By Damudor Arambam
The recent alleged rape of two minor girls by seven youths in Imphal on 14th April, has triggered widespread anger demanding death penalty of all the accused. A special court under the Protection of Children from Sexual Offences (POCSO) Act, 2012 has remanded the only adult accused to judicial custody while six other accused who are reported to be juveniles are still at juvenile home.
According to recent news report widely published in the state, two minor girls travelling along with their boyfriends on motorcycles to take part in the traditional Thabal Chongba on the day of Cheiraoba were allegedly kidnapped by a gang of seven youths when they reached at Khurai area of Imphal East. Later, they were taken to a disserted hillock region in Phaknung area of Imphal East by the youths on their bikes and a car. Then the youths assaulted the girls and beat up their boyfriends who protested. Though the unfortunate incident happened in the late evening of 14th April, the news was reported only when reports were filed at the police station after six days of the incident.
Unfortunately, the media houses published the report dated 20-04-2017 widely where they revealed the names of the six alleged assaulters. After publishing identities of the accused youths without verifying the details, on the next day it was found that six out of the seven accused were juveniles as per the age proof certificates produced by their families. During a discussion session telecasted in local TV channel which was held aftermath of the incident, a woman NGO activist stated that the two minor victims are girls from Hill tribal community while the accused are from Meetei community in the valley. Such disclosure of identities of both the victims and accused in sensitive criminal cases are nothing new in the state. This usual nature of identification of the alleged accused and victims on the line of community in the state obviously led to a presumption that the rape was being perpetuated by Meitei upon Hills thereby side lining the important legal question involved on juvenile. Thus, there lies a question on how well are we caring and protecting our younger generation who are found in conflict with law?
As per the internationally accepted principle any individual who are below the age of 18 years are treated as a “child”. After the popular outcry to reduce the age of criminal responsibility to 16 years post the isolated Nirbhaya Case, a new Juvenile Justice (Care and Protection of Children), 2015, was introduced with remarkable changes in the existing juvenile law. The new law on juvenile allows children between 16 and 18 years alleged to have committed “heinous offences” to be tried and sentenced as adult. According to the new JJ Act ‘heinous offences’ as those “for which the minimum punishment under the Indian Penal Code (IPC) or any other law for the time being in force is imprisonment for seven years or more.” The new JJ Act has been widely criticized by the rights activist across the country stating the fact that it completely destroys the rehabilitative principle by adopting a retributive approach.
In the present alleged gang rape, the publications of identities of all the accused by the state media houses at first and later claimed of juveniles by families of the accused led to appear at public an institutional attempt to cover up. This unethical practice of media further led an NGO women to claim without any evidentiary value in a TV discussion that on many instances in the past, criminals were freed in the state on the pretext of juveniles. Many people including women activists, journalists etc. have been asserting to discard the age proof given by the school and insisting medical test for verifying the age of the accused in the present case. In fact Justice K. S. Radhakrishnan and A. K. Sikri of the Supreme Court of India held that school certificate to be used as age proof of juvenile when the court allowed in an appeal brought forward by Ranjeet Goswami who was challenging the Madhya Pradesh High Court verdict (2013). This is an outcome to the question if an accused is a juvenile or not. The Supreme Court held that an authentic school leaving certificate should be considered instead of a medical examination to conform the age of the juvenile.
Under various statute of the country juveniles who are in conflict with law enjoy a number of confidentiality protections of their identity. This is because the state has responsibility in rehabilitating juvenile delinquents under law of the land and this special interest would be complicated by reporting names of the juveniles involved in crimes. If the identity of the juvenile including even the parents name, address or other information are found disclosed, then it is punishable under section 74 of Juvenile Justice (Care and Protection of Children) Act 2015 and also by POCSO act. Journalist are adhered for special cautious while identifying juvenile suspects or victims of sexual assaults. However in the recent gang-rape case, the details of juveniles were published on the day of its reporting to the newspaper before the court had a chance to rule. In the state where “mob justice” becomes a popular tradition among the people, the juveniles are under threat from various sections of the population. In fact people protesting against the alleged gang rape have been raising slogans to hang those juvenile culprits. Also one underground party has directed to punish the alleged rapists through newspapers.
Though this is an exceptional case, one must also question the logical coherence of the ‘public interest’ factors in the said alleged gang rape case. The public interest factor is due to the involvement of major Meitei community as accused and minority Tribal as victims. Under statutory law, case law and tort law of India, the identities of rape victims are protected and hence not only prohibit just the disclosure of the names of rape victims but of information potentially leading to the identification of rape victims. However the disclosure of victims as from Hill and accused from Meetei community by an NGO woman in the discussion programme of a local TV channel and subsequent engagements to the case led to identify the specific tribe of the victims by public.
In the state where a selective silence is a culture of protest, the present alleged gang rape case provides an opportunity for sloganeering hills and valley unity by a section of the middle class dominant Meetei population .This has further led to a strong public interest in open justice and in the public knowing as much as possible including the identity of the alleged juvenile perpetrators. This is not to say that the rape by juvenile is justiciable, but the worrying erosion of the distinction between children and adults in the present alleged gang rape within the existing justice system.
The seven youths committed a horrific crime which is highly condemnable by all sections of the society, but a civilised society should distinguish between the moral capacity of children and adults. At the very least this requires more robust reasoning before we permit our teenagers to be ‘named and shamed’ in the way it is projected by our media, non-governmental organizations and various social groups. The youths of the state owing to diverse reasons are more susceptible to negative influences and peer pressures which pre-dispose them to make poor decisions. Also it is non deniable fact that there exist strong correlation between anti-social criminal behaviour of our youths and the culture of violence and unrest perpetuated in the state for decades. So, it will be very hard to see the positive outcome by victimizing our youths unless ways are found to address the deeper long-term problems our younger generations are facing in the society. Hence it is our collective concern to ensure that our younger generations who are in conflict with law survive and thrive through a proper rehabilitation mechanism.
The article was sent by Damudor Arambam. He is a Research Fellow at
Tata Trust Criminal Justice Fellowship. He can be reached at damudor(dot)arambam(at)gmail(dot)com.