Juvenile Justice Board: Adult Offences
Juvenile Justice Board: Adult Offences
The paper is an attempt to give an account upon the ineffectiveness of Juvenile Justice Board to examine and determine the juveniles in conflict with law in the age group of 16-18, involved in adult heinous offences as provided in the Juvenile Justice (Care and protection of Children) Act, 2015. This Act replaced the Juvenile Justice (Care and Protection of Children) Act, 2000. The Act of 2015 allows Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a juvenile in the age group of 16-18 should be tried as an adult or not. This Act, for the first time ever, has given the authority to treat the juveniles of certain age group as adults and to punish them as adults in the adult criminal justice system. Such a major change has been taken due to the raucous that has happened after the attack of 2012 Delhi gang rape where one of the accused, who was 17 years has been sentenced to 3 years in a reform home. Due to this, there were lots of disturbances in the society where the public created a huge fuss by criticizing such law which allows an accused to escape huge punishment though he was only few months away from being 18. Such events led to the passing of the Act of 2015. The Act gives, “The board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence…for such an assessment, the board may take the assistance of experienced psychologists or psychosocial workers or other experts.” By making this provision, huge discretion has been given in the hands of few for the most sensitive issue. In this paper, the author makes an attempt to give all the psychological intricacies that explain the greatest possibility of reforming even the juveniles in the age group of 16-18. This paper will make an account on why present conditions of juvenile justice administration is incapable of making such a move that will defeat the very purpose of such administration, which is the rehabilitation and reintegration of juveniles into the mainstream of society.
The very purpose of Juvenile Justice Administration can be explained by pointing out the preamble of Indian delinquency law, the Juvenile Justice (Care and Protection of Children) Act, 2015. Thus, the preamble of the Act states as follows:
“……….by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach…………..in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established…….”
Thus, it is very clear that the juveniles have to be administered in such a way that it caters to achieve the only purpose that has been provided in the Act of 2015. In this paper, the amendments brought by this Act which provide that the juveniles in the age group of 16-18 to be tried as adults for heinous offences after the examination made by the juvenile justice board that defeat the very purpose of Juvenile Justice Administration will be criticized by taking the contentions of psycho social possibilities of reformation of such juveniles, and of improper juvenile justice boards and homes to decide the fate of juveniles committing such offences. The paper attempts to provide that in the light of present ineffectiveness of juvenile justice boards, giving such huge discretion in their hands to decide whether a juvenile has adult mind or child mind results in the increase rate of recidivism, as the growing rates of accountability within the juvenile offender has a direct correlative effect on the rates of recidivism. In cases, where juveniles commit heinous offences, sentences harsher than necessary may be adopted. But, no steps or punishments should be taken which completely curbs the rehabilitative scope of juveniles. Thus, India should attempt to adopt a rehabilitative model incorporating restorative principles as a complement and not a substitute for rehabilitation. Whereas, the discretion conferred on the Juvenile Justice board to decide that juveniles be tried as adults take away the rehabilitation scope completely. Thus, the rehabilitative possibilities of such juveniles who commit heinous crimes and the present inability of juvenile boards will be enunciated.
Psycho-Social Bases For Rehabilitation In Cases of Heinous Offences:
Before going into psycho-social intricacies, it is necessary to explain the base for rehabilitation. The idea behind rehabilitation is that people are not born criminals, thus they should be given a chance to be restored back into the society. Every child who comes in contact with the juvenile justice system is a child in difficult circumstances who has fallen out of the protective net at some point and has been robbed of an opportunity of a safe and secure childhood. Children in conflict with law should be treated as children in difficult circumstance and the approach of the juvenile justice system should be aimed at addressing the vulnerabilities of children and ensuring their rehabilitation. The process of rehabilitation shall also secure the Rights of the child in conflict with law. Thus, it is very clear that why rehabilitation should be opted instead of incarceration or punishment.
Now, let us look into some of the psycho-social concepts. According to psychoanalytic theories, the deviant behaviour of youths is the result of unresolved instincts and drives within the human psyche. When these instincts are in conflict, delinquent or other aberrant behaviour may occur. According to Sigmund Freud who pioneered psychoanalytic research in explaining delinquency, poised that the personality of every individual is made up of three integral parts:
the id, which is the source of instinctive energy and biological drives.
the ego, which is the part of the psyche that experiences and reacts to the surrounding world.
the superego, which acts as the conscience of the psyche, interceding between the id and moral values.
Freud considered that the behavioural problems can be treated by delving deep into the individual’s past experiences to uncover and resolve unconscious conflicts. More recently, Schoenfeld (1975) postulated that most acts of delinquency are caused not by criminal tendencies but rather a weak or defective superego unable to sufficiently control the primitive and strong early childhood urges, resulting in deviant behaviour. It is one of the psychological perspectives that connect delinquency to mental illness and personality disorders. There are many perspectives such as Psychopathic Theory, Criminal Personality Theory, Intelligence Quotient Theories, Psychiatric Theories and Concepts. These are the theories that establish the relation between psychology and delinquency. In addition to these, there are many theories that tend to enunciate the thinking patterns of offenders. Generally, there are two theories which emphasize the criminal thinking patterns.
Firstly, determinist theories presuppose offenders are passively driven to commit offences. Secondly, rational choice theories of crime focus on the cognitive aspects of thinking and adopts a perspective whereby the offenders are seen to think that they think about their actions and exercise a judgement as to whether the risk of detection is outweighed by the potential reward before they choose to offend. But, neither of these theories can be found to be appropriate in all ways as a person in his criminal career can be either driven to instincts at initial stage or employ cognitive thinking with years of experience. Yochelson and Samenow (1976) focus on cognitive processes but emphasize the role of cognitive dysfunction in criminal behaviour whereby the concept of rationality disappears. They emphasize cognitive processes which lead to a distorted self-image and result not only in criminal choices but a denial of responsibility. According to them, criminals do not act impulsively and they will have planned and fantasised about their actions. They conclude that these thinking patterns have to be confronted in the treatment. It is also important to mention that lack of empathy is the major cause factor for turning persons into psychopath. The general reason behind explaining these psychological factors of delinquents and criminals is that how juveniles become delinquents where these very basic instincts have been affected and how they can be rehabilitated through treatment can be understood. Persons born with these instincts become aberrant during the failed process of socialization. Socialization refers to the set of experiences, including purposeful training, through which infant and child go so as to become adult members of their society. The process is gradual. The infant begins to learn ways of behaving and experiencing which conform to the values of society (for example, to sleep at night and to be awake during the day, to eat at set times, to inhibit toilet functions until the proper time and place). Certain ways of doing things and seeing things are encouraged by parents and other adults. Other modes of behaviour are met by neutral reactions, and still others are actively discouraged. Actually, the child’s whole behaviour is narrowed considerably from what he is capable of doing. He inhibits some unacceptable ways of behaving and substitutes other actions designed to satisfy the original impulses.
When such process of socialization happens for a person in normal manner (strong superego), he may be said to be in a social behaviour. But, anti-social behaviour may be a normal part of growing up or the beginning of a long-term pattern of criminal activity. It means that during the process of socialization, there are chances of developing anti-social behaviour and if that behaviour marks as a beginning of criminal career, then such conditions which result in such behaviour have to be encountered with, whereby the focus should be in eliminating such conditions and developing the superego of a person. The United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) assert that “youthful behaviour or conduct that does not conform to overall social norms and values is often part of the maturation and growth process and tends to disappear spontaneously in most individuals with the transition to adulthood”. Generally, the intensity and severity of juvenile offences are determined by the social, economic and cultural conditions prevailing in a country. The causes of and conditions for juvenile crime are usually found at each level of the social structure, including society as a whole, social institutions, social groups and organizations, and interpersonal relations. Juveniles’ choice of delinquent careers and the perpetuation of delinquency are fostered by a wide range of factors such as economic, social, cultural factors and urbanization etc. In such case, the treatment of juveniles should involve the finding out of the factor that caused delinquency and of the level of the damages that has happened to the psychological instincts of juveniles. Even a juvenile who has committed heinous crimes such as sex offences can be rehabilitated by developing the component of empathy within him through many techniques such as cognitive behavioural therapy which focuses on identifying sexual assault cycles, correcting distorted thinking patterns (for example denial and minimisation), controlling deviant fantasies, increasing empathy for victims, increasing social competencies, and developing relapse prevention skills.
From the above discussion, it is established that even when the juveniles who commit heinous crimes have greater probability of reforming and reintegrating into the society which, in the first hand, is the main object of Juvenile Justice Administration as provided in the Act of 2015. In such cases, whether giving up the entire objective of reforming the juveniles who commit heinous crimes by sending them to adult prisons will provide justice? When a juvenile has failed in the process of socialization to develop superego, his egoistic development without moral values results in an anti-social behaviour. Even sexual crimes are the result of cognitive dysfunction. As a juvenile offender, he needs a treatment and care that will develop his personality, inculcate sufficient empathy and instil anger management which a state has to provide them rather treating them as adults and giving punishments that will make them devoid of even a little tenderness that they possess. The state must opt for the rehabilitation and reintegration which will fulfil the main objective of Juvenile Justice Administration. Such a step has been taken when there has been full of chaos in the society out of heightened sense of emotions. The UN Rules for the Protection of Juveniles Deprived of their Liberty operates to ensure that juvenile detainees, and offenders, are given fair treatment and receive consideration for their age.
The UN agenda reflects the perceptual rise in juvenile criminal behaviour in the late twentieth century, and it shows consciousness of a growing trend (in many nations) to remove juvenile justice laws. The removal of juvenile justice laws pertains to the decrease in age that offenders are tried as adults. Since 1978, in the United States, forty-one states have established laws that make transferring juveniles to adult court easier. Sometimes these transfers occur because the crime is exceptionally heinous, and in other instances these reassignments take place because local and national politics incite emotions. In India, the offence that has happened is a very heinous crime and at the same time, it created massive protest among the public against juvenile in that case as he is being released after 3 years in reform home. In all these circumstances, legislators acted and took a step without analysing the higher probability of reformation and present conditions of juvenile justice administration that completely defeats the main object, that is, reformation and reintegration into the society.
In India, often mental health is neglected in all aspects of the social life which is evident from the fact that according to WHO report in 2017, almost 7.5% of Indians suffer from major or minor mental disorders that require expert intervention. According to Teplin’s (2001) preliminary findings through the Northwestern Juvenile Project indicated that two-thirds of juvenile detainees in the baseline sample have one or more alcohol, drug, and/or mental (ADM) disorders. Of the one million youth who come into contact with the juvenile justice system, as many as 60% of those incarcerated may have a mental health disorder and as many as 20% may have a severe disorder; as many as 50% may have substance use problems. According to the National Mental Health Association, even though 60%-70% of youth entering the juvenile justice system have emotional disturbances, few receive adequate screening, assessment, or treatment. Those who gets incarcerated without treating these emotional disturbances are victimized, abused and attempt suicide. The fact that treating juveniles as adults have harmful effects on delinquent youth can be proved by referring to the report of additional crime committed in Minnesota within 2 years by 58% of transferred youth versus 42% of youth retained in juvenile courts.
Thus, it is has been sufficiently detailed why psycho-social perspectives have to be weighed more in juvenile justice administration and why treating juveniles treating as adults altogether breed injustice.
Ineffective Juvenile Justice System:
The Act of 2015 has given the juvenile justice Board discretion to decide in case of heinous crimes by the juveniles of age group of 16-18 whether such crime has been committed in adult mind or child mind. Upon deciding that a juvenile has committed a crime in adult mind, he goes behind the bars just like hardened criminals in the adult criminal system. The question is whether a juvenile justice board in the present conditions is capable of exercising such huge discretion to decide the fate of many numbers of juveniles who may have been availed an opportunity of being reformed. Here are some of the main points that have been put forward to prove that juvenile justice system is already functioning in a way that is deteriorating and handing over them such wide discretion breeds injustice.
Functions of Juvenile Justice Board:
Section 4 of the Act of 2015 deals with the composition of juvenile justice board. A board should consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate with at least three years experience and two social workers of whom at least one shall be a woman, forming a bench. There are several functions and responsibilities that are mentioned in section 8 of the Act of 2015. Some of those are as follows:
ensuring the informed participation of the child and the parent or guardian, in every step of the process,
ensuring that the child’s rights are protected throughout the process of apprehension, inquiry, aftercare and rehabilitation,
transferring the report to the committee stating that the children in conflict with law is also a child in need of care and protection simultaneously,
conducting at least one inspection visit every month of residential facilities for children in conflict with law.
These are the some functions that a juvenile justice board should undertake. In addition to this, Rule 7 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 contains the similar functions as provided in the Act in a detailed manner such as speedy disposal of cases, aftercare measures etc for the purpose of rehabilitation and reintegration. All these rules imply the rehabilitation of juveniles as the main objective.
Ineffective working of Juvenile Justice Board:
There are many instances which might contribute to the concluding of the fact that the juvenile justice board is currently crumpling with insufficient funds, distorted infrastructure and lacking facilities to carry out its functions that it ought to carry out with full diligence. One of such instance is that the escape of 34 juveniles from Chennai’s Kellys juvenile home in 2016. Those who have been brought back confessed that they did such an act to escape from the torture in the home. There are several haunting truths inside juvenile homes that prove that the juvenile justice board is incapable of controlling even the basic functions that has been endowed to them. The current vocational training programmes that are being provided to the juveniles are of cooking, tailoring and hair cut. As per today’s times, such vocational training programmes stand outdated and cannot comply with the new existing market and practices that are followed and thus the juveniles don’t take interest in learning out of the courses. Even when the training/learning of computer science was introduced, most of the inmates created a ruckus by breaking. Several studies have been made that reflected the haunting episodes which are uncontrolled and not monitored by the juvenile justice board. There are number of complaints and cases where a juvenile is beaten up by the police authorities as soon as he is brought in an observation home and later by the senior inmates. They are forced to accept their involvement in criminal cases.
Many observers have documented the tendency of police to arrest and detain children in inhuman condition without good reason. In an incident, a 14-year-old juvenile from Jamnagar was sodomised allegedly by the four boys at the observation home on Gondal Road, Rajkot. They allegedly also beat four inmates with polymer pipes and two of the accused forced others to perform oral sex. They also filmed the victims naked. The peon who was on duty when the incident took place at the observation home, did not made any attempt to stop this incident or to report this incident. It has been found that in many cases the perpetrators are staff members including caretakers, security guards, etc in the observation homes. As per the report of Careshare India, it was even called as ‘pillai jail’ because of the overburdening of inmates. Scare hygiene, insufficient nutrition, lack of space, lack of drainage systems, water shortage-all this makes the children prone to contagious diseases and low hygiene levels in the homes.
All these indicate the lack of effective working of the juvenile justice board. There are several reasons for such incongruous nature of boards such as overcrowding, lack of community support etc. There are several problems that a juvenile justice board has to encounter with which they are not looking into. In such condition, empowering them with the discretion of deciding the fate of many juveniles is a threat to justice.
Events that proved taking such step failed:
For around 1,000 juveniles in correctional facilities in the state, there is only one government appointed psychologist. Activist Padam Narayan filed a PIL saying that 27 government orphanages and 174 private destitute homes are not registered under the Juvenile Justice Act.
There has not been any enough psychological experts who could assess and give report to the board. In some places like, Mumbai, the assessment is done at state-run hospitals where the children are subjected to IQ test. Many have agitated such ways as it is not relevant in concluding the maturity or a psycho-social profile of a juvenile.
From the above the factors, it is clear that measure taken in the Act of 2015 breeds injustice to many individuals.
From the above discussion, we have seen why handing over the power of deciding the mind of a juvenile to a juvenile justice board defeats the purpose of juvenile justice administration. Here are some of the suggestions by the author from the outlook of psycho-social perspective.
Lipsey(1992) found that imprisonment, boot camps and intense surveillance resulted in a 25% increase in reoffending rates on average, while Home Office statistics(1994) reveal a staggering reconviction rate of 82% for young adult males, who commit the majority of recorded crimes. There is a therapeutic prison which opened in 1962 which works based on psychological principles. This prison works democratically, prisoners are treated humanely, and prison officers work with psychologists to empower prisoners to confront their offending problems. The reoffending rates of this prison is lower than any other prison. The trend of not opting for rehabilitation had been stemmed from the ‘nothing works’ thesis which concluded that there is no appreciable effect on recidivism through rehabilitation. This view has been taken by the politicians who favoured ‘get tough’ approach to gain the popular vote. But, these findings have been discredited by many of the findings made by the known psychologists such as Martinson (1979). Thereby concluding the effectiveness of rehabilitation by the above mentioned facts.
Rehabilitating offenders by group:
It is made clear that targeting specific groups of offenders can increase the effectiveness of treatment programmes, and two of the most well-established specialist programmes are as follows:
Anger management group
Sex offender group
Working in groups is seen as effective since it is not only economical but allows opportunities for sharing experience and rehearsal of coping strategies in a safe but not uncritical environment.
Anger management group:
The most critical areas in relation to young offenders for intervention are those of anger and aggression. Aggression seems to be the most prevailing behaviour in the lives of adolescents. They exhibit such behaviour in the need of establishing adult masculine or when they are uncertainty about the future, and the insecurity which produce over-compensation may then turn to aggressive words or behaviour. According to Novaco (1975), anger is not all bad and it can serve a useful purpose because it alerts us in achieving our objectives effectively. He suggests that anger can be managed through the acquisition of strategies of self-control, through assertiveness training which allows the individual to deal with potentially violent situation without becoming aggressive and through stress inoculation where the individual is exposed to small doses of provocation in such a way that they can develop and practice the necessary skills to cope with such situations in real life.
Sex offender group:
The most widely used therapy in the sex offender group is cognitive behavioural therapy whereby the following areas have to be dealt with:
Correcting distorted thinking patterns where the offenders tend to justify their actions by irrational ideas or distorted thinking such as hatred of women. Those ideas and thinking have to be confronted and encountered with whereby educating them about sexual abuse and its consequences, causing discomfort in the offender by emphasizing the victim’s distressed response to abuse-their shame, fear, pain and humiliation-in an attempt to help the offender ‘own’ his behaviour and its dreadful consequences rather than hiding behind convenient cognitive distortions.
Controlling deviant fantasies as there is a clear link between sexual fantasy and sexual arousal which may lead to inappropriate and unacceptable behaviour. Once a pattern of deviant sexual arousal has been identified, for example to photographs of children, then behavioural techniques can be employed either to decrease deviant arousal or to increase the probability of more appropriate arousal. It is known as aversion therapy. For example, alcoholics are sometimes treated by pairing the use of alcohol with an emetic drug(which causes nausea) so that feelings of nausea become a conditioned response to alcohol.
Establishing empathy in offenders as that is the main cause of committing a heinous crime. It can be established by playing videos of the victims describing their agony, role playing, writing letter of apology to their victims.
Improving social competence as many feel awkward with others due to the lack of performing enough in the society. Thus, social skills training, sex education, self-esteem enhancement, relaxation training, and assertiveness training may help such individuals improve their interpersonal relationships with adults, though they may need substantial rehearsal opportunities and positive feedback.
The above mentioned measures could have been taken instead of depriving the juveniles of such rehabilitative scope. Instead of imposing the threat of punishments, law could have made arrangements that would help the juveniles reintegrate into the society. India has been lacking concerns in mental health. It is high time that they should take great concern in the mental health aspects which could solve almost all of the problems in the society. It is concluded by the author in this paper that the measure opted by the Act of 2015 is totally erroneous and the law should provide that is much rational which would satisfy the main objective of Juvenile Justice Administration.