“There can be no keener revelation of a society’s soul than the way in which it treats its children.” -Nelson Mandala
The image of a child is usually that of a vulnerable sweet Cherubim dependent even for survival on its guardians. However, not all children are angels; some of them are delinquents, not by choice but by force of circumstances. The reasons that push them in the circle of vices are often invisible and so the plight is hidden, under-reported or openly neglected. By allowing children to fade away and failing to reach and protect them, societies condemn their children to abuse with lasting consequences. In this light it is the duty of the government to make sure that children’s human rights are not violated.
Human rights are those rights which are essential to live as a human being. They are the basic standards without which people cannot survive and develop in dignity. Sadly these rights are sullied when children face the possibility of violence in juvenile justice systems, particularly those that do not provide treatment as per international standards.
So to understand the problem of Juvenile delinquency, we first need to focus on the terms, ‘juvenile’ and ‘Juvenile delinquency’. Juvenile means anyone who has not yet reached the age of adults in terms of childishness or immaturity. In the Legal sense, a juvenile can be defined as a child who has not attained a certain age at which he can be held liable for his criminal acts like an adult person under the law of the country.
The word ‘delinquent’ was first used by William Coxton in the year 1484 to refer a person who was found guilty. But in the modern sense of the term Juvenile delinquency means the involvement by the teenagers in an unlawful behavior.
The problem of juvenile delinquency is not new. In a developing country like India the problem of juvenile neglect and delinquency is considerably low but is gradually increasing according to the National crime record bureau report 2007. Another serious matter of concern is that the share of crimes committed by juveniles to total crimes reported in the country has also increased in last three years.
Considering the magnitude of the problem and issues involved, the factors causing delinquency like poverty, broken homes, emotional abuse etc., have to be controlled for prevention of the phenomena of juvenile delinquency and make children the foundation on which the dynamic and vibrant future of a nation can be built.
The Juvenile Justice Act
A need for uniform legislation regarding child welfare for the whole country was felt and in the year 1986, Juvenile Justice Act, fulfilled this need. This act was amended in the year 2000. The Juvenile Justice Act 2000 deals with two categories of children viz. ‘child in conflict with law’ and ‘child in need of care and protection’. As per Juvenile Justice Act, 2000, a juvenile is a person who is below 18 years of age. This act has a provision that a child in conflict with law cannot be treated as an adult. If a child is convicted for any offence, he may spend a maximum of three years in institutional care and its features are as follows:
· The JJ Act 2000 empowers the Juvenile Justice Board to decide if a juvenile criminal in the age group of 16–18 should tried as an adult or not.
· It has also tried to make the adoption process of orphaned, abandoned and surrendered children more streamlined.
· Further, the act has introduced foster care in India under section 44. And the family signing up for taking care of the abandoned orphaned children will be monitored and shall receive financial aid from the state.
· The law mandates that any person giving alcohol or drugs to child would be punished with 7 years imprison or Rs. 1 Lakh fine or both. A person selling a child would be imprisoned for five years or Rs. 1 lakh fine or both.
Need for the amendment of the JJ Act 2000
The National Crime Records Bureau (NCRB) data shows that there has been an increase of offences committed by juveniles, especially in the age group of 16-18. One of the perpetrators in the Delhi gang rape of 2012 was few months short of 18 years age and he was tried as juvenile. He was sent to reformation home for three years and was released in December 2015. This had raised the public demand for lowering the age of juveniles under the act. The 2000 act was also facing implementation issues particularly in cases of adoption. Thus for the above reasons, the Juvenile Justice Act, 2015 was enacted. Some of its salient features with regard to both Children in conflict with law and children in need for care and protection are:
1. It treats all the children below 18 years equally, except that those in the age group of 16-18 can be tried as adults if they commit a heinous crime.
2. A child of 16-18 years age, who commits a lesser offence (a serious offence), may be tried as an adult if he is apprehended after the age of 21 years.
3. A heinous offence attracts a minimum seven years of imprisonment. A serious offence attracts three to seven years of imprisonment and a petty offence is treated with a three year imprisonment while no child can be awarded the death penalty or life imprisonment.
4. It mandates setting up of Juvenile Justice Boards (JJBs) in each district with a metropolitan magistrate and two social workers, including a woman. A Children’s court is a special court set up under the Commissions for Protection of Child Rights Act, 2005, or a special court under the Protection of Children from Sexual Offences Act, 2012. In absence of such courts, a juvenile can be tried in a sessions court that has jurisdiction to try offences under the Act.
5. Child Welfare Committees (CWCs) should be set up in each district with a chairperson and four other members who have experience in dealing with children. One of the four members must be a woman.
6. The Central Adoption Resource Agency will frame rules and regulations for adoption of orphaned children. Inter-country adoption is allowed when no Indian adoptive parents are available within 30 days of child being declared free for adoption.
7. Institutions for child-care must be registered. Corporal punishment of children in child-care institutions is also punishable.
8. Non-disclosure of identity of juvenile offenders by media.
Punishment for Juveniles:
Punishment meted out to juvenile offenders can either be incarceration or non – incarceration depending on severity of the crime. However confinement and detention are the only punishment resorted to even though the Convention on the Rights of the Child requires that locking up children on juvenile or criminal charges be a matter of last resort. Too often it’s the first, or even only resort; or, there simply may be no alternatives in law or practice. Also, children are too often charged and held for acts that shouldn’t be criminal. For instance, street children are frequently presumed to be guilty of wrongdoing and arrested on vague charges—if they are charged at all.
Detention in itself is not harmful, the torture and other ill treatments so often associated with detention and confinement with adults take an enormous toll on children, particularly on their physical and mental health.
Children may also face violence and other abuses from fellow detainees, sometimes instigated or condoned by staff. Along with violence, sexual assault is a specific risk for boys as well as girls, particularly when children are held with adults. Some detention centers lack adequate sanitation, and girls may lack the materials and privacy needed to manage their menstruation. The lack of privacy in areas for bathing or going to the bathroom exacerbates the risk of sexual harassment or assault. Detained child asylum seekers in particular experience extremely high rates of anxiety, depression, and symptoms of post-traumatic stress disorder.
There is ample evidence to show that punitive laws do not improve public safety or deter juvenile crimes. The amendments to juvenile justice act and lack of vigilance on juvenile homes has led to gross violation of human rights and international obligation under the UN convention on rights of the child.
Situation in Juvenile homes
In November 2010, Soumen Mohanty, then 17 years of age, was arrested by the Orissa police under the Explosives Act for aiding Maoist rebels. He was reportedly tortured in custody and was subsequently released after activists took up his case before the state human rights commission. State authorities were ordered to pay him 50,000 Indian Rupees in compensation.
Like Mohanty, 12-year-old Dipak Saikia name changed of Sanitpur village in the northeastern state of Assam was allegedly dragged out of his house by around six police officers for no apparent reason and tortured till late 2009. He, too, was illegally detained and only released after many months of pressure from civil society.
Cases of arbitrary detention and torture, instances of sexual assault and even rape by the security forces has been documented1
A research further revealed that in 197 districts of India, officially deemed affected by internal armed conflicts and noted as “disturbed” under the Armed Forces Special Powers Act (AFSPA) and over 100 districts declared affected by left-wing extremism, the edifice of the juvenile justice did not exist.
In the absence of juvenile facilities for under-aged boys and girls, minors are locked up in prisons with adults, leading to further damage both psychologically and physically.
This report is just the tip of the iceberg. Children are being exploited by both police personnel and militant groups. And unless the government wakes up to this alarming state of affairs, it will only get worse.
Defects in the current system
The two-stage process: The new Juvenile Justice Act intends to adopt a “two-stage process” to ensure justice to children who fall within the ambit of this legislation. The Juvenile Justice Boards have been given the additional responsibility of ascertaining whether a juvenile in conflict with the law will be tried under the juvenile system or the adult system. This process is highly significant and will act as the first step in ensuring that no innocent child is sent to the adult criminal justice system. However, in their current state, the juvenile justice boards are not equipped to take up responsibility.
Increasing pendency of cases: Under the Act, every district is mandated to have at least one Juvenile Justice Board but serious concerns have been raised about the existence and functioning of the boards. Further, the Boards have been struggling with pending cases and more often than not, the duration of trial has exceeded the mandated period. The 2014 data provided for 12,619 trials conducted by the Boards shows that only 16.5% were completed on time. The duration of the trial exceeded even the mandated period of detention of three years in around 30% of the cases. It is rather alarming that in more than 10% of the cases, the trial has gone on for even more than five years.
Flawed composition: The selection of the Board members under the act is not only delayed but also debatable. Though the new law has laid down certain eligibility and ground for disqualification for the statutory authorities it has not materialized the hopes of a formal selection procedure. Leaving this component to the Rules gives blanket powers to state governments to constitute and reconstitute these authorities at will. This ambiguity in selection has inevitably led to the non-appointment, vacancy or extension of tenure of Board members.
Miscellaneous problems: Research has proven that assessment of individual maturity and mental capacity is extremely difficult. It is common knowledge that there is a dearth of professional counselors and psychologists who can be consulted by a Board in every district. While the Juvenile Justice Board is a quasi-judicial body, they take into consideration the social investigation report, police report and the case evidence to reach the final decision on the juvenile in question. They also rely heavily on institutional support of Probation Officers and Juvenile Welfare Officers. Thus, it is rather ironic that most Board members are skeptical about the quality of the investigation reports. The NCPCR’s Report on National Conference on Juvenile Justice Boards indicates that 58% of the board members were not satisfied by the quality of the social investigation report.
Thereby, the decision of the Juvenile Justice Boards to send a juvenile to the adult system is, to say the least, life-devastating for the child. An ill-informed decision would surely be disastrous. Moreover, the adult justice system is known for long delays in the trial process and therefore the child would ultimately bear the cost. Also, prisons are known to be breeding grounds for criminals but the government has turned a blind eye to the fact that by keeping young persons in custody for long periods ranging from 7-20 years in the company of other violent and serious offenders cannot reform them. Stigmatized for life without the possibility of fresh start, having grown up in the company of other hardened criminals, they will have no option but to live a life of crime.
The role of the Supreme Court of India and various High Courts has been very important in interpreting the provisions of the new enactment in such a way that advances the cause of the juvenile justice.
In Laxmikant Pandey v. State2, the Apex Court of India observed that every child has a right to love and affection and of moral and material security and this is possible if the child is brought up in a family and an inter-country adoption should be permitted after exhausting the option of adoption within the country.
In Sheela Barse v Union of India3, the Supreme Court issued directions to the state government to set up necessary observation homes where children accused of an offense could lodge, pending investigation and trial will be expedited by juvenile courts.
In Sheela Barse v. Secretary, Children Aid Society4, the Supreme Court commented upon setting up dedicated juvenile courts and special juvenile court officials and the proper provision of care and protection of children in observation Homes.
To ensure that deprivation of liberty is really used as a last resort, governments should establish and employ true alternatives to detention.
In the justice system, these include diversion of children from the formal justice system through alternative procedures and programs, probation, mediation, counseling, community service, and, where appropriate, “semi-open” facilities that give children supervision and structure but allow them to attend schools in the community and return home for overnight visits.
Children who use drugs should receive appropriate treatment and care. Compulsory drug detention centers cannot be considered a form of “treatment” or an “alternative to imprisonment.”
Children with disabilities should enjoy their right to live in the community, with appropriate support for themselves and their families. When institutional treatment is necessary, it should follow strict therapeutic protocols, including strict safeguards on involuntary treatment. Children with disabilities should receive appropriate legal and other support to enable them to make important life decisions.
The government can release all children detained for alleged security related offenses unless they have been charged with a recognizable criminal offense while strictly complying with international legal obligations to detain children only as a last resort and for the shortest possible period of time.
When prosecuting children alleged to have committed illegal acts, treat children in accordance with international juvenile justice standards. In particular, ensure that children enjoy full due process guarantees, including access to counsel, the right to challenge their confinement, contact with their families, and separation from adult detainees. Ensure that any punishment for criminal offenses be appropriate to their age, and be aimed at their rehabilitation and reintegration into society.
The government should set up effective working committees to investigate all allegations of torture and ill-treatment against children in detention, and appropriately prosecute those responsible. And it must also allow independent humanitarian agencies, including UNICEF, unrestricted access to all children in all detention facilities.
The government needs to revise the justice system dealing with cases involving minors and undertake a range of actions including amendments to the legislation, development of practices, training for personnel to take children out of general justice system and create a separate juvenile justice system.
“We are guilty of many errors and many faults,
But our worst crime is abandoning the children,
Neglecting the fountain of life.”5
In order to reform the juvenile in conflict with law, the juvenile system as a whole needs to be reformed first. The ramshackle conditions of observation homes and juvenile justice boards need to be addressed immediately. The nation must strive to provide education, health care, sanitation and housing to every child. Apart from multiple laws governing children, there exist many other problems at the grass-root level.
Juveniles involved in crimes are not criminals, in fact, they are victims of society. Juvenile delinquency can be stopped at an early stage, provided special care is taken both at home and in school. Instead of labeling them as ‘criminals’ or ‘delinquents’, steps need to be taken to give them a scope of rectification. It is now, being widely accepted that juvenile delinquent needs the sympathy and understanding of our society and not the heavy hand of the law.
1 report titled “Nobody’s Children: Juveniles of Conflict Affected Districts of India,” by Asian Centre for Human Rights (ACHR).
2 1984 AIR 469
3 1986 AIR 1773
4 1987 AIR 656
5 Quote by Chilean poet Gabriela Mistral