Move to change Indian juvenile law– a critique Monday, Dec 2 2013 

scales-of-justiceThe move to amend the Juvenile Justice Act to provide for trial of juveniles involved in crimes by regular courts is ill-advised. If at all, anybody is to determine the maturity to level of juveniles at certain age, it is to be done by psychologists; and not by courts, officials or legislators. 

The maturity level of juveniles may vary depending on the cultural, social and economic backgrounds, upbringing and several other factors. However, it is safer to have a safe higher limit, in the spirit of the principle that no innocent should be punished even if 1000 criminals go scot free.  If determination of the level of maturity and understanding is left to courts, a lot of subjectivity is likely to come in.  There is also the likelihood that poorer children would come in for harsh punishments on account of bias and inability to defend their cases strongly before courts.

As the objective of imprisonment is reforming of the criminal, it is also wise to err on the safe side instead of sending juveniles to prisons with hardened criminals.  If 18-year-olds are put in regular jails, there is little chance of their reforming. (Even the record of juvenile homes in this respect leaves much to be desired.)

Even among criminal gangs, the junior members would come under severe ‘peer pressure’ and encouragement to commit crimes which even an 18 year-old would find hard to resist. So, it needs to be determined at what age children would normally be able to resist such ‘peer pressure’ from gang leaders. This is the job of psychologists.  One need only look at Charles Dickens’ Oliver Twist to learn about the compelling circumstances to which a poor boy (or girl) could fall into.

The current milieu—after a lot of public outrage over the Delhi gang rape and similar incidents, is not the right time to attempt an amendment to law.  It is notable that even false reports were perpetuated that the juvenile among the Delhi gang was the cruelest of them all. However, the testimonies that came before the Juvenile Justice Board proved that those reports were wrong and Time of India had clarified that in a report.  If the juvenile was tried in a regular court under the current milieu, and reluctance of many good lawyers to appear for him, would it have been possible for the court to objectively assess the maturity level of the juvenile cleaner of the bus?

Advertisements

Seeking medieval justice for rape Tuesday, Jan 1 2013 

The demand for castration or death for rape victims smack of medieval justice and side lines the real need for police and judicial reforms and social reforms.

Harsh punishments will not solve the problem as long as a large number of people involved in sexual offences could escape punishment. The conviction rates are low in Indian courts, and when it comes to rape and sexual offences, it is still lower.  A high conviction rate only will help to check the crimes.

Now a lot of influential people are immune to laws and protest against this is muted. Protests occur and speedy actions happen only when the accused are less influential and backward. The demand for harsher punishments such as castration and capital sentence against such people is remnants of the medieval practice of an eye for eye and casteist systems that did not recognise equality before law.

The Union government is fully justified in not convening the Parliament to discuss harsher punishments for rapists. Changes of laws were something that is to be done with due deliberation. Discussion in Parliament should await the report of the commission appointed by the Central government. It is to be remembered that sex is not always the prime motivational factor behind rape. A criminal mentality that enjoys violence and dominance is always behind it.

What is actually needed is social engineering and better enforcement of existing laws. It is notable that many of those involved in such crimes are people who had been implicated in minor offences before they started committing serious crimes. If they had been booked and punished earlier, the chances of their thinking or getting opportunity to commit serious crimes would have been lower. In the Delhi case itself, it is notable that the bus was plying without the necessary papers. Though the operators had been caught four times, they were let off without preventive action. This calls for major improvements in the administration of justice.

Related:

Laws that make you insecure

An unnecessary Act to check crime Sunday, Nov 11 2007 

Crime controlA year after the enactment of Kerala Anti Social Activities (Prevention) Ordinance providing for preventive detention of known delinquents, goondas are still at large. In fact, the Ordinance and the Act that replaced it subsequently were unnecessary and dangerous legislation. Unnecessary because it would serve little purpose. Dangerous because it could be misused anytime.

The Ordinance was a modified version of the Felonious Activities (Prevention) Ordinance brought by the previous Oommen Chandy Government (United Democratic Front). It was one of the several gimmicks played by that Government to show that it was acting fast when it was left with hardly a year to show results. Crime was mounting and the Ordinance was presented as the answer to that.

When the Left Democratic Front (LDF) Government came to power, there was no let up to the operations of criminal gangs. Mr. Chandy, who is now the Opposition Leader, took the Government to task for neglecting his Ordinance. So, the LDF Government also found it expedient to reenact the legislation, which had lapsed. As the LDF had opposed the draconian provisions of the law when in the Opposition, it found a way out by incorporating some provisions that, it claimed, would prevent misuse of the law. But preventive detention is nothing but preventive detection.

The police establishment generally welcomed the measure as they could keep people in custody without taking the trouble of investigating crimes and prosecuting goondas successfully. Now, troublemakers could be held to the whims and fancies or pulls and pressures.

The goonda menace was increasing in the State not because it lacked effectives laws. There are enough laws in the statute book that can be used to put almost anyone in jail. Innocents are not safe if someone decides to use the existing laws deviously. (In fact, the statute book is in need of a pruning.)

The real problem is that the laws are always applied selectively. The reason behind that is the nexus between goons, police and the politicians. The goonda menace is not going to end as along the nexus exists. Harsh laws would increase the stakes but not break the nexus. Only a clean government can break the nexus and end the menace.