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Juvenile Justice (Care And Protection) Bill Up For Discussion In Rajya Sabha

By Noor Ameena

08 December, 2015
Countercurrents.org

This year, the world celebrated the 25 years of United Nations Convention on Rights of Children. India was one of the earliest signatories to United Nations Convention on Rights of Children, and one of those progressive states which enacted legislation for the care and protection of children in conflict with law (any child who has come in contact with law as a result of committing a crime or being suspected of committing a crime) and children in need of care and protection (abandoned children). It is an accepted principle worldwide that any individual below the age of 18 years shall be deemed a ‘child’. The Juvenile Justice (Care and Protection) Bill, which seeks to decrease the age of criminal responsibility of children from 18 to 16 years, is up for discussion in Rajya Sabha this week. This Bill was passed by the Lok Sabha in the last session of the Parliament despite staunch opposition from various sections within and outside the Parliament.

The Bill provides that in case a heinous crime has been committed by a person in the age group of 16-18 years, it will be examined by the Juvenile Justice Board with the aid of psychologists and social experts to assess if the crime was committed as a ‘child’ or as an ‘adult’. It provides that a child between16-18 would be transferred to a special home and he will remain there upto the age of 21 years. After this he would be assessed and if not reformed would be sent to an adult prison. It also disallows the protection from disqualification in cases where a juvenile is tried and convicted under the adult system.

Not all children are criminals

The basic premise in which the argument in favor of the treatment of children between 16-18 years of ages as adults itself is wrong, and is built upon certain misconceptions. The Statement of Objects and Reasons of the Bill states that there is an increase in the crimes by children in the age group of 16-18 years, especially in certain categories of heinous offences. However facts and figures show that juvenile crimes constitute only a miniscule of the total IPC crimes committed.

Let us not assume that majority of our children are indulging in criminal activity. India has a child population (age below 18 years) of 472 million, i.e., 42% of our total population. Out of this 472 million, only 1.2% indulges in some form of criminal activities. Within it, only 7% indulge in serious crimes like rape or murder, which includes consensual sexual activity and cases framed in love cases and elopement, where rape is charged almost ornamentally at the instance of girl’s parents; and the numerous cases where the juvenile is found not guilty at the end.

- The share of the IPC crimes committed by juveniles to the total number of IPC crimes remains 1-1.2% during 2003 to 2013, and has remained constant at 1.2% in 2012 and 2013.

- In 2013, juveniles between 16 and 18 years apprehended for murder and rape constituted 2.17% and 3.5% of all juveniles apprehended for IPC crimes. They also constituted a meager 1.30% (845) and 3.29% (1388) of all persons arrested for murder (64813) and rape (42115) in 2013.

Hence the perception that the children engage in significantly high number of criminal activities and that the malaise of sexual offences and other crimes in India would disappear/ even reduce once the juveniles are lodged in jail is clearly overstated.

When a law is made, it should be based on the generality of the situation, and not to be based on exceptions. If laws are made to uphold the popular sentiments based on the exaggerated media reports unsupported by facts, it is likely to be counter-productive. The current move of the Government may be more popular, in the light of the whole Nirbhaya episode, but to make a law in the light of one/ two incidents is neither proper nor justifiable. What should be reflected at the moment is the political maturity to keep politics away from policies while performing important legislative functions in this temple of democracy.

Who constitutes the strayed children?

If we look at the social milieu of the children who are alleged or found to be in conflict with law, it can be seen that most of them belong to a weak socio-economic background. More than 50% of the total juveniles apprehended has either not gone to school at all, or have dropped out after primary level; and more than 75% of them belong to families with an annual income less than Rs.50000. So, if bring in an amendment now, it is those who constitute disadvantaged lot who will suffer. As a system, we failed them once, and now we are failing them again.

Are they old enough?

The argument that “if you are old enough to rape, he is old enough to hang” is wrong. There are enough neurological studies to the contrary. An eminent psychologist from Bangluru explains that “adolescents are less culpable than adults because adolescent criminal conduct is driven by transitory influences that are constitutive of this developmental stage. By nature of their psycho-biological profile, adolescents are greatly influenced by their environment, and too immature to weigh the consequences of their actions.” This predisposes them to poor decision-making — a key factor that distinguishes them from adults. The very age factor that makes them susceptible for negative influences makes their possibility for reforms as well. Looking at it at a more simplistic level, do you think that your 16 year old child is old enough to think like you, and to weigh the nature and consequences of all their actions?

What do we achieve?

One thing should be very clear. What is it that we seek to achieve by trying a juvenile as an adult and sending him to prisons, where he would come in contact with hardened criminals? Is it our object to send them to a finishing school for criminality? Let us not forget the fact that many of these children are neglected children, the ones who have seen and suffered violence in their lives, who were born in streets or who have run away from homes.

Harsh punishment cannot be a deterrent and this in turn could make the juveniles hardcore criminals. The essence of Juvenile Justice Act is to reform but this amendment goes against the spirit of the Act. It is also against the constitutional principles and International Conventions.

The transfer system that we envisage in the Bill is something which has been proven as counter-productive across the globe. Many countries like US & UK which followed this kind of transfer system has now accepted that it was not effective in reducing juvenile crime rate. According to the National Campaign to Reform State Juvenile Justice Systems (U.S.), 80 per cent of the juveniles who are released from adult prisons go on to commit more serious offences. We ourselves have given away with it pro-actively in 2000, through the enactment of the Juvenile Justice (Care & Protection) Act, 2000, and surprisingly by the same Minister who is now pushing forward for quite the opposite. The Parliamentary Standing Committee which scrutinized the Bill has also expressed its strong dissent as against this provision.

Further, there is enough space within the current system to specially deal with those children between 16-18 years who has committed serious offences, well within the juvenile system; and there is no need to push the juvenile offenders into adult system. S.16, JJA, 2000) (1)

Improve the existing system

The existing juvenile justice system requires greater commitment in terms of financial allocation, training and cadre-building for its effective implementation. If the social investigation, individual care plan and monitoring were done effectively, it would enable the rehabilitation of the juvenile. There has been a gross failure in the existing juvenile justice system primarily because its provisions, in particular those relating to rehabilitation, vocational training and social reintegration, had not been implemented in the letter and spirit. The need of the hour is to give effect to the provisions contained in the Juvenile Justice Act, 2000 and Rules framed thereunder so that children in conflict with law as well as those in need of care and protection are provided the requisite infrastructure, prescribed standards of care in institutions, education, counselling, vocational training, individual care plan, as per their development needs and best interest.

However, the situation is grim. The JJBs or CWCs are not sufficient in number, while many CWCs just exist in paper; Thane district in Maharashtra, with a population of over 1.1 crores has just one CWC. Special homes are inadequate; The Child Welfare Officers appointed in the police stations do not have sufficient expertise or training; there is lack of coordination among the various statutory bodies, their accountabilities, performance appraisals, training and capacity building; and there is hardly any monitoring.

The children who constitute more than 40 % of the population are allotted less than 0.04% of the total budget. In Integrated Child Protection Scheme- which includes a programme for juvenile justice- the actual expenditure involved in 2013-14 were 265 crores, while the allocation for the current year is 65 crores. This kind of an approach would not turn productive. This year itself, we saw a massive cut of about 30% in the Children’s Budget.

As Justice Verma Committee has rightly pointed out, there has been a failure to create the requisite infrastructure which would help children to be reintegrated into society. The priority for making these high quality institutions so that de facto inequality can be cured, has been completely overlooked by all concerned. (2)The need of the hour was to give effect to the provisions contained in the Juvenile Justice Act, 2000 and Rules framed thereunder so that children in conflict with law as well as those in need of care and protection were provided the requisite infrastructure, prescribed standards of care in institutions, education, counselling, vocational training, individual care plan, as per their development needs and best interest.

We spend so much on building IITs, IIMs, IIITs, we are experimenting Smart Cities, Model Villages and Digital India. Why don’t we set up a Smart Special Homes with a built in atmosphere for reformation of the self, with higher emphasis on counseling, skill development and education.

Conclusion

If we are ever to have real peace in this world we shall have to begin with the children.
-- Mohandas K. Gandhi.

There can be no better measure of our governance than the way we treat our children, and no greater failing on our part than to allow them to be subjected to violence, abuse or exploitation.
-- Jessica Lange.

It is really unfortunate that out of all the vices that has transpired in Indian soil, we today find our children as our greatest enemies. If some of our children have drifted into the world of darkness, it was because the world around him did not show him enough light to move on. Let us light a lamp, and bring them back, instead of pushing them in perpetual gloom.

Noor Ameena, Student, MA Development Studies, Tata Institute of Social Sciences, Mumbai

Notes

1. Juvenile Justice Act, 2000- S.16.- Order that may not be passed against juvenile.-(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security :

Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is of so serious in nature or that his conduct and behaviour have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government.

(2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit : Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the juvenile could have been sentenced for the offence committed.

2. Justice Verma Committee Report

 



 



 

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