'Given that 95 per cent of rapes are committed by adults and only 5 per cent by juveniles, these 95 per cent of rapes will continue to take place, so what women's safety are we talking about?'
Rashme Sehgal reports on the proposed new law for juvenile crime.
The Supreme Court's dismissal of the plea filed by the Delhi Commission of Women, challenging the release of the juvenile offender in the Nirbhaya rape case amidst a firestorm of public outcry in the capital, is a continuation in a huge churning across the country over India's juvenile justice system.
DCW Chairperson Swati Maliwal's decision to file her plea at midnight lent greater urgency to her demand to ensure that this now 20 year old, who had been in a reformatory home for almost two-and-a-half years now, be shifted into an adult jail.
The Supreme Court took the stand that it could not extend the boy's term without proper legislative sanction.
Union Minister of Women and Child Development Maneka Gandhi has been trying hard to provide the legislative umbrella, in the teeth of opposition by lawyers, activists and people in the juvenile rehabilitation system, by getting the Juvenile Justice (Care and Protection of Children) Act 2014 passed in the Lok Sabha.
This amended Act would allow juveniles between the ages of 16 to 18 years to be tried in the adult criminal system, but this changed Act has still to be debated in the Rajya Sabha.
Gandhi has gone a step further and now proposed a data base be maintained for all sexual offenders above the age of 12. She has discussed this proposal at length with Home Minister Rajnath Singh who has also favoured the idea.
To implement this scheme, the home ministry plans to display a list of sex offenders, including juveniles, as part of the Crime and Criminals Tracking Networking and Systems portal that will be displayed across all 15,000 police stations in the country.
The identity of these juveniles will not be disclosed, clarifies Gandhi. But there is no guessing that once their names are recorded in the database, their identity can hardly be kept a secret.
Atiya Bose, an activist who has worked extensively with juveniles and presently works with the NGO Aangam, points out, "Once a boy's name is in this data base, what chance is he going to have to rehabilitate himself? What is shocking is that this can happen to a twelve year old. Once he becomes older, who will employ, rent a house to him or want their daughter to marry him? He will be denied all opportunity to reintegrate with society."
The question being asked is why is the government so keen to push through this legislation with its emphasis on putting these juvenile offenders into institutional care rather than focus on their rehabilitation, especially at a time when the National Crime Records Bureau has released its annual compilation of statistics to show that juvenile crime has come down from 1.18 per cent of all crimes committed across India in 2014 to 1.2 per cent in 2013.
Atiya Bose believes a sense of hysteria has been whipped across the country by the Nirbhaya case, misleading the public into believing that a great deal of crime is being committed by juveniles.
The majority of activists and NGOs working with juveniles believe the Nirbhaya case is being used as a pretext to dismantle the juvenile system.
"Given that 95 per cent of rapes are committed by adults and only 5 per cent by juveniles, as is shown by the NCRB data of the last decade, these 95 per cent of rapes will continue to take place, so what women's safety are we talking about?" asks Bose, who cites how funding for juvenile homes has been cut drastically by the ministry for women and child development.
India's 20,000 juvenile homes are in a pathetic state and the allocation for centrally sponsored schemes dealing with children is coming down. Even the Integrated Child Protection Scheme received just Rs 400 crores (Rs 4 billion) from the Rs 1,060 crores (Rs 10.60 billion) that had been recommended for it in the 12th Five Year Plan.
"The reality is that a very small fraction of kids commit juvenile crime," says Bose. "The NCRB records show that almost 40 per cent of the cases registered against juveniles are what the police describe as 'love cases'. The boy is described as a sex offender, but these are generally cases of consensual sex where the girl admits to having consensual sex with the boy. The father of the girl, however, will file a 'rape' charge against the boy and the boy ends up getting charged with a crime that he has not committed."
"Do we want teenagers such as this to end up in jail? Will exploratory sex which kids often indulge in also end up under the tag of 'criminal sex'?" asks Bose.
Anant Asthana, a lawyer working extensively with juveniles, is extremely critical of the present move by the ministry of women and child development.
"I see a deliberate design to dismantle the child protection regime that had been put in place in India over the last 150 years," says Asthana. "The emotional issue of women's safety is being used by the State to abandon its welfare obligations towards kids by bringing in this highly disputed bill".
"I regret to point out that 'juvenile justice' and 'children' are not politically relevant subjects because they are not a vote bank. What the State is attempting to do is to ride on public sentiment around the Nirbhaya case and using this as an opportunity to get rid of the hassle of having to adhere to a separate juvenile justice procedure and to deliver on the rights of children," says Asthana.
The majority of children in conflict with the law come from illiterate and poor families. "The government is trying to punish these kids instead of giving them proper education," says Asthana, adding, "the entire concept of presumption of innocence has been done away with."
Congress MP Shashi Tharoor has criticised this bill and warned that the amended Act will not only cause embarrassment to the government, but will also be violate the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985. It will also violate rules framed in Beijing which require a child or a young person accused of an offence to be treated differently from an adult.
Tharoor questions why India is following the US system of trying teenagers committing heinous crimes under the adult system. Especially since harsher sentences do not translate into lesser crime.
This has been confirmed by several studies conducted by experts, both in the US and the UK, which have constantly reiterated that juveniles who serve sentence with adults come out of jails as 'hardened criminals'.
Tharoor further points out that following the US model can hardly be exemplary as the US is one of only two countries who have refused to ratify the United Nations Convention on the Rights of the Child whereas India has done so.
Professor Ved Kumari of the Institute of Law, who has done considerable research on the juvenile system in India, point out that while India is home to more than 447 million children below the age of 18 years, the number of children apprehended for any crime during 2010 was a total of 30,303 out of which 28,763 were boys and 1,540 were girls.
"Their contribution to total crime under the Indian Penal Code was one per cent," she says. "Around the world, governments are investing in rehabilitation by giving special attention to these kids. Kids need the possibility of hope. Australia and New Zealand have shown that there can be restorative justice for cases of murder and rape, but in India, we want to move back into the 19th century,"
The other key issue activist lawyers are asking pertain to the implementation of the Juvenile Justice Bill. If, for example, the bill does get passed, and other gangrape cases were to occur in the country, would both the accused adults and juveniles be tried by the same judge or would the juvenile be tried by the Juvenile Justice Board?