But as we reawaken to the need to protect the rights of women, though, it is surprising how many of us have begun to resent the rights accorded to another vulnerable section of our population — our children who are under the age of 18. Our attention seems to be riveted by the prospect of retribution against the one accused in the gangrape case, who is a child below the age of 18 years. In our understandable fury, we are forgetting the rights which we have fought hard to win for India’s children over the past 40 years. We are crying out for an amendment that will adversely affect thousands of 16 to 18-year-old children who live in extremely difficult circumstances on the fringes of our society. We are turning our backs on the Convention on the Rights of the Child that we, as a country, ratified on 11 December 1992.
I want to make four points to show why dropping the age to try children as adults from 18 to 16 will be a step backwards:
Let’s begin with statistics and the manipulation of numbers. We are often told that juvenile crime has increased. In fact, National Crime Records Bureau (NCRB) data shows that in 2011, 1.1 percent of crimes committed in India were committed by juveniles, up from 0.9 percent in 2001 and down from 1.2 percent in 2008. If there has been an increase, it’s marginal. And one reason for the increase was that in the year 2000, the Juvenile Justice Act of 1986 was revised to increase the age of juveniles from 16 to 18. Another reason is because children who would be hidden in the adult system are now funnelled into the juvenile justice system. In Delhi, as a result of a High Court order, teams of lawyers and social workers visited the wards of Tihar Jail and Rohini Jail, and prepared applications for inmates who claimed to be less than 18 years of age. According to data from the legal aid list, in Tihar out of 330 inmates who made applications, 180 were found to be children.
We are also told that incidences of rape committed by children between 16 and 18 have increased. The fact is that rape accounted for only 4.5 percent of the crimes committed by under-18s in 2011. NCRB data does show a percentage rise in rape cases from 2001 to 2011, but many of these cases are because of an increase in “love affairs”, where the boy and girl run away consensually and the father of the girl files an FIR alleging rape and kidnapping.
Different interest groups put their particular spin on rape statistics. Society is bluffed into believing it must protect itself from its children, who are turning into predators. Children are arguably becoming more sexually aware at an earlier age, in part because of highly sexed films, advertisements and social media. Many of these children are younger than 16, but few support mechanisms exist to help them deal with early sexual awakening and physical maturation. We should find ways to reach out to teenagers and children in schools and communities to teach them the life skills to cope with the consumerist and sexually explicit messages they are routinely exposed to.
This feeds into my next point. Should the cutoff age for those eligible for juvenile justice be changed from 18 to 16? Behaviour that is considered abnormal in adults would be considered normal in a child below 18 years. Most adolescents mature out of reckless and impetuous behaviour by their late teens without any intervention, and it is important that this transition into productive adulthood not be derailed by neglect in an adult criminal environment.
Adolescents weigh rewards more heavily than risks; they are more impulsive and sensation-seeking; they are more attracted to and swayed by the short term than adults; they are more susceptible to peer pressure. Intellectual and psychosocial maturity gradually develops between the ages of 16 and 20 when children are better able to control their impulses. A sample study conducted by an organisation called ECHO shows that at 62 percent, theft represents by far the most common crime committed by children between 16 and 18, compared to rape at just 4.5 percent. If because of one incident, no matter how outrageous, we demand that the cutoff age be reduced to 16, we will be denying justice and a chance at rehabilitation to a large group of vulnerable children, many of whom will have committed petty offences. Adolescence is a time when a child can be transformed into a responsible adult through caring and dedicated mental healthcare, counselling, education, vocational training, and de-addiction where necessary. Let’s give them the opportunity to repair their lives.
My view is that any benevolent law, such as the Juvenile Justice Act 2000, which addresses a weak and marginalised group of society, is perennially a work in progress. Whether it is to protect the rights of children, women, the elderly, the differently-abled, or any other marginalised group, the law will have to be changing and dynamic. But society has to respect the basic philosophy from which the law stems, and in the case of children, it is to find ways of rehabilitating and protecting them while reintegrating them into the mainstream.
The Juvenile Justice Act is based on the principle of ‘see, assess and act’. ‘See’ is the method of first conducting an enquiry into the child’s correct age and into whether the child did, in fact, commit the offence. ‘Assess’ refers to evaluating the circumstances in which the child committed the offence, and the mitigating factors. While to ‘act’ is to work out how those circumstances should be addressed, to work out an individual care plan and to ensure rehabilitation into society with whatever means are necessary, ranging from counselling, probation and welfare services to detox and mental healthcare. Children can also be put in an observation home, a special home or a place of safety for as long as three years. These provisions allow for segregation and classification according to age, physical and mental status and the severity of the offence committed. What is absolutely necessary is the will and commitment of all service providers, governmental and non-governmental alike, to implement the law and transform it into a tool for changing the lives of these children. We need to have a good welfare service when children are institutionalised, and a good, child-friendly, specially trained probation service to supervise and mentor children when they go back into their community.
Finally, our Constitution — see articles 15(3), 21A, 39 (e and f ), 45 and 47 — requires us to ensure that the needs of children are met and that their basic human rights are fully protected. Some 42 percent of our population is made up of children under 18, and 50 percent of these children live in extreme hardship. At least 70 percent of the children who find themselves in conflict with the law are children from difficult backgrounds, much of it to do with violence and poverty, circumstances in which offences are sometimes committed just to survive. Let us not forget the articles of the Constitution that put the onus on the State to provide free and compulsory education to all children up to the age of 14; or that the State should ensure that children are not forced by economic necessity to enter avocations unsuited to their age or strength; that children are owed the opportunities and facilities to develop in a healthy manner; that the State has a duty to provide early childhood care, to raise the level of nutrition, the standard of living and to improve public health.
Are we doing all that we can do to give the children of our country a chance to stand up and be counted? Do we need to protect them or to protect ourselves from them? The Chilean poet Gabriela Mistral wrote that our “worst crime is abandoning the children… Many of the things we need/Can wait/The child cannot.”
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