Tuesday, 27 October 2015

Of good virtue, Aristotle and Rawls

Today I write after a long time. Today I write about something I love explaining something I hate.

To begin with, this shall not be a long post though, only thoughtful. I deal with two great jurists today – John Rawls and the mighty Aristotle.

As Rawls has envisioned a society from the egalitarian perspective, and stated that no one should get the advantage of the inherent ‘unfairness’ nature provides them with, i.e. the edge of extra intelligence, beauty etc. over other less-fortuned ones, he has earned many praises and criticisms. Let us first see why he has earned the praise from me. To start with, man inherently wants all of us to be the same. Performing better than others seldom earns you praise, while it does earn you lots of jealousy and ill-wish (more on what Aristotle said on this later). This is not the absolute generalization though – more of a special case – the mediocre society. In a society where there is hardly any disparity to begin with, there is less scope of ‘breaking free’ from the norms. To not conform to mediocrity is a sin. The fact that being ‘better’ never earns goodwill is more suitable with Rawls’ theory, who then solves the problem by his egalitarian concept and the difference principle in his Justice as Fairness.


Shifting our focus to Aristotle now, we get to see why such a society hinders progress, and is more often than not, inherently wrong. Aristotle says justice is ‘what we deserve’. To honour good virtues is the norm. From this perspective, is the Rawls’ society ‘just’ per se? Well, I don’t think so. I’ll spare you the horror of further diving into teleological reasoning, but a society which does not honour good virtue and talent is more machine than human, it has no more heart than a piece of rock by the ocean has, it has no more feelings than the fox hunting the deer. Competitiveness in a meritocracy is okay, but legitimate expectations of mediocrity is not. The shift from Aristotle towards rights-based theories have never been better. There is nothing pro-human than Aristotle’s theory, and well, I accept ‘justice is what you deserve’ has its own faults and practical implications and is more idealism than realism. It comes into the category of legal romanticism because it was made to do so – Aristotle’s ideal is, in most aspects, better than John Rawl’s ideal.

Friday, 15 May 2015

The new Juvenile Justice Act, 2014 - A legislative analysis - Boon or Bane?

Introduction

            The Juvenile Justice Bill, 2014 had been brought in as an aftermath of the Nirbhaya rape case[1] that happened in 2013. This case was one of moral turpitude, which set out a clear dilemma – to protect or not to protect the children? I had briefly elaborated my issue and stand in an earlier post on this blog, titled 'The Issue of Juvenile Justice'. The children, on whom society looked at with sympathetic eyes were condemned for the acts of the heinous crimes that shook India. Emotional beings, as we are, we sought to change the law and blamed the existing law for the inadequate punishment that was given to the juvenile offenders who had perpetrated the crime. At the spur of the moment, that seemed a logical thing to do – put the children who commit heinous offences behind bars. Now, that the book has been reopened, let us ask ourselves with a calm mind, ‘Is that the right thing to do?’ Is this what the world has come to? Killing children with the sanction and legal authority of the State is certainly not something that comes to the mind when we ponder over the term, ‘civilization’, or ‘civilized society’. Such barbaric thoughts, have been condemned in the past and should continue to be condemned through the future.

Important provisions of the Bill

            There are basically some main features of the Bill that are essential to be highlighted in the analysis:
1.      For heinous offences, i.e. offences with punishment more than 7 years, children in the age group of 16-18 will be tried as adults
2.      For serious offences, i.e. offences with punishment between 3 years to 7 years, children in the age group of 16-18 years will be tried as an adult only when they are apprehended after the age of 21 years
3.      For all other cases, there is a maximum punishment of three years of institutional care
4.      A preliminary inquiry will be held for serious offences when the juvenile in conflict with law is apprehended before the age of 21 years
5.      A special Sessions Court, the Child Court will determine the questions as to the quantum of punishment and whether he will be sent to institutional care, counselling recommendations and the question of whether to try him as an adult

The Juvenile Justice Bill, 2014 – Key Issues

            The Juvenile Justice Bill, 2014, though voices the opinions of the people in a way that they had demanded, the Bill contains some key issues that need to be addressed before this comes into force as an Act. To begin with, this Act is based on an emotional background and was born and ignited out of an uproar involving a question of moral turpitude. Let us reiterate that, sometimes, majority opinion is not the correct opinion and the affairs of the State is best left with the highly competent professionals who make the law. This Bill of 2014 seeks to undo all the good law that was in force and replace an established international system with a faulty indigenous system that is based on principles of retribution and vengeance which been long condemned by law.

Non-conformity to the UN Convention on the Rights of the Child

            It is ironical that the Bill, in its statement of Objects and Reasons, states the following:
AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;
AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child …”
            It is pertinent to note that the UNCRC[2] defines a ‘child’ as any human being below the age of eighteen years and states in Article 37(a):
… Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age
            The Standing Committee Report[3] has arrived at the same finding that the Statements of Objects and Reasons of the Bill is in conflict with the substance of the Bill, which again violates an important convention which India had ratified. The Juvenile Justice (Care and Protection) Act of 2000, had been promulgated specifically for the purpose of implementing the UNCRC in the Indian context – to guard and protect the children, for it is the duty of the State to do so. This Bill seems to ignore that duty and not only violates the United Nations Convention on the Rights of the Child, but is a complete blow to humanity in itself lawfully permitting children to be tried in the same courts as professional criminals, lawfully permitting children to be behind bars with those offenders who are hardened criminals. The Bill, however, only allows life imprisonment with a possibility of release, bypassing a possible violation of Article 37(a), but still, however, violating the definition and UNCRC General Comment 10.

Constitutional Validity

            This Bill seems not to only violate an important international convention, but in all probability violates the provisions of the Constitution of India itself. The provisions of the Bill in question are the classification of heinous offences and serious offences in clauses 7 and 16(1) of the Bill, as discussed earlier in the legislative brief.
            Under Article 15(3) of the Constitution of India[4], the State is obligated and forever duty bound to protect the children and women of the nation, and to do so, it may enact special laws to achieve the objective. This law seems to contradict the very spirit and essence of Article 15(3) when the State seeks to enact laws to do away with the concept of children altogether in pari material with the concept of majority and prescribe stringent punishments for children as equivalent to adults.
            Now, when we come to Article 14 of the constitution[5], which prescribes equality of all before law, we find a serious violation here. As discussed earlier in the legislative brief, the discrimination is not only on the basis of age, but on the basis of apprehension. It is very difficult to comprehend a social purpose behind this arbitrary and fanciful piece of legislation. To understand its implications, let us take some examples:
            A, and his friend B, both 16 years of age commit an offence punishable with an imprisonment of 5 years. A is apprehended after a month, and B is apprehended when he is 22 years of age. In this case, A can be sentenced to a maximum punishment of three years institutional care and B, on the other hand, will receive a punishment of a maximum of  5 years’ imprisonment.
            This not only violates the provision of equality, but ropes in Article 20(1) of the Constitution[6] which says that no person can be punished more than the punishment prescribed for the offence when it was committed. For the same offence, a different punishment based on the date of apprehension means a violation of the right to equality and a violation of the right under Article 20.
            The other provision whose spirit is violated is Article 21 which ensures right to life and liberty[7]. These life and liberty of a person cannot be curbed except according to procedure established by law. The phrase of ‘procedure established by law’ meant a procedure that had legal sanction, without regard to the principles of natural justice. Any law duly enacted could fit within the framework of ‘procedure established by law’, which was changed in the Maneka Gandhi case[8] whereupon it became synonymous with ‘due process of law’ used in the United States, which means a process which is fair, just and reasonable and not fanciful, arbitrary, oppressive and capricious. This Bill seems, in all probability, to have violated the spirit and interpretation of Article 21 by enacting laws that are highly discriminatory, and even more on arbitrary grounds without a social cause or social wrong being addressed.

Arbitrary punishments

            The punishments have not been decided on a concrete foundation and have the sense of arbitrariness as earlier discussed creeping over into them. For example, the punishment for selling a child is five years, and giving them narcotic substances is seven years. This really does not make sense to anyone of the legal fraternity, or even laymen for I suppose, no one would agree that giving a child marijuana is a more heinous offence than selling them for purposes which cannot be imagined by the sane.

Conclusion

            In the case of Abdul Mannan And Ors. v. State Of West Bengal[9], the Supreme Court of India has reiterated the objective of the Act of 2000, stating, “The object of the Juvenile Justice Act is to reform and rehabilitate the juvenile offenders as useful citizens in the society.” The Rajasthan High Court has again stated in Chetan and Anr. v. State of Rajasthan[10] that “One of the aims of the Juvenile Justice Act is to reform the juvenile delinquent so that he is prevented from graduating to being a hardened criminal.
            With the Hon'ble Courts taking the view as above, and the same being the duty of the legislature, this Bill is unwarranted, putting the working age population behind bars and making them hardened criminals, left to the mercy of being moulded by all seasoned criminals in their company. While India is proudly advertising its demographic dividend, the act of putting the working group into the hands of criminals is an act which should be condemned.
            Instead of putting them behind bars, it is better to put them in institutional care till the age of 21 years, not 18, as suggested by the Standing Committee. Instead of ostracizing them and making them a burden on the State, it is better to make them an asset to the nation by giving them vocational training, and putting them in care till the age of 21. By this process, the ones who would, in future, be a threat to the society, become a valuable possession of the nation.




[1] See State Through Reference and ors. v. Ram Singh and ors., 2014 Indlaw DEL 819
[2] Full text of the UNCRC can be accessed from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
[3] The Juvenile Justice (Care and Protection of Children) Bill, 2014, Standing Committee on Human Resource Development, February 25, 2015 available at http://www.prsindia.org/uploads/media/Juvenile%20Justice/SC%20report-%20Juvenile%20justice.pdf last accessed 06:09 UTC on 11-05-15
[4] Article 15(3) states: “Nothing in this article shall prevent the State from making any special provision for women and children.”
[5] Article 14 states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
[6] Article 20(1) states: “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
[7] Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
[8] Maneka Gandhi v. Union of India AIR 1978 SC 597
[9] Abdul Mannan And Ors. v. State Of West Bengal AIR 1996 SC 905
[10] Chetan and Anr. v. State of Rajasthan 2011 Indlaw RAJ 220

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