Juvenile Delinquency: An Overview

 Juvenile Delinquency: An Overview

                                                                                                By Achuth Kylas*

Karl Marx, the great communist philosopher held a vision in his mind,  that vision was projected through his book ‘ The Communist Manifesto’ ; The vision : Utopia’.

What, one may ask does this has to do with law?  In fact this idea of Marx has such a degree of intervention with law that it would be a great offence on our part if we, the forever students of law, do not recognize it and a much   graver one if we do not at least try to have a grasp at this splendid relation.  And now cutting to the chase of our prologue:    The relation is, the ultimate aim of the laws that we obey is to create an utopia – a land where all are treated equally, a land where no one tries to gain an upper hand over the other and most importantly a land without crime.  It is to provide this Utopian society that our judiciary try endlessly to uphold the laws of the land.

Once again one may be tempted to shout out  the question in an exasperated manner that what the above said mixture of words have to do with our topic in discussion?  The answer to that will now be given.

As esteemed scholars of law I hope that you concur with my humble opinion that laws are made to protect the society and to provide the society with guidelines so that the flow of social life would always be in an up-gradational manner.  Thus to ensure these objectives the law grants us certain rights and provides us with certain duties.  But for a society to develop, it has to grasp the strand of development in all its stages and where better to begin than at the epicenter of life: Childhood.

It is in childhood that a person can change the most, both physically and mentally.  As a child you can adapt better to a new surrounding with far more mental and physical ease than that of an older version.  As a child there is no limit to your imagination.  There are no mental barriers and complexes and, the most important aspect to us, there is no distinction between right and wrong.  Unfortunately it is this bliss of ignorance that puts us in a spot of bother.

Punishing a child, no matter how grave the offence is, still presents a challenge before any judge.  Fortunately the law aids the judge to an extend in that matter.  Sec. 82 (2) of the IPC is of the essence that,

            “ Nothing is an offence which is done by a child  under seven years of age ”[1]

It has been given so taking into account the innocence of the child as well as his incapacity to differentiate between right and wrong and his inability to understand the consequences of the act.  According to Sec. 83 (3),

            “Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct in that occasion.”[2]

It is this maturity factor that decides whether a child is accountable for his actions or not. But no matter, the state of mind, the understanding of the situation and the consequences of his actions, there is a limit to the degree of punishment that can be given to a child. Moreover here the IPC talks only about children who are up to the age of 12. The matter of a child above the age if 12 and below the age of 18 is not explained here but in the Juvenile Justice Act 1986.

Mahatma Gandhi once said that, “if every saint has a past then every criminal has a future”.  It is to achieve this future that punishments are given by law.  Punishments are given so as to ensure a bright future to the society including the criminal himself.  In the case of a child offender, special care should be given to his future for it is yet in a budding state and is not beyond repair.  He should not be exposed to the harshness of prison and the brutality of common trial procedure.  It will shatter his fragile physiological framework into a thousand unusable shards.

But before we set forth in to the legal aspects of the offences let us understand the causes for the commission of these offences.   The causes for the commission of the offences by children can be classified into two :

(i)         Social and Psychological causes.

(ii)        Economic causes.

(i).        Social  and  Psychological  Causes :

A child’s mind reacts differentially to the situation to which he is exposed to than that of an adult.  Thus the social situations of his life affect his psychological aspects of his mind.  It will affect him to such a degree that it might even affect his character and personality as an adult or even worse as a child itself.    A perfect example for the influence of bad socialisation   in a child is a   broken family.  A majority of virtues that are cultivated in a child are planted right at his family.  Imagine a child growing in a family where the father is unemployed gets drunk every day, beats up his mother in front of him; imagine the impact of this situation in the mind of the child.  The raw mind of the child may process the situation in many a manner.  He may find a fondness for violence.  He may take up his father’s example and start boozing even before attaining majority.  Due to these situations, he may turn to the outward society for help and may run into bad companies and thereafter develops a career of exceptional criminal record.  Or he may develop an aversion to his father and may commit an act which may even lead to the death of his father.  These are all nothing but possible probabilities of the situation. Thus I think, I am successful in establishing this aspect – socialisation plays a very important role in developing criminal nature in a child.

(ii)        Economic  Causes

There is close relation between crimes and economy.  The rich can afford their children to their whims and fancies.  But that is not the case of the poor.  They struggle to feed their child even twice a day.  Majority of child culprits belong to the lower strata of the society.  The poorly paid labourer parents cannot afford the   required necessities of the children.  Thus the children are forced to enter into the wilderness of the world even at their tender age.  Thus they are more vulnerable to social hazards like human trafficking, prostitution, theft and beggary

Now that we have had a peek at the causes of crimes committed by children let us have a sneak at the remedies provided by law.

Law in all its glory has taken in to account the physiological, physical and the mental make up of a child.  It is evident from the provisions laid down by the law both in the Code of Criminal Procedure and in the Juvenile Justice Act, 1986[3].          As per to the Code of Criminal Procedure,

            “No male under the age of 15 or a woman can be   summoned by the police as a witness to depose about the facts and circumstances in any case under investigation at any place other than that the place at which such male person or woman resides.”[4]

Here it is quite evident that the law cares about the impact, be it physical, mental or social, on the child.   The law has thus tried to protect him / her by providing them with a favourable surrounding. The Sections 9, 10, 11 & 12 of the Juvenile Justice Act facilitates the Government to establish Juvenile Homes, Special Homes, Observation Homes and After Care Organisations respectively.  This act on the part of law shows that the law clearly does not want the children to be scared by the harshness and brutality of prison and police procedures.  The establishment of such organisations ensures that the children get a good life and help them   secure their future.

The Special Trial Process:

The process of trial might have a lasting impression on the minds of the children. No matter the end result, the procedure itself may be overwhelming.  Thus taking these into consideration there has been an alternative set up for the trial of children.

(1) : Sec. 4 of Juvenile justice Act :   According to this section the state Government can constitute one or more juvenile welfare boards for discharging the duties conferred upon them in relation to the neglected juveniles under this Act. The Board shall consist of a chairman and such members as the state Gov. sees fit to appoint, of whom not less than one shall be a woman: and every such member shall be vested with the power of a magistrate under the Cr.P.C.

(2) : Sec. 5 of Juvenile justice Act :   This section facilitates the state Gov. to constitute one or more Juvenile courts for exercising the power conferred upon such court in relation to delinquent juveniles under this Act. such a court shall consist of such number of Metropolitan Magistrates or Judicial Magistrates of the 1^st class as the state Gov. sees fit, of whom one shall be designated as the Principal Magistrate

(3) : Sec. 6 of Juvenile justice Act :   This section provides that a person appointed as a member of the Board or as a Magistrate shall possess special knowledge of child psychology and child welfare.

(4) : Sec. 7 of Juvenile justice Act :   This section asks the Board or the Juvenile Court to hold its proceedings in a room which is different from the ordinary setting if a civil or criminal court.

(5) : “In camera proceedings”: The proceedings in a Juvenile Court ,for the sake of the child ,should not be publicized, thus its proceedings are “in camera” in nature i.e. at the time of trial no third person is allowed to be present in the court . If there are several unnecessary persons accumulated, the child may be humiliated and intimidated.

(6) : Sec. 29 of Juvenile justice Act : This section allows a guardian or parents who have a certain extend of control over the child to be present at the court thus providing the child with the mental support that he needs and destroying the feeling of loneliness that may engulf the child.

(7) : Sec. 3 of Juvenile justice Act :   According to this section , if an inquiry has been initiated against a juvenile and if during the course of which he ceases to be a juvenile then the inquiry may be continued as if he had been a juvenile. This is so because the law takes into account not the mathematical aspect of growth but the mental aspect of it.

The above said provisions are a good example which shows about how much care the Law puts into the future of children. Along with its understanding of the importance of children’s psychology and mental makeup the Law has exhibited a clear-cut hunger to protect the human rights of the children thereby ensuring a better future. This hunger of law to protect and guard the children is shared by the court of the country.    The courts recognize the importance of safeguarding the rights of the children.  They realise the fragile mind frame of the children.  Thus they try to the extend of their capabilities to provide the children with extra care and protection.  This attitude of the court can be reflected in the following cases.  Jose Maveli v. State of Kerala[5]. In this case there was undue delay in restoring the children to their parents.  Three children were found begging and they were taken care of by a Child Welfare Institution.  The said institution did not restore the children to their parents but, kept under custody of them for 2 years.

The Court held that according to Sec. 39 Restoration and Protection of a Child shall be the prime objective of any Child Home & Shelter Home.  The Court in this case recognised the importance of the child to be provided with a parental environment.  The court deemed such an environment to be important for the character development of the child.During the course of this trial the photos of a few of the children were published in a News paper. The Court held that such an act would morally and psychologically damage the mental make up of the child, the child would be singled out in the society and thus it would destroy the very basic aims of the Act. Amit Singh & Others v. State of U.P.  [6]. In this case it was argued that the Juvenile Justice (Care & Protection of Children) Act 2000 came in to force only after the commission of the offence by three children who were minors at the time of commission of the offence.  It was contended that that they could not obtain the protection given to them under this Act.  The court through its judgment in this case shows that it does not take in to account the mathematical age development but rather the mental development of the child.  The court dismissed the plea of continuance of the case in the Sessions Court and the case was transferred to the Board established under Sec. 4 of the Act.

These cases show the importance that the court holds in the matter of a child.  The court facilitates the child with a chance, and not a slender one of that, to regain his lost balance in life.  The court has understood the scars that could have been implanted upon the mind of the child had the legal battle taken place in the ordinary procedure.   Thus keeping in mind the extra special Human Rights considerations in mind the Court has produced such an order. The above said are nothing but a couple of examples of the degrees to which the courts of our country are prepared to go in order to protect the lives of the children.

One can say that the courts of our country had wholeheartedly taken into their folds the principles laid down in the UN convention of child which India ratified in 1992; it lists the following as the rights of the child:

Rights by U. N.

The UN convention on the Rights of Child which India ratified in 1992, lists the following as the Rights of the child.

v     The Rights to survival:  According to the convention, the “Right to survival includes the right to life, the attainable standard of health, nutrition and an adequate standard of living.  It  also includes the right to a name and nationality”.  These rights seek to  ensure that the children have nutritious food, potable drinking water, a secure home and access to health facilities.

v     The Rights to Protection:  According to the convention, this right includes freedom from all forms of exploitation, abuse and inhuman or degrading treatment.  This includes the right to special protection in situations of emergency and armed conflict.  The aim is simple, to protect vulnerable children from those who would take advantage of them and to safeguard  their minds and bodies.

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v     The Right to Development:   The right  includes the  right to be educated, to receive support for development and care during early childhood and to social security.  It also includes the right to  leisure, to recreation and to cultural activities.  This right seeks to ensure  that children can study and play with whomever they want, practice their own religion and culture and accept their own uniqueness of other cultures and religion.

v     The Right to Participation:   According to the convention, the Right to participation accords the child access to appropriate information and the freedom of thought  and expression, conscience and religion.  In addition to this, one ought to respect the views of the child.  The aim here is to see that the children are able to develop their own set of values and principles and that they have the opportunity to express themselves and their own opinions.

Apart from the Rights of Child   laid  down  by  the U. N.          Conventions following  are some of the Rights of child laid             down by different Acts  & the Indian Constitution.

v     No person below eighteen years of age shall be allowed to work in any mine or part thereof (The Mines (Amendment) Act 1983).

v     No child who has not completed his fourteenth year shall be required or allowed to work in any factory (The factories Act, 1948).

Long, long  ago,  in the  early 12^th  century, a Spanish scholar, Abraham Ibn Ezra wrote that,“ It is a known fact that every kingdom  based on justice will stand.  Justice is like a building.  In justice,   if there is a crack in  that building which cause it  to fall  without a moment’s warning”.In the case of a child, it is necessary that  his future and his present life be protected in a strong building of justice.  It is the duty of the Courts  and the society that they ensure  that  no cracks of any measure fall upon this building.

As we discussed earlier, to a large extend the society has a large  role to play in the crimes of a child. The harshness, deadly situations and the basic instinct of self preservation encourages the child to adapt a hostile mind frame and this mind frame forces the child to commit crimes.   The society should understand the important part that they play in shaping a child’s future.  They should also understand that they not only preserve the child’s future but in doing so, they preserve their own. It is in the hands of these children to day that the world of tomorrow lies. Gandhiji once said that, “All rights to be deserved and preserved came from duty well done”. Alexander Solzhenitsyn, the great Russian critic of the Communist Government once said that, “A man used to moving about the streets riding in a motor car can never understand a pedestrian”.

This is the situation of the upper learned class of the society.  They do not

understand the situations of the poor for they have not experienced it himself.

Yet they screech in harmony about their own rights.  They do not bother to look

into their duty to safeguard the future.  They shower their children with gifts and

faculties without even thinking what effect such an action may have on a poor child.

They do not even pause to think that overwhelmed by his desire to possess the

object of his fantasy the child might actually do some thing wrong, some thing

criminal.

            All the above being said and thought of, I still have a nagging feeling about  some thing.  This is a feeling that is  shared by many a persons who is concerned  about the society  of tomorrow. The question is, does all these protection to the child actually encourage or discourage  the child from committing  wrongs ? In the usual course of things, if a crime goes unpunished doesn’t   the  criminal get an encouragement to repeat the crime ? So, I say with a great weight in my mind that it would be unwise on the part of the judiciary to let the child go scot-free every time   he commits an offence.  Adequate social sanction should be given but, they should not be of such a degree of harshness that it would leave the mental framework of the child with a scar, permanently with an aversion towards law.  Children should be brought up happily and correctly.  It is this goal of life that the law should strive to uphold.

Ø      FOR   IF  THEY  SMILE  TODAY  …………..

THE  WORLD  SMILES  TOMORROW.