The Juvenile Justice Board verdict sending a juvenile to three years in a reform home for the December 16 gang-rape and murder of a 23-year-old physiotherapy student has not ushered in any sense of closure. The juvenile, 17 years old when the crime was committed and 18 now, was described by the police as the most brutal of the six rapists.
The barbarity of the crime, the rape victim’s subsequent trauma and her dogged fight from a hospital bed inspired nationwide protests demanding stringent sexual assault laws. While the Justice Verma Committee recommendations led to a series of amendments in criminal law, the committee refrained from suggesting changes to the Juvenile Justice (JJ) Act, 2000.
Two demands were made by those upset that the justice meted out by the JJ Act would not be commensurate with the magnitude of the offence perpetrated on the 23-year-old victim. One demand was to lower the age of juvenility from 18 to 16.
The other wanted juveniles to be tried under normal law for serious offences like murder and rape. Both were rejected by the Supreme Court in June. The court rightly noted that the JJ Act was consonant with the UN Convention on the Rights of the Child while raising the age-bar for childhood from 16 to 18 in 2000.
It also reaffirmed the restorative, and not the retributive, principle of justice enshrined in the JJ Act that aimed to assimilate children in conflict with the law back into society after a stint in a reformatory.
While the SC termed the December 16 case as an aberration despite acknowledging its gruesome and diabolic execution, it relied on statistics (only 2 per cent of crimes are committed by juveniles) to uphold the JJ Act. In the gang-rape of a 22-year-old Mumbai photojournalist, two accused have claimed juvenility.
Often, these claims are made to elude the stiffer punishments meted out to adults in similar circumstances.
While there is no evidence that stringent punishment acts as deterrence, delivering justice to the victim is equally important.
In most US states, children over 10 or 13 years of age can be tried as adults for murder. There have been instances, in Florida, of 14-year-olds being sentenced to life in jail without parole. In France, the circumstances and personality of the juvenile is considered before slapping criminal charges.
Even the UK made the break with the past, in 1993, when it tried two 10-year-olds for the murder of a toddler. The Supreme Court must look at these laws to evolve a reasonable amendment to the JJ Act.
But what undermines the JJ Act is the poor condition of reform homes. In August, inmates of a juvenile home in Delhi drove out officials and guards and vandalised the home. A Delhi High Court-appointed committee certified that were revolting against despicable living conditions.
The lofty ideal of restorative justice cannot be achieved when reformatories are dysfunctional. The circumstances in the December 16 and the Mumbai photojournalist gang-rape case were similar: a group of violent individuals who carefully plotted and executed the crime on a hapless victim over whom they enjoyed a position of power. Treating such individuals as juveniles does no credit to the restorative aims of the JJ Act.