Kathmandu: Chief Justice of India DY Chandrachud on Saturday (May 4) delivered a lecture on juvenile justice at a symposium organized by the Supreme Court of Nepal in association with UNICEF.
In his lecture, CJI Chandrachud made a comparative analysis of the juvenile justice systems in Nepal and India. He also spoke about the challenges facing India’s juvenile justice system. A major challenge is the insufficient infrastructure and resources, particularly in rural areas, leading to overcrowded and substandard juvenile detention centers. This can hinder efforts to provide proper support and rehabilitation to juvenile offenders. Additionally, social realities must be considered, as many children are coerced into criminal activities by gangs. Juveniles with disabilities are also vulnerable, as evidenced by visually impaired children in India being exploited for begging by criminal syndicates.
The increasing prevalence of digital crime presents new challenges. Juveniles are engaging in cybercrimes such as hacking, cyberbullying, and online fraud. The anonymity and accessibility of digital platforms make it easier for young individuals to be lured into illicit activities. Education and parental guidance are crucial in mitigating these risks.
Capacity building is essential, requiring international cooperation and training in child protection for all stakeholders involved in the juvenile justice system. This training should include understanding child development, recognizing signs of abuse, and trauma-informed care.
“Quite often, we focus more on offences committed by juveniles than reflecting on their reformation. It thus becomes essential to acknowledge the complex nature of juvenile delinquency and take a comprehensive approach that addresses the underlying socio-economic factors contributing to such behaviour. By investing in strategies that prevent, intervene, and rehabilitate, we can build a society that is more inclusive and provides every child with the opportunity to fulfill their potential,” CJI said.
Excerpts from CJI’s lecture :
Background to the Topic
Children enter the world with a clean slate. Universally, we acknowledge the innocence of children as integral to their being and conduct. However, when a child encounters the legal system, it prompts society to introspect on the underlying systemic issues that may have driven them to commit a crime. As a population group, children are also the most disenfranchised and susceptible to oppression. These factors necessitate a sensitive and reform-oriented approach to children in conflict with the law as well as child victims of various crimes.
The concept of advocating for a distinct and special form of justice for children and teenagers represents a relatively recent development in the annals of civilization and legal administration. During the mid-nineteenth century, significant strides were made towards establishing a separate system for dealing with juveniles. This included restructuring the role of magistrate courts in handling offences involving juveniles and establishing reformatories and industrial schools. Throughout the latter half of the nineteenth century, various institutions were created to supervise delinquent juveniles, with reform schools becoming prevalent in several jurisdictions. The establishment of Borstal Schools in various States across India is one such development. Borstal schools are corrective institutions which adopt a reformative approach towards adolescent offenders.
At the heart of the development of juvenile justice lies the United Nations Convention on the Rights of the Child (CRC) of 1989, a cornerstone document that every country in South Asia has ratified. The CRC is a successor of UN Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the ‘Beijing Rules’).1 These conventions prescribe the minimum standard for handling juvenile delinquents. The focus is not only on the post- conviction treatment of the juvenile. The emphasis is rather on ensuring that the process of criminal justice, right from the initial contact with police and prosecution is altered to suit the needs of juveniles.
The establishment of a distinct juvenile justice system is a duty cast on the State in pursuance of its ‘parens patriae’ jurisdiction. The parens patriae jurisdiction casts a three-fold duty on the State. Firstly, this philosophy emphasizes handling juvenile matters informally and grants juvenile courts the authority to decide what is best for young offenders. Secondly, it advocates for compassionate and rehabilitative treatments rather than punitive measures, aiming to avoid the negative consequences of labelling that can arise from formal court proceedings. Thirdly, it involves state intervention to shape the life outcomes of juveniles, reflecting a belief that traditional criminal law processes are not suited to effectively address juvenile delinquency and related issues.2
When discussing Juvenile Justice, we have to recognise the vulnerabilities and unique needs of children embroiled in legal conflicts and ensure that our justice systems respond with empathy, rehabilitation, and opportunities for reintegration into society. It is crucial to grasp the multifaceted nature of juvenile justice and its intersections with various dimensions of our societies.
Children are often driven towards delinquent behaviors by complex societal challenges like economic disparities and social inequalities. Family breakdowns resulting from issues like domestic violence or poverty can leave children without the necessary guidance, making them more susceptible to negative influences. In the film “The Florida Project” (2017), young Moonee navigates her childhood in the shadow of economic hardship, residing with her single mother in a budget motel. As her mother grapples with personal obstacles, Moonee finds herself navigating the harsh realities of poverty largely on her own. The film tenderly portrays the impact of familial instability on children, shedding light on the delicate interplay between economic disparity, societal inequity, and familial bonds. Moreover, practices like child marriage and labour may deprive children of their childhoods, exposing them to exploitation and abuse, further heightening the risk of delinquency.
Comparative Analysis
I would now like to embark on a comparative journey between Nepal and India’s juvenile justice systems.
In both Nepalese and Indian societies, children are revered as the future and are considered to be the heart of the family unit. Both cultures place a strong emphasis on education, moral upbringing, and protection of children’s rights. The challenges and issues faced by children in conflict with the law transcend national borders, highlighting the need for a coordinated and holistic approach to juvenile justice.
Both Countries have a shared commitment to international conventions and treaties aimed at safeguarding the rights of children, such as the CRC. Nepal was among the first countries to ratify the CRC in 1990. Subsequently, Nepal enacted its initial juvenile law, the Children’s Act, in 1992, which was enacted to protect the rights and interests of children for the physical, mental, and intellectual development of children. After nearly three decades, the enactment of the Act Relating to Children 2018 marked a significant milestone, replacing the 1992 law. This legislation raised the minimum age for children from 16 to 18, aligning with the UN Convention standards, and introduced provisions, ensuring that children under 18 are not held criminally liable for acts committed against the law.
Similarly, India has been making consistent efforts to evolve its juvenile justice system. India first enacted the Juvenile Justice Act in 1986. Later, it was replaced by the Juvenile Justice Act of 2000, which was also subsequently replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015, in a need for a more robust and practical justice framework focuses on reformative approaches. The Act of 2015 embodies a holistic approach, emphasizing the special needs and vulnerabilities of juveniles and prioritizing their rehabilitation and reintegration into society. The implementation of various juvenile justice legislations for around four
decades in India has led to the establishment of facilities, structures, and systems addressing children’s needs within the protection system.
I will now delve into the three aspects of Juvenile Justice touched upon by legislations in India and Nepal.
(A) The Process and Rights of the Child During Trial:
The first principle is related to the process and the rights of the child during a trial.
In this regard, shifting our focus from debating whether juveniles should be tried as adults to understanding the circumstances that drive children to commit crimes is crucial. As we develop the ability to distinguish between right and wrong, it becomes our commitment to foster the right kind of behaviour. While children may make wrong decisions during their developmental journey, they do not merit the same treatment as fully grown adults. Therefore, child delinquency is not met with the same severity. Instead, juveniles are sent to special detention centres where they can comprehend the impact of their actions on society and have the opportunity to rectify them.
In Nepal, investigative authorities promptly respond to reports of offenses, initiating inquiries and taking children into custody only when necessary. Throughout investigations, children are provided with psychological counselling and support to ensure their well-being. Although the Juvenile Court may resort to placing accused children in reform homes under specific circumstances, they maintain various rights throughout trials, including access to information, legal aid, trial by competent authorities, family presence, prompt justice, confidentiality, and a child-friendly environment.
Section 31 of The Act Relating to Children, 2075 (2018), and Rule 18 of the Administration of Child Justice (Procedure) Regulation, 2076 (2019), define the jurisdiction of the Child Bench, emphasising rehabilitation over detention. This framework permits parental care instead of juvenile reform homes in specific cases. I was reading the concept note and found that the Supreme Court of Nepal recently issued a mandamus order for the establishment of a Children’s Court in Kathmandu.3 This is truly commendable as it becomes evident that the country is actively advancing its juvenile justice system, prioritizing the holistic well-being and rehabilitation of children.
Similarly, in India, the Juvenile Justice Act lays down provisions for the care and protection of children in conflict with the law. Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) are established at the district and sub-district levels to handle cases of children in conflict with the law and children in need of care and protection, respectively. The Act also provides for the establishment of specialized homes for juvenile offenders and mandates the involvement of trained professionals in their rehabilitation process. Though the Act of 2015 allows juveniles aged between 16 to 18 to be tried as adults in certain circumstances for heinous crimes like rape and murder, the focus on the fundamental principle of rehabilitation and reintegration remains unchanged.
Both countries ensure children’s rights to visits, correspondence, and telephone calls with family and others, with full respect for privacy. Placement in adult prisons is strictly prohibited, except in designated separate wings. Section 11(3) of Nepal’s Children Act emphasizes privacy rights, requiring that personal information about victim or accused children, as well as details of actions taken against them, remain confidential. Any publication or dissemination of such information, which could harm or embarrass the child, is strictly prohibited throughout the justice process.
(B) Best Interest of Child:
The second principle of juvenile justice is about the best interests of the child.
Section 3 of the Juvenile Justice Act in India, which states that “All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.”4 This Is mirrored in Section 16(1) of the Children Act of Nepal. Additionally, principles such as involving children in decision-making processes, ensuring their safety, and recognising the importance of family responsibility are integral to ensuring the holistic well-being of children. The principle of “non-stigmatizing semantics” emphasizes the use of language that respects the dignity and rights of children, refraining from labelling or stigmatizing them based on their circumstances or actions.5
I was reading about a case by the Supreme Court of Nepal in Advocate Pushpa Raj Poudel vs Sindhuli District Court (2023)6 which emphasised the prompt resolution of juvenile cases within a prescribed legal timeframe of 102 days. I feel that prioritizing the swift resolution of such cases aims to minimize any potential harm or trauma experienced by juvenile offenders and ensures their access to prompt justice and rehabilitation.
c) Restorative Justice
The third principle of juvenile justice is that of restorative justice. Restorative justice is an approach that recognizes the multifaceted impact of crime on the victim, the community, and the offender.7 Its primary objective is to repair the harm caused by the offence, facilitate reparation to both the community and the victim, and facilitate the offender’s reintegration into the community as a productive member.8
In the Indian context, the Juvenile Justice Act outlines various rehabilitation and reintegration measures for children in conflict with the law, such as counselling, education, vocational training, and community service. The aim is to mitigate stigmatization and provide opportunities for juveniles to reintegrate into society as responsible citizens. For instance, a juvenile offender involved in minor theft is directed to participate in a community service program, where they help clean and maintain local parks.
Now I would like to briefly deal with the challenges relating to juvenile justice.
Challenges
I would like to highlight some more instances where sometimes the adequacies or inadequacies of the Juvenile Justice system is played out in India. In a recent case before the Supreme Court of India, a petition reached its final stage – the curative stage. The petitioner had been incarcerated as a minor and spent decades behind bars. The highest court recognized the failure of the system and ordered their release. This showcases that the highest court possesses the authority to influence the juvenile justice system, transcending the purview traditionally held by Juvenile Justice Boards.
In fact, juvenile justice is not confined solely to the dictates of the Juvenile Justice Act but is rather shaped by the intricate interplay of various legislative acts. A recent case brought before the Supreme Court of India exemplifies this: a 14-year-old sought permission to terminate her pregnancy under the Medical Termination of Pregnancy Act of 1971. Fearing repercussions and hindered by her innocence, she kept silent about the abuse she endured until she was well into her pregnancy. Recognizing the importance of safeguarding her mental and physical well-being, the court granted her request for termination. However, she ultimately decided against it.
A critical challenge in the effective implementation of juvenile justice laws is the insufficient infrastructure and resources, especially in rural regions. An illustration of the challenges stemming from inadequate infrastructure in juvenile justice can be found in the memoir “Angela’s Ashes,”. Through the lens of his family’s struggles in Limerick, Ireland, Irish Author Frank McCourt exposes how the absence of essential resources and support systems can drive vulnerable youth towards delinquency. His portrayal of his brother Malachy Jr.’s descent into a cycle of petty crime vividly demonstrates how systemic neglect perpetuates the marginalization and disenfranchisement of youth in impoverished settings, leaving them without proper guidance or alternatives for their future.
Similarly, in modern contexts, insufficient infrastructure and resources pose significant obstacles to the effective implementation of juvenile justice laws, particularly in rural areas. Inadequate juvenile detention centers or rehabilitation homes may lead to overcrowding and substandard living conditions, hindering efforts to provide proper support and rehabilitation to juvenile offenders. Moreover, limited access to essential services such as counselling, education, or vocational training further complicates the successful reintegration of juveniles into society.
Furthermore, the implementation of the juvenile justice laws needs to take social realities into account. A study titled ‘Rights of Children: A Case Study of Child Beggars at Public Places in India’ highlights the alarming reality that approximately 44,000 children are ensnared by criminal gangs in India every year. These children are coerced into engaging in begging, trafficking, smuggling, and other criminal activities.
The implementation of juvenile justice laws should also consider the unique challenges faced by juveniles with disabilities. For instance, the United Nations Office on Drugs and Crime in its report (2020) documented the exploitation of visually impaired children in India, who were coerced into begging by criminal syndicates, exploiting both their disability and socio- economic circumstances. 10 In light of such realities, it becomes imperative for juvenile justice systems to adopt tailored approaches that address the specific needs and vulnerabilities of these marginalized groups, ensuring their protection and rehabilitation.
At the same time, the changing nature of crimes, particularly with the increasing prevalence of digital crime, poses new challenges for juvenile justice systems globally.11 Recent data from the National Crime Records Bureau(NCRB) in India, unveiled last month, paints a concerning picture regarding cybercrimes. In 2022, the reported number of cases surged from 345 to 685 compared to 2021, nearly doubling within a year
With technology evolving rapidly, juveniles are diving into cybercrimes like hacking, cyberbullying, online fraud, and digital harassment. The anonymity and accessibility of digital platforms lower barriers to entry, luring young individuals into illicit activities. For instance, I would like to take the example of the “Momo Challenge,” (2019) a viral hoax that spread through social media platforms, targeting children and adolescents. This hoax purported a series of escalating dares, including self-harm or suicide, although it was later debunked. Its rapid dissemination highlights the susceptibility of juveniles to online dangers. There is a need for proactive measures to educate and safeguard young individuals in the digital age, emphasizing digital literacy, responsible online behaviour, and effective parental guidance as crucial components in mitigating cyber-related risks.
Capacity Building
Juvenile justice systems must thus adapt by enhancing international cooperation mechanisms and sharing best practices to address the transnational nature of digital crimes involving juveniles. This includes establishing protocols for extradition and repatriation, as well as facilitating information sharing and cooperation between law enforcement agencies.
At the domestic level, specific training in child protection rules is essential to ensure that all stakeholders involved in the juvenile justice system have the necessary knowledge and skills to safeguard the rights and well-being of children. This training should encompass various aspects of child protection, including understanding child development, recognizing signs of abuse or neglect, and familiarizing oneself with relevant laws and procedures. Moreover, training programs should incorporate principles of trauma- informed care, emphasizing sensitivity and empathy towards juvenile offenders who may have experienced adverse experiences.
Conclusion
In conclusion, I emphasize that juvenile justice plays a crucial role in shaping a fair and equitable society through its focus on reformative measures. By placing the well-being of children at the forefront and offering access to rehabilitation and support services, juvenile justice systems help create an environment conducive to the overall growth and development of young offenders.
Quite often, we focus more on offences committed by juveniles than reflecting on their reformation. It thus becomes essential to acknowledge the complex nature of juvenile delinquency and take a comprehensive approach that addresses the underlying socio-economic factors contributing to such behaviour. By investing in strategies that prevent, intervene, and rehabilitate, we can build a society that is more inclusive and provides every child with the opportunity to fulfill their potential. Thank you.