THE STATE OF INSTITUTIONAL TREATMENT OF CHILDREN IN CONFLICT WITH LAW IN INDIA: WHAT IT IS AND WHAT

Tanisha Prashant, 4th Year, Institute of Law, Nirma University

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(Image Source: CHILDLINE India Foundation)

We are guilty of many errors and faults; But our worst crime is abandoning the children, Neglecting the foundation of life, many of the things we need can wait, The child cannot wait; Right now is the time, His bones are being formed, His blood is being made and his senses are being developed, To him, we cannot answer ‘tomorrow’; His name is ‘today’.

- Gabriel Mistral

BACKGROUND

In the year 2019, 7.2% of crimes were committed by children in conflict with the law. A child who is alleged or found to have committed an offence and has not completed the age of 18 years on the date of commission of such offence is called a child in conflict with the law. [1]The crimes committed by him can be petty, serious, or heinous i.e. can range from pickpocketing to crimes like rape and murder.

Every child who comes in conflict with the law is a child who has been in some way failed by society and deprived of a safe and healthy childhood. A child is a doli incapax [2]and cannot be solely held responsible for his/her actions. Many situational and contextual factors like unstable families, traumatizing experiences in early childhood, exposure to criminality, harsh discipline, and constant mental and physical abuse have been found to be reasons for delinquency.[3] It has rightly been said that “a juvenile delinquent is nothing more than a poor child caught in the struggle for survival”. Therefore, children owing to their vulnerabilities cannot be treated equally with an adult under a criminal justice system.

Justice under a child rights framework advocates against the justice system designed for adults. As per articles 37 and 40 of the Convention on Child Rights, the juvenile justice system needs to aim for the rehabilitation and reformation of a child. It should promote their sense of dignity and aim at reintegration into society in the best possible way.

The legal response to rehabilitation and reformation of children in conflict with the law in India has been Institutionalization. Under the Juvenile Justice Act, 2015, the Juvenile Justice board can deal with the child in 6 ways, may :( 1) Allow the child to go home after advice or admonition. (2)Direct the child to participate in group counseling and similar activities. (3) Order the child to perform community service. (4)Order the child, or parents of the child, to pay a fine. (5)Release the child on probation of good conduct. (6) Direct the child to a special home for a period not exceeding three years. It is this last option available at the disposal of the juvenile board that is most used by the board to deal with children in conflict with the law and has posed most problems in the realization of child rights and especially the rehabilitation of children in conflict with the law.

Institutional care under the Juvenile Justice Act, 2015 takes place in institutions like - (1) Observation Homes which are temporary reception facilities for juveniles during the pendency of their inquiry.[4] (2)Juvenile Homes or Special Homes are places where Neglected and delinquent juveniles are sent here for education, vocational training, and rehabilitation.[5] (3) After-care organizations are created for the purpose of helping the child reintegrate better into society after leaving Juvenile homes.[6]

The goal of these institutions has been enshrined in the Beijing rules 1985, which states that- “The goal of institutionalization should be on assisting young people in becoming productive members of the society”. Moreover, it establishes as a basic rule that in every aspect of the juvenile justice system the best interests of the child should be ensured. All the dealing should be child friendly and he/she must be given adequate opportunity to express his/her views freely to the best possible extent.

However, as per the guiding principles under the Child Rights Convention, also considered the Magna Carta on the rights of the child, institutional treatment of children has to be done as the last resort while dealing with the child. Yet the children in India seem to have faced the most institutional treatment.

JUVENILE HOMES IN INDIA – A PITIFUL STATE OF AFFAIRS

Contrary to all the international principles present, the status of juveniles in these facilities is deplorable. In India, about 1.7 million children alleged to be in conflict with law languish in more than 815 Juvenile correction homes which have turned into second-class prisons. A child goes inside these places because of his/her innocence and vulnerabilities but comes out losing his childhood forever. In 2013 the Asian center for human rights made a report titled India hell holes: child sexual assault in juvenile justice highlighting the dismal state of affairs of these facilities. What was the condition during the making of the report that has been worsened in the past years owing to increased crime rates?

Inmates are subject to sexual assault, exploitation, torture, ill-treatment, and inhumane conditions of living. New children are subject to physical and sexual abuse by older youth living in the observation homes. Children are neither regularly monitored by experts nor are provided regular skill development sessions. The whole object of sending the children to these places is to provide psychological support to them so that they are able to develop their skills and deviate away from crime. However, the conditions in these homes make them more notorious and rigid, thereby subverting the whole purpose of the provision. The purpose for the creation of these “homes” was to aid the children and keep them away from the rigors of criminal law, yet from the police to the caretakers in these homes, everyone terms them as murderer, rapist, thief and abuse them on their acts rather than focusing on their care. Moreover, issues like lack of trained staff, low budgets, corruption, and little assistance from the government have plagued these institutions even more. Children tend to form groups and gangs which they continue even outside these places which never let them escape the shackles of law and crime. Even when they are released the society offers little rather no support to them. The families of these children are roughed up by the police regularly which worsens the societal baggage for the children.

What is wrong with these facilities is that they ‘abuse the already abused’ children. They have failed to internalize the fact that every child in conflict with the law is first a “child in need of care and protection”. The whole object is to give the child a second chance in rebuilding his life. Moreover, the statute from which these institutions derive authority i.e. the Juvenile Justice act is meant for “care and protection” of the child and not punishment. These institutions in their neglect tend to bypass the legislation and defeat its purposes.

Juvenile confinement is a very important part of the juvenile justice system and yet has often been overlooked. Juveniles have come to become the least priority in policymaking. Confinement for children in conflict with law works on the principle of care and response to their delinquent behavior. The aim here is reformation and not punishment. Confinement should be restricted to only those children who have done serious or heinous crimes and may pose a threat to other children in society or to society as a whole. In these facilities, the basic needs of the child need to be catered through proper and special care to each child. The functions and the environment of these homes should help the child to reintegrate himself into society and look towards a bright future. Positive disciplining should be carried out through life and vocational skill training programs which should bring positive stimulation and development in them. Regular counseling sessions with individualized care plans have to be made and revised regularly.

CONCLUSION

Children are vulnerable and open to all kinds of exploitation. It is the duty of society and the state to protect these young minds. Society has to respect the children, it has the duty to protect them from exploitation and provide them a free and healthy world. The state, on the other hand, has to treat the children as right bearers and take them as stakeholders in policymaking. It has to open up all the avenues for the children that will help them attain the best environment by providing them with healthier institutions and services.

Internalization supersedes institutionalization; the stakeholders responsible for administering juvenile justice have to be sensitized about the problems and needs of the child rather than merely giving them handouts for the same. They need to be trained to deal with each child separately on a case-to-case basis and help them reform and reintegrate into society.

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[1] Section 2(13), Juvenile justice (Care and protection of children) act 2015. [2] Heeralal vs state of Bihar AIR 1977 SC 2236. [3] Asha Bajpai, Child Rights in India, Oxford University press,(2017) [4] Section 11, Juvenile justice (Care and protection of children) act 2015. [5] Section 9 and section 10, Juvenile justice (Care and protection of children) act 2015. [6] Section 12, Juvenile justice (Care and protection of children) act 2015.

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(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)