Juvenile Delinquency Rehabilitation or Punishment, The Route To Reform
Juvenile is the term used for any person who is under the age of 18 years, according to Sec.2 (k) of, “The Juvenile Justice (Care and Protection of Children) Act, 2000. Sec.2 (l) defines a “juvenile in conflict with law” as a child who is alleged to have committed an offence and has not yet completed 18 years of age at the time of commission of offence. “Offence” is defined as an act punishable under any law for the time being in force. And the Act specifies that a child should be tried for an offence on the basis of his status as a ‘child’ at the time of commission of offence and not at the time of trial. This means if the child commits any offence even on the last day of his 18th year he will be considered a child for the purpose of trying under this Act and that includes crimes of any nature. The Act has given broad guidelines as to how the authorities or institutions established by the Act are required to treat the child but it does not specify what happens when the offending child enters into adulthood, whether he ceases to be a criminal even though he has committed a crime, or whether his being a child at the time of committing the offence enables him to be set free upon reaching adulthood. A case in instance is the ‘Minor’ accused in the Delhi Rape of a 23 year old paramedic in a moving bus. After spending a year in an observation home he has been released much to the chagrin of the victim’s family and the Indian society. The Court’s verdict upon his release had been that ‘there are’nt any laws to confine him anymore, therefore he should be released’, has brought to light the many issues concerning Juvenile justice which merit some serious thought.
The ‘Juvenile Justice Act, does not allow for the prosecution of a child under 12 years of age. Those between the ages of 12 & 17 can be tried by the specially constituted Juvenile Justice Board. This differentiation is based on the surmise that a juvenile on account of his/her relative immaturity and inexperience, cannot foresee the consequences of his/her actions, cannot control his/her impulses, cannot understand the seriousness of their offences and hence cannot be treated as an adult who is expected to possess an understanding of crime and its effects both upon himself and upon society.1
But the following abstract from an article in the Times of India, speaks of a juvenile offender as somebody capable of plotting and scheming and committing a crime like a professional criminal. It even claims that many such offenders know of their special status as juveniles because of which they cannot be tried and punished as adults. The abstract is as shown below:
“Recently, three boys--aged nine, 12 and 14 --took a seven-year-old girl to a park on the pretext of plucking mangoes and took turns to rape and sodomize her in west Delhi's Paschim Vihar. Also, a juvenile servant masterminded a robbery and murder of a war hero in Patel Nagar in early June. However, the punishment for them will be negligible. Most of the juveniles we catch are aware that being underage grants them a special status,” said a senior cop. Police say they are helpless in tackling crimes committed by minors, especially in the borderline age-group. Police officers recall the case of Sonu, who burgled and set houses on fire. He would openly threaten them, saying he would be out in a month as he was 16 and teach the cops a lesson. The special task force of south district had nabbed a criminal who roamed around with a fake age certificate and claimed to be a minor whenever he was caught.
In the past three years, juveniles have been found involved in rapes, gruesome murders of elderly and robberies. A gang of five minors who had dramatically escaped from a city juvenile home last year on October 5 amid rioting and arson had murdered a jeweller's wife in Mayur Vihar a month later and fled with 50kg of silver jewellery and Rs 10 lakh in cash from the house. A juvenile who was just 10 days short of being a major was among them.”2
It’s a disturbing trend requiring serious introspection and overall changes in the manner in which crimes committed by juveniles are assessed. The vulnerability of children was the basis of the said concession for the children for being treated as children. Since they have used the same concession as an instrument to terrorize the police how can they be expected to show respect for any law even if the laws have been framed for their welfare? Since the Act does not differentiate among simple, serious and heinous crimes these offenders understand that they can get away with milder punishments for all or any of the categories of crimes. Here, neither the law acts as a deterrent nor does it have the ability to restrict the juveniles from desisting from a life of crime or rethinking crime in future. The Act is supposed to help the delinquent reform and to rehabilitate; instead it has become the means by which the juveniles can escape from the consequences of their crime.
Reform Or Rehabilitation Vs. Punishment:
According to the Indian legal system, the delinquents are not differentiated on the basis of their crimes in order to be punished. The punishment prescribed is a maximum period of three years in an observation home under any circumstance including for committing crimes like murder. After three years the delinquent cannot be confined or restrained in the observation home neither can he be tried separately like an adult (if he has become an adult during the period he was in detention) for the same cause of action, because then it will go against the axiom “Nobody can be tried twice for the same crime”. According to the Juvenile Justice Act, the juveniles are not to be kept in the regular prisons. This is so, such that they do not become real criminals after being associated with hardened criminals, because of their impressionable minds. But then if it is their association with criminals that makes them inclined to commit crimes then why is it they commit crimes before being taken into custody when their associations are with the ordinary people without criminal intentions generally? In what manner, their associations with criminals, contributes to their becoming professional criminals is an issue worth researching into.
The Act prescribes only detention in observation homes though in reality some of the juveniles are lodged within prisons with regular prisoners. This is based on the surmise that a juvenile has hope for being reformed and rehabilitated in order to live a normal life, in future, unlike other criminals.3
Age related issues are often the source of contention when a juvenile is being tried. Though, the Juvenile Justice, Rules of 2007 provide for the procedure to be followed for evaluating the age of an offender, it also allows a margin of 1 year as concession for those offenders whose age cannot be determined correctly. Whereas, this provides an increased time period for an offender to be treated as a minor, it also affects the society and the morale of the victims seeking justice, adversely. This is so, because; this type of concession allows the juvenile additional time to be free from the consequences of his/her misdeeds. The victims of the crimes are the most affected since neither can they hope for retribution nor can they repose their faith in the justice delivery system, nor can they believe that the offender has indeed reformed. This is especially so in case the juveniles belong to the borderline cases. The children incarcerated during their formative years i.e. between 12-17 years of age may undergo reform, but what about the juveniles who are between 17-18 years of age? Are they sufficiently ‘reformed’, so that they can be released into the free world with the belief that they would live life normally without taking recourse to crime. And if their trial is not completed before they cease to be minor,then how should they be treated, rather why should they be treated like children? Should they not be punished as adults? Or is it not possible to send them into observation homes till they complete being a minor and then direct them to undergo punishment as an adult for the remaining period, which an adult would have undergone if he/she had committed the crime? The Juvenile Justice Board could determine whether such punishment was to be carried out continuously after the detention in the observation home or if it should be suspended to be revived upon the offender repeating the crime or upon subsequent violation of the law based on th seriousness of the offence. Another method could be to provide for punishing the borderline offenders who have committed heinous crimes, in the manner of adults, subject to release upon showing good conduct or for completion of the term.4
.The Juvenile Justice Act, provides for removal of any disqualification attached to a child from its records (even in borderline cases and when the crime is heinous),upon reaching adulthood.For,borderline cases who cease to be children during the course of the trial it would be difficult to determine on what basis their should be an end to that record and why? That when the reform process could not be initiated how could they be presumed to be without any criminal record? Atleast in instances where the crimes are henious their records should be maintained so that innocent persons of the society do not fall prey to any future criminal activities by these individuals.
Juvenile Justice Bill:
The Nirbhaya5 case has led to the address of the issue of whether a juvenile committing a heinous crime should be allowed to walk free or should be treated as an adult who has committed a crime? The Juvenile Justice Bill of 2015 has been passed by the Rajya sabha seeking for punishing juvenile offenders between the ages of 16-18 like adults. Even if it is implemented it will have to satisfactorily answer the following questions:
(i) How to find out measures for curbing or controlling juvenile delinquency,
(ii) How should the court determine that the juvenile should be punished, and what should be the quantum of punishment
(iii) In what manner should the courts come to such a conclusion?
These aspects of Juvenile justice should be answered subsequently in order that the trials of these delinquents is conducted in a manner that is commiserate with the nature of a juvenile as also have the ability to act as future deterrents of acts of juvenile delinquency.
A juvenile is significantly different from an adult to merit specialized treatment. He/she is also relatively unequipped to deal with the vagaries of life despite the fact that many juveniles are people who have been running their life in their own manner like adults without interference from adults. Thus, when these juveniles become offenders’ confinement or detention is not welcome to their self-sustaining manner of living. Looking at their being in their reformative years, if they are put into correctional facilities which are also places where they can learn to become responsible adults, there is every chance they may seek to rebel rather than use the facilities to become responsible adults. This is the reason for their running away from these correctional facilities.6
It is a herculean task that lies ahead for all those involved in handling these offenders to make the correctional facility a place which they come to look upon as an institution which gives them hope to live life normally in the outside world. The previously mentioned manner of correction through blended sentencing and the need for further research into the mind set of these offenders and the need to answer the above issues framed regarding the Juvenile Justice Bill of 2015 in the coming years will determine whether juvenile delinquency shall be curbed and controlled. It is the tip of the iceberg that is seen in this paper. Lack of research and statistical data on these issues and in this field have led to drawing a blank in every direction that one searches for answers. With many more problems to resolve this area is truly in the forefront for research as well as for defining the standards that should be set for a category of people who maybe viewing crime as a profession rather than a aberration in civilized society.