Wean juvenile convicts from delinquency, not from society

Regrettably, our juvenile justice system still thinks in terms of terror, not cure, of wounding, not healing, and a sort of blind man's buff is the result. This negative approach converts even the culture of juvenile homes into junior jails Justice Krishna Iyer

Popular perceptions on justice are often at loggerheads with reality and in a society so charged up and constantly judgmental, the divide is quite sharp. There is a roar out there that the juvenile involved in the Nirbhaya case needs no societal indulgence. May be on facts, he is an exception. The increasing demand to ensure that even juveniles be punished on a par with adults is based on a perception that all safe societies have punitive therapeutics as the only time-tested social response to crime.

India is a signatory to the International Convention on Child Rights, which defines a child as one below the age of 18. A juvenile is appropriately defined under the Indian law to be a person under the age of 18 and we are bound in the comity of nations to follow a pattern in keeping with the international convention. It is not the failure of our law as perceived by some. If anything, there is a case in India that juvenile justice often fails for lack of empathy and systemic indifference to a non-vocal constituency.

We see children begging on streets, we hear of children being forced into labour even at places like Sivakasi and do not bat an eyelid at the festival time to buy products from such manufacturers. Children do not attend schools for want of proper infrastructure or even basic wherewithal, girl children in schools do not have a toilet facility.

It is wrong to perceive as if we live in a society where juvenile predators are on the prowl. For instance, following an offence by a juvenile, the Juvenile Justice Act – referred to as the Act hereafter – provides for bail under Section 12. It ensures that when the facts of a case do not warrant bail, then the delinquent will be placed in a Home provided for under the Act.

The Act like the general law of the land would provide that a juvenile is invariably entitled to bail except in three stated circumstances: that the juvenile is likely on grant of such bail to get in touch with seasoned criminals; that the release would expose him to moral, physical or psychological danger; or the release would defeat the ends of justice. However, it must be noted in any case he is not to be sent to the gallows.

In a case in Rajasthan where a woman committed suicide due to harassment meted out to her by a juvenile, the court reasoned that the delinquent would not be entitled to bail and would be in a remand Home. Also in another case where a juvenile is alleged to have stabbed another in a minor scuffle, the court refused to grant bail. So the misconception that life is on a platter for the juvenile delinquent on release needs correction by an adult world that creates the juvenile and quickly jumps to the pulpit.

The Act requires the Juvenile Justice Board (JJB) to examine group counselling, community service, release on probation or to be sent to a special home. Therefore, the proper engineering of special home is vital to juvenile justice. Unfortunately, the homes are not free from scandals and are far from being the rehabilitative centre they are meant to be. Rectification is central to juvenile crime and the society does not understand this and is ill-equipped to deal with the child.

In a recent case it was indeed unfortunate that the court did not punish the police officer who was caught on camera beating a juvenile delinquent. Law also provides the stay in the special home can be up to a period of only 3 years. Section 16 of the Act places an embargo against penalty.

The strength of the social order and its claims to civilized existence are tested among other parameters by how it treats it women, its children, its underdogs and its impoverished. Our progress card is not very flattering on most counts. It is obviously easy to be tough on the delinquent juvenile. We will do well, however, to understand that the law protects them. The law requires rehabilitation and social reintegration; it requires rescue homes and shelter homes.

It prohibits forcing them to do begging or leading them to use narcotic drugs or psychotropic substances or coercing them to do labour. The Right to Education (RTE) Act provides for compulsory education. It’s time to take a holistic view of the ‘Nanhe Munne Bacche.’ It is sobering to understand that they are a part of the blueprint for the tomorrow in the making.

Justice Krishna Iyer dealing with a case of a juvenile pointed to the facts: He was twelve; he wielded a sword and struck on the neck of the deceased; he rushed to avenge; he ran away like the rest. Iyer then in the manner only he could went to deal with the issue of juvenile justice : “With all our boasts and all our hopes, our nation can never really be decriminalised until the crime of punishment of the young deviants is purged legislatively, administratively and judicatively.

This twelve-year old delinquent would have had a holistic career ahead, instead of being branded a murderer, had a Children Act refined the Statute Book and the State set up Children's Courts and provided for healing the psyche of the little human.”

In another case, the champion jurist said: “Regrettably, our juvenile justice system still thinks in terms of terror, not cure, of wounding, not healing, and a sort of blind man's buff is the result. This negative approach converts even the culture of juvenile homes into junior jails. From the reformatory angle, the detainees are left to drift, there being no constructive programmes for the detainees nor correctional orientation and training for the institutional staff.”

Justice to Nirbhaya will truly be achieved if we understand the essence of Iyer’s concerns and understand that the road ahead is to wean the juvenile from delinquency not from the mainstream of society.

By L Ravichander