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There is no denying victims’ and families’ pain in heinous cases of rape and murder. Can India’s juvenile justice also create a safer society, even as it seeks to assuage victims’ and their families’ grief?
Editor’s Note: Recently, Women’s Web ran a thoughtfully written post on why letting the juvenile accused in the ‘Nirbhaya’ gang rape case was an assault on peace. This is an equally thoughtful post, albeit with a different point of view. Do read and share your thoughts.
Each time I see an empty looking charter bus with tinted windows speeding on the roads, I shudder and mentally note the number plates, colour, make of the bus, or anything I can process in the few seconds of fear and helplessness. After that, I feel utmost revulsion and hatred for the men that committed a crime whose perversity the word heinous cannot fully describe.
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It is infuriating how millions of women are subjected to violence and attrocities everyday in my country and elsewhere. I can understand why Asha Devi’s daughter would have died wishing death on her assailants. I wouldn’t have wanted any different.
Perhaps two of the most striking human qualities are our ability to feel another’s grief as if it were our own, and our instinctive desire to seek vengeance on their behalf. That is why, post the December 2012 gang-rape, scores of people swarmed the street across the country, demanding justice.
Apart from better policing, better law enforcement through fast track courts, and stricter laws, there has been a strong call for retribution against the offenders. In light of the juvenile rapist being released after three years of confinement to a remand home, the calls for severe punishment have become louder.
The freshly passed amendments to the Juvenile Justice bill are rooted in the right of victims to redressal. For a crime that shocked the conscience of a nation, it is only understandable that the public opinion sway in favour of administration of retributive justice, which states that the offender deserves to be penalised for the harm they have inflicted.
In its early form, justice was administered by retaliating in equal measure against the offender, as an eye-for-an-eye. As society evolved, we weaned away from barbaric modes of retaliation, and structured our laws so that punishment is prescribed in proportion to the gravity of the crime. Many countries including India have slowly adopted more forward-looking reformatory and preventive models that seek to bring about fundamental changes in offenders and re-assimilate them into society, reducing crime rates gradually.
With an increase in crime rates despite, political discourse is moving towards strengthening retribution over strengthening reforms. It is worth examining this recent development in thought in detail.
When a heinous crime is committed, the victim’s loss is irreversible, and the sense of grief for those affected only compounds with time, together with a feeling of guilt and helplessness. What then is justice for such a crime, if it were to be retributive in its core spirit? Retribution is but a temporary sense of feeling even, and in the sense that a crime cannot be undone, no punishment can recompense the victims in sufficient measure.
Perhaps one can argue that, in a democracy, the harm done to society must be assuaged in ways that the current emotional makeup of people demands. Yet, must justice and law confine themselves to being reflective of the current ethos of its people, or should they strive to achieve a better society?
Justice involves both fairness to society in terms of isolating harmful elements, and fairness to the offenders by investing in reforming them to re-assimilate and contribute positively to society. It is in this spirit, that the Juvenile Justice Act of 2000 was passed, to prevent juvenile delinquency and help provide reformative care and assistance to convicted children and adolescents.
Juveniles account for about 1.2% of reported crimes today, and 66% of such juveniles are between the age of 16 to 18. Many argue for lowering the age bar to 16 to be treated as an adult quoting this statistic. This statistic, however, should not be surprising. If we are willing to grant that the share of adult criminals will be much larger than the share of juvenile criminals, we shouldn’t consider it alarming that the older amongst the juveniles are more likely to commit crimes.
When a law lowers the age bar to be treated as an adult, it must be supported with sufficient scientific evidence that juveniles are as advanced in their stages of development as adults. While it may be true for most juveniles in the physical and sexual sense, most psychiatrists disagree that cognitive development is complete. Can a juvenile comprehend the gravity of the crime he has committed? Science suggests most don’t, yet can we be sure about all of them?
If a particular juvenile is believed to have behaved as an adult while allegedly committing a crime, would a committee of judges and psychiatrists acting on that individual before his trial begins, be able to tell his mental state before, during, and after the crime accurately enough? There are grey areas here, and it isn’t clear how a committee can resolve matters that years of research leaves unanswered. If anything, introduction of such pre-trial practices can delay the administration of justice, thereby taking away the deterrent quality : after all, it is the fear of being caught and tried immediately, over the fear of being hanged, that keeps crime rates in check.
There will always be exceptions to empirical evidence. A particular juvenile may be more adult-like and cold-blooded. Laws cannot be framed to cover all possible cases, and thereby, must in their letter and spirit apply to the most common cases; they may leave enough room to treat corner cases differently, but cannot make a corner case the basis for a general law. The problem with the freshly amended juvenile justice act is that it tries to apply the exceptional rule to everyone and leaves it to a committee to arbitrate on the choice.
What then can be a solution that combines the best of reformatory practices, yet reinforces public faith in law, and assuages as much as reasonably possible of the victim’s hurt? For pain cannot be left unaddressed, lest people turn to unlawful means to seek emotional relief from pain.
One solution might have been to first treat all juveniles as per reformatory procedure – JJA(2000) – and observe carefully their progression and development throughout this phase. A committee of psychiatrists and social workers involved with a case might sit to deliberate if three years of confinement have served to assimilate the juvenile into society, or if he continues to pose a threat.
Confinement and reformatory care can be extended on a case to case basis: this sort of arbitration is more likely to be achievable than a law mandating a committee to arbitrate on every case before the trial begins.
Some people might ask if reform is possible. Can crime be adequately explained by rank poverty, deprivation of normative social contact, extreme societal pressures, or lack of an education? While motivations for crime cannot be reduced to such factors alone, what is clear is that all of us have a role to play in propagating crime. What are we getting wrong, and what can we do to change that apart from expressing outrage?
Given that most juvenile crimes are rapes followed by murder, scientific inference suggests that adolescent males are more likely to react violently to their environment than adolescent females. Clearly, we are getting something wrong in bringing up our boys. Despite the fact that a girl is not likely to commit grievous crimes, we restrict her movements as parents, as law enforcement agencies, and as a society in general – while, as the prime minister rightly said, we rarely ever question our juvenile boys on where they have been to, whom they move with, and enforce their returning home on time.
We need to shift our collective attitude from one of repressing women and instilling a fear of crime that is already intense in them, to one of grooming our young men to be responsible and wary of their actions and not consider it their entitlement to roam free and inflict injury. If we believe adults earn their freedom, adults have a responsibility to help adolescent boys earn it too.
Hear any group of young school or college boys talking in (or outside of) India: they will half-jokingly lament the unavailability of desirable women to taunt, tease, or befriend; we consider this normal and even endearing. It seems to be part of general entitlement of young men in our understanding; yet young women who speak thus are shunned for they are ‘asking for it.’
When young men are allowed to feel a sense of rightful entitlement over another’s property or body, and when circumstances compound to allow that feeling to fester – crime might result. If it does, what is the use in seeking equal revenge by having the young man executed? Doesn’t that amount to your entitlement over his? Cannot the answer lie in discarding this theory of entitlement to justice and adopting instead the theory of entitlement to freedom and safety?
Under this paradigm, juvenile justice homes are meant to provide psychiatric, educative, and social assistance towards reforming young men – filling them with a sense of responsibility and wonder towards life, instead of a bitter feeling of having been wronged and caught in the act of seeking to compensate. Such homes, however, in reality, are just mini-adult jails that lay neglected and rotting. Boys remanded to juvenile custody face sexual assault, social isolation, and further incitement to violence.
Why are we letting our executive body sit idle on carrying out reformatory laws? Do we wish away crime as something that is acceptable within the boundaries of a prison? Why are prison reform laws languishing untouched for decades in parliament? If we do not wish to invest in making our society better and crime-free, how can we claim the right to inflict revenge on deviant behaviour?
Justice is an ambitious construct – it aims to achieve sufficient redressal of grievance respecting the rights of the victims, proportional punitive measures respecting the rights of offenders, and progressive movement towards a crime-free society. It may not be possible to achieve all three in every case, but as a society we must agree that moving forward towards civilisation is most important; and taking one step backward in law hardly achieves the purpose. There may never be complete justice for personal grief – collective outrage hardly comes close.
Grief is difficult, and grieving is lonely, even when the world is behind you. There aren’t any easy ways out, so let us be respectful and sincere in our grief, progressive in our justice, and not confuse the two.
Top image of prison bars via Shutterstock
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