Menu Close

Tag: criminal law (page 1 of 4)

[Video] Mathura: The rape that changed India

Mathura-CoverImage-01 copy

Click to watch now

Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

Written by myLaw

Nanavati v. Maharashtra, the sensational true case behind Rustom (2016)

The Nanavati Trial-Cover Image-01

Click here to watch the video

Rustom, released today, is Akshay Kumar’s latest movie. You probably know that it is based on a true story, but do you know the details of the sensational trial on which it is based? The real story is far more explosive and dramatic than any fictional film could possibly be.

K.M. Nanavati v. State of Maharashtra had all the elements of a thrilling potboiler but it involved real people and events. The cast of the actual case became more famous than movie stars – not just K.M. Nanavati, Sylvia Nanavati, and Prem Ahuja, who were involved in the actual incidents, but even those involved in the subsequent trials, including Y.V Chandrachud, Karl Khandalavala, and Ram Jethmalani. Moreover, the case became forever etched in the legal history of India as the last jury trial held in the country.

Join us as we delve into the events, personalities, and the unbelievable twists and turns of this true story that probably became the first instance of a trial by media in India. With the help of Senior Advocate Sanjay Hegde and legal historian Kalyani Ramnath, we explore how this case has affected the way we deal with circumstantial evidence, what “grave and sudden provocation” means, the Governor’s power to grant pardons, and much more. We also ask the big question: Should the jury trial be brought back?

Written by myLaw

Awara (1951) – The Courtroom as Ivory Tower

SayakDasgupta_InCamera

(In Camera is Sayak Dasgupta’s series of essays that examine the depictions of trials in cinema. He will look at how filmmakers have chosen to use trials and the criminal justice processes and what those depictions tell us about their view of cinema and the societies they made those films for.)

In Raj Kapoor’s directorial debut, Aag (1948), he played Kewal, a boy whose father is a successful lawyer and wants him to become one too. Kewal however, is not interested in the law; he wants to start his own theatre company. When he fails his law exams, he goes to his father and tells him as much. His father responds with an ultimatum: if he wishes to keep living in his father’s house, Kewal must forget about theatre. Kewal chooses to leave home. Aag, to use a rather obvious pun, didn’t quite set the box office on fire. It got a lukewarm response from audiences and quickly faded away. Unlike Kewal, something about the law must have appealed to the actor who played him, because three years later, in his third directorial venture, Raj Kapoor once again told the story of a son whose father is a lawyer. But this time, the story was entirely different.

The context

Where Aag fizzled out, Awara exploded like a ton of dynamite not just in India, but all over the world. It became massively popular in South Asia, the Middle East, Turkey, the Soviet Union and most of eastern Europe. Search for “Awara Hoon” on YouTube and you will come across an array of endearing videos of Russian, Uzbek, Turkish, and Chinese people singing the song, in Hindi or translated in their native languages. It is said that Chairman Mao himself counted Awara among his favourite movies.

Awara was released four years after India gained its independence, and forty years before the liberalisation of its economy. The ideals of Nehruvian socialism were still very much an important part of the zeitgeist in India and would remain so for many decades to come. And at its core, the film is about class struggle. It isn’t surprising that the film appealed particularly to Indian, Soviet, and Chinese sensibilities at the time.

At that crucial moment in India’s history, Raj Kapoor’s films would go a long way in defining how commercially successful melodramas with a social message would be made for years to come. In this film, he chose to frame the narrative within a trial.

SPOILERS AHEAD

The story

Awara_courtroomIn fact, the film begins in a courtroom. A young man called Raj (Raj Kapoor) is accused of attempting to murder the widely respected Judge Raghunath (Prithviraj Kapoor). In true Shakespearean fashion, Raj’s defence attorney is his lover, Rita (Nargis), who questions Raghunath about his long-estranged wife, leading us into a flashback.

We discover that when Raghunath was a young and wealthy lawyer, his wife, Leela (Leela Chitnis), was kidnapped by the notorious thug, Jagga (K.N. Singh). Years ago, Raghunath had apparently managed to get him convicted for a rape that he had not committed, purely on the basis of the fact that his father and grandfather were criminals. You see, Raghunath holds the firm but bewildering belief that crime is a genetically transmitted disease. In other words, criminals are born to criminals, and no child of an honest person can ever get into a life of crime. (Clearly he hasn’t given much thought to what happens if an honest person and a criminal have a child. Perhaps an Indian version of Two-Face? Seriously, who wouldn’t want to watch that movie?)

Here, we get our first glimpse of the theme of the film. Whether Raghunath knows it or not, his beliefs are clearly not based on biology, but on class factors. In his mind, respectable people with respectable jobs and families cannot produce criminals. Criminals come from the other side of society.

Ironically, in Jagga’s case it was the criminal justice system that turned him into a criminal, and his sole aim in life seems to be to have his revenge. So when he finds out that Leela is pregnant, he knows exactly what to do. He uses Raghunath’s own flawed belief system to destroy his life. Jagga sends Leela back to Raghunath knowing that there would always be uncertainty about who the unborn child’s biological father is. And sure enough, Raghunath, like a modern Ram, casts his pregnant wife out of his home.

Leela gives birth to a boy and names him Raj. Despite living in abject poverty, she dreams of her son becoming a lawyer and a judge some day, just like his father. She scrapes together enough money to get him a decent education in a good school. Young Raj (Shashi Kapoor) is an anomaly in his class, which is full of children from far more affluent families. His only friend is Rita (Baby Zubeida), the daughter of a rich lawyer. Raj is a conscientious young boy who is eager to do honest work to help his mother make ends meet, but he finds it difficult to balance work and school. His life completely falls apart when he reaches class late one day and is expelled, and also informed that his best friend Rita has left town. At home, his mother is severely ill and he can’t afford to buy food or medicine. The straits have never been direr. Enter Jagga, who is still not done with his ridiculously elaborate revenge plot. On a quest to prove that even respectable people can give birth to criminals, he takes Raj under his wing and leads him into a life of crime. By the time he is an adult, Raj has become a career criminal and a frequent jail inmate.

The conflict

Raj Kapoor ensures that he keeps our protagonist as everyman as possible. In creating Raj, he borrowed heavily from Charlie Chaplin’s loveable tramp character to ensure our sympathies lie with him. We empathise with Raj’s ambitions of being upwardly mobile. In a revealing reflection of the times, Raj tells Jagga that he met a “political” the last time he was in jail and learnt to speak English from him. Despite working for the ruthless Jagga, Raj never seems to commit any particularly heinous or violent crimes (we mostly seem him commit petty theft). However, he is very acutely aware of his place in society, and when we do see the class struggle embodied in him erupting in acts of violence, it is particularly jarring. An especially disturbing example comes after Raj is reunited with Rita after many years and they fall in love. When Rita jokingly calls him “junglee” (uncouth, uncivilised, ill-mannered, ill-bred), he physically assaults her, twisting her arm, choking her, slapping her. Rita, despite being the one who has been assaulted, begs his forgiveness, even encouraging him to hit her some more. This bizarre scene only makes some semblance of sense if one thinks of Rita as a representation of the upper class, filled with its own version of white guilt, seeking forgiveness from the lower classes – an extraordinarily tone-deaf spectacle of self-flagellation from the affluent makers of the film.

After her father passed away, Rita was adopted by none other than Raghunath, who is now a respected judge, and she is now training to be a lawyer. Having fallen in love with her, Raj tries to leave his life of crime behind and start afresh. He gives up his swank apartment and becomes a factory-worker. However, his employer find out that he used to be a criminal and fires him. Before leaving, Raj asks him an important question: If he didn’t want to employ former criminals, did he want them to go back to a life of crime in order to survive? It is very rare for a mainstream Bollywood film to ask tough questions about the rehabilitation of criminals. This scene serves the dual purpose of exposing our society’s attitudes towards criminals, while also underlining the ability of the powerful upper class to disenfranchise and take away the means of survival of those who have less power.

Judge Raghunath is the very embodiment of this toxic mix of prejudice and power. When Rita tells him of her love for Raj, he insists on meeting him, and when they meet, he humiliates and belittles Raj. When Raj gets back home, he finds Jagga trying to kill his mother. In trying to save her and himself, Raj kills Jagga. In a stunning (and rather convenient) twist of fate his case is brought up before Judge Raghunath. Even before he has heard arguments on the matter, Raghunath has made up his mind to find Raj guilty – a clear demonstration of the unholy marriage of prejudice and power. But Rita takes it upon herself to get Raj acquitted. She asks Leela to testify to her son’s innocence, but when she reaches the court, Leela sees Raghunath from afar and recognises him. As she tries to walk to him she is run over by Raghunath’s car. When Raj hears of this, he is overcome with rage thinking that the judge has attempted to murder his mother. He escapes from prison and goes to Raghunath’s house to kill him. However, he is unable to go through with it and is arrested. And this brings us back to where the film began – the trial of Raj for the attempted murder of Raghunath.

The message

In Damini, Govind (Sunny Deol) repeatedly asserts that the judicial system has become a pawn in the hands of the rich and powerful. In Awara, this is demonstrated. Raghunath, referred to throughout the film as “Judge Sahab”, comes from a wealthy family and benefits from all the privileges that come with it. As a judge he gains power over people’s fates, but he is human, and like many humans, he harbours irrational prejudices that warp his sense of justice. He sits in judgment from atop an ivory tower completely ignorant of the harsh realities of living in poverty and squalor. The big question Awara asks is can you truly judge someone of being guilty of a crime if you can’t understand the circumstances that made her/him a criminal?

AwaraNargis2The film makes repeated references to the gulf between the law and the heart. Towards the end of the film, Rita asks Raghunath: “Kya ab bhi aapka dil use beta maanne ke liye taiyar nahin? (Is your heart still not ready to accept the fact that that this is your son?)”. The presiding judge says, “Rita Devi, kanoon dil ko nahin manta. (Rita Devi, the law does not recognise the heart.)”, to which Rita replies, “Janaab-e-wala, dil bhi kisi kanoon ko nahin manta. (Your honour, the heart also does not recognise any law.)” The film seems to say that the courts can be heartless and cold because the people who are given the job of dispensing justice often come from a privileged section of society that divorces them from the real world, rendering them incapable of having genuine empathy for those who are not like them.

However, does this mean that Awara is purely a polemical exercise in denouncing our criminal justice system? Not really, because, in the end, Raj’s trial has possibly the most just outcome. He is found guilty of attempting to murder Raghunath, but given the singular circumstances and the history of the people involved, the court sentences him to only three years in prison. Even Raj agrees that this is fair, that he must atone for what he has done. While many Hindi films would have acquitted Raj entirely, Awara takes an uncommonly fair and even-handed approach to the case. In the end, the court climbs down from its ivory tower and justice is done.

(Sayak Dasgupta wanders around myLaw looking for things to do.)

Written by myLaw

Death and the special legislation – Why the CrPC’s death penalty safeguards should also be available when death is awarded under other laws

ProceduralLawOfTheDeathPenalty_RahulRamanApart from the Indian Penal Code, 1860, there are 23 statutes that prescribe the death penalty as a form of punishment in India. The Anti-Hijacking Act, 2016 is the most recent addition to this list.

The movement towards making the death penalty an exceptional punishment began in 1955, after the repeal of Section 367(5) of the Code of Criminal Procedure, 1898, which required courts to record reasons when deciding not to impose the death penalty. Several important substantive and procedural safeguards were then introduced by the legislature and the judiciary to ensure the fair administration of the death penalty.

When safeguards in the CrPC are not available

The Code of Criminal Procedure, 1973 (“CrPC) requires the court in Section 354(3) to record “special reasons” while awarding the death penalty. It also requires the obligatory confirmation of the death sentence by the High Court. There are however, quasi-judicial bodies with the power to award the death penalty, which are bound only by the procedures prescribed in their parent statutes and not the CrPC. Some of these statutes include the Air Force Act, 1950 (“Air Force Act”), the Assam Rifles Act, 2006, the Defence of India Act, 1971, and the Karnataka Control of Organised Crime Act, 1999. These statutes remain bound by the principles of natural justice (S.N. Mukherjee v. Union of India, 1990 AIR 1984).

An example of a quasi-judicial proceeding that does not follow the procedures contained in the CrPC is that of “court martial”, provided for in the Army Act, 1950, the Air Force Act, and the Navy Act, 1957. The rules of procedure to be followed during a court martial proceeding are prescribed in the respective statutes itself. These procedures do not provide for safeguards similar to those in the CrPC. For example, there is no statutory onus on the court to provide “special reasons” in a court martial proceeding.

In S.N. Mukherjee v. Union of India, among the other issues before a constitution bench of the Supreme Court, inter-alia, were whether reasons are required to be recorded at the stage of (i) recording of finding and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.

With respect to the first issue, the Court noted that the court martial is not required to record reasons at the stage of recording of findings and sentence. Similar conclusions were reached regarding the second and third issues as well. While these observations were made in relation to the provisions of the Army Act, these observations would hold true for the other two statutes as well since the procedures for court martial are similar.

Relying on the SK Mukherjeee dicta, the Delhi High Court in Balwinder Singh v. Union of India, 64(1996) DLT 385, decided not to interfere with the findings of court martial on the ground of absence of any ‘special reasons’ but commuted the death sentence to imprisonment for life on other grounds.

The petitioner was charged under Section 69 of the Army Act for committing murder. The general court martial found the petitioner guilty and sentenced him to death. This was further confirmed by the Central Government. The petitioner had also exhausted the recourse available to him under Section 164(2) of the Act. Section 164(1) and (2) provide for a remedy against, inter alia, the sentence of a court martial. The aggrieved party can present a petition before the confirming authority, and after that, to the Central Government or the Chief of Army Staff.

The petitioner, therefore, filed a writ petition under Article 226 of the Constitution challenging the above orders, questioning among other things, the absence of “special reasons” in the order of the general court martial, as stipulated under Section 354(3) of the CrPC. The petitioner also raised an argument in the alternative that the requirement under Section 354(3) should be read as a part of natural justice requirements of Article 21 of the Constitution.

The court reiterated the position laid down in SN Mukherjee, and said that the general court martial did not commit any error by not recording any ‘special reasons’ in the case. Similarly, the Court interpreted Section 162 of the Army Act to excuse even the confirming authority from providing reasons while confirming the sentence of death. Regardless, the court observed that if there are any shortcomings in the findings of general court martial or the confirming authority, they could be challenged under Article 32 or Article 226 of the Constitution. The Court failed to make any observation on the argument regarding Article 21 of the Constitution; that giving “special reasons” is essential in a case where death sentence is to be awarded irrespective of the nature of the court or tribunal.

Similarly, Section 64 of the Border Security Force Act, 1968 provides for the establishment of special courts. The General Security Force Court is empowered to pass a sentence of death under Section 72. Chapter VII (Sections 82 to 106), which lays down the procedure for the courts under this Act, does not contain any special procedure (as contained in CrPC) with respect to death sentence. The only additional requirement for passing a death sentence is that it should be passed with a concurrence of at least two-third members of the court. Other decisions of the Court can be passed by an absolute majority. This kind of voting requirement is present in other statutes that stipulate for trial by court martial as well.

Most of the other non-IPC legislations that stipulate death penalty among its punishments follow the special procedures mentioned in the CrPC with respect to the death penalty. For example, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is a provision in Section 14 for establishing a special court for trying of offences committed under the Act. However, this court is also bound by the procedures prescribed in the CrPC.

The incorporation of special provisions with respect to the death penalty in the CrPC signifies the legislature’s intent to include additional safeguards that aim at ensuring maximum protection to a person sentenced to death. Considering the general legislative and judicial caution against the death penalty, it is important that a larger bench of the Supreme Court revisit the findings in S.N. Mukherjee. The requirements of giving ‘special reasons’ and obligatory confirmation by the High Court should be made imperative, regardless of the statute under which a person has been sentenced to death.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

Written by myLaw

Open court hearings in review petitions after Mohd. Arif (2014)

SohamGoswami_DeathPenaltyProcedureThe Supreme Court of India has qualified the scope and extent of the right to life enshrined in Article 21, through a series of judgments from A.K. Gopalan v. State of Madras, AIR 1950 SC 27 to Maneka Gandhi v. Union of India, AIR 1978 SC 597, ensuring that infringements upon life and personal liberty may only be made through “fair, just and reasonable procedure”.

So what of the procedure extinguishing life from a person who has been found guilty of capital offences? There is a comprehensive procedure under Indian law to ensure that a person sentenced to death may be afforded the maximum opportunities to present his side of the case so that he can hopefully be acquitted or his sentence commuted. A Court of Sessions, which is the competent court to record evidence and convict the accused, must cite its reasons in writing (Section 367 of the Code of Criminal Procedure, 1973) for awarding the death sentence and must then submit that decision to the state’s High Court for confirmation (Section 366). The sentence is considered valid only after confirmation and the convict may (if the High Court certifies the case under Article 134 of the Constitution) move the Supreme Court. The convict has a right of appeal if the High Court has either (a) overturned an acquittal or lesser conviction by the Court of Sessions and awarded the death sentence or (b) withdrawn proceedings before the Court of Sessions and conducted the same in the High Court.

The Supreme Court’s review jurisdiction

Under Article 137 of the Constitution, the Court may review cases decided by them. Order XL of the Supreme Court Rules, 1966 further require review to be done in chambers (that is, by judges, conferring amongst themselves without the assistance of counsel) and based on written pleadings made by counsel.

The Supreme Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India, AIR 1980 SC 808, upheld the constitutional validity of Order XL, Rule 2 (requiring review in chambers), citing the heavy burden upon the Supreme Court to hear oral arguments in all cases within its jurisdiction.

The Supreme Court however, in Mohd. Arif v. Registrar, Supreme Court of India and Others, (2014) 9 SCC 737, dealt with the question of whether death sentence cases would form a class by themselves, meriting separate treatment.

The disagreement in Mohd. Arif

Writing for the majority, Justice Rohinton F. Nariman held that due to the nature of the death penalty, where:

1. the punishment is irreversible, and

2. due to lack of sentencing guidelines, it is left to various judges as to the quantum of sentence to be awarded (for instance, one judge might award the death sentence in a certain case, while another judge might sentence someone to life imprisonment for the same offence and same circumstances), sentencing was often arbitrary;

the highest standard of scrutiny was required in such cases.

Justice Rohinton F. Nariman interpreted Justice V.R. Krishna Iyer’s (the author in P.N. Eswara Iyer) ruling as allowing for such cases to be heard orally in open court. He quotes paragraph 29A of P.N. Eswara Iyer “…indeed, there is no judicial cry for extinguishment of oral argument altogether.”

However, Justice Chelameswar dissented, holding that the question of arbitrary sentencing did not arise as the same judges of the Supreme Court who passed the original judgment were required to sit on the review bench.

However, Mohd. Arif (the lead petitioner) was denied the opportunity to file a review petition himself. This was because he had already submitted a curative petition (the last option in the Supreme Court) and the Court held that to grant him a review petition now would infinitely delay the process. The review petition is filed and admittedor dismissed prior to the curative petition.

Eventually, a Constitution Bench of the Supreme Court on January 19, 2016 allowed Arif to re-open his review petition on the ground that he would be the only person not receiving the benefit of a review petition, which would be unfair to him; further, the dismissal of the curative petition should not preclude the petitioner from receiving the benefit of a review petition in open court, no matter how slim the chance of success may be.

As one can see upon perusal of the judgment in Mohd. Arif, the purpose was to ensure that, no matter how slim, people receiving the death sentence should be given as many opportunities as permissible under the law for evidence to be re-appreciated. However, the problem that is apparent from the dissent of Justice Chelameswar is that ordinarily, the same Bench hearing the original case on merits deals with the review petition (unless any of the judges retire). It is unlikely therefore, that they would change their opinion on whether the convict should receive the death penalty; thus, the purpose of the review petition is not realised.

The purpose of the review bench, as is evident from Order XL of the Supreme Court Rules, is to merely check whether there is an error apparent on the face of the record. The composition of the bench should therefore, not matter, as the matter for appraisal should not lead to different conclusions. At the same time, the same judges having already looked into the matter once, would ordinarily not be willing to sit and review the whole case again.
Mohd. Arif is however, a pathbreaking judgment given its implications for prisoners on death row—that at the penultimate stage of proceedings at the Supreme Court, they are entitled to an open court hearing and reappreciation of evidence in their case argued by their lawyer. It remains to be seen, however, the manner in which Supreme Court deals with these petitions.

 

(Soham Goswami, currently in the third year at ILS Law College, Pune, is an intern at the Centre on the Death Penalty. The views expressed in this article are his alone.)

Written by myLaw

The marital exception to rape: How to make a crime disappear

SayakDasguptaSir Matthew Hale, one of England’s greatest jurists, was a simple, humble, and fastidiously honest man. In fact, so unimpeachable was his character that, despite being a royalist who defended the opponents of the Commonwealth of England during the English Civil War, he was still appointed a justice of the common pleas by Oliver Cromwell when the Commonwealth came to power. When the Restoration happened, the King appointed him Chief Baron of the Exchequer, even though he had held office in the government of his mortal enemies. Hale, it is said, had no desire to receive the knighthood, so he literally had to be tricked into it (Lord Clarendon invited Hale to his house where the King was waiting to knight him on the spot).

For all his virtues, though, Hale was as much of a fusty old antiquarian when it came to women, as you would expect from a privileged, white, devoutly Puritan Englishman from the 1600s. In a letter to his granddaughters, he wrote longingly of a time when “the education and employment of young gentlewomen was religious, sober, and serious, their carriage modest and creditable was their habit and dress” and “when they came to be disposed of in marriage, they were themselves a portion whether they had little or much, and could provide for and govern a family with prudence and discretion, and were great helps to their husbands, and knew how to build up a family, and accordingly were instruments in it”. He bemoaned how times had changed and “young gentlewomen learn to be bold, talk loud and more than comes to their share, think it disparagement for them to know what belongs to good housewifery, or to practise it, make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions.” He wrote that he would never allow his granddaughters to be like this, that he would train them to be “good wives and better portions to your husbands than the money you bring, if it were double to what I intend you, for you will be builders up of a house and family, not destroyers of it”. Above all, he wanted them to be “good examples to others, and be thereby a means to take off the reproach that justly enough lies upon the generality of English gentlewomen, that they are the ruin of families”.

Like most men of the time, Hale saw women as some sort of loveable hybrid between a trainable pet and an obedient servant, who should be strictly controlled lest they go out of hand. It is perhaps somewhat revealing that after his wife died, Hale married his housekeeper, Anne Bishop, whom he described in his will as “most dutiful, faithful and loving”, words that can also be used to describe an adoring butler or a loyal dog.

No longer enough to create further exceptions”

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King's Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi's image is from the Press Information Bureau.

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King’s Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi’s image is from the Press Information Bureau.

Perhaps Hale’s most famous work as a legal scholar is the Historia Placitorum Coronæ or The History of the Pleas of the Crown, which was published in 1736 (60 years after his death, despite an instruction in his will clearly stating that none of his manuscripts were to be published posthumously) and is considered a seminal work in the development and evolution of common law. It was in this book that he wrote the now (in)famous line that had been used until relatively recently in most common law countries to defend marital rape:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

The husband, then, by virtue of marriage, gained complete right over his wife’s body. Wedding vows were meant to be a form of permanent consent for sex. It would not be a stretch to say that for most women at the time, the bond of marriage was akin to bonded servitude mixed with sexual slavery.

This would be the norm in England for the next two centuries, but changes in social attitudes towards marriage began to make the marital exemption to rape seem increasingly more ridiculous with every passing year. In 1990, the Law Commission in England released the Working Paper No. 116 on Rape within Marriage in which it recommended unequivocally that the exemption should be abolished. But the final death knell for the spousal exemption came in 1991 with the House of Lords’ landmark decision in R. v R, in which the court held that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The judges observed that “courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes,” but then added the powerful line: “There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.”

On the question of whether the court should step aside to leave the matter to the Parliamentary process, the House of Lords stated: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

RvR_HouseofLords_ChiefJusticeLordLane

With these words, England removed the marital exception to the crime of rape. In the United States, states had begun to remove this exception since the 1970s, and by 1993, all 50 states had done so. By the dawn of the 21st century, marital rape was a crime in most European nations. Our neighbour Bhutan had declared it a crime as far back as 1996, and Nepal followed suit 10 years later. Today, marital rape is a crime in the majority of the countries in the world. India, however, chooses to remain on the list of countries where it isn’t; a list that includes Afghanistan, China, Eritrea, Iran, Iraq, Libya, Pakistan and Saudi Arabia.

In the wake of the horrific events of December 16, 2012, the Justice J.S. Verma Committee reflected long and hard on how our criminal law system deals with various kinds of sexual violence perpetrated on women and children. Nearly six pages of its Report concentrated on the problem of marital rape. It recommended that the exception for marital rape be removed (Exception 2 to Section 375 of the Indian Penal Code, 1860 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”), and that the law ought to specify that a marital relationship between the perpetrator and the victim cannot be used as a defence against rape and that it should not even be regarded as a mitigating factor justifying lower sentencing for rape.

MaritalExceptionToRapeIPC

The ordinance that was drafted on the basis of the Report included many of its recommendations but left out some of the most important ones, perhaps chief among them the recommendation on marital rape. Defending the ordinance, Union Finance Minister P. Chidambaram said that issues like marital rape were difficult and that the government needed more consultations. This was, to put it mildly, perplexing. In modern times, the criminalisation of marital rape seems to be a very simple, logical, rational conclusion. In fact, one needs to perform several extraordinary feats of mental gymnastics to justify and legitimise the opposite. How is it that those who maintain that rape should attract the harshest punishment for the perpetrator suddenly find the act acceptable when a husband does it to a wife, as if a wedding is a Harry Potter-esque invisibility cloak that makes the crime disappear?

As a response to the government’s hedging on the issue, we posted the following comic on Facebook on February 9, 2013:

WSDP - Marital Rape

Now, I confess there are problems with this comic – it’s a little simplistic, and also Einstein might not have been the best choice to deliver this lesson as he was hardly the greatest husband in the world – but, the point was that it does not, or should not, take a genius to understand why the marital exception to rape should be removed.

A family that disrespects individual autonomy together…

And now, it seems the marital exception is one of those things the UPA and NDA governments agree upon. Well actually, while the former claimed that they were at least considering it, the latter seem to have ended the conversation altogether. Maneka Gandhi, the Minister for Women and Child Development has said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.” This is a stunning departure from her position on the marital exception to rape just last year and the most puzzling argument I have ever heard about a legal issue. What does illiteracy or poverty have to do with amending a law that demonstrably causes physical and mental trauma to individuals? Did social customs and religious beliefs of some people stop the legislature from making laws against sati, child marriage, dowry and caste-based discrimination?

MaritalRape_CriminalLawAmenedment2012

The “mindset of the society to treat the marriage as a sacrament” point is an old one. The claim is that marriage is a sacred bond between a man and a woman (only between a man and a woman), and that the state has no business interfering in the domestic affairs of a married couple. This argument is woefully flimsy. Laws on domestic violence and divorce would not exist if the state did not think legal intervention was necessary even in a marriage.

A similar argument was used in a report on the recommendations of the Justice Verma Committee prepared by the Department-Related Parliamentary Standing Committee on Home Affairs and presented in both houses in March, 2013. It stated that while some members had suggested that Section 375 of the Indian Penal Code should allow “some room for wife [sic] to take up the issue of marital rape”, that “no woman takes marriage so simple [sic] that she will just go and complain blindly” and that “consent in marriage cannot be consent forever”, several members “felt that the marital rape [sic] has the potential of destroying the institution of marriage.” The report went on to say that “In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”

What this suggests is mind-bogglingly terrifying. It seems to assert that the foundation of an Indian family is not based on trust, love, equality, understanding, cooperation, mutual respect and interdependence. It is based on a skewed power structure where one partner gets to inflict violence on the body and mind of the other, where the success of the relationship depends on how much the partner with less power can endure. Imagine being punched in the stomach by your brother and then being told that you should just suck it up because the law says when your sibling hits you, it’s not assault. Now imagine that he beats you up whenever he pleases and you are told that this is not a crime being committed repeatedly on your body because surely, as a family, you can work things out. If you report him to the police, the family system in India will crumble. Surely, the preservation of the “Indian family” is more important than the physical and mental trauma being caused to you.

The Standing Committee consisted of 29 members at the time, none of whom had any specific experience or expertise in women’s issues. Only 3 of the members were women. One of them was Dr. Kakoli Ghosh Dastidar, a Trinamool leader who in December, 2012 had said that the gang rape of Suzette Jordan in Park Street, Kolkata “was not at all a rape case. It was a misunderstanding between the two parties involved between a lady and her client,” thus insinuating that Jordan was a sex worker. When the report was published, a dissenting note was appended to it, and among other things, it condemned the Standing Committee’s position on marital rape as unconstitutional and contrary to the Justice Verma Committee’s recommendations. The note was given by only two members of the Standing Committee: D. Raja and Prasanta Chatterjee, of the Communist Party of India and Communist Party of India (Marxist), respectively. No other member recorded dissent.

India’s relationship with its colonial era laws is simultaneously confounding and tragicomic. On the one hand we puff up our chests with pride when we think of our freedom struggle and victory over our colonial oppressors, and on the other hand we cling stubbornly and blindly to their archaic laws, which have no place in modern times – laws that even they have done away with. But what is truly depressing is that we undervalue women so much that we would rather grasp at half-baked fictions and outdated notions of family than address the real harm being done to real individuals in real time. We are only too happy to declare that our society is too primitive to accept modern ideas and then sacrifice the safety of women on the altar of our own apathy. Yes, laws are often only amended after there has been a change in social attitude towards the issue in question, but in India, we have also had a long history of enacting laws as instruments to bring about such social change. We can either embrace that history and move with the times or throw in our lot with a man who died four centuries ago and a belief that should have died with him.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Written by myLaw

Transfer system, mental capacity assessment in juvenile justice bill violate equality rights

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLDisagreement on vital issues of constitutionality did not stop the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (“the Bill”) in the Lok Sabha. Apart from the floor of the Parliament, these issues were also raised in submissions to the Parliamentary Standing Committee and in the print and visual media.

In a drastic and regressive move, the Bill proposes the introduction of a transfer system so that children aged between 16 and 18 years and alleged to have committed ‘heinous offences’ can now be tried and sentenced as adults.

The right to equality under Article 14 and the special protection for children under Article 15(3)

By treating adolescents as adults, the proposed system will incorrectly treat two distinct categories equally. This strikes at the very core of Article 14. The Supreme Court has repeatedly endorsed as part of the Article 14 mandate (See, M. Nagaraj v. Union of India, AIR 2007 SC 71 and Joginder Nath v. Union of India, AIR 1975 SC 511), the principle that injustice arises not only when equals are treated unequally, but also when unequals are treated equally.

This animation, comprised of MRI scans, show changes in the brain between the ages of 5 and 20. Red indicates more grey matter and blue indicates less.

This animation, comprised of MRI scans, shows changes in the brain between the ages of 5 and 20. Red indicates more grey matter and blue indicates less.

Advances in neuroscience show that adolescents are neurobiologically distinct from adults. Even though persons in this age group may ‘know what they are doing is wrong’, they have been shown incontrovertibly to be unable to act on that knowledge and restrain themselves. This is because they underestimate risk, are susceptible to negative influences, and lack foresight.

They are also more amenable to reform and rehabilitative interventions because of the plasticity of their brains. As stated in an amicus brief for the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers before the Supreme Court of the United States in Miller v. Alabama, juveniles “typically outgrow their antisocial behaviour as the impetuousness and recklessness of youth subside in adulthood”.

The special protection of 16 to 18 year olds, present in the current law and negated by the Bill, is saved by Article 15(3) of the Constitution, which permits special legal provisions for women and children because uniform laws cannot address the particular vulnerability of women and children. The transfer system militates against this goal as well as the overall objective of the Bill to ensure care, protection, and the ultimate rehabilitation of children in conflict with the law.

The constitutional prohibition on procedural arbitrariness under Articles 14 and 21

The Bill requires the Juvenile Justice Board to assess, along with the circumstances in which the heinous offence was allegedly committed, whether the child offender had the physical and mental capability to commit the offence. The latest research indicates that individualised assessments of adolescent mental capacity are not possible. Any suggestion that it can be done would mean “exceeding the limits of science”. (See, Bonnie & Scott, “The Teenage Brain: Adolescent Research and the Law”, Current Directions in Psychological Science, 22(2) 158–161 (2013), p.161.)

The assessment proposed in the Bill is fraught with errors and arbitrariness and will allow inherent biases to determine which child is transferred to an adult court. The assessment also violates the principle of presumption of innocence as it operates on the assumption that the child has committed the offence.

Procedural arbitrariness is inherent in the assessment of reformation by the Children’s Court

When a juvenile sentenced by the Children’s Court attains the age of 21 years, she or he will be subjected to another assessment to determine whether or not the person has reformed and can make contributions to society.

Already, half the children apprehended for offences come from families with an annual income of less than Rs. 25,000 while only 0.55% of the children apprehended come from families with an annual income of more than Rs. 3,00,000 (See, Crime in India, 2013, Compendium, National Crime Records Bureau (2014), pg 4.) Undoubtedly, the provisions of the Bill will result in class, caste and religion-based targeting of children under the garb of assessing their potential contribution to society and extent of reformation.

Protection against disqualification violates the right to life under Article 21 and the right to equality under Article 14

Maneka Gandhi (right), the Union Minister for Women and Child Development introduced the Bill in the Lok Sabha. Shashi Tharoor spoke about the problems with treating 16-18 year olds as adults.

Maneka Gandhi (right), the Union Minister for Women and Child Development introduced the Bill in the Lok Sabha. Shashi Tharoor spoke about the problems with treating 16-18 year olds as adults.

Children between 16 and 18 years found to be in conflict with the law under Clause 20(1)(i) will incur disqualifications. While all children are protected against disqualification attached to conviction, the Bill deprives children convicted of heinous offences of this protection, thus discriminating among children based on the forum for trial, the offence, and the age.

They will therefore have to declare the conviction while applying for jobs or traveling abroad. The record of conviction will stigmatise them and make their rehabilitation and re-integration impossible.

The right to life entails the right to livelihood as well as a life of dignity. This stands compromised through the retention of the record of conviction and the withdrawal of protection from disqualification. This also means that a finding of ‘reformation’ and the ability to make a positive contribution to society based on another arbitrary assessment proposed under Clause 21 will be rendered meaningless, as the conviction will be held against the child for life.

The Department-Related Parliamentary Standing Committee on Human Resource Development also highlighted these constitutional concerns in its Two Hundred Sixty-Fourth Report. In para 3.21, it concluded that, “the existing juvenile system is not only reformative and rehabilitative in nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution.

Policy consensus based on evidence has to precede law making in a Parliamentary democracy. Examples from western countries that have experimented with the transfer system show that such a policy change will only result in higher costs related to incarceration and the deferred costs of the rage and bitterness that come from life in the adult criminal justice system.

Sending juveniles who allegedly commit ‘serious’ crimes to jail on the pretext of public safety is not in the interest of children, families, or the wider community. Placing adolescents who are at a difficult transitional phase in their lives along with adult criminals will only serve to place these young people at risk of being physically, sexually and emotionally abused and being further criminalised. This regressive outcome is in stark contrast to our constitutional mandate and the rehabilitative aims outlined even in the preamble of this Bill.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

Written by myLaw

Wake up and take stock of the failure to implement the Juvenile Justice Act, 2000

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLFifteen years since it came into force, the Juvenile Justice (Care and Protection of Children) Act, 2000 is yet to be fully implemented. In 2014, the Justice Verma Committee, which looked into reforms in the criminal justice system, commented on this failure. On

April 17, 2015, in Bachpan Bachao Andolan v. Union of India, the Supreme Court also noted the poor implementation of this law. “To make matter worse, we have been told that even the Central Government has not constituted the Central Advisory Board despite the Act having been in force for the last 15 years. This is a clear indication of a complete lack of sensitivity and the apathy that the Ministry has for children and also a complete disregard for the law enacted by the Parliament. We expect the Ministry to wake up and take stock of the law enacted by the Parliament.

By 2010, only fourteen states and four Union Territories had Child Welfare Committees and Juvenile Justice Boards set up in all districts. The Parliamentary Standing Committee lamented the “gross failure in the existing juvenile justice system primarily because its provisions, in particular those relating to rehabilitation, vocational training and social reintegration, had not been implemented in letter and spirit”.

In order to address the several petitions that came before them in relation to issues such as the non-establishment of homes and the failure to constitute statutory bodies, various high courts set up committees to monitor implementation. The Supreme Court even set up a one-person committee headed by Justice Madan B. Lokur in August 2013 to ensure the effective implementation of the law.

Reformative scheme of the 2000 Act

The Act provides for a unique multi-disciplinary inquiry into each individual that comes before the Juvenile Justice Board. The Juvenile Justice Board has the power to conduct a comprehensive inquiry to establish guilt, motive, and ascertain the circumstances of the crime.

Social investigation reports will draw from home visits, interviews with teachers, relatives, and experts who have assessed the juvenile. Under the model rules under this Act (“Model Rules”), these reports will form the basis of judicial decisions on bail as well as final orders. Form IV of the Model Rules has to be used for preparing these reports. A closer look at it reveals that the inquiry needs to be a comprehensive one taking into account the child’s past history as well as current personality, character, intelligence, mental health status, economic status, religious views, educational status, social and family circumstances, influences that impact behavior, as well as the circumstances in which the crime was allegedly committed.

The Juvenile Justice Board has to then pass an order drawing from a range of options provided in Section 15, which in their opinion will help reform the child, ensure justice to the victim, and keep the community safe.

The law also demands an individualised approach. While passing such orders, individual care plans have to be prepared for each juvenile.

A juvenile may be housed in a “special home”, which has to mandatorily classify and segregate children, based on age and seriousness of the offence. “Places of safety” will house juveniles who cannot be accommodated along with others in observation homes or special homes. Children who may be mentally ill or addicted to drugs or other psychotropic substances may be transferred to other treatment centres.

JuvenileChainGang1903

No trained staff to implement the 2000 Act

This legal framework provides a robust and comprehensive framework to enable genuine reform and rehabilitation of children and adolescents with any behavioural or developmental challenges, especially those who may have been found to have committed violent crime. Though there is no empirical research on the functioning of these special homes around the country, the fact that there is no special cadre of correctional counselors and forensic social workers, and no specialised behavior modification programmes, says it all.

Moreover, there is no special cadre of probation officers for children, dedicated to this important vocation. The role of the probation officer is crucial in conducting social investigation reports, monitoring and supervising the child, and providing guidance and mentorship.

In our field experience, we have rarely found functionaries who fit the bill when it comes to this challenging role. Naturally, juveniles do not receive the services they are entitled to. The preparation, implementation, and monitoring of individual care plans need to be given the serious attention they deserve.

It is clear that the reformative scheme envisaged in the Act was never even given an opportunity to demonstrate its potential in addressing juvenile crime. There is no functional assessment or probation and counseling services for juveniles and nothing special or scientific about the special homes mandated to provide special correctional services.

Abysmal allocation

From an already inadequate 4.52 per cent of the total budget in the previous budget, child welfare dropped even further in the list of priorities after the Union Budget for 2015-16. Even though children constitute 39 per cent of India’s total population, allocation towards their welfare is just over 3 per cent. In fact, since the JJ Act came into force, “children have never received more than 5 per cent of the total Union Budget allocation”.

Despite these several claims regarding the failure to implement the JJ Act, the Ministry of Women and Child Development has been quick to suggest that the law had failed to address juvenile crime rate. The state needs to own its responsibility for the failure of the juvenile justice system before considering the radical amendments in the Juvenile Justice (Care and Protection) Bill, 2014 will have a far reaching impact on young people and their families.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

Written by myLaw

Locking up adolescents who commit heinous crimes will not help anyone

Kalpana_PurushothamanI am a counsellor working with juveniles in conflict with law. Most of them are boys and some have committed crimes like rape and murder. These are crimes that the Juvenile Justice (Care and Protection of Children) Bill, 2014, which was recently passed by the Lok Sabha, considers ‘heinous’ crimes.

Mohan*, a 17-year-old charged with rape, told me about recurring nightmares of a gang rape he had witnessed. He had been the ‘lookout’ outside the door as four “rowdies” raped a middle-aged woman whose husband owed them money. He had desperately wanted to prove them wrong. Asked to clean up after them, he offered the woman a glass of water. Later, she identified him in the line-up.

Mohan was guilty and he should be punished. But should he be punished with imprisonment that will inevitably expose him to brutal violence and sexual abuse and trigger further anger? Will Mohan reform if he is sent to jail where adult convicts and offenders are most likely to groom him for further crime? Are there alternate and developmentally appropriate correctional methods that actually lead to changes in his behavior and enable solace and a sense of justice to the victim?

Mohan repeatedly told me and demonstrated through his behaviour that he was remorseful and willing to do whatever it took to do this. But we do not have such programs for juveniles in India.

Then there was Joseph*, a 17-year-old with floppy hair and sad eyes. He would sit quietly in a corner and burst into tears when I first met him at an observation home where he was being held. He was charged with the rape of Leena*, a 16-year-old Hindu girl. Medical reports had showed that she was a few weeks pregnant. Joseph had been apprehended while trying to board an inter-state bus with her, two days after she had gone missing from her house. After working with Joseph, a different story emerged.

Joseph had known Leena for the two years and they were in love with each other. A year previously, Leena’s father, who had seen them together on Joseph’s bike, had warned Joseph to stay away from his daughter. A few months later, Leena told Joseph that she was seeing another boy and broke up with him.

They had not met each other since then till three days before his apprehension when Leena turned up at Joseph’s house and told him that she had decided to commit suicide as she was being harassed by her parents. She also told him that she was pregnant by her boyfriend (who was related to her father’s family) and that her parents would kill her if they came to know of it. She asked for his help in aborting the child. Joseph stole money from his elder sister and decided to take her to a nearby city, where he was apprehended by the police. Leena’s parents filed a case of rape and kidnapping against Joseph.

In many of the cases of ‘rape’ against juveniles, there has either been consensual sex between the accused and the ‘victim’, or a false case has been filed against the boy (usually by the girl’s parents), especially where the boy and the girl belong to different castes, religions, or strata of society.

16-year-old Sathish* was charged with killing his father in a fit of rage. A chronic alcoholic, his father used to regularly beat his mother, his younger sister, and him. Sathish, despite being academically bright, dropped out of school to work at a local hotel washing dishes. His father’s bouts of drinking and violence continued unabated. One day, Sathish had enough. When his father attacked him, he hit back and slashed his father’s throat with a razor. He was found guilty of murdering his father. Although she had no role in it, his mother was also sent to jail as an accomplice.

Unlike other juveniles who simply languish in the system without intervention or rehabilitative services, Sathish received intensive counseling from me and psychiatric treatment from the Department of Child and Adolescent Psychiatry at the National Institutte of Mental Health and Neuro Sciences during his time in the juvenile justice system. With help from an NGO willing to take him in and support his education, he went on to write his 10th Standard exams. Later, he enrolled in an evening college and is slowly but surely trying to reclaim his life. His mother and sister are also receiving counselling and support in piecing their lives together.

While these are examples of some juveniles charged with having committed heinous offences and subsequently found guilty by the Juvenile Justice Board, not every juvenile charged with a heinous offence is actually found guilty. If the JJ Bill 2014 were to become law however, the Juvenile Justice Board would have to make a very arbitrary assessment of the child’s ‘mental and ‘physical capacity to commit the crime’ and decide whether they should be tried under the juvenile justice system or the adult criminal justice system. At present, there is simply no way psychologists or psychiatrists or other experts can make a scientifically sound determination of whether the crime was committed in an ‘adult frame of mind’ or a ‘childish frame of mind’.

Crime and the juvenile mind

Juveniles are certainly capable of committing heinous crimes like rape or murder. What they are often incapable of however, is to resist the peer pressure to indulge in risky behaviour that creates or leads to such situations. Research by neuroscientists and psychologists show that adolescents – especially between the ages of 16 and 18, are highly susceptible to peer influences, have poor impulse control, and their decision-making abilities often fail them in high pressure situations. This is because the part of the brain called the pre-frontal cortex, which is responsible for controlling these aspects – namely impulse control, behaviour regulation, and future orientation – is still in the process of developing.

Also, in my experience, juveniles who commit heinous crimes are very often victims of violence, neglect, emotional deprivation, sexual abuse, broken families, poverty, substance abuse and so on. All of these factors are known to influence and impede healthy brain development. While they do not make their actions right or take away the pain and damage caused to the victims and their families, it provides a certain perspective to understand why and how adolescents who should be in school or college end up committing rape or murder.

Almost every juvenile that I have worked with has expressed remorse and sadness for their actions when they feel safe to do so in a therapeutic environment. Many of them have often spoken of a deep desire to make amends to their victims and their families. A 17-year old charged with murder wanted to give his monthly earnings to the family of his victim as he felt he had deprived the family of an earning member.

My experience has been that juveniles who commit these heinous crimes do not get off lightly. They are traumatised and haunted by their actions and the pain of their victims. Depression, post-traumatic stress, nightmares, psycho-somatic disorders and a host of other mental health problems continue to dog them for years. They are cut off from their families, have to give up their schooling, and are removed from all that they hold dear. To a young person, that is often the harshest punishment one can give. Besides, the conditions at the reformatory institutions – whether Observation Homes, Special Homes, or Places of Safety – are not exactly idyllic. There is nothing ‘special’ about special homes and all these are just euphemisms for prison or prison-like conditions. Physical violence, neglect, sexual abuse and substance abuse are usually rampant. The over-worked, ill-trained and poorly rewarded staff at these institutions are not oriented to care giving or working professionally in a correctional setting for children and adolescents.

Transferring adolescents between the ages of 16 and 18 years to the adult criminal justice system and incarcerating them in adult prisons will only lead to a situation where these youngsters will come out of jail a few years later – thoroughly groomed and trained as career criminals. Instead, investing in strengthening the existing juvenile justice system – where they still have a chance to reform themselves and helping them take responsibility for their actions, teaching them to make amends to their victims and to society in appropriate ways – is the way to help prevent further crime and actually bring about some measure of healing and justice for all concerned. Restorative justice has the potential to bring together the juvenile, the victim, and society in a meaningful way. Some countries are already trying it, with varying and encouraging degrees of success.

Juvenile justice is a complex issue and there are no easy answers that will satisfy all. There is a need to balance the rights and interests of the juvenile, the victim and the society. Debate, discussion and engagement with young adolescents at risk and understanding and addressing their concerns before they commit a crime would be a positive step forward. Shutting them away in prisons afterwards will not help anyone.

Kalpana Purushothaman is a senior Counsellor at the Centre for Child and the Law, National Law School of India University.

*Names and some case details have been changed to protect identity

Written by myLaw

New juvenile justice law cleared by the Lok Sabha violates basic tenets of the Child Rights Convention

ArleneManoharan_SwagataRaha_ShrutiRamakrishnan_CCLOn May 7, in spite of doubts about its compatibility with the Constitution of India and the United Nations Convention on the Rights of the Child (“UNCRC”), the Lok Sabha passed the Juvenile Justice (Care and Protection of Children) Bill, 2014 (“JJ Bill”). While the Bill has some positive provisions, it allows children between the ages of 16 and 18 years, who are alleged to have committed heinous offences, to be transferred to an adult court where they will be tried and sentenced as adults. Heinous offences are those punishable with more than seven years imprisonment.

India’s U-turn

India had ratified the UNCRC in 1992. In February 2000, the UN Committee on the Rights of the Child (“CRC”) questioned India about the discriminatory nature of the definition of the term ‘juvenile’ under the Juvenile Justice Act, 1986 and recommended that it be amended “to ensure that boys under 18 years are covered by the definition of juvenile, as girls already are”. The legislative intention behind the Juvenile Justice (Care and Protection of Children) Act, 2000, evident from its Statement of Objects and Reasons, was to ensure compliance with children’s right to equality and non-discrimination under the UNCRC. “The justice system as available for adults is not considered suitable for being applied to a juvenile or the child or any one on their behalf including the police, voluntary organizations, social workers, or parents and guardians, throughout the country.” Fifteen years later, the very same Minister of Women and Child Development has defended the treatment of children as adults with a view to deter juvenile crime.

UNCRC does not allow children to be tried and sentenced as adults

Article 2 of the UNCRC requires all state parties to abide by the principle of non-discrimination and ensure that all children in conflict with the law are treated equally. It follows that the disadvantageous treatment of children based on their age and the nature of the offence they allegedly commit would constitute a violation of Article 2.

Through the introduction of a transfer system and a preliminary assessment procedure to determine the capacity of a child to commit the crime prior to the establishment of guilt, the JJ Bill flouts some of the most basic tenets of the UNCRC. The CRC has categorically condemned the treatment of children as adults. It has recommended that:

“… those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.”

The transfer provisions grossly violate Article 2 of the UNCRC and incorporates punitive goals that have no place in the juvenile justice system envisaged under the UNCRC.

Concerns about public safety cannot trump children’s rights

The age of one of the offenders in the gruesome December 2012 rape in Delhi, was one of the focal points in the protests that followed.

The age of one of the offenders in the gruesome December 2012 rape in Delhi, was one of the focal points in the protests that followed.

The JJ Bill wrongly posits the issue of heinous offences by children as a “conflict” between public safety, justice, and children’s rights. It falsely claims to be in the interest of the safety of victims. The CRC has expressly tackled concerns about public safety in connection with juveniles who commit heinous crimes and emphasised the principles that must underpin the State’s response. “In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.”

This perceived conflict between concerns about public safety and the best interests of juveniles had arisen earlier in the context of trials of children under anti-terror laws. In 2004, in its Concluding Observations on India, the CRC had expressed concern about the prosecution of children by special courts under the Prevention of Terrorism Act, 2002 in contravention of Articles 37, 40, and 39 of the UNCRC. In response, India amended the JJ Act in 2006 and introduced Section 1(4), which unequivocally clarified that the juvenile justice law would override all other laws with regard to detention, prosecution, penalty, or sentence and apply to all cases of children in conflict with the law without any exception. The JJ Bill therefore, represents a radical shift in policy within a span of nine years, without any evidence to support it.

Life imprisonment with the possibility of parole offends the right to life, survival and development

The CRC has strongly recommended that State Parties “abolish all forms of life imprisonment for offences committed by persons under the age of 18.”Under Clause 22 of the Bill, life imprisonment with the possibility of release can indeed be imposed on children above 16 years. This goes against the recent normative developments at the international level.

Re-integration objective undermined

According to the Article 40(1) of the UNCRC, all children in conflict with the law must be treated in a manner that is consistent with their sense of dignity and worth and reinforces their respect for human rights and fundamental freedoms. The treatment must ensure promotion of their reintegration into society. The JJ Bill, 2014 ignores the aims of reintegration and restoration of a child in conflict with the law, by providing for a highly arbitrary determination of their capability to make ‘meaningful contributions’ to society when they reach the age of 21 years. A failure to pass this test would result in an automatic transfer to an adult jail. Even if a child is found to have undergone reformative changes at the end of this assessment process however, she or he will incur the disqualifications attached to the conviction, making it impossible to secure gainful employment or stand for elections. In effect, reintegration would be impossible.

Transfer to an adult jail violates Article 37(c)

The UNCRC expressly requires that all children deprived of their liberty be separated from adults. The CRC has clarified that this separation is not merely technical and “does not mean that a child placed in a facility for children has to be moved to a facility for adults immediately after he/she turns 18.” On June 13, 2014, the CRC’s Concluding Observation on India’s juvenile justice system was that it must ensure “age-appropriate separation of children in Observation and Special Homes and that children in conflict with the law are not detained together with children in need of protection or with adults and that detention conditions are compliant with international standards, including with regard to access to education and health services”.

In gross disregard of Article 37(c) and the Concluding Observation on it, the JJ Bill takes an untenable position on the separation of children from adults, by proposing that the former be transferred to adult prisons if they fail an assessment of their reformation when they complete 21 years of age (Clause20(3)). Such a transfer is incompatible with the clear prohibition on the detention of children with adults under the UNCRC.

Violation of the presumption of innocence under Article 40(2)(b)(i)

Clause 16(1) of the Bill requires the Juvenile Justice Board to assess, along with the circumstances in which the child has allegedly committed the heinous offence, whether he or she had the physical and mental capacity to commit it. This assessment, the basis for transferring a child to the Children’s Court, which is a designated Sessions Court, operates on the assumption that the child has indeed committed the offence and thus violates the cardinal principle of presumption of innocence under Article 40(2)(b)(i). Such arbitrary assessments will invariably prejudice the trial before the Children’s Court.

It is evident from the CRC’s General Comment and Concluding Observations that all other considerations however legitimate they may be, will have to be overridden by what is in the best interests of the child. Concerns about public safety or the gravity of offence cannot be the basis for reenactment of a law that pledges to protect and promote the rights of children by disposing matters in their best interest. In its 264th Report, the Department-Related Parliamentary Standing Committee on Human Resource Development on The Juvenile Justice (Care and Protection of Children) Bill, 2014 also noted that clauses 15(3), 16(1), 19(3), 20(1), 20(3), 21, and 22 of the Bill constituted distinct violations of the provisions of the UNCRC, 1989 (para 3.29) and recommended their deletion. However, all these provisions have been retained in the Bill passed by the Lok Sabha, which ironically cites the UNCRC in its Preamble.

Swagata Raha, Arlene Manoharan, and Shruthi Ramakrishnan are from the Centre for Child and the Law, NLSIU Bangalore.

Written by myLaw