14/01/13 11:53 AM
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Why the young are differentVed Kumari Posted online: Mon Jan 14
2013, 01:16 hrsThe juvenile justice system should aim to reform,
rather than punish, offenders
The anguish and anger evoked by the sheer brutality of the
gangrape in Delhi has led to the demand that the accusedbe subject
to the most severe punishment. Voices have been raised seeking the
death penalty and chemical orphysical castration. As one of the
accused is below 18 years of age and cannot be punished due to the
JuvenileJustice (Care and Protection of Children )Act, 2000 (JJA),
there is a demand for amending this law by lowering the cut-off age
for defining who a child is and/ or providing for the exclusion of
children committing violent offences from theJJA and the imposition
of life imprisonment without parole.
In such an emotionally charged atmosphere, it is politically
expedient to introduce the changes to assuage the publicsentiments.
But will women be safer after the demanded changes are made?
Retribution and deterrence are the traditional objectives of
punishment, though now, reformation during imprisonmentand
reformation without punishment are accepted as better approaches to
prevention of crime, especially in the caseof children. In India,
we have accepted the policy of no imprisonment for children for any
offence since the ChildrenAct in 1960, which was followed as a
model by other states that enacted their own such acts after 1960.
This approachwas uniformly applied to the whole of India by the
Juvenile Justice Act, 1986. Spurred by the recommendation of theUN
committee under the Convention on the Rights of the Child, the JJA,
2000, raised the age of juvenility from 16 to18 years for boys, and
girls till the age of 18 were already covered under the law. With
this increase, there wasapprehension that lakhs of cases would be
added within the ambit of the juvenile justice system. However,
those fearsproved to be baseless, as crime committed by children
increased by less than 8,000 cases, from 9,267 in 2000 to16,509 in
2001. The rate of crime by children (that is, the number of
children committing offences per lakh of thepopulation) has not
seen a substantial increase in the last decade (it has gone from
0.9 in 2000 to 2.1 in 2011). Hence,the clamour to lower the age of
juvenility is not supported by crime data relating to children in
India.
The problem of juvenile delinquency in countries with large
numbers of children involved in crime poses differentchallenges.
For example, the total number of children arrested for an offence
was 11,29,456 in the US (according toFBI data) as compared to
33,887 children (according to the National Crime Records Bureau) in
India in 2011.
Offences committed by children have to be seen in the context of
their neglect and abuse. Offences against childrenhave increased
three-fold from 10,814 in 2001 to 33,098 in 2011. Even so, the
increase in crime by children has notincreased at the same rate. It
is time to focus first on their care and protection before raising
accusing fingers towardschildren for their actions. They have no
control over their surroundings and try to cope with the hardships
of life withoutparental care. On the streets without parental and
adult care, they end up in the company of all kinds of persons.
While the number of children in need of care and protection runs
into crores, the number of children who may beprovided residential
care does not exceed even one lakh. In this scenario, when a child
is found to have committed anoffence, it is more the result of the
failure of their family and the state to take care of them.
Providing and ensuringfamily care to children is a better measure
to prevent crimes committed by them than providing for serious
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punishment. Punishment for offenders may satisfy the need for
revenge, but it is not a means of preventing furthercrime.
The need to reform and care for children is even more necessary
as they have a long life to live after the offence iscommitted.
Awarding them the death penalty will be barbarous in a civilised
society and life imprisonment withoutparole would place an
unnecessary burden on the taxpayer. Sentencing them to long-term
imprisonment is more likelyto result in the release of hardened
criminals from prisons, rather than reformed and responsible
citizens. After all, ithas long been accepted that it is the
certainty rather than the severity of punishment that deters.
The writer is a professor of law at the University of Delhi and
former chairperson, Delhi Judicial Academy
