This Article is From Apr 28, 2015

The Danger of Treating Children As Adults

Recently I have been thinking about a news story I read in 2013: a five-year old boy accused of stealing was thrashed by a mob - 'the public'; later, at the police station, electric shocks were apparently applied to his ears to get him to confess; and eventually, a Juvenile Justice Board (JJB, the adjudicating authority for children accused of committing offenses) instead of dismissing the case, released him on bail, meaning that they thought it necessary to carry on proceedings against a five-year old. One would have assumed that the only worthwhile prosecution in this matter would have been of the police, and the mob that tortured and abused the little boy. And that the JJB would have exercised common sense, or at the very least read the Indian Penal Code and known that a child of five cannot and should not be held criminally responsible.

But no.

What I learnt from that story is this: functionaries of the state - the police as well as magistrates - and the public at large cannot always be trusted to recognize who a child is, and how he is to be treated - even when he is only five. For clearly, when presented with knowledge of an offense, even a minor one, the ability of otherwise normal people to have a rational, reasoned, and dare I say, human response, was overshadowed by their outrage at wrongdoing.  

No small wonder then that we find ourselves where we are today. A country baying for blood. The blood of young people accused of committing heinous crimes.

Any minute now, a new Juvenile Justice Bill will be tabled in Parliament. Ignoring the Parliamentary Standing Committee's comprehensive report and rejection of the Government's position, the new Juvenile Justice Act will allow for the transfer of children between the ages of 16-18 who are alleged to have committed heinous crimes to the adult criminal justice system. Here, they will be treated as adults, will live among adult criminals, and serve sentences that can include imprisonment for decades. Juvenile Justice Boards, yes, bodies just like the one that could not see past its rigid mindset to protect a five-year-old, will now be given the task of determining the cognitive, emotional and psychological maturity of children who stand accused before them - accused, mind you, not guilty. They will have the power to find certain children to not be children any more, and to deem them undeserving of the protection guaranteed by law. How JJBs will conduct this assessment of maturity is wholly unclear, and, according to psychologists and mental health experts, including eminent ones from the National Institute of Mental Health and Neuro Sciences (NIMHANS), is actually impossible to do. In a country with only 2,500 trained psychiatrists, getting 'expert' advice to the JJB as proposed by the Act might be the stuff of fantasy.

As a practitioner who has worked closely with the juvenile justice system and with children in conflict with law for many years, it's frightening to imagine what the future looks like for young people. To understand my fears, consider this:

Between February-May 2013, my organization spoke to 264 boys in conflict with law detained in 31 Observation Homes, and this is what we learnt:
  • 72% of children said they had been kept in a police lock-up prior to being presented before the JJB, with 38% reporting it was for as long 7-10 days, in complete contravention of the law.
  • While in police custody, 45% of children were physically abused, another 27% were kept hand cuffed, and 31% said they had been verbally intimidated and threatened. Some of the more extreme stories involved allegations of being forced to make confessions after being ruthlessly beaten, and being extorted for large sums of money in exchange for release. The beatings happened late at night, and iron rods and wet leather belts were used. As an aside, one must note here that international studies suggest that young people are more likely than others to be coerced into making false confessions because they are more susceptible to pressure, intimidation, fear, misunderstanding procedures and questions, and therefore are thought to have a reduced ability to be fit for trial in adult courts.
  • 75% of children said that the JJB had not asked them any questions nor made any attempt to listen to their account of the alleged offence. "They don't even raise their eyes to look at us" was the complaint made by one young boy.
  • More worryingly, some boys said that when the Board did speak to them, it was to urge them to confess to the crime. "Did you commit the crime? Confess and you will get bail quickly" was a sentiment many boys heard.

Highlighting systemic failure at this juncture is, I know, fraught with risk. For it speaks loudest to an audience that is sickened by dysfunction and already has little or no faith in the juvenile justice system. I take the risk advisedly. Because it's crucial for us to think about the policemen who will be framing the charges that will determine whether a heinous offense was actually even committed.

It's crucial to think about the JJBs, many of whom have shown little interest in the children before them, who will be conducting enquiries that will change a child's future unutterably. A child, who at the point when the decision is made to transfer him, might well even be innocent. It's crucial to think about what will happen to the many young boys accused of serious offenses like rape and kidnapping and forced confinement, charges pressed on them by irate fathers who can't bear the thought that their daughter dared to run away or have a relationship with a boy of her own choosing, sometimes crossing caste and religious boundaries. Whose side will these functionaries of justice take, do you think? And the result? - long sentences of up to 20 years for teenagers who dared to love.

Let's be realistic, this law is going to bring a vast swathe of youngsters into its ambit. To insulate ourselves by thinking that it will be implemented with surgical precision to target only those who have 'shocked our conscience' with their alleged brutality, is to be ostrich-like. In a country as riven as ours with inequality and prejudice of every kind, the imminent passage of this potentially dangerous Bill must force a moment of cool reflection.  

We have given nothing to our young people. No care, no protection, no education, no opportunity, no hope. Just a twisted adult world in which they must negotiate survival, exploitation, hard labour, violence and abuse. Having stripped children off their childhood, we are ready now to punish them for it. It's Kafkaesque.

A paucity of imagination on the part of successive governments and a cynical manipulation of the public's justifiable anger at a culture of impunity and violence will now result in us taking a giant step backwards in our commitment to children and young people. While simultaneously making the world safer for nobody. There is a vast body of empirical evidence from other countries who have succumbed to similar pressures and treated their children as adults to show that this is a failed experiment.

Juvenile Justice privileges reformation as a primary goal over long-term incarceration because it is understood that young people are more amenable to reform.Therefore, both from a child rights as well as a pragmatic perspective, focusing on correction is the only real way to strike at the root of reoffending (and thence public safety) in the long term.

(Atiya Bose is the director of Aangan, an Indian non-profit organization that works with children in dangerous situations like child trafficking, child marriage, hazardous work, and violence and abuse, to prevent and protect them from harm.)

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