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Juvenile Justice Act must be scrapped

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"We cannot always build the future for our youth, but we can build our youth for the future" - Franklin D. Roosevelt, 32nd President of the USA
Juvenile Justice Act must be scrapped
Pic: KnowLaw 

The Juvenile Justice Act is a bundle of confusion.

Children (10-18 years) are no longer “innocent”. They are involved in all kinds of crime – even as ‘murderous shooters for hire’.

You have to face the unpleasant facts

Pic: smallasagiant

I invite the readers to conduct a simple experiment on Google search. Please give the query “minor boy raped girl India”. It has returned as many as 15 newspaper reports of rapes committed by juveniles in the first two pages itself, that is, out of 20 results. I am just quoting the headlines which speak for themselves.  

Here are some of the eye-opening headlines:

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  1. 7-year-old ‘raped’ by minor (accused 12-year-old, Bijnor, January 2023)
  2. 13-Year-Old Girl Drugged And Raped By Minor, 2 Men In Chhattisgarh (January 2023)
  3. UP Girl,15, Kidnapped And Raped For A Month By 17-Year-Old Boy (Ballia, January 2023)
  4. Girl, 4, raped by a minor boy in UP’s Moradabad (accused 12-year-old, July 2021)
  5. Nagpur: Minor boy from UP booked for raping a woman in Sadar (accused 17 years old, July 2022)
  6. 13-year-old girl raped by a minor boy in Uttar Pradesh (accused 16-year-old, January 2023)
  7. 15-year-old boy rapes five-year-old girl in civic school (accused 15-year-old, January 2023)
  8. 15-year-old boy rapes, and murders minor girl to seek revenge from her father for assault (accused 15-year-old, December 2022)
  9. Chhattisgarh: Minor boy hangs 10-year-old girl after rapping her; arrested (accused 17-year-old, November 2022)
  10. Tamil Nadu: Minor boy rapes, impregnates 14-year-old girl in Cuddalore; accused booked under POCSO (accused 16 years old, January 2023)
  11. Chhattisgarh: 8-year-old girl raped by a minor boy in Korba (accused 15 years old, November 2022)
  12. Minor girl raped by two persons, including a minor (November 2022, Hyderabad)
  13. Two minors allegedly rape 9-yr-old girl, record video (Mathura, January 2023)
  14. Chhattisgarh: Minor Girl Gang-raped Last Year Delivers Baby; Boy Among 3 Held (January 2023)
  15. Six minor boys arrested for raping a 13-year-old girl in Assam (all accused aged between 13-15 years, November 2022)

All these incidents took place in a small period of just one-and-a-half years! The youngest rapist was just 12 years old. However, if you give the query ‘ten-year-old boy rapes girl India’, you will find that the first page itself returns as many as five reports with headlines ‘Ten-year-old boy rapes girl (Lucknow); 10-year-old boy rapes minor girl in Bharatpur; 10-year-old boy rapes 6-year-old girl in an animal shed in UP; 10-year-old boy held in UP for raping 6-year-old girl; Boys, Aged 10 And 11, Allegedly Rape 5-Year-Old Girl In Delhi.   

I will discuss the reasons for the so-called “lost innocence of kids” in a separate article because that is a complex social issue and action is required at numerous fronts including family, parents, schools, availability of adult content/porn on the Internet, and very affordable mobile clips, the entertainment media, and so on. In the following, I will discuss the shortcoming of the law arising out of Victorian notions of childhood, which must be corrected immediately for proper deterrent effect.

Lest you forget the horror of horrors

Regarding the infamous Nirbhaya case, India TV has cited from the Court’s judgment in September 2013 that “She was gang raped by six persons one by one and…iron rod and hands were inserted into the abdominal cavity…(and a) major part of her intestine was pulled out from the body. According to the Times of India story ‘What is Nirbhaya case?’ (December 18, 2019), it was the juvenile rapist who had inserted the iron rod. He was just a few months short of turning 18 when he committed the crime.

Yet, as India Today reported on December 20, 2015, despite massive public outcry, this ‘juvenile demon’ was released from the correction home after he completed three years there. A day before his release, he was sent to a secret location due to ‘security reasons’. After his release, the juvenile was taken to an NGO which rehabilitated him in South India. Hindustan Times reported in May 2017 that he was working as a cook somewhere in a restaurant in south India. Would you be comfortable eating in that restaurant if you came to know that it is the same demon that made it? How can you be comfortable with the fact such a perverted creature, who never showed any sign of remorse, is a free citizen?

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In the 2013 Mumbai gang rape, also known as the Shakti Mills gang rape, a 22-year-old photojournalist was gang raped by five people, including two juveniles. The accused tied up the victim’s male colleague with belts and raped her. On April 4, 2014, the trial court handed out the death penalty to the three repeat offenders in the Shakti Mills gang rape cases, making them the first in the country to get the maximum punishment stipulated under the newly-enacted Section 376E of the Indian Penal Code in the wake of the Nirbhaya case. As for the other two accused, one was awarded life imprisonment until his natural death while the other accused turned approver in the case.

Pic: Legal Service India

In respect of all the convicts and not just the adults, the Court commented, “The manner in which the offense was committed reflects the depravity of the accused. The crime was not an impulsive act, but the premeditated outcome of a criminal conspiracy. They sexually ravished the girl and left her in a pathetic state. A proper signal has to be sent out to society. Even if in this case the accused are not reformed, others like them will be deterred. In some cases, mercy is justified. But in this case, it would be misplaced and would be a mockery of justice…Mumbai gang-rape accused have the least respect for the law. They don’t have the potential for reformation as per the facts of the case…The gang rape accused were not only enjoying the act of sexual assault but also the survivor’s helplessness. It was executed in the most gruesome manner with no mercy or show of human dignity to the survivor.” This means that the juveniles suffered from the same depravity as the adult criminals. Yet the two juvenile rapists got away with just three years at a Nashik reform school!

The depravity in the minds of the juvenile criminals

Can you really delude yourself into believing that at this age, boys of 10 or more are innocent or ignorant in matters of sex? They are neither ignorant nor innocent. These days even if urban kids do not have scientific knowledge of sex, they get ‘practical’ information from the Internet and forums on the Internet where they feel free to talk about anything. As far as rural kids are concerned, what they lack in fact, they make up by wrong notions derived largely from their equally ignorant but pretentious elders.

Also Read: How does media violence affect children?

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Most often, the only thing that occupies their mind is sex. Rape stories are some of the most popular items on their Internet forums as determined by the number of views and replies (reps) which they proudly mention there. If we quote from any one of those forums, you would be scandalized. A boy of 12 therefore can be as much a criminal in his mind as a convict of 32.

Why kids these days are precocious?

These days, at least the urban kids are getting a more nutritious diet than what kids got nearly 50 years ago at the same economic level as their families. As a result, the physical development of both boys and girls is much better these days and puberty sets in early. Several studies have shown that the average age of menarche (onset of menstruation) for girls and that of spermarche (also known as semenarche—is the beginning of the development of sperm in boys’ testicles at puberty) for boys in India has gone down considerably. Thus as far as the biological capability of sex by persons beyond the age of 10 is concerned, there is no doubt. With the explosion of the sources of information, adulthood now is essentially a state of mind. It has very little to do with biological age. One who, at the age of 12, knows more about sex and all sorts of sexual activities than perhaps what a 21-year-old knew in the 1950s, is actually an adult in his mind and capable of doing the same things which, in your perception, an adult would do.

In effect, even boys of 10 are perfectly capable of performing the sexual act—they are prepared and equipped both in mind and body. Masturbation, a regular activity with kids, requires an erection, which is adequate for penetrative sex also. Whether he would actually perform intercourse or not depends on his bent of mind and the opportunity. His bent of mind is bent by the sexually explicit material to which he is exposed. Coupled with their innate proclivities, some of them might drop their inhibitions and be on the lookout for sex. Since the opportunity of consensual sex with a female partner who understands what sex is, is rather rare, this means that he will look for forced sex on very young girls who are perhaps not able to understand what sex is. That’s how we have several instances of rapes of very young girls by juveniles.

In my opinion, talking about the educational level of juvenile delinquents is pointless because, for adult criminals, no correlation of criminality in the mind of the criminal with his educational level has been established for the adult criminal. Hence saying that over 95% of juvenile delinquents have not studied beyond class 12th, is plainly misleading and suggests a class bias.

Trial of juveniles as adults is fraught with grey areas

The Juvenile Justice (Care and Protection of Children) Act 2015, which replaced the Act of 2000, made provisions (Sections 19, 18, and 15) to allow trials of juveniles in the age group of 16-18 years as an adult who were found to be in conflict with the law, especially heinous crimes (that is, earning more than seven years imprisonment). However, in the normal course, it says (Section 10) that “in no case, a child alleged to be in conflict with the law shall be placed in the police lock-up or lodged in a jail.” The 2015 Act merely makes a provision for trial as an adult. Its application is still decided on a case-to-case basis, which, in effect, means that it varies from judge to judge and court to court. The fallibility of the system must be obvious.

In fact, in 2015-16 when the draft Model Rules under the JJ Act were being considered, the Centre for Child and Law, National Law School of India University, Bangalore in its objections before the Parliamentary Standing Committee had submitted that “Individualized assessment of adolescent mental capacity is not possible and if it is done it would mean exceeding the limit of science’. The Delhi High Court has held that the JJ Board is not bound to accept the “expert report.” In the absence of uniform guidelines as yet, you can imagine what onerous responsibility has been thrust upon a magistrate and two social workers! Judicial opinion on this has been inconsistent.

In September 2022, for example, the Bombay High Court granted bail to a juvenile gang rape accused (crime committed along with five adults) in the gang rape of a minor girl in 2020, after holding that the boy “had positively responded to the rehabilitative efforts and deserves to be reunited and restored with his family”. The Court said, “The report which is placed before me, which has analyzed his physical and psychological parameters, does not reflect him as a desperado or a person misfit in the society.”

In a country where corruption has consumed every walk of life; where people manage to manipulate even the marks obtained by them in examinations and interviews for jobs; where post-mortem reports are manipulated (you may recall the scathing observations of the Allahabad High Court in the sensational Aarushi murder case, castigating the doctors); where forensic reports are manipulated; where witnesses regularly turn hostile in court; to even think that the report on the psychological assessment of a minor cannot be manipulated by influential people amounts to living in a fool’s paradise.  

On the other hand, in November 2022, in connection with the notorious Kathua rape-cum-murder case of an eight-year-old nomadic girl, the Supreme Court ordered the trial of Shubham Sangra as an adult and chastised the chief judicial magistrate and the high court over their “casual and cavalier” approach while deciding on the basis of the birth certificate and school records that the accused was a juvenile when the crime was committed.

In a case where the victim was raped repeatedly on multiple occasions by the juvenile accused, the Children’s Court (Sessions Judge), Mansa had declared the accused a child and ordered him to be tried by the Juvenile Justice Board in view of the fact that on the date when the victim was first raped in the year 2016, he was a minor. However, in August 2022, the Punjab & Haryana High Court held that the relevant date for determining the claim of juvenility would be the date when the last incident of rape took place.

A seven-year-old kid Pradyumna Thakur was murdered in 2017 at the Ryan International School, Gurugram by slitting his throat. The CBI charged a 17-year-old boy studying in the same school, for the murder. In July 2022, the Supreme Court directed the Juvenile Justice Board and the Children’s Court to re-examine the legal standing of the accused, and whether he should undergo trial as an adult or as a child—the Board finally relented to get him tried as an adult. In any case, in October 2022, the Supreme Court granted the accused interim bail on the ground that his continued detention, until the trial is completed, may have adverse effects on him!

The juvenile justice board is a farce

I am of the firm view that, as per the 2015 Act, the opinion of three people comprising the Juvenile Justice Board (a magistrate and two social workers—imagine!) and perhaps a psychologist to make an assessment with regard to the delinquent’s mental and physical capacity to commit such offense, ability to understand the consequences of the offense and the circumstances in which he allegedly committed the offense is a screaming farce, which is absolutely at variance with the realities of the modern society. The provision of three years stay in a “special home” (correction home/rehabilitation home) is a hopeless anachronism.

There is simply no reason to believe that with vast exposure to stories of crime, the condition of the victims, and punishment, the delinquent kids are not aware of what they are doing. They read about it in newspapers, and magazines and watch it on TV. Only a fool would believe that a minor who commits rape does not know what rape is, that it is a crime to force one upon a woman against her will, irrespective of her age, and that it causes her immense trauma.

Persisting with the JJ act is anachronistic and an insult

According to the NCRB data, the rate at which juveniles are held guilty is much higher than the conviction rate for adults. In 2020, 91.4% of the juveniles accused were held guilty. On the other hand, the Juvenile Justice Board is such a farce that 47% of the juveniles brought before them were sent home after just advice or admonition.

In my considered opinion, the unnaturally lenient provisions of the JJ Act actually embolden and encourage potentially delinquent juveniles to commit crimes and hence it must be scrapped as soon as possible. In fact, using the very words ‘child in conflict with the law’ in the Act is a patent absurdity because it presumes, a priori, that there is no criminality and the commission of the crime is merely accidental. To persist with stupidity that, in its spirit, had been started by the colonial rulers long back with the Apprentices Act, of 1850 and the Reformatory Schools Act, of 1897 in their Victorian mindset, is an insult to the collective intellect of the nation.

A challenge to those who support the JJ Act

Let’s face facts:

  • Would you like it if your daughter was raped by a minor?
  • Would you feel comfortable if the rapist of your daughter came back to live in the same colony after having spent three years in the correction home?
  • Would you and your daughter ‘enjoy’ seeing him every day?
  • Would your daughter feel safe being with him alone in the same lift?
  • Would your daughter feel happy if he gave her an occasional smirk or a wink on the sly—or any such thing that cannot be proved in a court of law?
  • Would it be acceptable if your neighbors start gossiping, pass comments, or give lecherous looks to your daughter?

I would like to see how many parents in India say yes — to the above questions.

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Dr N C Asthana IPS (Retd)
Dr N C Asthana IPS (Retd)
Dr. N. C. Asthana, IPS (Retd) is a former DGP of Kerala and ADG BSF/CRPF. Of the 56 books that he has authored, 20 are on terrorism, counter-terrorism, defense, strategic studies, military science, and internal security, etc. They have been reviewed at very high levels in the world and are regularly cited for authority in the research works at some of the most prestigious professional institutions of the world such as the US Army Command & General Staff College and Frunze Military Academy, Russia. The views expressed are his own.


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