Submission on Clauses 14, 17(3), and 19 of the
Juvenile Justice (Care and Protection of Children) Bill, 2014
By
Centre for Child and the Law (CCL), National Law School of India University (NLSIU) &
The Department of Child and Adolescent Psychiatry (DCAP), NIMHANS[1]
The Centre for Child and the Law, National Law School of India University (CCL-NLSIU) and the Department of Child and Adolescent Psychiatry, National Institute of Mental Health and Neuro Sciences (DCAP-NIMHANS) strongly believe that Clauses 14(1), 14(2), and 17(3) of the Juvenile Justice (Care and Protection of Children) Bill, 2014 are regressive and incompatible with the rehabilitative foundation of juvenile justice and violates the right to equality.
We urge the Ministry of Women and Child Development (MWCD) to “get smart” and not “get tough” on juveniles in conflict with law, as a retributive approach to juvenile crime is internationally recognized as being counterproductive. In fact, in jurisdictions where this has been done, juveniles have been exposed to hardened criminals and have ended up graduating as repeat offenders themselves, thereby producing the exact opposite outcome from what was envisaged. We strongly believe that the JJ system needs to balance the need for accountability to the victim and community, and the need to ensure public safety with the need to ensure that the system addresses the developmental needs of the juvenile to heal and mature into responsible contributing individuals.
The BJP Manifesto 2014 dealing with children[2] is prefaced by Nelson Mandela’s quote - "There can be no keener revelation of a society's soul than the way in which it treats its children". Treating children alleged to have committed ‘serious’ crimes as irredeemable criminals, and transferring them to the adult system contradicts the BJP’s stated commitment to “Lay special emphasis on vulnerable children and especially those belonging to the vulnerable communities like SCs, STs, OBCs, migrants, slum dwellers, street dwellers and those with disabilities” as nearly 53% of juveniles in conflict with law come from families with an annual income of less than Rs 25,000 and illiterate children and those with education up to primary level constitute 51.9% of the juvenile population.[3] Juveniles alleged or found to have committed a crime, (whether ‘serious’ or not) are vulnerable and not only deserve to be treated in a manner that should make this nation proud, they are entitled to be dealt with in accordance with the vision of the Preamble of the JJ Act 2000- i.e., ‘proper care, protection and treatment by catering to their developmental needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation’. The aforementioned provisions should therefore not be retained in the Bill for the following reasons:
- The transfer system has failed to prevent recidivism or promote public safety
The transfer system proposed in the Bill has been in existence in the US for over two decades. Multiple studies in the US conclude that it has in fact been ineffective in addressing juvenile crime rate, public safety, and recidivism. The independent Task Force on Community Preventive Services set up by the US Centre for Disease Control reviewed published scientific evidence on the effectiveness of waiver laws to ascertain whether this prevented or reduced violence among those transferred, and among juveniles on the whole. Based on a review of nine studies on the specific and general deterrence effect of transfer laws, the Task Force concluded that: “….transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system.To the extent that transfer policies are implemented to reduce violent or other criminal behavior, available evidence indicates that they do more harm than good.”[4] “Studies have found that young people transferred to the adult criminal justice system have approximately 34% more re-arrests for felony crimes than youth retained in the youth justice system.”[5] “Around 80% of youth released from adult prisons reoffend often going on to commit more serious crimes.”[6]
In order to identify what works, the Pathways to Desistance Study, a large multidisciplinary project by the US Department of Justice “that is following 1,354 serious juvenile offenders ages 14–18 (184 females and 1,170 males)for 7 years after their conviction…has collected the most comprehensive data set currently available about serious adolescent offenders and their lives in late adolescence and early adulthood.” The primary findings of the study[7] were that “Longer stays in juvenile institutions do not reduce recidivism, and some youth who had the lowest offending levels reported committing more crimes after being incarcerated.” It found that “community-based supervision as a component of aftercare is effective for youth who have committed serious offenses, and offenders who receive community-based services following incarceration are more likely to attend school, go to work, and reduce offending.”
Recent scientific findings on the maturity of the adolescent brain has led to a shift even in USA towards less punitive methods of dealing with juvenile crime – “since 2009, at least 20 states have closed or downsized youth facilities or reduced their reliance on incarceration. In many places, the money saved is being redirected to programs that supervise and treat youths in their communities. States that reduced juvenile confinement most dramatically also saw the greatest decline in juvenile arrests for violent crimes.”[8] In December 2012, the Attorney General’s National Task Force on Children Exposed to Violence, December 2012 recommended that “No juvenile offender should be viewed or treated as an adult. Laws and regulations prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore and diminish their capacity to grow must be replaced or abandoned.”
Evidence on the failure of the transfer system is compelling and there is no reason why India should replicate a failed system that has been more deleterious than progressive. In India, juveniles in conflict with law alleged to have commit ‘serious’ offences constitute a miniscule[9] but very vulnerable population that requires to be handled with much more specialized care and caution so as to prevent recidivism, and in order to engineer reform and re-integration.
- Scientific studies on the adolescent brain and psychology contradict public assumptions of maturity
The proposed provisions assume that juveniles who have engaged in crimes such as rape and murder are more mature. This assumption is prevalent in the public and is totally contradicted by science. Neuroscientists now confirm that the pre-frontal cortex, which is responsible for important functions such as planning, reasoning, judgment, and impulse control, is the slowest to mature, a process that completes at the age of 25. Our present science establishes that younger people engage in risky behavior precisely because of an underdeveloped brain. By that yardstick, making the argument of maturity based on the nature of crime does not stand scrutiny.[10]
Findings in neuroscience and adolescent psychology confirm that juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less risk-averse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions.[11]The part of the brain that helps in organizing, planning and strategizing is not developed in teen years and therefore it is “unfair to expect them to have adult levels of organizational skills or decision making before their brain is finished being built…”[12] These studies also confirm that adolescence is a transient phase and that “most young people grow out of delinquency on their own as their brains mature – if they are spared the trauma and lasting stigma of juvenile incarceration.”[13]
Our clinical experience shows that, ‘offending’ in juveniles is more likely to happen in a context of absence of positive adult supervision - particularly the absence of ‘care and protection’, circumstances of neglect, exploitation and abuse, and the child having been socialized in a way where his/her decision making goes awry, rather than in a context of premeditation and criminality. The State’s response to juvenile crime has to take into account the complex psycho-social circumstances of the child, as it interacts in a significant way with the immature adolescent ‘neurobiology’ and behavior.
Further, the discretion accorded to JJBs in the Bill is problematic because according to scientific studies, a precise determination of a juvenile’s psychosocial maturity is not possible, as “practitioners lack diagnostic tools to evaluate psychosocial maturity and identity formation on an individualized basis” and because “evaluating antisocial traits and conduct in adolescence is just too uncertain.”[14]
The assumptions in the Bill relating to transfer, are therefore untenable, as adolescence is in itself considered a mitigating factor, such that all persons below the age of 18 years in this developmental stage must be treated as juveniles without exception.
- The proposed provisions violate the constitutional right to equality and right to life
India’s constitutional right to equality is about ensuring fairness. We have already established that juvenile’s brains are still developing and their culpability is reduced. To penalize juveniles as adults would violate the fundamental principle of equality, as juveniles do not neuro-biologically possess the capacity for decision making and impulse control as adults, and are therefore not on an equal footing when treated as adults.
The adversarial adult criminal justice system is very inappropriate for juveniles in conflict with law as they lack the capacity to participate in trials like adults.[15] The findings of a juvenile competence study undertaken by the MacArthur Foundation, USA reveals that: “[a]dolescents are more likely than young adults to make choices that reflect a propensity to comply with authority figures, such as confessing to the police rather than remaining silent or accepting a prosecutor's offer of a plea agreement. In addition, they are less likely to recognize the risks inherent in the various choices they face or to consider the long-term, and not merely the immediate, consequences of their legal decisions.[16]”Transfer of some juveniles to the adult system will severely undermine procedural fairness and offend their constitutional right to life and personal liberty. A study in the US revealed that, “compared to those held in juvenile detention centers, youth held in adult jails are: 7.7 times more likely to commit suicide, 5 times more likely to be sexually assaulted, twice as likely to be beaten by staff, 50% more likely to be attacked with a weapon”[17] The constitutional obligation of protection of all children from abuse and exploitation will also be frustrated if India replicates the failed US model.
- The proposed provisions violate the rights and fundamental principles enshrined in the Bill itself
The objective of the JJ Bill, 2014 is to cater to the “developmental needs” of children in conflict with law through “proper care, protection and treatment” and by “adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their ultimate rehabilitation”. Clause 17(3) is definitely not in the best interest of a juvenile and nor is it child-friendly. Worse, it will result in the denial of treatment and developmentally appropriate care and protection and actually propel their ultimate banishment from the community. Transfer of juveniles to the adult system will also deprive them of the right to privacy as well as the right to bail and offend the principles of presumption of innocence, fresh start, dignity and worth, safety, positive measures, non-waiver of rights, non-stigmatizing semantics, equality and non-discrimination, and institutionalization as a measure of last resort, all of which are “fundamental” to the understanding, interpretation, implementation, and application of the proposed Bill.
- Violation of India’s obligations under the UN Convention on the Rights of the Child
The proposed provisions clearly violate the rights of juveniles stipulated in the UNCRC and extrapolated by the Committee on the Rights of the Child (CRC). In February 2000, the CRC was critical of the discriminatory nature of the definition of “delinquent juvenile” and recommended that in accordance with the principle of non-discrimination, the Juvenile Justice Act, 1986 be amended “to ensure that boys under 18 years are covered by the definition of juvenile, as girls already are”.[18] Ironically, it is the very same NDA government that re-enacted the law merely 14 years ago in 2000 and defined the term “juvenile” to mean all persons below the age of 18 years.
Through General Comment No. 10 on Children’s rights in juvenile justice, the CRC strongly recommended that States Parties “which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.” According to the CRC, the primary consideration even in cases involving ‘serious’ offences by children should be the best interest of the child – “[i]n cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.”[19]
Way Forward: Amendments to the JJ Act
The JJ Bill represents a failed western experiment of retributive justice. Hon Prime Minister NarendraModi has given India a new vision by saying, “We need to modernize, not westernize.” The wealth of traditional healing resources in India and the insights from empirical studies on juvenile offending and correctional systems provides a fantastic opportunity for this new government to demonstrate that India is indeed responsive to and keenly committed to the well-being of its children and the community as a whole, including victims of juvenile crime.
Our current model of juvenile justice has failed us because it does not go the distance in healing broken spirits.The victim has little or no say in the adult criminal justice system and the proposed provisions do not advance their interests. The JJ system has the potential to provide an enabling framework to promote healing for the victim and the juvenile through restorative justice programs. Restorative justice processes have been in vogue in New Zealand, Australia, South Africa, Canada, USA, and several European countries. Experts who have studied various models of restorative justice have recommended that it be adopted to address “the more serious offences. It is here that the impact of the offending on victims is greatest and that victims are most in need of closure...” and consider it “most appropriate for repeat offenders.”[20] The MWCD should urgently examine all existing restorative justice models and begin applying them in the Indian context. Clause 17(1)(b) should be revised to incorporate Family Group Conferences and family counseling and include restorative justice processes within the juvenile justice framework.
Evidence shows that “programs offering counseling and treatment typically reduce recidivism, while those focused on coercion and control tend to produce negative or null effects.Programs tend to succeed when they address specific risk factors known to influence delinquent and criminal behavior. These risk factors include anger and anti-social feelings, lack of self-control, lack of affection or weak supervision from parents, lack of role models, and poor academic skills.”[21] The most important conclusion of the Pathways to Desistance Study was that “ even adolescents who have committed serious offenses are not necessarily on track for adult criminal careers.”Our clinical experience also endorses this. We therefore believe that offending behavior in juveniles cannot be attributed to ‘unchanging personality traits’ so as to justify certain juveniles as being incapable of reform.
To understand the extent of mitigating circumstances it is mandatory that the child is evaluated from a psychosocial standpoint with an aim towards reformation and rehabilitation within the existing JJ system instead of retribution. There are identified risk factors for development of delinquency, which are identified at individual, social and community levels. These risk factors include aggression, either modeled or inherent due to psychiatric morbidity (already established to be prevalent and not attended to in the juvenile population), poor parental supervision and parental conflict with harsh disciplining, crime ridden environments, and so on. Research on risk factors for ‘delinquency’ has revealed that there are ‘buffers’ between these risk factors and the development of delinquency. These buffers act as ‘protective factors’ and include some ‘changeable’ factors like warm supportive relationships, monitoring, recognition for involvement in conventional activities, friends who engage in conventional positive behavior and so on. It is, therefore, imperative that the State comes up with a legislative framework that includes a care plan which is in tandem with the ‘normative’ tasks of adolescent development with opportunities for self-reflection, self-development, behavior modification, healthy socialization, vocational development to name a few, while ensuring a robust intervention along with monitoring, review and subsequent care plans instead of deeming juveniles as ‘recalcitrant’ and incarcerating them into adult jails.