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Frequently Asked Questions
With regards to the boy, in the Delhi gang rape, it must be made known that the boy was not the most brutal as was made out by the media. The Investigating Officer Anil Sharma went on record to state that police investigation found nothing to conclude that the juvenile accused was the most brutal. http://timesofindia.indiatimes.com/city/delhi/Nirbhaya-case-juvenile-wasnt-most-brutal/articleshow/23426346.cms
He was also acquitted by the Juvenile Justice Board for a number of offences that he was accused of.
When discussing justice for victims we will realize that the notion of justice is subjective. When a victim has been severely brutalized, or has lost her life, would even the harshest conceivable form of punishment provide a sense of justice to the near and dear of the victim? It could never bring their loved one back or erase what happened. In the dreadful case of the Delhi gang rape too, we understand the feelings of anger and hurt of the family. The public too repeatedly exposed to the plight of the family by the media, shares the feelings of anger and outrage.
Yet, at the same time we are not a society that believes in an eye for an eye. And hence, we have a criminal justice system, based on certain principles, which punishes, reforms and also rehabilitates those found guilty of crime. The Indian State, through constitutional provisions, views children, individuals under 18 years of age as individuals for whom special measures of protection need to be taken to ensure that they grow and develop healthy, in both mind and body. India has also historically, held that children who commit offences as products of an unfavorable environment, and believe that while they must be held accountable for their actions, they must be given a chance to reform. This is the basis of the comprehensive preventive juvenile justice framework in India which applies to all children, those who are in need of protection as well as those who come in come in conflict with the law.
Justice for any victim comprises measures, which include an effective, sensitive and quick procedure, financial compensation, and aid for the victim or the victim’s family, rehabilitation, and appropriate punishment for the guilty offender, amongst other things.
However, in a case of sexual violence, where the perpetrator is a child, justice and protection of the rights of victims, are as critical as protection of rights of the child offender for reasons stated above. Hence, the existence of a robust juvenile justice system, is imperative, to hold the juvenile accountable, reform him, and to place him back in society.
Sadly, we cannot undo the Nirbhaya incident, and her family may never feel they have achieved justice. But, if children are not permitted to vote, drive, or open a bank account, as they are deemed immature, incapable for making prudent decisions, and easily manipulated, the same logic must continue to apply to give them protection and separate treatment in a child justice system.
The reference made to ‘adult-like’ crimes is mostly when speaking of sexual crimes committed by children. Sexual maturation does take place in children during their adolescent years. Children do reach sexual maturity before cognitive, or emotional maturity.
In fact, research shows that adolescence is the period in which humans undergo transition into adulthood. During this phase, the brain undergoes structural changes, coupled with tremendous physiological, hormonal, and emotional changes. The development of the brain is a gradual process that takes place between the ages of 13 and 25 years. This is also the logic behind setting the age threshold of adulthood at a median of 18 years. The last part of the brain to develop is the frontal cortex, the frontal lobe, which is responsible for executive decision-making and that is why adolescents are more impulsive, they take more risk and they are unable to really determine the consequences of their behaviour. It is therefore a time of great vulnerability. As a result, adolescents are less likely to focus on future outcomes, less likely to show adult capacities of self- restraint, less risk-averse than adults, and they tend to evaluate risks and benefits differently. In fact, the act of engaging in such high-risk crimes like rape or murder, only points towards a lack of maturity, rather than an excess of it.
Unfavorable socio-economic condition, family struggle, peer pressure, media influence and other such, have a strong influence on their minds. Psychologists have found that the vulnerability to indulge in risky or reckless behaviour is greater in middle adolescence (14-17 years). Evidence of this is borne out by data on crime in India over five years, which reveals that majority of juveniles apprehended fall in the age group of 16-18 years.
Children today also have much greater access to information. They are far more exposed to consumerism, and to violence that the media shows them. They are subjects of information overload and consumerist aspirations beamed to them day in and day out. However, it does not make them more mature or informed. It is their lack of capacity to process information, and use discretion that results in deviant behavior. They should not be penalized for their lack of capacity to exercise discretion.
As a society we must support children complete their passage into adulthood in a responsible and safe manner rather than sending them to prison where they will be exposed to hardened criminals who will feed on their vulnerability and initiate them into a career path and a life of crime. This will only serve to put society at a higher risk and increase the supply of young people into organized crime.
It has also been learned that the same vulnerability that caused them to act unwisely, can be used to reform them. It is always possible to influence a young mind positively and reform the same.
True, there is no guarantee that the juvenile who committed the crime will change, but fact is there is no country in the world either that has reported that by sending children to adult prisons it has been successful / it has been able to deter crime. There is however a lot of evidence that proves that children who are sent for reformative and rehabilitative care/ given an opportunity to start again do change.
Studies in USA have found that young people transferred to the adult criminal justice system have approximately 34% more re-arrests for felony crimes than youth retained in the youth justice system. Around 80% of youth released from adult prisons reoffend often going on to commit more serious crimes (National Campaign to Reform State Juvenile Justice Systems. The Fourth Wave: Juvenile Justice Reforms for the Twenty -First Century; p. 20. Retrieved from: http://www.publicinterestprojects.org/wp-content/uploads/2012/11/JJ-Whitepaper-Design-Full-Final.pdf.).
In Delhi, experience of dealing with children transferred from Tihar and Rohini jails to the juvenile justice system after court intervention has shown that exposure to the adult system has made them more violent. On the other hand, even with the limited resources, children who have remained in the Juvenile Justice system have been found to be more amenable to reform and re-assimilation into society. Evidence on the ground supports the assertion that a caring environment can undo the damage done by a lack of it in the past. In Bangalore, the ECHO Center for Juvenile Justice has imparted training to 135 juveniles since 2002 to enable them to serve as Traffic Police Assistants, transforming them from “law breakers” to “law enforcers” thus demonstrating the power of a reform-oriented approach.
In terms of obtaining a sense of justice for a victim of a crime, no number of years of imprisonment would suffice, especially for a serious or a heinous crime. Having said that, studies have shown that too short a sentence takes away the fear of prison, and too long a sentence results in institutionalization of the offender for years, making it difficult for him or her at the end of a very long period of imprisonment, to responsibly adapt back into society.
A 3 year term in a rehabilitation facility is meant for reformation processes to be applied on a child and is adequate enough for that purpose. It is also followed-up with 3 years of after-care and supervision by the system. So the child is under the system effectively for a period that could last up to 6 years. The question should rather be about the quality of the input received by the child during the period of detention and after.
Asking for long term imprisonment without a focus on the demands of reformation and rehabilitation is nothing more than a veiled demand for retribution and revenge to assuage the feelings of hurt of the victim. Studies suggest three years is an appropriate duration for a sentence to prevent the harm of short term and long term imprisonment. Currently the need of the hour is investment in up-gradation of facilities, which would provide the environment, have the required infrastructure, specialists and experts who can bring about the desired change in the behaviour.
Crimes committed by juveniles are increasing exponentially? It’s different now.
It is incorrect to say that women and children are unsafe only because young criminals are not given enough punishment. Or that heinous crimes committed by children are increasing exponentially.
Firstly, according to National Crime Records Bureau 2013 data, the number of persons below 18 years involved in crime and arrested is negligible--0.54% of all persons arrested under IPC and SLL crimes.
Further, if we were to take population (2011 census) into account
- In 2011, out of every million Indians, the number of 16-18 year olds that were arrested under Sec 302 and Sec 376 was just 1.
- In 2011, out of every million children, the number of 16-18 year olds that were arrested under Sec 302 and Sec 376 of IPC were just 3.
A recent United Nations statistical analysis of violence against children based on NFHS data for India showed that over 70% of girls in the 15-19 age group named current or former husbands or partners as perpetrators of sexual violence against them.
While it is important to address the need for justice for those who are victims of sexual violence, the numbers above clearly show that the problems lie elsewhere, and targeting the young offenders in the 16-18 age group is not the solution either to deterring crime or to keeping women safe.
Secondly, there is no country in the world either that has reported that by sending children to adult prisons it has been successful in reducing crime. True irrespective of the age of the person the person must be held responsible and accountable for the offence he/she has committed- except that there must be a separate justice system for children so that the child has a second chance to start again, reform and re-integrate into society.
The need of the hour is for the State to set up preventive check-posts i.e. to invest in infrastructure, services (creches, de-addiction centres and other facilities for youth), human resource, skills, technology, education, awareness, and means to engage youth in constructive manner in order to prevent them from engaging in crime.
True, Juvenile Homes may not be leading to desired reformation, but this is because the Government of India has not established juvenile homes with the required specialists and experts who can bring about the desired change in the behavior as is required to be established under Juvenile Justice (care and protection) Act, 2000. It would be unfair to make children pay the price for the system’s incapacity.
All children who come in conflict with law, irrespective of the crime they commit, or who the victim of the crime is, are dealt with under the Juvenile Justice (care and protection) Act.
An individual will be treated as a juvenile if he/she has not completed his/her 18th year of age on the day of commission of the crime committed. A juvenile who completes the age of 18 years is provided with after-care and follow-up services to ensure his or her reintegration into society, until the age of 21 years. There can also be further follow-up for a longer duration, if required.
All children who come in conflict with law and are required to be detained are sent to Observation Homes for the duration of the inquiry, and if they are sentenced, they are further transferred to a Special Home. As per Sec 8 (4) & Sec 9 (4) Juvenile Justice Act, 2000 children are separated in the Observation & Special Home on the basis of (i) age (ii) physical and mental status and (iii) degree of the offence committed. Every child is held accountable for his/her actions. The sentence, reformation plan is as per his/her age; physical and mental status; degree of the crime committed etc.
Observation Homes and Special Homes, the institutions which house children who come in conflict with the law are custodial settings, which in appearance are almost prison-like. Characterized by high stone walls, barbed wire fences, barricades, windows with double grills and mesh, round the clock uniformed security guards, limited time on the grounds within the premises etc. Being detained in these facilities, for 3 years, is deprivation of liberty which is enough for a juvenile.
Yes, every child must be held responsible and accountable for the offence he/she has committed. For reasons explained in answer 2 above, children who commit crimes, require a separate system to deal with them. This does not in any way mean that such a system will not hold them responsible for their actions. A separate juvenile justice system gives children a second chance- to take accountability for their actions, to reform and re-integrate into society.
It is not that the rights of children must take precedence of the rights of other members of society, but the rights of children need to be equally protected as any other member of society. Children are not on an equal footing as adults, hence they deserve special protections.
The percentage of girls below the age of 18 years who were arrested under section 376 & 302 IPC in 2013 was 0.0010% of the total number of persons (7 – 60 years and above) arrested under IPC and SLL crimes. This is 0.19% of the total number of persons below the age of 18 years arrested under IPC and SLL crimes.
Most countries have a separate legislation which governs juvenile justice. Once a child crosses the age of criminal responsibility which varies from nation to nation, some as high as 14 or even 18 and some as low as 6 years of age, he/she enters the juvenile justice system when he/she comes in conflict with law. Majority countries make exceptions for children in the age group of 16-18 years and do try and sentence them as adults. Some of these countries include England, Australia, USA, Pakistan, Saudi Arabia etc. All countries have varied procedure and systems to deal with children who commit heinous offences, based on their own circumstances and contexts. Some try them in youth courts, some in regular adult courts, some send them to prison with adults, others have special facilities for young offenders, many do not impose death sentences or life sentences without the possibility of parole, some do impose the death sentence, even amputate body parts.
In almost all countries there are campaigns and efforts from civil society groups advocating against treating children who commit heinous crimes as adults. Some links may be found below:
India’s constitutional right to equality is about ensuring fairness. Penalizing juveniles as adults would violate the fundamental principle of equality, as juveniles do not neuro-biologically possess the capacity for decision making and impulse control as adults, and are therefore not on an equal footing when treated as adults.
The proposed system also violates the rights of juveniles stipulated in the United Nations Child Rights Convention (UNCRC), which India has solemnly signed and ratified. The National Policy for Children, 2013, framed through consensus across all parties and Ministries defines ‘child’ as a person below the age of 18 years, whose rights need to be recognized, protected and promoted. The policy also clearly says that all laws and programmes should be informed by it. In blatant violation of the policy, the Bill deprives children between 16 and 18 years from the beneficial provisions of the JJ Act based on the nature of offence.
The United Nations Committee on the Rights of the Child strongly recommended that States Parties “which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.”
- Adolescent Development and the Regulation of Youth Crime - Elizabeth S. Scott and Laurence Steinberg
- Busting misconceptions on juvenile justice - Swagata Raha
- Children must not be treated as adults under new juvenile justice law
- Don't Exclude Children Committing Serious Offences From The Juvenile Justice Act - Ved Kumari
- India activists oppose tougher juvenile law - Betwa Sharma
- Nirbhaya case juvenile wasn’t ‘most brutal? - Smriti Singh & Manoj Mitta
- Reducing the age of Juveniles will kill their spirit - Amod Kanth
- Remedy worst than Malady – Juvenile Justice Act #childrights - Vrinda Grover
- Rough Justice - Faizan Mustafa
- The Juvenile Justice Act can heal broken spirits - Shekhar P Seshadri and Swagata Raha
- The media monster of the juvenile offender - Shivam Vij
- Transfer of juvenile cases to adult courts will not reduce crime - Kavita Krishnan and Sanjayaditya Kaul
- Why Maneka Gandhi's plan to lower the age for juvenile crimes is wrong - Nishita Jha
Juvenile Justice Bill, 2014 as introduced in ParliamentView JJ Bill 2014
Stories of children who have been through the Juvenile Justice system
12 year old Raj who worked as a domestic help in Delhi, was arrested and brought before Juvenile Justice Board (JJB) in 2002. Raj murdered Ramesh, a 22 year old youth, who continued to have an illicit relationship with his sister even after she got married. Raj and his family had continually tried to persuade and later warn Ramesh against talking to and meeting the sister. But this did not stop and soon people in the village began to gossip about them. Humiliated and fed up of continually being ridiculed, one day in anger Raj murdered Ramesh. Since it took 8 years for the case to conclude, and the juvenile (Raj) had already been in custody for more than 3 years, which is more than the maximum period prescribed in the JJA. The JJB considered it appropriate to close the inquiry. Raj, an adult today, works with his father on the little land they own back in his village.
Jitender’s father remarried and he was ill treated by his step-mother. To get away from an unwelcoming home he spent majority of his time with friends in the community after returning from school, instead of going home. Seeing the older children around him smoking, he and a couple of friends also started. By age 14 he dropped out of class 9, was a chain smoker, and an intravenous drug addict. One night arguments and taunting by his step-mother got out of control. She refused to give him dinner. In anger he hit her multiple times. Hearing this his father beat him till he bled. Jitender left home that night, and thereafter stayed with friends. He was also part of the local crime gangs in the area that earned their money by pawning gold chains, bangles for paltry sums and whatever else they got from pickpocketing. The money earned, paid for his increasing addiction needs.
He had a girlfriend. One day her father caught them having (consensual) sex, beat up Jitender, and filed a case of rape against him with the police. The police presented Jitender before the Juvenile Justice Board (JJB).
The JJB identifying him as being a drug addict sent him to a de-addiction centre to detox. Jitender took a couple of weeks before he actually started participating in the detox program which included group sharing, sessions on how to negotiate with peers to resist the pressure to use drugs, one-one counseling sessions, where Jitender vented a lot of his pent up anger towards his family, life skill training – motor repair etc.
His uncle was contacted and requested to come to the centre as he was the only relative Jitender had good relations with. The centre conducted a group session with the uncle informing them how family support and encouragement is crucial at this time. Thereafter the uncle visited Jitender from time to time during his 6 months at the centre encouraging him on the progress he had made and attending sessions to help him understand how best to interact with Jitender who was coming out of addiction. After the 6 months, Jitender was presented before the JJB again, and since the board had seen it was not a case of rape the case was dropped and he was handed over to his uncle. It has been 3 years since Jitender left the centre, he is completely clean, and works at his uncle’s shop.
Mukesh came from a dysfunctional family where his father, an alcoholic, subjected his mother and him to domestic violence every other day. He grew to hate his father and, dreamt and wished him dead. From an early age he tried to avoid going home. He spent all his time with friends from the neighbourhood. Being one of the youngest in the gang he wanted to be accepted and respected like the older boys, thus, consciously and unconsciously, imitated all they did, was always available at their beck and call etc. He began smoking and drinking when he was 9 years old. He would accompany his friends to GB road (Delhi’s red light district) and eventually joined them in what they did there.
At home, Mukesh’s mother left his father and remarried. He felt rejected, alone, confused and angry. He drowned himself in his world of drugs. One day, heavily under the influence of smack, he joined his friends as they gang raped a girl they knew. He and his friends were picked up by the police. Since he was only 15, Mukesh was presented before the Juvenile Justice Board (JJB), where he stated he was guilty of the crime. He was sent by the JJB to a de-addiction centre for detox. During this period his step-father supported and encouraged him by visiting him every week. The acceptance of the step-father motivated Mukesh to want to change. This in addition to the group sessions and outdoor activities helped Mukesh deal with a number of issues (anger, feeling of neglect etc) and focus his energies in a productive manner. Today, Mukesh is still in contact with social workers, has a job and is getting his life back on track.