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Children cannot be made to pay price for inefficiency of system

July 16, 2014 20:51 IST

The eye of the debate on juvenile justice has been focused too tightly on the quantum of punishment rather than the current approach, both to the juvenile, and also, for making him/her accountable, says Puja Marwaha

The public debate that was witnessed as a consequence of the infamous 2012 Delhi rape case, where a 17-year-old boy was convicted, has now taken a serious turn with the overall perception of juvenile involvement in crimes.

Following the Supreme Court’s judgment upholding the constitutional validity of the existing JJ Act, 2000, the Ministry of Women and Child Development has put up a draft JJ Act, 2014, with the intent to repeal, and re – enact the existing JJ Act, 2000. A crucial provision in this new draft is related to the reduction of legal age of a juvenile from 18 to 16 years. This shift, if introduced, would end in children of this age group to be treated them as adults and allow the imposition of tougher penalties for heinous crimes. Much of the focus of these initiatives is on cancelling the public perception of lighter punishments for juveniles, especially the feeling of outrage that these youth managed to avoid.

This emphasis on creating a caveat, an exemption, or a procedure for singling out cases that are deemed ‘suitable to be tried as adults’ overlooks some very basic assumptions that have so far guided India’s policy and legislative framework on juveniles, and it is therefore important to reiterate some of these before moving forward. Some of these assumptions include – the understanding that children are different from adults, and therefore the approach to managing, guiding, and finally mainstreaming those involved in anti-social activities ought to be different. The chosen approach thus, was one of reform rather than of retribution, while ensuring the rights of the victims and their families.

From a child development perspective, children are seen as highly influenced by their life experiences, peers and the external world. The situations and circumstances in which they find themselves are often those to which they are driven, often due to lack of protective and guiding influences in their’ lives. The society’s role in ensuring both protection and positive opportunities for personal development and growth is thus considered crucial, and a gap in this may lead the child onto darker influences, or a muddied view of socially acceptable actions. 

The reasons why India needs to adhere to the 18 year age cut off for juvenile needs further elaboration. In addition to adhering to the international conventions ratified by India, there is a scientific basis for arriving at the 18 years cut-off age of adulthood. The process of physical, mental and cognitive development reaches its full potential around this limit; the ability to judge concepts of long-term or future repercussions of their actions, and the ability to comprehend the various dimensions of risk-taking activity evolve; and there is improved coordination between social, emotional and cognitive development.

Conversely, this indicates adolescence as a period where children are not fully capable of thinking through their actions. Children, even till the age of completion of adolescence, are thus highly susceptible to negative influence, lack foresight and inability to estimate risks, which lead them to make poor decisions. This is the reason they are considered to be less culpable than adults and the legislations factor in this important differentiation.

Further, the eye of the debate has been focused too tightly on the quantum of punishment rather than looking into what the current approach actually offers, both to the juvenile, and also, for making him/ her accountable. The legislation under scrutiny, ie, the Juvenile Justice Act, 2000 mandates for an age-appropriate process for dealing with a child in conflict with the law, which is different from the adult system of trial, conviction and punishment. A social legislation, it takes into account the age, circumstances, maturity and nature of crime in the process of holding the child accountable, treating him/ her and offering care and protection towards rehabilitation as well as reformation.

At the same time, against the currently popular conception that juveniles are let – off easily, it actually provides numerous ways for the child to be held accountable. The child can be released on bail with or without surety, or be placed under the supervision of a parent/ probation officer/fit person/fit institution. There are also provisions for a child to be placed in detention for a period of 4 months during the inquiry, and for the child to be directed to participate in group counselling, perform community service, or be placed in detention for a period of up to three years. The Juvenile Justice Board can also place the juvenile in a place of safety in instances of serious crimes.

The purpose is to help the child understand the serious consequences of their actions, and allow them to repent, heal and reform. The fear that 3 years rehabilitation may be too little for reformation would appear unfounded if each mandate of the Act were adequately implemented. The Act requires children to be constantly monitored, guided and counseled.

The law has provisions of segregation of juveniles on the basis of the nature of crimes as well as age of the juvenile. It lays down that if the juvenile is more than 16 years and has committed a serious crime, and the other provisions of the act are not suitable or sufficient, an order may be passed to keep the child at any place of safety and must be reported to state government. Consistent follow-ups and hand-holding have also been prescribed. Unfortunately the Juvenile Justice Act even now faces hurdles in its implementation.

When a child or an adolescent commits heinous crimes it shakes our very belief about conventionally understood or held notions of childhood. After all a child is someone who is innocent, dependent, needs care and protection. How can this child then commit crimes and that too sometimes such heinous crimes? It is but natural to raise this question. However we also need to ask another question, what or who pushed the child into committing any crime?

Our experience reveals that often times such children have had dysfunctional families, the significant adult in their lives and society at large have failed them thereby depriving them of all possible safety nets, care and guidance, which is every child’s entitlement. Of the total juvenile cases in 2013, 79 per cent belonged to families whose annual income levels were below Rs 50,000 -- a telling fact that gives us an insight into their lives and struggles.    

What needs to be at the center of this debate is why children are coming into conflict with the law? Where are the preventive policies and mechanisms that can ensure a protective environment for each child in our country? Clearly we are not doing enough for these families whose children have ended up into child conflict with law. Every child coming into conflict with the law is a reflection of the failure of the state and society. 

It is also significant to note that in the year 2013, a total of 31,725 persons were found to be involved in juvenile crimes, which comprise 1.2 per cent of total crimes in India. Of these 31,725 cases, sexual crimes included 2,074 rape cases, 1,624 cases under outrage of modesty, and 387 cases of insulting the modesty of women, or total of 4,085 cases (12.8 per cent of the juvenile cases). Looking at cases related to sexual offences specifically of the 16-18 age group, these aggregate to 2,808, or 8.8 per cent of the total juvenile cases. Further, in terms of percentage of total crimes, the cases of 16-18 year age group amount to a negligible percentage of the total crime incidents in India.

With approximately 131,663 juvenile delinquents which is just 0.031 per cent of the total population of children (42, 28, 08,543) between 0-18 years under the government’s care, it is not impossible to guide, support and handhold every juvenile. Yet, current scenario of implementation machinery showcases the low priority accorded to the reform oriented aspects of the legislation. The low priority is illustrated in the recent incidents of Delhi Observation Homes, which were clearly found ill-kept, inadequate, and severely lacking in even basic provisions, leave alone guidance, counselling, and reform, whereupon, children looked forward to creating opportunities to abscond from such depressing, restrictive surroundings.

At a broader level, hurdles in true implementation of the reformative approach include lack of trained child protection professional in adequate numbers to deal with vulnerable children; under resourced and understaffed existing child protection machineries; limited experience of implementing options such as group counseling and community service; and an absence of a multidisciplinary team of professionals who can work with every child who comes into the Juvenile Justice system.

Children cannot be made to pay the price for the inefficiency of a system -- clearly reflected in the poor implementation of this legislation. Strengthening the existing system through the effective implementation of the legislation should be the call of the hour, rather than its amendment. Furthermore, one incident, however grave, cannot constitute the basis for amending legislation which is yet to be implemented in its entirety.  

Having worked with and for children for over 30 years, CRY believes that an amendment to lower the age of a child would violate the very right to equality, life and liberty and would go against the principle of the ‘best interest of the child’. The Government of India by proposing to divert children committing heinous crimes into adult criminal justice system is not only taking a regressive step, but is also going against both the national standards, i.e Constitution of India and International Standards such as the Convention on the Rights of the Child.

There is a purpose, thought and body of knowledge behind the Juvenile Justice System. This move by the MWCD questions the very spirit, the belief and the body of knowledge that has led to the establishment of the Juvenile Justice system. The need of the hour is to strengthen the implementation of the Juvenile Justice Act in both letter and spirit.

Puja Marwaha is CEO of CRY -- Child Rights and You

Puja Marwaha