Children in Conflict with Law
The juvenile population in India is increasing day by day and we are going to be the country with the highest young population by 2020. At the same time, the issue of juvenile delinquency is alarming due to various reasons. The country faces many challenges with its constitutional commitment and also being a signatory to the United Nations Convention of Rights of the Children for protecting and promoting child rights in India. However, the status of children and the crimes committed by children give a grim picture about our children. Therefore, this article analyses the various challenges of juvenile delinquency
The first thing came to my mind while writing this article is the famous quote by John F. Kennedy “children are the world’s most valuable resource and its best hope for the future”. This saying has considerable significance for a country like India with its child population accounting for 40% of the total population with more than one-third below the age of 18 years and while India has the largest young population in the world.
By 2020, India is set to become the world’s youngest country with 64 per cent of its population in the working age group, and with the West, Japan and even China aging, this demographic potential offers India and its growing economy an unprecedented edge that economists believe could add a significant 2 per cent to the GDP growth rate. As India is also the aspirant to be a world leader it needs to look at the status of children of this country. How their various needs are taken care of? How conducive is the given atmosphere in protecting and promoting their rights and existence? How the systems are in place and supportive for children in ensuring a good future? Hence the need of this decade is to focus and invest in the juvenile population and while doing so some of the facts given below necessitate reflections and debates.
Juveniles in India
Being the signatory to the UN Convention on the Rights of the Child means we have committed to the four sets of civil, political, social, economic and cultural rights of children, by taking substantial measures in ensuring the rights of children for Survival, Protection, Development and Participation. However because of their special status whereby children need extra protection and guidance from adults, children also have some special rights of their own. We are committed to treat both girls and boys equally up to the age of 18, even if they are married or already have children of their own. We are also agreed upon the importance of the family and the need to create an environment that is conducive to the healthy growth and development of children. The state obligates to respect and ensure that children get a fair and equitable deal in society. The above said laws are guided by the principles of ‘Best interest of the child’, ‘Non-discrimination’ and ‘Respect for views of the child.
If we critically look at each component of the Survival, Protection, Development and Participation rights, in the implementation process there exists, a number of discrepancies.
The right to life has been denied for girl children as their sex ratio is decreased with just 918 girls per 1000 boys. According to the census 2011, the child sex ratio has reached its lowest levels in the country since 1961. The highest attainable standard of health includes the right to food, housing, work, education, non-discrimination, access to information, and participation. However, these have not been fulfilled as we see that still in 2011 it was estimated that over 40 per cent of children in India were under-nourished and malnourished despite at 7% plus average GDP growth rate achieved. According to UNICEF a third of the world’s malnourished children live in India with nutritional deficiency due to poverty in their homes. Hence access to health care for children is also an area of concern. In totality we have incidences of denial of basic survival rights. Besides the right to be born is denied to girl children, there is denial of minimum standard of food and shelter as many children live in the streets. Countless children are without adequate clothing and are denied the right to live with dignity due to their caste and made to do inhuman practices even in schools as they were forced even to clean the toilets.
Protection and safety are least observed for children due to the vulnerability of their age. They are abused physically, sexually, emotionally and neglected a lot. India has the highest number of child labourers and the current child labour Act of 2015 allows children between 14-18 years in hazardous employment and also allows children below 14 years to engage in home enterprises. The present law is regressive as it may lead more children into child labour. Similarly, the number of missing children and trafficking of children are furthermore on the rise with continued rise in sexual exploitation in schools, a second home for children where every child needs to be in safer hands and ensured protection. Despite the affirmative laws for prevention of corporal punishment and POSCO Act, the news papers are flooded with the news carrying sexual and physical abuses of children, and even deaths of children in various unnatural circumstances.
Right to Participation
The right to participation of children is a new phenomenon to Indian houses as culturally children are expected only to obey what the elders say. The children seldom have choices in selecting their education, friends, and have no say in their developmental activities. The rising number of child marriages is an example of the denial of rights of participation especially for girls in decisions and matters related to their life.
Right to Development
Negligence of right to development is a main cause for children coming in conflict with law as the space for children to have a healthy emotional, mental and physical development is very minimal and steadily it is shrinking. The children are denied love and care from the family they are conditioned in their tender age in the name of education. Mental development and learning seldom happen in the present educational system as it expects the child only to memorize the lessons, and their latent faculties and creativity are hidden or not brought out.
As it was stated earlier nearly 40% of the children are deprived of nutrition and for them recreation is mostly self-driven, as the facilitation for proper recreation and play is hardly ever happening for the children from the low income groups. Children gathered from the poor households evolve their own recreation. Mostly evolved due to the influence of visual media and the kind of recreation often promote violence and sexual abuses. Frequent continuation of these kinds of activities gradually leads them to be the children in conflict with law. When the children are denied the ensured rights they are either becoming victims or perpetrators of violence. While the children are forced to drop out from school mainly due to poverty and lack of guidance in schools she/he is denied of right to development and it shows them the way into the labour force. The disoriented status of these children hooks them on to petty crimes that lead them gradually to all sorts of delinquencies.
Despite the number of laws and policies for children we find quite a number of children termed as juvenile delinquents. The increase in delinquency has been alarming. The acts that protect child rights are yet to get a momentum as we see the violation of such acts by all the stake holders. From the above analysis it is concluded that juvenile delinquency or child in conflict with law is the impact of violation of ensuring the rights of children by the state and the society. Conflict with law by children is one of the blatant results of a chaotic state and the society. Hence we need to focus on reducing the delinquent behavior of the children and ensuring the rights enshrined for them.
Who is Juvenile Delinquent?
“Child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. Between 2010 and 2012, there was a 233% increase in juveniles getting apprehended on rape charges in Tamil Nadu. It has also been observed that the share of teens aged between 16 and 18 in juvenile crimes has steadily increased. From 48.7% in 2002, it has gone up to 66.5% in 2012. In 2011, it stood at 63.9%. The juveniles in the age group of 16-18 are involved from petty thefts to murder, rape, and child abuses questioning the modesty of women, kidnapping, trafficking and other planned crimes along with adults. They are being used in many cases by adults in planned crimes by offering small rewards.
Child Under the Indian Laws
Highlights of Juvenile Justice Act 2015
Making of a Juvenile into a Delinquent
The reason for the children to be the most vulnerable victim is the manifestation of how the society is functioning with the patriarchal values. In India all the societal structures are patriarchal in nature which have the supremacy over the marginalized whether women, children or the deprived classes. Patriarchy does not approve or seek the consent of the ones whom they term as inferior and decide only in favour of the superior or the authority. It does not value the concept of equality, but practise only hierarchical structure wherein women, children and other deprived sections are considered only the task bearers.
Practice of this value premise as an age old tradition in the Indian society, produces women and children as the victims of different structures. Therefore the above value premise contradicts the constitutionally approved democratic and egalitarian values, which make many children in conflict with enforcement of law. Almost every Indian family is the practitioner of this value which often brings conflicts in the society.
The socialization starts even while the child is in the womb as according to various studies the foetus is influenced by the social atmosphere specially the mental health of the mother. Receptiveness of the society during the infancy onwards influences the socialization process of the baby. The cradle of first socialization is the home. However the ignorance about the importance of children by parents gives them a casual attitude in child rearing. The families that fail to imbibe values often regret later after seeing their wards in delinquent behavior. Spending quality time with the children seldom happens in the families in which both the parents bear the economic responsibility. The nuclear nature of the families leaves the child at the mercy of the society from which he/she learns many things compromising the just values. The families are assimilated with the patriarchal values where women are discriminated and less respected, and the children learn from the messages. The socialization process reinforces the patriarchal value premise and in the adolescent age she or he wants to adapt the role models picked up from the society. There is a huge possibility of these children becoming disoriented as there is no proper guidance and disciplining from elders.
Violence in the Families
Poverty is stated to be a reason for the delinquent behavior. Inadequate income of the family due to unemployment, sickness of the parents and insufficient social security measures lead to poverty in which the children are deprived of the rights of survival and development.
While the parents have substance use habit children also often become the victims of violence and substance abuse. As we see most of the children who are in conflict with law are from poor and problematic homes. Mostly children in conflict with law are working children and their desire for a better quality of life makes them indulge in thefts to earn quick money to posses gadgets. These children while earning also tries to make their own decision about the utilization of the money which many a time go against the need and value of the families. The economic independence in the tender age pampers them to delinquent behavior. As we see the age group of children in conflict with law most of them are school drop outs and working children.
Studies show that those who have not indulged in the habit of substance abuse below the age of 18 will not get into that habit. A child getting into the habit of substance abuse in their teens, implies the availability of this substance to children below the age of 18. This is against the law of protection of child rights, though there are warnings against the sale of substance to children below the age of 18yrs.
Contradictions in the Educational System
Education liberates a person from the darkness of ignorance to the light of knowledge, and assures economic and social emancipation. The realization of the importance of education made education an inevitable element of today’s society. This is evident from the number of educational institutions that have come up.
The present education system in India admits the children in a very tender age of two and half years which means the role of parent has been taken up by the school. And most of the productive time of the child is spent in the school. The interaction between the parent and the child confines to matters related to schools especially on adhering to the task of home work. A child’s learning in the initial years of life is crucial. For example, the child hear most often the words “don’t talk and keep silent”. The school makes the child to be obedient and silent. And this type of approach yields only blind obedience for doing tasks. Here the child is denied of the opportunities of kindling her/his inquisitiveness by questioning why, how, when, who, where, etc. If the child is not able to use the faculties of questioning, the learning process does not take place as it should be. Though the child learns to be obedient the creativity of the child does not come out. The system also expects the students to memorize the subjects than understanding the concepts. The best student is the one who has the capacity to memorize more. And those who are unable to cope with the system are branded weak and poor, and these students may dropout from school and are thrown out to the streets. The education system and the parents are unable to recognize the faculties of the child. And this happens mostly in the high school. These children leave the formal education system and land up in child labour and other types of delinquent behaviours. According to the 2011 census out of 100 children enrolled in schools, only 14 are continuing after high school, which is the lowest percentage in the world.
Some major gaps in the education system are:
a. The parents lack skills in parenting and fail to give adequate parental care in the early age.
b. Individual faculties of children are not recognized and children are type casted.
c. Lack of parenting skills of the teachers
d. Absence of value education in schools.
Due to the upsurge of consumerism and business of education, many schools have sprouted even in the remote corners of the country which attract all social classes from both the rural and urban areas to educate their wards. As there is heavy increase of private schools with English medium education, the government schools in regional medium are neglected by the general masses. In this context the Government of India has brought out the constitutional amendment for Right to Education through free and compulsory education act. The act says that all the private schools should allot 25% of the seats for the children of the poor. However, data show that these schools have not completed even 7% of the target during the last five years. The reasons cited for the poor enrollment are the distance of private schools from the residential areas of the poor, inability of the government to settle the accounts due for the private schools, unwillingness of the school authorities to admit children from the poor sections, lack of advertisement for enrolment of the poor students, and discriminative attitude of school authorities. The educational system is unequal and it produces discrimination among students. The students who are unable to cope with the above system may naturally drop out, and many come into conflict with law.
We can see the increase in the enrollment ratio and literacy rate. Simultaneously it has also increased the dropout rate as the affordability of the parents from the marginalized class is poor to retain their wards in the private schools. Though the government of Tamil Nadu is providing the basic necessities for education, other incidental costs are unaffordable for the poor parents. Hence the children stop going to school and gradually end up in drop out. Hence there is a huge possibility of these children becoming disoriented as there is no proper guidance and disciplining from elders. The data also support the trend as it shows that 10.5 % of the crimes are committed by the students in the high school and above.
Internet: a Boon or a Bane?
The last one and a half decade saw the unprecedented development of internet and it has been easily accessible to all. There is no age limit and time limit for accessing information. Today’s generation is flooded with information and they are experimenting with it. There are many positive outcomes, however, there are many negative impacts when it is misused. The increase in teens involving in delinquent behavior after the revolution of mobile phones and social media have been manifold. A new kind of theft by juvenile includes is robbing mobile phones and there are juvenile gangs in Chennai trains to rob mobile phones. There are incidents shared by a school principal about the deviant behavior of the students misusing the internet. On enquiring about the absenteeism of some students with their parents, the parents replied that their wards had already left for school; while probing it was found that the students were gathered as a group and watching pornography downloaded from the net.
Many juveniles misuse social network and many girls are sexually victimized. With the intrusion of global media, the mode of interaction has changed in the Indian homes. Juveniles become the decision makers in buying consumer goods and adopt the life style portrayed in the advertisements. These advertisements often violates the ethics of child rights. The portrayals in many movies and TV serials are sexual attraction and violence. Heroism is applauded when a women’s modesty is violated and women are portrayed as sexual objects in the visual media. In the home or in the society the child grows up seeing the ill-treatment and discrimination of women. The visual image is powerful and it influences the young minds easily and the above situation was also aggravated due to the absence of a strict media policy. There are many cases reported by police that the inspiration for committing crimes came from watching particular movies or TV serials. The typical example of this is the murder of a school teacher few years back by a 9th class student in Chennai.
Understanding Juvenile Physiology
According to scientists “the brain development of an adolescent keeps going well into adulthood. As children become teenagers, their brains grow and change. These changes affect their thinking and behaviour. This brain remodeling happens intensively during adolescence, continuing into the child’s mid-20s. The prefrontal cortex is the decision-making part of the brain, responsible for the child’s ability to plan and think about the consequences of actions, solve problems and control impulses. Changes in this part continue into early adulthood. Because the prefrontal cortex is still developing, teenagers might rely on a part of the brain called the amygdala to make decisions and solve problems more than adults do. The amygdala is associated with emotions, impulses, aggression and instinctive behavior” (WHO, 2014). The variations in understanding the above physiology by the law/policy makers, parents and the education system affect their approach to juveniles.
The children in a particular observation home are from the neighbouring four districts in Tamilnadu. The total children in the home are 76 boys. And what is noticeable is that among the total, 64 of them are from the age group of 16-18. The first time defaulters had a bewildered look and their relatives told that their wards were taken away by the police and remanded them for petty thefts. The boys were escorted by police from the place of crime in a police jeep to the observation home. No social worker or member of the Juvenile Justice Board (or the Child Rights Committee) accompanied them.
One woman said that her son was just standing near the crime spot as a spectator when there was a scuffle between three persons which ended up in an attempt of murder. Two adults and her son were taken into custody by the police and the boy landed up in this home. She feared torture. She was helpless to take him on bail. She said that the child was crying and asking the mother to take him back home. This 16 year old boy was working as a labourer.
Another child, 16 years of age and a school drop out with single parent, caught while stealing a mobile phone. His mother and other relatives feel that it is due to peer pressure that their child had landed up in such activities. Some parents said that their children were with friends’ groups when the occurrence of crime took place and the police has taken them to custody though they did not do any crime. School going children caught in minor crimes are also brought to the observation home, but allowed to continue their studies.
The family atmosphere is lacking in the observation home. Therefore the children with delinquent background again exposed to children of similar background.
The care takers of juvenile homes are of the opinion that the children in the observation home have to be dealt with by the police as they have committed crime. This shows the insensitivity and inability of the staff to understand the delinquent behavior of the children and to treat them as children.
Investing in the future of our children is investigating in the future of our country. Therefore every adult has a social responsibility in facilitating a conducive atmosphere for children free from all sorts of abuses, ensuring protection and safety to their life, and restraining them from falling victims of delinquent behaviours.
Juvenile Justice Act (Annexure)
General Principles of Care and Protection of Children
The Central Government, the State Governments, the Board, and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following fundamental principles, namely:-
Juvenile Justice Board
State Governments shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.
A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate or First Class.
No social worker shall be appointed as a member of the Board unless such person has been actively involved in health, education, or welfare activities pertaining to children for at least seven years or a practicing professional with a degree in child psychology, psychiatry, sociology or law.
Child Welfare Committee
The State Government shall by notification in the Official Gazette constitute for every district, one or more Child Welfare Committees for exercising the powers and to discharge the duties conferred on such Committees in relation to children in need of care and protection under this Act and ensure that induction training and sensitisation of all members of the committee is provided within two months from the date of notification.
The Committee shall consist of a Chairperson, and four other members as the State Government may think fit to appoint, of whom atleast one shall be a woman and another, an expert on the matters concerning children.
The District Child Protection Unit shall provide a Secretary and other staff that may be required for secretarial support to the Committee for its effective functioning.
No person shall be appointed as a member of the Committee unless such person has been actively involved in health, education or welfare activities pertaining to children for atleast seven years or is a practicing professional with a degree in child psychology or psychiatry or law or social work or sociology or human development.
No person shall be appointed as a member unless he possesses such other qualifications as may be prescribed.
No person shall be appointed for a period of more than three years as a member of the Committee.
Rehabilitation and Social Re-integration
The process of rehabilitation and social integration of children under this Act shall be undertaken, based on the individual care plan of the child, preferably through family based care such as by restoration to family or guardian with or without supervision or sponsorship, or adoption or foster care:
Provided that all efforts shall be made to keep siblings placed in institutional or non-institutional care, together, unless it is in their best interest not to be kept together.
For children in conflict with law the process of rehabilitation and social integration shall be undertaken in the observation homes, if the child is not released on bail or in special homes or place of safety or fit facility or with a fit person, if placed there by the order of the Board.
The children in need of care and protection who are not placed in families for any reason may be placed in an institution registered for such children under this Act or with a fit person or a fit facility, on a temporary or long-term basis, and the process of rehabilitation and social integration shall be undertaken wherever the child is so placed.
The Children in need of care and protection who are leaving institutional care or children in conflict with law leaving special homes or place of safety on attaining eighteen years of age, may be provided financial support as specified in section 46, to help them to re-integrate into the mainstream of the society.
Adoption shall be resorted to for ensuring right to family for the orphan, abandoned and surrendered children, as per the provisions of this Act, the rules made thereunder and the adoption regulations framed by the Authority.
Adoption of a child from a relative by another relative, irrespective of their religion, can be made as per the provisions of this Act and the adoption regulations framed by the Authority.
Nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoption and Maintenance Act, 1956.
All inter-country adoptions shall he done only as per the provisions of this Act and the adoption regulations framed by the Authority.
Any person, who takes or sends a child to a foreign country or takes part in any arrangement for transferring the care and custody of a child to another person in a foreign country without a valid order from the Court, shall be punishable as per the provisions of section 80.
The prospective adoptive parents shall he physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.
In case of a couple, the consent of both the spouses for the adoption shall be required.
A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.
A single male is not eligible to adopt a girl child.
Any other criteria that may be specified in the adoption regulations framed by the Authority.
Age of Criminal Responsibility
In India the criminal responsibility of children has been defined in the Indian Penal Code. Section 82 of IPC has defined that “nothing is an offence if it is committed by a child less than seven years of age.” Further, Section 83 of IPC has also defined that nothing is an offence if it is committed by a child above seven years and less than twelve years, who has not attained sufficient maturity or understanding to judge the nature and consequences of his conduct on that occasion. But, the age of criminal responsibility varies from country to country. Criminal responsibility means the level of maturity of a person who commits a crime. In crime and delinquency, the mensrea or the actusrea has to be established and this is the base for providing punishment. In the case of children the possibility of establishing mensrea or actusrea is not feasible.
In the context of age, there were two contrasting senses of criminal responsibility. The first sense concerned the capacity of a person to engage in criminal conduct. The second related to the process whereby a person was held answerable for such conduct. The distinction between responsibility as capacity and as answerability was important for the more pragmatic outcomes. Therefore, children do not deserve punishment, at least in any sense of criminal punishment, in the same way as adults. After all, they are only children and do not have the same level of development of their mental and intellectual capacities as adults. (Gerry Mather, Professor of Criminal law).
Juveniles involved in IPC crimes (Source NCRB, New Delhi)
Founder Trustee, Center for Women Solidarity Network (CWSN)
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