Justice and the Juvenile

September 6, 2013
Justice and the juvenile
Calls to dilute the Juvenile Justice Act in light of what is perceived as lenient punishment to the juvenile offender in the Delhi gang rape case are understandable but misplaced. The crime shook the country’s conscience, brought forth an unprecedented outpouring of anger and triggered collective introspection on the safety of women and girls. But even though there is a view that the young perpetrator has been able to get away lightly, this is not reason enough to question or do away with the principles underlying juvenile justice. Separate legislation has existed in many countries around the world since the early 20th century for the care and protection of children, including child offenders. The present system in India was introduced by a 1986 Act and improved upon in 2000. The JJ Act, 2000, a progressive legislation, replaced the regular judicial process with a reformatory regime, favouring supervised probation or stay in an observation home over imprisonment. The law tries to reform a young offender’s conduct rather than confine him for decades in a prison with adult criminals, which only works to fan recidivist tendencies.
While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of the large body of crime in the country. However, merely going through a differential process for juvenile offenders is not enough. It is obvious that the social contract underlying a lenient regime requires equal attention to be paid to the design and implementation of a proper rehabilitation process. Society will only countenance shielding young offenders guilty of great brutality from the rigours of adult justice if it is confident that they will indeed benefit from the rehabilitative approach to juvenile justice. In India, we need to guard against the complacent belief that a stint in a remand home is enough for their rehabilitation. The atmosphere in many such facilities is not conducive for reformation, and in fact may toughen or entrench criminal propensities. The system should not end up creating a new underclass that combines a sense of triumph over avoiding a prison term after committing heinous crimes, with the psychological effects of staying under bleak, hope-denying conditions. Making juvenile correctional facilities more humane is one part of the answer. But to address the need for proportionality — not so much in punishment as in the necessity of socio-psychological repair — when a young offender commits truly heinous crimes, a longer period of sustained counselling and rehabilitation ought to be an essential part of the juvenile justice process even after the maximum period of remand is over.

Should the Juvenile Justice Act be amended?
Members of the All India Mahila Sanskritik Sangathan (AIMSS) staged a demonstration in the city on Tuesday to highlight their demands, which included meting out “exemplary punishment” to juveniles (those below 18 years of age) involved in heinous crimes, such as rape and murder , by amending the Juvenile Justice (Care and Protection of Children) Act, 2000.
The protest comes in the wake of an order passed by the Juvenile Justice Board in New Delhi on August 31 directing a 17-year-old convict in the gang rape of a 23-year-old physiotherapy student to undergo three years, the maximum tenure prescribed under the JJ Act, in a correctional home. The protestors called for more stringent punishment to the offender.
Other demands included stopping sex education in schools, banning obscenity on television, cinema and Internet, and prohibiting the sale of liquor.
The protest was supported by the All India Democratic Students Organisation and All India Democratic Youth Organisation.
T. Hilda Mary, State Committee member of AIMSS, told The Hindu that it was unfair to order a juvenile to be lodged in a correctional home for petty crimes such as theft as well as heinous crimes such as rape and murder. “Ordering a rape convict to spend just three years in a correctional home is not going to deter others from committing crimes against women,” she observed.
But S. Syed Ahmed, former chairman of Child Welfare Committee, a statutory body, said the aim of the Juvenile Justice Board is not to punish but reform offenders. “I can understand the agony and anguish of women victims of rape. At the same time, I expect them to understand the circumstances that lead to juveniles committing heinous crimes,” he said.
According to him, juvenile offenders undergo severe mental trauma owing to their upbringing in crime-prone localities. Constant exposure to criminal activities turns them into criminals. Providing psychological counselling , and not punishing them, will help in their transformation.
“T here is nothing wrong with the Juvenile Justice Act. If at all something has to be changed, it is the functioning of the correctional homes run by the government. At present, these homes are places where even petty offenders are groomed to become hardcore criminals. The government must and change this situation,” he suggested.
He also pointed out that there was no concrete data to prove that stiff punishment resulted in the lowering of the crime rate anywhere in the world . “Crimes occur even in nations such as Saudi Arabia which follow the policy of an eye- for-an-eye and tooth-for-a-tooth. Therefore, what is required is a change in our outlook and not stringent punishment,”he added.
R. Alagumani, a lawyer practising at the Madras High Court Bench here, wondered why there was such a hue and cry over amending the Juvenile Justice Act when it had been used time and again in the last 12 years to get many murder convicts released from jail even after their conviction had been confirmed at the level of the Supreme Court.
In July, 2010, a 26-year-old youth, convicted and sentenced to life imprisonment by a Tirunelveli sessions court as well as the High Court in a triple murder case, was ordered to be released by the High Court Bench after it was proved through a habeas corpus petition that he was only 17 years, 7 months and 8 days old on March 3, 2001, the day when he murdered three people.
The High Court had held that the youngster’s failure to prove his age at the time of trial and get himself exempted from facing trial could not be reasons to deny him the benefit of the JJ Act. In the same year, three other individuals from Tuticorin were also ordered to be released on the same ground, despite their conviction in a murder case.
“The list is endless. The JJ Act should not be understood as a piece of legislation that protects men alone. It applies equally to women also. Before the year 2000, boys aged below 16 years were provided protection under the Act. The age for boys was raised to 18 after deep deliberation. Therefore, in my view, there is no need to tinker with the enactment,” he said.

September 6, 2013
Balancing the juvenile act
Young offenders above a certain age who commit violent crimes should be prosecuted as adults
On August 31, 2013, the Juvenile Justice Board (JJB) ordered that the boy who raped Nirbhaya, brutalised her with an iron rod, pulled out her intestines and then cleaned up the bus and made tea would go virtually free by sentencing him to only 28 months in a remand home as eight months of the total 36 months’ sentence had already been served. This order is subject to review by the JJB based on the behaviour of the juvenile and the police are required to expunge this crime from his record in order to ensure complete rehabilitation. Despite the unprecedented street protests following the Nirbhaya rape, there has been little substantive debate on the adequacy of the Juvenile Justice Act to deal with such heinous crimes.
Underlying principle
The JJ Act was passed in 2000 with the purpose of incorporating into domestic law India’s obligations under international law as a signatory of the U.N. Convention on the Rights of the Child of 1989, the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985) (known as the “Beijing Rules”) and the U.N. Rules for the Protection of Juveniles Deprived of their Liberty (1990). Underlying these international texts is the legal philosophy that juveniles lack the physical and mental maturity to take responsibility for their crimes, and because their character is not fully developed, they still have the possibility of being rehabilitated. This basic principle underlies the juvenile justice systems in many countries, including the United States and the U.K.
The JJA creates a juvenile justice system in which persons up to the age of 18 who commit an offence punishable under any law are not subject to imprisonment in the adult justice system but instead will be subject to advice/admonition, counselling, community service, payment of a fine or, at the most, be sent to a remand home for three years.
However, the interest in protection of juveniles has to be balanced with the interest of protecting particularly vulnerable members of society from violent crimes committed by persons under 18 years of age and amending the law when societal conditions radically change over time. As per the reports of the National Crime Records Bureau (NCRB) entitled “Crime in India 2011” and “Crime in India 2012,” the percentage of crimes committed by juveniles as compared to total crimes has not significantly increased from 2001-2012. According to the NCRB statistics, India is not in the throes of a general crime wave by juveniles. However, the NCRB statistics relating to violent crimes by juveniles against women are very troubling. “Crime in India 2011” suggests the number of rapes committed by juveniles has more than doubled over the past decade from 399 rapes in 2001 to 858 rapes in 2010. “Crime in India 2012” records that the total number of rapes committed by juveniles more than doubled from 485 in 2002 to 1149 in 2011.
As the data suggests, between 2011 and 2012 alone, there was a massive increase in instances of rape by juveniles by nearly 300, which is almost as much as the increase in such cases over the entire previous decade. This increase alone makes amendment of the JJA imperative.
‘Get tough’ approach
Several other countries such as the U.S. and the U.K., which are both signatories to the U.N. Convention, have also faced an increase in violent crimes by juveniles but, unlike India, they have taken action to amend their laws. Most States in the U.S. have enacted a juvenile code of which the main objective is rehabilitation and not punishment. Juveniles appear in juvenile court and not in adult court. Juvenile courts do not have the power to impose punishment and can impose only rehabilitative measures or assistance by government programmes. However, since the increase in violent crimes committed by juveniles in the 1990s, U.S. States have adopted a “get tough” approach in response.
In most U.S. States, the jurisdiction of juvenile courts is automatically waived when a juvenile above a certain age, usually 13 or 15, commits a violent or other serious crime, and the case is automatically transferred to adult court. A certification hearing takes place and an adult court prosecutor is required to convince the adult court that the case should be transferred. The juvenile is entitled to an attorney at the hearing and to present any evidence which mitigates against the transfer. For example, in Indiana, South Dakota and Vermont, children as young as 10 can be tried as adults. California’s Proposition 21 which was passed in 2000 allows prosecutors to automatically try juveniles who commit felonies as adults. Under Michigan’s Juvenile Waiver Law passed in 1997, juveniles can automatically be tried as adults.
Youth Court
Similarly, in the U.K., persons under 18 are tried by a “Youth Court” which is a special type of magistrate’s court for those aged 10-18 years. The Youth Court can issue community sentences, behavioural programmes, reparation orders, youth detention and rehabilitation programmes which last three years. However, for serious crimes like murder or rape, the case starts in Youth Court but is transferred to a Crown Court which is the same as a Sessions Court. The Crown Court can sentence the child for offences of murder committed when the offender was a youth as well as for “grave crimes” including sexual assault and sentence the child to “indeterminate detention for public protection.”
The Crown Court can also give “extended sentence” to a minor. If a youth is jointly charged with an adult, the charge is heard and tried by a regular court. If the youth is found guilty, the Crown Court can impose a sentence which does not exceed the maximum sentence applicable to an offender who is 21 years or older. Therefore, in both the U.S. and the U.K., juveniles who commit violent crimes such as rape are prosecuted in the same manner as adults.
Even the U.N. Convention and the Beijing Rules do not prohibit subjecting children/juveniles to the regular criminal justice system under certain circumstances. Article 40 of the U.N. Convention provides that a child who has been accused of having violated the penal law shall have the following guarantees: to be presumed innocent until proven guilty according to law, to be informed promptly of the charges against him and to have legal or other appropriate assistance in the preparation of his defence, to have the matter determined without delay by a competent and impartial authority or judicial body, not to be compelled to confess guilty, and to examine witnesses. Moreover, the state can establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. Therefore, in accordance with the U.N. Convention, the JJ Act could have established an age limit, such as 14 or 16, below which a person could not be deemed to have the capacity to commit an offence. In short, the U.N. Convention does not prohibit prosecuting a child under 18 who has committed an offence under the regular penal laws.
Beijing Rules
Rule 17 of the Beijing Rules, in turn, provides that the reaction shall be in proportion to the circumstances and the gravity of the offence as well as the circumstances and needs of the juvenile as well as the needs of society. Furthermore, personal liberty may be deprived if the juvenile is adjudicated guilty of a serious offence involving violence against another person or persistence in committing other serious offences. Unlike the U.N. Convention, the Beijing Rules do not fix 18 as the age of a juvenile. Instead, the Beijing Rules provide for rules applicable to persons between the age of 7 and 18. Therefore, India’s international legal obligations do not prohibit it from amending the JJ Act to provide that persons between the age of 16-18 who are accused of rape, kidnapping and abduction of women and girls will be exempted from the jurisdiction of the JJB and tried in the adult criminal justice system.
Unfortunately, the current system serves neither the purpose of rehabilitation nor deterrence against future crime. As reported by India Today, there are 815 remand homes in India with a capacity of 35,000. However, there are 1.7 million juvenile accused in India. Remand homes in India are not conducive to the reform and rehabilitation of juveniles as envisioned by the principles enshrined in international law. While rehabilitation is certainly an important legal and societal objective, this interest surely has to be balanced with creating a legal deterrent to protect women and girls from the increasing incidence of rapes by juveniles. Particularly in view of the significant increase in rapes committed by juveniles since the JJ Act was passed, India should consider amendment of the Act to transfer certain violent crimes such as murder and rape committed by juveniles above a particular age to the adult criminal system.