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[Volume 2, Issue 2] – February, 2017
Author – Rakshit Mishra, B.A, LL.B., (4th Year), Lloyd College of Law, CCS University
When a Child comes in the world for the first time ending 9 months journey from the mother’s womb, certainly the goods, and the bad the happy moments, conquer his very starting of a big journey. Lot of expectations. Infact children are the bright future of every country, let it be India or Australia, the moment a child is born he is taught to bear some of the responsibilities. But if that particular child starts to become a criminal or a terrorist then the nation indeed has no answer. Our country India is the second largest country to have the majority of youths. Although we understand that this very issue is second sensitive one, followed by the terrorist’s attack which makes the list of the headlines. On 16th December 2012 when a girl was brutally raped which was a very unfortunate incident and it disturbed the whole nation altogether, There was another shock which caught the majority ‘eyes’, was ‘juvenile’ ’The word juvenile to the common man comes as ‘’ the child who is of unsound mind or is small or may be a toddler’ ’But the legal meaning of the ‘’juvenile’’ means, a child whose age is below 18 years and also the UNCRC((www.frontline.in/cover-story/of-juveniles-and-justice/article8068293.ece)) (United Nation Convention on the Rights Of The Child) mandates that the minimum age of criminal responsibility of the child should be of 18 years , the idea of bringing the change in law of the children came over 100 years ago((http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf)). Today the main question which is surrounding the related juvenile act is that, what is the use of reforming a child and giving him extra protection if he did something like of very popularly known as ‘’Nirbhaya Case’’(2012).
In the first part of the paper data for the child offenders doing criminal activities has been highlighted, The data for years like 2012,2014 and 2015 mention clearly the increase in child offenders. But the main stuff to get concerned about that these children are from very poor background, whereas the second part of the paper talks about New Amendments Act 2015 and how it has brought our kids under harsher punishment. The Main aim of the paper is to Rethink on this very serious Law of Juvenile Act and how it is more disadvantageous from the previous one ie. Juvenile Justice Act 2000.Today the children of the modern society needs good counselling from the mentors to do or not do certain acts. But This Juvenile Act of 2015 in the second part of the paper has come up with stricter laws for the children who are in conflict with the law. Whereas the third part of the paper discusses about the Child Delinquency and the problems with the children around the world more specifically.
ANALYSIS OF THE DATA: NCRB REPORTs
he whole world and particularly India where 50% of the crimes are done by Juveniles who belongs to very poor family, it needs to be understood that what sort of children do these kind of crimes. According To NCRB reports of 2014((Crimes In India-2014 ncrb.nic.in/star publications/CII/CII2014/Compendium%)) the statistics shown are really eye opening and needs to be looked upon every lawmaker of this country. Shockingly not this one particular case has brought up the data in the news to which every person should get a reason to be concerned upon.
- 2% of all crimes in India are reported by juvenile, but in that 70% are committed by the children between 16 to 18 age group.
- 6% of all rape accused are juveniles, and 1 in 8 juveniles committing crime is an orphan.
Whereas 2015 reports of NCRB after many heinous crimes still not show the drop outs in the crimes by the juvenile offenders. Of all the cases registered 8,800 cases of rapes were done by the children between 16 to 18 years, (under POSCO)((www.dailypioneer.com/columnist/edit/laws-thatscare-notembolden-offenders-html.)).The data also revealed that neighbour were the biggest wrong doers in such cases .For Example, in November 2013 at Vikas Puri Area of Delhi a Complaint was registered as to the missing of an infant girl, Later the police found her body which was brutally raped by a 13 years old boy. The children today are very vehemently put to some work or are used in various offences the offences whether pity or heinous are weighed in the same manner so how can strict laws can be made so as to justify their wrongdoing of every act done by them. Article 39 (e) and (f), 45((Subs.by the constitution (Eighty-sixth Amendment) Act,2002 sec 3,article 45)) and 47 the constitution of the country provides children to get proper nourishment and a compulsory education so that they can meet the basic and clear human rights so that they can be protected. Everyone in the world or if we take a particular country wants that the juvenile system should be fair, protectable and should be not so harsh irrespective of what a child does. It should also teach the children the wrong, give them chances so that the kids can have a fairer opportunity to become rehabilitated. Of course when we look upon the statistical reports of the NCRB regarding crimes done by children, it every time raise the eyebrows as to what should be the best way to improve such kind of children in the most appropriate manner. Children are the essence of a society and every child needs proper care and attention .So when the incident like Delhi rape case comes in the news and the amount of brutality shown by the juvenile, certainly it becomes more specific and clear that the juvenile law has a long way to go. In an Interview with Nirbhaya’s mother by a News channel in 2014, she questioned the judicial system and pointed out the political mirror which never sticks to its promises after the commencement of elections.
THE NEW JUVENILE JUSTICE AMENDED ACT -2015
Somewhere around it needs to be understood that it is very easy to bring children into crimes, as in the 2012 Delhi Rape Case, it was the co-accused Ram Singh who asked the juvenile to carry on the passengers and assault and leaving the girl with fatal injuries. So it can be said that if you send these type of kids to Central cells and lock them along with hard–core criminals then what will be the then impact on the juvenile. No one knows that after the release of the juvenile from a normal jail giving him punishment, trying him under strict laws like IPC would that really bring a change? The children between 16-18 are mainly adolescents and because of which they are more prone to have risky behaviour. There is always a conflict between emotion and deeper thought, so the legislation needs to change the law with the time along with serious repercussions.
The current Juvenile Act, 2015 which talks about the age of the juvenile from 18 to 16, has some serious points so as to take the juvenile system one step ahead, According to the JJ ACT, 2015 any child who commits offence under the age of 16-18 (for Heinous crimes only), ie.offences punishable with imprisonment for seven years or more to be tried and sentenced as adults. So this amendment has took the cake, making the most regressive change in the History of Juveniles Justice System 2015.
Going Back in the history of the Juvenile Justice Act ,Apprentices Act,1850,was the first act of legislation dealing with children in conflict with the law((www.frontline.in/cover-story/regressive-step/article8068317.ece)), which specified the children to get rehabilitated by the help of a probationer or a trainee so that the child escape the punishment of being in the prison for a long time. On November 20, 1959, The United Nations General Assembly adopted the declaration of the child rights all across the globe. The Beijing rules (1985) conveyed that all the countries should have a uniform type of rules in regards to Juvenile justice act. Later in India it was said that a separate juvenile justice delivery system should be adhered by all the states of India and the enforcements done should be accountable back to the courts((Sheela Barse Vs. Union Of India 1983 AIR 378,1983 SCR (2) 337)).But in spite of many amendments and changes in The Juvenile Justice Act all over the world.
But In India, the Juvenile Justice Act has been severely criticized because of certain incidences which disturbs the nation regularly. In accordance, another case which happened immediately after The 2012 Delhi Rape Case was (Shakti Mills Case), because it was also a rape case involving two juveniles .The Shakti Mills case drew a parallel line between the Nirbhaya rape case, because in the 2012 rape case the girl was left to die. In the Shakti Mills Rape case the juveniles who were involved in the harsh incident were send to reform school for three years. If we look to the victims of any rape case or any guardian of the victims there is no such law which can protect them. People with minute knowledge of law asks the political figures to bring change in the law ,every time an incident of Rape is being reported, the society questions the lawmakers .Our Country is judge specific ,whatever is the decision of the judicial organ it binds us with the certain limitations.
Therefore in the case of Juvenile we need to understand the problem with the children who comes in the conflict with the law. When a juvenile becomes a criminal which he never intends to or he never intended to, then society views change accordingly .Still there is the need to waive of the blanket immunity for the heinous offenders for those juveniles who in their mental capacity do such crimes. There are several sections of the society which cannot afford their children proper education, health and protection. As a result, these children get easily involved in petty theft and crimes. So it needs to be understood that there is difference between Adult crime and adult punishment .When a juvenile is convicted of any offence at that time he’s mental capacity should be also examined. When the children are in adolescent age they very much are reward seeking, a level of excitement and stimulation develops in their body.So,the question here is as to what should be done, so that these children find an environment which can give them chance for rejuvenating with proper nourishment.
RETRIBUTIVE OR REFORMATIVE & THERAPEUTIC RESPONSES
When Maneka Gandhi while speaking about the proposed bill in the Rajya Sabha mentioned in the bill that there was a 30% rise in crimes by the child offenders between 2012-14, it was a great setback to the people in the part of Juvenile crime rates.
The preface of the New Juvenile Justice (care and Protection of children), 2015 has therefore introduced some of the drastic changes with the long existed Juvenile law.
Numerous or plenty of questions were raised when the Previous juvenile law got amended, as it was described as more retributive than reformative .And because it was described as more retributive as it contained a more harsher path for the juveniles who committed heinous crimes like that of Rape and Murder, once they are done with the punishment of 7 years, the juvenile will be send to the jail. And then he will not be given the protection under the definition of ‘’child’’.
According to P.Baburaj, former member of the JJ Act, concluded that such an amendment may give relief to the parents of the victims but the Juvenile may become more hard-core criminals((Amendment to Juvenile Justice Act Critisized,THE HINDU,Apr.25,2015)). That justice will not be treated as the fairer justice to the child as we need rehabilitation without killing the innocence of the child.
‘’Adolescent brains are far less developed than previously believed’’((Hybrid Medical Animation, Cruel and unusual punishment: The American Bar Association 1)),According to Rubin C.Gur,close to 22 years an adult brain thinks of impulsivity ,future planning ,foresight of consequences that makes people culpable after attaining the age of an adult. So if we treat juveniles like an adult it will be certainly be excessive punishment to them. On one hand we talk about rejuvenating them but on the other hand amend the laws with the most retributive punishment and justice.
And more importantly this act does not take the sociological and psychological aspects of the child and his background. The Psychological aspect is least bothered in the New Amendment of JJ Act, 2015.
CHILD DELINQUENCY AND ITS HARMFUL EFFECTS: A MATTER OF ANXIETY
When a child is under development the criminality in him is never seen, His activities may become a cause to worry but people don’t recognize it so early. The word ‘’Juvenile Delinquency’’ is coined as that term which shows the ‘’violation of certain areas of rules and regulations by the child’’. Child Delinquency has been categorised into many groups as Individual Delinquency(one child is involved),group of delinquency where more companions and fellow mates are involved in doing a particular offence, situational delinquency and organised delinquency((Becker H.S social problems :A modern approach, New York, John willy and sons, INC 1996 Pg. No.226-240)).Taking the case of India the violation of penal laws in understood as child delinquency. So the juvenile delinquency questions a major setback for the any of the country for not properly developing a child mentally and psychologically. Shockingly Many Indians while giving opinions as to what should be done to punish a child who is conflict with law, gave suggestions like: beat the child with an iron fists. They also add that without taking a look at the juvenile justice board should be sent to Jail and should be capitulate immediately.
But the causes of Juvenile Delinquency should be understood by the people, our lawmakers while framing the constitution did not felt to become harder to the women and children of the country and this particular fact should be respected by every citizen. So there are certain loophole when a child is under the development and it affects them badly in the future. The data and the records of NCRB shows that of the all the children who are involved in Criminal activities are half of them infact majority of them are from very poor families.
So poverty is the main cause for the delinquency in youth of today. Though we have a perfect education system to nourish an inculcate values in child. The children who cannot afford to study economically or by any other reason .Our system never attracts them with any opportunity. And which is why it becomes easy for them to get in to the crime world and earn money as soon as they grow up. Having mentioned that it is specific that the behaviour of child delinquents is just as same as the western culture. It becomes difficult to analyse a child’s behaviour if we do not give or provide with proper guidance and preventive measure, to not to get involved in wrong things.
According to a data of Russian Federation that rate of juvenile delinquency in groups is much higher than the adult who are committing offences((Juvenile Delinquency| World youth report,2003|PG.191 -211, http://www.un.org/esa/socdev/unyin/documents/ch07.pdf)). The use of the technology and high involvement of juveniles in the offences like rape, murder and dacoity.The data reveals that the delinquency is much higher in the terrorists group as compared to crimes committed by juveniles individually.
Shaw and McKay’s Cultural Transmission Theory (1931:386) –Chapter 6-8((Users.soc.umn.edu/~uggen/allen_precise 1)) mentions that lack of social control agencies have a high incidents of delinquency by the child offenders. This is why they point out the upbringing and nourishment of these kind of children. The child offenders are under peer pressure. Also the lack economical advantage and this thing brings a type of insult, as to what there life is, in comparison to the boys living in urban areas. So Urbanisation is also the reason as to bring a complex in the behaviour of the child.
It then takes to the proper treatment of the child who has the sign of becoming a criminal and because of this there are some therapies which can bring back a reform. These changes are: Psychotherapy, activity Therapy, Behaviour Therapy((Social Problems In India/Third Edition/Ram Ahuja/juvenile delinquency pg:379-404)).These changes will not only rejuvenate the child but also bring a drastic effect on the child offenders. The psychotherapy will treat a person emotionally and it will bring significant changes in the child’s behaviour. Whereas the behaviour therapy will teach a child about positive and negative behaviour. For example, if a child is getting beatings from her mother for the incompletion of the Homework, so he will be taught to understand the mother emotion’s about beating him and bringing him back on the right track. And the difference between the good, right bad and the wrong will be introduced to the child. Thus, all the therapeutic techniques for the betterment of the child will be done in the most appropriate manner so that the child is examined and nourished to become better citizen of the country.
IDEA OF JUVENILE SYSTEM INTERNATIONALLY: A LOOK ACROSS THE GLOBE
Growing exemplifications indicates the involvement of adults in the involvement of the child for committing any heinous crime. Adults also know that the child doing the offence will not get any harsher punishments for his misdeeds and will surely be set free from the jail immediately. If we talk internationally, the juvenile justice act differs its rules and regulations from each and every country across the globe. In the year 1909, Judge Julian Mack was one of the first judge who sat over the first Juvenile Court in Illinois, and mentioned the objectives of the juvenile court.
She added that, once a juvenile is bought before the court he should be well known of the fact that he is standing in front of the most powerful instrument of the state and also, he is in the safe hands and will be totally protected by the same people and the board under which he will stay over the period of time((Julian Mack, ’The juvenile court’ ’Harvard Law Review,vol.23 (1909),120])).In 1825 New York, the society for juvenile Delinquency was established for rehabilitating the juvenile offenders.
The first Juvenile Court was established in the year 1899, Illinois (U.S.).Following footsteps of the United States of America, many countries started to follow the Juvenile justice system and certain law were made with regard to the child offenders. However these Countries often have a due process in referring a juvenile to the juvenile board.
Like in the first of all cases held in U.S.A, a case was reported as Kent vs. United States((Kent vs United States,383 U.S.541 1996)),there was one Morris Kent who entered the court at the age of 14 and was accused of chain snatching and stabbing someone in the public. Later after 2 years his finger prints were recognised and he was referred to the adult courts, Kent’s mother however hired a lawyer and it was found that he was having some psychopathology problems and needed rehabilation. But the court without giving much attention to the plea referred the matter to the criminal court.
Whereas different countries have set different age for the juveniles, there are no harsher laws, instead they focus on the child’s mental growth and neurological development. Whereas if we move to South Asian countries like China, which brought its rule of Juvenile Justice in the year 1979 because of the rise in Child offences. Larceny has increased 80% in China with the highest in the case of rape, assault or murder. With the same reason economic problem, unemployment, and the case of broken families. Cases of rape and assault by the 13-18 years of age group are common in Russia and Germany altogether. Similarly, in the study of Nambia there was certain increase in the crime rate of the juvenile related crime because of sudden change
CONCLUSIONS
We do not want to have a blanket Immunity for the children, but there is a need to rehabilitate them instead of giving retributive punishments. In India, we are more judge specific. After the Shakti Mills case in 2013, harsher laws should not be made instead the children should be provided with proper education system should be specified to the families who are extremely backward. The 2015 Juvenile Act is a much awaited amendment but the limits and punishments for the juveniles should not have been made so strict, rather it would have been much better that we add the punishments in the exceptional clauses. This would be certainly a mature step to bring the immature to the right path of the Life.