As juvenile in Nirbhaya case is released, debate rages over bill

In the British era, the India Jail Committee had recommended separate trials and institutions for children. Nearly 100 years later, a bill, proposing to open a window for juveniles in the 16-18 age group to be tried as adults in cases of heinous crimes, has sparked off a heated debate.

As memories of the brutal 2012 Nirbhaya case returned with the release of the juvenile, the government and the BJP cashed in on protests against his release to blame the Opposition for delay in passage of the juvenile justice bill. The Opposition, apprehensive of the fallout of certain provisions of the bill pending in Rajya Sabha, wanted it referred to a Select Committee.

While the two sides slug it out, the juvenile would have been released anyway by December 20, 2015, as criminal laws cannot be used with retrospective effect.

Child's rights lawyer Anant Asthana, one of the members of the drafting committee of the bill, heaved a sigh of relief that it was being referred to a select committee, amidst the sharp divide on it. "Seeing the conditions in jail, in 1919 the first India Jail Committee was of the view that children should not be lodged in jail. Now, this new bill, if passed as it is, will take us 100 years back," he said.

Calling the bill regressive, he said "it will be a recipe for more crime and more criminals in the long run. You cannot bring laws dictated purely by public sentiment." Reports of the juvenile being the most brutal accused in the gang rape had raised the question that he should not be treated as a child.

Asthana said it was not as simple as that. According to him, the bill follows the recommendations of the Justice Verma committee in retaining age of juvenile at 18, but created a window through which certain category of children can be pushed into adult criminal justice system. "This is called the judicial waiver, a concept being brought in for the first time in India," he said.

The bill also takes into purview issues like foster care, easier adoption guidelines, apart from criminalising juveniles committing heinous crimes. However, it must be noted that a standing committee headed by JP Nadda in February rejected several recommendations put forward by the WCD ministry, stating that the Bill violated article 14 and 21 of the Constitution. Activists have also argued that the Bill also violates the United Nations Convention of the Rights of the Child.

As the release of the juvenile became imminent, Women and Child development minister Maneka Gandhi blamed it on the stalemate in Rajya Sabha. She has also said giving the juvenile Rs 10,000 and a sewing machine was incentivising the crime.

BJP MP Meenakshi Lekhi admitted that even if the bill, brought to Parliament in 2014, was passed, it would not have applied to the juvenile in the Nirbhaya case, but said because of the delay in the legislation, it has also let off others in such cases in the past three years. "In my reading, the sexual maturity age has come down and the law should be changed as per the changing times.... The Nirbhaya case is not just rape but a case of murder and immense brutality," she said quoting statistics of juvenile crime.

Till 1999 the juvenile age was 16 and it was raised to 18 in 2000 during the NDA regime. After the outcry over the juvenile getting away with a three-year sentence in the Nirbhaya gang rape in 2012, the Juvenile Justice (Care and Protection of Children) Bill, 2014, proposing that children in the 16-18 age group be tried as adults if they commit heinous crimes, was passed by Lok Sabha. However, in Rajya Sabha, where government is in a minority, several opposition parties were of the view that it required further scrutiny. Opposition members, including those from Congress, Samajwadi Party, JD (U) and TMC, wrote to Chairman Hamid Ansari that the bill be referred to a select committee as there were provisions that should be examined before taking it up in the House.

Divided opinion

Congress' Ashwani Kumar, who was law minister during the Nirbhaya rape and murder, said opinion has been divided on decreasing the age of a "juvenile". While he agreed that governments have to respond to public opinion, Kumar cautioned "there is evidence that harsher the laws, the more ineffective they are."

CPM politburo member Brinda Karat said "we are opposed to dealing with those below 18 as an adult. It goes against international convention. There should be proper monitoring and supervision of the juvenile once released."