Amending JJ Act will neither deter serious offenders nor reform juvenile crime
The reformative foundations of India's juvenile justice law have been shaken. Treating children the same as adult offenders is abhorrent to the philosophy underpinning the law passed in 2000.
The reformative foundations of India's juvenile justice law have been shaken. One of the new proposals in the Union Cabinet's move to introduce a law to amend the Juvenile Justice (Care and Protection of Children) Act, 2000 will empower the Juvenile Justice Board to determine whether children between the ages of 16 and 18, who have been accused of having committed some particularly serious crimes, should be tried under the regular criminal justice system.
Treating children the same as adult offenders is abhorrent to the philosophy underpinning the law passed in 2000. Through "child-friendly" adjudication and the disposition of matters in the "best interests of children", this law intended to rehabilitate "children in conflict with the law". It recognised India's obligations under the United Nations Convention on the Rights of the Child, in particular, the responsibility to promote the reintegration of such children and their assumption of a constructive role in society.
The government has not been shy about this. In October 2013, the President of India had said that, "There is demand for a law which has a deterrent effect, where the guilty are punished in accordance with the nature of the offence they commit, irrespective of their age."
The rehabilitative (and not deterrent) motivations of the 2000 law can be seen in the constitution of the Juvenile Justice Boards — they feature experts in child development and child psychology along with a magistrate, the various orders that the board could pass — such as counseling or releasing a juvenile on probation of good conduct, and the requirement to consider a social investigation report into the juvenile before passing an order.
After consideration of the various factors that led to the conflict with the law, the boards could choose an order to implement the rehabilitation strategy best suited to the specific offence and the specific juvenile.
This differentiated approach to managing different cases also allows the board to take into account, the seriousness of the offence. For instance, if it feels that the offence in question is so serious that it is not in the interest of the juvenile or the other juveniles in a home to place him at that home, and if it feels that none of the other orders available are suitable for such a case, the board can order that the juvenile be kept in a "place of safety" in a manner it thinks fit.
Governments however, have let down these noble motives of the juvenile justice act. The juvenile justice system does not have specialised or motivated staff and the quality of social investigation reports, counselling, and mentoring during probation is reported to be largely abysmal. The JS Verma Committee, which recommended reforms to India's criminal law, had noted in its report that there had been "a failure to create the requisite infrastructure which would help children to be reintegrated into society." With the recent proposal, the government is discarding the reformative philosophy behind the law without ever having given it a fair chance to succeed.
Spurred down this path to build deterrence by the violent crimes committed against women and girls by young boys, the government should, instead of discarding an entire system based of reformation, sharpen the differentiated approach of the law to empower the juvenile justice system to implement strategies for the reform of these specific classes of juveniles.
While the law provides for different orders to suit different rehabilitation objectives, there is a gap when it comes to the subjects of juvenile sexual offenders and violent offences.
If they are treated the same as adults accused of crimes, these juveniles will not be able to access the opportunities for reform presented by the juvenile justice law. Any debate on the new proposal should, apart from highlighting the starvation of the juvenile justice system, also acknowledge the significant dangers of trying juveniles in the adversarial criminal justice system and in holding them in prisons housing adult offenders.
Apart from closing the door on reform, it is also doubtful whether the objective of deterrence would be realised by amending the Juvenile Justice Act.
Aju John is part of the faculty at myLaw.net, where he teaches courses on Sports Law and Media Law.
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