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Sunday 27 July 2014

Miscarriage of Justice



 The apparent insufficiency in the sentencing of the offending juvenile in the Nirbhaya case has provoked the hackneyed debates on the strength of juvenile laws of our country. There is pervasive unrest and non reconciliation with the fact that the most brutal perpetrator of the abhorrent offence was sentenced for a period of only three years. First things first. The ire of laymen in the present scenario need not be misdirected towards the Juvenile Justice Board presided over by the Principal Judicial Magistrate, which handed down the sentence to the guilty. This is for the obvious reason that the Board had no room to interpret the sentencing afforded by the Juvenile Justice (Care and Protection of Children) Act (JJ Act) in any more suitable manner than it has now. In fact the Board has handed down the maximum sentence that the law could afford under the circumstances.  

          I read a reported tweet of Ms. Kiran Bedi stating "Courts need not be mechanical robots. We make laws and then interpret them not to be enslaved but do justice to victims too". While the rhetoric of the statement is by and large not incorrect, it is delusional of one to expect that Courts will enhance the sentencing of any convict beyond what the law enables it to award. This is because the law of our land mandates that penal (criminal) laws are to be interpreted exactly as they are codified since they determine someone's liberty or the taking away of it. The Courts cannot invent or manoeuvre sentencing for a proven criminal to suit popular expectations. It is however another thing that the law itself may be inadequate to dole out an appropriate response of the State against a shocking crime as the one in the present case. In the Nirbhaya case, the juvenile was charged by the investigators, to have been the most barbaric in the gang while committing the heinous crime. It is yet to be ascertained from the Board’s order as to what extent his barbarism has been established as charged. Be that as it may, once the accused has been found guilty, what has added insult to injury is the fact that he was only a few months younger than being eighteen years old, for which the law enabled him to be treated as a juvenile. The circumstances of the 'Nirbhaya' case force one to wonder whether the JJ Act must come to the rescue of such a person who is capable of partaking in a brutal gang rape exhibiting actions of the most diabolic, inhuman and ghastly order, surpassing every perverseness known to adult men. 
             This is where I have a suggestion to make. The Parliament need not completely turn the JJ Act on its head. What it can do is, keeping in mind situations where the accused displays sufficient maturity of action at par with adults, make room in the law for Courts to treat the actions of a juvenile as ones deserving consideration like those of adults. It is well known how the Hon'ble Supreme Court has passed a series of rulings to determine the broad and near exhaustive principles for considering as to whether a death sentence is to be awarded in any particular case. The Legislature of our country must take a leaf from that book and introduce appropriate provision in the JJ Act which would make it possible for Courts to delineate between cases where a juvenile's actions smack of an immature display of choices whilst committing ordinary offences and cases where except for the mere fact that the accused is days away from exceeding his juvenility, there is nothing ordinary about his alleged actions. In other words the law must enable adjudicators to deal differently with juveniles accused of ordinary offences and those accused of heinous crimes. Once such a provision is in place the Courts will have the handle to deal with cases like that of the juvenile in the Nirbhaya case, in an appropriate manner. The Legislature could either enable the Courts to treat the case of the latter category as per the stringency of IPC or the particular provision could also prescribe higher punishment in the JJ Act itself. 

But the discussion would be incomplete without restating of the observations of the Hon'ble Supreme Court in the matter as to whether the in case of heinous crimes like murder and rape etc., the juveniles should be tried under normal laws. The Court observed inter alia that :

“If what has come out from the reports of the Crime Records Bureau is true, then the number of crimes committed by juveniles comes to about 2% of the country’s crime rate "
“In recent years, there has been a spurt in criminal activities by adults, but not so by juveniles....In the absence of any proper data, it would not be wise on our part to deviate from the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, which represent the collective wisdom of Parliament”

While admitting that there could be exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, the Court said,

“but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.”

        In all fairness I must admit that while the observations of the Hon'ble Apex Court are true to the vision and the object of the JJ Act when read with the statistics quoted by it, it would nevertheless be fitting to the need of our times that the Parliament, our apex law making body, took care of the expectations of the victim and his / her family from our judicial process while considering the adequacy of the JJ Act. And in doing so it would do its duty by enhancing the punishment for juvenile offenders, atleast in heinous crimes such as rape and or murder.




28 comments:

  1. IMO, One shouldn't see how heinous crime a juvenile did while giving judgement but should see what's his potential of becoming a good human being. A dacoit & murderer Valmiki can become a Saint. There should be some psychological counseling and tests done on criminal before pronouncing the judgement.

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    1. Agreed Ravish. The spirit of JJ Ac is precisely what you indicate i.e. reformative not retributive. But you see, it is not plain black and white. The grey area was clearly exposed in Nirbhaya's case. Since in the gang of offenders, the juvenile was the one who committed the most ghastly acts on the victim. When the nature and gravity of the act is so absolute in its heinousness, it will be unfair for the victim to apply principles of mercy and magnanimity while punishing the offender. What you suggest appears quite logical, regarding tests before judgment. But here the nature of the act was such that it is near impossible to say that the juvenile by reason of his tender age or immaturity did what he did. Once we believe that the sternest of punishment is necessary.

      This is why in my article, I have suggested that the Courts must have the liberty to deal with juvenile offenders accused of ordinary crimes and this accused of heinous crimes, in different degrees. Only then one can aspire to redress the grievances of victims in latter cases.

      Thank you Ravish for you suggestions.

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  2. Yet again a strong point put forth. While here my views are a little sentimental and two way. The law may define the punishment for a Juvenile but it should be handled relatively from case to case. Since the age is tender he may have commited a crime under duress or coercion. The case of Nirbhaya again is different where the Juvenile was recorded as the most aggressive and forthcoming in the crime, however not generalising I feel our judiciary system is never biased and gives all a fair chance of proving themselves or be punished no matter what the age.

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    1. Thank you Shweta for your acknowledgment. You have aptly put what I have said in the article. Every case is to be handled as per its own unique circumstances. No two criminals are same. This is where thee role.of the Court is essential. Unfortunately the JJ Ac does not give leeway to Courts to deal harshly where the act of a legal juvenile is worse than the crimes.committed by adults. Your faith in our judiciary is well placed. Minus stray instances, by and large, our judiciary has always applied the law in right spirit and form.

      Thank you for sharing your valuable views.

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  3. A very balanced look at the issue. Perhaps, it's time that JJ Act is revised. The juveniles of today are markedely different from yesterday's. When a 16 year-old behaves like a hardened criminal, he has no right to be treated as anything else.

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    1. Thank you Tomichan for your views. And I fully agree with what you have said.

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  4. What needs revision is the age bracket. ideally 16 and not 18, Discretion of the court is needed. Psychological counselling is a must for all

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    1. Sure Datta. But it is hard to say what will be the effect of age reduction considering that today young adolescents are most susceptible to crimes. Discretion of Court is a must. And I have said the same in the article.
      Thanks for reading and sharing your views.

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  5. Juvenile Psychological chaos & other factors to rehabilitate them are ok, but I feel that as a mute-spectators somewhere its like perpetuating the crime. It should be taken n adjudged depending on the gravity of crime committed. Many PIL have been submitting to support this change in the already existing act.It needs biting teeth.

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  6. Correct that there is no point blaming the court - were it to prescribe its own punishment it would be trespassing into the realms of the legislature AND the chinese wall between executive, legislature and judiciary is vital to a healthy democracy.

    For me, though, the issue of whether a criminal CAN reform does not mean a damn in deciding upon punishment. The very idea of diverting scarce resources to reform criminals when the law-abiding are still starving seems ludicrous. Such sentiments are the luxury of a developed economy and not one in which scarcity is still rampant.

    The issue, primarily, is about whether the criminal KNEW what he was doing when he did it. In other words, whether the criminal could be considered to have the judgment necessary to understand the nature and consequences of his actions. It is on this basis that both the insane and the juvenile are treated differently. I do think, though, that some leeway needs to be given to the courts to decide upon juveniles - as to whether it is an immaturity that he will grow out of OR whether it is a deep-rooted psychopathy which cannot be dismissed merely as 'youthful high spirits'.

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    1. Absolutely right Suresh ji. The Courts cannot invent punishment; criminal law is mandatory to be interpreted as it has been laid down in the statute. So coming from Ms Kiran Bedi, a veteran IPS, it was difficult to accept.

      So also your philosophy regarding non reformation, though appeals to me instantly, I would tread cautiously because a nation has to proceed on principles well established and working in developed nations mixed with some customization suiting to our unique needs.

      And you are spot on with what you have said about knowledge of the criminal while committing the crime. The guilty mind is what is important. Which is why I have said that Courts should have discretion to treat an accused as a juvenile, not only basing on his age but also the nature and gravity of crime committed.

      Thanks Suresh ji for your views.

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    2. Actually, Anupam, the jury is still out on whether reformation is working in developed countries. Recidivism is VERY high among criminals according to Parole statistics. The additional problem, of course, is that a criminal record bars the person from most jobs - so he slides back. Question then is IF Society will NOT accept a sentenced criminal what's the point in trying to reform him within the judicial system?

      A situation which is worse in developing countries. When there are few jobs to go around, the chances of recidivism is far too high even from those criminals who are willing to reform. AND, considering that the chances of anyone wanting to reform is, of itself, low, the exercise seems futile.

      If resources were aplenty and we are at least able to feed, clothe, educate and cater to medical needs of all the law-abiding, there is a question of sparing resources in even this endeavor. As it stands, any resource we use in this process is being taken away from the law-abiding, so WHY are we making the choice that the needs of a criminal outweigh the needs of the law-abiding?

      I can even see the rationale for a fiduciary crime from someone who is deprived - since, in part, Society can be seen as a contributory factor to his turning criminal. Fiduciary crimes from the relatively well-to-do AND non-fiduciary crimes from anyone are, for me, crimes where reformatory efforts are purely a luxury we indulge in because we ape the west.

      The West has its issues on death penalties and the like based on the Christian ethic of one life and soul eternally damned unless it reaches a state of grace in this life and all that. I believe we need to be more practical here - if the Govt. takes a chance on a criminal's reformation and he goes out to commit another rape/murder, does the Govt not become complicit in the further crime? I would say that we need to put the needs of the rest of Society ahead of that of the criminal.

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    3. Point taken Suresh ji. If the jury is out, then well the facts speak for themselves. I believe recidivism and societal non acceptance of proven offenders are not always mutually inclusive. Recidivism may not always be the consequence of societal non acceptance. Be that as may, I will always endorse second chances. I mean I personally find it difficult and rash to completely reject a proposition for reform and reinstatement, in fear of probability of a negative outcome, howsoever high that probability may be. It is like giving up the presumption that a man accused of a crime is innocent till he is proven guilty just because its a bad world and many are guilty though they pose as innocents. I'm sorry if I sound naive or like an unabashed optimist. I would always like to see someone in need of a second chance given that chance.

      I find it slightly hard to accept that we despite being a democracy and a forward looking nation committed to ideals of a welfare society where fairness is the key ingredient, should allocate absolutely no resources towards ensuring basic standards in prisoner reformation. Again the same principle applies. For even a large number of wrong men, a single correct man should not be robbed of his chances at future. However, reformation is not the only guiding principle in sentencing. When the person has shown such depravity of character that his continued presence is detrimental to society, he is to be permanently removed therefrom, either by way of capital punishment or life imprisonment.

      Furthermore, it is unfair to say that we are following reformative methods only because we are aping the west. I think there are a galore of data which would tell us that many hardened criminals have gone out and have led an honest life. I'm not saying that this is the majority of exconvicts but they still are there. It is near impossible to know whether a person if allowed to reform after he has committed a crime, will not actually reform.

      Lastly, going out of prison is an entirely different story altogether. The convict may go out of prison if
      a) his sentence is over and
      2) his sentence is pardoned.

      There are a few crimes for which life imprisonment is prescribed and there are even fewer for which death penalty is stipulated. So for almost all offences, it will be over sooner or later and the convict will go out, nothing can stop him including the Govt. even if it wants to. However if the sentence is pardoned, it has to be seen on what grounds on what observations it has been done. That 'd tell us whether the Govt is justified in releasing him. If it is not and the man goes and commits crimes again, then perhaps it would be a blame the Govt. has to take.

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    4. This is a debate with valid points on both sides, Anupam, and I am well aware of and concede the validity of your points. My issue is actually very simple. When a certain course of action costs you scarce resources and has a low probability of achieving success, I would rather deploy the resources on more deserving people.

      So, effectively, what I am saying is that if you spend money on ensuring that a criminal is reformed, you are necessarily taking it away from some other use that it may be put to. When you see choices in simpler terms you will get the point. What if you had a sum of money for charity and you had two choices - reforming a criminal and educating a child? Which would you choose to do? How would your choice be affected if the chance of reforming the criminal is 10% and changing the life of the child by education is 50%? My point is that, just because you cannot see the choices so starkly, it does not mean that you are not making those choices when you deploy the scarce resources available to Society.

      Understand that I do not mean that the prison system should NOT be reformative NOR am I saying that all crimes should be punished by death. I am only saying that the potential for reformation of the criminal is not an argument that weighs with me when I form an opinion about the nature of the punishment that needs to be handed out for his crime.

      SO - when it comes to crimes that seem to deserve the death penalty, I am all for it - and the only consideration is the culpability, both physical and mental, of the criminal. Needless to say, I support the death penalty where deserved.

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    5. I wholly endorse what you say Suresh ji. Unfortunately except administration of a country's justice delivery system is far removed in reality from the simple analogy of charity for a child's education vs. prisoner reform. Here the resource will have to be shared. But I do take the point that somebody who has committed a crime is in a worse footing than the innocent needy when it comes to deserving allocation of resources.

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  7. Society can condition criminals but not animals.. A man eating tiger is killed and not caged.. And in cases like this, the culprits were uncivilized, astray animals who needs to gunned down..

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    1. I do understand your rage. But we need to hang in by rule of law, if anarchy were not to prevail. But justice must be done at all costs. Let there be no compromise there.

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  8. A dilemma here. I am against the death sentence in any case so I don't want anyone to be sentenced to death, whatever they have done. Having said which, I was vociferous in my protests at the time of the rape, blogged about it, marched on the streets, signed and started petitions. Not once did I shout with the 'death for all rapists' gangs. Punishing rape with death will only ensure that the next rapist murders his victim as well as raping her. How will that help?
    But it's brave of you to write about this touchy topic and you've done it well.

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    1. Agreed Kalpana. I never said that death is the only punishment for rape. My submission is that Courts should be freed from the handicap of not being able to decide whether an accused should not be treated as juvenile even though he has committed the most abhorrent of crimes, unfathomable and alien to abilities of a juvenile.

      As for your point of no death for rapists, it is a very debatable issue. Though I agree that, it risks the danger of instigating the rapist to murder his victim to wipe out evidence, there is also a possibility of the prescription of death sentence working as a strong deterrent against those contemplating rape.

      Thanks for reading Kalpanaa and sharing you valuable views

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  9. Very neatly, rationally and forthrightly put up points of action. There are more considerable points I'd like to add in my blog and I also absolutely agree with Kalpanaa on this. A lot of change has to happen as only few small won't help. Its also basically teaching children to respect themselves and girls so they become caring and sensitive individuals. It all starts from the root of our patriarchal setup.

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    1. Oh, so right you are when you suggest that teaching has to start at a very nascent stage so our children grown up to be loving and caring souls. Thank you for your valuable views.

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  10. Absolutely wonderfully writ about the change that needs to shake our judicial system. And I agree with Kalpanaa too here that a death sentence can become a bouncer and hit back on our faces like a double-edged sword. But I want to get to the root of all this which is, teaching children to be respectful and sensitive of the opposite gender. To break the rules of the patriarchal society our country stems from.

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  11. An excellent and appreciable post

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  12. What a brilliant thought-provoking piece. Indeed food for thought for the Indian judiciary. I totally second every single opinion you have put forth here...wonderfully articulated!!!

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    1. Thank you Siddharth for reading and sharing your opinion.

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