Daily Archives: January 13, 2017

Amendments to the Juvenile Justice Act one year on- Interview with lawyer Anant Asthana

Photo: Homegrown, Amendments to the Juvenile Justice Act one year on- Interview with lawyer Anant Asthana | Leher NGO in India | Child Rights Organization
Photo: Homegrown

1. After the December 16 incident, India began viewing juvenile crimes very differently. Victims, their families and society felt that juveniles were being let of easily under the JJ Act. Working closely with juveniles in conflict with law, what is your opinion on the same?

Yes, extensive and sensational media coverage of these horrific incidents of crimes by children in year 2012-13 generated significant engagement of popular discourse on this subject, in which horrendous nature of crimes committed by children became a focal point of approaching this subject. This discourse viewed such children as evil and dangerous, echoing support for harsher punishments to such children. Question of reformation not only took a backseat but also became irrelevant and outrageous even to propose on the discussion table. It is important for us to remember that this kind of thinking is not new. Children since always have been found involved in horrendous crimes and since always there has been a section of people who have held very strong but reactionary and conservative views on this issue. Pre 2012, such views were merely floating on the edge making a slight buzz, not being accorded an iota of legitimacy in main stream child rights discourse and policy making of Governments. Now such views have seeped into our law. Extensive media coverage of such incidents reversed the very direction of thinking from reformation to revenge. Philosophy\n of reformative justice and its application on children was defeated by the wave of retributive justice.
Our legislature, since its inception, was able to take an informed and pragmatic view on how to deal with problem of juvenile delinquency in India and preferred applying reformative justice on criminals, as long as they are children. This time, few cases like Dec 16 Gang Rape case and Mumbai Shakti Mill case led a media frenzy that resulted into all most all major political parties taking a popular stand on this subject. For the first time juvenile justice was discussed within political parties and their cadres. At the end, political leaders, of this era, saw electoral loss in standing against the popular tide. We saw no ideological leadership on this subject when the new Law came into parliament for debate. Several individual politicians, across the party and ideological lines, for instance Shashi Tharoor of Indian National Congress (INC), Kanimozhi of Dravida Munnetra Kazhagam (DMK) and Supriya Sule of Nationalist Congress Party (NCP) did attempt to build an ideological opposition but it could not lead to any ideological positioning among political parties and were rather viewed as personal viewpoints.
Based on experience of directly working with children and their association with crime and having been engaged with Parliamentarians across parties at the time of making of this law, I have an altogether different take. I tried to explain them that even though apparently this provision is being proposed in the name of victims of crimes and for improving safety of society, it actually does not\n propose anything fundamental to advance victims’ rights in criminal justice system and instead will serve us a recipe for a more criminalised society. We will see the repercussions within a decade. We have experience of United States of America in front of us. USA went the same way we have chose to go on juvenile crime. It is only ironic that at a time when USA is gradually withdrawing from its punitive and harsh approach on its own children, we have chosen to open a front attack on troubled childhood of India, instead of healing it.
On 22nd December,1960, Padma Vibhushan Shri Kalu Lal Shrimali, the then Union Minister of Education, a distinguished parliamentarian and a visionary educationist of our country, spoke in Parliament while debating the Children Bill 1959, “Even in progressive countries like Sweden for serious offences, the children are sent to the ordinary courts. In this Bill we have gone one step forward and laid down that in no circumstances should a child be sent to an ordinary court. It was our view continuously that the child is a victim of certain circumstances, on account of certain situation in the environment, he gets into difficulties and commits some kind of offence….An effort should be made to rehabilitate the child and not to punish him in any way.”
Who so ever spoke in this tone in 2016, was isolated and embarrassed for being cold on victim’s plight. The atmosphere got so vitiated that a prudent discussion and exploration of the subject became impossible. The claim that sending children to jails for crime will help victims and will eradicate crime amongst children is a myth and we will see this doctrine collapsing in front of our own eyes, very soon. I am optimistic that a time will come probably within a decade that we will have to think of withdrawing provisions of adult sentencing of our children. Foundation of our legislative history, experiences and judicial pronouncements on the subject of juvenile delinquency are too strong and home-grown to be defeated and erased so easily.

2. Public opinion and monumental cases were instrumental in putting pressure to amend the JJ Act. How do you believe that has changed the environment for children in India?

To make my point, I will tell you a story first.
“Once, we all were sitting in a room. I suddenly saw dirty patches on one wall, plaster falling off, bricks revealing themselves. I got worried that wall may fall soon and so felt everyone else. Then I told everyone that we need to demolish this wall because if we don’t, it will soon fall on us and we all will get hurt. Everyone got panicked and started demolishing the wall with hammers and whatever, hoping that getting rid of this dilapidated wall will keep all of us safe. In few moments, we destroyed the wall and relived thinking that we were safe now. Suddenly roof started lurching and fell on us, crushing all of us.”
Moral of the story is that I myself did not understand the connection between wall and the roof and the kind of panic I created, gave no one time to think before start acting on my alarm. Preventive and rehabilitative approach of Juvenile Justice is a wall which supports the roof of public safety. Just because, juvenile justice is not working well, we do not start demolishing it. It has taken more than 150 years for us in India to nurture and build this wall of Juvenile Justice Philosophy in dealing with crime by children and we almost demolished it in 2-3 years.
This is a fact that monumental cases involving children came up, media reported on them and reported very badly. In some cases even to the extent of manipulation and distortion. “Juvenile was the Most Brutal” was the main slogan of such monumental manipulation. No one reported the fact that even the order of the Juvenile Justice Board categorically negated such description. National Crime Record Bureau’s (NCRB) data on juvenile crime was almost abused to show and serve a massive swell in crime by children. Now which reader goes back to NCRB to recheck data? People believe and react on whatever is reported in media. Starting from all the gory details of some monumental cases being served by print and television media, it went on to generate a panic that crime by children has reached a monstrous scale and all of this was led to the general feeling that, “We have to do something to stop this.” Then there came the Politicians, who harvested on such sense of insecurity. When the debate on this law was going on in the Parliament, even the Union Minister of Women & Child Development who introduced this Law, said in Rajya Sabha, “Newspapers will tell you that the juvenile involvement in crime is the fastest rising segment of crime out of all crimes.” This illustrates the extent of influence newspaper reports exerted on even law makers.
Statement of Object and reasons for the new law said, “Increasing cases of crimes committed by children in the age group of 16-18 years in recent years make it evident that the current provisions and system under the Juvenile Justice (Care and Protection of Children) Act, 2000, are ill equipped to tackle child offenders in this age group.” It is not clear till date as to from where and on the basis of what this conclusion was drawn. It is a fact that till date Government has done no attempt to find out the actual scale of crime by children, causes behind it and there has been no official research done to find out whether it was Juvenile Justice System which was ill-equipped and incapable of reforming children or it was our collective failure in implementing Juvenile Justice effectively and efficiently. Without any authentic finding, the Law was changed.
Before this Law was presented to the Parliament, 32 sitting members of Parliament, a majority of them from the Ruling Party, consisting of very senior and experienced Parliamentarians, sat together under the aegis of Department Related Parliamentary Standing Committee on Human Resource Development, examined and explored details of the proposed law for six months, conducted inquiry, consulted a wide range of stakeholders and prepared 264th Report on the Juvenile Justice (Care and Protection of Children) Bill 2014 and submitted it to both of houses of Parliament on 25th February 2015. It negated precisely every claim which was put forth for justifying adult sentencing of children. This report is an exercise of illumination, great wisdom and scholarship. I am presenting some of the interesting observations recorded in this report-
“A lot of misinformation about the juvenile crimes was being spread through media which required relooking.”
“Even most cases of rape were either love or elopement cases where girl’s parents subsequently charged the boy with rape.”
Page 16, Para 2.7
“From this data, it is evident that juvenile crime is a miniscule proportion of total crime committed and that the same is not significantly increasing.”
Page 26, Para 3.8
“The objective analysis of the data of the National Crime Records Bureau placed before the Committee makes it abundantly clear that the percentage of juvenile crimes in India i.e1.2 per cent of the total child population of the country is quite low.”
Page 28, Para 3.9
“One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution. Therefore, drastic changes proposed in some key areas of the existing system of juvenile justice need very deep introspection. It is all the more surprising that the Ministry has very comfortably chosen to ignore the views of all the major stakeholders in this regard.”Page 29, Para 3.16
“The Committee would like to point out that such changes may lead to uncalled for situation in future.”
Page 32, Para 3.27
Despite such findings, the Law was enacted. While we discuss what has been impact of these monumental cases on policy and discourse, we cannot lose sight of the fact that there was no public discourse on juvenile delinquency prior to 2013. It was a subject discussed, debated within a very limited circle of engaged workers and scholars. The public exposure to this subject happened in a tragedy. That has played a crucial role in shaping public response and results thereof.

3. The new bill allows for juveniles 16 years or older to be tried as adults for heinous offences like rape and murder. How has this translated on the ground? How many children between 16-18 years have been tried under the adult criminal justice system as per the new amendment? Can you please share a case with us?

As far as total number of children, who might have been transferred to adult criminal justice system, there is no data available on this, as of now. But I can say that in Delhi, in past one year, there have been approximately 20 cases where Juvenile Justice Boards have transferred children to adult courts. The JJ Act 2015 was being implemented without any rules for 8 months. It was only in September 2016 that Central Government notified Model JJ Rules 2016. So for initial 8 months, there was considerable confusion on operational details of transfer provisions and everyone was hoping that may be Rules will bring some clarity. In September, Ministry of Women & Child Development notified Model JJ Rules 2016 which are binding on States till they bring out their own JJ Rules. Rules did very little to bring any clarity, instead they messed up further an already pretty messed up subject. To be little clearer on areas of confusion, we will need to comprehend the details of legal provision in which trial of children as adult has been prescribed. At the very first stage as soon as a child is produced before a Juvenile Justice Board, it is required to carry out “Preliminary Assessment” if child is 16 or above and has been alleged to have committed an offence defined as “Heinous Offence”. And the problem begins from here only. What offences are to be considered as Heinous Offences is debatable. Two JJBs in Delhi itself have two different ways of interpreting “Heinous Offence” and this varied interpretations exists in many other states as well. There is a pretty long list of areas of confusions with regard to these provisions. I have interacted with many judicial officers who preside over JJBs in past one year, since this new law got enacted. One said that he feels that passing an order on preliminary assessment is like passing a mini judgment and he feels he is doing an injustice by passing such orders while another one takes pride in the fact that his JJB passes very detailed order on Preliminary assessment, virtually prejudging a case. Another one says that I don’t pass any order till Police completes investigation and files its charge-sheet, because it is impossible to form a view on circumstances in which child committed offence until I have complete investigation report in front of me. Apart from such ambiguities of law and procedure, there are infrastructural issues as well. The kind of experts prescribed in the JJ Act are not available in most parts of country and Judges in JJBs are puzzled as to how and from where they will get such experts. There are more complex challenges which system is facing and more are likely to come up as cases proceed and I can clearly see that system is not ready to respond to these challenges. Ultimately, no one else but children will suffer because of all of this. Those who are resourceful and competent enough will approach higher courts to seek remedies but those who are poor and powerless will suffer all this is silence. This is how this Law is rolling out at ground. Precisely everyone is worried and concerned.
I can tell you one case, just to mark the tyranny of these provisions. I was told about a case in which the Police officer investigating the case feels that the boy sexually abused his own sister in law (Bhabhi) but when I spoke with the Probation officer, she told me that she has come to know that it was in-fact the sister- in- law who was taking sexual advantage of the boy. In the same case, two authorities involved with the same case, have two drastically contrasting views. Now it is a challenge for a JJB to form a view about this child in such a contrasting setting of views. In a judicial system where performance is evaluated on the basis of how speedily case is disposed off and how many cases are disposed off, chances are very high that cases will be transferred to adult courts because it helps in showing speedy disposal of a case. More than child, people tend to care more about their performance, career and score cards.

4. Has the government made a separate facility to house children in jails as was promised by the Minister of Women and Child Development in the parliament?

The relevant question is “Which Government?” Law is made by the Central Government and it has to be implemented by the State Governments. All the tall promises were made in Parliament by the Minister of Women & Child Development of Union Government of India, who has very limited say in what steps are taken by the State Governments. This exact question was asked by Leader of Opposition in Rajya Sabha Shri Gulam Nabi Azad of Indian National Congress and the Union Minister of Women and Child Development Mrs. Maneka Sanjay Gandhi Ji had responded saying –
“Gulam Nabi Azad Ji has talked about the need for separate detention space for juveniles. The State Government is already mandated to set up such places under Section 49. And as far as education and reform …you were very worried about education and reform in places of detention. This is provided for under Section 19 (3), in which education and reform is mandatory, even if they go into Borstal, which as I told you before, does not exist now, but when this Act is finished it will be…they will come into being.”
So you see that answer given was an assurance, that too, to be fulfilled by the State Governments. What I visualise that maximum what will happen is that State Governments will designate a room in Observation Homes or Special Homes as “Place of Safety” and all the tall assurances for implementing various reformative programmes and education etc. will operate from this room only. One\n can imagine how it is going to actually work. Presuming that number of such children who will be ordered to be treated like adults will be very low, in effect they will end up being solitarily confined in these tiny rooms, designated as “Place of Safety” where officials will visit occasionally to do a formality. I don’t see any reformation coming out from such places. Given to the commitment, our governments have been able to demonstrate on reforming children in past 15 years of implementing the JJ Act of 2000, I am not all optimistic that these “Place of Safety” will turn out to be any success, if they get established and function as per Law, at all. These will maximum turn out to be “Mini Jails”, I fear. One only needs to find some reports on the conditions of Observation Homes and Special Homes in the Country in order to visualise how these “Places of Safety” are going to look like. Each report will tell a sordid story of neglect and apathy prevailing in these glorious institutions, beyond\n the walls of which childhood screams its soul out.

5. The new bill aimed to “consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach.” How child-friendly has the approach been? Please give us examples.

Answering this question is actually very funny in a very sad way. All these years, “Child Friendly approach” has been reduced to painting the walls in pink and green, putting some cartoons, balloons, paintings made by children, toys, games and comics in a room and even handing over a toffee or chocolate. These are the instances you will find in plenty in the name of “Child friendly Approach”. A child whom we have incarcerated beyond fenced walls and scary buildings is definitely not looking for our chocolates, balloons and colours. But ironically, this is what is practiced across the\n country in the name of being child friendly and I don’t see it is going to change any soon. It was a mockery and it will continue to be a mockery, if we don’t understand the actual meaning of “Child Friendly Approach”. JJ Act prescribes “Child Friendly Approach” in “Adjudication and Disposal of Case”, which is a legal concept requiring police & judicial institutions and their practices to take a remarkable shift from what we practice in criminal law. This is not happening because understanding of this concept has been hijacked by a mediocre understanding. Juvenile Justice System is still marked with its obsession with “Nature of Offence”, hell bent on dealing with the “Offence”, instead of the “Offender”- “The Child”-“The Person””. No one sees a child in a child, when offence is serious. This attitude needs to be altered when Law mandates us to adopt a child friendly approach. People were required to see a child in a child, and not a criminal. There is a lot of orientation and attitudinal change, which is required for marking a shift towards “Child Friendly approach”.
I remember, once a Judge scolded me saying that, “Mr. Counsel! Just by saying “My humble submission! My Humble submission!, your submissions don’t become humble. You have to be humble when you make a “Humble Submission”. Same is the story of being “Child Friendly”, I will say.

6. What have been the challenges in implementing the amendments to the JJ Act?

There are no amendments in the Act, to be correct. It is an altogether new Act. In this new Act, there are numerous new things. Entire Law is enacted for the child but in practice we see children suffering the most from this Law. The kind of interventions and services visualised in the Act require good quality. There is huge gap between the quality which is required and the quality which is available. The struggle in the JJ System, as of now is to get the bare minimum in place. Focus is always on constituting Juvenile Justice Boards and Child Welfare Committees, on selecting quality and interested people to man these bodies, on creating basic infrastructure and on running most basic functions like appointments and payment of salaries etc.
For example, on paper one will find that one or two probation officers are appointed to work on Children but what we miss is to see that these probation officers have several other duties as well. So by design they cannot deliver the kind of quality expected in the Law. Most of them on hired on contract. They are provided no vehicle, no office, no computers and no telephones etc., while all these are very basic needs of carrying out probation work. Children are released on bail and once out on bail, they are to be supervised by the Probation Officer. Now Probation Officers have no time and resources for doing this kind of work. So child who is out on bail is again without any supervision. How do we expect that child to improve his life conditions if there is no working on him, no one supervising him, no one giving him guidance? Probation Service is the backbone of Juvenile Justice System and it is in a dilapidated condition, across the country.
Another challenge is that the focus of system is always on institutional care. Only a small percentage of children covered under JJ Act reside in institutions. Most of them are living outside in community. Non-Institutional care interventions are the way to make meaningful interventions in the lives of children and their families but it simply does not exist, despite law requiring it.
If we look at police, again, despite this entire buzz in policing around children issues, the fact is that Police remains primarily concerned with Law and Order. Even though JJ Act talks a lot about role of Child Welfare Police Officers and Special Juvenile Police Units, in practice Police is yet to take up these responsibilities seriously. You will find a lot of compliance on papers but in practice, it is just not there. Despite a strong need, there is no separate cadre in Police on Juvenile Justice.
Another area is “After Care”. After Probation Services, if there is anything which can drastically improve the reformation scenario, then it is “After Care”. Aftercare is meant for those children who turn 18 years and are set to be released from Child Care Institutions and are still not in a position to re-integrate and sustain in the society. It is available to children till they reach age of 23 years. It can get them stipend for any vocational course, it can get them scholarships for higher studies, it can get them facility for residence, it can get them loan for starting their own business. In the book of law, it is all gloriously written but in practice there is nothing reaching to children, who need all of this.

7. Why do child rights organizations believe that sending children to jail is counterproductive? Highlight the reasons why.

It is actually very simple to understand. 17 years old boy, who got into bad peer, influence at the age of say 15 years, committees an offence. Offence is Heinous and horrendous. JJB refers him to be treated like an adult. He gets convicted and sentenced for 10 years. He remains in a so-called “Place of Safety” till the age of 21 years and then is transferred to the Jail. He comes out from Jail at the age of 27 years. His record of conviction is maintained at the Police Station and also in Court. This will ensure that he faces disqualification whenever he applies for a job. Previous Act had this protection available to all children but new Act has taken away this protection for this class of children. He has no education beyond 9th class in which he was studying when he got involved with crime. He has no\n skills. His previous societal connections are all broken. He cannot get a job anywhere. But what he has accumulated in past 6 years of residence in jail is this vast knowledge about world of crime and he only knows people whom he met in jail. He has spent his entire formulative youth in jail with convicted criminals. Now imagine, how his world looks like? He at the age of 27 years is standing in society\n as a convicted criminal, whom no one will accept. Will you give a job to a young boy as your assistant or domestic help, about whom Police has given a report that he was once involved in a crime? The point is that he could have been reformed, reintegrated with the family and society and would have been able to continue his education, would not have had any stigma written in his records but nothing of this happened to him because we sent him to jail for what he did at the age of 17 years.
Now, please pay attention that we are not talking here about one or two children. In next ten years, we will push thousand of such boys to jails, who will be coming back to society at some point of time. Does it sound scary? Do you feel safer now? Does not it sound scary that we have found a way to generate more and more criminals and to pump them in the society? If not counterproductive, what else we should call such a policy? Being in jail is not an experience which leads to positive influences on people. And this is what child rights organisations and experts of Juvenile Delinquency have been pointing out. We have been saying that sending children to Jails is not going to help us in creating a safer society.
While explaining the reasons why we should not send children to Jails, I have not even touched the issue of fundamental difference between Adults and Children and how they are different and why Law should deal with them on very different standards. I will not go into the details on this here but will only ask you to do one thing. Go back to your young age, when you were 15 or 16 or 17 or 18 or\n even 19 and think about the speed in which you used to drive your bicycle or motorcycle and then think the speed in which you drive now. And try to find out why you drive your motorcycle or car on a slower speed. This inquiry will make you realise the difference between a child and an adult.

8. Experiences of countries like US and UK shows that allowing criminal justice system to put juveniles on trial has had little impact on juvenile crime rates. In fact, according to a study in US, 80% of children who were tried as adults and served a jail sentence went on to commit serious offences after they release. Do you think it is time that we move away from retribution to rehabilitation? Can you explain it with examples from other countries?

Exactly, children who are given adult treatment go on to commit serious offences as they get perpetuated in the world of crime. One does not need to be Einstein to understand this basic thing of general experience.
Giving rehabilitation a preference over retribution in case of children was a well thought policy decision which emerged and got fortified in our laws over a long span of time in India. 2015 marks a significant departure as we inducted judicial waiver in our Juvenile Justice Law, opening thereby gates of jails for children.
Such experiments have been done in many foreign countries, out of which example of USA is outstanding and thereby a learning for us in India. In USA, policy thinkers like Professor John J. Dilulio played a provocative role on reorientation of USA’s Juvenile Laws for adult sentencing and harsher punishments to children. In early 1990s he coined and popularized term “Super predator” for juveniles. Other ideologues like James Q. Wilson, William J. Bennett and John P. Walters along with Prof. Dilulio are credited for creating a popular cultural of fear of young people in America. DiIulio warned that juvenile superpredators would be “flooding the nation’s streets,” coming “at us in waves over the next 20 years. . . . Time is running out”.
If we see the tone of news reports and television debates Post Dec 2016 on this subject in India, we will find a stark similarity in exaggeration and panic. The cadre of “Fatherless-Godless-Jobless” remorseless super-predator Juveniles “A New Breed of Offenders”, as these thinkers had predicted and warned about, never ascended on the soil of USA. It remained a myth but Laws were changed to allow adult sentencing of children. Jails of USA got flooded with children, criminalizing the community of young people in long terms.
It is matter of record that Prof. Dilulio later on regretted his claims and predictions. The same person Prof Dilulio who in 1995 had dismissed the very relevance of a Juvenile Justice System and had proclaimed that , “by my estimate, we will probably need to incarcerate at least 150,000 juvenile criminals in the years just ahead”, in 2001 conceded that he wished he had never become the 1990’s intellectual pillar for putting violent juveniles in prisons and condemning then as “Super-Predators”.
“If I knew then what I know now, I would have shouted for prevention of crimes,’‘ Mr. DiIulio said in an interview.
Franklin E. Zimring, Professor of Law at the University of California said, referring to Dilulio,-
“His prediction wasn’t just wrong, it was exactly opposite. His theories on super-predators were utter madness”.

What can be more telling experience for us in India, than that of Professor Dilulio’s?