Context
The child’s vulnerability arises not just on account of age, but also from complex environmental issues related to parenting, community and social pressures as well as material conditions. Studies have shown that children who experienced familial violence and/or parental neglect, discrimination and violence in schools or communities, were at greater risk of being in need of care and protection, as well as deviance. Adolescents assertion of independence and risk taking within contexts that are violent, hostile, lack support and guidance, enhance vulnerability. Under these circumstances children may commit crimes, or suffer abuse or exploitation.
The child protection system is mandated to respond to two categories of vulnerable children – the ‘children in conflict with the law’ (CICL) as well as ‘children in need of care and protection’ (CNCP). Ideally, the juvenile justice system, must help reverse the environmental harm through care, rehabilitation and social-reintegration, as the state bears the ultimate obligation of child welfare and protection.
Data
The data on children in conflict with the law is influenced by what acts the law criminalises or prohibits for the young. In India, the figures of children in conflict with the law increased with the enactment of Protection of Children from Sexual Offences (POCSO) Act, 2012. Prior to this law, the age of sexual consent was 16 years, which was increased by POCSO to 18 years, without any allowance for non-coercive sexual contact between consenting adolescent peers. All adolescent sexual contact being treated as sexual abuse has contributed to increased numbers of both CICL and CNCP. This has led to concern for increasing rates of juvenile crime and heinous offence, allegedly committed by adolescents. A closer look at the data however shows that it is property-based offences like burglary and thefts, not heinous crimes that comprise the majority of crimes committed by children.
In 2019, juvenile crime accounted for 0.63% of the total crime incidence, with property-based offences being a fifth and heinous offences like rape and murder being a miniscule proportion. In contrast, the conviction rate for children in conflict with the law was 87%, as against all India conviction rate of 42.5% for crimes. The 10 year general conviction rate for such children has never dipped below 83.5%. (India’s Children Continue to Challenge our Conscience, 2019)
Law
Prior to 2016, children in conflict with the law were uniformly dealt with under the juvenile justice system, irrespective of the nature of crime or age, based on the principle of best interest and goal of reintegration. The legal landscape, however, changed after 2012 with popular outrage against the juvenile offender involved in the Nirbhaya and the Shakti Mills gang rape cases, leading to the enactment of the new Juvenile Justice (Care and Protection of Children) Act, 2015(referred to as the JJ Act). This introduced the “transfer system” that allows children between 16 and 18 years, who have allegedly committed “heinous crime,” to be tried and punished as adults.
The enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Criminal Law (Amendment) Act (CLAA), 2013 expanded the scope of statutory rape to criminalise adolescent sexual expression absolutely, including that between consenting peers. Abuse has to be mandatorily reported by service providers, health care providers, counsellors who can no longer extend confidential services, escalating prosecutions regardless of the willingness of the young parties concerned.
The law assumes adolescents between 16-18 to have capacity to stand criminal trials on par with adults (for heinous offences), even as it denies them capacity to sexual consent by criminalizing non-coercive consensual relations between peers.
India’s JJ Act provides a frame for care, protection, treatment, rehabilitation and social-reintegration of children in conflict with the law (CICL) and children in need of care and protection (CNCP). It recognises that the child protection system needs to proactively respond to children at risk of violence within their homes or institutional spaces, children without families, children with disabilities with no one to care for them, or children at risk of forced child marriage, trafficking, child sexual abuse, economic exploitation, or use by adults to commit crimes. It also recognises that CICLs are also in need of care and protection and may require to be treated as a CNCP.
Challenges
The challenges at the statutory, implementation and institutional levels, are a barrier to achieving the twin goals of rehabilitation and reintegration of vulnerable adolescents.
The statutory framework allows for minors alleged to have committed heinous crimes to be ‘transferred’ for being tried and punished on par with adults, although Article 40(3) of the UNCRC requires states to create a distinct set of laws, structures and functionaries ‘specifically applicable’ to children alleged or found to be in conflict with the law. The law assumes culpability and competence of adolescents between 16-18 to participate in the trial, comprehend its consequences and withstand the punishment on par with adults, which is at odds with research from neuroscience and behavioural sciences that recognise adolescent decision-making and risk-taking as not fully developed.
The denial of sexual consent, and consequent criminalisation of adolescent sexuality including for penetrative and non-penetrative consensual relations among peers, is severely harmful. The failure to recognise evolving autonomy and sexual development among adolescents with the onset of puberty exposes the young to charges of heinous offences and incarceration.
At the implementation level, more concerns arise. Torture in police custody, as well as corporal punishment and violence against children in Child Care Institutions are not uncommon. Under the guise of protecting children’s identity and privacy, the decisions taken by the Juvenile Justice Boards and Child Welfare Committees in relation to cases that they adjudicate, are not available for study or any scrutiny, making it impossible to evaluate the nature of juvenile justice or its adherence to due process and child-friendly provisions.
At the institutional levels, the juvenile justice system remains under-resourced. The investment in child protection is a measly 0.06% of the Union Budget (HAQ Centre for Child Rights), which makes the system incapable of fulfilling its legislative mandate. This makes for poor quality and inadequate training of functionaries, inadequate staff, lack of mental health and other necessary services. There is also little investment in community-based programmes aimed at youth, family strengthening, diversion, education and vocational training – all of which are critical to address vulnerabilities and prevent children from entering the JJ System.
Recommendations and Resources
The law must not only decriminalise non-coercive consensual sexual expression between adolescent peers, but also treat all persons under 18 within the framework of child protection system and juvenile justice. Recognition of relative maturitycannot be the basis for excluding protection to juveniles charged with heinous offences, whose rehabilitation needs require greater attention.
…All resources should be pooled together and managed effectively so that every child who enters the system gets a humane and disciplined treatment showing a true pathway for their reintegration and restoration into society as valuable assets who have much to do and much to hope for.
Why Children Commit Offences: Study on Children in Conflict with Law in Delhi,
Delhi Commission for Protection of Child Rights, June 2015
Bonds of Hope: Connecting to Children in the Observation Homes of Rajasthan, Counsel to Secure Justice, UNICEF and Department of Child Rights, Rajasthan.
Perspectives of Justice: Restorative Justice and Child Sexual Abuse in India, Counsel to Secure Justice, Centre for Criminology and Victimology, NLUD (2018)
Inputs on Draft National Child Protection Policy by the Ministry of Women and Child Development, HAQ Centre for Child Rights.