Child rights activists in India have voiced their opposition to a government plan to make changes in the juvenile justice law in the wake of rising sex attacks in the country.
The Bharatiya Janata Party-led government has proposed the changes that will allow 16- to 18-year-old offenders in heinous crimes to be punished as adults, with the exception of the death penalty.
Public support for harsher punishment has been growing since a gang-rape and killing of a 23-year-old student by six people, one of them a 17-year-old boy in New Delhi.
There was outrage after the minor was sentenced to three years in a correctional facility, which is the maximum punishment under the juvenile justice law.
Some even said that the minor deserved the death penalty, which was the sentence handed down to the convicted adults.
But Ved Kumari, an expert on the juvenile justice system, has said that non-governmental organisations which were counselling the youngest culprit, had found that he was not a violent person.
"So whatever happened in that incident is an aberration in his life. That is not his life. That is not what he is," Kumari told a press conference last week in New Delhi.
Think of your own child, if he runs away from home, six years he is on the road, anything can happen to him. He can turn into just anything.
Retributive or reformative?
While the government and a large section of the public are of the view that harsher punishment is needed to deal with the crisis of sexual crimes against women, human rights activists fear that juvenile justice is becoming more retributive than reformative.
Under the adult rape law, the minor in the New Delhi gang-rape could have received a maximum sentence of 20 years.
But Vani Manocha, 25, a multimedia professional from New Delhi, said that she still wanted to see him hang. Manocha also said the bar for juveniles should be even lower than 16. "After 14 years we should stop calling them juveniles," she told Al Jazeera.
Responding to the public sentiment, the previous Congress Party-led government had enacted a stringent new law against sexual crimes, which included the death penalty for repeat offenders and cases in which the victim died. And it was also initiating changes to the juvenile justice law including the trial of minors as adults.
Now with the BJP holding a majority in parliament, activists see a shrinking space for dissent.
"If, as a party, the BJP has taken a stand on the subject, then it really will be challenging for all of us to have a dialogue. But we will continue to request for a dialogue," said Bharti Ali, who heads Haq: Centre for Child Rights in New Delhi.
Crimes by minors
A draft of the new law, which is available online, says a juvenile justice board will have one month to assess premeditation and mitigating circumstances in cases of rape and murder, which involves minors over 16, and then determine whether to send the case to an adult court.
Maneka Gandhi, federal minister for women and child development, recently told the media that according to the police, 50 percent of all sexual crimes were being committed by 16-year-olds, who were aware of the lenient law.
She (Maneka Gandhi) was the one who changed the definition to 18 years, she was the one who brought in measures of restorative justice into the law. There has been a progressive move from her in the past so we expect the same even now.
"If for pre-meditated murders, for rape, we bring them into the purview of the adult world, it will scare them," she said.
But activists are contesting Gandhi's recent claim on crimes by minors.
"There is no massive spurt in juveniles committing all the rapes or majority of rapes," Vrinda Grover, a human rights lawyer, said at a press conference. "It is a complete lie."
Official records shows that 2,838 minors between the ages of 16-18 were arrested for sexual crimes last year as compared to 1,550 in 2012, which is an 83 percent increase. But the crimes in their age group only constituted 2.4 percent of the 117,000 committed in 2013.
Government data also shows that 1,388 minors in the 16-18 age group were arrested on rape charges last year but they constituted four percent of the 33,707 total reported rape cases.
Despite the rise in numbers, activists said those arrested for rape in the age group of 16-18 still only constituted 0.002 percent of the 70 million in that age group.
Activists have pointed out that it was under Gandhi's leadership in 2000 that the age of juveniles was raised from 16 to 18 in India to conform to the United Nations Convention on the Rights of the Child.
"She (Maneka Gandhi) was the one who changed the definition to 18 years, she was the one who brought in measures of restorative justice into the law," said Ali. "There has been a progressive move from her in the past so we expect the same even now."
Over the past two years, the Supreme Court has declined to bring minors into the adult system. In the Salil Bali case last year, a three-judge bench ruled that no change in the juvenile law was needed since minors had committed only two percent of the total crimes in 2012. The judgement also described the New Delhi gang-rape as an "aberration rather than the rule".
In March, the Supreme Court turned down a petition by the parents of the Delhi gang-rape victim for the minor to be tried in an adult court.
Instead of doling out harsher penalties for children, activists suggested improving the juvenile justice mechanisms, which includes sensitising judges, better training for therapists and counsellors, as well as making correctional facilities safe.
Before treating them like hardened criminals, they said it was the state's duty to provide Indian children with a safe environment to grow up, a quality education, and health services.
In his report, which formed the basis of the anti-rape law enacted after the New Delhi gang-rape, Justice JS Verma declined to lower the age of juveniles who had committed heinous crimes.
"We cannot hold the child responsible for a crime before first providing to him/her the basic rights given to him by the Indian Constitution," he wrote.
Kumari, the juvenile justice expert, pointed out that the Delhi gang-rape culprit had been wandering on his own for six years without any family support or supervision, fending for himself.
"Think of your own child, if he runs away from home, six years he is on the road, anything can happen to him," she said. "He can turn into just anything."
Still the public in India has mostly sympathised with the parents of the victim, who have publicly expressed their anguish at the sentence of only three years.
But Kumari said that under the juvenile justice system, the state was a parent to both the victim of rape and the offender. If prosecuted like an adult, she said that someone like the New Delhi gang-rape culprit would leave jail at the age of 37 without any skills.
"What are the prospects of his reformation, getting a good job and not being a threat to society," she said. "So yes, emotionally we did respond to a serious crime by sending him to 20 years but what happens after 20 years?"
Activists also warned against pitting women rights against child rights in the ongoing struggle to combat sexual crimes. Grover, the lawyer, said that neither handing down the death penalty nor punishing juveniles like adults would make Indian women feel safe.
"Let not either the brute majority of parliament or simply anger and rage determine law reform," she said.
Follow Betwa Sharma on Twitter @Betwasharma
Source: Al Jazeera