DIFFERENTIAL TREATMENT OF JUVENILES- JUSTIFIED OR NOT?
This article has been authored by Akash Gulati, a first year student at RMLNLU, Lucknow.
The current juvenile justice apparatus in India is a result of various reforms coming from the legislature & judiciary, their initiation being the societal needs and even international standards. Though the law is robust regarding juvenile justice, it is often criticized for the fact that it treats juveniles with leniency and thus weakens the deterrence as the punishments are capped at three years for non-heinous crimes, and only juveniles aged 16-18 years are prosecuted at par with adults for heinous crimes, that too after the approval of the children’s court. Let us try and understand if the criticism is well-founded and justified or whether there some other weak link that is the cause of rising juvenile delinquency.
Who are juveniles?
According to Section 2(35) of the Juvenile Justice (care and protection of children) Act, 2015 "juvenile" means a child below the age of eighteen years. The word means reflecting psychological or intellectual immaturity. Up until the age of sixteen, children go through various stages of development which include psychological and emotional development as well. Hence, it can be said that juveniles are not the same as adults in terms of maturity of different facets.
Who are the juveniles in conflict with the law?
According to Carroll D. Wright, for the matter of any person indulged in crime, it is considered that his faculties are all under-developed, not only those which enable him to labor honestly and faithfully for the care and support of himself and his family, but also all his moral and intellectual faculties. He is not a fallen being: he is an undeveloped individual. But the indispensable fact stands that a man nevertheless acts under free will.1
When it comes to juveniles, especially those within 6-14 years of age, the same under-development is acknowledged by psychologists. They are not fully aware of the consequential harm that might arise out of their behavior even when they develop a sense of right or wrong. They are malleable during this age, and their socio-economic status is a huge determinant of the behavior that they indulge in.
Many a time, a life where one lacks resources and access to opportunities becomes one where one cannot healthily achieve competence. It is known that children (especially between the ages of 7-11) who do not see themselves as competent in academic, social, or other domains during their elementary school years report depression and social isolation, as well as anger and aggression more often than their peers.
When such juveniles, lying in different degrees of vulnerability (social & economic) indulge in crimes, it is an outcome of various factors. However, it is one unique factor that allows the law to differentiate them from adults; that is the lack of ability to understand the consequences of the crimes due to the under-development of such children.
Approximately 9.5% of all juveniles apprehended in 2019 were illiterate, while a staggering 26.8% had received education only up to the primary level. 6.7% of these apprehended juveniles were homeless. These numbers do suggest that children who lack proper access to education and other means of achieving competence are more vulnerable and susceptible to crime.
Due to factors such as these, it is in favor of the society at large that while respecting the rights of the victim, the offenders get appropriate punishment aimed at rehabilitation and are kept away from hardened criminals (jails and lockups) so that they can rejoin the society. The mistakes of early life should not dictate their future life and they should not feel that they are already too far away from starting a better life. This is where rehabilitation plays an essential role- where juvenile offenders are routed towards paths of societal integration where they don’t have to engage in crime anymore. The system might not be the best it can be in the status quo but it is principally well-founded.
Separation from the adult criminal system
In pursuance of the rehabilitative form of punishment, the Supreme Court in Subramanian Swamy v. Raju took an apt view of the Juvenile Justice (Care and Protection of Children) Act, 2000 and stipulated that though the same penal law applies to all juveniles, the scheme of trial and punishment differs as per the JJ Act.
Some of the key differences are –
1. A juvenile cannot be arrested but only apprehended, that too only in cases of serious offenses.
2. Police cannot retain pre-trial custody over such a juvenile. After being apprehended the juvenile has to be handed over to a welfare officer immediately whose task is to produce the juvenile to the board.
3. They cannot be put in jails or police lock-ups at any stage of the inquiry.
4. Grant of bail to the juveniles in conflict with law is the rule.
5. The JJ Board conducts a child-friendly inquiry and not an adversarial trial. Though the adversarial model is still followed, the trial takes a more child-friendly color.
6. The emphasis of juvenile inquiry is on finding the guilt/innocence of the juvenile and investigating the underlying social or familial causes of the alleged crime.
7. The juvenile justice system establishes post-trial avenues for the juvenile to make an honest living, hence aiming at the goal of rehabilitation.
Condition of the Rehabilitation Homes
The principally well-founded juvenile system of India bears a heavy burden of effective implementation with quality standards, and while it may be followed to the word, the condition of the institutions such as the rehabilitation homes is a grim picture.
In the report India’s Hell Holes by Asian Centre For Human Rights, it was found that there was rampant and systemic sexual exploitation of children in these juvenile care/rehabilitation homes. There was a lack of inspection committees and child welfare committees were non-functional. The segregation of the offenders on the basis of offenses and age was not in place.
The same report recommended heavy improvements, including providing proper resources to these juvenile justice homes, proper and timely inspection, segregation of the offenders, ensuring that male staff is not posted in female justice homes, etc.
Gopal Subramanium, a member of the Justice Verma Committee Report remarked that “The juvenile homes are unable to provide for the children what is their Constitutional rights and these children without proper and adequate fulfillment of their nutritional, emotional, physical and mental requirements are often not able to contribute productively to the society.”
The juveniles who find themselves in conflict with the law should indeed face consequences. But it is more pertinent if they are stopped from falling deeper into this trap. Under the influence of hardened criminals in jails, they are extremely unlikely to come out as reformed persons. Therefore, it is justified that they are kept in separate rehabilitative detentions. Though the ground reality of these rehabilitative homes is poor, the same should be fixed with better checks and balances. The recent amendment does try to implement more local control and supervision under the aegis of the district magistrate, but the change on the ground still awaits better execution reforms. A good rehabilitation program can stop many juveniles from stepping into adulthood as criminals.
These juveniles in conflict with the law are also juvenile victims of unfulfilled needs and lack of proper care. As unjustified as their acts may be, it is in the larger interest of the society that their punishment should indeed be reformative.