The Juvenile Justice (Care and Protection of Children) Amendment Bill, 2015, declares its aim to consolidate and amend the law relating to children alleged and found to be in conflict with the law and children in need of care and protection (CNCP) by catering to their “basic needs”. The Bill makes a mockery of the Constitution and the United Nations Convention on the Rights of the Child (UNCRC) by allowing children between 16 and 18 years, alleged to have committed heinous offences, that is, offences punishable with imprisonment for seven years or more, to be tried and sentenced as adults. In the history of regressive law-making experiences around the world, this must surely take the cake.
In the history of child rights in India, the new Bill is in retard of what was available 150 years ago.
The Apprentices Act, 1850, was the first piece of legislation dealing with children in conflict with the law. The Act allowed courts to treat children who had committed petty offences as apprentices instead of sending them to prison. The Reformatory Schools Act, 1897, was another radical piece of legislation in the colonial times. The law provided that children under 15 who were sentenced to imprisonment may be sent to reformatory schools instead of prisons. Since then the tendency has been to expand the scope of the juvenile justice law and move away from the carceral system. The three presidencies—Madras, Bengal and Bombay—promulgated their own codified laws on children. The Madras Children Act, 1920, established a separate juvenile court and the residential institutions under it, thereby ensuring that children did not face the criminal justice system. The Bengal and Bombay Children Acts of 1922 and 1924 respectively had different qualifying age for defining children but all the Children Acts of that time had certain common features. These laws were intended to dissociate children from the criminal justice system an adult offender would face by providing for the establishment of separate children’s courts to deal with all cases covered under the Act. Additionally, separate residential institutions were set up where children in conflict with the law would stay pending conclusion of their proceedings or even after the disposal of their cases by the children’s courts directing them to be sent to an institution. Post-Independence, in 1953, Parliament discussed a Children’s Bill, which was dropped in view of the reorganisation of States.
On November 20, 1959, the United Nations General Assembly met in a plenary session with the representatives of 78 countries and unanimously adopted the Declaration of the Rights of the Child. India was a party to the declaration. In the same year, the Children Bill was moved in Parliament. It was passed in 1960 as the first model Central legislation on the subject. However, the law was to be applicable only to Union Territories with the assumption that subject matters constituting juvenile justice fell in the State List of the Constitution. The Children Act, 1960, set up two separate adjudicatory bodies to deal with children in conflict with the law and children in need of care and protection, prohibited the imposition of the death penalty or sentence of imprisonment on children and the detaining of children in jails or police stations.
In 1974, India evolved a national policy for the welfare of children and a year later the Integrated Child Development Services (ICDS), a child welfare scheme, was born. Between these and the Juvenile Justice Act, 1986, the Sixth and the Seventh U.N. Congress on the Prevention of Crime and Treatment of Juvenile Offenders were held in Caracas, Venezuela, and Beijing, China culminating in the adoption of the U.N. Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) in 1985 resolving that all participant countries would adopt those rules in their juvenile justice systems. A year later, in 1986, the Supreme Court, in Sheela Barse vs Union of India ordered that the justice delivery system suitable for juvenile offenders should be enforced on all States and such enforcements had to be reported back to the court. In the same year, Parliament passed the Juvenile Justice Act for the whole country except the State of Jammu and Kashmir. The Act retained the primary features and the scheme of the 1960 Act, and extended the protection to boys below 16 years and girls below 18 years, like the 1960 Act and provided for the establishment of Advisory Boards, the creation of a Children’s Fund and the appointment of visitors for each institution. Between 1986 and 2000, a series of interesting developments took place globally; the world was also fervently moving away from retribution to restorative justice. In 1989, on the 30th anniversary of the Declaration of the Rights of the Child, the U.N. General Assembly adopted the U.N. Convention on the Rights of the Child (UNCRC). India ratified the convention in 1992. Two years earlier, the U.N. Rules for the Protection of Juveniles Deprived of their Liberty, was adopted setting out rules emphasising the protection of juveniles and prevention and deprivation of their liberty and establishing that achieving juvenile justice was now a question of political priority.
Keeping this global momentum on securing child rights in mind, Parliament enacted the Juvenile Justice (Care and Protection) Act, 2000. This Act, unlike the 1986 Act, moved away from sex-discriminatory definition of juvenile and defined a child (whether a boy or a girl) as a person who has not attained 18 years of age. This was done keeping in mind the UNCRC as well as the global understanding of fixing 18 as the cut-off age for criminal culpability. It also moved away from archaic and problematic terminologies such as delinquent juvenile and neglected juvenile and substituted them with juvenile in conflict with the law (JCL) and CNCP respectively. The setting up of Juvenile Justice Boards as children’s courts was meant to take the agenda of restorative justice and reformation a little further.
The 2015 Bill sounds the death knell for 150 years of progressive lawmaking and juvenile justice and society as a whole. The proponents of the Bill contended that the practice in developed societies indicated that juveniles in the age group of 16 to 18 years committing heinous crimes should not have the protection of the Act. The Women and Child Development Ministry claimed that a term in reformation homes did not necessarily lead to behavioural correction. While it is unclear which developed society has shown a decrease in juvenile crimes by subjecting adolescents to the criminal justice system, it might be instructive to study the United States and British experience, since both ostensibly qualify as developed societies.
Cycle of justice In fact, the picture is quite contrary to what is painted. In the U.S., following a spate of youth crime in the 1990s, 47 out of 50 States lowered the age of criminal responsibility from 18. However, recidivism and research, especially advancement in neuroscience, indicated that this was a failed public policy. In recent years, as many as 23 U.S. States have passed 40 pieces of legislation to keep juveniles out of the criminal justice system. In the past six years alone, five States that had fixed criminal responsibility on children under 18 have increased the cut-off age and eight other States are in the process of introducing laws raising the age of criminal culpability to 18. Studies have indicated that adolescents prosecuted in adult courts or who are detained in adult prisons are more prone to commit violent crimes than those who go through the juvenile justice system.
In the American context, it is also important to interrogate this back-and-forth movement in juvenile justice. The “cycle” of juvenile justice, according to a pioneering work of Bernard and Kurlychek (2010), explains present juvenile justice policies and predicts future changes in them. Juvenile justice, they argue, operates in a cyclical fashion, in which the same sequence of policies has been repeated several times in the last 200 years in the U.S. The cycle consists of four steps. First, the general public and the lawmakers believe that juvenile crime is at an all-time high, there are too many harsh punishments, and there are not enough lenient punishment options. Officials are often forced to choose between punishing juvenile offenders harshly and doing nothing at all. Juvenile crime is thought to be unusually high and is now blamed on the “forced choice” between doing nothing at all and punishing the offender harshly. Next, a major reform introduces lenient treatment for juvenile offenders, creating a middle ground between punishing harshly and doing nothing. Finally, juvenile crime will again be imagined as unusually high, and this time will be blamed on the lenient treatment. Harsh punishments will now gradually expand and lenient treatments gradually contract, and the cycle will be repeated again. This cycle, frequently repeated in the history of the U.S., comfortably aligns itself with the formation of the House of Refuge, the formation of the juvenile justice system and the current dispensation of the “get tough” movement. The latter ostensibly treats young offenders as deserving of punishment and moves away from the belief that they are individuals in need of rehabilitation. Thus, they argue, in order to understand juvenile justice policy and practice, the reformer’s ideas about juvenile crimes and juvenile offenders must be interrogated first. There are similar pieces of evidence from England and Wales in the United Kingdom.
In India, the Women and Child Development Ministry and other proponents of the amendment banked on the myth of the prowling juvenile to argue that juvenile crime has increased exponentially. The Ministry misreads National Crime Research Bureau (NCRB) data to state that overall crimes committed by juveniles under the Indian Penal Code (IPC) between 2004 and 2014 have risen significantly. However, a careful look at NCRB data reveals that crimes committed by children as a percentage of all crimes committed in the country have risen from 1 per cent to just 1.2 per cent in the last 10 years. The Parliamentary Standing Committee on Human Resource Development on the Bill noted this discrepancy in data and observed that the Bill was based on “misleading” data. It concluded that the existing juvenile system not only was reformative and rehabilitative in nature but also recognised the fact that 16-18 years was an extremely sensitive and critical age requiring greater protection. Hence, there was no need to subject juveniles to a different or adult judicial system as it would go against Articles 14 and 15 (3) of the Constitution.
The adult-prison-for-adult-crime slant, ostensibly triggered by the Delhi gang-rape incident, fits into the same cycle of juvenile justice mentioned by Bernard and Kurlychek, although no study or research on the juvenile crime trends have ever indicated that they are on the rise. The Justice J.S. Verma Committee had refused to recommend any change in juvenile justice law, including for sexual offences. Needless to say that this get-tough approach is completely repugnant to the heart of the Juvenile Justice Act, which in its statement of objects and reasons spells out its reformative and rehabilitation-focussed approach. The turn away from adversarial justice has been recognised by the Supreme Court as well, in the Act in particular and the criminal justice system in general. In Hari Ram vs State of Rajasthan , the court recognised that the very scheme of the Act was rehabilitatory in nature and not adversarial. In Daulat Ram vs State of Haryana , as early as 1972, even before legislating on juvenile justice, the court noted the impact of the carceral system on young offenders. While scrutinising Section 6 of the Probation of Offenders Act, 1958, a special piece of legislation specifying procedure for persons under the age of 21, the court observed:
“Now the object of Section 6 of the Act, broadly speaking, is to see that young offenders are not sent to jail for the commission of less serious offences mentioned therein because of grave risk to their attitude to life to which they are likely to be exposed as a result of their close association with the hardened and habitual criminals who may happen to be the inmates of the jail. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. This would clearly do them harm than good, and for that reason it would perhaps also be to an extent prejudicial to the larger interests of the society as a whole. It is for this reason that the mandatory injunction against imposition of sentence of imprisonment has been embodied in Section 6. This mandate is inspired by the desire to keep the young delinquent away from the possibility of association or close contact with hardened criminals and their evil influence. This section, therefore, deserves to be liberally construed so that its operation may be effective and beneficial to the young offenders who are prone more easily to be led astray by the influence of bad company.”
The Women and Child Development Ministry has claimed that reformation homes are not leading to reformation. This is because the homes are understaffed and underfunded, a point that the Standing Committee also noted. To say that reformation homes are not leading to reformation and therefore adolescents should be sent to adult prisons is the most outlandish claim a state has ever made and it is the most serious form of abdication of duty.
Jhuma Sen is Assistant Professor and Assistant Director, Centre for Human Rights Studies, and Joint Member Secretary, Committee of Gender Sensitisation against Sexual Harassment, Jindal Global Law School, O.P. Jindal Global University, Sonepat, Haryana.
Footnotes
1. Kumari, Ved. “The Juvenile Justice System in India: From Welfare to Rights”. Oxford University Press, USA, 2004.
2. (1989) 3 SCC 596
3. See http://scroll.in/article/777569/juvenile-justice- bill-23-us-states-have-moved-to-reverse-approach-to- child-law-that-india-is-taking
4. See http://www.nytimes.com/2013/09/17/opinion/ a-court-just-for-juveniles-in-ny-html?_=2&
5. Bernard, Thomas J., and Megan C. Kurlychek. “The cycle of juvenile justice”. Oxford University Press, 2010.
6. (2009) 13 SCC 211
7. AIR 1972 SC 2434
COMMents
COMMents
SHARE