'I'll Confess We Failed … As Judges We Were Completely Hamstrung': Justice Anup Jairam Bhambhani Flags Inadequacies Of Juvenile Justice System

Delhi High Court judge Justice Anup Jairam Bhambhani on Saturday spoke extensively on the state of existing juvenile justice system in the country and its failings. He stressed on the need for early intervention against juvenile delinquency, and involvement of family in the rehabilitation of such children.

Justice Bhambhani was speaking at an event organized by Delhi Commission for Protection of Child Rights (DCPCR) along with 'Haq: Centre for Child Rights' on the topic "Justice, Trial, Proceeding & Pendency of POCSO Cases." He also recalled a recent case involving a minor, who was allegedly sexually abused by her own father and brother.

Prevention Of Juvenile Delinquency

Stressing on early intervention to prevent juvenile delinquency, Justice Bhambhani said research in foreign countries has thrown up certain variables which may help predict juvenile delinquency.

"For example, individual attributes of a child from the very beginning when he attends preschool or school, or attends even a community gathering somewhere. Is he aggressive? Is he overly competitive? Is he fair in his behaviour? Does he filch, does he pinch, does he steal. These are little things that can be observed by the community when the child is still very young."

Justice Bhambhani added that nobody is a born errant, "much less is anybody born a criminal as it were."

"These propensities developed by reason of the environment in which one grows up. These propensities evolve because of a defence mechanism in a lot of the cases. We have to be observant to see and attempt to predict elements of antisocial behaviour in children. Now, these attributes, research shows, can help identify the developmental trajectory of juveniles and children and paying attention to these variables especially within vulnerable communities can help predict later delinquent behaviour and help in its prevention," he said.

The judge also explained the role played by family in nurturing the children and said, "children who are nurtured in environments where there is domestic violence for example, where there is drug and alcohol abuse, are likely candidates for future delinquency. So if the child sees the father beating the mother, chances are he thinks it is alright. He may not be his mother. He may be his friend. Now the gravity and the extent of the beating will decide whether he falls foul of the law or is it just a friendly brawl between two youngsters."

"And these are things which are self evident, they are intuitive if you would only pay attention. Children growing up in families having criminal involvement and being nurtured in environments of criminality are also vulnerable. As I said, maybe because of a defence mechanism, so if a child is growing up in a very aggressive environment, in an environment where there are brawls in the colony all the time with neighbours etc, he thinks it's alright he has to have that same skill set in order to just defend themselves," Justice Bhambhani said.

Stating that juvenile delinquency is not present only among the poor communities, Justice Bhambhani on Saturday said that children even from the rich communities are likely to be impelled towards delinquency in case they don't receive enough parental attention.

The judge said that the assumption that only people from poor communities are having delinquency problems is a "misconceived notion."

"So, juvenile delinquency is not born only from economic deprivation and this assumption that only people from poor communities are generally having delinquency problems, I think is a misconceived notion. And the archetypal rich brat whose father hands him the keys to his new BMW 7 series when the child is only 17 is an equally likely candidate for juvenile delinquency," the judge said

Stating that child neglect is as pernicious as child abuse, Justice Bhambhani said that the families which are rich, "high fliers flitting around the globe all the time" having no time and attention to devote to the child also have to be "under the focus, under the spotlight".

Role Of Courts

Speaking in context of matrimonial disputes and their impact on children, Justice Bhambhani said the institutions are not correlated and integrated enough to appreciate what is happening in the other institution.

"So if there is a court, which is dealing with family disputes, with matrimonial matters, a family court is in a sense disjuncted from a juvenile court. So a judge who's presiding over a family court says my issue here is divorce, is consent, mutual consent or otherwise, is maintenance, is streedhan, it's alimony. And, yes, of course, visitation and custody of the child," he said. 

Continuing, Justice Bhambhani asked whether that judge can foresee the impact of that litigation on the child?

"Does that judge also appreciate or is he or she sensitised to appreciate that this may actually turn that child into a juvenile delinquent? So there is a disjunct, there is a disjointedness between courts and institutions, just because they are working on separate issues, under separate legislations and dealing with separate laws. But this is a problem. So the impact of what goes on in a family court, on what goes on in a juvenile court, is not sufficiently understood."

Justice Bhambhani further said that in order to achieve the identification of probable juvenile delinquency, it is necessary to sensitise all institutions, including those who are engaged with young children, for instance schools and social workers.

Battle Of Numbers

Justice Bhambhani at the outset of his speech spoke about the number of cases in the courts and elsewhere. 

"Numbers are our pain, not just in relation to child rights and child rights bodies and organisations. But I think first see, in every field, whether of governance, whether relating to the judiciary, we are constantly grappling with numbers and we are at pains to understand that no amount of infrastructure or procedures or manpower seems to be sufficient to bear the burdens that have been cast upon us and the demands that are made upon us from time to time in every field of work," he said.

Emphasising that a little more attention has to be paid on the inflow rather than just on outcome of the institutions, to "stem the tide of juvenile delinquency", Justice Bhambhani said

"If we worry only about our own outputs, how many juvenile courts do we need, how many matters are pending and for how long and how many juvenile police officers have we appointed? It will be a losing battle," he said while stressing on early intervention to prevent juvenile delinquency

He further said: "Also, because in any case, as we have seen, we are unable to cope with numbers we will never be able to cope with numbers. No institution can and let's not blame ourselves for it because the way our society grows, is growing. And especially in our country. By the time you plan something before it is off the table you plan it for a target audience or target user group of 10 lakhs. By the time you have completed your report that 10 lakhs has become 12 lakhs. By the time you implement it, the 12 becomes 15 lakhs. No institution, no plan, no scheme can cope with the exploding numbers endlessly. So, we have to therefore, as I said, stem the tide. So this, our organisations and institutions must keep a very close watch on this whole cradle to prison pipeline."

Family and Juvenile Justice System

Justice Bhambhani also stressed on integrating the family into juvenile justice system by engaging them sufficiently in the process as, he said, the child ultimately has to live with that family only. He said families need to be trained towards providing a better environment and support for rehabilitation and reintegration of the child into the society.

"That collaborative role, I think, is one of the first things we must focus on to take the burden off the systems of ourselves. We have to entrust the child back to the family. We have to train the family that 'look this is what your son or daughter did. We've solved it, the law has taken care of it. Now he's back in your family. Don't let it happen again."

Child Sexual Abuse

Concluding his address, Justice Bhambhani recalled a a recent habeas corpus case adjudicated by him while sitting in a division bench which highlighted the "inadequacies of the entire system to tackle a child who had suffered sexual abuse."

"We were a division bench of the High Court. We had ample, if not more, elbow room to tailor make relief whichever way we wanted to it. It was a habeas corpus petition. All rules were off and we could have done exactly what we wanted to deal with the matter effectively. But could we, did we? I will confess that we failed," the judge said.

He added: "And I'll tell you why. A young girl about 17 years or so suffered sexual abuse by the father and brother in the confines of the house. There is a mother. The brother himself is a juvenile. With the support of some friends after some months the girl musters up the courage, she makes a complaint because the episodes are continuing both by the brother and the father. The system gets triggered, the father and the son disappear, leaving the victim to an uneducated, non self-sufficient mother who knows not what to do. The police are at her doorstep every day looking for the father and the son."

"Habeas corpus is filed, comes before us. We promptly pack off the victim, 17 years or so, to a shelter home. We have in-chambers hearings, we meet the mother. Mother incidentally also had to admit herself to obtain anticipatory bail. So we meet the mother. It's a household with different floors. So the chacha lives on this floor and the chachi lives on that floor, that kind of a situation. We meet the uncle and the aunt. No one is willing to take the girl back from the shelter home. Why? The mother says that till she withdraws the complaint, I'm not taking this child back. Second round, she says I'm willing to take the child back but I don't know what to handle, how to handle it. What will I do with her? Is the allegation she made correct, we asked the mother privately. She says 'no, it's incorrect. False'. We know she's lying."

"She says if I take the girl back home, maybe she'd make false complaints against me. We call the uncle and the aunt living on a different floor in the same building. They say we are very happy to take the girl back but give us an assurance that if she makes any complaint against the uncle or the aunt or the children, no action will be taken. How can we do that?

 "The son eventually got bail because he was a juvenile. The mother finds herself firmly between a rock and a hard place and faced with work which was obviously evidently a dharam sankat, if that word ever applied to a situation, sandwiched between the husband, the son and the daughter."

"Most importantly, as the court we were stuck, what do we do now? We couldn't figure out a place outside of the shelter home where we could securely put the girl for any extended period of time. Where should we send her? The victim stayed in a shelter home for several months. She was sitting her Class XII exams. We took her through all that. She became major. The children's home says now take her back, we can't keep her. Under our request and directions, they keep the girl in the shelter home. The victim, if she is to be believed, even the investigating officer every time she escorted the girl to court told her 'don't press charges, it's not it's not good, ye achi baat nai hai'."

"Now, as judges we were completely hamstrung. We didn't know what to do. Till of course, eventually time heals everything so the mother finally came and honestly, for lack of a better option, we had to interest the girl back because now she was major. So several options were thrown up that she'll get into a paying guest accommodation. Some friend said I'll take care of her, none of which really inspired confidence because there was a mother, there was a home available to the girl."

"Honestly, I don't know what has happened to that matter, what happened with the girl, I have no idea but made me feel very inadequate as a judge sitting in a division bench seized of habeas corpus petition. So we don't have all the answers. And had there been a system of predicting some kind of errant behaviour, of preventing this whole very unseemly, very unpalatable situation I think that would be the better option."