The reason for the Juvenile Justice Board’s ruling declaring the sixth man a minor is that it is staffed by people of doubtful learning and ability
Kajal Basu | February 1, 2013
On January 28, an Indian Juvenile Justice Board (JJB) “ruled” that Accused Number 6 – a hapless lad supposedly entangled in a crime of men – was a minor, period. And that he would never stand trial for having been the most active participant in a gang rape-and-death that has returned India slinking back to the shadow years of male barbarism that no late-20th and early-21st century bravura showmanship can cloak with the light of ersatz liberalism.
Monday’s high-handed, non-debatable “ruling” by a Delhi JJB – very much ad idem with the Congress government’s cross-eyed stumbling around the minefield of a stunning societal crisis a brief month and a half ago – will crack a fissure down the nation’s already sintering selfhood. The JJB is a corpus principales that comprises of three low-ranking functionaries – one metropolitan magistrate or one judicial magistrate of the first class and two ‘honorary’ social workers – and it is a stunning imposition on the collective intelligence of this country that it presumed to have mastered the expertise necessary to fulfil the most critical of pretrial tasks, one that would make the larger judiciary and the central forensic science laboratories together break out in a sweat – to determine, using noncontroversial and best-use instruments of legal, physical, administrative and forensic scrutiny and deduction, the near-exact age of Accused Number 6; whether or not he deserves to be placed inside the fortification of the Juvenile Justice (Care and Protection of Children) Act 2000, as amended in 2006 and 2010; whether or not he should be moved to a “place of safety” until the time for his release when he turns 18, on which day he might be given unconditional freedom, despite the very disposition that created his abnormal persona remaining incompletely understood and treated for want of time, to vanish into India’s vast boondocks, possibly on a personal bond of a few rupees – which is what might happen on June 4, 2013(simply because the law allows it, and the law today seems for all the world to have vowed to embrace the letter of its existence and not its spirit).
India’s constant undoing is the legalised existence of parallel laws operating in their niche domains and playing hell with the system as a whole. The Indian Penal Code, 1860 maintains the age of criminal responsibility at seven years: “Nothing is an offence which is done by a child under seven years of age.” Under section 83 of the IPC, the age group of 7-12 follows a different piper: “Nothing is an offence which is done by a child above seven years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.” But children from 12 to 18 years old have no such immunity. The caveat is that even if they are found culpable of criminality, they can neither be treated nor sentenced as adults. India’s law books form a cat’s cradle of needless and unsorted complexity and conflict.
What the JJB in Delhi – there are three of them: JJB-I and JJB-III are housed in a single address in Kingsway Camp, JJB-II in another office in Delhi Gate – offered up as a “ruling” was the unreconstructed and oft-iterated central tenet of the Juvenile Justice (Care and Protection of Children) Act 2000 (amended in 2006). In the JBB’s defence, let it here be said that it comprises of a metropolitan magistrate or judicial magistrate of the first class, both of which posts are on the second-lowest rung of the Indian criminal court structure (and both are subordinate to a sessions judge – a position dented by decades of public trust issues and judgements summarily decked by the high courts), plus two ‘honorary’ social workers (one of whom must be a woman). As bald as this may sound, this trinity has none of the comforting features of a powerhouse databank of intellection that ought to have been tasked with any “ruling” of this magnitude and precedence value. (Not that the JJB’s eventual “ruling” came as a total surprise: A week before it was delivered, on January 22, the claim of another accused, Vinay Sharma, to minor, non-culpable status was later seen as cleverly prescient about the JJB ruling setting an egregious precedence.)
Whatever the fate of the “ruling” when – rather, if – the police appeal against it, there must be a reason why a lightweight metropolitan magistrate whom Section 28 of the CrPC gives no more power than of imprisonment for up to a year, or a fine not exceeding Rs 5,000, should head a body as critical as a JJB. A judicial magistrate of the first class is a bit heavier: According to Section 29 of the CrPC, he can order imprisonment up to three years, or a fine <= Rs 5,000, or both. Despite the added few grams of bling, his boss is also a sessions judge. Going by how the “ruling” was arrived at, not a single member of this Delhi JJB holds out assurance of intellectual rigour, leave aside evidentiary and deductive ability to decide upon the multicoloured, shape-shifting chaos of the process of human maturation.
The intellectual thinness of the JJBs has a small history. In April 2008 – two years before and two years after the JJ Act was twice amended to give it sabre-teeth to match its purpose – the Madras high court directed the registrar general to, one, constitute a ‘pool’ of 30 judicial magistrates to fill the Tamil Nadu JJBs; and, two, to train them using the good offices of the state Judicial Academy – in all of three months flat; in short, to indoctrinate 30 largely uninformed magistrates with an up-to-date, information-heavy, analytical backgrounder in child psychology or child welfare in two subjects in a quarter of the time it takes to get a diploma or a course certificate which counts for nearly nothing, 1/12th the time spent on a three-year Bachelors that counts for something, and 1/8th the time a Masters demands, which marks the beginning of a long haul up a steep learning curve. This preposterously attenuated primer is, or was, a ready recipe for culpa lata – gross negligence – not by intent (which there is no reason to consider dubious) but by slenderness of scholarship. In the situation under discussion, culpa levis – ordinary negligence – would have been like Armageddon.
But the JJB’s flat denial, packaged with its “ruling”, of permission to the police to carry out bone ossification age-determination tests on Accused Number 6 carries with it an unpleasant smell of legislative diktat: The government chose not to camouflage its belief – its latest retrogression in a series of Ultracon relapses – that trying near-adult criminals as deserving of Asperum lex (a hard law) would hand an unfought victory to its competition. But the danger implicit in the JJB’s “ruling” is the possibility, later, of the whole JJB leniency machine exploding in a guilt-trip of maxima culpa if Accused Number 6 demonstrates recidivist behaviour or, like seriatim paedophile-and-murderer Sunil Suresh ‘Pappu’ Salve, who raped and killed a girl-child within months of his release for good behaviour in May 2012, is found to be beyond salvage. Even now, Accused Number 6 doesn’t exactly have the status of a juvénile immaculé but that of a “Juvenile in Conflict with Law” (JCL), which is semantic chocolate-mouthing for a juvenile who has allegedly committed an offence of adult magnitude – morally, psychologically and physically – but was not an adult on the date of commission of that offence, and would thus probably escape legal punition ad congruendum scelus – punishment to fit the crime.
I wonder which variables the JJB considered of serious import and which candyfloss when drawing up its cryptic ‘ruling’ – and there would’ve been scores of maturation variables, not a few of them in conflict. Did the “background” in child psychology/welfare actually equip the magistrate with enough learning – or even the ability to soak in compendious information – that would help him determine whether or not Accused Number 6, a soft-spoken, occasionally effete slip of a youth, is a normative sub-adult with clear ethical cognition but was perhaps encouraged to act out like an ultra-sadist by adults (whose part in the crime, though, evidently caused the victim less physical torment); or determine, if he is a psychopath, whether the cause could be rooted in his formative years, so monstrously defiled by social circumstance that he found the moral chasm between sodomising a young woman with a heavy-duty vehicle’s angled tyre iron and a walk in the park to blurred to see; or determine whether or not the youth is genetically or congenitally predisposed to ultra-violence; or determine whether or not he falls in the “diminished responsibility” category because he might have inherited a ‘condition’ from his father who, according to a newspaper report, is mentally challenged; or determine, from interrogating people from his village in Badaun in UP, whether there is anything to their contention that Accused Number 6 and his family are dissembling on an industrial scale about his not being an adult.
We’ll never know, of course, if the JJB cogitated or just sat and wrote out a zero-thought ‘ruling’. Contrast this with US states, which exercise judicial waiver laws that, on a deeply debated case-by-case basis, allow juvenile courts to relinquish jurisdiction rights, making a particularly egregious juvenile offender liable for criminal prosecution. Had they lived, the shooters of Columbine would have been tried as adults, but with the death penalty taken off the table. (As of 2005, across the US, 2,225 juveniles were serving out life sentences without parole.) The ascertaining of who gets the adult treatment and who gets a rap on the knuckle isn’t simple, nor is the conclusion determined solely by exacting due process. The judge takes a decision based on inflexible parameters and after a full-scale formal hearing during which both prosecution and defendant can call upon character witnesses and expert psychiatrists to bolster their case. It isn’t decided by junior magistrates and a couple of honorary social workers (!) whom the Indian state in its hokum wisdom has handed the power to decide the duration and/or severity of a juvenile’s period of punition and where it will be served even before the case has gone to court. The arguments in India’s Furchtnacht des Übels, our Night of Fear and Evil, have not yet been presented – or, for all we know, organised –but the global community glued to the nuances of the unfolding origami of nonsense already knows that the juvenile, the event’s force d'active, will at most serve three years in the care of people who don’t know paediatrics from psychopathology – and might even walk out a free man, an adult, by the time the case crosses the court’s threshold.
The US justice system circumvents any possible judicial haemorrhaging of hearts by making the judicial waiver almost a given in certain classes of extreme criminality, and mandatory for a small handful of specific, unimaginably awful circumstances. Even such cases, however, are open to a bloodbath between the counsels – our Night of Fear and Evil would have slotted into one of these ‘rarest of the rare’ events, and Accused Number 6 would most likely have faced what the American justice system calls LWOP (life without parole).
LWOP sounds terrible, phonetically and as an idea, but what saves it is the moderating influence of hyperactive contention that surrounds it. Nonetheless, even as it plays havoc with blood pressure across the Eastern Seaboard to the Left Coast, the waiver hasn’t been canned – America’s criminality is just too pressing to permit soufflé sentimentalism. (We’ll get there, too – give it a little time.) But on September 12, 2012, the US supreme court tightened the reins on the waiver, ruling that prosecutors would face a possible inquisition before they could get juvenile offenders into the adult dock. The supreme court also said that prosecutors would have to build an steely case for their presumption of the workability of adult deterrence for juveniles. But tougher though it might have become, the waiver/transfer laws remain inviolable as the prosecutorial option least taken for juvenile crimes considered indistinguishable from adult depravity.
Up to the late 1980s, charges against under-17 juveniles were shunted automatically to juvenile court. Starting 1988, when automatic waivers were legislated, prosecutors began using the sudden manoeuvring space to gain transfers of 15+-year-old juveniles from juvenile court to circuit (adult) court (although under-15 juveniles remained exempt). If a juvenile was convicted of first-degree murder (Accused Number 6 would have been convicted of a grab-bag of offences with punishment to be served seriatim and not in parallel), LWOP would’ve arrived on autopilot. Nothing would have saved Accused Number 6 from LWOP, if not for the gravity of his offence, then for the probability – not mere possibility – that his grotesque, inventive viciousness would end in a reprise of his crime, perhaps full-blown recidivism, if not within a year after release when his incarceration trauma would be fresh, then later, when compulsion could steamroll memory. Few people working in the Byzantine, often surreal innards of the US justice system argue against the ugly but time-honoured meme that even criminals who have been incarcerated for a single instance of ultra-violence are compelled by their demons into recidivist barbarity.
In neighbouring Bangladesh, where a child – a minor by another name – is defined as anyone under 16 years old, high court justice Mohammed Imman Ali, one of the subcontinent’s most formidably learned experts in juvenile justice, wrote that “the law does not give the court any right or discretion to assess by the judge’s own expertise, the age of any person present in court as a witness, victim or accused” – which is advice that should interest the Delhi JJB at the centre of the current we-know-best shindig.
But the real reason for taking a good look at Bangladesh’s penal code is its empathic Children Act, 1974 – which is more than a decade older, and distinctly wiser, than our Juvenile Justice Act, 1986. The Bangladeshi law, though, recognises – unwillingly – that some juvenile crimes call for longer incarcerations than permitted by the framework law. It says that, to a “youthful offender” (meaning any child who has committed an offence), “even in a case of an offence punishable with death, imprisonment for life or other imprisonment the court may award sentence of not less than 2 years and not more than 10 years to a youthful offender. However, the proviso to section 51 allows the court to award a sentence of imprisonment and for the child to be kept in a place other than a certified institute if the court is satisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified institute.” It is a painful recognition of a psychopathological imperative, which the JJB in its ‘ruling’ refused to countenance even in passing.
There is no logic behind the Delhi JJB’s refusing the police permission for a bone ossification test – unless it feels somehow threatened. If the test’s age locus, which is give or take two years, is too imprecise, so is the questionable documentary evidence – provided by the mentally-challenged father of Accused Number 6 and two memory-challenged principals of the school he attended until class III – that the JJB swallowed as the unaltered truth. Pending a police appeal, the JJB’s evidentiary selectivity has led it to the unscientific, untenable, nutty-fringe postmodernism position that legal proof of age makes as much, if not more, sense if carried by hearsay and anecdotal evidence – or even documented age-proof (purchasable from any notary public in any court anywhere in the country for a fee of Rs 20-50 + Rs 10 for the legal paper) that almost every rural, mufasil and periurban school is handed by a section of students it admits. This outré position, an echo of which is inescapable in the JJD’s truculence, would deny legal standing to biometry, for instance, with its transparent methodology of multipoint scrutiny and codification, and even scarily precise (and expensive) mitochondrial DNA tests using a polymerase chain reaction procedure invented as long back as 2003. It would be too ambitious to expect the JJD to confess that it parroted by rote a policy dogma, or admit to ministerial intervention in its ‘ruling’ formulation process that seems, to half the country, obvious – but accepting that science works better and more honestly than crosschecking-proof factoids and anecdotes would bring the JJD back from public interdiction and vapourised credibility.
But pinpointing the age of Accused Number 6 is just one aspect of making law all about getting justice, not impeding it with loyalty to legalese. Another, equally crucial, aspect is forensic psychopathology that could shine a torch on what the court needs to see to make informed, clearheaded judgements on the myriad options on non-lethal punition. Even as this progress walks abroad, life everywhere – along with its handmaiden, biology – is threatening to leave the clunky, enervated Indian legal system shambling in its wake.
Forensic psychopathology, with its ability to keep expanding a vast databank of biosocial trends and developments, has helped other (developed) societies handle the quarter-century-old threat of instability caused by rising crime and the citizenry’s acceptance of Posse Comitatus-like vigilantism as a self-empowering, self-motivated response to crime. The ability of forensic psychopathology to make sense of contorted psyches has also reined back laws from becoming more punitive by unrestricting the standards for juvenile case-by-case transfers. The real surprise is that wherever transfer laws have been given more wriggle room – such as in Canada and the Netherlands – they have led to far more acceptable punition against juvenile criminals and a steady decline in meagre handful of juvenile-to-criminal court transfers.
A Task Force on Community Preventive Services report, ‘In Treating Juveniles as Adult Criminals’, in the American Journal of Preventive Medicine (2007), showed clarity and analytical depth that should shame the Delhi JJB: “The transition to adulthood is a developmental phenomenon that varies widely between individuals. People mature at different rates and times in respect of different capacities. One-size-fits-all policies inevitably produce anomalies, injustices, and unwanted side effects (including increased violent reoffending).” Before the one-strike-out policy stripped New York of petty criminals (not the corrupt leviathans, though) with a giant Hoover, the city boasted special policies, programmes and institutions built for customised treatment of 19-25-year-old youth offenders. Some (mostly European) nations cut and spliced and even reshaped their laws using, not rejecting, fast-changing behavioural norms and cutting-edge crime prevention studies, ‘blending’ into cohesive purpose a slew of interlocking and superimposed jurisdictions between juvenile and adult courts. Deutsches Gesetz, or German law, has sanctioned judges to sentence juvenile and youth offenders of 18-20 years according to the rules of clemency for under-18 juveniles (over the years, this altruism has become the norm).
The persistent notion in Delhi that being extra-strict with even one juvenile criminal would be an open invitation to prosecutors to institute a Gestapo third-degree regime for all juvenile criminals is a clumsy stab at the ghost of an absent fear. The only valid argument against generally jailing all juvenile criminals as adults – as against trying a miniscule number of juvenile extreme criminals – is that most juveniles would end up serving far longer sentences than adults convicted of similar crimes. But the JJB ignores this: its implicit stand is that anyone accused of anything – even (I’d venture) gassing a school – and short of 18 years by a day, or even an hour, on the midnight that ends his birthday has Truth, Justice and the Full Force of Law behind him, and automatically deserves every benefit due to a minor more than a decade younger: In effect, Accused Number 6 is deemed immaturely unable to separate right and wrong, while someone a single hour older than 18 is to be considered full-tilt culpable. It’s an argument that jumped out of the JJB’s flying saucer without a parachute.
The dark side of the JJB’s push to cement the idea of the neoteny of a scofflaw a mere six months from adulthood – and a voter’s card and driving licence and PAN card – is that full-adult criminals with medically-certifiable, cognition-crippling intelligence impairment don’t get any consideration at all, which the loosest standards of ethics cannot refuse them. Except in India, where all this can happen, and has happened, in the brazen light of day. Another in-the-face anomaly that remains strangely unresolved is about unenforceable international law overriding mandatory national law: While 16 years is the lower limit for the death penalty for males according to Indian law, Article 6 (5) of the International Covenant on Civil and Political Rights, which India ratified in 1979, and Article 37 of the UN Convention on the Rights of the Child, ratified in 1992, lift the minimum age to 18 years, which is the age the Indian courts go by. In another (legal) anomaly, by the time the law of stretchable adolescence resulted in the JJB’s ‘ruling’, he’d become the tail-end of the queue of culpability, not by virtue of being naïf but because his near-adulthood attracted statutory diminution of criminality and redaction of all references to identity from the crime-event logs.
As of now, most nations prohibit capital punishment and LWOP for the under-18. Of 154 countries I picked out by closing my eyes and jabbing at Google Earth, only three (South Africa, Israel and Tanzania) had policies that mirrored the US’s case-by-case approach to juvenile incarceration. But where the US had 2,225 LWOP juveniles in 2005, these three nations had between them a total of 12. The numerical contrast is stunning. But what it doesn’t say is that none of the 12 mentioned above – and just 11 of the 2,225 in the US – had committed crimes that barely approximated that of Accused Number 6.
Meanwhile, even as fewer juveniles face even half-punition for full-adult crimes, the global juvenile crime rate has gone up by 34 per cent over the past half-decade. India’s contribution to giving the issue a good tackle was to formulate in 2009 the Integrated Child Protection Scheme, which mandates that “vulnerable children” – a definition that includes late-teen juveniles – comprise “children of potentially vulnerable families and families at risk, children of socially excluded groups like migrant families, families living in extreme poverty, scheduled castes, scheduled tribes and other backward classes, families subjected to or affected by discrimination, minorities, children infected and/or affected by HIV/AIDS, orphans, child drug abusers, children of substance abusers, child beggars, trafficked or sexually exploited children, children of prisoners, and street and working children”. In short, every child – and juvenile – who has ever lived, lives and will live in this country of people of rampant goodwill empowered by utterly confused writing.
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