Don't let the juvenile walk free: Elsamarie DSilva on Nirbhaya case

The “juvenile” who was one of the main perpetrators of the horrific gangrape of Jyoti Singh in Delhi, is going to walk home free.

This has a lot of people, including the parents of Jyoti Singh, quite upset and deeply disappointed with the country’s legal system. In the last two days alone, I have been asked for my opinion at several public gatherings on whether this young man who continues to remain anonymous, should be allowed to walk away.

Juvenile was three months short of being adult

The young man in question, was 17 years old when he brutally gang raped Jyoti. From the accounts of the trial, we know he was the most violent, instigating the others to insert metal rods into her body and pull out her intestines and other body parts thus causing the most damage to her internal organs and body. Even in this “rarest of rare” cases, he was tried as a juvenile purely because of his age and no other factor.

The rest of the perpetrators were awarded the death penalty by the judicial system reflecting the nature and heinousness of the crime. Yet, this particular individual gets to walk away scot free because of his “juvenile” status.

The Problem with India's Juvenile Justice System

The current legal framework addressing the trial of Juveniles under the law for crimes committed by them comprises the Juvenile Justice (Care and Protection) Act, 2000 and Sections 82 and 83 of the Indian Penal Code. A revamped Juvenile Justice Bill was passed in the Lok Sabha on May 7, 2015 in the aftermath of the Delhi Rape Case of December, 2012 in which a minor was found guilty. The new bill will allow minors in the age group of 16-18 to be tried as adults if they commit heinous crimes. The crime will be examined by the Juvenile Justice Board to ascertain if the crime was committed as a 'child' or an ‘adult'.

The state of affairs vis-à-vis juveniles and the commission of crime is disparaging and requires immediate attention. Juveniles, or those aged under eighteen, make up 42% the nation’s population, and 1.2% of the total reported crimes in the country are committed by them. Within this number, 7% indulge in serious crimes that include rape or murder, which includes consensual sexual activity and cases framed in love cases and elopement, where rape is charged almost ornamentally at the instance of girl’s parents; and the numerous cases where the juvenile is found not guilty at the end.

Over the years, the police themselves have demanded a change of law. One such case that took place in Delhi in 2010-11, was of a burgle and burn gang whose juvenile ringleader allegedly taunted the police saying that they could do nothing to him because he was not an adult.

Therefore in this situation, it would be advisable for a retrial where the earlier judgement is annulled and a fresh trial is conducted keeping in mind the new provision of the law.

To be sure, there is good reason why “juveniles” must be protected and tried differently than adults. Institutional systems should have specific intervention programmes to reform them and ensure there is no recidivism. Yet, I doubt that such system exist in India.

The office of Justice Programs of the United States mentions that “Juveniles who commit sexual offenses have come under increasing scrutiny from the public and policymakers over the past 25 years. Previously, this population was not seen as a significant public safety threat and was instead viewed with a "boys will be boys" attitude. However, in a series of studies conducted in the late 1970s and early 1980s that featured retrospective sexual history interviews with adult sexual offenders, many adults reported they began their sexual offending during adolescence. These findings led practitioners and policymakers to focus more attention on juveniles who commit sexual offences as a way to prevent adult sexual offending.”

So what are the chances of this young sex offender committing another sex crime yet again? The chances are very high.

Releasing him and giving him a one-time grant or a tailoring shop is not a solution to the socio-cultural climate that is filled with misogyny and crimes against women.

Considering the nature of the crime committed by the juvenile, his trial as a child is unfounded. We request that the current trial and consequential outcome of the trial of the juvenile be annulled and that the juvenile be tried again.

Please sign this Petition so that he does not walk free, his former trial as a juvenile is annulled and he is re-tried as an adult for an adult crime committed.

Picture Credit: India.com

ElsaMarie D’Silva is the CoFounder & Managing Director of Safecity that crowdmaps sexual harassment in public spaces, and is a 2015 Aspen New Voices Fellow. You can follow her on twitter @elsamariedsilva

Kirthi Jayakumar is the founder and CEO of The Red Elephant Foundation that works on civilian peacebuilding through storytelling, and is a 2015 VVLead Fellow. You can follow her on twitter as @kirthijayakumar