BY K.T.S. TULSI
Mr. Tulsi is a senior attorney practicing in Supreme Court of India and Punjab & Haryana High Court. He is defending Sikh children detained in Punjab jails.
THERE is ample data to show that severely abused: children may well become tomorrow’s murderers, “You can almost be certain that the man who has committed violent crimes has been treated violently as a child”, writes Menninger in “The Crimes of Punishment”.
A recent study by Dr. David Ward on 100 violent prisoners shows that the key variable for physical violence are the severity of the abuse as a child, compounded by early school failure. The victims of such abuse often become offenders and they are often punished by society. The fateful question is: Can our system change? Or will it continue to sow the wind and reap the whirlwind? David Finkelhor warns: “Meet violence with violence, and you will have more violence”.
Studies in America indicate a 100 per cent correlation between child abuse and defiant behavior among violent juvenile delinquents, adults and who were in the San Quentin prison, and all assassins and people who had attempted assassinations without success in the United States in the past 20 years.
Social scientists believe that if one is truly concerned with the level of violence in society, the place to look into is the home rather than the street. Children who murder other children and adolescents who kill have almost always been the targets of physical and verbal violence in their families. At various stages they were of very young age, they have often to take care of themselves and their siblings. The parents have been unavailable to meet the child’s needs. Either there is an absentee father. Or a demanding, domineering mother. These children feel very little guilt or remorse and are detached from their feelings. They act out rather than communicate their anger and frustration.
It appears that the younger the child is when he has been abused, the more aggressive behavior he exhibits. Also, the child who is abused ‘under the age of three’ has more “fantasy aggression”. According to a study conducted by the Journal of Clinical Child Psychiatry, “there is only perfect correlation between the amount and severity of punishment suffered by ; a child during the ages of two and 12 and the amount and severity of adolescent antisocial aggressive ness displayed by the same child.”
The study found that violent delinquents had been spanked more than once a month and slapped more than six times a year. Delinquents were also more likely to have been hit with fists, to have had their arms twisted, to have been choked and to have had their bones broken.
Dr. Weston, a Philadelphia medical examiner, reported in 1970 that of 100 juvenile offenders, 82 had been abused children and 43 recalled being knocked out by their parents. As many as 83, out of 100 delinquents, had been abused before entering schools and had been bruised, lacerated or fractured by their parents within 18 months prior to arrest.
Every abused and neglected child is in need of treatment services. The potential social cost of ignoring any of these is much greater than the cost of the treatment services. Society having neglected the importance to protect the child against abuse, devised an elaborate system of enacting various laws to regulate and provide for the protection, custody, trial and punishment of youthful offenders.
One of the earlier provisions adopted in our country was the East Punjab Children Act, 1949. The Act made a provision for homeless and destitute children to be lodged in a certified school till the age of 18. It also made a provision for removing a child from the custody or care of a parent or a guardian who was found to be unfit to have the care of a child.
The law aimed at rescuing children from the clutches of criminals Or prostitutes. Besides, this law prescribed six months imprisonment with fine up to Rs. 200 for any person who was found to have abandoned or neglected a child or had caused an injury to the health” of the child.
The Act also prescribed an elaborate procedure for dealing with youthful offenders by conferring a right of compulsory bail in most of the offences and the right of compulsory bail for girls below the age of 16 in all cases (Section 24).
The Act also laid down that in case the children concerned were not released on bail, they could only be detained in certified schools where they were to be imparted adequate education and knowledge of skills.
The Act required the appointment of Probation Officers by the State Government and wanted these officers to visit these children or youthful offenders at reasonable intervals to be able to advise, assist and befriend them. In spite of the requirement of correction by compassion which the Constitution required of the State by virtue of its humanistic concern expressed in Article 39(e) and expecting the State to exhibit super parental concern for its child Citizens, including juvenile delinquents, the statutes regarding children have merely been dead letter.
It is not only that there has been no increase in the number of children’s homes or certified schools; children have continued to be tried, along with adults for all sorts of crimes in regular courts. The courts have remained blind to the requirements of children’s jurisprudence statutorily enacted and constitutionally advanced and have mechanically imposed sentences of imprisonment on scores of those who have continued to languish in jails along with adult prisoners.
These children have thus been victims of abuse, first at home and then in jails. In effect, they missed not only their childhood but also their youth and the hope for the remaining years of their life, for who knows that when they come out of the jails they will not have timed into hardened criminals having lived in their company irrespective of the legal and social norms that we profess?
While dealing with an appeal of one such child, Satto, who had been tried for rape, Mr. Justice V.K. Krishna Aiyar of the Supreme Court ruled in 1979: “Regrettably, our juvenile justice system still thinks in terms of terror, not cure, of wounding, not healing, and a sort of blind man’s bluff is the result …. some legal absolutes seen imperative; jail for juvenile should be outlawed;” While setting aside the sentence of imprisonment on the child, the Judge remarked: “Judicial responsibility is not mechanistic but humanistic, and the ritualistic Magistrate is a misfit”.
In a more recent case, Mr. Justice P.N. Bhagwati then Chief Justice of India, held: “It is an elementary requirement of any civilized society that children should not be confined in jail because incarceration has dehumanizing effect and it is harmful to the growth and development of children”.
In a most unconventional manner the Supreme Court, in this case, asked all the State governments and Union Territories to file a list of children below the age of 16 confined in different jails in various parts of the country. It directed each District Magistrate to visit the jails and report to the Court with regard to the conditions in children’s homes, remand homes or observation homes which have been created by different State Governments.
While directing the release of all these children from jails at once, the Court relied upon the national policy for the welfare of children adopted by the Government, which had said that “the children of a nation are a supremely important asset. Their nature and solicitude are our responsibility”. The Court observed that “if a child is a national asset, it is the duty of the State to look after the child with a view to ensuring full development of its personality. It is elementary that a jail is hardly a place where a child should be kept”.
While clarifying the requirements of law it directed: “Even where the children are accused of offences, they must not be kept in jails, It is no answer on the part of the State to say that it has not got enough number of remand homes or observation homes or other places where children can be kept and that is why they are lodged in Jails. It is also no answer on the part of the State to urge that the ward in the jail where the children are kept is separate from the ward in which other prisoners are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child estranging him from society and breeding in him aversion bordering on hatred against a system which keeps him in jail. On no account should the children be kept in jail and if a State government has not got sufficient accommodation in its remand homes or observation homes the children should be released on bail instead of being subjected to incarceration in jail”.
It is, indeed, a sad commentary on our Governments that the constitutional objectives fail to move them, legislative enactments mean precious little, and judicial pronouncements are flouted with impunity. Even today, the State of Punjab has admitted that there are at least 29 children in different jails. Some of these have continued to remain in detention notwithstanding the Supreme Court order which was neither supreme nor strong enough for the Punjab government to be able to buy these children their freedom.