Why rule of law, not anarchy, won in Nirbhaya rape case

The rejection of the petition filed by Subramanian Swamy to prevent the release of the juvenile involved in the December 16 gangrape is proof that the rule of law prevails in India. The operative part of the judgment clearly directs that the Juvenile Justice Board shall pass appropriate order in accordance with the Act and the rules after interacting with the child, his parents or guardians as well as the concerned officials of the department of women and child development. There is nothing in the judgment to claim that the child be necessarily kept under observation for two years.

It is not unexpected that the victim's parents are disappointed as they have been demanding death penalty for the child contrary to the provisions of law. While it is the right of the victims to demand the most severe punishment, it is not necessary that this is just and proper. The rule of law has been established to prevent lynching of offenders by victims.

In case of children, reformation without punishment is based on centuries of experience of people working with them. Now we have a good scientific basis for promoting this approach. Since the first jail committee set up in 1834, it was recognised that jails were not good for children. 100 years later, in 1960, Indian Parliament recognised that children must not be jailed under any circumstance. It became the universal law for all children younger the 18 in 2000. Despite no provision for punishing children for any offence, there has been no spurt in juvenile crime contrary to what the media will make us believe. The share of juvenile crime rose from 0.9 per cent in 2001 to 1.2 per cent in 2014. The actual number of juveniles arrested has risen by 17,018, as has the number of children - from 40 crore in 2001 to close to 44 crore in 2014. With an additional four crore children under the age of 18 years, the additional number of 17,000 or so children does not call for panic.

Neuroscientists, after due research in the structure and functioning of adolescents' brain, have provided incontrovertible evidence that while adolescents know right from wrong, they lack the capacity to control their instinct to undertake risky behaviour. The Juvenile Justice Act recognises that differential treatment for reformation of 16-18 year-old children committing violent offences is required and makes provision for it. However, the provision has remained unimplemented and secure homes equipped with facilities for their close supervision and reformation have been not yet been put in place, as is clear from the reports of radicalisation of one child by another. The proposed exclusion of such children to adult courts will ensure that they become hardened criminals growing up in the company of other violent offenders their own age for the next 7-20 years or more.

In any case, it is only rhetoric that this child poses a danger to society and there is no concrete evidence to support the claim. In August 2014, his psychologist, Shuchi Goel, said on record that there was no trace of anger in him. Rajiv Lakra, superintendent of the special home, proudly told the media that the boy's paintings had won a prize.

However, close to the time of his release, some anonymous psychologist tells the media that he has no remorse. If that were the truth, the psychologist should have given his report to the Juvenile Justice Board. The Delhi High Court has received all the reports and made no negative observation about the juvenile. Despite all these facts, it is shocking to see the media and so many others are bemoaning the rule of law, instead of appreciating that it has prevailed.