Recently, several newspapers reported that after consultations with experts and looking at the practice in developed societies, the Ministry of Women and Child Development (WCD) is of the view that juveniles in the age bracket of 16 to 18 years committing heinous crimes should not have the protection of the Juvenile Justice Act (JJA). Further, the WCD ministry has also found in its study that a term in reformation homes does not necessarily lead to behavioural correction.
Both these statements are highly problematic. The experts have not been identified and it is unclear which developed societies have demonstrated a decrease in juvenile crimes by excluding children committing serious offences from the juvenile justice system. I am assuming that perhaps USA and UK qualify among these societies as they are the most referred countries in the newspaper reports.
In 1978, America resorted to harsher punishments and lowered the juvenile age to 13 years for murder and 14 years for rape, robbery etc. Juvenile delinquency was at its peak there in the year 1994 – more than 8,000 offenders out of every one lakh children. In 2010, the juvenile crime rate came down to 4,857, but all the research studies done in America on the impact of severe punishments in the case of juvenile delinquency point out that no connection has been found between a decrease in the rate of juvenile delinquency and an increase in severe punishments. In 2010, American juvenile courts dealt with more than 10 lakh cases of juvenile delinquency out of seven crore 10-17 year olds in the US. Despite the continuation of such a high incidence of juvenile crime over decades, the American Supreme Court ruled against the death penalty for children in the Roper v Simmon case of 2005 and prohibited the imposition of imprisonment without parole to children in the Graham v Florida case in 2010. This change has come about with revelations from neuroscientists who found from the study of adolescent brains that those in the age group of 16-20 are the most prone to risky behaviour, as the part of the brain which stimulates this is more developed than the part which gives adults the ability to control such instincts. The American studies also found that, “Teenagers prosecuted in adult courts or who do time in adult jails fare worse in life and can go on to commit more violent crimes than those who are handled by the juvenile justice system. Neuroscience research has found that these young offenders don’t weigh risks the way adults do, making them prone to rash judgments that can land them in trouble with the law. These facts argue for steering adolescents into the juvenile justice system, where they can receive rehabilitative services and be spared adult criminal convictions that banish them to society’s margins and make it virtually impossible for them to find jobs.” Today, only two states in the USA have fixed juvenile age at 16 years while 37 states have it fixed at 18 years.
England and Wales in the UK have done no better with harsh punishments and the exclusion of children as young as 12 and 13 from the juvenile justice system. In 2011-12, juvenile delinquency in England and Wales was 15 percent of the total crime, while the juvenile population that could commit crimes was 10 percent. One in every 445 children in the age group of 10-17 was arrested for a violent offence. On the other hand, Scotland in the UK, has only 6 percent juvenile delinquency dealing with all children up to the age of 16 through its Children’s Reporter system. The Scottish approach is based on a number of principles: not guilt or innocence but simply considering whether the facts, “the grounds”, are established; there is not a sentence for a specific offence but a disposal taking into account the complexity of that child’s life.
India is a picture in contrast from USA and Britain. Total crime offences reported in India in 2012 were 23,87,188. Out of these, a miniscule 27,936 offences were committed by children. A total of 35,123 out of 44,83,36,000 children were arrested (not convicted) for these offences. Out of the total 2,75165 violent offences, children below the age of 18 committed 8779 violent offences. Of these, 2856 were related to murder and rape. The total number reduces to 1698 offences which were committed by children within the age range of 16-18 years in the whole of India.
Is the WCD Ministry saying that this number of children cannot be provided intensive individualised supervision, education as well as psychological and sociological support by India, a country which has a human resource of more than a billion people and experts in every field? Is there scientific evidence to show that behavioural change cannot be achieved within three years?
Across the boards, education is given in chunks. Primary school is five years, middle school is three years, high school is two years and higher secondary is two years. A graduation degree in our country is three years (except in Delhi University), professional degrees are limited to three and five years in law, four years in engineering, and four and a half years in medicine, while post-graduate degrees are two years. Education is not provided in chunks of 20, 10 or seven years, as chosen by the Indian Penal Code as severe punishment.
If the Reformation Homes are not leading to reformation, it is because the WCD Ministry has not established such homes with the required specialists and experts who can bring about the desired change in the behaviour of 16-18 year olds committing serious offences, as is required to be established under the Section 16 (2) proviso of the JJA. The UN Congress on Rehabilitation of Offenders in 1980 had pointed out the irony of long term imprisonment through which, we want to prepare persons for freedom by taking away their freedom, make them responsible citizens by giving them no responsibility and mainstream them in society by keeping them out of it for a long time. Short term imprisonments have for long being decried, as they do nothing more than take away the fear of crime from the offenders. It is not the duration of confinement but what we do during that confinement that determines if society will be safe after a prisoner is released from prison. Asking for long term imprisonment without a focus on the demands of reformation and rehabilitation is nothing more than a veiled demand for retribution and revenge to assuage the feelings of hurt of the victim.
There is no denying the hurt and irreparable loss to victims of violent offences and their desire for the blood of the offender. In societies ruled by law, the decision should be made by weighing the long term consequences on society, rather than by sentiments alone. Long periods of incarceration of children in prison will create persons without roots in society, no possibility of their reintegration and rehabilitation on release, escapes and discipline problems in prisons and an increased tax burden on ordinary citizens. Hence, we need better secure reformation homes completely equipped to deal with children involved in violent crimes, coupled with equally strong victim protection and rehabilitation programmes and psychological and financial support for the victims. Child abuse, dysfunctional parenting, parent criminality, truancy, exposure to violence and poverty, underlying drug or alcohol issues, peer pressure, lack of family supervision and support have been found to be at the root of violent offends by children. The Ministry needs to work for the elimination of these factors rather than stashing children in prisons.
The author is Professor of Law, University of Delhi
 “Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance?” by Benjamin Steiner and Emily WrightSource, The Journal of Criminal Law and Criminology (1973-), Vol. 96, No. 4 (Summer, 2006), pp. 1451-1477.
 Violent offences included are Murder, Attempt to Murder, Culpable Homicide not amount to Murder, Rape, Kidnapping and Abduction, Preparation and Assembly for Dacoity, Dacoity, Riot, Arson, and Dowry death.