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The Juvenile Justice (Care and Protection of Children) Bill, 2014: The Legal Conundrum

By Suraj Singh March 30, 2015

"There can be no keener revelation of a society’s soul than the way in which it treats its children"-Nelson Mandela

Introduction

It is a worldwide phenomenon that crime and criminal activities are on the rise. Increasingly, more youths are involved in acts of criminality, delinquent, and antisocial behaviour. The evolution of the juvenile justice system in the world was based on the idea that children and adolescents are different from adults.[1]A separate and distinct juvenile justice system was founded on the Progressive Era belief that juvenile offenders were merely delinquent and in need of individualized treatment wherein the ultimate goal was their rehabilitation.[2] At least three different justifications have been advanced for a juvenile justice system: (1) compared to adults, children are more treatable; (2) compared to adults, children are less culpable; and (3) compared to adults, children are less deterrable.[3]

Notably, the past decade marks a revolution in the attitude of the state toward its offending children, not only in nearly every American Commonwealth, but also throughout Europe, Australia, and some of the other lands.[4] In India, the horrendous gang rape on 16th December 2012 triggered a nationwide debate on a number of issues concerning the safety of women. One of such issues include the age of criminal responsibility since one of the six individuals involved was a juvenile. It led to an unprecedented outpouring of anger and triggered collective introspection on the safety of women. In the midst of this agitation, the media shared details about the juvenile offender whose odious acts of violence further sculpted public opinion.[5]There were massive protests calling for amendments in the juvenile system by reducing the age of criminal responsibility.

This furor over juvenile justice triggered one major policy initiative by Ministry of Women and Child Development i.e., introduction of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (the “Bill”).The present write-up aims to shed light on the provisions of the Bill and bring to forefront the debate on decreasing the age of criminal responsibility. The write-up in the light of various authorities contradicts the proposed amendment and argues that treating children alleged to have committed ‘serious’ crimes as irredeemable criminals, and transferring them to the adult system contradicts the essence of juvenile justice system. The write-up debates these and other issues appurtenant thereto.

The Juvenile Justice System in India

The Juvenile Justice System in India is based on the principle of promoting, protecting and safeguarding the rights of children. Recognising the vulnerability of children and the need for special and different treatment, it was in 1986 that for the first time, a uniform Juvenile Justice Act (“JJA 1986”) was enacted for the whole of India, when the Parliament decided to replace the Children’s Acts in various States in India.[6] However, the history of the implementation of the JJA 1986, is a history of hopes not realised and promises not fulfilled. A review of the Act was undertaken to look into the lacunae as well as its non-implementation. This process together with India’s ratification of the UN Convention on the Rights of the Child (CRC) in 1992, as well as the changing social attitudes towards offences by children and the need for a more child- friendly juvenile justice system were some of the factors that led to the passing of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the “JJ Act”).[7]

Since then, the JJ Act has indubitably been a saviour for the rights of the children. The objective of this legislation is to ensure the care, protection and development needs of the children who are either neglected or have come into conflict with law constituting delinquency.[8] Juvenile Justice is more concerned with the rehabilitation of juveniles and to primarily attempt to prevent juveniles from running into conflict with law.

The Juvenile Justice (Care and Protection of Children) Bill, 2014: Diagnosing the Licitness

On 17thJuly, 2013, the Supreme Court of India dismissed pleas to reduce the age for juveniles from 18 to 16.[9] The plea was a combination of seven writ petitions which challenged the constitutionality of the JJ Act. However, the apex court refused to hold the act as ultra vires and held taking any adverse step would make it virtually impossible for a child in the age group of sixteen to eighteen to be reintegrated into mainstream society, and would rather allow them to develop into hardened criminals, which does not augur well for the future.[10]In another public interest litigation decided on March 28, 2014, in Dr. Subramanian Swamy and others v. Raju and Ors.[11] , the SC refused to read down the provisions of the JJ Act, 2000, in order to account for the mental and intellectual competence of a juvenile offender and refused to interfere with the age of a juvenile accused, in cases where juveniles were found guilty of heinous crimes.[12]

Even though, this decision of the court was widely appreciated by one segment of the society due the virtue of it being an equitable safeguard of public morality and children’s rights, the counter-offensive believed that this judgment is detrimental to holistic justice.[13] Highly publicized and sensationalized cases feed the public angst and legitimize calls by both professionals and the public at large to get tough on delinquents. The outcry for reducing the age of Juveniles from 18 to 16 which arose as a fall-out to the ghastly Nirbhaya case in 2011 seems to be reaching a crescendo with a new government taking over.[14]

In response to the above circumstances, the Juvenile Justice (Care and Protection of Children) Bill, 2014 (the “Bill”) was introduced by the Minister of Women and Child Development, on August 12, 2014.[15]In the proposed changes to the JJ Act, there are numerous improvements, such as, incorporation of basic principles like presumption of innocence of malafide or criminal intent upto 18 years, reiteration of family and community resources, right to privacy and confidentially etc.[16]

The Bill however, introduces a special provision for the possibility of trying 16-18 year olds committing heinous offences[17], as adults.[18] After an enquiry under Clause 14(1) and 14(2) is made, Clause 17(3) empowers the Board to transfer the case to the court having jurisdiction over such offence under the Indian Penal Code. This creates a peculiar situation since this provision is completely out of tune with the nature and scope of the JJ Act as well as other general provisions of the Indian Penal Code, 1860 and Probation of Offenders Act, 1958 both of which make exceptions for children and young offenders in accordance with the Indian Constitution and the International Instruments.[19]

While the Bill contains some remarkable provisions which has received wide acceptance[20], clauses 14 and 17(3) are considered to be regressive and incompatible with the rehabilitative foundation of juvenile justice. Understanding how transfer provisions[21] affect juvenile criminal decision making is important since criminal careers start early, so improving the effectiveness of incentives designed to reduce juvenile crime could greatly reduce the social costs of crime.[22] Early intervention by the State can reduce crime, delinquency and antisocial behaviour and may save their later adult lives.[23]

The nationwide policy shift toward transferring juvenile offenders to the criminal court is based largely on the assumption that more punitive, adult criminal sanctions will act as a deterrent to juvenile crime.[24]The Bill proposes to bring the transfer system, allowing juveniles to be tried as adults for certain criminal offences, which exists in the United States since 1979. However in the U.S., mounting concern that the juvenile justice system has strayed from its mission of rehabilitation has catalyzed a vocal campaign for large scale policy reforms. The reform movement invokes an abundance of scientific discourses, including neuroscience and evidence-based practice, to situate arguments for a more humane, cost-effective, and youth specific system.[25]Therefore, the aforementioned provisions in the Bill contradict the fundamentals of the juvenile justice system.

  1. Proposed Model is ineffective in reducing Juvenile Crime Rateand Recidivism:

Massive literature suggests that prosecution of children as adults does little to address the juvenile crime rate, public safety, or reduce recidivism; indeed some research has even found greater risks to public safety among children transferred to adult system.[26]

Criminologists have evaluated the effects of New York’s Juvenile Offender Law on the rate of serious juvenile crime, and found that the threat of adult criminal sanctions had no effect on the levels of serious juvenile crime.[27] Two recent large-scale studies indicate that juveniles who receive harsher penalties when tried as adults are not “scared straight”.[28] In fact, after their release, they tend to reoffend sooner and more often than those treated in the juvenile system.[29]

In terms of specific deterrence i.e., whether trying and sentencing juvenile offenders as adults decreases the likelihood that they will reoffend- six large-scale studies have found higher recidivism rates among juveniles convicted for violent offences when compared with similar offenders tried in juvenile court.[30] With respect to general deterrence i.e., whether reducing age of criminal responsibility deters any would-be juvenile offenders, the bulk of empirical evidence suggests that it has little or no general deterrent effect.[31] Studies have found that young people transferred to the adult criminal justice system have approximately 33.7% more re-arrests for felony crimes than youth retained in the youth justice system.[32]

Neuroscience Confirms Immaturity:

Explicit reference to the literature on neuroscience of adolescence is slowly entering the legal arena[33] and the policy discussions.[34]Today, there exists numerous incontrovertible evidence that adolescence is a period of significant changes in brain structure and function. Massive research in this area enables us to consider the development of key brain structures in terms of decision-making and aids in discussion of where the minimum age should be set.[35]

According to a study by the Royal Society, the prefrontal cortex, which is responsible for decision-making, impulse control and cognitive control, is among the slowest parts of the brain to mature and is not fully developed until around the age of 20.[36] Research has also shown that there is huge variation between individuals and that the development of the slowest-developing parts of the brain is associated with comparable changes in mental functions such as IQ, suggestibility, impulsivity, memory and decision-making.[37] Therefore, as the cognitive skills of adolescents are developing, adolescents’ behaviour is often impulsive and adolescents lack the ability to focus on the consequences of their behaviour.[38]

Findings in neuroscience and adolescent psychology confirm that juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less risk-averse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions.[39]Most importantly, ‘because the adolescent brain is still developing, the character, personality traits and behaviour of adolescents are highly receptive to change; adolescents respond well to interventions, learn to make responsible choices, and are likely to grow out of negative or delinquent behaviour’.[40] Therefore, lowering the age of criminal responsibility would eliminate the possibility of recovery of a delinquent juvenile back to the society.

Even at ages 16 and 17, when compared to adults, juveniles on average are more impulsive, aggressive, emotionally volatile, likely to take risks, reactive to stress, and prone to focus on and overestimate short-term payoffs and underplay longer-term consequences of what they do.[41] Therefore, it is believed that a dividing line of age 18 is better than 16 and that rehabilitation works better for juveniles. Research on psychological aspects of maturity of judgment: responsibility, temperance, and perspective, that are likely to affect judgment, indicates that the greatest differences are found in comparisons between early adolescents versus middle and later adolescents.[42]

  1. Against the fundamentals of Juvenile Justice System

Juveniles alleged or found to have committed a crime, (whether ‘serious’ or not) are vulnerable and not only deserve to be treated in a manner that should make this nation proud, but are also entitled to be dealt with in accordance with the vision of the Preamble of the JJ Act 2000[43]’.Clause 17(3) is indubitably not in the best interest of a juvenile and nor is it child-friendly. Worse, it will result in the denial of treatment and developmentally appropriate care and protection and actually propel their ultimate banishment from the community.

Children who are in conflict with the law have a lesser culpability than adults because they ‘differ from adults in their physical and psychological development, and their emotional and educational needs’.[44] Evidence shows that “programs offering counselling and treatment typically reduce recidivism, while those focused on coercion and control tend to produce negative or null effects.[45]

The main reason for U.S. and other nations, to enact the juvenile transfer laws was sharp rise in the national juvenile crime rate.[46] However, in India, juveniles in conflict with law alleged to have committed serious offences constitute a miniscule population. National Crime Records Bureau’s Report reveals that the juvenile crimes accounted for only 0.5% of total crimes committed in 2013, and 1.2% of the total crimes in India during 2013.[47]

Evidence on the failure of the transfer system delineated above is compelling reason as to why India should prevent itself from replicating a model that has been more deleterious than progressive. Several countries that set a lower age of criminal responsibility have now started to raise such age to eighteen on account of evidence that full maturity in culpability and blameworthiness comes later than eighteen and not earlier.[48]

Need of the Hour

Indeed, images of violent young predators, of teenagers out of control, is an excellent way to sell newspapers, but it simply ignores the interests and reality of children’s lives in our society.[49] Amending the law instantaneously will however not serve the purpose. What needs to be seen is whether the reformation homes and the rehabilitation mechanism enshrined under the JJ Act has the quality of truly reforming the juveniles in conflict with the law. In India, while most policies are well intentioned and intricate in their design, they face severe implementation deficits and the JJ Act is no exception to this.

Various studies conducted by UNICEF and Asian Centre for Human Rights (ACHR) highlight the condition of the juveniles in the juvenile homes and the gaps between the laws and their implementation.[50] The Studies reveal that the Juvenile reformation homes or ‘observation homes’ in India suffer from multiple shortcomings. Beds are overcrowded, educational or recreation facilities are virtually non-existent, complete lack of sanitation and hygiene, medical facilities are inadequate and most importantly the different categories of Juveniles and criminals being kept together placing the younger ones at high risk of abuse.[51]In many places, the Juvenile Justice Board sittings take place in the Court premises[52] contrary to Rule 9[53] of the Rules enacted under the JJ Act.

The lack of better infrastructural facilities for juvenile homes and access to quality counselling and support for child offenders is quintessentially responsible for the current encumbrance to unobstructed flow of justice.[54]Considerable failures in implementing this law also stems from the lack of coordination amongst various institutions involved in the process. Hence, proper and efficient implementation of the present Act is perhaps the need of the hour before we think about amending and narrowing the scope of law.

..................................................

[1] Michael H. Langley & H.B. Drone, Juvenile Justice: Reneging on a Sociolegal Obligation, 47 Social Service Review.4, 561 (1973).

[2] Benjamin Steiner & Emily Wright, Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance?, 96The J. of Cri. L.& Crimin.4, 1452 (2006).

[3] Jennifer L. Woolard, Mark R. Fondacaro & Christopher Slobogin, Informing Juvenile Justice Policy: Directions for Behavioral Science Research, 25 Law and Human Behaviour, Special Issues on Children, Families, and the Law.1, 14 (2001).

[4] Julian W. Mack, The Juvenile Court, 23 Har. L. Rev.2, 104 (1909).

[5] Bindu Shajan Perappadan & Nirnimesh Kumar, Juvenile gets 2 years in Delhi gangrape case, The Hindu, September 10, 2013.

[6] Nilima Mehta,Child Protection and Juvenile Justice System for children in need of care and protection,Childline India Foundation, 38 (2008).

[7] The Act was based on the UN Convention on the Rights of the Child, the ‘Beijing Rules’, United Rules for the Protection of Juveniles Deprived of their Liberty.Ved Kumari, The Juvenile Justice System in India,15 (Oxford University Press, 2008).

[8] Preamble of the JJ Act, 2000; See alsoJaishree Jaiswal, Human Rights Of Accused And Juveniles: Delinquent In Conflict With Law, 204 (Gyan Books, 2005); Sunil Kanta Bhattacharyya, Juvenile Justice: An Indian Scenario, 80-103 (Daya Books, 2000).

[9] Salil Bali v Union of India, (2013) 7 SCC 705.

[10] Id., at para 48.

[11] 2014 AIR SCW 2021.

[12] Anil Malhotra, Towards a Comprehensive Juvenile Justice Law, The Hindu, July 18, 2014.

[13] Dhruva Sareen, Contrasting Conflict: Lowering the Age of Juvenile Justice, 7 India Law Journal.2 (2014).

[14] Amodh Kanth, Reducing the age of Juveniles will kill their spirit, SAHARA SAMAY, November 14, 2014.

[15] http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-bill-2014-3362/ (last visited December 20, 2014).

[16] Supra note 18.

[17] A heinous offence is one for which the minimum punishment under the Indian Penal Code is seven years. Clause 14 of the Bill enlists the sections of Indian Penal Code.

[18] Clause 14(1) of the Bill.

[19] Section 83 of the Indian Penal Code.

[20] Supra note 15.

[21] Clauses 14 and 17 of the Bill.

[22] Peter W. Greenwood,Changing Lives: Delinquency Prevention as Crime Control Policy, 25 (University of Chicago Press, 2005).

[23] Hirokazu Yoshikawa, Long- term effects of early childhood programs on social outcomes and delinquency, 5 The Future of Children.3, 51-75 (1995).

[24] Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, June 2010, available at https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (last visited December 20, 2014).

[25] Laura S. Abrams, Juvenile Justice at a Crosroads: Science, Evidence, and Twenty-First Century Reform, 87 Social Service Review.4, 725 (2013).

[26] Juvenile Law Center’sYouth in the Adult System (2013), available at http://www.jlc.org/current-initiatives/promoting-fairness-courts/youth-adult-system (last visited December 20, 2014).

[27] Donna Bishop,Juvenile Offenders in the Adult Criminal System,27 Crime and Justice, 81 (2000).

[28] http://www.pbs.org/wgbh/pages/frontline/shows/juvenile/stats/kidslikeadults.html (last visited December 21, 2014).

[29] L. Winner, L. Lanza-Kaduce, D. Bishop, and C. Frazier, The transfer of juveniles to criminal court: Reexamining recidivism over the long term, 43 Crime and Delinquency.4, 548-563 (1997).

[30] Supra note 28.

[31] R.E. Redding, & E.J. Fuller, What do juvenile offenders know about being tried as adults?: Implications for deterrence, Juv. & Fam. C. J., 35–45 (2004).

[32] Ibid. Around 80% of youth released from adult prisons reoffend often going on to commit more serious crimes. SeeRaise the Age NY, Get the facts (2013), available athttp://raisetheageny.com/get-the-facts (last visited December 25, 2014).

[33] See Roper v. Simmons, 543 U.S. 551 (2005); and Graham v. Florida, 130 S. Ct. 2011 (2010).

[34] Prof. Elizabeth S. Scott, Criminal Justice and the Juvenile Brain, Columbia Law School, July 10, 2013, available at http://www.law.columbia.edu/media_inquiries/news_events/2013/july2013/scott-brain-research(last visited December 21, 2014).

[35] http://issues.org/28-3/steinberg/(last visited December 20, 2014).

[36] The Royal Society, Neuroscience and the Law (2011), available at https://royalsociety.org/policy/projects/brain-waves/responsibility-law/(last visited December 20, 2014).

[37] Alok Jha, Age of Criminal Responsibility is too low, say Brain Scientists, The Guardian, December 13, 2011.

[38] MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. Issue Brief #3: Less Guilty by Reason of Adolescence, available athttp://www.adjj.org/downloads/6093issue_brief_3.pdf (last visited December 21, 2014).

[39] Elizabeth S. Scott and Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, 18 The Future of Children.2,15 (2008).

[40] Ibid.

[41] Teens’ ability to consider what might happen later on is still developing. See L. Steinberg, E. Cauffman, J. Woolard, S. Graham, and M. Banich, Are Adolescents Less Mature Than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip-Flop”,64 American Psychologist, 583-594 (2009).

[42] A.R. Iselin, Jamie DeCoster & Randall T. Salekin, Maturity in Adolescent and Young Adult Offenders: The Role of Cognitive Control, 33 Law &Human Behaviour.6, 455-469 (2009).

[43] ‘providing for proper care, protection and treatment by catering to their developmental needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation’ and ‘re-socialization

[44] Penal Reform International, The Minimum Age of Criminal Responsibility, Justice for Children Briefing No. 4, 2013, available at http://www.penalreform.org/wp-content/uploads/2013/05/justice-for-children-briefing-4-v6-web_0.pdf (last visited December 26, 2014).

[45] Richard A. Mendel, No Place for Kids: The Case for Reducing Juvenile Incarceration, Annie E. Casey Foundation, 16 (2011),available athttp://www.aecf.org/OurWork/JuvenileJustice/~/media/Pubs/Topics/Juvenile%20Justice/Detention%20Reform/NoPlaceForKids/JJ_NoPlaceForKids_Full.pdf(last visited December 26, 2014).

[46] James C. Howell, Barry C. Feld, et.al., Young Offenders and an Effective Response in the Juvenile and Adult Justice Systems: What Happens, What Should Happen, and What We Need to Know, Study Group on the Transitions between Juvenile Delinquency and Adult Crime, 2013, U.S. Department of Justice, available at https://ncjrs.gov/pdffiles1/nij/grants/242935.pdf (last visited January 1, 2015).

[47] National Crime Records Bureau, Report: Crime in India, 2013, available at http://ncrb.gov.in/CD-CII2013/home.asp (last visited January 1, 2015).

[48] Connecticut passed legislation in July 2007 to raise the age of majority from 16 to 18. Also recently, legislators in Missouri, Illinois, New Hampshire and North Carolina have also started having extensive debates over whether to raise the age to 18. See Jeffrey Fagan, Juvenile Crime and Criminal Justice: Resolving Border Disputes, 18 The Future of Children.2, 107 (2008).

[49] Frank E. Vandervort & William E. Ladd, The Worst of All Possible Worlds: Michigan’s Juvenile Justice System and International Standards for the Treatment of Children, 78 U. DET. MERCY L. REV. 203, 205 (2001).

[50] A survey that was conducted by ACHR (Asian Centre for human rights) in the Government Observation Home, Special Home and Children’s home for the boys in Berhampur revealed that many juveniles had fled to escape the torture and sexual abuse of the care takers, other staffs as well as the older inmates when they fail to do the work on their behalf. See UNICEF, Juvenile Justice- An initiative by KIIT, 2 (2011), available athttp://www.ksrmccs.ac.in/wp-content/uploads/2011/11/JUVENILE-JUSTICE.docx (last visited January 1, 2015).

[51] Depriving these children from food is the most prevalent punishment. Supra note 59.

[52] Ibid.

[53] Rule 9 prohibits the Board to hold its sittings in the Court premises. See Rules under the Juvenile Justice (Care and Protection of Children) Act 2000, available at http://wcd.nic.in/childprot/juvenile%20justice%20_care%20and%20protection%20of%20children_%20rules%202%E2%80%A6.pdf (last visited January 1, 2015).

[54] Supra note 16.

TAG: juveniles in conflict with law , juvenile offenders , rape , nirbhaya case , JJ Act , mens rea , 16 years , 18 years


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