The most glaring deficiency of the Juvenile Justice Act (JJA) is that it is gender-blind. Surprisingly, child rights activists who are resisting any change in this law are bent on ignoring this defect. They seem to live in a Garden of Eden where boys and girls have an equal chance of hurting each
other. They are also believed to be equal in the suffering inflicted on them. India’s gender asymmetry is no secret, yet the JJA assumes that violent criminality is equal among the genders and so is its impact. How can that be? Consider all the recent cases that have forced the government to consider a review of the JJA. Is there is a single case in which a female juvenile has inflicted barbaric suffering on a man? As for suffering, the trauma for a girl victimised by a juvenile male is far worse and much more long-lasting than the opposite situation. Rape, for example, leaves a girl with a social stigma even if her physical injury is treatable. The stigma lasts forever. Indian society applies contrasting standards for male and female victims of crime.
The wider question the current debate on the JJA poses is: ‘When does their childhood end and adulthood begins?’ The courts have rightly said that the end of childhood can hardly be treated like the deadline for a government job. Unfortunately, that is how the present law treats the border of childhood. It regards the 18th birthday as a truth cast in stone. Even if a male has committed the most horrible act recorded in the recent history of sexual crimes, he must be treated as a juvenile, insists the JJA and its activist supporters. Such insistence leaves the judiciary helpless and understandably irritated with the constraints placed on its legitimate functioning by a socially-culturally illiterate law. The ministry of women and child development wants to lower the age of its application to 16. This change might resolve a few cases, but the problem presented by the current law will persist. Already, we have cases of 12-year-old rapists. For them, the revised JJA will have the same old remedy of three years in a remand home.
Apart from the length of confinement in a remand home the current law provides for, the condition of this institution is a major issue. The Delhi rape case of December 2012 brought to light the appalling conditions of remand homes. They are supposed to undertake the momentous task of reforming, healing and rehabilitating juvenile criminals. Yet, these so-called homes are uniformly lacking in adequate space, specialised staff and other provisions. Let us ponder on the case of the juvenile involved in the December 16 Delhi rape case who is currently on a three-year term in a reform home. What does reform mean for him? Psychologically, it would mean that he will someday recognise the horror of his act and feel guilty and remorseful. If he actually achieves such a mental state, he will surely feel so awful as a human being that he may not want to live. He may have escaped the death sentence, which his partners in the crime received, but he may not be able to cope with life if he is truly reformed. That ability to cope will take a lot longer to create, assuming that the reform home in the meanwhile acquires splendid expertise to deal with him and gives him a healing ethos. Unless the JJA is radically reformulated, it cannot protect a juvenile criminal of this category from himself.
The present JJA is flat, rigid and indifferent to social reality. Its mild provisions make a pretence to being progressive. By ignoring the reality of gender asymmetry, the JJA condones and encourages criminality. It is far too rigid in determining the border between childhood and adulthood. The JJA must be conceived and drafted afresh so as to give the judiciary sufficient space to draw this border by distinguishing between petty and serious crimes. Child rights activists who are resisting changes in the JJA by referring to the UN convention should offer a contextualised alternative. The argument that juvenile criminality signifies the failure of education is, of course, correct. To strengthen this argument, we need to examine how economic conditions, the cultural ethos, and weak schooling work together. Especially at the elementary level, schools are generally far too poor themselves to provide an alternative to the ethos at home. Gaps and contradictions between different laws covering childhood also influence education. The laws pertaining to marriage and employment during childhood are gender-blind and contradictory. Child rights activists have a big role to perform in improving these laws. Instead of resisting changes in the JJA, they should help the ministry of women and child development to improve it. They should also ensure that a redrafted JJA includes an ambitious schedule that lays down norms and standards for establishing and running remand homes for convicted juveniles. A lot of money will have to be invested if these homes are to acquire the capacity to heal and reform children. With minimalist services, these homes can only ensure continued criminal behaviour on their part.
(Krishna Kumar is professor of education at Delhi University and a former director of the NCERT. The views expressed by the author are personal.)
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