Monday, December 21, 2015

[Editorial # 20] Justice that is rehabilitative : The Hindu

A mature society will not give in to popular clamour and overturn sound legal principles and social norms that underpin its justice system. The popular outrage over the release of a juvenile convict in the December 2012 Delhi gang rape case after a three-year term in a Special Home is understandable, but it is just plainly wrong to demand that his detention should continue. It is a misplaced view that juveniles who fell only a few months short of adulthood in the eye of law and were convicted for heinous crimes such as murder and rape should be tried as adults. Nor is it legally tenable to argue that an ‘unreformed’ convict should not be released back into society on completion of the maximum permissible stint in a home for juveniles in conflict with law. In fact, child-convicts growing into adulthood while being kept in a reformatory institution are ripe for rehabilitation. It will be a greater crime to force them to spend further time in special homes or put them in prison along with adult criminals. It is futile now to seek to establish that the former juvenile released now was the most brutal among the group that committed the gang rape. To say this is not to lose one’s sympathy for the grieving parents of the young rape victim who subsequently died. None can afford to forget the crime that brought forth an unprecedented outpouring of anger and made the whole country introspect about the way it treats its women. 
The Delhi High Court has taken the correct view by refusing to stay the convict’s release. It has taken note of the provisions for post-release rehabilitation, especially through an individual care plan for his reintegration with society. The Juvenile Justice Board should also receive quarterly follow-up reports for two years from the child welfare officer, probation officer or the NGO concerned. Claims that the stay in the Special Home had had no effect on him and that he had been ‘radicalised’ during his confinement in the Special Home appear to be desperate arguments by an unconvinced society to stall his release. Children fall foul of the law mainly because of neglect, abuse and poverty. There are no innate human propensities that magically transform cherubic children into unregenerate criminals beyond redemption. The whole object of juvenile law in India is to preserve the scope for rehabilitation and prevent recidivism. There is a pending Bill in Parliament that seeks to carve out a separate category of child offenders in the age group of 16 to 18 involved in heinous crimes and transfer them to regular criminal courts. It would be a retrograde step to enact this provision, even though other clauses in the Bill contain many progressive aspects for children in need of care and protection. It is the wider society that will really benefit from rehabilitative justice for child offenders and their transition to responsible adulthood.
1. How is a Juvenile defined?
2. What is Juvenile Justice Board?
3. What is Juvenile Justice Act?
4. What provisions of JJ Act are being considered for amendment in the current session of Parliament?
5. What is meant by Special Homes?
6. Do you think that the courts have done the right thing by not allowing the continuation of detention of the juvenile convicted in Nirbhaya case?
7. What are the reasons for children under the age of 18 years coming in conflict with the law?
8. What steps do you suggest to bring such children back in the mainstream?
9. How is the society responsible for juveniles coming in conflict with the law?
10. What steps should the Government take to reduce the crime rate perpetrated by juveniles?
11. What is understood by rehabilitative justice?


  1. 1. Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 defines juvenile as “juvenile" or "child" means a person who has not completed eighteenth year of age.

    2. Section 4 of the abovementioned Act provides for the constitution of a Juvenile Justice Board as follows:
    i) The State Government is authorized to constitute a Juvenile Justice Board for a group of districts capable of discharging the power conferred under the Act.
    ii) The Board shall consist of a Metropolitan Magistrate or Judicial Magistrate First Class, and 2 social workers (atleast one must be a woman) having same powers as those of a Metropolitan Magistrate or Judicial Magistrate First Class.
    iii) The Judge appointed to the Board shall have special knowledge/training in child psychology or welfare. The social worker should have been actively involved in health, education or welfare activities related to children for atleast 7 years.
    iv) The term of office and manner of resignation shall be prescribed.
    v) The Board member may be terminated if:
    • Found guilty of misuse of power under the Act.
    • Convicted of offence involving moral turpitude and offence not granted a full pardon or reversed.
    • Fails to attend proceedings for 3 consecutive months or 3/4ths of the sittings in a year.

    3. Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legislation governing juvenile justice. It provides a framework for application of law to juveniles in conflict with law and children in need of care and protection.
    It was passed in pursuance to India ratifying the 1989 Convention on the Rights of the Child in 1992 and repealed the Juvenile Justice Act, 1986. Despite being deemed a progressive legislation, there have been serious loopholes in the implementation of its provisions, due to which the Apex Court has taken an activist role regarding the same.
    To implement the Act more effectively, the Government of India launched the Integrated Child Protection Scheme to increase financial allocations and merging of certain schemes.

    4. The Juvenile Justice (Care & Protection of Children) Bill, 2014 is pending consideration in the Rajya Sabha which will
    • allow juveniles between the ages of 16-18 years to be tried as ‘adults’ for heinous or serious offence (only if apprehended after 21 years of age).
    • Provide for constitution of Juvenile Justice Boards and Child Welfare Committees
    • Contain provisions for eligibility of adoptive parents and procedure for adoption
    • Include penalties for cruelties against a child

  2. 5. Section 9 of the JJ Act provides for constitution of Special homes. The provision states that:
    i) State Government shall establish and maintain by itself or by agreement with voluntary organization, Special homes for reception and rehabilitation of juvenile in conflict with law.
    ii) If the State Government finds it suitable, it may certify another credible institution as a Special home.
    iii) The State Government shall provide for the management of special homes needed for re-socialization of the juvenile.
    iv) The rules made by the State Government for management of special homes may provide for the classification and separation of juveniles in conflict with law according to their age, nature of offence and their mental and physical status.

    6. In the Nirbhaya judgment, the apex court has merely refused to act without a legislative sanction to interpret a law for what it doesn’t provide. The issue of whether the juvenile ought to be released depends on the law and the Court has done right by not derogating from it.

    7. The children who come into conflict with law are most often than not from the lower strata of society facing the grind of poverty, hunger, ignorance and desperation every day. Being bereft of education, they are in a very vulnerable situation and open to exploitation. Juveniles come into conflict with law mostly for offences like peddling, pick pocketing, alcohol abuse, etc which are mostly forced upon them by their parents/guardians to earn a paltry sum of money.

    8. Measures to bring back such juveniles into the mainstream:
    i) Proper and unambiguous implementation of government policies to prevent child’s conflict with law.
    ii) National legislations for juvenile justice ought not to punish the child where they have been victims of abuse themselves, e.g pick pocketing, etc.
    iii) Guilty parents/guardians should be punished vicariously for exploitation of minor.
    iv) Media plays a crucial role by informing the public of the circumstances of the juvenile while commission of the crime in an unbiased manner.