Bhavya Dore I Scroll.in I December 20, 2015

The firestorm of public outcry as the juvenile involved in the Delhi gang-rape case is set to be released from the home he was sent to is a good time to look at the larger picture.

The two young men sitting on the bench opposite me were sharply turned out. One fidgeted, the other smiled. One had served a term for murder. The other was out on bail for a “half murder”. That is the colloquial way of saying an “attempt to murder”. Both incidents had happened before the boys turned 18.

“After it happened,” said Rohan* (name changed), now 21, referring to the murder, “I was very depressed. I kept trying not to think about it.”

The incident was a schoolyard scuffle gone wrong. Very wrong. Rohan surrendered to the police and was sent to an Observation Home, while his matter came up before the juvenile justice board. He was then sent for two years to a Special Home.

Rohan and Dilip* (name changed) are now classmates. The law requires that names of children like them found in conflict with the law not be revealed. Both are enrolled in a diploma programme after having finished Class 10.

We are sitting in a classroom in non-profit group Echo’s centre in Kammanahalli, in Bangalore. The boys have just returned from class. Dilip, 19, prefers not to dwell on the incident that threw him into the juvenile justice system. It appears that he too, was caught up in a brawl. He just smiled and shook his head when asked more.

Rohan, whose parents died when he was young, was living with a relative when he got embroiled in the incident. “No one came to see me when I was in the home,” he said, speaking in Tamil. “But after seeing me now, things have changed [with my relatives].”

Dilip said it was difficult to even comprehend what was going on as he was funnelled through the juvenile justice system. But with the help of social workers, both have now managed to reassemble their lives.

A one-off offence – albeit a serious one in both cases – will no longer determine their identities or life trajectories.

“We are trying to bridge the gap for them to return to society, as this is lacking in the existing system,” said Father Antony Sebastion, the founder and executive director of Echo, who was earlier a juvenile justice board member.

Less than forgiving

There has been of late a public outcry about juvenile crime, but the proportion of juvenile crime has remained roughly the same: between 1% and 1.2% of the total crimes recorded in the past five years.

Recidivism – or the act of reverting to crime – stands at about 5.4% according to 2014 data, down from 12.1% in 2010.

The juvenile justice system is not built like the criminal justice system. Here the emphasis is on reform and rehabilitation and less on punitive action. The Act envisages a care plan for every child in conflict with the law, including mental health support, vocational skilling, education, and so on. It is founded on the idea that children are more capable of change, and can be returned to society as reformed individuals.

But for now at least, society seems to be in a less than forgiving mood. On Sunday, the juvenile involved in the Delhi gang-rape case will be released from the home he was sent to. This has already generated a firestorm of public outcry, led by bombastic remarks from the likes of Subramanian Swamy, who termed the boy – now a man – “dangerous”.  Swamy, who moved the Delhi high court, seeking to extend his term, also said he was better off living with animals.

But in truth, juveniles who have committed "heinous" offences – such as murder, rape, dacoity – come across less as savage beasts, and more as frightened children, ruing their own actions.

Ashok (name changed), for instance, in a sudden moment, attacked and killed his father. His father, drunk and furious, was beating up Ashok. The son saw a blade, picked it up, and within moments had his life change forever. “Even without my knowledge,” he said, “I suddenly took it and hurt him. I don’t know what happened and I saw blood coming.”

This was narrated in a testimony to Kalpana Purushottaman a counsellor who worked at the Centre for Child and the Law, National Law School of India University.

Up until that moment, he described himself as an able student frustrated that he couldn’t go to school but had to work after his alcoholic and abusive father deserted the family. He was a good cricketer and a dancer.

He was later apprehended by the police and placed in an Observation Home, while his case was pending. It was dismal. There was nothing to do, no playground, no activities, and he was bullied by some of the other boys. “I had prepared a lot of plans to achieve my goals which had been destroyed,” he said. “I often used to sit alone and think about God, where this God lives, once I want to meet him.”

He didn’t know of the possibility of bail, and was later sent to a Special Home. Luckily for Ashok he got help through the Centre for Child and the Law and the department of child and adolescent psychiatry, National Institute of Mental Health And Neurosciences or NIMHANS, both of which work closely with young people. He was counselled at length, received psychiatric treatment, sponsorship and placement at a Bosco centre – a non-profit working with young people. He finished his schooling and is now in college, determined to make it in life with the ongoing support of the National Law University's Centre for Child and the Law, Bosco and others, though he continues to struggle with mental health issues and a dysfunctional family.

Progressive law, faulty execution

These however, are the fortunate children. While the Juvenile Justice Act, 2000, has been repeatedly referred to as a progressive piece of legislation, its execution has been decried consistently. The homes are in disrepair, staff shortages abound, all sorts of abuse reportedly takes place in such institutions.

"Children in these homes experience all manner of things," said Arlene Manoharan, the Juvenile Justice programme head at the Centre for Child and the Law. "So much more needs to be done for the system to work effectively."

The government’s investment in child related issues is apparent: the last budget saw significant cuts in various child-related programmes. Moreover, the allocation for the centrally sponsored Integrated Child Protection Scheme has received just Rs. 400 crores; only 40% of the Rs. 1,060 crores recommended by the Working Group on Child Rights for the 12th Five Year Plan.

“The actual practice of rehabilitation of children in conflict with the law falls short of both the spirit and the procedures that are contained in the Juvenile Justice Act, 2000 (amended in 2011),” said Preeti Jacob, assistant professor in the department of child and adolescent psychiatry, NIMHANS. “The new law seems to be a step back, deviating from the current neuro-developmental and reformative principles while potentiating a more punitive process for those adolescents between 16 and 18 years."

With counselling and intervention, children – even those with a serious crime behind them – can leave it just there, behind them, as the cases of Rohan and Dilip suggest.

Why do children come into conflict with the law in the first place? Experts point to a cocktail of reasons: still developing brains, deprived environments, poor family backgrounds, all complicated by the ongoing process of growing up.

Doctors, social workers, lawyers and others working in the system have thrown their weight into opposing provisions related to transfer in the impending legislation. It seeks to, among other things, try children between 16 and 18 who are alleged to have committed a heinous crime in the adult system. “The emphasis is more on institutionalisation than reintegration,” said Swagata Raha, a legal researcher with Centre for Child and the Law. “But community based efforts are far more effective than lengthy prison terms.”

In spirit, the Juvenile Justice Act is more than just about dealing with young offenders, it is as much about shielding children in need of the state’s care and protection. It is not unusual then, when vulnerable children – orphans, runaways, children coming from abject poverty – fall on the wrong side of the Act, and come into conflict with the law. “Where was the juvenile justice system when [The Delhi juvenile in conflict with law] was in need of care and protection?” asked Dr Shekhar Seshadri, professor, department of child and adolescent psychiatry, NIMHANS, at a panel discussion in Bangalore this week. “He must have been a child in need of care and protection at some point.” [According to reports he left his home in a UP village when was young, became a child labourer and later fell into bad company.]

Many children cut a sorry figure, struggling to come to terms with how their lives change so sharply. Perhaps, if the Act worked, as experts suggest, to help children when they are most vulnerable, many crimes can be prevented.

“I wonder,” said Ashok, “maybe I would not have even done the crime if there was a system/ department/ committee which offered help to me at that point of time – before I committed the crime.”

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