Juvenile Crime in Bangladesh & the limitation of Correctional Center
Introduction:
Delinquency is a kind of abnormality. When an individual deviates from the course of normal social life, his behavior is called delinquency. This has almost become a universal problem in most of the countries including Bangladesh. Thus the term has a very extensive meaning and includes rebellious and hostile behavior of children and their attitude of indifference towards society. Certain other acts such as begging, truancy, vagrancy, obscenity, loitering, pilfering, drinking, gambling, etc. which vicious persons very often commit are also included within the meaning of the term juvenile delinquency.
There is a growing awareness among the people of the world about the problem of juvenile delinquency. Any society, undergoing changes in its structural and functional aspects is faced with the problem of dislocation and disequilibrium in the social, cultural, political and economic life of the community.
In Bangladesh have some Child Development Centers and Correctional Institutions. Their main theme is correction of juvenile delinquents & sends them to the society without any supervision. In these Child Development Centers have juvenile court, human rights officers, probation officers, social workers and others relevant department. But these Child Development Centers faces various types of limitations, like- environmental, political, organizational, administrative, and infrastructural and so on. Bangladesh is now doubt, a society in transition changing its traditional value system. An understanding of the social aspect of delinquency is imperative in order to measure in depth of the problem arising in our society.
The importance and significance of the study lies in the fact that the problem of delinquency is thwarting the socialization for our future generations. Since the problem poses a challenge to our whole society, it should be investigated empirically to know the subject of delinquency, which is social in origin, in nature and in consequence.
The study will give insight into the existing situating of Child Development Centers, its justice procedure, limitations and also the successibility of the juvenile court and correctional institutions in the context of Bangladesh. It wills emphasis the limitations of Child Development Centers- a comparative analysis between third world and first world.
Review of Literature
Global Perspective:
‘The Sociological Study of the juvenile delinquents of Taiwan’ by Hang Chung Mo, ‘juvenile delinquency in an English Middle Town’ by Hermann Mannhein and the Report of the Ministry of Education, Government of India, 1950- Mr. Hang Chung Mo holds that, “It must be realized that juvenile delinquency, no matter how variable its forms may be is nothing but an act of nonconformity to community standards. It may be nonconformity to laws. The nature of the former pattern is less serious than that of the latter, but they differ from each other not in quality but in degree. So it is believed that any explanation of the more serious forms of delinquency will, no doubt, help to bring to light also the genesis of these lesser forms”.
The second United Nations (UN) congress on the prevention of crime and treatment of offenders, 1960- “By juvenile delinquency should be understood the commission of an act which, if committed by an adult, would be considered a crime.”
C.B. Mamoria writes, “ The phrase ‘juvenile delinquency’ may be loosely used to cover any kind of deviant behavior of children which violates normative rules, understanding or expectations of social system.”
Delinquency varies from place to place, time to time and season to season. There is a wide range of variation in gird to age limits of the juvenile offenders in different countries of Asian and European countries.
Table -1: Age limit of juvenile delinquents in some Asian countries:
| Country | Age limits of juvenile delinquents |
| Myanmar | 7-16 |
| India | 7-16 |
| Philippines | 9-16 |
| Thailand | 7-18 |
| Japan | 14-20 |
Table – 2: Age limit of juvenile delinquents in some European countries:
| Country | Age limits of juvenile delinquents |
| England | 8-17 |
| France | 13-16 |
| Austria | 14-18 |
| Poland | 13-17 |
| Germany | 14-18 |
Source: United Nations (1953) Comparative Survey on Juvenile Delinquency, part-iv, Asia and Far East, New York, (p.4).
Robert K Merton in his work ‘Social Structure and Anomie’ 1938, has pinpointed social structural processes as the ultimate source of the problem of juvenile delinquency emphasizing the facts that there are flows and contradiction in the organization. A person is trust into anomy when the goal of society are denied to him although he has scrupulously adhered to the institutionalize means whereby other people ordinarily achieve this goal. Due to such contradiction, an anomic individual usually searches for alternative means to achieve his goals in a deviant pattern.
Healy and Bronner, (Bela, 1964), in their study, ‘New Light on Delinquency’, come to a conclusion that, in nearly all the delinquent cases their are clear evidence that those who were found delinquent were very unhappy in their life circumstances due to lack of affection.
National Perspective:
Mr. Abdur Rahman (Rahman, 1982) in his community- based study in some selected slum areas of Rajshahi town and go to a decision; the sex related offences were also widespread among both male and female deviants.
Professor M. Afsar Uddin made a study (Afsar, 1965), research on the inmates of the same boarstal school. He examined all relevant socio-economic issues connected with the life of the deviants.
Professor. A K Ahmadullah took a pioneering effort in this field with some of his associates. The study (Ahmadullah et. al., 1964) was conducted on the convicted offender in the age- bracket of 10-21 years placed for correction in Borstal School near Dhaka city. The study was conducted in backdrop of the importance of the going number of cases of juvenile offender.
Concern about the problem of juvenile delinquency among the conscious members of public has sporadically been prevalent in our country for more than two decades. Salahuddin Ahmed, a senior Police officer is, among the noted ones, found to have publish through Journal and Newspapers, number of thought provoking articles on the issue in the 1960’s(the article were latter complied in a book form), he by giving examples of varies manifestation of the problem and also analyzing it statistically and sociologically explain the problem as one or steady increase he therefore called upon all concerned social and special agencies to be aware of the problem in an alarming tone in order to avoid the inescapable price likely to be paid in the long run.
Meaning and Definition of Juvenile Delinquency:
Delinquency is a kind of abnormality. When an individual deviates from the course of normal social life, his behavior is called delinquency. When a juvenile, bellow an age specified under a statue exhibits behavior which may prove to be dangerous to society and or to him he may be called a Juvenile Delinquent. Each state has its own precise definition of the age range covered by the word “juvenile”.
According to Bangladesh Penal Code (BPC) (Section- 82), “Noting is an offence which is done by a child under seven years of age”.
According to Bangladesh Penal Code (BPC) (Section- 83), “Nothing is an offence, which is done by a child above 7 years of age, and under 14, who has not attained sufficient maturity of understand to judge of the nature and consequences of his conduct on that occasion”.
From the Bengal Borstal School Act of 1928 has increased the age limit of the former definition. According to the Act of 1928 any offender within the age group 15 to 21 could be sent to the Borstal School at the discretion of the magistrates. So there is hardly any standard uniform definition of delinquency.
According to English Common Law, “A child below 7 years if a child can not commit crime and in America up to 16 years is consider as a child and he can not commit crime”.
According to Cyril Burt,” Delinquency as occurring in a child, when his antisocial tendencies appear so grave that he becomes or ought to become the subject of official action”.
The second United Nations Congress on the Prevention of Crime and Treatment of Offenders (1960) states, “By juvenile delinquency should be understood the commission of an act which, if committed by an adult, would be considered a crime”.
C. B. Mamoria writes, “The phrase ‘juvenile delinquency’ may be loosely used to cover any kind of deviant behavior of children which violates normative rules, understanding and expectations of social system”.
According to Sutherland, “Breach of prescribed law is crime and if is done by a child then it is called juvenile delinquency”.
Legal definition by American Children Bureau (ACB), “An act committed by child violating the state or municipal law is called juvenile delinquency”.
In simple words, it can be said that Juvenile Delinquency is a kind of abnormal or antisocial behavior by a juvenile who is below an age specified
Concept of juvenile delinquency:
Penologists have differently interpreted the word “juvenile delinquency”. Generally speaking, the term refers to a large variety of disapproved behaviors of children and adolescents, which the society does not approve of, and for which some kind of admonishment, punishment or corrective measure is justified in the public interest. Thus the term has a very extensive meaning and includes rebellious and hostile behavior of children and their attitude of indifference towards society. Expressing his view on juvenile delinquency, Albert Cohen observed that the only possible definition is one that relates to the behavior in question to some set of rules. The rules themselves are a heterogeneous collection of regulations, some common to all communities and others only to be found in one or two. Coldwell prefers to leave the term vague and includes within it all acts of children, which tend them to be pooled indiscriminately as wards of the state. Cyril Burt defines delinquency as occurring in a child “When his antisocial tendencies appear so grave that he becomes or ought to become the subject of official action”. Friedlander says,” Delinquency is a juvenile misconduct that might be dealt with under the law”.
The second United Nations (UN) congress on the prevention of crime and treatment of offenders (1960) states,” By juvenile delinquency should be understood the commission of an act which, if committed by an adult, would be considered a crime.” According to ‘The Sociological Study of the juvenile delinquents of Taiwan’ by Hang Chung Mo, ‘juvenile delinquency in an English Middle Town’ by Hermann Mannhein and the Report of the Ministry of Education, Government of India in 1950- Mr. Hang Chung Mo holds that, “It must be realized that juvenile delinquency, no matter how variable its forms may be is nothing but an act of nonconformity to community standards. It may be nonconformity to laws. The nature of the former pattern is less serious than that of the latter, but they differ from each other not in quality but in degree. So it is believed that any explanation of the more serious forms of delinquency will, no doubt, help to bring to light also the genesis of these lesser forms”. Juvenile delinquency is a catchall term; it means different things to different people. To some the manner of attire-for example, wearing mod clothes or having long hair- is sufficient to label a child delinquent. Delinquency is neither an entity nor a disease, nor is it even analogous to a disease: delinquents are not necessarily sick people, either literally or figuratively.
Under the California law, a juvenile delinquent is defined as ‘any person who is under the age of 18 years when he violates any law of the state or of the United States or any ordinance of any city or country of this state defining crime or who, after having been found by the juvenile court to be a person described in Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court”. In Bangladesh, “nothing is an offence which is done by a child under 7 years of age. Youthful offenders are those who have been convicted of any offences punishable with transportation or imprisonment and at the time of such conviction were less than 17 years”.But the Bengal Borstal School Act of 1928 has increased the age limit of the former definition. According to the Act of 1928 any offender within the age group 15 to 21 could be sent to the Borstal School at the discretion of the magistrates. So there is hardly any standard uniform definition of delinquency.
In our country the distinction between crime and delinquency is made on the basis of age. But there is a great legal flaw in the fixing of age. An offender is considered juvenile or criminal on the basis of his or her age at the time of conviction and not at the time of commission of offence.
Causes of Juvenile Delinquency:
There is no single cause or simple explanation for the development of delinquent behavior. According to Healy and Bronner, the causes of juvenile delinquency are:
Bad company
Adolescent instability and impulses
Early sex experience
Mental conflicts
Extreme social suggestibility
Love of adventure
Motion picture
School dissatisfaction
Poor recreation
Street life
Vocational dissatisfaction
Sudden impulse
Physical condition of all sorts
Imitation
The causes of Juvenile Delinquency may be classified under three major factors:
Social Factors:
Broken Homes:
British and American investigation reveals that nearly 50% of the delinquents come from broken homes. The home may be broken up by death of one or both of the parents, or by prolonged illness or insanity, desertion or divorce. Interaction in home is a very important means for socializing the child. Broken home can leads to delinquent behavior on the part of the children.
Poverty: A very large proportion of delinquent children come from poor homes. They commit their offences as members of gangs. Uday Shankar’s study has revealed that as many as 83% of the children come from poor families
Delinquency Areas: The delinquents mostly comes from the area of poor housing, overcrowding and the areas in which cinema houses, hotels, night club, liquor shops are found in a large number.
Companions and Gangs: As a child grows older he goes into the neibourhood and becomes a member of the play group or peer group. If by chance he joins the group or gang that fosters delinquents attitudes he is also likely to become a delinquent. In cities, in slum areas peculiar social groups called gangs are found. Generally the gangs start as a play group. In the absence of play ground facilities, the children group will start playing in street and finally organize themselves into gangs. Charles Shaw has opined that “delinquency is a product of community forces”.
Beggary:
Child beggars mostly come from either very poor families or broken homes. These children are betrayed of the needed love and affection of the parents. As beggars they get annoyed to see others enjoying life. Some of them may even become revels. They realize that only through deviant behavior practice, they can satisfy their desires and meet their needs. They thus become delinquents.
Other Social or Environmental Factors:
School Dissatisfaction
Film and Pornographic Literature
Deep- seated inner desires.
Personality Factors:
Mental Deficiency in Delinquency: I. Q of delinquent children is 85 and Uday Shankar found that it was 83. These and many other studies have revealed that the average intelligence of juvenile delinquents is certainly lower than the average intelligence of the normal group of children of the same age. It is quite to assume that the dull and mentally handicapped or defective adolescents do not have the necessary insight to make distinctions between right and deviant methods and behavior. Such children are often used by the more intelligent children of the gang or the adults for their criminal purpose.
Emotional Problem of the Individual: Mental troubles and emotional maladjustment are strong factor in delinquency. Emotional problem of inferiority, jealousy, and being thwarted are very common among the delinquent children. Healy and Bronner in their study of 143 delinquents found that 92% of them revealed emotional disturbances. According to Psychoanalytic view, the delinquent is an individual who is governed by the pleasure principle. He want to get immediate pleasure and satisfactory for his needs. So he becomes a victim to his own impulse.
Seasonal Variations Factors:
MacIver, in discussing geographic factors has pointed out that geographical variable such as climate, topography, are not the determinants of society and culture but they merely present the limiting conditions.
However the more primitive the technology the more direct is the influence of geography. This means that in monsoon country like Bangladesh the influence of the seasons would be of a more limiting nature. Specially, until the technology and economy advance to the stage where flood control becomes a reality, where scientific techniques of agriculture supplement traditional methods and industrial revolution likes place, sectional variations must be reckoned with.
Thus, it may say that juvenile delinquency is the result of both social or environmental and personal or individual factors. It must be stated that the nature of juvenile delinquency among male juveniles differs radically from those of girls. Boy are more prone to offences such as, theft, pick- pocketing, gambling, eye teasing, obscenity, cruelty, mischief, etc. while the offences commonly committed by girls include sex involvements, running away from home, truancy and shop lifting. It is further noteworthy that delinquency rate among boys is much higher than those of girls, the reason being that boys by nature are more adventurous and enduring than those of girls.
Political Factors:
At the present time this factor playing a vital role to creating juvenile delinquents. Political leaders use children as a weapon for illegal purpose. Friends circle is also liable for this. The members of their circle are associated for recreation, money, passing time etc. For these reason, when they come to the abnormal political environment, they caught by the illegal political gains and next time they turn into juvenile delinquents. On the other hand, there is a great relation among the political factors, seasonal variations factors, personal factors and social factors.
JUVENILE JUSTICE ADMINISTRATION ANDCORRECTIONAL SERVICES IN BANGLADESH:
A CRITICAL REVIEW:
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., testate, the family and the community, in realizing their rights of survival, protection, development and participation. 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.
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:
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.
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.
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.
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:
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.
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.
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 Cannel 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.
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. 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. 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’
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. 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, that children under 9 years lack 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. 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. 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 require 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.
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.
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 offence 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.
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. 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.
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. 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.
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.
Trial
The Children Act 19~4 provides that child offenders may only be tried by juvenile courts or other courts duly empowered. Under the Children Act 1374 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;
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. 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.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.
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. 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.
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. The requirement of confidentiality also extends to reports of Probation Officers and other reports impinging on a child offender.
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.23In 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’.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.
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 1S~4 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.
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. 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 behavior 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. 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.\
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.
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.
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. 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.
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. 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. A child committed to a parent, guardian or any other fit person may, in addition, be placed under supervision of a Probation Officer. 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.
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 sati