Mumbai Local

Moving toward a balanced and restorative model of juvenile justice

Many children aged below 18 and in ‘conflict with law’ have faced abject poverty, easy availability of firearms, abusive parents, family or state-sponsored violence. They are mostly school dropouts from single-parent or nuclear families, victims of drug abuse, anti-social peer groups, sexual abuse and lack safe and nurturing environments.

Even if they are in the care or control of justice systems, the picture that emerges is extremely disturbing. These children are subjected to horrific violence from staff and officials responsible for their wellbeing including torture, beatings, isolation, rape and humiliation. The institutions are isolated from community and closed to public scrutiny. Numerous studies have consistently established the negative impact of institutionalisation.

The aftermath of the release of the Nirbhaya rape convict is a pointer to the fact that the state, family, community, society and media were ‘not satisfied’. The public perception was that offenders are getting off easy or even being rewarded by the system for their crime (for example, by referring them to recreational programs and giving low priority to victim and community restoration).

Such a response by the family, community, media and the public to the presence of juvenile sex offenders in the community may also impede offender rehabilitation. If the offender between 14 and 16 years of age is charged under the POCSO Act and dealt with under the new JJ Act 2015, he is severely punished for committing ‘heinous offences’ in the adult justice system. We are again leaving out the victim and the community and those responsible for the child turning into one in conflict with law. The use of punishment alone via current formal criminal justice is, therefore, an inadequate response to sexual crimes by juveniles.

The preventive measure of mandatory reporting in POCSO Act, 2012 has not acted as a deterrent. The two major objectives of mandatory reporting in section 21 of the POCSO Act are to identify child victims of sexual abuse and to prevent them from coming to further harm, and the perpetrator is booked and prevented from harming other children.

For mandatory reporting to be successful, there must be adequate resources and training available to the reporting department, i.e. the police and the child welfare committees, and it is important that mandated reporters receive training and the public be made aware of the appropriate extent of their responsibility

The very fact that juvenile courts, Juvenile Justice Boards and children’s courts were brought into existence in almost all criminal justice systems throughout the world was to prevent children from being treated as criminals. Undoubtedly, children should be treated differently from adults because of their greater physical and psychological vulnerability. This is non-negotiable.

Ideally, protective services staff must identify the factors that contributed to the maltreatment and determine what services would address the most critical treatment needs, but this is not done in practice. There is neither the willingness nor the resources to prepare individual care plans. Subjecting them to the adult criminal justice system is, therefore, not the solution. Juveniles who have served their sentences have often recommitted crimes, and the system has neither contributed to prevention nor reintegration. It is increasingly apparent that current after-care system has just not taken off and remains on paper

Crime by juveniles represents a failure of responsibility by duty bearers. The sources of the problem of delinquency — community, schools, family, institutions, juvenile justice system and the state — have failed in prevention, rehabilitation and reintegration.

The current juvenile justice system faces a crisis of confidence. There is a need for preventive programmes in communities, schools and families. We need strategies that target only individual offenders for change but involve all these in their prevention, treatment, rehabilitation and reintegration.

In many countries the restorative model — a balanced approach mission — is currently emerging as an influence on lawmakers. This model encourages offenders to accept responsibility for their criminal behaviour and its consequences to others. One of the key features of the model is the involvement of victims in dealing with the offence. It does not overlook rehabilitation and punishment but places them in the context of individuals taking responsibility for their actions.

The balanced approach mission addresses the public need for sanctioning based on accountability measures which attempt to restore victims and clearly denounce and provide meaningful consequences for offensive behaviour including offender rehabilitation and reintegration, and enhanced community safety and security. These system goals, which also govern the response to each offense, are accountability, competency development and community protection.

A balanced and restorative justice model provides a framework for systemic reform and offers hope for preserving and revitalising the juvenile justice system.

It will develop new roles for victims, citizens and offenders in the justice process. Implementation must begin with consensus-building among key stakeholders and testing with small pilot projects to develop the model.

The programmes hold promise for achieving several goals, including increased community and victim involvement, greater satisfaction with the case outcomes, improved offender compliance, increased perceptions of fairness, and even recidivism reduction. Maybe this could be started as small pilot projects along with training and capacity building of the staff, community and families with adequate resources and with state support and involvement.

Dr Bajpai is Founder Dean, School of Law, Rights and Constitutional Governance, Tata Institute of Social Sciences

The balanced approach mission addresses the public need for sanctioning based on accountability measures

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Printable version | Jan 22, 2022 12:07:20 AM |

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