Women and Child Development Minister Maneka Gandhi is reported to have said, According to the police, 50 per cent of all sexual crimes were committed by 16-year-olds who know the Juvenile Justice Act so they can do it. Three arguments have been put forth in the media in support of excluding children who are aged between 16 and 18, and have committed serious crimes, from juvenile justice. First, that children aged 16-18 are old enough to distinguish between right and wrong and so must bear the penal consequences of their actions. Second, there has reportedly been a tremendous increase in rape and murder by children. Third, children are committing more offences because apparently they know that they cannot be punished under the JJ Act, 2000. Each one of these assumptions is incorrect and needs to be refuted.
Children aged between 16 and 18 can distinguish right from wrong, but their ability to control risk- and pleasure-seeking behaviour is very weak. Adolescent brain imaging and monitoring have found that the part of the brain that promotes risk-taking behaviour is much more developed than the part that controls those instincts. In the absence of sufficient social guidance and supervision from parents as well as from the state, adolescents are even more vulnerable to the pressures of their brain. Adolescents cannot be dealt with like adults as their brains at that age are not like adults.
According to official records, a total of 1,372 boys and 16 girls in the 16-18 age group were arrested (but not convicted) for rape in 2013. This constitutes 4 per cent of the total number of rape cases reported, not 50 per cent, as claimed by Maneka Gandhi. It also amounts to a mere 0.002 per cent of the children in this age group in India.
The National Crime Records Bureaus Crime in India 2013 does report a 60.3 per cent increase in the number of children and a 35.2 per cent increase in the number of adults arrested for rape in 2013 over 2012. This increase can be directly attributed to the widening of the definition of rape by the Protection of Children from Sexual Offences (POCSO) Act in 2012 and in the Indian Penal Code in 2013, rather than the protective approach of the JJ Act. Penetrative sexual assault or rape now includes not just penile penetration of the vagina but also anal and oral penetration by objects and fingers. It has been made gender neutral in the case of children below 18 years of age. Raising the age of consent from 16 to 18 years has brought many more juveniles within the net of sexual offences.
Many relationships between adolescents have given rise to rape charges since the age of consent for sexual intercourse has been raised. There is concern in judicial circles and among child rights activists about the criminalisation of young persons for romantic relationships. The Bombay High Court has already decided to examine the wider issue of consensual sex leading to the charge of rape. It is ironic that instead of amending the POCSO Act to decriminalise adolescent sexual behaviour, the ministry for women and child development is trying to send children to prison.
Adult punishment for adult offences is sought to be justified by the idea that such deeds deserve severe punishment and by the deterrent effect this punishment will have. The former rationale is based on a barbaric notion of retribution, and there is no evidence that severe punishment deters. Amendments to the IPC in 1983 and 2013 put in place stringent penalties such as mandatory minimum sentences of seven, 10 and 20 years, life imprisonment without parole and the death sentence. But rapes by adults have been continually on the rise. What makes anyone believe that adolescents will be deterred by the fear of harsh punishment in the adult system
America was sent into a panic in the 1990s by its high violent juvenile crime rate. Today, America reports that transferring children to the adult system has had an adverse impact on childrens rehabilitation. There is no reason to adopt the American approach in India, which has a much lower juvenile crime rate. Improving socio-economic circumstances, addressing the patriarchal values that promote discrimination and violence against women, improving standards of education, reducing the drop-out rate in schools, providing the necessary infrastructure and personnel in childrens homes are needed to create robust citizens of tomorrow. Sending them to prison is no solution.
The writer is professor at the Faculty of Law, University of Delhi