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This article was first published 8 years ago  » News » 'Putting 16 to 18 year olds in jail for rape is wrong'

'Putting 16 to 18 year olds in jail for rape is wrong'

By Syed Firdaus Ashraf
December 24, 2015 09:40 IST
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Badrinath Singh and Asha Devi, the December 16, 2012 victim's parents, emerge from Parliament after the Rajya Sabha passed the new law for juvenile crime. Photograph: Subhav Shukla/PTI'It is a retrogressive Act. When you look at the nitty-gritty of the Act, it actually criminalises a child who needs care and protection.'

'I am sure the Delhi teenage rapist, if given the right process and input, would have reformed himself. Even now if he is supported, he will evolve himself.'

Senior psychiatrist Dr Achal Bhagat on why he is against the new juvenile justice bill.

Dr Achal Bhagat, a senior psychiatrist and psychotherapist, started the department of psychiatry and psychotherapy at the Indraprastha Apollo Hospitals, New Delhi, on his return from Oxford.

He is also the chairperson of Saarthak, a group of mental health organisations working on the issues of mental health in South Asia.

Dr Achal, below, left, tells Syed Firdaus Ashraf/ why he is against the Juvenile Justice (Care and Protection of Children) Bill, 2015 which was passed by Parliament on December 22.

What do you think of the Juvenile Justice Bill passed in Parliament?

I think it is a retrogressive Act. There are some operational difficulties and not some philosophical difficulties.

When you look at the nitty-gritty of the Act, it actually criminalises a child who needs care and protection.

With this Act, a child will be seen only in the context of law.

Not only will he be incarcerated, he will be put into the adult system of justice. This is the principal difficulty with this Act.

The second difficulty will be to protect yourself in an adversarial judicial process. You have to hire a lawyer to defend you. For other laws you are still a child, but for a crime you have become an adult. So how will you start a defence for yourself?

Forget about whether you can understand the defence mechanism, whether you can understand the procedure going around you. Forget that you will see increased criminality around you because you will be in jail waiting for the trial to happen. Forget all that. But how will you defend yourself because you are not in a capacity to enter into a contract as you are a child otherwise?

Somebody else will be entering your contract on your behalf to protect you. You cannot protect yourself, but you will be charged as an adult. It is a major flaw in the law.


The third thing, every district will have an JJB board (Juvenile Justice Board). Every JJB will have a psychologist attached to it. Do people know how many trained psychologists are there in the country? Do people know what is the training for psychologists in this country?

Mere MA courses that train psychologists do not have a single iota of clinical exposure. Most courses are not attuned to forensic intervention or forensic judgement of the mental capacity. Nobody is teaching them this.

There are only 500 clinical psychologists in this country. There is a 90 per cent treatment gap. 90 per cent of people who are actually unwell and need treatment don't get treatment in Delhi. Forget about Orissa, Bihar or the districts of Dantewada.

How will you find trained psychologists? This is the question that lawmakers will have to answer soon enough. They made the same mistake in the POCSO Act (the Protection of Child from Sexual Offences Act). They put a law in place and nobody focused on the operational details, how the law will function.

Ultimately, what will happen? Children will continue to be put in jail without any reformative processes without any recourse to an appeal process.

We are creating a crisis out of what could have been a simple way of reforming children after they have committed a crime. The reformation process had to be strengthened.

Dr Achal BhagatDon't you think when a 16 year old is capable of raping and committing a heinous crime, he should be punished as an adult? That is what the argument is.

India is a signatory to the United Nations Convention on the Rights of the Child, which says children are capable of evolving and they have the ability to reform if given the opportunity.

What does society want? Do we want less number of people to be criminals? Or we want all children to think they are possible criminals? Society has to decide what it wants.

Just blaming the child for an act will not solve the problem. Creating an opportunity for reformation will solve the problem. It is a philosophical difference. Even in adults, what happens if you put people in jail? Have the rape rates gone down?

We have been punishing so many adults with tougher rape laws and giving capital punishment too. Have we decreased the amount of violence that is there in our society and homes? We have not.

Does the international scenario tell us that when children are put in prison, do they become more criminal or less?

We have to go with the science of it. We cannot go with emotional discussion. We must see as a society what outcome we want.

I work with women who have been raped and I am devastated for each person who has to face violence.

How many children between the ages 16 and 18 have actually raped somebody in the last five years?

We talk of an increase in numbers, but how much is the actual number? How many children are there? And what is the court process around that?

Just by lowering the age, will it solve the rape problem of the country?

To solve the rape problem of the country, you have to change the patriarchal system and the education system. You will have to change the way society works -- it is an ongoing process.

Even in the judicial process you have to make rape trials quicker. You will have to start believing the victims. You have to do much more reformative work.

Another thing we are forgetting is that we are labelling all men to be perpetrator of rapes. A government-funded inquiry has found that 53 per cent of the male children are sexually abused in this country. This is a five-year-old report. What is the law for them?

Have you counselled any juvenile rapist?

My work is confidential. I work significantly with the judicial process. I work on both sides of the boundary. I work with the victim and the perpetrator of sexual violence.

My belief comes from the fact that everybody should be treated with dignity and when you start treating people with dignity, then reformation is possible and recovery is possible. It is very sad.

Nobody is condoning any crime. The reality is for society to go beyond the current status. You will have to work in a reformist way. Operationally, this law is going to create a crisis, which will be unbelievable.

How does a brain of a 16 year old function in relation to someone over 18?

There are two processes of development. One part of the brain is the socio-emotional part where the risk taking behaviour, reward seeking behaviour and novelty seeking behaviour develops faster. In 16 to 18 years those areas of the brain that are risk taking, reward seeking and experimentation are developing.

Post 18, between 18 and 21, the other part of the brain where you are trying to curb your emotions, where you are trying to take decisions in a thought out manner, where you are trying to be more compassionate and aware of the other person when you are taking a decision is developing. You are trying to look out at a result for the output of your action before you take a decision. That develops slightly later.

That is the whole argument science has: If you give a person a chance between the ages of 18 and 21 to reform themselves, rather than going with the ages of 16 to 18 when the biology is going against them. If you give them a chance at a later stage, then they are more likely to reform.

Do you think the Delhi teenage rapist has a chance to reform?

I think every child and human being has a possibility to reform himself. Society has to create those opportunities rather than incarcerating people. That is my firm belief.

I am sure this child (the Delhi teenage rapist), if given the right process and input, would have reformed himself. Even now, if he is supported, he will evolve himself.

What happens to India's assent to the UN conventions, with this new law?

I am not a lawyer and I cannot comment on that. But whatever little law I know, we have gone against what we have signed. Any citizen of India can go to the Supreme Court and challenge the Constitutionally of this law.

The argument would be that we have signed the United Nations Convention on the Rights of the Child and this law is not in alignment with that convention.

What will you say to the mother of the Delhi gang-rape victim?

We cannot even imagine what pain the victim or her parents went through. I work with survivors of rape and I can see them in pain. It is very difficult to experience the pain what they go through. I can understand where the mother is coming from.

But believe me, closure for all of us will come when no man would use sexual violence as a method to control women in society. The closure will come there.

It is a long journey. I would join the mother in that journey. But the journey has to be that of reforming our society and not a journey of putting behind people bars or sending them to the gallows. I know those journeys are also a reality.

From my experience I know from working with people in this field that creating an opportunity for reformation is a more complete way of seeking closure.

IMAGE: Badrinath Singh and Asha Devi, the December 16, 2012 victim's parents, emerge from Parliament after the Rajya Sabha passed the new law for juvenile crime, December 22, 2015. They became the faces of the campaign for harsher punishment for juvenile crime after the juvenile involved in their daughter's horrific rape was released from the remand home, December 21. Photograph: Subhav Shukla/PTI

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