Procedure of Rehabilitation and Social reintegration of Children

INTRODUCTION

Crimes committed by children have always been the concern of almost every society. Because of the immature and innocent approach of children, they are more prone to absorb their surroundings and often lack the knowledge of the consequences of their actions. Due to this factor only, it has always been believed that children should be dispensed with justice differently than the adults, who have a reasonable knowledge of their actions. Re-habilitation means the process of restoring someone (such as a criminal) to a useful and constructive place in society[1] whereas Re-integration means the action or process of integrating someone back into society.[2]

These two processes are considered to be the most effective ways to cope up with the children in conflict with the law. There are various factors, legislations, conventions, procedures set up to confront. Such situations affecting the children’s overall development and to find effective measures to chisel out children into responsible citizens in order to have a crime-free society. But in spite of having all these measures, it seems that cases of Juvenile Delinquency are rising at an alarming rate.

In India, according to the National Crimes Bureau, from 2010-14, the cases of Juvenile Delinquency have constantly increased. While in 2015-16, there has been a 7.2% rise in the crimes committed by juveniles. To be meted out with the question of justice in regard to Juvenile Delinquency and the procedure of Juvenile Rehabilitation and Re-integration in society, there are several controversies that arise and are at a constant struggle to be resolved.

MEANING

In the introduction we have gone through the terms like Juvenile, child in conflict with the law, and Juvenile Delinquency, which must be understood in order to get along with the topic properly.

Juvenile means any person who cannot be regarded as an adult or in words a child who has not attained the age of majority is known as Juvenile. The word comes from the Latin word ‘juvenīlis’ which means ‘youthful’. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, also known as the Beijing Rules, defines a juvenile as: “A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offense in a manner which is different from an adult.”

The age at which a child attains majority, differs from jurisdiction to jurisdiction. For example, In India a child is no more minor one he attains the age of 18 years, while in countries like Japan and Taiwan, it is 20 years. One thing to mark here is that the age of criminal intent may differ from the age of majority.

‘Child in conflict with law’ or ‘Juvenile Delinquency’ can be used similarly, a child or juvenile who violates the law by committing any crime, anti-social activity, can be called as Juvenile Delinquency. James Burfeind and Dawn Bartusch in their Juvenile Justice: An Integrated approach defines juvenile delinquency as: “Actions that violate the law, committed by a person under the legal age of majority.”

Dealing with these children makes Juvenile Justice a very sensitive matter. The concept of Juvenile Justice has emerged with an advanced understanding of child psychology. Article 5 of the Beijing rules lay down the aims of juvenile justice as: “The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offense.”

EVOLUTION OF JUVENILE JUSTICE SYSTEM

The evolution of the Juvenile Justice System can be traced back to not more than a century ago. For the purpose of our understanding, it is to be divided into: (1) International Evolution and (2) Indian Evolution.

INTERNATIONAL EVOLUTION

In earlier times, Juvenile Justice was a not a very well defined system. Often, Juveniles were also treated like adults; they were punished in the same order as adults. But later, with the evolution of human sciences, it was thought that the innocence and capacity of a child to know the nature of wrong committed by him must be kept in mind. Let us trace its origin.

HISTORY

• The traces of Juvenile recognition can be found under English Laws of Equity where courts of High Chancery were given the responsibility by the Crown to act as parents to protect the interest of the child whose property was in jeopardy. This was known as the doctrine of Parens- Patriae (at the place of parents). However, there was no recognition given to Juvenile Delinquents.
• Under Common Laws, the Juveniles were mainly classified into three age groups. Below the age of 7years, was the first age group, all children less than 7 years of age were considered infants and it was believed that they did not know the nature of their wrong and thus could not be found guilty of their felony[3]. The second age group consisted of the offenders, above 14 years of age, and they were considered able to understand the nature of their crime and thus treated the same as adult offenders. The third group was between the age of 7 years and 14 years of age, this was mostly the difficult zone to determine the offender as an adult or infant. Thus if a child understood nature of the wrongs committed by him, he was treated as an adult in the second group of age above 14 years, however, it does not know the nature of the crime, he was considered to be treated as an infant in the first group i.e. below 7 years of age.
• In 1704, Pope Clement XI introduced the separate instructions for the better treatment of Juvenile offenders. Subsequently, the Reformatory Schools Act, 1876, and Industrial Schools Act were passed in Britain.
• Later in the 19^th century, with changing trends of dealing with juvenile offenders, special facilities were constructed. In the US, Chicago and New York were the first two cities that set out to treat juvenile offenders separately from adult offenders. In 1899, the first Juvenile Court was opened by Cook County Illinois.
• The main aim of these courts was to rehabilitate juveniles by removing them from their homes and moving them to rehabilitation institutions for their overall development in the best way possible rather than punishments. This was based on the English Common Law doctrine of Parens Patriae, although courts did not carry the same functions but it helped in the improvement of a child which will help in becoming a responsible member of the society. We can say, it was an upgraded version of the doctrine of Parens- Patriae.
• In 1963, in the case of Gideon vs. Wainwright [4] US Supreme Court held that every citizen, including a juvenile has the right to have an attorney in a criminal proceeding and right to a fair trial. However, depending on the age of the offender and nature of the crime, the rule of Bind Over has to be applied which, as we have discussed earlier, means to determine whether a juvenile will be treated in the age group of above 14 years as an adult or below 7 years as an infant, depending on his/her understanding of the wrongs committed.
• In re Gault case[5] of 1976, US SC settled the Juvenile constitutional trial rights. But even after this case, rights to have their cases proved were not settled until in re Winship case[6] , 1970, US SC upheld that juveniles had a right to have their cases proved ‘by proof beyond reasonable doubt’.
• In Mckeiver vs. Pennsylvania[7], 1971, it was held that unless and until the juvenile is not facing adult sanctions, he will not be entitled to a jury trial. Even today the US follows the same rule and thus it is counted among the most flexible juvenile justice systems of the world.
• In England, the first Juvenile Court was set up in 1905. The two important Acts passed by the Government of England are worth mentioning: Children and Young Offenders Act, 1993 was the Act under which special powers were granted to the juvenile courts of England to intervene and take into the account the matter disputable. It also provides that delinquency by the juveniles should be tried in juvenile courts and not in any other courts. Second Act which is important is the Criminal Justice Act, 1942 which complies with the rights of juvenile offenders. It provides security to juvenile offenders and to ensure their rehabilitation by sending them to remand homes.

INTERNATIONAL CONVENTIONS

• International Covenant on Civil and Political Rights, 1966 provides that “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”
• In Second and Sixth US Congress on Prevention of Crime and Treatment of Offenders in 1960 and 1980, discussed in length the problem of Juvenile Delinquency and the need for standard rules to deal with the same.
• The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also known as the Beijing Rules, was adopted on 29 November 1985 for protecting the well being of children.
• The United Nations Convention on the Rights of the Child (CRC), 1989 provides for Civil, Political, Social, Economic, and Cultural rights of every child.
• The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 also known as the Havana rules, lays down the standard for the management of the juvenile justice system.
• The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 also known as the Riyadh guidelines, provides for the prevention of juvenile delinquency.
• The United Nations Guidelines for Action on Children in the Criminal Justice System, 1997 also known as the Vienna guidelines, were adopted for the protection of children and it was addressed not only to the states, but also NGOs and media.

INDIAN EVOLUTION

PRE-INDEPENDENCE

Indian Juvenile Justice System lagged behind if compared to other countries especially, the US and UK, in the light of children and human rights jurisprudence. The first legislation which laid the foundation of Juvenile Justice in India was The Apprentices Act, 1850, which provided for binding of children between the ages of 10 to 18 years at apprentices, also dealing with children who committed petty offenses. After this, the system of Juvenile Justice seemed to gain momentum and subsequently passed the Indian Penal Code, 1860 which exempted children under the age of 7 years from criminal responsibility under sec. 82 and children who have not attained sufficient maturity to understand the nature of the crime committed by them between the ages of 7 to 12 years under sec. 83. This Act also protects children from evil designs of adults under sec. 363A.

Subsequent to this, the Reformatory Schools Act, 1897 empowered governments to establish reformatory institutions in which court can keep the custody of juvenile offenders for 2 to 7 years but after he/she attains the age of 18 years they would not be kept there. It also contained the provision of employment of juvenile who crosses over the age of 14 years.

Indian Jail Committee (1919-20) was set up which suggested to treat juvenile offenders differently from adult offenders. It was followed by the first children Act named Madras Children Act, 1920, and then by Bengal and Bombay in 1922 and 1924. After that other states also enacted the children laws, mainly dealing with delinquent and neglected children who are to be handled by juvenile courts. Underlying the approach for such laws was the welfare approach, which did not aim at punishing the children but keeping them in rehabilitative or remand homes or can be released on the reformation of their good characters.

POST-INDEPENDENCE

The pre-independence legislations are believed to be the catalyst of post-independence laws regarding Juvenile Justice in India. In the light of having a law for Juvenile Justice, Children Act, 1960 was passed which was in force in all the UTs, while states were having their own laws and norms, but they were free to adopt this Act. To resolve this problem of uniformity, Juvenile Justice Act, 1986 was passed which contained the provisions for setting up of Juvenile Justice Boards.

After the changes indicated in the rules for dealing with Juvenile Delinquency, by Beijing Rules and the UN Convention on Rights of the children, new Act was enacted, named as, Juvenile Justice (Care and Protection of Children) Act, 2000 in India, which was amended in 2006 and again in 2012.

After the Nirbhaya Rape Case, in which Juvenile offender was easily exempted from the death sentence, even after committing and knowing the nature of the heinous crime. This case became the reason for engagement among Indians and a point of debate over the amendment in the laws regarding Juvenile Delinquency. Maneka Gandhi, then Minister of Women and Child Development Ministry, warned that, “An adult crime by a juvenile requires adult punishment, not leniency.”

Taking into consideration, the gravity of the crime committed by Juvenile in Nirbhaya Case, immediate need for amendments was observed. Keeping in mind the increase in serious crimes involving children of 16-18 years and loopholes in the laws, giving them gate away pass to get exempted from the criminal prosecution, urged the enactment of The Juvenile Justice (Care and Protection of Children) Act, 2015 containing the provisions for serious offenses committed by children above the age of 16 years. Other instructions also contained in National Human Rights Commission in India checks the monitoring of the complaints against Children and implementation of national policies. NHRC also organized a National Conference on Juvenile Justice System in India in New Delhi in 2007.

CAUSES OF JUVENILE DELINQUENCY IN INDIA

There can be various factors affecting the behavior of Juveniles participating in crimes. These can be discussed under various heads such as follows:

• Poverty- In India, has become the reason for various crimes, juvenile delinquency is also one of them. Poor children in order to distract them from hard situations in their life, fall easy prey to criminal activities. Another reason is the financial condition of their homes, children think that they might change their condition by getting away with crimes.
• Sexual Behavior- sexual behavior of children can be affected by their childhood incidents. If they have been victim to child abuse, it can affect their behavior in the repulsive form in later years. Sexual variance according to scientists is also one of the reasons for crimes by and against children. This is found more in men than in women.
• Family- Family plays a very vital role in giving children a supportive and healthy environment. If there are discords or desertions in family, it can lead to unhealthy growth of a child’s mind, resulting in delinquencies by the juvenile population. Absence of care and love of parents, divorce of parents, lack of parental control, etc. can be the other reasons resulting in crimes by children.
• Virtual World- Minds of children can be easily affected by the abusive language, obscene pictures, song lyrics, etc. shown through visual media or social media like television, Youtube, etc.
• Modern World- Modern world can be hard and transitory for children most of the present and a few past decades’ generations. This can grievously affect children minds to indulge in crimes.
• Neighborhood- Neighborhood also means the surroundings in which the child is brought up. The unhealthy surroundings can be one of the reasons for increasing crimes by Juveniles.
• Migration- Migration from one place to another can affect the physical as well as mental health of a child, for example, migration from urban to a rural area can open up the child to unhealthy surroundings, while in rural to urban migration, urban surroundings can also gravely affect the innocent minds.
• Mental Health- Mental health of a child, if not taken care of and if it is naturally not well, it can affect his/her behavioral patterns which can further become the reason for committing a crime by children. For example conduct disorder.
• Substance Abuse- Substance abuse or drug abuse by children has recently become the major reason for increasing offenses committed by Juveniles.
• Bad Peer Group- Bad Company can affect the mind of children; parents should always keep a watch on the children’s company in order to keep them away from the consequences of criminal liability.

CHILD IN NEED OF CARE AND PROTECTION

Provisions regarding the child in need of care and protection are included in Section 2(d) of Juvenile Justice (Care and Protection of Children) Act, 2000. This section defines a child in need of care and protection as the one who:

• is found without any home or settled place of abode and without any ostensible means of subsistence, 1[(ia) who is found begging, or who is either a street child or a working child,]
• who resides with a person (whether a guardian of the child or not) and such person—

(a) has threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out, or

(b) has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being killed, abused or neglected by that person,

(iii) who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after,

(iv) who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,

(v) who does not have parent and no one is willing to take care of or whose parents have abandoned 1[or surrendered] him or who is missing and runaway child and whose parents cannot be found after reasonable injury,

(vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,

(vii) who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

(viii) who is being or is likely to be abused for unconscionable gains,

(ix) who is victim of any armed conflict, civil commotion or natural calamity;[8]

INDIAN LAWS

Indian Constitution and Legislation have many provisions in regard to the procedure of Rehabilitation and Reintegration of children from pre-independence to present times. Let us discuss these laws and their loopholes:

Constitutional Provisions:

The Constitution of India is the foundation of other laws in India. Fundamental Rights in Part III and Directive Principles of State Policy in Part IV focus on the welfare of the state and accordingly contain provisions. Some of these provisions in the Constitutional Law of India are:

• Article 21A– Right to Free and compulsory education to all the children aged between 6 to 14 years of age.
• Article 24 – Right to be protected from any hazardous employment under the age of 14 years.
• Article 47 -Right to be provided with a proper Standard of living and Good Nutrition.
• Article 39 -Right to be protected from Human Trafficking and Forced Labor.

All these provisions have been taken into consideration while enacting Juvenile Justice Act, 2015. The welfare of children has been the main subject matter of the whole Act.

Legislative Provisions:

1. Indian Penal Code, 1860- Section 82 exempts the children below the age of 7 years from the criminal liability, based on the fact that they are too young to know the criminal nature of their act. While Section 83 exempts children between the ages of 7 to 12 years if they do not have sufficient knowledge of their act. Section 363A of IPC protects children from the evil designs of the adults.
2. The Children Act, 1960- provides for the care, protection, education, welfare, and rehabilitation of neglected and delinquent children. For the first time in India, any Act strictly prohibited jail detention of children under any circumstances. However, it included sex discriminatory definition of Child as, “boy is a child, below 16 years while in case of girls it is below the age of 18 years. This definition was adopted differently by every state.
3. Criminal Procedure Code, 1973 – Section 27 of the Code lays down that juveniles below the age of v16 years, who have not committed the offense which is punishable with death or imprisonment of life, will be tried by a court which is specially empowered under the Children Act. Or it can be dealt with by any other law for time being in force which is providing for treatment, training, and rehabilitation of young offenders. Section 437 of the Criminal Procedure Code lays down that a child in conflict with law can apply for an Anticipatory Bail. Justice Narayana Pisharadi of Kerala High Court held that the child in the conflict of law has all the rights to apply for anticipatory bail and there is no bar on this by any provisions of Juvenile Justice Act. The anticipatory Bail of a child in conflict with law is maintainable in the High Court or the Court of Sessions.
4. Juvenile Justice Act, 1986- abolished detention of juveniles in police lock-up or jail and specified two main authorities to deal with delinquent juveniles i.e. Juvenile Welfare Board and Juvenile Court. It incorporated the welfare of state approach of Constitution in it but there were many loopholes like in the terms of court proceedings, age determination, separate trials, notification of charges to parents and guardians, filing the reports by probation officer, rehabilitation, and aftercare of children. There were hardly any provisions found regarding foster care, sponsorship, adoption, etc. in the Act.
5. Juvenile Justice (Care and Protection of Children) Act, 2000- was modified in coherence with CRC provisions and endorsed justice and rights approach. It brought uniform definition and said that child is a person who has not completed 18 years of age. It also contained provisions of counseling and ways the parents can prevent their children from delinquency. This Act lacked a substantive and procedural process.
6. Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006- 2000 Act was amended to make it clear that juvenility would be considered from “the date of commission offense” who have not completed the age of 18 years thus clarifying ambiguities raised in Arnit Das vs State of Bihar[9]. In the amended Act it was also clear that under any conditions, a juvenile in conflict with law should not be kept in a police lockup or jail. Further it also specifies that the Chief Judicial Magistrate or the Chief Metropolitan Magistrate has every right to review the pendency of cases in the Board at every six months, and the child protection units should be set up in each and every states and districts to check the implementation of the Act[10].
7. Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2015- This Act has been enacted keeping in view the changing trends of crime which have been increased from the year 2010-12 and has also been practically experienced in the year 2012 as Nirbhaya Rape Case in which Juvenile offender participated in the heinous crime. Keeping in view the minds of children as well as the measures to deal with grave crimes committed by Juveniles, this Act lays down an effective procedure of Rehabilitation and Social Reintegration of children after being punished. Let us see and read these sections in-depth:
   • Section 4 – lays down the rule to constitute for every district one or more juvenile justice boards for exercising the powers and discharging its functions relating to children in conflict with the law. A board shall consist of judges along with two social workers of whom one shall be a woman, who has been actively involved in health, education, welfare activities of children, or practicing professional degree in child psychology, psychiatry, sociology, or law.
   • Section 39- Process of Rehabilitation and Social Reintegration should be 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 siblings shall be kept together as long as possible unless it is in the best interest to separate them. The process shall be undertaken in observational homes if the child is not released on bail or in special homes or places of safety or fit facility or with a fit person.
   • Section 40- The purpose of this Section is “restoration and protection of a child” which means restoration to parents or guardians or adoptive parents or foster parents or fit person. The prime objective of any children’s home, specialized adoption agency, or open shelter shall be restoration and protection of a child and shall take steps in the concerned directions. The process should be undertaken only after determining the suitability of the parents or guardian or fit person to whom the child is to be given and also give them suitable directions.
   • Section 41- makes it mandatory for any institution taking care of the child in need and protection, must be registered under this Act, otherwise, it will be penalized under section 42.
   • Section 43- deals with the establishment and maintenance of as many open shelters as may be required, by the State Government.
   • Section 44- provides rule in regard to the foster care of children which is an important aspect of the process of rehabilitation and social reintegration. This includes sending a child to a foster family that does not include the child’s biological or adoptive family, recognized as suitable for the purpose by State Government for a short or extended period of time. The selection of foster families depends upon the family’s intent, ability, capacity, and prior experience of taking care of children. The responsibility of the foster family includes taking care of the health, education, and nutrition of the child. Monthly inspection shall e conducted every month of the foster family.
   • Section 45- includes the rules to be made for the purpose of understanding various programs of sponsorship, such as individual sponsorship, group sponsorship or community sponsorship. It also includes criteria for sponsorship. These programs may provide medical, educational, and other help to children’s homes, special homes, and families with a view to improve the quality of life of children.
   • Section 46- provides provisions for financially supporting the child who is reintegrating into the mainstream of society whenever a child leaves the rehabilitation homes after the completion of 18 years of age.

Other provisions regarding observation homes, special homes, places of safety, etc. are contained from sections 47 to 55. Whereas provisions regarding Adoption which is considered to be the important part of the rehabilitation and reintegration process included in Chapter VIII.

CONCLUSION

Even after all these legislations and amendments, there are so many issues in the Indian trials of Juveniles, like many juveniles are found in adult jails, after the process is complete in observational homes children are not taken proper care of because of the huge population of India. Justice Verma Committee report made various recommendations, for example, the states should not be given so much power in regard to the laws of Juvenile Delinquency, rather procedures laid down by International conventions and Cr.P.C. should be followed.

The reformative approach should be applied to punitive one and the importance of psychological study by Juvenile Justice Board members was emphasized. Other measures which can be taken from grass root level like parental control on children, understanding child’s psychology by parents, teachers and guardians, environmental control, etc. can become the effective way to eradicate this evil from the society as well as from the innocent minds of children.

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References:

[1] See https://www.merriam-webster.com/dictionary/rehabilitation

[2] See https://www.lexico.com/definition/reintegration

[3]  Felony is originated from French word “félonie” used in English Common Law countries which meant serious crime.

[4]  See https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-gideon-v-wainwright

[5]  See https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-re-gault

[6]  See https://supreme.justia.com/cases/federal/us/397/358/

[7]  See https://supreme.justia.com/cases/federal/us/403/528/

[8] See https://indiankanoon.org/doc/373978/

[9]  [(2000] 5 SCC 488]

[10]  See https://shodhganga.inflibnet.ac.in/bitstream/10603/145628/9/09_chapter5.pdf