INDIA: Ruby Rai and the joke called Juvenile Justice
An Article by the Asian Human Rights Commission
Avinash Pandey
The Bihar police have arrested Ruby Rai, a 17-year-old girl, under
Sections 420, 465, 467, 468, 471, and 120(B) of the India Penal Code
on 26 June 2016 and have duly sent her to jail, i.e. an adult jail.
Her alleged crime is that of cheating to secure top rank in the state
senior secondary school examination. Questioned by a journalist after
the exam, she couldn’t correctly answer even the most elementary
questions. She is not the only one to be caught red-handed. There are
three others who all failed to answer basic questions on subjects they
had just “topped” in the exam.
The rot in the educational institutions of most Indian provinces is
near total. They are so infested with various syndicates engaged in
cons, corruption, and forgery that their being institutions is a fact
that has become secondary to the institutionalised Mafiosi that rules
within. This Mafiosi, duly known as cheating mafia, admission mafia,
selection mafia, and so on, have grown like parasites to take over the
hosts.
The most infamous of them all has operated in the Madhya Pradesh
Professional Examination Board (MPPEB), popularly known by its Hindi
acronym, Vyapam. The Vyapam exam scam is now under a Central Bureau of
Investigation probe for the suspicious serial deaths of 43 people
associated with the scam.
Ironically, from the state to the common people, everyone knows this.
They know that most of the teachers they are paying to teach their
children have, in fact, bought not earned their degrees. They know
that the cops the state pays to protect them have done the same. There
have even been instances when the top administrative jobs of provinces
being bought and sold becoming public, with the emergence of open rate
lists. Ravinder Paul Singh Sidhu, ex-Chairperson of the Punjab Public
Service Commission (PPSC), for instance, was arrested in 2002 and
convicted in 2014 for openly selling jobs to aspirants
<http://indianexpress.com/
.
The parasitic education Mafiosi rules in Bihar as well, and if the
cycle is to be broken, the syndicate must be smashed. Arresting Ruby
Rai, a minor, and that too after flouting the law of the land, cannot
be the way ahead for society. Firstly, she could not have done this
cheating on her own. She, after all, is a minor, and someone
completely dependent upon her parents, who likely made the deal for
her. They are roaming scot free, uncharged! Then there would be
administrators in the school where she was tested, right up to the
board that governs the examination and prepares the question sheets,
and everywhere in between. Some charges have been made and a few
arrests too, but the full nature of the racket has not been exposed.
The moot point here is how could the police send a juvenile to an
adult jail in complete violation of the Juvenile Justice (Care and
Protection of Children) Act 2015 (hereafter JJ Act)? When confronted
over this travesty, Manu Maharaj, the Senior Superintendent of Police,
who is leading the investigations into the alleged crime, asserted
that it is Ms. Rai’s responsibility to prove that she’s a juvenile
<http://www.hindustantimes.
. He promised that she would be produced before the Juvenile Justice
Board if she did so.
The top cop has got it the wrong side up. The JJ Act, promulgated on
15 January 2016, stipulates, in no uncertain terms, that it is his
responsibility to prove the age, and not that of a child in conflict
with the law. Furthermore, the JJ Act makes it absolutely clear that
the birth date recorded on the matriculation certificate or birth
certificate by a civic body would be proof enough and only in the
absence of either of these can the child’s age be medically
determined. The police should have verified her age using her
matriculation certificate; failing to do so exposes the real worth of
their investigative prowess.
Section 94 (2) of the Act states the following:
“(2) In case, the Committee or the Board has reasonable grounds for
doubt regarding whether the person brought before it is a child or
not, the Committee or the Board, as the case may be, shall undertake
the process of age determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned examination
Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board: Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen days from
the date of such order.”
Top cop Many Maharaj would also know that the JJ Act, through Section
4, is the supreme authority in dealing with the children in conflict
with law, and overrides any other law that might exist.
The police cannot justify its epic ignorance by invoking the bogey of
heinous crimes. Yes, in the case of heinous crimes, the JJ Act allows
– despite major opposition from civil society and despite being in
contravention of many international laws – the trial of children as
adults. However, the police cannot use this as justification because
the Act defines heinous crimes as those carrying a minimum sentence of
10 years. The charges slapped on Ms. Rai under Sections 420, 465, 467,
468, 471 and 120(B) of the IPC are that of forgery and cheating and
none of them carries a minimum sentence of 10 years.
Furthermore, even when a child in conflict with law commits a heinous
crime, if it is so recognised, the police are not allowed to simply go
ahead and treat the juvenile as an adult. In such cases, Section 15
(i) of JJ Act orders a verification of the child’s mental and
physical capacity to commit such an offence before proceeding:
“15. (1) In case of a heinous offence alleged to have been committed
by a child, who has completed or is above the age of sixteen years,
the Board shall conduct a preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and the circumstances in
which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection (3) of section 18:
Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or
other experts.”
Evidently, the police have flouted the JJ Act and made a mincemeat of
it in this case. The joke that passes of as investigation doesn’t
stop here. The police can merely arrest an accused. Only a magistrate
can send him or her to judicial custody. Alas, our magistracy has
hardly ever been found wanting in obliging police requests for sending
people to jail, whatever the (de)merits of the case may be. No wonder
the man in black robes chose not to bother with the procedure and
showed scant regard for the law in sending Ruby Rai to jail.
So why was she sent to jail flouting all rules? Perhaps the reason is
in the fact that the scandal has come hot on the heels of mass scale
cheating in the same exams
<http://www.bbc.com/news/
last year, which hit eyeballs across the world and thus outraged
local people. The outrage forced the political leadership to be seen
to be doing something; in turn the pressure may have forced the police
to act and hence the arrest of red-handed student.
Would the arrest, even if wrongful, help deter the same kind of
cheating? It was likely her parents that planned it. And, it was
society’s emphasis on the ends, not the means, which assisted the
same. It was the corruption endemic in the institution that made it
possible. And, it is society’s active collusion and a broken
criminal justice system that will make the corruption persist.
The system cannot be cleaned up by individual cosmetic acts of
arresting children least responsible, and perhaps not even fully
aware, of the criminal acts. It calls for a systemic overhaul of the
educational institution of the states and weeding out rackets in
examinations and admissions and all other aspects in which the
syndicates are most infested.
It calls for enrolling the police and judiciary in a refresher course
to ensure that they know the law they are supposed to enforce.
The case of Ms. Rai has exposed the decadence in Bihar’s education
system. Her arrest has exposed the dysfunction in the police and
judiciary.
Rai’s re-examination is one thing.
But who will join the call for a re-examination of the police officers
and the magistrate complicit in sending a child to adult jail?
# # #
About the Author: Mr. Avinash Pandey, alias Samar is Programme
Coordinator, Right to Food Programme, AHRC. He can be contacted at
avinash.pandey@ahrc.asia <mailto:avinash.pandey@ahrc.
# # #
The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.
Read this Article online
<http://www.humanrights.asia/
Avinash Pandey
The Bihar police have arrested Ruby Rai, a 17-year-old girl, under
Sections 420, 465, 467, 468, 471, and 120(B) of the India Penal Code
on 26 June 2016 and have duly sent her to jail, i.e. an adult jail.
Her alleged crime is that of cheating to secure top rank in the state
senior secondary school examination. Questioned by a journalist after
the exam, she couldn’t correctly answer even the most elementary
questions. She is not the only one to be caught red-handed. There are
three others who all failed to answer basic questions on subjects they
had just “topped” in the exam.
The rot in the educational institutions of most Indian provinces is
near total. They are so infested with various syndicates engaged in
cons, corruption, and forgery that their being institutions is a fact
that has become secondary to the institutionalised Mafiosi that rules
within. This Mafiosi, duly known as cheating mafia, admission mafia,
selection mafia, and so on, have grown like parasites to take over the
hosts.
The most infamous of them all has operated in the Madhya Pradesh
Professional Examination Board (MPPEB), popularly known by its Hindi
acronym, Vyapam. The Vyapam exam scam is now under a Central Bureau of
Investigation probe for the suspicious serial deaths of 43 people
associated with the scam.
Ironically, from the state to the common people, everyone knows this.
They know that most of the teachers they are paying to teach their
children have, in fact, bought not earned their degrees. They know
that the cops the state pays to protect them have done the same. There
have even been instances when the top administrative jobs of provinces
being bought and sold becoming public, with the emergence of open rate
lists. Ravinder Paul Singh Sidhu, ex-Chairperson of the Punjab Public
Service Commission (PPSC), for instance, was arrested in 2002 and
convicted in 2014 for openly selling jobs to aspirants
<http://indianexpress.com/
.
The parasitic education Mafiosi rules in Bihar as well, and if the
cycle is to be broken, the syndicate must be smashed. Arresting Ruby
Rai, a minor, and that too after flouting the law of the land, cannot
be the way ahead for society. Firstly, she could not have done this
cheating on her own. She, after all, is a minor, and someone
completely dependent upon her parents, who likely made the deal for
her. They are roaming scot free, uncharged! Then there would be
administrators in the school where she was tested, right up to the
board that governs the examination and prepares the question sheets,
and everywhere in between. Some charges have been made and a few
arrests too, but the full nature of the racket has not been exposed.
The moot point here is how could the police send a juvenile to an
adult jail in complete violation of the Juvenile Justice (Care and
Protection of Children) Act 2015 (hereafter JJ Act)? When confronted
over this travesty, Manu Maharaj, the Senior Superintendent of Police,
who is leading the investigations into the alleged crime, asserted
that it is Ms. Rai’s responsibility to prove that she’s a juvenile
<http://www.hindustantimes.
. He promised that she would be produced before the Juvenile Justice
Board if she did so.
The top cop has got it the wrong side up. The JJ Act, promulgated on
15 January 2016, stipulates, in no uncertain terms, that it is his
responsibility to prove the age, and not that of a child in conflict
with the law. Furthermore, the JJ Act makes it absolutely clear that
the birth date recorded on the matriculation certificate or birth
certificate by a civic body would be proof enough and only in the
absence of either of these can the child’s age be medically
determined. The police should have verified her age using her
matriculation certificate; failing to do so exposes the real worth of
their investigative prowess.
Section 94 (2) of the Act states the following:
“(2) In case, the Committee or the Board has reasonable grounds for
doubt regarding whether the person brought before it is a child or
not, the Committee or the Board, as the case may be, shall undertake
the process of age determination, by seeking evidence by obtaining —
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned examination
Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or the
Board: Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen days from
the date of such order.”
Top cop Many Maharaj would also know that the JJ Act, through Section
4, is the supreme authority in dealing with the children in conflict
with law, and overrides any other law that might exist.
The police cannot justify its epic ignorance by invoking the bogey of
heinous crimes. Yes, in the case of heinous crimes, the JJ Act allows
– despite major opposition from civil society and despite being in
contravention of many international laws – the trial of children as
adults. However, the police cannot use this as justification because
the Act defines heinous crimes as those carrying a minimum sentence of
10 years. The charges slapped on Ms. Rai under Sections 420, 465, 467,
468, 471 and 120(B) of the IPC are that of forgery and cheating and
none of them carries a minimum sentence of 10 years.
Furthermore, even when a child in conflict with law commits a heinous
crime, if it is so recognised, the police are not allowed to simply go
ahead and treat the juvenile as an adult. In such cases, Section 15
(i) of JJ Act orders a verification of the child’s mental and
physical capacity to commit such an offence before proceeding:
“15. (1) In case of a heinous offence alleged to have been committed
by a child, who has completed or is above the age of sixteen years,
the Board shall conduct a preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and the circumstances in
which he allegedly committed the offence, and may pass an order in
accordance with the provisions of subsection (3) of section 18:
Provided that for such an assessment, the Board may take the
assistance of experienced psychologists or psycho-social workers or
other experts.”
Evidently, the police have flouted the JJ Act and made a mincemeat of
it in this case. The joke that passes of as investigation doesn’t
stop here. The police can merely arrest an accused. Only a magistrate
can send him or her to judicial custody. Alas, our magistracy has
hardly ever been found wanting in obliging police requests for sending
people to jail, whatever the (de)merits of the case may be. No wonder
the man in black robes chose not to bother with the procedure and
showed scant regard for the law in sending Ruby Rai to jail.
So why was she sent to jail flouting all rules? Perhaps the reason is
in the fact that the scandal has come hot on the heels of mass scale
cheating in the same exams
<http://www.bbc.com/news/
last year, which hit eyeballs across the world and thus outraged
local people. The outrage forced the political leadership to be seen
to be doing something; in turn the pressure may have forced the police
to act and hence the arrest of red-handed student.
Would the arrest, even if wrongful, help deter the same kind of
cheating? It was likely her parents that planned it. And, it was
society’s emphasis on the ends, not the means, which assisted the
same. It was the corruption endemic in the institution that made it
possible. And, it is society’s active collusion and a broken
criminal justice system that will make the corruption persist.
The system cannot be cleaned up by individual cosmetic acts of
arresting children least responsible, and perhaps not even fully
aware, of the criminal acts. It calls for a systemic overhaul of the
educational institution of the states and weeding out rackets in
examinations and admissions and all other aspects in which the
syndicates are most infested.
It calls for enrolling the police and judiciary in a refresher course
to ensure that they know the law they are supposed to enforce.
The case of Ms. Rai has exposed the decadence in Bihar’s education
system. Her arrest has exposed the dysfunction in the police and
judiciary.
Rai’s re-examination is one thing.
But who will join the call for a re-examination of the police officers
and the magistrate complicit in sending a child to adult jail?
# # #
About the Author: Mr. Avinash Pandey, alias Samar is Programme
Coordinator, Right to Food Programme, AHRC. He can be contacted at
avinash.pandey@ahrc.asia <mailto:avinash.pandey@ahrc.
# # #
The Asian Human Rights Commission (AHRC) works towards the radical
rethinking and fundamental redesigning of justice institutions in
order to protect and promote human rights in Asia. Established in
1984, the Hong Kong based organisation is a Laureate of the Right
Livelihood Award, 2014.
Read this Article online
<http://www.humanrights.asia/
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