to speak against violence, not much has changed in actual terms.

The Criminal Law Amendment Act that came into existence in March 2013 amended various sections of the Indian Penal Code (IPC), the Code of Criminal Procedure and the Indian Evidence Act, with an aim of providing a strong deterrent against crimes like rapes. The Act inserted Section 166 A in the IPC which provides for rigorous punishment up to 2 years for public servants disregarding directions while investigating rape. In addition, the Protection of Children from Sexual Offences (POCSO) Act was also strengthened. POCSO envisions police as child protectors. Under it, the police is required to make arrangements for the care and protection of a child who has been sexually abused.

However, these provisions did nothing to save the Kolkata rape victim. In fact, her registering the FIR and then pursuing it led the culprits to allegedly burning her alive. According to the Justice Varma Committee report that guided the fast track passage of the Criminal Law Amendment Act, “Failure of good governance is the obvious root cause for the current unsafe environment eroding the rule of law, and not the want of needed legislation”. The report also warned that in the absence of “attitudinal changes”, mere changes in law cannot correct the gender bias that plagues Indian society.

Statistics justify the observations of the committee. A year after the Act came to function; rape and other crimes against women have increased, rather than decreased. Delhi alone has seen a 129% increase in rape. Compared to 2012 when 680 cases were registered, 2013 saw 1559 registered cases.

A victim who speaks out against rape not only requires legal protection, but also support from society. However, the mindsets of people are largely unchanged. Many, including those in authority, continue to believe that women ‘invite’ rape by dressing in a certain way, stepping outside their homes after a certain hour or visiting certain places. The question then becomes if change in legal procedures can bring about reform in society?

There are differing views on this among activists; some like Dr. Nandita Shah, co- Director Akshara asserts that some changes are definitely visible. While the judicial, medical and police structures are still inadequate, what has changed since the passage of the law is that it has broadened the definition of rape which she views as a positive change. “Earlier traumatic experiences of sexual assault would make a victim feel stigmatized, but now with the broadening of rape to include non-penetrative assault, such victims are encouraged to speak out and seek justice”. She points out to the Tehelka case where the journalist pointedly referred to the new law while seeking a trial for rape.

Others like Kavita Srivastava, National Secretary; People's Union for Civil Liberties (PUCL)feel that while Criminal Law Amendment Act was welcomed as changes relating to criminal law and sexual violence came after 31 years, there is still a long way to go before the law achieves its stated purpose. “We welcomed the processes (behind the law) as it was demanded from the streets and the Verma committee report was extremely participatory. However, nine months since it has been implemented, it is clear that the police still does not know the new law. Though some trainings have been conducted, it will take a long time for the Thana level police to know the sections and in particular the application of the Law. Lay persons and survivors of violence are even further removed from knowing the changes and therefore do not directly feel empowered. Unless the attitude of the police changes, the law will be a change agent only on paper”. 

 A year has passed since the Delhi gang rape shook the collective conscience of the country. While a larger discussion on women’s safety continues to be kept alive by media, activists and academia, there seems little impact of the Criminal Law Amendment Act on the lives of women sufferers of sexual violence. Though, the new Act addresses sexual crimes committed by those in position of authority, often, police medical practitioners, advocates, even judges make voicing violence more difficult for women, rather than encouraging them. For one, court processes and police procedures need quick adaptation to the changes in law and then implement them. If mere change in law equated changed attitudes, then the police would have ensured protection of the minor in Kolkata by sending her to a shelter and prevented her death.  Further, while change in law may serve as a first step, there remains a need to spread awareness to create an environment of sensitive support, so that the law benefits women both in letter and in spirit.

 

-Divashri Mathur