A detailed analysis of the causes of crimes among youth and also a thorough study of the juvenile justice policy adopted by India following the guidelines laid down by international bodies.
Frederick Douglass had once said, “It is easier to build strong children than to repair broken men”. The Juvenile Justice system operating in India surmised this statement from its very initial stages of development as it believes that it is better to reinstitute Juvenile offenders rather treating them as adult offenders. Juvenile Delinquency is a pervasive mess that is erupting like a polluting pod in our country. The biggest example of which can be the egregious incident which took place in our very own capital city, Delhi. On the 16th of December, 2012 twenty three year old Jyoti Singh was beaten, gang raped and tortured in a private bus in which she was travelling with her friend. There were six people accused of the loathsome crime out of which one was a Juvenile. The incident shook the country’s roots and even laymen started questioning the spirit of the Juvenile Justice system in India.
This paper aims at explaining the legal explication of the term ‘Juvenile’ and the measures that have been listed by the Legislature, to be adopted, in case a situation arises such that the perpetrator of the crime is a Juvenile, in conflict with law. Further, this paper presents the evolution of laws pertaining to Juveniles and a juxtaposition of the Juvenile laws that are present on an international echelon with that of India. It looks into the constitutional validity of the Juvenile Justice Act, 2015 and also accentuates the causes and theories behind Juvenile Delinquency. It addresses the various factors which compel a child to indulge into criminal activities. The paper concludes by stating a few measures that could be undertaken in order to address the problem of Juveniles who commit serious criminal activities in India.
JUVENILE JUSTICE: A HISTORICAL OVERVIEW
Youth committing crimes have always been distinguished from adult offenders. There has always been a clear distinction in the treatment meted out to young offenders as compared to adults. Some 4000 years ago, the Code of Hammurabi (2270B.C.) discussed “runways”, which meant, children disowning their parents and sons cursing their fathers. After that, approximately 2000 years down the line, came the Roman civil law. Later the cannon (church) laws made distinctions between adults and juveniles based on the age of responsibility. The Jewish law clearly specified the age of juvenility. The Talmud specified conditions under which immaturity was to be considered while imposing punishment. Finally, the Romans looked at juvenile laws in a more practical sense. They were of the opinion that children should be penalized for those offences where they had both the intention as well as the knowledge. But again there prevailed laws in Rome which punished adults more than children for committing the same offence. Children were subjugated more to restitutions than they were to corporal punishment. Only those children who were incapable of speech were spared but eventually immunity was awarded to all children below the age of 7 years as the law came to reflect an increasing recognition of the stages of life. Children came to be classified as infans, proximus infatia and proximus pubertati. But infants who could understand and foresee the nature and consequences of their acts were punished.
But even during those bygone days the corridor of uncertainty in the juvenile justice system was only to determine clearly as to at what age could a child develop criminal intent. The question as to when does a child develop the maturity of understanding what is right and what is wrong can never been determined by following a prescribed line of thinking, as it is an extremely subjective question to deal with which cannot be dealt with manually.
Another important step in the history of juvenile justice occurred during the 15th century when the chancery or equity courts were created to consider petitions of those who were in need of special aid or intervention, such as women and children. The king was given the powers of parens patriae (parents of the country) and these courts were allowed to act in loco parentis (in the place of parents).
Growth and Emergence of Juvenile Justice System in India:
The concept of juvenile justice and differential treatment to juveniles has always been prevalent in the Indian Society. Traces of it can be found in the code of Hammurabi. Also during the colonial regime or the British Rule, Lord Cornwallis had set up the first centre for children known as ‘ragged school’. It was established in Calcutta in 1843. The first piece of legislature that came up in India pertaining to the juvenile justice system was the Apprentice Act 1850. The Indian Penal Code 1860 also has provision for providing protection to children.
The next very important statute that came up and dealt with this topic was the Reformatory School Act (1876-1897). The code of Criminal Procedure also has the provision of probation of offenders till the age of 21 years. This again clearly shows that the judiciary of our country has always borne the idea of providing special benefits to children. The post-independence era saw the emergence of the juvenile justice system through a completely new dimension. The juvenile laws were made in contravention to the Constitution of our country, namely Articles 15 (3), 21, 24, 39 (e) and (f), 45 and 47. Apart from that, India became signatories of several international conventions and treaties such as United Nations Conventions on the Rights of Children (UNCRC) and also UN Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules).
The emergence of the Juvenile Justice Act saw The Children Act, 1960 phase out. India further declared National Policies for Children. These policies focused on issues which the then government had identified as priority sectors i.e. welfare of children in need for care and protection and framing concrete Juvenile Justice Laws. The policy focused on the rehabilitation and training of neglected and exploited children.
The year 2000 saw a major change in the Juvenile Justice system in our country. The Juvenile Justice (Care and Protection of Children) Act, 2000 was drafted and it subsequently came into force. This was made in compliance with the Child Rights Convention 1989. The said Act has been further amended in the years 2006, 2010 and recently in 2015.
The main design behind the Juvenile Justice system operating in our country is to restore juveniles in conflict with law back to the mainstream society. There is provision of a child welfare committee to address the needs of the children in want of care and protection and the establishment of juvenile board to look after juvenile offenders. Police is considered to be the first major component of the Juvenile Justice System. Hence Special Juvenile Police Unit has been set up in every police station. The primary intent is to make sure that juvenile offenders are not placed on the same podium as adult offenders. The concept of after-care organizations has also been induced into our Juvenile Justice System. After-care organizations are formulated with the basic idea of providing care, guidance and protection to Juveniles in conflict with law or children in need of care and protection who have completed their terms in the Special Homes or Children’s Homes and their rehabilitation process is not completed. Despite having such a comprehensive and a codified form of law in our country the recent years has seen a several instances where the laws relating to juveniles have been questioned.
This research work primarily focuses on the broad topic of crime among youths. Also, how the psychological build-up of the mind of a youth plays a role in it. The questions raised regarding the juvenile justice acts validity has also been discussed in depth and also the suggested measures that can bring about a change and also improve the juvenile justice system in our country. Legislative Frameworks in operation: The Juvenile Justice (Care and protection of Children) Act, 2000 was the statute of prime importance when it came to juvenile laws in our country. It had set the age bar for juvenility to be 18 years. Any individual who is below 18 years of age on the date of commission of any offence would come under the blanket cover of the juvenile justice act, and would not be treated in the same manner as adult offenders. It has to be understood on the first place that the juvenile justice laws of our country are restorative and not retributive.
India being a signatory of the United Nations Conventions on the Rights of Children (UNCRC) and also UN Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules) also has to abide by certain standards set by the international bodies. The Juvenile Justice Act deals with the concept of Juvenile delinquency and is of much importance is the related concepts and ideas are to be understood in its entirety. The simplest understanding of the concept of delinquency is any that when any juvenile who, while less than 18 years of age at least 6 years of age ( which varies in state laws), commits a crime or infraction under state laws or under an ordinance of local government, including a violation of motor vehicle laws. The definition of juvenile delinquency varies according to statutory definition of each state. Most states define a “juvenile” for jurisdictional purposes as a person between the ages of 10 to 18 years of age; although in some states 16 and 17 years olds may be treated as adults when they have committed a crime. A “delinquent child” is defined generally as a child who has violated any state or local law; a federal law or law of another state; or who has violated any state or local law; a federal law or law of another state; or who has escaped from confinement in a local or state correctional facility.
REASONS AS TO WHY ONE COMMITS CRIMES
Matt Gonzalez had once said, “I think that when we’re talking about youth violence, we’re talking about kids who don’t have opportunities, so they’re engaged in a certain degree of lawlessness, because we as a society have failed them.”
There has always been a prolong discussion as to why certain children lie, and why do others not; why do certain children steal and damage others properties while the rest are absolutely docile, obedient and amenable. There are several theories which aim at explaining this queer behaviour of children, legally termed as Juvenile Delinquency and each theory has a discrete approach. But, what has to be understood at the very beginning is how a child’s development takes place.
The first place of contact for a child is his or her Family. The family is the rudimentary socialization agency for children, and it is the family which inculcates in him or her basic social norms, notion of right and wrong, morals, values, beliefs and ideologies. A family can either construct a child’s personality or can damage it in entirety. Broken families, single parent families, frequent fights between parents, abusive parents and lack of trust on parents can lead to distorted child development on one hand, and sibling rivalry, unequal treatment of a child in comparison to his elder or younger sibling or on the basis of gender can also moderately sculpt his or her personality shoving him slowly towards Juvenile Delinquency. Many a times the Family faces economic troubles and in order to support it any elder family member commits a crime. This acts as stimulation for the child to commit a crime. He uses this action of his family member as a license to commit unlawful activities. In such situations, the youth may also take it upon him to improve the condition of his family and in the process ends up using the negative path.
Peer groups are an important force which can propel children towards delinquent behaviour. Young children find huge gangs very captivating because big groups tend to be powerful and dominating. Abusive behaviour is the foremost step of indulging into delinquency. If a child becomes a part of a group which is abusive he gets himself caught in the trap of criminal activities. Many times peer group rejection can also lead the child into committing criminal activities.
THEORIES OF CRIMES
“Once a criminal, always a criminal”, this is a famous saying which most find to be true. When an individual associates him or her with any criminal activity, they are labeled by their community as offenders and they are also expected to recommit their offence. Juvenile offenders are also marked by the society and the society looks down upon such Juvenile delinquents. There are three basic theories which aim to understand the motive of such Juveniles. These are as follows:
1. Biological Theory
This theory believes that such children are born to be criminals. Cesear Lambrosso, the creator of the major Biological Theory known as Positivism believes that criminals have certain typical biological characteristics like that of a flattened nose and supernumerary teeth. He also stated that people who grow up committing criminal offences have inherited it; hence it is a genetic disorder. Sheldon, another criminologist believes that mesomorphs were more likely to commit crimes because of their athletic body type in comparison to that of endomorphs. Siegel and Welsh have described delinquency as “savage throwbacks of an earlier state of human evolution” but, by the 19th century these evolutionary biological theories had fallen short of proper explanation. Now it has been settled that criminal behaviour is a culmination of several factors like that of social relations, psychological attributes, level of poverty, racial disparity and violence.
2. Psychological Theory
John W. Mc. David and Boyd R. Mc. Candless have stated that psychological study of Juvenile delinquency is by no way a new means. All approaches of understanding Juvenile delinquency have a psychoanalytical approach. Freudian Psychoanalytic Theory was the major impelling force of using childhood experiences as the foundation for development of an individual’s personality. Psychological theory believes that an individual’s thought and feelings are the dictate of his or her actions. Children generally tend to indulge in criminal behaviour when they cannot understand the consequences of their actions. When the psychological development in the child is improper he thinks rightly of his wrong actions. Another reason for delinquent behaviour might be because a child belongs to a violent household. If a child belongs to an abusive household he is always surrounded by violence and aggression and thus, he finds it absolutely justified to vent out one’s frustrations on others by violent means. Psychological development is a conclusive procedure which follows the stages of maturity. When an individual has underdeveloped conscience he or she can have characteristics of a delinquent.
3. Sociological Theory:
This theory believes that the society is responsible for creating criminals. It is the society itself which compels a child to undertake the negative path. This theory believes that Crimes are not an individual problem but a social problem. Wealth gap, acute poverty, poor living conditions and class warfare are all factors which force an individual to commit offences. Sociological theory believes that people are not born criminals, it is the circumstances which create criminals.
THE JUVENILE SUPERPREDETOR MYTH:
The professor of politics and public affairs on the political science faculty at Princeton University, John Dililio, created and popularized the super predator concept. He coined the term ‘superpredator’ to refer to youth who were involved in offences that were heinous in nature; for instance offences like homicide, possession of illegal drugs and also weapons primarily guns, robbery, dacoit and also sexual offences. Dililio and co-authors have described these young people as “fatherless, Godless, and jobless” and as radically impulsive, brutally remorseless youngsters, including ever more teenage boys, who murder, assault, rob, burglarize, deal in deadly drugs, join gun-toting gangs, and create serious disorders.
MORAL PANIC OVER THE JUVENILE JUSTICE SYSTEM
The juvenile justice system has often been faced with a problem which has been termed as a ‘moral panic’. It has been defined as circumstances that are perceived as threat from some group or situation which is greatly exaggerated compared with the actual threat. Thus, in a state moral panic or the social, political circumstances often define or mark a certain section of the society as threat to the society’s values and also the behavioral patterns. The moral panic that the world as a whole is going through over the concerns of juvenile delinquency primarily has a unique side to it.
The first is often known as the cycle of juvenile justice. It has been a recent trend all over the world where the existence of juvenile laws is a positive as to the treatment of juvenile offenders. It has been widely observed that certain sections of a nation or even a part of the legislators are in favour of giving harsher punishments to juveniles, whereas a certain section opposes that idea and is in favour being more lenient towards juvenile perpetrators. In several instances the court was of the opinion that the penal laws of the land are not to be applied as the perpetrator in question was below a certain age bar. While on the other hand some were of the opinion that harsher punishments should be inflicted on such perpetrators and the juvenile justice laws are not to be used as a blanket cover to get away with scot-free or with lesser sentences. Hence the basic question of whether the age or the nature of the act should be the determining element when culpability of a juvenile is to be proved.
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015: AN OVERVIEW
The Juvenile Justice (care and protection of children) Act, 2015 as already pointed out is the primary statute dealing with juvenile offences in our country. An undiluted analysis of the act is very essential for understanding the object with which the act was framed and also the targets and objectives it looks to achieve. A very simple and unequivocal understanding of the juvenile justice act is that it was framed and brought into operation for providing proper care and protection to children deprived of it. It looks to cater to their needs and developments. It looks to operate in the best interest of the children and also looks to dispose of matters in their best interest. The legislators were of the opinion that children need special care and protection and must be subjected to different treatment than that of adults. Hence there needs to be a separate set of laws which are to be used only for juveniles. The Act lays down the basic principles to be followed for administering juvenile justice in the country. It also seeks to make the juvenile laws of our country in accordance to the United Nations Conventions on the rights of Children and also other international bodies.
Delhi witnessed one of the most brutal incidents of violence against women, where a paramedical student was gang raped inside a moving vehicle. More so, this event has a tremendous amount of relevance in our research because one of the accused of the gang rape and murder was a juvenile (below the age of 18 years of age). The fact that a juvenile had effectuated the most heinous of the acts on the victim and also the fact that there was great prospect of the offender being released only after 4 months of custody caused a great uproar all over the nation and also the world. The incident showed us and also the world the level of insecurity that still exists in the Indian society.
Several parts or aspects of the Juvenile Justice act was called into question and needed a reform. The nationwide uproar was regarding that fact as to how an individual who had committed such a heinous and grave crime could come under the blanket covering of the juvenile laws. It questioned the validity and extent of the juvenile laws. Hence there was a nationwide revolution and plea that the juvenile laws of the countries be changed, so that the juvenile offender of the Delhi gang Rape is convicted accordingly.
By laying down an eye on the Juvenile Justice Act of 2000 from legal point of view, several flaws in the Act can be traced. More so these flaws have been more easily pointed out after the law came into question. The Delhi gang rape was certainly a conjecture where the existing juvenile laws of the country came into question. One of the very significant and much discussed and argued point of contention in the Juvenile Justice Act also happens to be the very basic idea behind the Act. The Juvenile Justice Act is supposed to cover all people below the age of 18 years of age. This idea was itself challenged. Questions were raised regarding the mental maturity of a person, and how the mental maturity of a person determines his culpability. The fact that the juvenile justice Act provides the privileges to each and every person below the age of 18 was considered to be a flaw of the legislation. It was raised before the court that mental maturity of a person should be determined separately in cases where the accused has committed a grave and heinous offence. And is such case even if the accused is a juvenile on the day of commission of the offence his mental maturity i.e. his ability to understand the nature and consequences of hi act should be the deterring factor of his culpability and not only his age.
Often there are cases where juvenile perpetrators make use of the Juvenile Justice Act and take it as blanket cover to escape form heinous offences just because their age keeps them within the cocoon of the term “juvenile”. The question that should be raised before the court should be the question whether the accused could foresee the nature and consequences of their acts. If the answer to this question is yes and if the offence is a gruesome one then it should be considered that despite the transgressor being a juvenile, he should be subject to the penal laws of the country.
Once the question of penal laws of a country is put up, a look must be given to the Indian Penal Code further referred to as the IPC and what are the provision in the code that has a certain amount of parlance to these concepts and ideas. Section 82 of the IPC says that any act done by a child under the age of seven is given complete and absolute immunity, and it cannot be termed as an offence. An infant under the age of seven is considered to be Doli Incapax i.e. it is assumed that he does not have the ability to commit and wrong. It was assumed by the legislators that any person below the age of seven does not have the ability to commit any act that can be termed criminal. Hence in other words when a child below the ascertained age commits an act that is punishable under the IPC it is not to be considered as he has an absolute immunity under the code.
The Supreme Court of the country in the old landmark case of Ulla Mahapatra v. State of Orissa had dealt with the concepts of doli incapax. The court had held that there cannot be any fixed or specified procedure to determine the mental maturity of a person. The mental maturity of two persons of the same age can also be different hence any stereo type procedure cannot be adopted by to determine the maturity.
THE CONSTITUTIONAL VALIDITY OF THE JUVENILE JUSTICE ACT, 2015
The Juvenile Justice (Care and Protection) Act, 2015 came into force on the 15th of January 2016. From the time this act came into force, it has lured towards itself a lot of attention, so much so that it has been highly criticized as it is said to be violative of the Constitution of India. The Delhi Gang Rape which took place on the 16th of December 2012 was the main rationale based on which there was an uproar to make a few amendments in the then prevailing Juvenile Justice Act. In this incident it was found that one of the accused was few months away from being an adult. So, he was tried as a juvenile. Mr Subramanian Swamy, a BJP politician filed a Public Interest Litigation in the apex court of the country seeking that the Juvenile should be tried as an adult, based on the animosity of the offence committed by him, as a result of which the court asked the Juvenile Court to retard its verdict.
After the Supreme Court allowed the Juvenile Board to give its verdict, the accused was sentenced to 3 years in a reform home. This decision was highly disapproved of by the victim’s mother and a conclusion was drawn that by not treating Juveniles as adults the Court was invigorating young offenders to commit heinous crimes. The major amendment that has been made to the older Juvenile Justice Act is that children aged 16 to 18, in conflict with law, will be tried as adults in cases where they commit ghastly crimes. This amendment is said to be in direct contravention with Articles 14 and 15(3) of The Constitution of India. The amendment directly pounces on the Fundamental Right to Equality under Article 14 as well as Article 15(3) which allows special laws for the marginalized section of the society, including children. It is in contravention with the United Nations Convention on the Rights of the Child (UNCRC).
This implies that if a 16 year old commits an offence, he will first be produced before a Juvenile Justice Board, which will decide the mental capacity of the child to commit the offence as well as his ability to comprehend the repercussions of his action. But, this entire process is in itself very subjective, which creates an enormous amount of arbitrariness. Individualized assessment of mental maturity is not possible; hence the conclusions that will be drawn by the Juvenile Justice Board will result in an intuitive and arbitrary transfer of a juvenile to an adult criminal system.
As we all know that “equality and arbitrariness are sworn enemies”, this idea attacks the very skeleton on which Article 14 has been orchestrated. Moreover, any act which pervades Article 14 is also liable to be tested with Article 21 wherever necessary. Any procedure which is interfering with a person’s liberty has all the probability to be arbitrary, oppressive and fanciful. And all of this is antithetic to the idea of Equality.
IMPLICATIONS AND REMEDIES
Juvenile Delinquency, the problem in itself, is like a labyrinthine. There is no singular solution or measure that can be undertaken by the communities or societies to put an end to this muddle. In order to terminate the problem of Juvenile Delinquency the societies have to adopt several approaches at once. The problem is not one that effects a particular society.
Juvenile delinquency is characterized by antisocial behaviour which is beyond parental control and is subject to legal actions and thus, delinquent youths can be found all over the globe. These are a few measures that can be adopted to address the problem of Juvenile Delinquency:
Ø Promoting family togetherness: Since the family is the first place the child comes inØ contact with, proper behaviour from parents, no usage of violence or abuses by them, constant family support, love, care, attention and their engagement in several child development programmes can be used as an effective tool against delinquency.
Ø Community involvement: Sometimes, the society forces the child to indulge into criminal offences. In cases where the child is mentally or physically unwell, the Page 16 of 17 society should be all the more sensitive towards him or her, rather than ridiculing the child’s inability.
Ø Improving Rehabilitation Facilities: Here the first and foremost question that needsØ an answer is, what happens to those who have been labeled as delinquents. Rehabilitation per se, should not be punishment. It is the duty of the government to make sure that rehabilitation implies counseling, psychological evaluation, adopting methods of restoration rather than detention procedures, which makes rehabilitation a prison, rather than a place of reform.
Ø Imparting education: Education plays a primordial role in the development of aØ child. The education should be disseminated in such a way that the child can differentiate between what is right and what is wrong from the very elementary stages of development.
Ø Governmental initiatives: Effective Social programs should be initiated by theØ Government so that the society becomes aware of deviant behaviour and in cases where they face such unruly conduct from children, they can try to bring them back to the right track. These programs will try to stop criminal development of the probable delinquent child in the future.
Ø Measures to eradicate poverty: Poverty in considered to be the root cause of allØ criminal activities. Governmental policies should be implemented to eradicate poverty at the grass root level. Poverty forces children to take up negative means which later take up a criminal mould.
L.R.Knost had once said, “It’s not our job to toughen our children up to face a cruel and heartless world. It’s our job to raise children who will make the world a little less cruel and heartless”. Juvenile Delinquency is a hitch which will and has been affecting the nation since quite some time. Sadly enough the perpetrators of such Juvenile offences are the victims as well. Children are our future and if they are so easily swayed towards lawlessness then the country on the whole will be at the agonized end. The nation has to re-devote itself towards the reformation and restoration of such children and also contrive measures for the proper investigation and perusal of offences effectuated by young offenders. Our country can boast of having one of the most nonpareil Legislatures in the world. We possess the vision. We merely require the determination and heart to fulfill it because our children deserve nothing but the best.
Author: Navin Kumar Jaggi
Co-Authors: Abriti Barman, 3rd year, School of Law, KIIT UNIVERSITY
Pratyayee Saha, 3rd year, School of Law, KIIT UNIVERSITY
Tirthankar Das, 3rd year, School of Law, KIIT UNIVERSITY