Juvenile delinquency is an inextricable problem for any human society. It is a problem that persists in our society and also all over the world to a perceptible degree. A child is born innocent and it nourished with tender case and attention he or she will be a person of statute and excellence. To understand the problem is real perspective it is necessary to understand the meaning of delinquency and its significance is the social background of our society<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]. On the other hand, noxious surroundings, neglect of basic needs bad company and other abuser and temptations would spoil the child and likely to turn him a delinquent.
“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait, the child can not, night now is the time his bourse are being formed, his blood is being mode and his senses are being developed. To him, we can not answer tomorrow. His name is “Today”<href=”#_ftn2″ name=”_ftnref2″ title=””>[2].
Thus children being are important asset, every effort should be made to provide them equal opportunities for development so that they become robust citizens physically fit, mentally alert and morally healthy endowed with the skills and motivations need the society<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]. The Neglected children and juveniles fall an easy prey to criminality. The adolescents claim the highest share in violence due to dashing nature, lack of foresight, uncritical enthusiasm, physical strength, endurance and desire for adventure.
02. Aims and Objects of the Study
The society of Bangladesh is passing a transition from 1950. The large number of population are burdened to the country and because of having the unemployment largely, the proper development of the country are not increasing day by day. Moreover, political stability as well as other problems are also responsible for the under developing situation of the country. Crimes are increasing day by day for various reasons and juvenile crimes are one of the results of the failure conducting. So the aims and objects of this study may consider the following demands:
An agro-based village oriented society may be started to transform into an urban society causing the emergence of single parents’ family.
To remove the urban life with its anonymity, complicacy and material infrastructure this is liable for more opportunity for criminal activities. That is identified as one of the major causes for high rate of criminality including extensive juvenile delinquency.
Continuous famine in some regions, unemployment, bringing down banks of rivers and increasing poverty caused large-scale migration of people from village to city.
The migrated people with their family members took shelter in slum areas and remain deprived of basic civic amenities.
Criminal activities are taking strong hold by taking advantage of unemployment, deprivation and vulnerable economic condition of slum people.
Absence of strong parental control and lack of opportunity to get education are pressing the juveniles of slums to have more involvement with criminal activities.
Extensive satellite culture has some impact on the mindset of the young folk in no way that is always functioning positively. All these social conditions are contributing heavily for increasing delinquency rate among the juveniles.
03. Methodology
The purpose of juvenile justice system is not to penalize the juveniles, but to make them understand their mistakes and afford them an opportunity to rectify themselves. Any confinement or detention in a remand home, place of safety or correction centre is a major barrier for the rectification of juveniles. Because detention within an institute creates guilty feelings among the juveniles and people also treat them as offender. Considering this attitude of society the Children Act, 1974 gives power to the officer-in-charge of the police stations to forward the juveniles on bail and to the magistrates to order the juveniles to be released on probation of good conduct and committed to the care of the parents or any other relative even after the conviction of the juveniles. But unfortunately these alternative measures remain unexhausted due to lack of motivation, ignorance of magistrates and unavailability of parents or reluctance of parents. Deprivation of liberty of juveniles by sending them to the correction centre should be the last resort and should be used in the rarest of the rare cases. But deprivation of liberty is extensively used which is frustrating the purpose of juvenile justice.
The provisions to treat the children separately after arrest, to submit separate charge-sheet and to conduct separate trial in a homely atmosphere are not maintained due to ignorance of law, proper motivation and an attitude to avoid extra burden by the police officers and magistrates.
The transition of society, complicacy of urban life, absence of parental control and care, impact of satellite culture and overall malfunctioning of society cause to develop deviant juvenile subculture in Bangladesh. Implementation of law by the main actors, exploitation of alternative measures, and all out efforts of societal people of different strata are required to combat this problem.
04. Definition
The concept of “Juvenile delinquency” has been vaguely and imprecisely defined in many countries; a clear definition would be most useful in the formulation of workable programmers for the prevention of juvenile delinquency. In finding out a working definition, it should be remarked that juvenile delinquency is not mere legalistic concept as it is some times taken to be. It may be construed as a specific behavior pattern. It is only when this behavior pattern is of an aggressive nature and handful to the public that the boy or girl concern come juvenile deliquescence may be defined in simple words as antisocial tendencies in the young & youthful. It spells the loss of control of family and society over a portion of the growing generation. An offender is considered juvenile or criminal on the basis of his age at the time of conviction not at the time of commission of offence.
“It is a phenomenon which has engaged the attention of society in particular the law since the birth of civilization.”
According to Burt, “a child is to be regarded as technically a delinquent when his anti-social tendencies appear so grave that becomes subject of official action. “Irrespective of legal definition, a child might be regarded as delinquent when his anti-social conduct inflicts suffering upon others or when his family finds him difficult to control<href=”#_ftn4″ name=”_ftnref4″ title=””>[4].
In a broad generic sense, Juvenile delinquency refers to “ a variety of anti-social be heavier of a child and is defined some what differently by different societies, though a common cornering tendency may be noted in those forms, namely, socially unacceptable tendency of the child at any given time<href=”#_ftn5″ name=”_ftnref5″ title=””>[5].”
By Paul W. Tappan, Euphemistic terminology such as “heaving” instead of trial or instead of “sentence” should not conceal from us the fact that the nature of entire procedure may be little different from that of a criminal court.
05. Problem of definition of child
The United Nations Convention on the Rights of the Child (CRC) defined child as any person under the age of 18 years unless under the law applicable to the child, maturity is attained earlier. Bangladesh ratified the Convention on the Rights of the Child in November 1989<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]. In Bangladesh there are a number of laws which defined a child. These laws are conflicting regarding the age of children. Some described a child as a person below 12 years, others state below 14 years and some defined them as a person below 18 years of age. But the Children Act, 1974 defined a child as a person under the age of 16 years. Article 2(f) provides that, “Child” means a person under the age of 16 years, and when used with reference to a child sent to a certified institute or approved home or committed by a Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during that period<href=”#_ftn7″ name=”_ftnref7″ title=””>[7].
06. Juvenile justice system in Bangladesh
The Children Act, 1974 is the substantive law for juvenile offenders and their treatment. The law was made to consolidate and amend the laws relating to the custody, protection and treatment of children and trial and punishment of youthful offenders.
07. High court Order
According to international save the children U.K.’S report in daily Prothom Alo on 4th January, 2003 that there are about 400 children is central jail. After this information High Court Division issues a suo-moto, order no-248/2003 on 9 April 2003 for the redemption of the Juvenile<href=”#_ftn8″ name=”_ftnref8″ title=””>[8].
Order of High Court Division regarding this matter: The High Court Division of the Supreme Court of Bangladesh provides the following orders –
Juvenile justice administration shall be preceded by the juvenile court.
The Govt. wills application to the court for the acquitted of the children from the case.
The existence legal aid committee will arrange the bail.
No child shall be changed with or tried for, any affiance together with an adult.
The children have to send to remand home on correction centre.
Chapter Two
Juvenile Justice Administration and the International Views
It is accepted that children who are criminally culpable under the State’s penal codes are in conflict with the Law. Historically, in matters of criminal justice, the violation of law was of greater significance than the age or the immaturity of the offender. This stemmed from the ideology those children, who were regarded as miniature adults at that time, did not merit special treatment. However, over the past century and a half changing perceptions and sustained efforts by specific groups within the civil society, have led to the development of a criminal justice system with a more child-friendly orientation. The rationale was that since children are not fully aware of the implications of their acts they are required, to be treated with sensitivity and care.
The administration of justice for minors who are accused of, or alleged as having breached the penal laws of the country essentially constitutes the juvenile justice system. Juvenile justice, in the strict sense of the term, denotes the right of children to have the support at all levels, i.e., the State, the family and the community, in realizing their rights of survival, protection, development and participation<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]. The present exercise is an attempt at reviewing the administration of juvenile justice in Bangladesh and assessing the impact of correctional services on juveniles and children.
01. Administration of Juvenile Justice: (International Perspectives)
The international approach to administration of juvenile justice recognizes the necessity to have the rights of children redefined and developed in concrete ways simply because they are a special category of human beings. Accordingly, the United Nations have taken significant steps mat have contributed to the development of standards for treatment of children who come into conflict with the law. The initiatives are described below in brief for an understanding and appreciation of the standard setting role of the United Nations.
02. Standard Minimum Rules for the Administration of Juvenile Justice (Hie Beijing Rules) 1985
The Beijing Rules provide minimum conditions for the treatment of juveniles who come into conflict with law. The Rules explicitly provide for a separate and specialized system of juvenile justice and underscore that detention of children should be used as a last resort and that too, for the shortest possible time. The Rules discourage capital and corpora! Punishment for children
Under the Rules children should be allowed to participate in the legal proceedings. Moreover, care and education of children must be ensured during the period of detention. At all stages of the proceedings discretion should be exercised in the best interests of the child.
In terms of treatment the Rules require that children should be treated fairly and humanely. Measures adopted should be proportionate to the nature of the offender and the offence. The Beijing Rules however, refrain from prescribing approaches beyond setting forth the basic principles of proportionality and the limited use of deprivation of liberty, a shortcoming that has been resolved substantially by the Convention on the Rights of the Child.
02. The Convention on the Rights of the Child 1959
The Convention on the Rights of the Child (CRC) 1989 in Articles 37 and 40 spell out the rights of children in conflict with the law and ensure basic guarantees and legal and other assistance for their defense. Article 37 of the CRC ensures that no child shall be subjected to arbitrary arrest detention, torture or other cruel. In human and degrading treatment including capital punishment and life sentence. The arrest or detention c f a child must be in conformity with law during which the child shall be treated with humanity and dignity<href=”#_ftn10″ name=”_ftnref10″ title=””>[10].
Many of the essential principles of the 19S5 Beijing Rules find expression in Article 40 of the CRC and lend them a binding effect. Article 40 of the CRC provides that every child alleged as, accused of, or recognized as having violated the penal law must be treated in a manner consistent with the child’s human rights, fundamental freedoms, sense of worth and dignity. Regard must be had to the age of the child and the need to promote its reintegration into society- Accordingly, a child must be presumed innocent until proven guilty, be informed of charges promptly and cannot be compelled to give testimony or confess to guilt and muse rave access to legal representation. Articles 37 and 40 are qualified by Article 3 of the CRC which states that in all actions, whether undertaker by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration<href=”#_ftn11″ name=”_ftnref11″ title=””>[11].
The Convention on the Rights of the Child is complemented by two other major documents, which set standards and guidelines for the protection of children in conflict with the law.
03. UN Guidelines for the Protection of Juveniles Deprived of their Liberty 1990
These Guidelines apply to all institutions, which detain any person under the age of 18 years. These include institutions for health, welfare or juvenile justice. The Guidelines advocate the least possible use of deprivation of liberty and discourages detention in prisons and other closed institutions. Moreover, the Guidelines advise that children, when detained, should be kept separate from adults in order to protect them from negative influences. Rather, facilities must promote health of juveniles and instill in them self respect and a sense of responsibility to enable them to make a smooth return to society. Access to parents during the period of detention is essential.
04. UN Guidelines for the Prevention of Juvenile Delinquency (Hie Riyadh Guidelines) 1990
The Riyadh Guidelines emphases on the need for integrated and comprehensive plans for preventing crimes by children and young people. They advocate for formal mechanisms of crime control as a last resort. The Guidelines also underline the need for having due regard to the human rights and fundamental freedoms of children, particularly of those who are at ‘social risk’, such as children who are homeless, destitute, abused and so on. Accordingly, laws and procedures should promote, protect and uphold children’s rights. The Guidelines further recommend that children should be encouraged to participate in policy formulation and implementation of prevention programmers as active and equal partners.
An examination of the international standards on the administration c: juvenile justice reveals two broad principles that are of particular significance to children in conflict with the law. Firstly, that the well being of children who come in conflict with the law must be ensured and secondly, the children who come in conflict with the law must be treated in a manner commensurate to their circumstances and nature of the offence. In other words, the rights of children in conflict with the law must be protected in ways that will facilitate their reintegration into the; societies and assumption of responsibilities therein. Therefore, it is essential to weigh the considerations adequately before committing children to formal institutions. In this context, diversion from formal legal procedures is always an acceptable alternative.
Endorsement of international standards, however, does not automatically guarantee their practical enforcement in domestic context of states-While international standards are meant to apply objectively, they essentially lack binding force. Therefore, while international Conventions may engender certain responsibilities for ratifying states, they carry no formal obligations in terms of practical implementation. In the circumstances, it is crucial to develop enabling mechanisms within the domestic legal system for utilization of international standards in realistic ways.
Chapter Three
Administration of Juvenile Justice in Bangladesh
The legal provisions relating to the administration of juvenile justice in Bangladesh have their roots in colonial laws. The Bengal Code and Prisons Act of 1974 required separate trials for children and adults. Guidelines for reformation were contained in the Reformatory Schools Act 1897. The Code of Criminal Procedure of 1898 provides for the trial of children in juvenile courts, which was also later recommended by The Bengal Children’s Act 1922. These various laws and provisions relating to custody, protection, trial and treatment of children were eventually consolidated to produce The Children Act 1974, to be read together with The Children Rules ‘1976, a mechanism conceived to protect the child’s best interest during all kinds of legal processes.
The Children Act 1974 contains both procedural as well as substantive components. The procedural component, supplemented by The Code of Criminal Procedure 1898, sets out special procedures for juvenile courts and for committing children to the protection and care of state facilities. The substantive part, on the other hand, describes offences done to children and prescribes penalties for them.
The Children Act 1974 lays down protections for children in conflict with the law as well as those who are at social risks. The Act requires that Courts must have regard to the age and character of the child and other related factors before passing any order. It provides for separate juvenile courts and forbids the joint trial of child offenders with adults, even where the offence has been committed jointly. The Act also lays down measures for the care and protection of destitute and neglected children including children whose parents /guardians are either alcoholic or who habitually neglect, abuse or ill-treat children by engaging them in begging or other purposes.
01. Delineating the Age of Criminal Responsibility
There is often no uniform standard regarding the age at which a person is necessarily considered a child. This is primarily because the age premise is likely to vary across cultures, values and social systems. Article I of The Convention on the Rights of the Child denotes that a child is a person under the age of 18 years unless, under the law applicable to the child, majority is attained earlier. In other words, the Convention permits member states to set the age of majority in conformity with national laws<href=”#_ftn12″ name=”_ftnref12″ title=””>[12]. This creates problems when, as is the case in Bangladesh, states have domestic legislation’s that define a child varyingly to suit specific contexts.
Having said that, it is difficult to find a clear-cut definition of a child in international standards as well. Whereas The Convention on the Rights of the Child regards all persons under the age of 18 years as children, none of the Rules and Guidelines relating to administration of juvenile justice., i.e., The Beijing Rules, the UN Rules for the Protection of Juveniles Deprived of their Liberty or The Riyadh Guidelines (as discussed later) contains any explicit indication as to who is a child. Rather, the Guidelines often use the terms ‘child’ and “young person’ in tandem and apply the term “juvenile’ to signify the form of justice system or the type of delinquency<href=”#_ftn13″ name=”_ftnref13″ title=””>[13]. It appears therefore, that in the context of juvenile justice “it is the manner in which a child is treated for an offence which dictates whether a child is also a juvenile'<href=”#_ftn14″ name=”_ftnref14″ title=””>[14].
Just as the age of a child is a controversial issue, the age of criminal responsibility, though seemingly straightforward and elementary as a concept, presents concrete problems in the administration of juvenile justice. While there is no distinct international standard on the subject, the CRC and the Beijing Rules enjoin State Parties to establish a minimum age below which children will be presumed as not having the capacity to infringe the penal law. In so doing, the beginning of the age should not be set too low, having due regard to the child s emotional, mental and intellectual maturity.
The penal law in Bangladesh reflects these considerations to a certain extent. The Penal Code of I860, which sets the age of criminal responsibility states that nothing is an offence, which is done by person under the age of 9 years (Section 82) and that full criminal responsibility commences only after the age of 12 years<href=”#_ftn15″ name=”_ftnref15″ title=””>[15]. Section 83 of The Penal Code provide that an act of a child above 9 years and below 12 years, who has not attained sufficient maturity of understanding to judge the nature and the consequences of his conduct, is no offence. It follows therefore, those children under 9 years lacks the capacity for crime and incur liability after the age of 12 years; in between these two ages, criminal responsibility depends on the state of mind. It is to be noted that apart from The Penal Code, immunity of children below 9 years of age from criminal responsibility also extends to offences under any other special or local law of Bangladesh.
The Children Act 1974 which is the principal law relating to the administration of juvenile justice states that a child means a person under the age of 16 years, and a youthful offender means a child who has been found to have committed an offence<href=”#_ftn16″ name=”_ftnref16″ title=””>[16]. When used with reference to a child sent to a certified home or committed by Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during this period<href=”#_ftn17″ name=”_ftnref17″ title=””>[17]. In other words, a child who is below 16 years at the time of his committal will still be considered a child until the end of his detention period even if he reaches the age of 16 years during this period.
Unless the age of a child is ascertained properly there is every possibility of misapplication of laws and missed mini strait on of justice. The virtual absence of birth registration in Bangladesh raises serious difficulties in computing the correct age of a child in Bangladesh. This problem is of particular significance where children are brought before the courts and the ma gastritis have to rely on information furnished by the police who, in the majority of cases, misrepresent the age of the apprehended child. Although there are provisions in the law that requires a medical examination to ascertain the age of the child this is hardly conducted in routine time. Consequently, the child remains in custody like an adult until the conclusion of the medical verification<href=”#_ftn18″ name=”_ftnref18″ title=””>[18].
02. Setting the Law into Motion: Procedural Aspects
Although The Children Act 1974 and The Children Rules 1976 are premised on the best interests of children who come in conflict with the law and who are destitute, their enforcement in practical terms is rather ineffective and often detrimental the children. Children traverse through different stages in the criminal justice system from the moment they come into contact with the law. This section attempts to examine the procedural aspects of the juvenile justice system and explore the implications they have for children who come under its jurisdiction.
Chapter Four
Negligence of authorities hinders the very purpose of juvenile justice system in Bangladesh
01. Problem of determining criminal responsibility
As per section 82 of the penal code, the age of criminal responsibility in Bangladesh is above seven years of age. But the Children Act defines a child as a person under the age of 16 years of age. Section 52 of the Act provides that, where a child is convicted of an offence punishable with death, transportation or imprisonment, the Court may, if it considers expedient so to deal with the child, order, him to be committed to certified institute for detention for period which shall be not less than two and not more than ten years, but not in any case extending beyond the time when the child will attain the age of eighteen years. Penal Code and the Children Act, 1974 are contradictory. The age of criminal responsibility is not clear from the above mentioned laws. The minimum age of criminal responsibility requires clarity.
Assuming above seven years as the age of criminal responsibility in Bangladesh the government functionaries are dispensing their activities. When any child of above seven years commits any punishable offence then they are arrested by the police. The police do not consider street children, child prostitute or delinquent juvenile as children and are treated them like adult offenders.
02. Arrest, bail, detention and discharge
Where a person apparently under the age of sixteen years is arrested on a charge of non-bailable offence and cannot be brought forthwith before a court, the officer-in-Charge of the police station to which such person is brought may release him on bail, if sufficient security is forthcoming, but shall not do so where the release of the person shall bring him into association with reputed criminal or expose him to moral danger or where his release would defeat the ends of justice<href=”#_ftn19″ name=”_ftnref19″ title=””>[19].Where such a person is not released under section 48, the officer-in-charge of the police station shall cause him to be detained in a remand home or a place of safety until he can be brought before the court. A court, on remanding for a trial a child who is not released on bail, shall order him to be detained in (i) a remand home or (ii) a place of safety. [Section 49, the Children Act]
Immediately after the arrest of a child, the officer-in-charge shall inform to the Probation Officer of such arrest to enable the said probation officer to proceed forthwith in the matter of the juvenile. No child shall be charged with, or tried for, any offence together with an adult. Police officer has to submit separate charge sheet and concerned magistrate has to conduct separate trial when a juvenile has been charged with any offence<href=”#_ftn20″ name=”_ftnref20″ title=””>[20].
No child shall be sentenced to death, transportation or imprisonment. Provided that when a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment, which under the provisions of this Act it is authorized to inflict, is sufficient or when the court is satisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified institute and that none of the other methods in which the case may legally be dealt with suitable, the court may sentence the child to imprisonment or order him to be detained in such place and on such conditions as it thinks fit.
03.Alternative measures
A court may, if it thinks fit, instead of directing any youthful offender to be detained in a certified institute under section 52 order him to be (a) discharged after due admonition, or (b) released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or without sureties, as the court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and the court may also order that the youthful offender be placed under the supervision of a Probation Officer<href=”#_ftn21″ name=”_ftnref21″ title=””>[21]. If it appears to the court on receiving a report from the probation officer or otherwise that the youthful offender has not been of good behaviour during the period of his probation, it may, after making such inquiry as it deems fit, order the youthful offender to be detained in a certified institute for the unexpired period of probation.
04. Juvenile prisoners’ plight
On September 16, 2003 eight inmates were reportedly attempted to commit suicide by way of causing dent and mutilating their own body using sharp blades and broken bottle at National Juvenile Correction Centre in Tongi, Dhaka. Juvenile delinquents have alleged that the centre authorities do not provide enough food. They hardly get opportunity to play as well as watch TV. Furthermore, in most time their hands are fastened by handcuffs. When they raise their voice against irregularities of the authority, they have to sustain severe physical torture. Finally, the torture and denial of total recreation persuaded them to attempt to commit suicide. On the same day, we learnt from a press release of Bangladesh Legal Aid and Services Trust (BLAST) published in The Daily Star that a boy named Jamal(14) continues to languish in the Juvenile Correction Centre at Tongi even though the court acquitted him of charge about 10 months ago. These two incidents are clear evidences of how much the authority are negligent about child rights<href=”#_ftn22″ name=”_ftnref22″ title=””>[22].
In fact, juveniles have been treated so badly that they aren’t reformed or corrected rather they transform into recidivist. It should be mentioned that the prime objective of juvenile justice system is to protect the children from recidivism and to ensure their rehabilitation as well as to smooth reintegration with society. When a juvenile opt to commit suicide in sheer depression, we can easily say that the end of juvenile justice system is totally frustrated from all respects.
In this context, we can reiterate that we have huge good laws such as the Probation of Offenders Ordinance’1960 and The Children Act, 1974, but we have seen hardly implementation of those laws. In lieu of sending into correction centre, we can set free juvenile in the society on condition of good behaviour under the Probation Order. Of course, we may get some results from it as it is proved by statistics.
05. Forgive the child
Being born within the four walls of jail Nasrin, a five year child of Parvin, an accused of Shajnin murder case, does not have any idea of living in an open and a free environment. That is why the little innocent girl asked its mother to go back in the jail while its mother standing before the Judge in the court. The most unfortunate news for that unlucky child is that its mother was rewarded the death sentence. Needless to say no one should raise question regarding the judgement. But the conscious citizens definitely can raise question of the life of a five year child whose mother is to die within very short time or as soon as all proceedings of judgement is completed. It is not known whether the judge considered the maternity of said Parvin who gave birth a female child after being imprisonment. In the history of near past of the judiciary this case is a unique where a mother with having a minor child given death penalty.
Here the judgement of Indian Prime Minister Rajiv Gandi murder case can be mentioned where a woman accused having a minor child was sentenced to death. Sinia Gandi, wife of Rajiv Gandi, forgave the accused woman who was unfortunately a mother of a child, in thinking the future life of that child. And it’s definitely a good instance. With this I am not appealing to Mr & Mrs Latifur Rahman who lost their beloved daughter to forgive the said woman. I am just requesting them to think for a while about the instance made by Sonia Gandi and side by side that innocent girl to whom her mother is also beloved one.
It is needed to say that before final judgement the question of the life of said minor girl (whose father left her mother) must be settled.
Chapter Five
About Different Measures
01. Arrest and Remand
Generally, a child may be arrested for breaching the penal laws of the land or under suspicion of committing an offence. However, there are other laws, such as The Bengal Vagrancy Act 1 943, Section 54 of The Criminal Procedure Code, The Special Powers Act 1974, The Arms Act 1878, that are often utilized to arrest children. Children also fall prey to police raids in the wake of political unrest or criminal hunts.
Policemen on the beat identify vagrant children and pick them up from the streets, railway and bus stations, shopping centers, parks and so on. . The recognition of status offences, as where a child runs away from home! or is deemed disobedient or destitute, also presents a paradox The practice of taking vagrant and street children into custody essentially criminalizes acts which are otherwise not offences in the strict sense of the term.
Consequently, a neglected and homeless child becomes the victim of a legal system, which, under the best of conditions, tends to be unjust. Although the right to be heard is fundamental in the human: rights discourse the child arrested under The Vagrancy Act 1943 is devoid of this right, either directly or through appropriate representation in judicial proceedings. The child’s right to privacy is virtually non-existent; during the process. The right not to be deprived of liberty and only to be detained in conformity with law is also not ensured under The Vagrancy Act 1943. This is evident from the fact that children arrested under this Act are often detained for unspecified periods in prisons. Thus, while The Vagrancy Act 1943 concentrates on maintaining public order, it overlooks children’s interests by ignoring their special needs.
Section 54 of The Criminal Procedure Code 1896 is yet another device that i serves to oppress, amongst others, children. The police are empowered under this section to arrest any person on mere suspicion without a ‘ warrant of arrest. It is common for law enforcing agencies to indiscriminately arrest and incarcerate street children under the cover of this law on the slightest of pretexts. Apart from Section 54 of The Criminal Procedure Code, children’s rights and freedom are also compromised by The Special Powers Act 1974. Which empowers the police to arrest people on suspicion of anti-state activities? The Special Powers Act 1974 is frequently used to pick up children who, either happen to be loitering on the streets, or are engaged in political agitation by political parties during political demonstrations and hurtles (strikes). Street children in such situations, become victims of circumstances and have their rights seriously jeopardized. Children arrested under The Arms Act 1873 for possessing and carrying illegal arms is another instance of victimization of children by adults and an insensitive legal system.
When it comes to arresting girls the scenario is even more perplexing. Girl children reportedly make up a much less percentage of juvenile of fenders. It is not be so much that girls breach the law less but more, that, the specific! Ties of their con tact with the law are not adequately addressed. Classic examples are prostitution and rape where it is more common for girls to be arrested rather than the perpetrators. In other words, girls come into conflict with the law more as victims of prostitution and sexual offences, even if they have actually breached other penal Saws, Since there are no separate provisions for housing girl offenders, they are customarily branded as prostitutes and victims of rape in order to acquire for them a place in shelter homes.
Normally, a child may be arrested without a warrant for a cognizable offence9 under The Criminal Procedure Code 1896 but s/he cannot be detained in custody for more than 24 hours. Moreover, if a child under 16 has been charged with a non-bilabial offence, the officer in charge of the police station may release her/him on bail and arrange for the child to be placed in a remand home or a safe place until s/he is brought before the court<href=”#_ftn23″ name=”_ftnref23″ title=””>[23].
There is virtually no separation between inmates who are here for correction and those who live here in remand. The resultant is a free mixing between boys with perpetrating and non-perpetrating nature. The consequence is pernicious as children with less or occasional criminal are compelled to mix with the more hardened types.” The current situation raises serious questions about the places of safety ordained by law.
Immediately after the arrest of a child, it shall be the duty of the police officer affecting the arrest to inform the Probation Officer of such arrest in order to enable the Probation Officer to proceed to obtain necessary information about the child’s family and other material circumstances likely to assist the Court in making its order<href=”#_ftn24″ name=”_ftnref24″ title=””>[24]. At the same time the officer in charge of the police station to which the arrested child is brought shall inform the parents/guardian of the arrest, if found, and specifying the date, direct them to attend the court before which the child will appear<href=”#_ftn25″ name=”_ftnref25″ title=””>[25].
The situation on the ground is, however, quite different. Charge sheets are virtually non-existent and children arrested and detained are not shown the grounds for arrest nor are their parents duly informed.
The police allege that it is frequently difficult to trace parents and in the absence of adequate facilities they are compelled to detain children in jails until they are brought before the Magistrate<href=”#_ftn26″ name=”_ftnref26″ title=””>[26]. Consequently, children are interned with adult criminals who collude with the police officials to abuse and mistreat the children. Although The Bengal Jail Code under Section 499 expressly provides that none shall be admitted into any jail without a writ, warrant or order signed by a competent authority, the reality is quite different as children are frequently locked up with adult criminals without proper authorization<href=”#_ftn27″ name=”_ftnref27″ title=””>[27].
It is during arrest and interrogation that children are more likely to suffer police brutality as is evident from a number of studies in the area. Children are allegedly subjected to various forms of maltreatment ranging from transportation to the police stations and jails in handcuffs to detention over 24 hours. Physical abuse and torture are also reported. The practice of placing girl children who are victims of rape or trafficking in the so-called safe custody increases their vulnerability to victimization and abuse by the police and other inmates.
02. Trial
The Children Act 1974 provides that child offenders may only be tried by juvenile courts or other courts duly empowered<href=”#_ftn28″ name=”_ftnref28″ title=””>[28]. Under the Children Act 1974 the powers conferred on a juvenile court can be exercised by:
The High Court Division of the Supreme Court;
A Court of Session;
A court of an Additional Sessions Judge and of an Assistant Sessions Judge;
A Sub-Divisional Magistrate; and
A Magistrate of the First Class<href=”#_ftn29″ name=”_ftnref29″ title=””>[29];
It is evident from the above that although the establishment of separate courts for juveniles is prescribed by law, the above-mentioned courts are permitted by law to try child offenders provided that they apply the same rules and procedures as followed by a juvenile court. These courts sit as juvenile courts only when the offender is under 16 years of age. When a Juvenile Court has been set up for any local area such court shall try all cases in which a child is charged with the commission of an offence<href=”#_ftn30″ name=”_ftnref30″ title=””>[30]. The concurrent jurisdiction of the Magistrate and Sessions Court is to a large extent responsible for the failure to establish an independent juvenile justice system. The inability of providing a separate trial system for juveniles stems from the criminal justice system that is largely traditional in its approach and jurisdiction that is limited in terms of subject matter<href=”#_ftn31″ name=”_ftnref31″ title=””>[31].
Although the law requires the establishment of separate courts for juvenile offenders to date there are only two juvenile courts in Bangladesh, one in Tongi and the other in Jess ore. Moreover, despite existing concessions in the exercise of jurisdiction by other courts it is found that very few of them in fact sit as juvenile courts. Most Magistrates, being unaware of the procedures under The Children Act, 1974 choose instead to try children in accordance with The Code of Criminal Procedure. According to Section 7 of The Children Act 1974 and Rule 3 of The Children Rules 1976, the Juvenile Court should sit at least once a week or as often as may be necessary. Moreover, the Court should, as far as practicable, sit in a place separate from that where ordinary sittings of the Court are held. If need be a different date or time should be chosen for the court to sit. Where a child and adult are charged together, a separate trial must be conducted for the child<href=”#_ftn32″ name=”_ftnref32″ title=””>[32].
Thus, it is provided in Section 3 of The Children Act that when a child is a co-accused with an adult in any offence and it appears to the Court that the case is fit for committal to the Court of Session, such Court shall, after separating the case in respect of the child from that of the adult, direct that the adult may be committed to the Court of Session alone. This measure is prescribed strictly in the best interests of the child. In practice, however, the child is often tried together with the adult in the same court without any regard for the law in this context or the child’s right to privacy.
The Children Act 1974 also provides for confidentiality in respect of court proceedings against a juvenile offender. To this end Section 9 of The Children Act lays down that no person shall be present at any sitting of a Juvenile Court, except
• The members and officers of the Court;
• The parties to the case or proceeding and other persons directly concerned with the case/proceeding including police officers;
• The parents or guardians of the child; and
• Such other person as the Court specially authorizes to be present;
Confidentiality often entails the withdrawal of certain people from the hearing of the case. If at any stage during the hearing of a case or proceeding the Court considers it necessary in the interest of the child to direct any person, including the parent/guardian or the spouse of the child or even the child himself/herself to withdraw, the Court may make such order whereupon the person concerned shall withdraw<href=”#_ftn33″ name=”_ftnref33″ title=””>[33]. In the same fashion if at any stage of the hearing of the case or proceeding the Court is satisfied that the presence of the child is not essential, the Court may dispense with the attendance of the child<href=”#_ftn34″ name=”_ftnref34″ title=””>[34].
The provision on confidentiality must also be invoked during examination of a child witness. Section 12 of The Children Act provides that if at any stage of the hearing of a case or proceeding in relation to an offence against or any conduct contrary to morality or decency, a child is summoned as a witness, the Court may direct such persons as it thinks fit, not being parties to the case/proceeding and their legal advisers and court officials, to withdraw. In any event no report in any newspaper, magazine or any news agency shall be permitted to disclose any details of the Court proceedings in which a child is involved. Similarly, no photograph of the child shall be published which directly or indirectly leads to the identification of such a child unless the Court deems it essential in the interest of the child<href=”#_ftn35″ name=”_ftnref35″ title=””>[35]. The requirement of confidentiality also extends to reports of Probation Officers and other reports impinging on a child offender<href=”#_ftn36″ name=”_ftnref36″ title=””>[36].
During trial of a juvenile there are certain salient aspects that require special consideration. Section 15 of The Children Act 7974 states that for the purpose of any order, which the Court has to pass, the following factors shall be taken into consideration:
• The age and character of the child;
• The circumstances in which the child is living;
• The reports made by the Probation Officer;
• Such other matters as may be required to be taken into consideration in the interest of the child;
In practice however, there is evidence that reports by Probation Officers are not sought, the Magistrates preferring to rely on charge sheets or the final reports in police cases. Whatever little merit is attached to reports of Probation Officers is evident only in guardian-referred cases.
Whenever a person whether charged with an offence or not, is brought before any criminal court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child, that court shall make an inquiry as to the age of that person and for that purpose, shall take such evidence as may be forthcoming at the hearing of the case, and shall record a finding thereon, stating his age as nearly as may be<href=”#_ftn37″ name=”_ftnref37″ title=””>[37]. In reality, however, the police and jail authorities make no mention of children’s age when they send them to the correctional centers. Consequently, there are instances when children over the acceptable age are also detained with younger children.
Although it is essential that at every phase of criminal proceedings the child’s age, identity and other necessary information be treated as classified in order that the child is protected from the effects of labeling, the reality is quite different. Although a medical examination is legally required to specify a child’s age, the usual practice is to put down an age on pure guesswork. The special treatment of children during trial includes the expeditious disposal of the case by a competent and impartial authority in a congenial and a child friendly environment. However, children are frequently denied this privilege, as our courtrooms are chaotic, daunting and far from child-friendly.
Rule 4 of The Children Rules 1976 states that the hearing of all cases and proceedings shall be conducted in a simple manner without formality. In other words, the proceedings must be conducted in a congenial and homely environment so as to put the child at ease. As such, the Court shall ensure that a child brought before it is not kept under police guard; rather, it must be ensured that the child is in the company of a close relative, friend or the Probation Officer. This is hardly the case on the ground. To begin with the children arrive in the court premises in prison vans along with adult offenders. They are often shackled. As they are ushered into the courtroom they are pushed on to the dock with the other adults. In the circumstances, proximity is more in terms with other adult criminals rather than their relatives, friends of even their Probation Officers.
Rule 4 further lays down that in examining a child and recording his statement the Court shall freely interact with the child during which the Court can elicit information about the offence the child is accused of, as well as other attending factors, like his family, home, physical and mental conditions and so on. Where a child offender pleads guilt or is found guilty the Court shall not forthwith make an order upon such finding. Rather, it shall direct the Probation Officer or such other person as may be deemed fit by the Court to furnish it with a report containing inter alia information on family background of the child, his character and antecedents, his physical and mental conditions and the circumstances in which the offence was committed or any such information considered significant in the interest of the child.
In reality however, the attitude and demeanor of judges demonstrate a general apathy towards children’s well-being. While the accused are rarely segregated in terms of age, the fact that a large number of accused are brought before the court at the same time makes it difficult for the judge to single out the child offenders from amongst the teeming adults. Contrary to legal requirements the en tire courtroom atmosphere is such as to generate fear in children and intimidate them into silence and submission. This seriously compromises the spirit of the juvenile justice laws.
During the trial stage, the accused reserves the right to cross-examine witnesses and to produce his/her own witnesses thereby placing the burden of proof on the prosecution. Children are never able to exercise this option, as Magistrates summarily decide their cases. Children, like adults, have the right to benefit from the principle of equality before the law and equal protection of law.
If any of these rights are infringed the trial itself cannot be deemed ‘fair’<href=”#_ftn38″ name=”_ftnref38″ title=””>[38]. There is a general lack of due process resulting in arbitrary actions. The attitude of courts towards young offenders is often biased and not based on considerations of the gravity of the offence. Individual circumstances and the offence often have no bearing on the sentence, which is frequently disproportionate.
03. Sentencing Verdict of the Court
The mode of punishment for children is restricted to detention and institutionalization in a certified home. In fact, Section 71 of The Children Act 1974 prohibits the use of the words ‘conviction’ and sentenced’ in relation to children. Alternatively, the words may be read found guilty of an offence.
After the hearing the Court can exercise three options:
• commit the child to a certified home;
• release him on probation; and
• discharge him after admonition;
Section 51 of The Children Act 1974 lays down that no child shall be sentenced to death, transportation or imprisonment. However, if the Court is of the opinion that the crime committed is of so serious a nature or the child is so unruly or depraved that he cannot be committed to a certified institute; the child can be sentenced to imprisonment. Nevertheless, a child offender so committed shall not be allowed to associate with adult offenders. However, there is no clear indication of what constitutes “unruly behaviour. Moreover, once children have been it is not clear where they should be kept.
Where the Court finds a child guilty of an offence punishable with death, transportation or imprisonment, it may, if it thinks so expedient, order him to be committed to a certified institute for detention. In such cases the period of detention shall not be less than two years and not more than 10 years, and in any case shall not extend beyond the time when the child will attain the age of 18 years<href=”#_ftn39″ name=”_ftnref39″ title=””>[39].
However, during one of the visits to the Tongi Correctional Centre a 15-year old boy who was fined Tk. 10,000 and sentenced to 7 years detention. It is evident that there exists neither mechanism for specifying time periods for detention nor any guideline on the course of action once a detainee reaches 18 years<href=”#_ftn40″ name=”_ftnref40″ title=””>[40]. In the absence of birth registration the possibility of children outstaying their time in certified institutes cannot be ruled out. According officials of Correctional Institutes children are sent off to the central jail to complete their unfinished sentences once they attain the age of 18 years. This presents a paradox—if these children are sent to jail then what is the purpose of correctional treatment.
The Court may also, instead of committing him to a certified institute, discharge young of fender after due admonition and advice. “Contrarily, the young offender may be released on probation for good behaviour for a period not exceeding three years. In this context, the child may be released into the care of his parent/guardian or any other fit person executing a bond, with or without surety, as the Court may require.
The Court may also order that the child may be placed under the supervision of a Probation Officer<href=”#_ftn41″ name=”_ftnref41″ title=””>[41]. However, if it appears to the Court from reports of the Probation Officer that the youthful offender has not been behaving well during the probation period, it may, after due inquiries, order the young offender to be detained in a certified home for the remaining period of his probation<href=”#_ftn42″ name=”_ftnref42″ title=””>[42].
04. Detention Measures
Children may be detained either for having been found guilty {as discussed above) or for reasons of safety.
Section 55 of The Children Act provides that any Probation Officer or police officer not below the rank of Assistant Sub-Inspector or any other person authorized by the Government for this purpose may take any child to a place of safety in respect of whom there is reason to believe that An offence has been or is likely to be committed. A child so taken to a place of safety or a child seeking such refuge may be detained until he can appear before the Court. However, this detention shall not, in any event, exceed 24 hours exclusively of the time required to commute from the detention centre to the Court.
According to Section 29(j) of The Children Act “place of safety’ includes a remand home or any other suitable place or institution, the occupier or manager of which is willing to receive the child temporarily. Where such suitable places are not available, the Act permits only male children to be kept in police stations or in custody separate from adult offenders. The Act is silent about alternative arrangements for girls. A remand home is a place that is used for the purposes of detention, diagnosis and classification of children committed to custody by any Court or police<href=”#_ftn43″ name=”_ftnref43″ title=””>[43].
If the Court is convinced that there is reason to believe that an offence has or is likely to be committed against a child who is brought before it, it may make an order for the care and detention of the child until a reasonable time has elapsed for proceedings to be initiated against the person for having committed the offence or such other lawful action as may be expedient<href=”#_ftn44″ name=”_ftnref44″ title=””>[44].
In case of children who are victims of an offence, the Court trying the perpetrator shall direct such child to be produced before the Juvenile Court for appropriate orders<href=”#_ftn45″ name=”_ftnref45″ title=””>[45]. Upon appearance before it the Court may exercise two options:
Commit the child to a certified institute or an approved home until he attains the age of 18. In exceptional cases the period may be shorter, in which case the reason for such shorter period is to be recorded in writing.
Commit the child to the care of a relative or other fit person on such bond, with or without surety, as the Court may require provided that such relative or person is willing and capable of exercising proper care, control and protection subject to the conditions the Court may impose in the interests of the child for a period not exceeding three years<href=”#_ftn46″ name=”_ftnref46″ title=””>[46].
Where a child is committed to the care of a relative or any other fit person, the Court may, if it thinks fit, withdraw the child from such care any time before the expiry of the period for which he was so committed. In such cases the Court may commit the child to a certified institute or an approved home for the remainder of the time<href=”#_ftn47″ name=”_ftnref47″ title=””>[47]. In this context it is difficult to understand why a victimized child should be kept in remand.
Under Rule 12 of The Children Rules a youthful offender or child may be permitted by license to live with a trustworthy or respectable person provided that—–
He shall obey the person to whom he is licensed to live;
He shall stay away from bad company and refrain from taking intoxicants;
He shall not leave the place of his residence without permission of the person under whose care he has been placed;
However, if the child has a parent or guardian, who is fit and capable and in the opinion of the Court, capable of exercising proper care, control and protection, the Court may allow the child to remain in his custody or commit the child to his care on bond, with or without surety as the Court may require, subject to the conditions the Court may impose in the interests of the child<href=”#_ftn48″ name=”_ftnref48″ title=””>[48].
A child committed to a parent, guardian or any other fit person may, in addition, be placed under supervision of a Probation Officer<href=”#_ftn49″ name=”_ftnref49″ title=””>[49]. Similar provisions are available for children who are homeless, destitute, neglected and ill-treated by parents/guardians, in bad company and involved in immoral activities<href=”#_ftn50″ name=”_ftnref50″ title=””>[50].
The Children Act 1974 makes special provisions for uncontrollable children. Section 33 of the Act provides that where the parent /guardian of a child complains to a Juvenile Court or a Court duly empowered th
Juvenile delinquency is an inextricable problem for any human society. It is a problem that persists in our society and also all over the world to a perceptible degree. A child is born innocent and it nourished with tender case and attention he or she will be a person of statute and excellence. To understand the problem is real perspective it is necessary to understand the meaning of delinquency and its significance is the social background of our society[1]. On the other hand, noxious surroundings, neglect of basic needs bad company and other abuser and temptations would spoil the child and likely to turn him a delinquent.
“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait, the child can not, night now is the time his bourse are being formed, his blood is being mode and his senses are being developed. To him, we can not answer tomorrow. His name is “Today”[2].
Thus children being are important asset, every effort should be made to provide them equal opportunities for development so that they become robust citizens physically fit, mentally alert and morally healthy endowed with the skills and motivations need the society[3]. The Neglected children and juveniles fall an easy prey to criminality. The adolescents claim the highest share in violence due to dashing nature, lack of foresight, uncritical enthusiasm, physical strength, endurance and desire for adventure.
1.2. Aims and Objects of the Study
The society of Bangladesh is passing a transition from 1950s. The large number of population are burdened to the country and because of having the unemployment largely, the proper development of the country are not increasing day by day. Moreover, political stability as well as other problems are also responsible for the under developing situation of the country. Crimes are increasing day by day for various reasons and juvenile crimes are one of the results of the failure conducting. So the aims and objects of this study may consider the following demands:
01. An agro-based village oriented society may be started to transform into an urban society causing the emergence of single parents' family.
02. To remove the urban life with its anonymity, complicacy and material infrastructure this is liable for more opportunity for criminal activities. That is identified as one of the major causes for high rate of criminality including extensive juvenile delinquency.
03. Continuous famine in some regions, unemployment, bringing down banks of rivers and increasing poverty caused large-scale migration of people from village to city.
04. The migrated people with their family members took shelter in slum areas and remain deprived of basic civic amenities.
05. Criminal activities are taking strong hold by taking advantage of unemployment, deprivation and vulnerable economic condition of slum people.
06. Absence of strong parental control and lack of opportunity to get education are pressing the juveniles of slums to have more involvement with criminal activities.
07. Extensive satellite culture has some impact on the mindset of the young folk in no way that is always functioning positively. All these social conditions are contributing heavily for increasing delinquency rate among the juveniles.
1.3. Methodology
The purpose of juvenile justice system is not to penalize the juveniles, but to make them understand their mistakes and afford them an opportunity to rectify themselves. Any confinement or detention in a remand home, place of safety or correction centre is a major barrier for the rectification of juveniles. Because detention within an institute creates guilty feelings among the juveniles and people also treat them as offender. Considering this attitude of society the Children Act, 1974 gives power to the officer-in-charge of the police stations to forward the juveniles on bail and to the magistrates to order the juveniles to be released on probation of good conduct and committed to the care of the parents or any other relative even after the conviction of the juveniles. But unfortunately these alternative measures remain unexhausted due to lack of motivation, ignorance of magistrates and unavailability of parents or reluctance of parents. Deprivation of liberty of juveniles by sending them to the correction centre should be the last resort and should be used in the rarest of the rare cases. But deprivation of liberty is extensively used which is frustrating the purpose of juvenile justice.
The provisions to treat the children separately after arrest, to submit separate charge-sheet and to conduct separate trial in a homely atmosphere are not maintained due to ignorance of law, proper motivation and an attitude to avoid extra burden by the police officers and magistrates.
The transition of society, complicacy of urban life, absence of parental control and care, impact of satellite culture and overall malfunctioning of society cause to develop deviant juvenile subculture in Bangladesh. Implementation of law by the main actors, exploitation of alternative measures, and all out efforts of societal people of different strata are required to combat this problem.
1.4. Definition of Juvenile delinquency
The concept of “Juvenile delinquency” has been vaguely and imprecisely defined in many countries; a clear definition would be most useful in the formulation of workable programmers for the prevention of juvenile delinquency. In finding out a working definition, it should be remarked that juvenile delinquency is not mere legalistic concept as it is some times taken to be. It may be construed as a specific behavior pattern. It is only when this behavior pattern is of an aggressive nature and handful to the public that the boy or girl concern come juvenile deliquescence may be defined in simple words as antisocial tendencies in the young & youthful. It spells the loss of control of family and society over a portion of the growing generation. An offender is considered juvenile or criminal on the basis of his age at the time of conviction not at the time of commission of offence.
“It is a phenomenon which has engaged the attention of society in particular the law since the birth of civilization.”
According to Burt, “a child is to be regarded as technically a delinquent when his anti-social tendencies appear so grave that becomes subject of official action. “Irrespective of legal definition, a child might be regarded as delinquent when his anti-social conduct inflicts suffering upon others or when his family finds him difficult to control[4].
In a broad generic sense, Juvenile delinquency refers to “ a variety of anti-social be heavier of a child and is defined some what differently by different societies, though a common cornering tendency may be noted in those forms, namely, socially unacceptable tendency of the child at any given time[5].”
By Paul W. Tappan, Euphemistic terminology such as “heaving” instead of trial or instead of “sentence” should not conceal from us the fact that the nature of entire procedure may be little different from that of a criminal court.
1.5. Problem of definition of child
The United Nations Convention on the Rights of the Child (CRC) defined child as any person under the age of 18 years unless under the law applicable to the child, maturity is attained earlier. Bangladesh ratified the Convention on the Rights of the Child in November 1989[6]. In Bangladesh there are a number of laws which defined a child. These laws are conflicting regarding the age of children. Some described a child as a person below 12 years, others state below 14 years and some defined them as a person below 18 years of age. But the Children Act, 1974 defined a child as a person under the age of 16 years. Article 2(f) provides that, "Child" means a person under the age of 16 years, and when used with reference to a child sent to a certified institute or approved home or committed by a Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during that period[7].
1.6. Juvenile justice system in Bangladesh
The Children Act, 1974 is the substantive law for juvenile offenders and their treatment. The law was made to consolidate and amend the laws relating to the custody, protection and treatment of children and trial and punishment of youthful offenders.
1.7. High court Order
According to international save the children U.K.’S report in daily Prothom Alo on 4th January, 2003 that there are about 400 children is central jail. After this information High Court Division issues a suo-moto, order no-248/2003 on 9 April 2003 for the redemption of the Juvenile[8].
Order of High Court Division regarding this matter: The High Court Division of the Supreme Court of Bangladesh provides the following orders –
Juvenile justice administration shall be preceded by the juvenile court.
The Govt. wills application to the court for the acquitted of the children from the case.
The existence legal aid committee will arrange the bail.
No child shall be changed with or tried for, any affiance together with an adult.
The children have to send to remand home on correction centre.
CHAPTER-2
Juvenile Justice Administration and the International Views
02. Juvenile Justice Administration and the International Views
It is accepted that children who are criminally culpable under the State's penal codes are in conflict with the Law. Historically, in matters of criminal justice, the violation of law was of greater significance than the age or the immaturity of the offender. This stemmed from the ideology those children, who were regarded as miniature adults at that time, did not merit special treatment. However, over the past century and a half changing perceptions and sustained efforts by specific groups within the civil society, have led to the development of a criminal justice system with a more child-friendly orientation. The rationale was that since children are not fully aware of the implications of their acts they are required, to be treated with sensitivity and care.
The administration of justice for minors who are accused of, or alleged as having breached the penal laws of the country essentially constitutes the juvenile justice system. Juvenile justice, in the strict sense of the term, denotes the right of children to have the support at all levels, i.e., the State, the family and the community, in realizing their rights of survival, protection, development and participation[9]. The present exercise is an attempt at reviewing the administration of juvenile justice in Bangladesh and assessing the impact of correctional services on juveniles and children.
2.1. Administration of Juvenile Justice: (International Perspectives)
The international approach to administration of juvenile justice recognizes the necessity to have the rights of children redefined and developed in concrete ways simply because they are a special category of human beings. Accordingly, the United Nations have taken significant steps mat have contributed to the development of standards for treatment of children who come into conflict with the law. The initiatives are described below in brief for an understanding and appreciation of the standard setting role of the United Nations.
2.2. Standard Minimum Rules for the Administration of Juvenile Justice (Hie Beijing Rules) 1985
The Beijing Rules provide minimum conditions for the treatment of juveniles who come into conflict with law. The Rules explicitly provide for a separate and specialized system of juvenile justice and underscore that detention of children should be used as a last resort and that too, for the shortest possible time. The Rules discourage capital and corpora! Punishment for children
Under the Rules children should be allowed to participate in the legal proceedings. Moreover, care and education of children must be ensured during the period of detention. At all stages of the proceedings discretion should be exercised in the best interests of the child.
In terms of treatment the Rules require that children should be treated fairly and humanely. Measures adopted should be proportionate to the nature of the offender and the offence. The Beijing Rules however, refrain from prescribing approaches beyond setting forth the basic principles of proportionality and the limited use of deprivation of liberty, a shortcoming that has been resolved substantially by the Convention on the Rights of the Child.
2.3. The Convention on the Rights of the Child 1959
The Convention on the Rights of the Child (CRC) 1989 in Articles 37 and 40 spell out the rights of children in conflict with the law and ensure basic guarantees and legal and other assistance for their defense. Article 37 of the CRC ensures that no child shall be subjected to arbitrary arrest detention, torture or other cruel. Inhuman and degrading treatment including capital punishment and life sentence. The arrest or detention c f a child must be in conformity with law during which the child shall be treated with humanity and dignity[10].
Many of the essential principles of the 19S5 Beijing Rules find expression in Article 40 of the CRC and lend them a binding effect. Article 40 of the CRC provides that every child alleged as, accused of, or recognized as having violated the penal law must be treated in a manner consistent with the child's human rights, fundamental freedoms, sense of worth and dignity. Regard must be had to the age of the child and the need to promote its reintegration into society- Accordingly, a child must be presumed innocent until proven guilty, be informed of charges promptly and cannot be compelled to give testimony or confess to guilt and muse rave access to legal representation. Articles 37 and 40 are qualified by Article 3 of the CRC which states that in all actions, whether undertaker by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration[11].
The Convention on the Rights of the Child is complemented by two other major documents, which set standards and guidelines for the protection of children in conflict with the law.
2.4. UN Guidelines for the Protection of Juveniles Deprived of their Liberty 1990
These Guidelines apply to all institutions, which detain any person under the age of 18 years. These include institutions for health, welfare or juvenile justice. The Guidelines advocate the least possible use of deprivation of liberty and discourages detention in prisons and other closed institutions. Moreover, the Guidelines advise that children, when detained, should be kept separate from adults in order to protect them from negative influences. Rather, facilities must promote health of juveniles and instill in them self respect and a sense of responsibility to enable them to make a smooth return to society. Access to parents during the period of detention is essential.
2.5. UN Guidelines for the Prevention of Juvenile Delinquency (Hie Riyadh Guidelines)1990
The Riyadh Guidelines emphases on the need for integrated and comprehensive plans for preventing crimes by children and young people. They advocate for formal mechanisms of crime control as a last resort. The Guidelines also underline the need for having due regard to the human rights and fundamental freedoms of children, particularly of those who are at 'social risk', such as children who are homeless, destitute, abused and so on. Accordingly, laws and procedures should promote, protect and uphold children's rights. The Guidelines further recommend that children should be encouraged to participate in policy formulation and implementation of prevention programmers as active and equal partners.
An examination of the international standards on the administration c: juvenile justice reveals two broad principles that are of particular significance to children in conflict with the law. Firstly, that the well being of children who come in conflict with the law must be ensured and secondly, the children who come in conflict with the law must be treated in a manner commensurate to their circumstances and nature of the offence. In other words, the rights of children in conflict with the law must be protected in ways that will facilitate their reintegration into the; societies and assumption of responsibilities therein. Therefore, it is essential to weigh the considerations adequately before committing children to formal institutions. In this context, diversion from formal legal procedures is always an acceptable alternative.
Endorsement of international standards, however, does not automatically guarantee their practical enforcement in domestic context of states-While international standards are meant to apply objectively, they essentially lack binding force. Therefore, while international Conventions may engender certain responsibilities for ratifying states, they carry no formal obligations in terms of practical implementation. In the circumstances, it is crucial to develop enabling mechanisms within the domestic legal system for utilization of international standards in realistic ways.
Chapter Three
Administration of Juvenile Justice in Bangladesh
3. Administration of Juvenile Justice in Bangladesh
The legal provisions relating to the administration of juvenile justice in Bangladesh have their roots in colonial laws. The Bengal Code and Prisons Act of 1S94 required separate trials for children and adults. Guidelines for reformation were contained in the Reformatory Schools Act 1897. The Code of Criminal Procedure of 1898 provides for the trial of children in juvenile courts, which was also later recommended by The Bengal Children's Act 1922. These various laws and provisions relating to custody, protection, trial and treatment of children were eventually consolidated to produce The Children Act 1974, to be read together with The Children Rules '1976, a mechanism conceived to protect the child's best interest during all kinds of legal processes.
The Children Act 1974 contains both procedural as well as substantive components. The procedural component, supplemented by The Code of Criminal Procedure 1898, sets out special procedures for juvenile courts and for committing children to the protection and care of state facilities. The substantive part, on the other hand, describes offences done to children and prescribes penalties for them.
The Children Act 1974 lays down protections for children in conflict with the law as well as those who are at social risks. The Act requires that Courts must have regard to the age and character of the child and other related factors before passing any order. It provides for separate juvenile courts and forbids the joint trial of child offenders with adults, even where the offence has been committed jointly. The Act also lays down measures for the care and protection of destitute and neglected children including children whose parents /guardians are either alcoholic or who habitually neglect, abuse or ill-treat children by engaging them in begging or other purposes.
3.1. Delineating the Age of Criminal Responsibility
There is often no uniform standard regarding the age at which a person is necessarily considered a child. This is primarily because the age premise is likely to vary across cultures, values and social systems. Article I of The Convention on the Rights of the Child denotes that a child is a person under the age of 18 years unless, under the law applicable to the child, majority is attained earlier. In other words, the Convention permits member states to set the age of majority in conformity with national laws[12]. This creates problems when, as is the case in Bangladesh, states have domestic legislation’s that define a child varyingly to suit specific contexts.
Having said that, it is difficult to find a clear-cut definition of a child in international standards as well. Whereas The Convention on the Rights of the Child regards all persons under the age of 18 years as children, none of the Rules and Guidelines relating to administration of juvenile justice., i.e., The Beijing Rules, the UN Rules for the Protection of Juveniles Deprived of their Liberty or The Riyadh Guidelines (as discussed later) contains any explicit indication as to who is a child. Rather, the Guidelines often use the terms 'child' and "young person' in tandem and apply the term "juvenile' to signify the form of justice system or the type of delinquency[13]. It appears therefore, that in the context of juvenile justice "it is the manner in which a child is treated for an offence which dictates whether a child is also a juvenile'[14].
Just as the age of a child is a controversial issue, the age of criminal responsibility, though seemingly straightforward and elementary as a concept, presents concrete problems in the administration of juvenile justice. While there is no distinct international standard on the subject, the CRC and the Beijing Rules enjoin State Parties to establish a minimum age below which children will be presumed as not having the capacity to infringe the penal law. In so doing, the beginning of the age should not be set too low, having due regard to the child s emotional, mental and intellectual maturity.
The penal law in Bangladesh reflects these considerations to a certain extent. The Penal Code of I860, which sets the age of criminal responsibility states that nothing is an offence, which is done by person under the age of 9 years (Section 82) and that full criminal responsibility commences only after the age of 12 years[15]. Section 83 of The Penal Code provide that an act of a child above 9 years and below 12 years, who has not attained sufficient maturity of understanding to judge the nature and the consequences of his conduct, is no offence. It follows therefore, those children under 9 years lacks the capacity for crime and incur liability after the age of 12 years; in between these two ages, criminal responsibility depends on the state of mind. It is to be noted that apart from The Penal Code, immunity of children below 9 years of age from criminal responsibility also extends to offences under any other special or local law of Bangladesh.
The Children Act 1974 which is the principal law relating to the administration of juvenile justice states that a child means a person under the age of 16 years, and a youthful offender means a child who has been found to have committed an offence[16]. When used with reference to a child sent to a certified home or committed by Court to the custody of a relative or other fit person means that child during the whole period of his detention notwithstanding that he may have attained the age of 16 years during this period[17]. In other words, a child who is below 16 years at the time of his committal will still be considered a child until the end of his detention period even if he reaches the age of 16 years during this period.
Unless the age of a child is ascertained properly there is every possibility of misapplication of laws and missed mini strait on of justice. The virtual absence of birth registration in Bangladesh raises serious difficulties in computing the correct age of a child in Bangladesh. This problem is of particular significance where children are brought before the courts and the ma gastritis have to rely on information furnished by the police who, in the majority of cases, misrepresent the age of the apprehended child. Although there are provisions in the law that requires a medical examination to ascertain the age of the child this is hardly conducted in routine time. Consequently, the child remains in custody like an adult until the conclusion of the medical verification[18].
3.2. Setting the Law into Motion: Procedural Aspects
Although The Children Act 1974 and The Children Rules 1976 are premised on the best interests of children who come in conflict with the law and who are destitute, their enforcement in practical terms is rather ineffective and often detrimental the children. Children traverse through different stages in the criminal justice system from the moment they come into contact with the law. This section attempts to examine the procedural aspects of the juvenile justice system and explore the implications they have for children who come under its jurisdiction.
Negligence of authorities hinders the very purpose of juvenile justice system in Bangladesh
4.1. Problem of determining criminal responsibility
As per section 82 of the penal code, the age of criminal responsibility in Bangladesh is above seven years of age. But the Children Act defines a child as a person under the age of 16 years of age. Section 52 of the Act provides that, where a child is convicted of an offence punishable with death, transportation or imprisonment, the Court may, if it considers expedient so to deal with the child, order, him to be committed to certified institute for detention for period which shall be not less than two and not more than ten years, but not in any case extending beyond the time when the child will attain the age of eighteen years. Penal Code and the Children Act, 1974 are contradictory. The age of criminal responsibility is not clear from the above mentioned laws. The minimum age of criminal responsibility requires clarity.
Assuming above seven years as the age of criminal responsibility in Bangladesh the government functionaries are dispensing their activities. When any child of above seven years commits any punishable offence then they are arrested by the police. The police do not consider street children, child prostitute or delinquent juvenile as children and are treated them like adult offenders.
4.2. Arrest, bail, detention and discharge
Where a person apparently under the age of sixteen years is arrested on a charge of non-bailable offence and cannot be brought forthwith before a court, the officer-in-Charge of the police station to which such person is brought may release him on bail, if sufficient security is forthcoming, but shall not do so where the release of the person shall bring him into association with reputed criminal or expose him to moral danger or where his release would defeat the ends of justice[19].Where such a person is not released under section 48, the officer-in-charge of the police station shall cause him to be detained in a
(i) remand home or
(ii) a place of safety until he can be brought before the court. A court, on remanding for a trial a child who is not released on bail, shall order him to be detained in (i) a remand home or (ii) a place of safety. [Section 49, the Children Act]
Immediately after the arrest of a child, the officer-in-charge shall inform to the Probation Officer of such arrest to enable the said probation officer to proceed forthwith in the matter of the juvenile. No child shall be charged with, or tried for, any offence together with an adult. Police officer has to submit separate charge sheet and concerned magistrate has to conduct separate trial when a juvenile has been charged with any offence[20].
No child shall be sentenced to death, transportation or imprisonment. Provided that when a child is found to have committed an offence of so serious a nature that the court is of opinion that no punishment, which under the provisions of this Act it is authorized to inflict, is sufficient or when the court is satisfied that the child is of so unruly or of so depraved character that he cannot be committed to a certified institute and that none of the other methods in which the case may legally be dealt with suitable, the court may sentence the child to imprisonment or order him to be detained in such place and on such conditions as it thinks fit.
4.3. Alternative measures
A court may, if it thinks fit, instead of directing any youthful offender to be detained in a certified institute under section 52 order him to be (a) discharged after due admonition, or (b) released on probation of good conduct and committed to the care of his parent or guardian or other adult relative or other fit person on such parent, guardian, relative or person executing a bond, with or without sureties, as the court may require, to be responsible for the good behaviour of the youthful offender for any period not exceeding three years and the court may also order that the youthful offender be placed under the supervision of a Probation Officer[21]. If it appears to the court on receiving a report from the probation officer or otherwise that the youthful offender has not been of good behaviour during the period of his probation, it may, after making such inquiry as it deems fit, order the youthful offender to be detained in a certified institute for the unexpired period of probation.
4.4. Juvenile prisoners' plight
On September 16, 2003 eight inmates were reportedly attempted to commit suicide by way of causing dent and mutilating their own body using sharp blades and broken bottle at National Juvenile Correction Centre in Tongi, Dhaka. Juvenile delinquents have alleged that the centre authorities do not provide enough food. They hardly get opportunity to play as well as watch TV. Furthermore, in most time their hands are fastened by handcuffs. When they raise their voice against irregularities of the authority, they have to sustain severe physical torture. Finally, the torture and denial of total recreation persuaded them to attempt to commit suicide. On the same day, we learnt from a press release of Bangladesh Legal Aid and Services Trust (BLAST) published in The Daily Star that a boy named Jamal (14) continues to languish in the Juvenile Correction Centre at Tongi even though the court acquitted him of charge about 10 months ago. These two incidents are clear evidences of how much the authority are negligent about child rights[22].
In fact, juveniles have been treated so badly that they aren't reformed or corrected rather they transform into recidivist. It should be mentioned that the prime objective of juvenile justice system is to protect the children from recidivism and to ensure their rehabilitation as well as to smooth reintegration with society. When a juvenile opt to commit suicide in sheer depression, we can easily say that the end of juvenile justice system is totally frustrated from all respects.
In this context, we can reiterate that we have huge good laws such as the Probation of Offenders Ordinance'1960 and The Children Act, 1974, but we have seen hardly implementation of those laws. In lieu of sending into correction centre, we can set free juvenile in the society on condition of good behaviour under the Probation Order. Of course, we may get some results from it as it is proved by statistics.
4.5. Forgive the child
Being born within the four walls of jail Nasrin, a five year child of Parvin, an accused of Shajnin murder case, does not have any idea of living in an open and a free environment. That is why the little innocent girl asked its mother to go back in the jail while its mother standing before the Judge in the court. The most unfortunate news for that unlucky child is that its mother was rewarded the death sentence. Needless to say no one should raise question regarding the judgement. But the conscious citizens definitely can raise question of the life of a five year child whose mother is to die within very short time or as soon as all proceedings of judgement is completed. It is not known whether the judge considered the maternity of said Parvin who gave birth a female child after being imprisonment. In the history of near past of the judiciary this case is a unique where a mother with having a minor child given death penalty.
Here the judgement of Indian Prime Minister Rajiv Gandi murder case can be mentioned where a woman accused having a minor child was sentenced to death. Sonia Gandi, wife of Rajiv Gandi, forgave the accused woman who was unfortunately a mother of a child, in thinking the future life of that child. And it's definitely a good instance. With this I am not appealing to Mr & Mrs Latifur Rahman who lost their beloved daughter to forgive the said woman. I am just requesting them to think for a while about the instance made by Sonia Gandi and side by side that innocent girl to whom her mother is also beloved one.
It is needed to say that before final judgement the question of the life of said minor girl (whose father left her mother) must be settled.
Chapter Five
Different Measures
5.1. Arrest and Remand
Generally, a child may be arrested for breaching the penal laws of the land or under suspicion of committing an offence. However, there are other laws, such as The Bengal Vagrancy Act 1 943, Section 54 of The Criminal Procedure Code, The Special Powers Act 1974, The Arms Act 1878, that are often utilized to arrest children. Children also fall prey to police raids in the wake of political unrest or criminal hunts.
Policemen on the beat identify vagrant children and pick them up from the streets, railway and bus stations, shopping centers, parks and so on. . The recognition of status offences, as where a child runs away from home! or is deemed disobedient or destitute, also presents a paradox The practice of taking vagrant and street children into custody essentially criminalizes acts which are otherwise not offences in the strict sense of the term.
Consequently, a neglected and homeless child becomes the victim of a legal system, which, under the best of conditions, tends to be unjust. Although the right to be heard is fundamental in the human: rights discourse the child arrested under The Vagrancy Act 1943 is devoid of this right, either directly or through appropriate representation in judicial proceedings. The child's right to privacy is virtually non-existent; during the process. The right not to be deprived of liberty and only to be detained in conformity with law is also not ensured under The Vagrancy Act 1943. This is evident from the fact that children arrested under this Act are often detained for unspecified periods in prisons. Thus, while The Vagrancy Act 1943 concentrates on maintaining public order, it overlooks children's interests by ignoring their special needs.
Section 54 of The Criminal Procedure Code 1896 is yet another device that i serves to oppress, amongst others, children. The police are empowered under this section to arrest any person on mere suspicion without a ' warrant of arrest. It is common for law enforcing agencies to indiscriminately arrest and incarcerate street children under the cover of this law on the slightest of pretexts. Apart from Section 54 of The Criminal Procedure Code, children's rights and freedom are also compromised by The Special Powers Act 1974. Which empowers the police to arrest people on suspicion of anti-state activities? The Special Powers Act 1974 is frequently used to pick up children who, either happen to be loitering on the streets, or are engaged in political agitation by political parties during political demonstrations and hurtles (strikes). Street children in such situations, become victims of circumstances and have their rights seriously jeopardized. Children arrested under The Arms Act 1873 for possessing and carrying illegal arms is another instance of victimization of children by adults and an insensitive legal system.
When it comes to arresting girls the scenario is even more perplexing. Girl children reportedly make up a much less percentage of juvenile of fenders. It is not be so much that girls breach the law less but more, that, the specific! Ties of their con tact with the law are not adequately addressed. Classic examples are prostitution and rape where it is more common for girls to be arrested rather than the perpetrators. In other words, girls come into conflict with the law more as victims of prostitution and sexual offences, even if they have actually breached other penal Saws, Since there are no separate provisions for housing girl offenders, they are customarily branded as prostitutes and victims of rape in order to acquire for them a place in shelter homes.
Normally, a child may be arrested without a warrant for a cognizable offence9 under The Criminal Procedure Code 1896 but s/he cannot be detained in custody for more than 24 hours. Moreover, if a child under 16 has been charged with a non-bilabial offence, the officer in charge of the police station may release her/him on bail and arrange for the child to be placed in a remand home or a safe place until s/he is brought before the court[23].
There is virtually no separation between inmates who are here for correction and those who live here in remand. The resultant is a free mixing between boys with perpetrating and non-perpetrating nature. The consequence is pernicious as children with less or occasional criminal are compelled to mix with the more hardened types." The current situation raises serious questions about the places of safety ordained by law.
Immediately after the arrest of a child, it shall be the duty of the police officer affecting the arrest to inform the Probation Officer of such arrest in order to enable the Probation Officer to proceed to obtain necessary information about the child's family and other material circumstances likely to assist the Court in making its order[24]. At the same time the officer in charge of the police station to which the arrested child is brought shall inform the parents/guardian of the arrest, if found, and specifying the date, direct them to attend the court before which the child will appear[25].
The situation on the ground is, however, quite different. Charge sheets are virtually non-existent and children arrested and detained are not shown the grounds for arrest nor are their parents duly informed.
5.2. Trial
The Children Act 1974 provides that child offenders may only be tried by juvenile courts or other courts duly empowered[26]. Under the Children Act 1974 the powers conferred on a juvenile court can be exercised by:
01. The High Court Division of the Supreme Court;
02. A Court of Session;
03. A court of an Additional Sessions Judge and of an Assistant Sessions Judge;
It is evident from the above that although the establishment of separate courts for juveniles is prescribed by law, the above-mentioned courts are permitted by law to try child offenders provided that they apply the same rules and procedures as followed by a juvenile court. These courts sit as juvenile courts only when the offender is under 16 years of age. When a Juvenile Court has been set up for any local area such court shall try all cases in which a child is charged with the commission of an offence[28]. The concurrent jurisdiction of the Magistrate and Sessions Court is to a large extent responsible for the failure to establish an independent juvenile justice system. The inability of providing a separate trial system for juveniles stems from the criminal justice system that is largely traditional in its approach and jurisdiction that is limited in terms of subject matter[29].Although the law requires the establishment of separate courts for juvenile offenders to date there are only two juvenile courts in Bangladesh, one in Tongi and the other in Jess ore. Moreover, despite existing concessions in the exercise of jurisdiction by other courts it is found that very few of them in fact sit as juvenile courts. Most Magistrates, being unaware of the procedures under The Children Act, 1974 choose instead to try children in accordance with The Code of Criminal Procedure. According to Section 7 of The Children Act 1974 and Rule 3 of The Children Rules 1976, the Juvenile Court should sit at least once a week or as often as may be necessary. Moreover, the Court should, as far as practicable, sit in a place separate from that where ordinary sittings of the Court are held. If need be a different date or time should be chosen for the court to sit. Where a child and adult are charged together, a separate trial must be conducted for the child[30].
Thus, it is provided in Section 3 of The Children Act that when a child is a co-accused with an adult in any offence and it appears to the Court that the case is fit for committal to the Court of Session, such Court shall, after separating the case in respect of the child from that of the adult, direct that the adult may be committed to the Court of Session alone. This measure is prescribed strictly in the best interests of the child. In practice, however, the child is often tried together with the adult in the same court without any regard for the law in this context or the child's right to privacy.
The Children Act 1974 also provides for confidentiality in respect of court proceedings against a juvenile offender. To this end Section 9 of The Children Act lays down that no person shall be present at any sitting of a Juvenile Court, except
Where the Court finds a child guilty of an offence punishable with death, transportation or imprisonment, it may, if it thinks so expedient, order him to be committed to a certified institute for detention. In such cases the period of detention shall not be less than two years and not more than 10 years, and in any case shall not extend beyond the time when the child will attain the age of 18 years[37].
However, during one of the visits to the Tongi Correctional Centre a 15-year old boy who was fined Tk. 10,000 and sentenced to 7 years detention. It is evident that there exists neither mechanism for specifying time periods for detention nor any guideline on the course of action once a detainee reaches 18 years[38]. In the absence of birth registration the possibility of children outstaying their time in certified institutes cannot be ruled out. According officials of Correctional Institutes children are sent off to the central jail to complete their unfinished sentences once they attain the age of 18 years. This presents a paradox—if these children are sent to jail then what is the purpose of correctional treatment.
The Court may also, instead of committing him to a certified institute, discharge young of fender after due admonition and advice. "Contrarily, the young offender may be released on probation for good behaviour for a period not exceeding three years. In this context, the child may be released into the care of his parent/guardian or any other fit person executing a bond, with or without surety, as the Court may require.
The Court may also order that the child may be placed under the supervision of a Probation Officer[39]. However, if it appears to the Court from reports of the Probation Officer that the youthful offender has not been behaving well during the probation period, it may, after due inquiries, order the young offender to be detained in a certified home for the remaining period of his probation[40].
5.4. Detention Measures
Children may be detained either for having been found guilty {as discussed above) or for reasons of safety.
Section 55 of The Children Act provides that any Probation Officer or police officer not below the rank of Assistant Sub-Inspector or any other person authorized by the Government for this purpose may take any child to a place of safety in respect of whom there is reason to believe that An offence has been or is likely to be committed. A child so taken to a place of safety or a child seeking such refuge may be detained until he can appear before the Court. However, this detention shall not, in any event, exceed 24 hours exclusively of the time required to commute from the detention centre to the Court.
According to Section 29(j) of The Children Act "place of safety' includes a remand home or any other suitable place or institution, the occupier or manager of which is willing to receive the child temporarily. Where such suitable places are not available, the Act permits only male children to be kept in police stations or in custody separate from adult offenders. The Act is silent about alternative arrangements for girls. A remand home is a place that is used for the purposes of detention, diagnosis and classification of children committed to custody by any Court or police[41].
If the Court is convinced that there is reason to believe that an offence has or is likely to be committed against a child who is brought before it, it may make an order for the care and detention of the child until a reasonable time has elapsed for proceedings to be initiated against the person for having committed the offence or such other lawful action as may be expedient[42].
In case of children who are victims of an offence, the Court trying the perpetrator shall direct such child to be produced before the Juvenile Court for appropriate orders[43]. Upon appearance before it the Court may exercise two options:
Commit the child to a certified institute or an approved home until he attains the age of 18. In exceptional cases the period may be shorter, in which case the reason for such shorter period is to be recorded in writing.
Commit the child to the care of a relative or other fit person on such bond, with or without surety, as the Court may require provided that such relative or person is willing and capable of exercising proper care, control and protection subject to the conditions the Court may impose in the interests of the child for a period not exceeding three years[44].
Where a child is committed to the care of a relative or any other fit person, the Court may, if it thinks fit, withdraw the child from such care any time before the expiry of the period for which he was so committed. In such cases the Court may commit the child to a certified institute or an approved home for the remainder of the time[45]. In this context it is difficult to understand why a victimized child should be kept in remand.
Under Rule 12 of The Children Rules a youthful offender or child may be permitted by license to live with a trustworthy or respectable person provided that—–
He shall obey the person to whom he is licensed to live;
He shall stay away from bad company and refrain from taking intoxicants;
He shall not leave the place of his residence without permission of the person under whose care he has been placed;
However, if the child has a parent or guardian, who is fit and capable and in the opinion of the Court, capable of exercising proper care, control and protection, the Court may allow the child to remain in his custody or commit the child to his care on bond, with or without surety as the Court may require, subject to the conditions the Court may impose in the interests of the child[46].
A child committed to a parent, guardian or any other fit person may, in addition, be placed under supervision of a Probation Officer[47]. Similar provisions are available for children who are homeless, destitute, neglected and ill-treated by parents/guardians, in bad company and involved in immoral activities[48].
The Children Act 1974 makes special provisions for uncontrollable children. Section 33 of the Act provides that where the parent /guardian of a child complains to a Juvenile Court or a Court duly empowered that he is unable to control the child, the Court may, if satisfied upon inquiry, order the child to be committed to a certified institute or an approved home for a period not exceeding three years. However, if the Court is of the opinion that home conditions are satisfactory and all that the child requires is careful supervision, it may, instead of committing the child to a certified institute or an approved home, place him under the supervision of a Probation Officer for a period not exceeding three years.
It is found that guardians often send addicted children to correctional institutes labeling them as uncontrollable' as seen in the National Correctional Institute at Jess ore. This is possible because although it is required by law to conduct a medical examination of children on admission this is not done in practice. Consequently, one may question the validity of labeling children as uncontrollable' without first assessing them in practical terms. Mechanisms for such assessment and allocation of detention periods in the circumstances are absent.
The Probation Officer shall operate the supervision and guidance of the-Juvenile Court. The Probation Officer shall, in the exercise of his duty under The Children Act, ——-
Visit or receive visits from the child at regular intervals;
Ensure that that the relative or any other person to whose care such child is committed observes the conditions of the bond;
Report to the Court about the behaviour of the child;
Advice, assist and befriend the child and where necessary, try to find some kind of employment for him;
Perform any other duty that may be prescribed[49].
Thus the overall functions of the Probation Officer include maintaining a close liaison with the child and the family/guardian in whose care to which he has been committed, issuing cautionary warnings in case of breach of conditions, seeing that the child is free from unsavory or corrupt influence and so on[50]. An ideal Probation Officer essentially adopts a combination of material aid techniques, executive techniques, guidance techniques and counseling techniques in discharging his responsibilities.
The government may, at any time, order a child or youthful offender to be discharged from a certified institute or approved home, either absolutely or on such conditions as the government may specify[51]. While it is not clear what is meant by "any time' there is also no mention of specific procedures for releasing children. Moreover, no specific government agency has been earmarked for this purpose. Similar confusion arises when Section 68 of The Children Act 1974 provides that the government and the Chief Inspector may order any child or youthful offender to be transferred from one certified institute or approved home to another. The circumstances and the procedure of such transfer are not discussed.
5.5. Certified Institutes
The Children Act 1974 and The Children Rules 1978 provide concrete guidelines for the setting up and running of certified institutes or approved homes.
5.6. Establishment and Certification
Section 19 of The Children Act 1974 empowers the Government to establish and maintain training institutes for the reception of children and youthful offenders. In this context, the Government may prescribe conditions subject to which any training institute, industrial school, and educational institution or approved home shall be so certified or recognized[52]. No such place shall be certified or recognized unless the Government is satisfied that——
The object of such institute, school, institution or home is the welfare of the children;
There is suitable accommodation for establishing dormitories and conducting training programmers for children and youthful offenders;
The management of such institute, school, institution or home is efficient and has adequate
It has adequate number of trained personnel for running its programmes[53];
Chapter Six
Guidelines for their Treatment
6.1. Control and Management
The control and management of certified institutes rests on the Superintendent and a Committee of Visitors who are appointed by the Government. Every institute, school or institution certified under thus Act shall be under the management of its governing body[54].
The situation is compounded by parents/guardians who prefer to abdicate their responsibilities by handing over their children to correctional institutes for being wayward and uncontrollable. This is indicative from the preponderance of guardian-referred cases than police referred ones in correctional institutes. Although one may deduce from this scenario that Bangladesh has the trappings of a welfare state this is certainly not the case in actuality. The family is a strong medium through which children develop their attitudes and conduct. It is necessary for families to be mindful of their responsibilities if children's confidence in them as care givers is to sustain. In the circumstances, efforts must be made to strengthen the homes and develop healthy relationships between caregivers and the children.
It would be useful to remember that the welfare model of juvenile justice should in no way be used to subvert the inherent rights of children. Therefore, existing laws need to be applied in a sensitive manner in order to avoid unfair biases against children who come in contact with the criminal justice system. A scrutiny of juvenile justice laws in both the international and national contexts reveals that recourse to deprivation of liberty of children as a sentence should be the last resort and for the shortest possible time. This stems from the understanding that deprivation of liberty must not be imposed unless the judge or the magistrate is convinced of the objectives of theme a sure. In other words, this imperative to assess whether such deprivation will necessarily have a positive impact on the child: reform and development. Therefore, in every case, the judge or the magistrate has to weigh all circumstances of the child before committing him/ her to imprisonment.
Under the juvenile justice laws in Bangladesh the Court has the power to discharge youthful offenders or commit them to "suitable' custody. Therefore, on the basis of adjudication young offenders may either be sent to some correctional institution or placed under the supervision to a Probation Officer, the latter being an attempt at a non-institutional approach. In practice the absence of adequate probationary services results in increasing institutionalization of children who come into contact with the law. The tact that the certified institutions operate both as centers for remand and correction presents a paradox. There is an urgent need to separate these two streams of services by developing necessary capacity and infrastructure. The other serious lacking of the system is the absence of correctional facilities for girls. Consequently, when girls come into contact with the law they are either dispatched to jails or to some shelter home that accommodates prostitutes and rape victims. There are reportedly a good number of derelict and unutilized structures across the country that the Government may renovate and use for these purposes.
While existing legal standards generally discourage institutionalization, minimum parameters for the care of institutionalized juveniles do exist to offset the deleterious effects of detention and to foster the reintegration of juveniles into society. Nevertheless, although institutions for juveniles are supposed to operate as care, education and rehabilitation centres rather than penitentiaries, treatment in institutions gives rise to serious concern. This is evident from the gaps between the views of children who have been to the correctional institution and those of the institutional authorities. While children generally voice their dissatisfaction at the way they are treated in the certified institutes or approved homes, Social Welfare authorities take a more favorable view about the existing scenario in correctional homes. The gaps between these views speak volumes.
It is admittedly difficult to reconcile the actual scenario m the administration of juvenile justice with policy recommendations, particularly when there are differing ideologies supporting the welfare model on the one hand, and the justice model on the other. In the former instance, deviance is viewed as a manifestation of intense maladjustment resulting from an unfavorable environment; in the circumstances, treatment of the child is considered a proper intervention where the child's welfare needs to be pre-eminent. In the latter, deviance is viewed as a matter of choice; therefore, sanctions and controls serve as legitimate responses to validate and sustain the norms endorsed by society. Dissent surrounds both the above-mentioned models, it has been argued that need for treatment has sometimes been used a justification for very considerable restrictions on the liberty of the child which seem out of proportion to the seriousness, of the offence. Equally however, it is evident that an exclusively 'crime control' or 'justice' approach, in which serious crimes result in strong punishments, ignores the extensive evidence that severe and persistent delinquency is often accompanied by widespread personal difficulties and disturbance which give rise to distress and social impairment for the individual as well as 'trouble' for the community[75].
Thus, in the absence of foster homes, problem children are usually institutionalized. Institutions in Bangladesh hardly have the home-like quality that is essential for rehabilitation of young offenders. Although it is difficult to measure the impact of institutionalization with any certainty, as children generally go through different ordeals before being actually sent to institutions, a safe assertion would be that more ought to be achieved through institutionalization in the given circumstances.
Treatment of children in welfare institutions should be toned down to the extent where children do not feel over-con trolled and over-protected. The general feeling among children is that 'they are more likely to be responded to as a problem than to have their problems responded to[76]. It is obvious that concrete interventions that would raise the general level of the psycho-social development of children are yet to materialize.
Institutions should avoid harsh treatment, corporal punishment and excessively stringent discipline of child inmates. While the handling of a child through formal methods may be justifiable up to a certain extent institutional measures beyond a point is likely to become counterproductive for children. Thus, there is a need for diversion from institutional mechanisms into more non-institutional alternatives. The Government must create conditions and opportunities conducive to child development and mobilize human and material resources in that regard. Improved social services, specialized assistance, child-centered initiatives and committed personnel with requisite skills, knowledge and experience are fundamental to a sound juvenile justice system.
CHAPTER-7
Different Views and Approaches
7.1. Legalistic Views
Until very recently juvenile delinquency was not treated as a separate problem and juvenile offenders met with the same type of punishment as other types of criminals. The only difference lay in the fact that magistrates look into account the age factor before prosecution. The idea of a special court or the maintenance of a separate code of law for the prosecution of criminals who are under aged is of very recent origin. The difference between juvenile delinquency and ordinary criminals is mostly based on the assumption that with increasing age one is bound to accept newer responsibility in the society as well as in individual.
The legalistic view of juvenile delinquency, therefore, stresses the rigid application of law and of legal machines to juvenile offenders. There are many countries even to-day where there is a serious lack of special juvenile courts and agencies to deal win juvenile cases. But changing attitude towards child care and welfare has contributed much to creation of a broader scientific view regarding juvenile delinquency.
7.2. Individualistic Approach
The case study method as applied to the analysis of delinquent’s ii not new. When William Healy published the Individual Delinquent (1915), after five years of the study of individual cases, his approach was individuate, more specifically psychological, for he regarded all conduct as directly an expression of mental life. The individual was regarded as the dynamic centre of the problem and in dealing with delinquents, psychological methods were used.
The case studies involved a consideration of the facts of .hereditary developmental and physical conditions, stimulants and narcotics, environmental influences, mental habits, abnormal sexualize mental abnormalities and defects or dullness, psychic constitutional inferiority, mental aberrations, and various other mental peculiarities.
While Healy was making these early studies he understood the importance of getting data regarding the family history, as well as the developmental history by the individual. The complete case history of a delinquent or of a problem child, including the child's own story is important: from the standpoint of effective treatment Considerable attention has been given to the analysis of problem children whose maladjustment’s have; seriously influence their conduct.
7.3. The Group Approach
The group approach is a procedure of understanding juvenile misbehavior from the study of different types of cases. It is generally assumed by the students of human behaviour that attitudes and habits underlying the behaviour of the children are framed in the course of their experience in the process of interaction in the successive situations in their life. The process, can therefore, be understood by an analysis of the response of the delinquent child in all these different situations. It must also take cognizance of the physical characteristics of the individuals in question, which to a great extent determines the reflexes, capacities and undefined impulses. The social world is therefore, the reconsideration of the sociologists. The study of the families, the play groups, the clubs or neighborhood and associations are, therefore, of vital importance for this purpose.
7.4. The Cultural Approach
Violation of law is in essence nothing but the expression of the offenders' ethics in a way different from the accepted mode of life in a particular society at a particular time. The Culture approach as given by Sell in, Sutherland and Young points to this conflict and contradiction in the minds of the offenders which again is the product of social settings. Culture hybridism, confusion of behaviour norms and weakening of the agencies of social control are necessarily related to such situations. An extensive violation indicates the increasing weakness of the agencies of control and the inner contradictions of cultural life.
7.5. The Ecological Approach
Criminal acts are committed in different settings and at different periods. The ecological approach involves a study of spatial and temporal relations with special reference to physical settings. It proceeds with an analysis of the distribution of delinquent behaviour in different areas at a fixed period of time and goes on to the analysis of the correlates and variables such as population density, housing conditions, physical environment and seasonal effects. We can make good use of this method in the study of juvenile delinquency and crime in our country where every district has its distinctive features and geography.
CAHPTER-8
The Extent and Distribution of Delinquency in Bangladesh
From analysis of the distribution of criminal activities in different years we can conceive of the significance of different factors working to contribute to the change in our social life. Juvenile delinquency as indicated in the table is found 10 be on the increase. From the data, it is demonstrated that during the last decade there had been a considerable increase in juvenile delinquency in Bangladesh[77].
Table-1(A): Number of Juvenile Delinquents Arrested in Pre-independent Bangladesh
Year
Number ofJuvenile Delinquents
1948
1954
1958
1959
1960
1961
1962
2,513
5,336
6,142
8,042
4,686
3,085
2,443
The figures in Table I (A) show an increasing trend of delinquency from 1948 to 1949 but from 1960 onwards we see a gradual decrease of the same. The awareness of the problem of juvenile delinquency is relatively recent and the number of researches is also limited. But recently the problem is increasingly drawing the attention of the conscious section of the masses of our country. As an aftermath of the First World War and as a result of the impetus received in the field of urbanization and industrialization, coupled with their after effect and also growing influence of western culture, adverse social conditions have aggravated delinquency trends amongst the juvenile population of our society[78]
Table-I (B): Number of Juvenile Delinquents (by sex) arrested in independent Bangladesh
Yea
Number of Juvenile Delinquents
Total
Mate
Female
1984
1985
1986
2950
54o9
35! 7
539
651
466
3489
6120
39S5
Independent Bangladesh, the incidence of juvenile offence has considerably increased with the increase of population as well as with the socio-cultural and economic changes taking place in the context of industrialization, urbanization and global mass media influences.
From our field study in the Murapara Borstal School in November, 1963 we gathered the following information about the nature of delinquency.
Table 2: Distribution of Offenders by the Nature (Principal) of Offence in Percentage
Nurture offences
No. of Offenders (in %)
Stealing
59.0
Murder
8.0
Pick-pocketing
26.0
Fraudulence
7.0
Total
100.0
The percentage figures in Table 2 indicate much to the fact that delinquent acts in erstwhile East Pakistan (now Bangladesh) are generally associated with stealing, pick-pocketing. 59% of the delinquents indulged in ruling while 26% committed pick pocketing. In our society age plays an impotent part in determining the nature of offences committed by the delinquents[79].
8.1. Introduction to the Offenders: Age and Sex)
Age and sex play important role in the causation of juvenile delinquency. It is interesting to know from Table 3 that there is slight concentration of cases of juvenile offenders in a particular age group (13-18 age groups.
Table-3: Nature of Offences in Relation to the Age Distribution of the Offenders in Percentage
Nature of Offences
Age Distribution
Total
7-12
13-18
19-24
25- and
above
Stealing 8.0
38.0
12.0
l. C 59.0
Murder 0.0
4.0
4.0
0.0 8.0
Pickpocketins 6.0
18.0
1.0
1 :• 26.0
Fraudulence 0.0
6.0
1.0
0,0 7.0
Total 14.0
66.0
18.0
2.0 100.0
From Table 3 it is indicated that the maximum number of cases of stealing and pickpocketing are reported between ages 13 to 18.
From Table 4 we find the concentration of the juvenile offenders at a particular age group (13-18).
Table-4: Age distribution of the Offenders in Percentage
Age Group
Percentage of Offenders
7-12
13-18
19-24
25 and above
14.0
66.0
18.0
02.0
From the figures in Table 4 it is indicated that the highest concentration of delinquent offenders is found in the age group 13-18, where 66 percent of the cases are reported[80].
8.2. Religious Affiliation
The religious factor involves many semantic as well as sociological problems. Religion cannot be divorced from the social fabric of which it is a part. In any changing society, religion will mean differently to traditional and modernists that is those who stress ritual as against those who stress ethics. In any event there is no necessary correlation between religion and delinquency. There are varying degrees of religious commitment among delinquent and non-delinquent population, and the delinquents who were interviewed reflect varying outdoes and religious identifications. Of the 100 delinquents in the sample, 92 are Muslims, 6 are Hindus and 2 are Christian.
Table-5: Religion of the Offenders
percentage of
Cases
Muslims
Hindus
Christians
Total
92
6
2
100
8.3. Educational Attainment
In the survey of 100 delinquents 40% were found illiterate while 40% received formal education (Table 6)
Table-6: Education of the Offenders
Level of Education
No. of Cases
Class- 1
18
Class-II – III
21
Class-IV – V
13
Class-VI – VII
02
Class- VIII – IX
04
Religious
02
Illiterate
40
Total:
100
8.4. Ecological Distribution of Delinquency
One of the important characteristics of delinquency is its ecological distribution. This manifests itself mainly in the differences between rural and urban rates and the concentration and scatter in the various urban areas. Niemeyer and Martin says, "by human or social phenomenon specially in relation to the physical sitting.3 The real procedure is to plot the distribution of cases of a city or a country on a map to discover the sections in which concentration has occurred and also the areas in which few cases are found.
8.5. Rural Urban Residence
Juvenile delinquency is largely an urban phenomenon. But it is not true that delinquency is totally absent in the rural setting. Of course, the maximum delinquent activities occur in large urban centres.
Table-7: Distribution of the Offenders by residential characteristics characteristics
Characteristics
No. of Cases
Offender ever lived in town/city
52.0
Offenders family migrated to town/city
21.0
Offenders father/mother migrated to town/city
27.0
Total
100.0
8.6. Guardian's Occupation
Rural background of the offenders has a revealing feature in delinquency trend (Table 8). 47 percent of the fathers of the respondents are found to be cultivators while 15 percent are businessmen.
Table-8: Occupations of Father or Legal Guardians of the Offenders
Occupation
Guardians in %
Cultivation
47
Barbra
1
Lawyer
1
Business
15
Engine driver
3
Teaching
1
Darwin
1
Fishing
2
Servant
2
Housewife
1
Mason
2
Tailor
3
Service
3
Saloon
5
Carpenter
1
Religious Profession
2
Conductor
1
Landowner
1
Clerk
1
Boatman
1
Compounded
1
Mechanist
3
Chowkider
4
Dyer
1
Total
100.0
Table –9: Income of Father/Legal Guardians of the Offenders (taka)
Income during ealier time of Pallistion
No. of cases in %
Below 25
02
25-50
18
51-100
29
101-200
31
201-350
10
351-500
05
501+
02
Unascertainable
03
Total
100
Table-10: Education of the Father/Legal Guardian of the Offender
Level of Education
No. of cases
Primary
57
Matricularion/SSC
08
Degree
01
Master Degree MA (BL)
01
Religious
05
Illiterate
18
Others
08
Unascertainable
02
Total
100
Causes of Juvenile Delinquency
Juvenile delinquency has become a global phenomenon these days. Despite intensive rehabilitative measures and special procedure for tackling the problem of juvenile delinquency, there is a growing tendency among youngsters to be arrogant, violent and disobedient to law with the result there has been considerable rise in the incidence of juvenile delinquency. The main causes for this unprecedented increase in juvenile delinquency are as follows:
The industrial development and economic growth has resulted into urbanization which in turn has given rise to new problems such as housing, slum dwelling, overcrowding, lack of parental control and family disintegration and so on. The high cost of living in urban areas makes it necessary even for women to take up outdoor jobs for supporting their family financially, with the result their children are left neglected at home without any parental control. Moreover, temptation for modern luxuries of life lures young people to resort to wrongful means to satisfy their wants. All these factors cumulatively lead to an enormous increase in juvenile delinquency in urban areas. It has rightly been commented that today "there is no crime but there are only criminals in the modern sense of penology". It is, therefore, desired that the society be protected from offenders by eliminating situations which are conducive to delinquency.
Disintegration of family system and laxity in parental control over children is yet other cause of increase in juvenile delinquency. The British Home Secretary Mr. Butler once said that the natural consequences of broken homes are lack of parental control, absence of security and want of love and affection towards children, which are contributing factors for juvenile delinquency, Unprecedented increase in divorce cases and matrimonial disputes is yet another cause for disrupting family solidarity. Today, man's hold over his family is declining fast. Undue discrimination among children or step-motherly treatment also has an adverse psychological effect on youngsters. Once a child feels neglected, he is bound to go astray and this furnishes a soothing ground for juvenile delinquency[81].
The children, therefore, need affection, protection and guidance at home and have to be handled very carefully Greater emphasis should be on preventing them from indulging into criminality rather than curing them after they have committed the offence[82]. The parents and other elderly members of the family must provide adequate opportunities for their youngsters to develop their personality. This is possible through proper education and training and child care.
The rapidly changing patterns in modern living also make it difficult for children and adolescents to adjust themselves to new ways of life. They are confronted with the problem of culture conflict and are unable to differentiate between right and wrong. This may derive them to commit crime.
Biological factors such as, early physiological maturity or low-intelligence, also account for delinquent behaviour among juveniles. The age of puberty among girls has gone down by three or four years on an average[83]. Today girls attain puberty at the age of twelve or thirteen while they still remain mentally incapable of conceiving about the realities of life. In result, they fall an easy prey to sex involvements for momentary pleasure without, however, realizing the seriousness of the consequences of their act. It is, therefore, desired that the parents should explain to their children, particularly the girls, the possible consequences of prohibited sex-indulgences which might serve a timely warning to them. Special care should be taken to ensure effective protection to girls against prostitution and child pornography[84].
Migration of deserted and destitute boys to slums brings them in contact with anti-social elements carrying on prostitution, smuggling of liquor or narcotic drugs and bootleggers[85]. Thus, they lend into the world of delinquency without knowing what they are doing is prohibited by law,
Poverty is yet another potential cause of juvenile delinquency. Failure of parents to provide necessities of life such as food and clothing etc. draws their children to delinquency in a quest for earning money by whatever means[86]. At times, even the parents connive at this for the sake of petty monetary gains.
Besides the aforesaid causes, illiteracy, child labour, squalor, etc., are also some of the contributing factors aggravating juvenile delinquency[87].
CHAPTER-10
Juvenile Justice in Different Country
10.1. Juvenile Justice in U.K.
While handling the problem of juvenile delinquency, the English criminal justice administrators have preferred to deal with it outside the framework of criminal law.
An industrial school was set up for homeless, destitute and delinquent children, A social activist, Miss Marry Carpenter did a pioneering work in this field and as a result of her persistent efforts legislation was enacted which received approval of House of Lords in 1847. She started a Ragged Industrial School in Bristol. Later, another Day Industrial School was started at Aberdeen[88].
In 1838, Parkhurst prison was set up for the treatment of juvenile offenders. Soon after, the British Parliament enacted the Summary Jurisdiction Act, 1879, which provided that a child below the age of seven (rise to eight by the statute subsequently) is incapable of committing a crime and, therefore, cannot be convicted.
Juvenile Courts were first established in England under the Children Act, 1908. These courts differed from ordinary courts inasmuch as they were less public, less formal, and less formidable.1 The prime duty of these courts was to afford proper care and protection to the child or young offender and take necessary steps for removing him from undesirable surroundings and ensure that proper arrangements were made for his education and training. In addition to criminal jurisdiction, the Children and Young Offenders Act, 1933, also conferred civil powers to juvenile court in certain important matters[89]. The Act provided that any child and young person. Who committed a crime, should be summarily tried by a juvenile court.
The trial of children and adolescents by a juvenile court could result into two consequences, namely –
He could either be allowed to return to his home on being discharged, fined or on an undertaking of attendance at the Attendance Centre, Doubts have always been expressed about the justification for imposition of fine in cases of juveniles since it is the parents and not the delinquent child who are penalized under this maid of punishment. There seems no justification in punishing the parents unless, of course, there is a failure to exercise due of are of the child on their part.
Another mode of treatment of young offender was to remove him from his home to a correctional institution or a Borstal.
10.2. Juvenile Justice in U.S.A.
The working of a Juvenile Court in USA is relatively wimple and more or less informal. As first, the police take custody of the juvenile offender. The police officer has the discretion either to keep the child in custody or to immediately release him, admonish him/her or to do both, and allow parents to take the custody of the child. Next, the police contact the juvenile court for notification if parents and the person notified by the Court assume responsibility of custody of the delinquent. The police also interrogate the offender and take his finger prints or photographs. These records provide important clues for tracing the juvenile.
The Court while trying the juvenile gives a hearing to probation officer who appraises it about the antecedents of the delinquent. The juvenile having been placed under probation officer's protective care, it is for the latter to find a suitable home, school or employment for the child. In case the child violates any of the conditions of probation, he is sent to a 'Certified School' or to Children Home by an order of the Court. The age limit for juvenile trial is seventeen years.
10.3. Juvenile Justice in India
Like any other country, India also seeks to tackle the problem of juvenile delinquency on the basis of three fundamental assumptions: –
Izaz Ahrnad v. State of Madhya Pradesh,
Reiterating its earlier ruling as to the manner and the procedure for determination of age of the juvenile concerned, the Court held that the Sessions Judge is bound to hold an inquiry and record a finding whether the accused is juvenile or not.
Mohd. Dahaur Mia v. State of Bihar,
The petitioner alleged that he was a juvenile below the age of 16 years under the Juvenile Justice Act, 1986 (now repealed).
Ajay Pratap Singh v. State of Madhya Pradesh,
The High Court set aside the charges against the juvenile accused because no inquiry as to the determination of his exact age was made by the trial court.
Dhruvendra Singh v. State of Rajasthan
The High Court observed that for the purpose of application of the Juvenile Justice Act, the Court should not depend on the medical report of the accused or his physical built of the body for determination of the age of the accused but should take into consideration the date of birth as recorded in the school register or any other available evidence as to his age.
Prabunath Prasad v.: State of Bihar,
The Supreme Court reiterated that in case of trial of juvenile accused the trial court should suo motu hold an inquiry as to the exact age of the accused so as to eliminate any kind of dispute or doubt as to the eligibility of the accused for being tried under the Juvenile Justice Act.
Kit. Anita v. Atal Behari,
The High Court of Madhya Pradesh ruled that the Tale of birth of .the juvenile accused as recorded in the Register of Birth & Death, are more authentic than the one entered in the medical report and, therefore, the former should be given priority while considering the age of the accused for his or her trial under the Juvenile Justice Act.
Ramdeo alias Rajnath Chouhan v. State of Assam
The Supreme Court observed that for the determination of the age of juvenile for the purpose of his trial under the Juvenile Justice Act, his date of birth as recorded in the school register may be accepted provided it is entered by a competent authority.
Krishna Bhagwan v. State of Bihar,
In the case of the full Bench of the Patna High Court Observed that for determination of the age of the juvenile for the purpose of his trial under the Juvenile Justice Act, the relevant date should be the date on which the offence was committed.
Bhola Bhagat v. State of Bihar
The Supreme Court held that for being entitled to be tried under the Juvenile Justice Act, the age of the accused on the date of occurrence of the offence should be taken into consideration and it is immaterial if he exceeds the prescribed age on the date of his being produced before the Court for trial.
Arnit Das v. State of Bihar.
But the Supreme Court in its decision overruling its earlier decision, held that the crucial date to decide the issue whether a person is juvenile or not, is the date when he/she is brought before the competent authority and not the date of commission of the offence.
Rajender Chandra v. Chandigarh
Administration the accused was charged under Section 302/34, IPC on February 277l937 and was taken into custody the same day. He claimed himself to be a juvenile and demanded the benefit of being tried under the Juvenile Justice Act, 1986 (now repealed). The Court of Magistrate First Class rejected the plea of the accused after holding an inquiry about his age and the Sessions Court also maintained the trial court's decision. The accused filed a revision petition against this order and the High Court accepted the petitioner's plea that he was a juvenile and was entitled to be tried under the Juvenile Justice Act.
Pratap Singh v. State of Jharkhand,
A three-judge Bench of the Supreme Court, while considering the question regarding the date by reference to which age of a boy or a girl has to be determined so as to find out whether he or she is a juvenile or not.
Arnit Das’s case,
The view expressed by the Supreme Court finds support in the provision contained in Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which provides that where the Court is satisfied that at the beginning of inquiry, the accused was a juvenile, his trial under the Act would continue even if he or she crosses the prescribed maximum age of 18 years during trial proceedings.
Sanjay Prasad Yadav v. State of Bihar,
In the case of the Court was called upon to decide whether a juvenile accused who is found guilty of an offence under section 302/34 IPC and ordered to be kept in Observation Home during inquiry under the Juvenile Justice Act, has to be shifted to jail in case he/she has crossed the prescribed age for being treated as juvenile.
Krishna bhagwan vs state of Bihar
"Different sections put a strict bar on the juvenile being sent to jail custody either before an inquiry, or after the conclusion of the inquiry in respect of the offence alleged or proved to have been committed. The benefit has to be extended not only to an accused who is a juvenile at the time of commencement of the inquiry but even to an accused who has ceased to be so during the tendency of the .inquiry."
Sheela Barse v. Union of India
The Supreme Court had observed that despite statutory provisions to the" effect that children should not be kept in jail, a large number of children and juveniles were still lodged in jails. The Court observed that there is no controversy or doubt that the juveniles have to be kept in Observation Homes and not in jail pending inquiry or trial irrespective of the fact that they have crossed the age-limit of being treated as juvenile pending inquiry or trial.
Hava Singh v. State of Haryana,
The Supreme Court held that the accused was entitled to be released on the ground that he being convicted by the Sessions Judge the maximum period of detention as prescribed under the Act could be seven years which he had already completed in jail.
Gopinqth Ghosh v. State of West Bengal,
The Supreme Court observed that when a juvenile is brought before the Juvenile Court and in the opinion of the Court, after release on bail he is not likely to fall in company of hardened or known criminals or exposed to physical, mental or psychological danger or his release is not going to result in failure of justice, the bail should be granted to him and he should be released.
Jaipal Singh Tej Singh v. Ram Autar Deuilal
The High Court of Madhya Pradesh held that for allowing" the benefit of release after admonition to the accused, under Section 15(l)(a),' the Court (now Juvenile Justice Board) shall take into consideration the (i) circumstances of the case; (ii) the nature of the offence; and (iii) the character and antecedents of the accused or juvenile as the case may be.
Ganesh v. Mithalat,
The Bombay High Court held that the term ‘sufficient cause’ should be interpreted liberally so as to provide opportunity of appeal to the appellant.
11.2. Different Cases on Juvenile Delinquency in Bangladesh[91]
Md. Samim VS. State 5(2000) MLR (HCD)
The juvenile delinquent Samim (14) is imprisoned for 10 years with rigorous by special tribunal 3, Pirujpur arm-force air 1878, Section 19(A). But the HCD repeal that punishment by the juvenile court, Pirujpur. As a result the children who are involved in the offence are preceded by the juvenile court, Pirujpur.
Bimal Das vs. State. 46 DLR (HC) 460.
When a juvenile court has not been established for any local area, the court of additional session judge u/s – 5(2) of children Act 1974 shall have power to try any case in which a child is charged with the commission of an offence.
Sumur Ali’s Case
In this case the learned Nari-O-Shisu Nirjaton Domon Adalot issues death penalty without applicable the children Act and the learned HCD and the appellate division respective enforce that punishment. But subsequently the HCD by writ petition pending that punishment because of unconstitutional.
Rawshon Mondon’s case
In this case the HCD ordered that juvenile justice administration will be held in the juvenile court.
CHAPTER-12
Children as Victims of Crime
Bangladesh Reference
The present paper attempts to explain how children are usually fallen victims of crime of various forms. Explaining mainly Bangladesh context the victimization has been attempted to be seen in view of low and deprived status of children in Bangladesh. The poorer sections are exposed to a host of many social, economic, political and cultural factors unfavorable to human growth and development. Gender discrimination, ignorance and unawareness in respect to human rights, health care, safe motherhood, social and economic status for women are some distinguishable factors. For children the factors are status deprivation due to non-age, low-income, child labor, no care-free and happy time, no postponed and preparatory period of life, no ideal value guidance, easy access to illegitimate means, cheap abuse and exploitation etc[92]. They are as such subjected to violence, sex abuse, and white slavery, illicit-trafficking and so on. Along with socio-genic crimes at country level the transnational organized crimes are also intricately linked with such victimization. Illicit trafficking in children is mostly transnational, the preventive of which lies in local country level awareness and in international co-operation.
Children are vulnerable segments of population almost in every part of the world. It is more so in Bangladesh because of social inequality, unfavorable economic condition, political climate, joblessness etc.
Children coming from poor economic background a status deprived section and are largely exposed to abuse and exploitation in many forms. They do not have carefree and happy time or any postponed period during childhood as they can prepare for life through positive human growth and development. Thus in the backdrop of practice norm oriented life they are in most of the cases found selling labor; and a child is ———
(a) under-employed or not paid at all;
(b) Compelled to perform tasks that place his/her physical or mental health or development at risk;
(c) made to work excessively long hours;
(d) Subjected to ill treatment, physical/mental and
[120]. In the course of one sacrificial ritual, the boys stole a .357 magnum and shot a convenience store clerk who had once refused to sell them beer[121]. A few months later, Sellers killed his parents as part of a satanic ritual when they refused to let him see his girlfriend and dragged him back home following an attempt to run away[122]. At trial, the jury rejected his insanity defense and sentenced him to die[123].
14.2. How the Law Views Juveniles
Criminal law has always held juveniles to a different standard of accountability from adults. In the 1600s, the law established the age of seven as the point after which a child could be held criminally responsible for his or her actions[124].Because children under the age of seven did not understand the consequences of their actions and therefore could not be held responsible for them, they were deemed, as a matter of law, unable to form the intent required to be culpable for a criminal act[125]. Children over the age of seven who were found criminally culpable would face adult punishments because they had the requisite maturity to understand the consequences of their actions[126].
The Industrial Revolution created a major shift in the way the United States viewed and treated its juvenile offenders[127]. As children left their homes and farms to enter the nation's work force, the responsibility for punishment shifted from the parent to the state[128]. States created "houses of refuge" where delinquent children were detained, and although this policy was ultimately unsuccessful in curbing the growing tide of juvenile delinquency, it paved the way for the state-administered reform schools of the mid-nineteenth century[129]. Unfortunately, these reform schools also failed to live up to expectations because the poor post-Civil War economy forced them to operate more as warehouses, where children were exploited for their labor, than as rehabilitative facilities, where children were prepared to re-enter society. Looking for a more effective solution, reformers eventually created the juvenile court system[130].
Based on the idea that caring for juvenile offenders in a healthy home environment would best serve the child's welfare, Illinois opened the first juvenile court for offenders under the age of sixteen in 1899[131].The juvenile court system was intended "to protect the state's right to use parens patriae for official intervention in the juvenile's life, especially if the youth was neglected[132]." By 1912, all the states except two had established juvenile court systems[133]. Although the primary goal of the juvenile court was rehabilitating the child, as juvenile crime continued to increase in the twentieth century, the emphasis slowly shifted toward controlling the juvenile offenders rather than meeting their special needs[134].
The sharpest shift in society's attitude toward juvenile offenders occurred in the 1970s, when children began committing violent crimes with much greater frequency[135]. Once society decided that stronger punishment was the answer, rehabilitation never again became a primary concern. The 1987 federal sentencing guidelines reflected the continued perception that the juvenile justice system needed to be replaced by a more punitive system[136]. Escalating juvenile crime rates convinced legislatures that state juvenile courts were not able to sufficiently punish or deter juvenile offenders. As part of America's new "get tough" attitude toward juvenile crime, certain offenses required automatic transfer to adult criminal court[137].In other cases, either the prosecutors or the court itself would make the decision regarding whether an offender should be transferred[138].
14.3. How Juveniles Are Treated Outside Criminal Law
Legislatures have distinguished juveniles from adults in many aspects of the law, revealing much about society's expectations for the responsibility of juveniles for their actions[139]. All states but two have established a uniform age of majority of eighteen or above[140]. No state allows minors under eighteen either to vote or to sit on a jury[141]. Only four states allow minors under eighteen to marry without parental consent; only fourteen states allow minors under eighteen to consent to medical treatment; and only seventeen states allow minors under eighteen to drive automobiles without parental consent[142]. Forty-two states prevent minors under eighteen from purchasing pornographic materials, and in those states where gambling is legal, minors under eighteen are generally not allowed to participate[143]. The restrictions that society has placed on minors under the age of eighteen reflect "the simple truth derived from communal experience that juvenile as classes have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life.[144]"
14.4. Supreme Court Jurisprudence for the Juvenile Death Penalty
Until about twenty years ago, the legal system in the United States had not really addressed the issue of the imposition of the death penalty on offenders who were under the age of eighteen at the time they committed the offense at issue. Almost no state statutes specifically imposed the death penalty on juvenile offenders, and few trial courts were ever presented with the question of whether such action could be taken[145]. The first case in the post-Furman Supreme Court death penalty decisions even to note that an issue existed regarding the constitutionality of imposing the death penalty on juvenile offenders was the 1981 case of Eddings v. Oklahoma[146]. However, the Court sidestepped that direct question by reaching its decision on other grounds, namely that courts had a duty to consider all mitigating evidence during the sentencing phase of a capital trial[147]. The Court again passed up the opportunity to consider the constitutionality issue when it decided Jack v. Kemp[148]in 1987, although Justice Powell questioned the constitutionality of imposing such a punishment on a seventeen-year-old offender and was concerned by the majority's refusal to make a decision on that issue[149]. That same year, however, the Court took the opportunity to address the constitutionality of imposing the death penalty on a juvenile who was fifteen years old at the time of his offense in Thompson v. Oklahoma The Court addressed the same issue with respect to sixteen- and seventeen-year-old offenders the following year in Stanford v. Kentucky.
.
Thompson v. Oklahoma. In Thompson v. Oklahoma, the Court addressed the question of "whether the execution of [a death] sentence would violate the constitutional prohibition against the infliction of 'cruel and unusual punishments' because petitioner was only fifteen years old at the time of his offense[150]." The trial court had certified Thompson to be tried as an adult based on its conclusion "that there are virtually no reasonable prospects for rehabilitation of William Wayne Thompson within the juveniles system[151]." Thompson, fifteen at the time of his offense, was found guilty of "actively participating in the brutal murder of his former brother-in-law" in concert with three older persons[152].
Although the plurality held that executing a fifteen-year-old offender was unconstitutional, the ruling was the result of a four-justice plurality with O'Connor adding the fifth vote and basing her opinion on different grounds. Because the plurality saw the Court as the ultimate arbiter of the limits of cruel and unusual punishment under the Eighth Amendment, it had to determine whether imposing the death penalty on a fifteen-year-old offender would run counter to the "evolving standards of decency that mark the progress of a maturing society," the standard against which a punishment was judged cruel and unusual[153]. In determining whether this threshold was met, the plurality considered: —————-
(1) at what ages the different states would allow the imposition of the death penalty;
(2) how willing juries had been to impose the death penalty on juveniles when the law permitted such a punishment; and
(3) the opinions of other nations and informed organizations about imposing the death penalty on juvenile offenders. The plurality found that, because eighteen of the thirty-seven states permitting capital punishment required defendants to be at least sixteen years old at the time of the offense, it was reasonable to assume the existence of a national consensus against imposing the death penalty on fifteen-year-old offenders[154]. According to the plurality, the infrequency with which juries sentenced fifteen-year-old offenders to death demonstrated that this sentence constituted cruel and unusual punishment[155]. In addition, the plurality noted that a substantial number of foreign countries, including West Germany, France, Portugal, The Netherlands, and the Soviet Union, expressly prohibited the death penalty for juveniles[156].
Without the justification of retribution or deterrence, the plurality found that imposing the death penalty on fifteen-year-old offenders would be "'nothing more than the purposeless and needless imposition of pain and suffering' and thus an unconstitutional punishment" under the Eighth and Fourteenth Amendments[157].
Justice O'Connor's independent concurrence provided the last vote needed to reverse Thompson's death sentence, but she did not agree with the reasoning of the plurality opinion. O'Connor believed that when a state legislature, like Oklahoma's, did not set a minimum age for imposing the death penalty, the Court could not conclude that it approved of executing young offenders[158]. She considered it possible that the legislature had simply neglected to consider the fact that fifteen-year-olds would be subject to the death penalty when it created the state's statutory transfers to adult court[159]. Because she felt that one of the most important themes in the jurisprudence of the death penalty was the "need for special care and deliberation in decisions that may lead to the imposition of that sanction,[160]" O'Connor concluded that "petitioners and others who were below the age of sixteen at the time of their offense may not be executed under the authority of a capital punishment statute that specifies no minimum age at which the commission of a capital crime can lead to the offender's execution[161]."
Stanford v. Kentucky. One year after Thompson, in Stanford v. Kentucky[162], the Court dealt with a similar issue, but this time the petitioners were sixteen and seventeen years old at the times of their offenses[163]. This time, however, in a plurality opinion written by Justice Scalia, the Court failed to find either death sentence to be contrary to "the evolving standards of decency that mark the progress of a maturing society.[164]" As a result, the plurality did not find either sentence to be cruel and unusual punishment in violation of the Eighth Amendment. After the juvenile court determined that it would be in "the best interest of petitioner and the community" for Stanford (seventeen at the time of his offense) to be tried as an adult given his repetitive delinquent behavior and the seriousness of his crime, he was convicted of "murder, first degree sodomy, first degree robbery, and receiving stolen property[165]." Wilkins (sixteen at the time of his offense) pled guilty to charges of "first degree murder, armed criminal action, and carrying a concealed weapon He was certified to be sentenced as an adult due to the "viciousness, force and violence of the alleged crime, maturity, and the failure of the juvenile justice system to rehabilitate him after previous delinquent acts.
14.5. The Current Status of the Juvenile Death Penalty in Legislatures
Currently, thirty-eight states and the federal government authorize the death penalty as an acceptable form of punishment for certain acts of murder[166]. Fifteen of those states have expressly established eighteen as the minimum age for imposing the death penalty, and four have established seventeen as the minimum age[167]. Florida's Supreme Court recently held that the state constitution requires offenders to be at least seventeen before they can be sentenced to death[168]. Nine states have expressly required offenders to be at least sixteen years old, and while the remaining ten states do not set a minimum age, Thompson's constitutional minimum of sixteen years of age is controlling[169]. Although the death penalty-free jurisdictions of Iowa, Massachusetts, and the District of Columbia have proposed imposition of the death penalty, no action has been taken yet, and it remains unclear whether a juvenile death penalty would be included[170].
With the growing emphasis on harsh punishments for juvenile offenders, state legislatures seem to be moving toward lowering the minimum age required for imposing a death sentence. Crime prevention and control have been hot political platforms in the 1990s, and legislatures have been working to create tougher punishments for those they deem to pose a danger to society. Inun-dated by media accounts of children who kill, voters seem tired of talking about rehabilitation and want immediate action[171]. One response has been to impose "more punitive sentences by developing laws that make it easier to transfer juveniles (in some states, to 'waive,' 'certify,' or 'bind over') for trial in criminal court rather than juvenile court[172].” Some state legislatures are replacing judicial waiver, the traditional method of transferring juveniles in which an individual determination is made regarding the maturity of each offender, with mandatory statutory exclusions, which result in automatic adult criminal court jurisdiction for the most serious offenses[173]. Other states are giving prosecutors more discretion in choosing the court in which to file, without requiring the consent of the court or even an individual hearing before prosecuting juvenile offenders in adult court for serious felonies[174]. The age at which juveniles can be transferred out of the juvenile court system, with its emphasis on rehabilitation, and into the more punitive adult criminal court has been steadily declining. In some states, juveniles as young as thirteen, ten, or even seven may be transferred to adult criminal court, and some state legislatures have not even proscribed a minimum age for transfer.
14.6. How the International Community Views Juvenile Executions
Since the end of the World War II, the international community has acted in steady opposition to the juvenile death penalty. More than fifty foreign countries, including nearly all of Western Europe, have formally abolished the death penalty or limited its use to exceptional crimes, such as treason[175]. The international community's rejection of the juvenile death penalty is based on the belief that juveniles are less responsible for their actions than adults and more likely to be responsive to rehabilitation[176].
International treaties on this subject demonstrate an almost universal agreement that the imposition of the death penalty on persons who have not attained full physical or emotional maturity is recognized as inappropriate and inhumane, because it permanently denies the child any chance of rehabilitation or reform[177]." The first treaty to forbid such executions was the Fourth Geneva Convention, adopted in 1949[178]. The United States signed and ratified this treaty regulating wartime behavior without claiming any special exemptions, as it did with later treaties[179].
The next international treaty dealing with juvenile executions to be signed by the United States was the American Convention on Human Rights, which prohibited the execution of juvenile offenders under the age of eighteen[180]. Although this treaty was signed by United States in 1979, it was never ratified, largely due to the prohibition on juvenile executions[181]. For similar reasons, the United States has not even signed the Convention on the Rights of the Child, which was adopted by the United Nations in November 1989 and has been joined by 164 countries[182]. In 1992, the United States ratified an international treaty opposing the juvenile death penalty, the International Covenant on Civil and Political Rights[183], with one important caveat, the U.S. reserved "the right, subject to its Constitutional constraints, to impose capital punishment on any person other than a pregnant woman duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below 18 years of age[184]."
A number of regional human rights agreements also prohibit the imposition of the death penalty on juvenile offenders. The American Convention on Human Rights[185] provides that capital punishment "shall not be imposed on persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age[186]." Although the United States signed but did not ratify this treaty, the Inter-American Commission on Human Rights (the "Commission") found the United States to be bound by the section entitled the American Declaration on the Rights and Duties of Man (the "American Declaration")[187]. In 1987, the Commission found that by leaving the issue of the juvenile death penalty to the discretion of state officials, the United States had created a "patchwork scheme of legislation which makes the severity of the punishment dependent, not primarily on the nature of the crime committed, but on the location where it was committed[188]." Because the executions of minors James Terry Roach and Jay Pinkerton in South Carolina and Texas, respectively, were allowed to take place under this scheme, the United States had violated articles 1 and 2 of the American Declaration[189].
Although the majority of the international community opposes the juvenile death penalty, the United States is not alone when it permits the execution of offenders who were sixteen or seventeen years old at the time of their crime. According to Amnesty International, eight countries have documented executions of juveniles under eighteen in the period from 1985 to 1995, and it is possible that other similar executions have taken place without being documented[190]. The number of juvenile offenders who have been executed may also be greater than actually reported, because Amnesty International's research focused on the age of juveniles at the time of their execution and did not take into account those persons over eighteen who were executed for crimes they committed when they were fewer than eighteen[191]. Although it has been established that juvenile executions have occurred in these countries, comparisons to the United States are difficult to make because little is known about the offenders' crimes or the criminal process by which they were convicted[192].
Conclusion
The children being are important asset, every effort should be made to provide them equal opportunities for development so that they become robust citizens physically fit, mentally alert and morally healthy endowed with the skills and motivations need the society. The Neglected children and juveniles fall an easy prey to criminality. The adolescents claim the highest share in violence due to dashing nature, lack of foresight, uncritical enthusiasm, physical strength, endurance and desire for adventure.
Abbreviation and related Laws and Acts.
Abbreviation:
UN—————-United Nations
CRC————–The Convention on the Rights of the Child, 1959
UK—————-United Kingdom
HCD———High Court Division
BCPC——–The Bengal Code and Prisons Act
RSA———-The Reformatory Schools Act 1897
Cr. P. C———————The Code of Criminal Procedure of 1898
BCA————————The Bengal Children's Act 1922
CA————————–The Children Act 1974
CR———-The Children Rules 1976
PO———-Probation Officers
CI———-Chief Inspector
13. JJA———————-The Juvenile Justice Act, 1986
14. DLR——————–Dhaka Law Report
15. BNWLA————–Bangladesh National Women Lawyers Association
The related Laws and Acts.
The Reformatory Schools Act 1897
The Code of Criminal Procedure of 1898
The Bengal Children's Act 1922
The Convention on the Rights of the Child
The UN Rules for the Protection of Juveniles
The Penal Code of 1860
The Bengal Vagrancy Act 1 943
The Juvenile Justice Act, 1986
Nari-O-Shisu Nirjaton Domon Ain, 2003
The Suppression of Immoral Act, 1933
The Metropolitan Police Act, 1974
Oppression of Women and Children (Special Enactment) Act, 1995
The Bangladesh Children Act, 1974
The Children Rules, 1976
The United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines)
Bibliographical Index
Serial No.
Name of the Books
Writers/ Publications
Notes/ Editions
01.
CRIMINOLOGY & PENOLOGY
Prof. N. V. Paranjape
Modified up to 26th January, 2005
02.
SOCIOLOGY AND CRIMINOLOGY
Sutherland
2nd Edition, September, 2003
03.
THE DHAKA UNIVERSITY STUDIES, PART I VOL. XVI (2)
Dr.Sumaiya Khair
28, September 2005
04.
‘CHILDREN AS VICTIMS OF CRIME
Dr. Abdul Hakim Sarkar
2nd ed., February, 2002.
05.
SOCIOLOGICAL STUDY OF JUVENILE OFFENDERSA IN TAIWAN
[6] Sec. 2 of the United Nations Convention on the Rights of the Child (CRC).
[7]The Children Act, 1974 defined a child as a person under the age of 16 years. Article 2(f) provides that, "Child" means a person under the age of 16 years.
[8] High Court Division issues a suo-moto, order no-248/2003 on 9 April 2003 for the redemption of the Juvenile; taken from the daily newspaper dated on 10 April, 2003
[9] Khair, Sumaiya, "Street Children in Conflict with the Law. The Bangladesh Experience", Asia-Pacific Journal on Human Rights and Law, Vol.2., No. 1, 2001, Kluwer Law International, pp-55-76, 56.
[10] Articl 37 of The Convention on the Rights of the Child (CRC) 1989 and 40 spell out the rights of children in conflict with the law and ensure basic guarantees and legal and other assistance for their defense.
[14] Van Beuren, Geraldine, The International Law on the Rights of the Child,. Save the Children, Martinus Nijhoff Publishers, Dordrecht et al., 1995, p.171.
[15] The age of criminal responsibility has been increased from 7 years to 9 years on the 8th of November 2005 by the Penal Code (Amendment) Act, 2004.
[24] Cognizable offence means an offence for which a police officer may in accordance with the second schedule or under any law for the time being in force. Arrest without & warrant. See Section -4(f) of The Code of Criminal Produre, 1889.
[25] Rahman, Mizsnur, Tracing the Missing Cord : A Study on the Chiildren Act, 1974, pp. 35-36.
[75] Rutter, Michael and Giler, Henri, Juvernile Delinquency. Trends and Perspectives, The Gulford Press, New York et. al., 1983, p 322.
[76] Newburn, Tim “Youth, Crime and Justice” in Maguire, MIke et al et. al., (eds, The Oxford Handbook of Criminology, Claredon Press, Oxford, 1997, pp.613-660, at p. 635.
[101] Victor L. Streib, Ohio Northern University, The Juvenile Death Penalty Today: Death Sentences and Executions For Juvenile Crimes, January 1, 1973-June 30, 1999 (visited June 15, 2000) <http://www.law.onu.edu/faculty/streib/juvdeath.htm> [hereinafter Streib, Juvenile Death Penalty Today].
[102] Mary E. Spring, Comment, Extended Jurisdiction Juvenile Prosecution: A New Approach to the Problem of Juvenile Delinquency in Illinois, 31 J. MARSHALL L. REV. 1351, 1354-55 (1998).
[117] Streib, Executing Women, supra note 9, at 207 (noting that Leonard M. Shockley, age 16 at the time of his crime, was executed on April 10, 1959 in Maryland).
[118] CHARLES PATRICK EWING, WHEN CHILDREN KILL 71-72 (1990).
[153]Id.at 821 (Stevens, J., plurality opinion) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, C.J., plurality opinion)).
[154]See id. at 848-49 (Stevens, J., plurality opinion).
[155]See id. at 832 (Stevens, J., plurality opinion) ("During the years 1982 through 1986 an average of over 16,000 persons were arrested for willful criminal homicide . . . each year. Of that group of 82,094 persons, 1,393 were sentenced to death. Only 5 of them, including the petitioner in this case, were less than 16 years old at the time of the offense.").
[156]See id. at 832 (Stevens, J., plurality opinion).
[157]Id.at 838 (Stevens, J., plurality opinion) (quoting Coker v. Georgia, 433 U.S. 584, 592 (1977)).
[161] At the time of this decision, Justice Powell had retired, but his spot had not yet been filled. As a result, there were only eight justices on the Court. SeeStreib, Moratorium on the Death Penalty, supra note 51, at 60.
[162]See id. at 870-71 (finding "no justification . . . for converting a statistical rarity of occurrence into an absolute constitutional ban").
[163]Stanford v. Kentucky was consolidated with Wilkins v. Missouri, 492 U.S. 937 (1989).
[164]Stanford, 492 U.S. at 369 (Scalia, J., plurality opinion).
[165]Id. at 365-66 (Scalia, J., plurality opinion).
[166]See Streib, Juvenile Death Penalty Today,supra note 43.
[168]See Brennan v. State, 754 So. 2d 1 (Fla. 1999); see also Jo Becker, Court Raises Execution Age to Seventeen, ST. PETERSBURG TIMES, July 9, 1999, at 1A (reporting that in a divided 4-3 opinion, the court found it cruel and unusual punishment to impose a penalty so infrequently handed out. The state had not executed a 16-year-old in over half a century).
[169]See Streib, Juvenile Death Penalty Today, supra note 43. Those expressly requiring an offender to be sixteen include: Alabama, Indiana, Kentucky, Louisiana, Missouri, Nevada, Oklahoma, Washington, and Wyoming. Those whose minimum age is set by the constitutional default include: Arizona, Arkansas, Delaware, Idaho, Mississippi, Pennsylvania, South Carolina, South Dakota, Utah, and Virginia. See id.
[182]See Convention on the Rights of the Child, art. 37a, Nov. 20, 1989, 1577 U.N.T.S. 3. See Frey, supra note 17, at 80 ("Article 37 of the convention provides that children under 18 convicted of crimes shall not be subject to capital punishment, life imprisonment, torture or cruel and inhumane punishment," and calls for every child deprived of liberty be treated in a manner which takes into account the needs of persons of his or her age.).
[183]See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 68, Aug. 12, 1949, 6 U.S.T. 3516, 3560
[184] See Stanford v. Kentucky, 492 US. 361. (1981) (Brandeis, J, Disserting).
[185] American Convention on Human Rights, art. 4.5, Nov. 22, 1969, 1144 U.N.T.S. 123.
[190]SeeStreib, Moratorium on the Death Penalty, supra note 51, at 64. In addition to the United States, the countries that permit the execution of juvenile offenders include Bangladesh, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, and Yemen.
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