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LATEST NEWS UPDATES | Against street justice -Minna Kabir

Against street justice -Minna Kabir

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published Published on Jan 31, 2013   modified Modified on Jan 31, 2013
-The Indian Express

It is very difficult to try and be a rational voice in the cacophony of cries for revenge and retribution on the alleged perpetrators of the ghastly crime that was committed on the night of December 16. I am equally ashamed, outraged and shocked that an incident like this could take place in the heart of India, which gave birth to a Mahatma Gandhi, a Gautam Buddha, a Swami Vivekananda and many others like them. I would also like to say that in no way am I holding a brief for the alleged perpetrators of this dastardly act. However, I cannot, as a responsible citizen of a supposedly civilised country, subscribe to the calls for retribution and the hysterical outbursts of many, especially of those who engage in such rhetoric just to please their own constituencies.

We must question whether we really want to regress into a country where the rule of law is substituted by street justice. As Amartya Sen said in a recent newspaper article, “street protest is one thing, and street justice is quite another. The punitive system has to work through our judicial system.” It is very important to protest and have candle-light marches, to create awareness, pressure state and society to stand up for justice. But it is not ideal to have a mob mentality take over. If one person’s rights have been violated, it does not give society the licence to violate other rights by taking the law in its own hands. I would like to put a few things in perspective so that we do not allow this one incident to colour all our actions and destroy hard-won human rights laws, enacted to protect the most marginalised and weak sections of our society — women, children, the disabled, the old and transgenders, among others.

The debate should not be reduced to women’s rights versus children’s rights and whether we should have one at the cost of the other. If the accused are given access to their rights under the rule of law, it does not mean that justice is not being done to the victims. One incident, however tragic and heinous, involving a juvenile, should not turn us against a law that seeks to protect and rehabilitate thousands of children under 18, who constitute 42 per cent of our population. The Juvenile Justice (Care and Protection of Children) Act of 2000, amended in 2006 and then in 2011, is not, as many think, a lenient law. It is, however, a special law, which seeks to deal with a child under 18 in a different way, in order to ensure that he grows up into a good human being. It is not the work of “good Samaritans”, as some people are trying to portray. It is the culmination of many years of experience working with “children in difficult circumstances”, it is the result of research by psychologists, social scientists, teachers, activists, legal minds and others, and it is a work in progress in many countries. States are still learning how best to deal with children under 18 who live in difficult circumstances, and with children who are in conflict with the law.

One of the arguments put forward by antagonists of the juvenile justice philosophy and the JJ Act 2000 is that Section 82 and 83 of the IPC cannot be reconciled with Section 2 (k) and 2(l) of the act. Section 82 says that all offences committed by a child less than seven years old is not an offence. Section 83 says an offence committed by a child above seven years but less than 12 is not an offence if he “has immature understanding”, and this is left to the discretion of the court concerned. Section 2(l) of the JJ Act says that a child under 18 who commits an offence will enjoy benefits under the act. The JJ Act 2000 does not say it is not an offence; it says a separate body called the Juvenile Justice Board (JJB) will probe the offence and treat the offender differently. India ratified the Convention on the Rights of the Child on December 11, 1992 and passed the JJ Act 2000 after much deliberation. We are bound by this ratification and this legislation.

It is also misconstrued that the boy will go free after he is 18. Section 15(g) of the JJ Act was amended in 2006, so that even if the child is 18 when the inquiry against him is concluded he can be kept in a special home or a place of safety. However, he can be kept for a maximum period of three years. Section 8 of the JJ Act 2000 and Rule 40 of the JJ Rules 2007 categorise different types of observation and special homes, and provide classification according to “physical and mental status, and degree of the offence committed”. In certain reports it says that the children in special homes roam free. This is not permitted under the act.

As for determining the age of a child who comes into conflict with the law, there is a procedure laid down in Section 7A, read with Rule 12. Many have aired misleading views on this with regard to the gangrape accused who is a juvenile. The option of a medical test has to be exercised by the JJB only if there is no satisfactory documentary evidence of the alleged offender’s date of birth. In the case of the gangrape accused, the JJB has followed this procedure very strictly.

As for revising the age of juveniles down to 16, it cannot apply to this boy retrospectively. Instead, it will affect other children in need of care and protection, and of the support of society. It will not help to lock up all offenders between 16 and 18 years in adult prisons; anyone who has read the Sheela Barse judgments of the Supreme Court would know.

About the argument that some countries have waivers for heinous offences, we need to first study their experience — even they might have realised that it has not helped lessen crime among children. In 2011, the total number of children arrested for offences in the US (according to FBI data) was 11,29,456; in India (according to the National Crime Records Bureau) the number was 33,887. Studies by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, on why we should look at children differently, are illuminating. Besides, we have to consider problems and circumstances that are peculiar to India.

The statistics given out about India do not reflect the true picture either, and baseless alarmist views are being put out. Since we raised the age of juveniles from 16 to 18 years, crime among children has not increased significantly, but awareness has. More children who would have been hidden in the adult system are being brought into the children’s system. The child crime rate from 2000 to 2012 reflects that juvenile crimes accounted for only 0.5 per cent of total crimes committed in 2000. Rape accounts for only about 3.5-4.45 per cent of the total crimes committed by children, and of these, at least 50 per cent are because of love affairs, where the girl ran away consensually.

Instead of knee jerk reactions, it is important to revisit the JJ Act and the Rules to tighten procedures and ensure proper implementation. The JJ Act and the Rules in themselves are robust and have factored in possibilities for the rehabilitation, reintegration and mental healthcare, where necessary, of children, even in the most heinous offences. We have to ensure well-monitored implementation of these provisions, and have a healthy dialogue to determine how we can constructively amend the act in the best interest of the children of our country. We must become a society that protects its children, not a society that needs to protect itself from its children.

The writer is a voluntary child rights worker, express@expressindia.com

The Indian Express, 31 January, 2013, http://www.indianexpress.com/news/against-street-justice/1066932/


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