Whether the young man, accused of being the most brutal of the six rapists on the night of December 16, 2012 should be treated as a juvenile or not is a question that goes to the heart of how we operate as a society. The juvenile justice board has taken his school certificate as his age proof and decided that the accused rapist-murderer was six months short of 18 years when the crime was committed. The most that he can be put away for therefore is three years.
Activists have fought long and hard to change the juvenile justice laws and get the age changed from 16 to 18. They have their reasons — minors are not yet fully mature and therefore not yet responsible for their actions.
They may be physically capable of certain crimes but they may not be mentally, emotionally or morally developed enough to understand them. By treating teenagers as adults and putting them in adult jails, you are guaranteeing that they will remain hardened criminals for life. In some instances, rape laws are used by parents of young girls to prosecute their boyfriends. If two 16-year-olds have consensual sex, should the boy be treated as an adult rapist?
All these points seem perfectly valid. Until you put them up against the other problems. The fact that crimes committed by juveniles — especially rape — have increased by about 30 per cent since the age was changed from 16 to 18. That when a teenager is almost 18 and commits a terrible crime, he is escaping on a technicality and there is no justice there. And most significantly, our juvenile remand homes are hardly fine examples of creating ethical and moral changes in young criminals. Instead, accounts suggest that they are brutal places which only showcase our neglect. We have a high rate of recidivism, which means that reform has hardly worked when crimes are repeated.
There is a danger that this dilemma will fall into the liberal-versus-hardliner argument that we are so fond of. If we do that, we will do ourselves no favours as a society in the long-run. Instead we need to take a cold hard look at all our laws and how effective they are. If we want to be fair to children and teenagers accused of crimes, the pre-eminent step should be to establish and monitor a reform system that works.
If we want to be fair to the victims of those crimes, we need to nuance our laws. All juveniles may not be unaware of the extremity of their crimes. Reports suggest that this young boy enjoyed the brutality he inflicted on the young woman and the use of the iron rod to destroy her internal organs cannot be put down solely to emotional immaturity or blamed on an unhappy childhood. How far can we go with a bleeding heart’s argument without considering the implications as far as justice is concerned? We are and must be proud of the cornerstone of our jurisprudence: all accused are innocent until proved guilty. But have a combination of bad investigations and prosecutions led to too many acquittals in Indian courts? Where is justice then?
I have raised questions but I cannot find a proper answer. The best solution seems to leave it to the discretion of the judges — when a crime is suitably heinous and when the accused is below 18 but over 16, perhaps he or she can be tried as an adult? Perhaps we need to incorporate more psychiatric evaluations into our legal system? And if we are looking towards long-term societal solutions, then we need to pay more attention to those who fall between the cracks. It’s a tough call. But it is difficult to drum up enough sympathy for this young man, no matter how difficult the circumstances of his life. That is why, one supposes, justice is blind.
Ranjona Banerji is a senior journalist. You can follow her on twitter @ranjona