Barefoot Harsh Mander

Unfair trials

In our own homes, adolescent children are often unruly, even violent, but we refuse to lose faith in them. We try to teach them right from wrong, punish them firmly but gently, and neither judge nor condemn them the way we would adults guilty of the same transgressions.

But today many of us have decided that children in the larger world do not deserve the same adult forbearance. Bowing to public opinion, the government introduced a bill in Parliament which, if passed, would treat children between the ages of 16 and 18 years charged with heinous crimes such as rape and murder the same way the police and courts treat an accused adult. Though barely one per cent of the crimes are committed by children, we suddenly feel intolerably threatened by them.

The battle for humane laws to deal with children in conflict with the law was fought long, in India as in the rest of the world.

Conforming to international standards, Indian law was amended to provide that a child below the age of 18, who is charged with crimes, would be apprehended, not arrested; the child would not be sent to a police lock-up or adult jail; the investigation and trial would consider not just the facts of the crime but the child’s psycho-social circumstances; the trial would not be adversarial.

If found guilty, the magistrate of the juvenile justice board would not incarcerate the child in adult jails. The magistrate could order release after admonition, suggest group counselling, community service, payment of fine, probation of good conduct, place the child under the care of parent or guardian or a suitable institution and, as a last resort, send to a Special Home for three years or less.

If the amendment being considered by Parliament is passed, all these protections and special procedures will disappear, and the child after 16 years will be treated like an adult offender — tried in an adversarial adult court and, if sentenced, liable to spend time in adult jails. A boy sentenced for rape or murder would step out of an adult jail perhaps in his thirties.

The purpose of punishment, especially of a child offender, should be to facilitate his reform, not to take revenge on him. But a jail is not a place in which a young adult will learn responsible citizenship; instead it is more likely to be tutor and induct him into adult crime. The amendments, therefore, pave a course that would render the adult world not safe but more insecure and uncaring.

There is a great deal of scientific evidence to establish that adolescence is a period in which the brain is continuously evolving and changing.

A teenager is unable to exercise self-control or exhibit the social and emotional maturity the way he may when he grows into an adult, nor be able to evaluate the consequences of different options. This is compounded by the experience that many children are drawn into crimes because of cruelty and neglect in the hands of adults, both those who are responsible for their protection and care, and those in the larger world. The truth is that a child’s acts of violence are mostly located not in irreversible criminal resolve but in adolescent confusion and immaturity and in adult neglect and brutality.

The age of 18 has been fixed as a threshold of adult responsibility for crimes because experts in child psychology have found that, until such an age, children in conflict with law could still be redeemed instead of becoming hardened criminals in the future.

If Parliament still passes the proposed amendments to treat serious offences by children between 16 and 18 years as adult crimes, we will be condemning to a harsh and brutal world of adult prisons children who were not responsible for their offences in the ways adults are.

The dangers are further compounded by those provisions of the Prevention of Child Sexual Offences Act, which criminalise even consensual sexual intercourse between children below 18 years. Since consensual sex with a minor girl is treated as rape, a boy below 18 in such a relationship could now be charged with the adult crime of rape. Many Supreme Court rulings mandate that child offenders should be ensured opportunity to realise their mistakes and rebuild their lives. A child, even when he loses his way, merits adult protection, nurturing and guidance, not our condemnation, retribution and cold punishment.

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Printable version | Jun 16, 2021 8:15:13 AM |

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