#NoPrisonForChildren: A Juvenile Lawyer Sheds Some Light On India's Juvenile Justice System - Homegrown

#NoPrisonForChildren: A Juvenile Lawyer Sheds Some Light On India's Juvenile Justice System

[Editor's note: -- Recently, the government’s hasty decision to amend the Juvenile Justice act, allowing minors above the age of 16 to be tried in courts as adults, came to our attention and we felt compelled to bust certain myths around the issue. Taking statistical and societal complexities into account, we’ve felt from the start that this is not a bill that should be passed without deeper conversation. A conversation every single one of us ought to be a part of. If you'd like to get more involved, don't forget to visit www.noprisonforchildren.com for further information and sign our petition, there's only one week to go.]Ever since we published ‘Think Twice: Lowering the Juvenile Age Limit is Closer to You Than You Think’, we’ve had a niggling curiosity as to what it is that actually goes on in a system that seems so shrouded in mystery to all of us – the latest developments of which we can only find out through mainstream media. In hopes of creating a deeper conversation on the issue, we followed this piece up with this thought-provoking video and, through Shuchi Kapoor's lens documenting a Delhi Remand Home, exploring the dichotomy of the new Juvenile Justice Law. In an attempt to play devil’s advocate, we leave no stone unturned as we continue to reach out to people involved in the system in their respective ways, to provide us with more insight into the world of child offenders in India - this time, we are in conversation with a child rights lawyer. Having worked independently since 2012, child rights lawyer Anant Kumar Asthana has been associated with the Human Rights Law Network and Delhi State Legal Services Authority in the past.
That crimes like murder, rape and assault are inexcusable and absolutely unacceptable is something that we can all agree on - but in the case of juveniles, isn't it important that we try and and push past the outrage, appalment and downright disgust at the perpetrators of heinous crimes - to look rationally at the broader picture in question?
Here are the facts:
I) Every third Indian today is a youth.
II) In about seven years, the median individual in India will be 29 years.
III) By 2020, India is slated to become the youngest country in the world, with 64% of the population belonging to the working age group.
In a country that is dominated by the youth, it is crucial that the juvenile justice system weighs its decisions based on facts - as opposed to a media-fuelled frenzy - well-conceived and cognisant that one miscalculated step has the power to lay the first brick towards creating a country of criminals. By throwing juveniles behind bars next to - and consequently, under the influence of - hardened criminals, is one such step we would do best to avoid altogether, as the facts are - this is a model that has been tried and failed miserably, leading to years of damage control at the cost of the well-being of society as a whole. If the decision to treat juveniles who have committed heinous crimes as adults goes through in the winter session of the Parliament - we're looking to sculpt our future on a program that has reported a 100% failure in every country that has tried it. Is this a risk we are really willing to experiment with, given our population statistics?
In a democracy, the media is supposed to be the fourth pillar of society, a great power that can prove to be exceedingly disastrous, if abused, especially in the wake of brutal incidents that leave scars on the collective conscious of the country, the public trauma rendering us vulnerable and in pursuit of an understandable, but perhaps misguided, idea of retribution.
The panic-driven media coverage after the heinous rape and murder of a 23-year-old girl in Delhi, that touted the youngest perpetrator, a boy found to be under 18 years of age, the 'most brutal' - 'before the police had filed the charge –sheets based on statements of the witnesses and evidence gathered' has seemingly rendered a functional judicial system redundant -- is giving in to media trial really the best way in which we can approach the issue? This was a statement that was later retracted, in admission that the juvenile himself had 'been brutalised'. Several other rumours regarding the release of the same juvenile, propagated by the media, have turned out to be unfounded - causing serious damage to the social psyche that far exceeds conscious public memory or the attention span of sensationalist media.
Most important of all - let's talk numbers: In 2013, children comprised only 1.1 % of all persons arrested. A mere 0.1% of all arrests were children arrested for rape and murder. If the government really does go ahead with this amendment, what they’re really saying, and what we’re really agreeing to, is that they cannot even make an effort to rehabilitate as few as 3304 children which is the number children arrested for rape and murder in 2013, in a country that’s over a billion people strong.These are not cold facts and clinical statistics we are asking you to abide by - at the heart of this petition is the underlying message that empathy is key.
After having explored how the Juvenile Justice Bill 2014 affects those in our age group far more than we are aware – we set out to speak to someone who has been actively involved in fighting for child rights for seven years, and has worked over a thousand cases till date. We wanted Anant Asthana to show us an insider’s perspective to find out not only his opinion regarding the new bill tabled by our Union Cabinet Minister for Women & Children Development, Maneka Gandhi, but also – how often does he find the profession gratifying, and what are the pitfalls of working within the juvenile justice system? What is it that helps one traverse the pitfalls; and what is the complex experience of dealing with such young, malleable individuals within the system like?
Speaking with Anant proved to be refreshingly insightful, and we were privileged to receive really honest answers that paint a realistic picture of the proceedings - a refreshing departure from the red tape and antics of the sensationalist media. At present, he works independently as a lawyer and consultant, working closely work with HAQ: Centre for Child Rights as one of its legal consultants.
Anant's engagement with the Juvenile Justice System, however, started sometime in 2007, when he moved to Delhi to learn how to practise law as a fresh graduate straight out of Aligarh Muslim University. He had often heard Senior Advocate Colin Gonsalves speaking, in university, about the dire need of young lawyers in the country to help people, and, inspired, he decided to come down to Delhi and work in human rights for a year. It was at Human Rights Law Network, where he got his first case of a female refugee juvenile from Myanmar assigned to him by his supervisor lawyer. On his first day of going to Juvenile Justice Board, he was able to help the girl – a pivotal point in his careers, he realises upon introspection.
“I was so amazed at the ability of a lawyer to bring benefits to people in such tangible terms,” he says. “This made me realise that I was on the right track, and I carried on my work. Initially, I was not focused on only juvenile-related work, but gradually, as my case load started increasing, I committed myself to work in Juvenile Justice Boards only. A journey exclusively committed to juvenile justice-related work started from there. The immediacy of benefits which a lawyer can bring to its clients is something which really keeps me going as a lawyer. It’s been seven years since then. I take up litigation in High Court and sometimes in Supreme Court as well, but my focus till date are juveniles. In the High Court and the Supreme Court, I have been able to secure orders and judgments which improve the juvenile justice system. Experience and knowledge which I have acquired from this work, I share with various other stakeholders - like the police, judicial officers, lawyers, students and government officials, by way of imparting them training to develop their capacity to do good work.”
 In conversation with him, we couldn’t help but take away a couple of life lessons of our own: he got us pondering upon the true value of persistence and we found ourselves quite in awe as he shared some of his stories and opinions surrounding the juvenile justice system with us:
I.      What’s your take on the new Juvenile Justice Bill introduced by Maneka Gandhi? What are the pros and cons of things being transferred to an adult court according to you? In your opinion, is this bill justified?
I see the Bill as a serious regression and it fails to understand the term ’Juvenile Crime’ appropriately - and that is why its treatment of juvenile delinquency, itself, is  ‘juvenile’. The provisions in this Bill on sentencing of some of these juveniles as adults are bound to be counterproductive, and will increase crime in the society.
II.      Do you really believe that the Juvenile Justice Bill will bring down the percentage of juvenile crimes in the country?
The number of ‘juvenile crimes’ will come down by default, because so many children will be pushed into the adult criminal justice system because of the Bill. Their cases will no longer be counted under the head of "Juvenile Crime" but this is a prescription to increase crime in society, as a whole, because so many young, impressionable minds will be pushed into jails.
III.      Section 7 of the same bill states that even if a person over 21 years of age is caught for a heinous offence he or she committed as a juvenile, they can be tried as an adult in the court of law. What are your views on this section of the bill?
This is the most outrageous provision in the Bill. It simply means that a police officer will decide if he wants to treat a child as a child or as an adult. In this case, the police officer can simply not arrest a child and wait for him to turn 21 - and then arrest him. This allows the police to totally bypass Juvenile Justice Act of 2000 (which provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system).

IV.      What are some of the key challenges that the idea of reforming a child faces in India?
I would say ‘stigma’ and ‘contempt’ are the biggest challenges. Hate and contempt is so deeply rooted in society for this section of children that no one really feels like doing anything for them. The key to reform is love, though. If love is missing, the rest becomes a mere formality to which a child never responds. In my own work, I have seen many children reforming themselves because they don’t want to lose the love of someone who really cares about them and loves them
V.      Do you believe it is possible to reform a child completely? Do you have any statistics to illustrate this?
Yes. I do believe that it is possible, they are highly amenable to reformation. I personally do not have any statistics, but there is this one Special Home in Bangalore called ‘ECHO’, which has reported a 100% success rate. Not a single child admitted to that institution has gone back to the world of crime. It really depends on how well we assist the children in their journey back from world of crime as well and while it is not easy, it is certainly not impossible.
VI.      Please tell us about some interesting cases of reformed children you have interacted with in the recent past.
One 16-year-old juvenile I was assisting used to tell me that I was wasting my time on him, and that he was on his way to becoming Dawood Ibrahim one day. I used to smile, and he used to smile back, as he saw that I was not going to let him go. Now this boy plays drum in Devi Jagran and has settled down with family, far, far away from crime.
I remember another boy of no more than 17 years 7 months, who was booked for three cases of robbery in Delhi and one case of being a gangster in Uttar Pradesh. It took two years of work to help out of that life. Now, he teaches painting to children in Delhi, and is looking forward to grow as an artist.
 VII.      What is your definition of a 'hardened criminal'?
A hardened criminal is someone who, it is believed, has become so habitually or deeply rooted in crime that it is believed that these kind of people cannot be reformed. In my personal experience, I refuse to even believe in the concept of a “hardened criminal”. Everyone is capable of reform, and there are so many examples of this everywhere. In case of people aged below 18 years, chances of reformation are very high. This is what the Juvenile Justice Act believes in - and it is based on scientific data. I may be a hardened alcoholic, or a hardened drug addict, or hardened communist, or hardened Hindu or Muslim, or hardened feminist - and we all know that all of these can change. Famous historian Sita Ram Goel was a hardened communist, and once he was reformed he wrote a book called “How I became a Hindu”. M N Roy was a hardened Communist who established ‘Communist International’ but then he was ‘reformed’ and started a political school called ‘Radical Humanism’. Buddhist literature talks about this ruthless, notorious dacoit who used to be called ‘Angulimala’ because he used to chop fingers off from his victims and used to wear them. Buddha made him realise that he was wrong and made him a Buddhist Monk. There is nothing such as ‘hardened’. No one is hardened. Being hardened is a just a phase, which comes and goes. This is something I have seen so many times in the seven years of my criminal law practice.
VIII.      How often have you been involved with cases that are from more privileged sections of society? Do you feel that kids belonging to a wealthier socio-economic strata get away from the system more easily?
I have done quite a few cases of juveniles who come from more privileged sections of society - children of police officers, children of school principals, children of businessmen etc. It is true that the law does not harm the wealthy as much as it harms the poor. There have been so many cases where a bribe was demanded from the families by the police to lodge a criminal case, but because of their state of poverty - when they were unable to pay the bribe - the case went on to get registered. There is no way to ascertain how many cases never got registered because the accused persons/ juveniles were from rich or influential or powerful families. Those in authority react in anger and irritation when they have a juvenile in front of them who comes from economically disadvantaged background, while the same people have a tone of sadness, sympathy and concern when they see a juvenile from powerful families before them. I remember a case from the district of Kanpur in Uttar Pradesh, where the SHO (Head of Police Station) was seen hugging and consoling and even kissing the forehead of the son of a rich business family. He was an accused as a part of a murder case. He was accused of killing his own wife. Had it been a person from a poor family, he would have been slapped and beaten, with abuses hurled at him. This is the difference across the board.
IX.      Tell us what a typical case, with its progression of events, is like for you?
A typical case when it comes to me is like this - a family is devastated upon the arrest of their child and a fear of him/her being sent to jail is forever looming over their heads. They meet me, and thus my struggle starts with making them realise how their mistakes have led to this situation.  Instead of being angry at the child and crying upon their misfortune which is yet to become more intense, I explain to them that this is an opportunity for them and their child to learn and make corrections. Cases goes through phases, and I have to keep their faith alive. There is a hell of difference in what I tell them they are going to get and what they actually get. Because the Juvenile Justice system is rotten. What they get at the end is a mixture of the benefits of the JJ Act and harsh experiences of the legal, police and court system. For most of them, this is an experience they never want to go through again. They leave the system at some point of time, thankful that they got their child back out of it. They’ve probably learnt some lessons as to what to do, and what not to do, and some bitter experiences which are normal for anyone who happens to fall into a legal jungle. Most of the traumatic experiences will probably come from the children's incarceration in Children Homes and Observation Homes. All of them dread being sent back to these institutions.
 X.  In your opinion, how effective has POSCO been, implementation-wise?
This is a law which is developing. Increasing age of consent from 16 to 18 is causing a panic. Judicial Officers find this law a little harsh on the accused but they have to abide by it. Implementation wise, I see absolutely no enthusiasm or drive to get this law implemented. I say it comes across as a mockery in practice. Some provisions are too harsh on the accused, and some provisions are too cumbersome for victims. Children suffer the most as they are pushed into a dysfunctional and tired system in which they become a football.
XI.  What’s the one greatest insight you’ve had doing what you do? (about the system, the children you deal with etc.)
The greatest learning or insight I can pinpoint is - keep children out of formal systems as much as you can. Family and community are the places where children can be best taken care of.  A system with inbuilt formality is something children should not be exposed to, because they find it traumatic to deal with and it leaves deep scars on their persona. The more informal, the better.
XII.  Legally, our rhetoric towards protection of children has been great, but a lot is lost at an implementation level - how do we deal with this?
We cannot deal with it in one go. We are not even at zero, we are running in the negatives. Society cares only when a monster comes out of childhood. Nothing else bothers us. We are fine with children begging, collecting garbage and sleeping on streets. On the implementation level, the kind of zeal that should exist is sorely lacking. If I had to say one thing, I would say the key to ensuring implementation of laws related to child protection lies in governance. Our laws are by and large okay. There is no significance attached to it. A community of active citizens, lawyers, journalists, judges, government officials need to keep working towards the implementation, and it’s already happening. The momentum is there, it’s just that it needs to be allowed to go on. Any interruption or reversal will certainly cause great damage.
Anant describes his drive to work within the juvenile justice system as ‘a spiritual experience’, explaining that his work gives him an opportunity to be a useful citizen, and contribute to the process of building a better society. He reflects that it needs a lot of patience and guidance from seniors to be able to hold on to hope, and concludes that he has remained staunchly positive despite the setbacks and disappointments in his long-drawn efforts over the years.
To be able to help people is a blessing, and I feel blessed that I am able to do it in some ways. I hope this drive continues - I say so because it is not easy to retain the drive. Failures are so daunting, and challenges are so intense, that it leads to frustration quite often. But one needs to collect oneself and start from scratch after each fall, and this is where people around you help you. I am blessed with amazing people around me who keep giving me strength to keep going. This cannot be anything except a blessing.”
 [Special thanks to Leher for the contact and guiding us through many of the loopholes in the Juvenile Justice Bill.]  

Words: Aditi Dharmadhikari


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