How should Indian society deal with juvenile delinquency?

The juvenile (now adult) convicted of raping Jyoti Singh was released on December 20, 2015, after serving a three-year sentence in an observation home. Jyoti Singh’s family repeatedly petitioned against the release of the juvenile, stating that it was a miscarriage of justice.

The Delhi Commission for Women approached the Supreme Court to prevent his release, but its plea was dismissed. While a sizable, vocal section of society and the media supported the family’s bid, there was no legal basis to keep him in custody. Furthermore, the rapist cannot be tried again for the same crime because Article 20 of the Constitution prohibits it, thus, protecting him from double jeopardy.

On August 12, 2014, the Juvenile Justice (Care and Protection of Children) Bill, 2014, was introduced in the Lok Sabha. Once this Bill is signed into law, the existing Juvenile Justice (Care and Protection of Children) Act, 2000, will be repealed. The most significant clause in the new Bill is the provision to try a child as an adult if he/she has completed 16 years of age, but only in cases of heinous offences. There is another clause. The Bill states that a preliminary inquiry must be held to ascertain his mental and physical capacity to commit such an offence and the circumstances in which he committed the offence. The Bill was passed on May 7, 2015, in the Lok Sabha, and after much delay, was passed in the Rajya Sabha on December 22, 2015, while Jyoti Singh’s parents looked on from the visitors’ gallery.

This Bill and the existing Juvenile Justice Act, 2000, were both spearheaded by Maneka Gandhi, Union Minister of Women and Child Development. The trial and release of the rapist has met the principles of natural justice as defined in the same Bill: “Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.” But has justice really been served? Four of his accomplices received the death penalty for the same crime, while the juvenile got away under the technical provisions of the law. In the public domain, he was called many names, but “child” was not one of them.

On December 11, 1992, India ratified the United Nations Convention on the Rights of the Child (CRC). Article 1 of the CRC states that, “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Even the Juvenile Justice Bill, 2014, defines a child as a person who has not completed 18 years of age. However, once this Bill is signed into law, India will define some 16-17-year-old children as adults, capable of making carefully calculated decisions and commit pre-meditated offences, rather than as children acting on impulse and emotionality.

It seems like the law is being amended taking this solitary case into account, but it will have repercussions on scores of children in conflict with the law.

It is true that some provisions of the law can be applied, and irrelevant ones can be ignored even if the conditions overlap. Consider the Child Labour Act that defines people between the ages of 14 and 18 as adolescents. This begs the question, was the rapist a drunken adolescent in need of rehabilitation or a pre-meditating, maniacal criminal?

I spoke to Naveen Kumar, 48, a clinical psychologist who specialises in Child Psychology. He is the founding trustee of Manas Foundation, which provides mental health services to vulnerable groups, including children in conflict with the law. Naveen has also personally dealt with the juvenile at the observation home where he was placed and had provided psychological care to him until the contract with the facility expired.

I asked him a few questions:

On the age for juveniles, would you say children do mature at an earlier age these days?

No. The brain development is still the same. Consider the four stages of cognitive development – when you reach the last stage in which logic sets in, that is considered adult thinking. It helps you think beyond a rigid, concrete level. This process has not become faster. However, some studies of physical development show that the age for puberty and physical maturity has declined. But I have my doubts about this, because there’s no clinching evidence.

So, what’s changed?

We have access to more information now than ever before. There’s so much content available to kids on the web and television. They struggle to process this and make sense of it. For example — earlier, pictures of scantily-clad women would rarely appear in the papers. Today, these pictures arrive every morning.

Do children attain maturity at different ages?

Yes. There are variations. Some children can have very high intelligence quotients at a young age. However, the judicious use of information is a sign of maturity. Simply being able to recall or recognise information is not maturity.

Is it possible to measure maturity in a scientific way?

There is no criteria to even define intellectual disability. However, there are standardised psychometric tests that can give a fair idea if maturity has been achieved.

The Juvenile Justice Bill calls for an inquiry to first ascertain the mental capacity to commit serious offences. Can you name some of the tests that are prescribed?

There are several intelligence and personality tests that can be run. The major reliance is on intelligence tests like W.A.P.I.S (Wechsler Adult Performance Intelligence Scale), M.I.S.I.C (Malin’s Intelligence Scale for Indian Children), W.I.S.C (Wechsler Intelligence Scale for Children), and Bhatia’s Battery of Performance Test of Intelligence.

Why do juveniles take to crime?

Most juveniles lack an engagement model. For example – let’s say you disappear for a day. You’ll receive frantic calls from your friends and your family. This is part of an engagement model. The environment that you engage with makes you who you are. These delinquents can disappear for weeks and nobody will bother. This certainly has a psychological impact. However, it is possible to help them. The society should build an engagement model with migrants, the destitute and homeless, and vulnerable groups. There’s no dearth of intelligence to make this happen. It’s a question of will.

Do juveniles realise the consequences of certain actions?

There’s no blanket answer. There might be children who understand the consequences. For example – they might understand what will happen if a cricket ball lands on a glass window, but they might not know how a gender insensitive remark to a lady would impact her life. They will not know the consequences of many things they are exposed to. They need help. In India, the first time that psychologists were contracted to work with juveniles in a reform facility was in the year 2010. We were given that contract to work with the kids.

What is your opinion of India’s programmes for juvenile rehabilitation?

I have not come across any rehabilitation programmes in India. We have given up on probationary officers. Would you believe that in Delhi, we have around 15–25 probationary officers. Extrapolating this to the entire country, we may have around a 100 officers for a billion people. In Alberta (Canada), there are five probationary officers for each juvenile, all looking at different things. There are psychologists, occupational therapists, family therapists and many more. If India approaches the situation in this way, it’ll be a real start.

Has rehabilitation worked anywhere in the world?

Minnesota (United States) is the benchmark. Alberta (Canada) and some states in Australia have rehabilitation programmes, which have shown real results. These systems do exist.

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There is a reason children must wait until they are 18 to obtain a driver’s licence, marry, vote, sign contracts, and obtain other privileges extended to adults. With a limited understanding of the consequences, they will choose to indulge in risky, thrill-seeking behaviour. Delinquents are children, not hardened criminals or mob men.

A Guardian report notes that the convicts before attacking Jyoti Singh had been drinking and had indulged in assault and robbery. The delinquent kept bad company. He did not have an engagement model, which treated him with love, like all children deserve. He did not have an environment that encouraged him to respect the law or human life. If he was given compulsory education until 14 years of age, there’s no telling how differently his life would have turned out.

However, here’s another child who slipped through the cracks and has earned a lifetime’s notoriety, not just in India but across the world.

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Reintegration of young offenders into mainstream society is an important part of the rehabilitation process. The minister deserves credit for her carefully considered plans. To begin with, the new Bill recognises the principle of fresh start. All past records of any child under the juvenile justice system will be erased except in special circumstances. After a juvenile is released from the observation home, he/she will be restored to a parent or guardian, placed for adoption or placed in foster care. Furthermore, the Bill states that a one-time financial support may be provided to facilitate the reintegration into society. In the Lok Sabha, the word “one time” was removed from the Bill.

All existing institutions that provide foster care for children in conflict with the law are now required to re-register under this Bill. If an application for registration is not disposed of by the officers concerned within six months, it will be considered a dereliction of duty and departmental proceedings will be instituted against them.

Services provided by these institutions may include age appropriate education, skill development, occupational therapy and life skill education, mental health interventions and legal aid. 

Canada implements, wherever possible, the principle of restorative justice, rather than retributive justice. It is a concept that does not merely fix blame and guilt. It attempts to restore the losses suffered by the victims, and requires the offenders to acknowledge the damage they have caused and accept responsibility for their crimes.

Offenders are required to make amends with the victims and the community at large. This movement for restorative justice can be traced back to the realisation that Canada had been incarcerating more juveniles than any other developed country in the west, including the United States. A number of programmes have since been initiated, such as community service, paying restitution to victims, volunteering for non-profits, enrolling in a wilderness camp that provides access to counselling and offers life skills, public speaking, substance abuse or aggression programmes, and even reconciliation efforts, with the provision for voluntary meetings between the offender and the victim, to discuss the crime, its aftermath and begin the process of healing.

In Ottawa, the Collaborative Justice Program uses Restorative Justice techniques to demonstrate how a comprehensive restorative approach in cases of serious crime can deliver more satisfying justice to victims, offenders and the community by giving priority to their needs for support, information, safety, accountability, reparation and reintegration. They utilise a variety of restorative tools in a holistic approach to each individual situation.

What are the differences between the Indian and Canadian approaches? While Canadian law attempts to bring the offender and the community to some form of reconciliation, ours does not.

When Leslee Udwin filmed a documentary carrying an interview of one of the rapists, it was instantly banned by the government. There seems to be a need to isolate the community from exposure to the “dark underbelly”.

Experts, like Naveen Kumar, advocate an engagement model with juveniles, the destitute and troubled children. But our politicians prefer complete isolation. On paper, there are several plans to rehabilitate and reintegrate juvenile offenders with society, its implementation is seriously flawed. Consider Naveen Kumar’s statement about the lack of care in observation homes. Even after the passage of the Juvenile Justice Bill in the year 2000, not a single psychologist was engaged to deal with delinquents on a regular basis, until the year 2010. Furthermore, in one section, titled, “Statement of Objects and Reasons”, the Bill has acknowledged that after the Juvenile Justice (Care and Protection of Children) Act was enacted in 2000, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in homes, high pendency of cases, and so on.

Revisiting the night of Jyoti Singh’s assault, and the gory details of her brutal rape make it hard to show an ounce of compassion for this young man. But lowering the age for juvenile offenders based on this one case has severe consequences for other impressionable children in India who keep bad company, commit crimes and have nobody to teach them otherwise.

Bringing reform is a monumental task, one to be approached on multiple fronts like gender interaction rather than gender segregation, education, policing, rehabilitation programmes, engagement models and effective foster care. However, when emotions hijack the narrative, we lose the power of reason. Tweaking the law after every horrific crime, bypassing necessary safeguards and isolating the community from delinquents are detrimental to the larger interests of troubled children, who need a hand, rather than an iron fist, and engagement rather than demonisation.