This article is written by Niharika Goel, a law student of Guru Gobind Singh Indraprastha University on the discipline of therapeutic jurisprudence. The juvenile justice system is further analyzed through the lens of the aforesaid discipline, how it ingrains the vision of therapeutic jurisprudence into the administration of justice employing legal actors and child care institutions.
“Regardless of the commission of an offence by children, the nature of the said offence or the section of the IPC (Indian Penal Code) or other legislation that it violates, their apprehension, detention, prosecution, penalty or imprisonment, rehabilitation, and social reintegration shall be conducted.”
– Juvenile Justice Act, 2000
Therapeutic jurisprudence is a perspective focusing on therapeutic or anti-therapeutic consequences of substantive laws, legal rules, and procedures. It suggests the need to conduct empirical research to determine whether outcomes resulting from the substantive laws, legal procedures, legal rules, and the behaviour of legal actors including judges, court personnel, and service providers affect the psychological and emotional well-being of the justice system participants, including the legal actors themselves. It emphasizes a reform agenda to transform these laws, rules, procedures to promote emotional and psychological well-being. Therapeutic jurisprudence is the study of how the legal system affects the emotions, behaviourism, and mental health of people. It is a relatively new discipline taking its name from jurisprudence, i.e., the study of law and therapy, i.e. power to cure and heal. It examines how law and those who enacted it may be helpful or harmful to people’s well-being and mental health and what alternatives there might be, including special informal courts for particular cases such as the juvenile justice system. The juvenile justice system envisages the prevention of anti-therapeutic consequences that might appear if the juveniles are treated the way adult offenders are. The juvenile justice system acknowledges that an adversarial approach to juveniles may coarsen their mind, and hinder their development. Therefore, it incorporates a special informal judicial process for the trial of juvenile delinquents and includes juvenile homes instead of jails for rehabilitation, therapeutic aids, and rejuvenation of the potential to reintegrate into society.
Therapeutic jurisprudence- a discipline
The term was first used by Professor David Wexler, of the University of Arizona Law James E. Rogers College of Law, and the University of Puerto Rico, in the paper delivered to the National Institute of Mental Health in 1987. He suggested the need for a new perspective of therapeutic jurisprudence, to study the extent to which substantive rules, legal procedures, and the role of legal actors, lawyers, and judges primarily create therapeutic consequences for individuals involved in the legal process. In the early nineties, scholars began to use the term therapeutic jurisprudence, while discussing mental health law. The therapeutic jurisprudence approach soon spread across mental health law, to include therapeutic jurisprudence work in criminal law, family and minor law, health law, even contract, and commercial law, disability law, constitutional and evidence law. The legal profession ensured that therapeutic jurisprudence became the integral mental health approach to law generally. The approach was soon applied in the way various legal actors, lawyers, judges, police officers, and expert witnesses played their roles suggesting ways of doing so that they’d end in therapeutic consequence. It ensures mental health rejuvenation and psychological well-being for those who come into contact with these legal figures.
Therapeutic jurisprudence has been described as a subset of legal psychology, meaning the scientific study of mind and behaviour as it affects or is affected by the law. Psychological jurisprudence is also used to describe the study of the law as if it is affected by and affects behaviour, and another concept with which it is often related is restorative justice. The field of forensic psychology also reported that at the juncture of law and mind, the idea that the law can have a therapeutic role should not be confused that psychological therapy should be attempted to be used for legal lenses. A related approach originally envisages this jurisprudence ensures whether psychological interventions are conducted originally and fairly consistent with the legal concepts of justice. Therapeutic jurisprudence is also linked to a positive criminology perspective which is the conceptual approach to criminology and envisions social inclusion, on social and spiritual levels that are associated with the elimination of crime.
Ingraining therapeutic vision into the legal system
Therapeutic jurisprudence envisions practising lawyers with an empathetic ethic of care and personal skills who value the psychological wellbeing of clients as well as their legal rights and interests. It aims to actively seek the prevention of legal problems through creative drafting by problem-solving approaches. Therapeutic jurisprudence has also begun to transform legal education, in particular clinical legal education. Traditionally, therapeutic jurisprudence was closely associated and confined within problem-solving courts such as drug treatment courts because such courts were designed to use therapeutic jurisprudence practices such as procedural justice, judge client personal interaction, demonstration of empathy, and active listening. Many scholars desire the expansion of problem-solving courts, but given various restraints, particularly economical, it is unlikely. In fact, in some jurisdictions, economic factors have led to the complete elimination of such courts.
Nevertheless, developing problem-solving courts are embraced by other countries such as America and Canada. It is also envisioned as a current interest of therapeutic jurisprudence scholars and proponents, who try to apply therapeutic jurisprudence practices and principles in ordinary court especially involving criminal, juvenile, and family matters. In order to mainstream therapeutic jurisprudence, analytical steps must be established to see the extent to which existing provisions of current legal judicature are friendly and in conformity with therapeutic jurisprudence, to envision if the current legal structure is sufficient to inculcate therapeutic jurisprudence practices. If so, educational programs should be instituted to analyze how the law may be implemented in a more therapeutic jurisprudence manner and if not, a discussion would be necessary regarding the desirability and feasibility of legal reform.
The problem of juvenile delinquency is gradually rearing up in its ugly head in the wake of industrialisation and urbanisation in the country, as a result of which various scientific and technological advances during the present century, the structure and functioning of our society have undergone a change with the concomitant disorganisation and maladjustment. The growth of cities and heterogeneous populations, great mobility and fluidity, occupational and cultural variations, and overcrowded conditions have given rise to new ways of living. Juveniles are affected in an unusual way by the unconditional changes in socio-economic life, unprecedented stress on materialistic culture, rapid increase in social mobility, and weakening of the traditional means of social control, which are to some extent responsible for the growth of juvenile delinquency in India.
In most cases, social divisions among children are found to have been preceded by various phases of abandonment, distribution, neglect, truancy, vagrancy, abuse, or exploitation. This aspect, however, does not establish the fact that poverty per se is a cause of the problem. While children of the poor do not necessarily commit a crime, not those of the rich are always law-abiding. But the fact remains that poverty does deprive a bulk of the child population of an equitable sharing of social, cultural, and economic opportunities which are necessary for growth and development. These children are rendered vulnerable to social maladjustment and their eventual induction into a criminogenic culture. It, therefore, becomes imperative that an effective system to prevent and control juvenile delinquency ought to be devised so that the problems with which they are confronted, are sorted out.
Development of the juvenile system
The First Law Commission appointed in 1835 drafted the Indian Penal Code, 1860 which in fact came into force in 1860, providing special consideration for children of immature understanding. Similarly, the Code of Criminal Procedure, 1908 restricted the jurisdiction of ordinary courts in the trial of juvenile delinquents. It provided that when any person under the age of fifteen years was sentenced by any criminal court to imprisonment for any offence, the court might direct that such person instead of being imprisoned in a criminal jail would be sent to any reformatory school, established by the State government as a fit place for confinement in which there were means of suitable discipline and training in the branch of some useful industry. It further provided that persons under twenty-one years of age be released on probation of good conduct under certain conditions instead of sentencing such persons to imprisonment. In fact, the first special law dealing directly with the treatment of juvenile delinquents was the Reformatory Schools Act, 1876 which was modified later in 1897. It was an all-India measure to deal with delinquents below fifteen years of age. The Indian Jails Committee, 1919-1920 emphasised the separate treatment of children and youthful offenders for their reformation. In pursuance of the recommendations of the committee, several States enacted their children’s Acts. After independence, the founding fathers of the nation inserted special provisions in the Constitution of India in Chapter IV dealing with the directive principles of the state policy. For the protection of the children against exploitation; Article 39(f) provides:
“That childhood and youth are protected against moral and material abandonment“.
The Government of India enacted the Children Act, 1960 for enforcement in the Union Territories. Since many of the States had already passed the Children Act much before. But the latest enactment dealing with the juvenile justice system in India is the Juvenile Justice Act, 1986. This legislation is more sensitive and comprehensive than its predecessors, viz The Children Act, 1960 enacted for Union Territories and similar Acts of many States. These earlier laws on the subject stand repealed, subject to certain exceptions, viz., the repeal would not affect the previous operation of any law so repealed or anything duly done or suffered under it, any right, privilege, obligation or liability acquired, accrued or incurred under it, any penalty forfeiture or punishment incurred in regard to any offence committed against it, or any investigation, legal proceedings or remedy in regard to any such right, privilege, obligation liability, penalty forfeiture.
Purpose of the Act
The care, protection, treatment, development, and rehabilitation of neglected or delinquent juveniles and the adjudication of certain matters relating to delinquents have been provided for in the Juvenile Justice Act, 1986. The Act aimed at achieving the following objects:
- To lay down a uniform legal framework for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock-up. This is ensured by establishing Juvenile Welfare Boards and Juvenile Court; to provide for a specialised approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the developmental needs of the child found in any situation of social maladjustment;
- To establish norms and standards for the administration of juvenile justice in terms of investigation and prosecution, adjudication and disposition, care, treatment, and rehabilitation;
- To develop appropriate linkages and coordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected or socially maladjusted children and to specifically define the areas of their responsibilities and roles;
- To bring the operation of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rule for the Administration of Juvenile Justice adopted by the Seventh United Nations Congress on Prevention of Crimes and Treatment of offenders which was held in 1985.
The Act introduced a uniform juvenile justice system throughout the country and made adequate provisions for dealing with all the aspects of the changing social, cultural, and economic situations in the country with a large involvement of informal systems and community-based welfare agencies. Social workers with adequate knowledge and experience in child welfare are also associated with the functioning of the juvenile courts so as to assist the authorities in processing the cases from the welfare point of view, the reason being the problem is more social and economic rather than legal. Therefore, the services of the social scientists who have the vision to perceive and understand the gravity of the problem would be more useful in deciding the cases of juvenile delinquents.
The vision of the juvenile justice system incorporates therapeutic principles
The juvenile justice system aims to deal with children apart from the adult in the matters of investigation, trial, and correction process. The children need to be separately treated from the adults. The philosophy behind establishing the juvenile system is to accord differential treatment to the juvenile delinquents than the adult offenders, so that they may not learn the technicalities of the crime commission from the hardened criminals. In order to prevent from being labelled with the stigma of crime, a special procedure to try juvenile delinquents has been laid down in the Act because juvenile offenders are not to be punished but treated like helpless children in need of care and attention as well as socialization. It is, therefore, necessary to bring them back into society as law-abiding citizens through a specialised judicial process. It can, thus, be said that the juvenile justice system incorporates therapeutic jurisprudence aspects and principles of therapy in order to rejuvenate and rehabilitate such juveniles for their reintegration into society.
The different treatment of juveniles is not a phenomenon of recent origin and can be traced as far back as the Code of Hammurabi in 2270 BC, which prescribed specific punishments for children who disowned their parents and ran away from home. Judge Julian Mack has summarised the parents partial power of the state in the following lines:
“The state is the higher parent; that it has an obligation not merely a right but an obligation, towards its children; and that is specific obligation to step in when the natural parent either through viciousness or inability, fails to deal with the child that it no longer goes along the right path that tends to good, sound, adult citizenship.”
The purpose of the juvenile justice system is to lay down a uniform legal framework for juveniles so as to ensure that no child under any circumstances is lodged in jail or police lockup. This is ensured by establishing Juvenile Welfare Boards and Juvenile Court. It shall be ensured that a specialised approach towards the prevention and treatment of juvenile delinquency is provided, and its full range in keeping with the development needs of the child found in any situation of social maladjustment. It also envisions to spell out the machinery and infrastructure required for the care and protection, treatment, and rehabilitation of various categories of children coming within the purview of the Juvenile justice system. This is proposed to be achieved by establishing observation homes for delinquent juveniles. These homes have established norms and standards for the administration of juvenile justice in terms of rehabilitation and rejuvenation of the potential to reintegrate into society.
The new law implies a thorough restructuring of the traditional system and the creation of additional infrastructure in consonance with minimum standards. It has to be appreciated that mere passing of the welfare legislation is by itself not sufficient though undoubtedly, the legislation is the first step in the right direction. What is really important is that every law enacted, particularly welfare legislation for the benefit or for achieving the noble object for which such legislation is passed. Juvenile delinquency is the culmination of certain maladjusted experiences that the child had to pass through. Social deviance among children has been preceded by various phases of abandonment, destitution neglect truancy, vagrancy abuse, or exploitation. Besides the thorough reconstruction of the juvenile correctional system, the Act contemplates a vigorous use of inherent potentials of the family and the community to deal with the problems of erring Juve mainstream of social life. A child treated through community-based correction is certainly at a much greater stake for social conformity than the one subjected to penal detention and labelled as a delinquent. That no formal system can undo the aberration of the larger social system. With a view to bridging the gap between legislative philosophy and its translation into action, there is a dire need for an integrated approach towards the treatment of juvenile delinquency. The problem needs urgent attention from the Government for weaving them into the social fabric of the development process. National level programmes should be launched by the government with the association of the voluntary organisation and social welfare agencies to create awareness in the society, for the care, protection and to ensure all-round growth and development of juveniles.
Principles of care and protection of children under the juvenile justice system
The juvenile delinquency in observation homes are dealt with the following principles which resonate with the therapeutic principle of this discipline:
Principle of presumption of innocence
The principal envisages that any child shall be presumed to be void of any malafide criminal intent up to the age of 18 years. This principle acknowledges that anything done, in conflict with law or morals, by the child has been done without mens rea or malafide intention. This is also based on the theory that until the age of 18 years, the individuals do not hold the maturity and understanding of their conduct and the consequences. Therefore, this principle operates right from the initiation and inception of the proceedings and ends at the aftercare program.
Principle of dignity and worth
Every human being shall be treated with equal dignity. Thus, this principle mandates to treat the child with dignity and worth and prescribes to not label or discriminate against such juveniles in order to prevent traumatic consequences on the mind of the child. It also mandates authorities to respect the personal identity right from the initiation of apprehension until the aftercare is over.
Principle of participation
Every child shall have the right to be heard and to participate in all processes and decisions affecting his interest. The child’s view shall be considered and acknowledged with due regard to the age and maturity of such a child. Such principles shall include the creation of developmentally appropriate tools and processes of interacting with the child which would seek to promote the child’s active involvement in decision making regarding their own life. This will create the potential to reintegrate them into society. Providing opportunities to them for discussions and debates will help strengthen and rejuvenate their mental capacity and vision, and thus can be therapeutically transformed into law-abiding, philanthropists.
Principle of best interest
All decisions regarding the child shall be based on the primary consideration of the best interest of the child and to help the child to develop full potential. This is in the view that the intellect of the child differs from adults and their physical and psychological development differs with regards to emotional and educational needs which constitutes the basis for the lesser culpability of children in conflict with the law. This further reasons for a separate juvenile justice system for such juveniles and the requirement of a different treatment for children. Thus, the process should give way to rehabilitation and restorative justice objectives in the delivery of child offenders instead of traditional measures of repression and retribution.
Principle of family responsibility
In a family, a child is introduced to emotions like love, care, and security which inculcate social values and cultural aspects of the community in the child. The primary responsibility of care and protection of the child is of the biological family foster parents as the case may be. However, when the juveniles are under the care of the legal administration, it must be ensured that the principle of family responsibility and emotions like love and care, security, and specifically empathy are inculcated into the child through various processes.
Principle of safety
All measures should be kept in mind to ensure that the child is safe and is not subjected to any harm, abuse, or maltreatment while in contact with the current protection system and even after. Such juvenile homes should channelise restrictive measures to ensure the safety of the child. Even apprehended children, who are awaiting a trial are allowed into observation homes if there is an apprehension of danger.
All resources ought to be mobilized including those of family and community for promoting well-being and facilitating the development of identity. The term positive includes the avenues for health, education, relationship, livelihood, leisure, creativity, and play, and thus it can be said that the juvenile justice system ensures a therapeutic intervention and rejuvenation of a child as a whole. This principle ensures to achieve the objective of facilitation in establishing the personal identity of a child and to enable him to develop all the potential of individual growth to re-integrate him into society.
Principle of non-stigmatisation
A few aspects may result in anti-therapeutic consequences. The prevention is ensured by prohibiting the use of adversarial or accusatorial words in the process of administration of justice, related to children who are in conflict with the law. It prohibits the use of words such as arrest, remand, accused, trial, prosecution, warrant, summon, conviction, inmate, delinquent, neglected, custody, or jail during the process of administration of justice for juvenile delinquents.
Principle of non-waiver rights
No right of the child under the administration of the juvenile justice system is allowed to be waived, irrespective of the consent of the child or person acting on his behalf, or a board of committed. The administration shall include, acknowledge and respect all the rights of the child, and shall not be considered waived, for any reason whatsoever. The juveniles hold rights ranging from decent living conditions, life and personal liberty, privacy, freedom of speech and depression, and so forth.
Principle of equality and non-discrimination
The child shall not, in any circumstance, be subjected to any discrimination on any grounds including sex, caste, ethnicity, place of birth, disability, health, status, race, religion, cultural practices, work, activity, or behaviour of the child in conflict with the law or that of his parents or guardians, or the civil and political status of the child. This principle also includes that equality of access, opportunity, and treatment shall be provided to every child.
Principle of right to privacy and confidentiality
Every juvenile shall hold the right to protection of privacy and confidentiality by every means and throughout the judicial process, right from the inception of apprehension to aftercare. This means that there shall be no report in any newspaper, magazine, news sheet or audio, visual media, or other forms of communication regarding an inquiry, apprehension, or investigation. Any such additional procedure shall not disclose the name, address, school, or any other particular information which may lead to the identification of a child.
Principle of repatriation and restoration
The foremost aspect to ensure is that this principle shall be read with the principle of family responsibility. The purpose of this principle is to hold the right of the child to be reunited with his family at the earliest and to be restored to the same social, economic and cultural status that he was in before the entire judicial process. Unless and until such restoration does not seem in the best interest of the society or the child.
Principle of institutionalization as a measure of last resort
This principle recognises the anti-therapeutic consequences of deprivation of liberty through the repetitive theory of punishment such as arrest, detention. Therefore, considering the sensitivity of the mind of children, this principle ensures that such institutionalization resort shall be the last option to use against the juvenile and shall be used for the shortest appropriate period of time. In order to ensure that the child’s rights are fully respected, such last resort shall be chosen with a due reasonable inquiry. The principal objective of institutionalization of the juvenile justice system should be to ensure that the offender is free of criminal behaviour as soon as possible.
Symbol of a fresh start
This principle recognises the positive therapeutic consequences of the juvenile justice system which recognises the right of the child to a fresh start. Once the psychological, behavioural well-being and rejuvenation has been made, in order to ensure rejuvenation of the potential of the child as a positive citizen, all past records of any child under the juvenile justice system should be raised. Except in special circumstances, in order to ensure a new chapter in the life of the child in conflict with the law.
Principle of diversion
This principle creates measures for dealing with children in conflict with the law without resorting to judicial proceedings unless it is in the best interest of the child of the society as a whole.
Principle of natural justice
Basic grounds of natural justice such as the right to a fair hearing, right against bias, right to review and standard of fairness in the procedural administration should be added to ensure judicial capacity under the juvenile justice system.
Appraisal of the regime of juvenile justice
The aim of this provision is to segregate the neglected juvenile from the delinquent juvenile and to provide treatment and training to the different categories of children separately, viz. juvenile homes and special homes. This process helps not only in preventing the non-delinquents from coming into contact with the delinquents but also facilitates the proper maintenance of institutional discipline. Every juvenile home to which a neglected juvenile is sent under this Act not only provides the juvenile with accommodation, maintenance, and facilities for education, vocational training, and rehabilitation but also provides him with facilities for the development of his character and abilities and gives him necessary training for protecting himself against mortal danger or exploitation and also performs such other functions to ensure all-round growth and development of his personality.
Similarly, every special home to which a delinquent is sent under the Juvenile Justice Act not only provides the juveniles with accommodation, maintenance, and facilities of education vocational training, and rehabilitation but also provides him facilities for the development of his character and abilities and gives him necessary training for his reformation and also performs such other functions to ensure all-round growth and development of his personality. The facilities in these two respective homes are identical with differences in regard to training. In juvenile homes, necessary training is himself against moral danger exploitation whereas in giving for protecting special homes training is given for his reformation.
In order to reduce the juveniles’ contact with the police to the minimum, observation homes have been established for the temporary reception of juveniles during the pendency of any inquiry against them under the Act. They are provided with accommodation, maintenance, and facilities for medical examination and treatment and also with facilities for useful occupation. For better supervision, the Act makes provision for the periodical visits by non-official visitors for these homes nominated by the State Government. The Act provides for the creation of funds for the welfare and rehabilitation of voluntary donations, contributions or subscriptions by any individual or organisation. The remarkable feature of the Act is the involvement of voluntary organisations in the Advisory Board to advise the State Government on the matters relating to establishment and maintenance of homes, mobilisation of resources, provision of facilities for education training, and rehabilitation of neglected or delinquent juveniles, etc.
The present Act is more sensitive and comprehensive legislation than its predecessors, viz., the Children Act, 1960. The care, protection, treatment, development, and rehabilitation of neglected or delinquent juveniles and adjudication of certain matters relating to delinquents have been provided for in the Juvenile Justice Act, 1986. The Act has introduced significant provisions in respect of separate handling of neglected and delinquent juveniles through specialised institutions. It has provided a uniform legal framework for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lockup. This has been ensured by constituting juvenile welfare boards and juvenile courts.
The facilities in these two respective homes are identical with differences in regard to training. In juvenile homes, necessary training is given for protecting himself against moral danger exploitation whereas in special homes training is given for his reformation. In order to reduce the juveniles’ contact with the police to the minimum, observation homes have been established for the temporary reception of juveniles during the pendency of any inquiry against them under the Act. They are provided with accommodation, maintenance, and facilities for medical examination and treatment and also with facilities for useful occupation. For the purpose of better supervision, the Act makes provision for the periodical visits by the non-official visitors for these homes nominated by the State Government. The Act provides for the creation of funds for welfare and rehabilitation from voluntary donations, contributions, or subscriptions by any individual or organisation. The remarkable feature of the Act is the involvement of voluntary organisations in the Advisory Board to advise the State Government on the matters relating to establishment and maintenance of homes, mobilisation of resources, provision of facilities for education.
Post Nirbhay Law
New JJ Act, 2015 came into force on January 15, 2016. The Act has incorporated several provisions for the development and social reintegration of the children in conflict with the law as well as for the children in need of care and protection. All the basic provisions of the Act of 2000 have been substantially adopted by the new JJ Act, 2015. But, unlike any proceeding legislation, JJ Act, 2015 has introduced the classification of offences committed by children with special reference to the special procedure for their trial and punishment. Thus, offences under the Act have been classified into petty, serious and heinous offences. This Act has not lowered down the age of juveniles from 18 years to 16 years as demanded in the public protest rather it introduced a separate category of a juvenile between the age group of 16-18 years accused of committing heinous offences for their adult and regular trial. Such children if proved to have committed the heinous offences may be tried in regular criminal courts like adult criminals and may also be sent to adult jails. Thus, with this provision, the possibility of sending children of young age to regular jails is increased by surpassing all the international and constitutional commitments to save the young children. Under the JJ Act, 2015, Juvenile Justice Board like the previous Acts continues to have the exclusive jurisdiction to try the child alleged to have committed any offence specified in the categories of offence.
Thereafter the entire proceedings of the case shall take place in Children’s Court. Accordingly, the Children’s Court has the power under the Act to try and impose any punishment except Capital Punishment and Life Imprisonment without the possibility of release. But before trying it has to re-assess the capacity of the juvenile and the need for his adult trial. The provision of this reassessment makes the entire exercise of the juvenile justice board in conducting the preliminary assessment vague and useless and moreover makes the trying procedure lengthy and technical. In case, it does not consider necessary to try the juvenile to adult trial then it has to try the juvenile itself as a juvenile according to provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Functioning of the juvenile system
The atmosphere in juvenile court is different from that of criminal courts sittings of Boards and Juvenile Courts. A Magistrate empowered to exercise the powers of a Board or a Juvenile Court, as the case may be should sit in a building or room different from that in which the ordinary sittings of Civil and Criminal Courts are held or on different dates or at times different from those at which the ordinary sittings of such Courts are held. The sittings of the Court are held in camera and publicity in any form is prohibited, outsiders except the concerned parties are not allowed in the Juvenile Court or a Board. If the authority considers the presence of any person including the police officers, legal practitioners, the parent guardian or the juvenile himself to be expedient in the interest of the juvenile or on the grounds of decency or morality should withdraw he may give such directions to such persons. There is no usual legal battle, legal practitioners argue the case in Juvenile Court or a Board if they are allowed with special permission of that Court or a Board every Juvenile Court is assisted by a panel of two honorary social workers possessing such qualifications as may be prescribed of whom one should be a woman. Similarly in the Board, at least one member should be a woman. No person shall be appointed as Magistrate in the Juvenile Court or a member of the Board unless he has a special knowledge of child philosophy and child welfare. The role of a Magistrate of the Juvenile Court or a member of the Board is crucial They are expected, for the purpose of the Act, to function as friends, philosophers and guides of the children brought before them because it is not to determine whether or not a child has committed a specific offence but to discover whether he is in need of special care and protection and to ensure an all-round growth and development of their individual personality. The Juvenile Court or Board is thus an agency to help a child who is in difficulty and needs help. Therefore, the ultimate object of the juvenile justice system is to protect the juvenile delinquents to the possible extent, that is why the report of the probation officer or any circumstances considered by the authority in the interest of the welfare of the juvenile, is treated as confidential.
As a primary law enforcement authority, the police have an important role in the implementation of the Act. The unique feature of the Act is the involvement of informal systems and community-based welfare agencies in the care, protection, treatment, development, and rehabilitation of juveniles. The provision would enable social workers and voluntary organisations to accept the responsibility of the welfare of neglected and delinquent juveniles. An informal system has been given due place for the enforcement of the provisions of the Act. The Act provides two sets of provisions for the production of juveniles before a Board or Juvenile Court.
In the case of neglected juveniles, if any police officer or any person or organisation authorised, is of the opinion that a person is apparently a neglected juvenile such police officer in charge of a police station or other person or organisation may take charge of that person for bringing him before a Board. Whenever information is given to an officer-in-charge of a police station about any neglected juvenile found within the limits of such station, if such police officer does not propose to take charge of the juvenile, a copy of such information is sent to the board. The juvenile is produced before the board within a period of twenty-four hours. Every juvenile is sent to the observation home unless he is kept with his parents or guardian but not to a police station or jail until he is brought before a Board.
When any person accused of a bailable or non-bailable offence and apparently a juvenile is arrested or detained or appears or brought, be released on bail with or without surety unless his release is likely to bring him into association with any known criminal or expose him to danger or that his release would defeat the ends of justice. When such a person having been arrested is not released on bail by the officer-in-charge of the police station, he is kept in an observation home or a place of safety but not in a police lock-up or jail until he can be brought before a juvenile court. As such his contact with the police has been reduced to the minimum to ensure care and protection and treatment of the juvenile delinquent.
Undoubtedly, the Juvenile justice system represents a blueprint of a qualitative improvement in child care services in conformity with the principle of therapeutic jurisprudence and just treatment of neglected or delinquent juveniles. The new legislation implies a thorough structuring of the traditional system and the creation of additional infrastructure and consonants with minimum standards. It has to be appreciated that mere passing of the welfare legislation is not sufficient, but can be the first step in the right direction. A child treated through community-based correction is certainly at a much greater stake for social conformity than one subjected to punitive detention and labelled as a delinquent. Social divisions among children have been preceded by various phases of abandonment, destitution, neglect, truancy, vagrancy, abuse and exploitation by means of reconstruction of the juvenile correctional system. The entire administration contemplates a vigorous use of inherent potentials of the family and the community to deal with the problems of sharing organised approaches within the mainstream of social life. There shall be no doubt to conclude that these principles, provisions and legal framework resonate with the therapeutic, well being, behavioural rejuvenation of legal actors and victims which is what therapeutic jurisprudence is all about.
- Dr. Heera Singh, A critical Analysis of Existing law relating to Prostitution, Social welfare Vol.XXXXVII No. 3 June, 1990 pp. 4-.5.
- Martin R. Haskell and Lonis Yablonsky, Crime and Delinquency at 223-224
- M.P. Jain-Out lines of Indian legal History, Third Edn. 1972 P- 512
- Statement of objects and reasons, The Juvenile Justice Act, 1986.
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