Adult prisons are like “animal Farms”- Krishna Iyer J. in Satto v. State of Uttar Pradesh (1979)
High-profile incidents of youth crime often shape public perceptions of juvenile offending. For example, the infamous Delhi gang-rape case sparked the public outrage and a juvenile involved in the act was portrayed as the most barbaric offender by the media. It portrayed that children within the age group of 16-18 years are running amok committing heinous crimes making everybody unsafe. Some felt that the Juveniles should be treated as adults, not be “coddled” as special people. This resulted in the Parliament enacting a modified Juvenile Justice Act, 2015 (hereinafter “JJ Act”) as a fire-fighting measure to mollify the public clamour. It 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 JJ Act. Section 15 mandates a Juvenile Justice Board to transfer a child to adult criminal system after a preliminary assessment is conducted by it to ascertain child’s capability to commit such an offence.
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 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”. The Delhi case is a classic example of this. The government de jure ignored the commendations of the J.S Verma Committee 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 down the age, taking into consideration the modern scientific development in child’s neurology, which renders a child less competent as compared to their adult counterparts in weighting risk and reward factors.
The author, in this paper would identify the effect of transferring a juvenile to the adult criminal system which renders a child susceptible to recidivism and contributes to labeling of the child as a criminal.
Court, Police And Juvenile Interplay: Perpetuating Labelling Under The JJ Act
Labeling theory identifies adult and juveniles more or less as normal and healthy individuals who respond to societal reaction to the crimes they have committed. For example, juveniles may be labeled (‘Badmaash’) according to the group or peer with whom they associate, and they have little power to alter that societal reaction based on others. To label someone as a thief, a sex fiend, a radical-is to assign one to a kind of master status seen as the essence of the person's personality. From the vantage point of the distance viewer, the unsavoury deviant characteristic becomes the basis for interpreting the deviant's total identity. The reaction of a juvenile to the actions of the police and courts when he is processed through an adult court is used to name labeling theory as 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?”).
Tannenbaum discussed the impact of police and court intervention in the labeling of the children and suggested that transferring a child to adult criminal system had a negative impact. 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 transferred to an adult criminal court is unconsciously being labeled as a criminal, and the societal reaction to the labeling of a delinquent could perpetuate his behavior which is complained of.
A recent study conducted by the author has concluded that the labeling process continues not only at the macro level, but also at the micro level. The author in a 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 surveil their movements at night, once a charge sheet has been opened against a juvenile. This process of labeling, stigmatizing and ridiculing a juvenile by paying domiciliary visits significantly alters his behavior to the police reaction, and bars him from being a reformed person and his reintegration into the society (“reflected appraisals”).
The author also argues that that when a child is transferred to an adult criminal system for heinous offences, he may incur disqualification in public employment after conviction in a case, which was not the case before the amended JJ Act, 2015. Section 24 of the JJ Act protects a child from any kind of disqualification in any public or private employment. It now excludes the children who has completed the age of sixteen years from the “protective umbrella” of the act. This would be a huge disadvantage for the child and the whole process of reformation would take a back seat, further perpetuating the labeling of the child.
A Cue From German Juvenile Justice System
The Juvenile Justice in Germany has combined justice and welfare model in its system (Sozialstaat). Under the German 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 JJ system. Although, voices within the country echoed time and again to review the JJ system, the system has not changed. The most important issue in the German JJ system is the introduction of sweeping reforms in the JJ Act in 1953 which brought within its purview adults aged between 18-21 years, who could now be tried in Juvenile Court. (Jugendgerichtsgesetz).
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). It is rather exceptional, that JJ System in Germany is taking an altogether different path as compared to other countries, which are excluding children from the JJ System.
For the past 15 years, juvenile crime rates, particularly violent offences, and the youth population in prisons have decreased (–20 percent since 2005). The legislation in Germany has tried to maintain the sui generis status of juvenile system with “no punitive” approach in its dealing with juvenile crimes. For example, in Neustrelitz Youth Prison, there is an extensive vocational program including professional woodworking, metal working, culinary instruction and farming, with no use of solitary confinement or strip searching.
Conclusion: Minimizing the stigmatization
The principle of primun non nocere is especially important when dealing with children. (First, do no harm). The author argues that the committal of a juvenile to adult criminal system should be done only in exceptional cases where the offence committed by a juvenile results in extreme indignation of the society. Although it is not possible 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 labeling a child by mechanically transferring him to adult criminal system. It has held that the Special Investigation Report prepared for preliminary assessment under section 15 of the JJ Act should also contain the seriousness of the offence, the gravity with which it was committed and whether the society needs protection from the juvenile. This would help in reduction of juveniles being transferred into formal justice system.
Deepak Singh is an Advocate at the Allahabad High Court, Lucknow Bench, and alumni of National Law University, Odisha.
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