Monday, February 4, 2013

Major crime -minor punishment ?- Subramanian Swamy

(An article "when  crime is'nt minor" by Janata Party President Dr. Subramanian Swamy  ( Pioneer) is being reproduced here.  )

The juvenile accused of the Delhi rape case is not a petty unlawful who could be reformed. Instead, he acted like a hardened criminal who knew what he was doing. Imagine if Ajmal Kasab was a minor: Would we have handled him with kid gloves?
Centuries ago, a great thinker called Plato had stated what has now become a real-life scenario in India, “Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.”
On the unfortunate evening of December 16, 2012, a 23-year-old girl, a budding physiotherapy student, and her male friend were awaiting a bus at the Munirka bus stand around 9:30 pm. One bus conductor invited the two youngsters to board his private chartered bus on the pretext of dropping them to their destination. Once the girl and her friend boarded the bus, they realised that the conductor was a malicious person who, with four others, started making lewd advances. The male friend tried to intervene but was overpowered and beaten up with an iron rod. The girl kept fighting but was hit hard and fell down.
Thereafter, all heavens fell on the poor girl. On the floor of the speeding bus, the bus conductor and the five others, including the driver, took turns to rape her. But this was not enough for the bus conductor: He raped the victim twice, once while she was unconscious due to the trauma inflicted on her. Then, he inserted an iron rod into her private parts to wrench out her uterus as well as intestines. He explained to his associates that it was necessary for the destruction of evidence. After an hour of this inconceivable savagery, the victim and her male friend were stripped naked and thrown out of the bus into the freezing winter night.
After some delay the victim was admitted to Safdarjung Hospital where multiple surgeries were done to save her life. She fought bravely to live and in great pain conveyed her mother to “never let that conductor escape from law”. But the damage was so severe that even transplants of her organs were of no avail. On December 26, the victim, who displayed indomitable spirit to live against all odds and her determination to punish the guilty, was sent to a Singapore hospital in a comatose state to avail better treatment. But it was already too late by then as the girl breathed her last on December 29, leaving behind a nation whose conscience was totally shaken by the brutality of the incident. Everyone thought if this could happen in the most secured zone of the Capital at a time when Delhi was buzzing with people, then no one was safe in the country.
But the question remains: Why do we need to tell the account which happened one-and-a-half months ago? The story needs reiteration because it tells us that the bus conductor, who now claims to be a minor (below the age of 18 years), is not a petty unlawful who could be reformed; instead, he acted like a hardened criminal who knew what he was doing; he committed the act eagerly and tried to destroy the evidence of his heinous crime.
Also, the fact that the bus conductor acted swiftly to claim his ‘minor-hood’ shows his cold, demented mindset. He himself told the police that he was a juvenile and hence enjoyed special protection and waiver from criminal law. The police at the inspector level were stumped. A hidden hand moved swiftly to make the police “respect the law”, which is codified for delinquents under the age of 18 years in the Juvenile Justice Act, 2000 and as amended in 2006 and 2010.
Had this 18-year cutoff not been there, the accused would have been prosecuted under Section 83 read with Section 376 of the Indian Penal Code (IPC) and received a minimum punishment of seven years of imprisonment. But the trouble with the laws these days is that criminals know their rights better than their wrongs.
The accused was a few months short of 18 years of age and if we all acquiesce, he would not be prosecuted under IPC but “reformed and rehabilitated” in a homely atmosphere under Sections 2(g), 15 and 16 of the Juvenile Justice Act (2000), under which after a maximum of three years he would be let free. Even Ajmal Kasab, involved in the dastardly 26/11 Mumbai attacks, would have been treated ‘humanely’ had he attacked India when he was a few years younger.
The inspiration for this Act came from the United Nations Convention on Rights of Child 1989, the United Nation Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules) 1985, and the United Nation Rules for Protection of Children Deprived of their Liberty 1990. India is a signatory of the above mentioned conventions and rules. The Preamble and the statement of objects and reasons of the Act state the same expressly and categorically.
This Act is a piece of “beneficial”, not criminal law, legislation and has been formulated to protect the innocence of our nation’s greatest asset — its children and youth. But in the current case, the extreme malice and depravity with which the accused has allegedly committed the crime shows that it is not the action of a juvenile delinquent who the law supposes to be of tender age and mind and not fully capable of being responsible for his actions, but rather these are actions of the most evil of men for whom this beneficial legislation clearly is not meant.
The question for the nation is: Should we allow the cold print of a law, the Juvenile Justice Act, framed for children committing crimes like pick-pocketing, bicycle theft, etc, be used unthinkingly to benefit, by exempting from prosecution under criminal law, those committing heinous crimes such as rape and murder, which cannot be committed unless the culprit knew what he was doing.
Also, the Act is not in complete consonance with these conventions and rules. The Beijing Rules 4(1) describes the concept of age of “Criminal Responsibility” as for which there are various factors which have to be considered in deciding when and at what age would a juvenile be held criminally responsible for his/her actions. These factors include but are not restricted to moral and psychological development, individual discernment and understanding, seriousness of the offence involved, record and previous history of the juvenile, etc. Furthermore, there is no blanket ban or prohibition in not holding the juvenile accused accountable for his offences.
Article 17.1(c) of the Beijing Rules state that even though endeavour is to be made to avoid incarceration in certain situations/offences, sentence of imprisonment has to be passed not only to punish the offender but also to protect public safety. The UNCRC 1989 and Beijing Rules 1985 recognised that neither there can be any hard-and-fast rule nor can there be a blanket protection solely on age criteria, and in appropriate cases criminal behaviour has to be punished with lengthy imprisonment.
In the United States, the Criminal Justice System recognises the concept of age of Criminal Responsibility and juveniles who are 14 years of age and above and guilty
of grievous crimes are held responsible for the same. They are tried under the Criminal Justice System like an adult. The law in England recognises the fact that knowledge and ability to reason are still developing, but the notion that a 10-year-old (the age of Criminal Responsibility) does not know right from wrong seems contrary to common sense in an age of compulsory education from the age of five, when children seem to develop faster both mentally and physically.
Thus, we need to read into the juvenile age limit of 18 years, the UN Convention ordained caveat, which India has already ratified in 1992 that this age limit is subject to the Beijing Rules 4(1) and ascertainment of the juvenile not being emotionally and intellectually mature to know what he or she was doing is necessary. This has already been incorporated in Rule 3 of the Juvenile Justice Act but surprisingly, because of the Law Ministry’s poor drafting, left out of the Act itself!
Hence, the UPA Government must issue an Ordinance to clarify that a juvenile accused as below 18 years is subject to satisfying Rule 4(1) of the Beijing Rules; otherwise, the juvenile accused will be tried under the IPC. The juvenile accused must be made an example of today to keep our faith in our legal system and to provide justice to the Delhi braveheart.
I conclude with the words of Mahatma Gandhi: “It would conduce to national progress and save a great deal of time and trouble if we cultivated the habit of never supporting the resolutions either by speaking or voting for them if we had not either the intention or the ability to carry them out.”
The writer is a former Union Law & Justice Minister, and acknowledges the research assistance of advocate Supriya Manan