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The Rebirth of Delinquent ‘Adult-Children’: Criminal Capacity, Socio-economic Systems, and the Malleability of Penality of Child Delinquency in India

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Abstract

This chapter investigates the historical and sociological aspects of childhood, child delinquency, and the social reaction and state response towards children in conflict with the law (CCL) in India. Beginning from the ancient period to the present times, I trace how various social systems have shaped childhood. I analyse how different social, economic, political, and legal factors have contributed to the shifting age boundaries of children so as to criminalise their behaviours. The chapter also explores the conventional institutions of child social control by reflecting on roles played by family, community, and locality. I examine integrative mechanisms, specific to the Indian socio-economic context that dealt with children’s behaviours in non-penal ways. I juxtapose this history with neoliberal child carceralism post-mid-1980s that produced delinquent ‘adult-children’, and penal populism and ‘carceral’ feminism after the Nirbhaya gang rape and homicide. I present an abolitionist critique of the ‘adultification’ of children and of deployment of punitive measures by the state to deal with CCL by the Juvenile Justice (Care and Protection of Children) Act 2015, which has led to, what I call the rebirth of delinquent ‘adult-children’.

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Notes

  1. 1.

    A stall run by ISCKON (the Hare Krishna movement) near the SOAS building in the Bloomsbury area of London that offers voluntary donation-based food to any person who wishes for it.

  2. 2.

    Historically, Hinduism is a pluralistic ethno-geographic category. In this chapter, it has both a religious connotation for my discussion of ancient Vedic texts, as well as the ethno-geographic connotation to invoke the Indian subcontinental social culture that transcends all religions and beliefs. See Lorenzen (1999).

  3. 3.

    It can generally be observed in the Indian society, across religions, that a favourable location in all the three social systems, that is, an ‘upper caste-upper class-male’ identity, might offer a far more potential to children to grow holistically, and navigate easily through their childhood and post-childhood lives, that too sometime with comparatively lesser efforts than those who do not fall in this ‘accidentally privileged’ category. As such, subject to some amount of subaltern penetration in the socio-cultural capital of the accidentally privileged, the essence of one’s existence in the Indian society arguably continues to be, as Hartjen (1982: 468) says, “dictated by ascribed rather than achieved attributes.”

  4. 4.

    Another dimension of juvenile imprisonment could possibly be the ‘circumstantial incarceration’ of those children whose mothers have been incarcerated and who out of biological or socio-economic necessities need to stay with their mothers who are incarcerated. Many childhoods are destroyed and lost behind those iron bars. As per the National Crime Records Bureau’s report, approximately 1866 children lived in prison with their mothers at the end of 2015 in India. See http://indiatogether.org/prison-children and http://blogs.cuit.columbia.edu/rightsviews/2018/09/06/children-languishing-behind-bars-a-grim-reality-of-indian-prisons/. This chapter does not deal with this aspect.

  5. 5.

    It refers to the youngest age in which a person may be prosecuted for a crime, and in the case of a system with a designated juvenile court, it also refers to the minimum age of its jurisdiction (Abrams et al. 2018).

  6. 6.

    It refers to the age at which a person becomes subject to adult criminal charges and penalties with the full force of the law (Abrams et al. 2018).

  7. 7.

    There is no authoritative answer on the exact duration of each of these natures of societies but there is a consensus among Marxist historians on their temporal order. See Thapar (2002).

  8. 8.

    Only 0.1% of the total Indian population did not state their religion. Census Data, 2001, Religion, available at: http://censusindia.gov.in/Census_And_You/religion.aspx.

  9. 9.

    It is a collection of treatises on Dharma originally written in Sanskrit. It was influential in the colonial Indian history. The British made it a part of the Anglo-Hindu jurisprudence, particularly for all suits regarding Inheritance, Marriage, Caste and other religious Usages or Institutions, for all the non-Muslims (Gentoos) of the Indian subcontinent, but gradually displaced it by laws that were foreign in origin or inspiration (Rocher 1972).

  10. 10.

    A religio-legal text ascribed to Manu, which presents a detailed caste code and duties of different social groups, particularly the conduct of Brahmins, the polluting nature of women and devaluation of lower caste groups. It arguably came after 185 BC (Ambedkar 1948).

  11. 11.

    The three privileged Varnas are, namely, Brahmins, Kshatriyas, and Vaishyas (Kumar 2016). Colloquially, they are referred as the ‘Savarnas’, ‘upper castes’ or ‘higher castes.’

  12. 12.

    The Sudras and untouchables are legally categorised as the OBCs (Other Backward Classes) and the SCs (Scheduled Castes), respectively.

  13. 13.

    It is a theory often associated with the utilitarian view of Asian civilizations. It visualized a system of government consisting of a despotic ruler with absolute power, said to be characteristic of Asian societies. Generally, this theory characterised empires outside Europe as autocratic and backward. See Thapar (2002).

  14. 14.

    S. 1, the Apprentices Act, 1850.

  15. 15.

    See S. 82, IPC.

  16. 16.

    See S. 83, IPC.

  17. 17.

    British administrators did not use reformatories for female CCL.

  18. 18.

    No female was to be punished by whipping. S. 7, WA 1864.

  19. 19.

    The Act defined ‘Youthful offender’ only in terms of a ‘boy’. S. 3, RSA- I.

  20. 20.

    S. 31, RSA- II.

  21. 21.

    S. 433, CrPC.

  22. 22.

    S. 8, WA.

  23. 23.

    S. 31, RSA- II.

  24. 24.

    Sen is silent about the implications of religion and caste on the probability of institutionalisation of native male children and the nature of their associations among themselves within the reformatories. However, he does reflect on the linkage between caste, ‘intellectual capacity’, profession, and social hierarchy by mentioning the operation of caste within reformatory whereby certain incarcerated young people appeared ‘unsuited’ for book learning and how caste acted as an erasure of punishment for certain released children from higher castes (Sen 2004).

  25. 25.

    The Madras Children Act 1920 defined ‘youthful offender’ as anyone younger than 18 guilty of an offense, Bombay Children Act 1924 defined child as under 16, and Bengal defined it as under 18 (Kumari 2015). Interestingly, these laws included non-criminal acts of juveniles too, on the line of delinquency legislation in American states and European countries, so as to give the state legal guardianship over uncontrollable, homeless, dependent, neglected, or destitute children as well (Hartjen 1995).

  26. 26.

    Later on, the Constitution (Sixty-first Amendment) Act, 1988, lowered the voting age of elections to the Lok Sabha and to the Legislative Assemblies of States from 21 years to 18 years.

  27. 27.

    During the passage of this Act in 1960, there were following Union Territories: Delhi, Andaman and Nicobar Islands, Lakshadweep, Himachal Pradesh, Manipur, Nagaland, and Tripura. The Act was extended to newly formed Union Territories of Goa and Daman and Diu in 1962, to Dadra and Nagar Haveli in 1963, and to Pondicherry in 1963.

  28. 28.

    This entire chapter uses the data furnished by the government agency NCRB (National Crime Records Bureau) in the form of annual reports called CII (Crime in India). The ‘Juvenile Delinquency Statistics’ is available from the year 1958 onwards. Sometimes it appears that the NCRB itself fails to read its previous years’ reports.

  29. 29.

    The age categorisations recorded in the juvenile delinquency statistics in the CII reports from 1958 to 1960 was 7–12, 12–17, and 17–21 years, which became uniform from 1961 to 1987 as 7–12, 12–16, and 16–21 years.

  30. 30.

    The state does not maintain this data properly. There is some data available, though privately, about the age of the prisoners executed in India since independence. I could trace eight male persons whose age at the time of execution was between 18 and under 21 years. They were executed between 1947 and 1988. See State-wise List of Prisoners Executed in India Since 1947 (n.d.), Death Penalty Research Project, National Law University, Delhi. I would like to thank Anup Surendranath for sharing this list with me.

  31. 31.

    The data on incarceration of juveniles and on the socio-economic background of the juveniles apprehended is available from the year 1971 onwards.

  32. 32.

    Crimes under the IPC have been divided into cognisable and non-cognisable. “Cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. S. 2(c), the Code of Criminal Procedure 1973.

  33. 33.

    Madhya Pradesh also contributed significantly despite the fact that it cannot be categorised as an industrialised state. But, as it has a big population of Scheduled Tribes, I can speculate that it became a prominent contributor because a large number of tribal children might have been apprehended.

  34. 34.

    To see this phenomenon in popular culture, see the Bollywood movie Singham (2011).

  35. 35.

    Section 27(2), JJA.

  36. 36.

    Section 22(1), JJA.

  37. 37.

    Proviso, section 22(1), JJA.

  38. 38.

    However, there is a report from 2016 that offers data through interviews of death row prisoners and their families. It says that out of 310 prisoners on the death row and whose age information was available, 18 and 54 prisoners claimed to have been below 18 years (juveniles) and between 18 and 21 years (young adults) of age, respectively, at the time of the incident. An analysis of the decisions sentencing the 18 juveniles shows that the claim of juvenility was not addressed in the trial court decisions in 12 cases. In the remaining six decisions where arguments on juvenility were raised, the trial court summarily dismissed those claims without even ordering a further investigation. See Chapter 4, Socio-Economic Profile, Vol. 1, Death Penalty Report (2016). I would like to thank Anup Surendranath for sharing this report with me.

  39. 39.

    Section 16, JJ-I.

  40. 40.

    Sections 376 AB and 376 DB have been inserted in the Indian Penal Code through the Criminal Law (Amendment) Act 2018 prescribing death as one of the sentencing options for rape and gang rape, respectively, on children under 12 years of age. Also, section 6(1) has been inserted in the Protection of Children from Sexual Offences (POCSO) Act 2012 through the POCSO (Amendment) Act 2019 prescribing death as one of the sentencing options for aggravated penetrative sexual assault against a child.

  41. 41.

    To see this phenomenon in popular culture, see the Bollywood movie Mardaani 2 (2019).

  42. 42.

    Salil Bali v. Union of India (2013) 7 SCC 705.

  43. 43.

    Subramanian Swami v. Raju through the Juvenile Justice Board (2013)10 SCC 465.

  44. 44.

    It includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. See section 2(33), the JJ-II. There are 20 offences under the IPC 1860 and 26 offences under Special & Local Laws that can be categorised as ‘heinous offences’ under the JJ-II.

  45. 45.

    S. 15 and S. 14(3), JJ-II.

  46. 46.

    Explanation, S. 15(1), JJ-II.

  47. 47.

    S. 15(1), JJ-II.

  48. 48.

    S. 18(3), JJ-II.

  49. 49.

    S. 19(1)(i), JJ-II.

  50. 50.

    S. 19(2), JJ-II.

  51. 51.

    S. 19(3), JJ-II.

  52. 52.

    S. 20(1), JJ-II.

  53. 53.

    S. 20(2)(ii), JJ-II.

  54. 54.

    Crime rate is calculated as crime per one lakh of population.

  55. 55.

    The numbers in brackets are from CII report 2015, which do not match with those mentioned in CII reports 2013 and 2014. It appears that the NCRB did not read its own reports from the previous years.

  56. 56.

    The CII reports from 2016 onwards use this phrase. See Table 5A.5 of the CII 2016, 2017, and 2018. The CII report 2015 has used the phrase, “Final Order of Apprehended Children in Conflict with Law during 2015,” and also mentions that all the apprehended juveniles were produced before various ‘juvenile boards’ rather than being sent to courts. See Chapter 10, Juveniles in Conflict with Law, CII 2015.

  57. 57.

    This includes the number of juveniles whose cases were pending disposal at the beginning of the year and the juveniles apprehended during the year.

  58. 58.

    The percentage left after the addition of the guilty and acquittal percentages is the percentage of the cases pending disposal. So, for the years 2015, 2016, 2017, and 2018, percentages of cases pending disposal were 38.2%, 38.4%, 63.3%, and 54.7%, respectively.

  59. 59.

    See Chapter 10, Juveniles in Conflict with Law, CII 2015 and Table 5A.6 of the CII 2016, 2017, and 2018.

  60. 60.

    This data is not available from the year 2016 onwards in the respective CII reports.

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Kumar, S. (2021). The Rebirth of Delinquent ‘Adult-Children’: Criminal Capacity, Socio-economic Systems, and the Malleability of Penality of Child Delinquency in India. In: Cox, A., Abrams, L.S. (eds) The Palgrave International Handbook of Youth Imprisonment. Palgrave Studies in Prisons and Penology. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-68759-5_6

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