This Article is From Jan 01, 2016

No Regrets For Comments On How I'd React To Daughter's Rape

The Winter Session of Parliament had little to show for itself in terms of legislative business. But if one landmark Bill made its way past the Rajya Sabha and became a full-fledged Act, it was the Juvenile Justice (Care and Protection of Children) Bill, 2014. This was both an important and, I must admit, controversial Bill. It had many critical clauses but became known for primarily one reason - the age at which a juvenile accused of a crime could be tried as an adult being lowered to 16 from 18.

This is the third Juvenile Justice Act. The first was enacted by the Rajiv Gandhi government in 1986. The second, which raised the age from 16 to 18, was enacted by the Atal Bihari Vajpayee government in 2000. The third law will be credited to the BJP-led NDA government currently in office. Truly speaking, I feel this is an Act that should be marked against the Trinamool Congress' name. I believe we were instrumental in helping pass it.

As Parliament approached the close of the Winter Session, the issues underpinning the Juvenile Justice Bill came into the news. The anniversary of the ghastly rape in Delhi on December 16, 2012, was a trigger as were the anguished protests - on the issue of women's safety, not specifically juvenile criminals - by the mother of Nirbhaya, the victim of December 2012, and friends and associates.

Astonishingly, the two leading parties, the so-called national parties, seemed least bothered. The Congress had opposed the Bill in the Lok Sabha. It was not allowing the Bill to come up in the Rajya Sabha and was obsessed with the National Herald issue. The government was making all the right noises on television but, day after day, was not even listing the Bill for a debate and a vote.

This left us in the Trinamool Congress distraught. Did the Bill have its shortcomings? To be sure it did. Between a good Bill, a better or very good Bill and a perfect or ideal Bill, it is obvious that the ideal Bill is best. Yet, one cannot wait indefinitely, and a good Bill - which was what this Bill was, having been approved by the Lok Sabha - needed to be given its due. It could be amended later if necessary.

And so we made a case in the Rajya Sabha and forced the government to list the Bill and the Congress to agree to discuss it and eventually back it. This was why I made an impassioned speech in Parliament, emphasising that if my daughter - a young lady I care for deeply - would have been the victim of 2012, I would have been tempted to buy a gun and kill the criminals.

These remarks evoked some reaction. I was asked if I regretted them or wanted to withdraw them. I refused. They were made in a certain context, to describe the passions that such crimes evoke and the mood among ordinary people. They were intended to galvanise the House into action, by emphasising the urgency before us. I have no regrets.

But it was important to separate the debate around the Juvenile Justice Bill from the aftermath of the Nirbhaya tragedy. This was not an issue of positing women's rights against children's rights - both are important and as a society and a polity, we have to find a balance. Also, it needs to be said that according to the National Crime Records Bureau, only 1.2 per cent of all crimes under the Indian Penal Code are committed by juveniles (2013).

The idea behind this law is to take cognizance that adolescence and adult-like psychology, physical development and behaviour patterns are beginning to emerge at a younger age than hitherto seen. In Germany, to take an example, juvenile justice laws cover those between 14 and 18. The new law will give the Indian justice system just that much more flexibility.

As I repeatedly said in the House, the fundamental purpose of the Bill is to reform and to impose a penalty only as a last resort. It has many positive points, including the new rules for adoption - notwithstanding the recent and regrettable criticism by the Minister for Women and Child Development of the adoptions facilitated by the Missionaries of Charity. The Bill (Act now) is gender-neutral, takes care to protect differently-abled children from molestation and exploitation, and comes down hard on the use of children for terrorism.

It has detailed references to the Juvenile Justice Boards. Implementation is the key. We are supposed to have one Juvenile Justice Board per district, but only four of our 29 states meet this criterion - Madhya Pradesh and Odisha (100 per cent) and Bihar and West Bengal (over 100 per cent, that is more than one Board per district).

The Juvenile Homes that the young perpetrators of crimes are placed in must be institutions of reform, education and rehabilitation - rather than just incarceration. There should be no automatic release of juveniles after three years. Let there be an assessment of each case after three years, and if need be, the inmates can be retained for five years or even longer. We need flexibility because no two human beings and human cases are the same.

There seemed to be contradictions in the law. For example, the penalty for offering drugs was more than for selling a child. When I said this, the Finance Minister intervened to clarify that legally the greater punishment would prevail. Section 370 of the IPC, dealing with human trafficking, prescribes a punishment of seven to 10 years. But Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985, says higher than minimum punishment can be given if a drugs-related offence is committed in schools or facilities for children.  

I wish the text of the law had been explicit and better drafted. I felt this way too when it came to Clause 88 of the Bill, which says the offender will be liable for punishment under such law which has punishment in greater degree. Since the punishment for offering drugs and selling a child is clearly prescribed under the IPC and NDPS Act, the punishment in this Bill should also have been in line with existing laws to avoid any ambiguity in determining the punishment for committing such serious offences. As such, that quest for an ideal, wrinkle-free law must continue.

(Derek O'Brien is leader, Parliamentary party Trinamool Congress (RS), and Chief National spokesperson of the party)

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