Could Justice Have Been Served For The Juvenile Accused of Jyoti Singh's Rape?

Two days ago, on 22 December 2015, the Rajya Sabha passed a new Juvenile Justice Bill that effectively lowered the age of juveniles accused of heinous crimes from 18 to 16 years. The decision followed on the heels of the Supreme Court of India’s decision to turn down the petition filed by the Delhi Commission for Women (DCW) seeking an extension of the period of juvenile accused of the rape of Jyoti Singh on December 2012. The Supreme Court’s decision to set him free was based on the current provisions of the juvenile justice law. Indirectly blaming Parliament for not having expedited the passage of amendments to the juvenile justice act, which lowers the defining age for juveniles to 16 years, the court asked: “Under what jurisdiction can we extend his detention?”

The pending release of the juvenile sparked heated debate in the nation, which many believe affected the decision of the Rajya Sabha. At the heart of this public discourse was a key conflict: a fight between the notion of retribution versus the idea of reformation—the possibility of a person changing over time. To deny a criminal the opportunity to reform himself, especially since he was below the officially defined threshold of adulthood at the time he committed the crime, is surely a mark of retributive justice. In the case of a brutal rape such as this, however, is justice served by merely adhering to the letter of the law?

It is pertinent to remember that the juvenile rapist was just six months shy of reaching adulthood at the time he committed the crime. Now 21 years old, his criminal record has been effaced from official records, and he is set to have a new “reformed” identity. In the aftermath of the juvenile’s release, Jyoti’s distraught mother Asha Singh blamed the political class for not doing right by her daughter. “My daughter’s name was Jyoti Singh…I am taking her name today and so should all of you…I feel angry, not ashamed,” she said. Two contrasting images—Jyoti’s mother breaking down in front of the camera, and the juvenile perpetrator walking away with a cloth covering his face—underlined the contrary tensions in the case, and signalled a kind of role reversal. As the victim’s family reclaimed their loved one’s identity, the perpetrator hid his. The juvenile will perhaps fear for his safety once he is out on the streets or at home in his village in Badaun, but fear is not a substitute for shame, nor is it penitence for the crime he committed. But remorse, too, is not guaranteed by justice. After it ran into fierce protests from the government and sections of activists and intellectuals, British filmmaker Leslee Udwin’s 2015 BBC Storyville documentary, India’s Daughter, which was based on the December 16 incident, was not allowed to be screened in the country. But those who watched the film would recall the chilling words of Mukesh, one of the convicted rapists. Staring into the camera, he said: “A girl is far more responsible for her rape than a boy.”

Opponents of the juvenile’s release, such as DCW Chairperson Swati Maliwal, argued that there is no confirmation of the transformative or reformative processes, if any, that the juvenile rapist may have undergone during his three-year incarceration in a correctional home. Many social activists and medical experts, opposed to lowering the age of a juvenile from 18 to 16 years, believe that throwing a juvenile felon into an adult prison is a cruel and unkind act that turns society’s back on those whom it is responsible for. If anything, they assert, such a policy flies in the face of reform and is unlikely to change the criminal instincts of an offender. Given that adult prisons are harsh and often violent environments, subjecting a juvenile offender to them—wilfully and legally—is ethically dubious. Without reformative content, prisons are institutions founded on the principles of masculine hierarchy, aggression and violence.

These are strong, important arguments. But the other side of the story—the release of a rapist after three years in detention—is disturbing in its own right. There is little clarity on his present psychological state of mind, or its transformation over the past three years. Welfare officers at the correctional facility reportedly told the media that the juvenile was disciplined and religious, and that he cooked for the other residents of the facility. A psychologist said of him that he was making “an extra effort to become acceptable to others.” Contrastingly, the Intelligence Bureau expressed its apprehension that the juvenile’s cabin mate, a young Kashmiri man, had convinced the juvenile to join jihad after the juvenile’s release, although the claim was not substantiated.

One of the central arguments made in favour of leniency for juveniles under the law is that children lack the experience to comprehend the consequences of their actions in the way that adults do. As human beings develop, they learn based on their social environment and the behaviour of their peers. This is also the central basis for reform, the goal of juvenile detention. However, if it is true that people can be reformed, then it is equally true that we are not determined purely by our biologies. In this regard, it is both a little amusing and distressing to find social activists relying so heavily on an argument based in the immaturity of juvenile brains as a reason to forgive a crime as heinous as this. It is not important to determine whether the juvenile was “the most violent” (as many reports alleged), but rape cannot be considered the same as carjacking or picking someone’s pocket in a park. While peer pressure and a lack of development might explain certain tendencies, it is impossible to say with certainty that those factors drove a 17 year old to rape a woman in a moving bus and leave her for dead. After decades of debunking purely scientific explanations for the constitution of persons, in this instance, it is difficult to justify falling back on a biologically determinist argument.

Lowering the age for juvenile crimes by two years is unlikely to hasten feelings of remorse. Nor is incarceration a solution, especially given the conditions of prisons in this country. The larger, widespread culture of sexual violence and deep misogyny that lies at the root of incidents such as that of December 16, cannot be addressed by mere retribution. The biological or reformative imperative in itself, however, is not enough to justify letting such criminals go. The problem with much of the discussion as it has unfolded over the past few days has been our collective inability to demand complex solutions—solutions that might require some amount of sensitivity towards criminals, but solutions that might also recognise that the mere fact of youth does not ensure a potential for transformation.

It is too early to tell whether a new law will solve any problems. While those baying for blood need to understand that harsher punishments are not synonymous with justice, those defending the juvenile’s release must also wake up to the fact that the development of an individual is inseparable from the society they live in. If we cannot produce a carefully calibrated system where each case gets the attention it deserves, it’s hard to imagine any future transformation of our broader cultural malaise.