By Asha Mukundan
India as a signatory of UN Convention on the Rights of the Child has a mandate to protect all children. This includes victims and offenders. The government does not have the liberty to ask, “Will we protect victims or rapist?” It is the mandate of the government to provide protection, direction and treatment to all children irrespective of their status. In a welfare state, the state plays the role of the guardian. If we have an uncontrollable child in our house, as parents would be throw the child out?
Union Minister for Women and Child Welfare Maneka Gandhi, in her Rajya Sabha speech last month where she introduced the Juvenile Justice Bill – it received the President’s assent on December 31 and came into effect as an Act on Friday – did not use the words “prison” or “jail”. Instead she used the term “borstal school”.
This is interesting because the Juvenile Justice (Care and Protection of Children) Act 2015 does not contain this term. Although the borstal school, a detention centre for young offenders, is a part of the larger prison system, the term itself is not explicitly expressed in the act and it is left to the state to interpret the term “jail” as a borstal school.
One reason for Gandhi omitting “prison/jail” in her Rajya Sabha speech could be because it sounds harsh in the context of the JJ system. The other rationale could be that borstal schools aren’t found in all Indian states – according to 2011 National Crime Records Bureau statistics, ten such establishments were functional in the country. Explicitly stating the term in the act would make it mandatory for states to develop these schools. Lastly, a borstal school is not an option that the JJ functionaries can use because Section 19 (3) of the new JJ Act states: “The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of 21 years and thereafter, the person shall be transferred to a jail”. The “place of safety” has been defined as “not being a jail”.
Understanding the borstal system
A borstal school is a ‘jail/prison’ as per the Bombay Borstal School Act, 1929.
It must also be considered that in the past 15 years, under the JJ Act 2000 (it was amended in 2006), a majority of the states have not been able to establish a “place of safety” despite the provision existing.
The Indian Jails Committee (1919-20) specified the need to set up special institutions for adolescent offenders. In this context, the first borstal school was set up in Dharwad. The Borstal School Act prevalent in most states was enacted between 1925 and 1940. Since there are very few recent studies on this system, the little known is that the ten states that contain borstal schools are Andhra Pradesh, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Maharashtra, Punjab, Rajasthan and Tamil Nadu, which has converted a section of its district jails into borstal schools, which takes its count to 21. All of these schools are for young males. There are two for women prisoners in Haryana and Himachal Pradesh (according to NCRB data from 2012). There is not sufficient information about how they operate.
The philosophy behind these institutions is that of correctional treatment and rehabilitation. The primary objective is to ensure care, welfare and rehabilitation of young offenders in an environment removed from the “contaminating atmosphere of prison”, which is why they are called schools and are headed by ‘principals’. They are mandated to provide technical training courses to inmates. But over the years, such skills training programmes have ceased to function. Now, the borstal school functions more as a prison.
Male inmates of borstals, according to the Borstal School Act, should be aged between 16 and 21 years, and between 18 and 21 if they are female. The detention order in the borstal could be passed for not less than three years and not exceeding five years.
Those not eligible to be sent to these institutions are “sexual perverts or [those] youths [who] have been convicted for sexual offences”. It prescribes that “adolescents who have been convicted of a single offence of violence in a moment of passion should not ordinarily be sent to a borstal school.”
It has been mandated in the Borstal School Act that, before passing an order against a young offender, the court should inquire as to the circumstances in his or her home, antecedents, character, and social environment where he or she lives. The mental and physical fitness of the inmate should be determined so it may be determined if he or she is likely to benefit from vocational training, or can endure detention. And before such an order is passed the court must hear parents or guardians of the offender.
There is a clash of fundamental principles that prop up the Borstal School Act and the JJ Act. The latter is specific in its directive that young offenders must be sent to a ‘place of safety’ and not a jail, which is what a borstal school is. Second, the Borstal School Act is clear that a young offender’s consent is required before he or she is dispatched to a borstal. And finally, the Borstal School Act states that only those aged 21 or less should be sent to these schools, whereas section 19 (3) of the JJ Act specifies that a person can be sentenced to jail (for the purposes of this argument, a borstal school) only if he or she is over the age of 21.
It is therefore misleading to apply the term borstal school to the JJ system.
The author is assistant professor, Centre for Criminology and Justice and director, Resource Cell for Juvenile Justice, School of Social Work, Tata Institute of Social Sciences.