It has been a month since the atrocious Delhi gangrape that resulted in the death of a 23-year-old physiotherapy student. Minna Kabir, a voluntary child rights worker and Chief Justice of India Altmas Kabir's wife, in an open letter, expresses her views on how we need to react to such cases as well as how we respond to those accused of such crimes.
The letter is as follows:
Though India has seen, read about and heard about all kinds of ghastly rapes, murders, and sexual violation and abuse of women, girls and even little children, December 16th 2012 was probably a turning point in the way the general public and people all over India reacted to this type of an incident.
There has been such a mass out-pouring of seething anger, grief, frustration, helplessness, and a whole gamut of unexplainable emotions, that one wonders what are the positives, and what are the negatives, that will come out of the whole ghastly incident, which should shame all of us who call ourselves human beings and all of us who call ourselves Indians.
There is no doubt that the total violation of the young girl and her friend, and her death thereafter, is a terrible incident. There is also no doubt that the whole country has been shocked to its senses, and shaken out of the apathy with which we usually react to these kind of incidents. But if one were to stop and think, one realises that a near hysteria has also been created, and a mass mentality and a 'mobocracy' is in danger of taking over the whole 'show', and this is developing into a confused, uncontrollable, monster of opinion and reaction, so that reason and sanity are forgotten in the groundswell of mixed positive and negative emotions and reactions.
One must differentiate between the complete retrogressive opinions that are coming through about women, their dress, their liberation, their education, their changing roles in society, and their growing independence from men; being blamed for the increase in violence against women, and the equally retrogressive feeling of revenge and the bloodcurdling cries for burning, lynching and hanging the accused, regardless of the rule of law and regardless of a Code of Criminal Procedure which says that :-
(i) Every person is presumed to be innocent until he is proved guilty
(ii) That every person has a right to defend himself in a court of law
(iii) that every person has a right to be represented by an advocate
(iv) that every person has a right to be tried by a law applicable to him and applicable to the crime he is alleged to have committed
(v) and that every person, if he has to go to the gallows, and have the death penalty pronounced against him, has also got to have the satisfaction that he has had a fair trial which every civilized nation has the duty to provide him.
The first opinion, which I have mentioned above, has to, and must be opposed vehemently, if it seeks to put the onus of sex related crimes on women and their being liberated from conservative notions and habits.
The second opinion should however be condemned equally strongly as in the words of Amartya Sen “street protest is one thing, and street justice is quite another. The punitive system has to work through our judicial system.” We in a thinking society must stop to put things in perspective, we must strike a balance in our thinking, and we must realise and understand that there is a failure on the part of the entire system which led to such a heinous crime, which is not the first such crime and will not be the last.
• It is a failure on the part of the police, who more often than not are responsible for breaking the law rather than enforcing the law
• It is the failure of the public who is always too reluctant to react, to respond and to help in situations like this one
• It is the failure on the part of our leaders who are hesitant to lead at times like this, and instead say, or do not say, what the public and the media demands of them to say
• It is a failure on the part of a sluggish judicial system, which does not bring the perpetrators of such crimes to speedy justice so that it acts as a deterrent for other such crimes
• It is a failure of the values and aspirations of many in our country who are consumed by voracious consumerism, taken up by commercialisation and advertisements that all speak a message of possessing material goods at all costs, and also use sexual messages, of how one is to obtain these goods
• It is a failure of our educational system which no longer imparts value based education to its children, but instead teaches each child that he has to be the best and succeed at all costs
• It is a failure of an educational system that exists in a society and country that has passed a Right to Education Act, which though it guarantees education to every child in the country, in reality has a different quality of education for children depending on the economic background they come from
• it is a failure on the part of all of us in society who fail to see the large disparity in wealth, opportunity, facilities for food, education, medical care, shelter and housing, and employment opportunities between different segments of our society, so that we close our minds, hearts and eyes to the fact that 40% of our people do not have even the basic necessities for living a human existence, while a few of us wallow in un-necessary luxury and vulgar wealth, and still want more!
One can go on and on about what failures are responsible for such incidents. It was very good and very important that there were spontaneous protests and candlelight vigils all over the country, it was very important that there was an awakening among one and all, and an outpouring of anger, grief, and indignation, but there also has to be realization that if things have to improve then there is a very difficult job to be done by one and all.
One must stop and take a holistic view about the reasons for such incidents occurring, and must think of a multipronged approach to the problem, so that instead of knee jerk reactions, we can work out a way together with all concerned people in society, a way to tackle all the root causes which lead to such incidents in a supposedly civilised society.
This mass outpouring of grief and anger should be channelised constructively so that reactions should all be constructive and not destructive. It should be channelised so that we will not have people taking the law in their own hands, crying for blood and revenge, and wanting to do summary justice as they think fit, disregarding all laws relating to the criminal justice system. We must think in terms of:
• Tackling the problem culturally and ideologically by evaluating the values that are prevalent in our society.
• Tackling the problem institutionally by looking inward at the executive, legislative, judicial, police system, and educational system.
• There should be a careful evaluation of the way the media, the social networks, the advertising system, the entertainment system are creating a culture of consumerism, sexually explicit messages, and generally using the female body as a means of drawing attention to whatever it thinks is important to draw attention to!
• There should be a soul searching as to how not only the police, the government, and the judiciary should implement or enforce or interpret laws, but as to how common people in every area and community, should become aware of the injustices and problems faced in their respective areas, and there should be an effort on the part of every citizen to see that justice, equality, fraternity, and respect of every human being man or woman should be the cornerstone of everything we do within the communities where we live regardless of the caste, creed, or religion we belong to.
We have to realize that not only do we have to join candle-light vigils and protests, that not only do we have to tweet and comment at our laptops and computers, that not only do we have to attend panel discussions and write articles, but that we have to make a conscious effort to take action in whatever field we work in, to stand up for values and efforts that will prevent such incidents happening in our country.
• While there should be no tolerance of anti-woman statements and actions, there should be at the same time tolerance and respect of both the sexes, so that both can complement each other in healing wounds that have been created.
• Proper parenting models, changes in the ways families bring up their male and female children, and value based education, has to replace the consumerist, sexist, and materialistic ambitions that are being propagated among young people these days.
• Finally those who are more fortunate in society to have secure livelihoods and secure lives, have to begin to think of the people in our society who do not have available to them even the basic necessities of a human existence. We have to begin to think that they even have a right to a share in a “Shining India”, and we have to work towards that end.
I am first of all a voluntary child rights worker, and for many years I have been working on a voluntary basis in the yards of the Juvenile Justice Boards and in the Legal Aid rooms in order to provide assistance to children who come under the purview of the Juvenile Justice Act. I have worked in the last seven years, both with children in need of care and protection and children in conflict with the law, and I believe in the philosophy of Juvenile Justice which says every society is responsible for the well being and care of its children up to the age of eighteen years, especially if they are marginalized, helpless and powerless to do anything for themselves.
I believe that society has to protect its children upto that age, rather than protect itself from its children, and if we look deep into ourselves we will see that when it comes to our own children we would like to protect them till they are even twenty-one years old! I happen to be the wife of the Chief Justice of India, but that has not made any difference to my working on a full time daily basis for the children I have spoken about above, and those who have been associated with my work and who know me, will bear me out I hope!
I am writing this article not speaking as the wife of the Chief justice of India, but as a person who has worked very closely with children in conflict with the law and children in need of care and protection, at the grass root level, on a daily basis for many years. It is because of the daily work I have been doing in the field of Juvenile Justice that I felt I needed to speak out in defence of the Juvenile Justice Act, because I felt I had to be a voice for the thousands of children who have touched my life, and whose lives I feel I have touched in the course of my work.
I feel I have a right to speak out in support of the Juvenile Justice Act as a special law for children, not as the wife of the Chief Justice of India, but as a person who for many years, has walked with these children and their families, through the problems they face when they come into conflict with the law. By providing legal aid which is the right of every woman and child, to them, we who have worked in the legal aid room of the Juvenile Justice Boards, have fought against all odds of an apathetic and uncaring society and government, to give back to these children their lost childhood.
Most of these children, as our data will prove, come from the poorest sections of our society and because we have failed to provide them with even a basic support system, they come into crime because of poverty, because of a drug habit, because of a faulty peer group, because of dysfunctional families, because of an empty stomach, and because of adults who use them because of their conditions.
The Juvenile Justice Act, which is to provide the Government and Statutory bodies with the instruments to rehabilitate and restore children in need of care and protection before they come into a world of crime, has not been implemented fully because of the failure of the Government and society to implement it in its true spirit. Can we then say that the Act is not sufficient to reform children and ought to punish them instead?
About the controversy about age being changed from 18 years to 16 years, there has been a long evolution and a great deal of deliberation and thinking which went into the process of changing the age from 16 to 18 years in the year 2000. With the occurrence of just one ghastly incident, should we disregard all the study and thinking that went into the earlier change?
If those in the 16-18 year age group are put into adult jails and dealt with harshly by the adult criminal system, society will be failing them in giving them a chance to rehabilitate and reform themselves. When it comes to our own children making mistakes do we not want to give them a chance to make amends and reform themselves? It just happens that one has to have a cut off date at some point.
Further the Statistics and Data that are being given out by people who have their own interests in changing the age from 18 to 16 years, in their frenzy to convince society that the age needs to be changed, are not portraying a true and complete picture that actually exists on the ground.
In the first instance the increase in the number of children coming to the Juvenile Justice boards has increased not because crime amongst juveniles has increased, but because people have become more aware about juvenility, because of complaints filed in various courts especially the PIL in the Delhi High Court, the Police have realized that they cannot bluff their way through about the age of children they put in adult jails, as it is easier to do that and forget about them.
The children who used to languish in adult jails for years on end are now coming to Juvenile Justice Boards, as they should, and so the impression is that juvenile crime has increased.
As a result of the ongoing PIL in the Delhi High Court teams from the National Commission for the Protection of Child Rights, and the Delhi Legal Services Authority, have visited Tihar Jail and processed applications from a number of inmates who claimed to be below 18 years of age on the date of commission of offence.
The process is ongoing and enquiries are still going on, but of 295 applications where the age enquiry, has been completed by the legal aid advocates, 168 turned out to be juveniles who had been wrongly put in Tihar as adults, and 123 turned out to be adults in the enquiry. The increase in juveniles coming before Juvenile Justice Boards is therefore not because of an increase in juvenile crime, but because they were masked as adults all these years, before an awareness of Juvenile Justice was created by child rights workers and activists.
In the second instance about rapes among juveniles increasing I have the data of 4906 children, whose enquiries came before the Juvenile Justice Boards in Delhi, and who have been assisted by the legal aid lawyers from the Delhi Legal Services Authority since the year 2007-2008 till date.
• The data available with me is that of the 4906 enquiries done in legal aid since the last five years, there are 266 enquiries where the alleged accused is charged with rape.
• Of the 266 rape charges, 69 were acquitted, 18 were adults, and 3 were discharged. These add up to 90 being removed from the 266 rape enquiries, so that we have 176 rape enquiries out of 4906 juvenile cases in Delhi!
• This translates into 3.5% of the enquiries in legal aid, which handles most of the enquiries in Delhi, and it means that of the crimes committed by 4906 juveniles only 3.5% were of rape.
Again if one were to tabulate this data, one would realize that the number given in the Data with the National Crime Records Bureau relates to the numbers when the FIR is lodged. It does not reflect how many of these FIRs are of runaway underage lovers, where the girl’s father has lodged a complaint of rape against the boy, and where the girl has consented to run away with the boy.
It does not reflect how many of these end up with the boy being acquitted, or the charge being changed from rape to kidnapping, as the girl was underage. A further study would show that of the 176 rape enquiries with legal aid, about 50% would be of love affairs. About a further 30% would be of exploratory sex by boys in the age group of 12-14 years. Here the cause can be attributed to inadequate sex education, because of no support system of sex values and correct information, and because of too much exposure to sexually explicit messages on advertisements, movies, social networks and the media.
In addition to this of the remaining few that could be of violent rape, as in adult rape, there are no repeat offenders, so one cannot say that they repeat their acts because the Juvenile Justice System deals them with lightly.
Another point I would like to make is that there have been a number of statements that say that a juvenile who reaches 18, cannot be kept in a special home if he is convicted of a heinous offence and will have to be let out. This is not correct. A look at the Juvenile Justice Act will show that Section 15 (g) of the Juvenile Justice Act says that the maximum punishment for a juvenile is three years, and Section 16 that he cannot be imprisoned for life, or given a death sentence. Section 15 (g) of the 2000 Act was amended in 2006, so that it reads differently from the same Section 15 (g) in 2000.
Even if a juvenile has crossed 18 years when his enquiry is over but if he was under 18 on the date of commission of the offence, the Board has the discretion to put him in a special home or a place of safety for three years after his enquiry is over.
Finally I would like to add that every benevolent law made for a special group of people, whether for women, or children, or the elderly, or the differently abled, will always have some lacunae and will always have something missing. As society goes along implementing these beneficial and benevolent legislations, society evolves new thinking, society makes mistakes, and society has to rectify the mistakes and improve upon the law.
Very often it is not the legislation that is wrong, but the implementation of the law that has failed and gone wrong. This does not mean that we throw the baby out with the bathwater.
Society has to strike a balance and have a healthy debate about how best to implement a benevolent law so that it benefits the target group it was meant for, and ultimately benefits society who has to protect its vulnerable population.
More than revisiting the age limit in the law, we need to look seriously at the implementation of the law, at preventive community awareness programmes for children and their families, not only in the cities but also in the rural areas, at rehabilitation and reformatory programmes for juveniles in the form of vocational trade-oriented training, open schooling where possible, availability of good counseling and probationary services for them, drug de-addiction programmes, and at better conditions in institutions when they have to be institutionalized in Observation Homes, in Special Homes or in Places of Safety.
Instead of advocating that these young lives, which have come in conflict with the law, be locked up for the rest of their lives with adult criminals, we have to think of how we can reform them and give them a chance to rehabilitate themselves. We should not let our failure of implementing the laws come in the way of providing support to these children, and we should try to turn their lost childhood around, so that they have a chance to become responsible citizens. After they turn eighteen and then commit an offence, then it is up to them to either reform, or to face the consequences in an adult criminal justice system. But society will not have failed its children!
- Views expressed by the author are personal.