Childhoods lost in a troubled paradise

Kashmir’s children grow up traumatised by conflict and live in perpetual fear of being picked up by the state

Every third child in Shopian district, Jammu and Kashmir (J&K), has a clinically diagnosable mental disorder, said a survey published in the Community Mental Health Journal earlier this year. Around 1.8 million adults in Kashmir Valley — 45% of its population — showed symptoms of mental illness in 2015, according to Doctors Without Borders. Thus, even prior to the incidents of August 5, the disastrous results of a history of violence, illegal detentions and torture in the Valley were visible on the region’s children.

The horror has since continued and got magnified, as chronicled in many reports. Media has reported illegal detention of scores of children, many of them whisked away at midnight by law enforcement officers with no record of their arrests, making it difficult to trace them. A report by economist Jean Dreze in August detailed illegal detention and torture of boys. A recent report by the Indian Federation of Indian Women and other organisations gave a first-hand account of the haunting spectre of mothers standing at their doorsteps in the desperate hope of their children’s return, not knowing where they are. These disappearances are in clear breach of the Supreme Court’s directions in the D.K. Basu case, where the court said that the next of kin have to be informed of every such arrest and the reasons thereof.

Pawns in a political game

Kashmir’s children have become pawns in a political game where the government wants to punish those protesting against its authority. Between 1990 and 2005, a total of 46 schools were occupied by the armed forces and more than 400 schools gutted between 1990 and 2005, according to a 2006 report of the Public Commission on Human Rights. Such destruction of educational infrastructure, in addition to the unlawful detentions, leaves a lifelong impact on children, perpetuating a cycle of trauma, fear and bitterness.

A report by the UN High Commissioner for Human Rights earlier this year found that children in Kashmir, many of whose ages were wrongly recorded, were being detained and mistreated for several days in police lock-up, without any charge, mostly under the Public Safety Act (PSA), which allows preventive detention for up to two years without any trial. The report found that the Armed Forces Special Powers Act remained a key obstacle to accountability.

In 2018, the Jammu & Kashmir Coalition of Civil Society (JKCCS) found through Right to Information applications that hundreds of children had been detained under the PSA between 1990 and 2013. In many of these cases, the police/magistrates had no procedure to verify the age of the detainees and minors were kept in custody along with adult criminals and released only after judicial intervention. About 80% of these detentions were held illegal by courts.

Such treatment of children is undoubtedly in violation of multiple laws and conventions. To begin with, all of them violate Article 14(4) of the International Convention on Civil & Political rights which states that “all proceedings against juveniles shall take into account their age and the desirability of promoting their rehabilitation.” The UN Convention on the Rights of the Child, ratified by India, provides that the arrest/detention of a child shall be in conformity with the law and used only as a last resort and for the shortest appropriate period. The guidelines of the National Commission for Protection of Child Rights clearly state that a blanket characterisation of adolescent boys as security threats during civil unrest should be avoided and authorities should investigate and take action against personnel involved in arbitrary detentions, mistreatment or torture of children.

A sledgehammer treatment

In 2003, the Madras High Court in Prabhakaran v. State of Tamil Nadu held that the Juvenile Justice Act is a comprehensive law and overrides preventive detention laws enacted for national security. Earlier, in 1982, the Supreme Court had in the Jaya Mala case condemned the preventive detention of a student and observed that young people, even if their acts are misguided, cannot be punished with a sledgehammer.

However, none of these laws and directives seem to be followed in Kashmir. Parents are now too scared to send their children to school, lest they be picked up by authorities or get caught in a crossfire. When such disappearances take place in a conflict-torn region, who does the aggrieved party complain to? Courts seem to be the only forums offering some promise of redressal. However, state actions since August 5, when J&K’s special status was abrogated, have taken away even this limited option from Kashmiris. Following the arrest of presidents of the J&K High Court and District Bar Associations and senior lawyers under PSA, most of Kashmir’s 1,050 lawyers have been on strike. Over 200 habeas corpus petitions have been filed till now. However, since most post offices are closed, lawyers are unable to serve notices on the respondents.

On August 5, all 31 cases shown in the ‘orders list’ of the Srinagar Bench of the J&K High Court were adjourned “due to restrictions on movement of traffic” as advocates could not be present. Weeks later, on September 24, out of the 78 uploaded cases, advocates were present for both parties in just 11, none appeared in nine cases, petitioner’s counsel alone in nine cases and only the government counsel in 47 cases.

Anticipating such contingencies, our Constitution provided for the protection of the citizens’ fundamental rights by empowering them to approach the Supreme Court directly in case the rights were violated. The right to constitutional remedies is by itself a fundamental right. Quite conscious of its obligations to protect the right to life of Kashmiris, the apex court has thus taken upon itself the task of inquiring into the allegations of state violence against children.

The observations made by the Inter American Court of Human Rights had observed in a 2005 case, concerning Colombia’s Mapiripán Massacre, are instructive here: “One does not combat terror with terror, but rather within the framework of the law. Those who resort to the use of brute force brutalise themselves, creating a spiral of widespread violence that ends up turning the innocent, including children, into victims.”

Noting that the terror sown among the surviving inhabitants caused their forced displacement, the court observed that the omissions, tolerance and collaboration by the state and the general population amounted to aggravated human rights violations in the name of ‘war on terror’.

Caged and disturbed

Children in Kashmir grow up caged and under the shadow of a gun. As the parents of many of them go missing, they are also forced to assume the responsibility of caregivers for their siblings. The strain on social structures due to the loss of family environment, safe spaces and education and health facilities severely traumatises many of them and snatches their childhood away. Gowhar Geelani, in his recent book Kashmir Rage and Reason says children in Kashmir learn terms like “custody killing”; “catch and kill”; “torture”; “interrogation”; “detention”; and “disappearance” — internalising a vocabulary they should not be privy to otherwise.

What kind of world can such children look forward to if they have to live in constant fear of being picked up for an unknown crime and taken to an unknown destination? Surely, this is not the firdous (heaven) on earth that many visualise Kashmir to be?

No curbs on democratic rights on the promise of development can justify inhumane treatment of children. We need to speak out for the children of Kashmir or we will also be complicit in the ‘aggravated crime’ by the state apparatus. The preventive arrests should be stopped lest the children of Kashmir go missing forever.

R. Vaigai, Anna Mathew and Devika S. are advocates at Madras High Court

Source: The Hindu, 27/09/2019

30% juvenile offenders never been to school

Ambika Pandit

New Delhi:





Survey Of 182 Reveals History Of Abuse, Poverty

Even though Rajya Sabha has passed the amended Juvenile Justice Act, a survey of 182 youngsters lodged in the capital's observation homes between last year and early this year reveals a story of childhoods scarred by abuse, poverty , illiteracy and lack of parental care.`Why Children Commit Offences', a study on children in conflict with the law by Delhi Commission for Protection of Child Rights (DCPCR) in collaboration with NGO Butterflies dwells on the factors that trigger delinquent behaviour. It cautions that “reform mechanisms“ must be a focus area if the original intent behind the JJ Act is to be achieved. The findings were released in June.
The study found over 57% of the children involved in offences related to theft, dacoity and robbery . “Offences related to person (murder and attempt to murder) and sexual harassment (including rape) constituted 21.9% and 11.5%. These figures are those of accused and not of those found guilty ...Reports of children accused of rape suggest that of the 21 rape cases reported 11 were either consensual sex or false accusations by the parents of the girls who did not consent to their relationship,“ the study says.
The study also says that those taking to crime early are likely to grow into hardened criminals than those who start late. But 90% of the surveyed children were late starters, having committed their first crime above the age of 14, and were therefore less likely to repeat it. Data also showed that 70% were unaware of the consequ ences of their acts. Also, 58.8% of the offences were committed in groups, and in 90% of these cases, the groups were of friends. This shows how peer influence works.
Almost 30% of the juveniles had never been to school and over 29% had only studied up to primary school. Only 24.2% had moved to upper primary . The dropout rate was also pretty high--of the 182 kids, only 43 were still studying when apprehended. The study holds families and the school system responsible for their failure to identify behavioural deficiencies in these children. Over 50.3% of children were deprived of adequate housing and 62.1% were working for a living when they were apprehended. Also 14.2% of children were not living with parents and 23% were living with single parents or with step parents. Many of the children had also witnessed one parent treating another with violence and had lived in turbulent neighbourhoods.
The study makes the point that “there is no evidence to suggest that harsher punishment or transfer of adolescents to criminal justice system will deter them from deviance“. “Instead, there is strong evidence that they increase recidivism.All this does not mean that childrenadolescents who are involved in offences or deviances should not be held accountable for what they have done.But the means for ensuring such accountability should be grounded in child and adolescent psychology , the human rights of children and a deeper understanding of the circumstances that led to such behaviour,“ the study adds.

Source: Times of India, 28-12-2015

Big questions for our generation

The manner in which crucial laws are being amended will end up eroding rights that have deep consequences on the lives of our children and us as citizens of a thriving democracy. All because the state hasn’t been able to deliver what it was mandated to do.

The last few months have seen an alarming trend of crucial laws being amended, or sought to be amended, in a manner that will end up hurting the very cause that they were envisaged for — to protect rights that have deep ramifications on the lives of our children and us as citizens of a thriving democracy. All because the state has not been able to deliver what it was mandated to do.

The most recent, and probably the one that must concern us all the most, is the law upheld by the Supreme Court: the Haryana State government’s amendment of the Haryana Panchayati Raj (Amendment) Act, 2015. The amendment was ostensibly an attempt to promote education and sanitation by mandating that candidates for Panchayat elections had to be both literate (Class 10 in the general category, Class 8 for Dalits and Class 5 for Dalit woman) and have a toilet in their homes.

While the courts have upheld the amendment, and their decision must be based on the correct interpretation of the law, we could well be at a dangerous inflexion point in our democracy — as such reasoning could extend itself to the next two levels of our democratic institutions (Legislative Assemblies and Parliament) if we are not careful.

We seem to be forgetting that the Constituent Assembly of India had debated the issue of universal adult suffrage extensively and finally decided to give Indians this strongest tenet of modern-day democracy. It took a measured decision that education, gender, economic status or religion cannot restrict an adult Indian’s ability to vote or stand for election.

So, while 100 per cent literacy and sanitation are definitely objectives that the State and national governments must strive towards, the fact that the state has failed to provide the same must not be remedied by taking away the political voice of a citizen of this country.

Impacting learning outcomes

The next and closely related case in point are the amendments to the path-breaking Right to Education (RTE) Act. While the Act’s implementation has been a bit of a mixed bag as poor learning outcomes set alarmbells ringing for policymakers, there is no denying that the Gross Enrolment Ratio (GER) has seen a steady upswing across the country. At the elementary level (Class I-VIII), the GER is up to a remarkable 95 per cent, with girls seeing an incredible score of 100.6 per cent (2013-14). The news is even more heartening for Scheduled Caste students, with the GER for both boys and girls at a whopping 102.8 per cent for the year 2013-14. When traditionally marginalised sections of society see such significant change, thanks to a piece of legislation, there is reason to celebrate.

Yet, a key and egalitarian aspect of the RTE, the “no detention policy”, that may at least partly be responsible for these off-the-charts GER numbers, is being questioned by some experts, bureaucrats, political parties and governments. The idea behind the policy was that children should not face the psychological and emotional trauma of examinations till Class VIII. Those pushing for dropping the “no detention policy” argue that this has perpetuated poor learning outcomes and essentially postpones the inevitable, burdening the school system from Class IX onwards.

It is a view that led the Delhi and Rajasthan governments to amend the RTE, but it does not take into consideration that as a part of the no-detention policy and the RTE, children’s learning outcomes were meant to be measured via a system called the Continuous and Comprehensive Evaluation, or CCE. The CCE required teachers to track each student’s progress and tailor lessons to student capabilities and provide remedial learning opportunities for students who needed help.

If more States and the Centre adopt this amendment, we will be back to children as young as five undergoing the stress of examinations and trauma of being kept behind if they fail. Activists point out that the biggest effect of this step would be on children from poor families, with chances of them dropping out of the system. So, not only could we be reversing the progress we have made in the GER numbers, largely because the state did not ensure effective implementation of the CCE and the RTE Act, but also end up reducing the chances of children from such families later standing for Panchayat elections in, say, Haryana.

Rehabilitating juveniles

The third is a more emotionally charged debate: amendments to the Juvenile Justice (Care and Protection of Children) Bill, 2015 adopted by the Lok Sabha this May and expected to be taken up by the Rajya Sabha in the current session of Parliament. The most contentious amendment to this Bill proposes that the minimum age for a child to be placed in the adult criminal justice system should be lowered from the current 18 years to 16 years for certain crimes. This is supported by certain sections of society which have literally been baying for blood, post the horrifying Nirbhaya rape case. Ill-informed arguments have muddied the discourse to make the average citizen believe that juveniles committing crimes do not really face any punishment today, whereas the truth is that the juvenile justice system actually provides an alternative system for trial and punishment of juveniles in keeping with their age, physical and emotional status.

There is extensive research to prove that transferring children to the adult justice and prison system does not reduce crime, and in fact increases recidivism as it exposes these children to hardened criminals. Experts also believe that the human brain is not completely developed till one is in one’s mid-20s and young adults are actually more susceptible to peer pressure, and relatively unstable in emotionally charged situations. Globally, most progressive countries and their judicial systems have taken cognisance of such research, a case in point being the state of Connecticut, in the U.S., which has recently seen a move to raise the age of juvenility. There is also extensive research to prove that more rehabilitative juvenile justice systems have repeatedly been found to lead to lower re-arrest rates than the adult system, and, therefore, result in lowering overall crime numbers.

While National Crime Records Bureau data indicates that children from the marginalised sections of society will suffer the most (as over 55 per cent children in the juvenile justice system come from families from the lowest income bracket) if these amendments pass, they could also end up impacting a number of young boys in consensual relationships, as they may face incarceration in the adult prison system if their partner’s parents decide to file a case against them under the proposed law.

It is strange that the very state which has not been able to ensure the effective implementation of the envisaged ecosystem for rehabilitating children through various institutions (child welfare and selection committees, juvenile justice boards, special juvenile police unit, etc.) established under the Juvenile Justice Act, 2000 (and therefore has in some way contributed to the rise in crime?) is now trying to “remedy” the situation by actually worsening it.

Children at work

And finally, let’s look at the much ignored issue of child labour in India. There are reportedly 43 lakh children who are forced to work in our country and the proposed amendments to the Child Labour (Prohibition and Regulation) Amendment Bill is meant to strengthen the legislative framework that prohibits their employment. But will it?

Children under the age of 14 are currently banned from working in hazardous industries but the government proposes to drastically reduce the number of industries considered hazardous from 83 to 3. Under the garb of family-run enterprises, children will also be allowed to work in industries like zari, bangle and carpet making, brick kilns, diamond cutting and, arguably, even scavenging.

The truth is that a number of these industries rely on the small nimble fingers of children and perpetuate a system that thrives on bonded labour, or at best very poor wages. The government argues that these amendments are being made in response to the socio-economic realities of the country and to allow children to learn traditional crafts after school hours.

Even if we were to say for a moment that this was not a specious argument trotted out by those who want to perpetuate the existing system, a sobering study points out that while combining school and work is a reality for poor children in India, the likelihood of children who work for over three hours dropping out of the school system is estimated to be as high as 70 per cent. In a country where the trafficker passes off as a “Mama” or a “Mausi”, where is the question of the state actually being able to monitor the number of hours a child actually works, even if he is actually working in the family enterprise?

And once again it will be the girl child who will be the first to be pulled out of school and put into the workforce, as will children from the economically weaker and marginalised sections of society — the very children most at risk and whom the Act is largely designed to protect.

Not only will these amendments not help eliminate child labour, but they will also, in all likelihood, deny our children their rights under the RTE Act, possibly creating the perfect preconditions for some of them to take to juvenile crime.

Will we be the generation that will preside over a system where the state dropped the ball — and our children and we paid the price for it? Under the garb of doing right by them?

(Barkha Deva, a commentator on the intersects between politics, governance and policy, is Associate Director at the Rajiv Gandhi Institute for Contemporary Studies. These are her personal views and do not represent the views of the RGICS or its trustees.)

Keywords: Juvenile Justice Board, Haryana Panchayati Raj (Amendment) Bill 2015, Child Labour (Prohibition and Regulation) Amendment Bil, RTE Act

Source: The Hindu, 21-12-2015

Crime and commensurate punishment

Today, the Juvenile Justice Bill that seeks to equate 16 to 18-year-olds with adult criminals will be presented in the Rajya Sabha. Will the rights of children below 18 be protected here at least?

It is also called The House of Elders. And beginning today, the Rajya Sabha needs to play its role, to protect not only the teenagers of this country but also their parents. For today, the Minister of Women and Child Development is slated to demand the passing of a bill, which if made into law, will instantly violate every elected government’s compact in protecting all its people, be they voters or children. As also every international pact that India has signed guaranteeing the rights of children below 18 years of age.

The government has already passed the Juvenile Justice Bill in the Lok Sabha. Put it down to its numbers therein, or the personality-oriented politics of today that makes something so fundamentally issue-based almost irrelevant. Or that they don’t know that they have sent teenaged boys (and girls) to certain sodomisation in adult jails. Or perhaps some of them do know, but presumably by their rough reckoning, a little “punishment” befits a “heinous” crime. But whatever the case, they don’t care that in throwing teenagers aged between 16 and 18 to the wolves, under the guise of punishing them for “heinous” offences, is to go against the legislative commitment in the Preamble of their own Bill. The Juvenile Justice Care and Protection of Children Bill, 2015 is on the Internet, and its lofty opening paragraphs go against the ruling. As does the report of the Parliamentary Standing Committee to which this Bill was sent, which rejected the clause.

The “16-18 heinous offence” clause in the Juvenile Justice Bill, apart from being wrong at so many levels is also a failure of imagination to come up with a collective political solution that can stand the test of time. This author has been fortunate to be part of a process that began when Atal Bihari Vajpayee was Prime Minister. It eventually culminated into the watertight Protection of Children from Sexual Offences Act or POCSO 2012, under the United Progressive Alliance government, protecting minors (understood as being under 18) from adults (above 18) from any and all forms of sexual abuse. There is a quiet sort of pride in knowing that a nation came together — government, bureaucrats, police, retired judges, stakeholders such as principals and grandparents — with suggestions for a law so comprehensive that today it has become a ready reference for other countries to consider. Incidentally, the watertight POCSO will be tinkered with, should the government succeed in treating 16 to 18 year-olds as adults.

During POCSO, a fierce debate had risen on whether 16 to 18 year-olds should be considered as minors at all. Readers might recall how middle-class, working professionals and young parents vehemently opposed the lowering of the minor age, including in this newspaper. Their voices were heard. Agreeing with them were the present Finance Minister Arun Jaitley, present External Affairs Minister Sushma Swaraj, and the present HRD Minister Smriti Irani.

Why do teenagers not have these three powerful Ministers on their side today? Especially since 16-18 year-olds are to be judged for “heinous” crimes without explaining what “heinous” means? The Minister does not bother to spell out (consultations with the Law Ministry and an approval by the Prime Minister would have served the purpose of this Bill) on what actually constitutes “heinous”. Instead, bizarrely, the word is equated with its punishment.

There are two other innocuous, but deeply disturbing, words that find their way into the Bill. Chapter I, Page 5 (33) says “Heinous offences” includes offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. The word “includes” lays the entire system and not just the juvenile vulnerable to misinterpretations and gross misuse by those with different agendas at every level the case goes through. The author has submitted this to the Parliamentary Standing Committee, and also sent emails and letters to the Prime Minister and other Ministers and MPs.

“The Bill that can turn into a law today has a word so innocuously draconian that it can affect the rights of all Indian children in future, as also their parents. ”

Second, Chapter II, Page 8 (14) says under ‘Principle of fresh start’: All past records of any child under the Juvenile Justice system should be erased, except in special circumstances. This author has pointed out that the phrase “except in special circumstances” is dangerous and leaves something so sensitive totally open-ended. It can lead to, among other things, racial profiling of the child — and his/ her family — on the lines of family background, caste, community, and religion. The “circumstances” must be specified.

Heinous offences

There is no stated legal definition of the word “heinous”. There is no law to quantify or qualify what “heinous” should mean. In such a case, it could just as well be used in a civil context and not just a criminal one. When asked about the definition of “rarest of the rare”, Supreme Court Advocate Subhangi Tuli says the following. “In Bachan Singh vs. State of Punjab(1980), the Supreme Court said that the death sentence can be declared by judges when the option of life imprisonment is “unquestionably foreclosed”. It also lays down the principle of weighing aggravating and mitigating circumstances. A balance sheet has to be drawn up, to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime that renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?”

Suppose the above guidelines are also taken for “heinous offences by those in the 16-18 age band. Suppose “death sentence” and “life imprisonment” (since neither are applicable to citizens under 18) are replaced by “adult court” and “adult jails”. Can the state-level Juvenile Justice Boards (JJB) be trusted to apply the same guidelines strictly to juvenile crimes? But they are not qualified for such gravity; in fact most state-level JJBs have no domain-specific professionals on board other than the Magistrate. It is no secret that the juvenile justice system is as broken as the adult legal system is overburdened.

Thus, “heinous offence by those between 16 and 18” can mean anything. It will include the violation of rights of not only a teenager (for in the current collapsed law and order, all are guilty until proven innocent) but also, by extension, the violation of the civil rights of any parent who has a 16 to 18-year-old who has been foolish enough to cross a boundary. Can the police use “heinous offence by 16 to 18-year-old” to enter an ordinary home, when there is no definition of it or specific law on it, for the purpose merely of harassing the parents? In a country where rights can quickly turn into shifting sands, that should set alarm bells ringing.

The Bill that can turn into a law today has a word so innocuously draconian that it can affect the rights of all Indian children in future, as also their parents. “Heinous offences”, if it stands in the statutes without definition, condemns India’s future citizens. No government, once it holds such a sword over its citizenry’s head, will reverse it.

Yes, even if only a minuscule percentage of teenagers in the 16-18 age group are rapists-murderers, the problem needs to be addressed. Approximately every second person in India is less than 30 years of age today. This means increasing crime among teenagers, especially sexual crimes. Accordingly, this author has submitted seven detailed solutions (including the definition of the word “heinous” and the idea of specially structured juvenile jails) aligned with international and UN conventions that specify that all offenders under 18 should be treated by law differently from an adult. Justice must not only be seen to be done but must also be actually done. And speedily, unlike the delayed process of the adult system.

A politician’s carelessly enacted law can, instead of “reforming” a teen-convict, create the face of pure evil. When these boys (and girls) come out from adult jails, they will be hardened criminals, drug addicts, and members of gangs that will have recruited them while they were inside. They will have been raped and sodomised many times over. They will then wreak vengeance on other young bodies in society.

It is now over to the House of Elders. They must ensure that no law is passed in an artificial hurry if it needs to be perfected. After all, why should it be so wrong to get it fully right?

Author-activist Pinki Virani catalysed India’s Passive Euthanasia Law, and the law against sexual abuse of children (POCSO) includes several of her suggestions.

Keywords: Juvenile Justice Bill, children below 18, Juvenile Justice, heinous crimes

The new juvenile law

There was never any doubt that the progressive juvenile law enacted in 2000 was not being implemented properly and that there was a need to revisit its provisions. In many ways, the Juvenile Justice (Care and Protection of Children) Bill, 2015, passed by the Lok Sabha, is a forward-looking and comprehensive enactment that provides for dealing with children in conflict with the law and those requiring care and protection. However, its laudable features have been overshadowed by one provision that states that children in the 16-18 age group will henceforth be tried as adults if they are accused of committing ‘heinous offences’. The government believes that the provision will help address public disquiet over the perception that young offenders are getting away with light punishment after committing crimes such as murder and rape. However, child welfare activists have been saying there is no need to carve out an exception for children in a particular age group solely based on the perceived heinousness of the offence. The division into two groups — one below 16 and another above 16 — goes against the core principle that all children should be treated as such till the age of 18. This age has been fixed based on studies in child behaviour and the U.N. Convention of the Rights of the Child. A parliamentary Standing Committee opposed the change, noting that subjecting juveniles to the adult judicial system would go against the objective of protecting all children from the rigours of adult justice. It noted that the Supreme Court had not agreed with the view that children involved in certain offences should be tried as adults.

In response to criticism, the government has made some changes before getting the Act passed in the Lok Sabha. It has dropped a patently unconstitutional section (Clause 7 in the Bill) that sought to treat as adults, children allegedly committing an offence after the age of 16 but getting arrested only after they are 21. Also, the government has tweaked the wording involved, saying that what the Juvenile Justice Board will hold is a “preliminary assessment” rather than a “preliminary enquiry” into the mental and physical capacity of the child to commit such an offence. It has added by way of explanation that it is not a ‘trial’, obviously to address concerns that the procedure to assess the child’s capacity itself may amount to a regular trial. The prospects of the government making further changes before the Bill goes to the Rajya Sabha appear to be bleak. The question before the legislature, and society at large, is this: do we preserve the scope for rehabilitation among young offenders through a benign juvenile law, or derive satisfaction from long prison terms for them?

Keywords: Juvenile Justice Act, juvenile justice law, child rights, child welfare, child development

Most juveniles in conflict with law from poor families

Himanshi Dhawan

New Delhi:





With the Juvenile Justice (amendment) Bill expected to be taken up by Rajya Sabha on Wednesday, an independent study across observation homes and special homes in four states has traced the profile of a juvenile delinquent.Preliminary data collated by NGO Butterflies reveals a “juvenile'' caught in the country's legal system is a working child, from a disturbed family background who has been associated with petty crime. The children are overwhelmingly from economically and socially backward sections of society.
The socio-economic pro file is based on an ongoing study of 605 children from homes in Delhi, Odisha, Tamil Nadu and Kerala.
The study found that majority of the parents were labourers or from service oriented occupations like tailoring, construction, carpentry while 63.2% of the children were engaged in some work or the other. “The preliminary data suggests that it is only the children of low economic and social background get caught while those in the middle and high income group are able to settle outside the judicial process,'' Rita Panicker from Butterflies said.
About 16.8% children were deprived of any formal schooling while 50.8% studied up to primary level. Not surprisingly, nearly half the parents did not have formal schooling. In another significant revelation 33.4% of the children came from families where one or both parents had died or had step families, separated families, were abandoned or lived on the street.
Socially too the children were found to be disadvantaged. Out of the 442 children who knew their caste 90% belonged to backward classes underlying the vulnerability experiences by marginalized communities. Scheduled caste accounted for 20.4%, scheduled tribes for 4.6% while OBCs were 40.8% of the children studied.
For the full report, log on to http:www.timesofindia.com

Union Cabinet approves lowering of age of Juveniles from 18 to 16 years for heinous crimes

Union Cabinet has approved lowering of age of juveniles from eighteen to sixteen years for heinous crimes. Decision in this regard was taken by Union Cabinet meeting chaired by Prime Minister Narendra Modi. The cabinet also approved to introduce Amendment to the Juvenile Justice (Care and Protection of Children) Bill, 2014. This amendment will propose and add special provisions to tackle heinous offences like murder and rape committed by juveniles in the age group of 16-18 years. The proposed bill will amend the Juvenile Justice Act, 2000. The parent Act clearly defines and classifies offences as serious, petty and heinous and defines differentiated processes for each classified category. While the amendments in the bill adds provisions that in case a heinous crime committed by a person between 16 and 18 years, will be examined by the Juvenile Justice Board (JJB) to assess if the crime was committed as a child or as an adult. Then the trial of the case will take place as a juvenile or as an adult on basis of JJBs assessment and decide whether the culprit should be sent to observation home or tried in a regular court. Background The changes in the Parent Act come against the backdrop of outrage over the conviction of a minor in the Delhi gang-rape case of December 2012. The minor in this case was tried in a juvenile court and was sentenced to three years in a reform home. However, the lighter punishment to this minor had triggered a debate on punishment for juveniles convicted of heinous crimes.

Juvenile boards will take final call





The Juvenile Justice Act will be changed to allow for trial of juveniles aged 16-18, accused of heinous crimes, as adults under the Indian Penal Code, with the Modi government bowing to the clamour for a tough deterrent against young criminals who go unpunished because of the lenient provisions under the law.As per the changes cleared by the Union Cabinet on Wednesday , Juvenile Justice Boards will decide whether a juvenile accused of a heinous crime ought to be treated as a child or an adult. The proposed Juvenile Justice (Care and Protection of Children) Bill also provides for classification of crimes as “petty“, “serious“ and “heinous“, and differentiated processes for each category . Under existing law, only those aged 18 and above are tried under IPC.
The decision heeds the demand for tougher punishment to hardened “juvenile criminals“, which spiked after the Nirbhaya gang rape in December 2012. One of the accused in the crime which shook the nation is a juvenile who was said to be the most brutal of the gang.
The proposed changes come in the teeth of opposition from child rights activists and members of the parliamentary standing committee who argued that even horrific crimes don't subvert the reason for laying down a milder legal regime for minors. The Juvenile Justice Act provides for leniency for juvenile criminals on the ground that they are of impressionable mind and, hence, incapable of either thinking through their actions or fully recognizing the consequences of their alleged crimes.
While the opponents have been overruled, their concern has been factored in by providing for a two-stage process to determine whether a juvenile accused of a crime classified as “heinous“ deserved to be treated as an “adult“ and, therefore, was unworthy of protection provided for under the Juvenile Justice Act.
Under the proposed law, Juvenile Justice Boards will take the final call on the sensitive matter. An official press release emphasized, “Since this assessment will take place by the JJB, which will have psychologists and social experts, it will ensure that the rights of the juvenile are duly protected. The trial will take place as a juvenile or as an adult on the basis of this assessment.“
It further said, “This brings about a balance that is sensitive to the rights of the child, protective of his legitimate interests and yet conscious of the need to deter crimes, especially brutal crimes against women.“
Although the decision is expected to go down well with people outraged by the growing involvement of “juveniles“ in serious crimes as well as that they could get away lightly , it was not an easy one to take in view of the passionate advocacy of child rights activists and UN laws which put the young on a different footing in matters of crime and punishment.
Earlier this month, PM Narendra Modi referred the issue to a group of ministers for a final round of deliberations in the light of warnings that changes in the JJ Act would mean a raw deal for juveniles who are not mature enough to comprehend the results of their alleged crimes.
“The Cabinet has approved amendments to the Juvenile Justice Act so that those in 1618 age bracket can be tried under IPC if they are accused of heinous crimes,“ telecom minister Ravishankar Prasad told reporters after a meeting of the Union Cabinet.
The bill was introduced in the monsoon session last year and was referred to the standing committee.
The parliamentary panel, in its report in February , rejected the government's proposals to try juveniles between 16-18 years of age as adults on grounds that it is discriminatory , in contravention of the UN Rights of Child and in violation of Article 14 that ensures all are equal in the eyes of law.
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Jul 17 2014 : The Times of India (Delhi)

Don't change juvenile age: NGOs

New Delhi TIMES NEWS NETWORK





The campaign follows Union minister for women and child development Maneka Gandhi's recent statement that juveniles involved in serious crimes like rape should be tried as adults

Lowering the age limit for juvenile delinquents from 18 years to 16 years is not the answer to the city's crime spiral, women and child rights activists said on Wednesday after getting together to demand a dialogue with the Centre on the draft Juvenile Justice (Care & Protection of Children) Bill, 2014.The campaign follows Union minister for women and child development Maneka Gandhi's recent statement that juveniles involved in serious crimes like rape should be tried as adults. Her statement has revived the debate on the juvenile age issue that was first raked up after the Nirbhaya gang rape in December 2012.
Under the banner of ProChild Network, a coalition of 58 NGOs, activists have gathered in the city to demand that the ministry reconsider its decision to allow treatment of some juvenile offenders as adults while looking for solutions in the existing JJ system. Angan Trust, Centre for Child and the Law, NLSUI Bangalore, CRY, HAQ: Centre for Child Rights, Leher and Save the Children are part of the coalition that called upon the government to deliberate before deciding to repeal and re-enact the Juvenile Justice (Care and Protec tion of Children) Act, 2000.
ProChild Network has offered to help the government find a solution to rising sexual violence by juveniles, by giving professional suggestions based on evidence and research.
“We strongly condemn all sexual violence, be it by adults or juveniles... But we also condemn pitching human rights of women against human rights of children since that will not provide an answer to creating a healthy society . All we want is a dialogue with the government before a final decision in this regard is taken,“ said Bharti Ali, co-director of HAQ.
On June 18, the Ministry of Women and Child Development stated its intent to repeal and re-enact the Juvenile Justice Act and invited feedback from stakeholders and civil society groups on the draft Juvenile Justice Bill, 2014. The voluntary organizations have submitted their suggestions to the ministry . The draft Bill put up on the ministry's website after the BJP government took office is different from the draft put up before various experts on a review committee set up by the UPA government, the voluntary organizations say .
The draft Bill recommends sweeping changes.
Under the ministry's proposal, while trying a juvenile aged 16-18 years who is involved in heinous crimes such as rape and murder, the Juve nile Justice Board will decide whether he should be sent to an observation home or tried under a regular court. This, NGOs fear, can be misused given the many flaws in the policing and JJ systems.
“We firmly believe all human beings, especially growing children, need to be taught that there are consequences of their actions and that they need to be accountable for their behaviour,“ a statement issued by the group said.
“However, we assert that the means for ensuring accountability should be grounded in child and adolescent psychology , the rights of children and a deeper understanding of the circumstances that lead to such behaviour or action, be it indiscipline, anti-social or criminal behaviour,“ it adds.
As per the National Crime Records Bureau statistics, in 2013, as many as 33,707 rape cases were registered in the country as against 24,923 cases in 2012. The number of juveniles involved in rape cases in 2013 was 1,884.

Jul 15 2014 : The Times of India (Delhi)

Grave crisis:158% rise in rapes by juveniles

Raj.Shekhar@timesgroup.com

New Delhi:





Cops Say Hardened Delinquents Mock Law

Woman and child development minister Maneka Gandhi's resolve to change the law and treat juveniles as adults in heinous crimes has come amidst the release of some disturbing figures by NCRB (National Crime Records Bureau). The involvement of juveniles in cases of rape in the capital shot up by 158% in 2013 (163 cases) as against 2012 (63). And there was a 30% increase in overall crimes committed by juveniles during the same period.
One hundred and sixty three juveniles were apprehended on rape charges and 76 in murder cases last year.That the law is not proving to be a deterrent is quite evident. The involvement of juveniles in the trademark crime of burglary and snatching also went up. There were 928 cases in 2013 as against 523 the year before. Going by these statistics, the concern expressed by the minister is quite valid.
In fact, since the Nirbhaya case, Delhi Police has been demanding that the juvenile age limit be brought down to 16.
“Recently , three boys--aged nine, 12 and 14 --took a seven-year-old girl to a park on the pretext of plucking mangoes and took turns to rape and sodomize her in west Delhi's Paschim Vihar. Also, a juvenile servant masterminded arobbery and murder of a war hero in Patel Nagar in early June. However, the punishment for them will be negligible. Most of the juveniles we catch are aware that being underage grants them a special status,” said a senior cop.
Police say they are helpless in tackling crimes committed by minors, especially in the borderline age-group. Police officers recall the case of Sonu, who burgled and set houses on fire. He would openly threaten them, saying he would be out in a month as he was 16 and teach the cops a lesson. The special task force of south district had nabbed a criminal who roamed around with a fake age certificate and claimed to be a minor whenever he was caught.
In the past three years, juveniles have been found involved in rapes, gruesome
murders of elderly and robberies. A gang of five minors who had dramatically escaped from a city juvenile home last year on October 5 amid rioting and arson had murdered a jeweller's wife in Mayur Vihar a month later and fled with 50kg of silver jewellery and Rs 10 lakh in cash from the house. A juvenile who was just 10 days short of being a major was among them.About a dozen break-outs from correctional homes were reported in the past two years.
However, police stood by as mute spectators while juveniles vandalized the homes as they weren't allowed to go in. Times View This newspaper has consistently argued for making the definition of who is a juvenile flexible based on the nature of the crime. This is by no means a novel idea. Many countries follow such a principle of not making the distinction between adults and juveniles absolute. This is necessary because at stake here are not just the human rights of the accused but also the rights of those whom they have victimized. In many parts of the world, a balance is achieved by calibrating the age below which a person is considered juvenile to the nature of the crime. For heinous crimes like murder or rape, the age limits are lower.
Given how often juveniles in India are involved in such violent crimes, we need a similar approach to the law.