By Swagata Raha
The whole debate about 'who is a child', albeit in a different context, has cropped up again with the Supreme Court on Monday urging the Parliament to consider more “rigorous” punishment for child sex abuse offenders. The issue, as the apex court has observed, is the definition of 'child' under the Indian Penal Code. At present, ‘child’ is defined in the IPC as 'any person below the age of 18' and there is no classification between children as young as two or three years and other minors in the context of rape.
The cut-off age for a juvenile delinquent accused of heinous crimes, for instance, came under serious debate when on 31 December, 2015 the President gave his assent to the Juvenile Justice (Care and Protection of Children) Bill. It has now paved the way for the trial of some children between 16 and 18 years accused of heinous offences as adults, based on a preliminary assessment of their mental and physical capacity, circumstances in which the offence was allegedly committed and their ability to comprehend the consequences of the offence.
Debates in the media and Parliament, had as their frame of reference, adolescents involved in murder and rape.
What should have been of deeper concern was how and why children get involved in heinous crimes and what are the protection gaps on the ground in the community to prevent children from being exploited, abused, and tortured.
Take the example of adolescents who are part of armed groups operating in Naxal areas.
During the Eastern Region Round Table Conference on the Effective Implementation of the JJ Act in 2015, held under the aegis of the one-man Supreme Court committee on juvenile justice, the impact of insurgency on children in Chhattisgarh and Jharkhand came into sharp focus.
What should the state’s response be towards such children?
Surely, the armed groups will not stop recruiting children between 16 and 18 years because they can now be tried as adults. The exploitation of their vulnerability in fact starts much earlier.
In June 2015, the secretary general, in his report to the Security Council, detailed the modus operandi of armed groups in Bihar, Chhattisgarh, Jharkhand and Odisha who recruit six to 12 year-old children, train them as informers and impart training of crude weapons. The children are then moved into specific units for training on the use of weapons and improvised explosive devices.
The report also noted that “children are reportedly threatened with the killing of family members should they escape or surrender to security forces”.
This also holds good for children in certain parts of our cities who are involved in gangs and forced into committing theft, robbery, drug-trafficking and violent crimes.
The new law defines ‘heinous offence’ very broadly to include “offences for which the minimum punishment under the Indian Penal Code (IPC) or any other law for the time being in force is imprisonment for seven years or more”.
Based on this definition, there are at least 46 offences under which children in conflict with law can be tried as adults. This includes offences like trafficking, dowry deaths, acid attacks, robbery or dacoity with an attempt to cause hurt or an armed weapon under the IPC.
Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that criminalise possession, sale, purchase, transport of commercial quantity of certain drugs like poppy straw, opium poppy, cannabis and psychotropic substances also fall under the ambit of this definition.
The use of prohibited arms, membership to an unlawful association, and participation in a terrorist act are also offences for which some youngsters between 16 and 18 years can be tried as adults.
The lawmakers assumed that young persons are autonomous beings capable of making a conscious choice like committing an act of terror, peddling drugs, or committing gang rape. This is fallacious given the slow maturation of the adolescent brain, the incapacity of young persons to extricate themselves from antisocial situations, lack of foresight, and their vulnerability to influence.
The JJ Act, 2015, criminalises the recruitment or use of any child for any purpose by a non-state, self-styled militant group, or any adult or adult group using children for illegal activities. It also criminalises the use of a child for vending, peddling, carrying, supplying or smuggling intoxicating liquor, narcotic drugs or psychotropic substances.
In a study commissioned by the National Commission for Protection of Child Rights and carried out by National Drug Dependence Treatment Centre (NDDTC) and All India Institute of Medical Sciences (Aiims) on substance abuse among children in India, a majority of the 4,024 interviewed reported having used a variety of substances such as tobacco, alcohol, cannabis and inhalants.
Exposure to drugs takes place within the family, as 60.1 percent of out-of-school children and 51.6 percent of school-going children had a family member using substances.
Reaffirming the peer influence factor, 82.4 percent children shared that they had close contact with friends using substances and 40.6 percent cited peer pressure as a factor that prevented them from quitting. The study also revealed that 18 percent of children living in homes and 29 percent of children on the streets “indulged in sexual behaviour under the effects of substance; 16.9 percent and 20 percent (respectively) indulged in sexual behaviour in exchange for either substances or money.
Around 38.7 percent of children on the streets and 15.9 percent of children living in homes admitted to having “done something dangerous to earn money or get food, clothes, shelter”.
A majority of the children stated that they had not reached out for help (67.7 percent) and a dangerously large number (43.8 percent) felt they did not need any help.
How should the law view children who are trapped by their addiction and commit a heinous offence to feed their habit?
Finally, how should we deal with a 17-year-old boy egged on by adults around him to prove his manhood by raping a woman?
While there is nothing child-like about rape or violence of any kind, assessment of a ‘child-like or adult-like mind’ in this context is equally absurd. The question really is whether we can impose the same degree of culpability upon adolescents whose brains have not fully developed and who lack the neurological brakes to prevent them from acting on impulse in highly charged situations. The injuries they inflict may be the same but their culpability is not.
By passing the JJ Act, 2015, Parliament has effectively deprived adolescents of the protection they need to tide over a transient and turbulent phase of their lives. Instead of strengthening the accountability elements of the juvenile justice system and intensifying preventive efforts, it has given into the hate wave against juveniles. It prioritises retribution over prevention, counselling, medical treatment, protection and healing.
The writer is a senior legal researcher (consultant) at the Centre for Child and the Law, NLSIU, Bangalore. Legal researchers Aneesha Johnny and Anjali Shivanand also gave their inputs.