Delinquency is the criminal behavior usually of young people and juvenile is connected with young persons who are not yet adults. Officially, juvenile delinquency consists of misbehavior by children and adolescents that leads to referral to the juvenile court. The general notion of children as a “protected species” is a relatively contemporary fact that developed nearly in the second half of the eighteenth century. The development of child psychiatry has shown the importance of certain childhood disorders in causing minor emotional distress or disorders of conduct, which affect the community. The delayed advancement of it may be delineated not only in economical entanglement but also in social typical one. In by-gone days children were, to a large extent, treated as absolutely miniature adults and an obvious notion was formed of their unusual requirements and phase of intelligence was not deemed to be requisite indeed.
When it acknowledged that those who were young enough were not capable of criminal decline, then maturity was settled at seven years of age. Those who were older were generally considered absolutely answerable for their activities with some extent of acknowledgement of alleviating factors, for example, insufficient paternal restrain or different surrounding agents. A different margin was delineated between child and adult merely where it was convenient for the exception to benefit from the influential classes.
The logical basis of this was that children are not absolutely, concerning the mind, involved in their actions. The other reason behind it is that considerable juvenile delinquencies are the factors of certain type of psychological maladjustment produced by guardian’s incapability of giving significant fundamental requirements. Under this type of entanglements, delinquencies ought not to be taken at face value rather it ought to be regarded surpassing the control of the juvenile, their supposition of lawful liability for their behavior could not be required or desired due to these factors.
The fundamental kinds of community oriented punishments comprise of probation, residential and day-treatment programmers. These services are substitutes to institutionalization and prevent children from entering jails and adult prisons. In the west, this type of community orientation programmers attracted public patronage in the late 1960s and early 1970’s. These were considered as the more kind, economical and fruitful remedies for in relation to punishment centers. In Bangladesh, this type of community-oriented punishment does not prevail apart from a small number of community oriented relation clubs regarding youth to bring them away from danger.
For the protection of children in Bangladesh, the laws have been enacted. But regarding children, a very little legislative reform has been introduced in support of either the Constitution or the Convention on the Rights of the Child (CRC). Since, the ratification of the UNCRC and to harmonies the domestic laws in relation to each other or to the convention no remarkable attempt has been taken. Even the rights assured by the Constitution, which are known, as the “supreme law of the land” has not been ensured. Despite the provision for necessary legal reform, the actual problem lies not only with the text of the law but also with the insufficient judiciary. As a result, this does not deliver justice in an equitable and conscientious manner. Often the critical problems arise regarding court proceedings, investigations and placement of children.
It is proved through the study in the juvenile justice that the number of cases refereed by guardians in far more than the police, which are submitted at the correctional in a child if such a disproportionate number of police refereed cases should not be construed as indicating a decrease in juvenile criminality. As a result, the innocent child would be turn grow up as criminal who would fail to convey his/ her innermost tender feelings with the hope to achieve certain degree of understanding in an alien and unfriendly adult world. Thus the approach to juvenile justice should be then beyond “duty based” attitudes and should embark upon a “right based” orientation for the societies in transition. Therefore, Bangladesh should likewise strive to put “rights” in the proper perspective. This step should be taken in respect of children to provide a conceptual framework for planning policy and programmers on the issue of juvenile justice.
Definition and nature of juvenile delinquency
The word ‘delinquency’ has no specific definition, nor any universally acceptable meaning. Delinquency is a complicated as well as comprehensive term; it contains different shades of meaning. No identical concept is found about it .Different societies and different countries are having its different meanings. Again, the moral concept of delinquency is quite different from its legal concept. It also assumes different meanings in different social, cultural, religious and psychological perspectives.
It is commonly used to indicate a crime committed by a juvenile. The nature and character of this crime are different in different societies. Any attempt to define delinquency will give rise to a number of legal and social complications as to the age of the delinquent and the extent of the crime committed by the delinquent himself or herself. In a wider sense, delinquency includes any unlawful or socially unacceptable activities done by a young person. The main crux of the problem in defining delinquency lies in the fact that the age limit of delinquent young persons is not uniform all over the world. Different countries are having different age limits for delinquent persons under their own legal systems. Again, the same system of law presents different age limits, under different legislation. Moreover, the outlook of sociologists of different countries also various as to the nature of the crime to be termed as delinquent activity. Delinquency includes anything done by a delinquent person in deviation of social and legal duty. It the concept of delinquency is considered party as a legal and partly as a social matter, it becomes relatively easier to expound it in a nearly convincing form. Law decides the age of the delinquent and the nature of the unlawful activity, while the social norms will determine social values of it. Keeping this view in mind Dr. Abdul Hakim Sarker says: “The modern concept of delinquency … is the product of legal philosophy distinguishing a youthful offender from a criminal one.” In this connection, Dr. Habibur Rahman delivered the idea in an interview with the reporter of the Weekly Bichitra, Mr. Mizanur Rahman Khan. He says there, the concept of delinquency is moment, he may be identified as an adult criminal. Virtually, the difference of age is primarily considered as the distinguishing factor between a juvenile delinquent and a criminal.
Age and Delinquency
In Bangladesh, different legislation’s provide different age limits of delinquents. But all of them are within 12 and 18 years of age. The Bengal Children Act, 1922 which was repealed but marked the age of juvenile delinquent between 14 and 16 years. The Children Act, 1974 has defined “Child”, “adult” and “youthful offender” in the Section 2(a) and 2(f) respectively. in this Act, any person who is under 16 years of age is considered a child, and a person who is not a child is a adult. A child who is found to have committed crime is a youthful offender. Again, in Sections 82 and 83, the Penal Code, 1860 any person under 12 years of age is recognized a child. So it may be said that if a child exceeds 12 years of age he may also be called a child. The age limit of “child”, “adolescent” and “juvenile”, as provided under different legislation’s are shown in the following.
Although it appears strange, it is fact that in most of the Acts nothing specific is found about the age of a juvenile delinquent in Bangladesh. According to Section 82, the Penal Code, 1860 no criminal act of a child under 7 years of age will be considered an offence. Moreover, under Section 83 of this Code, nothing committed by a child above 7 years and under 12 years of age will be considered an offence. But if he is matured enough to understand the nature and consequence of his conduct at the time of commission he will be regarded as a delinquent child. On the other hand, in Section 2(f), the Children Act, 1974 any person under 16 years of age has been defined as child. At this time if he is sent to the custody of jail or correctional centre for his delinquency he will be called child. Whereas in the Penal Code, 1860 it is mentioned that a child or delinquent has to go through the Juvenile Court. It is also said that the court has no authority to judge on other matter excluding the children of that age limit. So it is evident that the two words ‘child’ and ‘juvenile’ are of the same meaning. Therefore, any child from 7 years to under 16 years of age who commits crimes can be called a “juvenile delinquent”.
Different is also perceptible about the age limit of delinquents in countries of Asia and Europe. However, some data of Asian and European countries are given in the diagram below.
Besides the above differences as regards the age of juvenile offenders, a draft of national policy has recently been introduced for children. This draft will soon be submitted to the cabinet for final approval. It is mentioned in this draft that juvenile boys and girls under 18 years of age will be considered children for maintaining a similarity with the United Nations Convention. Therefore, in this work, every boy and girl from 7 years to 18 years of age will be considered juvenile for comparative discussions of juveniles of other countries.
There is neither classification of juvenile delinquency separately in any regulation of Bangladesh, nor which conducts or activities of a juvenile will be considered an offence. The same offence may be committed both by a juvenile and a person who is not a juvenile. But the only difference, which is made, is that one is juvenile delinquent and the other is a general or adult criminal. Because of this difference, there may also be difference as regards the trial procedure between these two categories. So, it may be stated here that one of them is a crime committed by a person under the age of 18 years and the other is a crime committed by a adult person. The activities, which are considered juvenile offences under the laws of Bangladesh, will be discussed in this work.
In Bangladesh, juvenile delinquency may therefore be defined as an illegal and antisocial act committed by a person between 7 years to 18 years of age. In international perspective, it may be said that an act done by a person between 7 years to 18 years of age of any country which neither the law, nor the social need, nor even the moral principles prevalent among the people of that country recognized is juvenile delinquency. In a limited sense, all illegal and antisocial activities done by a person between the age of 7 years to 18 years are called juvenile delinquency.
Statutory Laws and Delinquents
Since the British administration in this subcontinent a number of laws have been passed to control the antisocial and illegal activities of juveniles, but serious enough in none of these excepting the Children Act, 1974, any punitive measures are recommended for the correction of the juveniles. For a better comprehension of the fact, we may discuss the objects and contents of these Acts.
The Penal Code, 1860 (Act No. XLV of 1860)
Provisions relating to child, juvenile delinquency have been stated in the Sections 82 and 83 of the Penal Code, 1860. Under the Section 82, nothing is an offence, which is done by a child under nine years of age. The policy of this section is that he who is under seven years of age is quite unable to commit a crime. The child, whose age is not more than nine years of age, is innocent in the eyes of law. There is no crime in any work of him. If one who is under nine years of age commits crimes this are crimes in the eyes of law, yet he is not regarded as a delinquent for that misdoing. He, who has not attained the efficiency of understanding right or wrong due to under age, does anything without sense. Work down without sense cannot be regarded as crime. It is seen frequently that a child of six and half years of age attains the precocity of a matured one. Even in these circumstances, a precocious child under nine years of age will not be regarded as a delinquent.
If any charge is brought against any one and if it is seen that he is a child under seven-year of age then that change will not be effective to him as per law. In this regard, it is needless to ascertain the depth of knowledge. Under the Section 83, nothing is an offence which is done by a child above seven years of age and under twelve years of age, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on the occasion. He is capable of doing offence when his age is in between seven and twelve years. He is a matured one when his age is above seven and under twelve years. He is conscious of the nature and reaction of the work he does. If someone wants his security due to immaturity of his knowledge on behalf of him then he will have to prove his innocence by giving witness. The nature and reaction of work will prove which is normal.
The Bengal Jail Code, 1894 (Bengal Act No. IX of 1894)
Such Acts and Regulations regulate the establishment and management of jails, the confinement and treatment of juvenile delinquency therein and the maintenance of discipline amongst them. As it is mention that the Reformatory School Act, 1897; the Whipping Act, 1909; the Bengal Children’s Act, 1928; and the Bengal Borstal Schools Act, 1928, were as amended by the Jail Code, 1894. The Civil Procedure Code, 1908; the Criminal Procedure Code, 1898; and the Penal Code, 1860 which relate to the confinement of prisoners. The execution of sentences, appeals, lunatics and the like, must also be complied in connection with the prison administration. The Central Jails, District Jails, Subsidiary Jails and Special Jails are the classes of jails established in the several districts of Bangladesh under Section 60 of the Benal Jail Code, 1894. The under mention jails at Dhaka, Rajshahi, Jessore and Comilla have been declared by Government to be first class central jails. These central jails are likewise district jails and therefore receive prisoners of all classes.
Here in refer to Rule of this Code that a prisoner up to the age of 21 is considered a juvenile or adolescent. under Section 27 of the Bengal Jail Code, 1894, male prisoners under the age of 21 years shall be kept altogether separate from other prisoners, and of the former, those who have not arrived at puberty shall be separated from others. This applies both to convicted prisoners and to prisoners are detained, means must be provided for separating those four classes. Arrangements must also be made to separate adolescents guilty of grave crime from other adolescents. Female adolescents may be kept in the female ward allotted to ‘A’ class prisoner, but separation from adults should be arranged. Juvenile prisons belonging to calls prisoner, but separation from adults should be arranged. Juvenile prisons belonging to class ‘B’ must be kept apart from other juvenile prisoners. Another Rules as follows, ‘youthful offender’ means any boy who has been convicted of any offence punishable with transportation or imprisonment and who has been convicted of any offence punishable with transportation or imprisonment and who, at the time of such conviction, was under the age of fifteen years. In the confinement of youthful offenders in jails, it is in many ways objectionable. Superintendents should bring to notice that under Section 10 of the Reformatory School Act, 1897. whenever a male prisoner under 15 years of age is admitted, his confinement in a reformatory has to be ordered. Otherwise they may be aware the Magistrate of the District in which the prisoner was convicted and previously decided that the prisoner shall not be sent to a ReformatorySchool.
The Criminal Procedure Code (Act No. V of 1898)
Bangladesh inherited a rudimentary form of juvenile justice from the colonial laws, namely the Come of Criminal Procedure, 1898, which provided for trial of children in juvenile courts. The Code of Criminal Procedure enacted in 1884, and later modified 1898, contained special Section 29(B), 399 and 562, which referred dealing with children and juvenile delinquency up to age of 21 years. The provisions of Section 29(B) and 399 of the Criminal Procedure Code, 1898, shall cease by Section 78(3) of the Children Act, 1974, to apply to any area in which this Act shall be brought into force. It is stated in Section 29(B) of the Criminal Procedure Code, 1898, in jurisdiction in the case of juveniles. This Section said that any offence, other than one punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the court is under the age of fifteen years, may be tried by a District Magistrate or the Chief Metropolitan Magistrate or by any Magistrate specially empowered by the Government. To exercise the power conferred by or under any law providing for the custody, trial or punishment of youthful offender, by any Magistrate empowered by or under such law to exercise all or any of the powers conferred thereby. Section 399 of the Penal Code, 1898 provided that when any person under the age of 15 years was sentenced by any Criminal Court for imprisonment the Court may direct that the persons should not imprisoned in criminal jail. Rather he should referred to any reformatory institute established by the Government having suitable discipline and training in some useful industry. Section 562(1) of the Criminal Procedure Code, 1898, also made specific provisions for persons under 21 years of age for release; on probation of good conduct, under certain conditions instead of sentencing to imprisonment. Moreover, it considered the physical and mental conditions of the child and the circumstances under which the offence was committed. This Section repealed by the Probation of Offenders Ordinance, 1960.
2.5 The BorstalSchool Act, 1928 (Act No. I of 1928)
A result of the wide-ranging approvals done by the Indian Jail Committee (1919-1920) was the approval of the Borstal Schools Act, 1928. Conditions have been summed up to the criminal law of the country as substitute for confinement, especially for the reformation and rehabilitation of the youthful offenders ascertained in the Act as “adolescents” in spite of its institutionalizing within the Borstal School and having official permission. The Act also established the rules and regulations laying down and controlling Borstal Schools. It ought to be stated that this Act has endured a little change since the enactment of this law in 1928.
Juvenile delinquents are reformed in BorstalSchool through general education and different vocational training along with psychological treatment simultaneously.
Their mentality and viewpoint change in consequence of it and they possess a high moral character with support them in reformation and rehabilitation. Therefore, the foundations of this type of institutions were set up for reformation and rehabilitation of the juvenile delinquents.
BorstalSchool first emerged in England for reformation of the juvenile delinquents. Afterwards, it spread in other developed and developing countries. The name of the Borstal School Act, 1928, was the “Bengal Borstal Schools Act, 1928.” Next, the word ‘Bengal’ was rejected from the title of that Act. Thought the BorstalSchool was set up at Murapara near Dhaka in 1949, no initiative was taken to transfer reformative juvenile delinquents there due to the negligence of the authority. As a result, there is no BorstalSchool after liberation of Bangladesh in 1971. Though there is no BorstalSchool in Bangladesh, the Borstal School Act, 1928, has yet been repealed.
This Act is empowered to make provision for the establishment and regulation of Borstal Schools for the detention and training of adolescent offenders. It is expedient to make provision for the establishment of regulation of Borstal Schools for the detention and training of adolescent offenders. Whereas the previous sanction of the Government General has been obtained under Sub-Section (3) of Section 80(a) of the Government of India Act it extends to the whole of Bangladesh.
It is hereby stated in the definition of “adolescent offender” of the Borstal School Act, 1928. ‘Adolescent offender’ means, any person who has been convicted of any offence punishable with imprisonment or who having been ordered to give security under Sections 106 and 118 of the Code of Criminal Procedure Code, 1898, has failed to do so or who, having been dealt with under the provisions of Section 562 of the Criminal Procedure, 1898, has failed to enter into a bond or find securities or who, when the bond has been cancelled under Section 126(A) of that Code, has failed to give fresh security and who at the time of such conviction or failure to give security:
(i) In any area where the Children Act, 1922, is in force, is not less than sixteen yeas not more than twenty one years of age, or
(ii) In any other areas are not less than fifteen years and not more than twenty-one years of age.
The age of the offender and with the nature of the offence are simultaneously used to define an adolescent offender, who must be not less than fifteen years of age and not more than twenty-one years of age. The offence itself is, of course, a punishable one by imprisonment. The punishable offence itself also includes one who has failed to furnish security, or has unable to enter into a bond or accused of with another minor offence.
The Borstal School Acts, 1928, provides that young persons (15-21 years of age group) convicted of certain crimes can be sent to a BorstalSchool for disciplinary measures and vocational training. This Borstal School Act, 1928, have provisions to release the offender from institutional care (BorstalSchool, CertifiedSchool and Approved Home) to live in the community under licence, on parole.
As a supplementary legislation during the British reign, the Bengal Borstal Act, 1928, made provision for the committing of ‘adolescent offenders’ in Borstal Schools to be established under not more than three years. While recommending such a placement the court had to consider the character, state of health and mental condition of the offenders who would profit by such detention. This Act gave power to the Inspector General of Prisons to transfer adolescent offenders detained in Jail or ReformatorySchool to the BorstalSchool. The enactment of this legislation made an important beginning in the process of instituting separate procedures for the trial and rehabilitative dispositions of juvenile offenders. Their intentions could hardly mate realise either due to the persistent punitive orientation of the trying Magistrates or complete absence of suitable institutions like Reformatory or Industrial Schools in areas now constituting Bangladesh.
The Vagrancy Act, 1943 (Act No. III of 1943)
The Act was conceived against the grim background of the famine in Benal in 1943. It was conceived against the grim background of the famine in Bengal in 1943. It was passed in October that year when the famine reached its climax and thousands of persons had been leaving their village homes for towns and cities. The reasons for passing such an Act may be attributed to the result of conflict of interest between rural and urban areas. The public policy towards the beggars as a disadvantaged group can hardly be traced in Bangladesh until 1943. There were some measures in the Calcutta Police Act of 1866 but a definite policy measure was not taken until the enactment of the Bengal Vagrancy Act, 1943. After the partition of India in 1947, the Act was adopted by the East Bengal (now Bangladesh) Legislative Assembly with little modification. In 1951 the metropolitan areas of Dhaka and Chittagong and in 1952, Narayangonj and Chandpur towns came under this Act. During the 1960’s, it became effective in certain other urban areas.
In Bangladesh, many children are found who are vagrant, according to the definition of this law, ‘child’ means a person under 14 years of age. This Act provided for the detention and institutional placement of beggars. The Act defines, ‘vagrant’ as a person who is found asking for alms in any public place, or wandering about or remaining in any public place in such a condition or manner as makes it likely that such a person exists by asking alms but does not include a person collecting money or asking for food or gifts for a prescribed purpose. In this Act provided for the vagrancy and training of children below 14 years of age who (i) lived on begging; or (ii) where under unfit guardianship; or (iii) where under the care of parents of drinking or criminal habits; or (iv) frequently visited prostitutes; or (v) where destitute; or (vi) where subject to bad treatment.
Police officer may need an apparent vagrant to appear before a special Magistrate or Metropolitan Magistrate who will make a summary inquiry into his character and circumstances. If he is contented that the person is vagrancy, he may pass the requisite orders for his confinement in a Vagrant Home. The Magistrate may drive out such a person who is not a resident of the area where the condition of the Act is in operation; the Magistrate may expel him. Then the controller of vagrancy prohibits him, not to return without written permission. A beggar may be arrested by the police without a warrant and sentenced by a Magistrate to rigorous imprisonment if he violates such an order.
The Act supplied for the confinement of beggars in a Vagrant Home, which may include provisions for the teaching of agricultural, industrial or other pursuits and for the general education of the inmates.
According to this law, the man who begs openly is called a vagrant. Many children in Bangladesh are vagrants in the definition of this law. An individual under fourteen years of age is regarded as a child. A police may appear before the Magistrate with him and the Magistrate will consider all his particulars and age. He may send him to Vagrant Home if necessary.
The Children Act, 1974 (Act No. XXXIX to 1974)
The concept that the growth of the children depend to a great extent upon the society as well as the state has given rise to the enactment of various laws relating to children. The children should be given a proper training and good habit of discipline life from their childhood. They shold be focused with the light of goodness and virtues and the social values of life. They should be specially treated with and lead a sort of quarantine life, so that they can not be affected by the germ of social cancer, that can easily kill an adult of the future.
Bangladesh Parliament passed the Children Act, 1974, which repealed and replaced the Children Act, 1922, and the Reformatory Schools Act, 1897. In fact the present legislation is a model on the basis of the Children Act, 1922. The definitions as given in the Madras Act, 1920 (in India) were also incorporated in the Bengal Children Act, 1922, with significant changes. Certified Schools were described as IndustrialSchool in the later Act.
The preamble states that it is an Act to consolidate and amend the law relating to custody, protection and treatment of children and trial and punishment of youthful offenders. This has come into force on 1st November, 1976, vied notification No. 315-L/76, dated 11th September, 1976, for Dhaka district only and for other district it has come into force on 1st June, 1980, vied S.R.O. No. 127-L/80, dated 16th May, 1980.
A review of the working of the existing the Children Act, 1974, would indicate that much greater attention is required to be given to children who may be found in situations of social maladjustment, delinquency or neglect. The justice system as available for adults is not considered suitable for being applied to juveniles. It is also necessary that a Juvenile Court system should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country. There is also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles.
The children Act, 1974, defines a child as a person under the age of 16 years. In such case if a person is punished by a court to detain under custody he should then sent to a certified institute of approved home or to relative or other fit person where he stay until attained the age of 16 years during the period of his detention.
Status of offences of children, like disobedience to parents, teacher and supervisor, and running away from home or school and association with criminals, are also call with by this Act, This Act has also provided for the measures for taking care and ensuring welfare of the abandoned, destitute and beggar children whom may turn as criminals in course of time.
The Act is commonly about the custody, trial and punishment of children as well as the trial and punishment of youthful offenders. The common aspects of the Act are discussed under the following sub-headings.
(i) Application the categories of children to whom the Act is applied and the method of dealing with them;
(ii) The trial of children (the juvenile court);
(iii) Type of treatment;
(iv) Measures for implementation: Personnel and relatives responsibility; and
(v) Safety of the child and penalties against the child for the commission of offences.
The Children Act, 1974, which is now in force in Bangladesh, provides for systems of trial, custody, protection, treatment and reformation of the juvenile offenders. As is required by this act a Juvenile Court, a Remand Home and a Correctional Institute (National Institute for Correctional Services, Dhaka and Institute for Juvenile Correctional Services, Jessore) was set up at Tongi near DhakaCity in 1978 and Pulerhat near JessoreCity in 1995. The Juvenile Court has now jurisdiction throughout the whole country. Each of the Correctional Institute, One full-time First Class Magistrate remains for the court and a Probation Officer for Correctional Institute.
The Children Act, 1974, provides for the appointment of probation officers to allow individualized treatment of delinquents and are required that courts should consider the interests of the child when arriving at decisions.
This is an Act aiming at consolidation and amending laws relating to the custody, protection and treatment of Children Juvenile and trial and punishment of the youthful offenders under the age of 16. While promulgating the Children Act, 1974, the Government have taken into consideration the relevant factors influencing the juvenile criminality and thereby endeavored to protect the welfare of the juvenile and the juvenile offenders.
Part V of the said Act has dealt adequate on measures for the care and protection of destitute and neglected children. But part VI of the Act has the necessary provision for punishing adult persons custodians of the juveniles for committing special offences in respect of Children and Juvenile. The Children Act, 1974, has very elaborately detailed characteristic features which are different from that of adults in matters of (a) Investigation, (b) Adjudication, and (c) Treatment of Juvenile Offenders. As per provisions of the Act necessary arrangement has been made for holding separate trial of the courts of the country empowered in this behalf. If a child is charged together with an adult for any offence, the case shall be separated and the case of the child shall then be transferred to a Juvenile Court for trial. The Act has also extensively detailed the various methods and procedures of conducting investigation, trial and disposal of juvenile cases by the specified courts.
An individual evidently under sixteen years of age and arrested for an alleged crime is considered as a possible youthful offender. Offender like this may be permitted to be set free on bail except when there is reasonable information of him possible exposure to peril and talking with recognized criminals. The child is to be taken in a remand house or an abode of security both before and throughout the trial except when he is not freed on bail. While the court punishes the youthful offender in relation to the gravity of the offence, there are restrictions on the mode of punishment. In general, children cannot be sentenced to death or imprisonment or allowed to associate with adult offenders. However, children committing offences of a grievous nature or having a depraved character may be imprisoned or detained of the court feels that other methods of dealing with them are inadequate.
No Juvenile under the present legal system of the country is either convicted or imprisoned. The Children Act, 1974, has clearly mentioned that the words, “conviction” and “Sentence” shall not be used in relation to the children. Once a juvenile is found to have committed any offence he is to be committed to a Correctional Institute or Certified Institute or Approved Home and not in an adult prison.
If the child is accused of a crime liable to be punished by death, transportation existence (viz. confinement for life) or confinement, he may be shifted to an authorized society for detention. This type of detention will not, of curse, be below two and not above ten years.
Again youthful offenders may be accused after warning, or set free to the attention of parents; guardian, suitable persons or relations who have to perform a bond to be answerable for the refined treatment of the youthful offender for any time not above three years. The child may also be taken under the inspection at a probation officer. If complaint goes against him that he is not of good behaviour, he may be detained in an authorized society for the valid period at his probation.
The Children Rules, 1976 (No S.R.O. 103-L76)
The Children Rules, 1976, was introduced under authority of Section 77 of the Children Act, 1974. The Children Rules, 1976 provides that the hearing of all cases and proceedings shall be conducted in as simple manner as possible without observing any formalities. Care shall be taken to ensure that the child against whom the case or proceeding has been instituted feels homelike atmosphere during the hearing. There is definite indication of sitting of session and adjournment of it is stated in the rules that a court shall hold its sitting at least once in a week or as often as may be necessary for the purpose of expeditious disposal of all cases and proceedings instituted under the Act and may adjourn the hearing of a case or proceeding from time to time as may be necessary. It is also stated in the rules that a youthful offender or child may be permitted by licence to live with any trustworthy to respectable person named in the licence on condition: (a) he faithfully obey the instructions of the person to whom he is licehce to live; (b) he shall keep himself away from bad associations and abstain from taking intoxicants; and (c) he shall mot leave the place of his residence or area without the prior permission of the person under whose care he has been placed.
The power and responsibilities of a Probation Officer have been briefly stated in the Section 31of the Children Act, 1974, but it is elaborately stated in the Children Rules, 1976.
Bangladesh Society and Effects on its Laws
In a civilized society, man lives in a social environment governed by rules of law. The aims and objects of law are to change in the perspective of social modification, social evolution and social development. Again, Social atmosphere changes with the change of society. Similarly, laws introduced and society and the state and government are also mutable. Laws change in respect to the alteration and expansion of socio-economic infrastructure and resulting social behaviour and motives of people. Protection for legal rights and external treatment of every individual are regulated through well-conducted social infrastructure. It is possible to build up an expected framework of society resisting unexpected as every society is more or less entangled into these problems. Nobody can assault with any amount of certainty that there does not exist any problem in given society. Arrangement for the solution of problems and stopping incoming ones are managed through the introduction of law.
The wellbeing of people is not possible only through new legislation and amendment, alteration or reformation of old ones. Congenial environment and infrastructure are requisite for the application of laws and execution of judicial decisions. These things are generally in most of the developing country. For this reason, almost all laws turn into paper-law without any application of these. These policies for introduction of any new law foil in consequence of it. Laws are based on some primary policy and on the basis of this policy, laws are generally framed.
The fundamental policy for the introduction of laws is determined in the perspective of changing needs of society. Alteration and evolution are the regular characteristics of society. Introduced criminal laws regulate the instincts of human beings.
Law and Government Programmes
There is no universal system and unity to detect the influence of laws in force regarding juvenile delinquency. Different criminologists, sociologist, economists, juvenile or administrators have observed it form different angle of views. However, to detect this effect through statistical information, all have observed the positive perspective of view. In this discussion, they have described the effect of prevailing juvenile delinquency in Bangladesh through statistical information. Consciousness, management, organization and regulation regarding delinquency exist in a fragile condition in Bangladesh. It means, however, to get criminal statistics serious problems are emerging. The dependence, expansion, or suitability for application of the received information is not out of question. Even between the two opposite tendencies towards research under discussion, they are to depend on the statistics to detect and realize the effect of laws regarding juvenile delinquency in society. Even after having confessed the errors and defect of criminal statistics, they cannot underestimate its total fitness, necessity and magnitude. Some information of statistics regarding delinquency is comparatively correct and more reliable. On the other hand, some are not reliable enough.
Law and Non-Governmental Programme
The NGO’s and other development partners have taken significant steps in recent times to bring a variety of child protection issues, such as child labour, juvenile justice and the sexual abuse of children out into the open. Such actions demand considerable moral courage. Their endeavours to create a better future for the children of Bangladesh deserve widespread recognition. The Voluntary Social Welfare Agencies (Registration & Control) Ordinance, 1961, the Foreign Donation (Voluntary Activities) Regulation Ordinance, 1978, the Foreign Contribution (Regulation) Ordinance, 1982, and the joint Stock Company Act, 1913 etc are the laws existing in Bangladesh for conducting the activities in the Non-Government organizations have to constitute their own Constitution and Articles of Association with the jurisdiction of the laws to handle their programmes. To be mentioned that, this constitutions and articles of association shave the regulations to be approved by the Ministry of Social Welfare and the Bureau of N.G.O. Affairs. Even if necessity arises for the amendment, and addition alteration at any section or sub-section of the constitution or article of the association, it can be possible only having possible the approval of tow-third members of the committee in a general meeting. Moreover, they must have the approval of the concerned Ministry and N.G.O Bureau.
Under the above mentioned rules and regulations, two non-government organizations in Bangladesh have been working for prevention and control of the juvenile prevention and control of the juvenile delinquency at present. Most of the N.G.O’s with different banks in particular, with the help of nationalized, commercial and agricultural banks, have taken different programmes for income generating and self help activities in the contiguous areas of the country. This is why in particular, the juvenile delinquency and social decline have been decreased largely. Otherwise, it could have reached to an intolerable position.
List of Non-Government Shelter Centres for Women and Children
(i) “Prosanti” governed by Bangladesh National Women Lawyers Association.
(ii) Bangladesh Child takes care and Rehabilitation Organization32, Purana Poltan Line, Dhaka-1000.
(iii) Nari Udayan Centre, Shamoly, Shamoly, Adabar, Dhaka.
(iv) Needs, Saver, Dhaka.
(v) Children, Juvenile Centre for Vagrant Children, Sadarghat, Dhaka.
(vi) Moumita, Mirpur, Dhaka.
(vii) MadamTeresaHome, Tongi, Gazipur.
(viii) Shishu Polli, Dhaka and
“Happy Home” Governed by Social Correction and Rehabilitation C
The formal law of Bangladesh attempts to protect its citizens against all forms of discrimination. Children are not the exception but the rule. This is evident not only from the juvenile justice laws but also from the Constitution of Bangladesh which ensures that children and others shall be entitled to protection against all forms of discrimination. The Constitution also guarantees everyone the right to life, liberty and freedom from arbitrary detention. While the right to bail and a fair and speedy trial is embodied in the Constitution, it also gives every citizen the right to freedom from torture and other cruel, degrading and inhuman treatment.
Children who come in conflict with the laws are not different from other children. It is only the particular situations they find themselves in that set them apart from ordinary children. In the circumstances, designating children in accordance with the offences committed by them essentially have a labeling effect, which is hardly compatible with their rights under the law. This is compounded by the fact that many children are institutionalized for activities that hardly merit as “offences’, much less treatment. In the circumstances, the children are very often subjected to double victimization.
The impact of corrective measures under the existing system appears inscrutable to say the least. Given the diversity of factors that compel children to breach the law, it is necessary for the juvenile justice system to assume a differential approach towards treatment of children who come under its purview. In this regard, distinction must be made between child victims of abuse and those who have broken the law. While non-institutional methods should be applied in helping maladjusted children, attempts must be made for separating status offences from criminal offences. Indeed, sentencing and institutionalization on false or minor charges harden children to life’s realities and provoke them into committing real crimes the next time.
The situation is compounded by parents/guardians who prefer to abdicate their responsibilities by handing over their children to correctional institutes for being wayward and uncontrollable. This is indicative from the preponderance of guardian-referred cases than police referred ones in correctional institutes. Although one may deduce from this scenario that Bangladesh has the trappings of a welfare state this is certainly not the case in actuality. The family is a strong medium through which children develop their attitudes and conduct. It is necessary for families to be mindful of their responsibilities if children’s confidence in them as care givers is to sustain. In the circumstances, efforts must be made to strengthen the homes and develop healthy relationships between caregivers and the children.
It would be useful to remember that the welfare model of juvenile justice should in no way be used to subvert the inherent rights of children. Therefore, existing laws need to be applied in a sensitive manner in order to avoid unfair biases against children who come in contact with the criminal justice system. A scrutiny of juvenile justice laws in both the international and national contexts reveals that recourse to deprivation of liberty of children as a sentence should be the last resort and for the shortest possible time. This stems from the understanding that deprivation of liberty must not be imposed unless the judge or the magistrate is convinced of the objectives of theme a sure. In other words, this is imperative to assess whether such deprivation will necessarily have a positive impact on the children’ reform and development. Therefore, in every case, the judge or the magistrate has to weigh all circumstances of the child before committing him/ her to imprisonment.
Institutions should avoid harsh treatment, corporal punishment and excessively stringent discipline of child inmates. While the handling of a child through formal methods may be justifiable up to a certain extent institutional measures beyond a point is likely to become counterproductive for children. Thus, there is a need for diversion from institutional mechanisms into more non-institutional alternatives. The Government must create conditions and opportunities conducive to child development and mobilize human and material resources in that regard. Improved social services, specialized assistance, child-centered initiatives and committed personnel with requisite skills, knowledge an informal initiatives within the community may be an effective strategy for monitoring children’s activities and diverting them from coming into conflict with the law. Community policing may include counseling and support services for parents to equip them with techniques on Planned Parenthood, child rearing and strengthening from family relationships. Similar services to children and juveniles would ensure that they do not feel alienated and uncared for. When communities demonstrate their willingness to share the responsibility of their children, it instills in young people a sense of belonging and a confidence that there is someone to fall back on in times of crises. Wholesome activities and recreations within the community may offer children with viable outlets for their energies, emotions and anxieties. Community involvement in counseling juveniles on salient aspects of their conduct will ensure that they utilize their time in constructive ways.
In conclusion, the importance of raising children properly cannot be over stated. They are important asset for the future of our nation. Reduced juvenile delinquents (if they get educated) can make enormous positive contribution to nations in the area of economics, technology, business, science, politics etc. Foreign countries and private institution would be interested in investing and doing business with Bangladesh if they see our criminal justice system functions effectively. On the other hand, having large juvenile delinquents will contribute negatively in our society. Every effort should be made to provide them with opportunities for development so that they become productive members of our society.
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