juvenile delinquency - Nepal in Data

iJUVENILE DELINQUENCY

JUVENILE DELINQUENCY

Juvenile Justice Co-ordination Committee

Tribhuvan UniversityFaculty of Law

ii JUVENILE DELINQUENCY

Quality Assurance : Devendra Gopal ShresthaCommittee Justice, Supreme Court of Nepal Chair person, Juvenile Justice Co-ordination Committee

Prof. Dr. Tara Prasad Sapkota Dean, Faculty of Law, T.U.

Prof. Dr. Rajit Bhakta Pradhananga Chairperson, Criminal Law Subject Committee, Faculty of Law, T.U.

Co-ordinator : Prof. Dr. Laxmi Prasad Mainali Head, Central Department of Law, T.U.

Publisher : Tribhuvan University, Faculty of Law and Juvenile Justice Co-ordination Committee

© : Tribhuvan University, Faculty of Law

Supported by :

ISBN : ....

Disclaimer : The views expressed int he chapters are the sole responsibility of the authors. The editors, publishers and the supporting agencies have nothing to do with the contents of the chapters.

First edition : 2017

Published copy :

Layout/design : Bhusan Kapali

Printed at :

iiiJUVENILE DELINQUENCY

Editorial Note

As editors of this book "Juvenile Delinquency", we wish to acknowledge writers of each chapter who managed to accomplish their task on time and incorporated suggestions from many quarters.

The book is based on the Curriculum of Tribhuwan University, Faculty of Law, BA/LLB, 5th Year. This book contains covers various subject matters of Juvenile Delinquency. And this book is directed toward several audiences i.e. students and teachers, actors of juvenile justice such as police offi cers, lawyers, prosecutors, judges employed in juvenile justice systems. More importantly, students will also fi nd this book a useful survey of the latest developments in the fi eld of juvenile justice.

We would like to extend our sincere gratitude to outstanding scholars for their contribution on writing the chapters. Last but not the least, the information, arguments and views expressed in the articles are sole responsibility of the writers. The editor has nothing to do with the authenticity and originality of the contents in the articles.

EditorsProf. Dr. Laxmi Prasad MainaliRom Bahadur ThapaJuly 2017

iv JUVENILE DELINQUENCY

vJUVENILE DELINQUENCY

Forewords

Devendra Gopal Shrestha

vi JUVENILE DELINQUENCY

Forewords

Prof. Dr. Tara Prasad Sapkota

viiJUVENILE DELINQUENCY

viii JUVENILE DELINQUEJUVE

ixENCYENILE DELINQUENCY

Table of contents

Introduction to Juvenile Justice Dr. Ramesh Parajuli 1-34

Juvenile Delinquency Bibek Kumar Paudel 35-92

Th eories of Juvenile Delinquency Sandesh DhakalRom Th apa

93-210

Juvenile Justice: National Laws, Policies and Plans Rabindra Bhattarai

211-240

International Instruments Relevant to Juvenile Justice Prof. Dr. Laxmi Prasad Mainali

241-265

Juvenile Justice System in Nepal Kishor Silwal 266-301

Judicial Trends on Child Rights and Juvenile Justice in NepaL

Ashish AdhakariNarayan Prasad Subedi

302-317

x JUVENILE DELINQUENCY

1

Introduction to Juvenile Justice


ChaP

I INTRODUCTION TO JUVENILE JUSTICE

Ramesh Parajuli, Ph.D.*

"The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth."1

1. Meaning and Defi nition of JuvenileSocially, juvenile means a young person or a person who is not yet old enough to be legally considered an adult. Juvenile is physiologically immature or undeveloped human being reflecting psychological or intellectual immaturity. Biologically, juvenile is a term used synonymously with the term "child" which indicates a human being between the stages of birth and puberty. Legally, juvenile refers to a "minor" or an individual who is under an age fixed by law at which he or she would be charged as an adult for a criminal act.2 The United Nations Convention on the Rights of the Child, 19893 defi nes child as "a human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier."

1 Convention on the Rights of the Child, 1989. Preamble.2 Available at https://www.merriam-webster.com/dictionary/

juvenile (Accessed on March 1, 2017)3 Convention on the Rights of the Child, 1989. Article 1.

* Asst. Prof., Nepal Law Campus, Faculty of Law, T.U.

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The term "juvenile" has been derived from a Latin word "juvenis" meaning young. Juvenile means a young person who is not yet adult4. It refers to a young person who has not yet attained the age at which he or she should be treated as an adult for the purposes of criminal law. A juvenile is a young person, not fully mature, both mentally and physically. In law, the term "juvenile" and "minor" are usually used in different contexts; the former used when referring to young criminal offenders, the later to legal capacity or minority.5 The word "minor" denotes person who has not attained the legally required age of majority/adulthood. A child is a person, not a sub person.

"Child" in Nepal is "a minor not having completed the age of sixteen year" as per Section 2(a) of the Children's Act, 2048 (1992). Even though, Convention on the Rights of the Child (CRC), 1989 to which Nepal is a member state through ratifi cation on 14th September 1990 in its Article 1 seems to have defi ned "child" as "every human being below the age of eighteen years…", this age does not prevail over the Act's provision as the Article by respecting states autonomy has further announced "…unless under the law applicable to the child, majority is attained earlier." Since, CRC has recognized national autonomy of Nepal in determining the age of majority, 16 years is thus the age of majority under Nepalese Legal system. The provision of Section 9 of the Treaty Act, 2047 (1990) remains deactivated in this regard as this provision of Act is not inconsistent with provisions of the Convention.

Children's Act, 2048 (1992) is a specifi c law for the purpose of determining childhood and thus any person not completing 16 years is a minor in Nepal. The Child Labour (Prohibition and Regulation) Act, 2056 (2000) defi nes in Section 2(a), a child as "who has not completed the age of sixteen years" and provides further in Section 3(1) that children below the age of 14 should not be engaged in labour and the Act also prohibits engaging children into hazardous work. A 'child' as defi ned in the Human Traffi cking and Transportation Control Act, 2064 (2007) in Section 2(d) denotes "a person who has not attained the age of eighteen

4 A.S. Hornby. (1989). Advanced Learner's Dictionary of Current English (4th ed.). Delhi, Bombay and Madras: Oxford University Press. p. 681.

5 Henry Campbel Black. (1993). Black's Law Dictionary (6th ed.). St. Paul: Minn West Publishing Co. p. 867.

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years." The Contract Act, 2056 (2000) treats children below 16 as minors.6 In civil cases, the the competent age for fi ling a case is 16. No. 2 of the Chapter on Marriage in the Muluki Ain (National Code), 2020 (1963) stipulates the age to consent for marriage as 20 years. The Citizenship Act, 2063 (2006)7, the Begging (Prohibition) Act, 2018 (1962),8 and the Lands Act, 2021 (1964)9 has defi ned the minimum age for a child as below the age of 16. Thus, different laws have depending upon the purpose of the law, defi ned the age of children differently. However, generally persons under the age of 16 are considered children.

A child or juvenile below a certain age is considered to be irresponsible by reason of immaturity. Juvenile justice system is a specialized system designed to deliver justice to juvenile offenders called juvenile delinquents or in even more liberal term called "children in confl ict with law" these days.

The defi nition of juvenile is related to the age contemplated under a particular law of the country and it varies from country to country. The defi nition of child varies according to the purpose under domestic and international laws. Unless otherwise specifi cally provided, children are those who are below the age of 16 in come countries such as Bangladesh and Srilanka, 18 in Afghanistan, Bhutan, Maldives, Pakistan, United Kingdom, France, and USA and 20 in Japan.10

The term "juvenile" has been defi ned by Rule 2.2(a) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 as "a child or young person who under the respective legal system may be dealt with for an offence in a manner which is different from an adult."

6 Section 3(1)(a) of the Contract Act, 2056 (2000) provides that any person who have not attained 16 years of age will not be competent for concluding a contract.

7 Section 2(a) defi nes "Minor" means a person who has not attained the age of 16 years.8 Section 2(a) defi nes "Child" means a person who has not attained sixteen years of age.9 Section 2(c) defi nes "Family", in relation any person, means that "person and only his/

her relative in the status of until the father or mother is alive, a son, daughter who has not attained the age of 16 years irrespective of whether he has been partitioned,"

10 Laxmi Prasad Mainali. (2066 B.S.). "Balbalika Sambandhi Kanooni Samrachana". Nyayadoot, Kathmandu: Nepal Bar Association. pp. 44-45.

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"Juvenile offender" has also been defi ned by Rule 2.2(c) of the Beijing Rules, 1985 as "a child or young person who is alleged to have committed or who has been found to have committed an offence." Section 2(13) of the Juvenile Justice (Care and Protection of Children) Act, 2000 of India defi nes "child in confl ict with law" as "a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence."

Nepalese children aged 16 years and below make up 39.8% of the population and the children aged 18 and below occupy 44.4% of the total population.11 Juveniles are the life vein of the society; they are the pillars and builders of future nation; and they are also symbolic representatives of the national behavioural system.12 They are the overall successor of the nation representing the future. Their development has direct relation with the future development of the Nation.13 In this sense, children are a "supremely important national asset" and the future well being of the nation depends on how its children grow and develop.14

The optimal development of children is considered vital to society and so the juvenile justice system attempts also to understand the social, cognitive, emotional, and educational development of children as they go through various stages in course of development namely (i) neonate or newborn ( birth to 1 month), (ii) infant (1 month to 1 year), (iii) toddler (1-3 years), (iv) play age or pre-puberty age or often called pre-school and school aged stage (3-12 years), and (v) adolescent or teenager or puberty (13-19 years). Study of these developmental perspectives in child's life helps to identify the cause responsible for delinquency and suggest best strategy to address delinquency.

11 CBS. (2014). Population Monograph of Nepal. Vol. 2. Kathmandu: Central Bureau of Statistics. p. 293.

12 Badri Prasad Bhandari. (1998). "Juvenile Delinquency and Nepalese Law." Nepal Law Journal Special Issue on the Rights of the Child. Vol. 1. p. 71.

13 Bishal Khanal. (1998). "Juvenile, State and Social Justice: Some Shortfalls in the Development of Children in Nepal." Nepal Law Journal Special Issue on the Rights of the Child. Vol. 1. p. 14.

14 Mamta Rao. (2008). Law Relating to Women and Children (2nd ed.). Lucknow: Eastern Book Company. p. 413.

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The system looks at various social, cultural and socio-economic factors that infl uence the mind and behaviour of children as they grow up from prenatal stage to adolescence and till the age of majority. Childhood is the most signifi cant and very sensitive phase of human life that requires love, affection, play, child friendly environment and equal opportunity for development from parent, guardian, peer, school, state and even from the international community.

That is why the need for separate specialized system named juvenile justice system has been demand of this time that can effectively handle issues relating to juveniles who might be or are in confl ict with law. That is the reason why children are guaranteed special human rights to protect them during their minority in addition to the fundamental general human rights guaranteed by constitution to all citizens including adults despite some of these rights such as to marry or to vote etc. remain contingent until they are of age.

2. Concept and Rationale of Juvenile JusticeJuvenile justice is about not only the treatment of children in confl ict with the law, but also about dealing with the root causes of offending behaviour and measures to prevent such behavior. Work in the fi eld of juvenile justice therefore has two major strands: prevention and protection.

The concept of "juvenile justice" as defi ned by Rule 1.4 of the Beijing Rules, 1985 is to be understood as "an integral part of the national development process of each country, within a comprehensive framework of social justice for all juveniles, thus, at the same time, contributing to the protection of the young and the maintenance of a peaceful order in society." Thus, juvenile justice has direct relation with the development process of all countries as today's juveniles are the future nation builders and successors of this world.

The crux of juvenile justice is to focus on four major aspects in varied ways. First, to identify the root causes those push and pull juveniles into delinquent activities. Second, what measures should be taken in order to prevent juveniles from being dragged into delinquent activities. Third, how to rehabilitate, re-socialize and reform a juvenile convicted for delinquent act. Fourth, how to address or ensure community safety against the violence and threat of

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delinquents based on correctional and restorative justice and not through punitive approach.

In specifi c sense, juvenile justice concerns with children's well-being, including child health, abuse, youth crime, right of juveniles, alternative measures of punishment, differential treatment in the hearing of case and safeguarding the best interest of child in confl ict with law. Juvenile justice is concerned with the welfare of those who are processed through the system, and it uses a longstanding philosophy of rehabilitation (rather than punishment) to do so. It can be rendered either formally or informally, depending on the facts of each case.

Juvenile justice is the fair handling and treatment of youths under the law. It is a philosophy that recognizes the right of young people to due process protections when they are in trouble, and personal protections when they are in need.15 In its wider perspective, it includes provisions for the welfare and well-being of all the children in need of care and protection, while the formal system of juvenile justice actually deals with those who are already in confl ict with law or are likely to be so, for various reasons. Juvenile justice at present is considered as specialized subsystem of justice system as a whole rather than a branch of criminal justice system. It is called a whole aspect of legal process related with juvenile delinquency (baal bijyaai). It is most serious and of important concern in the course of administration of justice. It concerns with the rights of the juveniles, alternative measure of punishment, differential treatment in the hearing of the case and safe guarding the best interest of the juvenile. Prevention and protection are two major strands in the fi eld of juvenile justice.

Juvenile justice connotes justice to the delinquent or near delinquent child in various stages of the formal process such as arrest and apprehension, adjudication, sentencing, custodial care and detention and after care.16 It

15 Gus Martin. (2005). Juvenile Justice: Process and Systems. New Delhi: Sage Publications. p. 4.16 Ved Kumari. (2010). The Juvenile Justice System in India from Welfare to Rights (2nd ed.). New

Delhi: Oxford University Press. pp. 3-4.

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believes, juveniles can never commit crimes, what they can do is delinquency or wrong doing. Delinquency is of two types that might occur in course of breaking of the law by minors. First, "general offences" such as robbery, homicide, rape, theft etc. Second, "status offences" such as cigarette smoking, alcohol use/drinking, running away from home, truancy from school, child prostitution, watching pornography etc. Status offences as well as general offences committed by juveniles are to be handled only by the Juvenile Court. Status offences are punishable only to juveniles because of their status of being of lower age. These acts if done by adults are not considered criminal and are not punishable. Status offences are actions that adults can do legally, but juveniles cannot. The prevention of juvenile delinquency is an essential part of crime prevention in society. The root of adult criminality lies in juvenile delinquency and to prevent crime in society one must try to prevent juvenile delinquency.

Delinquency refers to violation of the law committed by a juvenile. It is a situation of children where they are in "confl ict with law." In Nepalese context juvenile delinquent is a person who is under the age of 16 and commits an act that if committed by an adult would have been charged as a crime. Delinquency may get manifested in a variety of styles of conduct either in the form of individual delinquency or group-supported delinquency or organised delinquency or situational delinquency.

Juvenile justice is a wide concept. It covers many different realities. It refers to the dealing of children in confl ict with laws. It relates to the rules governing the situation of alleged minor delinquents as well as convicted juveniles. It also refers to all the interactions that a child may have with the legal system. The main pillar of juvenile justice is that the juvenile justice system should focus on rehabilitation, restoration and reintegration rather than mere punitive repression. The right based approach in the treatment of juvenile matters is another important aspect of juvenile justice.17 The key objectives of juvenile justice are the child's rehabilitation and reintegration into their own respective

17 Ishwor Prasad Khatiwada. (2004). "Nepalese Juvenile Justice System: An Overview." KSL Journal. Vol. 2. Bhaktapur: Kathmandu School of Law. p. 31.

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society. Non-custodial sentences are far more likely to rehabilitation. The notion of juvenile justice calls for responsible and psychologically sensible institutions, procedures and outcomes.

The idea of juvenile justice system was started in the United States of America.18 At present, such idea has been extended in various countries of the world. In modern world, the concept of juvenile justice is well accepted as an important and a separate discipline of understanding.

3. Principles of Juvenile JusticeJuvenile justice system should be based upon a number of basic principles. These guiding principles are derived from various covenants, conventions, and guidelines. State, Government, Parliamentarians, Judicial Authorities, Juvenile Justice Coordination Committee (JJCC), Central Child Welfare Board (CCWB) and other competent authorities or agencies are required to be guided by these principles in course of discharging their functions relating to juveniles. The various principles relating to the administration of the juvenile justice, which are universally applied by many countries across the territorial jurisdiction, prescribed by the international law relating to juvenile justice, in general and the CRC, in particular can be discussed as follows:

Principle of Legal Guarantees and SafeguardsRule 7.1 of the Beijing Rules guarantees this principle as a right. The presumption of innocence is a basic procedural safeguard to all juveniles alleged of violation of criminal law. Right against self incrimination, right to get dignifi ed treatment during custodial interrogation, right to silence etc. are its basic essence. Article 20(5) of the Constitution of Nepal, 2072 (2015) guarantees right to be presumed innocent until proved guilty of the offence to every person. This safeguard is also found in Article 11 of the Universal Declaration of Human Rights (UDHR) and in Article 14, paragraph 2, of the International Covenant on Civil and Political Rights (ICCPR). Constitution of Nepal as well as Section 15 of the Children's Act, 2048 (1992) has guaranteed child with right against rigorous punishment

18 Laxmi Prasad Mainali. (2016). Juvenile Justice System in Nepal. Kathmandu: Pairavi Prakashan. Preface.

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(handcuffs and fetters, solitary confi nement or confi nement with adult prisoner) to a child convicted for any offence.Criminal responsibility should be related to age when they can understand the consequence of their action. Section 11 of the Nepalese Children's Act, 2048 (1992) determines the degree of criminal liability for a delinquent child based on their age. Accordingly, a child below 10 years is to be completely immune from criminal liability. A child between age of above 10 to below 14 years is to be warned and explained if commits an offence which is punishable with fi ne for adult under law and is to be imprisoned not more than 6 months at Child Correction Home if the offence is punishable with imprisonment for adult under law. A child aged 14 to below 16 years is to be punished only with half of the penalty to be imposed to an adult offender by law.

Principle of Dignity and WorthOne of the objectives of the UN Guidelines for Action on Children in the Criminal Justice System, 1997 as provided in Guidelines No. 8(a) is to ensure respect for human dignity, compatible with the four general principles underlying the CRC, namely: non-discrimination, including gender-sensitivity; upholding the best interests of the child; the right to life, survival and development; and respect for the views of the child. Guidelines No. 8 requires member states of CRC to adopt measures relating to policy, decision-making, leadership and reform laws with the goal of ensuring that … promotes children's sense of dignity and worth, and fully respects their age, stage of development and their right to participate meaningfully in, and contribute to, society.19

Principle of Detention as a Measure of Last ResortDeprivation of liberty should be imposed on a child in confl ict with the law only as a measure of last resort and should be limited to the shortest appropriate period of time. This principle has emerged from the recognition that detention of children is a harmful and damaging practice. In order for this principle to be meaningful, a wide range of alternative measures need to be available, and

19 Available at http://shodhganga.infl ibnet.ac.in/bitstream/10603/37610/8/08_chapter % 202.pdf (Accessed on March 3, 2017)

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they need to be used by judges and other decision-makers within the juvenile justice system.20

Principle of ProportionalityChildren in confl ict with the law should be dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. Both the child's individual characteristics and needs, as well as the type and seriousness of the offence need to be weighed in the balance when imposing a sanction on a child. Both of these separate elements are essential in order to curb excesses in sentencing. Imposition of sanctions or measures should be guided by the child's best interests, and limited both by the principle of proportionality (gravity of the offence) and by the principle of individualisation (personal circumstances of the child).21

Principle of Right to be HeardArticle 12(2) of the CRC requires that every child should, in particular, be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Principle of Best InterestArticle 3(1) of the CRC is the key provision on the principle of best interests which requires that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child should be a primary consideration. Constitution of Nepal, 2015 (2072 B.S.) in Article 51(J)(5) also requires state to pursue policy that takes into consideration primarily the 'best interest' protection of child. A child has right to enjoy special protection,

20 Dr. Laxmi Prasad Mainali & Rom Thapa. (2016). "Juvenile Justice Process in Nepal." In Dr. Shanta Niraula, Sandesh Dhakal & Rom Thapa (Eds). Child Psychology and Juvenile Delinquency (1st ed.). Kathmandu: Central Department of Psychology and Juvenile Justice Coordination Committee. pp. 179-208.

21 Ibid.

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and should be given opportunities and facilities, by law and by other means, to enable the chid to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child ought to be the paramount consideration. Need for child friendly hearing through Juvenile Court is an example where best interest of child is kept into paramount consideration as provided by the Juvenile Justice (Procedure) Rules, 2006 (2063 B.S.). Article 39(3) of the Constitution of Nepal, 2015 (2072 B.S.) that guarantees every child with the fundamental right to preliminary child development and child participation and the provision of Article 39(8) guaranteeing child friendly justice has direct relevance with this principle in Nepalese juvenile justice system. These provisions aim at ensuring the best interest protection if a child. In addition, Article 51(J)(5) of the Constitution requires state to give prime consideration towards the best interest protection of child.

Torturing cannot serve best interest of child. Section 5 and 6 of the Children's Act, 2048 (1992) prohibits torture or cruel treatment to juveniles. The act of scolding and minor beating to the child by his father, mother, family member, guardian or teacher for the child's interest was initially excluded from the meaning of torture and thus permitted. Supreme Court through a writ of certiorari in Advocate Raju Prasad Chapagain case22 quashed the then provision of No. 6(3) of the Chapter on Homicide in the Muluki Ain (National Code), 2020 (1963) that had licenced accidental death of a child due to an assault by a teacher or guardians in the name of protection and education just by imposing fi ne of NRs. 50.

Opportunity to be in contact with parents also serves best interest of child. Section 8 of the Children's Act, 2048 (1992) ensures right of child to get an opportunity to maintain personal relation and direct contact with the opposite parent if the parents are living separately due to divorce or another reason unless it may be contrary to the child's interest. In case of dispute due to rejection from meeting by parent or duration of stay, the matter is required to be settled as decided by the Court. Section 9 of the Act allows right of adopted

22 Advocate Raju Prasad Chapagain et al. v. Offi ce of the Prime Minister and Council of Ministers et.al. NKP (2065 B.S.). No. 10. Decision No. 8019. p. 1180.

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son or daughter to be permitted to make direct contact or correspondence with natural parents on a regular basis.

Principle of Privacy and Confi dentialityThe right to privacy has been embodied in the Constitution of Nepal. It has been expanded by the judiciary so as to protect the victim of sexual abuse from undue publicity which will prejudicially affect the interest of the victim. The same has been incorporated in Sections 49 and 52 of the Children's Act, 2048 (1992) and anyone including chief of child welfare home or one if violates right to privacy and confi dentiality of juvenile by publishing confi dential statistics is punished with a fi ne of up to three thousand rupees or with imprisonment for a term which may extend to three months or with both and all the papers and books relating to the offence gets confi scated as per Section 53(9) of the Act.

Principle of Family ResponsibilityThe signifi cance of the family will be more apparent if we think of children of broken homes or destitute. The child takes birth in a family. Here the child is introduced to emotions like love and security. The child opens its eyes and is introduced to the outside world through mother's love, sibling's affection and father's authority. The social values and cultural aspects of the community are inculcated in the child within the family background.

A family is the place where the society starts its development and progress. The institution of family performs variety of functions as already described. These functions are important to the well being of the individual as well as the society. The children of broken home are psychologically unstable and emotionally insecure. They generally grow upon to become unbalanced personalities which are misfi ts in the society. They are maladjusted and may even become unsocial elements of society. Though it may be argued that since many functions of family like education, health, recreation etc. are being taken up by other social institutions, the importance of family is decreasing, but it is not true. Because a family retains its importance as a constituent entity and building block of all societies and communities and will continue to do so in future also.23 Thus the Ppinciple of family responsibility plays a vital role in the administration of Juvenile Justice as an informal care. The institutionalization

23 Supra Note 20.

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of the juvenile should be the last resort. The care shall be taken to sort out the problems of the Juvenile at the family level. The law believes in the family and fi xes the responsibility upon the family is the question.

Principle of SafetyThe principle of safety applies throughout the process of juvenile justice. It mandates the relevant authorities that extreme care should be taken in ensuring the safety of the Juvenile because of the fragile nature of the juvenile. This principle means and includes no harm, no abuse, no neglect, no exploitation and no maltreatment. It also mandates the state that the state shall not use restrictive measures in the name of safety of the Juvenile.

Principle of Positive MeasuresThis principle of positive measures runs throughout the juvenile justice process. The core theme of the principle is the promotion of the well-being of the juvenile. The term positive measures include the avenues for health, education, relationships, livelihoods, leisure, creativity and all the child friendly services throughout the process. The aim of the principle is to reduce the vulnerability of the juvenile and the reduction of intervention of the legal agencies in the process of promoting the well-being of the juvenile. The principle aims to achieve the objective of facilitation in establishing the personal identity of the child and to enable the child to equip himself to achieve the developments in all the process relating to the individual growth.24

Principle of Non-stigmatizationThe principle of non-stigmatization is to be understood in the negative terms i.e. to avoid certain expressions which are normally used in the Criminal Proceedings involving the adults. For example, Section 12 of the Children's Act, 2048 (1992) provides that for the purpose of determination of counts of offence, an offence committed during childhood should not be counted. Thus no additional punishment for recidivism or violation during childhood is counted. Enforcement of this principle not only avoids labelling or social stigmatization but even and provides better opportunity for correction and rehabilitation.

24 Ibid.

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Principle of Proceeding without DelayWhen children come in confl ict with the law, it is most important to ensure that speedy conduct of justice procedures in juvenile's cases is a paramount concern to protect the best interests of the child. In terms of the prosecution and defense, both sides must be guaranteed due time for preparing the case.25 In the case of Nepal, juvenile delinquency cases are required to be disposed within 120 days ofter fi ling of the case in court. However, a report published by Juvenile Justice Coordination Committee shows that time taken for decision making as within 4 months (10% cases), within 4-6 months (38.75%), within 8 months to 1 year (23.75%), within 1-2 year (20%), and more than 2 years (5%). Implementation seems poor in this regard.26

Principle of Fresh StartThe principle of fresh start signifi es a new beginning in the life of the juvenile in confl ict with law. The principle embodied in Section 12 of the Children's Act, 2048 (1992) to destroy all the past records relating to the juveniles for the purpose of enabling the juvenile to have a fresh start and it enables opportunity of not being socially stigmatized for whatever committed in the past.

Principle of Parens PatriaeThe principle of parens patriae is a legal doctrine in which the state plays the role of parent. The State acting through a Juvenile Court Judge can act in the role of parent for the juvenile when parents are deemed incapable or unwilling to control their children. Separate Juvenile Court, separate procedure, reform programs and probation are the consequences of the principle of parens patriae.

State is expected to carry out whole procedures of juvenile justice administration by realizing its role as a parent of the juvenile in confl ict with law. The juvenile justice is based on corrective justice instead of punitive justice, more civil than criminal, less formalized, individualized justice system, it serves as a parent of the child, respects confi dentiality, prevention as a primary objective, custodial sanction as a measure of last resort and for the shortest possible period

25 Supra Note 21.26 JJCC. (2014). Report on the State of Juvenile Justice in Nepal. Lalitpur: Juvenile Justice

Coordination Committee Secretariat (JJCC). p. 106.

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of time while taking into account the effects on the victim and community, derecognizes recidivism and avoids labelling as delinquent, and is an output of team work among the juvenile justice actors. These all features of the juvenile justice system remain functional under this umbrella principle.

The UN General Assembly adopted Declaration of the Rights of the Child, 1959 that enunciated ten principles for the protection of children's rights, including the universality of rights, the right to special protection, and the right to protection from discrimination, among other rights. These principles aim to enable every child to (i) have a happy childhood, (ii) enjoy for child's own good and for the good of society the rights and freedoms, and (iii) calls upon parents, upon men and women as individuals, and upon voluntary organizations, local authorities and national governments to recognize these rights and strive for their observance by legislative and other measures progressively. These principles are also called as Guiding Principles for the protection of children.

4. Age of Criminal Responsibility: Nepal and South AsiaEvery sovereign state through their law have determined the Minimum Age of Criminal Responsibility (MACR) applicable for their juveniles who violate criminal law of the land. Brief review of south Asian states' minimum age would be relevant.

In Afghanistan, no child under the age of 12 can be held criminally responsible.27 However, during review of Afghanistan in 2011, the Committee on the Rights of the Child criticised the State for detaining children under the age of criminal responsibility in Juvenile Rehabilitation Centres.28

In Bangladesh, no person can be held criminally responsible for an offence allegedly committed while they are under the age of 9.29 In Bhutan, no child below the age of 10 may be held criminally liable for a criminal offence.30

27 Juvenile Code, 2005. Article 5(1).28 UN Committee on the Rights of the Child, Concluding observations on Afghanistan's initial

state report, CRC/C/AFG/CO/1, 8 April 2011, paras. 74 & 75.29 Penal Code. Section 83.30 Penal Code, 2004. Section 114.

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In India, Section 82 of the Penal Code, 1860 defi nes the MACR at 7 years of age, while Section 83 lays out doli incapax provisions for children between 7 and 12 years of age, based upon a child's attainment of "suffi cient maturity of understanding to judge of the nature and consequences of his conduct." Even though India made important progress in juvenile justice with enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and some NGOs advocated for increase in MACR, the Act does not alter the Penal Code's MACR provisions nor are there any further efforts to increase India's MACR.31 In Maldives, the Penal Code, 2014 does not set a clear MACR, but frames the issue using the "excuse" of lack of maturity. A person is "excused" of a criminal offence if he or she lacks the maturity of an adult and as a result lacks the capacity to accurately perceive the physical consequences of his or her conduct; to appreciate the wrongfulness of his or her conduct; or to control his or her conduct. People under the age of 15 are conclusively presumed to be excused of any criminal offence with which he or she is accused. A person aged 15 to 18 is presumed to be excused of any criminal offence unless the prosecution rebut the presumption of immaturity. A person who was under the age of 18 at the time of an alleged offence and meets the requirements of this "excuse" must be transferred to the Juvenile Court, which has exclusive jurisdiction in any subsequent proceedings.32

However; this restriction does not apply to offences punishable under Sharia law or for violent felony offences, for which the penalty is postponed until the child reaches the age of 18. Under the Regulation on Conducting Trials, Investigations and Sentencing Fairly for Offences Committed by Minors 2006, children can be held criminally responsible from puberty for the offences of apostasy, revolution against the state, fornication, falsely accusing a person of fornication, consumption of alcohol, unlawful intentional killing and other offences relating to homicide.33

31 See UNICEF ROSA. (2005). South Asia and the Minimum Age of Criminal Responsibility: Raising the Standard of Protection for Children's Rights. Kathmandu: United Nations Children's Fund Regional Offi ce for South Asia.

32 Penal Code, 2014. Section 53.33 Regulation on Conducting Trials, Investigations and Sentencing Fairly for Offences Committed by

Minors. Article 5(a)(c).

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In Nepal, Section 11(1) of the Children’s Act, 2048 (1992) establishes MACR as 10 years of age. General Comment No. 10 of the Committee on the Rights of the Child concluded that a MACR below the age of 12 years is considered by the Committee not to be internationally acceptable.34 At the same time it stresses that States Parties should not lower their age of criminal responsibility to 12 where it has already been set higher and strongly encourages States to introduce a higher MACR, for instance 14 or 16 years of age. Certainly there is nothing to prevent States from having 18 as their MACR and a number of countries have chosen to do so including Brazil.35 In this sense, this General Comment36 is also an advice for Nepal and thus law makers are expected to elevate this minimum age from 10 to higher.

In Pakistan, Section 82 of the Penal Code sets the age of criminal responsibility for most offenses at 7 years, while Section 83 lays out doli incapax provisions for most offenses for children between 7 and 12 years of age. However, Pakistan’s 1979 Hudood Ordinances hold all people criminally responsible, regardless of age, for specifi c offenses including rape, adultery, the use of alcohol and drugs, theft, armed robbery, and slander. Therefore, there is no lowest age at which children may potentially be held criminally liable for infringements of the penal law, and by defi nition Pakistan has no MACR. The Committee on the Rights of the Child recommended in its 1994 Concluding Observations that Pakistan scrutinize its age of criminal responsibility provisions for conformity with the CRC, while one Committee member noted in 1994 "that the consistently serious accounts by UNICEF and various NGOs of the treatment of children under Pakistan's legal system confi rmed the need for a major overhaul of the country's legislation to eliminate the apparent inconsistencies in the ages of

34 UN Committee on the Rights of the Child. General Comment No. 10, ‘Children’s rights in juvenile justice’ (UN doc. CRC/C/GC/10), 25 April 2007. para. 32.

35 Article 228 of the Brazilian Constitution states that 'Minors under eighteen years of age may not be held criminally liable and shall be subject to the rules of the special legislation.'

36 Para. 32 of the General Comment No. 10 of Committee on the Rights of the Child appeals "States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level." Available at http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf (Accessed on March 24, 2017)

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criminal responsibility [and] the confl ict between hudood and other criminal legislation…."37

In Sri Lanka, Section 75 of the Penal Code, 1885 establishes the MACR of 8 years, while Section 76 lays out doli incapax guidelines wherein a child between ages 8 and 12 may bear criminal responsibility if he or she has "attained suffi cient maturity of understanding to judge of the nature and consequence of his [or her] conduct on that occasion." The Committee on the Rights of the Child stated its deep concern for this low minimum age of criminal responsibility in its 1995 Concluding Observations, and reiterated its serious concern in its 2003 Concluding Observations. The Human Rights Committee, which is the international monitoring body for the ICCPR, 1966 also noted in 1995 that Sri Lanka's low MACR was a matter of main concern. It expressed equal concern for Sri Lanka's doli incapax statutes, apparently for the discretionary power of individual judges to determine children's potential criminal responsibility.38

Though not in South Asia, in the mainland of our neighbouring China, generally, people can be held criminally responsible from the age of 16, but children can be held criminally responsible for intentional homicide, intentionally hurting another person so as to cause serious injury of death, rape, robbery, drug-traffi cking, arson, explosion or poisoning from the age of 14.39 Similarly in Hong Kong, a Special Autonomous Region, no one may be held criminally responsible for an action carried out while under the age of 10.40 In Macau, Special Autonomous Region, under the Penal Code, persons under the age of 16 are "exempt from punishment."41 However the minimum age of criminal responsibility is effective set at 12 by Law No. 2/2007, which sets out the scheme of "child protection education of young offenders."42

37 Committee on the Rights of the Child, Summary Record of the 134th Meeting: Pakistan, CRC/C/SR.134, 11 April 1994.

38 Human Rights Committee, Comments of the Human Rights Committee: Sri Lanka, CCPR/C/79/Add.56, 27 July 1995.

39 Criminal Law of the People's Republic of China. Article 17.40 Juvenile Offenders Ordinance. Section 3.41 Penal Code, Section 18.42 Law No. 2/2007. Article 1.

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5. Models of Juvenile JusticeJuvenile justice systems are often characterized as integration between "welfare" and "justice" model. The welfare model considers the needs of the juveniles and aims to rehabilitate the juvenile. The justice model conceptualizes offending as the result of a juvenile's free will, or choice. Offenders are seen as responsible for their actions and deserving of punishment. These models are ideal types and juvenile justice systems rarely refl ect purely welfare or justice models. Juvenile justice systems are more welfare-oriented than adult criminal justice systems.

Third approach is a restorative model which deals with involvement of victims in dealing with the offence. It emphasizes in the context of individuals taking responsibility for their actions. The offender owes a debt to the victim, which can only be repaid by making good the damage caused to that particular individual. The aim of the process is to bring about reconciliation, not to exact punishment. There are various models of juvenile justice practiced worldwide that have tried to incorporate both these concepts of welfare and justice. They might differ on the proportion of the emphasis the system puts in its practice. Some model emphasise on child participation (participatory model), some on welfare (welfare model), some on corporatism or administrative decision making (corporatism model), some on modifi ed justice (modifi ed justice model), some on justice (justice model) and others on crime control model. The major juvenile justice system models adopted worldwide, on the basis of their primary goal, can be classifi ed into nine categories. They are:

5.1 Welfare ModelThis model adopts a positivistic approach based on assumption that juvenile wrongdoing is the product of social or environmental factors for which the young person cannot be held individually responsible. Accordingly, the primary goal of the youth justice system is to provide appropriate help or treatment for offenders, rather than punishment.43

43 See Dean J. Champion. (2007). The Juvenile Justice System: Delinquency, Processing and the Law. N.J.: Upper Saddle River.

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It argues young people in confl ict with laws are vulnerable or in trouble and are in need of protection from the potentially harmful and corruptive infl uences of the adult world, including the adult criminal justice system. This model's primary emphasis is on the 'needs' and 'best interests' of the child rather than the 'deeds' they may have committed.

The same court has jurisdiction to hear case of children who are in need of care and protection as well as those in confl ict with law. Another feature of this model is that is that such court's jurisdiction is not only confi ned to conventional criminal offences but also encompasses so-called 'status offences' including behaviour such as truancy, or sexual precociousness. The paternalistic assumptions such as State funding to establish separate courts or socialised welfare tribunals as alternatives to the regular Criminal Courts are its distinguished features. The hearing approach relates to the use of social scientifi c 'experts' in the form of social workers, psychologists, psychiatrists, those trained in pedagogy, either as decision-makers in their own right or, more commonly, as advisers and report-writers to assist judges. Another closely related feature is that decision-makers are given wide-ranging discretion when determining and providing for the 'best interests' of the child. Creation of separate Juvenile Bench and composition of Child Psychologist, Social Worker and Judge in decision making justifi es that Nepal has adopted welfare model of juvenile justice. Sweden, Germany, France, Japan are the other countries where the welfare approach still retains.44

5.2 Justice ModelThe justice model promotes punishment proportional to the offence of a child. In contrast to the positivism of the welfare model, the 'justice model' is based on the assumption that even young people are – with certain limited exceptions –endowed with free will. Because they are considered to be responsible for their actions, it is felt acceptable for them to be held accountable in law for what they have done, which means that the primary focus is on the 'deeds' of the child rather than their welfare 'needs'. The model advocates for punishment

44 Available at http://www.oijj.org/sites/default/fi les/documental_1263_en.pdf (Accessed on March 16, 2017)

21



as a way of ensuring justice and fairness by emphasizing the proportionality between seriousness of delinquency and punishment.

The institutional arrangements associated with this justice model consist of modifi ed 'Junior Criminal Courts' rather than the socialised welfare tribunals that help to characterise 'pure' versions of the welfare approach. The notion that young people need to be protected from 'contamination' by mixing with older offenders is still present – up to a point – but is addressed by introducing relatively minor modifi cations to the standard lower-tier Criminal Courts that deal with adult offenders.

The most common modifi cations relate to the provision of separate Juvenile Court proceedings that are held either in a different building or at least at a different time from adult court proceedings; and the restriction of access to both the public; and the media.

The procedural safeguards that are associated with the justice model include various rights: to be notifi ed in advance of the specifi c charges a young person is facing; to legal representation; to a fair and impartial hearing; to confront and cross-examine witnesses and to be presumed innocent until proven guilty including a privilege against self-incrimination.

The range of sentencing 'outcomes' that are associated with the justice model more closely resemble those available in adult Criminal Courts, with a strong emphasis on the need for proportionate, fi nite and consistent penalties rather than the open-ended, indeterminate and highly individualised orders that are characteristic of the welfare model.

The infl uence of the justice approach on youth justice systems can best be visible in conservative corporatist states, Scandinavian social democracies and in the United States. 45

45 Supra Note 41.

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5.3 Noninterventionist or Minimum Intervention ModelThis model assumes that the juvenile justice system can better serve its objectives by restraining from a direct contact with a juvenile offender. The contact of a juvenile offender with a juvenile justice system can prove counterproductive and instigate recidivism.

The philosophy that underpins the 'minimum intervention model' is derived in part from criminological 'labelling theory', which suggests that all offi cial forms of processing young offenders are potentially harmful to them since they 'label' and stigmatise them as criminals. This makes it more or less, diffi cult for them to desist from crime in future since it may make it harder for them to engage in lawful activities, for example by rendering them unemployable. Indeed, it may also increase the risk of them participating in illicit activities, for example by confi ning them in custodial institutions where they can meet other offenders, learn from them and be drawn into criminal subcultures.

Placement in custodial institutions could for this reason constitute the most harmful and counter-productive of all offi cial interventions. In short, this approach is characterised by a concern that offi cial responses to crime may frequently promote 'secondary deviance' on the part of young offenders, thereby fuelling the 'deviancy amplifi cation spiral' that they are ostensibly designed to prevent.

Considerations such as these have given rise to a 'minimum intervention' strategy that incorporates some or all of the following elements: (i) avoiding the use of custodial or residential institutions wherever possible; (ii) using community-based alternatives to custody wherever possible in cases that do call for a punitive intervention (linked with a policy of diverting young offenders from custody); (iii) avoiding prosecution altogether where possible, by encouraging prosecutors to discontinue proceedings and encouraging the police to 'caution' or warn young offenders instead (linked with a policy of diversion from prosecution); (iv) taking care to avoid 'net-widening' by ensuring that the above interventions are never used for young people who would otherwise have been dealt with informally (linked with a policy of targeting and monitoring); (v) advocating a policy of 'decriminalisation', certainly with

23



regard to 'status' offences, where they exist, but also at the very least in respect of minor criminal offences which, when committed by young people, would no longer carry even the threat of criminal sanctions; and (vi) advocating a policy of 'depenalization' whereby even young offenders who commit more serious offences would no longer come within the jurisdiction of the Criminal Courts, but would be dealt with instead by means of civil proceedings administered by an appropriate 'child-sensitive' institution or tribunal.

One of the key tenets of the minimum intervention model – that custody should by imposed on those under the age of 18 only as a last resort and for the shortest possible period - was incorporated in Article 37 of the CRC. So potent was the model for a time that in some countries, notably England and Scotland, it was referred to as 'the new orthodoxy'. Despite these short-term successes, however, the infl uence of the model has waned more recently, especially in some of the neo-liberal countries46such as Australia, Chile, and Argentina and so on.

5.4 Restorative Justice ModelThe restorative justice model places particular emphasis on the harm that is done to the victim, whose interests were for many years neglected by mainstream criminal justice agencies and policy-makers alike. This model advocates a policy based on involving those who are most directly affected by a particular offence – victims, offenders and their 'communities of care'– in decisions about how it should be resolved.It advocates a very different set of goals instead of the predominantly offender-focused goals-retribution, deterrence, rehabilitation, and incapacitation. With regard to victims, the aim is restoration, which encompasses the repairing of the physical, emotional and psychological harm that may have been experienced. With regard to offenders, the primary aims include the promotion of accountability towards those who have been harmed by an offence, and the active reintegration of offenders themselves back into the community.47 New Zealand, some jurisdictions of United States, England and Wales and also

46 Ibid.47 Ibid.

24



South Africa are the examples that have adopted this restorative model of juvenile justice.

5.5 Neo-correctionalist ModelThe neo-correctionalist model resembles the justice model in as much as both adopt an uncompromisingly punishment oriented approach, but in other respects they are very different. Whereas the justice approach views the offender as a bearer of rights-and therefore entitled to protection against excessive punitive interventions on the part of the state, the neo-correctionalist approach is more likely to emphasise the responsibilities that young offenders, and even their parents, owe towards others, including the victim, the community and the state. And whereas the justice model makes at best modest claims as regards its ability to achieve any reduction in the incidence of crime- preferring to ensure that offenders receive the punishment which is most just rather than the most effective in terms of crime reduction - the neo-correctionalist approach espouses a much more ambitious crime control goal for the youth justice system.

Under this model, the prevention of offending by young people is accorded primacy, and all other aims are subordinated to it. For example, reparation for victims and also the wider community is favoured chiefl y insofar as it may contribute to a reduction in reoffending rates rather than something to which recipients should be entitled as of right. Another aim of the neo-correctionalist model is to improve the effi ciency of the youth justice system, for example by co-ordinating the activities of the various criminal justice agencies, speeding up the criminal justice process and increasing the effectiveness of the various interventions that are directed at young offenders.

The broad assumptions refl ected in policies and processes help to characterise the neo-correctionalist model. They include a marked preference for strategies based on the principle of 'early intervention', which in this context can take a number of different forms. First, there is a tendency to adopt various preventive measures for dealing with acts of pre-delinquency, including the creation of new quasi-criminal forms of 'civil' penalties to combat anti-social and related forms of behaviour. Second, there is a tendency to extend the principle of criminal responsibility to younger age groups. One way of doing this involves

25



the abolition of the protective legal doctrine of doli incapax whereby children of a certain age are presumed to be incapable of committing a crime unless they can be shown to appreciate the difference between right and wrong. Third, there is a tendency to adopt more intensive and punitive interventions even in respect of petty and fi rst-time offending, in order to 'nip it in the bud': the policy of 'zero tolerance'.

Other measures that are associated with the neo-correctionalist approach include the use of mandatory or semi-mandatory penalties for certain categories of offenders, and the adoption of so-called 'progressive' sentencing strategies whereby persistent offending is met by increasingly punitive responses regardless of the seriousness of the offences themselves. Finally, the emphasis on effi ciency is refl ected in the adoption of two related sets of measures. One involves the introduction of 'fast tracking' procedures that are designed to reduce the time taken to deal with young offenders.48

The fi rst signs of an emergent neo-correctionalist model could be detected in the United States during the late 1970s, and during the next two decades the transformation of American Juvenile Courts from a nominally rehabilitative welfare agency into a modifi ed Criminal Court for young offenders was increasingly infl uenced by an overtly neo-correctionalist agenda. Similar tendencies can also be discerned in most other neoliberal countries during this period, with the notable and interesting exception of New Zealand.

5.6 Rehabilitation ModelIt believes that delinquency is a result of failure of a child to integrate into the society and abide by the social norms. Failure of a child to have meaningful relationship with friends, poor educational performance and other socially aberrant behaviours leads to juvenile offences. The model seeks to get to the root of the delinquency by conducting programs that inspire change in the offenders' "attitude", personalities or character." The model promotes juvenile justice system.

48 Ibid.

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5.7 Treatment or Medical ModelJuvenile delinquency is viewed by this model as a result of dysfunction and "disease" in a child in need of treatment. Like a doctor diagnoses the disease in human body and prescribes appropriate medication for its control or treatment, this model identifi es the actual reasons of delinquencies and addresses such reasons whereby not only recidivism is prevented but the child is also treated of the disease leading to the commission of delinquency. This model is based on individualized treatment. Once the behavioural problem is diagnosed, the socially accepted manner of treatment is performed upon such juvenile to cure the deviation instead of punishing. Illino, a State in the mid-western region of the United States passed the Juvenile Court Act, 1899 which can be considered as an example of this model of juvenile justice system.49

5.8 Due-process ModelThe due-process model entails protection of basic fair trial rights of all accused, including juveniles such as right to be presumed innocent, establishment of guilt beyond reasonable doubt, right to representation etc. should be respected at all stages of juvenile justice system. Safeguards granted by the law and legal procedures are to be strictly complied with in this model. Under this due process model of juvenile justice it is believed that the best interests of the child should be sought while providing fundamental fairness and due process. North Carolina State of US can be one of the examples of juvenile justice system based on this model.50

5.9 Crime Control ModelThe model advocates that juvenile offenders should be "incapacitated" (either by the means of imprisonment or by strong community surveillance). The model however on the other hand also leaves room for community intervention to reform juvenile offenders. The model depends upon a case by case study, where persistent and chronic juvenile offenders are incarcerated and those

49 The juvenile justice system was founded on the concept of rehabilitation through individualized justice. Available at https://www.ncjrs.gov/html/ojjdp/9912_2/juv1.html (Accessed on March 16, 2017)

50 Jordan Institute for Families. (2007). Juvenile Justice: A Brief Overview; Vol. 12, No. 4. Available at http://www.practicenotes.org/vol12_no4/overview.htm (Accessed on April 26, 2017)

27



juveniles who are not much threat or dangerous to the society and those who can be reformed are sent to community. Canadian juvenile justice is a good example of this model as the Youth Criminal Justice Act, 2003 of Canada is built on three general principles- (i) Prevent crime by addressing the circumstances underlying a young person’s offending behaviour, (ii) Rehabilitate young persons who commit offences and reintegrate them into society, and (iii) Ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public.51

6. Historical Development of Juvenile JusticeThe idea of juvenile justice system was started in the United States of America.52 At present, such idea has been extended in various countries of the world. The recorded history shows in 1646, Massachusett's Stubborn Child Law, 1646 was passed which was the fi rst recognition of the status offences in American colonies. Later, New York House of Refuge was established in 1825 for reformation of juvenile delinquents.

In 1817, House of Refuge in London, United Kingdom was established. It was the 1st treatment focused juvenile facilities in England. The 19th century was a reformist era for juvenile justice in England. Youth Homes and Juvenile Courts were established during this era.

During 1838-39, juvenile justice system was infl uenced by the doctrine of parens patriae and Child Reform Schools were opened in U.S.A. at 1847, Juvenile Offender's Act was passed in England to provide separate hearing for juvenile offenders under the summary trial of Chancery. In 1861, the fi rst American independent Juvenile Court under statutory authority was established in Chicago.

In 1863, the fi rst law separating juvenile and adult offenders was passed in America. During 1874, Massachusetts passed probation law and appointed

51 Robert D. Hoge. Introduction to the Canadian Juvenile Justice System. Available at http://www.unafei.or.jp/english/pdf/RS_No78/No78_11VE_Hoge3.pdf (Accessed on March 16, 2017)

52 Supra Note 11.

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probation offi cer for supervising delinquents and passed law requiring separate court hearing for juveniles in USA. In England, the Summary Jurisdiction Act was passed in 1879 that adopted simple trial procedure for juvenile delinquents and stressed for the need of individualized treatment for reformation of such offenders.

Likewise, in 1908, Canadian Juvenile Delinquency Act was passed, Section 38 of which directed judges to treat children not as a criminal but as a "misdirected" and "misguided" children requiring aid, encouragement, help and assistance. In 1974, Juvenile Justice and Delinquency Prevention Act was passed in USA that deinstitutionalized juvenile offenders and required separation of juvenile delinquents from adult offenders.

After the establishment of United Nations Organization on October 24, 1945, the United Nations General Assembly adopted the Declaration of the Rights of the Child, 1959. It marked the fi rst major international consensus on the fundamental principles of children’s rights. The Beijing Rules, 1985 was also adopted. Later on, UN General Assembly resolution passed CRC, 1989 that entered into force from 2 September 1990. The Convention acknowledged and obliged member states to treat a child, by reason of his physical and mental immaturity, with special safeguards and care, including appropriate legal protection, before as well as after birth. Subsequently, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines, 1990 was adopted. Likewise, United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990 was adopted after which, United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules), 1990 got adopted and the Guidelines for Action on Children in the Criminal Justice System, 1997 respectively contributed a lot towards shaping the present well developed system of juvenile justice globally. In neighbouring India, the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rules, 2007 were enacted by replacing the earlier Juvenile Justice Act, 1986 that had replaced the earlier Children's Act, 1960. Thus the issue of juvenile justice has been well developed globally till today.

7. Difference between Juvenile Justice System and Criminal Justice System

29



Juvenile justice system is not a branch of criminal justice system rather it is completely separate system. There are many unique aspects of juvenile justice system that has established it as a distinct system from adult criminal justice system. These aspects include- the people involved in it, the way they act, the procedures, the physical and other facilities. For example, it is about the manner in which police arrests or interrogates children; the attitude of lawyers and prosecutors; the way that judges make decisions about guilt or sentencing; handling by correctional staff; the living, educational, recreational and safety conditions in detention facilities; and programmes for rehabilitation and reintegration.

The criminal justice systems for adult criminals and juvenile justice system for delinquents at modern time are treated as separate systems of justice because of following major reasons or differences:

Juvenile justice system Criminal justice system

The primary goal is to rehabilitate and serve the minor's best interest. Once a juvenile is deemed delinquent, the court determines what action should be taken and thus there exist fl exible or wider options. It focuses more on alternative sentences that keeps a juvenile out of jail, such as probation, parole, and diversionary programs.

In case of adult criminal justice system, the primary goal is to punish.

It does not allow retributive or deterrent justice as its ingredient and only accepts the notion of corrective and restorative justice. Such elements include possibility of institutional educative correction of delinquents to some extent and elements of restorative justice, i.e. reparative to the victim, responsive to the community and curative and therapeutic to the offender.

Retributive or deterrent justice as the major ingredient of this system.

30



Juveniles are prosecuted for delinquency and not for committing crimes, howsoever serious is the violation of law. Based on the premise that children and young adolescents are developmentally different from adults and are therefore more amenable to rehabilitation, and that they are not criminally responsible for their actions, children and adolescents brought before the court are assumed to require the court's intervention and guidance, rather than solely punishment.53 Juvenile delinquents are considered victims of circumstances out of their control, not as guilty due to their own free will.

Adult offenders are seen as rational actors deserving blame for their criminal acts.

Juveniles undergo 'adjudication hearing'. Adult criminal undergoes 'formal trial'.

A juvenile who is detained by the police is said to have been taken into custody.

An adult is considered to have been arrested.

Juvenile Courts are often more informal. The main reason for the establishment of the Juvenile Court is 'to prevent children from being treated as criminals'.54

Criminal Courts are strictly formal.

Juvenile justice system sends a delinquent to correction or rehabilitation Homes or centres or in the community. The purpose of placing juvenile delinquents in separate facilities from adult criminals is to insulate juveniles from 'bad infl uences,' to protect them, and to attempt to curb criminal tendencies before adulthood is reached.55

Criminal justice system sends a convicted for a specifi c period of sentence to the jail.

54 Ibid.

55 Available at http://criminaljusticeonlineblog.com/12/juvenile-corrections-versus-adult-

corrections-systems/ (Accessed on March 16, 2017).

53 Joan McCord et. all. (2001). Juvenile Crime, Juvenile Justice. Washington, DC: National Academy Press. p. 157.

31



Diversion is a rule and prosecution is an exception under juvenile justice system.

Prosecution is a rule and withdrawal of criminal charges is an exception in criminal justice system.

Filing of case depends on socio-legal factors and majority of cases are diverted from formal proceedings in juvenile justice system.

The practice of plea-bargaining and decision to prosecute is based on legal facts and evidences.

Recidivism and labelling is not allowed in juvenile justice system.

In criminal justice system the degree of liability increases to adult criminals for recidivism with social stigmatization.

The petition the prosecutor brings to the court will come under a violation of the juvenile code for juveniles.

Adults will be charged with a crime under the penal code.

Adjudication hearings for juveniles are generally private, informal and non criminal in nature.

Trials for adults are usually formal, public with some exceptions, and follow rules of Criminal Court procedures.

Judge in an adjudication hearing is a fact fi nder and acts as a wise parent.

Judge in an adult trial is neutral who acts as per legal facts and evidences and intervenes only to keep order in a court among adversarial prosecutors and defense attorneys.

Juvenile justice system does not punish a delinquent by death or life imprisonment.

Criminal justice system may punish an adult criminal by death or life imprisonment.

Juvenile justice system may prohibit certain additional behaviours to juveniles (status offences) such as smoking, alcoholism, truancy, running away, curfew violations etc.

Such acts are not prohibited in case of adult criminal justice system.

32



Delinquents in juvenile justice system are more likely than adult criminals to come to the attention of police, for a variety of reasons. In comparison with adults, juveniles tend to be less experienced at committing offences; commit offences in groups; commit offences in public areas such as on public transport or in shopping centres; and commit offences close to where they live. In addition, by comparison with adults, juveniles tend to commit offences that are: attention-seeking, public and gregarious; and episodic, unplanned and opportunistic.

On the contrary, crimes committed by adults are more professional, planned and strategically designed.

A juvenile justice system separate from the adult justice system was established in the United States about 100 years ago with the goal of diverting youthful offenders from the destructive punishments of Criminal Courts and encouraging rehabilitation based on the individual juvenile's needs.56 In practice, however, there was always a tension between social welfare and social control—that is, focusing on the best interests of the individual child versus focusing on punishment, incapacitation, and protecting society from certain offenses. Likewise, separate justice systems exist in Australia for young people and adults, each with specifi c legislation.57 The modern notion therefore, underlines the fact that juvenile justice system is different from the criminal justice system.

Nepalese legal system, before the ratifi cation of CRC, 1989 was not familiar with the concept of juvenile justice. The children were treated with criminal justice system. After ratifi cation of CRC by Nepal on September 14, 1990, enacted Children's Act, 2048 (1992) was enacted that introduced some primary concepts

56 Supra Note 54.57 Youth Justice Fact Sheet No. 35. Australian Government. Available at http://www.aihw.gov.

au/publication-detail/?id=60129548561 (Accessed on March 16, 2017)

33



of juvenile justice system and gradually started adopting the concept of juvenile justice.58 Supreme Court has also issued numerous orders in the area of juvenile justice system to make the Act more functional towards better juvenile justice system. Now we have Juvenile Justice (Procedure) Rules, 2063 (2006) to deal with the 'children in confl ict with law'. Enactment of the Act and Rules are the outcomes of ratifi cation of CRC. These laws have introduced the concept of juvenile justice system to be different from the traditional criminal justice system guided by the Muluki Ain (National Code), 2020 (1963) Nepal has committed herself in respecting and following other international Rules and Guidelines59 that specify juvenile justice standards for the protection of the rights of 'the children'.

Despite above differences, the juvenile justice and adult criminal justice system have certain similarities. Most importantly, individuals in both systems retain many of the same rights. These include- (i) right to an attorney, (ii) right to confront and cross-examine witnesses, (iii) privilege against self-incrimination, (iv) right to notice of the charges, and (v) the prosecution must provide proof beyond a reasonable doubt before a person can be convicted. Both these systems are designed to regulate human behaviour and protect society. Both constitute three basic stakeholders - the Police, the Juvenile Court, and the correctional institution.

The other similarities include: (a) Being taken into custody (for juveniles) and being arrested (for adults) both result in the offender being deprived of liberty. (b) There is little difference in a prosecutor petitioning the court for a juvenile or the prosecutor fi ling charges against an adult offender - both processes lead to hearings that results in a loss of freedom to a certain degree. (c) Both

58 Children's Act, 2048 (1992) is the fi rst legislation that departed system of providing justice for children from the regular criminal justice system. The act made four impacts. Firstly, it acknowledged the rights of child. Second, it introduced different judicial process for children. Third, it introduced separate facilities for children who are in confl ict with law or who are convicted for an offence. Fourth, it adopted separate policy in sentencing.

59 Though legally non-binding, these soft laws assist states in framing national laws on juvenile justice. They include UN Minimum Rules for the Administration of Juvenile Justice, 1985 ( The Beijing Rules); UN Guidelines for the Prevention of Juvenile Delinquency, 1990 (The Riyadh Guidelines); UN Rules for the Protection of Juveniles Deprived of their Liberty, 1990 (The JDL Rules); UN Minimum Rules for Non-Custodial Measures, 1990 (The Tokyo Rules); and the UN Guidelines for Action on Children in the Criminal Justice System, 1997 (The Vienna Guidelines).

34



juvenile delinquents and adult offenders are subject to sanction. Despite these actual similarities in procedures, the juvenile justice system avoids the use of adult criminal terms60 for juveniles, believing that juveniles are less than adults in general and the rehabilitation is better served instead of labelling them as criminals

60 The terms used in area of juvenile justice system include: delinquency, delinquent, adjustment, diversion, restorative justice, child correction home, control, child in confl ict with law, institutional care, shelter care, reformatory approach etc. The terminologies used in the area of criminal justice system include: mens rea, criminal, conviction, plea-bargaining, parole, detention, sentence, prison/jail, deterrent approach etc.

35

Juvenile Delinquency


UNIT

II JUVENILE DELINQUENCY

Bibek Kumar Paudel*

1. Concept of Juvenile Delinquency Defi ning delinquency is not an easy task. Universal and uniform defi nition is not possible. Some scholarly efforts of defi ning juvenile delinquency are worth mentioning here. Juvenile delinquency involves wrong-doing by a child or a young person who is under age specifi ed by the law of the place concerned.1 A status may include in the defi nition of delinquent child even a "way-ward, incorrigible, or habitually disobedient child."2 It has been stated that delinquency is a type of abnormality. Among the abnormal beings are who are superior to the normal ones, and those who are inferior to the normal being. Those who are superior are, directly or indirectly, benefactor of humanity: thus geniuses also are a type of abnormal beings. But, on the other side, are those who deviate from the normal in such a way that their activities may prove harmful to society or to themselves. When a behaviour pattern is of such a type we may term is 'delinquency'.3

* Associate Professor, Faculty of Law, T.U.1 Minocher Jehangirji Sethna. (1964). Society and the Criminal (2nd

ed.). Bombay: Kitab Mahal. p. 329. 2 Ibid.3 Ibid.

36



Juvenile delinquency could mean any types of behaviour, by those socially defi ned as juveniles, which violate the norms set by the controlling group. Form this view point, juveniles could be considered delinquent if they adopted modes of hairstyle, dress, or action that were opposed to the standards set by those in authority.4 It has been further discussed that juvenile delinquency, in narrow sense, is any action by someone designed as a juvenile that would make such a young person subject to action by the Juvenile Court. Even here, there are problems of defi nition, since many youths who commit such acts are not reported or subjected to offi cial Juvenile Court action.5

Juvenile delinquency applies the "violation of criminal code and /or pursuit of certain patterns of behaviour disapproved of for children and young adolescents."6 Thus, age and behavioural infractions prohibited in the statutes are important in the concept of juvenile delinquency.

Juvenile delinquency refers to the violation of a criminal law by a juvenile. ...If a juvenile has committed an act that would be a crime if committed by an adult, then the juvenile has committed juvenile delinquency. Moreover, juvenile delinquency includes acts that are legal for adults. These acts are called status offenses because they are illegal only for people with the status of being a juvenile. Whereas crimes consist of such acts as murder and rape (which are illegal for both juveniles and adults), examples of status offenses are running away from home and truancy (which are illegal only for juveniles). Juvenile Courts, as opposed to Criminal Courts, generally have jurisdiction over the crimes and status offenses committed by juveniles.7

Thus, juvenile delinquency is breaking of the law by minors. Delinquency can be of two types as given below:

4 Peter C. Kratcoski & Lucille Dunn Kratcoski. (1979). Juvenile Delinquency. New Jersey: Printicehall Inc. p. 2.

5 Ibid.6 Walter C. Reckless. (1956). Handbook of Practical Suggestions for the Treatment of

Adult and Juvenile Offender. India: Government of India. n.p.7 Neil J. Salkind (Ed.). (2002). Child Development. New York: Gale Group. p. 221.

37



General OffencesViolation of criminal law such as murder, rape, theft, robbery is considered as general offence. If such crime is committed by a minor, it can be termed as delinquency of general nature and such delinquency can be termed as crime if it is committed by an adult. Some sorts of juvenile may come in confl ict with criminal law by indulging in criminal activities which are punishable under criminal law of the given time. In such condition a juvenile and an adult both may be arrested for their wrongdoing.

Status OffencesIf minors come in confl ict with law in some conditions which are prohibited for juveniles which is ordinarily not considered criminal for adults like: smoking, truancy, running away from home, incorrigibility, and violations of curfew laws, below-age purchase or drinking of alcoholic beverages or various sexual acts that can be termed as status offences.8 There are four categories of status offenses:9

(i) "comical" category that includes activities as drinking or glue sniffi ng;

(ii) "community control" category which involves curfew violations or disruptive bahaviour;

(iii) "educational" category includes truancy or violations of school attendance laws; and

(iv) "family" category which covers running away or incorrigibility.

A juvenile status offender is a juvenile who has engaged in an act subject to Juvenile Court jurisdiction that would not be considered criminal if it were performed by an adult.10

1.1 Delinquent BehaviourThe human behaviour which is deviated from rational and normal behaviour of a normal human being can be considered as delinquent behaviour. The

8 Supra Note 4. p. 21.9 Lindsay G. Arthur. (1975). "Status Offenders Need Help Too." Juvenile Justice. Vol. 26. No. 1.

pp. 3-7.10 Supra Note 4.

38



following behaviours come under delinquent behaviour: • Truancy• Vagrancy • Doing unnecessary and unidentifi ed phone calls • Gambling • Involving in using and buying liquor • Remaining and wandering out of home • Running away from home • Arson • Driving without license • Furious driving • Unnecessary threatening to the people • Unauthorized use of others’ goods • Involving in gang fi ght • Using lethal weapons • Destroying others goods • Disobedience of parent • Trespassing to others’ premises • Involving in sexual activities/harassment • Involving in homosexuality

Delinquent behaviour, according to legal defi nitions, includes such acts as robbery, assault, property damage, drug possession, and other similar crimes committed by youth. Delinquency also includes what are known as status offenses, which are acts considered to be rule violations because individuals who commit them are not of legal age. Drinking alcohol, smoking, and truancy are some examples of typical status offenses. Although delinquency is technically defi ned as a single law-breaking act, researchers have found that some youths’ delinquent behaviour is of suffi cient frequency and severity to represent an identifi able pattern of behaviour that becomes apparent at an early age. Indeed, as early as the 1950s, important research by experts such as William McCord and Joan McCord began to identify factors that helped to explain an early onset pattern of antisocial and delinquent behavior. This

39



research cited harsh parenting as a leading contributor to the development of this pattern.11

The following types of behaviour come under Juvenile Court action:12

• Skipping school • Making anonymous telephone calls• Gambling for money • Staying out past the set curfew hour • Running away from home• Purchasing or drinking wine, beer, or liquor • Buying, using, or selling illicit drugs • Setting fi re to buildings or other property to damage it • Driving a car without a licence or permit • Driving too fast or recklessly • Using threat of force to get something from someone else • Drag racing • Taking or riding in a person's car without permission • Taking any item from a store without paying for it • Carrying a dangerous weapon • Taking part in a gang fi ght • Having a fi st fi ght with another person • Using or accepting something that another has taken without permission • Deliberately damaging or destroying another's property• Trespassing on the property of another • Defying parent's authority • Deliberately disobeying parents• Having sexual relations with a person of the opposite sex• Having homosexual relation • Breaking into or entering forcibly a residence or place of business

All these behaviours by young people could cause them to be brought to the attention of the Juvenile Court. A young people cannot normally be considered

11 Supra Note 7. p. 117.12 Supra Note 4. pp. 2-3.

40



to be a juvenile in confl ict with law unless he has been offi cially possessed by the Juvenile Court and adjudicated as such.13

1.2 Juvenile in Confl ict with Law The term "juvenile delinquent" is considered as offensive in the modern time; therefore, "juvenile in confl ict with law" is used for that juvenile whose conduct comes under the jurisdiction of Juvenile Court. All deviant behaviours of juveniles do not come under the jurisdiction of Juvenile Court, therefore, such behaviours are considered against social norm and values. Thus, juveniles may be referred to "juvenile in confl ict with social norms" whose is behaviour is against social norms that does not come under the jurisdiction of Juvenile Court.

It is a quite debatable issue in various jurisdictions of the world to determine who is a juvenile in confl ict with law, who is not, and what should be done about it. A widespread form of delinquency in Cairo is the collection of cigarette butts from the street, an offence which is unknown in other parts of the world.14 A survey of Lucknow and Kanpur in India indicated that the second most common juvenile offence was vagrancy. In Hong Kong, juveniles brought before the magistrate’s court who had committed only technical breaches of the law such as hawking without a license.

In Kenya, stricter enforcement of the vagrancy and pass regulations increased the number of juveniles appearing before the Nairobi Central Juvenile Court to more than 3,000 in one year. Available information from Lagos, Nigeria, shows that a delinquent is primarily an offender against the unwritten laws of the home; disrespect and disobedience are regarded as serious offences.

It can only be said that juveniles in confl ict with law, throughout the world, are involved in such a wide range of behaviour, from the most trivial to the most serious, that it is scarcely possible to generalize about all types of offences.

13 Ibid. p. 3.14 William C. Kvaraceus. (1964). Juvenile Delinquency a Problem for the Modern World. Paris:

UNESCO. n. p.

41



Legally a "juvenile in confl ict with law" is a youth who has been so adjudged by a Juvenile Court. …the legal status of juvenile in confl ict with law tends to depend more on the attitudes of parents, the police, the community, and the Juvenile Courts than on any specifi c illegal behaviour of a child.15 Children are considered in confl ict with law if they are found guilty in court of breaking any of laws designed to control adult behaviour. …most of the behaviour that gets a child into trouble with the police and courts comes under a much less defi nite part of the law on juvenile delinquency.16 A juvenile in confl ict with law is a child who is incorrigible or who is growing up in idleness, one who wanders about the streets in the night time without being on any lawful business, or one who is guilty of indecent or lascivious conduct. It is also considered that a juvenile in confl ict with law is deemed to be habitually uncontrolled, habitually disobedient, or habitually wayward; or who is habitually is a truant from home or school; or who habitually so deports himself as to injure or endanger the morals, health, or welfare of herself/himself or others.

A mother may fi le a petition in a Juvenile Court, alleging her child does not obey her, and have the child declared a juvenile in confl ict with law; another may regard the same behaviour as refl ecting an independent spirit. The status of the juvenile in confl ict with law depended on police attitudes, the racial background of the children, and often the time of the day or night the offence was committed. The procedures of the Juvenile Court also signifi cantly infl uence the determination of delinquency. Another important determinant delinquency status is the antisocial behaviour treated by welfare departments and social-work agencies. Thus, delinquency status bases on various determinants.

The Juvenile Justice (Care and Protection of Children) Act, 2000 of India has defi ned "juvenile in confl ict with law." The provision reads, "juvenile in confl ict with law" means a juvenile who is alleged to have committed an offence and

15 Martin R. Haskell & Lewis Yablonsky. (1970). Crime and Delinquency. Chicago: Rand McNally & Company. p. 252.

16 Ruth Shonle Cavan. (1961). "The Concepts of Tolerance and Contraculture as Applied to Delinquency." Sociological Quarterly. Vol. 2. pp. 243-258.

42



has not completed eighteenth year of age as on the date of commission of such offence.17

Nepalese law has defi ned child for the purpose of criminal liability. The provision reads- child means a child who has not completed the age of sixteen.18 But our law does not defi ne a "juvenile in confl ict with law", however it has some special provisions regarding the criminal liability of a juvenile in confl ict with law.19

2. Difference between Juvenile Delinquency and Adult Crime Terms 'deviation' and 'crime' often confusingly used. Actually, both are violations of social norms. A crime has a characteristic in that a law has been passed against it, making it a crime or offence against society and state but deviation may not be considered as crime in a given time. Thus, every deviation is not crime but every crime is deviation. Therefore, child deviation may or may not be a crime in the given time. A child deviation which is required to be regulated is a delinquency that may not be required to be regulated for an adult. A children whose behaviour is deviated than others can be called a children in confl ict with law but an adult whose behaviour is against criminal law is criminal.

The main factors that differentiate juvenile delinquency from the adult crime are as follows.20

In most of the jurisdictions, the cutoff point between delinquency and criminality is marked by age, usually eighteen.

• Juveniles in confl ict with law are generally considered less responsible for their behaviour than adult offenders, hence less culpable.

• In the handling of juvenile in confl ict with law, the emphasis is more on the youth's personality and the factors that motivated his illegal act than on the offence itself. The opposite is true of the adult criminal.

17 Juvenile Justice (Care and Protection of Children) Act, 2000. Section 2(l). 18 Children's Act, 2048 (1992). Section 2(a).19 Children's Act, 2048 (1992). Sections 11 & 12.20 Supra Note 15. p. 223.

43



• Treatment of the juvenile in confl ict with law has been directed more toward therapeutic program than punishment.

• The judicial process for a juvenile has been tended to deemphasize the legal aspects of due process and has been geared to more informal and personalized court procedure.

On the basis of discussion, we can differentiate the juvenile delinquency and adult criminality as follows:Juvenile delinquency Adult crime Juvenile remains under development process, his/her behaviour could be a general deviation than a crime that may or may not in confl ict of law.

Adults are already well developed and their criminal behaviour is more serious.

Juveniles in confl ict with law are under aged as stipulated by law and law does not deal them as criminal and law does not require punishing them rather reform and treatment.

Adults are major as defi ned by law and law deals them as criminal and fi xes the punishment to them.

Juveniles may not come in confl ict with law with mens rea because a child cannot create malice. Most of juveniles come in confl ict due to imitation and curiosity.

Adult criminal commit the crime in presence of mens rea because he can create malice. Adult generally commits crime with mollifi ed intention.

Juveniles in confl ict with law generally cannot control themselves and they may come in confl ict with law in emotion but not with planning.

Adult criminal can control themselves if they try to do. In case of criminality, they commit crime by planning; however, it may not apply in each and every situation.

The conduct of juvenile in confl ict with law is a deviation from social norms set by a given society.

Adult criminality is a crime as prohibited by criminal law.

Behaviour of juveniles in confl ict with law is a simple deviation from normal behavior.

Crime is a complex human conduct.

Juveniles are simple and strait forward not cruel. Juveniles may be exploited by adult criminals as innocent agent.

Adult criminals are complex and cruel by nature. They may employ children and lunatic as innocent agent.

44



State and society has to pay special attention to juveniles to protect and reform then because they are delicate persons and their actions are more tolerable.

Adults are considered as capable person to judge right and wrong and their actions are more blameworthy and they deserve harsh punishment.

Juveniles in confl ict with law are tried under Juvenile Court expecting treatment and reformation of child.

Adult criminal are tried under regular court expecting a sort of punishment, however, some sort of adult criminal could be reformed.

3. Deviation and Delinquency Any behavior that is contrary to the dominant norms of society is considered as deviant behavior. Deviance can be defi ned as non-normative behavior that can be subject to informal or formal sanctions. Deviant behavior is norm-violating conduct that is subject to social control. Deviance is any type of behavior that the majority of a given group regards as unacceptable or that evokes a collective response of a negative type. Deviants are those who engage in behavior that deviates from norms in a disapproved direction in suffi cient degree to exceed the tolerance limits of a discernible social group, such that the behavior is likely to elicit a negative sanction if detected.21

Generally, deviation from the set rules of society and other social institution can be considered as delinquency if such deviation is not tolerable in the given time. The intensity and severity of deviation as juvenile delinquency is generally determined by the social, economic and cultural conditions prevailing in a society. Such deviant behaviour may refer to a broad range of activities which the majority in society may view as eccentric, dangerous, annoying, bizarre, outlandish, gross, abhorrent, and the like. It refers to behaviour which is outside the range of normal societal toleration.22

Defi nitions of deviation are relative to time, place, and person(s) making the evaluation; and some acts are more universally defi ned than others. For

21 Bryan S. Turner. (2006). The Cambridge Dictionary of Sociology. New York: Cambridge University Press. p. 156.

22 Frank E. Hagan. (1989). Introduction to Criminology: Theories, Methods and Criminal Behavior. Chicago: Nelson-Hall. p. 6.

45



instance, in the mid-nineteenth century bathing in the tub was considered immoral as well as unhealthy in USA.23 During Lichchhavi period, presenting scents, fl owers, ornaments, clothes and alluring by food and drink to female was considered as sexual offences. Likewise, sitting together male and female in the same seat in a solitary place with mutual contact and also pulling each other's hair by male and female, was considered complete adultery in Nepal.24 All the societies have cultural values, practices, and beliefs which are prized or believed to be of benefi t to group and societies protect their values by creating norms which are basically rules or proscribed modes of conduct.25

Behaviour by a society's young people that deviates from the accepted standards will often be tolerated or even encouraged if it does not appear to threaten the well being of society as a whole. However, when those in authority decide that certain actions by some youths are threatening to the common good, the behaviour is no longer tolerated, and attempts are made to suppress it and punish the violators of the social norms.26 Thus, every deviation is not delinquency and only intolerable deviation is considered as delinquency.

If "normal" behaviour is the behaviour that is considered acceptable at a particular time in a certain society, then a juvenile in confl ict with law is in a sociological sense, "any child who deviates from normal behaviour so as to endanger himself, his social career, or the community".27

The types of behavior by youth that are defi ned as unacceptable may range from extremely antisocial actions to only minor non-criminality; and the society's response to this youthful behaviour may range from strong condemnation to mild disapproval. …children are not expected to be perfect, and deviation is tolerated if the beahviour is not viewed by adults as particularly threatening.

23 Ibid. 24 Tulasi Ram Vaidya & Tri Ratna Manandhar. (1985). Crime and Punishment in Nepal:

A Historical Perspective. Kathmandu: Bini Vaidya and Purna Devi Manadhar. p. 45.25 Supra Note 22. pp. 6-7.26 Supra Note 4. p. 5.27 Ruth S. Cavan & Theodore. N. Ferdinand. (1975). Juvenile Delinquency (3rd ed.).

Philadelphia: Lippincott. n. p.

46



In fact, children who conform exactly to the expectations set up for them tend to be viewed by both adults and their peers as somewhat abnormal. Occasional disobedience, mischief, violating of parents' or the city's curfews, or fi ghting when provoked generally do not lead to offi cial action. …the more serious misbehavior that may occur at this stage may be handled by the parents, school, or unoffi cial action by the police. When youthful misbehavior reaches the point of frequent dishonesty, deceitful or destructive activity, theft, or serious assault, the full weight of public disapproval begins to be felt. Parents and school offi cials may feel inadequate to handle the problems, the police may decide to treat these more serious matters offi cially, and the Juvenile Court enters. If an un-conforming youth is brought into Juvenile Court and adjudicated delinquent, this label is an additional sign of the public's rejection and disfavor. Eventually, a youth who continues to violate the society's values and norms in serious matters may be socially isolated from society through placement in an institution for juveniles.28 Such continuous violation of social values that come under the jurisdiction of the Juvenile Court is juvenile delinquency and the juvenile who violates such norms and values is called juvenile in confl ict with law.

Thomas and Hepburn said, "everywhere we fi nd that the increasing complexity of social, economic, and political relationships erodes the ability of less formal methods of social control to ensure a reasonable level of stability, to mediate confl ict and to protect the weak from exploitation."29

Deviations are of two types: primary and secondary. Primary deviation refers to the initial deviant action or behavior. It has been acknowledged that the very wide range of reasons for this like social, cultural, and psychological. More particularly, It has further been acknowledged that many people have been engaged in deviant or delinquent behaviors like: underage drinking, smoking cannabis or petty shoplifting and that for the most part engagement in activities does not lead to psychological reorientation in terms of self-identity i. e. individuals do not immediately see themselves as a drunk, a pothead, or a

28 Supra Note 4. p. 6. 29 Charles W. Thomas & John R. Hepburn. (1983). Crime, Criminal Law and Criminology.

Debuque, Ia.: William C. Brown. pp. 46-47.

47



thief. There is no fundamental change in identity.30

Secondary deviation relates to the offi cial or social reaction to the primary deviant behavior which involves the labeling of the individual: for instance a "young offender" or as a "criminal." Lemert’s thesis was that individuals so labeled would begin to engage in deviant behavior based upon the new social status of "young offender" or "criminal" conferred on them by the criminal justice system. Through formal name-calling, stereotyping, and labeling, a deviant identity is confi rmed.31

Thus, primary deviance is norm-violating behavior that does not result in consequential public labeling because it does not surpass a group, community, or society's tolerance threshold; therefore it is ignored or normalized. A juvenile can be termed as juvenile in confl ict with social norms who has involved in such deviation.

In contrast, secondary deviance occurs when norm-violating behavior passes the group, community, or society tolerance threshold, is subject to a "dramatization of evil"32 and stigmatized, and results in a changed self-concept for the deviant(s). Unlike primary deviance, which derives from multiple causes and is sporadic, secondary deviance is role-based behavior and is more predictable. In other words, secondary deviation is a function of societal reaction and stigmatizing labels. Related, deviance amplifi cation is the unintended consequence of formal and informal social control efforts, which often stimulate a spiral of deviance.33 While primary deviance might be a temporary aberration, secondary deviance was created as a reaction to the reaction of others to the initial deviance.34 We may term "juvenile in confl ict with law" of that category whose behavior comes under the jurisdiction of the Juvenile Court.

30 Supra Note 21. p. 334, quoting Lemert (1912).31 Ibid.32 Frank Tannenbaum. (1938). Crime and the Community. New York: Columbia

University Press. pp. 3-10.33 Ibid. p.139.34 Ibid.

48



Marshal Clinard (1970) has viewed crime as deviation; he has, however, maintained that all deviations from social norms are not crimes. He talks about three types of deviation which are:

(i) Tolerable deviation (ii) Deviation which is mildly disapproved, and (iii) Deviation which is strongly disapproved.

He opines that the third type of deviation is crime. In case of children, such deviation might be considered as juvenile delinquency. Thus, intolerable or disapproved deviation is juvenile delinquency and a juvenile who involves in such deviation is called a "juvenile in confl ict with law" and the juvenile who involves in the tolerable and mildly disapproved deviation may be referred as "juvenile in confl ict with social norms."

Sunner has indentifi ed three types of norms:35 (a) folkway, (b) mores, and (c) laws. These norms refl ect the values of a given culture; some norms are regarded by its members as more important than others.

Folkways are less serious of norms and refer to usages, traditions, customs or niceties that are preferred, however not subject to serious sanctions such as: manners, etiquette, dress patterns, and the like.

Mores refer to more serious customs which contain moral judgment as well as sanctions. Mores cover prohibitions against behaviour that are felt to be seriously threatening to a group’s way of life like: cheating, lying, stealing and killing.

Both folkways and mores are examples of informal modes of social control and are characteristics of small, homogenous cultures which feature simple technology and wide scale consensus.

Laws represent formal modes of control, codifi ed rules of behavior. Law represents an institutionalization of, or ‘crystallization’ of the norms. Sunner

35 William Graham Sunner. (1906). Folkways. New York: Dover. n.p.

49



suggested that if laws do not have the support or are not in agreement with the mores of a particular culture, they will be ineffective.36 Generally, the child behaviour in confl ict with folkways, mores and laws are considered as deviation that is equivalent to delinquency. Consequently, serious deviation is delinquent behaviour that requires to be treated under Juvenile Court.

4. Causative Factors of Juvenile Delinquency Various causes contribute in juvenile delinquency. Various scholars discuss the different causative factors of juvenile delinquency. There is no exhaustive list of causative factors; therefore, it is not possible to list out the complete factors of juvenile delinquency. The followings are causes of delinquency:37

• Bad company• Adolescent insatiability• Early sex experiences • Mental confl icts • Extreme social suggestibility • Love of adventure • Motion picture • School dissatisfaction • Poor recreation • Street life • Vocational dissatisfaction • Sudden impulse • Physical condition of sorts

The well known causative factors are roughly divided by scholars in major two categories like: individual and environmental or situational factors and the above mentioned factors include both individual and environmental factors. The causes of juvenile delinquency are divided in two broad categories like:38 (i) personal or individual causes like: physiological or psychological and (ii) environmental causes.

36 Ibid.37 William Healy & Augusta F. Bronner. (1936). New Lights on Delinquency and Its

Treatment. New Haven, CT: Yale University Press. n.p. 38 Supra Note 1. p. 330.

50



4.1 Individual Factors Some individual factors may contribute in delinquency. Sethna has described various personal causes of crimes and he regarded those personal causes are also causes of juvenile delinquency. Such personal causes comprise the followings:39

• Physical conditions and ailments like: ocular ailments, nose and throat obstructions, ear troubles, teeth ailments, speech defects, enuresis, phimosis, physical irritations, headaches, excess of physical strength, menstrual disorders, ailments of adolescence and other physical ailments and under-nourishment. These are the causes of juvenile delinquency.

• Mental conditions and ailments include mental weakness (feeble-mindedness), mental aberrations, e. g., epileptic mentality, hysteria, psychoses (paranoia, dementia precox, paresis, amnesic fugues, hypomania), sensuality, stubbornness of an extreme type hypersensitiveness.

• Fear • Emotional disturbance in childhood • Pathological causes like: Kpletomania (pathological stealing) and

Pyromania (pathological arson).

The following individual factors also play vital role in child behaviour. • Discipline• Submissiveness - obedience • Defi ance-disobedience • Hostility • Impulsiveness • Feeling of insecurity • Fear • Emotional confl icts • Lack of self-control

4.2 Situational factors No single cause plays the role in juvenile delinquency. Multiple situational

39 Ibid. p. 136.

51



factors are the potent cause of juvenile delinquency in the modern society. Sethna has discussed the following situational and environmental causes of delinquency:40

• Undesirable condition at home• Quarrel between parents • Desertion • Intoxication • Immorality of the parent • Poverty and lack of employment • Overcrowding in one room-lodgings• Lack of proper sanitation or conveniences • Cruelty of step parent • Desertion or lack of care in the case of an unwanted child • Either too severe or too lax discipline at home or school • Broken home

Such situational factors are discussed under the following topics:

4.2.1 Family Family is the basic socialization agency for the children. Children learn basic concepts about good and bad from their family; they make their values and set the norms of society. Family can make or break the personality of the children. In family, the most important role is played by the parents and siblings. Most of the child who shows delinquent behavior in any form belongs to families that could not give fi rm foundation to the children. Broken families, single parent families, separated families, frequent parents fi ght, lack of trust and confi dence among the parents, criminal parents or psychological problems in parents can be the potent cause behind juvenile delinquency.

Thus, family is a social institution that plays a vital role to mold child behaviour. Studies show that children who receive adequate parental supervision are less likely to engage in delinquent behaviour. Dysfunctional family settings: characterized by confl ict, inadequate parental control, weak internal linkages

40 Ibid. p. 330.

52



and integration, and premature autonomy; are closely associated with juvenile delinquency. Children in disadvantaged families that have few opportunities for legitimate employment and face a higher risk of social exclusion are overrepresented among offenders.

In the past, as Turner has rightly mentioned, one of the main functions of the family was seen to be the socialization of children into the next generation of workers, or parents, or even criminals. The experience of being a child was not an issue of sociological enquiry, although the question of what children might become when they reached adolescence or adulthood was important. Thus children were important in terms of their future as adults, not in terms of what they might "be" or "do" as children.41 Even at present, the family has a great role for shaping the personality of child.

Recent substantial changes of family like: the increase in one-parent families, living together as non-marital unions that results absence of fathers contribute toward cruelty, anxiety, insecurity and deviant behaviour of children. Family does not perform its socialization functions in a vacuum42. On the contrary, it refl ects and relates to economic, governmental, educational, religious institutions. As the society in which the family unit functions has changed, the structures and processes have also been altered and adapted to new social and cultural situations. Some situations like: urbanization, industrialization, changes in transportation and communication, changing values regarding premarital sexual activities and illegitimate birth, more tolerance and awareness of homosexuality, acceptance of divorce, recognition of female involvement in earning and her freedom of work outside home, development of new marriage styles such as trial period cohabitation before marriage, living relationship, alteration of the family from a child centered institution to one in which parents also seek to develop and fulfi ll their aspirations, acceptance of care of parents even of broken family, recognition of place of women in the family unit and in the whole society; have the dramatic effects in the modern family throughout the world. Such situations contribute in child behavior and

41 Supra Note 21. p. 115.42 Supra Note 4. p. 5.

53



some of them may cause delinquency. The contemporary family continues to be a potent force in delinquency prevention and generation. In combination with the infl uence of the school, the community, and the economic and social structure, it contributes greatly in to the milieu in which each child is socialized and prepared for adult life.

Three general types of families have been identifi ed as having some relation to delinquent behaviour by juvenile family members:43

those with a disrupted family structure, those in which children have experienced parental rejection, and those characterized by a lack of consistent and adequate discipline.

Here, the author has tried to discuss various factors of delinquency under family.

Parents' disciplineParents have been identifi ed as the fi rst and most infl uential educators of their children in cultural, personality, and moral development.44 Such teachings may include the inculcation of undesirable as well as desirable attitudes and values, and delinquent behaviour may result from youth's internalization of attitudes or behaviour pattern that are at variance with accepted community norms. Thus, parents' discipline itself can play a vital role to mold personality of children. When parents do not show discipline, moral behavior or they commit crime, children also imitate their behaviour and get motivation for delinquent behavior.

Parents' affectionAlmost every professional person who has studied and tried to analyze human behaviour agrees that children who feel they are not loved or wanted can be very severely damaged by such deprivation- real or imaginary.45 This also applies to children who sense that their parents' love is not really consistent and depends

43 Richard E. Hardy & John G. Cull. (1973). Climbing Ghetto Walls: Disadvantagement, Delinquency and Rehabilitation. Springfi eld, I11: Charles C. Thomas. n.p.

44 Supra Note 4. p. 105.45 Supra Note 14.

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on too many things. If a 6-year-old is constantly told that if he is 'good' he will be loved, is it unreasonable of that child to feel that this love is a conditional thing? Feeling a lack of love, or feeling that love is a promised reward, not a genuine and steady emotion, the child may develop an overpowering fear. This fear may express itself in aggressive behaviour based on anxiety-and a long cycle begins.

Every love relationship involves a risk and the possibility of failure. The adult who is disappointed or rejected can sometimes repair his emotions and recover. The child cannot. It must be recognized that there are some parents who do not love their children and many others who really cannot because of their own emotional disabilities and confusion. The child whose parents do not love him as a person feels betrayed or abandoned by them. Maladjusted children and adolescents are usually those youngsters who have suffered from these feelings.

Sometimes even genuine love is not enough. In the case of a family where the mother is the head of the house, the provider and the voice of authority, a rebellion might occur. Young boys wishing to become young men must break from this world of feminine rule, even if it means defying the mother, and assert themselves as males. When there is no man around the house on a permanent basis, this becomes diffi cult. The boy is under a peculiar sort of stress. It is possible that because of this stress he will try to take on attributes which will symbolize to him, and to the world, an unassailable masculinity.

Cohesiveness of familyFamily plays the important role in securing the social tie.46 Cohesive family can only play the positive role to develop such tie. Such family may have that quality to mold the good personality of children. If family is not cohesive; children may involve in delinquency.

Conduct standards of homeMorality is the most important concern among teens today. Teens should know

46 Supra Note 21. p. 85.

55



how to respect family and other people. They should give the due respect to everyone they know and meet. Some parents do not take care of their elders, and it is a known fact that such children who see their parents disrespecting their elders, their children never respect their parents and elder siblings. Such children may deviate from set norm of society.

Substitute parentsStep parenting would create more pressure to the child. If children are cared well or they are feeling lack of expected love and affection from substitute parent then children may be deviated from the family and can be involved in delinquent behaviour. Discriminatory or step-motherly treatment with children also has an adverse psychological effect on youngsters. Such effect may lead them towards delinquency.47

Father's work habitsIn the 1990s, researchers and social commentators began to document recent social and cultural shifts in how men see themselves in their role as father and how families, policies, and others conceptualize them in these roles. For example, increased women’s labor force participation has reconfi gured child-care environments for children, giving fathers the opportunity to play a more active role in the care of their children. In cases in which the mother and father of a child do not reside in the same household, men’s groups have argued that while men accept their responsibilities for the economic and psychological well-being of their children, they also demand legal rights and access to their children.48

These social shifts parallel changes in the cultural ideals of good fathering and have important implications for well-being of children. In general, children who grow up with involved, caring, and nurturing fathers tend to experience academic success and good peer relationships, and take less risky behaviors. In contrast, father absence is consistently associated with poor school achievement,

47 N.V. Paranjape. (2012). Criminology and Penology with Victimology. Allahabad: Central Law Publications. p. 575.

48 Supra Note 7.

56



early childbearing and high risk-taking behavior. Although the mechanism by which positive father involvement affects children’s outcomes is unclear, there is enough evidence to assert that fathers matter to the social, economic, and psychological development of their children, themselves, and their families.49

Economic condition of familyEconomic problem in a family is one of the causes of juvenile delinquency. Bad or weak economic condition of family may lead a juvenile towards delinquency. If a child does not get economic support from family to fulfi ll his/her necessity he/she can choose a wrong way to fulfi ll their need. Youth belonging from poor economical status easily get involved in delinquent activities. They want to improve their status and for this purpose they use negative path, in this regard often people do not support teenagers who belong from poor status and they go for deviant activities. Failure of parents to provide necessities of life such as food and clothing etc. draws their children to delinquency in quest for earning money by whatever means.50

Conjugal relations of parentsThe very concept of a conjugal role, with its implicit fusion of husband and wife disappeared when feminism challenged the masculinist assumptions of certain aspects of sociology.51 This idea created problems in conjugal relation of husband and wife. If the conjugal relation of parent is not so good that creates problems among parent and such bad conjugal relation of parent would be potent cause of delinquency.

Broken homes/intact homesChanging economic and social conditions at the beginning of the twentieth century created public concern about family breakdown and ushered in the scientifi c study of marriage and the family. Central to this emerging science was the identifi cation of the causes, correlates, and consequences of marital dissolution. Increased divorce rates over the course of the century ensured

49 Ibid.50 Supra Note 47. p. 574.51 Supra Note 21. p. 107.

57



continued focus on this topic and resulted in a large body of research on the impact of divorce on children.52 Disintegration of family system and laxity in parental control over children is yet another potential cause of juvenile delinquency. Unpredictable increase in divorce cases and matrimonial disputes is yet another cause for disrupting family solidarity.53 Researchers have consistently found that children from divorced families score signifi cantly lower on a variety of indexes of well-being compared to children from two-parent families.54 Broken homes and low education attainment as some of the causes of delinquency, most of the boys were from dysfunctional families.55 Some boys had been orphans without guardians before their arrests, others had single or divorced parents, and some had parents in major differences, others parents’ or guardians were alcoholics who could not offer good parenthood.56 Broken homes have been classifi ed in to two categories: socially broken home and psychologically broken home.57 Generally, the home where husband and wife engage in a war of nerves for long periods prior to a divorce, and that during those periods the home, while socially intact, is psychologically broken. The psychologically broken home, one in which the parents are consistently bickering, is believed to infl uence delinquency. In any case, most children from socially broken homes are not delinquent.

However, it is not necessary that all children in a family are affected in the same way, therefore, most brothers and sisters of delinquent children are not delinquent.58 Kvaraceus conducted a research and found that 761 delinquents were the members of 687 families. By this research, he found that the average delinquent had four brothers and sisters; nine out of ten were the only juvenile members of their families with delinquency contacts. Less than 9 percent of

52 Supra Note 7. 53 Supra Note 47. p. 575.54 Supra Note 7.55 M.O.D. Ojo. (2012). "A Sociological Review of Issues on Juvenile Delinquency".

The Journal of International Social Rsearch. Vol. 5. Issue: 21. pp. 465- 482.56 Ibid.57 Supra Note 15.58 Ibid.

58



the families had two children with delinquency contacts, and about 1 percent had three such children.59 The broken family where on parent is absent due to separation, divorce or death would fail to provide affection and control to the children may contribute in juvenile delinquency.

Structure/size of familyFamily size is a variable of great interest to those who study children. Empirical studies consistently have found a negative association between family size and children's mental ability, intelligence, and educational attainment. Two theoretical explanations have been posited to explain these negative relationships. Dilution theory suggests that as the number of siblings increases, fewer resources; e.g., parental love and attention, fi nances; are available to facilitate the development of each child. The confl uence model offers a more complex explanation that considers the interrelationships among the number of siblings, child spacing, birth order, and parent-child interactions. Although larger families include positive characteristics such as increased family socialization and father involvement, increased family size also is associated with more authoritarian parenting, which, in turn, can negatively impact a child’s self-esteem, self-differentiation, and ego identity.60

Affection of siblingsSiblings usually experience turmoil due to various combinations of previous jealousy of the pregnancy, lack of parental emotional availability, and processing the reality of death.61 Sibling's rivalry or unequal treatment between children can cause delinquency. Elder siblings have the responsibility to mold the personality of the children. When siblings do not show moral behavior or they commit crime, children or younger siblings also get motivation to do something bad.

Household dutiesOverburdened house hold duties in the family may be a potent cause of

59 William Clement Kvaraceus. (1945). Juvenile Delinquency and the School. New York: World. n.p.

60 Supra Note 7.61 Ibid.

59



delinquency. Generally, female child might face overburdened house hold duties in eastern society like Nepal.

Cultural refi nement of homeEach family and individual is unique, but there are many cultural values which contribute to mold personality of children. Either family of each social group also shares religious beliefs and practices to their children. These beliefs, along with family structure, food and dietary customs, and certain traditional holidays and celebrations, form the cornerstone of every community.62 The uncultured society's social practices and cultural values may lead children to delinquency, however, it is time and place relative that which society is culture and which is not.

Domestic violenceIn general, the term "domestic violence" refers to violence that occurs in the home that include physical, sexual, emotional, and psychological forms of abuse. Although violence in the home can be directed toward children, the elderly, or other household members, most often this term is used to represent violence between adolescents and/or adults who are currently or were previously involved in a romantic or intimate relationship.63 Such domestic violence is one of the causes of delinquency.

4.2.2 Peer Group Infl uencePeer group infl uence plays a signifi cant role to shape the personality of juvenile. It is a very strong force that may lead children towards either positive or negative way. Negative peer group infl uence can cause delinquent behavior for children. When friends commit crime, juveniles often learn to do it and they cannot understand the consequences of the crime. Peer group rejection can also be the cause of juvenile delinquency. Juveniles compare them to their peer group and try to get everything whatever is available to their peer group circle. Juvenile can also show delinquent behavior when they feel that they are deprived from similar resources as their friends are not.

62 Ibid.63 Ibid.

60



Quite often delinquent groups can counterbalance or compensate for the imperfections of family and school. A number of studies have shown that juvenile gang members consider their group is a family. For adolescents constantly facing violence, belonging to a gang can provide protection within the neighbourhood. In some areas those who are not involved in gangs continually face the threat of assault, oppression, harassment or extortion on the street or at school. As one juvenile from the Russian Federation said, "I became involved in a gang when I was in the eighth form [about 13 years old], but I joined it only when I was in the tenth [at 15 years of age]. I had a girl friend and I feared for her, and the gang was able to provide for her safety.64

4.2.3 Friendship Friends are people who feel affection for one another and enjoy spending time together. Reciprocity characterizes the nature of most friendships. Friends typically have mutual regard for one another, exhibit give-and-take in their behaviors, and benefi t in comparable ways from their social interaction. The formation, nature, and effects of friendship all change as children develop. Despite these changes, having friends is important to children's overall development, and friendship has an impact on children’s social, emotional, and cognitive growth.65 A wrong friend circle may lead a juvenile to delinquency.

4.2.4 School Environment One of the most crucial forces of juvenile delinquency, if we consider only the number of years during which exerts an infl uence over the child, is the school. The school cannot solve the problem of delinquency alone or even attempt to prevent it single-handed.66 However, its role should always be considered crucial in a well-planned community program. Our expectations of what a school can accomplish with children should be based on mature reasoning, not wishful fantasies. Exactly how much can be accomplished within a classroom often depends, too, on the kind of support a community chooses to provide.

64 United Nations Economic and Social Council (ECOSOC). World Youth Report, 2003.65 Supra Note 7.66 Supra Note 14.

61



The teacher, who is a trained observer, is in a position to observe and evaluate the child. Presumably, after seeing the child for a long period of time, the teacher can detect evidence or incipient signs of personal or social problems that are affecting the child and, ideally, offer the pupil some form of help and relief. The help may come from various sources and when it does, it is always to be hoped that the school will start a cumulative record on the particular pupil that can always be referred to if needed in the future. Together with the home, the school provides the basic learning experience for all children. Admittedly the school cannot ever completely compensate for the lack of a decent home or wise and loving parents. But it can do much to make the child aware of his own basic values and teach him how to develop them. Through his attendance at a good school it is hoped that a youngster will develop into a resourceful and capable being.

Both the community and the school should realize that, ideally, specialized professional personnel are needed to reinforce and augment the assistance a teacher can give to a pupil. Through the timely and skilful use of auxiliary services, the school can often help a child from becoming a failure.

Violent behaviour, vandalism, and drug use as well as the fi nancial diffi culties, falling achievement levels truancy, absenteeism, and dropout problems have been increased in school as the delinquent behaviour of the children.67 When delinquency is school related, it may be the result of socialization diffi culties experienced there by some children. Those from disadvantaged backgrounds may come to school without mastery of the basic skills needed to succeed there and perhaps without needed clothing and food.

The school is usually the fi rst institution entrusted with the care of a child away from the protective cloak of his family. As a socializing agency, it trains the child to accept rules laid down by strangers and enforced impersonality. At school, he learns to read and write and acquires intellectual skills. He also

67 Supra Note 4.

62



learns to compete with his peers in intellectual and athletic endeavours under the watchful eye of professionals who promulgate and enforce regulations.

With urbanization and industrialization, the schools became more complex, and course content began to include skills related to adult careers. For middle class children, in particular, the school years have become a preparatory phase for profession or business education.68 The child going to school from a poor family encounters many diffi culties, some attributable to his early experiences in the family, others resulting from defi ciencies in the school system. The fact that almost every delinquent has a record of poor achievement, truancy, or both suggests a serious failure of the school to meet his needs. Generally, the school does not cause delinquency, but rather presents conditions that lead problem children to leave school and become infl uenced by delinquent acquaintances on the street. In some instances, however, the school itself contributes to the development of juvenile delinquency.

The child is expected by his parents and society to succeed in life. Neither the family nor the school defi nes for him what success in his particular case, what he has to do to achieve it, and how his education will help toward that end.

The following failures in school system are supposed to contribute to delinquency:69

Providing frustrating experiences Failing to maintain interest Failing to provide a feeling of satisfaction among children Failing to provide satisfying personal relationships between students

and teachers

Thus, school must be good one that should create favorable condition to students otherwise student would deviate to delinquency. The following things in school may contribute for delinquency:

Adjustment to school mates Attitude towards school


63



Failure in class, or Lack of academic interest Dropout

4.2.5 School Treatment In one country, a Commissioner of Education has outlined a broad four-point programme through which many schools can help to meet the problems of juveniles in confl ict with law:70

• Maintain classes of small size so that teachers can reach the pupils as individuals.

• Train and procure teachers who have demonstrated their abilities to work constructively with children.

• Provide specialized staff members to help the teacher in meeting special problems within the school and make available clinical services including medical, psychological and social services for those children needing care beyond the scope of the school's responsibility.

• Gain support of parents and unify the efforts of parents and school personnel in planning and supporting school programs that aim to meet the delinquency problem.

And yet, admirable as these suggestions are, there is hardly a headmaster or school inspector who will fi nd them remarkably original. They do not need to be reminded that overcrowded classrooms often provide a handicap to both the teacher and the pupils. Few schools would refuse the services of nurse, a social worker or a psychologist if their budget permitted it. Pointing out the weaknesses of the schools rarely tells us how to cure them. Money is the needed commodity and, in many cities of the world, the very lack of classrooms, books and desks-as well as trained teachers-creates problems of the utmost urgency.

But the four-point program proposed by this one Commissioner of Education can be a valid reminder of what to aim for. It is not enough for one city or one community to feel satisfi ed because there is an ample number of primary or secondary schools. The very existence of school buildings and an adequate number of teachers means little. The only criterion is the progress of the pupils.

70 Supra Note 14.

64



4.2.6 Dropout The term "dropout" has generally been used to describe a person who leaves school without completing its educational program, and has thus been applied to children who dropped out of elementary school, high school, and college.71 It has taken a new meaning in recent years and is related to a growing delinquency problem. In the current use, the term applies to young people who attempts to drop out of the total society.

The lower class child is subjected to many frustrating experiences at school. These experiences contribute not only to his failure at school, but to development of a self-image of failure in life. School responsibility terminates when the student leaves school, whether or not he has graduated. The child of a poor family who drops out of school is not likely to get much help in fi nding employment or in obtaining additional training for an occupational career.

While many young people who drop out of school remain unemployed indefi nitely, others accept employment commensurate with their abilities, and many of these advance to skilled-labor jobs after a few years of occupational training and experience. There is considerable evidence that a large percentage of delinquent dropped out of schools. However, it is not clear that what percentage of school dropout become delinquent. Many of the dropouts from the larger society; those who, as a result of some failure in the socialization process, do not adapt to the normative economic and political systems, use drugs adopt a way of life that has become identifi ed with hippie scene.72

In terms of class background, there are two identifi able types of social dropout: the lower class dropout and middle class dropout. The middle class dropout appears to be a person of better than average intelligence who has probably completed high school. Many attended collage for one or two years. They are fairly knowledgeable in the social sciences and generally have anarchistic political views. Their relationship with their families is characterized ambivalence, and in most instances they live away from most if not all of


65



the time. The lower class dropout, generally, lives at home when he is not in correctional institution. He has usually quit high school. His relationship with his family does not appear to differ of that of other young people in his neighborhood and class. He does not work, and frequently participates in petty delinquent acts.

In most cases the middle-class dropout has dropped out voluntarily; the lower class has done so involuntarily, because for the most part he is denied access to signifi cant status position in the society. The middle-class dropout has access to a variety of relevant roles in the society, but because he is severely disillusions with the society he turns his back on its usual success goals and patterns.73

4.2.7 Movies and Mass MediaMany researchers have concluded that young people who watch violence tend to behave more aggressively or violently, particularly when provoked. Media bring an individual to violence in three ways. First, movies that demonstrate violent acts excite spectators, and the aggressive energy can then be transferred to everyday life, pushing an individual to engage in physical activity on the streets. This type of infl uence is temporary, lasting from several hours to several days. Second, television can portray ordinary daily violence committed by parents or peers. It is impossible to fi nd television shows that do not portray such patterns of violence, because viewer approval of this type of programming has ensured its perpetuation. As a result, children are continually exposed to the use of violence in different situations and the number of violent acts on television appears to be increasing. Third, violence depicted in the media is unreal and has a surrealistic quality; wounds bleed less, and the real pain and agony resulting from violent actions are very rarely shown, so the consequences of violent behaviour often seem negligible. Over time, television causes a shift in the system of human values and indirectly leads children to view violence as a desirable and even courageous way of reestablishing justice.

A number of cases have been reported where young persons have used the same techniques of committing crime which were shown in fi lms which they

73 Ibid.

66



watched. The children of lower middle class are more likely to be driven to the crime after watching these fi lms. The television cable network has produced infl uences on young persons. The present day television serials teach the young boys and girls modern techniques of deviance and ways to achieve high goals in life and earn money.

4.2.8 Work EnvironmentBad working environment of children is also another causative factor in juvenile delinquency. No payment, low payment, bad behaviour of inmates, boss and attendant may water delinquency.

4.2.9 Religion Religion is important in securing the social tie.74 Families and individuals engage in various practices of spirituality, including formal religion and different folk religions. …many children learn about beliefs by observing family or community practices, and often see the frequency with which saints, angels, and God are invoked by adults.75 From the earliest stages of birth through adolescence, religion can play a role in providing a framework for a child’s life and world view. A strong religious background can help children and adults individually and together answer life's most signifi cant questions, respond to diffi cult challenges, and make important decisions. Religion conveys a sense of the sacred or holy, often refl ected in views of a god. Each religion consists of rituals, symbols, stories, values, and role models, which guide and shape a child’s ways of being and acting in the world. Parents draw upon these different elements in passing on a religious tradition to their children, often sharing the responsibility for educating their children with a religious school and a religious institution.76

The relationship between religious control and delinquent behaviour has attracted great deal of attention from sociologists. The interrelation between religion and delinquency may be viewed from two angles, i.e. religion is

74 Supra Note 21. p. 85.75 Supra Note 7.76 Ibid.

67



considered in its positive sense as a source of constructive morality or as a negative instrument in terms of its undesirable leadership, distorted, practices and abuses due to corruption and "commercialization."

The infl uence of religion plays a signifi cant role in preventing criminal behaviour by molding the individual personality. In its negative aspect, religion is not only incapable of serving any useful purpose; it may in fact promote delinquent behaviour among young person as a result of their disillusionment with the system based on hypocrisy and dishonesty. The relationship of religion with delinquency may not very diffi cult from that of any other social control with delinquency. Religion may, therefore, be a useful but not a necessary instrument in preventing delinquency.

4.2.10 NeighborhoodThere is a widespread view that a "good" and "healthy" society should not have any delinquency.77 No doubt this is ideal; but so long as parents are as unstable and the young as experimental, as they are, it is questionable whether the elimination of delinquency, even if it were possible, is really desirable. There is much to indicate that delinquency is a disorder with a comparatively good prognosis and may represent a valuable safety valve. Generally, neighbourhood causes juvenile delinquency if neighbourhood is not good.

4.2.11 Race/casteDiscussing racial differences in the fi eld of psychology is problematic. The term "race" can be defi ned as a distinct biological group of people who share inherited physical and cultural traits that are different from the shared traits in other races. By defi nition, therefore, race implies racial differences. No scientifi c basis exists for notions of racial differences as biological, genetically inherited differences. Race is a social construction. Race and racial differences do not really exist. Rather, they have a social reality; they exist within the context of culture and the environment. Ideas of race and meanings of racial differences are determined by people in their interactions and through the negotiation of the meaning of

77 Supra Note 14.

68



race in everyday situations, circumstances, and contexts.78 The problem with the study of racial differences is that the ambiguity surrounding defi nitions and meanings of race and racial differences precludes us from understanding variability in behavior and/or processes of development. When race was used as a study variable in most behavioral research of the past, it was assumed to be the explanation for any differences found in behavior or the construct being studied. Therefore, researchers misled readers to assume that the differences were due to genetic differences. In reality, instead of helping clarify human variability, race merely identifi es another aspect of that variability.79 Same way, there is caste differences in the east. Caste division and social discrimination among castes exist in the oriental society; however, law does not recognize such discrimination. In Nepal, caste based discrimination was abolished by the Muluki Ain, however, such caste based social discrimination still exists in practice. Such social discrimination emanated from caste system creates the plot for juvenile delinquency. Therefore, racial and caste based discrimination may lead towards delinquency.

4.2.12 Poverty Poverty is a harsh reality of life in every society and it is yet another potential cause of juvenile delinquency. Various observations indicate that most of the youth are in crime because of poverty, which drove them into criminal acts for survival.80 A study revealed that over 70%; more than 40 out of 55 of the inmates were poor or came from poor family backgrounds based on where they lived, property ownership and the types of offences committed. For instance, some boys indicate that they had run from home to beg for survival in the streets because they lacked basic needs. In those streets they latter committed crimes to survive, they were involved in petty offences like stealing goods or properties whose value were too less.81

78 Supra Note 7.79 Ibid.80 David Prior & Alison Paris. (2005). "Preventing Children's Involvement in Crime

and Anti-Social Behaviour: A literature Review." A paper produced for the national evaluation of the children's fund. Institute of Applied Social Studies University of Birmingham.

81 John Onyango Omboto, Gerald O. Ondiek, Odhiambo Odera & Mary Evelyn

69



A research report shows that more than 10 million American children under 18 who reside in household classifi ed as low income, and another 3 million from families supported by aid to depend children payments. Adolescents from these backgrounds become part of a cycle of low income or unemployment.82

The President's Commission on Law Enforcement and the Administration of Justice (USA) recognized role of poverty in delinquency production more prevalent among youths of lowest socio-economic levels.83 The poverty is self-perpetuating documented fact, and criminal and delinquent activity may be an accepted part of the total picture for deprived children. Socialist school of law believes that the whole human history is guided by economy and law is an instrument of exploitation. According to this school, the capitalistic society is itself a criminogenic society. Unequal and unjust distribution of goods and services in the name of open market economy is the cause of crime and delinquency. Such distribution of goods and services creates poverty and poverty is one of the root causes of delinquency and crime.

4.2.13 Drug Drugs also lead the youth to crime and delinquency.84 There were some youth who claimed to have committed criminal activities under the infl uence of chang’aa (traditional liquor) and bhang. Most of the delinquents are drug addicts. Any psychotropic substance causes mental and physical imbalance that may cause delinquency.

4.2.14 Exclusion The growing gap between rich and poor has led to the emergence of "unwanted others." The exclusion of some people is gradually increasing with the

Ayugi. (2013). "Factors Infl uencing Youth Crime and Juvenile Delinquency." International Journal of Research in Social Sciences. Vol. 1. No. 2. pp. 18-21.

82 Supra Note 4.83 Ibid.84 Patricia G. Erickson. (2001). "Drugs, Violence and Public Health What Does the

Harm Reduction Approach Have to Offer?" Available at http://lexi.net/publications/books/drug_papers/UDErickson.pdf. (Accessed on

June 12, 2017)

70



accumulation of obstacles, ruptured social ties, unemployment and identity crises. Welfare systems that have provided relief but have not eliminated the humble socio-economic position of certain groups, together with the increased dependence of low-income families on social security services, have contributed to the development of a "new poor" class in many places.

The symbolic exclusion from society of juveniles who have committed even minor offences has important implications for the development of delinquent careers. Studies show that the act of labeling may lead to the self-adoption of a delinquent image, which later results in delinquent activity.85

4.2.15 UrbanizationGeographical analysis suggests that countries with more urbanized populations have higher registered crime rates than do those with strong rural lifestyles and communities. This may be attributable to the differences in social control and social cohesion. Rural groupings rely mainly on family and community control as a means of dealing with antisocial behaviour and exhibit markedly lower crime rates. Urban industrialized societies tend to resort to formal legal and judicial measures, an impersonal approach that appears to be linked to higher crime rates. Cultural and institutional differences are such that responses to the same offence may vary widely from one country to another.

The ongoing process of urbanization in developing countries is contributing to juvenile involvement in criminal behaviour. The basic features of the urban environment foster the development of new forms of social behaviour deriving mainly from the weakening of primary social relations and control, increasing reliance on the media at the expense of informal communication, and the tendency towards anonymity. These patterns are generated by the higher population density, degree of heterogeneity, and numbers of people found in urban contexts.86

The industrial development and economic growth has resulted into urbanization

85 Supra Note 64. 86 Ibid.

71



which in turn has given rise to new problem 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 fi nancially, results their children are left neglected at home without any parental control. Such situation may lead the children toward delinquent behaviour.

4.2.16 Economic and Social FactorsJuvenile delinquency is driven by the negative consequences of social and economic development, in particular economic crises, political instability, and the weakening of major institutions including the State, systems of public education and public assistance, and the family. Socio-economic instability is often linked to persistent unemployment and low incomes among the young, which can increase the likelihood of their involvement in criminal activity.87

4.2.17 Cultural Factors Delinquent behaviour often occurs in social settings in which the norms for acceptable behaviour have broken down. Under such circumstances, many of the common rules that deter people from committing socially unacceptable acts may lose their relevance for some members of society. They respond to the traumatizing and destructive changes in the social reality by engaging in rebellious, deviant or even criminal activities.88

4.2.18 Rapid Change in SocietyThe rapidly changing patterns in modern living also make it diffi cult for children and adolescents to adjust themselves to new ways of life. Such rapid change causes juvenile delinquency.

4.2.19 Migration Migration of deserted and destitute children to slums brings them in contact with anti-social elements carrying on prostitution, smuggling of liquor or

87 Ibid. 88 Ibid.

72



narcotic drugs and bootleggers.89 Thus, they lend into the world of delinquency without knowing what they are doing is prohibited by law.

4.2.20 Cyber System and Social Networking This is the age of cyber and social networking. Various websites and social networking like: face book, twitter are being effective means of information. Such means do not give only good things rather bad things like: pornography and other unnecessary information that cause juvenile delinquency.

4.2.21 Differential Association According to Sutherland, a person may have many associations, some of them having a pro-criminal-behaviour infl uence and other having essentially an anti-criminal behaviour, and may experience internal confl ict in trying to decide which set off values, attitudes and codes of behaviour to accept and internalize.90 Children may come in association of such people and can learn the delinquent behaviour, techniques of delinquencies, types and area of delinquencies too.

4.2.22 Other Factors Besides the aforesaid causes; illiteracy, child labour, squalor, imitation, emotion etc. are also some of the contributing factors aggravating juvenile delinquency.

5. Types of Juvenile Delinquency Delinquency exhibits a variety of styles of conduct or forms of behaviour. Each of the patterns has its own social context, the causes that are alleged to bring it about, and the forms of prevention or treatments most often suggested as appropriate for the pattern in question.91

Steven M. Cox and John J. Conrad have stated the following types of delinquencies:

89 Supra Note 47. p. 575. 90 See Edwin H. Sutherland & Donald R. Cressey. (1978). Criminology (10th ed.). New

York: J. B. Lippincott Company. 91 Ram Ahuja. (2002). Criminology. New Delhi: Rawat Publication. p. 108.

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5.1 Individual Juvenile Delinquency In this type of delinquency, only one individual involves in committing a delinquent act and its causes located within the individual delinquent. Most of the explanations of this delinquent behavior come from psychiatrists. The argument is that delinquency is caused by psychological problems stemming primarily from defective/faculty/pathological family interactions patterns.

The nature of unhappiness differed: some felt rejected by parents and others felt either inferior or jealous of siblings or suffered from mental confl ict. One indulges in delinquency as a solution to these problems, as it either brought attention from parents or provided support from peer or reduced his/her guilt feelings. The important aspect of bad family relation is to lead a juvenile to delinquencies.

5.2 Group Supported Juvenile DelinquencyDelinquencies are committed in companionship with others and the cause is located not in the personality of the individual or in the delinquent's family but in the culture of the individual's home and neighbourhood. The main fi nding and understanding why the young became delinquent was their association and companionship with others already delinquent. The theory of differential association of Sutherland was based on this concept. The idea focuses on what is learnt and who it is learnt from rather than on the problems that might produce motivation to commit delinquencies.

5.3 Organized Juvenile Delinquency Delinquencies that are committed formally by organized groups are referred to this type of delinquencies. This concept refers to the set of values and norms that guide the behaviour of group members encourage the commission of delinquencies, award status on the basis of such acts and specify typical relationship to person who falls outside the groupings governed by group of norms. The major goal of organized juvenile gang is to maintain sovereignty or control over its turfs.92 Organized gangs concentrate on gaining the respect and fear of members of their peer group. Although rules for the activities of the gang

92 Supra Note 4.

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members are well defi ned, dealings with the out-group are relatively norm less, and may involve violence, property destruction, extortion, intimidation, or virtually any means that the gang can conceive of as useful. Thus, the organized gang is in essence a miniature society establishing its own rules, regulations, and value system, which apply only to its members and serve the gang's needs.93

5.4 Situational Juvenile Delinquency The above-mentioned three types of delinquencies have one thing in common. In all of them, delinquency is viewed as having deep roots. In individual delinquency, the roots of delinquency lies primarily within the individual; in group-supported and organized delinquencies, the roots of delinquency lie in the structures of the society with emphasis either on the ecological areas where delinquency prevails or on the systematic way in which social structure places some individual in a poor position to compete for success. Situational delinquency provides a different perspective. Here the assumption is that delinquency is not deeply rooted, and motives for delinquency and means for controlling it are often relatively simple. A young man indulges in a delinquent act without having a deep commitment to delinquency because of less developed impulse-control and/or because of weaker reinforcement of family restraints, and because he has relatively little to lose even if caught. However, the concept of situational delinquency is undeveloped and is not given much relevance in problem of delinquency causation. It is a supplement to rather than a replacement of other types.

5.5 Juvenile Delinquency by CuriosityJuveniles are more curious by nature about new things because they want to know every new thing whatever they observe in their surroundings. Curiosity is one of the learning attitude by which juvenile learn so many things from family and society. If juvenile are in association with bad people, they would involve in such bad habits due to curiosity. While knowing new things juvenile would learn so many things which are adopted by their seniors if such things are bad then such activities of juvenile would come under the jurisdictions of Juvenile Court.

93 Ibid.

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5.6 Juvenile Delinquency by Pressure Juvenile may face so many pressures like mental pressure, family pressure, and social pressure while growing day by day. Such pressures may lead a juvenile to deviation. Sometimes, juvenile may feel pressure for not being unsuccessful in exam; she/he can drop out from school and try to involve in deviant behaviour like: drug use, vagrancy, vagabond, truancy, drunkard, smoking, street life. Sometime juvenile may attempt to commit suicide too. It is also considered that society creates a situation which compels a juvenile for showing deviant behaviour.

5.7 Imitative Juvenile DelinquencyJuveniles imitate so many good as well bad things from their seniors generally from parents, siblings, peer groups, teachers and so on. Juvenile begins learning mostly by imitation. Often parents exhibit faulty habits like: smoking, drug taking, having alcohol, gambling which their children imitate and obviously such faulty habit of parents lead the children to delinquency.

6. Classifi cation of Juvenile in Confl ict with Law Juveniles in confl ict with law have been classifi ed by various scholars on different basis.94 Ahuja has acknowledged the following six groups of Hirsh (1937) on the basis of the kinds of offences committed:95

(i) Incorrigibility like: keeping late hours, disobedience etc. (ii) Truancy like: staying away from school.(iii) Larceny like: ranging from petty theft to arm robbery(iv) Destruction of Property including both public and private property (v) Violence against community by using weapons (vi) Sex offences ranging from homosexuality to rape

Likewise, Ahuja has restated the following fi ve classifi cations of Eaton and Polk (1969) on the basis of types of offence:96

94 Supra Note 91. p. 110.95 Ibid. 96 Ibid.

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(i) Minor violations including disorderly conduct and minor traffi c violations

(ii) Major violations including automobile thefts (iii) Property violations (iv) Addictions including alcoholism and drug addictions(v) Bodily harms including homicide

Trojanowicz has classifi ed Juveniles in confl ict with law as given below:97

(i) Accidental,(ii) Un-socialized,(iii) Aggressive,(iv) Occasional, (v) Professional and (vi) Gang-Organized

Ahuja has discussed that some psychologists have classifi ed juveniles in confl ict with law on the basis of the individual traits or the psychological dynamics of their personality into the following groups:98

(i) Mentally defective,(ii) Psychotic, (iii) Neurotic, and (iv) Situational

7. Characteristics of Juvenile Delinquency Ahuja has stated the characteristics of juvenile delinquency of Indian society on the basis of some researches.99 The Nepalese and Indian societies are similar, therefore, such characteristics can be considered useful to our society. He has stated the following characteristics of juvenile delinquency on the basis of studies carried out by various researchers and data compiled by National Crime Records Bureau, 1998.

97 Robert C. Trojanowicz. (1973). Juvenile Delinquency: Concepts and Control. Englewood Chillfs, N.J.: Prentice Hall Inc. n.p.

98 Supra Note 91. p. 110.99 Ibid. p. 106.

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(i) The delinquency rates are higher for boys than girls. It shows that girls commit fewer delinquencies compared to boys. But recently, worldwide female delinquency rates are being increased. Haskell and Yablonsky have mentioned that juvenile delinquency is essentially a problem of boys. They further stated the types of offences; with which boys are charged tend to be overt, aggressive in form, and harmful to others; are destruction of property, truancy, and traffi c violations.100 Generally girls are brought in the Juvenile Court for incorrigible behaviour, running away, petty larceny and sex offences. The sex ratio of male adult criminals to female adult criminals is approximately eight to one; this is double the juvenile delinquency ratio of four boys to one girl. It is, therefore, assumed that boy offenders are more likely to continue adult criminality than girl offenders.

(ii) The delinquency rates tend to be highest during early adolescence (12-16 years age group). Haskell and Yablonsky have stated that 5.5 million persons arrested in 1967, youths below eighteen years of age constituted 24 percent of the total. The sixteen and seventeen year-olds are arrested more frequently than person of any other age category. Many of them had some experiences at delinquency when they were thirteen and fourteen, as indicated by the high arrest rates at these ages.101

(iii) Juvenile delinquency is more an urban than a rural phenomenon. It is being increased in metropolitan cities.

(iv) Children living with parents and guardians are found to be more involved in the juvenile crimes. This shows the role of family environment in juvenile delinquency and bad family environment increases the delinquency rates.

(v) Low education background is the prime attribute of delinquency. Thus, most juvenile in confl ict with law comes from illiterate and less educated families. However, nature of delinquency of educated and illiterate juvenile may be quite different.

(vi) Poor economic background is another important characteristic of juvenile delinquency.


78



(vii) Nine out of ten Juveniles in confl ict with law are fi rst-offenders and only one-tenth are recidivists.

(viii) Not many delinquencies are committed in groups. (ix) Though some delinquencies are committed in groups yet the juvenile

gangs having support of organized adult criminal is not large.

8. Scope of Juvenile Delinquency Kratcoski and Kratcoski have stated that the total number of offences by juveniles in any given period of time is impossible to ascertain.102 The actual amount of delinquent activity by juveniles each year is impossible to estimate, since so much of it is not reported to police or made known to the courts. Self-reported delinquency surveys have shown that delinquent behaviour exists in all social environments, and is committed by males and females.

One of the most wide ranging studies of self reported delinquencies was undertaken in the state of Illinois by the Institute for juvenile research in America. It was revealed that 74 % young people had cheated on examinations, 59% had consumed alcoholic beverages without parental permission, 56% had made anonymous telephone calls, 51% had engaged in petty theft, 47% had been involved in fi stfi ghts, 46% had shoplifted, 41% had driven without a license, 37% had used or kept stolen goods, 29% had driven too fast or recklessly, 27% had damaged property of others, 20% had carried out weapons, and 16% had taken part in gang fi ghts.103

Gold had concluded in his research that only relatively small percentage of those who had committed delinquent acts were ever caught and booked by the police.104 New area of delinquency like misuse of cyber system, social networks are also fl agrant in the modern age. Such delinquencies also remain unreported in large scale.

102 Supra Note 4.103 G. Schwartz & J. E. Puntil. (1975). Summary and Policy Implications of the Youth and Society in

Illinois Reports. Chicago: Institute for Juvenile Research.104 Martin Gold. (1966). "Undetected Delinquent Behaviour." Journal of Research in

Crime and Delinquency. pp. 27-46.

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9. Trends in Behaviour of Juveniles in Confl ict with the Law Kratcoski and Kratcoski have restated that the Second United Nations Congress on the Prevention of Crime and Treatment of Offenders sought to clarify the problems of juvenile delinquency and to delineate new manifestations of delinquency or trends in different behaviour that were occurring internationally. The congress identifi ed increases in offenses against persons, crimes of violence, the extension of delinquent conduct to the early teen and pre-teen age groups, lowering of the differences in the amount of delinquency by social class, and increase in gang and mob behaviour as occurring intentionally. In addition, several distinct trends have been identifi ed, including narcotic-law and alcohol-law violation increases, and growing volumes of suburban and rural delinquency, female delinquency and violent crime by juveniles.105

9.1 Alcohol and Drug UseKratcoski and Kratcoski have discussed that the most dramatic increase in juvenile delinquency during 1960s has been in violations of narcotic drug laws. From 1960, when only 1,263 males under 18 where arrested for drug-law violations, to 1976, when 79,339 where arrested, a 6,181% increase in such arrests to place. Among girls, the fi gures were even more startling.106 In 1960, only 195 females under eighteen were arrested for drug-law violations, compared to 15,960 in 1976, an 8,084% increase in arrests during the 16-year period.107

Teenage drinking has also increased, with arrests of violations of liquor laws rising appreciably for both males and females during 1960s. A study of drinking and drug used by senior and junior high schools students in Massachusetts revealed that 56% of the city and 44% of the residential town students in survey could be termed "heavier drinkers", who used distilled spirits and had been intoxicated; and no signifi cant differences where found between male and females in this regard. In junior high school, 33% of the boys and 18% of the

105 Supra Note 4. 106 Ibid. 107 Federal Bureau of Investigation. Uniform Crime Reoprt, 1976.

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girls where termed "heavier drinkers". The heavier drinkers were more likely than other students report illicit drug use and other delinquent activities.108

9.2 Delinquency in Suburban and Rural AreasDelinquency in the United States was considered to be predominantly a product of inner-city poverty, family disorganization, high population density, overcrowded living conditions, and high rates of unemployment. Although these circumstances have continued to contribute to high delinquency rates in the cities, delinquency has also increased dramatically suburban and rural areas. In the 11 years from 1965 to 1976, the number of youths under 18 arrested in cities increased 85% but in the same period, the number of youth from suburban areas arrested increased 215%, and in those areas designated as rural, arrests of those under 18 rose 95%.

It is possible that the amount and distribution of delinquency have not really changed signifi cantly, but that there is simply an increased tendency to use formal legal means to handle the delinquency in the suburban and rural areas that in the past was either ignored, hidden, or handled without arrests.109

Kratcoski and Kratcoski have stated that the mass media dramatically infl uence in increasing suburban and rural delinquency. Regardless of residence of youths, they can be infl uenced by the styles, dress, behavior and imitate the mannerisms, of their TV or motion-picture heroes and heroines. Increased tendencies toward portrayal of violence, brutality and low moral standards in the media are bound to have some impact on impressionable youths.110

Another characteristic of suburban and rural areas is the mobility of the residents those who have come from the city continue the pattern of moment from one suburb to another and a certain air of rootlessness may pervade their family life. Increases in number of working mothers, and the long hours both parents may have to spend commuting to jobs in the cities, leave the young

108 H. Wechsler & D. Thum. (1973). "Teen-Age Drinking, Drug Use and Social Correlates." Quarterly Journal of Studies on Alcohol. Vol. 34(4-A). pp. 1220-1227.


81



people unsupervised for extended periods of time. The impersonal atmosphere of a large suburban shopping center provides opportunities for shoplifting, malicious mischief, or contacts with dealers in drugs that would not available in small neighborhood stores where the youths were known to the proprietors.111

9.3 Delinquency among Girls Before 1960, researches specially focused that juvenile delinquency was a problem of adolescent boys. However, the number of arrests of female juveniles has risen dramatically since 1960, with a corresponding narrowing the gap between the sexes in the rates of delinquency. For example, the total number of males under eighteen arrested in 1960 was 414,082, and the number of females under eighteen arrested in the same year was 70,925, producing a 6-to-1 ratio of male to female arrests. By 1976, the arrests ratio of male to female juveniles had dropped to 3.1 to 1.112 Another alarming trend is the increased tendency for the females to commit violent offenses and felonies.113 From 1960 to 1975, the number of females arrested for murder increased 275%, the number of arrested for robbery rose 64% and number of arrested for aggravated assault grew by 438% offenses against property by females also increased, with the number of arrests for larceny-theft by females are rising 458% and for buying, receiving or possessing stolen property by 824% in the same 15-year period.114

Ddelinquency among girls is increased due to the greater freedom for girls resulting from the relaxation of social and sexual mores; the declining importance of the family as a controlling infl uence in adolescent life; the unisex fashions and life styles of teen agers, which are credited breaking down the differences in roles and behaviour between males and females; and the infl uence of the women's movement which has given females access to places and activities that were formerly the province of males.115

111 Ibid.112 Supra Note 107. 113 Supra Note 4.114 Federal Bureau of Investigation. Uniform Crime Report, 1975. 115 Supra Note 4.

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9.4 Delinquency in Minority Group Another trend in juvenile delinquency in USA is the overrepresentation of blacks in the arrests for violence although blacks made up approximately 13% of the juvenile population under 18 in 1974, accounted for 55.35% of all the arrests for violent behaviour.116

9.5 Violent Behaviour of JuvenilesThe increases in violence by girls and blacks that was noted are in keeping with a trend toward increases in violent behaviour among juveniles in general. News-media accounts of unprovoked attacks on people by groups or gangs of youths occur with surprising frequency. In one incident, a gang of youths rampaged through a consult hall in down town Detroit, snatched purses from members of the stunned audience, beat some of them for no apparent reason, vandalized the hall, committed several forcible rapes, and then attacked and robbed others on the street outside after they escaped from the hall without being apprehended.117

Another terrifying manifestation of teenage violence occurs when a young youth who, to all outward appearances, has been a model students and child, well liked by teachers and peers, commits a bizarre, vicious crime of violence with no apparent provocation or motive.118

It is diffi cult to explain or even to analyze the reasons the rising trends toward violence among youths. The infl uence of the mass media, the easy availability of dangerous weapons, the frustrations and anxieties youths experience as part of growing up, the need for recognition or status that cannot be gained acceptable behaviour or open contempt for law brought on by law enforcement and Juvenile Court offi cials who lack the dedication or courage to enforce the law are the major reasons which increase violent trends of juvenile behaviour.119

116 See Task Force on Juvenile Justice and Delinquency Prevention. (1977). Juvenile Justice and Delinquency Prevention. Washington, D.C.: Government of Printing Offi ce.

117 Supra Note 4.118 Ibid. 119 Ibid.

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10. Prevention of Juvenile Delinquency The problem of juvenile delinquency is one of the concerns social interests. The juvenile in confl ict with law of today may be the terrifying criminal of tomorrow. Early detection and treatment are necessary to reduce delinquency rate in contemporary society. The more; we should work for the prevention and cure of juvenile delinquency of today for prevention of crime of tomorrow. The ultimate goal of the modern society is to ensure justice, peace and tranquility in the society by reducing crime and delinquency. However, prevention of juvenile delinquency is a challenge of modern world. Various form of delinquency are being existed with development of globalization, economic transaction, rapid change in urban life style, micro families, one parent families, cyber systems. Proper care and attention has to be given to prevent delinquency. The following steps can be taken for prevention of juvenile delinquency.

10.1 Early Intervention Early intervention program can help to prevent juvenile delinquency in the modern ages because early intervention programs provide special services to children from birth through age fi ve who are at risk or have special needs. The scope of these programs may also include the child's family. Early intervention services and programs focus on the areas of cognition (thinking skills), speech/language, motor skills, self-help skills, and social-emotional development. It is not uncommon to fi nd programs that also include services such as nursing, social work, nutrition, and counseling.120

Professionals, including early intervention teachers, occupational therapists, physical therapists, and speech language pathologists, usually provide these services. A governing agency generally oversees the running of these programs, their services, and the service providers. Various studies have attempted to defi ne appropriate role schools should play in delinquency prevention. They have documented the need for more extensive social and psychological services and the development of wider range of programs to fi t the needs of students from various development of closer liaison with the Police and Juvenile Court diversion programs, placement of delinquency prevention specialist on school


84



boards or in school administrative position, and provision of more intensive to succeed for students in all types of programs have been recommended for prevention of juvenile delinquency.

10.2 Moral Education A potent mode of preventing juvenile delinquency is that of moral education. Morality involves (1) intelligence, (2) free choice and, (3) social responsibility. Undoubtedly, a proper way of thinking, a proper way of doing things and ideal relationship of behaviour with others, a socializing and proper conditioning of emotions, a proper habitualising to right action–these constitute a good traits of character. Our thought governs our actions and continuing to think rightly and act rightly develops good habits, and goods habits, in turn, constitute a good temperament. And education must have a socializing value. If direct moralizing or preaching be not quite interesting or attractive, then talks in an interesting and attractive style, may be made the instrumentality of moral training.121

The student must learn to profi t from the goodness inherent in another man's way of life, for it is the spirit of give-and-take between individuals and nations that will ensure peace and contentment for distracted world. The multiple infl uences of life must be given their rightful place in any system of true education, for an attempt to keep them apart would do injury to both. Education should be directed towards fi tting the student as a unit in his or her community, within the great unit of the nation, and the greater unit of the world. Education must be a striving towards all that is lofty and noble in life, since there are more ways to the spirit of religion than through creeds. Love, sympathy, enthusiasm, direct normal contacts should be the essence of true education, and it is the duty of the teacher to encourage these rather than to inject second-hand thoughts. It is said that lacking in the moral factor education is learning which is like an empty shell, without being directed in any useful channel. It is also advocated that the value of love in reason, the avoidance of darkness, the praising of virtue, the despising of meanness and vulgarity, and the kindling of truth and beauty.122

121 Supra Note 1. p. 240. 122 Ibid. p. 341.

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Undoubtedly the strongest pillar of education the sub-stratum of all true culture is, and should be, the moral refashioning of the innate and the required traits of temperament, forming and developing the fi nest sentiments within the young person-particularly the sentiments of brotherhood and services toward the amelioration of God's glorious creations and creatures. Education should be social and socializing affair. The individual should be so well educated, his sentiments so fi nely cultured, that he can live really well in the interests of that fabric in which he is an essential thread. If the individual is to form a good society, then society must also fulfi ll its essential and undoubted duties towards strengthening, reshaping and ennobling the life of the individual, through healthy laws meant for the welfare and elevation of humanity and through the potent instrumentality of compulsory education of a really good and useful type education should be of a really benefi cial type. It should be the education capable of raising the indivisible above his mere biological existence; it should be the education that shapes the individual for a worthy life, making him a fi t actor on the stage of life; it should be the education that teaches him that goodness is greater and fi ner than mere greatness; it should be the education that makes the individual a good person, a friend of all that is worthy and good in life.123

Much greater than the importance of vocational and scientifi c education and is, should be, the importance of moral education. The system of education which neglects moral re-shaping is a system of education which is faulty at its basis and frivolous on its very inception. Moral education is the very backbone of an ideal education system; all else is training or the acquisition of knowledge.124 Moral education is the very backbone of an ideal educational system.

Teachers, who should be competent and inspiring persons, should encourage introspection with regard to the students must be encouraged to form a habit of thinking over their attainments at school and at home, always analyzing their own characters, judging themselves, for to judge and correct oneself of his own faults in is a nobler and wiser think to do than to merely criticize and

123 Ibid. pp. 341-342. 124 Ibid. p. 342.

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condemn others. The moral teachers should encourage self-help in the students and should see that the habits and moods of behaviour if the students, during school hours and even during recess or at play are the best and irreproachable.

10.3 Supervision and Training in Early ChildhoodThere should be periodical examination, not merely physiological but also psychological, and removing of defects, if any, at the very beginning. Lack of proper supervision and training in early childhood often leads to the forming of bad company and ultimately to delinquency. There should be at schools, or, in every important locality, child guidance psychological clinics with podiatrists, psychologists and psychiatrists to attend thereat, and to keep the child under care and observation, and remedy the defect, if any, by conscious persuasion, or by probing into the subconscious mind of the child, detecting what is at the root of the trouble, the teachers should, whenever they think fi t, refer a problem child to a child guidance clinic.125

10.4 Proper Care and Good Handling of Juvenile As regards the punishment infl icted at school, it should be made known that in most of our schools, matters are far from desirable. Bertrand Russell says: "If one can judge from books of old-fashioned disciplinarians, the children educated by the old methods were far naughtier than the modern child.'' In mild forms physical punishment ''does a little harm through no good; in severe forms I am convinced that it generates cruelty and brutality.'' "… 'it accustoms them to the idea that it may be right and proper to infl ict physical pain for the purpose of maintaining authority—a peculiarly dangerous lesson to teach to those who are likely to acquire positions of power. And it destroys that relation of open confi dence which ought to exist between parents and children as well as between teachers and pupils."126 Dr. Anni Beasent also is of the same opinion. "There is one thing, above all others, perhaps, that affects character in future life. The one necessary thing for a child is kindness. You must treat him with gentleness and affection. You must try to attract and not to drive him. That is the vital essence of education on which the future character of a man or woman

125 Ibid. p. 343.126 Ibid. p. 344.

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depends …If a child is terrifi ed, you are driving him into cowardice and very often into vice of falsehood half the falsehoods young children tell are told because they afraid of being punished, and that leaves a mark on the character right through life.

10.5 Good School and Ideal TeachersGood schools and ideal teachers can also contribute in prevention of juvenile delinquency. The requirements of a good school and ideal teachers are as follows:127

• The building must not be like an insanitary chawl. It should be a fairly good building, with a suffi ciently big garden either a natural or an artifi cial one; its environment must be congenial to good education.

• At the entrance of school, there should be some placard depicting some noble though or lofty idea on education and its aims. In each classroom, there must be religious and historical paintings depicting something worthy and noble. The furniture in the classrooms should be neat and suitable to the needs of the students.

• There should be a good library for teachers an instructive and inspiring library for students.

• Adequate arrangements for playgrounds, gymnasiums recreation rooms and launch room are necessary.

• Periodic medical, psychological and dental examinations should be held.

• There must be encouragement of art, artistic work, painting, designing, and staging of performances. Education should be such which enables the child to get adapted to all aspects of reality, including the spiritual.

• There should be religious or moral lessons in all classes (in elementary classes through to medium of short stories with and instructive value). Above all, the moral teacher and other teachers should inspire and infuse in the students the spirit of mutual regard and respect.

• The students should be given a love of nature and all that is sublime and worthy in life.

• Originality of thought and work must be encouraged. And the teachers

127 Ibid. pp. 344-345

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should devote individual attention to the cultural development of each student in his class. The relation between the teacher and pupil should be one of the close contact and regard.

• There should be socializing of education and schools should be made a real part of active life.

Able teachers and good schools are essential. Teachers must be really competent persons with a sense of responsibility and originality and capable of having a good infl uence over their pupils. They must have a good sense of humor also; they must be kind, hard-working, intelligent and eager workers.

10.6 Healthy Cooperation between Home and School There should be a healthy co-operation between the home and the school. The school is meant to serve proper social ends. The ends of society, however, should be just and good. Visiting teachers would be immense value in bringing about a healthy co-operation between the home and the school. Especially, in such society, where there is much illiteracy and ignorance among the members of the working classes, the importance of the visiting teacher cannot be overemphasized. It is the visiting teacher who would bring about a proper adaptability of the children among the working classes; it would be the visiting teachers who would help and guide the parents in matter of social hygiene and in the art of bringing up their children in a proper and desirable manner. The visiting teachers would be very helpful.

Every school should have visiting teachers. The function of teachers is to visit, from time to time, the child at home, have a talk with the parents, and, working in co-operation with the parents, and, to guide the parents, and to correct the child, and look to the promoting of good habits in the children under their care. The visiting teacher works towards bringing about a satisfactory adjustment of the child to his school and toward preventing maladjustment. The visiting teacher who must be suffi ciently able person, a good social worker, an effi cient psychologist and a worthy moralist, studies the child both at school and at home. The visiting teacher should be consulted not only by the parents but also by the class teachers. After a thorough study of the child at home and at school, at work and at play after a free and friendly conversation with the child and a

89



thorough watch over its demeanor, after a thorough examination of the child's likes and dislikes, habits and desires, and after a useful consultation with the class teacher and the parents, the visiting teacher may arrive at the proper diagnosis and then advice the remedy or remedies or regarding the person or persons or the institution or institutions to be consulted for adequate treatment of the child. Visiting teachers are still unusual, but we want an abundance of them, if the school is to be a potent force in preventing delinquency.128 However, in the present time, schools are being profi t oriented and such visiting teachers are out of imagination of private school because such provision is considered as overburdened to such schools.

10.7 Relationship between Social Workers and ParentsThere ought to be some degree of close and sympathetic relationship between social workers and parents. And the goal of psychiatric treatment is to develop understanding of emotional elements involved in the display of prejudices, hates, spoiling, overprotection, shielding, rejections, over-punishments, and all the other exhibitions of undesirable behaviour toward the child. Scientifi c individualization in treatment of young offenders is a potent mode of prevention of crime. 129

10.8. Competent Teacher Unless there are good teachers, modern methods of teaching will not produce the desired effect. Teachers should be competent persons, capable of having a hold, for the best over their pupils. They should be paid adequately. Great in outlook and generous at heart, as they ought to be, teachers do not, and should not, regard money-making as the end of life; but they should be paid adequately in consonance with the due merits of their noble work and their worthy profession, the great profession which deals with shaping the character of human beings and ultimately the destiny of the human family.130

10.9 Vocational Training

128 Ibid. p. 346.129 Ibid. p. 347.130 Ibid.

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Triumph of good education lies in making the student, in the best manner, capable of self-help and making them best fi tted for serving society and the world through vocational training. With regard to vocational training there should be vocational guidance institutions or clinics, and government and/or our universities and educational institutions should provide all facilities for the holding of vocational guidance tests so as to inform the prospective student of the desirability or otherwise of taking a contemplated course of technical or vocational studies. But the results of such tests should only be guiding to the student who may have advantage of them, if he so desires; such tests should in no way bind the student to take up, or to forego taking up, a course of studies which, in spite of the vocational test going against him, he insists on taking up for everybody should be at liberty to take up such occupation in life as he chooses.131

Our schools must create enthusiasm in the students and do all that can be done for the developing of good trades of personality; and the individuality of the students must not be weakened. The true aim of a good school should to socialize its pupils, and at the same time allow proper scope for cultivation of individuality. And one must be trained to know himself and improve himself. If our schools can successfully build social individuals, the great fabric of society would become stronger; there would be minimizing of erroneous thinking, wrong-doing and delinquency. Potentialities must be developed and shaped for the best, and the treasure that lies at the substratum must be brought to the surface.132

10.10 Building of the Character The pupil must acquire the ability to meet situations and solve problems. A person, trained introspectively or so trained that he can do something useful to his own, is a person with strong personal abilities, not liable to be tossed away by the storm of economic decline or social disorganization or mal organization. And training given at school should not neglect the environmental factor. There should an education of our youths for life in every useful and good way

131 Ibid. 132 Ibid. p. 348.

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and for the building of the character building of the character.133 If we can build good character of children, it can prevent delinquency to some extent since such student may not move towards delinquency.

10.11 Mental HygieneThe importance of modern hygiene in the prevention and treatment of juvenile delinquency is very great indeed. To prevent mental confl ict and to bring about a proper mental adjustment, the importance of mental hygiene right from the formative period in childhood and the value of mental therapy in curing a mental disturbance or confl ict cannot be over-emphasized. Mental hygiene lies in creating in the child right from the formative period noble sentiments, and ultimately "master-sentiment (or system of sentiments) to guide the activities of life." A mission of life must be determined, and the energies directed towards the fulfi llment of that high mission or purpose. It is the development of sentiments of a high type in the child that prevents and fi ghts juvenile delinquency and that prevents or cures the adult delinquent also. The growing child should so educated that he grows above his mere biological nature and develops a social adjustment, without destroying at the same time his own good individual qualities. There should be such training in the direction of all that is the noblest, the best and the subtlest. Such training will prevent delinquency in childhood as well as in after-life. By developing a good personality it will ensure freedom from crime. The key-note of mental hygiene lies in the sublimation of impulses in healthy directions. There should be a conditioning and re-conditioning of the impulses so as to mould them into noble sentiments.134

The need for social development, the need for organization of traits and for hygiene is well emphasized. As regards psycho-therapeutics, Dr. McDougall says that treatment by mental infl uences of functional disorders is now recognized to be a very large and important branch of medicine. Change of environmental, of circumstances so as to remove the diffi culty or confl ict, a study of the person concerned, removal of the defect by persuasion, mental exploration and mental readjustment, can work out a proper cure; these

133 Ibid. 134 Ibid.

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comprise the methods of psycho-therapist. Treatment in direction the person concerned to more successful compensatory effort will render benefi t. The diffi culties that lie before the patient and the cause of his neurosis must be removed.135

As behaviour disorders may be caused by psychological defects or disorders, it is necessary to have the child examined fi rst of all by the podiatrist if any defect is discovered, specialized treatment should be afforded. After physical examination, the child should be examined by the psychologist. The scientifi c method implies investigating in to the physical and mental condition of the offender and into his environment because treatment can be prescribed after the cause has been found out the child should be thoroughly but very tactfully watched at play, and even at work, till what is laying at the substratum is found out.

10.12 Love and Sympathy Proper care, love and sympathy may prevent a child from deviation. Ridiculing of children should always be avoided. Inferiority complex should be banished. Children should be encouraged, and not discouraged, trained and not merely destructively criticized. Above all, praise, cheer, sympathy and loved should be showered over children, if a good race is to be built.136

10.13 Preventing Broken Homes Juvenile delinquency can also be prevented by preventing broken homes. The golden rule for preventing unhappiness in the marriage is to prevent, from the very beginning, an unsuitable marriage. Where maladjustment is prevented by proper choice of the partners in the nuptial tie, accord may prevail; but in the case of two persons whose aptitudes, likes and dislikes, prejudices and sentiments do not meet even half way, there may be lack of accord and even disharmony. The personality type should be determined after a careful analysis and study of the personality traits.

135 Ibid. p. 349.136 Ibid. p. 352.

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A great factor in marital happiness is pre-nuptial arrangement between the parties after a true and complete exchange of ideas and ideals as to the married life contemplated by them. There should be a revealing of the wishes of the parties; there should be no concealment. Marriage is essentially a lifelong union; it is not a matter of companionship for a few days; it is not a bare business partnership formed on the basis of convenience or satisfaction of needs; it is something sublime; it is a union in saecula saeculorum. And there should not be separation or divorce; nor any thought of the marriage of that splendid tie by any undesirable course of behaviour or impurity of conduct. Where minds are in concord and hearts are bound by the true tie of love and purity of inclination, we fi nd an ideal union. Differences, in spite of all pre-nuptial care and exchange of ideas and ideals, may arise; but there can be a bridging over the gulf by compromises. A successful marriage is founded upon compromise, upon mutual understanding and regard. Thus, marriage tie must maximize the happiness of spouse such happiness contribute to prevent family breakdown.

Differences should not be allowed to distort the higher concord that must of necessity prevail where there is true regard. But how can the uneducated or the ignorant know all these? Social workers must knock at the door of the ignorant, and bring home to their mind these essential facts.137

The child needs his parent's love also. Unless satisfi ed that both his parents really love him the child would not rest quite. Conditional or promised love would not do; such love does not appeal to the child.138 He wants unconditional, immediate and actual true love of his mother as also the father. Deprivation of such love may stifl e the child and may create a sense of frustration and even deep dissatisfaction leading to a crime, such as stealing or even manslaughter. Boarding schools also have, therefore, this one very great disadvantages, viz. the child loses the love and society of its parents.139

137 Ibid. p. 353.138 Ibid. 139 Ibid.

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10.14 Freedom The individuality of the child should not be sacrifi ced to parental or pedagogical dictates. The child should be allowed to grow, to develop freely, subject only to removal of what is crooked and faulty. The parents or child need only foster and garden without undue checks or unnecessary interference.

10.14 Freedom The individuality of the child should not be sacrifi ced to parental or pedagogical dictates. The child should be allowed to grow, to develop freely, subject only to removal of what is crooked and faulty. The parents or child need only foster and garden without undue checks or unnecessary interference.140

140 Ibid. p. 354.

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Th eories of Juvenile Delinquency


UNIT

III THEORIES OF JUVENILE DELINQUENCY

Sandesh Dhakal*Rom Thapa**

Explanation of delinquency is an important area of inquiry in the fi eld of juvenile justice and a complex matter as well. For many years, It has been explained that children engage in delinquency for a variety of reasons (e.g., biological, psychological, sociological). These explanations helped to formulate social policies as well as law reform. Delinquency is infl uenced by multiple factors. Some of those factors could be internal to the individual, and others externally related to both the immediate environment of the individuals and the larger society in which they live. For the purpose of this chapter, brief overviews of relevant theories of delinquency are presented.

1. Classical School of Crime and DelinquencyThe pre classical views on crime focused on religious or supernatural causes of crime, which had prevailed through most of human civilization up to the age of enlightenment in the eighteenth century. The classical theory of crime is the earliest logical explanation of criminal conduct that emphasize on free will and rational nature of humans.

* Lecturer, Central Department of Psychology, Faculty of Humanities & Social Science, Tribhuvan University.

** Advocate

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1.1 Pre Classical View on Crime (Demonological Theory of Crime)Prior to the eighteenth century, crime was explained as a religious or supernatural phenomenon.1 A criminal conduct was attributed to evil spirits, demons, witches and other supernatural causes. The belief was that people commit crime due to the infl uence of some external power and is not subject to their control or understanding.

Punishments related to offending during this period were quiet harsh by modern standards. Since the general assumption was that evil spirits drove motivations for criminal activities, the punishments of such acts were often quite inhumane.2 Such punishment included torture, being burned alive, stoning, beheading, etc. Therefore, in that period there was no rational theoretical understanding for why individuals violated rules of society, instead people believed crime was caused by supernatural or religious factors.

The pre-classical views on crime began to wither away during the eighteenth century as the world witnessed the period of Enlightenment. The Enlightenment or the Age of Reason was characterized by an intellectual challenge to the then dominant theological view. People began to question traditional religious and political values such as absolute monarchy and demonic possession. People shifted their belief towards humanism, rationalism and a belief in the primacy of the natural over the supernatural world.3

1.2 Classical School of CriminologyDuring eighteenth century, philosophers, Cesare Beccaria and Jeremy Bentham argued that human beings possess free will and their behavior is a result of rational thought processes.4 Within this frame of reference, crime is seen as the result of free choice of the individual who assesses the potential benefi ts

1 Stephen E. Brown, Finn-Aage Esbensen & Gilbert Geis. (2010). Criminology: Explaining Crime and Its Context. (7th ed.). Boston: Elsevier Inc. p. 136.

2 Stephen G. Tibbetts & Craig Hemmens. (2010). Criminological Theory: A Text Reader. London: Sage Publications. p. 47.

3 Anthony Walsh & Lee Ellis. (2007). Criminology: An Interdisciplinary approach. London: SAGE Publications. p. 53.

4 Larry J. Siegel. (2015). Criminology: Theories, Patterns and Typologies. (12th ed.). Boston: Cengage Learning. p. 5.

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of committing the crime against its potential consequence. Accordingly, the best way to prevent crime is to offset the benefi ts of committing crime, i.e., by punishing offenders. In regard to juvenile delinquency, the classical view of criminal behavior did not distinguish between juveniles and adults.5

The main tenets of the classical school of criminology are as follows:

Free will: Humans are rational being and have free will to choose criminal or lawful solutions to meet their need. Offenders are held accountable for wrongful acts because such acts are chosen voluntarily through their own rational decisions.

Rational choice: This concept refers to the idea that people act according to a reasoned and logical set of planned calculation. Their choice is based on awareness of potential consequences of their behavior- positive and negative.6

(i) Beccaria: On Crimes and PunishmentsThe writings of Cesare Beccaria in his famous treatise, “On Crimes and Punishments, 1764” form the core of classical criminology. He stated that people are guided by the principle of free will and they are in the pursuit to achieve pleasure and avoid pain.

Regarding the nature of law, he stated that law must come from legislature not from Judge. It is the legislature that represents the people. The task of Judges is to determine guilt or innocence and then to impose the legislatively prescribed punishment if the accused is found guilty. He thus sought to rid the justice system of arbitrary acts by individual Judges.

In regard to punishment, he considered punishment as a "necessary evil"7-

5 Donald J. Shoemaker. (2009). Juvenile Delinquency (2nd ed.). New York: Rowman & Littlefi eld Publishers, Inc. p. 63.

6 Donald J. Shoemaker (2010). Therories of Delinquency: An Examination of Explanations of Delinquent Behaviour (6th ed.). New York: Oxford University Press. p. 16.

7 Larry J. Siegel & Clemens Bartollas. (2016). Corrections Today. (3rd ed.). Boston: Cengage Learning. p. 7.

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necessary in so far as it is the only way to restrain unlawful acts, but any punishment beyond what is strictly necessary is "tyrannous".8 He suggested that punishment should be public, immediate and necessary. It should be proportional to the crime, i.e., 'fi t the crime' and determined by the laws.9 It should be certain and swift to make a lasting impression on the offender. If punishment is either uncertain or delayed, the impact of possible severe penalties has little meaning. To ensure rational and fair punishment, such punishments for specifi c crimes must be decreed by written criminal codes and the discretionary powers of Judges should be severely curtailed.

In relation to juvenile, the assertion made by Beccaria for proportional and certain punishment for all would mean equal punishment for all including juvenile without regard to their age or immaturity.

(ii) Bentham: The Utility of PunishmentIn Britain, another prominent fi gure of the classical school, Jeremy Bentham helped popularize Beccaria's views in his writings on utilitarianism in his book 'Introduction to the Principles of Morals and Legislation, 1789'. He believed that people have the ability to choose right from wrong, good from evil. People calculate actions in accordance with their likelihood of bringing happiness or pleasure and avoiding pain or unhappiness. People engage in crime because it brings pleasure to them and outweighs pain. Criminals will continue to engage in crime as long as such behavior continues to bring satisfaction. On the other hand, if such activity brings displeasure they will avoid reengaging in that behavior. In relating this to juvenile delinquency, juveniles if derive pleasure from committing delinquent act, they will continue their delinquent behavior.

One of the most important contributions of Bentham was the concept of 'hedonistic calculus' also called the felicifi c calculus, for making a comparison

8 Bernard E. Harcourt. (2013). 'Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law', Coase-Sandor Institute for Law & Economics Working Paper No. 648. p. 8. Available at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1633&context=law_and_economics (accessed on May 4, 2017).

9 Supra Note 7.

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of pain versus pleasure likely to occur as the consequence of choosing certain course of action. He suggested considering seven variables: intensity, duration, certainty, propinquity, fecundity, purity, and extent. Bentham envisaged the calculus could be used for criminal law reform: given a crime of a certain kind, it would be possible to work out the minimum penalty necessary for its prevention.

He explained in the 'principle of utility' that the purpose of law is to produce and support the greater happiness of the community it serves. Because punishment is in itself harmful, its existence is justifi ed only if it promises to prevent greater evil than it creates. He also suggested that excessive punishment puts state in position of oppressor and merely adds pain. Therefore, only the amount of punishment to prevent the continuation of crime was needed.

(iii) Rational Choice TheoryA contemporary version of classical theory is rational choice theory, developed mostly by Derek Cornish and Ronald Clarke.10 This theory modifi es classical criminology theory in three ways:11

It rejects the idea that people are rational at all times. Rational capacity of human is often affected by a variety of factors-some internal and some external such as incomplete information, time and ability.

In measuring the 'cost' any criminal act, it is not limited to formal sanctions such as state authorized punishment; cost should also be measured against informal sanctions e.g. societal shame, parental disapproval.

Finally, this theory argues that people calculate the costs and benefi ts of crime differently. Such calculation is infl uenced by factors such as individual's level of self control, moral beliefs, emotional state and association with delinquent peers.

However, the rational thought process does not apply to juvenile. The system of juvenile justice is based on the assumption that juveniles are not as rational

10 Robert M. Bohm & Brenda L. Vogel. (2011). A Primer on Crime and Delinquency Theory (3rd ed.). Boston: Cengage Learning. pp. 17-18.

11 Ibid.

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as adults, and that they cannot as clearly foresee the consequences of their actions. Their exercise of free will is conditioned mainly due to less developed reasoning ability.12

1.3 Neo-Classical School of CriminologyAccording to the Neo Classical School of Criminology, not every offender should be punished equally for a certain offense. Certain categories of offenders such as minors, mentally unsound, or incompetent persons had to be treated leniently irrespective of the similarity of their criminal acts with those of other offenders. This reasoning was based on the argument that such persons are incapable or partially incapable of distinguishing right from wrong.

The Classical School focused on offense committed (the act) rather than on the offender (the actor). It suggested that every individual who committed a certain act against law should be punished the same way. It made no distinction as to the actor of crime. The signifi cant difference between the classical and neoclassical schools is that the neoclassical model takes aggravating and mitigating circumstances into account when an individual is punished.13

In the case of explaining juvenile delinquency, neo classical school provided a signifi cant departure by recognizing conditions that deprive delinquent from normal capacity to control ones conduct. Not all individuals have the same ability to reason and weigh the outcome of their behavior. For this reason, juveniles who do not possess full capacity of distinguishing between good or bad are thought to be less responsible than adult. Therefore, an entire system of juvenile justice for handling juvenile offenders separate from adult criminals has been established.

2. Biological Theories of Juvenile DelinquencyExplanations of deviant behavior based on biological factors are the earliest as well as the most recent theories in criminology. Medical advances in the 18th and 19th, century led to explanations of behavior that focused on the biological


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factors of the individual. Biological explanations of behavior are categorized within a paradigm called positivism which is also known as determinism. These theories assert that behaviors, be it law-abiding or law-violating, are determined by factors like genetics, heredity and physiological processes which are largely beyond individual control. The early biological theorists assumed that if the biological makeup of the individual determines a person's physical capabilities, these characteristics could also contribute to the type of behavior exhibited by the person. So, most of the biological theories of crime assume that some people are 'born criminals', they are biologically distinct from non-criminals.

2.1 Lombroso and Physical AppearanceCesare Lombroso, an Italian psychiatrist, in his book "The Criminal Man", published in 1876, explained criminal behavior on the basis of biological characteristics. On the basis of various physiological measurements of known criminals, Lombroso developed the theory that certain criminals are "born criminals." These "born criminals" are a throwback to an earlier stage of human evolution with the physical makeup, mental capabilities, and instincts of primitive man.14

These individuals were not as physically or mentally advanced as the rest of society. Lombroso (1876)15 identified a number of atavistic, or ape-like, qualities that generally reflected the physical features of the apes from whom man was a descendant. In a study of incarcerated offenders, Lombroso (1876) noted that more than 40 percent of the criminals had five or more atavistic traits. These "born criminals" were a direct result of the lack of evolutionary progression found in the person. The remaining criminals fell into categories of "criminaloids" and "insane" criminals. Criminaloids were individuals who entered criminal activity due to a variety of factors including mental, physical, and social conditions that, when occurring at the same time, would trigger

14 Cristina Mazzoni. (1996). Saint Hysteria: Neurosis, Mysticism and Gender in European Culture. London: Cornell University Press. p. 122.

15 Cesare Lombroso. (1876). The Criminal Man Studied in Relationship to Anthropology, Forensic Medicine and Prison Doctrines. Milan: Ulrico Hoepli. pp. 305-328

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deviant behavior.16 Insane criminals included idiots and mentally deranged individuals.Lombrosian atavistic characteristics Physical characteristics Nonphysical characteristics Protruding jaw Sensitivity to temperature changes High forehead Agility Lacking a sense of right or wrong Asymmetrical face Fondness for animals Bad teeth Tolerance of pain Deep, close-set eyes Excessively long arms or legs Abnormal nasal features Exaggerated sex organs

Key concepts postulated by Lombroso to explain criminality were: atavism, degeneration, and the idea of the born criminal. The notion of atavism to explain deviant behavior was introduced in the fi rst edition of The Criminal Man and remained central in Lombroso's theories. Atavism was thought to be the tendency to reproduce ancestral types in plants and animals and, where humanity was concerned, to resemble one's grandparents or great-grandparents more than one's parents. While atavism formed the main theoretical aspect of the fi rst two editions of his book, from the third edition, which was published in 1884, Lombroso increasingly drew on the concept of degeneration and introduced the term born criminal. By the 1880s the notion of degeneration had become the dominant framework for the understanding of mental disorders. Degeneration was understood to be a pathological state of the organism, which was constitutionally weakened both physically and psychologically. Such weakening was hereditary and progressive from one generation to another, and it was believed to ultimately result in the extinction of the species. Degeneration was believed to be a process of pathological decay affecting not only in the individual but also society at large.

Lombroso's theory appears ridiculous to most of us today, and there is no doubt that it is deeply fl awed. First, there were some methodological weaknesses in his research, he did not use any non-criminal control groups

16 George B. Vold & Thomas J. Bernard. (1986). Theoretical Criminology (3rd ed.). New York: Oxford University Press. p. 133.

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to establish whether the 'atavistic' features he identifi ed were confi ned to the criminal population. Second, his sample does not seem to be representative; a large number of people with psychological disorders and chromosomal abnormalities may have participated in his studies, so the results cannot be simply attributed to physical appearance. Third, crime is neither a natural nor a homogenous category of behavior; it is a social construction, which makes the argument that criminal behavior as such is inherited hard to sustain. Fourth, our current understanding of genetic infl uences on behavior does not support the idea that complex behaviors (like most criminal activities) are controlled by single genes.

Lombroso modifi ed his theories quite extensively over the course of his career. He eventually came to the conclusion that only about a third of criminality was directly attributable to atavistic features. The majority of criminal behavior in his later theories was the result of environmental factors such as poverty and poor education. Despite several drawbacks Lombroso's theories are important to appreciate that he made several important contributions to the understanding of criminal behavior. Specifi cally, Lombroso (1) shifted the study of criminal behavior from a moral basis to an empirical one; and (2) argued for the interaction of biological, psychological and social factors in causing criminal behavior. As a result, he is regarded by many as the 'father of modern criminology.'17

2.2 Sheldon's Theory of Somatotypes William Herbert Sheldon18 (1949) theory shares with Lombroso's idea that criminal behavior is linked to a person's physical makeup. Sheldon distinguished between three basic types of bodily build: ectomorph (thin), endomorph (fat) and mesomorph (muscular). Sheldon proposed that bodily build was linked to personality and temperament. According to Sheldon ectomorphs are solitary and restrained, endomorphs are relaxed and hedonistic and mesomorphs are energetic and adventurous. Pure somatotypes are rare, and most people

17 Stephen Schafer. (1976). Introduction to Criminology. Reston Publishing Company. Reston, VA: Reston Publishing p. 34.

18 William Herbert Sheldon. (1949). Varieties of Delinquent Youth: An Introduction to Constitutional Psychiatry. New York: Harper & Brothers. p. 81.

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represent a blending of different types. Sheldon's principle claim was that mesomorphs when compared with other two types are more prone to criminal activity. Consequently his theory predicts that there should be a relationship between how mesomorphic a person is and their degree of criminality.

Sheldon conducted an empirical study to assess the somatotypes of samples of college students and delinquents using their photographs. It emerged that the delinquents had a higher mesomorphy rating mean than the college students), supporting Sheldon's claims about the link between body type and criminality. Like Lombroso's theory Sheldon's theory too was received with criticism critics claimed that Sheldon's method for distinguishing delinquents from non-delinquents was not valid. A number of other studies have confi rmed that there is a small association between bodily build and criminality.19

2.3 The 'Extra Y' Hypothesis A comparatively newer physiological theory suggested that some crime might be attributable to a chromosomal abnormality. As we know that sex is determined by the pattern of a person's sex chromosomes: XX in a woman, XY in a man. It is a Y chromosome that makes a person male. It is a well-known fact that atypical chromosomal combinations can result in atypical sexual development. For example, in Klinefelter's Syndrome the combination XXY results in a male form with some female characteristics. Since an 'extra X' appears to feminize men, some theorists speculated that an additional Y chromosome might 'hyper masculinise' men who had it. Since men are more aggressive than women, it might be that men who have XYY chromosomes instead of XY might be more aggressive than other men and hence more likely to commit violent crimes. The idea was advanced that offender populations in prisons and hospitals would be likely to contain large numbers of XYY men. Some claims were made that high profi le, prolifi c offenders, such as the American serial killer Arthur Shawcross, had the XYY pattern. It was eventually established that XYY men are rare in the general population but more common in the offender population20. Whilst this is as expected, the problem is that XYY men tend to

19 David Putwain & Aidan Sammons. (2002). Psychology and Crime. New York: Routledge. p. 221.

20 Dennis Howitt. (2009). Introduction to Forensic & Criminal Psychology. (3rd ed.). Harlow: Pearson. p. 512.

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commit non violent crime, not violent crime as the XYY hypothesis predicts 21. Why might this be? Testosterone levels amongst XYY men are no different from XY men, and they are no more aggressive than the general population. However, they are at a substantially increased risk of developmental delay and learning diffi culties22. There is a small association between learning diffi culties and criminal behavior. IQ scores amongst convicted offenders are marginally lower than the general population23 and there is a slightly higher prevalence of mild learning diffi culties amongst offender groups24. It might therefore be the case that the higher than expected number of XYY men in the offender population is a consequence of the learning diffi culties associated with the condition rather than the condition alone. There have been plenty of studies to explore the relationship between genetics and criminality. Twin studies and

2.4 Neurotransmitters Chemical substances found in nervous system that allow for the transmission of electrical impulses within the brain are called neurotransmitters. Studies on the role of neurotransmitter in criminal behavior have linked serotonin, dopamine, and norepinephrine with crime. Researchers have found more than 50 of neurotransmitters but researches on the biological bases of crime have mainly focused on three of these: norepinephrine, dopamine, and serotonin.

Norepinephrine is associated with the body's fi ght-or-fl ight response. Primarily known as a hormone it is released from the adrenal medulla into the blood as a hormone, and is also a neurotransmitter in the central nervous system and sympathetic nervous system where it is released from noradrenergic neurons. Norepinephrine, seem to play a role in subtypes of aggressive behavior, e.g.,

21 Kewin J. Epps. (1997). "Managing Risk." In Masud S. Hughughi, Surys R. Bhate & Finlay Graham (Eds.) Working with Sexually Abusive Adolescents. London:: Sage Publications. pp. 35–51.

22 Steve Graham, Virginia Berninger & Weihua Fan. (2007). "The Structural Relationship between Writing Attitude and Writing Achievement in Young Children." Contemporary Educational Psychology. Vol. 32. pp. 516–536.

23 Clive R. Hollin. (1992). Criminal Behaviour: A Psychological Approach to Explanation and Prevention. London: The Falmer Press. p. 122.

24 Josefi nne Lund. (1990). "Mentally Retarded Criminal Offenders in Denmark." British Journal of Psychiatry. Vol. 156. pp. 726-731.

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proactive aggression.25 Norepinephrine as a neurotransmitter is found to be involved in mediating the impact of aversive cues in human choice behavior26. This suggests that levels of norepinephrine when reduced can lead to reduced responsiveness to aversive cues, and increase risk for proactive aggression. Similar to this suggestion, there have been a series of reports suggesting that antisocial behavior is associated with reduced norepinephrine levels.27

Dopamine is linked with thinking, learning, motivation, sleep, attention, feelings of pleasure and reward it has also been found to be associated with the regulation of aggressive behaviors. Evidences suggest that impulsive behavior may be enhanced by an elevated dopaminergic function.28 Increased activity of dopaminergic receptors is found to be associated with impulsivity and emotional deregulation in patients with borderline personality disorders.29 Brizer30 found that antipsychotic agents targeting dopamine receptors lowered the levels of anger in aggressive patients. The link between dopamine and aggressive behavior is also supported by studies on animals. In a study on laboratory animals elevated dopamine levels have been continuously observed before, during, and following aggressive fi ghts.31 Serotonin is a neurotransmitter which has impact on many functions, such as sleep, sex drive, anger, aggression, appetite, and metabolism. Serotonin is found to be involved in the modulation of impulsivity. Consequently, dysregulation of serotonin may result a defi cit in

25 Christina Stadler, Fritz Poustka & Philipp Sterzer. (2010). "The Heterogeneity of Disruptive Behavior Disorders: Implications for Neurobiological Research and Treatment." Frontiers in Psychiatry. Vol. 1. pp. 1-14.

26 Mark. A. Rogers et al. (2004). "Response Selection Defi cits in Melancholic but not Non -Melancholic Unipolar Major Depression". J. Clin. Exp. Neuropsychol. Vol. 26. pp. 169–179.

27 Adrian Raine. (1993). The Psychopathology of Crime. Criminal Behavior as a Clinical Disorder. New York: Academic Press. p. 79.

28 C. Bergh et al. (1993). "Altered Dopamine Function in Pathological Gambling." Neuropsychobiology. Vol. 28. pp. 30–36.

29 Jayanti Chotai, Gunnar Kullgren & Marie Asberg. (1998). "CSF Monoamine Metabolites in Relation to the Diagnostic Interview for Borderline Patients (DIB)." Neuropsychobiology. Vol. 38. pp. 207–212.

30 David A. Brizer. (1988). "Psychopharmacology and the Management of Violent Patients." Psychiatric Clinics of North America. Vol. 11. pp. 551–568.

31 Klaus A. Miczek, Subuhee Hussain & Sara Faccidomo. (1998). "Alcohol-Heightened Aggression in Mice: Attenuation by 5-HT 1A Receptor Agonists." Psychopharmacology. Vol. 139. pp. 160–168.

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behavioral inhibition. In a meta-analysis of 20 separate studies32 found that low levels of serotonin signifi cantly contribute to aggressive behaviors. Dysfunction of serotonin has been reliably associated with aggressive behaviors in animals and humans.33 Scerbo and Raine34 in a Meta-analysis of twenty-eight studies on the relationship between neurotransmitter levels and antisocial behavior, reported that, on average, antisocial people have signifi cantly lower levels of serotonin than normal people. Studies of norepinephrine and dopamine did not show any overall differences in these neurotransmitter levels across the groups of subjects.

2.5 Hormones In addition to neurotransmitter levels, many researchers have found relation between hormone levels and human behavior, including aggressive or criminal behavior. Most recent attention paid to hormone levels and aggressive or criminal behavior relates to either testosterone or female premenstrual cycles.

The role of testosterone in the aggressiveness of many animal species has been well documented, but a question remains as to whether testosterone plays a signifi cant role in human aggressive and violent behavior. Raine35 review of literature, found mixed results.

Both male and female secrete testosterone, males secrete it in higher levels, so it is considered as the male sex hormone. Researchers have found that higher levels of this hormone are associated with increased levels of violence and aggression.36 Criminal samples have been found to have higher testosterone levels when compared with noncriminal samples, in a recent study of domestic

32 Todd M. Moore, Angela Scarpa & Adrian Raine. (2002). "A Meta-Analysis of Serotonin Metabolite 5-hiaa and Antisocial Behavior." Aggressive Behavior. Vol. 28. pp. 299–316.

33 Klaus A. Miczek & Margaret Haney. (1994). "Psychomotor Stimulant Effects of D-Amphetamine, MDMA and PCP: Aggressive and Schedule-Controlled Behavior in Mice." Psychopharmacology (Berlin). Vol. 115. pp. 358−365

34 A. Scarpa Scerbo & Adrian Raine. (1993). "Neurotransmitters and Antisocial Behavior: A Meta-Analysis." Cited in Adrian Raine (Ed.), The Psychopathology of Crime: Criminal Behavior as a Clinical Disorder. San Diego, CA: Academic Press. pp. 86-92.

35 Adrian Raine. (1993). The psychopathology of crime: criminal behavior as a clinical disorder. San Diego: Academic Press. pp. 1-377.

36 John Archer. (1991). "The Infl uence of Testosterone on Human Aggression". British Journal of Psychology. Vol. 82. pp. 1–28

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violence, offending males had higher levels of saliva testosterone than males with no history of such violence.37 In another study of boys in an elementary it was found that those who played most aggressively exhibited higher testosterone levels than did their less aggressive peers.

A major problem with this explanation is that there are several possible causal paths between testosterone and aggressive behavior. Testosterone levels naturally fl uctuate throughout the day and in response to various environmental stimuli. For example, levels among athletes increase prior to competitions, perhaps indicating that testosterone is produced to increase aggression instead of as a response to aggression. This makes correlating levels to behavior and controlling for environmental stimuli extremely diffi cult.

Scholars who study the relationship between testosterone levels and crime cite as support the differences between males and females in terms of levels of crime in general and levels of violence in particular. This work has led to the "treatment" of male sex offenders with chemical derivatives from progesterone to reduce male sexual urges through the introduction of female hormones (e.g., Depo-Provera, a brand of birth control for women).This has been effective in reducing some types of sex offenses (e.g., pedophilia, exhibitionism), but it has had little or no impact on other crimes or violence.

Although most research on hormones and crime are focused on males some work has examined the role hormones play in female crime, especially in connection with the menstrual cycle. Biological changes after ovulation have been linked to irritability and aggression. Researchers also have investigated the impact of female hormones on behavior in women, beginning with two English cases in 1980 in which two women used premenstrual syndrome (PMS) as a mitigating factor in violent offenses. These efforts led to female defendants in the United States and other countries being able to argue reduced culpability because of PMS.

2.6 Nervous SystemVarious factors related to both divisions of the nervous system: central nervous system and peripheral nervous system have received attention in studies of

37 Hosanna Soler, Preeti Vinayak & David Quadagno. (2000). "Biosocial Aspects of Domestic Violence." Psychoneuroendocrinology. Vol. 25. pp. 721–39.

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deviant behavior. These researches primarily focus on brain and its sub parts and autonomic division of the peripheral nervous system. In the past, research on the relationship between the central nervous system and aggressive behavior has been done using a variety of relatively indirect measures. Now a days, various methods are available for such analyses, including magnetic resonance imaging (MRI), positron emission tomography (PET scans), and electronencephalography (EEG). Based on these new technologies, Raine et al.38 conclude that there is clear evidence relating brain functioning, especially frontal and temporal lobe problems, to deviant activity. Disturbances or irregularities within the frontal lobe generally infl uence neuropsychological performance, while the temporal lobe in general appears to involve behaviors more directly emotional in expression. Limbic system, particularly amygdala is found to be responsible in criminal behavior. Researchers have found that smaller than usual size of amygdala results in aggressive behavior.39

After a comprehensive review of brain imaging studies, Raine40 concluded that. An integration of fi ndings from these studies gives rise to the hypothesis that frontal dysfunction may characterize violent offenders while temporal lobe dysfunction may characterize sexual offending. Offenders with conjoint violent and sexual behavior are hypothesized to be characterized by both frontal and temporal lobe dysfunction.

A growing body of research have also found autonomic underarousal to be associated with deviant behavior.41 Mednick42 suggests that fear is a great inhibitor of behavior and thus necessary for the development of conformity

38 Adrian Raine, Peter H. Venables & Mark Williams. (1995). "High Autonomic Arousal and Electrodermal Orienting at Age 15 Years as Protective Factors against Criminal Behavior at Age 29 Years." American Journal of Psychiatry. Vol. 152. pp. 1595-1600.

39 Swantje Matthies et al. (2012). "Small Amygdala-High Aggression? The Role of the Amygdala in Modulating Aggression in Healthy Subjects." World Journal of Biological Psychiatry. Vol. 13. pp. 75–81.

40 Supra Note 35.41 Adrian Raine. (1996). "Autonomic Nervous System Factors Underlying Disinhibited,

Antisocial, and Violent Behavior Biosocial Perspectives and Treatment Implications." Annals of the New York Academy of Sciences. Vol. 794. pp. 46–59.

42 Sarnoff A. Mednick. (1977). "A Bio-Social Theory of the Learning of Law Abiding Behavior." In Sarnoff A. Mednick & Karl O. Christiansen (Eds.) Biosocial Bases of Criminal Behaviour. New York: Gardener. pp. 1–8.

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among children. The fear response in humans is controlled by the ANS. Normally, the ANS recovers quickly from the experience of punishment, Thus facilitating inhibitory control of behavior. The child who possesses an ANS that is slow to recover from punishment is unlikely to develop strong inhibitory controls and is thus a likely candidate for delinquency. This line of research has further suggested that that autonomic hyporesponsiveness can have predictive value. Autonomic underarousal and low autonomic responses in 15-year-old boys are predictive of adult criminal behavior, particularly in boys without psychosocial disadvantages, while heightened autonomic responsiveness appears to be a protective factor against criminal outcome in high-risk male adolescents.43

3. Psychological Theories of Juvenile DelinquencyPsychological theories focus on individuals' life experiences, cognitions, emotional adjustment their personality traits and types. Different psychologists and their theories have played infl uential role in shaping how individual and society thinks about juvenile delinquency and in shaping policies related to the issue.44 There are various psychological theories that explain juvenile delinquency, fi ve of the relevant theories are described here.

3.1 Psychodynamic TheoriesPsychodynamic theories are based on the pioneering work of Sigmund Freud (1856-1939). However, Freud did not theorize much about delinquent behavior, but theory of delinquency causation can be inferred from his more general theory of human behavior and its disorders. Had he considered the issue, Freud probably would have argued that delinquency, like other disorders, was a symptom of more deep seated problems. Freud's theory and treatment method are connoted by a single term-Psychoanalysis. The term psychodynamic theories refer to the group of theories based on Freudian theory. The basis of all psychodynamic theories is the assumption that human behavior is controlled by unconscious mental processes developed early in childhood. The general

43 Christopher J. Patrick, Kristin A. Zempolich & Gary K. Levenston. (1997). "Emotionality and Violent Behavior in Psychopaths." In Adrian Reine, Patricia Brennan, David Farrington & Sarnoff A. Mednick (Eds.) Biosocial Bases of Violence. New York: Springer. pp. 145-161.

44 Robert J. Sampson & John H. Laub. (2003). "Life-Course Disasters? Trajectories of Crime among Delinquent Boys Followed to Age 70." Criminology. Vol. 41(3). pp. 555–592.

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conception of psychodynamic models is that delinquents are psychologically "sick" and in need of treatment.

(i) Freud and Psychoanalytic TheoryAccording to classical Freudian theory, the structure of the psyche is founded in the fi rst fi ve years of a person's life. The roots of offending are also to be founded in this period, especially in relationship between the developing child and his/her parents. The Freudian framework implies a number of possible causes for later criminal behavior. Freud in his Three Essays on Sexuality (1915)45, outlined fi ve stages of personality development: Oral, Anal, Phallic, Latency, and Genital known as psycho-sexual stages of development. The stages as proposed by Freud are completed in a predetermined sequence and can result in either successful completion or a healthy personality or can result in failure, leading to an unhealthy personality. At each stage, different areas of the child's body become the dominant source of pleasure. A psychic energy called libido is concentrated in different parts of the body and its release is necessary for healthy personality development. Differences in satisfying the urge to release libido at each stage will inevitably lead to differences in adult personalities. Confl icts between these urges and rules of society are present at every stage. A proper resolution of the confl icts will lead the child to progress past one stage and move on to the next. During each stage, an unsuccessful completion means that a child becomes fi xated on that particular erogenous zone and either over– or under-indulges once he or she becomes an adult.

Oral stage (birth to 18 months) During this stage, the child derives pleasure by stimulating his/her oral region (by sucking, biting, chewing etc.). Too much or too little gratifi cation can result in an Oral Fixation or Oral Personality which is evidenced by a preoccupation with oral activities. This type of personality may have a stronger tendency to smoke, drink alcohol, over eat, or bite his or her nails. Personality wise, these individuals may become overly dependent upon others, gullible, and perpetual followers. On the other hand, they may also fi ght these urges and develop pessimism and aggression toward others.

45 Sigmund Freud. (1962). Three Essays on the Theory of Sexuality. New York: Basic Books. p.22.

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Anal stage (18 months to three years)The child derives pleasure in this stage by eliminating and retaining feces. It is the proper age for toilet training in most of the societies. Through society's pressure, mainly via parents, the child has to learn to control anal stimulation. There is a confl ict between child's urge to release or hold their feces as per their will and imposed toilet training. In terms of personality, after effects of an anal fi xation during this stage can result in an obsession with cleanliness, perfection, and control (anal retentive). On the opposite end of the spectrum, they may become messy and disorganized (anal expulsive).

Phallic stage (ages three to six) In this stage the pleasure zone switches to the genitals. Freud believed that during this stage boy develop unconscious sexual desires for their mother. Because of this, he becomes rivals with his father and sees him as competitor for the mother's affection. During this time, boys also develop a fear that their father will punish them for these feelings, such as by castrating them. This results in Oedipus Complex. According to Freud, out of fear of castration and due to the strong competition of his father, boys eventually decide to identify with him rather than fi ght their father. By identifying with his father, the boy develops masculine characteristics and identifi es himself as a male, and represses his sexual feelings toward his mother. An unresolved Oedipus complex could result in sexual deviancies (both overindulging and avoidance) and weak or confused sexual identity.

Latency stage (age six to puberty)It's during this stage that sexual urges remain repressed and children interact and play mostly with same sex peers.

Genital stage (puberty onwards)The fi nal stage of psychosexual development begins at the start of puberty when sexual urges are once again awakened. Through the lessons learned during the previous stages, adolescents direct their sexual urges onto opposite sex peers, with the primary focus of pleasure is the genitals

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Dynamics of PersonalityFreud46 proposed that the human personality contains three major components: id, ego and superego. The id is guided by pleasure principle, it is unrestrained, primitive and demands immediate gratifi cation. Id represents animal instinct, it is the source of instinctual drives. Basically there are two types of instinctual drives: constructive and destructive. Freud named the constructive drive Eros (the life instinct) and the destructive drive Thanatos (death instinct). Constructive drives usually sexual in nature make up the libido, the psychic energy. Constructive drives are responsible for creative and constructive activities whereas, destructive drives lead people toward aggression, violence and destruction. The ego is guided by reality principle. Ego develops through the everyday reality of living in the world and helps manage and confi ne the id's need for immediate gratifi cation. The superego is guided by morality principle and develops through interactions with parents and other signifi cant people and represents the development of conscience and the conventional moral rules shared by most adults.

All three dynamics of personality are supposed to operate simultaneously. The id generates needs and desires, the superego stabilizes the id by developing feelings of morality, and the ego calculates the reality of a position between these two extremes. The individual can lead a normal life as far as these components are balanced. When one of these aspects of the personality becomes dominant upon others, it causes deviation in the individual's personality.

The theory also suggests that deviation in personality can be caused by a traumatic early life experience. The family plays a signifi cant role in development of superego. Inadequate parenting, for example can lead to underdeveloped superego. The underdeveloped superego results in an inability to distinguish between right and wrong. A child with underdeveloped superego may demand immediate gratifi cation, lack sensitivity for the needs of others, act aggressively and impulsively, or demonstrate psychotic symptoms. Antisocial tendency may result from unresolved confl ict or traumatic experiences occurring early

46 Sigmund Freud. (1923). The Ego and the Id. Standard Edition, 19. London: The Institute of Psychoanalysis. p. 32.

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in a child's development, and delinquent activity may become an outlet for these feelings.

Freud47 also emphasized the role of anxiety, defense mechanisms and unconscious in deviant behavior. Anxiety in Freudian terms is a warning of approaching danger or a painful experience. In such circumstance, the individual have to correct the situation. It's the ego that deals with such situation through rational measures. If ego fails to handle the situation rationally it uses irrational measures like rationalization, reaction formation, sublimation etc. A person's unconscious usually contains negative contents such as disturbing memories, humiliating experiences, unacceptable urges repressed48 or forcefully pushed out of the conscious mind. Though the individual is unware of these contents they are regularly expressed through dreams, fantasies or other forms of expressions. Such unconscious experiences can compel a person to be engaged in irrational or deviant behavior.

There were no differences in causation between psychopathology and deviant behavior for Freud. He used the same analogy to describe all sort of behavior and he never wrote on juvenile delinquency. There were some psychoanalysts who elaborated psychoanalytical formulations to explain juvenile delinquency. August Aichhorn is one of the psychoanalysts who successfully applied psychoanalytical concepts to juvenile delinquency. Unlike other psychoanalysts of his time, who were more concerned with treating psychopathology using psychoanalysis, he attempted to apply this method to uncover unconscious motives behind juvenile delinquency. Like Freud, he too argues that delinquency is the disease and the "dissocial" behavior of a delinquent is the outward sign of the disease49, to complete this analogy, Aichhorn argues that there are two kinds of delinquency, latent and manifest. Aichhorn derived the concept of manifest motive and latent motive to explain delinquency. Delinquency is latent till it remains in unconscious and is not overtly expressed, but when it is

47 Sigmund Freud. (1915). The Unconscious. Standard Edition, 14. London: The Institute of Psychoanalysis. p. 62.

48 Supra Note 5. p. 38.49 August Aichhorn. (1965). Wayward Youth. New York: The Viking Press. p. 167.

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expressed in various forms of antisocial behavior it is manifested.50 Aichhorn also distinguished between neurotic and non-neurotic delinquents.

(ii) Adler and Individual PsychologyAlfred Adler (1870-1937) is also a psychodynamic psychologist. Previously, a close associate of Freud, he separated from Freud and developed a new version of psychodynamic theory "individual psychology." The term individual expresses his belief in the uniqueness and individuality of every human personality. Whereas Freud stressed the role of psychosexual development and the oedipal complex, Adler emphasized the effects of children's perceptions of their family constellations and their struggles to fi nd their own signifi cant niches within them. Adler argued that one's personality is a complete unity-the principle of holism.51 Adler claimed that feelings of inferiority, mostly subconscious, combined with defense mechanisms plays the vital role in determining behavior. Adler's theory of individual psychology stressed the need to discover the root cause of feelings of inferiority.

While explaining behavior, he stressed that the psychic life of man is determined by his goal. No human being can think, feel, dream, without all these activities being determined, continued, modifi ed, and directed toward an ever-present objective. A real understanding of the behavior of any human being is impossible without a clear comprehension of the secret goal which he is pursuing.52

For Adler, people are neither good nor bad by birth. They may choose to be good or bad being based on their appraisal of an immediate situation and its payoff. Every person has an inherent potential for social interest which is generally considered as an individual's ability to empathize with others. Adler defi ned social interest as an active interest in furthering the welfare of human kind.53 A child lacking social interest has less ability to perform effectively in

50 Ibid. p. 184.51 Harold H. Mosak. (2005). "Adlerian Psychotherapy". In Danny Wedding & Raymond

J. Corsini (Eds.). Current Psychotherapies (7th ed.). Belmont, CA: Brooks/Cole. pp. 52-95.52 Alfred Adler. (1927) Understanding Human Nature. New York: Greenberg. p. 34.53 Alfred Adler. (1963). The Problem Child. New York: Capricorn Books. p. 42.

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social settings, like school, and therefore leads to subsequent social problems. These social problems stem from reduced socialization opportunities and foster association with deviant peers, which in turn, promotes continued antisocial behavior.54

The primary goal of all human behavior, according to Adler, is self-perfection. Everyone begins life as a weak and helpless child, and we all possess the innate urge to overcome this inferiority. If a child faces its weaknesses with hope, optimism and courage, and strives for superiority by making the necessary effort to compensate for them, a satisfactory or superior level of adjustment may be achieved. The feeling of inferiority becomes a pathological condition only when the sense of inadequacy overwhelms the individual, and makes him depressed and incapable of development. Childhood deviant behaviors are the consequences of the unresolved inferiority complexes of a child. Those who do not achieve the satisfactory superior level turns to the pathological defense mechanism.

(iii) Erikson and Psychosocial TheoryErik H. Erikson's (1902-1994) theory took Freudian thought farther because it includes social and cultural infl uences. Erikson believed that the ego develops individually through its biological (psychosexual) processes, but also due to interpersonal concerns and relationships (psychosocial). Erikson purposed that the prime motivation for development was social - the internal drive to interact with others. Highly infl uenced by Freudian theory, Erikson55 56 developed a theory of human development which is known as psychosocial theory. Erikson supported epigenetic principle-personality develops in a predetermined order, and builds upon each previous stage.

Going along with Freudian theory of the structure and topography of personality, he further extended and modifi ed Freudian ideas. Freud emphasized the importance of id whereas Erikson emphasized the role of ego. Freud considered

54 David E. Brandt. (2006). Delinquency, Development and Social Policy. New Haven: Yale University Press. p. 103.

55 Erik H. Erikson. (1950). Childhood and Society. New York: Norton. p. 17.56 Erik H. Erikson. (1963). Youth: Change and Challenge. Basic books. p. 35.

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the confl ict between id, ego and superego, Erikson emphasized the confl ict within the ego. According to Erikson the development of ego is dependent on the resolution of social crisis. For Erikson, the ego is not just to serve the id but it has some independent adaptive and creative values. Freud emphasized the importance of early fi ve years in development of personality but Erikson proposed a lifespan model of development believing that there is still plenty of rooms for continued growth and development throughout one's life beyond childhood. Freud was interested in the role of sexuality in development but Erikson was interested in how children socialize and how this affects their sense of self. Erikson placed a great deal of emphasis on the adolescent period, feeling it was a crucial stage for developing a person's identity.

The theory of psychosocial development has eight distinct stages. Erikson assumes that a crisis occurs at each stage of development. For Erikson57, these crises are of a psychosocial nature because they involve psychological needs of the individual (i.e. psycho) confl icting with the needs of society (i.e. social). According to Erikson, successful completion of each stage results in a healthy personality and the acquisition of basic virtues. Basic virtues are characteristic strengths which the ego can use to resolve subsequent crises. Failure to successfully complete a stage can result in a reduced ability to complete further stages and results in more unhealthy personality and blurred sense of self. These stages, however, can be resolved successfully at a later time.

Erikson's Psychosocial StagesTrust vs. mistrust (birth to 1 year)This stage is characterized by the feeling that people will take care of you vs. viewing the world as a cold, fearsome place. During this stage of infancy, infants seek instant response and care when needed, which results in a positive resolution of a crisis. It gives them a confi dence that the world is safe and good place for live. But, if their needs are not fulfi lled on time and they have to wait long for feeding and comfort, then it may result in development of mistrust, they begin to view the world as a dangerous place.

57 Ibid. p. 27.

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Autonomy vs. shame a doubt (1-3 years)This stage is characterized by independence through exploring and "testing" others vs. doubt that you can succeed. This stage brings the new demand for self-control and autonomy. One of the major event is toilet training. During this time, the parental behavior holds an important place. While the parental permission of reasonable free choice can foster the sense of autonomy in their children otherwise; the force or too much strictness can promote shame and doubt.

Initiative vs. guilt (3-5 years)This stage is characterized by the ability to take initiative and follow through vs. guilt when others discourage this behavior. These preschool years are characterized by the development of capacity for initiatives, to set goals and to pursue them. During this period, children develop the sense of right and wrong. Therefore, parental rules, regulations and disciplines can either cultivate the confi dence in their own initiation or foster the feeling of guilt.

Industry vs. inferiority (6-11 years)This stage is characterized by learning culture's skills and deriving feelings of competence from peers vs. feeling inferior relative to peers. The stage of late childhood is marked by the participation in the wider world. At school, they learn to cooperate with their peer groups and develop the capacity to work. If they are successful in their endeavors, it can boost the confi dence in their own industry otherwise they may develop the feeling of inferiority.

Identity vs. role confusion (12-20 years)This stage is characterized by asking the question "Who am I?" by trying on roles within a secure environment vs. lack of exploration and delayed sense of self. This is the transition from childhood to adulthood. This is the most important developmental stage. Children are becoming more independent, and begin to look at the future in terms of careers, relationships, families, housings, etc.

This is a major stage in development where the child has to choose the roles. It is during this stage that the adolescent will re-examine his identity and try to fi nd out exactly who he/she is. Erikson suggested that at least two identities are formed in this stage: the sexual and the occupational. Sexual identity

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refers to the awareness and acceptance of one's biologically determined sexual characteristics. Occupational identity is one's selection of academic discipline which ultimately leads him/her towards career path.

During this period, adolescents explore possibilities and begin to form their own identity based upon the outcome of their explorations. Failure to establish a sense of identity within society can lead to role confusion. Role confusion involves the individual not being sure about themselves or their place in society. Another possibility is that they may achieve an identity as juvenile delinquent.

In response to role confusion or identity crisis, an adolescent may begin to experiment with different lifestyles. If adolescents are compelled to pursue some identity without exploration, it can result in rebellion and formation of negative identity. In Erikson's term, juvenile delinquents are the youths who haven't developed their identity yet or they were forced to adopt prescribed identity.

Intimacy vs. isolation (young adults)Committing to a close, sharing relationship, surrendering some independence vs. keep total independence and isolation.

Generativity vs. stagnation (middle adults)Developing a concern for establishing and guiding the next generation, expanding one's concerns beyond one's immediate group to that of society and future generations vs. feeling unfulfi lled and becoming self-centered.

Integrity vs. despair (65 years on)Accepting the life one has lived without major regrets vs. despair that time has run out.

(iv) Bowlby and Attachment TheoryAttachment is generally defi ned as an emotional bond between two people. John Bowlby (1907-1990) a psychodynamic psychologist emphasized the role of attachment in child development. He defi ned attachment as a lasting

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psychological connectedness between human beings.58 Bowlby's theory is often known as the Maternal Deprivation Theory.59 Bowlby claimed that birth to 2 years of age is a critical period of child and requires continuous care. If a child is deprived of such care, child may suffer from severe irreversible damages such as affectionless psychopathy, mental retardation, delinquency and depression.Bowlby studied a group of 44 juvenile thieves. They were his clients and were referred to his clinic for therapeutic purpose. He then took another group of 44 children, as the control group, who were emotionally disturbed but were not thieves. The total 88 children involved in this study were all aged between 5 and 16 years. In the group of juvenile thieves, there were 31 boys and 13 girls where as in the control group, there were 34 boys and 10 girls.

The result showed that more than half of the juvenile thieves had been separated from their mothers for longer than six months during their fi rst fi ve years. In control group, only two had had such a separation. Out of total 44 juvenile thieves, 14 (32%) showed 'affectionless psychopathy-they were not able to care about or feel affection for others. And, out of 14 juveniles diagnosed as affectionless psychopaths, 86% had experienced prolonged periods of separation before the age of 5 years from their mothers. Only 17% of the thieves not diagnosed as affectionless psychopaths had experienced maternal separation. In control group, out of total 44 children, only 2 had experienced a prolonged separation in their fi rst 5 years.

As the children with affectionless psychopathy had experienced most separations, Bowlby concluded that maternal deprivation does in fact lead to emotional and behavioral disorders, and in its most severe form, it leads to antisocial behaviors such as theft. Bowlby's conclusion, from his researches is that to grow and develop mentally healthy, the infant and young child should experience a warm, intimate, and continuous relationship with his mother (or permanent mother substitute) in which both fi nd satisfaction and enjoyment.60

58 John Bowlby. (1982). "Attachment and Loss." American Journal of Orthopsychiatry. Vol. 52. pp. 664-678.

59 John Bowlby. (1951). "Maternal Care and Mental Health." Bulletin of the World Health Organization. No. 3. pp. 355-534.

60 Ibid.

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Bowlby's idea on importance of attachment is summarized by the following: "...observation of how a very young child behaves towards his mother, both in her presence and especially in her absence, can contribute greatly to our understanding of personality development. When removed from the mother by strangers, young children respond usually with great intensity; and after reunion with her, anxiety or else unusual detachment."61

Evaluation of psychodynamic theoriesFreud was the fi rst to stress the importance of psychological factors causing deviant behavior. Psychodynamic approach emphasizes that the experiences of childhood can affect throughout one's lives. Some experiences in childhood may be so emotionally painful that the only way the child can cope is by repressing the memory of these experiences into the unconscious. Such repressed experiences can infl uence everyday activities. Even though, Freud emphasized early childhood infl uences, other psychodynamic theorists recognized the effects of social and environmental factors on personality and behavior. The major focus of attention in psychoanalysis, however, is on the internal mechanisms of the mind as these are infl uenced and developed early in life. Psychodynamic theories can most aptly be applied to small numbers of delinquents who truly do have personality problems. The utility of the psychoanalytic position for an understanding of delinquency in general can be questioned. Another criticism of Freud's theory has to do with its generalizability. The theory is based on Freud's work with mostly upper-middle-class and upper-class female patients. Some critics wonder whether the theory applies equally well to other types of people.

Adler's concepts like: inferiority complex, social interest, birth order and personality are still popular among common people, but these concepts attracted only fewer researchers to explore their relationship to juvenile delinquency.

Erik Erikson is the only psychologist whose theory of development is widely received by diverse fi elds with little criticism. His idea, adolescents search for

61 John Bowlby. (1969). "Attachment and loss v. 3" (Vol. 1). Random House. W. Furman & D. Buhrmester. (2009). "Methods and Measures: The Network of Relationships Inventory: Behavioral Systems Version." International Journal of Behavioral Development. Vol. 33. pp. 470- 478.

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their identity and if they are not provided an environment to support their quest may end up with negative identity, is still considered relevant to explain problem behavior of adolescents. The root of Erikson's theory is psychoanalysis but it offers a much wider and more comprehensive view of humanity.

Erikson's theory revolves around psychosocial crises which incorporates both negative and positive possibilities62. Some of the subsequent researches strongly supported Bowlby's theory whereas other researches failed to replicate the same results. Elliott, Huizinga and Menard63 for example found that weak bonds with parents may lead the child to associate with deviant peers, which in turn may lead to deviant behavior like delinquency and substance abuse.

The main limitation of the psychodynamic model is that it cannot be falsifi ed, scientifi cally observed or tested. There is no way of demonstrating if the unconscious actually exists. There is no way of verifying if a repressed memory is a real or false memory unless independent evidence is available. In other words, most of psychodynamics must be taken on faith. In addition, the psychodynamic approach ignores biological, behavioral, and cognitive possibilities behind deviant behavior. Psychodynamic theories of delinquency have also been criticized for being based on circular reasoning i.e., mental disorders are considered as both consequences and causes of delinquency.

3.2 Learning TheoriesLearning theorists also called behaviorists argue that the basis of a person's behavior is his/her experiences throughout life. Based on the works of the American psychologist John B. Watson (1878-1958) and popularized by B.F. Skinner (1904-1990), behaviorism concerns itself solely with objective and measurable events but not the unobservable mental phenomena. Behaviorists assume that each and every behavior, including delinquent behavior, is learned and learning occurs through interaction with social environment. There are three main processes of learning as proposed by behaviorists: learning by the consequences of behavior (operant conditioning); learning through association

62 Daniel Andreas Louw. (1998). Human Development. South Africa: Kagiso Tertiary. p. 65.63 Delbert S. Elliott, David Huizinga & Scott Menard. (1989). Multiple Problem Youth:

Delinquency, Substance Use and Mental Health Problems. New York: Springer. p. 52.

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(classical conditioning) and learning through observation, imitation and modelling (social learning). Watson and Skinner called for a change of techniques from the subjective speculative approach based on introspection and retrospection to a more empirical objective approach based on observation and measurement of behavior. Behavioral theories attempt to understand contingencies responsible for maintaining deviant or non-conforming behavior. Delinquency from this perspective is understood as "ways, which the person has learned, of coping with environmental and self-imposed demands."64

(i) Skinner and Operant Conditioning TheoryBurrhus Frederic Skinner was one of the most important individual in the behaviorist tradition. He was interested in the relationship between a particular stimulus and a given response and tried to explore the learning processes involved in connecting the two. Skinner explained learning as a function of change in overt behavior. An organism operates in its environment and the operation is followed by its consequence: reinforcement or punishment. An organism tends to repeat the operation followed by reinforcement, whereas avoids an operation followed by punishment. Skinner used this simplistic idea to explain all forms of behavior, including language acquisition, social behavior, moral conduct, superstitious behavior and criminal behavior. Skinner65 viewed human social behavior like other forms of behavior as a set of learned set of responses to specifi c stimuli. Delinquent behaviors are just varieties of human social behavior, learned in the same way as other social behaviors. Any type of social behavior is learned through the process of conditioning and learned behavior can be unlearned or modifi ed using the same process. Learning, therefore, becomes an ongoing process, with every choice made by the individual resulting in some form of response. Future actions are based on the reinforcement, or lack thereof, of past behavior.

Skinner did not seek to explain the ultimate causes of social behavior because it is obvious that they are learned, his approach holds considerably more promise for understanding and controlling delinquent behavior. The behaviorist

64 Albert Bandura. (1969). Principles of Behavior Modifi cation. New York: Holt, Rinehart and Winston. p. 43.

65 Burrhus Frederic Skinner. (1953). Science and Human Behavior. New York: Macmillan. p. 67.

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approach draws attention towards the specifi c problem behavior and suggests to recognize that it is learned, so it can be unlearned.

Skinner66 descried moral development from the standpoint of a behaviorist. He suggested moral behavior is the refl ection of the child's past conditioning: the child learns morality through social reinforcement in response to his or her actions. Process of conditioning begins fi rst from the child's parents, later by powerful social institutions including schools and legal and religious bodies. Skinner considered moral behavior simply as a consequence to social conditioning.

(ii) Bandura and Social Learning Theory Albert Bandura's social learning theory adds an extra element- a cognitive element to the stimulus-response design of the conventional behaviorist theories. Bandura saw that direct experience is not always necessary for the learning to occur. That is why his theory is often said to bridge the gap between behaviorism and cognitivism. The new factor capable of eliciting learning as proposed by Bandura is modelling, or observational learning. Bandura, on the basis of his research, proposed that human beings can learn by simply observing other's behavior. Bandura further added that learning by observation is not a straight forward process. To change in behavior, a learner needs to be able to have a memory of the action, as well as other skills like decision making for when to display the action. These are cognitive skills that early behaviorists ignored. Bandura's theory has had a major impact on the public's understanding of how children learn from their parents; and it continues to shape people's ideas on education policy, childcare, video game and fi lm ratings and many other things.

Bandura67 discussed the principles of modifying behavior using social learning theory which is also known as social cognitive theory.68 It posits the interaction of (1) observation, symbolic representations and self-generated stimuli and

66 Burrhus Frederic Skinner. (1971). Beyond Freedom and Dignity. New York: Knopf. p. 102.67 Supra Note 64. p. 27.68 Albert Bandura. (1986). Social Foundations of Thought and Action: A Social Cognitive Theory.

Englewood Cliffs, NJ: Prentice-Hall. p. 34.

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self-imposed consequences, (2) environmental conditions and (3) behaviors in determining behavior. The theory "favors a model of causation involving triadic reciprocal determinism behavior, cognition and other personal factors, and environmental infl uences all operate as interacting determinants that infl uence each other bi-directionally".69 Social learning theorists posit that the conditions by which behavior is shaped include internal and external forces, and that behavior itself is a determinant of future behavior70. Deviant, criminal or delinquent behavior, like all behavior, results from this model of causation.Bandura and his colleagues in their ground breaking study71 demonstrated that children's behavior is infl uenced by observational learning. They grouped 72 children into aggressive model condition, nonaggressive model condition and control group. In the aggressive condition, children observed an adult act physically aggressive towards a Bobo doll. In the non-aggressive condition, children observed an adult interact with a Bobo doll in a non-aggressive manner. Children in control group did not observe any model. A short time after viewing the adult interact with a Bobo doll, the children in all three conditions were observed during individual free play, and the results indicated that children in the aggressive condition were signifi cantly more likely to act aggressively towards a Bobo doll than children in the nonaggressive condition including the control condition.

According to Bandura, delinquent behaviors as well as normal behaviors are learned. Children learn behaviors by watching others and behaviors that are rewarded are imitated.72 Bandura73 proposed the concept of the moral self-embedded in a broader social context, which both infl uences and is infl uenced by the self. Moral and immoral actions can arise only through self-regulatory

69 Albert Bandura. (1989). "Human Agency in Social Cognitive Theory." American Psychologist. Vol. 44. pp. 1175–1184.

70 Supra Note 64. p. 87.71 Albert Bandura, Dorothea Ross & Sheila A. Ross. (1961). "Transmission of Aggression

Through Imitation of Aggressive Models." Journal of Abnormal and Social Psychology.Vol. 63. pp. 575–582.

72 Albert Bandura. (1973). Aggression: A Social learning Approach. Englewood Cliffs, NJ: Prentice Hall. p. 66.

73 Albert Bandura. (1986). Social Foundations of Thought and Action: A Social Cognitive Theory. Englewood Cliffs, NJ: Prentice-Hall. p. 97.

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mechanisms that are rooted within individuals and are exercised in response to an external stimulus. Early in development, a child's conduct is regulated primarily through external stimulus and social sanctions. As development unfolds, the regulatory focus moves from external to internal factors. A person should exercise his/her moral agency to both master in inhibiting immoral behaviors and enhancing moral behaviors. Skills for doing so are acquired developmentally, through interactions with others in social situations.

In sum, learning theories have been highly infl uential in understanding and managing delinquent behavior. The main strength of the behaviorist theories is the extensive use of scientifi c methods. Because of emphasis on objectivity, control over variables and precise measurement, the studies carried out by behaviorists tend to be very reliable. Another strength of behaviorism is its usefulness in terms of being able to help improve everyday life. Various forms of behavior therapy have been successfully used to cure ranges of abnormal behavior and behavioral problems.

A more fundamental criticism of behaviorism is that it ignores the infl uences of mental processes on learning. However social learning theorists like Bandura show that people are quite capable of observing and learning from the behavior and experiences of others.

3.3 Theories of Moral Development Morality refers to a society's standard of dos and don'ts. Highly relative to time, place and culture, every society possesses its own standard of morality. Psychologists believe that moral sense does not come by birth. Cognitive psychologists believe that morality unfolds in a pre-set order as a child matures whereas psychologists embracing socio-cultural perspective attribute moral development to socialization. Contemporary developmental psychologists distinguish between moral thought and moral behavior as different but interrelated facets of morality. Cognitive psychology consists of several branches but the theory of cognitive development proposed by Jean Piaget and the theory of moral development further elaboration of Piaget's theory by Kohlberg are two of the theories highly relevant in explaining moral development and delinquency.

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(i) Piaget and Theory of Cognitive DevelopmentJean Piaget's contribution to cognitive development is often compared with Shakespeare's contribution to English literature. He devoted his whole career to study cognitive development in children. Piaget hypothesized a child's reasoning processes developed in an orderly fashion, beginning at birth and continuing until age 12 and older. He proposed a stage theory of cognitive development and claimed that development of cognition follows a structured pattern.

Sensori-motor stage (birth-2 years)Infants gain knowledge through the physical encounter with the outer world. Children in this stage are engaged in two types of activities: sensory and motor. Activities like sucking, touching, kicking, banging, throwing where sensory and motor organs are engaged are the primary sources of their knowledge of the external world. The major cognitive outcome of this period is object permanence, it is developed after the age of 9 months, it is the child's ability to understand the fact that even if an object is out of sight, it is still there. Mental representations of objects are formed this stage onwards.

Preoperational stage (2-7 years)The major cognitive accomplishment of this stage is the capacity to use of language to express their ideas. As formation of mental representations is there, it opens the new world of imagination and fantasy. Children at this stage are seen engaged in pretend play and role plays- acting as mummy or daddy, using block as a car, spoon as a telephone. A child's thought at this stage is characterized by the egocentric thoughts i.e. viewing the world from one's own perspective and believing that others also think like them. Another important feature is the child's inability to understand the concept of principles of conservation.

Concrete operational stage (7-11 years) This stage is characterized by the mastery over the concept of principle of conservation, which means the quantity of a matter remains the same though physical appearance changes. Now, a child can count by using buttons and lines or by bending their fi ngers. And this concept of object having constant properties is limited to real and concrete objects only they can hardly use

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mental representations in their mental operations. They also develop the ability to form simple mental operations like sorting, ordering, and addition. Egocentric thought begins to diminish; they start understanding that others have their own perspectives too.

Formal operational stage (11 years and older)The last stage of cognitive development begins during adolescence which is a period of tremendous change. This stage is characterized by more logical and abstract thought than in the concrete operational. They can reason about possible and hypothetical event. The ability to solve the problem in a systematic way also increases.

(ii) Piaget's Theory of Moral JudgmentApart from cognitive development, Jean Piaget also studied moral development. Piaget74 used two techniques to study moral development among children. The fi rst technique was based on observation. Piaget observed children's playing and noted how they behaved, what they did when someone violated the rule and what they did to defend the rule and themselves. The second technique was to relate a short story or scenario that described some form of misbehavior by a child or by an adult. He then presented the children with possible corrective actions that might be meted out to the offender and asked the children to tell him which were fair and just and which were not, and why. If a child neglects a chore, for example, after repeated requests, what is an appropriate punishment or correction? Here Piaget distinguished between expiation (atonement) and reciprocity as punishment strategies. Expiation meant that some form of punitive action (e.g., spanking; confi nement) would be invoked in which the offender must 'pay the price' for the offense. In contrast, reciprocity implies setting things right. With reciprocity the child must be made to see the consequences of his or her neglect, and to clearly understand the need to behave in a more cooperative manner.

Piaget's studies of moral judgments are based both on children's judgments of moral scenarios and on their interactions while playing games. On the basis

74 Jean Piaget. (1932). The Moral Judgment of the Child. New York: Harcourt. p. 13.

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of his research, Piaget proposed two stages of moral development that each children passes through: heteronomous stage and autonomous stage.

Heteronomous morality (4-7years)Piaget claimed that children younger than 4 years are not capable of moral judgment. Moral judgment begins from four years of age. At this stage, children consider justice and rules to be unchangeable properties of the world, free from the infl uence of people. A child in heteronomous stage can judge one's behavior on the basis of consequences of his/her behavior but cannot judge on the basis of his/her intention.

Autonomous morality (10 and older)Children in this stage become aware of the fact that rules and laws are created by people. Additionally, while judging one's action children consider the actor's intentions, as well as consequences of his/her behavior. According to Piaget, children between 7 and 10 years of age are in a transition between the two stages (also sometimes referred to as autonomous cooperation stage).

(iii) Kohlberg and Theory of Moral DevelopmentLawrence Kohlberg was infl uenced by Piaget's approach to studying children's conceptions of morality. Piaget described children as little logicians whereas Kohlberg viewed them as moral philosophers.75 Kohlberg was more focused on studying moral understanding among children. He believed that a child's moral behavior is infl uenced by the child's understanding of the concept 'morality'. Kohlberg weighed morality by simply asking children to consider certain moral dilemmas-situations in which right and wrong actions are not always clear. He created some stories that ended with moral dilemmas and asked children from different ages what the character in the story should do in the given situation. He would then analyze their reasoning and justifi cations. The famous example is "Heinz dilemma" which explores the value of obeying the law against the value of human life. He was more concerned with their reasoning - at how they arrived at their conclusions rather than with whether

75 John S. Fleming. (2006). Piaget, Kohlberg, Gilligan, and others on Moral Development. Available at http:// swppr.com/Textbook/Ch%207%20Morality.pdf (Accessed on April

27, 2017).

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the children decided that certain actions were right or wrong. On the basis of his research, Kohlberg divided the moral development in three progressive levels and each levels are divided into two stages (see Table 1).

Level of moral development and stages of moral reasoning:Level of moral development

Stages of moral reasoning

Pre-conventional Stage 1: Right is obedience to power and avoidance of punishment.

Stage 2: Right is taking responsibility and leaving others to be responsible for them-selves.

Conventional Stage 3: Right is being considerate: uphold the values of others children and adult rules of society at large.Stage 4: Right is being good, with the values and norms of family and society at large.

Post-conventional Stage 5: Right is fi nding inner universal rights; balance between self-rights and societal rules - a social contract. Stage 6: Right is based on a higher order of applying principles to all humankind; being nonjudgmental and respecting all human life.

Source: Lawrence Kohlberg. (1986). "The Just Community Approach to Corrections". Journal of Correctional Education, 37. pp. 54-58.

Pre-conventional level This is the fi rst level of moral reasoning. According to Kohlberg the prominent feature of a child's moral reasoning is that morality is externally controlled and determined by the consequences of their actions whether they have been rewarded or punished. For a child in this level, good behaviors are the ones which have been rewarded and bad behaviors are those behaviors for which they are punished. Stage 1 is obedience and punishment orientation in which what is right or wrong is equated with what authority fi gure says which is verifi ed by the punishment or reward that follows. The child is still unable to view the world from the perspective of others. Stage 2 is instrumental purpose orientation in which children are aware that different people can have different

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perspectives. The child is a bit less egocentric at this stage, recognizing that if one is good to others then they in turn will be good to you.

Conventional levelAt this level the child begins to understand social rules and develops a more objective perspective on right and wrong. In this level a child's moral reasoning is community oriented. The child begins to understand social rules and develops a more objective perspective on right and wrong. Children at this level are capable of understanding consequences of their behavior on social relationships so they begin to conform to the social rule and regulation. Stage 3 is good boy-good girl orientation that is based on interpersonal relationships where the individual considers empathy, care, loyalty and respect, for moral reasoning. The major motivating factor in good behavior is social approval from those closest to the child. Stage 4 is social-order-maintaining orientation in which the individual recognizes the needs for rules that must be followed. They are concerned about ensuring the societal order. The concept of "doing one's duty" is the crucial factor in a child's moral reasoning.

Post-conventional levelAt this level, the emphasis is no longer on conventional, societal standards of morality, but rather on personal or idealized principles. This fi nal level is characterized by interest in abstract concept of justice and laws of one's own society. Stage 5 is social-contract orientation where the individual recognizes the necessity for social rules and norms. Sometimes laws also can be unfair so moral act may not be the legal act. People at this stage begin to understand and believe in democracy in action. Stage 6 is universal ethical principle orientation which considers the importance of abstract, universal principles of justice. Right and wrong are not determined by rules and laws, but by individual refl ection on what is proper behavior. The more emphasis is on self-chosen ethical principles as valid for the whole humanity. It is so far the highest level of moral reasoning. Kohlberg regards moral reasoning as a very important mediator of moral action and concludes that delinquents are more likely to demonstrate pre-conventional reasoning.

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Evaluation of moral development theoriesResearches in Piaget's theory of cognitive development and moral development often end up with converging conclusions that Piaget has under-evaluated children's cognitive capacity76 and capacity to moral judgment.77 Berk78 reports some researches by psychologists which show that children after the age of 3 are able to consider others' purpose and intention. They are able to consider guiltier a person who has intentionally made a mistake compared to an individual who has had no intention in his wrong action, even if his wrong is greater. Nelson79 for example found that children as young as 3-4 years old are capable of moral judgment on the basis of explicitly provided motive and outcome information.

Kohlberg applied this concept to explain juvenile delinquency.80 He suggested that there are stages of moral development during which a child's basis for moral decisions changes. He proposed that serious offenders have a moral orientation which differs from that of law-abiding citizens. Unlike Piaget who assumed cognitive or moral development to be depended on age of the child, Kohlberg classifi ed people on the basis of the stage to which his/her moral reasoning has grown or ceased to grow. In his studies, Kohlberg found that majority of delinquents were revealed as having a lack of respect for the law and a personality marked by self-interest; in contrast, non-offenders viewed the law as something that benefi ts all of society and were willing to honor the rights of others.81 Subsequent researchers have consistently found that a signifi cant number of non-delinquent youths displayed higher stages of moral reasoning than delinquents and that engaging in delinquent activities leads

76 Judith Samuel & Peter Bryant. (1984). "Asking only one Question in the Conservation Experiment." Journal of Child Psychology and Psychiatry. Vol. 25. pp. 315-18.

77 Kay Bussey. (1992). "Lying and Truthfulness: Children's Defi nitions, Standards and Evaluative Reactions." Child Development. Vol. 63. pp. 129-137.

78 Laura E. Berk. (2003). Child Development. Boston: Allyn and Bacon. p. 212.79 Sharon A. Nelson. (1980). "Factors Infl uencing Young Children's Use of Motives and

Outcomes as Moral Criteria." Child Development. Vol. 51. pp. 823–82980 Lawrence Kohlberg. (1969). Stages in the Development of Moral Thought and Action. New York:

Holt, Rinehart and Winston. p. 72.81 Lawrence Kohlberg, Kelsey Kauffman, Peter Scharf & Joseph Hickey. (1975). "The Just

Community Approach to Corrections: A Theory." Journal of Moral Education. Vol. 3. pp. 243-260.

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to reduced levels of moral reasoning, produces more delinquency in a never-ending loop.82

3.4 Personality Trait Approach There have been extensive researches on relationship between delinquency or crime to personality traits resulting in various theories and principles. Personality trait approaches to delinquency assume that one's personality is the result of inheritance, genetics, early childhood experiences or the infl uence of ongoing life experiences. This approach is focused on the concept of the core personality; that is, the delinquent, like other people, possesses a dominant, overriding set of values and attitudes that guide his behavior. Specifi c personality trait or coherent set of traits, inherited or acquired characterize a person's general outlook on life and consequently his or her overall behavior. So that a negative consequence like delinquency must be preceded by a negative cause.83 Researches consistently show that some individuals are crime prone, they have certain specifi c personality features which cause them to involve in illegal activities.84 Many researchers till date, comparing the delinquents and non-delinquents on a number of psychological factors have found the signifi cant relationship between crime and personality.85

(i) Eysenck and Personality Trait TheoryHans Eysenck argued that personality infl uences behavior, and personality, on the other hand, is largely determined by physiological, perhaps even inherited, and environmental factors. He developed a theory of personality closely resembling stress-diathesis model. Eysenck initially proposed a theory of personality consisting two dimensions: extroversion (E) and neuroticism (N). As he claimed, the great variation between people's personalities could

82 Quinten A. W. Raaijmakers, Rutger C.M.E. Engels & Anne Van Hoof. (2005). "Delinquency and Moral Reasoning in Adolescence and Young Adulthood." International Journal of Behavioral Development. Vol. 29. pp. 247–258.

83 Supra Note 6. p. 117.84 Sarah E. Hampson. & Paul Kline. (1977). "Personality Dimensions Differentiating

Certain Groups of Abnormal Offenders from Non-Offenders." The British Journal of Criminology. Vol. 17. pp. 310-333.

85 Ellison M. Cale. (2006). "A Quantitative Review of the Relations between the 'Big 3' Higher Orders Personality Dimension and Antisocial Behavior". Journal of Research in Personality. Vol. 40. pp. 250-284.

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be reduced to these two dimensions. He speculated that these two dimensions are the outcomes of the underlying functioning of the individual's nervous system. He also designed a paper pencil test to measure these dimensions, known as the Eysenck Personality Questionnaire (EPQ). People with High E scores are sociable, active, lively and sensation seeking. E originates from the overall level of arousal in the person's central nervous system and autonomic nervous system. High E-scorers have a low level of arousal and therefore need more stimulation from their environment. People having high N scores are anxious, depressed and react very strongly to aversive stimuli. N is based on the overall level of liability in the person's central nervous system. Where N is low, the person has a stable, relatively unreactive nervous system whereas a high N score results in a high degree of instability. Later, Eysenck added a third dimension of personality, psychoticism (P). People who score high on P are aggressive, antisocial, cold and egocentric. Eysenck could not explain the relationship between nervous system and psychoticism but he proposed that testosterone levels are linked to levels of psychoticism86. He consistently claimed that E, N and P are determined largely by genetics. Apart from genetics he maintained that classical conditioning and neurophysiology were two major factors responsible for development of criminal conduct.

According to Eysenck, each trait is normally distributed in the population. That is, most people have moderate E, N and P scores and extreme scores are rarer. In his book titled 'Crime and Personality', Eysenck87 claimed that criminals tend to score high on scales of extraversion, neuroticism, and psychoticism. For Eysenck conscience is a conditioned refl ex. Furthermore, he claimed that moral behavior is learned via classical conditioning. People scoring high on extraversion are in general less socialized than are low scorers due to their inability to learn by conditioning; hence they will engage in more of all types of antisocial behavior. People scoring high in neuroticism are higher on anxiety than low scorers; since anxiety is said to act as a drive which multiplies with habit, then high N scorers with habitual antisocial responses will tend to

86 Hans J. Eysenck. (1997). "Personality and the Biosocial Model of Antisocial and Criminal Behavior." In Adrian Reine, Patricia Brennan, David Farrington & Sarnoff A. Mednick (Eds.), Biosocial Bases of Violence. New York: Springer. pp. 21-37.

87 Hans J. Eysenck. (1977). Crime and Personality. London: Routledge and Kegan Paul. p. 57.

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engage in these responses more strongly than low N scorers. People scoring high in psychoticism have such a nervous system that predisposes them to be solitary in emotion and uncaring for people; this impersonal, self-contained personality type is unlikely to feel empathy, guilt, or sensitivity to the feelings of others and therefore engages in more antisocial acts than do low scorers on the dimension.88

Subsequent researches on Eysenck's theory of criminality has resulted in both for and against of his theory. Rushton and Christjohn89 for example, compared E, N and P scores with self-reports of delinquency in Eysenck's personality theory in school students. The results showed that those scoring higher on E, P and N also reported higher levels of delinquency. There are also some evidences to support his neurophysiological explanation of criminal behavior. Mednick90 in his longitudinal studies found that those who experienced serious disagreements with the law had slower electro-dermal recovery than the controls. Mednick et al91., found that offi cially identifi ed delinquents had slower electroencephalographic (EEG) readings and fewer conditional responses than non-delinquents. However, studies comparing convicted offenders with non-offenders do not produce such clear cut results. Farrington et al.92 in their review of 16 studies related to the relationship between E, N and P measures with criminal convictions found that in the majority of cases offenders scored higher on P and N but not on E. Hollin93 also found similar results, offenders generally showed higher P and N scores but not necessarily higher E scores.

88 Philippe J. Rushton & Ronald D. Chrisjohn. (1981). "Extraversion, Neuroticism, Psychoticism and Self-Reported Delinquency: Evidence from Eight Separate Samples." Personality and Individual Differences. Vol. 2. pp. 11-20.

89 Ibid.90 Sarnoff A. Mednick. (1977). "A Bio-Social Theory of the Learning of Law-Abiding Behavior."

In Sarnoff A. Mednick & K.O. Christiansen (Eds.), Biosocial Bases of Criminal Behavior. New York: Gardner Press. pp. 1-8.

91 Sarnoff A. Mednick, Voluka Jan, F. Gabrielli, Jr. William & M. Itil Turan. (1981). "EEG as a Predictor of Antisocial Behavior." Criminology. 19. pp. 219–229.

92 Loeber Rolf, David P. Farrington, Magda Stouthamer-Loeber, Terrie E. Moffi tt, & Avshalom Caspi. (1998). "The Development of Male Offending: Key Findings from the Pittsburgh Youth Study." Studies in Crime and Crime Prevention. Vol. 7. pp. 141–171.

93 Clive R. Hollin. (1989). Psychology and Crime: An Introduction to Criminological Psychology. London: Routledge. p. 135.

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4. Sociological Theories of Juvenile DelinquencySociological theories of Juvenile delinquency focus on factors that infl uence delinquency, including association with delinquent peers, lack of opportunity, and family relationships. Four major types of social theories of delinquency are social structure theories, social process theories, life course theories, and social reaction theories.

4.1 Social Structure TheoriesSocial structure theories seek to explain delinquency on the basis of two major factors: socio-economic conditions and cultural values. These conditions and values are the result of social and economic inequality in the social structure. These theories assert that disadvantaged economic class are more likely to commit crime than middle- and upper-class. Middle- and upper-class youths do commit crime, but their crimes are usually less serious than those committed by lower-class youths. Three social structure theories include ecological theory, strain theory, and subculture theory.

4.1.1 Ecological TheoryEcological theory seeks to explain delinquency based on where it occurs. It focuses on the infl uence of social environment on delinquency. The most prominent ecological theory is Clifford R. Shaw and Henry D. McKay's social disorganization theory.

(I) Shaw & Mckay's Social Disorganization TheoryTwo sociologists from the University of Chicago and the Institute for Juvenile Research in Chicago, Clifford Shaw and Henry McKay, developed social disorganization theory from studies of urban crime and delinquency in 1942, 1969. They studied the offi cial (Juvenile Court and Police) records of juvenile delinquents from Chicago to determine the areas of the city that had the highest delinquency rates. Specifi cally, they found that rates of delinquency were signifi cantly higher in inner city, lower class neighborhoods compared to more affl uent neighborhoods that reside on the outer limits of the area.

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The social disorganization94 theory, developed by Shaw and McKay based on their studies of Chicago, has pointed to social causes of delinquency that seem to be located in specifi c geographical areas. They observed signifi cant differences in crime rates in different zones during their study. These scholars sought to understand why high rates of delinquency persisted in certain areas for many years, independent of changes in the composition of the population.

Social disorganization borrowed much of its foundation from Robert E. Park and Ernest W. Burgess's (1924) concept of human and urban ecology. This model presumed that residential mobility was infl uenced by a variation in the amount of assimilation of populations into urban areas for occupational reasons. Their research focused on immigrants migrating and taking on primarily low-earning jobs, which would tend to place them in neighborhoods that were economically deprived. However, their argument was that as time passed, with increase in their occupational level, they would move to more desirable neighborhoods.

Shaw and McKay (1942) argued that the residents in socially disorganized areas were not psychologically or biologically abnormal, but instead they argued that deviance and crime is a normal response committed by normal people to abnormal social conditions. Moreover, they emphasized that social changes, such as urbanization, industrialization, and so on, cause social disorganization because there is a decrease in social control. According to Akers and Sellers, the "notion of social disorganization as the breakdown of social control at

94 According to Kornhauser, social disorganization refers to the inability of a community to realize the common values of its members and maintain effective social controls. He also describes, "social disorganization exists in the fi rst instance when the structure and culture of a community are incapable of implementing and expressing the values of its own residents". In contrast, socially organized community is characterized by following elements: (1) solidarity, or an internal consensus on essential norms and values (e.g., residents want and value the same things, such as a crime free neighborhood); (2) cohesion, or a strong bond among neighbors (e.g., residents know and like one another); and (3) integration, with social interaction occurring on a regular basis (e.g., residents spend time with one another). Conversely, a disorganized community has little solidarity among residents and lacks social cohesion or integration. Perhaps the greatest difference between socially organized and disorganized neighborhoods is the levels of informal social control in those neighborhoods. Informal social control is defi ned as the scope of collective intervention that the community directs toward local problems, including crime. (For detail see Ruth Kornhauser's (1978) Social Sources of Delinquency. p.63)

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the local or neighborhood level has remained at the center of the theory".95 A central theme to social disorganization is that it is not only characteristics of the residents who live in the neighborhood that shape crime rates, but it is also the neighborhood ecological conditions, which they argue are more infl uential on crime.

In particular, rates were highest in slums near the city center and diminished as distance from the center of the city increased, except in areas of industry and commerce just outside of the central district, which had some of the highest rates. Shaw and McKay also found that rates of crime and delinquency exhibited a remarkable consistent patterning over many decades; in particular, the spatial pattern of rates revealed signifi cant long-term stability even though the nationality structure of the population in the inner-city areas changed greatly over time. They thus determined that crime and delinquency were not the result of personal characteristics of the residents who lived in the neighborhoods but were tied to the neighborhoods themselves. Since areas of high and low crime and delinquency maintained their relative positions over many years, a key theoretical task became to explain the existence and stability of these area differentials over time.

Zone 1 (Factory zone): The central business district Zone 2 (Zone in transition): One of the oldest areas of the city and surrounding

the central business district. It is frequently invaded by businesses as the central business district expands

Zone 3 (Zone of working people's homes): Comprised of the homes and apartments of working people who have left the zone in transition

Zone 4 (Residential zone): Comprised of more expensive homes and apartments Zone 5 (Commuters' zone): The suburbs

The zone in transition consistently had the highest delinquency rate in comparison to the other zones. This zone, frequently referred to as an interstitial area, is one in which factories and commercial establishments exist along with private residences.

95 Ronald L. Akers & Christine S. Sellers. (2009). Criminological Theories: Introduction, Evaluation, and Application. New York: Oxford University Press. p. 178.

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Shaw and McKay (1942) identifi ed three characteristics of the zone in transition that may contribute to increases in delinquency. They affi rmed three structural factors—low socioeconomic status/poverty, Racial/ethnic heterogeneity, and residential instability/mobility that led to community disorganization, which in turn accounted for delinquent subcultures and ultimately high rates of delinquency.

Low socioeconomic status/poverty The role of economic status in social disorganization theory is based on patterns of growth in urban areas. In many major urban areas, growth leads to the physical, economic, and social decline of the residential areas closest to the central business district. These areas then become most readily available to the poor and to groups who migrate to the area. As a result, areas with the lowest average socioeconomic status will also have the greatest residential instability and ethnic diversity, which in turn will create social disorganization and ultimately urban neighborhoods with high rates of poverty also have greater rates of delinquency.96

Racial/ethnic heterogeneity According to Shaw and McKay, racial or ethnic diversity interferes with communication among adults. Effective communication is less likely in society with ethnic diversity because differences in customs and a lack of shared experiences contribute to fear and mistrust (less social capital). For example, neighbors who may not understand each other's cultural differences would not interact. This heterogeneity also led to the lack of a common value system among the residents. Thus, the informal social control mechanisms that existed in the other zones, such as having neighbors who watched each other's children and a general feeling of cohesiveness with neighbors, did not exist in the zone in transition. The limited group cohesion in these neighborhoods due to cultural heterogeneity made delinquency more likely because informal social control mechanisms were less powerful.

96 Barbara D. Warner & Glenn L. Pierce. (1993). "Re-Examining Social Disorganization Theory Using Calls to the Police as a Measure of Crime." Criminology. Vol. 31(4). pp. 493–517.

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Residential instability/mobility When the population of an area is constantly changing, the residents have fewer opportunities to develop strong, personal ties to one another and to participate in community organizations. Usually, individuals would obtain better jobs and move away from the zone of transition. Therefore, there was rapid turnover in the population of interstitial areas. Still true today, the mobility of residents' impudence the level of informal social control in the neighborhood. Informal social control such as family, neighbors, friends, school, and religious institutions are far more powerful mechanisms to regulate people's behavior (including delinquency) than are formal social control mechanisms such as police and the juvenile justice system. In interstitial areas, informal social control mechanisms are not well developed. Therefore, delinquency is more likely to be increased.

4.1.2 Strain/Anomie TheoriesStrain theorists see delinquency as a normal response to the conditions that limit the opportutnity to obtain economic success. These theories state that society instills in citizens a desire for fi nancial success but does not provide all individuals equal opportunity to achieve that fi nancial success. Those who do not have equal opportunity are "strained" and consequently more likely to be delinquent to achieve their goal.

(I) Durkheim's Anomie TheoryEmile Durkheim (1858-1917) fi rst conceptualized the term "anomie"97 in The Division of Labour in Society (1893) and later wrote more about anomie in his classical work Suicide (1897). Anomie, according to Durkheim, refers to an environmental state where society fails to exercise adequate regulation or constraint over the goals and desires of its individual members.98 In his fi rst major work The Division of Labor in Society, he explained about an anomic division of labor, a phrase he used to describe a disordered division of labor in which some groups no longer fi t in, though they did in the past. Durkheim saw

97 The word anomie comes from Greek, namely the prefi x a : "without," and nomos: "law." However, The contemporary understanding of the word anomie can be describe as the term "normlessness".

98 Emile Durkheim. (1951). Suicide. New York: The Free Press. p. 337.

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that this occurred as European societies industrialized and the nature of work changed along with the development of a more complex division of labor. He framed this as a clash between the mechanical solidarity of homogeneous, traditional societies and the organic solidarity that keeps more complex societies together.

According to Durkheim, anomie could not occur in the context of organic solidarity because this heterogeneous form of solidarity allows for the division of labor to evolve as needed, such that none are left out and all play a meaningful role. That is, with rapid change, society is not able to suffi ciently regulate the relations within itself. Given this, anomie then leads to a discrepancy between "societal conditions and individual opportunities for growth, fulfi llment, and productivity within society."99 Durkheim also implies that there are individual goals that may not be achieved through legitimate societal means. This in turn creates a sense of alienation and frustration. Durkheim, however, did not focus on explaining deviant behaviors and criminal activities. Instead, he related the idea of "anomie" to economic conditions only in his division of labor in society.

A few years later, Durkheim further elaborated the concept of anomie in his 1897 book Suicide. He elaborated this concept of anomy which refers to a sense of normlessness, resulting in individual detachment and disconnection from other members of a group or society at large. When people feel detached, when they feel that they do not belong, this is anomie. He identifi ed anomic suicide as a form of taking one's life that is motivated by the experience of anomie. Although Durkheim did not focus his theory on crime, however it was, after all, indeed the fi rst classic study of deviance. He created anomie theory to explain one kind of deviance i.e. suicide; and discusses suicide as an anathema to the moral community, an act that violates the sacred principles of the collective sentiment.100

In sum, Durkheim argues that sudden social changes, whether caused by crisis or prosperity, lead to the breakdown of social regulation, which in turn creates the state of anomie where the old rules of regulating are inappropriate and new

99 Supra Note 6. p. 97.100 Supra Note 98.

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rules are not yet formed. This anomic condition "unleashes escalating needs that outstrip means and ultimately pressure actors into committing suicide."101

(II) Merton's Anomie/Strain TheoryIn his book Social Structure and Anomie, Robert K. Merton (1938) revised the legacy of Durkheim's early work of "anomie" or "normlessness" for explaining deviant behavior. Although Merton and Durkheim both attempt to use sociological theory to explain social problems, there are three major differences between them.

First, Durkheim argued that deviance arises because of a breakdown in social regulation, which governs innate human impulse. In contrast, Merton stated that the aberrant behavior may be regarded sociologically as a symptom of dissociation between culturally prescribed aspirations and socially structured avenues for realizing these aspirations.102

Second, Durkheim referred to anomie as the failure of society to regulate or restrain goals and to provide suitable norms to follow (normlessness), whereas Merton referred to anomie as "a breakdown in the cultural structure, occurring particularly when there is an acute disjunction between cultural norms and goals and the socially structured capacities of members of the group to act in accord with them."103

Finally, Durkheim applied his theory only to one type of social deviance – suicide. Merton, on the other hand, is more ambitious in formulating a theory of different types of adaptations, which include various kinds of deviance.104

However, the most important similarity between Durkheim and Merton is "the absence of a need to describe the experience of achievement as more than a fi xed goal toward which one struggled".105 Generally, it can be said that Durkheim

101 Francis T. Cullen. (1984). Rethinking Crime and Deviance Theory: The Emergence of a Structuring Tradition. Totowa, NJ: Rowman & Allanheld. p. 81.

102 Robert K. Merton. (1968). Social Theory and Social Structure (Rev. ed.). New York: Free Press. p. 188.

103 Ibid. p. 216.104 Supra Note 101. p. 83.105 William Simon & John H. Gagnon. (1976). "The Anomie of Affl uence: A Post-Mertonian

Conception." American Journal of Sociology. Vol. 82(2). pp. 356-378.

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created anomie theory to explain one kind of deviance, but Merton expanded on Durkheim's theory to show a variety of deviant behavior. Merton's strain theory is routed in the assumption that 'delinquency results when individuals are unable to achieve their goals through legitimate channels'.106 In such cases, individuals may turn to illegitimate channels of goal achievement or strike out at the source of their frustration in anger. According to Shoemaker, Merton's theory of anomie is defi ned as the "disjunction between cultural goals and structured means for achieving these goals as it affects a large number of people."107

Merton (1938, 1959, 1964, 1968) conceptualized a social system as comprising two elements: a social structure and a cultural structure. The cultural structure can be defi ned as an "organized set of normative values governing behavior which is common to members of a designated society or group and the social structure as the organized set of social relationships in which members of the society or group are variously implicated."108 The cultural element is further divided into two subparts: the society's central goals or values (ends) and the institutionalized ways to achieve such goals (means). The "ends" refers to "culturally defi ned goals, purposes, and interests" that were "held out as legitimate objects for all or for diversely located members of the society"109; the "means" refers to a cultural structure that primarily defi ned, regulated, and controlled the normative modes of realizing culturally defi ned goals.

On the basis of these two concepts, the cultural structure (means and ends) and the social structure, Merton explained social systems in a systematic way. When there is equilibrium between the cultural structure and the social structure, that is, when the culturally approved goals could be realized by members of the collectivity via normatively prescribed means within social structural relationships, an organized collectivity or society is expected.

106 Robert Agnew. (1985). "A Revised Strain Theory of Delinquency." Social Forces. Vol. 64(1). pp. 151-167.

107 Supra Note 6. p. 94. 108 Supra Note 102. p. 216.109 Robert K. Merton. (1959). "Social Structure and Anomie: Revisions and Extensions." In R. N.

Anshen (Ed.), The Family: Its Function and Destiny. New York: Harper & Brothers. pp. 226-257.

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In such an equilibrated society, where there is a harmonious relationship between the cultural structure and the social structure, individuals receive satisfaction both from achievement of goals and from striving to realize goals via institutionalized modes. Hence, success is twofold: It is reckoned in terms of the product and in terms of the activities.110

The focus of Merton's theory, however, was to explain non-organized society (anomic society) based on his conceptions of the cultural structure (means and ends) and the social structure. A society becomes unstable because of a mal-integration between the cultural structure and social structure and/or within the two elements of the cultural structure (cultural goals and institutional means). The former occurs when the culturally designated goals are universally applied but the access to the means is not equally distributed within the social structure. The latter refers to the situation in which the cultural goal is held at the highest position, while cultural means are relegated to a relatively low position. In such a situation, satisfaction is likely to come to individuals who could not compete successfully either because access to the means is lacking or the means are ineffi cient. Merton stated clearly that "If concern shifts exclusively to the outcome of competition, then those who perennially suffer defeat will, understandably enough, work for a change in the rules of the game."111 Consequently, the technically most effective means that lead to achieving the moral mandate will be preferred whether it be "fair means" or "foul means". Therefore, "as this process of attenuation continues, the society becomes unstable and there develops what Durkheim called "anomie" or "normlessness."112

Based on the aforementioned conceptual scheme, Merton (1938) developed fi ve types of adaptations to strain based on the discrepancy between cultural goals and institutional means to explain how an anomic social system induces deviant behavior which are as follows:

110 Ibid.111 Ibid. 112 Ibid.

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(i) Conformity: A conformist is highly unlikely to commit delinquent acts and will continue to pursue the goal of economic success through the institutionalized means. A conformist both accepts the cultural goal of economic success and accepts the institutionalized means to obtain success.

(ii) Innovation: This adaptation occurs when people internalize cultural goals but do not at the same time assimilate the institutional norms governing means to attain such goals. To Merton, this type of adaptation is the most common deviant adaptation and is closely related to crime. Merton, then, employed this adaptation to explain the high crime rate among low Socio-Economic Status (SES) groups in America. People in low social strata absorb the cultural goals, such as pecuniary success in America, but these individuals have little access to conventional means for achieving success due to either little education or limited economic resources or both. It is in these social strata that one can experience high levels of "innovation", namely, deviant behavior. Merton argued that "successful" innovative behavior lessens social norms, which intensifi es the anomic situation for people in the system, and this, in turn, leads others to deviate in order to adapt to the severe anomic situation.

(iii) Ritualism: Another deviant reaction to strain can be described as those who cling blindly to the means to an end in themselves after losing sight of the goals. Shoemaker (2000) suggests that ritualism can best be described as 'goals that are rejected while the means are rigidly obeyed'.113 Ritualists work hard, but do not attempt to achieve monetary success. In ritualism, a person can fi nd structure in their life by the carrying on of traditional behaviors. The ritualism displays no clear-cut example of criminal behavior. This type of behavior is considered common in most societies and produces over conformity and can result in the lowest rates of deviance among the fi ve modes of adaptation.(iv) Retreatism: This type of adaptation is seen in individuals who abandon both cultural goals and institutional means. These individuals internalize both goals and means but constantly face confl ict between ideology and reality; that is, the promise of success cannot be realized through conventional means. However, these individuals cannot adopt "innovative means" nor can they give

113 Supra Note 107. p. 94.

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up the goals or without renouncing the "supreme value of the success goal."114 To resolve this confl ict, they abandon both the goals and the means. The escape is complete in that they are in the society but not of it.

(v) Rebellion: This adaptation consists of creating new goals and means in addition to rejecting the original goals and means. Individuals who use this form of adaptation as actively alienated from the social system. Merton argues that rebellion can be at two levels: the small and confi ned level and the endemic level. The former provides an opportunity for the genesis of a subgroup alienated from the community but unifi ed within the group.115 A rebel rejects the cultural goal and the means to attain it but substitutes new goals and new means to obtain them. This adaptation is likely to lead to delinquency and can be represented by some gangs and countercultures. Delinquency is likely to occur among rebels, but it will not be as prevalent as delinquency among innovators.

Of the fi ve modes of adaptation, three of them-innovation, retreatism and rebellion are those that can lead to criminal behaviour. Innovation is considered to be the principal mode of adaptation that leads to crime. While still striving for their goal, such as wealth, offenders use innovative means to achieve this, such as various forms of property related crime that generate income. Retreatism is reportedly the least common type of adaptation. Retreatists drop out of, or escape from, society and potentially engage in criminal behaviour such as drug use. They are reportedly the 'psychotics, autists, outcasts, vagrants, vagabonds, tramps, chronic drunkards and drug addicts'. Rebels, who substitute the culturally approved goals with alternative goals, may become criminally involved if associated with activities such as violent revolution or terrorism.116

Merton delineated the anomic society, within which the emphasis is greater on the cultural goals than on the cultural means and the distribution of institutional means to realize goals is unequal. In such a society, certain people will feel strain and frustration, which in turn lead them to respond in deviant ways. However, Merton did not develop a clear explanation of the strain-

114 Supra Note 109. 115 Ibid.116 Supra Note 102. p. 207.

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delinquency relationship and ignored the presence of delinquent behavior in the subculture. Merton also has been criticized for his neglect of the unequal distribution of different means to realize different ends. Merton's theory is valuable only in explaining adult criminal acts or semiprofessional juvenile thieves but is less valuable in explaining the lower status, male delinquent subculture. He only focuses on only one cultural goal-monetary success and ignored another important goal-middle class status.

(III) Agnew's General Strain TheoryRobert Agnew, in 1980, was awarded a Doctor of Philosophy (Ph.D.) in 1980 upon his graduation from the University of North Carolina at Chapel Hill. His dissertation topic was titled A Revised Strain Theory of Delinquency. However, in his dissertation, Agnew mainly focused on the problems of classical strain theory; construction of a revised application of strain and testing his revised theory through the use of cross sectional and longitudinal data from a national survey of adolescent boys. In response to studies that had failed to support traditional strain theory's core proposition that the inability to achieve desired goals such as middle-class status or economic success would motivate adolescents to engage in delinquency, Agnew (1992) extended classic strain theory by focusing on other possible sources of strain.117 This theory was developed with a particular emphasis on such variables as stress, aggression, equity and justice, which are mostly used in psychology and sociology research. In his article titled Foundation of General Strain Theory of Delinquency, Agnew (1992) introduced three types of strain. (i) strain as the failure to achieve positively valued goals, (ii) strain as the removal of positive stimuli, and (iii) strain as the presentation of negative stimuli. The fi rst type of strain was gleaned from the earlier versions of strain theory. The last two types were derived from justice/equity literature.118

Strain as the failure to achieve positively valued goals Classical strain theory puts a strong emphasis on this fi rst type of strain; the blockage of positively valued goals. Accordingly, lower class individuals are

117 Robert Agnew. (2006). Pressured into Crime: An Overview of General Strain Theory. Los Angeles: Roxbury Publishing. p. 4.

118 Robert Agnew. (1992). "Foundation for a General Strain Theory of Crime and Delinquency." Criminology. Vol. 30(1). pp. 47-87.

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institutionally blocked from achieving monetary success or middle-class status. Strain had always been measured as the difference between aspirations and expectations.119 Agnew (1992) claimed that strain as the discrepancy between aspirations and expectations puts an extreme importance on future goals.120 Accordingly, individuals are not only concerned about future goals, but also about immediate goals. Achievement of these goals is contingent on a variety of factors such as athletic ability, intelligence, and psychical attractiveness as well as social class.121 Therefore, Agnew (1992) suggested, strain as the blockage of positively valued goals and should be measured as the discrepancy between expectations and actual achievements.122

Agnew further divided this type of strain (failure to achieve positively valued goals) into three subtypes: (1) the disjunction between aspirations/actual achievements, (2) the disjunction between expectations and actual achievements, and (3) the disjunction between just/fair outcomes and actual outcomes".123 This fi rst subtype of strain is measured as the gap between what individuals hope to achieve (aspirations) and what they expect to achieve or are actually able to achieve (expectations/actual achievements). This subtype is consistent with classic strain theory, but Agnew did not limit himself to only monetary goals and included other immediate goals. Similarly, second type of strain is measured as the gap between what individuals expect to achieve and what they are actually able to achieve. Individual expectations for achievement are based on past experiences and on the comparison with the achievements of similar others. Agnew states that this type of strain is likely to create more negative emotions than the gap between aspirations and achievements. This is because aspirations are ideal goals and the inability to achieve ideal goals might not be taken as seriously by the individual as the inability to achieve expected goals. Therefore, they are likely to feel more strain when they are not able to achieve what they expected they would achieve. Agnew states that

119 Ibid. 120 Ibid. 121 Robert Agnew. (1984). "The Effect of Appearance on Personality and Behavior:

Are the Beautiful Really Good ?." Youth and Society. Vol. 15(3). pp. 285-303.122 Supra Note 118. 123 Ibid.

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not achieving what is expected will lead to negative emotions such as anger, resentment, dissatisfaction, and depression and these negative emotions will lead to deviant behavior.124 Individuals who fail to achieve these more realistic goals might have stronger motivation to seek other means to achieve them. And the third type can occur when individuals enter into situations without a set goal or expectation. In this instance, people will compare the effort they put into a certain situation (effort) with what they received from that situation (reciprocation). If the effort and reciprocation are comparable the outcome is seen as just or fair. However, if the effort outweighs the reciprocation individuals may see the outcome as being unfair, causing feelings of strain. These feelings of strain may lead to anger which precipitates deviant behavior even when no goals or expectations were present.125

Strain as the removal of positive stimuliThis type of strain can be social (e.g., friendship) or non-social (e.g., materials). Stressful life events may include the loss of loved ones such as boy/girlfriend, 'death of a relative', divorce or separation, and suspension from school. Such events may lead to delinquency when individual attempts to prevent the removal of positively valued stimuli; tries to fi nd a substitution for the loss; seeks revenge or tries to alleviate his or her grievances using illicit drugs.126

Strain as the presentation of negative stimuli Negative stimuli can be social (e.g., discrimination and exclusion) or non-social (e.g., natural disaster, illness). Individuals who experience such negative stimuli or aversive situations might become involved in delinquency in order to escape from the situation (e.g., skipping class), terminate or alleviate the negative stimuli (e.g., drug use), or seek revenge against the source (e.g., aggression).127

After describing the three major types of strain, Agnew (1992) specifi ed the link between these potential strains and consequent delinquency. Each type of strain can lead the individual to experience an array of negative emotions,

124 Ibid. 125 Ibid. 126 Ibid.127 Ibid.

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including anger, fear, and depression. Among the various negative emotions, anger is very likely to increase an individual's level of outward attribution of the injury, instigating the individual to act, motivating the individual to take revenge, and lowering the individual's inhibitions. Hence, anger infl uences individuals in various ways that are conducive to delinquency. Although anger is the most criminogenic emotion, delinquency might still occur in response to other negative emotions (e.g., depression). For example, anger might cause an individual to act aggressively against other individuals, whereas depression might lead the individual to take drugs in order to feel "better". Agnew distinguishes between outer-directed negative emotion (e.g., anger), which increases the likelihood of outer-directed actions (e.g., violence), and inner-directed negative emotions (e.g., depression), which lead an individual to show inner-directed responses (e.g., substance use). In sum, 'The experience of negative affect, especially anger, typically creates a desire to take corrective steps, with delinquency being one possible response'.128

Coping StrategiesAccording to Agnew (1992), strain results in delinquency when non-delinquent coping129 mechanisms are constrained, or delinquent coping mechanisms are not constrained. He identifi es three major types of non-delinquent coping strategies: cognitive, emotional, and behavioral.130

The cognitive coping strategy mainly focuses on reinterpreting the strain in ways that minimize one's negative feelings. The individual can use this strategy in three ways to deal with the adversity. First, the individual can ignore/minimize the importance of the outcome. For example, one might say that "this is not important" or money is not important compared with family." Second, one might maximize positive outcomes and minimize negative outcomes. For example, Agnew (1985b) found that crime victims often stated that their victimization helped them to learn from it, which in turn reduced the negative feelings they attached to their victimization. Finally, individual might simply

128 Ibid.129 Coping can be defi ned as "cognitive and behavioral efforts to manage specifi c external and/

or internal demands that are appraised as taxing or exceeding the resources of the person."130 Supra Note 118.

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accept responsibility for the negative results so as to manipulate the input and output of themselves and others in a relationship. For example, one might claim that he or she did not work hard enough (minimize the positive input) or that others worked harder than they did (maximize others' input). As can be seen, this strategy is mainly a non-delinquent response.131

The emotional coping strategies are responses that directly cope with the negative emotions resulting from a strain. Agnew (1992) offers several examples of emotional coping strategies, such as drug use, meditation, physical exercise, and various psychological techniques (e.g., playacting). Most of these strategies are conventional; however, drug use to reduce negative feelings could be antisocial (e.g., using an illegal substance).132

The behavioral coping strategy which has three major subtypes: minimizing a negative outcome, maximizing a positive outcome, and taking vengeful behavior. To minimize a negative outcome, an individual can reduce negative feelings, terminate the cause of the negative outcome, or escape from the negative outcome. Several delinquent behaviors are explicitly related to such strategies; examples are substance use or skipping classes. To maximize a positive outcome, an individual can use means to increase his or her gain in a relationship or to retrieve valued goals. For instance, an individual may join a gang to gain support from gang members who will help the person to achieve goals.133 Individuals may take vengeful behavior when they are strained in order to increase the inputs of others or decrease the positive outcomes for others. For example, adolescents might act incorrigibly to force parents and teachers to work harder to deal with them (increasing their inputs). Hence, behavioral coping strategies, rather than emotional or cognitive coping strategies, are closely related to delinquent acts.In sum, Agnew's GST (1992) advances the classic strain paradigm in several ways. First, GST broadened the scope of classic strain (goal blockage) by including the discrepancy between expectations and real outcomes as well as

131 Ibid.132 Ibid.133 Ibid.

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unjust/unfair outcomes. The scope of strain was further expanded to include the presentation of noxious stimuli and loss of positive stimuli. Second, strain was seen as leading to not only consequent delinquency but also a myriad of negative emotions, which could also generate delinquency. Third, besides the cumulative effects of strain, other characteristics were incorporated into GST. Overall, GST states that various strains can make an individual feel bad and want to do something about it, and whether the "something" is antisocial or conventional depends on various conditioning factors. GST provides a more comprehensive account of the strain-delinquency relationship than precedent strain theories.

4.1.3 Subculture TheoriesA subculture is a set of values, norms, and beliefs that differs from those within the dominant culture. According to subculture theory, those who hold values, norms, and beliefs in opposition to those held in the dominant culture are likely to commit crime. Therefore, youths who behave in a manner that is consistent with the values, norms, and beliefs of their subculture will often be in confl ict with the law. Three subculture theories are: Cohen's delinquency and frustration theory, Cloward and Ohlin's differential opportunity theory, and Miller's lower-class focal concern theory.

(I) Cohen's Delinquent and Frustration TheoryAlbert K. Cohen (1955), in his book Delinquent Boys: The Culture of the Gang theorized the delinquent subculture of working class boys. Under the theoretical infl uence of the basic ideas of Sutherland's differential association theory, Chicago School's cultural transmission theory134, and Merton's strain theory, Cohen developed to account for high rates of delinquency among lower-class males, particularly among the infamous teenage gang. Cohen theorized that the non-utilitarian, malicious, and negativistic subculture is where working-class boys solve their status frustration problem through group interactions

134 According to Chicago theorists' transmission theory, crime was distributed differently in geographical terms. Rural area had less crime rate than urban area. Within the urban area, there was a particular section that had high crime rate. In the high crime rate zone, certain types of criminal behaviors were transmitted from one generation to the next as a form of cultural norm. Adolescents became socialized into the criminal cultural norm.

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among gang members who approve of deviant values and deny middle-class values.

Cohen's main point is that status frustration of working-class boys generated by the American class structure was the main factor of the origin of the delinquent subculture. In this sense, his theory was in basic agreement with Merton's idea.135 Cohen focused on school-based achievement status since, at that time, school was delivering conventional middle-class values to all students regardless of their socioeconomic background. Cohen argues that all students are judged by a 'middle-class measuring rod' in the school.136 Cohen further argues that the delinquent subculture provides its solution to the status problem most effectively when it is adopted as a 'group solution'.137 As a causal mechanism from frustration to aggression and crime, Cohen introduced a psychological variable, "reaction formation".138 Reaction formation was overreacting against conventional middle-class values.139 Thus, the delinquent subculture became an expression of collective response to the status frustration.

Delinquent subculture Cohen defi nes delinquent subculture as 'a way of life that has somehow become traditional among certain groups in American society. These groups are the boys' gangs that fl ourish most conspicuously in the 'delinquency neighborhoods' of larger American cities'.140 According to Cohen, there are many important characteristics of the delinquent subculture: 'non-utilitarian, malicious and negativistic'.141 On the fi rst, he argued that it is often the case that working-class boys don't care much about what they attained by criminal behavior such as stealing. They simply destroy or discard the obtained material goods. Cohen says that stealing is not merely an alternative means to the acquisition

135 Ronald L. Akers, (1997). Criminological Theories: Introduction and Evaluation (2nd ed.). Los Angeles: Roxbury. p. 145.

136 Albert K. Cohen. (1955). Delinquent Boys: The Culture of the Gang. New York: Free Press. p. 85.

137 Ibid. p. 135.138 Ibid. p. 132.139 Ibid. p.133.140 Ibid. p. 13.141 Ibid. p. 25.

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of objects otherwise diffi cult of attainment.142 On the second, the delinquent subculture is malicious because the gang members fi nd delight in the failure of others and they are hostile against non-gang peers and adults. They enjoy harassing 'good children'. They regard teacher and school rules as something that should be fl outed.143 Finally, the delinquent subculture is negativistic. The gang boys deny conventional values and think of traditional behaviors as wrong. They have their own standards of behavior by which every action is judged. Cohen argues that the negativistic character of delinquent subculture can be defi ned as 'negative polarity', which means conventional value is wrong and delinquent value is right.144

Other characteristics of the delinquent subculture are 'short-term hedonism' and 'group autonomy'. The gang boys just gather, hang around, and fi nd fun things to do without any idea of long-term goals or achievements. Cohen warned, however, that short-term hedonism is not a direct indicator of delinquency. Rather, it is a prevalent phenomenon across all areas and classes of our society. It is just more spectacular in the delinquent gang.145 By the phrase 'group autonomy' he meant 'intolerance of restraint except from the informal pressures within the group itself'. Members in the gang are related very closely with each other, but they are hostile or even rebellious to other group members. They resist authority of home, school, and society. Adolescents from broken families are more likely to become involved in gang.146

A general theory of subcultures In order to explain the process of subcultural formation, Cohen adopted the 'psychogenic assumption' that the purpose of all human action is to solve problems. He argues the fi rst requirement of problem-solving is that it should be acceptable to the fellows. That was the reason there is a certain limitation in one's choice of action. Naturally, however, individuals have a tendency to migrate to a social group favorable to their own way of solving adjustment

142 Ibid. p. 26.143 Ibid. p. 28.144 Ibid. p. 28.145 Ibid. pp. 30-31.146 Ibid. p. 31.

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problems.147 Cohen argues that the most important condition for the advent of a new subculture is 'the existence, in effective interaction with one another, of a number of actors with similar problems of adjustment'.148 When 'exploratory gestures' of one member are joined with other exploratory gestures of other members, and the gestures are motivated by tensions common to the group members, 'mutual exploration and joint elaboration of a new solution' is likely to occur.149

Using this logic, Cohen explains how the delinquent subculture fi nds solutions to its status problems: individuals who share status problems gather together and establish their own criteria of status which are favorable to their values and hostile or even 'antithetical' to the values of larger social system. However, Cohen admitted possible weaknesses of his general model and said that a more complete theory of subcultural differentiation is needed to explain more precisely the conditions under which various subcultures arise and fail to a rise.150

Class system: status frustration Like Merton, Cohen argues that the cause of delinquent behavior of the working-class boys may be the blocked opportunity to achieve middle-class goals. His purpose is not to show that working-class boy has many problems, but to explain that "the kinds of problems which he has and the context in which they exist are adequate to motivate the subculture".151 Position of the family in the social class system is a determinant of the problem, respect, or power that the family members experience. The working-class boys are likely to be at the bottom of the status pyramid because of the systematic class-linked differences in their ability to achieve.152 Regardless of their background, all students are judged by a 'middle-class measuring rod', or by nine middle-class standards: 'ambition; individual responsibility; cultivation and possession of skills and

147 Ibid. p. 50.148 Ibid. p. 59.149 Ibid. p. 60.150 Ibid. p. 66-72.151 Ibid. p. 74.152 Ibid. p. 86.

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tangible achievements; worldly asceticism; rationality; rational cultivation of manners, courtesy, and personality; control of physical aggression and violence; wholesome recreation; respect for property'.153 Cohen warns that the middle-class oriented criteria are a dangerous "over simplifi cation." These working- class boys may not have access to the same standards of education, employment, or even family support. In the society where expectations for material success are the same across social classes, all are judged by middle-class values, and opportunities for achievement are linked to social class, working-class boys experience adjustment problem, or status frustration, and can't be adequately socialized into the larger main culture.154

Delinquent subculture solutionThus, the primary problem of adjustment is a status problem. The working-class children are denied status in the middle-class oriented society because they cannot meet the criteria of the respectable status system. The delinquent subculture provides the lower-class boys an adequate alternative solution to the status problem: The working-class children can more easily meet the status criteria that the delinquent subculture provides.155

Those who experience status frustration and strain will adapt into either a college-boy, a corner-boy, or a delinquent-boy. Cohen argues that situations working-class boys encounter are various. Most of the working-class boys are culturally "ambivalent." They are usually accustomed to middle-class values and somewhat internalize the conventional values as well as the working-class values. College-boy morality and corner-boy morality coexist within their personality. In many situations, they are forced to choose between those contradictory values, which generates the "adjustment problem." Picking up one life style entails sacrifi ce and effort. A few working-class boys, nevertheless, discard corner-boy life and follow college-boy lifestyle.156

The most common way of life that working-class boys adopt is "stable corner-boy response." "Their academic and social handicaps prevent them from living

153 Ibid. pp. 88-91.154 Ibid. p. 86.155 Ibid. p. 121.156 Ibid. pp. 124-128.

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up to middle-class standards"157 Corner-boys try to make the best of a bad situation. They keep good relationships with working-class adults. They don't express hostility against middle-class values and people. They don't take a chance to adopt college-boy or delinquent-boy response because it is risky and uncertain.158

The delinquent subculture has two important functions that make it possible for the delinquent boys to overcome the status frustration. One is to explicitly repudiate the middle-class standards and adopt the very antithesis of the middle-class criteria. According to Cohen, corner-boys recognize inferiority to working-class and middle-class college-boys since they hold middle-class values, whereas delinquent boys set themselves above college-boys because they have their own status system which is defi ned by its "negative polarity" to the respectable status system.159

The other function is the "legitimation of aggression." Cohen argues that delinquent boys who break with middle-class morality don't feel any moral inhibitions on their "expression of aggression against the sources of their frustration." Cohen introduced a psychological variable, "reaction formation" to elaborate the causal relationship between frustration and crime. According to psychologists, when a newly introduced norm that offers a more satisfactory solution is in competition with the older one, the result is "anxiety" and one powerful device to combat the anxiety is the reaction-formation. To delinquent boys, reaction-formation has to take a form of an "irrational," "malicious," "unaccountable" hostility to the respectable middle-class norms. The delinquent subculture becomes a collective response to the status frustration. Cohen argues that the delinquent subculture provides its solution to the status problem most effectively "when it is adopted as a group solution".160

Types of delinquent subcultures In the later article written with James F. Short, "Research in Delinquent

157 Ibid. p. 128.158 Ibid. p. 129.159 Ibid. pp. 129-131.160 Ibid. pp. 131-135.

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Subcultures" (1958), Cohen developed several kinds of delinquent subcultures. The most common form in this country was the "parent male subculture," which was the same as the "delinquent subculture" described in the book, Delinquent Boys. The second form, "confl ict- oriented subculture," was characterized by a relatively elaborate organization and differentiated roles such as president, vice-president, war-chief, and armorer, etc. The gang had strict rules, and "toughness" determined the status of the gang. The third variety was the "drug addict subculture." The special characteristic was its "utilitarian quality" to support the drug habit. "semi professional theft" was another type of subculture. It was oriented toward utilitarian, systematic, and pecuniary crime. The earlier stage of this subculture could be regarded as the "parent male subculture." After the age of sixteen or seventeen, a small portion of the "parent male subculture" members became involved in the "semi professional theft" subculture. The last type of male delinquent subculture was the "middle-class delinquent subculture". Cohen and Short said that, in general, "middle-class delinquency took a subcultural form as well," and argues that process of how the "middle-class subculture" arises was the same as the other delinquent subcultures in that it was an outcome of the middle-class boys' responses to problems of adjustment. According to them, however, this middle-class delinquent subculture was likely to be oriented toward sex, liquor, and automobiles instead of malice, bellicosity, and violence. Finally, Cohen and Short discussed "female delinquent subcultures." They admitted it was impossible to describe various kinds of female delinquent subcultures because of the lack of suffi cient data. Instead, they introduced the "female drug addict subculture" on the basis of data collected in the course of the Chicago drug-use study. They found a peculiar characteristic of this subculture that almost all of the female delinquents had experienced a failure to establish normal and satisfactory relationships with their boyfriends. That experience led the females into drug addiction which, in turn, made them vulnerable to isolation, depression, and prostitution, which further isolated them from society. However, they didn't feel proud of their behaviors, and expressed a desire for respectability.161

161 Albert K. Cohen & James F. Short Jr. (1958). '"Research in Delinquent Subcultures". The Journal of Social Issues, 14(3). pp. 20-37.

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In sum, Cohen's subcultural theory has been credited as the best elaborated explanation of working-class adolescent gang delinquent behaviors. Furthermore, Cohen's theory has had a considerable impact on public policy because of its capacity to explain delinquent behaviors of youth gang members. There have been several efforts to separate juvenile delinquents from their delinquent subcultures and place them into groups that have conventional values.

(II) Cloward and Ohlin's Differential Opportunity TheoryRechard A. Cloward and Lloyd E. Ohlin (1960) further expanded Merton's strain theory in their book Delinquency and Opportunity: A Theory of Delinquent Gangs. They argues that individuals in a society make an effort to meet or conform to social expectations or moral mandates and that such efforts "often entail profound strain and frustration".162 Furthermore, they stated that extending socially approved goals under conditions in which conventional means are not available is the precondition for deviance and delinquency, as responses to strain or adjustment problems. To apply those basic themes to explain lower-class adolescent delinquency and formation of delinquent subcultures, they pointed out that the problems of such strains are disproportionally distributed in lower-class groups, are signifi cant to these adolescents, and are permanent to these adolescents. In addition, they recognized that there are barriers (structural and cultural) to reaching goals in this particular group, which makes the strain bear these characteristics and seem to be even more stressful. With these basic conceptualizations, Cloward and Ohlin continue by stating that lower-class youths who face such strains interact with one another in a long and complex process, which may provide "encouragement for the withdrawal of sentiment in support of the established system of norms".163 With the support of others who share the same problems, individuals may devise or adopt illegitimate means to achieve success. Also with such support, the anxiety and guilt associated with violating social norms is generally reduced, because allegiance to the conventional means is set aside, which in turn justifi es the deviant means used.

162 Rochard A. Cloward & LIoyd Ohlin. (1960). Delinquency and Opportunity. Golencoe, IL: Free Press. p. 38.

163 Ibid. pp. 108-109.

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Having delineated the source and process of forming the delinquent subculture, Cloward and Ohlin introduced another important concept: illegitimate means, which help to distinguish between three different delinquent subcultures: criminal, confl ict, and retreatist subcultures. The means includes two things: the learning environment for acquiring required skills and values to perform a particular role, and the opportunity structure that enables individuals to fulfi ll the role. A "criminal subculture" develops in "integrated neighborhoods" where not only do conventional values and delinquent values coexist but also the different age levels of offenders are integrated well: "Unless the carriers of criminal and conventional roles are closely bonded, stable criminal roles cannot develop."164 As the criminal roles are established, adult criminals provide role models for adolescents to emulate, and at the same time provide illegitimate opportunities to succeed. Consequently, the "criminal subculture" provides "means" for these adolescents to succeed, which in turn solves the problem of adjustment.

The "confl ict subculture" develops in disorganized communities, which are unstable and transient. Such neighborhoods do not provide adolescents with legitimate means to succeed, nor do the communities provide criminal means to achieve goals. In addition, social control from both the conventional and the illegitimate sectors is loosened. Because both conventional and criminal means are blocked, adolescent delinquents are left on their own to solve the adjustment problem. The only thing they can use to achieve "status" or "respect" is violent or physical confl ict and, because of weakened social control, violence intensifi es.

Finally, the "retreatist subculture" also emerges in disorganized communities. In addition to the same conditions as the previous two subcultures, youths who participate in this subculture lack both conventional and illegitimate means to success, whether criminal acts or confl ict. Cloward and Ohlin call these adolescents "double failure". Because of the constant failure resulting from these restrictions, these youths escape from society in order to deal with their strain and frustration. They argue that not all "double failures" youths adopt the retreatist subculture; youths might instead eventually become Cohen's "corner-

164 Ibid. p. 165.

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boys", who live in accordance with the lower-class lifestyle. The difference is that retreatist adolescents are "incapable of revising their aspiration downward to correspond to reality."165

In sum, the theory of Cloward and Ohlin argue that lower-class male adolescents face adjustment problems or strains introduced by blocked legitimate means to realize cultural goals. In contrast to assumptions of previous theories, they point out that illegitimate opportunities are also not equally available to all adolescents who experience such strain. Consequently, those who become involved in the criminal subculture are those for whom illegitimate opportunities are available. For those who react with severe violent acts, both the conventional and the criminal means are closed but these adolescents possess physical ability or "guts". Finally, for those who lack all these means, the "double failure", the retreatist subculture becomes attractive. The major contribution of Cloward and Ohlin was to introduce the opportunity structure into strain theory, to explicitly explain why some strained lower class adolescents become involved in one or another kind of delinquency.

(III) Miller's Lower Class Focal Concerns TheoryWalter B. Miller, an anthropologist, presented a pure cultural theory of gang delinquency in 1958 that has been generalized to the lower class. His theory was proposed in a short article titled Lower Class Culture as a Generating Milieu of Gang Delinquency. Miller's explanation of delinquency is situated in depressed inner cities, wherein the majority of households are headed by females, implying that traditional values are not instilled because of inadequate discipline and role-modeling. Without middle-class values, the lower class operates according to focal concerns.

For Miller, the members of the subculture conform to the distinctive value system of their own working class culture.166 This implies that people's circumstances in life may push them to adopt certain measures or patterns of behaviour, which may be benefi cial or not. For example, street children are

165 Ibid. p. 184.166 Nancy Macdonald. (2001). The Graffi ti Subculture: Youth, Masculinity and Identity in London

and New York. Basingstoke: Palgrave. p. 33.

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motivated to commit crime by the desire to achieve ends, status, or conditions which are valued, and to avoid those that are disvalued within their most meaningful cultural milieu, through those culturally available avenues which appear as the most feasible means of achieving those ends.167

Miller refers to as "focal concerns" of the lower class culture in preference to "value"; and they include: trouble, toughness, smartness, excitement, fate and autonomy. Apparently, the "focal concerns" are a refl ection of working class traditions rather than working class frustrations.168 Miller identified six focal concerns that describe six values of a lower-class subculture. These focal concerns differentiate the lower class from the middle and upper classes.

1. Trouble—value by which people are evaluated on the basis of their involvement in trouble-making activity

2. Toughness —value of physical strength, fighting ability, and masculinity 3. Smartness—value of the ability to be streetwise and to con people 4. Excitement—value of thrill-seeking through gambling, fighting, and

getting intoxicated 5. Fate —value or belief that most things that happen to people are beyond

their control 6. Autonomy—value of personal freedom resulting in an active disdain

of authority.

Some problems with Miller's theory which includes confused defi nitions (eg, lower class, "values," etc), no supportive data to illustrate these categories, no comparative data for "middle class," since these seem to be middle class concerns as well, tends to see "causes" of delinquency in values but does not discuss cultural values rather looks at the "values" of his targeted groups, says lower class values are same as "delinquent values".

4.2 Social Process TheoriesSocial process theories focus on the relationship between socialization and delinquency. These theories analyse certain factors such as peer

167 Walter B. Miller. (1958). "Lower Class Culture as a Generating Milieu of Gang Delinquency." Journal of Social Issues. Vol. 14. pp. 5-19.

168 Supra Note 166. p. 34.

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group relationships, family relationships, and failure in school to explain delinquency. Individuals who associate with delinquent peers are themselves at risk of committing acts of delinquency. Individuals who have been raised in a dysfunctional family or without proper nurturing are at greater risk of delinquency. Finally, individuals who drop out of school are also at risk for delinquency. Social process theories include learning theory and social control theory.

4.2.1 Learning Theories Learning theory views crime as a learned behavior. Delinquents learn attitudes and skills necessary to commit crime through interaction with parents and peers.

(I) Sutherland's Differential Association TheorySeveral theories have been formulated to explain deviance and juvenile delinquency. One of such theories is Differential Association Theory formulated by Edwin Sutherland. In his 1939 edition of Principles of Criminology, Sutherland fi rst proposed the differential association theory of crime which generally posits that criminal behavior is learned169 in the same way as law-abiding values are learned, and that, this learning activity is accomplished, in interactions with others, through a process of communication within intimate groups. He argues that, just as one can be socialized into good behavior, so also can one be socialized into bad behavior. The fi nal statement of his theory presented a learning theory of crime which contained nine propositions.170

1. Criminal behavior is learned. This means that a person who is not already trained in criminal acts does not invent such acts, just as a child does not make courteous remarks unless he has had training or socialization to that effect. It is not inherited.

2. Criminal Behavior is learned in interaction with other persons in a process of communication. This communication is verbal in many

169 Francis T. Cullen and Robert Agnew. (2003). "Reviving Classical Theory: Deterrence, Rational Choice, and Routine Activities Theories." In Francis T. Cullen & Robert Agnew (Eds.), Criminological Theories: Past to Present. Los Angeles: Roxbury Publishing. pp. 263-271.

170 Edwin H. Sutherland. (1947). Principles of Criminology. New York: J.B. Lippincott Company. pp. 6-7.

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respects but includes also the communication of gestures often described as non-verbal communication.

3. Learning of criminal behavior occurs within intimate personal groups. Sutherland claims that, only small, face-to-face gatherings infl uence behavior. Consequently he focused on peer or family groups as the most likely sources of initiation into delinquent values and activities.

4. When a criminal behavior is learned, the learning includes (a) techniques of committing the crime, which are sometimes very complicated, sometimes very simple; (b) the specifi c directions of motives, drives, rationalizations, and attitudes.

5. The specifi c direction of motives and drives is learned from defi nitions of legal codes as favorable or unfavorable. This means that, when one's associates defi ne the legal codes as things to be observed, the learning of criminal acts may be impeded. The reverse is true.

6. A person becomes delinquent because of excess of defi nitions favorable to violation of law over defi nitions unfavorable to violation of law. This is the core proposition of differential association theory. It reinforces the belief that the defi nitions favorable to the violation of law can be learned from both criminal and non-criminal people. This principle is loaded with counteracting forces of favorable and unfavorable defi nitions to violation of law.

7. Differential associations may vary in frequency, duration, priority, and intensity. This means the longer the time, the earlier in one's life, the more intensely and more frequently people are exposed to a set of attitudes about criminality, the more likely it is that they will be caught up in the fray.

8. The process of learning criminal behavior by association with criminal and anti-criminal patterns involves all of the mechanisms that are involved in any learning. This implies that, the mechanisms for learning criminal behaviors are the same as those for law abiding values and other socially relevant skills. The suggestion is that, in as much as the content of what is learned is different, the process giving rise to criminal behavior is the same as any other law-abiding behavior.

9. Both criminal and non-criminal behaviors are expressions of the same needs and values. Put differently, the goals of criminals and non-

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criminals are usually the same. What is different is the means they adopt to pursue this same goal. For instance thieves generally steal in order to secure money. Honest laborers likewise work with the monetary value in mind.

These propositions suggest that criminal behavior, as well as noncriminal behavior, is learned through interaction with others particularly in intimate groups. This learning process involves not only the actual methods for committing crime but defi nitions concerning criminal behavior as appropriate or not. This theory did not specify the process/mechanism in which behavior is learned however, widely recognized that the sixth proposition represents the key to differential association theory. And this was the basis for creation of Burgess and Akers' (1966) differential association reinforcement theory.

(II) Burgress and Akers's Differential Association Reinforcement TheoryIn 1966, Burgess and Akers reformulated Sutherland's Differential Association Theory in order to incorporate behaviorism into the learning model. They believed that Sutherland's (1947) concept of learning through association or interaction with others within a social context goes hand in hand with the premises of operant theory, which refers to how behavior is formed by interactive environmental factors, either social or nonsocial.171 Akers and Burgess included the work from B.F. Skinner (1953)172, an expert in the psychology of operant conditioning who formulated the original operant reinforcement model. Operant behaviour is affected by 'environmental consequences', e.g. conditioning, shaping, stimulus control, and extinction. Conditioning aims to produce consistency of response to stimulus. In this theory, they outlined the role that positive and negative reinforcements play in the learning of the inappropriate behaviors. For example, behavior is positively reinforced when a child benefi ts from engaging in minor theft of a friend's property, enjoying the

171 Ronald L. Akers. (2009). Social Learning and Social Structure: A General Theory of Crime and Deviance. New Brunswick, NJ: Transaction Publishers. p. 11.

172 B.F. Skinner (1953) formed his theory through experimental work with laboratory rats. He studied the rat's behavior when they were placed in a box containing a lever that when pushed rewarded the rates with a food pellet. The rats were able to learn that they could consistently receive food by using the lever and thus were subjected to operant conditioning to do so.

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procurement and use of the item. On the other hand, that behavior is negatively reinforced when a parents or close friend knows about the behavior but fails to take corrective action.173

Sutherland (1947) viewed the process of learning criminal behavior as symbolic interaction, but Burgess and Akers believed that this excluded other sources of reinforcement. For example stealing a loaf of bread may not receive social reinforcement, but it does receive reinforcement because eating the bread nourishes a hungry juvenile offender which is inherently reinforcing. Burgess and Akers agree that it was important to study motivation to see how reinforcement gained value. They further broadened the idea from which reinforcements may be derived. Effective reinforcements must be analyzed to understand the development of individual behavior and behavior within a group. Burgess and Akers posited that there was a process in which norms discriminated in favor of delinquency and that behavior was then reinforced.

They proposed that when there is an increase in the amount of reinforcement, there is also an increase in the response rate. Eventually, Burgess and Akers (1966) altered Sutherlands (1947) original 9 propositions to contain a detailed illustration of the learning process. With contributions from Skinner's (1953) writings on operant condition, Bandura's (1969) work on the modeling of behavior, and Sutherland's (1947) differential association theory, Burgess and Akers (1966) formulated the following 7 new propositions that describe the learning process of criminal behavior which are as follows:174

1. Criminal behavior is learned according to the principles of operant conditioning.

2. Criminal behavior is learned both in nonsocial situations that are reinforcing or discriminative and through the social interaction in which the behavior of other persons is reinforcing or discriminative for criminal behavior.

3. The principal part of the learning of criminal behavior occurs in those

173 Barbara Sims & Pamela Preston. (2006). Handbook of Juvenile Justice: Theory and Practice. New York: Taylor & Francis Group. p. P85

174 Robert L. Burgess & Ronald L. Akers. (1966). "A Differential Association Reinforcement Theory of Criminal Behavior." Social Problems. Vol. 14. No. 2. pp. 128-147.

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groups which comprise the individual's major source of reinforcement. 4. The learning of criminal behavior, including specifi c techniques,

attitudes, and avoidance procedures, is a function of the effective and available reinforcers, and the existing reinforcement contingencies.

5. The specifi c class of behaviors which are learned and their frequency of occurrence are a function of the reinforcers which are effective and available, and the rules or norms by which these reinforcers are applied.

6. Criminal behavior is a function of norms which are discriminative for criminal behavior, the learning of which takes place when such behavior is more highly reinforced than noncriminal behavior.

7. The strength of criminal behavior is a direct function of the amount, frequency, and probability of its reinforcement.

In 1973, Ronald Akers further revised this theory in his work titled Deviant Behavior: A Social Learning Approach which is also called social learning theory. And subsequently, Akers (1998) outlined four main concepts and proposition in social learning theory in his last piece of work Social Learning and Social Structure: A General Theory of Crime and Delinquency, basically concentrating on Bandura's (1969) social behaviorism. The central concepts and propositions are (1) differential association, (2) defi nitions, (3) differential reinforcement, and (4) imitation. Social learning theory offers an explanation of crime and deviance which embraces variables that operate both to motivate and control criminal behavior, both to promote and undermine conformity. The probability of criminal or conforming behavior occurring is a function of the balance of these infl uences on behavior. The basic assumption in social learning theory is that the same learning process in a context of social structure, interaction, and situation, produces both conforming and deviant behavior. The difference lies in the direction … [of] the balance of infl uences on behavior.175

Following the above mentioned four components, differential association refers to the process whereby one is exposed to normative defi nitions favorable or unfavorable to illegal or law-abiding behavior. Differential association has

175 Ronald L. Akers. (2010). "A Social Learning Theory of Crime." In Bethany Teeter (Ed.). Theoretically Speaking: A Look into Crime. San Diego: Cognella, a division of University Readers, Inc. p. 7.

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both behavioral interactional and normative dimensions. The interactional dimension is the direct association and interaction with others who engage in certain kinds of behavior, as well as the indirect association and identifi cation with more distant reference groups. The normative dimension is the different patterns of norms and values to which an individual is exposed through this association.176

The groups with which one is in differential association provide the major social contexts in which all the mechanisms of social learning operate. They not only expose one to defi nitions, they also present them with models to imitate and with differential reinforcement (source, schedule, value, and amount) for criminal or conforming behavior. The most important of these groups are the primary ones of family and friends, though they may also be secondary and reference groups. Neighbors, school teachers, the law and authority fi gures, and other individuals and groups in the community (as well as mass media and other more remote sources of attitudes and models) have varying degrees of effect on the individual's propensity to commit criminal and delinquent behavior.177 Akers mentions that beyond this interaction is the time spent within these associations that will contribute to the ratio of deviant to non-deviant associations. These involve the variation in frequency, duration, priority, and intensity. Frequency involves those associations that occur most often. Priority refers to those which occur earlier. Furthermore, Akers believes that duration can be broken into two parts including the length of time and relative amount of time spent with differential associates. Basically, the greater the amount of time and percentage of all time that is spent with certain people, the greater infl uence they will have on an individual's behavior. The intensity of the relationship refers to the importance those to whom an individual relates. Essentially, the more frequent, intense, and long-lasting an individual's differential associations that expose and reinforce deviant behavior, the greater the chances of such behavior.178

176 Ibid. p. 8.177 Ibid.178 Jason Nicholson and George E. Higgins. (2017). "Social Structure Social Learning Theory:

Preventing Crime and Violence." In Brent Teasdale & Mindy S. Bradley (Eds.). Preventing Crime and Violence. Gewerbestrasse: Springer International Publishing. pp. 11-20.

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The next component, defi nitions, involves an individual's own beliefs and attitudes they assign to certain behaviors. According to Akers, defi nitions include the orientations, rationalizations, defi nitions of the situation, and other attitudes that label the commission of an act as right or wrong, good or bad, desirable or undesirable, and justifi ed or unjustifi ed.179 In social learning theory, these defi nitions are both general and specifi c. General defi nitions are conventional societal norms, often seen in the form of religion or morality, conventional values and norms that are favorable to conforming behavior and unfavorable to committing any deviant or criminal acts. Specifi c defi nitions orient the person to particular acts or series of acts. Thus, one may believe that it is morally wrong to steal and that laws against them should be obeyed, but at the same time one may see little wrong with smoking marijuana and rationalize that it is all right to violate laws against drug possession.180 The greater the extent to which one holds attitudes that disapprove of certain acts, the less one is likely to engage in them. Conventional beliefs are negative toward criminal behavior. Conversely, the more one's own attitudes approve of a behavior, the greater the chances are that one will do it. Approving defi nitions favorable to the commission of criminal or deviant behavior are basically positive or neutralizing. Positive defi nitions are beliefs or attitudes which make the behavior morally desirable or wholly permissible. Examples of positive defi nitions in favor of crime may be "it is a thrilling experience to steal a motorbike" or "it is fun to do drugs." Neutralizing defi nitions favor the commission of crime by justifying or excusing it. They view the act as something that is probably undesirable but given the situation, is nonetheless all right, justifi ed, excusable, necessary, or not really bad to do. Examples of neutralizing defi nitions include "I can't help myself, I was born this way", "I am not at fault", "I am not responsible", "I was drunk and didn't know what I was doing", "They can afford it", "He deserved it", and other excuses and justifi cation for committing deviant acts and victimizing others.181

The third component, differential reinforcement refers to the balance of anticipated or actual rewards and punishments that follow or are consequences of

179 Supra Note 135. p. 65.180 Supra Note 175. p. 8.181 Ibid. p. 9.

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behavior. Differential reinforcement's effect on behavior stems from Skinner's (1953) operant conditioning model which includes positive and negative reinforcement and positive and negative punishment. Whether individuals will refrain from or commit a crime at any given time (and whether they will continue or desist from doing so in the future) depends on the past, present, and anticipated future rewards and punishments for their actions. The probability that an act will be committed or repeated is increased by rewarding outcomes or reactions to it, e.g., obtaining approval, money, food, or pleasant feelings—positive reinforcement. The likelihood that an action will be taken is also enhanced when it allows the person to avoid or escape aversive or unpleasant events—negative reinforcement. Punishment may also be direct (positive), in which painful or unpleasant consequences are attached to a behavior; or indirect (negative), in which a reward or pleasant consequence is removed. Just as there are modalities of association, there are modalities of reinforcement—amount, frequency, and probability. The greater the value or amount of reinforcement for the person's behavior, the more frequently it is reinforced, and the higher the probability that it will be reinforced (as balanced against alternative behavior), the greater the likelihood that it will occur and be repeated.182

Finally, imitation is modeling similar behavior that was observed in others. This element is related to Bandura's (1979) perspective of vicarious reinforcement in which individuals observe the behaviors modeled by others and also the consequences that follow others' behavior. For example, someone may witness a criminal act and recognize the rewards the offender gained or the lack of punishment and feel encouraged to participate in the same behavior through imitation. Imitation can result from direct observation of those in peer groups or indirect observation such as what is seen in the media. The level of effect that imitation brings to the social learning process is dependent on a few different factors. Characteristics of the model and observed behavior in question along with the reinforcement of the behavior all factor into the likelihood that the behavior will be imitated. Akers believes the most imitated models are those in direct contact with the observer. But also distant media fi gures can serve as models to imitation as well.183

182 Ibid. p. 10.183 Supra Note 178. pp. 11-20.

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The concepts from Akers's (1998) version of social learning theory are part of a larger process that occurs in three areas: (1) individual's learning history (both learning from and infl uencing others), (2) immediate situations where opportunity for a crime occurs, and (3) in the larger social context (i.e., meso and macro levels). The social learning process is the recognition that it is dynamic rather than static. For social learning to take place, reciprocal and feedback effects are central. Following Skinner's (1953) logic and Akers's (1998) use of operant conditioning, reinforcement relies on a response–stimulus–response reciprocation. This means that a behavior occurs producing consequences that produce a certain probability that the behavior may be repeated, suggesting, thus, the complexity of the theory.

In sum, Burgess and Akers (1966) explicitly identifi ed the learning mechanisms as those found in modern behavioral theory. They retained the concepts of differential association and defi nitions from Sutherland's theory, but conceptualized them in more behavioral terms and added concepts from behavioral learning theory. These concepts include differential reinforcement, whereby "operant" behavior (the voluntary actions of the individual) is conditioned or shaped by rewards and punishments. They also contain classical conditioning (the conditioning of involuntary refl ex behavior); discriminative stimuli (the environmental and internal stimuli that provides cues or signals for behavior), schedules of reinforcement (the rate and ratio in which rewards and punishments follow behavioral responses), and other principles of behavior modifi cation. Latter Aker's (1998) social learning theory combines Sutherland's original differential association theory of criminal behavior with general behavioral learning principles. The theory proposes that criminal and delinquent behavior is acquired, repeated, and changed by the same process as conforming behavior.

(III) Sykes and Matza's Techniques of Neutralization/Drift TheoryIn 1957, Gresham Sykes and David Matza released their theory on the use of neutralization techniques to counter feelings of guilt associated with delinquent behavior. Sykes and Matza's theory of techniques of neutralization

172



posits that offenders learn to use techniques to justify or neutralize acts that might otherwise produce feelings of shame or guilt, and distinguish between appropriate and inappropriate targets for deviance. In 1964, Matza termed this process whereby an individual would move from law abider to law breaker as "drifting" which was presented in his book Delinquency and Drift.

Techniques of neutralizationInitially designed as a critique of and response to subcultural theories, Sykes and Matza (1957) developed a theory to explain delinquency without relying on counter-cultural explanations. They also took issues with the heavy reliance on class structure to explain juvenile criminality, often neglecting non-lower-class youth in their explanations. Sykes and Matza (1957) argue that delinquents from all social classes can engage in criminal behavior while still obeying many of the respected norms of society. Although delinquents may subscribe to and respect these norms on an everyday basis, when committing criminal acts they must reconcile these acts with associated norm violations. Sykes and Matza (1957) called these tactics 'techniques of neutralization' which "allow individual to neutralize and temporarily suspend their commitment to societal values, thus providing the freedom to commit delinquent acts."184

According to Sykes and Matza, "It is by learning these techniques that the juvenile becomes delinquent, rather than by learning moral imperatives, values or attitudes standing in direct contradiction to those of the dominant society.185 Sykes and Matza (1957) have described fi ve techniques of neutralization:

(1) Denial of responsibility: Denial of responsibility involves a refusal to accept one's role in a criminal act. This technique can involve blaming outside forces such as negligent parents, delinquent peers, or neighborhood factors. Denial of responsibility can also involve stated feelings of powerlessness which lead the individual to feel compelled to commit a crime. On a less serious scale, sometimes individuals may claim their actions were merely

184 Frank P. Williams & Marilyn D. McShane. (2010). Criminological Theory (5th Ed.). Upper Saddle River, NJ: Pearson Education, Inc. p. 153.

185 Gresham M. Sykes & David Matza. (1957). "Techniques of Neutralization: A Theory of Delinquency." American Sociaological Review. Vol. 22(2). pp. 664-670.

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accidental. Examples of this type of justifi cation include: "I didn't have a choice", "I didn't mean it", "It was not my fault", They made me do it".

(2) Denial of injury: Denial of injury involves the argument that no real harm was caused by act, despite the violation of law. Alternatively, it may involve the acknowledgment of minor harm or damage, but consist of minimizing the harm suffered. Examples of this type of technique include: "everybody does it", "I did not really hurt anybody", "they have insurance", "victim can easily afford the damage or loss."186 A key aspect of this neutralization is that it may also be supported by adults in the delinquent's life. Parents, teacher, friends and coworkers may support the denial of injury, diminishing the individual's responsibility even further. This corroboration fuels the offender's assertion that their actions are socially acceptable.

(3) Denial of the victim: Denial of the victim is a justifi cation that involves an argument that there was no true victim in a crime. This technique may involve believing that an individual is deserving of victimization, retaliation for actual or supposed prior behavior, as well as viewing the victim as the "bad guy" and themselves as the hero, fi ghting wrong. Denying the victim often includes victim blaming, with targets being identifi ed as acceptable and unacceptable victim. Such blaming often results in a distancing of oneself from the target, and it is often easier to commit crimes against individuals who are dissimilar to an offender. For example: when attacking homosexuals or minority groups, the delinquents feel that their victims got what they deserved.187 If a victim is not present, barely known, or unknown to the offender, it is even easier to deny their role as a victim. Example of denial of the victim include: "they had it coming", "they had a bad attitude", and they talked back."188

(4) Condemnation of the condemners: Condemnation of condemners is a technique that involves an attack against those who disapprove of a crime. Delinquents agrue that these individuals are hypocrites, corrupt, deviant, action out of spite, or should not be allowed to pass judgment. These

186 Supra Note 184. p. 154.187 Orly Turgeman-Goldschmidt. (2009). "The Rhetoric of Hackers Neutralization." In Frank

Schmalleger & Michael Pittaro (Eds.). Crimes of the Internet. Upper Saddle River, NJ: Pearson Education, Inc. pp. 327-335.

188 Supra Note 184. p. 154.

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condemners may include authority fi gures such as Police Offi cers, Judges, parents, teachers, principals or politicians. Offenders are able to shift the blame onto the condemners, cementing their belief that their actions are socially acceptable. Example of this include: "if I didn't do it to them, they'll do it to me", "everyone steals-why pick on me?, and "the system is corrupt."189

(5) Appeal to higher loyalties: When appealing to higher loyalties, individuals argue that the demands of an important group supersede those of wider society. This often relates to familial, workplace, or peer obligations, and these demands are generally seen as being more pressing. Examples of this technique include:" I did it for my friends", I didn't do it for myself".190

In 1964, Matza built on the techniques of neutralization theory to propound his drift theory. The techniques, mentioned above, only helped a delinquent to free him/herself from social control. The conversion from a mere possibility to an actual delinquent act is based on the free will factor. In other words, he/she must choose to commit the act. Rather than a rejection of societal values, the delinquent 'drifts' in and out of crime based on free will and the ability to rationalize through techniques of neutralization. According to Matza, drift revolves around two conditions: preparation and desperation. Preparation involves the discovery that an act can be perpetrated, knowledge that the individual can carry out the act, and minimization of the negative consequences associated with the act, such as fear or risk of capture. Desperation requires extreme stress, feelings of powerlessness, and/or the need to asset oneself. When both of these are present, an individual can commit a deviant act. Drift allows individuals to embrace conventional, subterranean, and sometimes even deviant norms, while having the ability to drift in and out of both delinquency and law-abiding society when it suits them. Individuals are more likely to drift when they have few social ties and responsibilities, which is partly why adolescence is the period most often tied to the theory.

Drift relates most commonly to time periods where conventional social controls are absent, weakened, or ineffective. Such periods are generally linked to

189 Supra Note 187. p. 318.190 Ibid.

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adolescence, when many familial control mechanisms become less important and peer values overshadow all others. Adolescents are often under minimal supervision and have few responsibilities, which leaves them with much free, unsupervised time to get into trouble.

In sum, Sykes and Matza (1957) hugely inspired by Sutherlands' theory of differential association, argue that techniques of neutralization are learned and accepted through deferential reinforcement and imitation. Techniques of neutralization are the mechanisms that people use to escape societies' controls and feel free to engage in crime.191 Drift's focus on adolescence links heavily to control aspects, as this is when social controls are weakened and peer pressure is strong. However, Sykes and Matza have also been criticized for limiting the number of potential neutralization techniques. While they name only fi ve techniques, it can be also argued that there may be endless excuses people make up to rationalize behaviors they know are wrong. Some of these techniques are diffi cult, if not impossible, to measure.192

4.2.2 Social Control TheoriesSocial control theory asserts crime as a result of weak control over individuals by social institutions. It assumes that all individuals in society are naturally capable to commit crime, but it is less likely to occur when an individual's ties to the foundations of society (family, friends, and school) is strong. Those who have close ties with their families and non delinquent friends as well as those who possess high self-esteem are unlikely to commit delinquent acts. These individuals are bonded to the larger society. Individuals who are not bonded to the larger social order are free from constraints to violate the law.

(I) Reckless's Containment Theory In 1961, sociologist Walter C. Reckless proposed 'containment theory' which posits that the inner and outer pushes and pulls on an individual produces delinquency unless they are constrained or counteracted by inner and outer containment measures.

191 Francis T. Cullen, Robert Agnew & Pamela Wilcox. (2011). Criminological Theory: Past to Present (5th Ed.). New York, NY: Oxford university Press, Inc. p. 207.


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Pushes and pulls Reckless suggests that a wide variety of factors "push" and "pull" individuals into crime. Pushes, or pressures, "consist of adverse living conditions (relative to region and culture), such as poverty, unemployment, economic insecurity, group confl icts, minority group status, lack of opportunities, and inequalities."193 Following containment theory (Reckless, 1961), violence exposure would be considered a push into crime.

"Pulls", on the other hand, are factors that bring individuals to deviant behavior. "The pulls draw a person away from original way of life and accepted forms of living. They consist of bad companions, delinquency of criminal subculture, deviant groups, and mass media"194 Reckless argues that individuals might experience what is referred to as the "pull of companionship", which follows that delinquent peer associations can pull individuals into a life of deviance. Thus, individuals who are frequently exposed to delinquent behaviors and who learn that deviance is an acceptable means of behavior will more likely be pulled into crime.

Inner and outer containments Reckless states that "only a minority of individuals, no matter to what internal or external pushes and pulls they may be subject, get involved in crime and delinquency."195 Among this minority group, it is hypothesized that they have weak inner and/or outer containments. The outer or external containment refers to society, state, tribe, village, family, and other nuclear groups are able to hold the individual within the bounds of the accepted norms and expectations. External containment is this holding power of the group. Society, and particularly nuclear groups, contain, steer, shield, divert, support, reinforce, and limit its members.196

The outer containment consists of "effective family life, in which problems are averted or handled; of life in a community which still retains an interest

193 Walter C. Reckless. (1967). The Crime Problem. New York: Meredith Publishing Company. p. 479.

194 Ibid. p. 480.195 Ibid. p. 50.196 Ibid. p. 470.

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in the activities of its members; of membership in organizations that are interested in the activities of its members, etc.," as well as the infl uence of "good companions."197 However, over subsequent revisions, he determined that there were three broad areas that were essential to the outer containment: reasonable limits such as discipline from parents and adult fi gures, meaningful roles and activities such as involvement with school programs and community involvement that instills conformity in its members, and group reinforcement and supportive relationships breeding acceptance and belonging into society.

The inner containment was of greater emphasis in Reckless's work. As he states, "internal containment involves the ability to withstand pressures and pulls, to handle confl icts, to divert oneself from exciting risks, and to stay out of trouble."198 It is posited that this was, in a sense, the dominant containment as it was able to control individuals' behavior regardless of the external environment. The four main elements of the inner containment include self-concept, goal orientation, frustration tolerance, and norm retention.

Favorable self-concept is argued to be an insulator of delinquency among adolescents. People develop self-image from their interactions with those close to them. For Reckless, self-concept is seen as protective when individuals view themselves as law-abiding citizens. Further, parents are argued to be the most important means of developing positive self-concept along with other authority fi gures such as teachers.

Goal orientation is the second element of the inner containment. Reckless defi nes it as having direction and orientation towards legitimate goals. Further, these goals must be viewed as attainable by the individual.

The third element is frustration tolerance, which is the result of low self-control. Low frustration tolerance originates from "upsets, failures, and disappointments in life", and is characterized by "the inability to exert self-control, to tolerate frustration, to recognize limits, to relate to others."199 Self-control is vital to

197 Ibid. pp. 50-51.198 Ibid. p. 51.199 Supra Note 193. pp. 20-21.

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coping with failures, for without it, individuals are more prone to engage in delinquency as a means to cope with such stressors.

The fi nal element of the inner containment is norm retention. This refers to acceptance of societal norms, laws, and the willingness to comply with such laws. Reckless postulates that sometimes "norm erosion" occurs, meaning that an individual will develop criminogenic norms. Reckless posits "norm erosion" represents a diminution of inner containment, facilitating the gravitation toward involvement in deviant and criminal behavior”.200

In sum, Reckless argues that containment theory is incapable of explaining extreme levels of crime. Rather, he believes it to be a middle range theory; specifi cally, "containment theory" does not explain crime or delinquency which emerges from stronger inner pushes, such as compulsion, hallucinations, and personality disorders, or from organic impairments. Neither does containment theory explain criminal or delinquent activity which is a part of "normal" and "expected" roles and activities in sub-culturally deviant families and communities.201 Reckless asserts that the theory is more appropriate for minor types of delinquency such as petty theft or fi ghting among peers as opposed to extreme forms of delinquency.

(II) Hirschi's Social Control/Social Bonding TheoryIn 1969, Travis Hirschi put forward social control theory in his book Causes of Delinquency. This theory assumes that persons will engage in delinquent behavior when their "social bond" to society is weakened. This theory aptly explains the initial bond that a child forms with important others in his/her life. The subsequent behavior of the child as an adolescent and later as an adult depends largely on the bonding that took place early on in life. Bonding to conventional individuals is a strong deterrent for criminal behavior. Thus human behavior is determined by how children are socialized and their ensuing attachment to major institutions, such as the family and school.202

200 Ibid. p. 52.201 Walter C. Reckless. (1981). "Containment Theory: An Attempt to Formulate a Middle-Range

Theory of Crime". In Israel L. Barak-Glantz & C. Ronald Huff (Eds.). The Mad, the Bad, and the Different. New York: Lexington Books. pp. 67-75.

202 Lee Ellis & Anthony Walsh. (2000). Criminology: A Global Perspective. Boston: Allyn and Bacon. p.231.

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According to Hirschi, the weakened ties to society allow for the individual to act upon his/her deviant impulses. Hirschi explains that the one set of people a child is expected to be close to (at least in childhood) is the parents, he claims further that one can assume that a weak parent/child relationship is indicative of future crime and delinquency. In Hirschi's formulation, there are four primary components of social bonds: (a) attachment, (b) commitment, (c) involvement, and (d) belief. These four kinds of social bonds are separable, but they are interrelated to restrain people from committing crime.

The fi rst type of bond is attachment, which refers to the emotional closeness and sensitivity to signifi cant others. This attachment often refers to conventional others, including attachment to parents, teachers, and peers. For adolescents, the emotional relationships with parents are of critical importance. Parents act as role models and internalize pro-social norms for their children. Parental attachment also plays as a major deterrent to delinquent conduct, for children care about their opinions and do not wish to disappoint them. According to Hirschi (1969), the degree of parental attachment is measured through (a) supervision, the amount of time child spend with their parents, particularly when the child might be facing temptation directed towards delinquent or marginal behavior; (b) intimacy of communication, the fl ow of communication between parent-child relationship, and (c) affectional identifi cation, the degree of affection that exists between the parents and child. In addition, strong attachment to school can prevent an individual from engaging in delinquency. Specifi cally, those with a positive view of teachers develop a positive attitude about school and, hence, have good school performance; those who see themselves as able to do well in school will probably fi nd school tolerable and relevant to future needs.203 Attachment to peers is also important to prevent adolescents from engaging in delinquency.

The second type of bond is known as commitment. Commitment describes the investment an individual has in conventional society and the degree to which an individual is focused on achieving conventional goals. Commitment is the rational element of the social bond, which refers to the rational calculation of

203 Travis Hirschi. (1969). Causes of Delinquency. Berkeley: University of California Press. p.117.

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the potential gains and losses of different types of behavior for achieving goals. If adolescents are strongly committed to society, they are less likely to commit crime, as they are aware of the risk of losing the investment. Commitment further refers to the stake a person has in maintaining his/her current social standing by conforming to society's standards. As such, the more individuals invest their time, energy, and personal resources into pro-social behavior, the less likely they are to take the risk to become involved in delinquency, because the investment of accumulated time and resources is too great to lose. In contrast, those individuals who have invested less and who are less integrated into society are more likely to participate in delinquent activities, as they may feel they have more to gain and less to lose.204

The third type of bond, involvement, refers to the active participation in prosocial activities. Involvement relates the criminal opportunities with how people spend their time. Specifi cally, if a person commits most of time, energy, and personal resources to the conventional activities, few opportunities are left to commit delinquent acts. This insight is in line with environmental or opportunity theories of crime.205 The quality of social activities is important to inhibit adolescents from engaging in delinquency. Involvement is measured in terms of the amount of time and energy devoted to a range of non-delinquent activities, such as involvement in school-related activities, sports activities and other socially acceptable activities.

The fi nal bond, belief, refers to the extent to which an individual accepts the society's moral norms, laws, and rules. Belief in society's moral and behavioral doctrines promotes law-abiding behavior and serves as a deterrent to delinquency. Belief is described as the extent to which a person accepts the validity of the law and conventional moral order. Specifi cally, the more important such values are to a person, the less likely he/she is to engage in delinquent behavior. For juveniles who break the law, their belief in the law and moral standard is too weak to control their desires for immediate pleasure. Belief is diffi cult to operationalize because its development process is complex.

204 Ibid. p.118.205 J. Robert Lilly, Francis T. Cullen & Richard A. Ball. (2011). Criminological Theory: Context and

Consequences (5th ed.). New Delhi: Sage Publications. pp. 114-148.

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In addition, a measure of religiosity (i.e., how important the religion is to the individual) is often included as the element of belief bond.

In sum, this theory postulates adolescents who are strongly attached, committed, involved to society and have essential belief systems are less likely to become delinquent and more likely to adhere to conventional norms.

(III) Gottfredson and Hirschi's Self-Control TheoryShifting from social control/bond theory, Travis Hirschi and Michael Gottfredson (1990) proposed an internalized mechanism of self-control as "the individual-level cause of crime"206 in their book The General Theory of Crime. Self-control is claimed to be the major resistance to criminal impulse. Consistent with the social control theory, Gottfredson and Hirschi (1990) emphasized natural desires and temporary pleasure. The theory places particular importance on individual propensities and differences in criminal involvement. They posit that crime is available to everyone, but not all people are more vulnerable to momentary temptations. Individuals who possess suffi cient self-control can restrain criminal behavior that potentially has long-term negative consequences.

Self-control affects people's capability of evaluating the potential negative consequences of crime. Individuals with low self-control engage in crime because they fail to take account the painful consequences of criminal acts.207 Weakly self-controlled people tend to follow momentary impulse and fail to anticipate costly long-term consequences of their behavior. For individuals, the level of self-control actually reveals different tendencies to resist crime. Thus, the theory proposes that low self-controlled individuals encountered with situational availability would increase the possibility of criminal conduct.

Self-control develops in early childhood and remains relatively stable in later life. Parents play the dominant role in the development of children's self-control ability. Low self-control is primarily an outcome of ineffective childhood

206 Michael R. Gottfredson & Travis Hirschi. (1990). A General Theory of Crime. Stanford, CA: Stanford University Press. p. 232.

207 Ibid. p. 95.

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family socialization. Social institutions, such as school, are another signifi cant supplement for socializing, especially for children who lack socialization in family. Thus, self-control theory is actually a theory of stable individual differences.208

Finally, self-control theory has been claimed as a general explanatory concept that can broadly explain all sorts of crime. In other words, self-control is supposed to be broadly applicable and to be invariant across populations, cultures and crime types.

Low self-control as a traitGottfredson and Hirschi (1990) describe self-control as a personality trait that can be high or low, and is identifi ed by the use of characteristics that manifest in those who have low self-control. Low self-control is described as a multi-dimensional trait consisting of six observable characteristics: impulsivity, self-centeredness, a preference for physical activities, risk seeking, being short-sighted and nonverbal.209 First, impulsivity considers that people with low self-control are unable to resist temptation and tend to pursue momentary pleasure. Second, self-centeredness means being insensitive to other's pains or experiences. Absence of self-control makes people unkind and lack empathy; thus they have a tendency to be emotionless to the feelings of victims. Third, people who have low self-control would prefer physical rather than mental activity, as it requires little skill or planning. Fourth, those who lack self-control tend to be risk-seeking, such as becoming involved in exciting and thrilling activities. Fifth, regardless of considering long-term benefi ts, they are short-sighted and pursue rewards with little effort. Finally, with minimal tolerance for frustration, they have preference for nonverbal and physical tools rather than verbal responses to a situation of confl ict.

The role of opportunityIn self-control theory, Gottfredson and Hirschi (1990) incorporated a situational condition—the role of criminal opportunity in explaining criminal activity.

208 Supra Note 205.209 Supra Note 206. p. 89.

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The theory anticipates that when low self-control acts in combination with circumstances of opportunity, the probability of antisocial activities will increase. According to Hirschi and Gottfredson (1990), self-control is a stable trait and remains relatively constant throughout one's life. However, age-crime curve indicates people's crime rates normally reach peak in their late teens and then decline afterwards. Given this, the theory proposed situational conditions210 as an additional explanation for variations of criminal activities. Besides the direct effect of self-control, opportunity intervenes between low self-control and crime.

Opportunity, in the activity of crime, refers to the availability to reach the target conveniently and to take advantage of that availability.211 If no criminal opportunity is available, then people have no chance to become involved in crime. Moreover, opportunity to commit crime may vary among individuals. For adolescents, criminal opportunities are more available or more readily recognized among those who lack parental supervision and have crime-involved friends. Close monitoring by parents would tend to limit children's opportunities in delinquent involvement.212 Besides, adolescents who often associate with delinquent peers more easily become vulnerable targets and probably encounter more delinquent opportunities. Thus, interaction effect between self-control and situational opportunity may amplify among adolescents with a history of criminal involvement.

In sum, Gottfredson and Hirschi's (1990) A General Theory of Crime presents the self-control theory which proposes that the parent-child relationship is a major determinant in whether a child will have a level of self-control necessary to prevent them from delinquency when the opportunity arises. Low self-control is still the main cause for criminal behavior, and opportunity is claimed to exhibit little effect in reducing criminal activity. Low self-control has been found to be signifi cantly associated with juvenile delinquency and delinquent behaviors.

210 Ibid. p. 153.211 Teresa C. LaGrange & Robert A. Silverman. (1999). "Low Self-Control and

Opportunity: Testing the General Theory of Crime as an Explanation for Gender Differences in Delinquency." Criminology. Vol. 37(1). pp. 41-72.

212 Ibid.

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4.3 Live Course TheoriesLife is a dynamic process. As people travel through the life course they are bombarded by changing perceptions and experiences and as a result their behavior will change directions (sometimes for better and sometimes for worse). Life course theories encompass ideas and empirical observations from a variety of disciplines such as psychology, history, biology, and sociology; therefore it is not an explicit theory of anything, and the term actually refers to several different specifi c theoretical frameworks. These theories have become an emergent paradigm to study human lives and development as well as continuity and change over the life course of individuals.213 According to these theories, individuals follow pathways through their life spans, during which there are culturally-defi ned, age-graded roles and social transitions. Life course theory also provides a framework for studying phenomena at the nexus of social pathways, developmental trajectories, and social change.214

(I) Thornberry's Interactional TheoryThe 'Interactional Theory', developed by Terrence P. Thornberry in 1987, proposes that the fundamental or primary cause of delinquent behavior is a weakening of bonds to conventional society. Individuals who are attached to others, committed to conformity, and believe in conventional values are unlikely to engage in delinquent behavior. It is based on the premise that human behavior occurs in social interaction and can be explained by models that focus on interactive processes.215 This interactional model incorporates fi ve primarily theoretical constructs: attachment to parents, commitment to school and belief in conventional values drawn from Hirschi's (1969) social control theory; and association with delinquent peers and delinquent values drawn from Akers' (1985) social learning theory. Thornberry considers the social control and bonding constructs such as attachments to parents and commitment to school, the most essential predictors of delinquency. Levels of

213 Glen H. Elder. (1998). "The Life Course as Developmental Theory." Child Development. Vol. 69. pp. 1-12.

214 Glen H. Elder, Monica Kirkpatrick Johnson & Robert Crosnoe. (2003). "The Emergence and Development of Life Course Theory." In Jeylan T. Mortimer & Michael J. Shanahan (Eds.), Handbook of the Life Course. New York: Kluwer Academic/Plenum Publishers. pp. 3-19.

215 Terence P. Thornberry. (1987). "Toward an interaction theory of delinquency." Criminology. Vol. 25. pp. 863-892.

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attachment and commitment to conventional society ahead of the degree of moral beliefs that individuals have toward criminal offendings. However lack of such moral beliefs leads to delinquent behavior, which in turn negatively affects the level of commitment or attachments an individual may have built in his/her development.216

His basic model is that during childhood, youngsters develop attachments to parents. When this occurs, youths are likely to embrace conventional beliefs, show a commitment to school, avoid association with delinquent peers, reject delinquent's values and resist wayward conduct. When youths fail to develop strong attachments to parents, however, the opposite causal sequence is initiated. They do not develop either strong conventional beliefs or a strong commitment to school. With these controls attenuated, they are free to explore other behavioral options. At this point, they encounter delinquent peers. Consistent with social learning theory, the association with antisocial friends fosters delinquent values and delinquent behavior.217

Interactional theory does not view delinquency merely as an outcome or consequence of a social process. It views delinquent behavior as an active part of the developmental process, interacting with other social factors over time to determine the person's ultimate behavior and social position. The interactional models hypothesize that interactive processes develop over the person's life cycle and also specify the explanatory strength of each component by age. Early adolescence refers to the period from about age 11 to 13. This stage is the beginning of delinquent careers and prior to the period at which delinquency reaches it's apex. During early adolescence, the family is the most infl uential factor in bonding the youth to conventional society and reducing delinquency. Middle adolescence is the period when the youth are approximately 15 or 16 years of age. This period normally represents the highest rates of involvement in delinquency and is often the reference period in studies. During this stage, attachment to parents begins to weaken, and the most salient social variables

216 Stephen G. Tibbetts. (2014). Criminological Theory: The Essentials. London: Sage Publication. p. 214.

217 Supra Note 205. p. 314.

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involved in delinquency are likely to be associated with the youth's activities in school and peer networks. As youth mature through middle adolescence, the world of friends becomes a more dominant infl uence. Late adolescence is the period of transition from adolescence to adulthood, ages 18 to 20. As a person enters this stage, commitment to adult conventional activities and to family offer a number of new ways to reshape the bond to society and subsequently infl uence participation in delinquency.

In this regards, Thornberry noted that this interactional process creates a "behavioral trajectory" that predicts increasing involvement in delinquency and crime. In this trajectory, "the initially weak bonds lead to high delinquency involvement, the high delinquency involvement further weakens the conventional bonds, and in combination both these effects make it extremely diffi cult to reestablish bonds to conventional society at later ages. As Thornberry noted, "all the factors tend to reinforce one another over time to produce an extremely high probability of continued deviance"218 Thornberry also realized that the effects of variables differ with a peron's stage in the life course. As youths move from early to middle adolescence (15-16 years of age), the effects of parents wane and those of peers and school become more salient. Similarly, during late adolescence, new variables emerge, such as employment, college, and marriage. These now represent a person's "major sources of bonds to conventional society"219 and they play an important role in determining whether delinquency will continue or desist.

In sum, Thornberry's work posits that criminal behavior emerges in the context of the developmental process in which the person and environment interact with one another. Individuals are simultaneously a product and an architect of their social environment, created by and creating their life situations. Their development is dynamic rather than static, and it can be altered as the conditional of person's life change.

218 Supra Note 215. 219 Ibid.

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(II) Farrington's Integrated Cognitive Antisocial Potential (ICAP) theory David Farrington's (2003) Integrated Cognitive Antisocial Potential (ICAP) theory was designed to explain offending by lower class males and draws on concepts from other theories, including strain, control, learning, labeling and rational choice.220 The key construct of ICAP theory is 'antisocial potential' (AP), and the theory holds that AP becomes antisocial behavior when certain cognitive processes are employed that take into account both criminal opportunities and potential victims.221 Farrington distinguishes between long term AP and short term AP. Individuals with long term AP tend to come from poor families, to be poorly socialized, low on anxiety, impulsive, sensation-seeking, have low IQ and fail in school222 and are at risk for offending over the life-course, while those with low levels tend to live more conventional lives. Short Term AP individuals suffer few or none of these defi cits but may temporarily increase their AP in response to certain situations or inducements. Farrington indicates that we all have "desires for material goods, status among intimates, excitement, and sexual satisfaction", and that people choose illegitimate ways of satisfying them when they lack legitimate means of doing so, or when bored, angry, frustrated, or drunk.223

Short term AP may turn into long term AP over time as a consequence of offending. This can happen if individuals fi nd offending to be reinforcing, either in material term or in psychological terms by gaining status and approval from peers. Such outcomes lead to changes in cognition such that AP is more likely to turn into actual criminal behavior in the future. Offending can also lead to criminal labeling and incarceration, which limits future opportunities to meet one's needs legitimately. Thus, long term AP can develop even in the absence of most or all of the risk factors (eg. social situational reasons alone) said to predict chronic offending across the life course.224

220 Kelly Frailing & Dee Wood Harper. (2013). Fundamentals of Criminology: New Dimensions. North Carolina: Carolina Academic Press. p. 160.

221 David P. Farrington. (2005). "Childhood Origins of Antisocial Behavior." Clinical Psychology and Psychotherapy. Vol. 12. pp. 177-190.

222 David P. Farrington. (2003). "Key Results from the First 40 Years of the Cambridge Study in Delinquent Development." In Terence P. Thornberry & Marvin D. Krohn (Eds.), Taking Stock of Delinquency: An Overview of Findings from Contemporary Longitudinal Studies. New York: Kluwer/Plenum. pp. 137-183.

223 Ibid.224 Supra Note 2. p. 322.

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In sum, Farrington's ICAP theory holds that people have varying levels of antisocial propensity (AP) due to a variety of environmental and biological factors. Few people have long term AP, and these people tend to offend across the life course. Short term AP tends to occur in adolescence and can change to long term under some circumstances. It shows how people translate AP into actual offending behavior. As AP is said to increase temporarily during adolescence, but also it can lead to long term AP if caught and labeled criminal because such label limits future opportunities.

(III) Samson and Laub's Age Graded Theory of Informal Social ControlIn 1993, Rob J. Sampson and John H. Laub presented their Age Graded Theory of Informal Social Control in their book Crime in the Making: Pathways and Turning Points Through Life. Their theory, which is one of the prominent life course theories, is based on a reanalysis of the data that Sheldon and Eleanor Glueck collected from 500 delinquent boys born in Boston, Massachusetts in the 1930s.

Sampson and Laub focus on the importance of social bonds as the primary means of informal social control. Rather than elaborating on the elements of social bond, their theory focuses on the importance of social bonds over the course of life, considering how appropriate source of social control varies throughout life.225 They simply put the assumption that delinquency, crime and deviance are natural. If people are not prevented or controlled from following their natural inclinations, they will tend to behave in ways that society regards as antisocial or criminal. Thus, the age graded theory of informal social control holds that the most important sources of control are informal bonds between people. They argue that at different stages in the life course individuals are potentially subject to different forms of informal social control. For children, informal family and school bonds are important. Children who are strongly bonded to their parents and who care about school are less likely to be involved in delinquency than children who have diffi cult relations with their parents or who do not like school. As children move through the life course, the major sources of informal social control change. Parents and school are not as

225 James W. Burfeind & Dawn Jeglum Bartusch. (2006). Juvenile Delinquency: A Integrated Approach. Boston: Jones and Bartlett Publishers, Inc. p. 388.

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important for young adults as they are for children and teenagers. For young adults, employment and marriage are potential sources of informal control. Variation in the strength of informal controls infl uences the likelihood and degree of involvement in crime and deviance at all stages of life course.Their theory presents three major themes:226

First, informal family and school social controls are the fundamental social structures that infl uence behavior and explain delinquency in childhood and adolescence. The theory highlights three components of informal social control in family context- consistent discipline, monitoring and attachment to the family. Family bond and attachment to school help in socialization and ultimately, reduce delinquency.

Second, anti social behaviour results when an individual's bond to society is weak or broken.227 Such behavior in childhood has a strong likelihood of continuing through various stages of life. The concept of "cumulative disadvantage" presented in 1997, suggests that delinquency continues from adolescent into adulthood because of its repeated negative consequences. For example, arrest, offi cial labeling, incarceration and other negative life events associated with delinquency. People who acquire this 'cumulative disadvantage' are more likely to commit criminal acts and become crime victims themselves. When faced with personal crisis, they lack social supports that can help them reject deviant solutions to their problems.228

Finally, there is also possibility of positive change. Despite prior criminal tendency, adult social bonds can serve as turning points. Laub and Sampson identify three elements of informal social control as positive turning points in crime that may lead one off a criminal pathway- quality job, good marriage and serving in military. They further note that such desistence often happens by default rather than through any conscious decision to quit crime.229

226 Francis T. Cullen & Pamela Wilcox (Eds.). (2010). Encyclopedia of Criminological Theory. London: Sage Publications. pp. 807-812.

227 Rob J. Sampson and John H. Laub. (1993). Crime in the Making: Pathways and Turning Points Through Life. Cambridge, MA: Harvard University Press. p.18.

228 Supra Note 4. p. 314.229 Gennaro F. Vito & Jeffrey R. Maahs. ( 2017 ). Criminology: Theory, Research and Policy (4th ed.).

Sudbury, M.A.: Johnes & Bartlett Learning. p 202.

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Ten years later in 2003, they revised and extended their original theory in another book entitled Shared beginnings, Divergent Lives: Delinquent Boys to Age 70. They conducted a follow-up to their analysis of Sheldon and Eleanor Glueck's study by interviewing delinquent samples who were by then getting old-the oldest being 70 years old and the youngest 62 years.230 In their revised theory, they reaffi rmed that social bonds help to explain persistence and desistance throughout life course. In addition to that they suggest that there are a number of other casual factors as well.231They suggest that criminal behavior is a result of individual actions. They identify social controls, structured routine activities and purposeful human agency as casual elements in explaining crime throughout the life course.

4.4 Social Reaction TheoriesAccording to social reaction theory, behavior is controlled and shaped by the reactions of others. Social reaction theory explains how sustained delinquent behavior stems from destructive social interactions and encounters. According to this view, illegal acts, including delinquent behaviors, are defi ned by the social audience's reaction and not the moral content of the illegal act itself. Social reaction theories also examine the role that societal institutions, including the juvenile justice system, play in perpetuating delinquent behavior. These theories argue that the reaction of society to delinquent behavior may lead to continuation of the behavior. Two major types of social reaction theory are: labeling theory and confl ict theory.

4.4.1 Labeling TheoriesThe labeling theory deals with the effects of labels, or stigmas, on human behaviour. It posits that human identities and behaviours are shaped by how others label them. It holds that society places labels on juvenile delinquents, and stigmatizes them, leading to a negative label,that consequently develop into a negative self-image. The labeling perspective is less concerned with the causative factor of deviant act. Juveniles who are labeled as 'delinquents' start believing the labels that others assign to them, thereby acting as the labels.

230 Larry J. Siegel. (2016). Criminology: Theories, Patterns and Typologies (13th ed.). Boston: Cengage Learning. pp. 313-318.

231 Supra Note. 226.

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(I) Tannenbaum's "Dramatization of Evil" Frank Tannenbaum (1938) was a major fi gure in criminology in the early twentieth century, and is known for his profound contributions to labeling theory, particularly his conception of the 'dramatization of evil' presented in his 1938 book Crime and Community. He argues that offi cially labeling someone as a delinquent can result in the person becoming the very thing he is described as being.232 He further states that an act defi ned as evil is actually transformed into a defi nition of the actor as evil.233

Tannenbaun (1938) fi rst introduced the idea of 'tagging' while conducting his research work on juvenile participation in street gangs. He describes the process of defi ning deviant behavior as different among juvenile delinquents and conventional society, causing a 'tagging' of juveniles as delinquent by mainstream society. The stigma that accompanies the deviant 'tag' causes a person fall into deeper nonconformity. He found that a negative tag or label often contributed to further involvement in delinquent activities. This initial tagging may cause the individual to adopt it as part of their identity. If greater the attention placed on this label, the more likely the person is to identify them-selves as the label. Tannenbaum (1938) called this social labeling process the 'dramatization of evil'.

Tannenbaum's (1938) "dramatization of evil" describes the process by which offenders acquire deviant labels from members of society. If an act has been characterized as evil by society, then the offender associated with the act will be simultaneously associated with the act and labeled as deviant. Labels can be applied formally, by institutions (courts, schools, etc.) or informally, by a youth's acquaintances, peers, and families. These labels can be positive, or negative, but stigmas that hold negative connotations and may negatively affect the child.

In his explanation of how a juvenile delinquent becomes involved in a criminal career, Tannenbaum argues that minor forms of delinquent behavior during early adolescence are normal. However, when members of the community

232 Supra Note 6. p. 259.233 Frank Tannenbaum. (1938). Crime and the Community. New York: Columbia University

Press. p. 19.

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label the child as delinquent, the creation of the criminal begins. The stigma that accompanies the deviant label will often result in that person falling deeper into nonconformity. Consequently, societal reactions to this isolated delinquent act may transform an adolescent into a delinquent adolescent. Tannenbaum states that the process of making the criminal, therefore, is a process of tagging, defi ning, identifying, segregating, describing, emphasizing, making conscious and self-conscious; it becomes a way of stimulating, suggesting, emphasizing, and evoking the very traits that are complained of."234 The person becomes the thing he is described as being.

He outlined the processes that can be divided into three stages. In the fi rst stage, the individual engages in activities which were fi rst created through a mal-adjustment to society. It is in the second stage, however, that "there is a gradual shift from the defi nition of the individual as evil, so that all his acts come to be looked upon with suspicion; and fi nally, in the third stage of the process of the dramatization of evil, from the point of view of the individual, a change in his self-concept has taken place.235

Tannenbaum (1938) argues that once a youth is caught, he/she is forced to participate in 'ritualistic confrontations'. Ritualistic confrontations are the events that follow being caught, and are experiences other youths do not share, such as charges being laid, court proceedings, and possible institutionalization. The youth is thus stigmatized, and society begins to react differently to that youth. As a result of this initial dramatization of evil, the youth's self-identity begins to change. The youth is so overwhelmed by the response to his or her actions that he or she begins to internalize the delinquent stigma. The youth becomes bad because he/she is defi ned as bad. Thus, although the goal of the juvenile justice system is to reform the youth, Tannenbaum (1938) suggests that bringing the youth into the system initially, actually serves as a way of intensifying the problem. 'The fi rst dramatization of evil which separates the youth out of his group for specialized treatment plays a greater role in making the criminal than perhaps any other experience."236

234 Ibid. pp. 19-20.235 Ibid. p. 19.236 Ibid.

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(II) Lemert's Primary and Secondary DevianceThe major contribution to the labeling perspective was made by Edwin Mcmacthy Lemert in his publication Social pathology (1951), and Human Deviance, Social Problems and Social Controls (1967, 1972) expanded on the work of Tannenbaun and his concern for the long-term effects of labels. Lemert is basically known distinguishing between primary and secondary deviation. According to Lemert, primary deviation refers to occasional or situational behavior that may be excused or rationalized by actor and or the social audience such as occasionally drinking alcohol underage. According to Lemert, primary deviance involves norm violations or crimes that have very little infl uence on the actor and can be quickly forgotten or overlooked237 and these acts will often go unnoticed, and may have no long term impact on the child. This type of deviance is generally random and undetected by others. However, if and when detected, changes occur. By being labeled as delinquent, a change in self-identity occurs, whereby the individual begins to internalize a criminal identity, and they become as a 'career' deviant. As a result, the individual becomes increasingly involved in a criminal lifestyle. On the other hand, Lemert defi nes secondary deviance as 'a special class of socially defi ned responses that people make to problems created by the social reaction to their deviance. These problems are essentially moral problems which revolve around the stigmatization, punishments, segregation, and social control. They become central facts of existence for those experiencing them.238 In other words, if people commit an act of deviance and others react in a strongly negative manner towards them, by treating them badly, punishing them, and ultimately telling them they are not worthy to run the same circles as others in society, the people on the receiving end of such negative messages and behaviors are apt to internalize them. In turn, they may decide to engage in other acts of misbehavior as a way of dealing with the negative experiences.239 In this sense, stigma and stigmatization are central to the creation of secondary

237 Kristin A. Bates & Richelle S. Swan. (2013). Juvenile Delinquency in a Diverse Society. New Delhi: Sage Publication Inc. p. 139.

238 Edwin Mcmacthy Lemert. (1972). Deviance, Social Problems and Social Control. Englewood Cliffs, N.J. : Prentice-Hall. p. 63.

239 Supra Note 237. p. 139.

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deviance. According to Lemert, secondary deviance occurs when a deviant event comes to the attention of signifi cant others or social control agents who apply a negative label. The newly labeled offender then reorganizes his or her behavior and personality around the consequences of the deviant act.240 Thus, secondary deviance is created by the 'pains of labeling'. Once again, the implication here is that, formal state intervention in the form of labeling only serves as a means of increasing delinquency.In sum, sequence of interaction that leads to secondary deviance, can be presented as below:

1. primary deviation2. Social penalties3. Further primary deviation4. Stronger penalties & rejections5. Further deviations6. Crisis reached in the tolerance quotient7. Deviant behavior becomes more pronounced in a reaction to

stigmatization by society8. The juvenile accepts their deviant social status.

(III) Becker's Labeling, the Deviant Career and the Master StatusHoward Saul Baker in his 1963 book Outsiders: Studies in the Sociology of Deviance, credited as one of the fi rst books on the labeling theory and its application to the study of deviance. His basic proposition is that 'deviance is created by rule enforcers'. Becker argues that deviance is not a quality of the act an individual commits, rather it is a consequence of the application of rules and sanctions by others.241 Thus, deviance is created by social groups who make and enforce rules, and a deviant is one to whom a stigmatizing label has successfully been applied.

Becker distinguishes between rule breaking behavior and deviant behavior. He argues that rule breaking behavior is simply the act of breaking rules. Whereas,

240 Larry J. Siegel & Brandon C. Welsh. (2017) Juvenile Delinquency: Theory, Practice, and Law (13th ed.). Boston: Cengage Learning. p. 191.

241 Howard Saul Becker. (1963). Outsiders: Studies in the Sociology of Deviance. New York: Free Press. p. 9.

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deviant behavior is seen as unfolding in a career-like progression, where "one of the most crucial steps in the process of building a stable pattern of deviant behavior is likely to be the experience of being caught and publicly labeled as deviant."242 Therefore, a deviant is someone who has been labeled as such by some segment of society, namely those whose social position gives them the power. Becker suggests that the application of a stigmatizing label, has a direct effect on the individuals self identity, which ultimately results in the delinquent becoming what other expect of him or her.

(IV) Braithwaite's Reintegrative Shaming TheoryJohn Barthwaite (1989) disagrees somewhat with other labeling theorists, suggesting that some form of shaming might actually work to reduce further delinquency. In this theory, Braithwaites combines major concepts from several theories including social disorganization, differential opportunity, social bonding, strain as well as subculture theory. His basic premise is that when people are allowed to express remorse over the ills they have committed towards society, they should be successfully reintegrated back into a community what is willing to let bygones be bygones. He argues that individuals are so enmeshed within interlocking segments of the local community that the only way they can ever become law-abiding, contributing citizens is when a sense of communitarianism exists. He uses the word 'shaming' to describe a process whereby the local community lets the offenders know that it disapproves of their behavior, and this message to the offender is meant to get the offenders to see the errors of their ways.243

Braithwaite defi nes 'shaming' as "all social processes of expressing disapproval which have the intention or effect of invoking remorse in the person being shamed and/or condemnation by others who become aware of the shaming."244 Shaming is the condemnation of the act through either formal or informal agents,

242 Ibid. p. 31.243 Barbara Sims. (2006). "Theoretical explanation for Juvenile Delinquency." In Barbara Sims

& Pamela Preston (Eds.). Hand Book of Juvenile Justice: Theory and Practice. New York: Taylor and Francis Group. p. 89.

244 John Braithwaite. (1989). Crime, Shame and Reintegration. Cambridge: Cambridge University Press. p. 100.

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or sometimes both. Shaming can also come from any outside referent such as parents, teachers, peers, or coworkers. In order to be effective, Braithwaite argues that shaming must occur at the societal level, meaning there needs to be community involvement in the shaming process. Braithwaite also describes two categories of society. Communitarian societies (ie those with a high degree of interdependence and strong cultural commitments to group loyalties) are better able than others (where there is a lower level of interdependence and greater concern for the expression of individualism) to informally sanction deviance and reintegrate lawbreakers by shaming the offence, rather than permanently stigmatizing the offender through harsh formal penal codes.245 It involves a process of shaming focused on the deviance of the individual rather than the act.

Braithwaite contrasts reintegrative shaming with stigmatization which is disintegrative in nature. When an individual becomes stigmatized, that is, treated as an outcast or given deviant 'master status' after committing crime, then labeling is likely to increase that individual's criminal behavior which he called disintegrative (stigmatization) shaming. Stigmatization occurs when the community attempts to socially isolate the offender with punishments such as incarceration. With these acts of punishment, society seeks to detach these juvenile offenders from the community and these punishments create the risk of a rebellious reaction. Braithwaite noted that when individuals are shamed so remorselessly and unforgivingly, they become outcasts. By casting offenders out of the mainstream community, disintegrative shaming has the result of pushing them toward criminal subcultures.246 The individual is no longer a part of "normal" society but is instead a "deviant" or "bad person". An example of this is when an offender commits a crime such as burglary and is sent to prison. This is the shaming portion. Then, the individual is released but has the permanent mark of felon attached to their name. This becomes their defi ning identity to society. This is the disintegrative portion of the shaming.

On the other hand, when the individual is met with reintegrative shaming, then labeling is likely to decrease her or his criminal behavior. Reintegrative

245 Ibid. pp. 84-85.246 Ibid. p. 14.

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shaming involves condemnation of criminal behavior that does not cast the individual out rather promotes to reintegrate the offender back into the community of law-abiding or respectable citizens through decertifying the offender as deviant.247 A prime example of reintegrative shaming often occurs within the family. A child may misbehave and be punished with a time out or a spanking, which is the shaming portion. Then the parent comes in to explain to the child the wrongfulness of the act and hug them or affi rm the child in a similar way and allow the child to return to the family as a respectable/non-deviant member, which is the reintegrative portion.

Braithwaite further states where shaming is more disintegrative than reintegrative, crime should be higher; where shaming is more reintegrative than disintegrative, crime should be lower.248 or if a society used reintegrative shaming, that society will have less crime than societies in which disintegrative shaming is utilized.

In sum, Braithwaite's reintegrative shaming theory is comprised of two components: the act of shaming and the efforts toward reintegrating the offender or delinquent. This process is characterized by shaming of the act instead of the person, forgiveness of the deviant or criminal act, continued respect for the person despite the act, and refraining from labeling the person as criminal, deviant, or bad. However, in order to Braithwaite's reintegrative shaming theory to be useful in the juvenile justice arena, both the offender and the local community would have to come to some sort of agreement about the admission of 'guilt' and the asking for and the simultaneous expression of forgiveness.

4.4.2 Confl ict TheoriesConfl ict theorists state that delinquent behavior is due to confl ict in society that arises from an unfair distribution of wealth and power. They are concerned with the role government plays in creating an environment that is conducive to crime. They are also concerned with the role that power has in controlling and shaping the law.

247 Ibid. p. 100.248 Ibid. p. 13.

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(I) Vold's Group Confl ict TheoryIn 1958, George Vold, the fi rst North American sociologist, wrote explicitly about a group-confl ict theory of delinquency in his book Theoretical Criminology. Vold proceeds to theorize that "crime is political behavior and the criminal becomes in fact a member of 'minority group' without suffi cient public support to dominate and control the police power of the state."249 He moved the focus of confl ict theory from culture to group. He argues that people are basically group oriented. Groups are formed because individuals have common interests and needs that can best be achieved through collective action. However, groups come into confl ict as their interests and purposes tend to overlap, encroach on one another, and become competitive. Such confl icting groups seek to expand or to protect their interests. To this situation, group confl ict theory states that powerful groups in positions of authority will attempt to infl uence the content of law so that it protects their interests and preference. They will likely abide by such law, hence, minimizing the likelihood of criminalizing their behavior. However, those with less power, against whom the law is directed are likely to violate the law. Thus, crime may be the behavior of a group in society that lacks the power to exert its will through the legal machinery of the state. In essence, Vold defi ned crime and delinquency as 'minority group' behaviour, associated with less powerful in a social struggle for power. As such, criminalization (the process by which behavior comes to be designated as criminal) is an important theme in confl ict theory, and the law may be seen as a weapon in social confl ict.

For example, he argues that 'juvenile gang' is nearly always a 'minority group', out of sympathy with and in more or less direct opposition to the rules and regulations of the dominant majority, that is, the established world of adult values and powers. He presented four types of crime from this confl ict perspective:250

crimes arising from political protest; crimes resulting from labor disputes; crimes arising from disputes between and within competing unions;

and crimes arising from racial and ethnic clashes.

249 George B. Vold. (1958). Theoretical Criminology. New York: Oxford University Press. p. 202.250 Supra Note 1. p. 338.

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(II) Turk's Crime and Legal OrderIn 1969, Austin Turk presented confl ict analysis of crime in his book Criminality and the Legal Order. He asserts that no one is intrinsically criminal-criminality is not a biological, psychological or behavioral phenomenon.251 It is a social status defi ned by the way an individual is perceived, evaluated and treated by legal authorities.252 Criminality is a defi nition applied by 'authorities'- the individuals with decision making power, such as Police, Judges, Prosecutors, etc. The status of criminal is conferred upon individuals in subordinate positions in society called as 'subjects'. He, thus, explains crime through society's authority relationships- between the powerful and the subjects.

Turk argues that social order will be maintained only when the authority group is able to fi nd the right balance between consensus and coercion. In other words, if a society becomes too coercive, or too egalitarian, confl ict (and criminality) will erupt. Turk distinguishes between social and cultural norms. Cultural norms are the laws as they are written, social norms the laws as they are enforced. Confl ict (and crime) result when authorities actively enforce the law as it is written, and when the confl ict group is able to explain their "criminalized behavior" within the framework of their social norms.

Turk argues that people act according to their values and that often these values come into confl ict. This situation is particularly likely to occur when citizens are interacting with public offi cials, such as the police. Turk suggests that police-gang interactions are especially potentially confl icting situations because gangs represent gang values, such as sentiments of togetherness among gang members, while the police represent law and authority and the public's interest. The values expressed by the police also tend to label others as troublemakers or delinquents, and again, these are likely to be given to gang members.253

251 Ibid. p. 339.252 Austin T. Turk. (1969). Criminality and Legal Order. Chicago: Rand McNally & Company. p.

25.253 Supra Note 5. p. 278

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Turk proposes several conditions under which criminalization or the assignment of criminal status to individuals could occur.254

the degree to which legal norms were in congruence with cultural and social norms

the degree of power differences between enforcers and violators; and the realism of moves during the confl ict, or actions that could increase

the probability of their criminalization.

He suggests that there is high probability of criminalization when: both enforcers and resisters have a high compability between cultural and social norms, where both groups engage in unrealistic moves and where the power difference favors the enforcers.

(III) Quinney's Social Reality of CrimeRichard Quinney (1970) proposed a slightly different explanation of crime and criminal behavior. Borrowing from Vold's earlier statements as well as from social interaction and learning theories, Quinney developed six propositions and associated axioms that outline his social reality of crime theory. These six propositions are:255

Proposition 1 (Defi nition of Crime): Crime is a defi nition of human conduct that is created by authorized agents in a politically organized society.

Proposition 2 (Formulation of Criminal Defi nitions): Criminal defi nitions describe behaviors that confl ict with the interests of the segments of society that have the power to shape political policy.

Proposition 3 (Application of Criminal Defi nitions): Criminal defi nitions are applied by the segments of society that have the power to shape the enforcement and administration of criminal law.

254 Supra Note 1. p. 339.255 Richard Quinney. (1970). The Social Reality of Crime. Boston, MA: Little, Brown. pp. 15-23.

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Proposition 4 (Development of Behavior Patterns in Relation to Criminal Defi nitions): Behavior patterns are structured in segmentally organized society in relation to criminal defi nitions, and within this context persons engage in actions that have relative probabilities of being defi ned as criminal.

Proposition 5 (Construction of Criminal Conceptions): Conceptions of crime are constructed and diffused in the segments of society by various means of communication.

Proposition 6 (The Social Reality of Crime): The social reality of crime is constructed by the formulation and application of criminal defi nitions, the development of behavior patterns related to criminal defi nitions, and the construction of criminal conceptions.

In proposition 1, Quinney views crime as a social construction. The defi nition of crime is created and imposed by dominant authority fi gures in society such as Legislators, Police, Prosecutors and Judges.

Propositions 2 and 3 emphasises upon the political power that is necessary to establish defi nitions of criminal behavior as well as to label individuals as criminals. Quinney argues that behaviors become criminal when they are in opposition to the interests of the powerful, and that criminals actually represent minority groups who have less power.

Proposition 4 is derived from social learning theory, more specifi cally from Sutherland's differential association theory. It is from an individual's interaction with others that defi nitions of behavior, as well as behavioral patterns, are developed. And, depending upon one's location in the class structure, there is a differential probability that the behaviors in which a person engages will be defi ned as criminal.

Quinney's fi nal two propositions summarize his theory of the social reality of crime. He reterates that powerful sector of society create social defi nitions of crime, and then by use of mass media spread and reinforce such defi nition.

(IV) Chambliss and Seidman's Theory of Legal BureaucracyWilliam J. Chambliss & Robert B. Seidman's work on Law, Order and Power in 1971 presented a synthesis of the impact of power differentials upon the daily

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work of Lawmakers, Police, Prosecutors, Judges, and other members of the criminal justice systems. Law enforcers such as police and the courts tend to become the tools of power and privilege. This tendency is mostly the result of organizational imperative - it's in the nature of any organization to perform tasks that will maximize reward and minimize trouble for the organization (e.g. to have public support). It is thus rewarding for law enforcement agencies to go after powerless people like drunks, vagrants, robbers, etc., but support would quickly evaporate if such agents start going after "respectable" middle and upper class people for "white collar crimes." Thus, enforcement personnel are likely to make the law serve the interests of the rich and powerful.

Chambliss and Seidman argue that there are two kinds of law: the law on the books and the law in action. One is the ideal, the other is what really goes on. The former asserts that the law ought to be fair, just, and treat all persons equally; the latter shows that legal authorities are actually unfair, unjust, favoring the rich and powerful over the poor and weak. Or criminal justice bureaucracies always tend to treat those of lower social class position more harshly for the same offenses committed by middleclass and upper class people because lower class people has little to offer in return for lenience and were in no position to fi ght the system. In addition, he insisted, these bureaucracies tend to ignore or deal leniently with the same offences when committed by those higher in the stratifi cation hierarchy.256 This views attempted to establish the validity of the proposition that "the tendency and necessity to bureaucratize is far and away the single most important variable in determining the actual day to day functions of the legal system" by demonstrating how, even in sentencing, "institutionalized patterns of discrimination against the poor are inevitable"257

(V) Colvin and Pauly's Integrated Structural Marxist Theory of DelinquencyMark Colvin and John Pauly developed confl ict theory of delinquency in 1983. In their article A Critique of Criminology: Towards an Integrated Structural-Marxist Theory of Delinquency Production, Colvin and Pauly considered that serious delinquency results from the reproduction of coercive control patterns

256 Supra Note 205. p. 182.257 William J. Chambliss & Robert B. Seidman. (1971). Law, Order and Power. Boston: Addison-

Wesley Pub. Co. pp. 468-469.

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tied to the relationship between production and class structure in capitalist societies.258 They argue that control structures in the workplace, where coercion is the norm, affect control structures in the home. People who have working class jobs are often subjected to coercive authority in their day to day lives. In other words, they do not always have the freedom to go about their jobs in the ways they might prefer and are often met with a number of strict rules of authority on the part of their superiors. For examples their bosses might yell a lot at them, or they may strictly enforce rules about taking breaks and socializing at work, all things that may infl uence them to have an uneasy relationship with authority. Then these workers, when they go home, parent their own children with physical and punitive manner259 which increases the possibility of creating a negative bond between the parent and the child. This also tends to alienate children.

Consequently, children with negative bonds to their parents often feel negatively towards the authority fi gures in schools and these children are more apt to be labeled as troublemakers, slow learners and less motivated to achieve. They then considered the manner by which those experiences shaped parenting practices, and the workers' children's views of the social control and authority that they experienced at the hands of teachers, parents, and their peers.260 Finally youths gravitate towards similar peers and this perpetuates the control structures experienced in the home and at school. The outcome is delinquency that is reinforced by peers.261 Thus workers under a coercive control structure at work tend to use such control in their family relations. On the other hand, workers with freedom in the workplace use more fl exible control strategies at home.

258 Robert M. Regoli, John D. Hewitt & Matt DeLisi. (2011). Delinquency in Society: The Essentials. London: Jones and Bartlett Publishers International. p. 180.

259 Mark Colvin & John Pauly. (1983). "A Critique of Criminology: Towards an Integrated Structural-Marxist Theory of Delinquency Production." American Journal of Sociology. Vol. 89(3). pp. 513-551.

260 Supra Note 237. p. 151.261 John P. Hoffmann. (2011). Delinquency Theories: Appraisals and Applications. New York:

Routledge. p. 197.

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In sum, main crux of Colvin and Pauly's theory is "workplace control structure" shape the forms of control parents use to discipline and rewards their children.Children's socialization experiences within the family then infl uence the forms of control they encounter in families, school, and peer groups tend to be, the more alienated their bonds to authority will be, and the more likely they are to engage in serious patterned delinquency.

(VI) Hagan's Power Control TheoryIn the mid-1980s, John Hagan, A.R. Gills, and John Simpson developed power-control theory, a structural explanation from common delinquency that focuses on the intersection of social class and gender. This theory combines the macro level concept of power derived from relations, the means of production and authority in the workplace within micro level concept of the control established within relationships such as family interactions. Hagan and his colleagues argue that both the presence of power and the absence of control contribute to adolescents' freedom to violate social norms. Their objective is to explain delinquency based on gender differences in experiences of power and control. Power control theory is explicitly intended to explain common, minor forms of delinquency, not serious, violent delinquent behavior.

Hagan and his colleagues begin with the premise that parents' work place experiences infl uence parental control and children's socialization experiences within family. Hagan's theory contends that parents who have relatively little authority and who experience greater controls in the workplace (based on class) will exercise greater controls over their children.

Hagan defi nes social class fi rst in term of relations to the means of production (e.g., employers who are owners and workers who are non-owners) and latter in terms of relations to authority in the workplace (e.g. a command class that exercise authority and on obey class that is subject to the authority of others). He also distinguishes ideal types of family based on husbands' and wives' relation to authority.262 He furthers defi nes, in patriarchal families, family class relations

262 James W. Burfeind & Dawn Jeglum Bartusch. (2011). Juvenile Delinquency: An Integrated Approach. (2nd ed.). Boston: Jones and Bartlett Publishers. p. 258.

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are "unbalanced". Husbands exercise greater authority in the workplace than wives, who are either unemployed or employed in positions of less authority than those of their husbands. In egalitarian families, family class relations are "balanced". Husband and wives are employed in positions of similar authority, in either the command class or the obey class.263 Then, do differences in parents' workplace experiences of authority translate into gender differences in delinquency among sons and daughters? Hagan argues that relative to fathers, and mothers assume greater responsibility for the socialization and control of children. In patriarchal families, women reproduce gender imbalances in power by exerting greater control over daughters than over sons. In egalitarian families, on the other hand, daughters are subjected to controls similar to those imposed on sons. Thus, in egalitarian families, "as wives gain power relative to husbands, daughters gain freedom relative to sons. This theory proposes that the amount of control daughters and sons experience within families infl uences their attitude towards risk taking. Risk taking is contrary to the emphasis on "passivity" that characterizes patriarchal vies of women's and girls' role. Thus, in patriarchal families, parents (particularly mothers) teach daughters to avoid the risk. In egalitarian families, parents encourage both daughters and sons to be more open to taking risks, in part in preparation for the kinds of entrepreneurial activities these children are expected eventually to perform in the workplace.

Delinquency can be regarded as a form of risk taking. Power-control theory predicts that attitudes towards risk taking infl uence delinquent behavior, in thorough their effect on perceived risks of sanctions for engaging in delinquency. The theory also predicts that both "task for risk" and the deterrent effect of perceived risks of sanctions will vary by gender as a result of differences in familial controls for daughters and sons. Compared to males, females are more strongly socialized by parents (especially mothers) to avoid risks, and so will be more strongly deterred by the risk for threat of legal sanctions.

In 2007, Hagan and his colleagues developed a revised version of power-control theory that includes adolescents' "dominance ideologies" as a predictor

263 Ibid. p. 258.

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of gender differences in delinquency. These dominance ideologies consist of preferences for patriarchal gender roles and "Hierarchic self interest," which includes a preference for competiveness and willingness to further one's own interests at the expense of others. Patriarchal gender role preferences were measured by questions such as "it is more important for a woman to support her husband in his career than to pursue a career of her own. Higher hierarchic self-interest among males than females and patriarchal gender role preferences indicate a strong male dominance ideology. In this revised version of power control theory, Hagan and his colleagues hypothesized that adolescents' dominance ideologies will partially mediate the effects of patriarchal workplace structure and differences in parental control on children's risk preferences and involvement in delinquency.264

In sum power control theory argues that social class and gender together create the conditions of freedom that lead to common delinquency. Both the class and gender, by determining the presence of power and the absence of control, the socialization experience of children that contribute delinquency. Parental power and control also infl uence children's dominant ideologies, which in turn, affect children's risk preferences and delinquent behavior. In patriarchal families, there will be large gender differences in common delinquency, while in egalitarian families there will be smaller gender differences in offending.265

(VII) Regoli and Hewitt's Differential Oppression TheoryRobert M. Regoli and John D. Hewitt developed the theory of 'differential oppression' based on their assumption that children have little power over their lives, and few resources to infl uence others or support themselves independently of adults. They are expected to submit to the power and authority of adults. This theory suggests that adults, particularly parents, attempt to establish and maintain order and social control in home in ways that are broadly oppressive of children. In more rigid and authoritarian families, when children violate the rules they are punished, often severely. Children are also exposed to variety of forms of abuse and neglect.

264 Ibid.265 Ibid.

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According to these theorists, compared to adults, children have little power in today's society and few resources with which to exercise control over their social environments. In comparison to parents, teachers, and other adult authority fi gures, children are relatively powerless and expected-often required to submit to the power and authority of adults. When this power is used to deny children self-determination, and impede them from developing a sense of competence and self-effi cacy, it becomes oppression.266

Regoli and Hewitt believe that all children are oppressed and that the amount of oppression children experience falls on a continuum ranging from simple demands for obedience to much more severe forms of oppression like physical and sexual abuse. They contend that juvenile crime and delinquency, as well as substance abuse and mental disorders in children, are adaptive reactions to the oppression they experience at the hands of adults. The theory states that delinquency is the culmination of a process that begins at conception and evolves through adolescence; the more a child is oppressed, the greater the likelihood he or she will become delinquent.267

The theory of differential oppression is organized around following four principles:268

1. Children are easy targets for adult oppression because of their lack of power.

2. Oppression of children by adults occurs in various contexts and the degree of oppression to which a child is exposed occurs along a continuum.

3. Oppression can lead to various childhood adaptations, including passive acceptance, exercise of illegitimate coercive power, manipulation of one's peers, and retaliation.

4. Use of adaptive reactions by children reinforces adults' views that they are "inferior", subordinate beings and as troublemakers. This view enables adults to justify their role as oppressor and further reinforces children's powerlessness.

266 Robert M. Regoli & John D. Hewitt. (2006). Delinquency in Society. (6th ed.) New York: McGraw-Hill. p. 1.

267 Matt DeLisi & Peter J. Conis. (2008). Violent Offenders: Theory, Research, Public Policy and Practice. Boston: Jones and Bartlett Publishers. p. 51.


208



Forms of oppressionRegoli and Hewitt distinguished between two forms of oppression: micro-level and macro-level oppression. They contend that 'oppression' is a summation of the abusive, neglectful, and disrespectful relations many children confront. This oppression occurs in multiple social contexts, for example at home, at school and at other religious institutions. Children are exposed to different levels and types of oppression that vary depending on their age, their level of development, and beliefs and perceptions of their parents. In fact, much of the oppression children suffer stems from their parent's inability to meet the needs of their children, either because adults are uninformed about what these needs are at various stages of development, because they are not capable of responding to those needs, or because they are egoistically focused on meeting their own needs.269

Micro-level oppressionMicro-level oppression of children is defi ned as maltreatment and involves abuse (physical, sexual and emotional)270 and neglect (Physical, emotional, educational).271 Some parents oppress children as they attempt to impose and maintain adult conception of social order. Such parents may view their children as extensions of themselves rather than as individuals and therefore feel free to impose their will on children. In any case, the children are required to obey rules designed to reinforce adult notions of right and wrong behavior.

269 Supra Note 267. p. 51.270 Physical abuse: Acts of commission that result in physical harm including health. Sexual

abuse: acts of commission of sexual acts against children that are used to provide sexual gratifi cation to the perpetrator. Emotional Abuse: Acts of commission that include confi nement, verbal or emotional abuse, and other types of abuse such as withholding sleep, food, or shelter.

271 Physical neglect: acts of omission that involve refusal to provide health care, delay in providing health care, abandonment, expulsion of a child from a home, inadequate supervision, failure to meet food and clothing needs, and conspicuous failure to protect a child from danger. Educational neglect: Acts of omission and commission that include permitting chronic truancy, failure to enroll a child in school, and inattention to the child's specifi c education needs. Emotional neglect: acts of omission that involve failing to meet the nurturing and affection needs of a child, inattention to the child's needs for affection, refusal or failure to provide needed psychological care, exposing a child to chronic or severe spouse abuse, allowing or permitting a child to use drugs or alcohol, encouraging the child to engage in maladaptive behaviors, refusal to provide psychological care, and other inattention to the child's developmental needs.

209



In an attempt to exert greater control over their children, some parents and other adults use coercion or force. Other parents oppress children through neglectful parenting that fails to meet their children's physical, emotional, and educational needs.

Macro-level oppression Macro-level oppression is experienced by children living in poverty and disadvantaged neighborhoods. Children living in poverty experience health problems and have less exposure to mentally stimulating experiences. Poverty and economic disadvantage also have oppressive infl uences on school-age and adolescent children. During middle childhood and adolescent, children increasingly come into direct contact with their neighborhoods through involvement in school, youth service organizations, and informal neighborhood groups. Some neighborhoods offer youth a variety of supervised instruction and structured activities, whereas others send the majority of the children out on the street. Due to the restricted tax base in poor distressed neighborhoods, limited public resources are available to support the education recreation and health needs of youth and their families. In addition, persistent poverty is consistently found to have more adverse effects than transitory poverty on children's cognitive development and school achievement. Children living for long periods in impoverished conditions experience more negative life events and adverse conditions that may place demands on their coping resources well beyond what they can handle. Consequently, exposure to chronic adversely exacts a toll on child mental, physical and emotional health.

Both forms of oppression can have long-lasting effects on children, such as developmental delays and emotional disabilities, as well as cognitive and neurological impairments that can be caused by exposure to environmental toxins, like lead.

Adaptations to oppressionAccording to the Differential Oppression Theory, children respond to oppression in one of four ways; passive acceptance, exercise of illegitimate coercive power, manipulation of one's peers, and retaliation.272 The fi rst adaptation is passive

272 Supra Note 266. p. 211.

210



acceptance of one's status as inferior. This is a form of obedience that is grounded in fear. Although children learn to hate their oppressors, they remain fearful of them and thus suppress the hatred. This adaptation, according to the authors, typically leads to internalizing disorders such as alcoholism, drug addiction, eating disorders, and low self-esteem. Passive acceptance is the most common adaptation to oppression and is more common in females.

A second adaptation to oppressive parenting is the exercise of illegitimate coercive power. By participating in delinquent activities, children are able to establish a sense of control or power over their own lives. These acts are simply maladaptive expressions of a desire for autonomy and control. Low-level adaptations may include challenges to parental authority (e.g., sassing, back-talking), defi ant body language, sexual misbehavior, illicit drug or alcohol use, and criminal acts.

A third adaptation is manipulation of one's peers or siblings in an attempt to enhance social power. To some extent, this adaptation can be seen as a natural extension of deviant role-playing learned from one's own parents. That is, oppressed children may feel the need to manipulate others, such as bullying weaker children, in an attempt to regain a sense of empowerment or control over their own lives.

A fourth adaptation is retaliation which suggests that some children react to their oppressive environments by lashing out either directly at one's own parents or indirectly at other symbols of their oppression such as school vandalism. While this adaptation may be manifested in outward acts of aggression such as assaulting or even killing one's own parents, anger and resentment may also be directed inwards through acts of self-mutilation, depression, or suicide.

In sum, differential oppression theory holds that, parents and other authority fi gures occupy a position in the family which affords them the opportunity to maintain order in the home in ways that tend to be oppressive to children. That is, parents infl uence the choice of peers for their children, food, clothing, movies, sleeping time and the like. Children on the other hand occupy a social position with limited resources that can equip them to negotiate for changes

211



in their environment, hence rendering them powerless to submit to authority. The forms of oppression meted onto children ranges from a demand to obey rules designed to meet the adult's convenience through physical, sexual and emotional abuse. These maltreatments compel children to put up an adoptive reaction which tend to be problem behaviors such as substance use, delinquency and the likes. Hence, delinquency according to this theory is an adoptive strategy by children suppressed by their parents or caregivers.

212 JUVENILE DELINQUENCY

UNIT

IVJUVENILE JUSTICE:

NATIONAL LAWS, POLICIES AND PLANS

Rabindra Bhattarai*

1. Introduction The term 'juvenile' is in use from 1660s to mean 'pertaining to or suited to youth' as a noun form and as an adjective since 1816 (recorded as juvenile delinquency)1. The United Nations Minimum Standards for the Administration of Juvenile Justice ("The Beijing Rules"), 1985 has given a defi nition of Juvenile as "a child or young person who, under the respective legal systems, ma be dealt with for an offence in a manner which is different from adult."2 The Convention on the Rights of the Child (CRC), 1989 has laid down a standard in defi ning child as "every human being bellow the age of eighteen years"…3

The term 'justice' is a broad term 'and is about fairness, moral rightness, and a system of law in which every person receives his due from the system including all rights both natural and legal. Justice refers to the maintenance or administration of what is just especially

* Advocate1 OED. (2016). Online Etymological Dictionary. Available at www.

etymonline.com (Accessed on June 14, 2016).2 United Nations. (1994). Hunan Rights: A compilation of International

Instruments, Vol. I (fi rst part), New York and Geneva: United Nations Publications. p. 357.

3 Ibid. p. 175.

213JUVENILE DELINQUENCY

by the impartial adjustment of confl icting claims or the assignment of merited rewards or punishments; the administration of law; the quality of being just, impartial, or fair; the principle or ideal of just dealing or right action; conformity to this principle or ideal: righteousness, the quality of conforming to law; and conformity to truth, fact, or reason.4

Juvenile justice is a part of justice mechanism for children as whole, children in the need of care and protection, and children in confl ict with law. Therefore, every human being who has not attended the age of eighteen years is a subject of juvenile justice and juvenile justice is a mechanism of adjudication and dispensation of social and correctional justice to the young members of society. With above notion of juvenile justice, this part focuses on summarizing Nepal's historical perspective of juvenile justice, the principal perspectives of current laws, policies and plans in Nepal.

2. Historical Perspective of Juvenile Justice in NepalNepal's justice system has a background with high infl uence of Hindu justice system. In ancient times 'BARNASHAM', was one of the main mechanism to shape people's social behaviours. SAMA (Alerting and Warning), DANA (Donating), DANDA (Punishing) and BHEDA (Banishment) were considered as means of control and BRAMHACHARYA, GRIHASTHRASHRAM, BANAPRASTHA and VAIRAGYA were considered as four pillars of protection of interest5 by which human conducts were regulated.6

Under this system, 'as long as child would not attain to the age of eight s/he would be known a new born babe.'7 At the age of eight years child would enter into BRAHMACARYA (Studentship), the life of education with preceptor leaving the family and do good unto it by deeds, mind and words8. Life till

4 Merriam Webster. (2016). Merriam Webster Dictionary. Available at www.merriam-webster.com (Accessed on June 14, 2016)

5 K.L. Joshi, (Ed). (2006). Sixteen Minor Smritis. Vol. 2. Delhi: Parimal Publications. p. 49. [;fdfB'kfo;fWofTjfRrt'M ;fwg pRot], rt'0ff{df>df0ff+ r /Iff0fft\ ; rt'lx{tM -gf/b:d[ltM !÷!@_]=

6 B.K. Swin. (2065 B.S). NARADASMRITI. Varanasi: Chaukhamba Sanskrit Sansthan.7 Ibid. p. 49.8 Ibid. p. 9.

214

Juvenile Justice: National Laws, Policies and Plans

JUVENILE DELINQUEJUVE

reaching the age of 25 years was referred as BRAMACHARYA. Manu has recommended for 36 years taking knowledge and entering into the domestic mode of life9. Only then the human could be considered as mature.

BRAMACHARYA was considered as phase of learning and high disciplinary control was recommended for this period to train the young people for the preparation of public life. Role of education and control was left upon the hands of preceptor. State (the King) had responsibilities to take care of orphan or abandoned children where found only then had responsibility to take care. 'The King had to administer the property of children who are not of age for legal actions and such minor would be treated as adult when comes of age.'10 'A Preceptor should have admonished disciple without beating or infl icting any kind of corporeal punishment.'11

These notions of Hindu traditions are refl ected in different chapters of Muluki Ain (National Code), 1910 (1853) chiefl y in Delinquency of Children12, Poor and Bankrupts13 and Accidental Homicide.14 The chapter Delinquency of Children had described different modes of purifi cation process in faults or delinquencies committed by children of different castes. Clause 8 and 9 had dealt with criminal liability for juveniles. Clause 8 had exempted children below the age of 12 years in all faults and crimes including culpable homicide committed by them. It had also indicated to inquire such delinquent children in appeasing manner and also prohibits scolding in inquiry. Same clause had provided that if any child commits the crime of culpable homicide in an instigation of an adult and if such adult admits the instigation, then the adult would receive capital punishment and child would be imprisoned for one month.15

9 Tilak Prasad Luitel. 2061 (B.S.). Manusmriti. Kathmandu: Pairavi Prakashan. p. 43. [ifl6\qbzflAbs+ ro{ u'/f} q}j]lbs+ a|td\ . -dg':d[ltM #÷!_.]

10 Supra Note 5. p. 375. 11 Ibid. 12 afnifsf] tS;L/ .

13 u/Las+ufn .

14 eljtJodf Hofg dfg{\ofsf] .

15 HMGN. (2022 B.S.). Shree Panch Surendravikram Shahadevka Shasankalma Baneko Muluki Ain (Nepali Version), Kathmandu: His Majesty's Government, Ministry of Law and Justice. p. 417.

215


ENCYENILE DELINQUENCY

Clause 10 of the same chapter had dealt with sexual faults. Sexual intercourse committed by the boy below the age of 11 years and girl below the age of 10 were exempted from criminal liability and regarded their chastity unquestioned. If it was within the same caste no remorse was even prescribed for. Such children would be scolded in such case.16

Clause 1 of the chapter on Accidental Homicide had not exempted the adult offenders for accidental homicide happened against the adult but it had not exempted in case of such homicide against children. Even if a child below the age of 12 would have died as a result of a slapping by an adult, the adult would have to bear full criminal liability.17

The provision of care and protection of children were also laid down in legal provision. Clause of chapter 'Virtues sacrifi ce of wife'18 had prohibited women below the age of 16 to sacrifi ce herself with her dead husband. Similarly, Clause 2 had prohibited women for such sacrifi ce if she had children (son below 16 years or daughter below the age of fi ve years) to take care.19

Abandoned or children in need of care and protection were given protection under state's cost. According to Clause 6 of the Poor and Destitute, if the children below the age of 12 were noticed to be found that they had no guardians to look after and no property for livelihood, the offi cer at administrative headquarters would be responsible to take care and provide their livelihood in state's cost. If an infant would be found whose mother could not been identifi ed that child would be taken as responsibility of state and giver care and protection by state's agent or administrator under state's cost.20

The Civil Rights Act, 2012 (1955) indicated some of the humanistic thoughts and incorporated sense of child rights perspective. Section 3 of the Act has guaranteed equal protection of law to the citizens, subject to provisions of

16 Ibid. 17 Ibid.18 ;lt hfGofsf] .

19 Supra Note 15. 20 Ibid. p. 419.

216



prevailing laws and Section 5 has granted powers to the government "to make special provisions for including... children.... ".21 It can be observed a provision of preventing recruitment of a child of the age below 14 to the work of factory or mine in Section 14 of the Act.

Prior to the promulgation of new Muluki Ain (National Code), 2020 (1963) and Prison Act, 2019 (1963), in the old Muluki Ain (National Code), Number 6 of the Chapter of Punishment had provided that except otherwise mentioned in Acts, a child below the age of 8 years would be completely freed from subjection to punishment; if a child below the age of 12 years committed a fi nable offence would be freed after admonished and if committed an offence with punishment of imprisonment would be held in prison without any measures of restrain for a period up to the one month maximum; and if a child of the ages between 12 to 16 years committed an offence would be sentenced to the half of the punishment that would be imposed to an adult22.

Further, Number 20 of the Lockups and Prisons (Khor-Jhelkhana) of the same Muluki Ain (National Code) had provided that if a child up to the age of 12 is held in prison as a result of committing an offence, parents or relatives of such child would be allowed to live in prison for taking care of the child23.

Promulgation of new Muluki Ain (National Code), 2020 (1963) is an important event in history of law in Nepal. It founded a set standard for punishing children and juvenile in case of criminal procedure. It prescribed the differential punishment for an offence committed according to status of the age of offender. By its fi rst amendment, it exempted children below the age of eight years from any kind of criminal liability. It also prescribed a punishment of scolding in case of fi ne for the children up to the age of 12 years in case of offence where offender would be fi ned. It also prescribed up to two months of imprisonment

21 LBMB. (2068 BS). Ain Sangraha Khanda 4 (Body of Nepal Acts, Part 4). (Nepali version). Kathmandu: Government of Nepal, Ministry of Law and Justice, Law Books Management Board.

22 Gorkhapatra Press. (2009 BS). Muluki Ain (First Part). Kathmandu: Gorkhapatra Chhapakhana. p. 190.

23 Ibid. p. 256.

217



for this age group in case of offence where offender would be sentenced for imprisonment. The age group between 12 years to 16 years would be liable for half of the punishment as to the adult according to this provision.24 These provisions of new Muluki Ain (National Code), 2020 (1963) remained effective in Nepal till promulgation of the Children's Act, 2048 (1992).

3. Present Legal RegimeIn 1990, Nepal ratifi ed the Convention on the Right of the Child (CRC), 1989 and accessed many of the international human rights treaties then after. Ratifi cation and accession of international human rights treaties were acceptances of harmonizing national legal system by making them compatible with international standards of juvenile justice in Nepalese jurisdictions.

3.1 Constitutional ProvisionsThe Constitution of the Kingdom of Nepal, 2047 (1990) was the fi rst supreme law of the land that recognized in its preamble that it was enacted to guarantee basic human rights of every citizen of Nepal. Article 11 of the Constitution had guaranteed right to equality among the citizens and equal protection of laws. This Article had also guaranteed non-discrimination and provided that "special provisions may be made by law for the protection and advancement of the interests of ... children..."25 Article 20, providing guarantee against exploitation, had ensured that no minor would be employed to work of factories or mine or caused engaged in other hazardous work.26

1990 Constitution had also laid down state policy to safeguard children. Article 26(8) had stated that state makes 'necessary arrangement to safeguard the rights and interests of children' and ensure that they would not be exploited and gradually makes arrangement for free education.27

24 HMGN. (2043 B.S.) Muluki Ain. Kathmandu: His Majesty's Government, Ministry of Law and Justice, Law Book Management Committee.

25 LBMB. (2001). The Constitution of Kingdom of Nepal, 2047 (1990) (English version). Kathmandu: His Majesty's Government, Ministry of Law, Justice and Parliamentary Affairs, Law Books Management Board. p. 7.

26 Ibid. p. 13. 27 Ibid. p. 16.

218



The Interim Constitution of Nepal, 2063 (2006) was brought as advance successor of political changes replacing 1990 Constitution. This constitution made more progressive provisions recognizing child rights as fundamental entitlements of children. Article 22 of it provided that:

Rights of the Child: (1) Every child shall have the right to his or her identity and name.(2) Every child shall have the right to nurture, basic health and social security. (3) Every child shall have the right against physical, mental or any other form

of exploitation. Such exploitative act shall be punishable by law; and any child so treated shall be given such compensation as may be determined by law.

(4) The helpless, orphan, mentally retarded, confl ict victim, displaced, vulnerable and street children shall have the right to get special facilities from the State for their well-ascertained future.

(5) No minor shall be employed to work in any factory, mine or engaged in any similar other hazardous work or used in army, police or confl ict.28

Further, this Constitution brought children within the ambit of social security. Article 35(9) commanded the state to adopt policy in their favour and stated: "(t)he State shall pursue a policy of making special provision of social security for the protection and progress of the ... orphans, children..."29

The Sovereign People of Nepal, through the Constituent Assembly, promulgated a fresh mandated supreme legislation of the country named Constitution of Nepal on 20 September 2015. The Constitution of Nepal, 2072 (2015) is brought to fulfi l the aspirations for sustainable peace, good governance, development and prosperity through the federal, democratic, republican, system of governance. This latest form of the supreme legislation has continued the previously existed provisions in favour of interest of the children.

28 LBMB. (2013). The Interim Constitution of Nepal, 2063 (2007) (Nepali version). Kathmandu: Government of Nepal, Ministry of Law, Justice, Constituent Assembly and Parliamentary Affairs, Law Books Management Board (LBMB). pp. 7-8.

29 Ibid.

219



Article 18 of the Constitution articulates right to equality and provides way forward to make special provisions for protection, empowerment or development of the citizens including children. Article 39 provided separate fundamental entitlements to the children including the right to child friendly justice with following guarantees:

(1) Each child shall have the right to name and birth registration along with his or her identity.

(2) Every child shall have the right to education, health, maintenance, proper care, sports, entertainment and overall personality development from the families and the State.

(3) Every child shall have the right to elementary child development and child participation.

(4) No child shall be employed in any factory mine, or engaged in similar other hazardous works.

(5) No child shall be subjected to child marriage, transported illegally, abducted/kidnapped, or taken in hostage.

(6) No child shall be recruited or used in army, police or armed group, or be subjected, in the name of cultural or religious traditions, to abuse, exclusion or physical, mental sexual or other form of exploitation or improper use by any means or in any manner.

(7) No child shall be subjected to physical, mental, or any other form of torture in home, school, or other place or situation whatsoever.

(8) Every child shall have the right to child friendly justice. (9) The child who is helpless, orphan, with disability, confl ict victims displaced

or vulnerable shall have the right to special protection and facilities from the State.

(10) Any act contrary to Clause (4), (5), (6) and (7) shall be punishable by law, and child who is victim of such an act shall have the right to obtain compensation from the perpetrator in accordance with law.30

30 LBMB. (2015). The Constitution of Nepal, 2072 (2015) (English version). Kathmandu: Government of Nepal, Ministry of Law, Justice and Parliamentary Affairs, Law Books Management Board. pp. 22-23.

220



The provisions under Article 39 of the Constitution are representative of Articles 37, 39 and 40 of the CRC. From the perspective of juvenile justice, Clause 8 places more signifi cance as it relates many of the other provisions of the Convention. The concept of child-friendly justice may be perceived as an abstract and theoretical idea, however, that is not true. The notion of child-friendly justice refers not only to children in confl ict with law but to children who come into contact with the justice system. The simplest way of understanding the notion of child-friendly justice is that it is an environment offered to child physically safe, emotionally secure and psychologically enabling in course of and by the means of justice.

Children come into contact with justice system in many different ways from family matters such as divorce or adoption and criminal justice matters as victims, witnesses or children in confl ict with law. When faced with the justice system, there is high potentiality that "children are thrown into an intimidating adult world which they cannot understand. Adapting justice to their needs is therefore necessary."31 A situation that children facing justice system calls for a remarkable shift in interacting with children that Court may be a powerful tool to shape children's lives in positive and constructive way. It also demands to recognize that contact with the legal system is often a source of additional trauma than a remedy for children.

Child-friendly justice introduces principles that empower children to enforce their rights and encourages Government, Court, and Law Enforcement Offi cials to develop and implement policies that address children's precarious situation in the justice system.32 It asks to minimize the challenges that children face at each step in each aspect of a legal proceeding having a thorough assessment and to build confi dence that justice resolves children's issues rather than enlisting them as problems. Adopting child-friendly justice eliminates traumatic experiences children face and fosters greater respect for their rights.

Child-friendly justice refers to "justice systems which guarantee the respect

31 CRIN. (2017). Child-Friendly Justice and Children's Rights. Child Rights International Network (CRIN). Available at https://www.crin.org (Accessed on June12, 2017).

32 Ibid.

221



and the effective implementation of all children's rights at the highest attainable level, bearing in the mind ... giving due consideration to the child's level of maturity and understanding and the circumstances of the case. It is in particular, justice that is accessible, age appropriate, speedy, diligent, adopted to and focused on needs and rights of the child including right to due process, to participate in and understand the proceedings, to respect for private and family life and to integrity and dignity."33

Child-friendly justice is applicable to children who come in to the contact of law, either as victim, witness, subject or party of disputed issues in course of civil, administrative or judicial proceedings.

Whether children come into contact with the law as victims, witnesses, offenders or complainants, it is equally important that they are met with a system that understands and respects both their rights and their unique vulnerability.34 It provides children the full access to justice they need and brings to an end of violations of these rights forward.

The notion of child-friendly justice requires effective enforcement of non-discrimination, the best interests of the child as a primary consideration, non-separation from parents subject to exception, encouraging child to express opinion and respect thereto, protection against abuse, neglect, torture and detrimental treatment of any kind, rehabilitative care and fair trial protections during judicial and administrative proceedings of justice system.

Article 43 has granted right to social security for children and such social security of the child is to be managed by law. Article 51(i) of the Constitution has laid down policy regarding labour and employment and clearly expressed: State abolishes "all forms of labour exploitations including child labour."35 In the policies relating to social justice and inclusion, the Constitution has specifi ed policies in relation to the fate of children: ... (4) to evaluate economically

33 CoE. (2010). Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice. Adopted by the Committee of Ministers of the Council of Europe on 17 November 2010. Council of Europe Publishing. p. 17.

34 Supra Note 31. 35 Supra Note 30. p. 39.

222



the work and contribution such as maintenance of children and care of families, and (5) to take into consideration primarily of the best interests of the child.36

The Constitution has not made any particular constitutional body to oversee, monitor and encourage enforcement of child rights including juvenile justice system. However, Article 248(6)(b) has recognized that person involved in the fi eld of the protection and promotion of rights and interests of the child37 could be the member of National Human Rights Commission. It indicates that child rights and even issue of the right to juvenile justice is a matter of oversight and monitoring as human rights in general.

Previous and present any of the Constitutions has not defi ne the term child or children; however, as Articles 84(5), 176(5) and 222(5) have recognized that citizen, completed the age of eighteen years shall have right to vote for federal, provincial and local elections for the representation, it is obvious that the Constitution considers persons, not completing the age of eighteen years, are children.

Beyond above specifi c provisions in the Constitution, from juvenile justice perspectives, the provisions contained in the part 3 of the Constitution, i.e., fundamental rights and duties are relevant and may be attracted in courses of administration of justice. Right to live with Dignity (Article 16), right to freedom of opinion and expression (Article 17.2.a), right to equality and equal protection of law (Article 18), right to communication (article 19), right to fair trial and justice (Article 20), right against torture and ill treatments (Article 22), right to freedom of religion (Article 26), right against any form of exploitation (Article 29), right to education (Article 31), right to health (Article 35), right to food (Article 36) are enjoyable rights of the children in confl ict with law. If the juveniles are victims of an offence, along with above rights they deserve rights of victim of crime as well (Article 21). 3.2 Statutory ProvisionsChildren's Act, 2048 (1992) is the principal legislation that articulates the

36 Ibid. p. 40.37 Ibid.

223



notion of juvenile justice system of Nepal. This law was promulgated aiming at separation of juvenile justice from traditional criminal justice approach. Therefore, this law is found to be incorporating some notions of juvenile justice accepted as its international standards.

It was essential to clarify the scope of juvenile justice while promulgation of this statute, however, it has not clearly articulated the scope of juvenile justice specifi cally. The Act in its Section 55 states that the Government of Nepal constitutes Juvenile Courts as necessary and specifi es their territorial jurisdiction and seat of offi ce. Sub-section 2 of the same Section has provided Courts subject matter jurisdiction as to "fi rst initiate and decide cases in which a child is either a plaintiff or defendant."38 It means that whether the case is civil or criminal that is subject matter jurisdiction of the Court. Yet, no Juvenile Courts in accordance with this provision are constituted and District Courts are handling the cases through Juvenile Benches in accordance with the Sub-sections 3 and 4 of the same Section. However, the rules framed to provide procedures of Juvenile Bench deals about children in confl ict with law alone (see in 4.3 in details).

Determination of age of the criminal liability is a central of concern of juvenile justice. In this regard, Children's Act, 2048 (1992) sets as following: Section 11: Children and Criminal Liability

(1) If a child below the age of 10 years commits an act which is an offence under a law, he shall not be liable to any type of punishment.

(2) If the age o f the child committing an offence which is punishable with fi ne under law, is 10 years or above and below 14 years, he shall be admonished and convinced and if the offence committed is punishable with imprisonment, he shall be punished with imprisonment for a term which may extend to six months depending on the offence.

(3) If a child committing an offence is 14 year s or above and below 16 years, he shall be punished with half of the penalty to be imposed under law on a person who has attained the age of majority.39

38 CCWB. (2016a). Children's Act, 2048 (1992). p. 29. Available at www.ccwb.gov.np (Accessed on June12, 2016).

39 Ibid. pp.5-6.

224



Reformative approach in holding juveniles responsible for their delinquencies is another gray area that Children's Act, 2048 (1992) aims at stressing as a notion of juvenile justice. Section 15 prohibits imposing rigorous punishment to any child. The Section says:

Notwithstanding anything contained in the existing laws, no Child shall be subjected to handcuffs and fetters, solitary confi nement or be committed to live together in prison with prisoners having attained the age of majority in case a Child is convicted for any offence.40

Further the Act has envisaged establishment and operation of separate juvenile reform homes. Section 42 states that Government of Nepal establishes and operate Juvenile Correction Homes as required where particularly 'children accused of any offence and to be imprisoned pursuant to existing law for investigation or adjudication, and children to be imprisoned having been punished with imprisonment punished to existing law' (Section 42.2. a. and b.)41 are held in.

Adjudicatory approach appropriate juveniles to protect best interest of those subjected to investigation, prosecution or adjudication and enforcement accountability is another feature that Children's Act, 2048 (1992) prompted to adopt. Several provisions have attempted to address safeguarding best interest juveniles in deliberation of the law enforcement. As mentioned above, Section 15 provides protection to juvenile against handcuffi ng or keeping in solitary confi nement even during investigations. Further, the judicial deliberation of the juvenile cases are not left only under an adjudicatory role of the Court to decide whether the alleged juvenile infringed penal law, but obliged the Court to take into the account of his/her psychosocial condition. This is refl ected in Section 55, where its Sub-section 5 ensures composition of a Juvenile Bench having Social Worker, Child Specialist or Child Psychologist in addition to a Judge. Section 19 of the Act makes it clear that legal representation on behalf of juvenile defendant is mandatory. It says: "(t)he Court shall not entertain or decide a criminal charge brought against a Child unless there is a legal practitioner to defend the Child."42

40 Ibid. p. 7.41 Ibid. p. 22.42 Ibid.

225



Additionally, the Act provides further protection to the juvenile subjected to the administration of justice. Section 49 of the Act commands to keep the proceedings of the juvenile cases out of the public exposure. Section 49(1) permits only legal practitioner, parents/guardian of child and person permitted by the Judge to be present in the proceedings of the cases related to a child under the Act or prevailing other laws. The Act directs for the maintaining confi dentiality of the information regarding the children as well as the case deliberated.

Section 52 of the Act instructs the police offi ce to "keep the statistics of the child apprehended on the charge of any offence in confi dential manner."43 Such statistics might be used for study or research work using age and sex as variables but without disclosing the personal names or addresses of the child that may expose his/her identity.

The Act recognizes that juveniles may not be considered as criminal even if s/he infringed with penal law under the status of juvenile. Section 12 of the Act denies counting offence committed in childhood to be counted as criminal and law may not disqualify in enjoining facility under law in adulthood by the reason of committal of a delinquency in juvenile status. Further, there is redemption from additional punishment for repeating crime.

Preferring alternative measures in holding accountable the juveniles in confl ict with law is another crucial feature of juvenile justice norms that Children's Act, 2048 (1992) has adopted. The options managed by Section 50 are very important from this perspective. The Section reads:

Investigation of case and suspension of punishment: (1) In case the offi cer hearing the case deems it not appropriate to keep a child in

prison (juvenile reform home?) having considered to the physical condition, the age of the accused child who is to be investigated having detained in prison pursuant to existing law, circumstance s during the time of commission of the offence and the place of imprisonment, he may issue an order to handover

43 Ibid. pp. 26-27.

226



the child to the custody of his father, mother, relatives or guardian or any social organization engaged in protection of rights and interests of the child or the Juvenile Correction Home on the condition to present him as and when required and to continue investigation or proceedings o f the case.

(2) In case the offi cer hearing a case deems it not appropriate to imprison a child convicted of an offence and imposed a sentence of imprisonment in a prison having regard to his physical condition, age, circumstances in which the offence has been committed and times of commission of the offi ce, he may suspend the sentence to the effect of not undergoing the sentence for the time being or he may prescribe to undergo the sentence residing in a Juvenile Correction Home or in guardianship of any person or organization. In case the same child having had his sentence suspended in such a way is convicted of the same offence or any other offence and is imposed a sentence of imprisonment within a period of one year, the offi cer hearing the case may order to execute the sentences of punishment having added the earlier sentence imprisonment.44

The provisions applicable in course of investigation, prosecution or administration of justice are provided in Police Act, 2012 (1955); Government Cases Act, 2049 (1992); Muluki Ain (National Code), 2020 (1963) and other statutes that are in force. However, the above mentioned provisions and standards of the Children's Act, 2048 (1992) supersede and govern the other provision and they are required to be applied with the compatibility to these.

Section 50 of Children's Act seems to be golden provision from the perspective of settling the allegation and liability to be borne by the accused child. Section 50(1) desires to protect child from the potential detrimental effect of secured institutional placement of an accused child and allows the Court to prevent contamination of such person with other persons to held sentenced. Section 50(2) allows the Court to use alternative sentencing options avoiding imprisonment and its detrimental effects to children.

The provisions have given great judicial discretionary powers in seeking alternative measures that may mend the child from bad behaviour and may

44 Ibid. p. 26.

227



nurture good behaviours. While consideration of the case in pre-trial phase, the Court may choose any of the options amongst from the following that fi ts with the specifi c conditions of the accused child:

Allow the child living with parents or guardian and cooperate the investigation and prosecution process;

Allow the child living with parents or guardian under care and guidance order;

Allow the child to continue education in his or her normal school and give an order to school administration to report the conducts of the child;

Allow the child living with parents or guardian and order any organization to liaise with the investigation or prosecution authority for the proceeding; and

Any other options deemed appropriate.

While consideration of the case in trial phase, the Court may choose any of the options amongst from the following that fi ts with the specifi c conditions of the accused child and dispose the case:

Verbal and/or written admonition or reprimand; Conditional discharge with parental care or care and guidance of

guardians; Orders for group participation or counselling; Restitution order; Suspending the liability; Probation order; Judicial supervision order; Community service order; Referral to attendance centre or authority; House arrest and limitation to the location of movement; and Some combination of options listed above or any other non-institutional

placement option.

While consideration of the case in post trial phase, the Court may choose any of the options amongst from the following that fi ts with the specifi c conditions of the accused child:

228



Replacing institutional sentence to half-way houses; Educational release; Release in parole; Remission.

The Court may use its discretion with above options as they are internationally recognized as disposition measures in juvenile cases. Rule 18 of the Beijing Rules, 1985 desires adoption of "large variety of disposition measures" fl exibly to "avoid institutionalization to the greatest extent possible."45

3.3 RulesFollowing the promulgation of the Children's Act, 2048 (1992); Children's Rules, 2051 (1995) was formulated aiming at implementing the Act conveniently. However, these rules made no specifi c provisions in relation to implement the juvenile justice provisions exited in the Act. The rules provided regulatory frameworks for executing and operating broader welfare of children as a whole. The "provisions relating to functions duties and powers of the Central Child Welfare Board; appointment and functions, duties and powers of Executive Director, ... District Child Welfare Board, Children's Welfare Offi cer"46 as well as formation of various homes including Juvenile Correction Home.

Even though Children's Act was promulgated in 2048 (1992), shaping the administration of juvenile justice under its line took a long period. Government of Nepal formulated rules of juvenile justice procedures only in 2006. Exercising the powers conferred by Section 58 of Children's Act, 2048 (1992), Government of Nepal framed "Juvenile Justice (Procedure) Rules, 2063 (2006)" and was enforced by September 5, 2006.

The Juvenile Justice (Procedure) Rules, 2063 (2006) serves as leading rules of procedures and provides guidelines even other procedural rules applicable under administration of justice in cases of juveniles. Rule 3 requires the

45 AJAR. (2009). Human Rights Standards on Criminal Justice. Kathmandu: Access to Justice and advocacy of Rights (AJAR) Nepal. p. 190.

46 Laxmi Prasad Mainali. (2016). Juvenile Justice System in Nepal. Kathmandu: Pairavi Prakashan. p. 134.

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investigation authority, particularly, the Police Offi ce to designate separate unit with qualifi ed police offi cials in every police offi ce for inquiring and investigating juvenile delinquency cases under the jurisdiction. Juvenile Police Unit under Rule 3 shall follow some specifi c standard procedures while performing inquiry or investigation of juvenile cases.

Juvenile PolicingRule 4 has provided that the police, while inquiring or investing a juvenile require being in plain clothes and not in a police uniform; introducing oneself by showing the identity revealing documents, and show cause for the apprehension while apprehending the child; informing the child of his/her legal and constitutional rights in the language understood by him/her; inform both the parents of the child as far as possible about the delinquencies allegedly committed by the child; causing get the physical and the mental health of the child examined by nearest government hospital or by the doctor; and undertaking legal proceedings including making public recognizance, having presence of the parents as far as practicable.

One signifi cant departure of the investigation procedure from ordinary investigation is a provision of social inquiry report to be carried out. Rule 4(g) requires the police offi cial to "request the service provider individual or institution to prepare a social study report about the delinquent in the manner in format prescribed in the Schedule."47

Child-Friendly InvestigationRule 5 of the Rules sets the standards for interviewing and treating children. While exacting information from the child, the police require to provide a child friendly environment (settings and conditions convenient to the child without any fear or feeling of adversity or so felt by the child without sense of being offended). The Rule stresses "to enable child to answer the matters asked to him/her.48

47 Nepal Law Commission. (2016). Juvenile Justice (Procedure) Rules, 2063 (2006). Nepal Law Commission. p. 2. Available at www.lawcommission.gov.np (Accessed on Jule 12, 2016).

48 Ibid. p. 3.

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Interrogating, interviewing or asking a child about the event or the alleged delinquency is to be done in presence of the parents, guardian or a lawyer. The rule requires the authority to ask family and social background of the child while such interview not only the information about the alleged delinquencies. The Rule is sincere in time factor that a child may talks in the issues conveniently. Rule has put limitation of an hour of timeframe taking to a child at a time. Rule 5(4) alerts the authority that "(a) child shall not be inquired for a period longer than an hour at once and shall not be inquired at night too"49.

Formation and Functionality of Juvenile Bench Rule 6 provides formation of Juvenile Bench. The Rule requires each District Court to constitute a Juvenile Bench comprised of a District Judge, a Social Worker, Child Specialist or Child Psychologist. In a District Court where Judges remain more than one, the Chief Judge designates a Judge of the Juvenile Bench.

Rule 7 provides a special provision to represent a juvenile justice standard that the Court or Bench has to give copy of the charge-sheet and documents relevant to the parents or guardian of the juvenile where a charge-sheet against a juvenile is lodged or registered at the Court. If parents or guardians are unavailable or unwilling to receive the documents, the Court/Bench has to provide those to the lawyer who is assigned or representing the alleged juvenile. Parents or guardian may present before the Court/Bench in person in obtaining notifi cation of the charges lodged against their children.The Rules also provides required qualifi cations, service terms and removal of the Social Worker, Child Specialist or Child Psychologist of Juvenile Bench. A trained person in the relevant discipline and having minimum qualifi cation of certifi cate level may be the candidate for serving the Bench.

The Rules have also set a system of selection of a Social Worker, Child Specialist or Child Psychologist. District Court issues a public notice and call for application from among the qualifi ed candidates. After having shortlisted the potential candidates in a roster, District Court require sending it to Ministry

49 Ibid.

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of Women, Children and Social Welfare and the Ministry after receiving advice from the Supreme Court, appoints those deemed to be competent pursuant to Sub-section (5) of Section 55 of the Act from among the potential persons from roster. These Social Worker, Child Specialist or Child Psychologist appointed for Juvenile Bench receives facilities as prescribed by the Government of Nepal. However, District Judge is empowered to appoint another Social Worker, Child Specialist or Child Psychologist among from the roster where existing seems to be incompetent or denies to hear a case (Rule 9(6).

Social Worker, Child Specialist or Child Psychologist of the Juvenile Bench may be removed from the responsibilities of the Bench if displays an improper conduct, or incompetency to work, or abuse of authority or fails to be present in the Juvenile Court or Bench regularly for three times. S/he may be voluntarily leaving the position as well.

The hearing takes place in child friendly environment. Language appropriate to the child's age, and his/her physical and mental development is used for the deliberation. The Bench brief about the nature of the alleged offence and the obtained evidence and witnesses against and in favour.

Rule 12 requires arranging separate room with an affi xed camera within the Juvenile Court or the District Court for dealing with the juvenile and kept the child out of public exposure while the deliberation and the inquiry shall be displayed on the screen of the Bench. Only parents, guardian and lawyer of the alleged juvenile offender may stay with him/her.

The Judge, Social Worker, and Child Specialist or Child Psychologist collectively hear the juvenile cases. However, in the absence of all or some among the Social Worker, Child Specialist or Child Psychologist may not prevent to continue the proceeding of the case and proceeding executed by the Judge shall be valid. On the submission of written opinion by Social Worker, Child Specialist or Child Psychologist, the Judge judicially considers the case and pronounces the judgement of the Bench.

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Specifi c Standards of Evidence ExaminationThe Rules have set some specifi c standards in terms of examination of the evidence and witness. Rule 13 requires the Bench to issue an order causing Social Inquiry Report through service providing person or institution if such report is not presented along with the charge-sheet. The Rule allows anyone who has evidence that negates the charge brought against the juvenile to apply adducing such evidence. If the alleged juvenile desires "to present his/her witness by himself /herself in the Juvenile Court."50 Rule 14 allows such submission of the witness and the Bench may permit to summon such witness. Such witness enjoys the facilities provided in accordance with the Government Cases Rules, 2055 (1999).

If dispute is arisen on the issue of the age of the juvenile, the Court or Bench determines the age on the basis of following documents:

Birth certifi cate issued by the hospital; Birth registration certifi cate issued by Local Registrar; Character certifi cate issued by school with mention of date of birth; or Age determination report issued by government hospital after medical

examination51.

Timeframe for Disposal of Case and Juvenile SentencingA clear departure from the ordinary procedure for juvenile case is made by the Rules in terms of the time period for the disposal of the case from the initial jurisdiction. Rule 16 has limited the Bench to make decision of the juvenile cases within hundred and twenty days of the registration of the case before the Court. Similarly, from the sentencing perspective the Rules has taken a signifi cant departure. Rules provide space for applying measures of correction rather than traditional approach of imposing sentence to the juveniles. Rule 17 points that not the sentence is to be passed rather to mention the "(m)ethods to be applied to correct the child and description of compensation or fi ne, in case if it is to be paid or submitted."52 The rules have made a provision of availing copy of settlement judgment without cost to the juvenile.

50 Ibid. p.7.51 Ibid.52 Ibid. p.8.

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CoordinationThe Rules have provided a Juvenile Justice Coordination Committee at national level. The Committee coordinates different agencies relating to juvenile justice operations. A Judge of the Supreme Court designated by the Chief Justice chairs the Committee and Deputy Attorney General, Secretaries - Ministry of Law, Justice and Parliamentary Affairs; Home Affairs; Women, Children and Social Welfare or Gazetted First Class Offi cers designated by secretaries, Additional Inspector General of Police - Police Headquarters, Director–Central Child Welfare Board, and a representative from among the institutions working in the fi eld of children nominated by Central Child Welfare Committee are members of the Committee. Registrar of the Supreme Court serves as Member Secretary of the Committee (Rule 22).

The Committee is authorized for: advising and counselling the Government of Nepal on legal and policy

matters for strengthening and developing juvenile justice system; coordinating with or cause to coordinate with the different programs being conducted in various national and international organization which are involving in the fi eld of child right and juvenile justice system in Nepal;

conducting capacity enhancing programs for various governmental and nongovernmental individuals and entities participating in the juvenile justice dispensation on the new dimensions and programs being developed in the fi eld of juvenile justice for the speedy and effective dispensation of juvenile justice;

requesting the Government of Nepal to include contents related to child rights and juvenile justice in the syllabus of schools, universities as well as various other educational institutions; and

carrying out or cause to carry out functions related to supervision and management of standards of services and functions executed by entities participating in the juvenile justice dispensation.

Central Child Welfare Board hosts the secretariat of the Juvenile Justice Coordination Committee (Rule 23) and an offi cer level employee from judicial service performs administrative affairs of the secretariat (Rule Rule 22(6).53

53 Ibid. p. 12.

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In course of investigation, prosecution and disposition of criminal cases, provisions existed in the Police Act, 2012 (1955); Government Cases Act, 2049 (1992) and Government Cases Rules 2055 (1999) are applied in the matters not covered by Juvenile Justice (Procedure) Rules, 2063 (2006).

4. Strategic Plan and PoliciesConstitutional and legal arrangement alone may not be suffi cient to operate juvenile justice system. To operate it systematically and smoothly operation of the legal regime should be supported by periodic developmental strategic plan and policies.

(i) National PlanNational Plan is one of the major issues that address most of the plans and programmes run under the state's framework of a country. Currently Nepal is completing its Thirteenth National Plan 2013/14–2015/16 and preparing for Fourteenth Plan. Thirteenth Plan mentions "protecting and promoting overall rights of children and eradicating all forms of violence and abuse against children"54 as an objective of the development plan.

(ii) National Children Policy On 16 April 2012, Government of Nepal, Council of Ministers adopted a National Children's Policy, 2069 (2012). The Policy sets a long term aim of "creating an environment for development of personality as a competent and qualifi ed citizen by full enjoyment of child rights by the children of all classes and communities through coordinated collaborative efforts of governmental agencies, local bodies, guardians, teachers and national and international nongovernmental organizations."55 The Policy places "Strengthening Juvenile Justice System" (Objective 7.5) as one of the major objectives. The Policy sets following as juvenile justice policy (Policy 8.49-8.57):

Age of criminal responsibility shall be increased 18 years from existing 16 years making it compatible to international practice;

Arrangement shall made to apprehend juveniles alleged as infringing penal laws only as a last resort without using force and information of such shall

54 Supra Note 46. pp. 136-137. 55 MoWCSW. (2012). National Children Policy, 2069 (2012) (Nepali version). Kathmandu:

Government of Nepal, Ministry of Women, Children and Social Welfare. p. 5.

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be given to their family members and guardians or close relatives for safely keeping with them and the children taken into the control shall be provided with counselling services by making available service from child psychologist;

Juveniles apprehended shall be kept in separate observation room for the time of investigation and a separate unit shall be constituted for investigation and prosecution. Police and prosecuting offi cials engaged in such tasks shall be provided training;

Having improved juvenile justice system, diversion for children in confl ict with the law shall be introduced. Arrangement shall be made for causing reconciliation, counselling, and community settlements, leaving in probation or under parental supervision for delinquent activities of minor nature where the alleged juvenile voluntarily admits and where rehabilitation of the victim is possible. Necessary arrangements shall be made for making the victimized party rewarded with restitutions;

Only juveniles alleged for serious offence shall be taken into the formal judicial course. Every stage of the formal legal proceedings shall be made child friendly. Arrangement shall be made for ensuring parental or family members participation in legal proceedings;

Necessary provisions shall be made for carrying out the juvenile justice based on restorative justice keeping the victims and offender in centre and making reparations to the victims where the accused admits the mistake instead of emphasizing punishing children;

Necessary arrangements for safe and secured movement of child witness shall be made. Separate law shall be made for safety of the witness. Provisions shall be made for carrying out proceedings of juvenile cases shall be taking place in camera, in general.

Importance shall be given in respecting the views of the juveniles in formal legal proceedings;

Provisions shall be made for maintaining personal identity information details of children in confl ict with law making the information confi dential as the public exposure of such information may have long run labelling effects as the delinquency happens due to nature of the age and unknowing the cause, nature and consequences of the act committed and may leave social tag and

236



taboo. Separate legislation shall be made for making arrangements of keeping personal identity information details of children.56

National Children Policy, 2069 (2012) puts some specifi c strategy to materialize above policies on juvenile justice. Section 9 of the Policy has laid down following strategy in terms of pursuing the juvenile justice policy (9.39-9.43):

Timely training and instructions on juvenile justice shall be managed for Judges, Social Workers and Child Psychologists or Specialists who engage in juvenile justice dispensation;

Separate juvenile proceedings for the children who is allegedly engaged in criminal activity along with adult person shall be managed;

Juvenile Correction Home shall be established in each district for keeping children in confl ict with law for the period until they are corrected and rehabilitated;

Timely improvement in law shall be made to establish minimum age of criminal immunity for the children;

A broader dissemination of information about the relevant Acts, Rules and Regulations shall be done with an objective of preventing juvenile delinquency and bringing to the ambit of law where found delinquency committed.57

(iii) National Plan of Action for Children 2004/5-2014/15Government of Nepal on 3 September 2012 approved a National Plan of Action for Children (2004/5-2014/15). The Plan of Action has set overall objectives of: protect all forms of discrimination, exploitation and abuse; and ensure rights of the children especially in diffi cult circumstances including children disabilities, children affected from armed confl ict, street children, child workers and others.58

The Plan of Action has laid down legal reform, capacity development of institutions and human resources, networking, decentralization and collaboration development as the strategy to roll out the actions. The Plan of Action in relation to juvenile justice was as follows:

56 Ibid. pp. 12-13. 57 Ibid. p. 17.58 CCWB. (2016b). National Plan of Action for Children Nepal, 2004/5-2014/15. Government of

Nepal, Ministry of Women, Children and Social Welfare, Central Child Welfare Board. p. 78.

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Objective: Ensure Juvenile Friendly Justice SystemProgrammes:

Establish Children Court in each District; Reform legal and justice System; Sensitization and strengthening of institutions related to children confl ict

with law; Counselling programme to juvenile delinquents; Peer education; Non-formal education, skill training and seed money for children in prison; Rehabilitation/correction/socialization (in home/centres) for needy children

and community family reintegration Socialization process under custody Sensitization for service providers and children Keeping continued the accused children under 16 years in correction homes

Implementing Agencies: Parliament Judiciary Ministry of Home; and Ministry of Women, Children and Social Welfare Development Partners; Nongovernmental Organizations/Community Based

OrganizationsTimeframe:

One yearDevelopment Indicator:

Improved justice to exploited childrenMeans of Verifi cation:

Studies Progress Reports Media Survey

Risk Factor: Lack of fi nancial resources Lack of access to remote areas Inactive stakeholders Confl ict.59

59 Ibid. pp. 82-83.

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(iv) Fourth National Plan of Actions on Human Rights 2014/2015 - 2018/2019Government of Nepal, Offi ce of the Prime Minister and Council of Ministers adopted Fourth National Plan of Actions on Human Rights in July 2014. Among several other issues the National Plan of Actions sets following plan of actions in relation to juvenile justice [3.1.13 Children (Child rights protection, development and Juvenile Justice)]:

Objective: To protect and promote overall rights of children To eliminate violence against children and mistreatment To establish Child Correction Homes in each development region

Programme: Effective implementation of National Children Policy 2012 Review National Action Plan for Children 2005-2015 Establish Child Correction Homes in three development regions where child

reform centre is not existed, e.g., Eastern, Midwestern and Far Western Developmental Region60.

Fourth National Plan of Actions on Human Rights Responsible 2014/15-2018/19 has specifi ed Ministry of Women, Children and Social Welfare as principle agency to implement above actions and Ministry of Home Affairs and other ministries as supporting agencies. These actions are envisaged to be accomplished within fi ve years and establishment and operation of correction homes as indicator of implementation.

(v) Third Five Year Strategic Plan of Judiciary 2014/15- 2018/19Supreme Court has prepared and adopted its Third Five Year Strategic Plan in July 2014. The Plan places "reforming case management system to make dispensing justice effective"61 as one of the principal strategic measures and issues of juvenile

60 OPMCM. (2016).Forth National Plan of Actions on Human Rights, 2016. Government of Nepal, Offi ce of the Prime Minister and Council of Ministers. pp. 95-97.

61 SC. (2016). Third Five Year Strategic Plan of Judiciary 2014/15- 2018/19. Kathmandu: Supreme Court of Nepal. p. 31.

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justice under the 5.2.2.1 Implementing Plan at Policy Level62 and projected to develop juvenile justice as 5.2.2.1 D Specialized Bench and Panel.63 Strategic Plan in this regard is:

Activity Indicator Timeframe Responsibility

Promotion of Juvenile Justice System

Expand juvenile Benches in all districts

Infrastructure of Juvenile Bench

2014-2016 Juvenile Justice Coordination Committee

Take initiative for piloting for establishment of

One Stop Child Justice

Centre

Dialogue with relevant Ministry

2014-2016 Chief Justice in coordination with Juvenile Justice Coordination Committee

Take initiative for establishment of Juvenile Reform Homes in all fi ve regions

Dialogue with relevant Ministry

2014-2016 Chief Justice in coordination with Juvenile Justice Coordination Committee

Make necessary arrangement for establishing monitoring of the delinquents for the period of suspension of sentence of those whose sentenced is suspended

Monitoring Report

2014 onward periodically

Relevant Court

Establish a judicial monitoring of conditions and conducted programmes of reform of children held in Juvenile Reform Homes

Monitoring Report

2014 onward periodically

Relevant Court

62 Ibid. p. 81.

63 Ibid. pp. 82-83.

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JUVENILE DELINQUE

Take initiative for necessary arrangements for adopting concepts of restorative justice, social reintegration and diversion in Juvenile Justice System

Promotion of Juvenile Justice System

August 2015

Chief Justice in coordination with Juvenile Justice Coordination Committee1

Similarly, the Strategic Plan has included basic and refresher training for Judges and employees on Juvenile Justice as a component of strategic plan of promotion of the capacity of human resources; sharing of experience in participation of Child Psychologists and Social Worker;, provide three month training on Juvenile Justice to new Child Psychologists and Social Workers; and protect victim and witness children.64

5. ConclusionThe brief description and information contained in above give an overview of the principal legal framework and offi cial plan, policies and strategies of the state to pursue a juvenile justice system in the direction of the international standards and good practices. For achieving the results optimal, there seems need of proactive efforts of the relevant agencies and actors in materializing above juvenile justice policy and mechanism by legislative changes, budgetary allocations and micro-planning of execution the actions set. Protection of juveniles within state machinery framework alone cannot serve in achieving juvenile justice. Therefore, under legal and policy strategic framework programme for preparing communities to respond juvenile justice issues seems essential with exploring more noncustodial measures to deal with the juvenile cases.

64 Ibid. p.87.

241

International Instruments Relevant to Juvenile Justice

JUVENILE DELINQUENCYENCY

UNIT

VINTERNATIONAL INSTRUMENTS

RELEVANT TO JUVENILE JUSTICE

Laxmi Prasad Mainali, Ph.D.*

1. BackgroundThe Declaration of the Rights of the Child was authored by Eglantyne Jebb in 1923, and fi rst published in Save's magazine, "The World's Children." This was immediately adopted by the Save the Children International Union, and with Jebb's lobbying was then adopted by the Fifth Assembly of the League of Nations in 1924. The 5 paragraph statement on the Declaration of the Rights of the Child later became 7 paragraphs, and in 1959 was the basis for the United Nations Declaration on the Rights of the Child.

There has been great concern for the welfare of children at the international level. Many instruments have been formulated to ensure the rights of the children.1 There have been several international developments in the administration of juvenile justice. It was not until the International Covenant on Civil and Political Rights, 1966 that specifi c provisions regulating the administration of

* Professor in Law and Head, Central Department of Law, T.U.

1 PPR Nepal. (2007). A Critical Analysis of Juvenile Justice System in Nepal (1st ed.). Kathmandu: Forum for Protection of People's Rights, Nepal. p. 14.

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juvenile justice were enshrined in a global treaty.2 International instruments consider children who come into confl ict with law as victims of social hardship, negligence, violence and deprivation. Thus, they require special attention, treatment and care. A wide range of international instruments have provided for an alternative system of juveniles' treatment in matters of their confl ict with laws.3 The United Nations' concept of juvenile justice is derived from its concern for the protection, and physical and mental well-being of juveniles who are, through State intervention, deprived of their liberty. The international instruments which have an important bearing on and a signifi cant relevance to the concept of juvenile justice administration.4

The United Nations declared 1979 as the International Year of the Child (IYC). In 1980, the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders called for the preparation of minimum rules regulating the administration of juvenile justice. The momentum generated by the fi rst South Asian Association for Regional Cooperation (SAARC) Conference on Children in 1980 contributed to the convening of the World Summit for Children in New York in September, 1990. It also led to annual reviews of the situation of children in South Asia as well as declaring 1990 as the South Asian Association for Regional Cooperation Year of the Girl Child and 1991-2000 as the decade of the Girl Child. The United Nations has shown concern for juvenile justice by making various international instruments. In this regard, there are two types of international laws: hard laws and soft laws. Hard laws deal with international treaties having binding force and soft laws deal with international Declarations, Resolutions, Rules and Guidelines having persuasive force. Soft laws are only guidelines for the international community. They have not undergone through ratifi cation process like hard laws. Both laws have been adopted by the United Nations General Assembly (UNGA). The Universal Declaration of Human Rights5 provided the following provisions

2 Asha Bajpai. (2010). Child Rights in India: Law, Policy, and Practice (2nd ed.). New Delhi: Oxford University Press. p. 316.

3 Yubaraj Sangroula. (2005). Concepts and Evolution of Human Rights: Nepalese Perspective (1st ed.). Bhaktapur: Kathmandu School of Law. p. 339.

4 Mamata Rao. (2008). Law Relating to Women and Children (2nd ed.). Lucknow: Eastern Book Company. p. 467.

5 Adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948.

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for the betterment and well-being of children:6

• Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

• Parents have a prior right to choose the kind of education that shall be given to their children.

The provisions stated in the Universal Declaration of Human Rights are not relevant for children in confl ict with the law. However, the special rights of the child were fi rst enunciated in this declaration.

The Standard Minimum Rules for the Treatment of Prisoners7 fi rst established the principle of separation of young people from adults in custodial facilities. The basic formulations of the Standard Minimum Rules for the Treatment of Prisoners8 are as follows:

• These Rules do not seek to regulate the management of institutions set aside for young person such as Borstal institutions or correctional schools.

• The category of young prisoners should include at least all young persons who come within the jurisdiction of Juvenile Courts. As a Rule, such young person should not be sentenced to imprisonment.

• The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their age, etc.

• Young prisoners shall be kept separate from adults.• Young prisoners shall receive physical and recreational training during

the period of exercise. To this end space, installations and equipment should be provided.

• Arrangement shall be made wherever practicable for children to be torn in a hospital outside the institution. If a child is born in prison, this fact shall not be mentioned in the birth certifi cate.

6 Universal Declaration of Human Rights, 1948. Articles 25(2) & 26(3).7 Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of

Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its Resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

8 Standard Minimum Rules for the Treatment of Prisoners, 1955. Rules 5, 8, 21(2), 23(1), 68 & 85(2).

244



• So far as possible separate institutions or separate sections of an institution shall be used for the treatment of the different classes of prisoners.

• Young untried prisoners shall be kept from adults and shall, in principle, be detained in separate institutions.

The Declaration of the Rights of the Child9 was drafted by the United Nations Commission on Human Rights. This document is a non-binding resolution of the United Nations General Assembly. The rights of the child stated in the Declaration are as follows:

• Right against discrimination • Right to special protection, care, relief, opportunity and facility• Right to identity and nationality• Right to social security• Right to special treatment• Right to education• Right to development• Right against all forms of neglect, cruelty and exploitation• Right against engagement in any occupation or employment before an

appropriate minimum age.

However, the Declaration did not provide special provisions for children in confl ict with the law. The special rights of the child were articulated in this Declaration.

The International Covenant on Civil and Political Rights10, adopted by the international community in 1966 and ratifi ed by Nepal on 14 May, 1991 (31 Baishakh, 2048 B.S.), deals with provisions relating to juvenile justice. It is the fi rst international instrument that obliged States Parties to establish a unique procedure for young persons in the administration of justice. The following

9 Adopted and proclaimed by General Assembly Resolution 1386/14 dated 20 November 1959.

10 Adopted and opened for signature, ratifi cation and accession by General Assembly Resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.

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provisions on the administration of juvenile justice in the International Covenant on Civil and Political Rights are very specifi c:11 • Sentence of death shall not be imposed for crimes committed by persons

below eighteen years of age.• Accused juvenile persons shall be separated from adults and brought as

speedily as possible for adjudication. • Juvenile offenders shall be segregated from adults and be accorded

treatment appropriate to their age and legal status.• Any judgment rendered in a criminal case or in a suit at law shall be made

public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

• In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

• Every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

• Every child shall be registered immediately after birth and shall have a name.

• Every child has the right to acquire a nationality.

2. Major International Instruments Relevant to Juvenile Justice The major international instruments relevant to juvenile justice may be noted as below:

2.1 The Convention on the Rights of the Child (CRC), 1989The CRC12 was adopted by the United Nations General Assembly on 20 November, 1989 and ratifi ed by Nepal on 14 September, 1990 (29 Bhadra, 2047 B.S.). The CRC is a binding instrument not a mere declaration. That is,

11 International Covenant on Civil and Political Rights, 1966. Articles 6(5), 10(2)(b), (3), 14(1), (4) & 24.

12 Adopted and opened for signature, ratifi cation and accession by General Assembly Resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with Article 49.

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an international instrument agreed to be implemented by State Parties, in their own countries' laws and programs. It is the most universally ratifi ed international instrument. Only the United States has not ratifi ed it yet. Aside from being a binding document, the Convention is a landmark instrument in introducing the child rights approach. The previous declarations regarded children as recipients of treatment but the Convention considers them as holders of specifi c rights.

The CRC is the cornerstone international instrument covering the issue of child rights. Most of the provision of the Convention is relevant to juvenile justice in the sense that it is properly implemented; it provides the framework that helps to keep children away from becoming delinquent.13 The Convention recognizes not only the right to be processed according to principles of justice but also the right to participation, name, nationality, identity, survival and development, adoption, and right against exploitation.14 Adopted in 1989, the CRC provides a wide-ranging framework for the protection of children's rights and, more importantly, constitutes a comprehensive listing of the legally binding obligations towards children that countries are required to implement.15 The CRC is a major milestone in terms of setting criteria for juvenile justice according to international standards. More generally, it is the most important international treaty concerning the rights of children and youth, establishing standards for a range of legal, civil, political, economic, social and cultural rights of children. It sets the standards concerning the treatment of children deprived of their liberty, especially in its articles 37, 39 and 40.16 The Convention has transformed some of the Beijing principles into binding law.17 The Convention is divided into three parts and fi fty-four Articles covering the issue of child rights and juvenile justice.

13 Ishwor Khatiwada. (2004). 'Nepalese Juvenile Justice System: An Overview.' KSL Journal. Vol. 2. Bhaktapur: Kathmandu School of Law. p. 33.

14 Ved Kumari. (2010). The Juvenile Justice System in India: From Welfare to Rights (2nd ed.). New Delhi: Oxford University Press. p. 55.

15 S.K.A. Naqvi "Jaisi" & Sharat Tripathi (Reviser). (2009). R.N. Choudhry's Law Relating to Juvenile Justice in India (3rd ed.). Allahabad: Orient Publishing Company. p. 28

16 Supra Note 1. pp. 14-15.17 Supra Note 2. p. 318.

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Article 1 of the Convention defi nes a child as every human being below the age of eighteen years. It does not set out what the minimum age for criminal responsibility should be nor does it states what criteria should be used to determine the minimum age for criminal responsibility. However, rationale behind setting a minimum age for criminal responsibility is to protect children who infringe penal laws but don't have necessary mens-rea or guilty intent to commit an offence. The fact that the Convention does not stipulate this minimum age leaves to States with unfettered discretion to determine the minimum age for criminal responsibility.

(a) Child Rights Approaches Introduced by CRCChild right approaches introduced by the CRC are as follows:

• Children are persons with rights and entitlements.• They shift from needs to rights.• Needs are not necessarily universal; rights are always universal.• Needs do not imply obligations; rights always imply obligations.

(b) Basic Principles under CRC The basic principles under the CRC are as follows:(i) Non-discrimination

• Every child shall enjoy the rights set forth in the CRC, without discrimination of any kind.

• Irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

(ii) Best Interests of the childIn all actions concerning children, the best interests of the child shall be the primary consideration

(iii) Survival and Development• Every child has an inherent right to life.• The State shall ensure to the maximum extent possible the survival and

development of the child.•

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(iv) Child Participation• A child who is capable of forming his or her own views has the right to

express those views freely in all matters affecting him or her.• The views of the child shall be given due weight in accordance with his

or her age and maturity.

(c) Child Rights under the CRCChild rights under the Convention on the Rights of the Child are as follows:

(i) Survival Rights18

• Right to parental care and support • Right to life• Right to health care• Right to social security• Right to adequate standard of living

(ii) Development Rights19

• Right to information• Right of children with disabilities• Right to education• Right of children of indigenous peoples• Right to leisure, recreation and cultural activities

(iii) Protection rights20

• Right to a name and nationality• Right to privacy• Right against exploitation and abuse• Traffi cking • Child abuse and maltreatment• Child labor• Drug abuse• Sexual exploitation• Right to alternative means of children• Protection of refugee children

18 Convention on the Rights of the Child, 1989. Articles. 5, 6, 9, 10, 18, 24, 26 & 27.19 Convention on the Rights of the Child, 1989. Articles 17, 23, 28, 29, 30 & 31.20 Convention on the Rights of the Child, 1989. Articles 7, 8, 10, 16, 19 - 22, 32-35 & 37-40.

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• Protection from torture, deprivation of liberty and death penalty• Protection during armed confl ict• Right to recovery and reintegration• Rights of children in confl ict with the law

(iv) Participation rights21

• Right to an opinion• Right to be heard in judicial and administrative proceedings• Right to freedom of expression• Right to freedom of thought, conscience and religion• Right to freedom of association and peaceful assembly

(d) Juvenile Justice Issues under CRCIn particular, Articles 37, 39 and 40 of CRC deal with juvenile justice issues.

Article 37States Parties shall ensure that:

• No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

• No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

• Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

• Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a

21 Convention on the Rights of the Child, 1989. Articles 12-15.

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court or other competent, independent and impartial authority, and to a prompt decision on any such action.

This Article deals with the issue of torture and deprivation of liberty. It relates to the treatment of children in confl ict with the law. It prohibits torture of juveniles and ensures protection from arbitrary or unlawful deprivation of their liberty.

Article 39States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed confl icts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

This article provides for the rehabilitation of children. It obliges States Parties to take all appropriate measures to promote physical and psychological recovery and social reintegration of the child victim.

Article 40Article 40(1) of the Convention mentions that States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

According to article 40(2)(a) of the Convention, in particular States Parties shall ensure that no child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

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Article 40(2)(b) of the Convention states that every child alleged as or accused of having infringed the penal law has at least the following guarantees:

• To be presumed innocent until proven guilty according to law.• To be informed promptly and directly of the charges against him or

her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence.

• To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians.

• Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality.

• If considered to have infringed the penal law, to have his decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according law.

• To have the free assistance of an interpreter if the child cannot understand or speak the language used.

• To have his or her privacy fully respected at all stages of the proceedings.

Article 40(3) of the Convention reads that States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifi cally applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

• The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.

• Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.

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According to Article 40(4) of the Convention, a variety of dispositions, such as care, guidance and supervision orders; counseling; probation; foster care; education and vocational training programs and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.

In totality, this article covers treatment of the child from the moment an allegation is made, through investigation, arrest, charge, any pre-trial period, trial and sentence. The article requires States Parties to promote a distinctive system of juvenile justice with specifi c positive rather than punitive aims. It details a list of minimum guarantees for the child. It requires States Parties to set a minimum age of criminal responsibility, to provide measures for dealing with children who may have infringed the penal law without resorting to judicial proceedings and to provide a variety of alternative dispositions to institutional care. According to this article, children in confl ict with the law have the following legal guarantees:

• Presumption of innocence• Right to be informed of charges against him or her• Right to a speedy trial before an impartial body• Right to legal assistance• Right against self-incrimination• Right to confront witnesses• Right to appeal• Right to an interpreter• Right to privacy

2.2. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985 The Seventh United Nations Congress on Prevention of Crime and Treatment of Offenders adopted the Beijing Rules in September 1985. These Rules were subsequently adopted by the United Nations General Assembly in November 1985 and embodied the following basic principles:22

22 N.V. Paranjape (Prof.). (2010). Criminology and Penology (14th ed.). Allahabad: Central Law

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• Juveniles in trouble with law should be provided with carefully constructed legal protection.

• Pre-trial detention should be used only as as last resort. Child and juvenile offenders should not be held in a jail where they are vulnerable to the evil infl uences of the adult offenders.

• Juvenile offenders should not be incarcerated unless there is no other appropriate response that will protect the public safety and provide the juvenile with the opportunity to exercise self control.

• Member nations should strive individually and collectively to provide adequate means by which every young person can look forward to a life that is meaningful and valuable.

The Beijing Rules23 is the fi rst international instrument to ensure specifi cally the protection children's rights in interaction with the legal system. This set of Rules aims at establishing a progressive justice system for young persons in confl ict with the laws, refl ecting the particular needs of children. These Rules are directed towards the protection of the best interest of the children, looked at juvenile justice system as an independent and separate branch of justice system and attempted to lessen the disastrous result of punitive sanction.24 The Beijing Rules, which are divided into six parts, cover the whole range of juvenile justice processes: general principles, investigation and prosecution, adjudication and disposition, non-institutional treatment, institutional treatment, research/planning/policy formulation and evaluation.

The Beijing Rules are not a treaty and they as an entire body of Rules are non-binding per se. But some of the Rules have become binding on State Parties by being incorporated into the CRC. Others can be treated not as establishing new rights but as providing more details on the contents of existing rights.25 The Rules provide guidance to States on protecting children's rights and respecting their needs when developing separate and specialized systems of juvenile justice. They were the fi rst international legal instrument to comprehensively

Publications. p. 537.23 Adopted by General Assembly Resolution 40/33 of 29 November 1985.24 Supra Note 13. p. 37.25 Supra Note 2. p. 317.

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detail norms for the administration of juvenile justice with a child rights and child development approach.26 The Rules provide a range of legal provisions to ensure fair and humane treatment in order to promote the well-being of the child, which is a prerequisite for a sound reintegration into society.27 The Rules provide a comprehensive social policy regarding the treatment of juveniles. They establish minimum standards that are formulated in such a way that they may be applicable to the different legal systems of States. They give guidance on the use of imprisonment as a last resort. The Rules include that the application of diversion for crime prevention, the establishment of Juvenile Courts, the basic rights of juveniles, the duties of parents and guardians, steps of ensure that the periods of detention are to be short, measures to ensure a fair trial, principles for decision-making by Courts, principle of confi dentiality, respect for professionalism in the juvenile justice, means of providing assistance and rehabilitation to the juveniles, use of separate treatment for juveniles who come into confl ict with the law, etc.28

The Beijing Rules establish a progressive justice system for young people in confl ict with the law. The Rules provide that: 29

• Comprehensive social policy is in place to ensure the well-being of juveniles.

• Reaction to juvenile offenders is always to be in proportion to the circumstances of both the offenders and the offences.

• Police Offi cers who deal extensively with juveniles shall be specially instructed and trained.

• Detention pending trial is to be used as a measure of last resort and for the shortest possible period of time.

• Placement of a juvenile in an institution is always to be a disposition of last resort and for the minimum necessary period.

• Necessary assistance such as housing, vocational training and employment is to be provided to facilitate the rehabilitative process.

26 Supra Note 15. p. 28.27 Supra Note 1. p. 15.28 Supra Note 3. p. 340.29 Supra Note 2. p. 317.

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The basic formulations of the Beijing Rules on juvenile justice system are as follows:

• Fair and humane treatment to promote well-being of child• Proportionality between offence and offender• Use of community programs for diversion from formal court processes,

with child's consent• Detention as a last resort and for shortest possible period of time• Children detained separately from adults• Best interests of the child• Child's full participation• Deprivation of liberty only for serious offences• Institutionalization as a last resort• Capital and corporal punishment prohibited• Continuous and specialized training for Police Offi cers• Educational services for children under institutional treatment• Release as soon as possible

In some jurisdiction, children who are accused of serious offences are treated as if they were adults and in such cases the Beijing Rules would not apply.30

2.3 United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990The Riyadh Guidelines31 are divided into seven parts and sixty-six guidelines. The guidelines provide social policies to be applied to prevent and protect young people from offending. They are often referred as one of the most advanced instruments in the area of prevention of juvenile delinquency. These guidelines are also regarded as complementary of the Beijing Rules. They represent a comprehensive and proactive approach to prevention and social reintegration. They establish relevant principles relating to the socialization and integration of children, prevention of delinquency social policy, legislation and juvenile justice administration, research, policy development and co-ordination for non-punitive measures.

30 In the United States, Children who are accused of murder may be tried as adults.31 Adopted and proclaimed by General Assembly Resolution 45/112 of 14 December 1990.

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Focusing on prevention rather than repression, the Guidelines privilege an ex-ante approach and provide economic and social strategies to counter juvenile delinquency.32 More particularly, countries are recommended to develop community-based interventions and programs, to assist in the prevention of children coming into confl ict with the law and to recognize the depriving children of their liberty should be utilized only as a means of last resort.33 The guidelines recommend that prevention programs should give priority to children who are at risk of being abandoned, neglected, exploited and abused. It advocates a multidisciplinary and inter-sectoral approach to the prevention of children coming into confl ict with the law and recognizes children to be full participants in society.34 Under the provisions mentioned in the Riyadh Guidelines, suffi cient measures should be adopted by the State so as to prevent the victimization, stigmatization, criminalization, and exploitation.

The basic formulations of the Riyadh Guidelines on juvenile justice system are as follows:

• Prevention of juvenile delinquency is an essential part of crime prevention in society.

• Prevention requires efforts on the part of the entire society.• Prevention policies for all young people, not just offenders.• Family as central unit responsible for socialization of children.• Well-being from early childhood should be the focus of any preventive

program.• Active prevention of crime through community-based services and

programs.

2.4 United Nations Rules for the Protection of Juvenile Deprived of Their Liberty (The JDL Rules), 1990The JDL Rules35 are also known as the Havana Rules. These Rules are divided into fi ve parts and eighty-seven Rules. The Rules set out that:

32 Supra Note 13. p. 40.33 Supra Note 15. p. 29.34 Ibid.35 Adopted by General Assembly Resolution 45/113 and 68th Plenary Meeting of 14 December

1990.

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• An internationally accepted framework to regulate the deprivation of liberty of the children.

• Principles which defi ne the specifi c circumstances under which young person can be deprived of their liberty.

• Standards applicable when a juvenile is confi ned to any institution/facility by order of any judicial, administrative or other public authority.

The Rules emphasize that deprivation of liberty must be a means of last resort, for the shortest possible period of time and limited to exceptional cases. They also focus on the need for the prison personnel to be properly trained to deal with juvenile detainees. The Rules clearly mention that juveniles should only be deprived of their liberty in accordance with the principles and procedures set-forth in the JDL Rules and the Beijing Rules. Rule 17 reads that juveniles who are detained under arrest or awaiting trial are presumed innocent and shall be treated as such. According to Rule 18, juveniles under arrest or awaiting trial have the right to legal counsel, right to apply for free legal aid, right to communicate regularly with legal advisers, right to privacy and confi dentiality, right to separate from convicted prisoners, right of opportunity to pursue work with remuneration, right to continue education or training, and right to leisure and recreation. The Rules prohibit the detention or imprisonment of juveniles with adults.

The JDL Rules intend to counteract the detrimental effects of deprivation of liberty by ensuring respect for the human rights and fundamental freedoms of juveniles, and ensuring the dignity and welfare of the children is upheld while in custody.36 The fundamental principles of the JDL Rules37 may be noted as:

• Imprisonment should be used as a last resort, for the minimum period and limited to exceptional cases.

• Internationally accepted rules and principles must be followed.• Respect the human rights of the liberty-deprived juveniles.• Apply meaningful measures so as to promote and sustain health and

self-respect, to foster their sense of responsibility.


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In particular, the JDL Rules set out provisions on the management of juvenile facilities. The areas of management38 are as follows:

• Records• Admission, registration, movement and transfer• Classifi cation and placement• Physical environment and accommodation• Education, vocational training and work • Recreation• Religion• Medical care• Notifi cation of illness, injury and death• Contacts with the wider community• Limitations of physical restraint and the use of force• Disciplinary procedures• Inspection and complaints• Return to the community• Provisions on personnel management, their categories and basic duties.

The basic formulations of the JDL Rules on juvenile justice system are as follows: • Detention before trial should be avoided or used only as a last resort.• Otherwise, it should be limited to the shortest period of time and in a

non-discriminatory manner.• Entitled to prompt access to legal and other assistance.• Establishment of open detention facilities to enable individualized

treatment.• Facilities and services should be consistent with respect of human

rights and dignity of a child.• Respect child's right to family life and reintegration into society.• Help to understand their rights and obligations during detention.• All personnel working children deprived of liberty should receive

appropriate training.• Use of physical force and carrying of weapons.

38 United Nations Rules of the Protection of Juvenile Deprived of Their Liberty (The JDL Rules), 1990. Rules 19-80.

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• Cruel, inhuman and degrading treatment and discipline prohibited.• Children detained separately from adults; separate detention for

younger and older children.• All personnel working with children should be fully accountable for

their actions.

The JDL Rules safeguard fundamental rights and establish measures for ensuring the dignity and welfare of children and young people deprived of their liberty, whether in prison or other institutions.

2.5 United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990The Tokyo Rules39 are divided into eight Parts and twenty-three Rules. The Rules are focused on non-custodial measures and alternatives to imprisonment. They have laid down a number of Rules applicable to the children. These Rules are of general nature applicable to adults as well as minors whatever the case may be. The Rules provide some special provisions particularly applicable to the minor.

The Tokyo Rules provide a set of basic principles to promote the use of non-custodial measures as alternatives to imprisonment. They emphasize the greater involvement of communities in treatment of offenders. They require States to adopt non-custodial measures in their respective legal systems.40 The appropriateness can be judged keeping in view of the rules and principles regarding juvenile justice. The rules put obligation on the part of the judicial authority to avail social inquiry reports if the possibility exists and apply judicial direction accordingly.41 The rules have adopted non-custodial measures at pre-trial stage, trial and sentencing stage, and post-sentencing stage. The Tokyo Rules are intended to promote greater community involvement in the management of criminal justice, specifi cally in the treatment of offenders and to promote among offenders a sense of responsibility towards society. The rules cover pre-

39 Adopted by General Assembly Resolution 45/110 of 14 December 1990.40 Supra Note 3. p. 341.41 Supra Note 13. p. 39.

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trial, diversion, sentencing and post trial issue.

2.6 The United Nations Guidelines for Action on Children in the Criminal Justice System (Vienna Guidelines), 1997These guidelines42 provide an overview of information received from governments about how juvenile justice is administered in their countries and in particular about their involvement in drawing up national programs of action to promote the effective application of international rules and standards in juvenile justice.

The document contains as an annex a draft program of action on children in the criminal justice system, as elaborated by a meeting of experts held in Vienna in February 1997. This draft program of action provides a comprehensive set of measures that need to be implemented in order to establish a properly functioning system of juvenile justice administration.43

The aims of the guidelines are to provide a framework for the achievement of two main objectives:

• Implementation of the CRC in order to achieve the goals set out for the administration of juvenile justice.

• Facilitate the provision of assistance to States for the implementation of the CRC.

The guidelines, in paragraphs 11-14, advocate for a child-centered justice process, an independent expert or panel to review existing child justice legislations and the establishment of Juvenile Courts with primary jurisdiction over children in confl ict with the law. The guidelines, in paragraphs 15-16, support the principle of diversion, as provided for by the CRC and the Beijing Rules, to avoid recourse to criminal justice. In order to work for diversion, States must comply with the standards that are laid down in various UN instruments. The guidelines also raise the issue of legal representation for children in confl ict with the law and States should ensure that children have access to legal assistance from the moment they are exposed to State machinery.

42 Recommended by Economic and Social Council Resolution 30 of 21 July 1997.43 Supra Note 15. p. 29.

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Paragraph 24 of the guideline provides that States are urged to grant concerned humanitarian, human rights and other organizations access to detention facilities and person who are involved in the administration of juvenile justice should be educated on the rights of the child and the international standards on the protection of children in confl ict with the law. These persons include "the police and other law enforcement offi cials, judges, prosecutors, lawyers, administrators, prison offi cers and other professionals working in institutions where children are deprived of their liberty, health personnel, social workers, child psychologists and other professionals concerned with juvenile justice."

The guidelines are a step forward in the protection of the rights of children in confl ict with the law. The guidelines call on those involved in the administration of juvenile justice system to act in accordance with the four general principles of the CRC.

Besides the above-mentioned international instruments, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 197544; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 198445; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 198846; the World Declaration on the Survival, Protection and Development of Children, 199047; the United Nations General Assembly Special Session (UNGASS) Declaration on Children, 2002 are also important in the area of juvenile justice system.

3. Basic Principles of International Law for a Juvenile Justice System in the Best Interest of the ChildInternational law incorporates a number of basic principles upon which

44 Adopted by General Assembly Resolution 3452 (XXX) of 9 December 1975.45 Adopted and opened for signature, ratifi cation and accession by General Assembly

Resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with Article 27 (1).

46 Adopted by General Assembly Resolution 43/173 of 9 December 1988.47 Adopted at the World Summit for Children on 30 September 1990.

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a juvenile justice system should be based. They are based on the various Covenants, Conventions and Guidelines. They are broadly as follows:48

• Well-being of the child in the administration of justice needs to be maintained.

• Criminal responsibility should be related to age at which the children are able to understand the consequences of their action.

• Children should be diverted from formal trial procedures. • Juveniles should be brought as speedily as possible to adjudication. • Arrest, detention, or imprisonment should only be imposed on children

as a measure of last resort. • Rights of children prior to the determination of charges include the

duty to inform parents or guardians. • Children should be presumed innocent until proven guilty according

to law. • Rights of children during the determination of criminal charges should

be provided. The principles of natural justice are equally applicable to children. Right to counsel is important for children.

• Specifi c forms of punishment like corporal punishment and imposition of death penalty are prohibited for children. The children should be provided with alternations to institutional care.

4. Obligations Laid Down by International Instruments Upon StatesThe main obligations laid down by the international instruments upon States49 are as follows:

• To submit regular process reports to the Committee on the Rights of the Child.

• To adopt mechanisms to prevent children from coming into confl ict with law.

• To adopt non-punitive measures, non-custodial measures, and

48 International Covenant on Civil and Political Rights, 1966. Articles 7, 9(4), 10(2)(b), 14(2) & 15(1); The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), 1985. Rules 4, 11(1), 17(1)(c) & 20; Convention on the Rights of the Child, 1989. Articles 37(a) and (b), 40(2)(b)(i), (3)(b) & (4); United Nations Rules for the Protection of Juvenile Deprived of their Liberty (The JDL Rules), 1990. Rule 30; and see also United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), 1990.

49 Supra Note 3. pp. 342-343.

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diversion from the formal justice system.• To adopt alternatives to imprisonment.• To ban harsh treatment upon juveniles.• To adopt separate mechanisms and procedures to deal with juveniles

and separation of juveniles from adult detainees.• To establish a Juvenile Court and provide assistance to rehabilitation

homes.• To provide training to personnel working in juvenile justice systems. • To improve the physical environment and accommodation of juveniles.• To ensure educating, training, medical care, respect for the child's

religion in detention, and contact with the community.• To ensure a fair and speedy trial and provide legal aid to juveniles.

5. Legal Status of International InstrumentsAll of the above-mentioned international instruments need to be considered in developing a proper framework for a juvenile justice system. The United Nations has developed standards and guidelines to assist the pillars of juvenile justice in dealing with children in confl ict with the law. The International Covenant on Civil and Political Rights, 1966; the CRC, 1989 and other Conventions are legally binding and State Party most comply with the provisions of these instruments. Section 9(1) of the Nepal Treaty Act, 2047 (1990) says that any law inconsistent with the international Treaties or Conventions ratifi ed by Nepal would be void to the extent it is inconsistent and in such circumstances, the provision of Treaty or Convention would prevail. The monism approach of the legislation has created binding force to comply with these international instruments. However, the Beijing Rules, 1985; the Tokyo Rules, 1990; the Riyadh Guidelines, 1990; the JDL Rules, 1990 and other United Nations declarations and resolutions are called soft law and not legally binding. Nevertheless, these soft laws carry the legality of the international community.

In conclusion, if we observe the above-mentioned international instruments, we see that the Decalaration of the Rights of the Child was authored by Eglantyne Jebb in 1923. This declaration was adopted by the Fifth Assembly of the League

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of Nations in 1924. The Declaration of the Rights of the Child, 1924 of the League of Nations was not related to the issues of juvenile justice. It was the basis for the United Nations Declaration on the Rights of the Child, 1959. The Universal Declaration of Human Rights, 1948 provides provisions for the betterment and well-being of children but not in juvenile justice. The principle of separation of young people from adults in custodial facilities was fi rst established by the United Nations Standard Minimum Rules for the Treatment of Prisioners, 1955. But this instrument is not specifi c instrument in the area of juvenile justice. The United Nations Declaration on the Rights of the Child, 1959 provides 10 principles on the rights of the child but does not provide special provision for children in confl ict with the law.

The International Convenant on Civil and Political Rights, 1966 is hard law having binding force and the fi rst international instrument that obliged States Parties to establish a unique procedure for young persons in the administration of juvenile justice in its Articles 6(5), 10(2)(b), 10(3), 14(1), 14(4) and 24. However, this instrument is not specifi c instrument in the area of juvenile justice system. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 is also a hard law having binding force, indirectly related to the administration of juvenile justice.

The Beijing Rules, 1985 is the fi rst international instrument to ensure specifi cally the protection of children's rights in interaction with the legal system. It aims at establishing a progressive justice system for young persons in confl ict with the laws, refl ecting the particular needs of children. The Beijing Rules direct towards the protection of the best interest of the children, look at juvenile justice system as an independent and separate branch of justice system and attempt to lessen the disastrous result of punitive section. However, the Beijing Rules are not a treaty and they as an entire body of rules are non-binding. In some jurisdiction, children who are accused of serious offences are treated as if they were adults and in such cases the Beijing Rules would not apply. The Beijing Rules are a soft law having persuasive force. States are not obliged to obey such Rules.

The CRC, 1989 is the hard law having binding force. The Convention is the most universally ratifi ed international instrument. Nepal was the fi rst country

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to ratify the Convention. The Convention is the signifi cant development in the fi eld of juvenile justice system in the world. It provides special provisions for dealing with children in confl ict with the law. It is the cornerstone international instrument covering the issues of child rights. Most of the provision of the Convention is relevant to juvenile justice. Articles 37, 39 and 40 of the convention are related to the juvenile justice system. Nevertheless there is no separate provision of juvenile justice system in separate part of the Convention.

The Riyadh Guidelines, 1990; the JDL Rules, 1990; The Tokyo Rules, 1990 and the Vienna Guidelines, 1997 are United Nations standards and guidelines like the Beijing Rules, 1985 to assist the pillars of juvenile justice in dealing with children in confl ict with the law. However, these Standards and Guidelines are soft laws having persuasive force. States are not obliged to obey the provisions provided in the United Nations Standards and Guidelines. But these Standards and Guidelines have made roadmap to enter into the door of administration of juvenile justice. The Rules, Standards and Guidelines are also regarded as parts of the Treaty provisions.

All these international instruments strongly advocate for the creation of separate justice system for the children in each legal system. It has been well recognized by the international instruments that children are subject of and entitled to fundamental rights and freedoms and the ultimate goal of the juvenile justice system is to protect the best interests of the children.50


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Juvenile Justice System in Nepal


UNIT

VI JUVENILE JUSTICE SYSTEM IN NEPAL

Kishor Silwal*

1. BackgroundChildhood is a sensitive stage of human life. Children are physically, morally and mentally, immature and delicate. The legal status of children and adolescents are different from that of adults in every democratic country. They should not be held responsible for violation of criminal law, in the same way as adults are held under the system. The ultimate aim of such treatment of children and adolescents is to protect them from negative effects of the adult justice system and also to provide a more appropriate way of dealing with them. In this perspective, we have separate systems because children are children, not adults.

We do not let children run away from school, contract, vote, or drink alcohol. We can make out that children have more of a custody interest than liberty interest, because they are not mature enough to competently make their own way in the world. Children are still learning simple concepts like good and bad, right and wrong, and it's important they choose correctly. The juvenile justice

* Judge, Patan High Court.

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System was designed with this developmental concept in mind. According to the Article 40(1) of the Convention on the Rights of the Child (CRC), State Parties should establish a distinct justice system to protect the best interest of the children in confl ict with law. One of the core obligations of the State Parties to the CRC is the promulgation of laws and procedures, and establishment of authorities and institutions specifi cally applicable to children alleged as, accused of, or recognized as having infringed the penal law. Considering these facets, before discussing about Nepalese juvenile justice system, it is more relevant to talk about the basic concept of juvenile justice system.

Traditionally, juvenile justice system has been taken as an essential and integral part of the criminal justice system. The modern concept views it from different perspective. It has been widely believed that the juvenile justice system cannot be taken as branch of criminal justice system where the punitive approach is considered one of the important and indispensable elements.1 In general, juvenile justice system is the means by which most adolescents are judged or adjudicated when they are charged when violating laws. The system sometimes described as a process, is somewhat fragmented network of agencies, organizations, and Courts that deal with errant adolescents. It is the term used to describe justice system developed for children. The juvenile justice system consists of a more or less integrated network of agencies, institutions, organizations and personnel that process juvenile offenders. This network is made up of law enforcement agencies; prosecutors and Courts; correction; probation and parole services; and public and private community based treatment programs that provide youths with diverse services.2 It is considered as a specialized system of justice as a whole rather than a branch of criminal justice system. In most countries, some steps have been taken to introduce separate justice system, dealing with children who come in confl ict with law. The term "juvenile justice" refers to legislation, norms and standards, procedures, mechanisms and provisions institutions and bodies specifi cally applicable to juvenile delinquents.

1 Yubaraj Sangroula. (2004). "The Roles Opportunities and Challenges of the Juvenile Justice System in Nepal: Need of a Diverson from the Criminal Justice System." KSL Journal. Vol. 2. Bhaktapur: Kathmandu School of Law. pp. 17-30.

2 Dean J. Champion. (1992). The Juvenile Justice System: Delinquency, Processing, and the Law. New Jersey: Prentice-Hall Inc. p. 5.

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According to Gus Martin, "Juvenile justice is a fair handling and treatment of youths under the law." It is a philosophy that recognizes the right of young people due protections which when they are in trouble, and personal protections when they are in need. Juvenile justice process refers to distinct law. These procedures are carried out in accordance with institutions designed for the administration of justice in general, and juvenile justice in particular. The juvenile justice system is composed of institutions that have been organized to manage established procedures as a way to achieve justice for all juveniles. These institutions include the Police, Juvenile Courts, Juvenile Correction Homes and community based agencies and programs.3 In these perspectives it can be said that juvenile justice system treats children fairly and with dignity. The system handles cases in a completely different manner than adult cases. For these objectives separate police, prosecution, court, corrections and community has been established.

It has been also claimed that the juvenile justice system is the institution charged with responsibility of meeting the needs and solving the problems of delinquents, as well as protecting society from their harmful acts. This institution is a unique experiment in providing justice for adolescents, one that is originally based on the ideal of individualized justice, in which the major objective was to deal with each juvenile according to individual needs and mete personalized treatment.4

2. Legislative Provisions Relating to Nepalese Juvenile Justice SystemNepal ratifi ed the CRC on 14 September 1990. CRC requires all State Parties to establish special laws, procedures, authorities and institutions specifi cally applicable to all children in confl ict with the Law. After ratifi cation of CRC, to fulfi ll its commitments, Nepal subsequently enacted the separate Children's Act, 2048 (1992). It is the special enactment for the children, which provisioned the establishment of separate juvenile justice system in Nepal. Under the Act, there

3 Gus Martin. (2005). Juvenile Justice: Process and Systems. London: Sage Publications, Inc. p. 403.

4 See M. Bortner. (1988). Delinquency and Justice: An Age of Crisis. New York: McGraw-Hill.

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are provisions for separate Juvenile Court, Juvenile Bench, Special Police Unit to deal with children and Juvenile Correction Home. Later on, for the proper functioning of juvenile justice system, the Juvenile Justice (Procedure) Rules, 2063 (2006) enacted. Finally, the Constitution of Nepal, 2072 (2015) is a landmark for the establishment of child friendly justice system in Nepal. It not only guarantees rights of child separately but insists on establishment of juvenile friendly justice. With these constitutional guarantees, there is compulsion for establishing more child friendly environments within the justice system of Nepal.

3. Investigation in Juvenile Delinquency CasesIn Nepal, as per the fulfi llment of constitutional guarantee towards child friendly justice system, at present, cases in relation to children are not investigated as it is done in case of adults. The Government Cases Act, 2049 (1992) and Government Cases Rules, 2055 (1999) deal with general procedures of criminal investigation. The Act prescribes the procedures necessary in fi ling a report regarding the commission of crime as well as further investigation purpose. But as "gatekeepers" to the juvenile justice system, police and other law enforcement agencies, have to follow the constitutional obligations for establishing child friendly justice system as well as standards set by international instruments. When delinquents encounter with law enforcement offi cers, to precede the process the authorities have to initiate the cases on the basis of the Government Cases Act, 2049 (1992) and Government Cases Rules, 2055 (1999). But it is not applicable to all nature of cases but the procedures necessary in fi ling a report regarding crime's commission, in its investigation and prosecution, as well as some parts of the adjudication process for cases that are listed in schedule I, to the Act. The said schedule mentions most of the criminal cases regarded as harmful to society as a whole. However, in the case of juveniles, the Children's Act, 2048 (1992) and Juvenile Justice (Procedure) Rules, 2063 (2006) have made special provisions regarding the children in confl ict with law. These are the special laws regarding children's issue, so, where there is any provision under these laws then the provision will apply. Only in the absence of such provision, general provisions will be applied as mentioned under the Government Cases Act and Chapters on Court Management and Punishment in the Muluki Ain (National Code).

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3.1 Separate Unit or Police Offi cialPolice institution is the primary means whereby juveniles are brought into the juvenile justice system. Police organization throughout the country has had special units named as "Women and Children Service Centers" as a part of their organizational structure to deal with juvenile offenders. Though the center is not solely concerned with dealing juveniles delinquents but the responsibility is given to deal delinquents child. Each police station is now required to have at least one Police Offi cer specially trained to deal with children in confl ict with law. The Center generally takes action when they get information about the occurrence or possible occurrence of delinquent activities. But the Center never observes the suspicious activities of juveniles. At present, Women and Children Service Centers are operating in 75 districts across the nation apart from and 7 Metropolitan Circles in the Kathmandu valley.

After initial contact, law enforcement offi cers have a variety of formal and informal options while handling juvenile delinquent. They may give the delinquent child a warning, make referral to social service agency or take to the police station to give an offi cial statement. The use of informal options is the least restrictive means when dealing with juveniles. However, the use of informal options usually depends on the seriousness of the delinquent's behavior and other considerations, such as gravity of harm, past records and community pressures. Formal options are an offi cial response to juvenile law breaking by law enforcement personnel that results in the juvenile being taken into custody. However, law enforcement offi cers may release in parental custody. In more serious delinquent activities, a juvenile can be taken into custody or referred to a juvenile correction home.

While inquiring or investigating on juvenile delinquencies the police unit or staff formed pursuant to Rule 3 of the Juvenile Justice (Procedure) Rules, 2063 (2006) shall pursue the following major provisions in addition to the other provisions mentioned in the prevailing laws:

• Police staff shall wear civil dress instead of the regular uniform, • Introduce them-selves by showing the identity revealing documents,

and clarify the reasons for arrest

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• Acknowledge the juvenile's constitutional and legal rights in a language he/she understands,

• Inform parents of the child as far as possible or at least one if both are not available or other concerned legal guardian about the offence committed by the juvenile,

• Examined the physical and the mental health of the child in the nearest government hospital or by the doctor,

• No arrest in night time as well as no use of handcuff.• Assist to access free legal aid, language interpreter and psychosocial

counseling if required, • Keep both the parents as far as possible, and at least one and in absence

of father and mother or legal guardian in presence while conducting a Sarjameen,

• Request service providing agencies or individual to prepare a social inquiry report of juvenile in the manner prescribed in the Schedule.

Similarly, Section 52(1) of the Children's Act, 2048 (1992) has made a provision that Police Offi cer should keep the statistics of child apprehended on the charge of any offence in confi dential manner having stated his name, address, age, sex, family, background, economic conditions, offence committed and if any proceeding is initiated on it. In case of violation of the provision, the violators have to face trial and punished.

3.2 Process for InvestigationThe processes of investigation initiates after registering complain about the incident in the form of First Information Report (FIR). It can be registered in any District Police Offi ce against (The Government Cases Act, 2049 (1992), Section 3, and Government Cases Rules, 2055 (1999), Rule 3). Before the FIR registration the police offi ce should fi rst review the FIR application, confi rm the name, offence and age of 'the children'. Personal identifi cation i.e. name, sex, age and personal information of 'the children 'and of the child victim and women should be kept-in-confi dence during the entire proceedings. Before initiating investigation process the investigation offi cer shall compile preliminary inquiry and submit a report to the government attorney about the offence and subject-matter for

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investigation seeking necessary directives. The Government Attorney may give necessary direction to the investigation offi cer who has been assigned for the investigation.

3.3 Age Determination The legal provision regarding the age determination is important, and as mentioned above in every stage from pre-trial stage to disposition, the legal standard should be mandatorily applied. But in practice, the investigating offi cer in-charge hardly shows their awareness to fi nd out the age of the juvenile detainee and even victim as per the mandatory legal provisions set by the Rule 15 of the Juvenile Justice (Procedure) Rules, 2063 (2006). Even in the remand process, concerned district judge sometimes do not bother to determine the age of the juvenile as per the said rules.

When the question about the age of 'the children' and 'the child victim' brought into dispute, the authority involved in investigation shall determine the age of 'the children' on the basis of following grounds:

(a) Birth certifi cate of 'the children', or(b) In case of non-availability of birth certifi cate, the birth registration

certifi cate of 'the children', or(c) The date of birth mentioned in school character certifi cate or mentioned

in the register at the time of admission of school, or(d) The date of birth issued by government hospital.

4.4 Arrest, Search and Seizure The investigation offi cer or the police can arrest 'the juveniles' if there is suffi cient ground to believe that 'the juvenile' has committed any offence. In Nepal there is no separate authority defi ned by law to deal with 'the children'. The authority and the organization dealing with adult offenders are also dealing with the matter of 'the children' with slightly different proceedings though we have structures of Women and Children Service Center almost in every District Police Offi ce. Therefore, the investigating police or the concerned other authority can arrest a suspected juvenile, but they are not legally permitted to arrest with offi cial uniform and use of handcuff on 'the juvenile'. The offi cer should also introduce themselves and show the documents thereof and

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mention the reason for arrest before arresting 'the juvenile'. At the same time the investigation team should follow search and seizure procedure, if there are reasonable grounds to believe that any person or place has any person or material evidence related to such offence. During these processes concerned authority should show following attentions to protect the best interest of 'the children'.

Detention (Separate from Adult)The authority arresting juvenile should keep them separately from adults in custody or send them to a Juvenile Correction Home. Whenever issues have been brought into the Supreme Court, the court has issued the order to release the juvenile detained in prison along with adult, on the ground of No. 118(2) of the Chapter 'Of Court Management' of Muluki Ain (National Code).

The Children's Act has made alternative provisions instead of detaining 'the children' in police custody even during judicial hearing of the case. The offi cer hearing the case deems that it is not appropriate to keep 'the children' in prison in consideration to the physical condition, age of 'the juveniles' who is to be investigated keeping in prison pursuant to existing law, situation at the time of offence and the place of imprisonment, may issue an order to handover the juvenile to the custody of his father, mother, relatives, or guardian or any social organization involved in safeguarding the rights and interests of 'the juveniles' or the Juvenile Correction Home on the condition to present him as and when required and to carry on investigation or proceeding of the case. Supreme Court of Nepal issued writ of Mandamus and observed that it is not appropriate to keep a minor in custody or prison together with the adult prisoners. Juvenile offenders should be kept in Juvenile Correction Home.

Medical (Physical and Mental) Examination and TreatmentJust after the arrest of 'the children' the arresting offi cer should follow the process of medical examination and if the child is sick or having any injury due to the incident he/she should be provided medical treatment as required.

Humanlike treatmentThe person in police custody or in detention should be treated like an ordinary

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people or an innocent. The offi cer involving in investigation should provide every facility available from the state and behave the person in custody as ordinary human beings. It is because the person arrested is supposed to be an innocent until proved guilty. With regard to 'the children' the detention offi cer should try to their level best to make available healthy food, atmosphere, education, sanitation, clothing, medicine, opportunity for sports and entertainment, etc. The Interim Constitution of Nepal has entrusted a duty to the Attorney General to investigate on the complaints that there was not humanlike treatment to any person in custody or was not allowed such person to meet his/her relatives directly in person or through legal practitioners. In such situation the Attorney General should give necessary directions to the concerned authorities to prevent from such situation.

Information to the Parents, Guardians, Social Worker, Child Psychologist and Social OrganizationThe investigating authority should inform the guardians of 'the children' about their arrest and place of detention. The investigation offi cer shall give a notice of delinquency by 'the children' to both father and mother, if available, or at least one out of them and the guardian if there are no parents of 'the children'. Every individual have constitutional and legal rights to visit with their parents, guardians, family members and consult with their lawyers in the detention center.

Social Worker and Child Psychologist should be involved in every sphere of the juvenile justice process. They cannot function separately from the investigation process. A Social Inquiry Report and Psychological Assessment report of 'the children' is essential to precede the case in court. Therefore, the Social Worker needs to prepare a comprehensive report of 'the children' involved in the incidence. The Child Psychologist shall also prepare a Psychological Assessment Report of 'the children'. The Juvenile Court (Bench) constituting the bench of a Social Worker and a Child Psychologist with a Judge shall consider both the reports before reaching to a conclusion. For this purpose the crime investigating offi ce must have a roster of Social Worker, Child Specialist or Child Psychologist and should inform them before initiating investigation of the cases of 'the children'. They should also inform a social organization

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involved in safeguard the rights and interests of the child to prepare the Social Inquiry Report of 'the juvenile'. The purpose of preparing Social Enquiry Report is fundamentally to assist the court with sentencing by providing an impartial and professional assessment of the nature and causes of offender's background.5 Nonetheless, the investigating authority indicating practical implication ignores the mandatory provision to prepare and bother to submit it with a charge-sheet. Prosecutor has the responsibility to ask investigating authority to submit it, but they hardly ask the authority to submit. It has been noticed that many times the juvenile bench are ordered to submit the said report as per the legal provision.

Judicial Custody or RemandAccording to the Article 20(3) of the Constitution of Nepal, 2072 (2015), 'every person including juveniles' arrested shall be produced before a judicial authority within a period of 24 hours after such arrest, excluding the time necessary for the journey from the place of arrest to such authority. Similarly, no such a juvenile shall be detained in custody beyond the stated period except on the order of such authority. The period for judicial custody is not exceeding a total of 25 days upon the request made once or time and again based on the request of the investigation offi cer and if judicial authorities are satisfy with the investigation as followed. There is a provision to lodge an application before the judicial authority for physical examination if any torture given in detention to 'the juvenile'.

Interview and Statement RecordingThe investigation offi cer may ask question, take interview and record statement of 'the juveniles' in front of the government attorney without missing the presence of their parent or guardian. The Juvenile Justice (Procedure) Rules, 2063 (2006) has made provision that while taking statement of a juvenile the Investigation Offi cer should ask the question in an easy manner upon creating such a child friendly environment where he or she can comfortably answer the

5 Dr. Laxmi Prasad Mainali & Rom Thapa. (2016). "Juvenile Justice Process in Nepal." In Prof. Dr. Shanta Niraula, Sandesh Dhakal & Rom Thapa (Eds.), Child Psychology and Juvenile Delinquency, Kathmandu: Central Department of Psychology, Tribhuvan University and Juvenile Justice Co-ordination Committee. p.195.

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questions asked. In this process the presence of the father, mother, guardian, legal practitioner or representative of the child welfare home or orphanage, has been made necessary. 'The juvenile' in investigation process is absolutely free to give statement and testimony. The CRC protects the rights of the child not to be compelled to give testimony or confess guilt. The Right to Remain Silence is guaranteed by the Constitution. In this process some time if 'the children' have language problem or are from different language speaking region s/he should be facilitated with an interpreter.

There is no any limitation or boundary for investigation procedure. Investigation Offi cer may collect relevant evidences to determine whether 'the juvenile' is guilty or innocent. They can also obtain expert opinion (forensic, medical or any other) to reach in a conclusion whether to charge 'the children' or not. The investigation procedure as discussed is general as well as specifi c to 'the juvenile'. The international, regional and national legal instruments are always pertinent to protect the best interest of the children in confl ict with law.

4.5 Application of Fair Trial Principles during InvestigationEvery person has the right to a fair trial both in civil and in criminal cases, and the effective protection of all human rights very much depends on the practical availability at all times of access to competent, independent and impartial Courts of law which can, and will, administer justice fairly. The fair trial principles are universally accepted and applied principles to protect the rights of the accused and arrested person in any criminal offences. These are the constitutional rights as guaranteed by the constitution of Nepal. The fair trial principles are the general principles applicable in every stage of process i.e., investigation, to the trial. These fair trial principles are recognized and protected by several international and regional legal instruments as well as domestic laws. Juvenile justice system promotes and protects the rights and interests of 'the children' are not separate from the ambit of fair trial principles. Therefore, it is pertinent to discuss about the application of the principle of fair trial in investigation, prosecution and trial.

Right to Equality before the Law and Equal Treatment by the Law (Principle of Non-discrimination and Equal Access to the Courts)

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The right to equality before the law and equal treatment by the law or in other words, the principle of non-discrimination, conditions the interpretation and application not only of human rights law stricto sensu, but also of international humanitarian law.

The principle of equality must be guaranteed throughout the pre-trial and trial stages. Every suspect or accused person has the right not to be discriminated against in the way the investigations or trials are conducted or in the way the law is applied to them. Further, whether individuals are suspected of a minor offence or a serious crime, the rights have to be equally secured to everyone. Secondly, the principle of equality means that all persons must have equal access to the Courts in order to claim their rights.

Right to be Presumed Innocent (The Overall Guarantee From Suspicion or Conviction)The right to be presumed innocent until proved guilty is another principle that conditions the treatment to which an accused person is subjected throughout the period of criminal investigation, prosecution, trial proceedings, up to and including the end of the fi nal appeal.

The principle of presumption of innocence means that "the burden of proof of the charge is on the prosecution and the accused has the benefi t of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial."

Right to be Treated with Humanity and the Right to Freedom form TortureThe peremptory nature both of the right to life and of the right to freedom from torture and other cruel, inhuman or degrading treatment or punishment is moreover underlined by the fact that these rights cannot be derogated from under international human rights law even in the gravest of crisis situations. The existence of torture is thus not a legal problem per se, but rather one of implementation of the law, which poses a true challenge to the world community.

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Torture and other forms of ill-treatment are prohibited at all times, including during criminal investigations, and can never be justifi ed; these are acts that must be prevented, investigated and punished. The Judges, Prosecutors and Lawyers must be particularly alert for any sign of torture or ill-treatment to the women and 'the children' in custody. The fundamental nature of the prohibition of torture is further underlined by the fact that, according to Article 7 of the Rome Statute of the International Criminal Court, torture constitutes a crime against humanity "when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."

Right not to be Compelled to Testify against Oneself or to Confess GuiltIn determination of any criminal charge every person has the right not to be compelled to testify against him/her or to confess guilt. In order to compel the accused to confess or to testify against him/her, frequently methods which violate these provisions are used. The law should, however, require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable. Moreover, Judges should have authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution. A confession of guilt by 'the juvenile' shall be valid only if it is made without coercion of any kind.

Right to be Informed of the Charges in a Language One UnderstandsThe right to be informed of charges in a language one understands implies that the authorities must provide adequate interpreters and translators in order to fulfi ll this requirement. This process is essential for the purpose of allowing a suspect to defend him or herself adequately.

A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which s/he understands the information. The Right to be Informed applies to all cases of criminal charges, including those of persons not in detention and the term 'promptly’ requires that information is given in the manner described as soon as the charge is fi rst made by a competent authority. In the case of 'the juvenile' it is not suffi cient to inform the minor without informing their parents, guardian or child welfare organization.

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Right to Legal AssistanceThe right to prompt legal assistance upon arrest and detention is essential in many respects, both in order to guarantee the right to an effi cient defense and for the purpose of protecting the physical and mental integrity of the person deprived of his/her liberty. While all relevant human rights treaties guarantee the right of an accused to legal counsel of one’s own choosing. For the purposes of his/her defense, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defense and to prepare and transfer to him confi dential instructions if any. The Body of Principles have laid down some procedure to materialize this rights as:

• A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.

• S/he allowed adequate time and facilities for consultation with his/her legal counsel.

• The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confi dentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specifi ed by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

• Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement offi cial.

• Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.

Right not to be forced to testify against oneself/the right to remain silentThe right not to be compelled to testify against oneself follows the right to remain silent. The effective protection of this right is of particular importance in the course of the preliminary investigations, when the temptation may be

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greatest to exert pressure on the suspected persons in order to have them confess guilt.

Article 42(2) of the CRC protects the right of the child not to be compelled to give testimony or confess guilt. Similarly, Article 15(1) of the International Covenant on Civil and Political Rights, 1966 guarantees the right of everyone "not to be compelled to testify against himself or to confess guilt." In Nepal, Constitution guaranties this right to every individual during crime investigation and trial. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

Right to Adequate Time and Facilities to Prepare One's DefenseIn the determination of any criminal charge, the persons arrested have adequate time and facilities for the preparation of his/her defense and to communicate with counsel of his/her own choosing. The right of an accused person to have adequate time and facilities for the preparation of his/her defense is an important element of the guarantee of a fair trial and a corollary of the principle of equality of arms. Adequate time and facilities means suffi cient time to appoint legal counsel for the preparation of his/her defense.

The meaning of 'adequate time' depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his/her case, as well as the opportunity to engage and communicate with counsel. This provision moreover requires counsel to communicate with the accused in conditions giving full respect for the confi dentiality of their communications, and lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgment without any restrictions, infl uences, pressures or undue interference from any quarter.

The application of fair trial principle in trial process will be discussed in the subsequent topic as adjudication process of the case of 'the children'.

4.6 Investigation Offi cer's Opinion and Final ReportThe Investigating Offi cer, after completion of the investigation, should submit

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the fi le and a copy of report along with his opinion to the District Government Attorney Offi ce. The opinion of the Investigation Offi cer basically comprises personal details of the accused to be prosecuted, the offences to be established and charge to be made against him/her, relevant evidentiary documents to support the charge and legal provisions to establish the offence and punishment as mentioned for such offences. The opinion of investigation offi cer with his fi nal report is a basic document to the District Government Attorney to reach in a conclusion that whether there are suffi cient evidences to prosecute the case or not.

4.7 Role of Government Attorney in Investigation Procedure Criminal justice system in Nepal was fashioned with inquisitorial system till 1992. The legal system started to change to adversarial system with various changes in many aspects of the Nepalese justice system. With the enactment of the Government Cases Act, 2049 (1992), the court has been placed as a neutral body or an umpire in the trial process. Criminal investigation, prosecution and trial are conducted separately by three separate organizations. Therefore, the entire criminal investigation is conducted by legally defi ned organizations. Crime investigation has become an autonomous part of criminal justice system of Nepal. Nepal Police is the principal organization for the investigation of major traditional crimes as mentioned in schedule-1 of the Government Cases Act, 2049 (1992). The concept of juvenile justice came along with this change. So, the role of Government Attorney (Public Prosecutor) in crime investigation is legally defi ned in two events. First, after FIR registration the Investigation Offi cer, prior to initiate the investigation should submit a preliminary report to the Government Attorney about the crime and further initiation to be taken to precede investigation. After receiving the preliminary report, the Government Attorney may give necessary instructions to the Investigation Offi cer who has been assigned for the investigation and then the process of interview (statement) recording of 'the juvenile'. The Investigation Offi cer should produce 'the juvenile' before the Government Attorney to take his/her statement. The Government Attorney should observe the interview process and provide necessary instructions to the offi cer taking statement of 'the juvenile'. It is essential for the Prosecutor to play the role of protecting the best interest of the child.

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4.8 Role of Judicial Authority during Investigation StageJudiciary is independent, impartial and transparent in Nepal. As discussed above, Nepal has receipt Common law adversarial system leaving behind the inquisitorial for criminal justice system. The judicial authorities are not directly involved in any investigation procedure. During crime investigation, if 'the children' or an adult is arrested, the Investigation Offi cer produced them before the judicial authority within 24 hours for the extension of detention period. The judicial authority while for deciding on the application for judicial remand should examine the relevant documents and determine whether the investigation is satisfactory or not. If the Court fi nds the investigation satisfactory, it may grant judicial custody not exceeding a total of 25 days upon the request made once or time and again. The person produced before the judicial authority for judicial remand may lodge an application for his physical examination and the judicial authority may order to the investigation offi cer to precede fresh medical examination of the applicant and submit the report to the Court.

5. Prosecution of Puvenile Delinquency CasesThe fi nal prosecuting authority for government cases in Nepal lies on the Attorney General. Article 158 of the Constitution of Nepal promulgated in 2072 (2015) has vested the Attorney General with the authority to make the fi nal decision as to whether or not to initiate proceedings of any case on behalf of the Government. Attorney General is the fi nal prosecuting authority for the government cases in Nepal and all Government Attorneys are subordinate to him/her. Government Attorney in every district represents Attorney General with the authority to make fi nal decision to initiate proceedings in any case on behalf of the Government of Nepal in any court or judicial authority. The prosecutorial decision process is an important process in criminal justice system. The Prosecutor has sole discretion to reach in a conclusion that a person is to be prosecuted or released, likewise, that only some of the persons are prosecuted and others are released from the prosecution, on the ground that the available evidences and witness are qualifi ed or not to prosecute them. Once a decision is done that is considered as fi nal decision and no any modifi cation and correction can be done.

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Cases as defi ned in schedule-1 of the Government Cases Act and related to 'the children' are prosecuted by the Government Attorney on the basis of the evidences and the report received from the investigation offi cer. In Nepal, prosecution decision and prosecutorial rights are also exercised by some other authority as defi ned by some specifi c Acts.

5.1 Charge-Sheet Framing and ProsecutionDistrict Government Attorney after making decision to prosecute the case shall prepare a charge-sheet and submit it to the relevant District Court, within the time period, attaching the evidences relevant to the crime and the 'the juvenile' if it has in judicial custody.6 The charge-sheet should be framed with following particulars:

• The detail identifi cation of 'the children.' If the accused is 'the children' and women then only a changed name and personal details should be mentioned in the charge-sheet.

• A short description of the FIR, • Particulars of the act behaved by 'the children', • Charge against 'the children' and relevant evidences,• Applicable law,• Punishment sought for the offence, • Amount of compensation if it is to be proved to victim; and• Social inquiry report of 'the children' as prescribed by the law.

After framing charge-sheet the Government Attorney submit it in the Court with relevant documents and 'the children' if it has in custody. In some cases, if Government Attorney decides that the case does not qualify for further action they returns back the case fi le with necessary instruction to release person in remand. It is mandatory for prosecutor to submit Social Inquiry Report along with charge-sheet as prescribed by Juvenile Justice (Procedure) Rules, 2063 (2006) but the valued legal responsibility is hardly fulfi lled. After submitting the charge-sheet, Government Attorney should provide a copy of the charge- sheet to the parents or guardians of 'the children' and the Investigation Offi cer.

6 OAG. (2007). Prosecutor's Manual. Kathamandu: Offi ce of Attorney General (OAG). p. 211.

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6. Adjudication and Disposition of Juvenile Delinquency CasesOnce the decision is made to fi le the case to the Court, the next stage in the juvenile justice process is the juvenile trial or the adjudication hearing. The trial stage of Juvenile Court proceedings can be divided into the adjudicatory hearing and the disposition hearing. The adjudicatory hearing is called fact fi nding stage of the court's proceedings and adjudicatory hearing is different from the fact fi nding stage.7 However, we see no such distinction in Nepal. The hearing of delinquency cases is conducted in a Juvenile Bench formed within the premise of District Court. If the accused is found to be a juvenile, the case is referred to the Juvenile Bench. If there are more than one accused of the same offense, and one or more of the accused have reached the age of majority, the case will be tried by an ordinary bench of the District Court. Apart from the Children's Act, Government of Nepal has framed a rule as Juvenile Justice (Procedure) Rules, 2063 (2006) to fulfi ll the commitment for protecting the interest of the children mentioned while ratifi cation of CRC. The Rule has made provision to constitute a Juvenile Bench in each District Court comprising of Social Worker, Child Specialist or Child Psychologist in addition to the Judge. The qualifi cation, selection procedure, exercise of jurisdiction and disciplinary action of Social Worker, Child Specialist or Child Psychologist are specifi ed in the Rules.

A Social Worker, Child Specialist or Child Psychologist should initiate their job as prescribed by the Rules. District Judge should consider the report of the Social Worker, Child Specialist or Child Psychologist for the hearing of cases. The Social Worker should prepare report based on the inquiry of the behavior of the juvenile and the society around him/her. Similarly the Child Specialist or the Child Psychologist should prepare report based on the psychological assessment of the juvenile. The Social Worker, Child Specialist or Child Psychologist neither refl ect their personal view in the report nor do they spell-out on legal issue. Their roles are defi ned; they should focus on the social, behavioral and psychological perspective of 'the juvenile'. The opinion reports of the Social Worker, Child Specialist or Child Psychologist are supportive to the District Judge to reach in a judicial conclusion considering best interest and welfare of the child.

7 C. Bartollas. (2000). Juvenile Deliquency. Gould Street: Allyn and Bacon. p. 96.

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6.1 In-camera Hearing and Confi dentiality of Personal IdentityRights to privacy of child should be protected at all stages of judicial proceeding in order to prevent further harm to a juvenile. Information such as image of the juvenile, detailed descriptions of the juvenile or juvenile's family, names or addresses and any audio or video records, which may lead to identifi cation of a juvenile, should not be published. The in-camera hearing and confi dentially of the name, address and personal information of 'the children' is the most important factor in juvenile justice system. Supreme Court has issued a guideline in this respect.

Protecting a juvenile's or child victim's right to privacy can be done by restricting the disclosure of information by keeping all documents that have identifying information about the child in a secure place with restricted access. Another way of protecting a child's privacy is restricting attendance during judicial proceedings and in in-camera hearing.

The Children's Act, 2048 (1992) has also made provision in this regard. As mentioned in the Section 49 of the Act, the legal practitioner or the father, mother, relatives or guardian of 'the children' and if the offi cer hearing the case deems it appropriate and permits any person or the representative of the social organization involved in safeguarding the rights and interests of 'the children' may attend in the bench in the proceedings of any case related with 'the children'.

6.2 Case Hearing: Statement Recording of 'the Children'The Court hearing begins with the charge-sheet registration in the District Court. The Court in its fi rst instance should record the statement of 'the children'. The Court should hear the case in a child friendly environment so that 'the children' do not feel nervousness during the entire Court proceeding. The Court should use language which 'the children' can understand or which is suitable for the physical and mental development of 'the children'. The Court should provide detailed information to 'the children' and his/her parents, guardians or caretaker, who so-ever is present in the Court about the charge and evidences against him/her.

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There is a specifi c provision that 'the children' should be interviewed in a separate room of the Juvenile Court in which a camera is attached, and that such questioning is visible at the screen of the Bench. In order to make questioning and statement recording process easy and trust worthy the Social Worker and Child Specialist or Psychologist should attend and co-operate with the Court staff. The father, mother, guardian or legal representative of 'the children' may sit along with 'the children' during this process. The children' are not compelled to record their statement even in the Court. The CRC and ICCPR protect the right not to be compelled to give testimony or confess guilt. The Right to remain silent is also guaranteed by the Constitution of Nepal.

6.3 Social Inquiry Report (SIR)As mentioned above, it is the responsibility of the prosecutor to submit the Social Inquiry Report prepared during the investigation stage. If it is not submitted to the concerned district court then the district court should show sensitivity to ask the Prosecutor to submit the report as soon as possible. Juvenile cases are sensitive, thus Judges are not allowed to be subjective while deciding the case. In order to be objective regarding the juveniles' issue, a mandatory legal provision should be applied to submit the report. The purpose of the Social Inquiry Report is to assist the court with sentencing by providing an impartial and professional assessment of the nature and causes of juvenile delinquency cases. Social Inquiry Report of 'the children' is an essential document in the case fi le. The case should not be heard without it. The Investigation Offi cer should request the service providing agencies or person for the preparation of Social Inquiry Report relating to 'the children' in accordance with the format as prescribed in the schedule of the Juvenile Justice (Procedure) Rules, 2063 (2006). As discussed above the juvenile bench is comprised with Social Worker, Child Specialist or Child Psychologist so that they can prepare and review the Social Inquiry Report and Psychological Assessment Report of 'the children'. The Juvenile Bench, if found that the Social Inquiry Report of 'the children' was not attached with the charge-sheet, may issue an order to the name of service providing agencies or person formed in accordance with the prevailing law to prepare and submit such report with a view to protecting the rights and interests of the child.

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6.4 Both Party Hearing for Bailment and BondBoth party hearing begins with the bailment proceedings just after the completion of statement recording. The Children's Act, 2048 (1992) has made special provision to safeguard the rights and interests of 'the children' in trial proceeding. The right to representation by a legal counselor is a fundamental right guaranteed by the Constitution itself. It is one of the prerequisites of the fair trial as well as due process of law. This right is inviolable even in the criminal trial. The signifi cance of the right is further greater in the juvenile justice. In fact no Juvenile Bench can be set without the presence of a lawyer to represent the juvenile. If there is no legal representation of 'the children' the Juvenile Bench shall make available the service of a paid lawyer for the purpose of legal aid or any other legal practitioner wishing to provide such service. But a study report indicates that only in 138 cases (83.13) out of the 166 cases, the presence of lawyers was secured. In 28 cases, however, the juveniles were found tried without lawyers' representation.8

The Juvenile Bench issues its order whether to release 'the children' on bail or bond or to keep him/her under judicial custody for the trial purpose. Sometime problems arise deciding whether 'the children' should be sent to the Juvenile Correction Home or release on bail or bond. There are different opinions on bail or property bond not to be asked to 'the children' who have no source of income and also do not have any property in their disposal. On the other hand it is said that 'the children' should not be kept in judicial detention if there are other alternatives available. Detention should be the measure of last resort to the children in confl ict with law. Supreme Court has dismissed the District Court order to detain 'the children' who have failed to deposit the bail amount. Supreme Court held that it is not appropriate to keep 'the children' in jail on the ground of failure to deposit the bail amount. Similarly, in another case Supreme Court released 'the children' from Juvenile Correction Home in which the District Court had sent 'the children' to the Juvenile Correction Home on the ground that 'the children' had failed to deposit the bail amount.

The Children's Act, 2048 (1992) provides discretionary power to the court or the

8 CeLRRd. (2010). Baseline Survey on Juvenline Justice System in Nepal. Kathmandu: Center for Legal Research and Resource Development (CeLRRd). p. 81.

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offi cer hearing the case to place 'the children' elsewhere than a detention center, considering factors such as physical condition, age of 'the children', place of imprisonment and circumstances surrounding the commission of the offence. The Court or the offi cer hearing the case may issue an order to handover 'the children' to the custody of their father, mother, relatives or guardian or any social organization involved in safeguarding the rights and interests of the child or the Juvenile Correction Home on the condition to present them as and when required and to carry on investigation or proceeding of the case.

In general procedure, if a person is accused of crime that is punishable with imprisonment of more than three years, and the evidence collected shows prima facie that the accused has committed the crime; they will be kept in jail under judicial custody until the fi nal decision of the case. Considering the provisions the Court has to decide whether or not to grant bail or bond to 'the children'. If they are not granted bail or handed over to their parents, a guardian or social institution, then 'the children' must be sent to the Juvenile Correction Home for the purpose of judicial custody.

Sometime during the bailment proceedings if 'the children' states their age to be different from that mentioned in the charge sheet, the judge must order for the medical examination of 'the children' to determine their actual age. The judge may ask for other evidences such as birth registration certifi cate, vital registration of birth certifi cate or school record of date of birth prior to issue an order for medical examination.

6.5 Witness ExaminationAfter the completion of the bailment process, the examination of witnesses starts. The Court fi xes a date for the examination of witnesses and verifi cation of the documentary evidences submitted with the charge sheet. Both parties are informed and are required to present their evidence and witnesses in due date. If 'the children' wants to produce his/her witness on his/her own accord, the Juvenile Bench may give permission to produce such witnesses. If any person has any evidence refuting the charge made against 'the children', such person may submit an application to the Juvenile Bench requesting for the examination of such evidence. The bench may give permission to submit

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such evidence when received such application. This is special provision not easily available to adult, in the trial process of juvenile justice. As witnesses are valuable evidence in criminal cases, other evidences in the case fi le shall be verifi ed with their statement. Therefore, their presence in the court is important. If witness do not appear before the court on the scheduled date of hearing and if their statement is essential to decide the case, then the court can issue a summon notice for the witness and if they do not present themselves they shall be arrested and punished for fi ne and imprisoned. The Court or the Bench may order any expert to be present in the Court for their statement providing ideas on technical issues which may be necessary to understand the case better.

6.6 Disposition of the CaseAfter the completion of the procedure of verifi cation of documentary evidence and examination of witness, the Court administration fi xes the date for fi nal hearing of the case. The Juvenile Bench hears both parties before making any decision. The Bench will pronounce a verdict of either guilty or not guilty and determine punishment at the same time. If guilty verdict is awarded to 'the children' there is special provision regarding the criminal liability of 'the juvenile' and the mode of serving punishment. The legal provision regarding to the criminal liability of 'the children' is different than an adult. Section 11 of the Children's Act makes specifi c provision in this regard. If 'the children' are below ten years they are immune from criminal liability. If 'the children' are above ten years and below fourteen years and commit any offence that is punishable with a fi ne they shall be warned and released informing the nature of offence they have committed and the punishment for such type of offence. If 'the children' commit an offence punishable with imprisonment they shall be imprisoned for a term not exceeding six months, depending on the nature of the offence. If any offence is committed by 'the children' above the age of fourteen years and below sixteen years there shall be half of the punishment that is awarded to an adult person. The Act prohibits imposing rigorous punishment to 'the children' and to keep them in jail with mature people. Supreme Court has issued a directive order to the Prime Minister and the Cabinet to adopt appropriate measures for restriction of physical/corporal punishment and other cruel, inhuman or degrading treatment infl icted against 'the children'.

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There is protection against disqualifi cation and additional punishment for those who repeatedly commit crime. A child, after growing up, shall not be disqualifi ed from holding any public offi ce or enjoying any facility due to an offence committed during their childhood. Similarly, he/she is not subject to additional punishment for committing offences more than once during their childhood. The offence committed during their childhood shall not be taken into account for the determination of recidivism if the child commits any offence after attaining the age of majority. These are special provisions in regard to the children in confl ict with law.

The Juvenile Bench hearing the case is given discretionary power to suspend and modify the way of punishment to 'the juveniles' who is convicted and sentenced to imprisonment to a Juvenile Correction Home. The Court in determining alternatives to imprisonment may order that 'the children' be placed in the guardianship of any person or organization. While prescribing such an alternative, the Judge must take into consideration the factors as the physical condition and age of 'the children', the circumstances at the time of commission of offence and possibility or repetition of the offence. Supreme Court has quashed the decision of the District Court to keep 'the children' in imprisonment with adults for the term when they failed to deposit the fi ne amount.

The Judge may order the suspension of a sentence of imprisonment and place 'the children' in the control of their family, an appropriate social organization or the Juvenile Correction Home. But, if 'the children' commits any offence during the period of one year from the date of suspension of imprisonment the Judge may award punishment adding the punishment given for the previous offence. These provisions provide opportunity to 'the children' and their parents and guardian to correct the extra-legal behavior of 'the children'.

7. Juvenile CorrectionChildcare and protection had been accepted as the responsibilities of the modern welfare state. So, it is the obligation of the nation to establish correction mechanism for the protection of the children in confl ict with law. It is generally

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recognized that the primary intent of the juvenile justice system is to help juvenile offenders and prevent them from reoffending.9 A separate mechanism and structure is needed to correct such children. Section 42 of the Children's Act, 2048 (1992) has provision that the Government of Nepal shall establish Juvenile Correction Home as required along with the provision which can be used temporarily at Children's Welfare Homes, Orphan Homes or Centers established by individuals or organization as the Juvenile Correction Homes. A child who is accused of an offence and to be detained for investigation or trial, or a convicted and sentenced with imprisonment could be kept in such Juvenile Correction Home.

However there is no provision to take action against children on status offence in Nepal, but by making the provision of keeping the children in Juvenile Correction home who is addicted to drugs, a runaway, accompanied with the person involved in immoral or undesirable activities or based upon their earnings; the concept of status offence seems to be recognized indirectly.

In order to manage the Juvenile Correction Home, the Ministry of Women, Children and Social Welfare may form a Management Committee with maximum seven members comprised of local social workers, women social worker, doctors, child psychologist, and teacher as available. The Juvenile Correction Home is responsible to provide vocational education and skill oriented training to children, offer different kinds of sports, entertainment, and cultural programs. Along with those extra-curricular activities for children living in Juvenile Correction Home in addition to the regular education is also necessary.

There is a provision of inspection of Juvenile Correction Home by Central and District Child Welfare Board or Child Welfare Offi cer. None of Juvenile Correction Homes are directly operated by the government yet. The fi rst Juvenile Correction Home was fi rst established in Bhaktapur in 2001 by a tripartite agreement among Ministry of Women, Children and Social Welfare,

9 Ved Kumari. (2004). The Juvenline Justice System in India: From Welfare to Rights. New Delhi: Oxford University Press. p. 302.

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Department of Prison Management and a NGO, Underprivileged Children's Educational Program (UCEP-Nepal).

Ministry of Women, Children and Social Welfare has been providing certain resources to operate that Juvenile Correction Home. Similarly, the Department of Prison Management is providing the facilities to the juveniles living in Juvenile Correction Home as equal to the prisoners in prison. The security of Juvenile Correction Home is arranged by Government of Nepal and other personnel are appointed by the home itself. To regulate the operation of Juvenile Correction Home, Government of Nepal has adopted Juvenile Correction Home Operational Procedure on January 8, 2001.

8. DiversionAt one time or another, almost all adolescents engage in risky behaviors, act without thinking, and making bad decisions more often than they will as adults; thus, many may engage in what would be judged as illegal behavior. Most juveniles are not apprehended every time they do so, but arrest is a common experience among juveniles. Given these facts, a strong argument can be made for having a way to avoid formal processing of juveniles through the juvenile justice system under certain conditions. "Diversion is premised on the belief that juvenile justice system processing does more harm than good, with primary attention directed at two specifi c negative consequences. First, juvenile justice system processing provides juveniles with delinquent self-image and second, the processing stigmatizes juveniles in the eyes of signifi cant others."10 Therefore, it is important to have a way for juveniles to avoid formal processing under certain conditions. Without such a mechanism, large numbers of juveniles are unnecessarily charged and processed through the system, thus increasing youth's probability of further delinquencies due to their exposure to other delinquent juvenile during this process. Reduction of recidivism by juveniles and reduction of social control are the most frequently mentioned objectives and the most widely used criterion for diversion program effectiveness. To meet these primary goals many countries have applied diversionary mechanism in their juvenile justice system.

10 Richard J. Lundman. (1993). Prevention and Control of Juvenline Deliquency. New York: Oxford University Press. p. 113.

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Diversion is "an attempt to divert, or channel out, juvenile delinquents from the juvenile justice system." In other words it can be defi ned as a process, and even a right of a child under international law, of channeling away of young offenders from punishment in the juvenile justice system. However, diversion is more than merely about diverting young offenders from punishment; it is also equally about leading the young offender toward correction and rehabilitation. "Diversion explicitly means to protect the child against the stigma of Court procedure and punishment".11 The concept is based on the theory that processing certain juveniles through the juvenile justice system may do more harm than good.12 The basis of the diversion argument is that Courts may inadvertently stigmatize some juveniles for having committed relatively petty acts that might best be handled outside the formal system. In part, diversion programs are also designed to ameliorate the problem of overburdened Juvenile Courts and overcrowded corrections institutions, so that Courts and institutions can focus on more serious offenders. Fundamentally, the aims of any diversionary programs are:

• Making offenders responsible and accountable for their acts, • Provide an opportunity for reparation, • Identify underlying problems motivating offending behavior, • Protect children from receiving a criminal record, • Provide educational and rehabilitative programs, and • Ease case-load of the formal justice system.

South African juvenile justice system is famous for its laws child justice and has underlined the purpose of diversion as (Pradhananga, Mainali, Adhikari, Thapa, & Khatiwada, 2012):

• Encourage the child to be accountable for the harm caused, • Meet the particular needs of the individual child, • Promote the reintegration of the child into the family and community,• Provide an opportunity to those affected by the harm to express their

views on its impact on them,

11 John Muncie & Barry Goldson. (2006). Comparative Youth Justice. London: Sage Publications Ltd. p. 214.

12 Supra Note 1.

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• Encourage the rendering to the victim of some symbolic benefi t or the delivery of some object as compensation for the harm,

• Promote reconciliation between the child and the person or community affected by the harm caused by the child,

• Prevent stigmatizing the child and prevent adverse consequences fl owing from being subject to the criminal justice system; and

• Prevent the child from having a criminal record.

Diversion can take place throughout the juvenile justice process – from the initial contact with law enforcement offi cials all the way through to diversion from adjudication. When the juveniles apprehended or arrested, the Police Offi cer can utilize the measures. Since one of the primary functions of diversion is to avoid or minimize formal processing, diversion measures could be initiated at the earliest possible point of contact with the youth. In this perspective it can be said that diversion option can be invoked, according to the nature of the case, immediately after the commission of an offence, during investigation, during trial or after the adjudication. But not every child who comes in confl ict with law should be diverted and not every diversion program is appropriate for all children in confl ict with law. Law enforcement agency and the Courts should develop criteria and use their discretion in deciding which child should be diverted to diversion program.

In the context of Nepal, diversion is a new concept yet to recognize in our justice system. Nepalese Children's Act is almost 25 years old and this Act yet to introduce the concept. Though some juvenile justice practitioner in Nepal claim that provision of Juvenile Correction Home and suspended sentence on behalf of delinquents are the diversionary measures. But both the provisions do not fulfi ll to be claimed as diversion measure because for it there should be monitoring authority to evaluate the actual application.

9. Restorative JusticeRestorative justice is a new way of thinking about and responding to crime. It is concerned with achieving justice for both victim and offenders.13 It emphasizes

13 LaMar Taylor Empey, Mark C. Stafford & Carter H. Hay. (1999). American Deliquency: It's

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one fundamental fact: crime damages people, communities, and relationships. If crime is about harm, then the justice process should emphasize repairing the harm. As a vision for systemic juvenile justice reform, restorative justice suggests that the response to youth crime must strike a balance among the needs of victims, offenders, and communities, encouraging each to be actively involved to the greatest extent possible in the justice process. Restorative justice builds on traditional positive community values and on some of the most effective sanctioning practices, including victim-offender mediation, various community decision making and conferencing processes (for example, reparative boards, family group conferencing, and circle sentencing), restorative community service, restitution, victim and community impact statements, and victim awareness panels.

The most new and important ideas in restorative justice are expressed in a set of principles that redefi nes the way justice systems address public safety, sanctioning, and rehabilitative objectives. Specifi cally, when crime is understood as harm and justice is understood as repair and/or healing, and when the importance of active participation by victims and community members in response to crime is emphasized, basic community needs are understood and addressed in a different way.

Today, when a crime is committed, most juvenile justice professionals are primarily concerned with three questions: who did it? what laws were broken? what should be done to punish or treat the offender? Although questions of guilt, law-breaking, and appropriate intervention are certainly vital to prosecutors, these questions alone may lead to a limited range of interventions based solely on treatment and punishment, which cannot meet the complex needs of the community, victim, offender, and family.

Defi ning the harm and determining what should be done to repair it are best accomplished with input from crime victims, citizens, and offenders in a decision making process that maximize their participation. The decision about who is responsible for the repair focuses attention on the future rather than the

Meaning and Construction. Belmont: Wardsworth Publishing Company. p.9.

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past and also sets up a different confi guration of obligations in response to the crime.

No longer simply the object of punishment, the offender is now primarily responsible for repairing the harm caused by his or her crime. A Restorative Juvenile Court and justice system would, in turn, be responsible for ensuring that the offender is held accountable for the damage and suffering caused both to victims and victimized communities by supporting, facilitating, and enforcing reparative agreements. But, most important, crime victims and the community play critical roles in setting the terms of accountability and monitoring and supporting completion of obligations.

If crime victims and the community are to become fully engaged as active participants in the response to youth crime, juvenile justice professionals must begin to think about these stakeholders in different ways. To move forward with this new agenda, it is very important to understand the potential role of crime victims as key stakeholders in the response to youth crime. In addition, the role of the professional and the mandate of the juvenile justice system are likely to change.

Restorative justice incorporates three basic principles in its approach to sentencing. First, crime is not just an act against the state but against particular victims and the community in general. Offending, than is primarily a breach of human relationship and only secondarily, a violation of law. As such, the community, family member and supporter rather than the state and its justice machinery are considered the locus of crime control. Toward these ends the restorative model seeks the active participation of victim, families, and community representatives to address the causes and consequences of offending. Second, the primary aim of this approach is making amends for the offending, particularly the harm caused to the victim rather than infl icting pain upon the offenders. Accountability is defi ned as recognizing the wrongfulness of one's conduct expressing remorse for any resulting injury, and taking action to repair the damage done by the offending. Crime creates positive obligation, this approach argues, that require affi rmative action on the part of offender.

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Finally, restorative justice envisions a collaborative sanctioning process involving all stakeholders concerned with the offender and offence. The central feature is largely uninhibited dialogue among the parties, allowing all present to express their emotions and ideas in an open forum. Through discussion and deliberations, restorative sanctioning contemplates mutual agreement and the steps that must be taken to heal the victim and the community, as well as a plan to confront the factors contributing to the offender's conduct and facilitate his development as a law-abiding citizen."

9.1 Use of restorative justice A restorative intervention can be used at any stage of, the criminal justice process; although in some instances amendments to existing laws may be required. Generally speaking, there are within a criminal justice system four main points at which a restorative justice process can be successfully initiated. The fi rst use of restorative justice was as part of pre-sentence preparation. After the determination of guilt, the judge or probation offi cer responsible for a pre-sentence investigation referred the matter to the restorative program, and if the parties were willing, they would meet. Any agreement reached as a result of the restorative process would be presented to the Judge as recommended sentence.

The use of restorative process continues, as noted below. However, they have also been used in virtually every part of criminal justice. Their effects on the sentence and/or on the criminal proceeding are used from program to program. In some instances the result helps guide decisions by decision-makers in the justice system. In others, the result is independent of the justice process and has little if any effect on the outcome of the criminal justice proceeding.

Police and Restorative JusticeIn a number of countries, police have begun using restorative process in deciding what to do with juveniles and adult who come to their contact. This is, of course, only possible where police are given discretion to decide how to proceed with a matter. In New Zealand, the Children, Young Persons and Their Families Act, 1989 created a restorative alternative for police called family group conferences. One of the purposes of the Act was to divert juveniles from youth

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court. Even when matters were referred to the court, it offers victims, offender, and their families a voice in deciding what sentence the judge should impose. When police do not refer juvenile to conferences or court the offenders are often require making apologies, doing community service or paying restitution.

In some jurisdiction, the police conduct conferences themselves rather than referring the young people elsewhere. Thomas Valley police in England train Police Offi cers to conduct conferences that may involve the victim and offender, their family and friend and in some instances member of the community. A number of other countries have adopted similar programs successful completion of a mediation agreement results in the dismissal of charge and may, as in Norway, mean that the case is removed from the ordinary police certifi cate good conduct.

Use by ProsecutorAs general rule, prosecutors are given more discretionary power than Police, and Courts more than Prosecutors. In common law countries, Prosecutors have the authority to divert case. But even in civil law countries, recent legislation allows prosecutors to refer certain cases to restorative process. The German Juvenile Justice Act, 1990 allows prosecutors to dismiss criminal cases on their own authority if the juvenile has either reached a settlement with the victim or made efforts to do so.

Following a pattern that often occurs as jurisdictions adopt restorative justice processes, countries that began with prosecutor-referred restorative process for juveniles have since extended it to adults as well. An example of this is Austria, which in 2000 authorized prosecutorial diversion to adult defendants facing sentences of not more than fi ve years' imprisonment. In some other countries, such as Colombia, legislation authorizing the use of mediation has applied fi rst to adult cases, when the prosecutor agrees.

Use by CourtsJudges use restorative process both for pre-trial diversion and as part of sentencing preparation. In those jurisdictions where prosecutors have no authority to divert cases once charges are laid, Judges may still have that

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authority. In Italy, for example, a judge may arrange for mediation between a juvenile offender and the victim, and following successful completion may enter an order suspending the trial and imposing probation. In the U.S. State of North Carolina, this approach has become so routine that at the beginning of court hearing the prosecutors will invite any parties interested in mediation to identify themselves, and the judge will explain the benefi t of mediation. Trained, volunteer court mediators are present to immediately help willing parties fi nd a mutually acceptable resolution. In some jurisdiction, a Judge may offer court-based mediation even after the trial has begun if it appears that the parties might benefi t from it. However, as with other diversion program, the decision by the parties whether to participate will not infl uence the outcome of trial.

9.2 Restorative Justice ProcessThe restorative justice programs do not show a uniform structure. Depending on the need and resource, varying shapes and contents are observed in the working of these models in the US, Canada, England, Australia and New Zealand etc. Each of the restorative process describe below can be used at any stage of the criminal justice process, or outside the system altogether. They take place after guilt is no longer on issue either because there has been a conviction or because the defendant admits responsibility. The results of the process may or may not have an effect on the sentence, depending on relevant law or regulation.

Victim Offender Mediation The fi rst contemporary restorative process is Victim Offender Mediation (VOM). In its original form, a trained facilitator prepared and brought together a victim and offender to discuss the crime, the harm that resulted, and the steps needed to make thing right. Not only are the primary victim and offender invited, so are family members or friends of the victim and the offender as well as representatives of the criminal justice system. There are several ways in which offender's often make amends. The fi rst is by offering an apology, a sincere admission and expression of regret for their conduct. A second is restitution, wherein the offender pays back the victim through fi nancial payments, return or placement of property, performing direct service for the victim or in any

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ways that the parties agree. The third is through performing community service by providing free service to a charitable governmental agency. These and other measure to repair harm is considered restorative outcomes.

Family Group ConferencingThis model in its modern form was adopted in to national legislation and applied to the youth justice process in New Zealand in 1989, making in at the time the most systemically institutionalized of any existing restorative justice approaches. Family Group Conferencing (FGC) is a restorative approach to problem solving that involves the children, young persons and adults in families in making their decisions. Originally developed in New Zealand, the FGC process has taken root worldwide and is now known by several different names, including family group decision making and family unity meetings, among others. FGC began in the fi eld of child welfare and youth justice, but is now used in mental health, education, domestic violence and other application.

9.3 Application of Restorative Justice in Juvenile JusticeA juvenile justice system shall aim to encourage specialization in child justice practice and the development of a distinct and unique system of criminal justice that treats children in a manner appropriate to their age and level of maturity and which develops institutions and system designed to achieve that goal. What this refers to is not a single juvenile justice system but multiple, interconnected systems. The Police, the Prosecutors, the Courts, the Lawyers, the Social Workers and the rehabilitation, prevention, and diversion programs are each systems in their own right. Criminal justice systems in many countries are 'retributive' i.e. they are concerned with 'retribution' and punishing the offender, concentrating more on the crime itself than the people involved. However, this is often not in the best interest of the victim, the offender, or society in general.

A much better system is that of restorative justice. This approach focuses on restoring damage relationship (between victim, offender and community) to the way they were before a crime was committed to make things right as much as possible. Restorative justice applies to people of all ages but it is especially

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important in relation to young offenders as it provides the option of having a lasting impact on their emotional and moral development which is positive, rather than negative: it can stop the process of young offender turning into an adult offender. According to the CRC, "States parties recognized the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in the society.

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UNIT

VIIJUDICIAL TRENDS ON CHILD RIGHTS AND

JUVENILE JUSTICE IN NEPAL

Ashish Adhakari*Narayan Prasad Subedi**

1. BackgroundThe term "justice for children" has wider meaning. It covers child offenders (who commits or is accused of committing crime), child victims (agaainst whom the offence or crime is committed), child witness and children in contact with law (such as child whose keeping and guardianship needs to be decided by the court because there parents are separated). In Nepal, positive signs of encouragement has been seen in the area of "justice for children", that too through the intervention of the court, but still a lot has to be done.

After ratifi cation of the Convention on the Rights of the Child (CRC), 1989, the legal instruments like Children's Act, 2048 (1992); Children's Rules, 2051 (1995), Juvenile Justice (Procedure) Rules, 2063 (2006) were developed and adopted as national legal mechanisms to implement the convention. Along with this, there have been several attempts towards institutional strengthening, awareness, protection and rehabilitation. It may be a separate issue for further study about the judicial role and vision in the

* Advocate.** District Court Judge.

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area of child rights and juvenile justice under the traditional law prior to the commencement of those national and international legal instruments.

Mainly, the public interest litigations started to enter into the Supreme Court around 1999/2000 with the issues of violation of child rights guaranteed by the international conventions and national laws were either not implemented by the state or there was passiveness in implementation. In the same context, cases representing the best practices delivered by Supreme Court under ordinary and extra ordinary jurisdiction and by the District Court in the issues of child rights and juvenile justice are discussed below.

2. Child RightsThe jurisprudential vision developed by the Nepalese judiciary in the context to national and international legal provisions, standards and practices related to the child rights will be discussed in this chapter.

Right to organization is the signifi cant right of child. The Full Bench of the Supreme Court has rendered important interpretation in the Writ Appeal No. 147 of the Year 2057 (B.S.) fi led against the decision of the Ministry of Home for not permitting some children of Pragatinagar of Nawalparasi District to establish organization named Jagriti Child Club by disqualifying them as minor below the age of 16 and saying them not competent pursuant to the existing law. In this case, Supreme Court has established a progressive principle in the favor of children saying that the right to organization has been ensured by Article 15(1) of the CRC, ratifi ed by Nepal, which has not been restricted by the Children's Act, 2048 (1992); and Article 12(2)(c) of the Constitution of the Kingdom of Nepal, 2047 (1990) has also provided right to organization as a fundamental right, it is therefore, not appropriate to deprive children from the fundamental right to organization only because they are minor.1 Further, in the above case2 the Supreme Court, analyizing the Nepal Treaty Act, 2047 (1990) and comparing the CRC and domestic laws, held that CRC, ratifi ed by Nepal, is above the Childern's Act, 2048 (1992). This interpretation is a burning example of the best

1 Tilottam Poudel v. Ministry of Home et al. NKP, (2058 B.S.). No. 7/8. p. 423.2 Ibid.

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practices, which recognized the rights of child to organization and institution by doing positive analysis of the Convention and Constitution even though the act had no clear provision.

In the matter of guardianship of the children, when the issue of priority was raised in the case of habeas corpus of Criminal Appellate No. 19 of the Year 2061 (B.S.), the order of habeas corpus has been issued in the context of Clause 2 of No. 3 of Chapter of Husband and Wife of Muluki Ain and Children's Act, 2048 (1992) mentioning that the mother is the natural and legal guardian, thus, no one is entitled to claim the guardianship until the mother is present.3 In the Case No. MS-0015 of habeas corpus of the Year 2066 (B.S.), where the similar issue was involved, the requested order has been issued from the Court stating that the children have right to be nurtured with maternal care and lactation is the inherent right of any child, which has been related with the right to life, and thus, the provision of Clause 1 of No. 3 of Chapter of Husband and Wife of the Muluki Ain could not be undermined, in case father and mother of such child has to be separated through any reasons.4 But in another habeas corpus Writ No. 069-WH-0072, where a mother had complained that she was denied to meet her daughter by the father of the child, court denied the custody to the mother but allowed her to meet the child under certain condition. The Supreme Court held that "best interest of the child should be the basis for justice. Fundamental principles of justice for children needs to be followed in cases related to the child wellbeing." The court had also issued the guidlines to the parents to make necessary time arrangements to meet with the child and had also warned both parties that if the guideline is not followed, then they could face sanction under contempt of court.5 In another case6 also the custody of the child was given to aunt instead of her mother.

3 Minor Bibek Chalise et al. v. Satyawati Chalise et al., NKP, (2061 B.S.). Decision No. 7391. 4 Sabita K.C. on behalf of petitioner Prarthana Rayamajhi v. Ram Bahadur Rayamajhi et.al. (Date of

Decision: 2067/2/3 B.S.).5 Sunita Bista on behalf of Siddika K.C. v. Samir K.C. et al. NKP (2071 B.S.). Decision No.

9219. p. 1213.6 Shova Shrestha on behalf of Bhesh Kumar Shrestha v. Maya Tamang et al. NKP, (2070 B.S.).

Decision No. 8979. p. 393.

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A petition of Writ No. 3391 of the Year 2057 (B.S.), was fi led with request of mandamus for establishing Child Welfare Homes, Orphan Homes and Mentally Incapacitated Center, Child Reform Homes as prescribed by the provision of the Children's Act, 2048 (1992). In this case, Supreme Court had issued the directive order in the name of Government to "establish necessary Child Welfare Homes and Child Reform Homes for the homeless, incapacitated, and children in confl ict with law…." stating "the necessary management have to be arranged as per the age and legal capacity of the children to keep the juvenile delinquents separately from the adults pursuant to Article 10(3) of International Covenant on Civil and Political Rights (ICCPR), 1966" and "asking to proceed up immediately with the necessary management for the protection and promotion of the optimum benefi t of children since the obligations of the provisions of the CRC are to be complied by Nepal."7

3. Juvenile JusticeThe role played by the judiciary in the area of juvenile justice is remarkable. Specially, Supreme Court has expressed its serious concern and stake in the establishment and strengthening of the institutions involved in the juvenile justice, in the incorporation of children friendly behavior in the justice process, in the retention of children in correction homes or in supervision of family separately from other adult prisoners or detainees and in the issues including the sensititivy in the rights of child at the time of sentencing.

The provision of establishment of the Juvenile Court or Bench is in Section 55 of Children's Act, 2048 (1992). Article 40(3) of CRC has also directed the State Party to manage special provision in this regard. However, a petition of Writ No. 2982 of the Year 2054 (B.S.) was fi led with the plea of mandamus for the establishment of such courts as the then His Majesty's Government had not established Juvenile Court despite being a party to the convention and having the provision for establishment of Juvenile Court in the national laws, which was quashed by the Supreme Court on the ground that such Benches were

7 Advocate Ashish Adhikari v. His Majesty’s Government, Ministry of Home et al. (Date of Decision: 2058/12/23 B.S.).

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already established.8 This case, quashed only on the ground of the rejoinder of defendant, shows the inadequate sensitivity towards the juvenile justice.

Earlier, the Juvenile Bench was established in all the District Court, only with the provision of District Judge through the notifi cation in Nepal Gazettee dated 2056/12/28 B.S., although such Juvenile Bench had to be constituted along with Child Specialist or Child Psychologist and Social Worker in addition to the Judge; a special Petition of Writ No. 60 of the Year 2061 (B.S.), was fi led with the plea that the establishment of the Juvenile Bench only with the District Judge was against the international norms and the existing act, and Juvenile Court has to be established pursuant to the provision of the Act; some passiveness was shown by the Supreme Court through hands off with the order mentioning that including Social Worker, Child Specialist or Child Psychologist in Juvenile Bench is discretionary provision and those persons could be included as far as such human resources were available.9 However, in the same decision, mentioning the responsibility of establishing Juvenile Bench is within the government, the directive order was issued in the name of Offi ce of the Prime Minister and Council of Ministers to initiate the process of establishment of Juvenile Court immediately, and to inform such to the Supreme Court; and in the name of Judgment Enforcement Section of Supreme Court, to monitor such order, which should be regarded as an example of judicial activism.

The provisions of 'camera hearing' of the cases where the children are plaintiff or defendant are expressed in Section 49(1) of Children's Act, 2048 (1992) and Rule 67a. of Supreme Court Rules, 2049 (1992). On the basis of this provision, the fi rst hearing was conducted by the Supreme Court in the Rape Case of Criminal Appellate No. 3830 of the Year 2061 (B.S.).10 Similarly, in the petition of Writ No. 3561 of the Year 2063 (B.S.), directive order has been issued to enact laws for maintaining privacy of the identity of the children in the cases

8 Advocate Bal Krishna Mainali v. Ministry of Women, Children and Social Affairs et.al. (Date of Decision: 2057/2/3 B.S.)

9 Advocate Santosh Kumar Mahato v. Offi ce of the Prime Minister and Council of Ministers et.al. (Date of Decision: 2062/8/9 B.S.)

10 Hari Bhakta Shrestha on behalf of Shiva Nehmafuki (Name Changed) v. His Majesty's Government. (Date of Decision: 20622/30 B.S.)

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where children are defendant or victim or where such cases are to be heard for maintaining privacy of the identity of the children, in the cases where children are defendant or victim or where such cases are to be heard by Juvenile Court or Bench; and Supreme Court itself had issued directives to conduct the hearing in such proceedings until such laws are not enacted.11

The main objective of juvenile justice is not to punish the children rather to rehabilitate them through reform. Therefore, the process of juvenile justice requires certain reform in the traditional criminal justice system. For this, the necessitate reform from the investigation to the time of judgment enforcement is essential. The practice of fi ling the habeas corpus petition in the initiation of child rights organizations and other activists has started from the year 2000 in Nepal, where, the detention of children was challanged, either in the police custody or in prison for investigation and during bail plea, is against the CRC and the Children's Act, 2048 (1992). As a result, court developed the judicial opinion in favour of children, to retain them in Juvenile Correction Homes, through the issuance several important orders.

In one case,12 a child accused of Robbery was detained through the order of Banke District Court which reasoned that the child needs to be detained pursuant to No. 118-2 of Chapter of Court Management of Muluki Ain. This issue got importance and publicity when the Supreme Court issued the order of habeas corpus in the Writ No. 3390 of the Year 2057 (B.S.), in favour of the child.13 In this case, Supreme Court, while interpretating Clause 2(a) of Section 42 of Children's Act, 2048 (1992), freed the child from detention, issuing the order of habeas corpus mentioning that the detention of child is prohibited by the act. The court further held that detention is unlawful as there is clear legal provision to keep the children in correction homes for the purpose of investigation and proceeding of the case, when any child is charged of any offence pursuant to the existing law. Similarly, the order of mandamus was also issued in the name

11 Advocate Sapana Pradhan Malla v. Government of Nepal, Offi ce of the Prime Minister and Council of Ministers et.al. NKP, 2064 (B.S.), Decision No. 7880. p. 1208.

12 Advocate Ashish Adhikari on behalf of Bablu Godia v. Banke District Court et.al. (Date of decision: 2057/12/2 B.S.)

13 Ibid.

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of Banke District Court and Ministry of Home, holding that the government is responsibile to establish Child Correction Homes pursuant to section 42(1) of the act, and according to subsection 3 if the Child Correction Homes are not been established, any Child Welfare Homes, Orphan Homes or Centers operated by other persons or institutions could be used as Child Correction Homes with prior permission of such institutions. Thus, Banke District Court and Ministry of Home were ordered to keep the petitioner child in Correction Homes through necessary arrangements if the petitioner child had to be kept in the detention. The ruling of this type, issued for the fi rst time by the Supreme Court, is an example of remarkable judicial role in the process of development of juvenile justice.

Supreme Court has issued the order of habeas corpus in Writ No. 4022 of the Year 2058 (B.S.), where the Sindhupalchowk District Court had ordered to keep a 15 year child accused of Homicide in the detention during the proceeding of the case.14 Moreover, the order of mandamus was also issued in the name of Ministry of Home to establish and keep the petitioner child in the Child Correction Home pursuant to section 42(1) of Children's Act, 2048 (1992), and to inform the same to the Supreme Court.

In a Writ No. 3505 of year 2056 (B.S.),15 order of mandamus was sought by the petitioner, against the defender, to refrain from handcuffi ng the child while producing them before the judicial and quasi-judicial bodies and not to put the child together with the adult offender at prison. Supreme Court issued the order of mandamus against the Ministry of Home Affairs reiterating the previous orders issued in the casse of Bablu Godia16 and Keshav Khadka17, asking Ministry to do and caused to do as per those previous orders.

However, the petition of habeas corpus of Writ No. 4061 of the Year 2058 (B.S.),

14 Advocate Ashish Adhikari on behalf of Pode Tamang v. Sindhupalchowk District Court et.al. (Date of Decision: 2058/4/10)

15 Advocate Bal Krishna Mainali v. Ministry of Home Aff airs et.al. (Date of Decision: 2058/4/23 B.S.)16 Supra Note 13.17 Advocate Ashish Adhikari on behalf of Keshav Khadka v. Dhankuta District Court et.al. Writ No.

3685 of the Year 2057 (B.S.), (Date of Decision: 2058/1/28 B.S.)

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was quashed by the Supreme Court, where a child accused of Rape was kept in detention, as per the order of the Lalitpur District Court, in one room of the prison, which was used as 'child home' through a letter from the Ministry of Home Affairs. The Supreme Court held that this is not illegal,18 but the Supreme Court clearly missed the difference between the prison and the Child Correction Home.

In the case of habeas corpus of Writ No. 25 of the Year 2058 (B.S.), where a child accused of the offence under No. 17(2) of the Chapter of Homicide was detained, as per the order of Kathmandu District Court, which had asked for the bail amount of NRs. 15,000/- or the assets equivalent to that, and failure to submit the asked amount or asset, would result in to detention. Supreme Court invalidated the order of the District Court through an order of certiorari and issued the order of habeas corpus holding that the order of the District Court was against section 11(2) and 42(2)(a) of Children's Act, 2048 (1992).19 The order of this kind, where the 'bail order' of the District Court was invalidated through the order of certiorari in a habeas corpus petition, could be regarded as the best practice in juvenile justice.

Similarly, the order of habeas corpus has been issued in the Writ No. 3685 of the Year 2057 (B.S.), where a child was imprisoned in Prison Section, Dhankuta by the order of Dhankuta District Court, sentencing with imprisonment of 22 days and fi ne, and if the child could not pay the fi ne, imprisonment in lieu fi ne.20 With the reference of the principle laid down in the case of Bablu Godia, in this case, the order of mandamus was also issued in the name of Ministry of Home Affairs to retain child in Child Correction Home pursuant to section 42(1) of Children's Act or to keep in Child Correction Home or Orphan Home pursuant to section 42(3), if such Homes are not established, on the basis of Article 10(3) of the ICCPR, Article 37(a) and (c) of CRC and Section 15 of the Children's Act,

18 Advocate Ashish Adhikari on behalf of Shyam Krishna Pahari v. Ministry of Home et.al. (Date of Decision: 2058/4/29 B.S.)

19 Advocate Tara Devi Khanal on behalf of Raj Kumar Rai v. Ministry of Home etl.al. (Date of Decision: 2058/10/2 B.S.)

20 Advocate Ashish Adhikari on behalf of Keshav Khadka v. Dhankuta District Court et.al.(Date of Decision: 2058/1/28 B.S.)

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2048 (1992).

In the case of habeas corpus of Writ No. 70 of he Year 2058 (B.S.), which was fi led against the action of returing a child (who was kept under Writ No. 3685) to the prison from the Child Correction Home after the child attained the age of 16, the order of habeas corpus was issued by the Supreme Court holding that No. 38 of Chapter of Court Management, which requires the imprisonment of only 2 years in case of failure to pay fi nes and which has been completed by child. However, the Supreme Court was silent on the question of legality of transfer from the Child Correction Home to prison.21

However, in another habeas corpus case of Writ No. 105 of the Year 2059 (B.S.), where the action of sending a child to the Prison from Child Correction Homes after the child attained the age of 16 was challenged terming it as illegal. Unfortunately, the Supreme Court quashed the petition holding the action of sending the child to the prison was not illegal as there is no expressed provision in the Children's Act, 2048 (1992) to continue the retention of children in Child Correction Home even after attaining the age of 16.22 This decision can be termed as against the principle of reform or correction.

In the matter of fi nancial punishment to children, two different Division Benches of Supreme Court have rendered different interpretations. In the Incest Rape Case of Criminal Appellate No. 2715 of the Year 2059 (B.S.), the judgment of the Appellate Court was reversed by the Supreme Court holding that the half of the property of child could not be restituted to the victim.23 However, in the Rape Case of Criminal Appellate No. 3195 of the Year 2059 (B.S.), Supreme Court interpreted and ruled in favour of providing compensation to the victim furnishing the reason that denying the compensation to the victim only on the ground that the offender is child, is against the Article 13 of the Constitution.24 The Full Bench of the Supreme Court, in Rape Case of Criminal Review No.

21 Advocate Ashish Adhikari on behalf of Keshav Khadka v. Ministry of Home et.al. (Date of decision: 2058/12/13 B.S.)

22 Advocate Ashish Adhikari on behalf of 'Ma Chamar' (name changed) v. Ministry of Home et.al. (Date of decision: 2059/5/3 B.S.)

23 Mahesh Kumar Chaudhary v. Government of Nepal, NKP, 2064 (B.S.). Decision No. 7833. p. 415.24 Abdul Kalam Musalman v. Government of Nepal. (Date of decision: 2065/11/13 B.S.).

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2066-CF-0006, which was submitted before it for uniform ruling where different rulings from the division benches were issued in the matter of providing compensation to the victim of rape case from the offender (child), approved the ruling of the Rape Case of Criminal Appellate No. 3195, which had stated to provide compensation to the victim.25 In this case, interpreting section 11 of Children's Act, 2048 (1992) and No. 10 of the Chapter of Rape, Supreme Court established the precedent that in case when the offender and victim, both are child, the right of both child i.e. victim and offender should be ensured, and focusing only on the rights of offender will jeopardize the right of victim child, and, section 11 of Children's Act has only provided for the concession in the punishment but has not provided concession against the compensation to victims.

4. Best practicesJuvenile justice should be able to convert itself as the medium to serve the best interest of the child. The orders and judgments rendered from the court with positive attitudes towards child rights could be considered as examples of best practices. While interpreting the existing laws and in absence of provision in laws, the courts are issuing the orders of postponement (suspension) of the punishment, releasing the children to their homes under the supervision of their family members could be considered as further examples of best practices. In recent days, the trend of Supreme Court and District Court has increased these best practices. The orders and judgments as expressed above, which were rendered from the Supreme Court with positive interpretation and analysis, themselves are the examples of best practices.

In recent time, Supreme Court has not even approved the action of sending child to Child Correction Home for the proceeding of case. In the case of habeas corpus of the Writ No. 0007 of the Year 2065 (B.S.), where the action of sending a child to the Child Correction Home due to the inability to submit bail amount asked by the District Adminstration Offi ce in an offence pursuant to Some Public (Offences and Punishment) Act, 2027 (1970) was challenged. The Supreme Court,

25 Government of Nepal v. 'Ga' Kumar Yadav (name changed) et al. (Date of Decision: 2067/5/31. B.S.)

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termed this as illegal, and issued the order of habeas corpus and ordered for returning the child to the family. The court further opinied that, all authorities of the state are responsible to ensure the best interest of children and the child could not be sent to Child Correction Home as an alternative for not being able to deposit the bail amount.26

In another recent case,27 Supreme Court had held that "the act of keeping the child in the Child Correction Home as an alternative to child's inability to furnish the bail amount, could not be termed as just and reasonable. It is rather against the principle of 'reformative apporach' of punishment. When bail is asked as the pre-condition for release, and if the child is unable to furnish the bail, on such basis to imprision the child will not be in conformity of the Article 37(2) of CRC which portray imprisionment as last resort."

There is no clear provision in the law on whether or not the punishment could be minimized pursuant to No. 188 of the Chapter of Court Management after mitigatation punishment pursuant to Section 11(3) of Children's Act. In the Criminal Appellate No. 0190 of the Year 2063 (B.S.), the Supreme Court, interpreting the legal provision, minimized the punishment to one year, stating that the provision of Section 11(3) of Children's Act is the mandatory Clause focusing upon the age factor of the children; however, the provision of No. 188 of Chapter of Court Management is discretionary Clause to be applied considering the situation of crime. Hence, the court held that the application of No. 188 could not be limited only because Section 11(3) of Children's Act is applied.28 From this, it is clear that the judiciary is aware in the matter of minimizing the punishment to children.

Traffi cking of children is heinous crime. There are also examples of traffi cking of many women and children to abroad every year and deployment of children in inhuman and hatred activities like circus and sex trade. In the Criminal

26 Saubhagya Shah on behalf of Ganesh Syangtan (name changed) v. District Administration Offi ce Kathmandu. (Date of Decision: 2065/7/18 B.S.)

27 Advocate Puspa Poudel on behalf of 'Biren Lama' (name changed) v. Kathmandu District Court et.al., NKP, 2072 (B.S.), Decision No. 9469, p. 1667.

28 Government of Nepal v. Nabin Bhujel (Date of Decision: 2067/1/12 B.S.)

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Appellate No. 0131 of the Year 2064 (B.S.), where the similar facts were raised, the judgment was issued to punish Defendant Appellant with ten years of imprisonment convicting them in the offence of selling the informant children of the age of 10-11 years in the circus in India.29

In the Criminal Appellate No. 0479 of the Year 2064 (B.S.) of Rape case appealed by the defendant to reverse the judgment of the Appellate Court which had convicted the house owner for raping a domestic female child worker, 'judicial stricture' has been issued by the Supreme Court in the competency of the adjudicating judge of the Appellate Court where the Appellate Court had minimized the punishment to 7 years imprisonment from 10 years without giving due reasons for such reduction of imprisonment.30

In the habeas corpus petition of Writ No. 0016 of the Year 2067 (B.S.), question was raised by the petitioner mentioning the child was kept under illegal detention despite the order from the Kathmandu District Court to keep him in the Child Correction Home. In this case of dacoity, child was charged under two separate incidents. The court had asked for the bail of NRs. 5,000/- in each case (altogether NRs. 10,000/-), but the child was unable to pay the bail amount. Hence he was ordered to be kept in the Child Correction Home. Interestingly, the Child Correction Home refused to place him citing lack of space at Child Correction Home. Then he was taken back to the District Police Offi ce. The Supreme Court termed this act of placing the child in the Districe Police Offi ce as against the law. Further the court, after analyzing all the fact and legal provision under Section 50 of the Children's Act, 1992 (2048 B.S.), issued an order of habeas corpus and ordered to be handed over to the family members in presence of Deputy Registrar of the court.31

In the habeas corpus petition of Writ No. 21 of the Year 2058 (B.S.), which was lodged with the request of acquittal that also challenge the detention of a

29 Fulamati Shrestha Maharjan alias Thuli Didi v. Government of Nepal et.al. (Date of Decision: 2065/10/22 B.S.).

30 Triratna Chitrakar v. Government of Nepal et.al. (Date of Decision: 2065/7/6 B.S.).31 Sitasaran Mandal on behalf of Choilang Lama v. Ministry of Home Affairs et.al. (Date of Decision:

2067/6/26 B.S.).

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child in the prison similar to that of adult. The Supreme Court annulled the "following" section of the judgment, which had ordered to send the child to the prison for 10 years of imprisonment, through the order of certiorari along with the order of mandamus to send the child to the Correction Home.32 The role of court in the protection of child right is remarkable where the order of certiorari and mandamus were issued in the petition of habeas corpus.

The Supreme Court, through the petition of habeas corpus of Writ No. WH-0025 of the Year 2066 (B.S.), with prospective overruling, has declared ultra vires the power of Chief District Offi cer to hear the case where only the children are party including the case under section 5 of Some Public (Offences and Punishment) Act, 2027 (1970).33 Similarly, the directives have also been issued in the name of Ministry of Home Affairs for circulating to subordinate offi ces to transfer the cases where only the children (sole) are involved, to respective District Court, if any such cases are subjudice before Chief District Offi cer. This order is already in forced.

The effect of the above positive interpretation rendered by the Supreme Court in favor of child rights and juvenile justice raising itself from the traditional values and practices has also been gradually seen in the judgments of District Courts. In the case of Rape of Regd. No. 64 of 2066 (B.S.), where one male child had raped another female child, Illam District Court had rendered its judgment with 25 days imprisonment with NRs. 10,000/- compensation to the victim.34 Eventhough, there is no provision in the CRC and Children's Act to provide immunity from the compensation to child offender, Clause (g) of Article 8(1) of the Optional Protocol of the Convention on the Rights of Child has provided that such compensation shall be restituted to the child victim by the State; hence the judicial opinion which had stated to manage such compensation amount to child victim from the Ministry of Finance, Government of Nepal, should be regarded as best practice.

32 Tara Devi Khanal on behalf of 'Rama Tamang' (name changed) v. Illam District Court et.al. (Date of Decision: 2058/10/22 B.S.)

33 Advocate Kalyan K.C. on behalf of 'Sa Rai' (name changed) v. District Administration Offi ce et.al. (Date of Decision 2066/6/26 B.S.).

34 Government of Nepal v. 'Ka Bahadur Darji' (name changed). (Date of Decision: 2066/7/9 B.S.)

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Recently, in the Rape case of 2068-CR-0775, The Supreme Court had convicted the accused child of 13 years and pronounced the sentence of 6 months of imprisionment as per provision under Section 11(2) of the Children's Act, 2048 (1992) and this sentence was suspended too. The chargesheet has also demanded the compensetation from the offender to the victim under Section 10(c) of the chapter on Rape, the court ordered concerned Offi ce of Women and Children to pay NRs. 50,000/- to victim as compensetation referring offender is very poor to pay such compensetation.35

Likewise, in the case of Homicide of Government Criminal Case No. 076, where a female child was convicted of committing offence of No. 13(3) of Chapter on Homicide, her punishment was mitigated to one year and six month imprisonment with the reasoning that No. 188 of Chapter on Court Management could be applied in the issue of children too, even though the female child was entitled to ten years of imprisonment ipso facto pursuant to Section 11(3) of Children's Act.36 Along with this, due to the cause that there was no Child Correction Home in the district and lack of place in the Child Correction Home located in Bhaktapur, Jajarkot District Court in its judgment ruled her for compulsory schooling in appropriate school for one year, taking pre-permission from the Registrar of District Court before leaving district within this period and postponing the rest of punishment without enforcement; this shows that District Courts are even aware for the best interest of child.

In the issue of secrecy of statistics related to child, Kathmandu District Court, in the case of Government Appellate Regd. No. 00031 (Decision No. 376) of the Year 2065 (B.S.), where the complain was fi led with the plea of punishment against the publisher of Kantipur Daily Newspaper pursuant to section 53 of Children's Act with the charge that news related to children was published with the title "children arrested on charge of theft" along with the details of children making them public against Section 52 of Childen's Act. The Court rendered its judgment saying "…Although the editor had taken the plea with apologies and

35 Government of Nepal v. Govind Sunar, Supreme Court Bulletin, 2073 (B.S), Aswin 1, Full Number 581 (Date of Decision: 2072/4/31 B.S.).

36 Government of Nepal v. Symbol No. 125 of FIR Symbol No. 125 (name changed). (Date of Decision: 2067/3/16 B.S.).

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realization for such act mentioning that publication was simply an error due to the business and workload of editor since there was no any biasness against children and the news was published with good faith; Managing Director, Kailash Sirohiya and Editor Sudhir Sharma are accountable towards the news and they are not immune from such liability; the fi ne amount although being less, can fulfi ll the objective of law, defendants duo are fi ned with NRs. 25/- each pursuant to Subsection 9 of Section 53 of the Children's Act, 2048 (1992) considering the condition of apologies from the defendant"; which shows that court is aware to ensure the privacy of children.37

In recent judicial pronouncement from the Supreme Court of Nepal in terms of determining the age of child while sentencing the punishment, Supreme Court has established standard of accepting the minimum level of age of children where the exact age of children could not be established. In the Rape Case No. 2064-CR-0362, the Division Bench of Supreme Court, upholding the judgment of Appellate Court, Supreme Court has stated that "in the situation where the Defendant 'Kha Kumar' has given his statement mentioning that he is 15 years before the Authorized Offi cer, and mentioning that he is 12 years before the court, and for the purpose of confi rmation of the age of the Defendant, when the Defendant was sent to the hospital and the opinion of the hospital came in the way that the child was of the age in between 13 and 15 years, the judgment of Appellate Court accepting the lower level of age of children is appropriate when the exact age of child is not confi rmed…… Hence, when the 14 years old age of child has not been confi rmed beyond doubt, the child is thus punished with six months of imprisonment pursuant to section 11(2) of Children's Act, 1992 (2048 B.S.)".38 In another Rape Case No. of 2067-CR-0415, the Supreme Court held that "...if any dispute is raised about the age of any party to the case or witness, age has to be settled through the procedure established by the law or examination of the age through the offi cial institution. If government has not produced the defi native and factual proof relating to the age of victim, then

37 Nanu Dhungana of age 14 et.al. detained in Metropolitan Police Sector Hanuman Dhoka (Name changed) v. Chairperson and Managing Director of Kantipur Publication Pvt. Ltd. Kailash Sirohiya et.al. (Date of Decision: 2066/12/13 B.S.).

38 Government of Nepal v. 'Kha Kumar', Supreme Court Bulletin 2068 (B.S.), Aswin 2, Full Number 462. (Date of Decision: 2068/4/31 B.S.).

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it has to be settled as is stated under Rule 15 of the Juvenile Justice (Procedure) Rules, 2063 (2006)"39

In conclusion, it is seen that the judiciary of Nepal has developed remarkable jurisprudence of best practices in the area of child rights and juvenile justice in the short period of 10 years. The behavior of stakeholders involved in the juvenile justice shows that they all are aware with adequate awareness about the child rights and juvenile justice. It could be said from the analysis of the entire judgments rendered by the Supreme Court that courts have internalized the welfare model of justice. While pronouncing the verdicts in these writs, court have based on the protectionist and paternalistic policy, along with the consideration of background of juvenile delinquents, social aspects, family condition, fi nancial condition, psychological aspect of children, state's responsibility and best interest of child. The positive consequences of the role played by the court in the development of juvenile justice system have been gradually seen in the activities of different other government offi ces as well. However, the court itself is also lacking physical resources, which is needed for the the capacity building of the human resources involved in the court. It is because of the lack of adequate sensitivity with the respective authorities of Government of Nepal, there have not been any susbtantial initiatives to establish the Juvenile Court enshrined in Children's Act despite lapse of several years of issuance of order from the court in the name of government. This situation is prevailing even in various other orders issued from the court in the name of government. Despite this situation, it would not be inappropriate to say that the contribution of judiciary have positive effect towards the existing situation of case hearing in the Juvenil Benches comprising Child Psychologists and Social Worker in child friendly environment, maintaining the secrecy of the child's identity, having positive initiatives from the court for maintaining the best interest of child, establishment and operation of Child Correction Homes, having initiatives for the amendment of existing laws, development of the Juvenile Justice (Procedure) Rules and National Plan of Action, etc. The role of these kind from the judiciary is always expected in favor of rights of the child.

39 Government of Nepal v. Sukra Bahadur Nepali (Sarki). Supreme Court Bulletin 2069 (B.S.), Magh 1, Full Number 493 (Date of Decision: 2069/4/31 B.S.).

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Documents

juvenile delinquency - Nepal in Data