New Delhi: Union Minister for Women and Child Development Menaka Gandhi`s suggestion to lower the juvenile age from 18 years to 16 so that those accused of heinous crimes such as rape can be punished instead of being sent to reform homes is an outdated proposition.
The minister wants juvenile offenders accused of rape, murder, kidnapping and acid attacks to be tried in regular courts and suffer the consequences of their actions. Child rights activists and judicial pronouncements have opposed the rationale behind the suggestion.
This is not the first time that such a suggestion has been made. It first grabbed headlines after the December 16, 2012, gang-rape of a paramedic student in Delhi that sparked off a country-wide outrage and even resonated globally.
Will stricter punishment be a deterrent? Legal history in different jurisdictions has belied this theory. Gandhi`s other legal plank is equally weak, empirical evidence shows.
Gandhi fell back on statistics to claim that 16-year-olds commit rape because they know that under the Juvenile Justice Act they can get away with just a stay in a reform home and won`t get any deterrent punishment.
But, not many 16-year-olds are actually aware of Act or the fact that under its provisions they could get away lightly.
Statistics show that 8,392 juvenile accused caught in 2013 were illiterate; 13,984 had studied up to the primary level; 15,423 were between the matriculation and and high school levels and 5,812 were beyond the matriculation level.
One could attribute such knowledge possibly to the 137 rapes committed by juveniles in Delhi in 2013, but would it hold true of Madhya Pradesh, which accounted for 347 rapes; Chhattisgarh - 122; Uttar Pradesh - 196 and Rajasthan - 183?
The proposal, expectedly, did not find favour with child rights activists. Neither does it find favour with the Supreme Court, which has twice ruled - in 2013 and again in 2014 - against trying juveniles by regular courts.
Dismissing a slew of petitions filed in the wake of the Dec 16, 2012 gang-rape, a three-judge bench headed by then chief justice Altamas Kabir July 17, 2013 said that the JJ Act was intended to heal and reform children drawn to crime and not turn them into hardened criminals.
"The essence of the Act. is restorative and not retributive, providing for the rehabilitation and re-integration of children in conflict with the law into mainstream society. The age of 18 has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age, the children in conflict with law could still be redeemed and restored to mainstream society instead of becoming hardened criminals in future.
"There are, of course, exceptions where a child in the age group of 16 to 18 may have developed criminal propensities, which would make it virtually impossible for him/her to be re-integrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society rather than to allow them to develop into hardened criminals, which does not augur well for the future," the court said.
In another case a three-judge bench headed by then chief justice P. Sathasivam (since retired) on March 28, 2014, justified this differential treatment between hardened adult criminals and juvenile ones on the ground that this was what India had signed up for when it ratified international child rights conventions.
The Justice J.S.Verma Committee that was set up in the wake of Delhi gang-rape did consider the question of lowering the age, but ultimately rejected it as not viable.
"We did consider, however, a general lowering of the juvenile age. The research and the statistics in this area, as well as our own experience shows that it was not viable. Even women`s organisations, most of them were of the view that it was not desirable. And you see you can`t make a generalisation", Justice Verma`s report said.
The brutalities that accompanied the 2012 Delhi gang-rape rape and recently in Badayun shakes the conscious of the nation but does it warrants changing a law that was enacted on the strength of expert opinion the world over?
Shouldn`t Gandhi worry about the general state of lawlessness into which the country seems to be sliding into? Lawlessness egged on by the law-makers themselves?
A Tapas Pal (Trinamool Congress) asks his workers to rape women of the CPI-M women and gets away while his Samajwadi Party counterpart Mulayam Singh Yadav describes rape by boys as a `galti` (mistake) and suggests they should be let off lightly.
The increase in the incidence of juvenile crime should not be seen in isolation. It is part of the general spike in the crime graph. If Gandhi intends to check the rising incidence of crime, she should focus closer home - on the likes of Mulayam Singh Yadav and Tapas Pal.