By Adv. Kanish Bangia
“I am the child. All the world waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance, for what I am, the world of tomorrow will be. I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail. Give me, I pray to you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world” - The Child’s Appeal
The above quote by Mamie Gene Cole in her work The Child’s Appeal, is a clear depiction of the essence of childhood years, and hence, the need to embrace, groom and protect these tender years. The whole jurisprudence of the Indian juvenile justice system has been built around rehabilitation, reformation and social-reintegration of delinquent juveniles, particularly since the 2015 legislation. Juvenile justice jurisprudence in India and the mental health of the involved juveniles have a structural relationship. The Juvenile Justice (Care and Protection of Children Act), 2015 defines a juvenile as a child below the age of eighteen years and further categorically defines a child as a “child in conflict with law” under Section 2(13) and a “child in need of care and protection” under Section 2(14). The primary concern of this paper revolves around the children in conflict with law, who as per the definition provided by the Act are children below the age of 18 years, who have been found or alleged to have committed an offense during their juvenility.
For any given society, children form a vulnerable section and hence, child rights’ protection become crucial for the development and evolution of their wholesome personalities and for their well being. Recognizing the special need for care and protection in such tender years, various international instruments have been formulated to take adequate measures including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, (Beijing Rules), The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 (Havana rules), The United Nations Convention on the Rights of the Child (CRC), 1989, The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 (Riyadh guidelines), and The United Nations Guidelines for Action on Children in the Criminal Justice System, 1997 (Vienna guidelines) among others to name a few. Being a signatory to the UNCRC, India too developed child-centric legislations in its domestic laws post ratification, for instance the Child Labour Act, Child, 1993, Juvenile Justice Act, 2000, Prohibition of Child Marriage Act, 2006, Right of Children to Free and Compulsory Education Act, 2009, and Protection of Children From Sexual Offences Act (POCSO), 2012.
Juvenile Justice Jurisprudence
The juvenile justice jurisprudence is not new in India, although relatively new to the human rights jurisprudence. The first uniform legislation for juvenile justice in India was thus enacted in the year 1986, which was further replaced by the 2000 Act and then consequently in 2015 after the infamous Nirbhaya Gang Rape case. The Juvenile Justice(Care and Protection of Children) Act, 2015 has recently been amended in 2021 vide Juvenile Justice(Care and Protection of Children) Amendment Act, 2021, with special focus on “child in need of care and protection”. The Integrated Child Protection Scheme (ICPS), stands out as another example of initiatives taken by the State to look after the well being of vulnerable children and to provide a protective environment for children in difficult circumstances, through a State-civil society collaboration. Further, a set of SOPs, titled ‘Rehabilitation Of Children In Conflict With The Law’ was developed by the Ministry of Women and Child Development (MoWCD). These SOPs recognised that “reform and rehabilitation and not punishing are the guiding principles of the Act, 2015”.
Talking about the mental health of the juveniles, various studies have suggested the impact of mental health issues upon the young offenders in the juvenile justice jurisprudence. There are a broad range of prevalent mental health issues among youths ranging from anxiety disorders(including post-traumatic stress disorder), to disruptive behavioral disorders like Attention Deficit Hyperkinetic Disorder(ADHD), Histrionic Personality Disorder(HPD), and substance use disorders, to name a few.
Interrelationship between juvenile delinquency and mental health
A report ‘Mental Health Matters: Social Inclusion Of Youth With Mental Health Conditions’, published in 2014 by the United Nations, talks about how mental health conditions often significantly affect development of the youth negatively. The report further quotes another study to substantiate the argument stating that “About 70 percent of youth involved in the juvenile justice system have at least one diagnosable mental health condition”. Another report by the World Health Organization (WHO) published in 2010, titled “Mental Health and Development:Targeting People With Mental Health Conditions As A Vulnerable Group”, talks about how people with mental health issues are the most marginalized and vulnerable people. Paradoxically, these people still have been sidelined from the development agenda.
Addressing the mental health condition of the juveniles thus gains substance and by way of this article, such inadequacies have been pointed out, simultaneously moving ahead with a multi disciplinary approach to address the challenge. The article shall further present a critical analysis of the Act, while establishing a corollary of the relationship between juvenile delinquency and mental health in India.
There are various reasons for why people commit crime, forming an altogether different study of criminology, however the present piece highlights the interrelationship of mental health of children in conflict with law and their delinquent behavior. Avoiding such challenges or denying to address can often result in recidivism.
Analysis of the Juvenile Justice Act: mental health care facet
Mental health professionals in the juvenile justice jurisprudence thus assume importance as they can significantly help in shifting the dialogue from delinquency to root issues involving mental health while supporting in the process, with their skills and expertise, on the preventive, therapeutic, and rehabilitative forefronts. The same has been put into deliberate consideration as evident from the Juvenile Justice Act, 2015 which provides that a social worker shall be appointed to the Juvenile Justice Board or Child Welfare Committee provided they have experience in education, or are practicing professionals with a degree in child psychology, psychiatry, sociology, or law.
While the 2015 amendment introduced trial of juvenile offenders between the age of 16-18 years as adults, in case of commission of heinous offenses, it further mandated that a preliminary assessment should be ordered to be carried out to check their physical and mental capacity, for which the Board shall take assistance of experienced psychologists, psychosocial workers, or other pertinent experts in the field.
Maintenance of confidentiality while dealing with such children has been mandated under the Act, which also stands in consonance with the recent Mental Healthcare Act, 2017. Section 23 of the Mental Healthcare Act so provides for the right to confidentiality stating that “A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare.”
Since rehabilitation and social reintegration are the quintessential features of juvenile justice jurisprudence, the Act has hence mandated that the Child Care Institutions(CCIs) should compulsorily have mental health, including counseling and de-addiction facilities for the children. A gradual shift of a child in need to the mental health or de-addiction center is thus permissible under the Act. However, it has to be done in a very planned manner for which a comprehensive post-discharge plan has to be chalked out to ensure that the health of the child does not deteriorate including any psychological or behavioral issue that may be present and to further ensure continuity of care.
Although the legislation serves as a protective measure, there are contemporaneous lacunas in its functioning. While the legislation is centered around giving utmost importance to the welfare of the children, the reality seems to lack the requisite practices. Health care requirements like the mental health care institutions associated with the juvenile centers remain insufficient. In a report published by MoWCD in 2018 titled “A Report of the Committee for Analyzing Data of Mapping and Review Exercise of Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015 and Other Homes”, an analysis was made with respect to ‘mental health services’ that only 33.2% of CCIs/Homes have the necessary linkages; 38.3% for ‘educational services’; 27% for ‘vocational training’; 49.4% for ‘recreational services’; 22.4% for ‘health services’; 16.7% for ‘legal services’; while only 8.3% of CCIs/Homes have for necessary linkages ‘de-addiction services’. In a study carried out by the National Commission for Protection of Child Rights(NCPCR), it was highlighted that children in child care institutions often face numerous mental lesions for various reaons, for instance on being bullied by senior inmates, sexual or physical abuse, overcrowding, inadequate services etc. Therefore, it becomes important to keep a check upon the child care homes through regular monitoring to look after the proper maintenance and well being of the children.
Child Welfare Committees (CWC) established under Section 27 of the Act must carry out periodic assessments of the mental health of all the children within their framework and further compile estimates of such children in need of mental health treatment.
Another key flaw in juvenile justice law is the lack of understanding of child psychology and aberrant behavior among social workers and child care facility staff, which are some of the limiting factors. Lack of training and expertise on the side of these employees leads to harsh treatment of the youngsters, thus exacerbating the problem.
In a landmark judgment by Patna High Court, Amarjeet Sada v. The State Of Bihar, a juvenile of 8 years was accused for murdering 3 people from his village, consequent to which he was arrested. Since he was a juvenile, and the maximum time he was allowed to spend in a juvenile detention center was limited to three years only, he was subsequently sent to a remand home in a neighboring village named Munghur, where he was ordered to live until his majority. While the case was being investigated, it was found out by a psychoanalyst that the boy was in fact under a mental illness that had ruined his sense of right and wrong. He had developed sadistic impulses in the process and thus, he felt pleasure in inflicting pain upon others.
This case is a pertinent example of cases of child psychopathy, due to which many children lose their ability to differentiate between right and wrong, and are thus in need of special care and attention, for their own well being as well as for the well being of others in the society. It is in these times of untreated mental health issues that the role of juvenile centres, child care institutions and special homes become important.
Evidently, the Juvenile Justice Act 2015 is inclusive of provisions for improving the mental health of juveniles in juvenile centers and special care homes, however still, it seems that the Act has incorporated only minute provisions with regard to mental health. A report by the United Nations mentions that there are barriers presented to the care of youth due to lack of public understanding of their mental conditions, as well as the associated stigma to both treatment-seekers and treatment-providers (World Health Organization, 2003). As per the report, “while there has been a recent shift in public opinion for individuals with mental health issues which has subsequently contributed to increased acknowledgement and investment in youth mental health in many high-resource countries, there has been no similar shift in low- and middle-income countries’ priorities, where tackling mental health tends to be seen as something of a luxury among so many other pressing concerns.”
Monthly reviews and assessments should be conducted by the Child Welfare Committee for ensuring that sources are adequately accessible and the mental health care facilities in juvenile centers and homes are efficiently functioning. These checks and balances would ensure that children are getting access to mental and psychological assistance at all times.
In cases of emergency, it is suggested that psychotropic medications should be easily and readily available. The Act has mandated that periodic assessments should be performed to ascertain the progress of such children so as to continue their treatment accordingly.
Furthermore, one of the major shortfalls remains the lack of finances to approach the situation thus, it is recommended that the Union budget should focus upon increasing the mental health care budget for these services. However, after the WHO report on mental health, the Mental Health Atlas 2020, highlighting a picture of the grim situation post pandemic in which governments had failed to provide mental health services and care to the people, the Indian government in its Union budget of 2022-2023 has made an attempt to take care of the situation. The government launched a national tele-mental health programme providing free counseling and care to people for 24*7 hours, which would include a network of 23 tele-mental health centers of excellence, with the National Institute of Mental Health and Neurosciences (NIMHANS) as its nodal center and International Institute of Information Technology-Bangalore (IIITB) providing technological support. However, it is recommended that the amount of money set aside for mental health programmes should be proportional to the amount of care that has to be provided. It is for this reason that the union budget thus saw mixed responses from the healthcare experts.
The legislation further lacks the provision for personal training and thus another recommendation would be an inclusive clause in the Act for initiating training programmes for assisting the caretakers at juvenile centers and special care homes for effectively dealing with children with mental health challenges. The CWC should further attempt to hold awareness sessions with the families of such juveniles, with the purpose of educating them and spreading awareness about mental health issues of their children. This would help families in acknowledging and addressing the significance of mental wellbeing of their children and its impact upon them, and thus help them in getting through similar situations in a better way.
Furthermore, when the juveniles know about their mental health situations, they may attempt to work upon it, thus improving their therapy results. Therefore, the attempt through the socio-welfare legislation should be focused upon improving the mental health of children within the juvenile justice jurisprudence, and the youth in general.
This can also be achieved by maintaining functional rehabilitation centers, spreading awareness among youth by conducting mental health awareness sessions at primary levels like schools and colleges, employing understanding and sensitive staff, providing them with training, and conducting free therapy sessions at various focal points.
Section 93(1) of the Act provides that any child who has been determined to be mentally ill or addicted to alcohol or other drugs, which has further led to behavioural changes in the child, should be referred and sent to a psychiatric hospital, psychiatric nursing home, rehabilitation centre or any other similar institution for treatment. Where the said provision has been incorporated for looking after the welfare of the child, it is also to be considered that these institutions may treat the child in a generic manner with people belonging to various backgrounds, and of various ages. This generic treatment may deprive the child of the special care and protection, and lead to further deterioration of the mental health. Therefore, special and specific individualized attention should be provided to such children for their wholesome development and to further boost their self-confidence.
Even though the legislation includes a few guidelines for mental health, there is a serious lack of its enforcement on the ground. It should be ensured that the concerned authorities, including the members of the Child Welfare Committee and the Juvenile Justice Board, do not fail in regulating mental health services efficiently, and if they do so, they must be subjected to severe actions or heavy fines.
A proper framework and systematic curriculum should be chalked out for persons in whose care and custody, such children have been placed in the juvenile justice system. It should further be inclusive of imparting education about child psychology, psychological and biological needs of children to the concerned personnels. It is considerable to note that children in need of care and protection and children in conflict with law, both have different kinds of needs and thus the approach should be different in both cases. Regularly appointing Mental Health Professionals (MHPs) should be prioritized for better equipping the childcare institutions.
Additionally, childcare institutions should be regularly audited to ensure that they are properly functioning with regular appointment and availability of qualified staff and mental health professionals in consonance with the law. In case of any kind of lapses, the authority running the childcare institutions should be held accountable and answerable.
Counseling of the children should be prioritized, particularly in the initial phases of their introduction to the juvenile justice system, which may comprise of addressing the state of dilemma the children must be facing, like explaining the reason why they have been kept in the institution, the probable situations that they may have to face during their stay at such place, for instance, who to address and reach out to, if they are being bullied by some senior inmate. Furthermore, a mechanism to detect any signs of prevalent mental issues or disorders at entry level may be chalked out, which may be traced by trained personnels at the childcare institutions without the assistance of mental health professionals. Consequently, MHPs can be approached for adequately dealing with the children in need.
Children should get job- and livelihood-oriented vocational training that is best suited to their talents and interests. Digital learning and technology-based courses should be prioritized and advanced to aid their social reintegration and consequently make it simpler for them to obtain suitable employment after their release.
Prior inmates should also be able to participate in training and counseling programmes about substance abuse and other relevant difficulties. Because offenders in the juvenile court system generally come from similar socioeconomic origins and experiences, it would thus be simpler for the youth to be able to communicate and relate to such previous inmates,further allowing them to better cope with the system's atmosphere.
Thus, the relationship between delinquent behavior and mental health is better understood when people are aware of the associated psychological and socio-cultural variables, thus awareness becomes the asset in removing all kinds of stigma and prejudices against the child offenders.