Calls to dilute the Juvenile Justice Act in light of what is perceived as lenient punishment to the juvenile offender in the Delhi gang rape case are understandable but misplaced. The crime shook the country’s conscience, brought forth an unprecedented outpouring of anger and triggered collective introspection on the safety of women and girls. But even though there is a view that the young perpetrator has been able to get away lightly, this is not reason enough to question or do away with the principles underlying juvenile justice. Separate legislation has existed in many countries around the world since the early 20th century for the care and protection of children, including child offenders. The present system in India was introduced by a 1986 Act and improved upon in 2000. The JJ Act, 2000, a progressive legislation, replaced the regular judicial process with a reformatory regime, favouring supervised probation or stay in an observation home over imprisonment. The law tries to reform a young offender’s conduct rather than confine him for decades in a prison with adult criminals, which only works to fan recidivist tendencies.
While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of the large body of crime in the country. However, merely going through a differential process for juvenile offenders is not enough. It is obvious that the social contract underlying a lenient regime requires equal attention to be paid to the design and implementation of a proper rehabilitation process. Society will only countenance shielding young offenders guilty of great brutality from the rigours of adult justice if it is confident that they will indeed benefit from the rehabilitative approach to juvenile justice. In India, we need to guard against the complacent belief that a stint in a remand home is enough for their rehabilitation. The atmosphere in many such facilities is not conducive for reformation, and in fact may toughen or entrench criminal propensities. The system should not end up creating a new underclass that combines a sense of triumph over avoiding a prison term after committing heinous crimes, with the psychological effects of staying under bleak, hope-denying conditions. Making juvenile correctional facilities more humane is one part of the answer. But to address the need for proportionality — not so much in punishment as in the necessity of socio-psychological repair — when a young offender commits truly heinous crimes, a longer period of sustained counselling and rehabilitation ought to be an essential part of the juvenile justice process even after the maximum period of remand is over.