Prayas

Juvenile Justice Unit

Susan Carroll

&

Donal Holohan

With the assistance of the Prayas Education team, New Delhi

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Introduction

The idea for this report was borne out of a sense of curiosity evoked during the initial

stages of our participation in the 2008 Suas Volunteer Programme with Prayas. Due to

the vast array of functions and services provided by Prayas, we were fortunate enough

to gain an awareness, not just of their educational programmes, but of the multi-faceted

approach they take to the care and protection of India’s most vulnerable citizens.

Despite there being such a broad array of factors to consider, it may be said the root

cause of the vast majority of cases are greatly associated with educational

disadvantage. Although the environment and prevailing context is radically different in

Ireland, Suas faces challenges that are no less urgent with regard to tackling educational

disadvantage.

It was against such a backdrop, that we decided to compile an analytical report

comparing and contrasting the relevant legislation and its implementation relating to

juvenile justice in both jurisdictions. Having been exposed to the fantastic work

undertaken by the Child Protection Unit in Prayas’ headquarters in New Delhi, we

eventually decided to touch on some of the broader areas dealt with by the Unit such as

juvenile justice.

We felt that a consideration of the above would be beneficial to Prayas and Suas as

organisations, in order for both sides to gain a greater mutual understanding of the

context in which they both strive to make a difference. On a more personal level, it was

felt that such an afternoon placement would give us a much greater appreciation for the

challenges surrounding such a daunting area as juvenile justice. As volunteers in

respective learning centres, it is sometimes the case that one becomes so caught up in

lesson planning and classroom management, that one loses sight of the broader picture

relating to the social context in which the children we know and love live. Also an

increased awareness of the prevailing factors and especially challenges relating to

implementation of urgent legislation is reminding us, if such was needed, that many of

Ireland’s most vulnerable citizens are not being catered for effectively despite well

meaning and lauded legislation.

Due to the classroom demands on the volunteer placement, participation in events such

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as Global Perspectives and Creation Weeks, as well as the relatively short duration of

the ten week placement, as well as the varying and complex nature of researching

issues in two very different jurisdictions, unfortunately the report is not of the length or

breadth that these pressing issues merit.

We hope that this initial examination could perhaps help individuals within either

organisation to gain a greater awareness and possibly lead to someone conducting

further research.

We would like to express our extreme gratitude to the following people, without whom

this project would not have been possible: Shweta Jain, Mohd Asif, Shashank Shekhar,

Catarina Gouveia and Leo Norris.

Susan Carroll and Donal Holohan

Suas & Prayas 2008.

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Juvenile Justice

1) Legislation

Despite the glaring differences between India and Ireland, comparing legislation

between the two jurisdictions is not as drastic a task as it may appear to be from the

outside. Both jurisdictions are former British colonies, and therefore have many

similarities with regard to the philosophies and general characteristics of their legal

systems. Specifically with regard to child centered legislation, it is interesting to note that

the main previous Act in Ireland was the 1908 Children’s Act (enacted during British rule)

and in the Indian context, the Children’s Act 1960 was modeled on the clearly outdated

Borstal Schools Act in Britain. Therefore, perhaps it is not that great a coincidence that

the most prevalent pieces of legislation to consider – the Indian Juvenile Justice (Care &

Protection of Children) Act, 2000 and the Irish Children’s Act, 2001, were enacted within

a year of each other. (The Irish Act also sought to amend 1991 Child Care Act). It is

clear that in both jurisdictions there was a need to enact child friendly legislation whose

objectives would serve the best aims of some of the two jurisdiction’s most vulnerable

citizens. Also in light of the passing of the Convention on the Rights of the Child in 1989

both nations are subject to international scrutiny and subject to sanction if not in

compliance with these international norms. (It should be noted here that an Indian report

is currently being compiled with a view to being submitted to the Committee on the

Rights of the Child. The last Indian report was in 1999 before the enactment of the

current legislation and is therefore irrelevant for the purposes of this research. Under Art

4 of the same Convention, state governments have to take all administrative, legislative

and other measures in order to effectively implement the Convention. All States parties

are obliged to submit regular reports (as per Art 44) to the Committee on how the rights

alluded to in the Convention are being implemented. States must report initially two

years after acceding to the Convention and then every five years. The Committee

examines each report and addresses its concerns and recommendations to the State

party in the form of “concluding observations”. (It should briefly be noted that while the

Convention takes account of differing political, cultural and social norms, the following

principles are key, non-negotiable tenets of the Convention:

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- Non-discrimination (art. 2)

- Equality of opportunity

- Best interests of the child (art. 3)

- The right to life, survival and development (art. 6)

Some of the most notable, and laudable, features of the Convention include the

following:

- The best interest of the child is always to be the main priority in all actions

undertaken by social services, social welfare institutions, courts or legislative

bodies.

- The opinion of the child in question is always to be taken into consideration

during the relevant proceedings.

- All possible efforts should be made to re-integrate the child into its primary family

unit, but only if this is deemed to be beneficial to the child in question.

- State parties should make the principles of the Convention well known to adults

and children alike.

In light of the fact that the previous legislative provisions in both jurisdictions were

heavily criticised with regard to their emphasis on detention, it is hugely significant that

Article 37(b) of the Charter states that: “No child shall be deprived of his or her liberty

unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in

conformity with the law and shall only be used as a measure of last resort and for the

shortest appropriate period of time.”

The universal provisions of the Convention highlight the importance attached to the

rights of children and also to juvenile justice. It is significant that the Convention also

allows scope for member states to have some input or freedom with regard to its

implementation due to the way it takes into the account the different political, social and

cultural realities of each jurisdiction, while still setting down universal standards as

alluded to in Fact Sheet No. 10 (Rev. 1), The Rights of the Child.

As alluded to in Juvenile Justice in India, an Overview, the Indian government had

passed a comprehensive piece of legislation prior to the 2000 Act in the form of the 1986

Children’s Act. However, the same author illustrates very aptly why there was a further

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need for the 2000 Act: “to consolidate and amend the law relating to juveniles in conflict

with law and children in need of care and protection, by providing for proper care,

protection and treatment by catering to their development needs, and by adopting a

child-friendly approach in the adjudication and disposition of matters in the best interest

of children and for their ultimate rehabilitation through various institutions established

under this enactment.” According to Echo India, “The fundamental premise underlying

the JJ Act is that children who commit offences and children who need care and

protection would fall within the ambit of the juvenile justice system.”

The language used is clearly very positive and points to an Act that is overtly child

centred and rights based. However, it may be said that such objectives (and the

objectives of any piece of legislation) are the ‘bullseye’, they are only effective if ‘hit in

the centre.’ Therefore while it is vital to give a brief description of both the Indian and

Irish legislation, the crux of this report will relate to an analysis of whether, in a broad

sense, the objectives have been met.

The Indian legislation makes a very clear distinction between juveniles who have come

into contact with the law, and those who are in need of care and protection. This would

have to be considered very positive and helpful with regard to serving the best interests

of the child in question. However, in a somewhat early indication of the perceived

ineffectiveness of the 2000 Act with regard to meeting its objectives, it was deemed

necessary to adopt an amending Act in 2006, one of the main points of which was the

laying down of a stipulation which crucially stated that each district must have a Juvenile

Justice Board (which will be described shortly).

However it is fair to say that while the objectives of the JJA are broadly in line with

international best practice, especially with regard to providing children with a non-judicial

mechanism with regard to ascertaining what rehabilitation is in their best interest. The

crucial question is whether the proper prerequisites for implementation have been put in

place, for example, effective communication to children and law makers; the proper

make up of the Juvenile Justice Boards; establishment of such boards in all districts;

enthusiasm and proper provision for the rehabilitative aspects of the Act. While there

doesn’t appear to be any definitive study as of yet with regard to analysing the

implementation on a broad scale, our consultation with an eminent Indian advocate

illustrates how the defunct nature of many boards and the failure to establish Child

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Protection Units (as provided for in 2006 Act) and hence the proper prerequisites or

infrastructure haven’t been put in place.

The Irish Act, similarly to the Indian Act 2000, was primarily introduced on a backdrop of

outdated legislation (primarily the 1908 Children’s Act) which most importantly made

inadequate provision for alternative sanctions and was far too reliant on detention and

therefore in blatant contradiction of Article 37 of the Convention on the Rights of the

Child. The Act was widely lauded at the time of its inception with regard to bringing

Ireland into line with international norms as laid down in the CRC, aspects such as the

power to sanction the parents of offending children, and the Garda Diversionary Scheme

were widely lauded with regard to moving away from the emphasis on imprisonment and

detention instead of prioritising rehabilitation. However, similarly to the Indian 2000 Act, it

could be said the Irish Act has been implemented in a piece-meal fashion, as will be

illustrated later in the report, the 2001 Act made no provision for an administrative body

responsible for its implementation. Likewise, plans to close St. Patrick’s Institution, which

has been so heavily criticised regarding its effect on young offenders, are still afoot and

there is still arguably an over-emphasis on detention with 29% of juveniles studied in a

recent report receiving a detention sentence.

Very significantly, the UN CRC published their latest General Comments with regard to

Ireland in 2006. Specifically with regard to juvenile justice, the following may be regarded

as the fundamental recommendations of the Committee to the Irish state:

- That the State enforces the clause in the 2001 Act which stated that the minimum

age of criminal responsibility should be 12 with a refutable presumption that the

minimum age is 14.

- That the Irish Youth Justice Service (described later) be put on a statutory basis

- That children who have committed ‘anti-social’ behaviour not be considered for

the successful Garda Diversionary Programme

- Crucially it was recommended that the State instigate a set or proceedings which

would mean that the deprivation of liberty is only a last resort and for the

minimum period of time.

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- With regard to detention, while not specifically mentioning the situation in St.

Patrick’s Institution, the Committee recommended that at all times; children under

the age of 18 should be provided with separate facilities (and should only be

detained where it is unavoidable).

2) Irish Children Court v Juvenile Justice Board (Indian)

Clearly, one of the most laudable and progressive aspects of the 2000 Indian Act is the

provision that juveniles in conflict with the law are provided for by a Juvenile Justice

Board, which is in essence an enquiry. While there is some judicial involvement, in that

the three person committee must include at least one magistrate, the fact that the other

two representatives are generally social service representatives who are required to

have at least seven years experience would have to be regarded as very child centred

and beneficial. (It should also be noted that at least one of these social service

representatives must be female). The JJB is certainly not trial based, and the legislation

provides that each individual case should be settled within four months of the alleged

criminal incident, and should be settled after the first court appearance of the child. This

is in stark contrast to the Children Court where the average young offender makes eight

court appearances per offence committed, as highlighted in ‘The Children Court; A

National Study’. It is crucially significant that the Indian JJB doesn’t allow for young

offenders to be sent to adult jails, rather provision is made for either observation homes

or special homes (in case of conviction), both of which place primary emphases on

rehabilitation and education. This can be contrasted with the Irish situation, where there

is no separate reformatory or judicial system for children. Decisions can be handed

down by one magistrate in the Children Court. Children Court judges are District Court

judges who are not obliged to undergo any formal system of training with regard to the

legislation in question, the rights of young offenders, effective communication with young

offenders, or the rehabilitative options available. While submissions can be made by

members of the social service regarding the trial, their input is not considered, thus the

decision is made without taking this professional opinion into account.

In keeping with the admirable delineation provided for in the Indian Act, children in need

of Care & Protection are catered for by a Child Welfare Committee which must have five

members, including a chairperson and at least one woman. Members typically include

social workers, people from educational backgrounds or retired bureaucrats – very

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significantly there is not a judicial presence. However, the contemporary reality is that it

is only in states such as Delhi and Gujarat that these Committees have been established

to what could be described as an acceptable level. In the majority of states they are not

yet functioning or have not yet been established. This would seem to suggest a lack of

political will with regard to the broader area of juvenile justice. The fact that is the

legislative responsibility of state governments to constitute the Child Welfare

Committees could also account for the piece-meal implementation. Despite these

extensive difficulties, the following provision from the 2000 Juvenile Justice Act: “The

Committee shall have the final authority to dispose of cases for the care, protection,

treatment, development and rehabilitation of the children as well as to provide for their

basic needs and protection of human rights” would have to be considered very forward

thinking and child friendly.

The establishment of the (Irish) Children Court was provided for in s.71 of the 2001 Act.

It is very noticeable that the court is essentially a District Court in a different guise

(s.71(1)a). This would seem to illustrate a lack of consideration for considering the cases

of children in a non-judicial setting. (Interestingly, this was one of the factors that was

amended by the 2006 Indian Act). While s.72 makes allowance for District Court judges

availing of relevant training, it doesn’t appear to place any obligation on them to do so.

This was one of the areas highlighted for particular criticism in the Audit referred to

below.

In contrast, the Irish report ‘The Children Court – A Children’s Rights Audit’ heavily

criticised the informal and inaccessible techniques used. It was specifically highlighted

how the sitting judges are not suitably qualified or trained. The fact that a young offender

has no statutory right to an advocate would also have to be deemed to be a cause for

concern. Other notable recommendations include:

- More judges are needed in order to prevent a backlog of cases developing.

- Need to develop suitable training methods for judges and create a forum

whereby they can share their concerns, this is in light of fact judges appear to be

cut off/isolated from the social realities.

- Solicitors representing young offenders need suitable training regarding child

psychology and communication.

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- Need for clarification with regard to the role of An Garda Siochana in the process

and greater communication between An Garda Siochana and the judiciary

regarding the Garda Diversionary Scheme which has proven to be such a

successful alternative to detention, as will be highlighted shortly.

- The author crucially highlighted how a failure to implement Part 9 of the Act

(relating to Community sanctions) was proving to be particularly damaging with

regard to failure to utilise the Act’s full potential.

- Also recommended was the establishment of a single youth justice agency

It should be noted that there is now a single youth justice agency up and running – the

Irish Youth Justice Service. The agency has recently produced a youth justice strategy,

however in light of the continuing difficulties faced in the operation of the Children Court,

it would appear it may be too soon to yet pass judgment on this service.

A hugely interesting point with regard to comparing the approaches in the two

jurisdictions is provided by the way in which the 1986 Indian Act made provision for a

court similar to the (Irish) Children Court. However such a concept and judicial setting

was deemed unsuitable with regard to providing the best rehabilitative options for

children and was discarded by the enactment of the 2000 Act. However, a year later, a

model which had clearly failed in India was adopted in Ireland.

3) Profile of young offenders

Comparing some of the characteristics of those who most frequently come in touch with

the juvenile justice system in both jurisdictions is a very interesting point of comparison.

However, it is worth noting that a consistent form of comparison is difficult to compose. It

is clear that one of the underlying conclusions that can be drawn is that educational

disadvantage is an absolutely fundamental contributory factor that causes young

offenders to come into contact with the juvenile justice system.

Some very interesting findings from India include the following, as highlighted in the

NCRB (National Crime Record Bureau) report on Juvenile Delinquency:

- Over half of crimes are accounted for by theft, hurt, burglary and riots.

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- The ratio of boys to girls is 17:1

- It is very noticeable that the juveniles in the NCRB’s report, dated 2006, included

only 4.6% who were sent to institutions and 14% sent to special homes. This

would seem to indicate something of a greater willingness of the Juvenile Justice

Boards to consider alternatives to detention in light of the realisation that it is not

always beneficial to the child in question.

- It is of vital importance to note that of the young offenders considered for the

2006 NCRB report, 64% were either illiterate or had not gone beyond the primary

school system. This worrying trend has clear correlations with the Irish situation

where a recent statistics illustrates how the vast majority of young offenders and

alleged young offenders are clustered in quite a small number of disadvantaged

urban areas.

- The percentage of homeless children involved in crime was shown to be

approximately 6%.

- In a manner that is clearly connected to the educational disadvantage element,

the same NCRB report showed how over 70% of young Indian offenders

belonged to families whose annual income was less than 25,000 Rupees.

With regard to the Irish reality, The Irish Times editorial entitled ‘Breaking the Cycle’ from

March 24th, 2008 gives a concise and shocking description of the extent to which the

typical young Irish offender is likely to come from a small number of low socio-economic

status urban centres with very high incidences of educational disadvantage. The same

report, in what could be considered a serious criticism of the detention systems shows

how once a criminal record is established, the young person in question is extremely

likely to re-offend.

One aspect of the profile of the typical young offender in Ireland that is noticeably

different is the much higher prevalence of drink related offences. As referred to by

Niamh Nolan in an excellent 2004 article, approximately one fifth of those offenders who

come into contact with the lauded Garda Diversionary Scheme have been involved in

alcohol related offences, with a notable increase in the last couple of years. In a 2008

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report published by the Association for Criminal Justice Research and Development, a

worrying statistic included the fact that 83% of boys studied (in detention centres), were

in need of psychiatric treatment and were not receiving it.

4) Emphases on detention and other options

Both the Indian and Irish legislation are clearly of the view that, in order for child-centred

legislation to be effective and truly rehabilitative, the individual needs of each child

should be taken into account, which certainly implies that detention is not a ‘carte

blanche’ solution. Indeed, international best practice and specifically the binding

Convention on the Rights of the Child highlights how detention should be a last resort.

However, it is clear this doesn’t often correlate with the sentencing realities in both

jurisdictions. As previously alluded to, the legislation in both countries has been widely

lauded, but it is clear, as shown at the Indian National Human Rights Conference in

2007, that the resources often are not in place in order for the capacity of the functions

provided for in the 2000 and 2006 Acts to be properly realised. A noteworthy element of

this conference was the strong support expressed for greater use of probationary

methods when sanctioning young offenders, as opposed to detention. It could be argued

the success of such probationary measures can be seen in the Garda Diversionary

Scheme in Ireland which will be alluded to shortly.

Again this (ascertaining whether detention is actually being used as a last resort) is an

area in which there is a scarcity of concrete data but an eminent Indian advocate we

consulted expressed a very strong opinion that the legislative emphasis placed on only

using detention as a method of last resort was not being adhered to substantially in

reality. He specifically criticised the manner in which children who come into contact with

the law are often kept in homes for longer than the three years and how sufficient efforts

are not made to hand over children to their parents or probation officers. A specific

example of a failure to implement the legislation is highlighted in a critique on the

Juvenile Justice Act 2000, where it was proven that children in need of care and

protection had on occasion being detained alongside children who had been convicted

of criminal offences. The same report showed how, while special rehabilitative homes

may not always have the educational facilities that are deemed necessary, the homes

often make effective use of local NGO’s with the relevant expertise.

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The Garda Diversionary Scheme was placed on a statutory footing by the 2001 Act with

it is fundamental function aiming to caution children and place the emphasis on

community involvement rather than punishment. As alluded to in a 2008 article by Carl

O’Brien, approximately 70% of those referred to the scheme had not re-offended within

one year. The key to the scheme is that the young person apprehended must take

responsibility for their actions and agree to subsequent supervision, but crucially, without

judicial involvement. Not only does this appear to be very successful with regard to

preventing young people from re-offending, it crucially complies with Art 37(c ) of the

Convention which alludes to how the needs of the child given his/her age and individual

circumstances must always be taken into account as a matter of urgency. Dr Ursula

Kilkelly, one of the most eminent Irish commentators with regard to juvenile justice

makes an eloquent case for stress to be placed on non-custodial sentencing in a 2004

letter to the editor of the Irish Times: “Non-custodial sanctions for juveniles should not be

an optional extra to be paid for when economies of scale are derived from warehousing

offenders elsewhere (as Eoin McMahon suggests, also on August 18), but must be a

priority in line with the Children Act, 2001 and the UN Convention on the Rights of the

Child, to which Ireland is a party.” Encouragingly this view point would appear to be

shared by new Minister for Justice Brian Lenihan who in a 2008 interview with the Irish

Times stressed the fact that “Juvenile diversion programmes and good behaviour

contracts have to be the first ports of call.”

It could be said the failure to properly and coherently implement the 2001 Act is

illustrated by the continuing failure of the government to close St. Patrick’s Institution for

young offenders. S142 of the Act clearly provides that a court may detain a child for a

specified period of time in a children’s detention school or centre. However the stark

reality is that children are very often housed alongside adult offenders in the same prison

complex in St. Patrick’s. The continued operation of the centre is in clear contravention

of the Convention due the way in which there is such a failure to separate children from

adults and the almost complete absence of a rehabilitative regime. This failure to close

the centre is set against a backdrop of continuing calls from lobby groups and

academics for its closure, backed up by worrying statistics and anecdotes regarding its

lack of rehabilitatative effect on young offenders. Both Dr. Kilkelly and the chief Irish

Prisons Inspector Dermot Kinlen have gone on record as saying that the institution, in

reality, serves as a ‘stepping stone to criminality’. Not only is the institution failing to live

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up to its aims, but it also appears to be operating contrary to binding international

agreements, judging by the way that some adults and children are being housed in the

same facility. Such criticisms would also seem to mean that the continued operation of

the institution is in blatant contradiction of Article 40(1) of the Convention regarding the

child’s re-integration into mainstream society in a productive manner, as was particularly

highlighted in UNCRC’s General Comment No. 10 (2007).

It should be noted that 2008 has seen some developments in this area, with plans for a

new child detention centre in Co. Dublin being announced. However, while this centre is

awaiting completion, young offenders aged 16 and 17 may have to be housed with adult

offenders as an ‘interim measure.’ Even if for a temporary period of time, this would have

to be considered a retrograde step that further contravenes the spirit and content of the

2001 Act. The fact that the announcement of the new detention centre comes over

twenty years after a report entitled the Whitaker Report seriously condemned the

manner in which the Irish state processes and detains young offenders would have to

raise serious questions as to the priority the state attaches to juvenile justice. Although

on a hopeful note, the well respected barrister and CEO of Children’s charity Barnardos,

Fergus Finlay has expressed optimism that the proposed new detention centre will play

a crucial role in ensuring children are no longer housed with adult offenders.

On an international level, it is clear that Ireland and India are not the only signatories

who face issues with regard to complying with the CRC in the broad area of juvenile

justice. This is clearly shown in the CRC General Comment No. 10 (dated February

2007) which deals very succinctly with the fundamental core issues relating to juvenile

justice. Specifically in the context of avoiding recourse to detention of children who come

into contact with the law, it stresses the vital importance of domestic juvenile justice

legislation providing a variety of avenues such as care, counselling, probation, foster

care, educational programmes. The authors also make a crucially relevant point, in light

of Art 40(3) that as the vast majority of offences committed or allegedly committed by

children are deemed to be minor criminal offences, “a range of measures involving

removal from criminal/juvenile justice processing and referral to alternative (social)

services should be a well established practice that can and should be used in most

cases.” The report stresses the fact the manner in which such measures are provided for

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is up to each individual state, but significantly highlights the successes of some

community and diversionary schemes.

5) Difficulties implementing the legislation

From the limited research we have had the opportunity to undertake, it is clear that both

jurisdictions share some similarities in that the two main pieces of legislation in question

were widely lauded and intended to bring the respective jurisdictions in line with

international standards, but have been hindered in their implementation by an array of

factors, most significantly a continued reliance on detention in both jurisdictions, lack of a

clear administrative body from the outset of the Act in the Irish case; an insufficient

number of observation homes and inconsistent establishment of Juvenile Justice Boards

and Child Welfare Committees in the Indian context. It could also be said that both Acts

have been implemented in something of a piece-meal fashion, as shown by the way that

both have required either subsequent amending legislation, or additional administrative

bodies to be established in order to effectively implement the terms.

2008 has already seen the Irish government launch an additional strategy to provide

better outcomes for children who have already come into contact with the juvenile justice

system. While this would illustrate that the Act hasn’t been properly implemented in the

seven years since its adaptation, it could also be considered somewhat positive in that

the Strategy is placing great emphasis on community and non-detention policies such as

the Diversionary Scheme which have proved to be so effective. Such community

schemes have been particularly highlighted by Dr. Kilkelly in the past as offering the

most potential for ensuring that children who come into contact with the justice system

break the cycle of re-offending.

Under the tenure of previous Minister for Justice, Michael McDowell, the government

had considered introducing fixed fines for children who offend in certain situations. The

proposed measure was heavily criticised, and subsequently withdrawn, but could be

considered yet another example of failure to concentrate on implementing the entire Act

rather than adopting a fragmented approach.

It was also around the time of the proposed fines that the juvenile justice system was

proclaimed to be in a state of chaos by many commentators. It remains to be fully seen

whether the establishment of the Irish Youth Justice Service in 2004, has resulted in a

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more coherent approach to implementing the legislation. The Service was established

primarily in light of a review which found that the legislation was very comprehensive but

wasn’t being implemented in the correct manner. The following are the parameters of the

remit granted to the Service:

- Implementing the Act

- Setting up oversight and local youth justice teams

- Managing detention services for people under 18

- Developing a national strategy

- Service is accountable to the Minister for Children

- Stressed importance of health, education and justice sections working together

- Need to continue to evolve processes and policies based on what works

Encouragingly, this year has seen the publication of a three year strategy by the service

which aims to provide a coordinated approach among agencies working in the youth

justice system in order to rehabilitate those children who have already come into contact

with the justice system as effectively as possible. While acknowledging the vital

importance of educational and welfare programmes, the report is limited to those

children who have already come into contact with the law. It remains to be seen whether

what appears to be an ambitious and well meaning report will overhaul the rehabilitative

defects that clearly seem to be all to prevalent with regard to young offenders.

The UN Committee on the Rights of the Child will continue to monitor the implementation

of the Act which could be said to provide a continuing incentive to the Irish government

and specifically the Service to effectively fulfil its role. The establishment of the Service,

while a welcome development, is a very good illustration of the difficulties that have been

faced with regard to effectively implementing the Act.

Some of the research difficulties faced with regard to two very different jurisdictions are

perhaps most apparent with regard to ascertaining the difficulties facing the proper

implementation of the 2000 Indian Act. The fact that there was deemed to be a need for

amending legislation in 2006 (primarily due to NGO lobbying with regard to logistical

functioning of JJBs and CWCs in each district, the need for a Child Protection Unit and

the importance of JJBs and CWCs not sitting in judicial premises) would certainly point

to quite considerable difficulties in the implementation.

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Despite the stated intention of JJBs to hear every case within four months, a report from

the NCRB from 2006 shows that at the end of that year, 42.9% of juveniles were

awaiting trial. This would point to quite a serious failure to deliver on the promise of the

Act and implement it correctly and in a timely fashion. It appears clear there is still an

over-emphasis on institutionalisation and detention measures. As well as being clearly

contrary to international best practice, these factors clearly impede effective

rehabilitation of the child in question. The whole concept of ‘child friendly’ legislation,

while admirable in its objectives and the fact that it is in line with Convention method, is

clearly hard to quantify in practice. For the judiciary and police to be more child friendly

in their applications, it would follow that society as a whole would have to be more child-

friendly. The respected legal adviser with whom we consulted held a very strong

viewpoint that there was still a propensity amongst the Indian judiciary and police to view

children in need of care and protection or those who come into contact with the law as

criminals rather than children. Judging by the academic criticism levelled at the Children

Court and specifically the unsuitability of many of its judges to dealing with children, it is

fair to say that such an accusation could also be justly levelled in the Irish context.

The piece meal establishment of the Special Juvenile Police Unit is also a matter for

concern in the Indian context. Although on a more positive note, it should be noted that if

a JJB fails to hear a case relating to a young person within the specified four months, it

is under an obligation to explain the reasons for the delay if the delay is an inordinate

one. Such a legislative provision would clearly have to be considered positive and one

that aids accountability and transparency.

Another major difficulty with regard to implementation is illustrated by the fact that many

children, since the inception of the 2000 Act, continue to languish for more than the

maximum three years of time in observation homes and subsequently, special homes.

6) Critiques

Analysing some of the critiques of prominent lobby groups and academics was perhaps

one of the most interesting and salient parts of this assignment. Even if the laws in place

are widely lauded and in line with international standards, they are severely restricted in

cases where the mechanisms and will are not in place to enforce them from the relevant

quarters. In the report Juvenile Justice in India an Overview, the author severely

criticises the overlooking of rights by Indian courts, especially the lower ones and the

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treatment of young offenders as adults. In ‘The Indian Juvenile Justice Jurisprudence

and the Convention on the Rights of the Child’, a number of reasons are put forward for

the fact that the juvenile justice system aspired to in the legislation is not yet a reality.

Among them are the following:

- There is not yet an adequate network of juvenile observation homes or reception

homes nationwide.

- There still are not an adequate number of Juvenile Justice Boards in many

states.

- The staff in the centres are often inadequately trained in the sensitive matters

that are so relevant to young offenders.

- The state magistracy often have an undue influence with regard to appointment

of staff.

A critique of the 2000 Act (Indian) demeans the role played by designated centres such

as observation homes, children’s homes and special homes. An example of positive

provisions of the Act being abused is given by the fact that some NGOs and members of

public who have reported cases of children in distress (in line with Act’s provisions) have

had cases of trespass or raid filed against them.

Despite clearly laying down parameters intended to alleviate or significantly reduce

delays in the system, a lack of available resources has often meant key posts not being

filled and delays resulting. There is also deemed to be a scarcity of suitably qualified

staff manning the centre and of suitably designed educational programmes. The

respected group Echo India heavily criticise the closed nature of such homes, on the

grounds they severely curtail the liberty of the children detained. This deprivation

appears to be provided for in the Act due to the way in which detention in such centres is

seen not so much as punishment but as a rehabilitative means for re-integrating the

child back into mainstream society.

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Ireland

The operation of the (Irish) Children Court is certainly an area that has been justly

criticised. The judges who sit in the court are District Court judges who are simply

assigned to a case involving minors as opposed to one involving adults. Only one judge

sits and there is evidence to show such judges are not well vested in the operation of the

Act. For example; no use has ever been made of the option to sanction a child’s parents

and no training is provided to judges with regard to child psychology or communication.

It could be argued that the Children Court (which by its nature is judicial in nature) could

do well to look at some of the Indian provisions regarding the predominantly lay make up

of JJBs and the enquiry nature of such. The announcement by the Minister for Justice,

Brian Lenihan of the appointment of three judges to work solely in the Children Court is

also a welcome development that should go some way to alleviating some of the justified

criticism of the training of such judges and their lack of awareness of the salient issues

relating to juvenile justice.

Another major critique could be centred around the piece-meal approach the

government has adopted to implementing the legislation, for example by only

establishing the Youth Justice Service in 2004 and even in 2008 announcing new

policies regarding community initiatives.

Recommendations and Conclusions

Given our relative lack of experience and prior unfamiliarity with the area of juvenile

justice, we may not be best placed to make the most conclusive of recommendations.

Having spoken to respected representatives of the Indian legal system and undertaking

sufficient research given the time constraints, the following would certainly appear to be

the most urgent recommendations in the Indian context:

- There is a need for greater sensitisation of the police, judiciary and society at

large to the needs of children who are either in need of care and protection, or

who come into contact with the juvenile justice system.

- It would also be essential not to treat children in the same manner as adult

criminals.

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- Political will is desperately needed, at present no political party has juvenile

justice in their portfolio.

- There is a need to urgently address the failure to live up to the aspirations

regarding rehabilitation of children, provided for in the pieces of legislation and

demanded by international best practice.

- There’s an urgent need to hold individual state governments accountable for not

implementing the provisions of the legislation.

- The Special Juvenile Police Unit needs to be fully established, equipped with the

relevant professionals and given sufficient training and funding.

- Those who report alleged cases of children in distress should be protected from

having frivolous cases filed against them as a result.

- The establishment and proper rehabilitative nature of detention centres should be

addressed as a matter of extreme urgency, given the importance of this area with

regard to complying with international best practice and reducing the rate of

recidivism.

- Given the relative success of the Garda Diversionary Scheme in Ireland, the call

of the National Human Rights Commission for greater importance to be attached

to community sanctions should be taken on board by Indian legislation.

The following would appear to be the most urgent recommendations with regard to

achieving a more effective and child friendly system of juvenile justice in Ireland:

• Heed should be taken of the Indian provision whereby all cases have to be

decided on within four months of the alleged act.

• It seems completely unnecessary that alleged young offenders make an

average eight court appearances per offence. This can be contrasted with the

Indian provision that each child should only be required to appear once.

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• A quasi-court such as the (Indian) JJB should be seriously considered as a

method of not only being more child friendly, but in producing a generally more

effective judicial system.

• St. Patrick’s Institution should be closed as a matter of extreme urgency. Its

almost lack of rehabilitative facilities is a blatant and very serious contradiction

not only to its primary function, but also in light of the Convention on the Rights

of the Child.

• The much publicised power of judges to sanction parents should be much more

effectively utilised.

• The recent announcement that three district court judges are to be solely

employed in the context of the Children Court is a very positive development ,

but not only are more designated judges needed, but all judges sitting in the

Children Court need to be provided with relevant training.

In concluding, it is clear that on a broad level both jurisdictions share very progressive

legislation that aims to comply with international standards (most noticeably the CRC).

However, the contemporary reality is that there have been severe difficulties and delays

implementing the relevant pieces of legislation in both countries. These delays are not

only inefficient but also can have serious implications for the development and ultimate

rehabilitation of the child in question.

Such delays and difficulties were strongly highlighted in the most recent Irish report by

the U.N. Committee on the Rights of the Child in 2006. No doubt, the latest Indian report

which is currently in the process of being drafted will also be seriously scrutinised.

Despite the vastly differing domestic contexts, we have found a number of very

compelling similarities and legislative elements that each jurisdiction could look at. For

example, we are of the opinion that a structure similar to JJBs and CWCs could be very

beneficial to Ireland. Whereas it’s clear community sanctions such as the Garda

Diversionary Scheme would be of great use and relevance in India.

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Geoffrey Shannon, who was appointed as Irish Government Rapporteur with regard to

child protection, has stressed the underlying need to be proactive as opposed to

reactive. This is a vital lesson which should be kept in mind in both jurisdictions. The

future development and rehabilitation of children is not an issue that can be periodically

dealt with by sweeping legislation.

Both jurisdictions need to constantly take heed of the work done by bodies such as

Prayas Juvenile Aid Centres and Suas Educational Development. Perhaps the most

conclusive observation we can draw from our research is that educational disadvantage

is at the root of so many juvenile justice issues.

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Bibliography

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• The Children Act 2001

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http://humanrights.indlaw.com/search/articles/?914b8ae2-f17a-4e0f-92af-4d31afbb42f8

• National Crime Record Bureau Report 2006, National Crime Record Bureau

http://ncrb.nic.in/cii2006/home.htm

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http://ncrb.nic.in/cii2006/home.htm

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