How should we treat juveniles who commit the most serious crimes? A view from India

The terrible gang rape of a student in New Delhi in December 2012 has provoked fierce debate about the treatment of juvenile offenders who commit serious violent crimes in India over the last 18 months. In July 2013, the Supreme Court rejected petitions to lower the age of criminal responsibility to 16 following a campaign by many organisations, including PRI. However, the government has now proposed that the law be amended to treat 16- to 18-year-olds accused of heinous crimes as adults. PRI’s Programme Development Director, Nikhil Roy, attended an expert debate (Critical Conversations) in New Delhi earlier this week to discuss the issue.

I attended this event, arranged as a response to a proposed Government of India Bill to amend the Juvenile Justice Act allowing for 16- to 18-year-olds to be treated as adults in cases where heinous crimes have been committed.

A panel of experts comprising Dr. Joachim Theis (Child Protection Chief, UNICEF India), Dr. Achal Bhagat (psychiatrist and psychotherapist), Ms. Suneeta Dhar (Director, JAGORI) and Ms. Atiya Bose (Director, Policy and Advocacy, Aangan Trust), discussed the impact of the proposed changes. The discussion was moderated by Ms. Enakshi Ganguly Thukral (Co-founder and Co-Director, HAQ: Centre for Child Rights).

Introducing the evening, the Chair of HAQ Urvashi Butalia said the critical conversations program has been designed to interrogate issues of importance every month around a range of topical issues including most recently media ethics, and also including women in the city, Dalit literature, etc. The proposal to amend the Juvenile Justice Act has evoked a range of responses and the evening’s discussion aimed to interrogate some of the issues raised in further detail.

Chairing the discussion HAQ Co-Director Enakshi Ganguly said the events on the night of 16 December 2012 changed the entire discourse around issues relating to the rights of women and children. She then posed the question as to why a separate juvenile justice system is needed.

Responding to this, Dr Theis made the point that children are different from adults with different needs and vulnerabilities. However the process of understanding and responding to these differences has been a long and slow one. In the early 19th century for example children were treated as adults and subject to the same punishments including capital punishment. The French revolution and the Enlightenment initiated a process of asking questions in a number of countries including in the UK where reform schools were eventually created to allow for separate treatment of children. This then initiated a slow evolution of a system of juvenile justice, including a probation system for children in the mid-19th century, with further developments in the early 20th century and with a separate system finally being enshrined in the Convention on the Rights of the Child (CRC) in 1989.

In terms of international experience it is important to note that the issues around juvenile justice have probably been most researched with a body of guidelines developed following the adoption of the CRC. A lot of evidence has now been accumulated from different countries including evidence on child development and evidence on what works. The evidence has been gathered around two main approaches:

• rehabilitation therapy and reintegration
• adopting a punitive approach, punishing children with a view to protecting society.

While all the evidence shows that putting children into institutions, locking up, putting in institutions with adults does not work, unfortunately it remains the case that there continue to be calls for harsh punishment when there is a serious crime.

Taking the discussion forward, Atiya Bose spoke first about the misuse of statistics to create a fear factor relating to juvenile offenders. While a storyline has been created which suggests 50% of all crime is committed by children and therefore the laws relating to juvenile justice needed to be made more punitive, the Government’s own numbers do not support this theory. The fact remains that the actual figures relating to juvenile crime as a percentage of adult crime have consistently remained in the range of 1.0-1.2% over the last decade. In 2013 the number of young offenders apprehended (not convicted) for the crime of murder was 845 (1.3 % of all murders committed throughout the country). At the same time 1,388 young offenders were accused of rape (3.2% of all rapes in the entire country).

While the numbers do not stack up, it also remains the case that provisions contained within the existing Juvenile Justice Act have not been implemented and the reality is that rehabilitation is done in an ad-hoc way. Experience shows that given a chance young offenders, even those who commit heinous crimes, are able to change and can be rehabilitated. What is needed is proper implementation of multi-systematic interventions including mentorship, working with families, cognitive behaviour therapy and the use of positive role models.

Speaking on the issue of child development, Dr Bhagat said a myth has been created that children nowadays mature faster. While it is true to say that children do have access to more information and a wider vocabulary range, however the parts of the brain which assist with decision making processes develops much more slowly. The issue of maturity is not about access to information but ways of processing information including having the foresight to understand consequences.

Those in the 14-18 age group will make decisions which may not be the same as those made at 21, and this is because more often than not the decision making part of the brain matures slowly. This is what the science says, and although there may be exceptions, the law should not be based on exceptions. It is important to understand that an adolescent is not ready to be as blameworthy as an adult and is less well equipped to face an adversarial judicial system. The consequences of imprisonment can be traumatic, more so for juveniles.

While there is clear evidence to demonstrate that juveniles are willing to change if multi-systematic intervention is offered; there are unfortunately not the resources in place to do this and not enough trained personnel to offer the services needed. What exists in India is a boot camp scenario and this simply doesn’t work. In fact the Indian Supreme Court has said there is no evidence to demonstrate that the system in place is being implemented, so the calls for changes cannot really be justified.

Suneeta Dhar began her intervention by challenging the assumption that the proposed amendments to the Juvenile Justice Act will in fact make women safer. Statistics show most reported cases relate to domestic violence, and to child sexual violence within the home. India is a deeply unequal and patriarchal society and before jumping into making legal amendments and creating new laws there should be a debate about what sort of society is needed. Core values need to include at a very minimum:

• valuing life
• making investments to help children.

Children involved in serious crime cases have never had any sort of childhood. The arguments around the events of 16 December 2012 have unfortunately pitted the offender against the parents of the victim; this should not happen. While the views of the victim need to be respected and steps taken to assist with the healing process (understanding that the scars of certain losses will remain forever), the treatment of the offender should be addressed alongside as well.

There can be no justification for rape (or murder, or even petty offending); however the issue is not justification but what should happen to that person? Transfer to the adult system, which evidence shows does not address rehabilitation, is not a solution; retributive justice only allows for short term solutions, but longer term remains a problem. Sitting locked up in a jail does not help anyone to reform, not adults and certainly not children.