Introduction
The youth of any nation is both its asset and its resource; if this population is not guided and nurtured well, national progress and development are arrested. India, with a substantial share of its population in the 16 to 30 age band according to the 2011 Census, has one of the largest youth populations in the world. Its young people possess the skill and zeal to establish themselves, yet, for want of opportunity, many undermine their own potential and become engaged in various anti-social activities.
On the one hand, India makes one of the largest youth contributions to science and technology worldwide; on the other, a significant incidence of crime is committed by the younger generation. When the young are not properly assisted or supported, they may, for various reasons, associate themselves with a range of criminal activity. The reasons for such inclination include the lure of easy money, excitement, peer pressure, family and social background, lack of education, and poverty. A number of studies suggest that young offenders often carry underlying apprehensions or disadvantages that contribute to their involvement in crime.
Crime has long fascinated the human mind, and young people frequently regard it as an exciting event that will bring them recognition and popularity within their peer groups. The human mind is a difficult subject to study, and the passage from adolescence to adulthood is among the most difficult phases of all. It is not easy to assess what will attract or alienate a given individual, and there is no complete answer to the question.
India today faces many challenges concerning its youth. Major issues such as health, education, employment, and equality of status and recognition are often not discussed or addressed as they should be, while attention is frequently diverted to less productive controversies. The community most affected by this neglect is the youth. A majority of young people who offend have health, education, and social-care needs which, if not met at an early age, can lead to a lifetime of declining health and worsening offending behaviour. A significant proportion of young people released from custody reoffend within a year, and young offenders tend to experience worse health than others of their age, particularly in terms of behavioural and mental difficulties.
Technological advancement has made society more progressive and independent, but it has also exposed the young to new vulnerabilities. Some young people are diverted from what would benefit them and instead pursue easy money or are drawn into spreading misinformation and hostility. Often they are fed wrong information and manipulated by others who use them for their own benefit and gain, without the young persons themselves fully understanding what they are being made to do.
Such manipulation erodes the innocence of the young. They may be used as instruments for the gain of others in ways they do not comprehend, and this can draw them into anti-social activity. News reports frequently indicate that young people used to commit offences do not always realise that they are breaking the law and thereby becoming offenders.
The essential object of the criminal justice system is to protect society against those who break the law. To this end, the law holds out the threat of punishment to prospective offenders and seeks to make actual offenders answer for their crimes. The judiciary forms a bridge between the law-making and law-implementing bodies so that a lawful and stable society is created and sustained. In criminal matters the judiciary not only adjudicates but also has a duty to protect the rights and liberties of the individual. The Indian criminal justice system is entrusted with enforcing the law, adjudicating crime, and correcting criminal conduct. In dealing with young offenders, the principal purposes of criminal justice administration are to preserve the rule of law, maintain order, ensure a just, fair, and speedy trial, rehabilitate offenders through the correctional system, and provide solace to victims. The primary aim of a youth justice system is to prevent youth offending, and its effectiveness is judged by its success in reducing the number of young people entering the criminal justice system for the first time.
In relation to youth, however, the present criminal justice system has in several respects failed to meet the ends of justice. The various subsystems of the criminal justice system, namely the police, the prosecution, the judiciary, and the correctional institutions, have not fully achieved the goals associated with an effective youth justice system.
Nature of youth offenders
The relationships and social patterns experienced by young people today differ from traditional patterns arising within the family, school, or workplace. Delinquent and criminal behaviour among the young becomes apparent where they are not raised in a proper environment, and this tends to occur as they negotiate the transition from childhood to adulthood in an increasingly complex world. Young people, regardless of gender, social origin, or country of residence, face individual risks and are also presented with opportunities, some useful and some harmful. Statistical data indicate that in almost all parts of the world the rate of youth crime has been rising.
A degree of anti-social or assertive behaviour is a normal part of growing up during adolescence. The United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) affirm that “youthful behaviour or conduct that does not conform to overall social norms and values is often part of the maturation and growth process and tends to disappear spontaneously in most individuals with the transition to adulthood”; the great majority of young people commit some kind of petty offence at some point during adolescence without this developing into a criminal career.1
The intensity and severity of juvenile offences are generally determined by the social, economic, and cultural conditions prevailing in a given country. There is evidence of a universal increase in juvenile crime occurring concurrently with economic decline, especially in the poorer districts of large cities. In many cases, street children later become young offenders, having already encountered violence in their immediate social environment as witnesses or victims. The educational attainment of this group is, as a rule, rather low; the basic social experience acquired within the family is too often insufficient; and the socio-economic environment is marked by poverty and under- or unemployment.2
Understanding the causes of juvenile delinquency is an integral part of preventing a young person’s involvement in harmful and unlawful conduct. Evidence shows that a small minority of young people, most of whom are disadvantaged, make up the cohort of young offenders. Young people are especially susceptible to becoming victims of violent crime owing to their physical vulnerability and greater exposure to risk.3 Research shows that assaults against young people aged between fifteen and seventeen are most commonly committed at their places of work or study, by people they know.4 Statistics show that in 2010-2011 persons under the age of eighteen were victims of crime as often, if not more often, than they were perpetrators.5 India is home to millions of indigent children, many of them illiterate, unwell, and malnourished, living in neglect within families that cannot care for them. Millions more are drawn into the workforce at an age when they should be learning to read and write, and many live on the streets following the loss of their families or because they could no longer endure abuse. Although this phenomenon is by no means new, globalisation and economic liberalisation have, in some instances, aggravated the vulnerability of children. In India, where rapid economic growth has produced considerable new wealth, the distribution of that wealth has grown increasingly unequal, and such growth has not necessarily reduced the poverty that continues to afflict hundreds of millions.6
It is not easy to isolate one or two factors that underlie youth criminality, for many factors contribute to it. Most young offenders come from families marked by discord or abuse. Peer pressure and environment also influence a child’s development, and poverty is among the principal causes of youth delinquency. Although education plays an important role in shaping future citizens, the system often lacks the capacity to hold the attention of less academically inclined individuals and thereby contributes to cases of juvenile delinquency. Deteriorating family conditions are a further reason for high rates of youth crime; with a lack of parental supervision, the moral and emotional condition of children and young people can deteriorate.7
As a society, much more must be done to remedy the problem. There is a strong need for policies and schemes that provide employment to young individuals, since greater employment opportunity fosters financial and mental stability and reduces the number who resort to criminal activity. By providing better and earlier access to support services and youth programmes that address the causes of disadvantage, the community can intervene before young people progress towards serious offending.
Relevant cases of youth offenders in India
According to the 2011 Census, a large proportion of India’s population falls within the younger age groups, and India has the largest youth population in the world, a figure poised to increase further in the coming decade. This youth population, which ought to be a national asset, is in significant measure diverted into anti-social activity. According to Home Ministry data, of the total of 33,387 juveniles apprehended in 2011, 21,657 were in the 16 to 18 age group, 11,019 in the 12 to 16 age group, and 1,211 in the 7 to 12 age group. According to a survey by the Central Road Research Institute, young people in the 19 to 25 age group were observed to be the most vulnerable group involved in road-rage incidents resulting in fatalities and accidents. National Crime Records Bureau data indicate that, among crimes committed by the young, crimes against women register a high incidence.
It is instructive to study some relevant cases of youth crime that illuminate the working of the criminal justice system in relation to the young. India has seen many young persons come into conflict with the law, some of them extremely dangerous and others who have themselves fallen prey to the system.
Ajmal Kasab: Mohammed Ajmal Amir Kasab was a Pakistani national and a member of the Lashkar-e-Taiba (LeT), through which he took part in the 2008 Mumbai terrorist attacks, widely known as the 26/11 attacks. Kasab was the only attacker captured alive, out of ten, most of whom were below the age of twenty-five.
The Mumbai attacks were among the most intricately planned terrorist attacks of recent years and brought considerable strain to relations between India and Pakistan. Ten young men had sailed from Pakistan armed with assault rifles and ammunition and attacked landmark sites across the city, eventually killing 166 people, including foreign nationals. The lone surviving gunman, Ajmal Amir Kasab, was about twenty-one when he entered the Chhatrapati Shivaji Terminus railway station carrying an assault rifle and fired indiscriminately at men, women, and children. Grenades were thrown among those queuing for tickets, and many were killed and injured as the ticket hall of the city’s busiest and most historic station, formerly Victoria Terminus, became a scene of mass killing.
Kasab appears to have been an aberration among the Lashkar recruits studied, in that he had received only limited schooling, whereas the recruits generally had more education. It has been suggested that he had a low aptitude and was recruited to be sent to a specific target in India to kill, and that he was expected to die in the operation; it is entirely possible that poverty and undue influence played a significant role in his recruitment. Kasab was sentenced to death in 2010. After a series of appeals, his sentence was upheld for the final time by the Supreme Court, by which time he was twenty-five. He was hanged on the morning of 21 November 2012 at Yerwada Central Jail and was buried within the prison grounds.8
The Nirbhaya juvenile convict: Juveniles in conflict with the law are tried under the juvenile justice legislation, which defines a juvenile as a person under the age of eighteen. Capital punishment and life imprisonment cannot be imposed for offences committed by persons below eighteen, irrespective of the gravity of the crime. India is also a signatory to the United Nations Convention on the Rights of the Child, which fixes the age of a child at eighteen and provides that the best interest of the child shall be a primary consideration in all actions concerning children.
Since the enactment of the juvenile justice legislation, there had been no case in which a juvenile was tried or treated on a par with an adult on account of the nature of the crime committed. However, in the wake of the Delhi gang-rape (Nirbhaya) case, in which a juvenile was involved in the gang rape and murder of a young woman, there were strong demands to create an exception in the existing law for cases where juveniles were found to have committed crimes of a heinous nature.9
The Nirbhaya case generated public sentiment against what was perceived as lenient treatment of juveniles approaching eighteen who were found to have committed heinous crimes. The committee headed by Justice J. S. Verma was constituted to examine deficiencies in the existing criminal law relating to such offences.
The Justice Verma Committee rejected the demand for lowering the age of juvenility but called for reform of the existing juvenile justice system and recommended stricter treatment for certain offences. The government subsequently brought forward the Juvenile Justice (Care and Protection of Children) Act 2015. Parliament approved the Act on 22 December 2015, in the aftermath of the 2012 Nirbhaya gang-rape and murder case. The Act provided a legal framework under which juveniles aged sixteen to eighteen may be tried as adults where they are found to have committed heinous offences.10
The 2015 Act distinguishes between petty, serious, and heinous offences. Under the Act, juveniles who commit heinous offences between the ages of sixteen and eighteen may be treated as adults and tried under the ordinary criminal justice system. The decision whether a child in that age group committed the offence with the maturity of an adult rests with the Juvenile Justice Board; where the Board so certifies, the child may be tried before the ordinary courts.
The Juvenile Justice Board is required to assess the mental and physical capacity of the child to commit the offence, the child’s ability to understand its consequences, and the circumstances in which the offence was committed. The Board is expected to complete this preliminary assessment within a period of three months.11
Child-rights experts, however, argue that adopting stricter treatment for children closer to eighteen who are convicted of heinous crimes may be the easiest response to public feeling, but not the best. They point out that much delinquency is a response to the way society treats a child, and that a large proportion of India’s children remain marginalised through trafficking, poverty, addiction, child labour, abuse, disability, and conflict.
The Ryan International School case: An eight-year-old student of Ryan International School, Bhondsi, was found with his throat slit outside the school washroom. His father filed a petition before the Juvenile Justice Board seeking that the juvenile accused be tried as an adult.
The prosecuting agency, the Central Bureau of Investigation, also described the crime as serious in nature. According to the investigation, the juvenile arrested on the charge of the killing was alleged to have committed the crime with the motive of postponing a scheduled parent-teacher meeting and having ongoing examinations cancelled.
Reports suggested that the juvenile had planned the killing and had been undergoing psychiatric treatment for violent behaviour in the preceding year. The final decision was to be taken by the Juvenile Justice Board within three months. Were the Board to find that the accused should be dealt with as a juvenile, he could be tried by the Board and face a maximum period of detention of three years.12
The Delhi Mercedes hit-and-run case: A teenager who allegedly ran over a 32-year-old marketing executive while driving his father’s car in Delhi in April 2016 provides another illustration of youth crime. The juvenile was charged under Sections 304 (culpable homicide not amounting to murder) and 201 (causing disappearance of evidence) of the Indian Penal Code. The Delhi Police first apprehended him on 5 April 2016, a day after the incident, but he was released on bail, being at that time booked under the less serious Section 304A (causing death by a rash or negligent act) of the Code.13
After public disquiet over the minor’s release and an allegation by the victim’s family that the investigating agency had been lenient, the police reclassified the case as culpable homicide not amounting to murder under Section 304 and arrested him again.
The Delhi Police told the trial court that the parents of the accused minor had aided the wrongful act by permitting their child to drive. According to the police, the juvenile in conflict with the law was a repeat offender who had been driving the vehicle with the consent of his parents, who had thereby aided him by illegal omission in allowing their minor son to drive the vehicle dangerously and at excessive speed, with knowledge that such conduct was likely to cause death, which ultimately resulted in the death of the pedestrian.14
The Juvenile Justice Board ordered that the juvenile would face trial as an adult, observing that the offence allegedly committed was heinous. This was the first case of its kind since the enactment of the Juvenile Justice (Care and Protection of Children) Act 2015, which permitted the Board to transfer cases involving heinous offences by children to the Sessions Court.15
The Gurugram case: A nineteen-year-old was produced before a city court, which remanded him to judicial custody. The complainant, a school student living nearby, alleged that the accused had first befriended and then repeatedly raped her, and had threatened to kill her, until a relative grew suspicious and confronted him.16
According to the police, the accused had allegedly entered the complainant’s house and raped her when he found her alone, and had threatened to kill her if she disclosed the offence. A first information report was registered under Section 506 (criminal intimidation) of the Indian Penal Code and the relevant provisions of the Protection of Children from Sexual Offences Act17 at the concerned police station.18
It is not always the case, however, that the criminal justice system does justice to the young. It can also have a harmful impact on them. On occasion the young fall victim to shortcomings in the system and are wrongly charged, prosecuted, and even punished, which makes them more vulnerable to crime and its consequences. The following are a few instances in which young persons have suffered the adverse effects of the criminal justice system.
Mohammad Aamir Khan: On a February night in 1998, Mohammad Aamir Khan, a resident of the Old Delhi area of the capital and then eighteen years old, made his way to a chemist’s shop. He was, by his account, forced into a vehicle and taken to a room where he says he was tortured and made to sign blank papers; it was only when he was produced before a court a week later that he realised he was in police custody. Khan was charged in nineteen cases involving offences including murder, terrorism, and waging war against the nation, and was accused of involvement in a series of low-intensity bomb blasts in Delhi and neighbouring states between 1996 and 1997. He was eventually acquitted in the great majority of these cases.19
In a book written with Nandita Haksar, Framed as a Terrorist: My 14-Year Struggle to Prove My Innocence, Khan describes being picked up by plainclothes policemen and taken to a place where, by his account, he was subjected to prolonged ill-treatment, abuse, and threats against his family.20 He recounts that, more than his confinement and the conditions of imprisonment, what grieved him most was watching his parents suffer.21 After his release, Khan worked with a human-rights organisation promoting peace and communal harmony.
Nisar-ud-din Ahmad: After a struggle spanning about twenty-three years, Nisar-ud-din Ahmad, who was not yet twenty when he was first imprisoned, was released. The Supreme Court set aside his conviction, citing insufficient evidence. He had been arrested and convicted in the early 1990s by the trial court in connection with blasts on trains that had killed two passengers and injured eight. His brother, Zahir-ud-din Ahmad, was also arrested and sentenced in connection with the same matter; he was later granted bail on health grounds.22
Nisar-ud-din states that the prosecution case rested on confessions that he maintains were fabricated, and that both he and his brother were compelled to sign statements admitting involvement.23 He has stated that he was held before being produced before a magistrate, that he was ill-treated in custody, and that he was made to sign a confession he disputes. He has said that his only wish is that no other innocent person should suffer as he did, and that this message should reach the authorities.24
Allah Baksh Yadawad: Allah Baksh Yadawad was twenty-three and studying medicine at a government medical college when he was arrested in 2008. He was accused of offences relating to alleged association with a proscribed organisation. When he was later acquitted of all charges, he stepped into a world that had changed considerably during the years he had spent in jail. He observed that his contemporaries had by then established themselves in the medical profession while he had been left behind. He did not fit the stereotype sometimes associated with such accusations, having been a strong student who had gained admission to the medical college on merit.
Abdul Wahid Sheikh: Abdul Wahid Sheikh was one of the accused in the 2006 Mumbai train bombings. He was acquitted and released in 2015 by the designated court, the prosecution having been unable to establish the charges against him. He later wrote a book, Begunah Qaidi (Innocent Prisoner), documenting his years in prison25 and describing how, in his account, he became a victim of the shortcomings of the criminal justice system.
Ishrat Jahan: On the morning of 15 June 2004, four persons, Javed Sheikh, Zeeshan Johar, Amjad Ali Rana, and Ishrat Jahan, were shot dead on a road on the outskirts of Ahmedabad. The police alleged that the four were linked to Lashkar-e-Taiba. One of those killed, a young woman later identified as Ishrat Jahan, a nineteen-year-old college student from Mumbra near Mumbai, was not named in the first complaint.
The initial investigation was conducted by officials of the Ahmedabad Crime Branch, some of whom belonged to the same unit involved in the incident, and concluded that the encounter was genuine. The State Government ordered a magisterial inquiry, and the Gujarat High Court subsequently constituted a Special Investigation Team to probe the killings. In 2009 a report by a metropolitan magistrate concluded that the four had been shot at close range and identified several discrepancies in the police account, contradicting the State police’s version. The Special Investigation Team also concluded that the encounter was not genuine.
When the matter was handed to the Central Bureau of Investigation, it identified significant deficiencies in the first investigation by the Ahmedabad Crime Branch and questioned the officers’ account of the encounter. The Bureau arrested police officers, although several were subsequently released on bail or reinstated, and the prosecution of certain officials was affected by the withholding of sanction to prosecute.26
Youth offenders and the Indian criminal justice system
The instances above give an indication of how the Indian criminal justice system operates in relation to youth offenders, and of its both beneficial and adverse effects upon the young.
For much of the twentieth century, sentencing policy tended to be offender-oriented and grounded in a rehabilitative model of individualised sentencing. As national crime rates rose and public concern grew over serious offences committed by adolescents and young adults, policymakers came to favour a more punitive approach to the juvenile justice system, and legislation was enacted under which, even in cases of heinous crime, juveniles may in defined circumstances be tried and sentenced as adults. These changes reflect the perception, drawn from crime records, that the young are increasingly implicated in serious offences.27
There has long been a concern that persons of means may more easily evade the consequences of wrongdoing than ordinary citizens, and, conversely, that the disadvantaged may suffer disproportionately from the system’s failings. The case of Machal Lalung, an inhabitant of a village in Assam who is reported to have spent decades in custody without trial, is often cited as an illustration of the human cost of such failings. Many undertrials in the country are young adults who, owing to the mismanagement of the system, lose their formative and creative years.
India is the world’s largest democracy, yet deficiencies in the criminal justice system detract from its standing. There is a pressing need to rethink and reformulate the justice system to meet the challenges of the present day,28 particularly in the field of youth justice. It has been suggested by some social scientists that the rise in youth offending is, in part, a consequence of rapid shifts in the economic system and its social conditions. Criminologists observe that such economic shifts, combined with widening social inequality, can disrupt fragile socio-cultural systems and produce conditions conducive to increases in crime, especially the kinds associated with youth disaffection and migration into criminal markets.29
When the justice systems of the world are compared, change is found to be the only constant; yet, even amid such change, the Indian criminal justice system remains in need of improvement. Ineffective enforcement of the law, delay in the disposal of cases, insufficiently trained police, an overburdened court system, and poor prison conditions have become major impediments to a full and fair criminal justice system. These deficiencies bear not only upon the youth justice system but upon the delivery of justice generally.
Conclusion and suggestions
In reforming the youth justice system, it must be recognised that, for the great majority of young adults, offending is a short-lived phase, and that growing up involves making and learning from mistakes. The youth justice system should address serious and persistent offending, but it should not become the mechanism by which all the mistakes of youth are redressed. The proper response to youthful offending is generally to address its underlying causes, which lie in society, the family, and the socio-economic circumstances of the offender, and this does not always require a criminal justice intervention. Where the justice system is engaged, however, young adults who break the law should be dealt with differently from adult recidivists, and the emphasis should fall on reform and on channelling their potential rather than on punishment. Young people often act impulsively and do not fully appreciate the consequences of their actions; they are not yet emotionally developed and may struggle to communicate effectively. Health, education, social care, and other services form part of an integrated, multi-agency response to youth offending, and it is more desirable still that these services intervene with at-risk young people and families before difficulties manifest themselves in offending.
To this end, work is required along the following lines:
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Footnotes
1. United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), G.A. Res. 45/112, U.N. Doc. A/RES/45/112 (Dec. 14, 1990).
2. United Nations, World Programme of Action for Youth to the Year 2000 and Beyond, G.A. Res. 50/81 (Dec. 14, 1995).
3. Joe Tucci, Janise Mitchell & Chris Goddard, Children’s Sense of Safety: Children’s Experiences of Childhood in Contemporary Australia 8 (Australian Childhood Foundation 2008).
4. Australian Bureau of Statistics, In Focus: Crime and Justice Statistics, cat. no. 4524 (2011).
5. Victoria Police, Crime Statistics 2010/2011.
6. Nita Bhalla, Poverty and Child Rights in India, Research in Reviews: Sciences and Technology (2018).
7. Involvement of Youth in Crimes, PTE Academic Writing Sample Essay (2018).
8. Dean Nelson & Nick Meo, Mumbai Terror Attacks: The Making of a Monster, The Telegraph (Feb. 24, 2013).
9. Delhi Gangrape: Should Juveniles Be Tried and Punished as Adults?, Firstpost (Jan. 4, 2013).
10. Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, INDIA CODE (2015); see also Pradyuman Thakur Murder Case, India Today (Nov. 9, 2017).
11. Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, secs. 15, 18, INDIA CODE (2015).
12. Pradyuman Thakur Murder Case: Juvenile to Be Tried as Adult, India Today (Nov. 9, 2017).
13. Juvenile in Delhi Mercedes Hit-and-Run Case to Be Tried as Adult, The Hindu (June 4, 2016).
14. Delhi Mercedes Hit-and-Run: Teenager’s Parents Aided Act, Says Police, NDTV (May 30, 2016).
15. Delhi Mercedes Hit-and-Run Case: Accused Youth Challenges Order to Try Him as Adult, Firstpost (2016).
16. Youth Charged with Raping Minor Held, The Tribune (Apr. 2018).
17. Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012).
18. Youth Arrested for Raping 13-Year-Old, The Times of India (Apr. 9, 2018).
19. Betwa Sharma, Mohammad Aamir Khan Was Arrested on Terrorism Charges and Acquitted After 14 Years in Jail, The New York Times (India Blog) (Mar. 13, 2013).
20. Framed as a Terrorist: Mohammad Aamir Khan’s 14 Years Behind Bars, Hindustan Times (2016).
21. Failed as a Spy, Framed as a Terrorist: The Saga of Mohammad Aamir Khan, The Wire (2016).
22. Acquitted in Babri Anniversary Train Blasts Case, Nisar Released After 23 Years, The Indian Express (May 2016).
23. Indian Man Gains Freedom After Years: Was the Struggle Worth It?, Icy Tales (2016).
24. Nisar-ud-din Ahmad: Freed After 23 Years, BBC (May 2016).
25. Abdul Wahid Shaikh, Acquitted in 2006 Mumbai Train Blasts Case (Interview), The Wire (2015).
26. The Ishrat Jahan Encounter Case: An Account.
27. Alfred Blumstein et al., Juvenile Sentencing and the Criminal Justice System, National Institute of Justice (2013).
28. Anita Yadav, Criminal Justice Reform in India: Need of the Hour, 119 Criminal Law Journal (All India Reporter), pt. 1358 (2013).
29. Economic Change, Social Inequality and Youth Offending (Teesside University Open Repository 2013).