Centuries before Christ, Aristotle had characterized adolescents as less able to control their impulses and thus more prone to taking risks than adults. He concluded that “the young are heated by nature as drunken men by wine.” In 1623, a shepherd in Shakespeare&’s The Winter&’s Tale wished that “I wish there were no age between ten and three and twenty, or that youth would sleep out the rest: for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.” This lament proves the latest scientific findings that adolescence is a period of “storm and stress.” Freud saw adolescence as an expression of tortuous psychosexual conflict; Erik Erikson, as the most tumultuous of life&’s several identity crises. Adolescence has always been a problem.
What a tragedy that the 21st century government of a progressive Prime Minister has taken the regressive decision to punish juveniles as adults and sending them to prisons.
The violation of the cardinal principle of classical juvenile justice jurisprudence is justified due to the consequences attached to heinous crimes committed by a few juveniles in the agegroup of sixteen to eighteen. But then the State&’s response in terms of repressive laws in violation of international law is a case of the remedy being worse than the disease. Our new labour law reforms are in violation of the rights of labour; the land acquisition law against the interest of farmers; the Union budget is tilted in favour of corporates and makes huge reductions in terms of allocation to the social sector; and now the Cabinet has approved the trial of juveniles by adult courts under the new juvenile law. It is too small a concession that the decision in this respect would be made by the Juvenile Board. It seems all vulnerable groups are suddenly at the receiving end. What is surprising is that even the Prime Minister&’s intervention has not helped the cause of the juveniles. This is happening when the Parliamentary Standing Committee in its 15 February 2015 report rejected the proposal of trial of juveniles by adults. There is consensus amongst experts that putting children with adult criminals is self-destructive and selfdefeating.
Adolescents in conflict with law need adult guidance, not the company of hardened criminals. In the company of hardcore criminals they are bound to become street gladiators. After all children learn only from adults. While the Delhi gangrape was tragic, using this incident to take away the rights of juveniles is not justified. In giving excessively wide definitions of crimes against women, creating all kinds of presumptions against the accused, shifting the burden of proof and providing very harsh penalties such as death or life imprisonment till the natural extinction of life, we are already violating the classical principles of criminal law. Similarly just because one of the accused happened to be a juvenile, the proposal of trial of juveniles by the adult courts is not justified.We should not convert this into a battle between women and children. To protect one vulnerable group we cannot take away the rights of the other.
Children are not committing crimes on their own, but in the company of adults. As children they tend to follow adult accomplices in the commission of crime. Violent and heinous crimes are generally committed by adolescents when they are emotionally aroused and are with their adult friends Rs these two factors lead to a dramatic increase in the likelihood of their impulsivity and sensation. Why are we condemning and demonizing our children? Where is the authentic evidence of a rapid rise in the commission of heinous crimes by juveniles in the age-group of sixteen to eighteen?
By punishing juveniles as adults we may join the company of Saudi Arabia, Iran, Sudan and Yemen where children are still sentenced to death. In 2005, the Supreme Court in America abolished death penalty for children below 18 years of age. Recently it ruled against life imprisonment without parole in all juvenile crimes. It is painful to note that the otherwise liberal apex court of India has of late been insisting on harsher penalties for juveniles.
As regards the rise in juvenile involvement in heinous crimes, facts speak for themselves. The problem is not as serious as it is made out by the media, government and judges.
In 2012, approximately 434 million children were below the age of 18 in India. While no clear figures are available for children in need of care and protection, in a report submitted to the Supreme Court in Bachpan Bachao Andolan case, the government declared that 40 per cent of the children were vulnerable to the commission of crimes.With such a large number of children susceptible to crimes, one would expect a huge majority of them getting involved in criminal activities. However, the number of children even alleged to have committed an offence is relatively trifling. A total of 39,822 children were arrested for the commission of 31,973 incidents of crime in 2012; 35346 among these were new cases while 4476 were repeat offenders. Out of 39,822 children arrested, 2572 were acquitted or otherwise disposed off and only 18,529 children were found to have committed any offence in India in 2012. Cases of 10,721 children were pending disposal.
Out of the total incidence of crime, 27,936 crimes were committed under the Indian Penal Code (IPC) and 4,037 under the Special and Local Laws (SLL). Children committed just 1.2 per cent of the total of 2,387,188 crimes. Thus out of 100,000 children, only 2.3 children were arrested for commission of any offence. In the past decade, juvenile crime has shown only a slight increase.
Compared to western countries, the figures of juvenile delinquency in India are quite low. The UK and the USA have a rate in the range of 11 to 13 per cent. But neither of these two countries are thinking in terms of juvenile trial by adult courts. The United Nations has recommended 12 years as the minimum age of criminal responsibility and non-transfer of children to adult proceedings till the age of 18 years.We will face a lot of criticism by lowering the age of juveniles from 18 to 16 years. Teenagers prosecuted in adult courts fare worse in life and can go on to commit more violent crimes than those who are handled by the juvenile justice system. Transfer of children from juvenile justice has serious repercussions on children and must not be done without scientific reasons. As a matter of fact evidence shows that the rate of recidivism is higher amongst juveniles who are sent to adult criminal justice system and the proposed change would not achieve its stated objective. The transfer of a child from juvenile justice to adult courts is as severe as imposition of death penalty as it is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood. Both decisions signify a life not worth saving.
There is consensus among neuroscientists that adolescence is an age of significant change in brain structure and functions. Significant changes take place in brain anatomy and activity far longer into development than was previously thought. The US Supreme Court discussed this at length in the Simmons case which abolished death sentence for juveniles. Adults are able to employ a wider network of brain regions in comparison to adolescents and thus are successful in controlling themselves. As a modern and progressive society we should distinguish between people who are to be held criminally liable and those adolescents who need societal care and protection. Let the science and not government decide where to draw the line.
There is no authentic scientific basis either to conclude that children in the age group of 16 to 18 cannot be reformed at all. In fact adolescents, even older adolescents, are totally different from adults as their brains are not yet fully mature and they cannot yet make rational and conscious decisions. Jonathan Lippman, Chief Judge of New York Court, rightly said that the ability of making reasoned decisions and weighing of consequences is not manifest till 18 years of age. Even teenagers in the age-group of 16 to 18 have difficulty with impulse-control and with resisting outside influences and peer pressure. They lack the capacity to fully appreciate the consequences of their actions. At the same time, the systems in the brain that control emotions are highly activated, leading some to describe the teenage brain as “all drive and no brakes.” In addition to being more immature, the teenage brain is also more “plastic,” meaning that it is more malleable and capable of change. Is it the beginning of acchhe din of our children?