In Retrospect

Rethinking juvenile Delinquency

Despite several theoretical modifications in law, juvenile justice in India continues to be shackled by an inadequate understanding of rehabilitation and reformation as against mere retribution

A teenager convicted by a Sessions Court in Gurugram last week for raping a six-year-old girl in July 2016, was sentenced to 20 years' imprisonment. Since the convict was above 16 but below 18 at the time of commissioning the crime, the Gurugram Juvenile Justice Board, considering the heinous nature of the crime committed, had declared him to be an adult and directed the case to a Sessions Court. This was a first-of-its-kind verdict ever since the Juvenile Justice Act was amended in January 2016. So far, there have been several cases of juveniles tried as adults for dacoity, murder, snatching and rape. While awarding the sentence to the teenager, the additional sessions judge observed that this was a heinous crime of brutalising a six-year-old, leaving no scope for leniency. Thus, the exemplary sentence will act as a strong deterrent. Will it? And even if it does, the pertinent question is whether we are correct in resorting to retributive justice for children in conflict with the law (CCL).

The new law

A judicial waiver occurs when a juvenile court judge transfers a case from a juvenile to an adult court, denying a juvenile the protection of their jurisdiction. Henceforth, these juveniles can be tried as adults and awarded sentences that an adult can receive. This has been the cornerstone of the latest amendment spearheaded by the Ministry of Women and Child Development as an effective response to assuage the public demand of stringent laws (especially against juveniles) in the aftermath of the 2012 Delhi gang-rape. As per the Juvenile Justice (Care and Protection) Act, 2015, a juvenile in the age group of 16-18 years accused of committing a heinous crime can be tried as an adult after a preliminary assessment by the Juvenile Justice Board (JJB) reviews the juvenile's physical and mental ability to commit such a crime, and ability to understand the circumstances and consequences of the crime. This unprecedented reform in Juvenile Laws has struck a bittersweet blow. Since its inception, JJB has encountered a number of cases where the Judicial Waiver System has appeared as an effective deterrent – yet, with this process, rehabilitation has become more daunting.

Interestingly, Section 3 of the JJ Act, 2015, prescribes a set of fundamental principles. These principles recognise that children are innocent of any mala fide or criminal intent up to the age of 18 years, presuming that anything done by a child in conflict with law has been done without mens rea or mala fide intention. It further states how children differ from adults in their physical and psychological development as well as their emotional needs. Such differences constitute the basis for the lesser culpability of CCLs and, therefore, make way for a separate juvenile justice system. This means that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. So, the 16 to 18-year-old juveniles indulging in heinous crimes are stuck in reverberating irony. While the law understands that children are innocent and often unaware of the consequences of their actions – underestimating risk and lacking foresight – the new law begs to differ, given the severity of the crime committed.

No doubt then that the Parliamentary Standing Committee Report found the proposed Judicial Waiver System under the Juvenile Justice (Care and Protection) Bill as violative of India's constitutional mandate and its international obligations under the United Nations Convention on the Rights of the Child. Scrutinising the differential treatment of children between 16 and 18 years of age, it reinstated how juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution. Alas, the cabinet did what it intended to and the new amendment wrecked havoc on the face of juvenile reformation, actively threatening the basic structure of juvenile justice – based on a reformative approach instead of a retributive one.

Reformation: The modern approach

The JJ Model Rules, 2016, are based on the philosophy that children need to be reformed and reintegrated into society. There is a tendency to go for harsher punishments in order to bring down rising crime rates. After the 2012 gang-rape incident and the cases at Unnao and Kathua in 2017, civil society erupted demanding severe punishment for rapists. Though punishments have increased time and again, rapes have not subsided. So, either the punishment is not acting as the desired deterrent or maybe our approach is flawed. In either case, the optimal alternative is the reformation of CCL. Exiting the traditional sphere of punitive measures, the rehabilitative steps will ensure a robust environment of learning and continuous care that the JJ (Care and Protection) Act, 2015, envisages for CCL.

In terms of the rehabilitation and reformation of CCLs, environment is integral. If the environment allows learning compounded with supplementary lessons like life skill training, sports, moral science alongside mainstream education, it has a definite positive impact on the mind of the offender. Therapeutic sessions and a support system that captures the child's haywire sense of understanding can aid in building positive reformation. Just as how clay can be moulded in whichever way desired – similarly, children, if under negative influence, can be derailed into indulging in crimes. On the other hand, positive influence can enhance latent abilities – perhaps to even build a changemaker.

Pilot insight

As a facilitator for a pilot programme at one of the juvenile homes in Delhi, Observation Home for Boys (OHB-II), Sewa Kutir, I closely witnessed the current rehabilitation system. Most CCLs lodged in the Observation Home for a variety of crimes had one thing in common – a chance to reform. But with the existing system of reformation, there was a need to reinvigorate the process. The pilot rehabilitation session(s) coupled with organised sport for 180+ CCLs reaped one particular outcome amidst many – a will to change.

The session was unique in several ways. It acted upon the potential to change and tinkered with the realisation of the offence committed. That organised sport and introspective interaction could benefit these children more than regular counselling sessions, reinforced the pilot's vision to pursue dynamic rehabilitation and reformation programmes. The feedback from children, a generic question of whether they desire to indulge in this kind of programme – benefits of which even they don't realise yet – yielded a massively positive response.

Fruits of Reformation

Strolling through the ground during a session, I encountered a child express discomfort upon introspecting his offence and where it had led him. One need not be a psychologist to know that his realisation was tainted in deep regret.

I was unaware of his offence, as all matters related to CCLs are confidential and the session itself did not interrogate the children about what they did. Instead, it asked them whether they would have chosen not to do what they actually did – and if the alternate path appears favourable. Here lays the crux – understanding if the offence was due to mala fide intention or a pre-planned act done with risk assessment.

A child's aftercare responsibility was taken by the pilot runners in the wake of his release from the Juvenile Home back in August. Arun (name changed) is a shining example that reformation yields more than retribution and recidivism cannot breed when the waters are clean. The productive learning environment that Arun embraced after his release made him a leader that young children in his community take inspiration from. He works as a Field Coordinator at a non-profit organisation, symbolically instilling hope and confidence in how change can facilitate a reformed outlook and motivating many more CCLs against going down the path of felony.

Reinforced approach

While there exist a number of reformative measures to tend to CCLs, implementation is the key, as always. On paper, the JJ Act is a strong set of ideal regulations, which, if applied with precision, will yield tremendous results. A verdict citing 20 years of incarceration is considered a strong deterrent – and, even then, our so-called deterrent fails to abate the rising number of children in conflict with law. This instills faith in rehabilitation as the best alternative, made better if reinvigorated by innovation and dynamic collaborations.

With the correct approach, instead of being a country with stringent laws to curb juvenile delinquency, we can be a nation with exemplary reformation stories that revolutionise the approach in countering and, subsequently, decreasing juvenile delinquency.

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