Children in Conflict with Law: The Child Offender
UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
Article 40 (Juvenile justice): Children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights. Governments are required to set a minimum age below which children cannot be held criminally responsible and to provide minimum guarantees for the fairness and quick resolution of judicial or alternative proceedings
From Jesus to Gandhi, before and after, every sublime soul has beheld divinity in juvenility. Yet, we have young offenders!! What went wrong? There are many questions that come to ones mind. Is it poverty? But children of rich parents also take to crime. Is it poor upbringing? Is it peer pressure? Is it urbanisation and marginalisation? Young children are committing crime and this is a testimony of state of social and moral fabric of the society.
Vagrancy, delinquency and crime are emerging as serious social problems in India. Children who are run away, abandoned or come from broken homes form a vulnerable group.
Children in conflict with law or the child offenders are most commonly referred to as juvenile delinquents. As per the Juvenile Justice (Care and Protection of Children) Act, 1986, males below 16 years and females below 18 years were considered as a child. Covered under the Juvenile Justice (Care and Protection of Children) Act, 2000, the age has been increased for boys also to 18 years hence the number of such children in conflict with law has increased over the years, from 17,203 in 1994 to 30,943 in 2004. Not only has the number of offenders gone up, even the percentage of juvenile crimes to total crimes has virtually doubled from 0.5 to 1.0 %. While part of this increase in juvenile crimes may be attributed to the inclusion of boys aged 16–18 years in the definition of child in the revised juvenile justice law of 2000, the fact remains that the rate of juvenile crimes is fairly high and more and more children in the 16–18 years category are coming in conflict with law (Table 6.1).
Juveniles Apprehended Under IPC and SLL Crimes by Sex (1994–2004)
Incidence and rate of Juvenile Delinquency under IPC (1994–2004)
Percentage of juvenile crimes to total crimes
Total cognizable crimes
As per National Crime Records Bureau (2013), a total of 41,639 juveniles were apprehended in 2013 under IPC and Special laws (SLL) of which only 4.3 % were girls. Of these, bulk of juvenile (28,830 which is 66.3 %) were in the age group 16–18 years. Juvenile crime under IPC has risen from 27,936 in 2012 to 31,725 in 2013.
6.1 Factors Responsible for Children Coming in Conflict with Law
To be born in happy and comfortable homes and a caring society is not a destiny that all children enjoy. There are several social and economic factors that push children to committing crimes. Inadequate care and protection systems create multiple levels of violence against children and bring girls and boys into conflict with the law. Broken homes, poverty, illiteracy, living with criminal parents, harsh disciplining, physical abuse and neglect, migration from villages to urban slum squatters, loss of identity in cities and hence a search for a sense of belongingness albeit a negative one, peer influence, exposure to anti-social activities, gang membership and lack of parental guidance could be some of the many reasons which result in inadequate care and protection mechanisms bringing children in conflict with law.
In India, a vast majority of children are impoverished, which puts them in especially difficult circumstances where they are in crying need for care and protection. Children are destitute, neglected and marginalised, often living away from their parents, deprived of family care, shelter, clothing, food, health and education. All these factors put them at a greater risk of taking to criminal activities.
The impact of media on children is an important factor. Violence in today’s cinema, acceptable aberrations shown in TV serials, advertisements, fashion shows and crime-related TV programmes. Many times crime is glorified rather than abhorred. All of these give ideas to the young mind.
In India, at times the policing system treats a child who is a victim of crime in the same manner as a child who has committed a crime. Children who are used, trafficked and forced into begging, drug peddling, prostitution etc. are actually victims of crime. These children cannot be treated in the same manner as those who are caught committing a crime and are juvenile offenders. At times, some children also become victims of legal apathy when they could be detained for crimes which they have not committed. The overwhelming majority of children in the criminal justice system do not belong there. The vast majority of youngsters are deprived of their liberty, who have not been convicted of a crime and are yet to be brought to trial. Misuse and overuse of detention and lack of alternatives put large numbers of boys and girls at risk of violence. At times child beggars and vagrant children are put in the same category as children who have committed serious offences. Such children face the discriminatory component of law and could then take on to become regular offenders. Also, booking children for minor crimes decreases their chances to become productive, contributing adults, and is a disservice to communities. At times, children could be falsely implicated so that police can claim that they have taken some action on cases pending with them. Inadequacy of law and the behaviour of police add to the woes of children.
In the year 2004, out of the total juveniles involved in various crimes, 9,273 were illiterate and 10,771 had education up to primary level. These two categories have accounted for 64.8 % of the total juveniles arrested during the year 2004. Children living with parents/guardians (23,701) have accounted for 76.6 % of the total juveniles arrested. The share of homeless children who were involved in various crimes was just 7.5 %. A large chunk of juveniles (72.3 %) belonged to the poor family whose annual income was up to Rs. 25,000/. The share of juveniles hailing from middle-income group (Rs. 50,000–2,00,000) was 8.7 %. The share of juveniles from upper middle income (Rs. 2,00,000–3,00,000) and upper income (above Rs. 3,00,000) was considerably low at 0.3 and 0.02 %, respectively (National Crime Records Bureau 2004). These figures indicate that a vast majority of children coming in conflict with law are either illiterate or have low levels of literacy and majority belong to poor families.
As per National Crime Records Bureau (2013), out of the total juveniles involved in various crimes, 8,392 were illiterate and 13,984 had education up to primary level. These two categories together accounted for 51.9 % of the total juveniles arrested during the year 2013. Children living with parents (35,244) have accounted for 81.0 % of the total juveniles apprehended. The share of homeless children (2,462) who were involved in various crimes was just 5.7 %. A large number of juveniles (50.2 %) belonged to the poor families whose annual income was up to Rs. 25,000. The share of juveniles from families with income between Rs. 25,000 and 50,000 was 27.3 %. The share of juveniles hailing from income group Rs. 50,000 to 2,00,000 was 20.2 %. The share of juveniles from families in income group Rs. 2,00,000–3,00,000 was 1.4 % and income group above Rs. 3,00,000 was 0.6 %.
6.2 What Do We Mean by ‘Juvenile Justice’?
The term juvenile justice emanates from the word ‘juvenis’, which is a Latin word for young, and hence, it is a justice system for the young. Juvenile justice is a framework and a system that protects, reforms and rehabilitates the young. The concept of juvenile justice is derived from the belief that both problems of delinquency as well as children and youth in abnormal circumstances cannot be resolved by the traditional processes of criminal law. The system is not designed to deal with young offenders alone. Its role is to provide specialised and preventive treatment services for children and young persons as a means of ‘secondary prevention, rehabilitation and socialization’ (HAQ: Centre for Child Rights and Leher, n.d.).
According to the United Nations Convention on the Rights of the Child, “State Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society”.
The term “juvenile justice” would refer to all measures taken by the state and society specially for the juvenile offenders. It would include legislations, norms and standards, procedures, mechanisms and provision, institutions and bodies which the state machinery has developed for the juvenile offenders. It is important to note that juvenile justice includes the measures to prevent children from coming in conflict with law. Hence, it also includes efforts to address the root causes of offending behaviour and implement measures to prevent such behaviour.
Government responses to children in conflict with the law almost always involve dealing with the child through a formal justice system. Due to their specific needs and circumstances, children and adolescents should always be treated outside the regular adult criminal system.
Fundamental Principles of a Juvenile Justice System
The juvenile justice system shall be child-centred that all actions pertaining to the child have to be in his/her best interest.
Children need to be treated with humanity. They are not hardened criminals and have a life time ahead to them to put their lives together.
Children to be kept away in confinement with liberty taken away only as the last resort and for the shortest period possible. Detention only as a last resort, for the shortest time possible.
The child should have access to legal assistance.
No capital punishment. Currently there are only 6 countries in the world that still have juvenile death penalty.
No life imprisonment. About 12 countries in the world allow for minors to be given a life sentence with no provision for release.
There should be reduced pre-trial detention. Children should not be kept away from their families due to delay in trial as this moves them away from protective societal networks, reinforces stigmatisation and discrimination.
Attempt should be to reach the root cause of offending behaviour, explore circumstances which led to the offence, the familial conditions, the motivations for offending and what corrections can be made hence forth.
There should be diversion and alternative to detention in the form of social work, and involving children in socially meaningful activities. This would also help mainstream the child and reduce alienation.
Specialisation and multidisciplinary approach: when the ‘criminal’ is a child, then a multidisciplinary team of people is recommended which should try to help this child. The team should not only just include the police and the judiciary but also a social worker, a psychiatrist, a child psychologist, persons belonging to the civil society like the teachers, panchayat members, head masters, lawyers, probation officers to name some. What this refers to is not a single juvenile justice system, but multiple, inter-connected systems.
After care and reintegration to prevent re-offending.
‘Restorative Justice’ Approach to Juvenile Justice Versus ‘Retributive Justice’
Criminal justice systems in many countries are ‘retributive’—i.e. they are concerned with punishing the offender, concentrating more on the crime itself than on the people involved. However, this is often not in the best interests of the victim, the offender, or society in general. This would be most counter productive specially in the context of the child offender.
In the ‘restorative justice’ approach, the focus is on ‘restoring’ damaged relationships and make things right as much as possible. This approach looks for solutions to restore harmony and to rehabilitate the offender as well as the victim. The ultimate aim of restorative justice is healing. It emphasises the active participation of the offender, victim and community in listening to the facts and feelings of those involved, and identifying and implementing solutions which balance the best interests of all sides involved. The offender takes responsibility for their crime and makes amends to the victim and to the community. It allows for repentance, forgiveness and reintegration. Restorative justice is much more likely to reduce re-offending.
Restorative justice applies to people of all ages but it is especially important in relation to young offenders as it provides the option of having a lasting impact on their emotional and moral development which is positive, rather than negative: it can stop the process of a young offender turning into an adult offender.
Restorative justice involves these strands (www.juvenilejusticepanel.org, retrieved on 4 January 2014):
Prevention—In order to ensure that boys and girls do not come into conflict with the law in the first place and therefore do not come into contact with the formal criminal justice system;
Diversion—To ensure that at all possible stages girls and boys are diverted away from the formal justice system and into community-based and restorative processes that address effectively the causes of their behaviours and identify strategies at the community level to effectively prevent re-offending e.g. victim-offender mediation, family group conferencing, referral to an NGO or other community or social programme, including substance abuse programmes, family reunification, community service, police warnings, behaviour contracts, conditional or unconditional release; and
Protection—Of children who are already in conflict with the law from human rights violations, focusing on their development in order to deter them from re-offending and to promote their rehabilitation and smooth their reintegration back into society e.g. care, guidance and supervision orders; probation; community service orders; financial penalties, compensations and restitution; intermediate treatment and other treatment orders; orders to participate in group counselling and other similar activities; orders concerning foster care, living communities or other educational settings.
Restorative justice is about balancing the rights of offenders, rights of victims and concern for public safety and crime prevention. Police officers have a key role to play in this important process. Their actions can make the difference between a good outcome and a bad outcome for all those involved.
The UN Guidelines on the Prevention of Juvenile Delinquency (Riyadh Guidelines), 1990
cover both general, ‘developmental’ prevention (addressing the root causes of the creation of social problems such as poverty and inequality) and ‘responsive’ prevention (programmes targeted at those children most at risk of coming into conflict with the law). The Riyadh Guidelines encourage a positive emphasis on socio-economic support and quality of life rather than a ‘negative’ crime prevention approach. They cover virtually all social areas such as family, school, community, media, social policy, legislation and juvenile justice administration.
6.3 Legal Reforms Recommended in Laws for Juvenile Offenders
Laws and legal systems fashioned according to norms of justice, and international human rights represent a universal common heritage for ensuring that state power does not emerge as authoritarian. It is vital that the standards set in the CRC are incorporated in the national legal system. Keeping in view the UNCRC and other UN guidelines on juvenile justice (including the Riyadh Guidelines and Beijing Rules), any laws relating to juvenile offenders should incorporate these principles for according justice to them:
Ensure the protection of all children, regardless of gender, race, ethnicity, sexuality, disability and social, economic or any other status from discriminatory laws and practices.
Ensure that children below the age of 18 are accorded the protection of separate justice provisions and are not treated as adults criminals.
De-criminalise ‘vagrancy’, ‘loitering’, victims of commercial sexual exploitation and status offences such as truancy and ‘running away’; and ‘survival’ activities like beggary.
Outlaw the death penalty and life imprisonment for crimes committed by children under the age of 18 at the time of the offence and commute any existing death sentences passed on children.
The Beijing rules are not a treaty and are not binding per se. These provide that:
A comprehensive social policy is in place to ensure the well-being of the juveniles.
Reaction to juvenile offenders is always to be in proportion to both the circumstances of the offender and the offence.
Police officers who deal extensively with juveniles shall be specially instructed and trained.
Detention pending trial is to be used as a last measure of last resort and for the shortest period of time.
The placement of juveniles in an institution is always to be a last resort and for the minimum necessary period.
Necessary assistance such as housing, vocational training and employment is to be provided to facilitate the rehabilitative process (Mitra 1999).
6.4 The Indian Law
6.4.1 The Juvenile Justice Act, 1986
The Juvenile Justice (Care and Protection) Act, 1986 was enacted by the Parliament of India in recognition of the commitment that the country has made in respect of the care protection, treatment, development and rehabilitation of neglected children and juvenile in conflict with law. The act marked the beginning of a new era in seeking to promote the ‘best interests of the juveniles’. The act brought about a uniform juvenile justice system through out the country by consolidating some of the major provisions and clauses of the Indian constitution and all related legislations on the subject.
Objective of the Juvenile Justice Act
To lay down a uniform framework for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock up.
To provide for a specialised approach towards the prevention and treatment of juvenile delinquency.
To spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming under the purview of the JJ system.
To establish norms and standards for the administration of juvenile justice.
To develop appropriate linkages and coordination between the formal system of juvenile justice and voluntary agencies.
To constitute special offences in relation to juveniles.
Salient features of the Juvenile Justice Act 1986:
Envisages a comprehensive approach to justice for juveniles in situations of abuse, exploitation and social maladjustment.
JJA totally renounces the term ‘custody’ and replaces it with ‘care’.
As per the JJA, a ‘juvenile’ means a boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years.
It categorically spells out that no juvenile is to be kept in a police station for more than 24 h.
The JJA classifies juveniles in two categories; ‘neglected juveniles’ and ‘delinquent juveniles’. ‘Neglected Juvenile’ is a child found begging, is a destitute, has inadequate parental support and guidance, who lives in a brothel or with a prostitute, or is likely to get exploited for criminal and immoral purposes. ‘Delinquent Juvenile’ is a child found to have committed an offence which is punishable as per Indian laws.
It stipulates two main authorities in the administration of juvenile justice; ‘Juvenile Welfare Boards’ to deal with the neglected juvenile and the ‘Juvenile Court’ to deal with juvenile delinquents and to decide on the cases concerning them.
JJA stipulates the establishment of certain institutions which are as follows: ‘Juvenile homes’ for the reception of neglected juveniles so as to provide them with shelter, food, education, counselling, medical care, vocational training and rehabilitation, ‘Special homes’ for the reception of delinquent juvenile so as to provide them with shelter, food, education, counselling, medical care, vocational training and rehabilitation and opportunities for reformation, ‘observation homes’ are meant for the reception of juveniles during the pendency of any inquiry regarding them, ‘after care organisation’ are meant to take care of the juveniles after they have been discharged from juvenile homes or special homes with a view of enabling them to have an honest, industrious and useful life.
It lays lot of emphasis on involvement of voluntary agencies in welfare of neglected, marginalised and socially maladjusted children. The act permits that the neglected juvenile can be brought before a competent authority not just by the police but by any person authorised to do so.
As per the act, no juvenile can be sentenced to death or life imprisonment, or committed to prison in default of payment or fine imposed or furnishing security.
No juvenile is to be tried like an adult. The following factors are considered when making an order under the act: age of the juvenile, the state of physical and mental health of the juvenile, the circumstances under which the juvenile lives, the report made by the probation officer and any other circumstances.