The Union Cabinet recently approved the Juvenile Justice (Care and Protection of Children) Bill, 2014, which proposes to transfer children between 16 and 18 years accused of heinous offences to the adult system, based on an assessment of their mental capacity. The ‘frame of mind’ of a child and adolescent is not an easily understood paradigm and does not lend itself to be measured accurately. What is being proposed, i.e. identifying the frame of mind of an adolescent who is only alleged to have committed a heinous crime will merely result in an arbitrary ‘opinion’ lacking scientific validity. The intention of this process is to punish a child like an adult in a flawed attempt to contain the problem of heinous crime. What can actually be measured is the socio-cultural and demographic profile, pattern of behaviour, psycho-social adversity, accessibility to basic amenities and inputs given to the child prior to the alleged commission of the crime, and from this data to create an ‘individual profile’ that should guide the judicial orders for interventions aimed at rehabilitation of the child. This rigorous psycho-social assessment should be accessible to all juveniles, equitably and not discriminately based on the ‘seriousness of crime’. Given that the proposed assessment of a child’s mindset at the time of the alleged crime cannot be done scientifically, it will naturally lead to arbitrary opinions and fuel unjust judicial decisions that will radically change the course of a child’s life.
The nature of crime allegedly committed might seem adult-like but there is a consensus among professionals working with children and adolescents that the cognitive and emotional capacity of these adolescents is not yet developed enough and is lacking in the following capacities that typify adult behaviour — risk assessment and delaying immediate gratification, inhibiting impulsive behaviour in favour of long-term goals, future-oriented thinking and resisting peer pressure. Thus the need of the hour is to sensitively handle the ‘immature’ and still developing adolescent despite the heinousness of the alleged crime and find ways to ensure provision for unmet developmental needs.
Childhood is a period of growth of both body and mind, and cannot be measured by the number of years one has lived but by the experiences one has been through. These processes are influenced by the varying pace of the maturing brain related to intellectual capacity, emotional intelligence and empathy, inhibiting harmful choices and finding new ways to adapt to situations. This learning happens successfully with immense amount of feedback from family and the socio-cultural environment, by understanding the pathways which led to it and by teaching acceptable alternative ways of fulfilling the identified primary needs such as affection, relationship and identity. This is certainly not achieved by focusing on the wrongdoing, and by sentencing the child to incarceration in an adult prison, a space that is devoid of anything remotely connected to positive role modelling, behaviour modification, socialisation or re-integration into society.
The existing legislative and judicial basis of ensuring juvenile justice is based on the understanding that juveniles have limited culpability and are not ‘hardened’ and thus cannot and should not be dealt with in adult courts. Thus the focus of any intervention in this population is rehabilitation, reintegration and restoration and not punishment or incarceration. If the ultimate goal of attending to juvenile ‘crime’ is indeed to rehabilitate and restore functionality then the primary aim cannot be ascertaining culpability to subject the child to a harsher environment.
The need of the hour is to provide for more intense financial, manpower and creative efforts focused on the psychiatric and psycho-social assessment in order to prepare Individual Care Plans and family level interventions, state- and national-level initiatives to sensitise the stakeholders and citizenry. What is even more important is the provision of facilities and skilled personnel to treat, rehabilitate, monitor, supervise and provide intensive continuous realistic feedback that can bridge the information gap between the legal and the social systems. These services are required to cater to the needs and interests of all children, including and perhaps more so for children alleged to be or found to be in conflict with the law, as they are also entitled to care, protection and rehabilitation as envisaged in the existing law, which is welfare legislation.
Thus, the dispute is not whether or not there should be punishment for adolescents found guilty of heinous crimes but what the appropriate manner of dealing with them should be. An inherently faulty assessment of maturity cannot be the basis of trying children as adults. Scientific evaluations should instead inspire rehabilitative and therapeutic initiatives for individual growth and vocational options, capacity to form realistic relations at various levels in society and to contain and transform aggressive impulses into socially acceptable ones. Flawed psychological assessments cannot be the crutch to justify the punitive treatment of adolescents as adults.
Shekar P Seshadri and Raghu N Mani are professors at the department of child and adolescent psychiatry, NIMHANS, Bengaluru
The views expressed by the authors are personal