All Citizens are equal under Law

The Juvenile Justice Bill was passed by the Rajya Sabha in Dec-2015.

Some excerpts from the Bill: If a juvenile between 16-18 years commits a heinous crime, he may be tried in a children’s court and not by the juvenile justice board. Moreover, they will be treated as an adult only if the board deems necessary. If the children’s court decides, the juvenile may be further sent to a designated ‘place of safety’ for reformation and rehabilitation. In the unlikely scenario of the failure of rehabilitation and reformations, s/he can be sent to an adult jail after detailed assessment and upon turning 21.

Voices in favour of the Bill have lauded it and feel that it is the right step to ensure that the guilty will be punished in accordance to the heinous nature of the crime. The opposing voices however state that this is a regressive step taken under pressure post the events of Dec 16, 2012 and will lead to more children being forced into the world of crime.                

The debate got me thinking and I went back to basics in search of my answer. Any activity which is not in conformance with the expectations of civil society, deserves a penalty. The severity of penalty or punishment should be appropriate to the degree of non-conformance. Hence, punishments can vary from a verbal reprimand for telling a lie to death by hanging for committing an act of terrorism. What is the purpose of a punishment?

As per Indian law, a person is not guilty unless proven otherwise. A punishment is expected to reprimand/reform the guilty person and prevent him/her from performing the same or other such acts of non-conformance. If the degree of non-conformance is high, a more severe punishment can be expected, to prevent the person from being exposed to the larger society since s/he could be a threat to others.  Let us now look at punishment from the victim’s perspective. The person who has been impacted by the act i.e. the victim/s needs to be compensated for its adverse impact. This compensation could be monetary or it could be a mental satisfaction of seeing the guilty subjected to some kind of physical and mental hardship. A third dimension to be considered is from the perspective of civil society which is a 3^rd party to this activity. The punishment is expected to comfort people who are part of civil society that the law is fair and impartial. It is also expected to act as a deterrent for people who may be faced with similar situations in future.

A crime is construed as heinous when its impact is monstrous or shocking. The crime committed on that night of Dec 16 was most definitely heinous. The chief perpetrator of the crime happened to be a juvenile and hence the law prevented him from being tried as an adult. The caretakers of the law followed the letter of the law and accordingly the juvenile was sentenced to a prison term of 3 years before being released to a rehab home. Was justice served in this case? If we go by the letter of the law, the answer would be ‘Yes’ but if we look at the seriousness of the crime and its impact as well as the expected outcome of a punishment as detailed above, then the answer would be a resounding ‘No’.  

Democracy is a system of rule by laws, not individuals.  In a democracy, the rule of law protects the rights of citizens, maintains order and limits the power of government.  No one may be discriminated against on the basis of their race, religion, ethnic group or gender.  No one may be arrested, imprisoned or exiled arbitrarily.  No one may be denied their freedom without a fair and public hearing by an impartial court.  No one may be taxed or prosecuted except by a law established in advance.  No one is above the law, not even a king or an elected president.  The law is fairly, impartially and consistently enforced by courts that are independent of the other branches of government. All citizens are equal under the law. 

The point to note is the last sentence above i.e. ‘All citizens are equal under the law”. The deceased victim was subjected to an hour of the most gruesome torture that any human being can even imagine. We cannot even begin to envisage the pain that she would have undergone during those moments when she was under the mercy of the vicious men. She would have screamed, cried for help, begged for mercy and did everything possible to get out of the situation. During that hour, the men in the bus, including the juvenile, would have had enough opportunity to back out from their lecherous intentions but they chose not to. They first satisfied their carnal desires and then exercised their arrogance by torturing the girl. They displayed their heartlessness by throwing her out of the moving bus and leaving her for dead.  Post the incident, the victim went through a painful ordeal which lasted a few days before she passed away. Why should a 21 year old girl, a law abiding citizen of this democratic country, a paramedic student who had dreams for herself and her family have undergone this torment? Did the country give her the justice she deserved?

When Nirbhaya was born, her parents would have nurtured her and given her all the love given to a child. They would have spent many nights holding her tiny hand and telling her stories. They would have protected her from the undesirable elements in society during her growing years and would have been proud to see her getting educated and well on her way to a successful future. Like all parents, they would have harbored dreams about her wedding and a happy family life. All their dreams were brutally shattered in that hour of madness for no fault of theirs. We, who do not even know the girl, feel a sense of disgust when we hear the narrative of the incident. Can we even imagine what her parents, who have been a part of her life for 21 years, would have gone through on hearing the same details? Weren’t they law-abiding citizens of this democratic country? Did they get the justice they deserved?

In this case, nothing would have compensated for Nirbhaya’s death nor the loss suffered by her parents. All they could have hoped for was that the convicted persons be given the death penalty or they experience pain and remorse while serving their entire life in jail. While the others may still get penalized, the juvenile, who allegedly, was the most brutal has been released after a lenient sentence of 3 years. The Nirbhaya case was not the first heinous crime committed by a juvenile nor was it the last. For decades, crimes have been committed by juveniles and the law has just followed its course. It was a matter of chance that the media publicized the Nirbhaya case forcing the law makers and law enforcers to wake up and pay heed.

Will the ‘Juvenile Justice Bill’ ensure that justice is delivered to all? Will it validate the statement ‘All citizens are equal under the law”?

Let us re-look at the point of view of those opposed to the passing of the Juvenile Justice Bill.  Their primary argument is that a juvenile is not mature enough to take decisions and hence deserves a chance to be rehabilitated. Is age the only indicator of maturity?  All around the world, there have been numerous instances of child prodigies who have been born with or developed extraordinary skills in their chosen fields before turning adults.  Blaise Pascal was a French mathematician, physicist, and religious philosopher who wrote a treatise on vibrating bodies at the age of 9 and the famous Pascal’s theorem when he was 16 years old. Did society reject his work since he was not yet an adult?  Mozart learned to play the piano at the age of 4, composed his first pieces at 5 and at 8, an age when most of us probably couldn't even name half a dozen musical instruments if asked, Mozart wrote his first symphony. Balamurali Ambati graduated from high school when he was 11 years old, was a college junior at 12 and a doctor when he was 17 years old. Ankit Jaswal, India’s youngest ever University student and physician was performing operations at the age of 7. Wasn’t he a risk to society which considers a medical practitioner to have a very high level of maturity, much higher than normal, which is expected to come only with age?  There have been numerous other instances of child prodigies who have shown maturity way beyond their years. If a juvenile can be allowed to perform an operation on another human being, which is the most complex of adult professions, then can we not subject a juvenile to the adult law in certain exceptional scenarios? Determining the severity of punishment based on age can have other detrimental effects with lawyers trying to use this loophole by proving that their adult client is a juvenile as was the case with Ajmal Kasab.  Even otherwise, the validity of the age of an individual in many parts of India is a contentious subject anyway with a birth certificate available for a few hundred rupees. How can we therefore depend on this rather flimsy evidence to deliver justice for all?

Their next argument is that the juveniles who have been found on the wrong side of the law need to be reformed. This is a valid expectation since a number of them may have committed the crime without understanding the implications. Have the juvenile homes helped in this regard? I searched the Internet and did not get even one example of a child getting reformed after spending time at these rehab centers. In fact, there were multiple instances of the rehab homes adversely impacting the child emotionally and psychologically and making them more hardened to justify their continuation in the world of crime. Hence, I am not completely satisfied with the passage of the Bill either since it requires input from a children’s court followed by a stint in a Juvenile home before he/she is moved to an adult prison. However, there is room for improvement here and if the right measures are taken, the juvenile homes can become reformation centers but for children who have been involved in petty crimes. This may also be the right justice delivered since the impact of the crime on the victim and his/her family is also minimal. In fact, this argument can be extended to adults involved in petty crimes as well. However, for a juvenile found guilty of a crime considered as ‘heinous’, this argument may not hold true. Any punishment, lesser than what would have been meted out to an adult in the same case would be a gross injustice to the victim and his/her family.  

Let us now look at the deterrent angle. As a society, Indians have always considered deterrents as the best way of prevention. In school, the teacher punishes an errant student in front of the class as a deterrent for the other students. Our parents keep instilling the fear of punishment more than the need to do well, as the reason for following rules. We therefore hear that not doing the homework would result in a remark in the school diary which they will not sign rather than the importance of doing homework. As adults, we wear a helmet or a seat belt when we see cops not because we think it is the right thing to do but because we fear the penalty that will be levied, which acts as a deterrent. Similarly, when we have to drive home after a party, we stop drinking alcohol after the first glass not because we are thinking of the health benefits but are wary of the fines and probably a night in prison which in this case act as a deterrent. It is therefore important that the punishment meted out to convicts, especially in case of heinous crimes should act as a deterrent for civil society. This is likely to bring down the crime rates especially in case of impressionable juveniles. Just as in the case of the examples mentioned above, the consequence is likely to force juveniles or any other adult to think twice before planning and committing a crime.

Any punishment therefore should be based on the nature of the act of non-conformance to the laws and therefore its impact on civil society without any discrimination based on race, religion, ethnic group, gender or age. The severity of the punishment should serve to reprimand & reform the guilty individual/s and also act as a deterrent for civil society. Individuals involved in petty crimes should be given an opportunity to get reformed. Ofcourse, all of this can only be effective if there is a significant improvement in the speed at which a case is brought to closure. We can then safely say that Justice has been delivered and that all citizens are equal under the law.

 

The most important angle though is understanding the root cause for this malaise and nipping it in the bud. Prevention is always better than cure. We will however leave this topic of discussion for another day. 

Coach-Ram

https://www.coach-ram.in