“Adult prisons are like “Animal Farms”- Krishna Iyer J. in Satto v. State of Uttar Pradesh (1979)”
Introduction
High-profile incidents of youth crime often shape public perceptions of juvenile offending. For example, the infamous Delhi gang rape case caused a flutter among the public and a juvenile involved in the act was portrayed as the most barbaric offender amongst all, portraying that children within the age group of 16-18 years are running amok creating heinous crimes making everybody unsafe. Some felt that the Juveniles should be treated as adults, not “coddled” as special people. This resulted in Parliament enacting a modified Juvenile Justice Act, 2015 which reduced the age of culpability of children from 18 to 16 years. A child could now be tried as an adult who is alleged to have committed a heinous offence as per section 15 of the Juvenile Justice Act, 2015 (hereinafter “JJ Act”).
Lord Wynford observed in Hodgens v. Hodgens while rejecting an application of a husband for maintenance of the children out of the wife’s property, which at the time did not recognise any duty on the part of the mother to maintain the children while the husband is alive: “We have heard that hard cases make bad law. This is an extremely hard case, but it would indeed be making bad law”. Delhi case is a classic example of it. The government de jure ignored the J.S Verma Committee recommendation which was constituted in the aftermath of the Nirbhaya gang-rape case, to examine the feasibility of trying juvenile offenders as adult offenders. It categorically rejected the proposition of lowering the age, taking into consideration the modern scientific development in a child’s neurology, which renders a child less competent as compared to their adult counterparts in weighing risk and reward factors.
Labelling A Child Under Juvenile Justice Act, 2015
- Labelling theory identifies adults and juveniles as more or less normal and healthy individuals who respond to societal reactions to the crimes they have committed. For example, a juvenile may be labelled (‘Badmaash’) according to the group or peer with whom they associate, and they have little power to alter that societal reaction based on others. The reaction of a juvenile to the actions of police and courts when he is processed through an adult court is used to name labelling theory as a societal reaction, and interactionist explanation of Juvenile delinquency.
- Cooley coined the term looking-glass self, which argues that we respond to the societal reactions in a way in which the society perceives an individual. (“Everybody thinks I am delinquent, so why not act that way?”).
- The dramatisation of evil, through which Tannenbaum indicates that a person, can become the epitome of what he has been labelled. As Tannenbaum put it:
- “The process of making the criminal, therefore, is a process of tagging, defining, identifying, segregating, describing, emphasizing, making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing, and evoking the very traits that are complained of”.
- A juvenile delinquent when he is sent to an adult criminal court is unconsciously being labelled as a criminal, and the societal reaction to the labelling of a delinquent could alter his behaviour which is complained of. In addition, there is evidence that transferring a child to the criminal justice system may actually increase the risk for greater involvement in crime and delinquency, and this may be the result of labelling.
- A recent study conducted by the author has concluded that the labelling process continues not only at the macro level but also at the micro level. The author in field research on police and juvenile interplay concluded that Police in a mechanical way pay domiciliary visits to the place where a juvenile resides in order to surveillance their movements at night, once a charge sheet has been opened against a juvenile. This process of labelling a juvenile significantly alters his behaviour to the police reaction and bars him from being reintegrated into the society (“reflected appraisals”).
- The author argues that that if a child’s case is tried by the adult’s court in a mechanical way, his record would never be destroyed under section 24 of the JJA, 2015 which protects a child who is not involved in any heinous offence from any kind of disqualification in any public or private employment and this would be a huge disadvantage for the child and the whole process of reformation would take a back seat, further perpetuating the labelling of the child.
Labelling: Leading to Recidivism?
Labelling theory leads to recidivism in juvenile offenders. Treatment of juvenile offenders as adult offenders was not always accepted as the best reaction to juvenile crime. The notion that delinquency was something of a “disease” leads to recidivism in juvenile offenders. Section 21 of the JJ Act, 2015 states inter alia that a juvenile who is processed through an adult court cannot be sentenced to either the death penalty or life imprisonment. Assuming that the juvenile is sentenced for a short span of time under the new JJA, 2015, let’s say 14 years, he would be released sometime in his mid-30s. There is little assurance that the juvenile would be a reformed person and would not commit a crime for that he was imprisoned (or any other crime, for that matter). The Indian Prison system does not focus on a rehabilitative approach but rather focuses on a ‘retributive’ approach. The prison system does not engage with prisoners as human beings. Therefore, our system breeds more criminals by ghettoing the juvenile prisoners.
A Cue from the German Juvenile Justice System
The Juvenile Justice in Germany has a combined justice and welfare model in its system (Sozialstaat). Under the JJ Act, waiver of a child aged between 14-18 years to adult courts is not permitted. A child cannot be tried and sentenced outside the protective umbrella of the JJ system. Although, voices within the country echoed time and again to review the JJ system, the system has not changed and it will not change toward a “neo-liberal” approach. The most important issue in the German Juvenile Justice system was the introduction of sweeping reforms in the JJ Act (Jugendgerichtsgesetz) in 1953 which brought within “its purview adults aged between 18-21 years, who could now be tried in Juvenile Court. (Jugendgerichtsgesetz). It is rather exceptional, that the JJ System in Germany is taking an altogether different path as compared to other countries, which are excluding children from the JJ System.
Section 105 (No. 1) of the JJ Act provides that an adult aged between 18-21 years could be tried and sentenced as per JJ Act, “if on global examination of adult personality and of his social environment indicates that at the time of committing the crime, the young adult in his moral and psychological development was like a juvenile”. (Reifeentwicklung). The JJ System in Germany has remained stable, despite the upheaval in other countries, which brought abrupt changes in the JJ System, with a trend of excluding juveniles from the purview of benevolent legislation.
For the past 15 years, juvenile crime rates, particularly violent offences, and the youth population in prisons have decreased (20 per cent since 2005). The legislation in Germany has tried to maintain the sui generis status of the juvenile system with a “no punitive” approach in its dealing with juvenile crimes. For example, in Neustrelitz Youth Prison, there is an extensive vocational program including professional woodworking, metalworking, culinary instruction and farming, with no use of solitary confinement or strip-searching.
Conclusion: Minimizing the Stigmatisation
The principle of primus non nocere is fundamental when dealing with children. (First, not harm). The child should not be mechanically processed through an adult criminal justice system. The author argues that the committal of a juvenile to the adult criminal system should be done only in the ‘rarest of rare’ cases. Although it is not impossible to put the genie back into the bottle by repealing the law; the Hon’ble Bombay High Court in Mumtaz Ahmed Nasir Khan v. State of Maharashtra has recently shown a way out to avoid labelling a child through the adult criminal justice system. It has held that the Special Investigation Report prepared under section 15 of the JJ Act should also contain the seriousness of the offence, the gravity with which it was committed and whether society needs protection from the juvenile, without mechanically resorting to the categorisation enunciated in the JJ Act to transfer a child to the adult system.
This blog is written by Deepak Singh and Abhishek Pratap Singh, Advocates, Supreme Court of India (Graduate of NLUO)