Introduction

Cries of ‘justice’ echoed through the nation on March 20, 2020 after four of the Nirbhaya convicts were executed. Yet there were some who were not satisfied as one of the accused persons, who was a juvenile at the time of committing the crime, had gotten away. This reflects the sentiment of the majority in 2012, which wanted the juvenile to be tried as an adult. Subramaniam Swamy even filed a petition that the juvenile should be tried as an adult. This was rejected by the Juvenile Justice Board (‘JJB’),[1] which sentenced the accused juvenile to three years in a reform facility, as per the existing laws in force at that time.[2] This caused widespread public anger and there were demands for reform of existing juvenile laws.

It was because of this popular sentiment and public backlash that the Government decided to enact The Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’).[3] The Act introduced several changes to the existing legal framework on juveniles. This article specifically deals with those provisions that allow for children between the ages of sixteen and eighteen, who have committed ‘heinous offences’, to be tried as adults.[4] While there are multiple reasons to oppose such a system, this article focuses only on one of them – the potential for an increase in recidivism among those children who are tried as adults.

I. Labelling Theory and Stigmatization

The labelling theory suggests that a person engages in deviant behaviour[5] not only because of their own individual behaviour but also because of societal response.[6] This means that when society labels an individual as deviant, they will eventually engage in that labelled deviant behaviour.

The reason for this is that society not only labels the person but it also sanctions and stigmatizes them. This reaction from society, including their peers, friends, and even family, effectively alienates them from society. They are perceived as a criminal and their previous behaviour is also redefined negatively to fit this perception.[7]

This treatment changes the labelled person’s self-perception and they begin to engage in deviant behaviour that conforms to the label that society has thrust upon them. They increasingly seek solace in subcultures.[8] They interact with others who exhibit deviant behaviour, who accept this behaviour as ‘normal’. This further pushes them into crime and deviance. They shield themselves from society, which is the only entity that can help them because it offers some normalcy. Thus, deviance becomes a lifestyle that is difficult to change.[9] In essence, labelling “leads the deviant individual to follow a self-fulfilling prophecy of abidance to the ascribed label”.[10]

Under the Act, an individual between sixteen and eighteen years of age, who is accused of a heinous offence, is made to undergo extensive character and psychological evaluation. The JJB then decides whether they should be tried as an adult. When the JJB orders that a child be must tried as an adult, they effectively label the child a ‘criminal’. The child gets the message that they do not deserve to be treated like other children – that they must be tried like an adult as they are beyond reform.

Further, trying a child like an adult exposes the child to a court situation where they are continuously exposed to a rigorous scrutiny of their actions, personality, and behaviour, and a formal judgement on their guilt is pronounced. To make matters worse, in certain districts, no Children’s Courts have been designated. Consequently, children have to be tried like adults in the Court of a Sessions Judge.[11] This is in direct contradiction to the more child-friendly environment that JJB proceedings seek to create.

The effect this has on an adolescent child is particularly strong because adolescence is the period in which children develop their social identity. An early experience in the criminal justice system can have long-term negative implications. They experience the conviction “not as a condemnation of their behaviour but as a condemnation of them”.[12] The pernicious impact of this labelling sticks with the child even after they are released from prison.

As per the Principle of Fresh Start,[13] the records of juveniles are destroyed. This is done to provide the child with a fresh beginning and an opportunity to reintegrate into society without any stigma. However, the Act makes an exception for those who are tried as adults and mandates that their records must be maintained.[14] Further, they do not have the right to not disclose their criminal antecedents.[15] This would mean that they carry the label of a criminal for their entire life. This only serves to increase societal stigma and limits their educational and employment opportunities. It denies them a fresh start, serves as a constant reminder that they are ‘criminals’, and makes reintegration into society difficult for them. This labelling and subsequent stigmatisation alters their self-conception and as empirical research has found, increases recidivism.[16]

II. Sense of Injustice

It is impossible to accurately assess the mental capacity of a child and such an assessment “exceeds the limits of science”.[17] Despite this, the Act requires the JJB to assess the mental and physical capacity of the child to commit the offence that they have been accused of.[18] The Act provides no guidance on how to determine such capacity. The arbitrariness of these tests is further worsened by the fact that the Act does not mandate the JJB to use an expert or a psychologist for such assessment. Section 15 of the Act states that the JJB ‘may’ seek assistance from a psychologist or from experts. In reality, such assistance is often not sought. In the words of the Allahabad High Court, this is a “really scary state of affairs”.[19] Further, as per section 20 of the Act, when the child attains the age of twenty-one years, the Children’s Court must decide whether they have “undergone reformative change” and whether they can be a “contributing member of the society”.[20]

The case of Durga v State of Rajasthan demonstrates the flaw in the test that is used to determine whether a child must be tried as an adult.[21] In this case, a child had killed her husband during a fight. She was found to have the mental capacity to commit the crime because she was “cooperative and communicative” and was not in a state of excitement (three months after the incident). The JJB completely ignored the fact that her husband was an alcoholic who beat her regularly for three years and had even poured kerosene on her. To make matters worse, the JJB relied on a secret report and did not take the assistance of an expert or a psychologist.

The tests laid down in the Act are extremely vague and they do not provide any criteria to determine what ‘mental capacity’ and ‘reformative change’ constitute. Such tests are thus highly subjective and arbitrary and might allow bias to creep into the decision.[22] The problem with such arbitrary tests is that they leave the child with a grave sense of injustice. A child who was tried as an adult or who was not considered ‘reformed’ upon attaining twenty-one years of age would feel like the system is not legitimate or fair, given that the tests are extremely arbitrary. Consequently, they would harbour a sense of injustice. They would also compare themself to other children who were released because they were considered ‘reformed’ or were not considered ‘mentally capable’ of committing a crime. Unless proper and convincing reasons exist to justify such differential treatment, which is unlikely given the very nature of the tests, the child’s feelings of injustice would only be furthered.

It has been found empirically that a perception of injustice can increase crime and violence.[23] There are various theories that can be used to explain this causal relationship.

According to Tyler’s Compliance Theory, if a citizen doesn’t believe that the law is legitimate, they would not feel obligated to follow that law. It would dilute the normative values that deal with legal compliance, and hence, citizens would be less likely to abide by the law.[24]

According to the Neutralisation Theory, children find ways to neutralise their guilt and justify their actions.[25] A sense of injustice could be one of the neutralisation techniques. They lose faith in the system and use the injustice they faced to justify their criminal behaviour.

The General Strain Theory (‘GST’) proposes that strain leads to negative emotions (anger and frustration), which require a coping strategy. Recent research on GST has shown that a sense of injustice is a stressor. Violence and resorting to criminal acts could be one of the possible reactions to these negative emotions.[26]

Thus, there is an empirical as well as a theoretical basis to support the claim that a sense of injustice could lead to further violence and consequently, recidivism.

III. Juveniles in Adult Prisons

Authorities estimate that as of June 2019, there are over four thousand inmates who could be children in prisons in Delhi.[27] Putting children in adult prisons can often have adverse consequences. Prisons can serve as a school for criminals. Children can learn how to commit crimes and avoid detection from more experienced inmates. Further, they are exposed to an environment where prisoners commit crimes and acts of violence against each other. The children in prisons are forced to accept this violence as part of their daily life, and they soon adopt this anti-social subculture prevalent there.[28]

They also face a greater risk of being physically or sexually abused in prisons. This abuse is perpetrated by other inmates and also by guards and prison officials, who are in a position of power.[29] The brutalization of a child could destroy their sense of personhood and self-worth and make them resent the state and the system. This could aggravate their sense of not belonging in society and decrease their willingness to conform to societal norms.[30]

Further, it is likely to give them the wrong idea about the psychological benefits and acceptability of criminal behaviour. They harden themself as a self-defence mechanism and associate with gangs for the sake of protection. They may even brutalise other inmates. This could make children socially maladjusted and more violent and hostile.[31]

Incarcerating children in adult prisons hampers their development. It particularly affects their identity formation. Prisons and jails, being retributive in nature, break down identities and do not help build new ones that represent societal norms.[32] Juvenile homes, on the other hand, offer rehabilitative measures in a comparatively safer environment than prisons. Studies have found that juvenile homes prioritise rehabilitation – the children found the staff helpful and most of them felt confident that they would not reoffend. This was in complete contrast to those children who were incarcerated in adult prisons.[33] Thus, juvenile homes, by virtue of their safer and rehabilitative environment, reduce the chances of recidivism as compared to prisons. As Dilulio wrote, “Jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.”[34]

In India, under the current system, the child would have to serve their sentence until the age of twenty-one years in a remand home. Therefore, it may be argued that the effects of incarceration with adults are mitigated. However, as per the law, the child would be transferred to a jail after the age of twenty-one to serve the rest of their sentence.[35] Thus, they would still be subject to the negative influence of prisons. This would nullify the effect of any rehabilitation that may have taken place in the juvenile home. On the other hand, after their time in a juvenile home, if the child were reintegrated into society with proper post-rehabilitative care,[36] they would avoid the negative influences of prison altogether, thereby reducing the chances of reoffence.

It must be noted here that even if we were to revert to the older system in which juveniles were sent to remand homes only, we need to ensure that the law is implemented properly. India’s observation homes have been described as ‘hellholes’ because of the sexual and physical abuse that children are subject to and the inhumane conditions in which they are forced to live.[37] Further, due to a lack of infrastructure and inefficiencies in implementation (such as police subversion and the excess time taken to determine the actual age of the juvenile), many juveniles are actually lodged in prisons and subject to abuse and violence.[38] Hence, India needs to strengthen the implementation of the law to ensure meaningful rehabilitation.

Conclusion

The trial of children as adults can increase recidivism among children instead of having the intended deterrent effect. There are numerous empirical studies that show this trend.[39] For example, one study showed that children who were tried in the adult justice system exhibited a 29% higher probability of reoffending than those who were kept within the juvenile justice system.[40]

The juvenile justice system in India was always meant to be reformative and not retributive.[41] By pandering to popular sentiment, the Government has passed a law that could have adverse effects in the long term. By labelling children as ‘criminals’, providing for arbitrary tests to decide the ‘mental capacity’ of a child, and incarcerating children with adults, it is likely that the Act has already defeated its purpose of rehabilitation and has instead paved the way for increased recidivism. Today, the juvenile convict in the Nirbhaya case is working as a cook and he has turned over a new leaf.[42] While he has escaped the draconian law that was enacted to punish those like him, thousands of children will suffer because of it in the years to come. The new law will ensure that we churn out hardened criminals, instead of reformed individuals.