Events & Issues

New Delhi, 22 January 2013

Juvenile Justice System

RESPOND BUT CAUTIOUSLY

By Dr S Saraswathi

(Former, Director, ICSSR, New Delhi)

The profound involvement of a teenaged boy in the recent gruesome incident of gang-rape in Delhi has raised a number of questions surrounding juvenile offenders and the juvenile justice system (JJS) of India.  Such an incident is not rare in recent times, but one among many involving adolescents in crimes very often in the company of a group of adults.

As crimes grow in number and severity, we have to re-examine legal, judicial, and punitive provisions pertaining to them besides the most important aspect of social environment. Crimes do not happen in a vacuum.  These are social acts.

Organized crimes by adults make use of youngsters. Terrorist groups are said to be kidnapping and training adolescents, who are more pliable than adults for indoctrination and even execution of the act. They also use them as a shield to protect themselves. Hence, there is an urgency to ascertain every factor behind rise in juvenile crime.

When the modern juvenile justice system, as separate from the general justice system began in the mid-19^th century, conditions were different. It started to protect the young offenders subjected to the same harsh treatment given to adult criminals. The system has progressed gradually from the concept of “welfare” of the juvenile to that of “rights” approach.  Ideas such as revenge, retribution, and expiation have given place to reformation and rehabilitation of the offender, protection of the society, and deterrence to repetition of the crime.

The system, in the course of its evolution in England and other western countries, has rightly placed the juvenile offender at the centre since penal laws and correctional institutions need to be humanized in accordance with progressive ideas of human rights. The Juvenile Justice Act of 1986 in India affirms this non-penal approach that it is an Act to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent children and to adjudicate matters relating to and disposition of delinquent children. In 2000, the title of the Act itself was altered as Juvenile (Care and Protection) Act.      

The system has become more and more sympathetic to the delinquent in spirit, and anti-punitive in purpose.  The Rules made under the Act in 2007 refer to international injunctions regarding child rights. Among these are rights of children, protection of vulnerable children in order to further their right to survival, development, protection, and participation, minimum standard in the administration of juvenile justice, prevention of juvenile delinquency, and child-friendly approach in handling delinquents.

The rules are very detailed and are made in the best interests of the child, and cover all aspects of a child’s life. The basic principle underlying these Rules is that a juvenile or a child or juvenile in conflict with law is presumed to be innocent of any malafide or criminal intent up to the age of 18 years – a presumption that has to be maintained throughout from the initial contact to the stage of after-care.

As a result, humane concepts such as social justice, child welfare, and child rights dominate the system.  And of course, no one can grudge this positive development, which is a mark of progress of human civilization.

But, the development faces an unexpected challenge from growing criminality due to complexities in social environment, easy availability of sophisticated tools, new kinds of adjustment problems in the changing society, and advanced forms of crimes. The place and role of juveniles in the crime world today do not remain static.

 “Save the child” was once the object in developing the JJS. Today, the crime scenario in the country is different and with it, our concern has grown wider and cannot be confined to the child even under the JJS. 

The judicial system has another responsibility to protect the society in general, and the vulnerable people in particular from repeat crimes of the same offenders and from others.  This necessitates certain vital corrections to our correctional system.

A number of atrocious crimes and also repetition of similar crimes committed by technically juveniles are reported frequently. This raises questions regarding the adequacy of our laws and rules.

When a juvenile commits a very brutal crime and poses a threat to society, should he be protected on account of his age and freed from proper trial and appropriate punishment? The Juvenile Justice (Care and Protection of children) Act 2000 is generous in granting separate trial and nominal punishment of confinement up to three years in a Reformatory School.       .

Age definition of a child varies in Indian laws. The central Children’s Act, 1960 as amended in 1978 differentiates boys and girls and defines child as a boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years. This was adopted in the Juvenile Justice Act of 1986.                                 

The Juvenile Justice (Care and Protection) Act of 2000 removed the age distinction on sex basis and defines juvenile as a person below 18 years, which is in conformity with international standards.

In the aftermath of the Delhi gang-rape case, there has arisen a vociferous demand for amending the law to make punishment more severe for heinous crimes like rape and murder. Should a juvenile actively participating in such crimes as in the Delhi incident be treated as an innocent child ignorant of the consequences of his brutality?   

In the case of juveniles caught in terrorist activities – domestic or international--- there is a reasonable argument that they are also victims of terrorism in which they participate. 

Criminal gangs indulging in petty thefts to planned murder, terrorists, drug traffickers and other international crime operators are not any age-specific groups.

 “Catch them young” – a maxim coined for promoting talent in arts and crafts and for training athletes and sportspersons -- seems to have been adopted   in crime business also. The criminal world is prone to penetrate into the children’s world and take advantage of the humane juvenile justice system.     

However, no change in the law can be made in haste as an instinctive reaction to some rare cases or in a mood of anger or under the pressure of public demand.  Over-enthusiasm to pacify public anger by stricter laws on paper will achieve no purpose unless cases are decided fast and prescribed punishment is certain if the guilt is proved. 

The system has to respond. It has to protect children caught in the web of adult crimes, and also “save the society” from all people with criminal instincts. ---INFA

(Copyright, India News and Feature Alliance)