Once seen as a secret weapon, India’s young population is now being referred to as a ticking bomb.
Against the backdrop of one of the most heinous crimes committed against humanity on December 16, 2012,described as the “Nirbhaya Case”, involving a juvenile as one of the perpetrators of rape and extreme torture, the decision-makers of India finally found themselves under an obligation to carry out stringent and uncompromising legal and administrative policy changes with respect to laws protecting women against such monstrosity.
The intense public outcry that followed the grotesque incident demanded that the juvenile rapist be prosecuted before an ordinary court of law.The need for this specific demand arose due to the existence of child-favouring laws in our country.
In India, there is a separate justice system dealing with minors. It is feared that if juveniles are subjected to the same legal process or procedure as adult offenders, they may end up being victims of the system themselves. This concept is based on the principle of Doli Incapax - the legal assumption that a child is incapable of developing a criminal intention to commit an offence.As a result, it had developed a unique justice system( The Juvenile Justice Act), which is lenient both in terms of procedures and facilities, such as police interrogation of children, lawyers' attitudes, judges' perceptions of guilt, prison staff handling, living, educational, recreational, and safety conditions, as well as a rehabilitation and reintegration programme.
The majority of India, on the other hand, felt that the cruel deed perpetrated against Nirbhaya was extremely vile and grotesque. Also, that it violated collective morality to the point where prosecuting the lone juvenile assailant before the children’s court felt like another crime being committed against the victim.
All the culprits displayed a sickening lack of gender sensitivity which shook the nation to its very core. On interrogation, the juvenile rapist in question described the fateful night with an ease which was not only alarming and guilt-free but it also spoke of a much larger evil plaguing our society - male entitlement and sexual objectification of women. This incident further necessitated the establishment of a Juvenile Justice Act well-equipped to tackle the growing menace of young rapists and murderers.
Following that, the Juvenile Justice (Care and Protection of Children) Act 2015 ( the “JJ Act”) came into force, repealing the previous Act of 2000 and laying down the possibility of booking juveniles as adults as one of its provisions. Still, it could not be applied retrospectively to the culprit in question.
Although noteworthy, the enormous support shown by both ruling as well as the opposition party raised an essential question - Why are we in such a hurry to prosecute16-year-olds as adults?
Juvenile delinquency is defined as “the habitual committing of criminal acts or offences by a young person, especially one below the age at which ordinary criminal prosecution is possible.” A juvenile delinquent is the direct outcome of an unfavourable environment.
Every child who comes into touch with the juvenile justice system is a child who has been robbed of the opportunity to live a safe and secure upbringing because they have fallen out of the protective net at some time. Children who have run afoul of the law should be treated as if they were in a challenging situation. The juvenile justice system's strategy should take into account children's vulnerabilities and ensure their rehabilitation. Therefore, before defining the right age by which a child can assume criminal responsibility, it is pertinent to factor in the social, economic and cultural conditions that contribute to such delinquent tendencies.
Worldwide, the average minimum age of criminal responsibility is twelve years. If we go into specifics, it’s ten in England and Wales, eighteen years in Brazil, fourteen years in Japan, with a stark contrast of it being seven years in India. Due to elements like adverse socio-economic backgrounds, lack of parental support, responsibilities of unregulated younger siblings, poor school attendance, and exposure to violence in social circles, children in India assume the role of working caregivers as early as seven years of age.
These problematic circumstances force them into early adulthood, which negatively impacts their physical and mental health. It makes one wonder, by implementing such strict laws, are we also taking away their last chance at a normal childhood?
On the corollary, the new and improved Act appeases the protesting majority in more ways than one, promising never to let another convict walk away with lenient sentencing in such brutal cases of sexual offences on the grounds of them being minor. What seems to be missing from the picture now is the primary intention with which the Act was formed - To provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles. The juvenile justice system has to effectively balance society’s interests and the interests of children in conflict with the law. While the victim relies on the court to adequately punish the offender, the child too depends on the court for their reintegration as respectful, happy adults back into society.
TheJJ Act creates a protective barrier for all the children in conflict with the law. It is believed that the shift from a rehabilitative approach to a punitive one can deter future criminal behaviour by cultivating fear in the minds of potential offenders. Still, it may not be best suited to cases where the offending juvenile lacks “mens rea” - or a criminal intention to commit the act.
More importantly, there exist some gaps in the Juvenile Justice Act which need to be addressed. The current juvenile justice system lacks clarity and transparency, from its dedication to the cause of identifying pre-delinquents to its long-range surveillance of former young offenders.
PROSECUTING MINORS AS ADULTS
The difficult task of determining an adultlike frame of mind
The Act requires the Juvenile Justice Board ( Hereinafter referred to as “JJB”) to carry out preliminary inquiries within a few months before coming to the conclusion of trying the minor offenders as adults in a regular court of law for serious or heinous offences. It is expected to precisely identify the mindset with which the crime was committed through inquiry.
Whether the child has the emotional intelligence to foresee the consequences of his actions or has the level of maturity that constitutes adulthood is a decision left for the board members to decide with their limited expertise and experience in child psychology. If proven in the affirmative, there is still no way to know if the child can assess the risk and opportunity and act on it to restrain themselves in time. At this stage, they underestimate risk, give in to their impulses, are susceptible to negative influences, and lack foresight. Their ability to understand legal processes and make decisions is not the same as that of adults. This is endorsed by an internationally renowned expert in child and adolescent psychiatry, Shekhar P. Seshadri, Department of Child and Adolescent Psychiatry, NIMHANS, Bengaluru.
The absence of a mandatory provision requiring the assistance of child psychologists, experts and activists is another point of contention we must pay attention to.
At this moment, one wonders whether the Act is notoriously good on paper than practice, considering the void of well-developed infrastructure, absolutely necessary for executing the provisions laid down under the Act.
On top of that, the ambiguity of such a process breeds arbitrariness in the concerned members. The JJB has the ultimate power to decide a child’s fate based on conclusions that could be wholly inaccurate. For instance, under the POCSO Act, a child below 18 years of age can’t legally consent to any sexual act, and he could be tried for the offence of rape as an adult if found to be involved in any such action.
Reducing the threshold age to 16 does not lower juvenile crime rates.
Over 93 per cent or more than 12,000 of all juveniles apprehended in Delhi in the last three years (till October 8, 2020) were first-time offenders. This statistic alone must compel us to give up our obsession with punitive methods for restoring justice. It serves no purpose in the long run other than providing instant gratification to the victims of the crime. It fails to act as a deterrence to prevent others from committing similar offences. Crimes against women and children have only increased with time. Legal experts, jurists and activists have pointed out the case of United Status to help us learn from their mistakes, where more juveniles are tried as adults than in any other country; research by the Justice Department shows stricter punishment fails to deter youth crime in general or reduce the likelihood that juveniles sentenced as adults will commit crimes in the future.
If more than 68 girls and women were raped every day in 2012, the number increased to 91.38 in 2019, according to the NCRB data. It is evident from the numbers that the only positive outcome of the administrative and legal amendments was the rise in the number of victims coming forward to report their cases. Our concerned authorities face problems when implementing training programs because of the lack of proper infrastructure, facilities, child psychologists, and low budget allocation. Ironically, members of the adult criminal gang have faced no such obstacles when forming training groups to teach young children crimes like chain snatching, petty thefts etc. On top of that, if history is proof, the series of minor offences gives these juveniles the confidence to commit bigger crimes. These past trends and patterns must be analysed and rectified at the right time in the initial stage.
Torture in Police Custody
Before the juvenile can be properly informed of their rights and obligations under the JJ Act, the first person who comes into contact with them is the police. These interactions are problematic since every exchange of information between them is stress-inducing, consists of an insensitive exchange of words, lacks sympathy, creates anxiety and discourse between the two parties.
While the juvenile offenders might be less complicated to understand and deal with, they require more care and attention than any other offender. If the police handle juveniles the same way they treat hardened offenders, the concept of special treatment for juveniles, as envisioned by juvenile legislation, is defeated. To perform their functions more effectively, special juvenile police units include law enforcement officials who frequently or exclusively manage juveniles or are primarily engaged in preventing juvenile crime or handling juveniles or youngsters under this Act. They shall be specially tutored and trained. In actuality, this has not been the case. It seems good on paper, but it has hardly been practised. Recently, nearly 41 juveniles were held and subjected to custodial torture, criminalisation, and post-custodial coercion in UP. In another case, a Kerala kid committed suicide just days after being released from police custody, and the cops are said to have repeatedly struck the child with batons.
Taking these matters considering, the Supreme Court ruled in February 2020 that all juvenile justice boards in the country must follow the "letter and spirit" of the requirements of the Juvenile Justice (Care and Protection of Children) Act, 2015, adding that the law aimed to safeguard children "cannot be flouted by anybody, least of all the police." Unfortunately, very little has been done to show significant improvements in this area.
The Way Ahead
When a child commits a crime, it stirs an outrage. Sadly, when we fail to provide quality education, positive role models and moral guidance every other day, it does not seem to produce similar gasps of shock from the media and authorities concerned. It must be understood that the law alone will not be enough to combat rising delinquency. People are lending into the world of recklessness without even realising that what they are doing is illegal. Surprisingly, most parents or immediate family members are the ones who teach their children how to commit their first crime before they can even learn their ABCs. The problem is far more widespread and extensive than we give it credit for. Statistics on children who have run afoul of the law or fallen into delinquency show that they often come from a family where violence and ignorance have been ingrained in their culture. Boot camps, scared straight, and wilderness programmes have been shown to be less effective and even harmful in avoiding recidivism among juveniles. Individual rehabilitation, skills training, community settings, mentoring, and academic success are preferred above other programmes. In the months following their first transgression, keeping young offenders away from environments that encourage them to commit crimes is critical. Suppose they are prosecuted and imprisoned as adults. In that case, they will simply become more bitter and cruel to society and losing juveniles to such delinquencies is always a significant loss to a nation like ours.
(The author is an advocate at present, who did her post-graduation in law from Delhi University. Her area of interests are public policy, sociology and law).