Obeying the letter of the law, ignoring the spirit of it: Trisha Shetty on Nirbhaya case

Trisha B Shetty and Nishiki of SheSaysIndia talk about the challenges of the law, the juvenile issue in heinous rape cases, why there is so much grey in our understanding of the justice system. At the same time they both reflect on why our juvenile law too is ambiguous and how the rehabilitation process needs an entire overhaul.

‘Jurm jeet gaya, hum haar gaye’ was Jyoti Singh’s mother Asha Devi’s first reaction upon finding out that despite all their petitions and pleas, the Juvenile will walk free.

When the news broke about that horrific gang rape on 16th of December 2012, there was a collective sense of shame we felt in being Indian. We were served with a brutal reminder that we as women are just not safe. We were shown the harsh reality of just how depraved our environment is and out of touch with humanity we are.

But this is not going to be a piece about morality and injustice, although it is hard to strip away emotions and talk in purely a pragmatic sense when you refer back to this heinous crime. This is going to be a piece that will cover what the Juvenile Justice (Care and Protection) Act, 2000 is about, its implementation as seen today and statistics on juvenile crimes in India. 

The Juvenile Justice Act 2000 :

1. The Act identifies two types of underage/minor children. Specifically, ‘juvenile in conflict with law’ and ‘child in need of care and protection’
2. The former category of ‘Juvenile in conflict with law’ means any offenders who have committed an offence under the law before they turn 18 and the latter category of minor child includes but doesn't limit itself to: those children who have been neglected, abused by their parent or guardian, those minors who are mentally or physically challenged and without any one to look after them, those who are found vulnerable, victims of an armed conflict and so on.
3. Provisions under the current Act dictate for the ‘juvenile in conflict with law’ to go to Special Homes and ‘children in need of care and protection’ get directed to Shelter Homes. Incase of ‘juvenile in conflict with the law’ the minor is required to first go to a designated observation home, for his or her temporary reception. This home is responsible for the preliminary inquiries, care and classification for juveniles.
4. Section 15 of this Act lays down the maximum term of punishment for any juvenile to be not exceeding three years.
5. It prohibits death penalty and life imprisonment to juvenile in conflict with law, despite the seriousness of the offence. Further, it doesn’t allow for juveniles to be charged with anyone who is not a minor i.e in respect to the Nirbhaya Case the 5 out of the 6 accused were given a collective sentence, but the Juvenile was charged separately.

This is the purview of what the Act dictates, it was adopted with the idea to enable rehabilitation of children as they are a vulnerable group. However, in practice the implementation seen in our State gives rise to startling concerns. Upon field visits to these ‘Special Homes’ and having access to crime records we have flagged down a list of concerns which will leave you highly perturbed.

There are no separate homes. Recall how the Act had provisions for juveniles in conflict with the law to be kept in SPECIAL HOMES and child in need for care and protection to be kept in SHELTER HOMES. In reality all the children are housed in the same premises with no effort made to segregate them either.

“Homes” for minors in our state, is so understaffed and under developed that there is ABSOLUTELY no segregations of these minor being housed based on their mental status, age, or offence type. The ONLY segregation seen is based on sex. Specifically: boys are literally in a separate more spacious enclosure while girls are in a separate locked enclosure.

If you’re lucky enough to have been blessed with a safe and protected childhood, and you need a privilege check; make a field visit to these Special Homes. The provisions of the law, and this Act was charted out to be beneficial for vulnerable minors, but in actuality we are facing a different dilemma altogether. Its one big overcrowded open house situation where you see minors mingling and making friends with those who commit petty crimes like robbing, mentally and physically challenged minors, rapists, kidnapped children and other vulnerable minors.

There are two glaring red flags here - your inherently exposing the kids in need to be protected to a more volatile and harmful environment by housing them with children convicted of crimes. And second, the scope for radicalisation or these impressionable children to become hardened criminals is not to be underestimated or unaccounted for.

The field visit left us with this very real sense of fear and helplessness; is this the environment we are exposing our kids too? If this what our societies cumulative karma has come down too, where we don’t have the basic decency to even protect children who have already been exploited and abused?

These realities begs the questions - Why is the procedural implementation of the Act so severely flawed? and Where is the Social Auditing records?

“The world will not be destroyed by those who do evil, but by those who watch them without doing anything”. The government and state bodies have a higher onus to do better by its citizens. India's children need to be treated better, we all should be treated better!

Coming back to the Nirbhaya case and this issue of the juvenile walking free. What we often do not take into consideration is that this case is not an aberration, everyday there are women and children being abused sexually. Child sexual assault is a huge problem in India and male and female children are being raped or sexually assaulted in alarming numbers. A 2013 case study by the Indian Government showed that 53% of children (male and female) reported being sexually abused. By simple semantics, a juvenile is more physically likely to rape or overpower a female who is younger than he is. Unless its the case of gang rape.

Current statistics of juveniles who are being flagged for being rapists - 

a)    75 % of Juveniles in 2014 in India were aged 16 to 18

b)   There has been a 158% rise in rapes by Juveniles

c)    2012- 2014: 300% rise in rapes by Juveniles in Delhi

d)   2001 – 399 rape cases by Juveniles were reported; 2011 saw 1149 rape cases

e)    In 2004, the rate for juvenile crime was 1.77 incidents per lakh of population. It had risen to 2.58 by 2013.

f)     If 100 Juveniles are booked for murder, 76 are booked for rape: 2015

g)    If 100 Juveniles are booked for murder, 63 are booked for rape: 2014

h)   In 2013, juveniles in conflict with law were found to be involved in 163 cases of rape and 76 cases of murder.

i)     Figures of murders committed by minors went up by 87 per cent while there has been a whopping 500 per cent increase in the number of kidnappings of women and girls by minors.

With all this in perspective, I do not feel safe knowing that the Juvenile rapist of the Nirbhaya case will walk free. And i use the verb ‘walk’ to help us fully realise that the next time you take to the streets, he could very much be the guy walking next to you, taking the bus with you, being in college with you and thanks to the 10,000 rupees and sewing machine facilities being provided to him upon his release; he could also be the tailor you end up going to.

To clarify, we are not recommending death penalty be awarded to Juvenile rapists. But the blanket rule that protects all minors needs to go. If a Juvenile commits heinous crimes that warrants Death Penalty under the Constitution of India for adults, then there must be measure in place where he is awarded with life imprisonment after severe consultation and recording the special reasons in writing.

Now is not the time to be complacent or quite about these issues, we have now reached a precipitous time where we don’t need to scare children by stories of the boogey man or ghosts; we have to unfortunately ask them to not talk to strangers lest they get lured and raped. We are constantly having to account for all the various denominators to avoid getting violated.

The men need to check their male privilege and the law makers need to do a better job of safeguarding its citizens. Serve us better! Do better by us!