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The Juvenile Justice Amendment Is A Victory For Retribution, Not Justice

24/12/2015 11:10 AM IST | Updated 29/08/2016 9:02 PM IST
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Hindustan Times via Getty Images
NEW DELHI, INDIA - DECEMBER 16: Akhil Bharatiya Vidyarthi Parishad (ABVP) activists take part in a candle march on the second anniversary of the fatal gang-rape at Jantar Mantar on December 16, 2014 in New Delhi, India. On December 16, 2012, a 23-year-old physiotherapy student was brutally gang raped and by six men, including a juvenile, in a moving bus. The incident unleashed a wave of public anger over levels of violence against women in the country. (Photo by Ajay Aggarwal/Hindustan Times via Getty Images)

The release of the juvenile involved in the widely publicised rape and murder of a 23-year-old student on 16 December 2012 has put the spotlight on the juvenile justice system in India. The belief that juveniles, even those committing heinous offences, get away with little or no punishment in the name of reformation has led to a strident demand for a reduction in the age of juvenility.

This mass hysteria has clearly been bought into by the current government, which has repealed and re-enacted the entire law on juvenile justice. The Juvenile Justice (Care and Protection of Children) Bill 2014 allows children between the ages of 16 to 18 to face trial as adults when accused of heinous offences. It also introduces life imprisonment for such children if they are found to have committed said heinous offences. This step has ostensibly being taken to tackle the increasing instances of juvenile crimes. The legislation follows the "adult time for adult crime" approach towards juvenile crime, which I argue is not appropriate for the administration of juvenile justice.

Recognising society's responsibility to protect children, reformers... have created a system, which is founded not on retribution, but on protection, treatment, and rehabilitation.

A juvenile system with seemingly lenient punishment is created on the belief that children can be reformed and rehabilitated, whereas sending them to prison will only reaffirm their status as criminals. Recognising society's responsibility to protect children, reformers across the world have created a system, which is founded not on retribution, but on protection, treatment, and rehabilitation. The Juvenile Justice (Care and Protection of Children) Act, 2000 envisions adopting a child-friendly approach in adjudicating and disposing matters in the best interest of children and for their ultimate rehabilitation. The statement of objects proposes that the justice system as available for adults is not suitable for juveniles and that there is an urgent need to create the adequate infrastructure necessary for the implementation of the legislation. The statement of objects itself moves away from an adversarial system of adjudication and the former Chief Justice Altamas Kabir has also opined in Hari Ram vs. State of Rajasthan [(2009) 13 SCC 211] that the very scheme of the Juvenile Justice Act is rehabilitory in nature and not adversarial.

The Indian criminal justice system itself leans towards reformation

Even as we move towards a punitive approach to juvenile justice, we must remember that the adult criminal justice system itself has often focused on reformation. This is evidenced by judgments such as Nadella Venkata Krishna Rao v. State of Andhra Pradesh [AIR 1978 SC 480], where the Supreme Court held that prolonged incarceration could lead a prisoner to become hardened and callous, and the whole goal of punishment being curative would stand defeated. The court stressed that the focus must, therefore, be on rehabilitation, and not on retributive punishment.

Even as we move towards a punitive approach to juvenile justice, we must remember that the adult criminal justice system itself has often focused on reformation.

Within the criminal legislation itself, sections 360 and 361 of the Criminal Procedure Code, 1973, which provide for probation, are quite telling. In Sushil Murmu v. State of Jharkhand [AIR 2004 SC 394] the Supreme Court said that section 361 of the Code of Criminal Procedure makes it mandatory for the court to record "special reasons" for not providing probation as per the provisions of Section 360, and only after coming to the conclusion that the offender was beyond reformation and rehabilitation could probation be eliminated as a possible punishment under section 360.

A legislation focusing on reformation is the Probation of Offenders Act, 1958, which makes a special provision for procedures related to persons under the age of 21. It requires the court sentencing a person under the age of 21 to release him either on good behaviour or after an admonition in all cases not being cases punishable by death or life imprisonment. The Supreme Court has observed (Daulat Ram v. State of Haryana [AIR 1972 SC 2434]) that the Act has been legislated keeping in mind young offenders who are prone more easily to be led astray by the influence of bad company. The purpose of the legislation is to see that young offenders are not exposed to hardened and habitual criminals who may happen to be inmates of a jail. Further, the Law Commission, in its 156th Report (August 1997) has acknowledged that our system recognises the reformative theory of punishment and that the Probation of Offenders Act is an enactment that reflects the reformative approach. These provisions are a clear indication that reformation is among the foremost objects of the criminal justice system in our country.

Mental ability of juveniles

In the US, the MacArthur Foundation Research Network has conducted an expansive study on adolescent development and has attempted to provide a rationale as to why a separate system must be created for juveniles in conflict with the law. The study says that adolescents are less competent decision makers than adults, largely because regions of the brain that regulate things such as foresight, impulse control, and resistance to peer pressure are still developing at age 17. This is why adolescents are inherently less responsible than adults, and should be punished less harshly than adults, even when the crimes they are convicted of are identical.

This trenchant demand for deterrence, retribution and enhanced punishment, which has won the day, needed to have given way to a more humane understanding of childhood...

The study makes a compelling argument: that prosecution in an adult court communicates to the juvenile that he or she is irredeemable, and hence, repeat offenses become a self-fulfilling prophecy. Further, prison limits their exposure to a broader set of social norms of family, school, and community.

The fact remains that the children entering the juvenile justice system in India belong to a weak socio-economic background and have had very little foundational support. Many children, including the juvenile involved in the 16 December rape and murder, have been deprived of parental guidance and education and have had very few chances of mainstreaming. Thus, the onus for providing proper care and support for children who have been denied formative support rests on society and the State. There is ample room for provision for such reformatory services within the current JJ Act. Sections 9 and 68 grant the state government the power to make rules regarding the standards and services to be provided by special homes for the re-socialisation of juveniles. However, there is ambiguity as to what role special homes perform and how they help in reforming a juvenile. "Places of safety" are reduced to being single rooms in special homes, which essentially means that juveniles spend their term in solitary confinement, with no social support.

In light of what is being seen as a juvenile crime epidemic, what the juvenile justice system urgently needed is to make the rhetoric of reformation a reality. This trenchant demand for deterrence, retribution and enhanced punishment, which has won the day, needed to have given way to a more humane understanding of childhood and we must now take responsibility towards the fate of our children, both as State and society.

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