Reimagining Counselling in the Juvenile Justice System

Counselling is an important approach to restorative justice. But, currently, counselling is interpreted solely as a form of psychotherapy, and there is a need to broaden its scope to include various non-medical forms of counselling. 

The National Crime Records Bureau (NCRB) has recently published crime statistics for 2018. The latest report, like its previous ones, includes a chapter on crimes committed by juveniles. It sheds light on the number of cases against juveniles disposed of by the juvenile justice boards in the country. The report particularly refers to a number of cases in which juveniles were let off after “admonition” or “advice” by the boards. Though counselling plays an important rolein fact, a much better role than other available measures in the juvenile justice systemthe NCRB data does not capture the cases settled through counselling.   

The aim of this article is to bring into focus the significance of counselling in the Indian juvenile justice system. It advocates for a broader understanding of counselling in the criminal justice system, which reveals that its non-psychological aspects are no less significant. In doing so, the article wants to correct the misconception that interprets counselling only as a form of psychotherapy. The conclusions drawn are based on the fieldwork of the author[1] carried out in Delhi. The author conducted more than 70 interviews of range of stakeholders, from members of juvenile justice boards to senior judges, police officials, prosecutors, legal aid counsels, superintendents of homes of juveniles, counsellors, and non-governmental organisation (NGO) activists, among others, in order to explore the prospect of restorative justice in the Indian juvenile justice system.     

Counselling and Rehabilitation in Criminal Justice

Counselling, a form of interpersonal talking, refers to advice given to persons by their family, friends, colleagues, or any compassionate individual in the times of need. This is an age-old practice, which is quite common. As a professional activity too, counselling is widespread and is hardly the preserve of any particular profession. Lawyers, educationists, diplomats, medical practitioners, and psychologists provide professional counsel to people who seek their help to find solutions to problems. But, despite its prevalence in diverse occupational contexts, there seems to be a pervasive assumption among experts of psychology and mental healthcare that counselling is synonymous with the mental health profession, allied to psychology (Brown 2010). Etymologically, there is nothing to suggest that the word “counselling” has any intrinsic connection to psychology. So, this appropriation is incompatible with the generic usage of the term that also has had a prior existence. It militates against the specific meanings counselling assumes in non-psychological contexts. 

The use of counselling in the criminal justice system began in the post-World War II period in countries such as Britain and the United States (US). However, it has not come about as an approach intrinsic to the criminal justice system, as it has been the case in other professions. It has been associated with the advent of offender-rehabilitative methods, developed from the advancements that have taken place in the fields of psychology and psychiatry. So, counselling needs to be understood within the broad umbrella of rehabilitation.

Within penal theory and practice, the idea of reform or rehabilitation of the offender is not new. In addition to deterrence, retribution, and incapacitation, rehabilitation is often interpreted as one of the justifications for state punishment. In fact, Jeremy Bentham, who formulated the deterrent theory of punishment in the 18th century, observes that punishment reforms offenders by providing them with an opportunity to change their character and habits. The changing of a law-violating member of the society into a law-abiding one lies at the heart of the rehabilitative approach. On the contrary, the punitive approach relates to the punishment of offenders to dissuade them from breaking the law.  

By the turn of 20th century, criminal policy came under the influence of scientific advancements that dealt with human behaviour. As a result, the discourse then shifted from the actions of the offender to underlying issues, such as their character, mind, and disposition. The emergent positivist school of criminology then posited that criminal behaviour has antecedent causes, which are discoverable. The assumption of the classic penal policy that criminal activity is a result of free will and rational choice was questioned. Instead, crime was viewed as an outcome of underlying biological, psychological, or social factors, beyond the control of the offender. There was a consequent loss of faith in the idea of inflicting punishment on the perpetrator, with the aim to deter them from criminal activity. The idea of diagnosis and treatment of an individual and social pathology gained precedence. It signalled a new era where the term “rehabilitation,” or the phrase “the rehabilitative ideal” (Allen 1959), became a key element of the official ideology and institutional rhetoric (Garland 1990) of the criminal justice system. 

Within this era, rehabilitation took on a distinctly medicalised meaning, which had little connection to the references to the term made in penal policy and practice earlier. Rehabilitation was re-envisioned as a set of medical and behavioural interventions directed towards the elimination of the offender’s criminal disposition. These interventions included training programmes, treatment, counselling, psychotherapy, and drug therapy. At its extreme, even shock therapy and psychosurgery like lobotomy—as depicted in Ken Kesey’s novel One Flew Over the Cuckoo's Nest and the subsequent film adaptation—were seen as rehabilitative cures. Crucially, the rehabilitative ideal was pursued within the framework of penal sanctions. Criminal liability of a person was still required to be found through a court process before they could be rehabilitated. But still, the rise of the rehabilitative ideal did recast punishment as a means of restoring and reintegrating the offender to good citizenship (Zedner 2004), thereby making punishment appear meaningful and justified.

The influence of rehabilitation in penal policy in the US and elsewhere began to decline in the 1970s for a host of reasons. There were also criminological investigations that attempted to show that rehabilitation did not work (Martinson 1974). While positivist school attempted to prove whether or not rehabilitation worked, some scholars argued in favour of developing models of rehabilitation on the basis of what was known to “help” offenders to desist from crime (Ward and Maruna 2007). What certainly does not help is for any rehabilitative approach to make an exaggerated claim that it is capable of providing a “cure” to the complex and variegated phenomenon of crime. Over time, the term rehabilitation in the criminal justice field has moved away from the erroneous assumption that it is a “medical model.” As a result, it has taken on a more realistic meaning as a set of humanistic services, including counselling offered to a convict, to assist their social reintegration. In this sense, rehabilitation continues to be relevant on both practical and normative levels.

The Focus on Juvenile Offenders

Juvenile offenders have been the primary focus for the ideas of rehabilitation. International law is strongly underpinned by the concern for their rehabilitation and reintegration. Article 37 of the United Nations Convention on the Rights of the Child, 1989 enjoins states to ensure that children are not held in prison or detention unless required as a measure of last resort. In order to avoid the institutionalisation of the child to the greatest extent possible, Article 40 of the convention calls for children to be provided with alternatives to institutional care, including care, guidance and supervision orders, counselling, probation, and education and vocational training programmes. Just desert and retributive sanctions are considered inappropriate in the case of juveniles due to their physical and mental immaturity. 

In 1992, India ratified the Convention on the Rights of the Child of the United Nations. This necessitated the repeal of the earlier Juvenile Justice Act, 1986 and the introduction of the Juvenile Justice (Care and Protection of Children) Act, 2000, in order to bring the domestic law in conformity with the international treaty obligations. Later, the 2000 act was repealed and replaced with the Juvenile Justice (Care and Protection of Children) Act, 2015. This act is the governing legislation for “children in conflict with law” (also referred to as juvenile offenders) in India. The legislation seeks to ensure rehabilitation, treatment, and social reintegration of children in conflict with the law through a child-friendly approach, which pays attention to the best interests of children. It observes that the confinement of children should be the last measure. Even in such cases of detention, the idea should not be to punish the child, but to provide an enabling environment for rehabilitation, restoration, and reintegration of the child with the family and the society at large. 

Rehabilitation is important in the Indian juvenile justice system not just because it is enshrined in the law, but it reveals the underlying factors that lead to deviant behaviour. There are multiple socio-economic and psychosocial factors associated with the law-breaking behaviour of children in India. Most of the children in conflict with law come from poor households and marginalised communities. They are deprived of adequate levels of care, support, and supervision. Parental neglect is found to be pervasive. Conflicts, deviance, and disruption within families act as risk factors in the case of a number of children. A majority of these children are school dropouts and do not experience the positive role schools can play in their lives. They often have peers or role models direct them to alcoholism, substance abuse, smoking, and offending. Sometimes, adult criminal gangs use children for illegal activities such as selling illicit drugs and alcohol. Personal experiences of abuse and violence also lead to emotional and behavioural problems, which predispose children to be in conflict with the law (DCPCR 2015; Parackal and Panicker 2019). 

Though the above factors are neither exhaustive nor supposed to offer causal explanations for crimes committed by children, they reveal that almost all children involved in offences and placed in detention centres suffer from multiple deprivations. Their difficult family and social circumstances expose them to risk factors for criminal behaviour. Their responsibility and culpability in crime are further diminished due to their immature cognitive capacity. The view that juvenile offenders in India are a group that needs to be rehabilitated is, therefore, widely shared among policymakers and practitioners. Even this author’s own fieldwork reveals the same. In particular, it is argued that in the formative stages, children are amenable to behaviour-modification therapies to enable them to understand the consequences of their actions and to return to a law-abiding life (Parackal and Panicker 2019). 

In pursuance of the overarching aim of rehabilitation and social reintegration of children, the 2015 act and the model rules provide for a comprehensive rehabilitation plan for the child, is known as ‘‘the individual care plan.’’ Counselling has been accorded importance as part of the individual care plan for the child. The Juvenile Justice Board can make counselling the only measure in case of all offences committed by children, except in cases of heinous offences committed by children in the 16–18 age group. Various counselling modalities provided in the law are: counselling (individual), group counselling, and behaviour modification therapy (Section 18); and milieu-based interventions and individual therapy (Rule 35). While these modalities have the common objective of rehabilitating juvenile offenders, they vary in terms of means, methods, and procedures. The stress, however, is to reform the child by identifying their specific mental health needs, and by providing specialised forms of psychotherapy suited to address those needs. A strong influence of the dominant idea of counselling as a technique to deal with behavioural issues is clearly discernible. 

During their fieldwork, this author found this predominant understanding of counselling, particularly among counsellors who are trained in psychology. Depending on the psychological assessment of children, they use behaviour therapies like modelling therapy, cognitive behavioural therapy, rational emotive behaviour therapy, and motivation enhancement therapy as interventions during counselling. They believe that counsellors ought to be mental health experts. 

The Case for Counselling in a Broader Sense

This author’s interviews reveal that the juveniles perceive the justice system as hostile and intimidating when they first come into contact with it. They are normally brought into the system forcibly, and their position is precarious. They simply go into their shells and are unable to speak. A psychotherapist with a problem-focused, advice-giving, prescriptive approach can make juveniles feel more vulnerable, not least because of the power the psychotherapist has over their lives. Further, it is fallacious to assume that a juvenile must have a mental/personality/behavioural disorder that needs treatment by psychological means. Even if that is the case, counselling may not be a sufficient response.  

That said, what juveniles need is a supportive, empathetic, non-threatening, and non-judgmental environment in which they feel comfortable to open up. It should be noted that counselling can be of considerable help to enable such an environment, provided it is reclaimed from exclusive psychotherapeutic and advice-giving conceptualisations in the field of criminal justice. The value of counselling in this sense lies in offering something far more fundamentala talking and listening serviceso that juveniles can embrace their feelings, thoughts, and wants. Counselling is not meant to be a tool for obtaining all relevant information and running standardised checklists and tests to assess mental health disorders. As an interview respondent put it, “When a counsellor is with a child, they should forget that they are a counsellor.” It is not for the counsellor to tell the children what is right for them. Rather, it is for the children to realise what is good for them. The role of the counsellor is to provide them with the necessary support in this regard.  

It follows, therefore, that anyone who is trained in active listening and constructive conversation techniques can practise counselling. It is true that counsellors are trained to actively listen and talk encouragingly. However, when counselling is conflated with professional psychotherapy, the focus shifts from developing trust and empathy with the child through active listening to modifying the behaviour of the child. Practitioners in the juvenile justice system—like probation officers, legal aid counsels, and social workers who come into contact with juvenile offenders as a matter of routinecan be trained as counsellors. Of course, nothing prevents a trained psychologist from being a counsellor. However, they must eschew any approach where the focus is primarily on filling up mental health assessment forms and imposing their views on the child. The key to effective counselling is to establish a rapport and develop trust and empathy with offenders, which is found missing in criminal justice.   

Another aspect that came up recurrently during this author’s fieldwork is that people who the child comes in contact with need counselling. The roots of the child’s offending behaviour may lie in how they are treated by people around them. There are parents who disown the child because of the offence. In such circumstances, targeting the child alone does not provide for a sound approach. That is, perhaps, why the 2015 act includes counselling for parents or guardian of the children in conflict with law.

In fact, several interview respondents see counselling not only as a method to reintegrate the child with their family, but also as an opportunity to connect the child with their victim and initiate a restorative justice process. It is argued that in appropriate cases, it may be in the best interest of the child to meet the victim, understand the harm suffered by them, and take steps to repair the harm. In the absence of an express provision to enable a restorative justice process in the 2015 act, it seems that counselling offers a possibility, however slender, of making a mild beginning towards restorative justice.               

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