INTRODUCTION
The juvenile justice system connotes adjudication, “protection and care,” rehabilitation, resettlement, and reintegration for juveniles in conflict with the law. Unlike the criminal justice system, which is largely based on theories of punishment (Salmond Reference Salmond1907) like deterrent, retributive and preventive theories, the juvenile justice system is developed on the bedrock of reformation and expiation.
The paper studies the development of the juvenile justice system and reforms in India. It describes the role of policing systems in the administration of juvenile justice. It studies the legal systems across the Americas, Europe, and Asia and evaluates the institutions and procedures which the Indian system may adopt for better justice delivery.
It also makes suggestions based on the project “Disha,” a juvenile re-entry support and intervention system for juvenile offenders. Under Disha, over 400 offenders were engaged in a reformative-cum-rehabilitative process, which included a three-phased approach of counseling, vocational training, and employment and entrepreneurial opportunities (Nair Reference Nair2019).
Juvenile – A Definition
The Oxford dictionary defines “juvenile” as “for or relating to young people.” Under Indian law, anyone who has not attained the age of majority according to the Indian Majority Act, 1875 (Government of India 1875) is considered a minor. Juveniles are minors who have not attained 18 years. In legal terms, a juvenile may be defined as a child who has not reached a certain age at which he may be held liable for his criminal acts like an adult person under the country’s law.
Juvenile Delinquency
The term “juvenile delinquency” applies to violating the criminal code and certain behavior patterns that are not approved for children and young adolescents. It may be grouped as individual delinquency (in which only one individual is involved and the cause of the delinquent act is traced to an individual delinquent), group-supported delinquency (committed in companionship; the reason is attributed not to the personality of the individual but the culture of the individual’s home and neighborhood), organized delinquency, and situational delinquency (Sharma, Dhillon, and Bano Reference Sharma, Dhillon and Bano2009).
JUVENILE CRIME: DATA ANALYSIS
India – Trend
In India, the National Crime Records Bureau (NCRB n.d.) is the nodal authority for collecting and analyzing crime data. Based on the data, it is found that India has been witnessing high growth in juvenile crime in the last two decades. There has been a 65% rise in juvenile crimes in the previous 15 years (2004 to 2018). Since 2004, the graph has seen two major surges. The first steep rise can be observed from 2005 to 2008, and the second from 2010 to 2016.
Education
Of the juveniles in criminal cases, 44.5% have educational qualifications above Primary to matriculation. Those with education above Higher Secondary stand very low at 3.29%, and 9% are illiterate.
Age
The overwhelming majority of juveniles committing crimes fall in the age group of 16 to 18 years. From 2014 to 2018, the percentages of youths in criminal cases falling in the group are 74.92, 71.84, 73.75, 72.22, and 75.45, respectively. It shows a gradual increase in the number of juveniles committing crimes in the age group vis à vis the total number of such crimes.
Family
It is observed that an overwhelming majority of 84.77% of juveniles in criminal cases live with their parents or guardians. The crime committed by homeless youth accounts for 6.25%.
Heinous Crime
Analysis of heinous crimes under three heads suggests that in the year 2017, juveniles committed 982 murders, 1737 rapes, and 257 dacoities (robberies by an armed gang). In 2018, there were 1039 murders, 1678 rapes, and 304 dacoities, a rise of 5.8% in dacoity and 5.9% in murder cases, respectively.
STATUTORY PROVISIONS IN INDIA
The Indian Parliament brought the Children Act, 1960 (Government of India, Ministry of Women and Child Development n.d.) to provide for the care, protection, maintenance, welfare, training, education, and rehabilitation of neglected or delinquent children and the trial of wayward children in the Union territories. The law introduced a gender-based definition of child and established two separate adjudicatory bodies to deal with children in “conflict with law” and children in need of “protection and care.” It prohibited the imposition of the death penalty or sentence of imprisonment or the use of jails or police stations for keeping children. Also, the law did not recognize the right of a lawyer to appear before the children’s court, which was later amended in 1978 to permit lawyers to represent before the court but not the juvenile board.
The Juvenile Justice Act, 1986 (LatestLaws.com n.d.) was passed in Parliament. In addition to the provisions of the repealed Children Act, 1960, the new legislation included requirements for advisory boards, children’s funds, and the appointment of visitors to homes. The introduction of the United Nations Convention on the Rights of the Child (Cohen and Naimark Reference Cohen and Naimark1991) was a watershed in international law for children’s rights. The convention elaborated on four major themes: survival rights, development rights, protection rights, and participation rights.
The convention includes four articles, known as general principles. Along with the four themes, they form the rights-based framework for children. Along with it, the Beijing Rules (1985), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) (Crawshaw and Holmström Reference Crawshaw, Leif, Crawshaw and Holmström2008), and the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Pfund Reference Pfund1994) have been the guiding light to juvenile justice reforms.
The Juvenile Justice Care and Protection of Children Act (2000) and The Juvenile Justice Care and Protection of Children Act (LegalServicesIndia.com n.d.) were brought in compliance with these rules and conventions. They laid the foundation of a progressive juvenile justice system in India. The law defined the protective right to safeguard children in the criminal justice system. It also brought changes in the provisions in the juvenile justice system, child marriages, and immoral trafficking.
The Nirbhaya gang rape case (Dube Reference Dube2014) in New Delhi shook the nation’s collective consciousness. Amidst the public outcry on the inability of the law to prosecute juveniles in serious and heinous crimes, Parliament brought in an amended juvenile justice law (Care and Protection of Children Act, 2015) (Agarwal and Kumar Reference Agarwal and Kumar2016). According to the amended law, a young person aged 16 to 18 years involved in heinous crimes may be treated as an adult based on the judicial assessment. In adherence to India’s commitment under the Hague Convention, the law streamlined the adoption process for abandoned, orphaned, and surrendered children.
In Shilpa Mittal v. State of Nct of Delhi on 9 January 2020 (n.d.), the Supreme Court of India observed that the Juvenile Justice Act of 2015 does not deal with the fourth category of offences where the maximum sentence is more than seven years’ imprisonment, but no minimum sentence or a minimum sentence of fewer than seven years is provided and treated the same as “serious offences” under the Act (Government of India 2021).
The Juvenile Justice Act categorized offences into three categories – petty, serious and heinous. The act put an offence as “serious” if it has maximum imprisonment of seven years and minimum punishment of three years, and “heinous” if it has minimum imprisonment of seven years. Here, the law missed the penal code category that does not mention any minimum offense imprisonment. Like in Section 304 of the Indian Penal Code (IPC), the accused shall have maximum imprisonment of 10 years. Under the section, no minimum punishment is mentioned in the law. So, to include the discrepancy, the legislature introduced the Juvenile Justice Act, 2021, broadening the definition of “serious offences” to bridge the gap.
It is seen that both the police system and juvenile justice law and reforms are in a state of constant flux. The objectives of juvenile justice may be achieved with a police system sensitive and well-trained to meet the demand of reforms. Being the first responder, the police have an important responsibility to protect the rights of young persons and at the same time make them conscious of their actions. Here, the role of a police officer is not to treat the minor like a criminal but to understand and appreciate factors that may be responsible for turning him to the crime world and provide timely intervention in the form of counseling, training, and rehabilitation resettlement. A perfect balance between punitive and reformative resettlement measures by the police systems in juvenile justice may be a game-changer in promoting public safety, reducing recidivism, building on demographic dividends, and unburdening the criminal justice system.
POLICING SYSTEMS
Evolution
The institution of policing is part and parcel of our society. The institution has evolved to achieve the objective of a peaceful and stable society. Before the idea of state developed, policing in empires was a private affair, i.e. a rich man may employ any number of slaves for his security. Even during the Roman Empire, policing as a public service was found absent. The affluent class used to own private men to protect their lands and people.
It is important to note that even the crimes in earlier times were mainly a personal matter. Crimes like murder, rape, etc., were settled by the victim’s family locally, either by revenge or blood money. Half-baked development of the police system can be found in the prefecture system (Chien Reference Chien2011) in China in the 16th century, but the first attempt to create a modern police system happened in France. A royal edict passed by the Parliament in 1667 in Paris established an office of Inspecteur général de police (Inspector General of Police) as the head of the Paris police.
In India, the provincial administration under the Mughal Empire (Richards Reference Richards1995) had the rank of kotwal that came closest to a police officer (Pritchett Reference Pritchettn.d.). They were not provincial officers but appointed by the central government to perform executive and magisterial duties very similar to that of the present-day police commissioners. The modern policing system is a product of British colonialism; here, the Police Act, 1861 (Behari Reference Behari1961) laid the foundation of an organized police force in India.
Police and Juvenile Justice – A Dialectics
“It is the power of punishment alone when exercised impartially in proportion to the guilt, and irrespective of whether the person punished is the King’s son or the enemy, that protects this world and the next.” (Kautilya n.d., quoted in Sihag Reference Sihag2007)
The spirit of police systems revolves around law enforcement (Chousalkar Reference Chousalkar2004). Their work focuses on crime detection, prevention, and investigation to ensure the punitive sentencing of the offender. This is in stark contrast with the spirit of juvenile justice, which has to build upon the principles of positive measures, dignity, worth, and the offender’s best interest. These contradictions in the ideas serve as a determining factor in the relationship between police and juvenile justice systems. The dialectics between the two systems have resolved the differences by constant adaptation to the needs of each other (Rosen Reference Rosen1984).
The development of the state and modern police force has happened hand in hand. A state is a political system with defined boundaries, constituting various arms of government like defense forces, civil services, judiciary, etc. As the state system matured, criminal acts against a state subject were no more a private affair but an act against the state. This transformation led to the criminal justice system’s development to provide a fair hearing and justice delivery services. Here, police developed as a vital service to be delivered to the citizens of the state.
With rapid urbanization coupled with technology growth, the challenges faced by police have grown manifold. The newer areas under police purview include administration and investigation under juvenile justice, cybersecurity, terrorism, border management, economic and financial fraud, forensics, etc.
Here, juvenile justice is noteworthy as it is based on the theory of reformation and expiation. The reformation theory seeks to bring attitudinal change in the offender to rehabilitate and reintegrate him back as a law-abiding citizen. It also emphasizes educating the offender with various skills to enable him to lead a respectable life. The theory of expiation is based on morals; it believes that repentance is a way of punishment.
The principles which inspired the separate juvenile justice system are the presumption of innocence, dignity, worth and safety, equality and non-discrimination, and a fresh start for the juvenile. Unlike the traditional criminal justice system, which is identified with punitive measures, this system believes in rehabilitation and reintegration measures for the youth. This system seeks to provide equality of opportunities and a life with dignity to the juvenile.
Police are the first responders, the primary agent to contact a young person involved in a crime. They are expected to handle such crimes very delicately; it is expedient for a police officer to be sensitive to the care and reformative needs of the offender. India has recorded a 65% rise in juvenile crime in the last 15 years. The law has grown to broaden the role of police in administering rising juvenile crime.
Role of Police – Juvenile Justice in India
The role of police in the administration of the juvenile justice system and reforms has been under constant metamorphosis. Under the Juvenile Justice Act, 2015, Sections 107(1) and 107(2), the law mandates the establishment of a Children Welfare Police Officer (CWPO) and Special Juvenile Protection Unit (SJPU), respectively. It says that in every police station, an officer not below the rank of assistant sub-inspector of police may be designated as a CWPO, who shall exclusively deal with children, victims, or perpetrators, and voluntary and non-governmental organizations (NGOs). Also, at the district level, an SJPU is headed by an officer not below the rank of Deputy Superintendent of Police or above consisting of police officers, two social workers having experience in child welfare, one of whom shall be a woman.
The law appreciated that police hold a special place in the criminal justice system. Police are the gatekeepers of the system. The Juvenile Justice Act, 2015 directed that once the police apprehend a child, he shall be put under the charge of an SJPU or CWPO, who shall produce the children before the Juvenile Justice Board within 24 hours. Before the minor is taken before the court, he stays under the charge of a special unit of the local police. It is pertinent to note that the 2015 amendment improved upon the Juvenile Justice Act, 2000, giving 24 hours for the production of the juvenile offender. Earlier, the law mandated that the presentation shall be made immediately. It suggests that the lawmakers appreciated the important role of police to ascertain the crime details in that duration. The entrustment of police to deal with juveniles reflects the increasing faith in police systems in dealing with juvenile offenders.
The Juvenile Justice Act, 2015 designated the SJPU as a nodal agency to communicate with the parent or guardian of a young person apprehended. The presence of parents or guardians gives the young person a feeling of safety and protection. Such involvement in the early stage also deters the person from recidivism. The act also made the SJPU responsible for informing the probation officer or child welfare officer. The probation officer or child welfare officer is responsible for submitting a social investigation report covering the antecedents and family background of the young person to the board.
Under the act, the Child Welfare Committee is to be constituted at the district level to exercise the powers and discharge the duties conferred on such Committees concerning children in need of care and protection. Upon receiving a report, the committee may pass an order to send the child to a children’s home or any fit facility and institute a social investigation by a social worker, child welfare officer, or CWPO.
The Supreme Court of India in Sampurna Behrua v. Union of India drew attention to the failure of the state governments to implement the provisions of the Juvenile Justice Act (2000/2015) and the truly horrific conditions in homes for children across the country. It touched on the role of the police. The court said that “the local police is an extremely important stakeholder in implementing the J.J. [Juvenile Justice] act.” The part of the police in the implementation of the juvenile justice system is manifold. The minor remains in charge of a police unit – CWPO or SJPU – 24 hours before production before the board. The police officer serves as a bridge between the minor and his parents or guardians. The CWPO may conduct a speedy social investigation on the young person’s involvement in crime and his background.
There has been a steep and alarming rise in juvenile crime in the last two decades. The law was amended in 2015 to allow criminal prosecution against juveniles aged 16 to 18 years in heinous offenses. The role of the police machinery has increased in the backdrop of the rising incidence. The work of SJPU and CWPO, dedicated police units dedicated to handling juvenile crimes, is broad-based.
INTERNATIONAL COMPARISONS – JUVENILE JUSTICE AND POLICE
United Kingdom
The juvenile justice system in the United Kingdom is based primarily on the Crime and Disorder Act 1998 (Piper Reference Piper1999) and the Youth Justice and Criminal Evidence Act 1999 (UK Government 1999). Its foundation is the principle of parens patriae, Latin for “parent of the nation” (literally, “parent of one’s country”) (Ratliff Reference Ratliff1999), meaning that the state must protect children under its care. Under the law, a child under the age of 10 years cannot be held liable for a criminal proceeding, but children between 10 and 17 years of age may be considered adults based on various factors. Here, the youth justice system is categorized into two segments – pre-court proceeding and court proceeding.
In the pre-court system, if a child between the age of 10 to 17 years is believed to have committed an offense, the police have two options: one, it can issue an informal warning or “telling off” on the street; two, a formal action, whereby police need to interview the child in the presence of a parent or guardian, and in their absence an appropriate adult, preferably a social worker. After the interview, if the police find a case against the young person, the police may decide to take no further action or pursue formal action.
Under the law, the youth justice system follows an intervention gradient. Once a reprimand is given, another offense will attract the final warning under which a referral can be made to a local youth offending team, which works on the possible interventions to prevent future offending through rehabilitative and protective measures. Once a reprimand and final warning are given, any further offending will normally be dealt with through the court.
Once the pre-court measures are exhausted, police initiate youth court services. There are various modalities under which the young person is dealt with depending on the nature of the offense, criminal record, etc. These can be categorized under community sentences, civil or criminal orders, custody in correctional facilities, referral orders, bind over, compensation over bind over, and discharges.
United States of America
In 1899, the first juvenile court in the United States, and arguably in the world, was founded in Cook County, Chicago, Illinois. It was based on the idea that juvenile offenders need protection and treatment. The concept comes from the British justice system’s principle of parens patriae.
In 1974, the United States Congress passed the Juvenile Justice and Delinquency Prevention Act. The law segregates the juvenile justice system from the regular criminal justice system. Also, an office of Juvenile Justice and Delinquency was created to focus on juvenile crime, rehabilitation and resettlement measures, and funding research on delinquency.
First, the American juvenile justice system was based on rehabilitation and resettlement care, but with the rise in juvenile crimes in the 1980s and 1990s, it has moved towards punitive sentencing (Zimring Reference Zimring2018). Under the law, a person under the age of 18 years is considered a minor. However, a young person aged 16 to 18 years may be treated as an adult for certain crimes. There is variation among the states. For example, a young person above 14 years can be treated as an adult for certain crimes in Kentucky.
The American juvenile justice process involves nine major modalities concerning young persons involved in crime – arrest, referral to court, diversion, secure detention, a judicial waiver to adult criminal court, case petitioning, delinquency finding or adjudication, probation, and residential placement, including confinement in a secure correctional facility. Police machinery plays an important role in all these modalities.
The juvenile justice system and the role of police in the American system can be understood in two major stages: pre-judicial diversionary measures and judicial and post-judicial measures. At the first stage, based on the crime incident and young person’s background, the police officer in charge of the case may exercise full discretionary powers to keep the juvenile offender in child custody or to release or admonish or do both immediately. This stage identifies the role of police as first responders in the case of juvenile crime. The law entrusts police with the powers on non-invocation of judicial proceedings based on the seriousness of the crime and the young person’s background.
In the second stage, a police officer produces the young person before the Juvenile Courts, after which the court exercises its authority. Based on the facts brought before the court, it may treat the minor as an adult person. Once the trial is over, the court may transfer him to residential placement or recommend confinement to a correctional facility. It is pertinent to mention that police in the United States can interrogate the young person involved in a crime to unearth details. Such interrogation has twofold advantages: it reveals the finer details of the crime, which provides the court with a better understanding of the case. Then, it works for crime prevention as it may reveal details of a gang involving other young people having a propensity towards crime. This information can be used to direct the rehabilitative programs better.
Rehabilitation and Reintegration
It is pertinent to mention the Fontana, California Re-entry Support Team (Fontana Herald News 2014), a program initiated by the Fontana Police Department. The program helps early-release prisoners and individuals with a criminal record obtain services and training to help them integrate better into society. The team works with community organizations with an emphasis on finding employment for these individuals. This program in Fontana designed to prevent criminals from reoffending is gaining traction and catching the attention of public safety researchers.
Rights of Juveniles
The rights-based juvenile justice system is a sine qua non for fair justice delivery. Here, the rights of the young person involved in the crime must be protected and preserved. The Supreme Court of California stated that the minor’s request to see his parents and probation officer constitutes an invocation of the minor’s Fifth Amendment (Amar and Lettow Reference Amar and Lettow1995).
The court based this conclusion on its view that, because of the juvenile court system’s emphasis on the relationship between a probation officer and the probationer, the officer was “a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement the protective and rehabilitative powers of the juvenile court.”
In 1967, The Supreme Court in In Re Gault stated that juveniles in conflict with the law possess constitutional guarantees under due process as enjoyed by adult criminals. In 1975, the court ruled that once the youth is an “adjudicated delinquent” in a juvenile court, he cannot be prosecuted for the same offense in an adult court. This would violate the right against double jeopardy under the Fifth Amendment.
The U.S. Supreme Court in Roper v. Simmons ruled it unconstitutional to sentence an offender to death if the offense was committed when the offender was under 18 years of age (Feld Reference Feld2008). The Court in Graham v. Florida (Guggenheim Reference Guggenheim2012) and Miller v. Alabama (Scott Reference Scott2013) declared that life without parole was an unconstitutional sentence for youth offenders.
It is observed from the American system that there is a drift from rehabilitation to incarceration measures. However, at the same time, courts have come forward to protect the rights and interests of young persons. The fine balance of “protection and care” and punitive sentencing rests on the fulcrum of police and judiciary. The involvement of the police in the pre-court discretionary proceeding for young people is a soft glove intervention; it broadens the officer’s role from law enforcer to a teacher or mentor. On the one hand, it helps reduce the burden of the children’s court; on the other, it develops the trust between the minor and the police field formations.
Canada
The juvenile justice system of Canada is based on the Youth Criminal Justice Act, 2002 (Government of Canada, Department of Justice 2013). It is the federal law that governs Canada’s youth justice system. It applies to youngsters aged 12 to 17 years of age involved in crime. The act establishes the Youth Justice Court and Youth Justice Committees. Here, the most noteworthy part of the legislation is Part 1 – Extrajudicial Measures. These measures apply to juveniles who have committed a non-violent crime and have not been found guilty of any previous offense. Here, Canadian police play an important role in administration and support under extrajudicial measures.
It considers timely interventions focused on correcting the offending behavior. Here, based on the criteria of the seriousness of the crime and previous record of the offender, a police officer can issue warnings, cautions, and referrals to the juvenile before the start of the judicial proceeding. The police officer can warn or administer a caution to the juvenile or refer him to the community that may assist the youth in coming out of the crime culture.
The issue of police discretion in the handling of young people is well researched in Canada. The predictors on which police decide whether to charge the person are the seriousness of the crime, previous criminal record, and behavior when confronted with the police, e.g. whether the suspect readily admitted to the offense. Police are also responsive to the victim’s view of the offense. If a victim wants the charges to be laid, the police will likely forward the case to court.
In a large-scale study on police discretion in police departments participating in an “incident-based crime reporting system”, Bala, Carrington, and Roberts (Reference Bala, Carrington and Roberts2009) found that 59% of the young persons apprehended by police are charged or recommended to be charged, and 49% are processed by other means. Here “other means” refer to discretionary police activities like returning the youth home, warning or cautioning the youth or referring the minor to alternative measures programs.
Singapore
The juvenile justice system in Singapore is based on the Children and Young Persons Act, 1993 (Singapore Statutes Online n.d.). The law extends its jurisdiction to all the children in the age group of seven to 16 years who have been involved in criminal activity. The law is based on the twin principles of “protection and care” and punitive sentencing. On one side, it has to enable warning, reprimand and counseling measures; on the other hand, it provides for probation or custody. Here, it seeks to develop a balance between parental authority and state intervention.
Once police apprehend a juvenile offender in an offense, they can exercise three measures on the juvenile based on the seriousness of the crime, record of the offender, or any other incidental finding. It is noteworthy that these pre-court diversionary measures are developed to promote rehabilitation and reintegration of the juvenile. Here, the police may release the youth after warning him and his parents or guardians. The police officer may also refer the youth for counseling to a social service agency based on his observation.
If it is found that the juvenile needs more hand-holding, then Singapore has two major interventions – The Guidance Programme and the Streetwise Programme.
The Guidance Programme is a 6-month diversionary program for first-time juvenile offenders who have committed minor offenses. On the advice of the Attorney General, the police may ask the juvenile to participate in six months of counseling and rehabilitation. The program aims to help the youngster develop better self-control, take responsibility for his or her actions, and acquire life skills with the active involvement of the parents. Upon completing the program, the juvenile is not charged for the offense(s) committed but let off with a police warning. The program involves counseling and group work, community service, outdoor activities, and educational trips to prisons and drug rehabilitation centers. Parents are involved in the activities through family counseling, parenting talks, and parents’ support groups.
The Streetwise Programme is aimed at changing the behavior of young people who have innocently drifted into gangs. It is a six-month program involving counseling, family conferencing, peer support, recreation, and academic activities. Referrals to the program may come from the police for non-offenders, the Juvenile Court for those placed on probation for committing gang-related offenses, or from the juveniles themselves. It aims to help the young disassociate themselves from gangs (Chan Reference Chan2010).
Once a juvenile is brought before the court, the court may determine the most appropriate order based on the pre-sentence report. Here, the court has extensive powers to exercise; it can place the parents and guardians under bond to ensure proper parental care or put the juvenile in the care of a “fit person.” The court may place the youth under a community service order or probation or detainment.
Thailand
In Thailand, the juvenile justice system is based on the Juvenile Court Act, 1951, and the Juvenile Procedure Act, 1951. Under the law, the Juvenile and Family Court and the Juvenile Observation and Protection Center (OPC) were established. Juvenile and family courts have comprehensive structures; they constitute two separate parts – judiciary and administration. The bench includes a court staffed by career judges and associate judges (lay judges). The administration consists of the Office of Court’s Registrar and the OPC.
Here, under the Permanent Secretary of the Ministry of Justice, the OPC has a pre-trial and a post-trial intervention for rehabilitation and resettlement of the young person and family affairs. Its center includes professionals like social workers, psychiatrists, psychologists, probation workers, physicians, etc.
In principle, a young person shall not be arrested by the police except in serious offenses, or when the victim identifies and insists on the arrest of the accused or an arrest warrant issued under the criminal procedure, he may be taken in custody for investigation purposes. The law mandates that once such a person is taken into custody, it must be notified to the OPC, his parents, and guardians (Ukris Reference Ukris2002).
INDIAN POLICE AND JUVENILE JUSTICE – A WAY FORWARD
Strengthening Existing Structures: SJPU and CWPO
The Juvenile Justice Act, 2015 directed the state governments to constitute a State Juvenile Police Unit in every district and city and that in every police station, a police officer be appointed as a CWPO. The law intended to create an enabling care environment for juveniles involved in crime by institutionally strengthening and training the first responders, i.e. local police.
There should be training and attitude development courses to equip the local authority in administering the pre-court and court measures in cases of juvenile crime. Based on the performance in these courses, the merit holders may be deputed to an SJPU and CWPO. The structure of these courses may be developed by the police academies or training institutes to suit the local language and field realities. Training in juvenile justice can be included as one of the indicators for the yearly appraisal of the officers.
The Supreme Court of India in Sampurna Behrua v. Union of India said, “Since the duties and responsibilities of the CWPOs and SJPUs have not been specified or identified, it is high time in our opinion, that the Bureau of Police Research & Development and the National Police Academy in consultation with the State Police Academies identify the functions, duties, and responsibilities of the CWPOs and SJPUs.” Here, the court has underlined the need for strengthening these police institutions responsible for the administration of the Juvenile Justice Act.
Pre-Court Diversionary Measures
The juvenile justice system in India may adopt pre-court diversionary measures as developed in the United States, Canada, United Kingdom, and Singapore. Although Section 3(xv) of the Juvenile Justice Act, 2015 enumerates the principle of diversion under which children in conflict with the law shall be dealt with without resorting to judicial proceedings, the law has not yet established institutions and procedures to give effect to it. The law presently makes it binding on the police to produce the young person involved in crime before the Juvenile Justice Board within 24 hours. Here, the production before the board is a blanket provision, independent of the “heinousness factor” of the crime.
According to the NCRB’s juvenile crime data for the year 2018, 29,024 offenses under the IPC were registered against juveniles, out of which 9927 were thefts constituting 34.2% of the total crime. In 2017, 30,909 offenses under the IPC were registered against youths, out of which 10,326 were thefts constituting 33.4% of the entire crime. This trend suggests that minor crimes like theft constitute a huge caseload under the juvenile crime heading.
A pre-court diversionary measure may be introduced in India to oversee minor offenses. Based on the nature of the crime and the record of the minor, police units may issue a reprimand, final warning, or referral. Similar measures under the Youth Criminal Justice Act are followed in Canada, where the police have the authority to discharge a young person if he is involved in a non-violent act and does not have a previous record. In Singapore, the police can also issue warnings to the juvenile and his parents and guardians before discharging them.
Parental or guardian control may be included in these measures, empowering the authorities to involve the juvenile’s family members in the reformative process. It can help in household supervision by the parents or guardians and prevent repeat offenses by keeping social pressure upon the juvenile.
These pre-court measures will help destigmatize the juvenile involved in minor crimes. It will also be a step towards unburdening the workload on the juvenile justice board and increasing the focus on serious crime cases.
Juvenile Re-Entry Support System
An integrated juvenile re-entry support system may strengthen India’s commitment to rehabilitation, resettlement, and reintegration of juveniles in conflict with the law. This system must broaden its stakeholders to law enforcement, juveniles’ parents and guardians, civil society, NGOs, businesses, etc. The system’s objective shall be to provide expert counseling and psychological assessment, vocational training, and employment and entrepreneurial opportunities for the juveniles.
Project “Disha”
A first of its kind, project “Disha” – a juvenile re-entry support system – was kick-started by Sangli Police Department, Maharashtra, India. It can be inferred from the study that constant engagement resulted in the reduction of recidivism. The project was designed in three intervention protocols – counseling, skill training, and employment and entrepreneurial opportunities for juvenile offenders. Under this project, 400 juvenile offenders were provided professional counseling, 64 juveniles were trained in vocational skills, and 10 minors got employment through career placement. Also, eight offenders were prepared for opportunities in the police, paramilitary, and army.
Singapore’s Guidance Programme is a similar intervention in juvenile life. It is a six-month guidance program for the juvenile through extensive counseling, skill-building, and more. India’s support system may be institutionalized at the district level with a dedicated Counseling, Training, and Employment and Entrepreneurship Center. It will give opportunities to the juvenile to take care of his family and contribute back to society.
District Planning and Review Committee – Juvenile Reforms
The committee may be formed with members from police, judiciary, and child development departments. As the social, economic, and crime patterns vary from district to district, this committee shall have the mandate to formulate a district-level perspective plan for addressing juvenile delinquency. The committee shall be given commensurate financial and establishment powers to ensure smooth administration.
This committee may be modeled based on the OPC system followed in Thailand. The committee may have professionals like social workers, psychiatrists, psychologists, probation workers, physicians, etc., in its team. It can be a pre-trial and a post-trial intervention for rehabilitation and resettlement of the young person.
State and District Child Protection Societies
Section 106 of the Juvenile Justice Act, 2015 established state- and district-level child protection societies to serve as a mechanism for all children-related issues under the act. It also had to coordinate between government institutions and NGOs working in childcare and reforms.
The law is silent on the constitution of these societies. There is no uniformity in the formations of these societies, which may result in poor coordination. These societies must broaden their stakeholders to include representatives from police units. Including police officials will provide the community with a field view of juvenile delinquency and possible solutions to overcome it. It will allow an insight into the criminogenic factors that stoke minors to enter the criminal subculture.
The Supreme Court of India in Sampurna Behrua v. Union of India said, “The constitution of the State Child Protection Society and the District Child Protection Unit need serious consideration so that all stakeholders, including the police and NGOs, are actively involved in the performance of the functions, duties, and responsibilities of these two bodies.” The court underlined the importance of these societies and the need to involve the police in them.
Juvenile Justice Fund
Under Section 105 of the Juvenile Justice Act, 2015, states may set up funds for the welfare and rehabilitation of children. It is found that Indian states like Telangana and Maharashtra have contributed one and two crores, respectively, to the Fund in 2020. Also, the state of Kerala notified the Fund in 2018.
The Supreme Court of India in Sampurna Behrua v. Union of India said, “We are quite distressed to note that some of the State Governments have not even set up the Juvenile Justice Fund while one or two State Governments have set up the Fund with an embarrassing amount of only a few thousand rupees. We wonder how these State Governments can look after the welfare of children with such a pittance in the kitty.”
A uniform policy for fund management across other states and union territories is much needed. Along with the annual state grants, philanthropic contributions must be encouraged through tax exemptions. The utilization of such funds may be planned by the District Planning and Review Committee – Juvenile Reforms.
Such funds may be invested in developing newer infrastructural and training needs of the juveniles. The Fund can be used for the capacity building of police institutions for juvenile justice training. Also, police officials may be encouraged for research and academic pursuit in the juvenile justice system.
Investigation Powers in Heinous Crimes
The juvenile law in India is silent on the procedure of police investigation in crimes involving juveniles. According to the law, once a juvenile is apprehended, he shall be produced before the court within 24 hours. The 2015 amendment included prosecuting youth in the age group of 16 to 18 years as adults if involved in a heinous crime. However, the law is silent on the recovery of evidence and interrogation by the police officer.
The law to conduct search and seizure procedures may be suitably amended. A provision of recovery of material evidence like a weapon, hair samples, DNA, blood under the Indian Evidence Act, 1872 during the initial 24 hours when the SJPU apprehends a juvenile shall be very helpful. To ensure fairness, such recovery may be mandatorily made in the presence of the probation officer or juvenile’s parents or guardians. Also, to unearth the conspiracy in heinous cases, police interrogation may be permitted.
It will help the prosecution strengthen its case once the court treats the juvenile as an adult. Also, it may give insight into other young people who tend to commit crimes so that a preventive safety net can be established.
Approved Schools for Rights-Based Education
The Indian Parliament, with the Eighty-Sixth Amendment Act, 2002 (Government of India, Ministry of Law and Justice, Legislative Department n.d.b), inserted Article 21A in the Constitution of India to provide free and compulsory education of all children from six to 14 years of age as a Fundamental Right (Government of India, Ministry of Law and Justice, Legislative Department n.d.a) In pursuance of that, the Right of Children to Free and Compulsory Education Act, 2009 (Government of India 2009) was brought to give every child a right to full-time elementary education of satisfactory and equitable quality in a formal school satisfying certain essential norms and standards.
According to the NCRB’s juvenile crime data, the total number of juveniles apprehended in 2018 was 38,256. For 17,024 (44.5%) of them, educational qualifications were between primary and matriculation. The data suggests that there is a need for targeted educational intervention for such youths. Here, the state is duty-bound to give quality education to the children.
Development of Approved Schools based on the right to education for the juveniles in conflict with the law will be a positive measure. The structure of school (boarding, residential or daycare), curriculum (classroom or extracurricular based) and other parameters can be determined to ensure that these juvenile offenders can get full advantage under the constitution’s provisions. These schools can operate as an adjunct to the observation homes and have the power to create a learning environment in these homes.
Intervention Gradient for Juvenile Justice Administration
In India, the juvenile justice system has followed a singular approach for the juvenile in conflict with the law. It may be further enriched with the implementation of the intervention gradient in juvenile administration. Here, the protocol followed in the United Kingdom is worth emulating. In the United Kingdom, on a commission of an offense by a juvenile, police can issue an informal action of warning based on the nature of crime and criminal record and formal activities, where a reprimand or final warning may be issued. Only after exhausting the earlier remedies, the police may initiate the youth court services.
Technology Dashboard for Juvenile Courts, Police Stations, Observation Homes and Committees
Technology-driven solutions to formulate coordination between various stakeholders of the juvenile justice system will be very helpful. Such a system will note the different stages of adjudication and reformative care of the minor. It will allow better monitoring of case pendency in boards for quick and timely disposal. For the policymakers, it will provide all relevant data points at their fingertips, resulting in policies that appreciate the realities of the field and work to bridge the institutional gap.
The Supreme Court of India in Sampurna Behrua v. Union of India said, “We were informed by the learned counsel that the Police authorities in Telangana and Andhra Pradesh in consultation with the Juvenile Justice Committee of the High Court have made considerable use of information and communication technology and we are of the view that innovative steps must be encouraged.” Here, the court appreciated the states which introduced technology in the management of juvenile justice. It also encouraged other states to follow such innovative ideas.
The law relating to juvenile justice administration and reforms in India has undergone a metamorphosis. From setting up a separate juvenile justice system outside the purview of the criminal procedure code to institutions like juvenile justice boards, observation homes, child welfare committees, district child welfare societies, and “heinous crime” inquiries, an enabling environment has been created for juvenile adjudication and “reformation and reintegration” in India.
CONCLUSION
The role of police institutions in the delivery of commitments under the law cannot be overemphasized. Police are the administration’s face and make the first contact with the juvenile in conflict with the law. Through SJPUs and CWPOs, the police machinery can contribute immensely to preventing juvenile recidivism by counseling, mentoring, or a suitable reformation process. The study has identified fault lines between law enforcement and the juvenile justice ecosystem which need to be bridged.
The study is constrained in a few aspects, which need to be dealt with separately regarding juvenile justice and police. One, Indian police units are poorly staffed. According to the report of PRS India (n.d.), India has 137 police personnel for 100,000 population, much below the United Nations recommended figure of 222, making it one of the world’s weakest police to population ratios. The effect of this poor ratio on police performance under the Juvenile Justice Act may require further inquiries.
Two, developing countries like Pakistan, Malaysia, Bangladesh, Indonesia and others follow the system of Islamic jurisprudence (Weeramantry Reference Weeramantry1988) and the modern legal system. Muslim jurists consider puberty and mental competence as a prerequisite for legal responsibility (taklif). It categorizes crimes into two aspects, fixed crime (hudud), having binding penalties, and discretionary crimes (tazir), penalties which are determined by the judge or the state (Syed Reference Syed2018). This aspect needs to be researched in more detail as many developing countries under the Organization of Islamic Countries follow Islamic jurisprudence.
Three, many reforms and legal amendments in the juvenile justice system worldwide have been driven by case law and directions from the court. This aspect may be studied in more detail to appreciate the judiciary’s role in the development of juvenile justice.
Essentially, the study proposes changes in the working of police and juvenile justice systems in India. It shall help in supporting adjudication and reformation measures for juveniles. The proposed reforms will be applicable in developing countries like Brazil, Nigeria, and others in a similar development cycle. It may initiate institutional, legal, and fiscal improvements in the juvenile justice and police systems to achieve its core objective of child welfare.
In particular, I would encourage practitioners to document their concerns, learning, and experiences, like I have attempted to do here, to facilitate such research.
Acknowledgements
I would like to thank the youngsters, and their parents/guardians and civil society of Sangli, Maharashtra who became the pillars of the reform efforts under project “Disha.” Also, I would like to thank my friend Ashutosh for his guidance, and my dear mother, whose selfless love is a driver of all ideas.
Suhail Sharma is an Indian Police Services officer of the 2012 batch. He has served as the Superintendent of Police, Sangli, Maharashtra, India. As the Deputy Commissioner of Police, Anti-Terrorism Squad, Mumbai he worked in national security and counter terrorism. Presently, he is pursuing a Masters in Public Policy at the Blavatnik School of Government, University of Oxford as a Public Services Scholar.
