By Nina P. Nayak
Let me at the very outset state that the people of whole country, including myself are deeply pained about the horrendous crime committed on Jyoti Singh and her untimely demise. The trauma she experienced and anguish of her parents is unimaginable. My sympathies are with the family as no one can ever replace their beloved daughter in their lives.
This said, we must remember that the juvenile who has been held guilty of gang rape along with along with four adults was as a minor mentored by criminal minded men with whom he was associated. Having called for and read the whole judgement in this case while serving at the National Commission for Protection of Child Rights, I found neither in the judgement delivered by the Juvenile Justice Board nor in the charge sheet that the minor was the most brutal of those who assaulted Jyoti Singh.
The boyâ€™s social history has revealed that he had a very difficult and neglectful upbringing. One could easily say he had no childhood, something most of us cherish and remain reminiscent about as we go about our adult lives. He left home at a tender age to eke out a living with neither home nor hearth to fall back upon, and was drawn into the clutches of criminals and their unlawful ways.
Without any evidence most of the media are calling him the most brutal of those who assaulted the victim and are being insensitive and ruthless. Saying he has not been reformed and is at risk of returning to criminal ways without basing it on facts but only assumptions is directly assaulting his very dignity and is in violation of statutory provisions as prevalent in law. Whipping up a public frenzy around him maybe for the sake of TRP, and seeing him as a threat to society needs moderation in thought as this has already lead to grave public hostility against one who is re-entering society.
Such vulnerable children, whose own families are unable to care for them have a right to protection as enunciated by our Constitution and the United Nations Convention of the Rights of the Child which India ratified in 1992. The State as the duty bearer is bound to do so. The questions that arise are these: where is the State when youngsters like this juvenile fall out of the protective umbrella of the family? How does it provide substitute family care or strengthen the familyâ€™s ability to provide a caring upbringing for such children?
Recognising this need, as nearly 40% of our children live in vulnerable situations as admitted by the Govt. of India, the Integrated Child Protection Scheme was introduced in the 10th Plan to back up the Juvenile Justice Act. Children living on the streets, working children, children found begging, child victims of abuse, children with disabilities are among those defined under Sec. 2 (d) of the Juvenile Justice Act 2000, Amended in 2006 as â€śchildren in need of care and protectionâ€ť. If unattended, a miniscule percentage of these children are prone to come into conflict with the law which could be prevented by timely intervention and rehabilitative services.
There is a lot of research, particularly by the Macarthur Foundation of the USA, that reveals that young people are relatively immature until they reach the age of 24 or 25 years. They take risks and those in the most vulnerable situations succumb to do things to win the favour of adults who mentor them. This young offender, unfortunately without the backing of a nurturing family that most readers of this article would have been fortunate to experience, had none to pull him out of this digression. Hardened criminals seem to have taken him under their wing and that is how he seems to have become a member of the â€śgangâ€ť which went on to commit this very heinous offence.
When I met him at the Special Home in mid-2013, he seemed a somewhat reticent young man. Later I learned from a reputed organisation which provided professional counselling to him while the case was being heard in the Juvenile Justice Board, that over time he became communicative, learned cooking and enjoyed painting and expressed a desire to learn a skill, start working and fending for himself and his family.
Now that the prevailing law demands, and as corroborated by the Delhi High Court in its 18th December 2015 judgement that his release cannot be stayed, it becomes the responsibility of the State to support his reintegration into society. He has spent three years in the juvenile justice system where the State was expected to provide correctional support leading to his reformation and equipp him with a skill to eke out a living. Has the State done so? Can the young man fend for himself or does he continue to need supportive services. Is the probation service efficient to support his re-integration into society? There are many unanswered questions. Let the State take a call using the best of professional minds and provide this young man aftercare support as mandated by law for at least two years and help his assimilation into society.
At this juncture, we need to look at the larger picture. Is the system geared to prevent children such as this boy from falling into criminal ways? And if they do, what are the systems in place to ensure that young offenders entering the juvenile justice system are given the professional support they need in order to reform them. Shockingly, though there has been so much drum-beating about the criminal behaviour of minors, there remains a huge governance deficit in prioritizing interventions and putting in place systems for diversion, rehabilitation, restoration and reintegration of such children who need it the most. No serious thought has also been given by either GOI or the States on how to set right this anomaly except for some knee jerk reactions and tinkering of existing policy or legal frameworks as with the JJ Bill which is before the Rajya Sabha. Remedial measures as you will agree, include bringing in specialized skills, knowledge and newer approaches based on research and local and global best practices to set right the logjam.
The need of the day is the modernization of JJ Administration and a parallel can be drawn from the arena of adult correctional administration. Decadence in prison administration led to the Cabinet Committee on Political Affairs in 1988 to consider a scheme for the Modernization of Prison Administration in pursuance of which, the two Regional Centres, namely the Institute of Correctional Administration in Chandigarh and the Regional Institute of Correctional Administration (now known as the Academy of Prisons and Correctional Administration) in Vellore, were established.
These institutes generate a positive rights-based orientation in prison management and undertake various research projects on prison administration and human rights and provide a forum for prison officers from across the country to interact with diverse stakeholders for devising a framework/plan of action for human rights-based prison management.
The JJ System would benefit tremendously through a pioneering initiative on similar lines focusing wholly on preventive, responsive and rehabilitative outcomes for children prone to fall foul of the law or who have fallen into criminal ways. Let us hope the State makes this a priority and puts an end to this heartless debate of collaring vulnerable minors with the tag of criminality.
(Nina P Nayak is a former member of the National Commission for Protection of Child Rights and former Chairperson of the Karnataka State Commission for Protection of Child Rights)