Law-making amid moral outrage
Legislators acting in
response to moral outrage seen on television and during street protests and
being apparently influenced by the importunate gaze of victims of crime from
the gallery, does not augur well for sound law-making. It may not be right to characterise
the quick passage of the Juvenile Justice
(Care and Protection of Children) Bill in the Rajya Sabha as a hasty move because it has already
been passed in the Lok Sabha in May 2015. The draft too had been slightly
modified before that, based on a February 2015 report of a standing committee
of Parliament. Yet, it is difficult to overcome the impression that some members
may have been gripped by a bout of moral panic after the release of the
youngest convict in the Delhi gang rape of December 2012. The seeming sense of
urgency was undoubtedly influenced by a section of the media demanding
‘justice’ after the convict was released from a Special Home on completing his
three-year term there. An impression is sought to be created that the country’s
collective conscience demanded that a tough law be enacted to ensure that
juvenile convicts committing heinous crimes do not get away with light
sentences. An edifying aspect of this legislative episode is that there are
enough voices around that understand that restorative justice is best ensured
for this underclass by addressing the fundamental problems that create juvenile
offenders in society in the first place, by ensuring universal access to
education and social care for all children.
The Bill, which contains progressive aspects
such as streamlining adoption procedures and extending the law’s protection to
orphans and abandoned children, still suffers from the problems highlighted by
the parliamentary panel. The government, unfortunately, did not accept the view
that children in a particular age group being subjected to the adult criminal
justice system will violate their right to equality under Article 14 and the
objective of protecting children in Article 15(3) of the Constitution. It,
however, dropped a clause that provided for treating those who had committed
crimes before reaching the age of 18 but were apprehended after they turned 21,
agreeing that it was unconstitutional. It extended the period of preliminary
assessment (the original draft called it ‘inquiry’) by the juvenile justice
board to determine whether a juvenile offender should be sent for
rehabilitation or tried as an adult, from one month to three months. The
board’s assessment will still be subject to judicial review and may set off
litigation over whether one 16-year-old was let off lightly or another was
wrongly sent to an adult court. Such decisions may also be influenced by the
prevailing public mood. It would have been wiser to have let the law stand in
conformity with the UN Convention on the Rights of the Child, which advocates
equal treatment of all children under the age of 18. The difference between sober assessment and
mercurial action cannot be more starkly emphasised.
