The Juvenile Question

When members of an NGO that works with juveniles met Kishore at an observational home for children in Mumbai, he wasn’t just depressed, the young boy was on the verge of losing his mind. He had not slept for many nights and no single person—none of his family nor friends—had come to visit or ask after him. In the two years that Kishore spent at the juvenile house in Mumbai, only a social worker spoke to him in any meaningful way, piecing his memories together and making him realise the consequences of his actions in an attempt to help him rebuild his life.

“He had no one and was so young and impressionable,” says the social worker, who doesn’t want her identity revealed. “We were worried we would lose him forever.”

Violence and displacement had been the only reality in Kishore’s life until then. At the age of 12, his mother had burnt herself after a dispute with her husband. By 13, he had dropped out of school and left his uncle’s house in an overcrowded and impoverished slum of Mumbai. He joined a gang of homeless boys that moved around the city. They slept in train sheds and unmanned construction sites, robbed people, hustled money, sniffed adhesives and consumed amphetamines for intoxication, and ate at rundown eateries when they had the money. As the youngest member of the gang—many were in their twenties— Kishore tried to outdo and impress the others. Until the night they made their way to a shop and killed the attendant who resisted the robbery.

Kishore’s stay at the observation home was useful, but his future was uncertain. “We were afraid. What would happen next? Would he be able to return to his uncle? Would he be able to refashion his life? Or would he become part of a new gang of juveniles?” says the social worker.

Two shocking cases of gangrape— the December 2012 one in Delhi and another in the Shakti Mills area of Mumbai a year later—in recent times have had juveniles as rapists. Since under-age criminals get lighter and shorter punishments under the law, fears have arisen of minor criminals let loose too soon. Many argue that they are mature enough to understand the gravity of their crimes; that a justice system that seeks merely to reform them with a rap on their knuckles is outdated.

Earlier this year, this narrative about juvenile criminals, resulted—in direct contravention of the United Nations Convention on the Rights of the Child (UNCRC), to which India is a co-signatory —in the passing of the Juvenile Justice Care and Protection of Children Bill, 2014, which, among other things, seeks to allow children in the 16-18 age group to be tried as adults for heinous crimes.

There is, however, no scientific evidence to suggest that adolescents between 16 and 18 years of age have the maturity and awareness to grasp the consequences of their deeds, or that there is a spate of heinous crimes by juveniles. In 2013, for instance, according to the National Crime Records Bureau, children constituted 1.1 per cent (38,756) of all persons arrested under IPC crimes (3,523,577). Of them, only 0.1 per cent (3,304) were children arrested for rape and murder. According to social workers who work with juvenile delinquents, most ‘rape’ charges involving children are complaints filed by parents of girls who’d had romantic relationships or eloped with boys.

After the 2012 gangrape in Delhi, when demands for reducing the upper age limit for ‘juveniles’ from 18 to 16 saw a spike, a parliamentary committee headed by Justice JS Verma, a retired Supreme Court judge, rejected these calls. Later, in 2013, the Supreme Court dismissed as many as eight public petitions asking for the age limit to be lowered to 16. But the Lok Sabha passed the Bill. And it is now expected to be tabled in the Rajya Sabha this Winter Session.

Deepika Khatri, strategy and advocacy coordinator with the NGO Aangan, which as part of a coalition of over 58 NGOs and lawyers called ProChild Network has been fighting the Bill, says that the Delhi gangrape case has made a reasonable discussion on the subject impossible. “With this new bill, we aren’t really addressing any of the fears around public and women’s safety. We are just baying for blood,” says Khatri.

The then minor in the Delhi gangrape case was portrayed by the media as its most brutal assailant. But later, when the Juvenile Justice Board sent him for three years to a reformatory house, it was discovered that the brutality attributed to the minor was ‘media hype’; evidence of it was sketchy, going by the testimonies of the victim and her companion. But the image of the boy as a particularly brutal attacker persists.

He is to be released on 21 December, but there is a growing clamour for him not to be let out. There are reported claims of the youth having been brainwashed by an alleged terrorist. The BJP politician Subramanian Swamy has written to Prime Minister Narendra Modi alleging that the juvenile rapist has now become a jihadi. Union Minister for Women and Child Development Maneka Gandhi told PTI that she would direct the authorities to keep a “close watch” on the youth after his discharge. “We can’t just let him go and wait for him to do something else again,” she was quoted as saying. In a poll conducted by the daily Hindustan Times, where people were asked if the juvenile deserves a fair chance in life, almost 89 per cent said he does not. The Delhi Police have spoken of the possibility of the youth being charged under the National Security Act and held back.

“If this were true, that he has been brainwashed, what no one seems to get is that it is not the possible radicalisation of the youth that is shocking. The failure of the system and the juvenile home meant to help reform him is,” says Asha Mukundan, an assistant professor at the Centre of Criminology and Justice, Tata Institute of Social Sciences, Mumbai, who has worked with several juveniles found in conflict with the law. “What will happen to this boy when he is released? Will his family, neighbours and society accept him? Will they allow for the possibility of his reformation? No one will allow him to do so. And if he does commit another crime, everyone will say, ‘Oh look, we told you. He was going to do it again’.”

About a year ago, a 17-year-old boy travelled across the country on a train from a distant village in Uttar Pradesh to Mumbai. One of Ajay’s uncles, who was a contractor of labourers in the city, had promised him a job.

For the next few months, Ajay lived at one of Mumbai’s many construction sites, working as a security guard. He didn’t particularly dislike his job, but arguments and fights among co-workers were common occurrences during his night shifts. One such argument among several people turned violent and resulted in a death. While Ajay claims he did not kill the individual, he was charged with the crime. According to him, his uncle told him to accept guilt for the crime since the assailants had escaped, and that he would get him released later.

After his arrest, Ajay, despite claiming he was not yet 18 years old, was kept at Arthur Road Jail, a prison for undertrial adults, for three months. After a medical checkup established his age, he was transferred to an observation home in Dongri. Nobody visited him during this period. Neither the uncle who had allegedly promised to get him out, nor his parents and relatives from Uttar Pradesh. As his case dragged on at the Juvenile Justice Board, he began to fear that he would forever remain abandoned and forgotten in a correctional home.

He eventually opened up after about a month to two social workers from the Resource Cell for Juvenile Justice, a field action project carried out by TISS. Akhlaque Khan and Sukanya Rajgopal, the two activists, began to look for his relatives, before finally tracing his parents to a place in UP. The social workers had to find a distant uncle in Mumbai who was willing to stand as surety for the juvenile’s bail and organise the money required. By the time bail was acquired and Ajay reached home, his father had died.

Since then, Ajay has returned to Mumbai, found the job of a labourer at another construction site, and continues to report to the social workers.

“Despite the depression he underwent— abandoned in jail and later the observation home—he has done remarkably well. When his case is finally decided, he is likely to be released and not sent to a special home,” says Khan.

A juvenile apprehended for a crime is required by law to be sent to an observation home. The Juvenile Justice Board, upon examining the case, has the responsibility of determining if the offender needs more time before his or her reintegration into society; if so, he or she is sent to a special home for not more than three years. Despite the stated aim of these being homes for ‘reform’, they have a terrible reputation. A 2013 report by the Asian Centre for Human Rights, titled ‘India’s Hell Holes: Child Sexual Assault in Juvenile Justice Homes’, highlights 39 cases of repeated sexual assault on children. It says: ‘It will not be an understatement to state that juvenile justice homes… have become India’s hell holes where inmates are subjected to sexual assault and exploitation, torture and ill-treatment, apart from being forced to live in inhuman conditions.’

These homes have poorly trained and inadequate staff, and experts who work in the field say that their inmates often join gangs. SA Jadhav, superintendent of the Dongri observation home, refuses to comment on what happens at these homes, except to say, “Why do you expect juvenile homes to create magic? When support is continued outside the institution, in homes and societies, only then will true change come.”

Earlier this year, several children from the Dongri observation home were sent to a special home in Matunga, David Sassoon Children’s Home, after a structure within the Dongri home was found to be dangerous. The legal system makes clear demarcations for observation and special homes, specifying different routines and activities for their inmates. The former is for children accused of crimes and the latter for children who, after their cases are decided, are kept here because the Juvenile Justice Board believes they require more time before they can go back and join regular society.

Just a few months after the Dongri inmates were shifted to the special home, a 17-year-old who should have been in an observational home was beaten to death. A probe revealed that the juvenile, along with four others, was trying to escape the facility. The minor was thrashed by inmates with a cricket bat and wooden sticks. One of the assailants turned out to be a 35-year-old man who had been sent to the special home a few months earlier for a crime he had committed when he was 16. “The way observation and special homes are structured, and the way their activities are chalked out, is such that residents are always preoccupied and have little time to get involved in fights. The residents of the two homes are, by law, not supposed to be mixed. But it happened in this case. Also, most of the boys from the observation home were ignored and their needs and activities were not planned properly,” says a member of an NGO who is familiar with the case. “Something like this was bound to happen.”

Khan and Rajgopal, who are in their mid-twenties, have worked with a large number of children, but they say their toughest assignment was their first. Six years ago, they had come upon the case of a 12-year-old from Shivaji Nagar, a slum in Mumbai’s Govandi region, who has been caught five times for different crimes. “Despite attempts by his family and us, he was always part of a gang of older boys that does drugs and steals,” says Rajgopal.

The boy’s history of drug abuse had begun, as the two social workers found out, at the age of eight. He began consuming various forms of marijuana before taking to amphetamines and cocaine, both of which are made and distributed in various parts of his slum. He would disappear for weeks on end with his older friends, living in various abandoned sites in the city, stealing anything they could find, from copper wires and iron pieces in railway sheds, and snatching cellphones from wayfarers. He was released earlier this year with a warning after six months in the observation home. “He’s been okay so far. And we’re hoping to move him out of the area, and perhaps get him involved in some educational course. He’s already 18. If he does something this time, he’s going to get tried as an adult.”

After being discharged, Kishore, now in his late twenties, continued to keep in touch with the NGO that helped him when he was in the observation house. The social worker who worked with him learnt recently that he now works in an office as part of its administrative staff, and is married with two children.

“It is a regular family he has, and a small, unremarkable job,” says the social worker. “But for those who know [about his case], and especially for him, it is a big deal.”

(The names of some juveniles have been changed)

2012 Delhi gangrapeConvicted teenagercrimeJustice JS Vermajuvenilelawunder 18