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.

Am I Among You?

People here, people there

Like they’re nowhere

Am I too, the part of this world?

I see myself, nowhere

Fake smiles, distressed heart

Cuddling people everywhere

Am I too, the part of it?

I see my ecstasy, nowhere

Challenging life, torn secrets

Imputing games everywhere

Am I too, the same genre?

I see my cynicism, nowhere

Turning backs, seductive traps

Exalting reality, nowhere

Am I too, the same sculpture?

I see my sincerity, nowhere

Insatiable relations, bogus concern

Malice perfections everywhere

Do I need to be part of this?

I see my conjurers, everywhere

Tragic episodes, tensed pulses

Accepting fates everywhere

Am I too, the same beetle?

I see my convictions, nowhere

Nurturing farce, transient dawns

Weary swings everywhere

Am I too, a part of pretence?

I see my resolves, nowhere  

People here, people there

I feel my soul is else somewhere

Am I too, a tear-some fibre?

I see my eyes disquiet, nowhere

People here, like— nowhere

I steer my exasperation everywhere

Am I too, a nuance together?

For, I see my altruism, nowhere….

The Quest

Though aloof of honour, the valour

Symphony

Between 'love and self-respect'

Is consequential;

Love and pride go together

Remember,

As 'a soul within the body'

Spirits up the living.

Let not you unhinge

This beautiful order,

It would

Lean you to the dying dignity

That being;

Put thru a disaster,

To an unending suffocation,

In quest of something,

What would otherwise

Be nothing

But the lively ordeal,

A humiliation,

Yelling in the iteration.

Though different of honour, the valour

Love is ancillary,

When shaped in cacophony...

An Unlike Discourse of an Expert

Words possess a power. They can make and break a person, particularly, when they flow by the side of an expert. Yes. That’s why we love to listen to the renowned personalities. Their experiences provide us a boost at the time of our self-dejection. And, their footprints convince us to appreciate hard work for higher goals.  

But, to this dismay. I experienced something adverse, just recently, when I participated in a week-long workshop at Kashmir University. There I listened to a well famed Advocate and expert of Valley. I always loved to attend the gatherings of this influential speaker, wherever he would speak. He would admire me in terms of his mark as an advocate. However, attending his discourse, this time, was like a ‘horrible nightmare’. It left me distressed and disappointed. Yet, I learned a lot, though negative, by this time. I still cannot rub it out of my mind. What was a session devoted to Article 35A of Constitution of India, turned out to be something inexplicable.

Hitherto, I knew this expert as a ‘motivational speaker’, but in that session I found him as a person who does everything to beat you. ‘Audience attending him were told to come prepared on the issue’. Yet most of them didn’t come so. True it is. Then, those who spoke were made to realise their bleak future. Perhaps he’s a habit of wining. Or, the audience (students) out there hadn’t prepared well on the issue. However, does that infer, he’d beat hell out of every such person who forwarded an argument. Experience says, ‘Experts listen to your statement keenly, point out corrections and suggest a way out’. It nowhere makes an influential person an astronomer.  

What makes me to keep on embellishing words here isn’t my anger or savage.  Though an adverse observation, which previously used to be a sheer motivation. I’m still unable to differentiate between two narratives of the same speaker. First, is he the one, who motivates you to learn more and achieve more? Second, is he a contrary of the first, who’d unleash anger on his addressees? ‘You expose yourself, whenever you speak’, does seem to be a logical procedure to him. What if I apply this touchstone to his speech in that session? Unfortunately, I’m afraid to get an indecisive result.

People present in that gathering weren’t experts on the subject of his discussion. But, learners to note and question. Proving them wrong didn’t require any skill. They couldn’t fit in parameters of the speaker. I do acknowledge they were ignorant on Article 35A. But, then, in his many decades long career, where lies his contribution? To this I’m reminded of a saying, “An offshore person’s obliviousness will not cause any damage to aquatic life, but an in shore’s, certainly will”. Yes. The infield advocates should realize this shame, at par, than those, who are yet to foot-in. ‘State has hired ‘outside counsel’ to defend Article 35A’, is not an infamy for me, but for one who’s termed as a living legend of Kashmir. Since, it’s he who said, “One generation cannot compete with other”.

‘Stop. Don’t say anything. You don’t know. You’ll damage our next generation’. These are some expressions which he unwarranted to censure people, who’d speak. Owing to this, I wonder, if he’s the same personality I’m aware of. How he can disapprove of something and wouldn’t say what lies beneath. He ought not to be so. People approve of him. I’m baffled, if it was his aura of teaching. For no teacher creates an atmosphere to show off his monopoly over something. Instead, he encourages to plug the gaps, and doesn’t not discourage. I observed the pale red demoralized faces of present students. Whether it was a girl or boy, they wouldn’t speak on account of dejection. For they saw, one who speaks has to lose badly.

Whether or not I should have attended that session. Nevertheless, it caste a shadow on his impression on me. My perception for him may not be absolute. But, I’m sure no expert ever tries to win o’er. He always creates a pleasing environment. He responds every question, very politely, may it come from a boy or girl. I believe that everyone is ambitious in his/her life. No one would want to be addressed in a way that he develops negative vibes in converse. Yes…, if such is the case, I must say ‘No’ to these kind of ‘Experts’ and ‘Sermons’.

Oasis in a Desert

Never fall-back, face everything with determination. 

For sure, you will be victorious at the end

There is that one yearning soul, who never felt his thirst until he glimpsed a spring in the middle of a desert. So adorable, captivating or enchanting that it took him only a fraction of second to comprehend its value.  Paradoxically, the Oasis, we are talking about is rigidly showing a disregard to the desperate requisition[s] made. It (Oasis) addresses him, “to pass away, the pure water available here is not meant for you. For sure, you deserve not to afford it. It is so costly that you cannot even imagine affording it”.

The sad soul is repeatedly being pushed off, put down & mercilessly being dejected.

Regardless of what he is being said and directed for, he keeps on insisting, requesting & petitioning. That he is not willing to give up.

Initially, he was not feeble, but, some (self-created) ordeals have made him lose some fortitude. Now he goes unconscious. At times he falls down. For some moments, he does become silent.

Despite that, as soon as he comes to life again, he finds himself in the very deplorable condition, near the same reservoir, with the same intensity of thirst. So for the time being, he once again realizes the purpose of traveling to the oasis. Thereby, it inspires him. He gets overwhelming hope. Though he is still thirsty, however, time and again he won’t be given even a drop of water in mercy. Ruthlessly he gets demoted. But, what keeps him alive is the intention to live on to hope and dream.

He holds onto beseeching for some amount of water, but of no value. This time he is purposely being disheartened to not drink the water, he pledges. “For it is poisoned. You will die. Get some fresh water from another pond, which may be nearby”, with these words he is ignored.

When, he regains his conscious, yet, another time. It is being said, “The cold water you ask for is polluted. You’re fooled and deceived by its shape. It has [no]thing kept for you. Except that you’re allowed to peer at”.

Against this, what seems [un]realized is, the oasis he has reached, happens to be at a place which is bleak outside. There is nothing except the hope of this reserve. Had been there something else, perhaps, the fate of this wandering soul would have melted and greeted that.

The spring, which will quench his thirst, and put in a new life in him, is definitely passing through agony, as is evident from its location. But, it is so appealing spring that it is utterly ignorant of its true fascination. So magnetic and striking that it has come as a blessing for the desperate man, in a place where nothing, but only fate meets destiny. Its serenity has made him felt that he is yet [un]dead. Its essence for him is such that it cannot be put into words.

Nonetheless, whatever endeavors, pledges & attempts he may make. All gets struck down and yelled upon by the glamorous spring. It seems not bothering about the repeating calls from the thirsty soul. It keeps on watching, how the person, in an urge to quench, will die while soliciting for a savior. Though it knows he is murmuring. It still is freezing, readily, in refusal to the soul of least recognition.

Whether it is a crystal clear ‘No’, or it is like his ‘forbearance’ is being examined. Whatever! It cannot break him down.

The striving soul’s morale to stand there in extreme ‘heat & humidity’ may result in his going-into-unconscious. But, the oasis has to medicate his quench. It has to prevent him from dehydration. Because he didn't go there, his path and luck made him land there. He happens there not to pass on like others do; He reach[ed] there to get involved in the very delightful spring of sweet-fill-in. He knows there lies nothing outside. It is all dreadful for him to even envy for what lies in the surrounding.

The blessed soul is though stoic, but he has been told by someone, “You get everything, provided you ask for it with a true heart”. Thus he has asked for this oasis of beautification.

He is honestly examining, where this belief will take him…! Whether it the with poison or cool clean water? It doesn't matter for him. For, he’ll love to die again and again by tasting its poison. Now, if it is the thing which may quench his thirst; he, if allowed, would immensely and unstoppably be quenching his thirst throughout his life, from the-only-oasis. Until then he keeps on asking, praying, wishing, hoping, aspiring and conveying, proposing or waiting for the affirmation of spring, which has the ‘blended beauty and the tantalizing aroma’…….

Mashooq Yousuf Malik

The Doubt People Possess

After all, we are humans. We can fall prey to anything.

 May it be a doubt or contagious disease.

People appreciate; then they ignore. People trust; then they get hurt. People build; then they destroy. People plead mildly, and then they swindle, too. But there exist some who can realize; resort trust; build firmly; remain honest and illustrate the life to the extent of inspiration. 

Enough literature is written to describe the theories- of right and wrong, confidence and doubt. Yet, every generation brings out its own way of fear, suspicion and craft of living. 

Talking of which (doubt), reminds me, “We are a generation of broken hearts and catastrophic souls”. We get killed and cheated each day. We get attached and go apart. We get vegetated, then, we start life again.

But, do we know where things are good for us. Or, we don’t wish them to be good. We want them broken, so that they may not create much of fuss. We live in fractions of time, why would we want to talk for life. Our life begins on foreign land and ends with a see off. Our perceptions change like a chameleon’s character. Our life takes a rebirth, but, before that, we never lived once.

We were people, but, we started to haunt. We were social, and then we got stuck with freebies (as of Wi-Fi). We used to be original, but we became manufactured. Our hurts are more than our wealth. Our joys don’t overlap. We prefer to be an introvert, and then we share life. We want to live, but, then again we don’t want to miss a much. Our miseries are more often self-created. Our beliefs are becoming disloyal. We weep, and then we find a reason to smile.

We search. Again go for research, but we conclude that ‘alternatives’ should be there to make us happy. We maintain a network, which becomes a ‘chronic disease’. We name relations, which we never mean.

We judge people on others estimation, and on our own. We miss opportunities for meagre flashes; fallback, not to face the world. We let the things go; don’t want them to stay around. We become broken; however, we don’t let the world feel. We know things are polluted; then again we buy some. We love taste than that of smoothness. We equate between love and friendship. We keep wounds open to feel the oozing of blood.

We fall for one thing and compromise on another. We create disaster under the garb of falsified sympathy and affection. Then, again we repent of not dying the way we had prepared.

We believe in destiny, but we don’t want to strive. We become moderate. And, then, far away from props, we start cloning the destiny, which at times kept knocking on the door, until the dusk put it away.

In the backdrop of all of this, we forget who we are. We rely on nothingness. We pretend that history repeats but prefer not to create. We sideline ones who are being sent by destiny. We sleep to ease burdens, whereas someone(s) remains awake in thoughts. We feel all people are same; sailing in one boat. Then, we label them. Warn ourselves against them. We agitate against caste and classism. However, we practice otherwise. We refuse to be social. But, we don’t acknowledge the adversary of refusal.

We pledge to be happy, but we push away happiness. We believe in nature, but don’t want to be part of the fascination, sorrow and misery. Mostly ‘we don’t let our questions to be answered, reasons to be justified, and fate to be accepted’. We keep examining the real objects until they get buried… For, we’re people; we raise and live in doubts… sometime to clarify the truth, but, most often, to transform the reality and disregard the honesty.