The horrific Delhi gang rape and the claim raised by two persons accused in the Mumbai gangrape case that they are minors have once again raised important concerns on juvenile justice law, especially whether juveniles who commit serious crimes should be tried and punished as adults and not as children. On 17 July 2013, the Supreme Court decided that the existing law must not be disturbed and the age of the juvenile must remain 18 years. However, another bench of the Supreme Court is currently hearing a special leave petition filed by Dr. Subramanian Swamy on this issue. In this context, it is important to bust four misconceptions on juvenile crime and justice that have thronged the minds of the public.
Misconception# 1: Juvenile crime rate is very high and our society is at risk. Juvenile crime constitutes a miniscule fraction of the total crimes being committed in India. As per the National Crime Records Bureau’s annual reports on Crime in India, the percentage of crimes under Indian Penal Code (IPC) reportedly committed by juveniles to total IPC crimes reported in the country has ranged from 1.0% to 1.2% in the last three years. Approximately 65% of juveniles were apprehended for property-related offences such as theft and burglary. As opposed to this, only 5%-8% were apprehended for crimes such as rape and murder. While media reportage of juvenile crime has increased in the recent past, evidence on the ground does not support the view that juvenile crime has assumed massive proportions in India. The fear that Indian society is “under threat” from its children is grossly exaggerated.
Misconception#2: Juveniles who commit “adult crimes” are fit to be tried as adults. Numerous studies in developmental psychology have found that, contrary to perceptions of early maturation, adolescence is a period of tremendous physiological, hormonal, emotional as well as structural changes in the human brain and therefore it is a time of great vulnerability. Biologically, humans are making a transition into adulthood through these changes.. With the advent of brain-imaging technology, researchers from the University of Alberta have now found that structural changes continue well into the early 20s. Jay Giedd of the U.S. National Institute of Mental Health who has studied the development of the adolescent brain for over two decades, even pegs it at 25 years.
The act of engaging in “adult” crimes such as murder and rape does not imply maturity. On the contrary, it is direct evidence of vulnerability of juveniles to reckless behaviour. Research indicates that the likelihood of adolescents committing crimes in groups is higher than that of adults. Studies by psychologists and neuroscientists show that adolescents are more prone to peer pressure, negative influence, are less likely to focus on future outcomes, are less risk-averse than adults, and evaluate risks and benefits differently.
According to the American Psychological Association, American Psychiatric Association, and the American National Association of Social Workers, older adolescents “lack the adult capacities to exercise self-restraint, to weigh risk and reward appropriately, and to envision the future that are just as critical to mature judgment, especially in emotionally charged settings”. Further, the brain system develops at different times throughout adolescence. Psychologists have found that the vulnerability to indulge in risky or reckless behaviour is greater in middle adolescence (14-17 years). This is borne out by the Crime in India data over five years, which reveals that majority of juveniles apprehended fall in the age group of 16-18 years. This is a time when they need the most support and attention in order to enable them to complete their passage into adulthood in a responsible and safe manner.
Misconception# 3: Treating juveniles who commit serious crimes as adults will serve as a deterrent against juvenile crime and therefore promote public safety. There is no evidence available to support the claim that subjecting juveniles who commit serious crimes as adults will deter crime. There is however, a lot of evidence that the exact opposite is true. In comparative studies by Jeffrey Fagan, Associate Professor, School of Criminal Justice, Rutgers, involving adolescents before the adult criminal court in New York and those before the juvenile court, what emerged was “that the New York kids treated as adult criminals were rearrested faster, more often, and for more serious crimes, and more often were returned to prison.”
Banishing juveniles to adult prisons will expose them to hardened criminals who will feed on their vulnerability and initiate them into serious crime. This will put society at a higher risk and increase the supply to organized crime. Instead, according to Arlene Manoharan, the head of a multi-disciplinary team which works with juveniles and their families at the Centre for Child and the Law, National Law School, Bangalore, “the wider community can play a crucial role to ensure that quality reformatory/rehabilitation services are made available to this group of adolescents, many of who ache to get the help they need to get out of the vicious cycle of violent crime and start life afresh.” Evidence on the ground supports the science-based assertion that a caring environment can undo the damage done by a lack of it in the past. In Bangalore, the ECHO Center for Juvenile Justice has imparted training to 135 juveniles since 2002 to enable them to serve as Traffic Police Assistants, transforming them from “law breakers” to “law enforcers” thus demonstrating the power of a reform-oriented approach.
Misconception# 4: Heinous crimes are different and juveniles involved in it are truly sadistic. They are an exception and must be treated differently. Due to the sensational nature of heinous crimes, it is easy to believe that those involved in them are just born evil. Besides, the same apparatus that helps each one of us to accept more responsibility and mature when guided to do so by the adults around us, goes dangerously against us when the adults exhort us in a different direction. Nowhere has this been more apparent than in Africa, where children have been recruited as soldiers in many conflicts, particularly in the Democratic Republic of Congo and Sierra Leone.
They have engaged in what we would consider heinous crimes. World-over, children from impoverished backgrounds fall prey to gangs that initiate them into violence. John Hubner, author of “Last Chance in Texas,” spent nine months at a Texas State School listening to young violent offenders tell their life and crime stories. He notes, “A common theme for gang kids was their initiation, which in most gangs, is a drive by. One girl told how her gang-affiliated brother helped her hold the pistol because she was 7 years old. Another boy met a Latin Kings gang leader when he was a pre-teen. When he did his drive-by (shooting), the gang leader helped him hold the pistol, too, because he was just a little guy. So yes, it happens all the time because violence is a rite of passage in gang culture.”
Rites of passage are as old as the emergence of tribes, and are seen in all walks of life, such as ragging in India. Adults today might remember the humiliation they experienced and the humiliation they may have heaped on their juniors during ragging experiences, which take place in even prestigious academic institutions, a tradition that has helped keep this rite of passage alive in spite of the best efforts of society. Some ragging experiences do turn heinous, and an honest reflection might reveal that there isn’t much other than good luck that has protected some of us from crossing the line to harm others irreparably.
Instead of condemning juveniles, Geeta Sajjanashetty, a Bangalore-based advocate believes that “Just as a juvenile can be influenced to commit crime, given the opportunity, care and protection, he can also be transformed into a law abiding citizen.” Acclaimed novelist C.S. Lewis once said, “When I was ten, I read fairy tales in secret and would have been ashamed if I had been found doing so. Now that I am fifty, I read them openly. When I became a man I put away childish things, including the fear of childishness and the desire to be very grown up.” Indeed, our children exhibit the zeal to be all grown up but what it means to be grown-up is largely influenced by the grown-ups around them. There is perhaps little as heartbreaking as adults taking advantage of a child’s innate desire to “grow up” and egg them on to harm others grievously.
(Swagata Raha is a legal researcher on human rights and consults with the Centre for Child and the Law, National Law School, Bangalore.)