Judging Juvenile

Two year ago Amnesty International (Human Rights Organization) started a campaign for increasing the age of juvenile in Jammu  and Kashmir from 16 to 18 years,to press upon the state to bring the Juvenile justice Act in consonance with the UN Convention on the rights of child because except in J&K, all over India the age of Juvenile is 18 Years. But after the heinous act of rape and murder of 23 yr old student, there arise a debate on the justice to the victim or to the Juvenile,as  among the perpetrator was a Juvenile and was convicted and  sentenced according to the Juvenile Act 2000. Unequivocally this act of savagery arose the national conscience, and a vocal and fortitude demand arises for a tough act against the juvenile also, even  debate on the legality  and desirability of the juvenile act itself has been generated.

India’s Underlying Principle

After Independence, The 1960 Children Act was enacted to tackle the repercussion on children with the advent of industrialization which resulted in an  increasing  child delinquency in large city specially petty crimes such as theft. This act for the first time in India, prohibited the imprisonment of children under any circumstances.  It also provided for separate adjudicatory bodies  that is Children court and welfare board to deal with delinquent and neglected children. In addition it added a three tier institution for the children namely a n observatory home for children on whom the proceeding is pending, special school for delinquent children and a children home for neglected children. But it introduced a gender specific determination of juvenile which is 16 for boys and 18 years for girls.

In 1986 Juvenile Justice act was enacted in conformity with other international guideline for the juvenile, that are United Nation Declaration of the Rights of the Child in 1959 and the 1985 United Nations standard Minimum Rules for the Administration of the Juvenile Justice (Beijing Rules).Albeit it took care the rights of the child but still has some lacunae. With India became a signatory of the 1989  Convention on the Rights of Child after ratifying it in 1992, the need for more uniform Juvenile act was felt. After the United Nations Guideline for the Administration of Juvenile Delinquency (Riyadh Guideline) ,and United Nations Rules for the Protection of Juvenile Deprived of their liberty (JDL Rules),the provision of CRC got amplified. India enacted the Juvenile Justice (Care & Protection of Children) Act 2000 later amended in 2006 is the current act which deals with the Juvenile offences.

Juvenile Debate

JJ act 2000 is a progressive legislation, which replaced the judicial process with a reformatory regime, favoring supervised probation or stay in observation home over imprisonment. With this, the aim is to reform the young offender rather than putting them behind bar which often work to fan the recidivist tendencies in them. This act has three important  provision different from the other legislations that are: 1  The Juvenile Court is replaced by a three member Juvenile justice Board, secondly it introduced a uniform Juvenile age that is 18 years for both boys and girls and the third is the custodial sentence under section 15(1)(g) was to be limited to three years. The last two provision is contentious among the different section of the societies. And the buzz around its reform got bigger and have multitude voice  with the recent crime engaging young offenders.

Following American  model is being  cited for going strict with the young offenders.  But India’s  crime statistics  is different from that of America. With its open policy the number of  brutal crime including children is  staggering high in America, the rate of Juvenile offender is almost the half of the total crime rate, in  some of the school shooting cases the juvenile age was under 16 years. So all these increasing number of crimes forces the American Congress to amend  their  Federal and state  Juvenile law. In contrast in India, according  the  National Crime Record Bureau (NCRB )  data between 2001 and 2011 the Juvenile delinquency rate has ranged between 1.6 to 2.1  per cent  of total crime, and of these only 5 to 8 per cent are violent crimes like murder and rape . Therefore the US model is  hardly of any significant relevance for India. As we have totally different strata and social problems from that of America, which act to a larger extent for an  upbringing a mental makeup for offences in conflict with the law.

With the shaken conscience after the Delhi rape case, people emotion poured for the  justice to the departed soul. But the demand for a tough Juvenile Punishment need to be rationally balanced. As in a nation governed by the rule of law emotion should not over rule the rational behind the law and a balanced Justice for all.

There is the misconception that Juvenile involved in heinous crime are matured enough as like a adult, which is not exactly the case as pointed by the Brain science expert. MacArthur Foundations undertaken a scientific exploration of the adolescent brain systems, and established that any deviant behavior is a function of two distinct sets of brain systems, namely the socio – emotional system and the cognitive control system that involve different region of the brain which mature along different timetables. Thus competence related abilities matured by 16 years, but the capacity relevant to the  decisionabout criminal culpability continues to mature till young age. These findings are supported by brain science researcher Laurence Steinberg who argue in his paper published in “Issues in science and technology”( Spring 2012)  thus : “Adolescents should be viewed as inherently less responsible than adults and should be punished less harshly than adults ,even when the crime they are convicted of are identical ”.

Required Reform

So scientifically and socially it will be not fair to divert from the reformative approach towards the retributive approach. Instead the reform methods itself need a reform. We have to get rid of the complacent attitude that a mere stint in the remand home or correctional home will reform the Juvenile. This stereotype method needs a gradation as the atmosphere in many such facilities is not conducive for reformation, and in fact may toughen or entrench criminal propensities. Former Chairmen of  Child Welfare committee, a statutory body, S Syed Ahmed said “There is nothing wrong in the Juvenile act , if something need to be changed it is the functioning of the correctional homes run by the govt”. A report in India Today shows the bleak poignant state of the  remand homes, there are 815 remand homes with a capacity of  35000. However there are more than 1.7 million juvenile accused in  India.Merely going by a differential process for juvenile offender is not enough. It is obvious that the social contract underlying a lenient regime require equal attention to be paid to the design and implementation of a rehabilitation process. Juvenile convict of petty crimes and of one convict of serious horrendous crime needs separate treatment in their counseling and reformation as the former may tend toward the latter offence if not guided properly . There is scope of more positive reform and rehabilitation in Juvenile as compared to adult convict subjected proper guidance.

Sikander Khan