Tuesday, 28 April 2015

Juvenile justice: Retribution vs Rehabilitation

In recent past, due to many serious crimes committed by juveniles, the trial process and the severity of their punishments has been a matter of debate. One of the most disturbing acts involving a juvenile was the recent Nirbhaya rape case, where the victim was severely molested ending up dead after fighting for life for a fortnight in the hospital.

The biggest controversy in the context is whether the Juvenile Justice Act 2000 holds significance for heinous crimes like the Nirbhaya case or not. The Juvenile Justice Bill 2014 recently got the nod of cabinet treats juveniles in age group 16-18 as adults for heinous crimes. Should the juveniles be given more liberal trials and punishments for their crimes, or should they be punished equally as adults for heinous crimes like rape, following the public sentiment?

Since this is a very debatable issue and opinions vary from person to person, I will not try to support a specific point of view. However, I would rather take a balanced approach to look at the matter, present arguments in favor of and against the public sentiment and the JJ Bill, 2014; and leave it to the reader to choose a viewpoint.

Who is a juvenile?
The United Nations Convention on the Rights of the Child defines a child/juvenile as any human being under the age of eighteen, unless the age of majority is attained earlier, under a state’s own domestic legislation.  The nations that ratify to this convention are bound to it by international law.  Since, India is also a signatory of this convention, the juveniles in India are people under the age of 18 (since the age of majority is also 18), which is also mentioned in the Juvenile Justice (Care and Protection of Children) Act, 2000.

The Juvenile Justice Bill 2014
The bill replaces JJ Act, 2000 and addresses children in conflict with the law and children in need of care and protection.  Following are some of the important and debatable points in the JJ bill that are relevant to this article:

·         The bill defines three classes of crimes for dealing with a juvenile i.e. petty, serious and heinous.
·         The bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous crimes. Also, any 16-18 years old, who commits a lesser, i.e. a serious crime can be tried as an adult only if he/she is apprehended after 21 years of age.
·         Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district.  If the juvenile in question is in the age group 16-18, the JB will decide whether he/she is to be tried as an adult i.e. whether the committed crime is heinous. The CWC will decide the care and protection needed for the child in question if  (s)he is to be tried as a juvenile.

Support: Retributive justice to those old enough:
This is the most popular of the public sentiments, with public demanding severe punishments to those committing heinous crimes and equal punishment to 16-18 year old juveniles. I have used the term “retributive justice” because the situation can in some ways be equated to the argument of “Capital punishment or not” in case of heinous crimes, since the boundary between a juvenile and an adult is drawn based on the severity of the crime.  Following are some of the points in support:

·         If they are old enough to commit a crime (old enough to rape), they are old enough to be granted the punishment.
·         The boundary between a juvenile and an adult should not be so crisp. This will allow for different punishments for people who differ by just a day in age (on boundary of 18 years), which is not fair. So, severity of crime should also be a deciding factor in whether the person is juvenile or adult.
·         Severe punishments to everyone who commits heinous crimes will act as deterrence, because it will reduce the likelihood of criminals getting away with minimal punishment on false grounds of being underage.

Criticism: Give reformative treatment to children
Most the criticism is based on the idea that reformative justice should be preferred over retributive justice wherever it is possible (which ideally should be in every case).  Following are the arguments given by the people who oppose the JJ bill:

  • Parliamentary Standing Committee found out that such a move violates our constitutional mandate and India's obligation under UN's Convention on the Rights of the Child
  • MoWCD: One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution.
  • The bill does not clarify whether a child tried as an adult will end up in prison (during trials)
  • Flawed assumptions- determining their maturity and mindset, as deterrence. 
  • [Research Network on Adolescent Development and Juvenile Justice at MacArthur Foundation, U.S.]: shows that human brain undergoes key physical changes from the ages of 16 to 18 and this continues right until the mid-20s
  • Adolescents know what they are doing is wrong. But They are unable to act on that knowledge. The underestimate risk; so, deterrence is probably not the best policy against them.
  • Adolescents are greatly affected by their environment. So they can be molded in a better person too. Transferring them into adult prison would have negative effect on them.
  • Transfer policies have generally resulted into subsequent crimes.
  • We should focus more on eliminating core problems that lead to such acts like – poverty, broken families, unemployment, access to pornography etc. and providing community based treatment programs.
Conclusion:  Is age really a deciding factor?

As we can see that the proponents of the JJ bill say that age should not be a deciding factor when a crime is so severe. However, the argument against the bill tries to give a scientific perspective of how age is an important deciding factor into a person’s maturity and tendency to estimate risk of a crime. It is up to the reader to take away whichever point of view suits him/her. However, it is clear that overall societal structure and a futuristic attitude should be taken against such problems which minimizes the risk of such crimes in future.

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