Juvenile justice and children of lesser gods

Jun 19, 2024 09:32 PM IST

Compare this with the case of a young boy from the Kanjar community, the same age as the minor in the Pune case, who was presumed to be an adult, and remanded to judicial custody for a week. Subsequently, he was shifted to an observation home for nearly two weeks for allegedly transporting mahua, a liquor traditionally brewed by his community.

Now catch your favourite game on Crickit. Anytime Anywhere. Find out how

At the heart of this schism lies the “best interest” principle governing the bail framework under JJA. In analysing this, we want to underscore the caste-based framing of childhood that finds its way into the interpretation of the principle of “best interest” by JJB. This is especially so for those belonging to Vimukta communities or Denotified Tribes, formerly deemed as “born criminals” under the repealed Criminal Tribes Act (CTA) of 1871. CTA was swiftly replaced with the nebulous habitual offender (HO) laws and provisions formulated in various states that embodied the logic of CTA albeit in an administratively neutral form. A central tenet of both CTA and HO laws/provisions has been the criminalisation of families, including children. It is crucial to locate a law like JJA within the socio-legal history of the criminalisation of Vimukta children.

JJA seeks to consolidate the law relating to two kinds of children: CCL and children in need of care and protection. The principle of “rehabilitation” not “punishment” is the ethos of JJA. Therefore, the Act outlines that all the decisions shall be based on the primary consideration of the “best interest” of the child. This is coupled with the principle of “fresh start”, which entails no criminal records of any child under the Act being maintained except in “special circumstances” that remain undefined in the Act.

The provision in Section 12 of JJA with respect to bail for juveniles is also subjected to the above principles. It does not differentiate between bailable and non-bailable offences. The Supreme Court in Exploitation of children in orphanages in the State of Tamil Nadu vs Union of India has observed that a CCL should be released on bail with or without surety. The bail can only be denied if the release is likely to bring the juvenile into an association with any known criminal or expose him to moral, physical, or physiological danger, or if the release would defeat the ends of justice. Thereby, it makes the denial of bail a strong likelihood if the child comes in contact with any known offender. As lawyers representing children (primarily adolescents and teenagers) from Vimukta communities — often implicated in petty offences like theft, gambling, excise, interpersonal fights — we often see these petty provisions being routinely weaponised to deny bail to children whose criminal associations are presumed to exist by birth.

The above adjudication of the bail is corroborated by a social investigation report (SIR) prepared by a probation officer who visits the residence of the child to collect information about their “social background”. The format of SIR includes recording a child’s caste and religion along with detailed information about the socio-economic conditions of his/her family. This assessment invariably becomes a determination of “honourable, respectable” families fit to raise children in accordance with caste and religious norms. There is a special focus on recording the criminal history of family members in SIR, which immediately excludes Vimukta communities from the aforementioned framework of Brahminical respectability. In such situations, the probation officer recommends that it is in the “best interest” of the child to be kept away from their family in an observation home. Such recommendations are taken into account by JJB in deciding bail.

Under CTA, as sociologist Meena Radhakrishna notes, (Vimukta) children were separated from their parents to be raised in a “more wholesome atmosphere”. This legacy is reproduced through HO laws such as the Rajasthan HO Act that requires children whose “parents are hardened criminals” to be sent to residential schools to segregate them from society. Everyday policing of habitual offenders (HOs) involving data-driven surveillance through the maintenance of criminal registers/history sheets also extends to children. When a child is found to be in conflict with the law, JJA is applied but in breach of the aforementioned principle of “fresh start”. The branding of the children of the Vimukta community as HOs makes them susceptible to being implicated in other cases including being subjected to violence in custody akin to an adult offender.

Despite the non-punitive ethos of the Act, Vimukta children are treated as “criminal adults” for all intents and purposes. The adultification of children from marginalised communities is a well-documented phenomenon where teenage/adolescent mistakes are read as irredeemable criminal acts. This renders institutions like JJB as arbiters of ascertaining the adulthood of criminalised children and their temporary removal from society. While the minor in the Pune case might eventually be granted bail and a shot at a fresh start, the erasure of Vimukta childhood by State institutions begs to be underscored.

Tasveer Parmar, Nikita Sonavane and Sagar Soni are members of the Criminal Justice and Police Accountability Project. The views expressed are personal