What Will Happen to the Juvenile in the December 16 Delhi Gang Rape Case?

If convicted, will he be punished as a juvenile or as an adult? There’s no need to speculate – there are only a few ways this case can go.

The decision of the Juvenile Justice Board (JJB) in the matter involving the juvenile accused in the December 16 Delhi gang rape case will be delivered on Thursday, July 25, 2013. The JJB’s decision will be based on the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) – a law that overrides all other laws on aspects of detention, prosecution, or punishment of juveniles in conflict with the law.

A JJB consists of a principal magistrate and two social workers and conducts inquiries into juvenile crime in a child-friendly, interdisciplinary manner. It focuses not only on whether the child is guilty of the offence or not, but more importantly, on the circumstances of the child at the time and the possible causes that may have triggered it. This facilitates the JJB to pass orders that can address these root causes, reform the juvenile and prevent him or her from falling into a cycle of crime.

The JJB finding this week is expected to be on the point of whether the juvenile was involved in the offences that he's been alleged to have committed. If yes, there are many ways in which he can be dealt with. Under Section 15 of the JJ Act, if the JJB is satisfied that the juvenile has committed an offence it can pass an order and do any of the following:

1.    Advice or admonish him and then allow him to go home after counselling the parents, guardian and the juvenile.

2.    Require him to participate in group counselling and similar activities.

3.    Require him to perform community service.

4.    Order the parent, or the juvenile himself if he earns money and is above 14 years, to pay a fine.

5.    Release him on probation of good conduct and place him under the care of any parent, guardian or other fit person for a maximum period of three years.

6.    Release him on probation of good conduct and place him under the care of any fit institution for a maximum period of three years.

7.    Send him to a ‘Special Home’ (an institution under the Act established to provide special services in order to reform, rehabilitate and re-socialize a juvenile found guilty of a crime) for a period of three years. The Board can take into account the nature of the offence and the circumstances of the case and even reduce the period of stay. It cannot, however, extend the period of stay beyond three years.

What the JJB cannot do is to impose a death sentence or imprisonment for any term, since this is expressly prohibited under the JJ Act as well as under the United Nations Convention on the Rights of the Child.

In the event that the juvenile is found to have committed the offences alleged and is ordered to be detained for three years, but has crossed the age of 18 years during the inquiry itself – as is reported in the media about the juvenile in this case – it is possible that the Board could say that he must not be kept in a Special Home with children below the age of 18 years and should instead be detained in a ‘Place of Safety’ owing to his age and seriousness of the offences. A Place of Safety is any place (not a lock-up or a jail) the person in charge of which is willing and able to take responsibility for a juvenile and is found to be fit for the purpose by the JJB.

The juvenile could also be placed in the custody of a ‘Fit Institution’ – a governmental or a registered NGO prepared to own the responsibility of this juvenile and found fit by the State government on recommendation by the JJB to perform this role.

Finally, if he is found to be suffering from any psychiatric disorder or addiction he could be transferred to a psychiatric hospital or Integrated Rehabilitation Centre for Addicts for treatment. 

There could be a combination of orders that the JJB could pass under Section 15, depending on which offences he has been found guilty/innocent of – and he may not be sent to a Special Home or Fit Institution if the JJB is of the view that he does not need to be detained in an institutional setting but be made to serve the orders that are non-institutional in nature.

Under no circumstances, however, can he be housed in a jail.

Before passing the final orders, the JJB will have taken into consideration the findings of the Social Investigation Report prepared by the probation officer or by a recognized voluntary organization on its direction – especially the findings of the circumstances of the crime, the child's background, etc. This final order will also include an Individual Care Plan, again prepared by the probation officer/social organization, which would have recommendations for the services that are required to ensure that the juvenile is reformed and re-integrated back into the community as a law-abiding citizen.

Recent demands for the juvenile in the Delhi gang rape case to be treated as an adult or be sent to an adult prison are untenable in view of the provisions of the Indian Constitution and the JJ Act.

While all human beings, especially growing children, need to be taught that there are consequences for their actions for which they will be held accountable, the means for ensuring such accountability should be grounded in child/adolescent psychology, the human rights of children and an understanding of the circumstances that led to such behavior/actions. 

In 2013, the Supreme Court considered several petitions challenging the constitutional validity of provisions of the JJA, particularly the need to reconsider the definition of a juvenile in conflict with law in light of the Delhi gang rape case. On July 17, 2013, the Supreme Court dismissed the petitions and upheld the validity of the provisions of the JJ Act on the basis of the rich jurisprudence of child rights, international standards and the scientific basis of the JJ Act.

The court noted that while debating the JJ Act, 2000 the Parliament consciously decided to raise the age of the juvenile from 16 years as it was under previous law, to 18 years and that this represents the “collective wisdom” of Parliament, which the court must not disturb or deviate from.

The demand for revision in law based on the belief of a high rate of juvenile crime is without any foundation. According to the National Crime Records Bureau’s Crime in India-2012, the percentage of IPC crimes committed by juveniles to total IPC crimes reported in the country is a measly 1.2 percent. These numbers point to a modest but vulnerable population that requires to be handled with much more care and caution, so as to prevent recidivism, engineer reform and re-integration, and counter the regressive and outdated idea that children who commit adult crimes, deserve adult time.

The more serious a crime that a juvenile may have committed, the greater is the responsibility of the State to provide reformative services, care and protection to such a person in order to prevent him or her from entering or remaining in a vicious cycle of crime and violence.

Having journeyed with X, a 17-year-old boy who murdered his father, for more than two-and-a-half years, our team at the Centre for Child and the Law, National Law School of India University (CCL NLSIU) is convinced that competent authorities providing inter-disciplinary inputs during the legal processes under the JJ Act, and quality services as envisaged in the existing law, are indeed adequate to change the course of a young adolescent's life and keep society safe from juvenile crime.

Our response to juvenile crime has to be fair, age-appropriate and in keeping with developmental psychology – and not a reaction to the countrywide outrage against one juvenile.

The JJ Act is a fairly progressive law grounded in universally recognized principles and approaches. The decision of the JJB on the juvenile allegedly involved in the Delhi gang rape must be viewed from this lens. Emphasis must be laid on effective implementation of the law and sound reformation and rehabilitation programmes.

Our children, our victims of juvenile crime and our society deserve no less.

****

A Case Study: “I've got my life back”

X was 15 years old when, in a fit of rage, he killed his father who had inflicted violence and shame on the family over many years. X was diagnosed with post-traumatic stress disorder during his eight-and-a-half month stay in an observation home.

The juvenile justice team at the Centre for Child and the Law, NLSIU worked with functionaries, the boy’s family and specialists at a mental health facility to help inform his Individual Care Plan, which was to be part of the final orders by the JJB.

X was ordered to stay in the Special Home for four months, where he was given a strict daily routine that included yoga, computer training and sessions with the specialists.

The team counselor Kalpana Purushothaman continued to provide the emotional support he needed right through his journey in the often terrifying corridors of the juvenile justice system. The advocates, Geeta Sajjanshetty and Shruthi Revankar, not only represented him before the JJB but also worked with his mother in understanding the legal process, given that she was co-accused in the case. The team followed up with X and his family even after his discharge from the Special Home, referring him and his sibling to residential educational institutions, arranging for scholarships, etc.

According to the principal of his college, X seems to have adjusted very well to life in the community and is well on his way to achieving his dream – to become a professional in his field of interest one day.

It is remarkable to see how X now looks straight into your eyes when you speak to him. Those who knew him two years ago now notice that he has a glint in his eye and a slight spring in his awkward adolescent walk as he saunters back into his hostel along with the other young boys his age, a majority of who have faced similar challenges in their young lives.

Arlene Manoharan is a social worker and Research Fellow heading the Juvenile Justice team at Centre for Child and the Law, National Law School of India University (CCL NLSIU). Swagata Raha is a lawyer and consults with CCL NLSIU. For more information see www.nls.ac.in/ccl

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