Why Letting The Juvenile Walk Free Is An Assault On Peace

Posted: December 24, 2015

Letting the juvenile accused in the ‘Nirbhaya’ case walk free does not serve the cause of peace or justice, believes the writer of this post. 

In its negative sense, Peace is the absence of conflict. But in the positive sense, Peace is a state where there is positive action to keep that state intact, and preserved. The foundation of a fundamentally peaceful society is a state of durable peace.

In Michael S. Lund’s words, durable peace is a positive peace that is based on shared values, goals, and institutions (e.g. democratic political systems and rule of law), economic interdependence, and a sense of international community.

For a state of durable peace to prevail, it is essential that the social climate should necessarily have a sense of cooperation and community. This cannot be achieved without justice. The essence of justice is that it is giving one what his or her due is – and therefore, where one is wronged, or one’s right has been taken away, encroached upon or violated, they may seek recourse with the appropriate machinery for restoration of those rights, or to make good the loss of those rights with an equivalent recompense.

With this basic premise in place, no matter what nuance is added to the rhetoric: whether it’s a case of property being snatched, or a person being murdered, or gender-based violence or a hate crime – the essence of seeking justice is ultimately the same. Without justice, the individual or the communal memory of the crime receives no closure. That the ‘quantum’ of this justice is disputable is not within the purview of this piece, and remains open to debate.

Now picture this. A girl was brutally raped in a moving bus. Her friend was beaten, brutalised and tortured. Five of the men who did this were adults. One was six months shy of being an adult under the ambit of the law – he was seventeen years and six months old. Out of the five, one was found hanging in prison, four were convicted and sentenced to death by hanging. The sixth was tried as a juvenile and sent to a juvenile home for three years. Following these three years, he was released with money and a shot at a new life with a tailoring unit of his own.

The Juvenile Justice Board and some people argue that the assertion that the juvenile was most brutal was the media’s fabrication. And yet, earlier reports around 2013 suggest that this was mentioned in the police chargesheet.

Some argue that the juvenile suggested a proclivity for reformation and that was evidenced by his having won painting competitions. And yet, his counsellor, in an interview a few months ago, suggested otherwise. It is neither my business nor my prerogative to evaluate these facts or any of the purported pieces of evidence – for I am neither the judiciary nor in anyway equipped to do so.

However, I do know one thing.

Justice is necessary if we are looking at a social climate of sustainable peace. Today, with the Juvenile walking scot free, we are risking many things.

One, Jyoti’s parents and her memory have been grossly wronged. What was done to Jyoti was a crime of the worst possible kind. It is, what the judiciary has itself, considered the rarest of the rare case. To allow the juvenile to escape penal consequences in proportion to his conduct is to allow him to slip through the sieve of justice, on a technicality.

The Juvenile Justice act is a legislative effort to exempt juveniles from trial as adults for crimes committed by them out of the understanding that a child’s mental framework might not have had the maturity to discern right from wrong. In this case, a blatant and rigorous application of this rule is fallacious – simply because being shy of the age of majority by six months does not that he did not have the mental maturity to understand the magnitude of what he was doing.

Legal eagles in the past week and a half have had plenty to say to throttle this opinion of mine – but even the best of legal minds understand that a norm in law cannot apply like a one-size-fits-all-blanket. Trying a juvenile as an adult on a case by case basis does not mean the lowering of the age for the tag of ‘juvenile’.

Secondly, allowing the juvenile to go scot free creates a climate of fear, mistrust in the law, and disillusionment for the institution of justice. For many, and this is not unfounded, releasing a person who had a hand (arguably the most brutal of all) in committing a ghastly crime that shook the conscience of the nation can trigger fear for safety. That he was allowed to walk away after three years of being in a reform home (of questionable quality no less, given many reports on the state of affairs in juvenile reform homes in India), slipping through the loopholes in the system can create a climate of mistrust in the law.

Heaven/God/Goodness/The Universe/<insert as appropriate> forbid that another incident of this sort happens, where the criminal involved is a juvenile – there are many people who don’t feel like they have the guarantee that the law will punish the juvenile. Finally, even if one were to say that the Juvenile Justice Act in its amended form will take care of the future, that justice remains undone in this case creates a sense of disillusionment. There are many angry, disheartened and upset people as a result of the juvenile’s release.

The point to be remembered here is that the right to Justice is like every other basic human right. Sometimes, being rigid in procedure does not bring results.

The point to be remembered here is that the right to Justice is like every other basic human right. Sometimes, being rigid in procedure does not bring results. Sometimes, it makes no sense to stick to a rigid rule because that is what the iron fist of the law says. Sometimes, it makes no sense to clamp down this iron fist, simply because it serves the need of maintaining “law and order”.

There’s a downside to making the choice of ‘law and order’ at the cost of justice: the unsettled, impermanent and the simmering undertones of tension underlying it. Try Charles Taylor’s case. While still the President of Liberia, he was responsible for several atrocities he orchestrated and implemented in neighbouring Sierra Leone. He was offered amnesty, initially, and then lived elsewhere until he started making attempts to assassinate other leaders. Had he not been given amnesty in pursuit of temporary peace, he could have been tried earlier, and had that happened in time, he would not have been behind the conception and attempts of assassinations. I’m not saying the juvenile is like Charles Taylor – but the idea of putting both on trial appropriately for their crimes is what I’m suggesting.

There is no doubt in my mind that restorative justice is an ideal way to go about addressing criminals, but, I also believe that those who are wronged have the right to choose whether to go by the retributive or the restorative route to justice. Furthermore, as a wise lawyer from New York recently explained to me, restorative and rehabilitative justice, are not mutually exclusive. I’m a firm believer in peace.

But I also believe that true peace cannot come at the cost of justice.

Image of statue of justice via Shutterstock

 

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