By AH Scott Lyngdoh

Following the gang-rape on a 23 year old innocent girl, the hue and cry has been loud and clear. Hang the rapists, chemical castration or to put it crudely cut off the source of the problem, electrification or life-imprisonment, such is the accumulated anger when crimes against women go unpunished for much too long. Angry demonstrators demand tougher laws, the pitch is so high that even the main accused joins in wishing to be hanged. It seems that cool and rational thinking is also a casualty. The mass upsurge is aimed at the politicians and the police. A prominent journalist aptly described the protests as the core of latent anger which has been suppressed over the years.

A day in the metropolis during 1985 was set aside by the Lt. Governor to discuss the system’s failure wrought by the multiplicity of authorities and overlapping jurisdictions. Law and order rested with the Home Ministry and Lt. Governor not the Delhi Administration, the blurred lines causing malfunctioning between the Union Transport Ministry and the local authority, the Delhi Development Authority versus the Municipal Authority, and more ridiculous of road crossings shared between the Central and Local PWD. The outcome of such deliberations was just a sigh of relief to have met and discussed. It is possible that some of these anomalies have been sorted out, except that law and order remains with the Central Government, and so the point arises why should Sheila Dixit, the Chief Minister come under attack after the gruesome incident, when the fingers should have been directed at the Lt. Governor and the Union Home Ministry.

Much have been said about deep-rooted social attitudes against women as part of the problem, and since such attitudes do not change easily, the nation is in for rougher times, as witnessed in the new year of more rapes and attacks. So what are the remedies, both short and long term, which could be said as lost opportunities. Credit goes to Inderjit Gupta, the Union Home Minister of yesteryears who stood up in Parliament urging that the core to good policing was to act on the recommendations of the eighth reports of the National Police Commission set up in 1979. He added most forcefully, that if only a fraction of the recommendations were implemented, policing in the country would have gone up a notch or two. Anyone who has read the reports, will be astonished at the painstaking efforts and professionalism as reflected in the reports, focused on catching the criminal, aided by modernization of police forces and welfare schemes for the lower ranks. This gift to the Nation was unhappily ignored, till two Director Generals of Police filed a public interest litigation before the Supreme Court as would ensure that state governments implement the NPC recommendations in letter and spirit.

In response, the Supreme Court set up the Ribeiro Committee followed by the Padmanabhaiah Committee, culminating in the issue of seven directives which the states are to implement. In passing these directives the court put on record the deep-rooted problems of politicization, lack of accountability mechanisms and systemic weaknesses that have resulted in poor all round performance and fomented present public dissatisfaction with policing. The seven directives in a nutshell are (i) Constitute a State Security Commission to ensure that the state government does not exercise unwarranted influence on the police, lay down broad policy guidelines, and evaluate the performance of the state police. (ii) Ensure that the DGP is appointed through a merit based transparent process and secure a minimum tenure of two years. (iii) Ensure that other police officers on operational duties (including Superintendents of Police in-charge of a district and Station House Officers in-charge of a police station) are also provided a minimum tenure of two years. (iv) Separate the investigation and law and order functions of the police. (v) Set up a Police Establishment Board (PEB) to decide transfers, postings, promotions and other service related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on the postings and transfers above the rank of Deputy Superintendent of Police. (vi) Set up a Police Complaints Authority (PCA) at state level to inquire into public complaints against police officers of and above the rank of Deputy Superintendent of Police in cases of serious misconduct, including custodial death, grievous hurt, or rape in police custody and at district levels to inquire into public complaints against the police personnel below the rank of Deputy Superintendent of Police in cases of serious misconduct. (vii) Set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO) with a minimum tenure of two years.

Records show that not a single state has fully complied with the directives, so much so that four chief secretaries have been served with show-cause notices. In view of the heightened tensions, and the demand for action all over the country following the death of the Brave-heart, the Supreme Court will come down heavily on the errant states.

Apart from the police aspect, the slow and flawed process of the Criminal Justice System, is to be addressed in its entirety, by adopting the numerous recommendations of the Law Commission of India. The Nation is awake on the plight of women. Violence does, in truth, recoil upon the violent, and the schemer falls into the pit which he digs for another. The accused in the instant case, will in all probability get the maximum punishment permissible under law in the quickest time, as imposed by civil society. A time has come to go deep into the minds of crazed individuals for somewhere in their sickness there could be clues to a solution. Altamas Kabir, Chief Justice of the Supreme Court has set the tone by inaugurating the first of five track courts to hear cases of sexual offenses against women, while cautioning against lynch mob mentality. He promised to provide justice in a swift and fair manner so that the faith of the people is once again restored. Such reassurance is a good beginning.

(The author is Chairperson, Meghalaya State Law Commission, formerly Home Minister, Meghalaya and Chief Secretary, Mizoram)

By Naba Bhattacharjee

The crowd had all gone after the Lajong game at JN Stadium. It was already beyond dusk. As I was coming out from the adjacent cricket ground, a known young local entrepreneur was looking up towards the top of the stadium. I stopped and enquired jocularly, “Bah, waiting for the next match under floodlights?”. He turned on his heels and the otherwise friendly person, simply glared at me – his eyes luminous in the fading light. I had touched a raw nerve somewhere or he must be a fanatic Lajong fan dejected with the drawn game. My enquiry was based on “news” blowing in the wind about his success of bagging the floodlighting contract. Whatever the reason for his discomfiture, I decided not to prolong our agony in the cold winter evening and opted to move on.

At this point he came up to me; probably realizing his impolite stance and added with genuine hurt in his eyes, “What floodlight, Sir … I thought you knew and was rubbing salt to my wound”. Taken aback, I stated gingerly “No.., I heard you are among the lowest bidder and hence the jibe”. “I was … but not anymore, all washed away in the flood of deceit”, he quipped with indignation. “What; have you withdrawn?”, I enquired exasperated. “No….; in fact in the initial days it was conveyed to me that order shall be placed soon, once the clearance comes from “top”. “That promised clearance never came in my favour”, lamented the youngster. On the contrary the upcoming contractor learnt to his dismay, that his bid kept gradually “increasing” in value in course of upward journey of the file. Wherever he enquired, in the different echelons of decision making, the reasons for such blatant and gross injustice; the common catchphrase fed to him was “Order from the top”. ” I am helpless”.

“The nameless (benami) was skilled in climbing ladders to reach the top faster, while you ended up being devoured by snakes”, was the realistic analysis by a seasoned and honest head clerk. The frustrated young man after failing to decipher the apex of the “top” and finally getting the same cliché from “top of the tops” came down to the stadium, probably in a final attempt, to seek that elusive “top”. Only the privileged and select few can reach the “top”, where the buck finally accumulates and “orders go down”.

By Sohail Arshad

The gang-rape and murder of a girl by six youth in Delhi has stirred the conscience of the nation. Many leaders, common people and women organisations have demanded harshest punishment to the accused. The police have filed charge sheets against five recommending death for them while leaving out the sixth who was below 18 years of age and therefore was a juvenile in the eyes of the law, though he was the most brutal among all the other ‘adults’ accused in the crime. But he will not be considered an adult though he behaved more adult than his accomplices because the statute says that anyone below the age of 18 years cannot be tried in a criminal court. He will be tried in a juvenile court and may be let off after counselling.

This appears to be a bizarre situation when the 18 year old commits a rape and murder but in the eyes of the law he is a victim and so should be taken care of. In this way, the law turns against the rape victim for whom it does not have any sympathy or concern. According to the present law, a juvenile is a person who had not completed 18 years of age. According to International law anyone below the age of 18 years is a ‘child’. This is a universally accepted definition of a ‘child’ under the United Nations Convention on the Rights of the Child (UNCRC).

However, in India the upper age limit for a child is not universally recognised in all fields. For example Sec 2 (a) of Child Marriage Restraint Act 1929 defines a child who has not achieved the age of 21 years in case of male and 18 years in case of a female. Thus, if a male ‘child’ aged 20 years of age marries, he will be considered a delinquent. However, the marriage may be legally invalid or unacceptable but that does not necessarily mean that the ‘child’ will not be able to consummate the marriage as he is sexually capable of sustaining a marriage.

Under another Act, Child Labour Protection Act, 1986, Section 2 (ii) says that a ‘child’ is one who has not completed the age of 14 years. In this respect, the law does not see any difference in physical capabilities of a girl child and a boy child. Both can be considered adult at 15 years of age and can work in industries.

In case of immoral trafficking, Sec 2 (a) of Immoral Traffic (Prevention) Act, 1956 a ‘child’ means a person under the age of 16. The age limit for a person to be considered a child is different under various other laws. The age under all the Acts mentioned below are listed:

Mines Act 1952 18 years, Merchant Shipping Act 1958, 14 years, Motor Transport workers Act 1961 14 years, Apprentices Act, 1961 14 years, Bidi and Cigar Workers Act 1966, 14 years, Plantation Labour Act, 1951, 14 years, Factories Act, 1948, 14 years. Moreover, under Section 83 of the Indian Penal Code, the law believes that anyone between the age of 7 and 12 cannot commit an offence, that is, whatever they do will not be considered a crime.

This clearly underlines the confusion in various laws that underline the lower age of a person to qualify for being a child. A 15 year old can be considered an adult if he is working in the transport department, or bidi-cigar industries or merchant navy, in factories or plantation because he will considered capable of doing the hard work an adult is capable of. But if the same commits a crime like rape or murder or dacoity, he will escape the noose and will be considered a victim by the judiciary. Times are a changing and various standards have changed over the years. The changing lifestyle of the modern world has changed the mental and biological features of the youth. The exposure of the sexual material and sex education has lowered the maturity age of the youth and they understand the nitty gritty of the sexual behaviour. The openness and liberalism in thought and practice have made the youth of today vulnerable to very moral and sexual crimes. The puberty age has also gone down due to environmental and biological changes. Now boys and girls attain puberty at a lower age in comparison to their counterparts, say, twenty years ago. Therefore, many jurists feel that major crimes may force the courts to try a juvenile as an adult.

In the given circumstances the government sticking to the same old anachronistic legislations is detrimental to the society and to safety of the women in particular. The difference in the age limits for children working in different departments is also devoid of any logic. The Indian society – both Muslim and Hindu-considers boys and girls attaining puberty as adults. Apart from it, the physical attribute of different persons are different. Some of them are physically tall and strong at a lower age and while some other are weak, short and timid even in an older age. The United Nation’s Convention on the Rights of the Child has not ignored this aspect. Therefore, it says that the upper age limit for childhood is 18 years but recognises that majority may be obtained at an earlier age under the laws applicable to the child. So the Article 1 of the Convention accommodates the concept of advancement of majority at an earlier age according to the evolving capacity of a child.

Therefore, given the biological and behavioural changes of the youth, the government may consider the advancement of majority to thwart the recurrence of such juvenile crime that shook the country. Uniformity should be brought about the age limit of a child which should be applied in all the fields. A 15 year old who works in the transport department or a plantation is considered an adult but is considered a child if the same youth commits rape and murder. This speaks of the discrepancy in the law. Therefore, the laws should be reformed to bring uniformity in the upper age limit of a child which should be applied in all the fields and conditions.

The high publicity of the case through the media and the relief given to the 17 plus ‘child’ may encourage youth of his age with criminal mentality to commit such grave crimes like rape, murder or physical assault with impunity as was demonstrated by a 16 year youth in Mumbai on the 6th of January, days after the news of charge-sheet having been filed in the Delhi gang-rape that left out the most brutal person in the crime on the basis of his minority. The Mumbaikar attacked a 25 year old woman named Shweta Singh of the same apartment with a knife several times. He was arrested and sent to a juvenile home. He is said to be a repeat offender but the police said that he is a mentally disturbed child. If the laws relating to juvenile crimes are not reformed and the age of the minority of the child is not advanced according to the social, biological and psychological changes of the society, the increasing trend of juvenile crime will pose a grave threat to the society and to the life and dignity of women in particular.

(The writer is a journalist and writer based in Kolkata. He can be contacted at [email protected])