Our Parliament has lost its way with Juvenile Justice Bill
A blunder in its own right, the urgency in passing the Bill was purely emotional.
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Can Parliament pass an important legislation by voice vote? With minimal discussion and an unseemly consensus? Our Parliament is in decline. It has been stopped from functioning by every political party worth its salt. That is hopeless in itself and there is no excuse for it. Question hours was disrupted. Important bills lay impotent. Some bills were passed hurriedly.
But what happens when it does function properly, if it ever does? Its primary job is to legislate and its secondary job to keep government accountable by fearless debate, questions adjournment, upper debates and eventually the confidence vote.
Does it perform either of these legislative and accountability functions? Study the debates from Nehru's time. Compare them with the mess today. The Supreme Court was startled when I read out the Constitution (77th Amendment) to them. The refrain of the debate and constitutional amendment was "Pass it, pass it," with a plea "Aap pass kar dijiye". Quite apart from the unrelenting ruckus in parliamentary behaviour, I am concerned about the quality of Parliament's working, and using the passing of the Juvenile Bill as an example.
The Juvenile Bill was introduced in the Lok Sabha on August 12, 2014. Fortuitously, it was sent to a select committee (later chaired by Satyanarayan Jatiya) whose 264th report, of 90 pages, was placed before the Rajya and Lok Sabha on February 25. The committee was concerned that the data on juvenile crime was based on FIR's and not convictions.
It was also concerned that subjecting juveniles to the adult penal system was destructive of equality (Article 14). It was clear that juveniles apprehended post 21 years of age be treated as criminal adults. The procedure of Juvenile Justice Boards to conclude inquiries in a month was found wanting creating a presumption of guilt. It was pointed out that India is a signatory to the UN Convention on the Rights of the Child (UNCRC) which prohibits differentiation in the treatment of juveniles.
On March 28, 2014, the Supreme Court refused to lower the age of juveniles. Inspired by the ongoing outrage on the Nirbhaya case, the government was unconvinced by the reservations of the Committee on April 22, 2015. With some modifications, the Bill was passed by the Lok Sabha on May 7, 2015, but not without some protests on its incompatibility with the UN Convention.
The Bill lay dormant until December 22, 2015 to surface in a Rajya Sabha debate which was as imperfect and sparse as the emotion that provoked its passing. The Nirbhaya rape anniversary coincided with the public outrage that the juvenile accused in that case was to walk free after three years under observation.
Nirbhaya's parents revealed their daughter's name as Jyoti. The Supreme Court refused to interfere because the juvenile's release was according to law. The outrage increased. Jyoti's mother declared that "crime has won and we have lost". This increased the emotional response. So, great was the outrage that the juvenile, who was to be released on December 21 said that he wanted to remain in protective custody. Minister Maneka Gandhi used this uproar to get Parliament to pass the law - all in one parliamentary day (less than office hours) with a voice vote.
Why was a massive Bill with 112 sections passed virtually without protest, I say virtually because the CPI(M), NCP and DMK wanted the Bill to be re-examined by a select committee. The CPI(M) walked out before voting - the only option open, faced with a parliamentary majority to be cheered on into a voice vote.
The law could not reverse the release of the freed juvenile. To do so would violate the constitutional principle against retroactive punishment. This meant the urgency in passing the Bill was purely emotional. That is why some MPs thought it should go to a select committee and properly debated and considered. The government's data on juvenile crime contradicted Maneka's claim of rising juvenile crime. The debate was curtailed.
Some said it was "spooked by emotion". Maneka carried the emotion further: "We have the parents of the (gang rape victim) sitting here watching us." We cry with them, but can legislation on such a delicate subject be passed on the emotion of revenge? Derek O'Brien of the TMC was all but ready to take out a gun to shoot any rapist.
The Bill has many provisions about juvenility, criminality and adoption in and out of India. In 2013, Mukul Rohatgi (now attorney general) and I had Nisha Bagchi's case admitted which argued that the Supreme Court itself had committed a blunder in giving priority to documentary evidence over medical examination to test the age of a juvenile.
On the court's orders, my clients (Supreme Court, women and lawyers) met ministry officials who in politer language, but not posture, told them to get lost! That mistake which the Supreme Court was prepared to correct remains in Clause 94 of the Bill which repeats the blunder even though the meeting to reconsider this was at the instance of the Supreme Court.
Parliament cannot ignore sentiment but it cannot pass legislation in the way the Juvenile Justice Bill was passed. There are many options that are available in criminal law which view criminality from sentient knowledge at an earlier age. Punishment is not vindictive but reformative. Somewhere we have lost our way.