Reconsidering the Sentencing of Child Offenders

Also published here http://risingkashmir.com/article/child-offenders-and-weak-deterrent

‘Handover some hi-tech gadget to a five-year old kid, he’ll help you to explore— what you couldn’t.’ He’ll pick up— even before you begin. This intimates, modern children aren’t just acutely sharp, but sassy too.

Now, look up the crime statistics of the last decade. There’s an upsurge of 69% in the juvenile criminality (Ministry of Statistics and Program Implementation). In 2001, only 16509 such incidents were reported. But, in 2015, number escalated to 41385.

Don’t stop over here. Spot on— You will find, children driving vehicles. Go to the school(s)— teachers rarely reprimand the students. Walk down a lane, young boys are too occupied with smoking. Even they aren’t alien to drugs. Take a survey, you will find— they work too; earn for their family. A larger percentage of them supervise the households. They have taken up the responsibility, which’s far off their childhood.

Despite this, they’re still considered as minors. They cannot be punished— what otherwise is punishable. They may commit an(y) unlawful act. Law has to condone that. They are, however, yet to cross the threshold age of 18-years. So, the State’s law too doesn’t hold them criminally liable. They have to be given the lenient treatment.

The notion to espouse a ‘Lenient Approach’ for child offenders, is due to cognitive faculties. A child below 18-years, lacks the abilities including— imagination, consciousness, perception, thinking, and judgement. To punish him at this stage is amenable, neither in India nor in J&K.

There are countries wherein ‘Punitive Approach’ is adopted. Take an example of Saudi Arabia. In comparison to India, it has the least violent crime rate. It ranks higher, 25^th on Safety Index— 2018/2019. Whereas, India ranks lower, 57^th. And, it has the higher Crime Index, 43 points, than Saudi Arabia, 28 points.

In ‘Punitive Approach’ countries, the age of criminal liability is determined by ‘Natural Puberty’. No sooner a child reaches the age of 12-years; he’s held criminally responsible. He’s presumed to be a grown up on his biological growth. That, therefore, puts the cognitive growth out of relevance.

Point taken is— Should a child be penalised at such stage? Or, it’s better to wait for the cognitive faculties to develop? Well, to assert the imperative— let’s dig deeper.

Analytically, the cognitive growth takes place in two phases. First, from 6-12 years, with an ability to think concretely. And second, from 12-18 years of age, with the adolescence of complex thinking. It’s the later stage, in which child focuses on personal decision-making. He begins to question the societal norms. Drafts his own code of ethics. And, chooses his areas of interest. But, it’s a process-incessant, and may go beyond the age of 20. Besides, it’s based on the psychology of a person. There’s no guarantee of absolute maturity. That substantiates the fact— ‘it cannot be a conclusive test to determine the criminal liability’.

On the other side, ‘biological growth’ renders a person capable of doing more complex things. Let alone the ‘accentuate release of hormones’. There are factors like— aggression, intolerance, violence and many other things, which a child experiences in his puberty. Like, a hungry man is tempted to food; Same way a child holds his impulse to indulge in non-conformity. He may incline towards the deviant activities, ranging from rashness to the unruly desire of sexual profligacy. When such conducts are left uncorrected, the cognitive faculties get contaminated. Now, how should we prevent that? Let’s ascertain.

Whenever a person intends to do an act. Two elements shape the event. The ‘Internal, and External Control’. ‘Internal Control’ is a private affair. Something, which is intrinsic in nature. It can be infused by parenting as well as family environment. Religious, and ethical principles too influence it. Subsequently, ‘External Control’ is the public affair. It entails Law, peer groups, and Schooling. Law, however, is a prime factor. It needs to have a deterrent effect. It cannot afford to be vaguely lenient. Moreover, internal scrutiny is least reliable in this cosmopolitan. The outer control, thus, becomes fundamental.

Let it be noted. It’s a teacher’s strictness, which prompts the student’s seriousness in class. Once a child assumes there is leniency on some part, he behoves rough. Warn a child against fire— he stays away from it. Allow him to explore it, he not only brings trouble for others, but endangers himself too. No matter, how much delinquent a child is, parents defend him. This in turn worsens his conduct. Same is applicable to a state. Every time it drafts a legislation of ‘Special Treatment’. It weakens the ‘External Control’. And, an individual stops mending his conduct.

Off late, there is an epidemic surge in child criminality. Children are committing most depraving, and heinous crimes. The ‘Lenient Approach’ has become superfluous. A safe heaven too. I agree with the assertion that ‘reformative approach’, is meant to bend an individual’s life. But, the ‘deterrent approach’ has results. Examples are in front of us. Hold a person for the violation of traffic rules, others will institutionalise it. There are states like— USA, England, China, and Iran, where deterrence is part of the process. USA, the torch bearer of juvenile justice, has even retained death penalty for minors, of 17-years age.

Having said this. I think, J&K too should reconsider the sentencing frame for juveniles. If not the whole model, but some elements of deterrence can takeover. I say— childhood has already become an adulthood. Time is ripe to reset the age of criminal liability. ‘Puberty’ is more relevant than the ‘Cognitive Faculty’. It’s former which shapes the latter. The definition of a ‘Child delinquent’, hence, needs to be reconsidered for sentencing.

Who will Judge the Judges?

Also Published in http://risingkashmir.com/news/who-will-judge-the-judges-350504.html

Whether it’s a democracy, or a monarchy— judiciary is of a paramount importance. Thereby, a judge is always expected to be of an eminent integrity. However, Indian judiciary, recently has come into limelight for a several wrong reasons.

First, it was in January, 2018, when a presser was held by the four Supreme Court Justices against the then Chief Justice of India’s (CJI’s) ‘Master of Roaster’ power. Before that, it was the outbreak of ‘Prasad Education Trust Case’, which created a havoc in terms of ‘Corruption in Judiciary’. While, with the elevation of former CJ, Justice Depak Misra— to the post of CJ— the pandemic talks on political involvement did take place. Yet, the same remained individual centric-only.

In relation to the existing CJ, Justice Ranjan Gogoi— it was commonly said that his Lordships is a person of highest veracity. And, is apt for the Supreme Constitutional position. Since, the recent wave of sexual harassment accusations engulfed every small, or big institution. So, it was quite evident, it couldn’t have spared the judiciary too. But, should it have cropped-up at a time— when everybody was contented with the sitting CJ’s uprightness? And, that too against his Lordship’s own person? Nobody, to my understanding, would have anticipated.

It befell as a concern, not because of it being against the CJI. But, because CJ tried it himself. In so doing, contravened an axiom— ‘no one can be a judge in his own cause’. What added a fuel to the fire is, the inquiry by an ‘in-House Supreme Court Committee’ led by Jt. Bobde. Subsequent to which, critics became extremely cynical, contrary to the entire judiciary. Consequently, such people brazenly undermine the eccentricity of this issue. Reasons are—

·         Firstly, it’s not a methodical case of harassment. The victim is terminated from the services by the CJI. Moreover, there’s a separate affidavit filed by an advocate— alleging the ‘racket of fixers’ and a ‘conspiracy against CJ’. An element of reasonable doubt, hence, cannot be eclipsed.

·         Secondly, this issue has cropped up at a time, when every other institution is vilified by the party in rule. And, the Supreme Court is an only-institution remaining.

·         Thirdly, the allegations are against someone— who is already known for his bold-cum-strict attitude.

·         Fourthly, sitting CJ is one among the dissenting judges, who vented their resentment unambiguously to save the-only reliable institution in India.

·         Fifthly, though ‘a bad character’ isn’t relevant, but ‘a good character’ has to be given a weightage under Section 53 of the Evidence Act. Whereas, in the instant case, victim (the disgruntled employee) is labyrinthine in a few criminal cases.

True that CJ shouldn’t have turned into a judge in his own case. Hitherto, we cannot emasculate the eventuality girdling this case. Some critics say, “The matter should have been tried outside the court”. What they fail to understand is, an ‘in-House Committee’ is a court within a court. ‘If you don’t believe on its probe-fair. You cannot ‘accept as true’ the Parent-institution either’. By making this issue victim centric-only, is to tear apart the institution of judiciary.

Let’s consider, this sensitive matter shouldn’t have been handled by the ‘in-House Committee’. But, then who? Primetime debaters? Lawyers himself? Or, the so called feminists? Or for that matter, any other civilised forum? Choose among them. Remember however, if and if-only Judicial institution in India isn’t trustworthy. Then, no one else would be. For— it has the maximum standards of scrutiny. Vigilance. And, the susceptibility too. Thereby, you cannot put it on somebody’s mercy. Once you do that, you set a precedent to craft a dent(s) in its impartiality.

A former CJI, once in a conference said, “The ‘in-House Committees’ are as much necessary to the judiciary, as its independence. Once that’s given up. Independence sine-dies too”. Which, thus nullifies the notion of involving a third party therein & thereto. On the contrary, however, Justice Chandrachud believes, “Supreme Court should include a retired Judge in the panel. The victim should be allowed to have her lawyer. So that the credibility of judiciary will remain intact”. Though, it seems quite generous. But—

·         How far it would shake the credibility of ‘in-House Committee’ procedure of judiciary is a moot point; and,

·         The inclusion of a retired woman Judge would raise a doubt on the impartiality and proficiency of the twin designated women Justices.

Yes, the sexual harassment cases shall be dealt stringently. One needs not to be a feminist for that. But, if same is posed against the institution of highest importance. The solicitation of greater cautious befits the procedure. Thus, the apparatus need to be meticulous. And, the possible reasonability should be grasped. Since, ‘Justice Bobde Panel’ also included the two women Justices— Indu Malhotra and Indira Banerjee. Thus, the outcome shouldn’t be nullified on a mere belief that we didn’t approve it. Conversely, one shouldn’t allow the bias to prevail. When that’s so allowed, no human will remain there to judge another human. The adjudicatory mechanism has to stop somewhere, and an ‘in-House Inquiry Committee’ mechanism is there to serve.

Tailpiece— Women do have encountered the atrocities in the past. But, why should we compromise the legal principle— ‘innocent until proven guilty’? It’s under this paradoxical influence, we don’t allow the fair trial. Hence, the victimisation of justice.