The authors of the book Juvenile, Not Delinquent, along with former Supreme Court judge Justice Madan B. Lokur and senior advocate Vrinda Grover, called for a more nuanced discussion on juvenile justice.
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CAN the rights of a victim and a juvenile accused exist together? Is it necessary that one must be sacrificed to uphold the other? Is a juvenile offender a victim or an inveterate lawbreaker? Are these questions purely academic?
Juvenile, Not Delinquent grapples with these questions, but it is not an academic book, clarified one of its authors, children's rights activist Enakshi Ganguly, at the outset of the book's release on Thursday at the India Habitat Centre in Delhi. It is a book that argues that, more often than not, juvenile offenders are victims of a variety of societal factors and, therefore, the best way to deal with them is through compassion, not retribution.
Bringing their lengthy experience in law to the discussion, former Supreme Court of India judge and a current judge of the Supreme Court of Fiji, Justice Madan B. Lokur, accompanied senior advocate Vrinda Grover on the panel. Journalist Mandira Nayar from The Week magazine moderated the discussion.
Ganguly, who founded the HAQ: Centre for Child Rights, a child rights non-governmental organisation, and co-directed it till 2018, was present at the event with her co-author Kalpana Purushothaman, a member of the Juvenile Justice Board, Bengaluru (Urban) and an adjunct professor at the Indian Institute of Psychology and Research.
An otherwise placid discussion became tense when an audience member asked what was so problematic about trying juveniles as adults "when the juvenile in [the] Nirbhaya case had been the most brutal". Ganguly and Grover, among the few people in the room who had read the juvenile's chargesheet, were quick to issue corrections: the police had withdrawn this observation and the Juvenile Justice Board investigating the matter had never classified the juvenile offender as such.
"Sadly … this news was tucked away in the back pages [of newspapers and media reports], and hence, unread by most," the authors note in the book.
But the lingering tension in the room mirrored the long half-life of media-created myths.
For Ganguly, the above instance might have triggered a feeling of déjà vu.
Ganguly was at a book reading at Café Turtle in Delhi where the conversation had veered towards how children these days 'mature faster', and then to how the 'juvenile in Nirbhaya case had been the worst offender'. Renuka Chatterjee of the publishing house Speaking Tiger was present at the said book reading. Ganguly and Chatterjee's meeting after the event led to this book. Perhaps due to the frustration with the lack of empathy among fellow citizens.
But empathy is a "tall ask" according to Grover, who believes that "the system has pumped hate into the society" and the 'empathy argument' alone would not get people to support the principles of juvenile justice.
As Ganguly recalled, after the Nirbhaya incident, juvenile justice activists were seen as adversaries of justice for the victim since they were arguing for protecting the law on juvenile justice. The media too had turned the debate into one between "the sufferers and those who did not seem to care for the victims", which was not based in reality. "It was a disturbing phase," Ganguly said, "with people drawing different interpretations of human rights".
Adding to the above, Grover said, "Not all rage was for justice for the victim… For some, it was about freedom to live without fear and seeking accountability (for the wrongs already committed)." Echoing Ganguly, Grover expressed her belief that the rights of victims and the accused are not diametrically opposed to each other; one doesn't have to be sacrificed for the other to be upheld on the pretext of justice.
"Justice can't be about giving the State more power," Grover said, referring to the demands to increase penalties for juveniles in the aftermath of the Nirbhaya incident. According to her, the question central to all discussions about juvenile justice should be: What is in the best interest of the child?
"Nobody is bothered about children… You can't expect a 13-year-old to go on a dharna," Justice Lokur lamented.
Describing instances of visiting observation homes in the erstwhile undivided state of Andhra Pradesh as a judge of the high court and later in Jharkhand, he said he had found them overcrowded and the living conditions "underwhelming".
Observation homes, as prescribed by the Juvenile Justice Act, 2015, are institutions where children in conflict with law are kept during the pendency of any inquiry regarding them. Observation homes may be established by a state government or a private organisation under an agreement with the state government.
"Judges must get out of their ivory towers," he urged. "Kannabiran had said there is no mechanism for judges to step out and see," he said, referring to the late advocate, author and human rights activist K.G. Kannabiran.
He continued, "There is so much happening on the ground of which people in legislative departments are not aware." He called for the need to have discussions with those slated to be affected by legislation. "There are experts, but you don't talk to them— and the Parliament does not discuss a subject for more than five minutes."
Agreeing with Justice Lokur, Grover said, "Judges need to be sensitised". She went a step further to implicate police personnel, who are the first institution that children in conflict with law deal with. As per Grover, there is no system for police personnel to get punished for unfair or abusive treatment of minors accused of criminal offences. "The most that happens is, they get transferred, often to the police training academy", which is colloquially called a 'punishment posting'. "There is too much back-scratching in the system."
As a member of a Juvenile Justice Board, Purushothaman said, "I am more interested in knowing about the lives of children", as opposed to details of offences allegedly committed by them. "Listening is at the heart of juvenile justice", she said, adding that she is often asked by others on the board, "Madam, itni baat kyun kar rahe ho?" [Why talk (to the juvenile) in such detail?]
The first time Purushothaman wished to rule differently from others on the board, she was told, "You can't write a dissent. This is not the Supreme Court". But she went on to write a dissenting opinion anyway in not just that case, but fourteen others, "all of which were based on neuroscientific evidence and constitutional law, and were upheld by higher courts," she said.