GUJARAT NATIONAL LAW UNIVERSITY

PUBLIC INTERNATIONAL

INTERNAL CONTINOUS EVALUATION

RESEARCH PAPER

TOPIC : THERAPEUTIC JURISPRUDENCE IN INDIA AND ITS SCOPE IN

JUVENILE JUSTICE AND SEXUAL HARASSMENT

Submitted by :

Chahana Charles - 18B191

Submitted to : MA’AM APOORVA PATEL

 ABSTRACT
Therapeutic Jurisprudence is the study of law as a therapeutic agent (Wexler, 1996). The combined roles
of the court personnel produce either therapeutic or non-therapeutic consequences. In India, the use of
therapeutic Jurisprudence is mostly limited to matrimonial courts and the field of family law. In a country
with a population of around 1.3 billion and the rising Inequality the existing justice system is indifferent to
the societal realities much like its colonial foundations. In India mainstreaming TJ is not the most feasible
option however it must be implemented in Juvenile Justice and Sexual harassment cases. With the
staggering rise of the me-too movement, redressal has been an impending issue. With the unsympathetic
Justice system appropriate redressal for sexual harassment victims and juvenile justice seems unlikely.
This also leads to a question of efficiency of Indian legal Education and how restorative justice can be
included in the existing system to make legal students empathetic.

Therapeutic Justice is prevalent in many countries like Australia, Drug Courts in the US etc. It has been
observed through research that mainstreaming therapeutic justice is an extremely costly affair which
requires resources and manpower on an extremely large scale.

This research is an attempt to analyse whether therapeutic Jurisprudence applied in Juvenile Justice and
Sexual harassment cases may bring a revolution in the way we address the issues in society, give speedy
redressal, lower the burden of courts and improve the overall justice system through a doctrinal
approach to analyse the available data.

Keywords: matrimonial courts, Juvenile Justice, Sexual harassment, me-too movement, effective
redressal, empathy
INTRODUCTION

Therapeutic Jurisprudence takes an interdisciplinary approach which combines psychology with law. It
aims to study the impacts of law, legal proceedings, and behaviour of legal actors on humans. It
inculcates an approach which is cognizant of people’s mental health. It can be said that it finds its
foundations in legal realism; it can also be seen in the work of Roscoe Pound. Legal actors and
institutions’ are viewed as social forces which can impart therapeutic and anti-therapeutic consequences.
It includes studying the manner in which legal doctrine fosters psychological dysfunction, determine
whether substantive law promotes its intended objective, studying the therapeutic or anti therapeutic
aspects of legal procedures independent of doctrine and analysing relationships between legal objects
and legal actors.1

Therapeutic jurisprudence was for the first time used by Justice Krishna Iyer in the case of Mohammed
Giasuddin vs. State of AP2 for explaining the purpose of prisons; Iyer explained that prisons should be
therapeutic and should not be a place for torture. This was one of the first finest judgments in India
which showed how prison can be used for rehabilitative purposes. But we must also note that a good
criminal lawyer may apply his lawyering skills to save his client who may be the defendant or a criminal
himself.3

The idea of social engineering ties into this aspect of therapeutic Jurisprudence. It lies on the foundation
of restorative justice which aims to punish the act and not the actor; it aims to rehabilitate the offender
back into the society. Therapeutic Jurisprudence not only aims the above mentioned but also provides
healing and support to the victim. It has been conventionally limited to Drugs courts, matrimonial courts,
juvenile courts in the US and Australia. Initially they were started not to provide rehabilitation solely but
also to lessen the burden of jails, in many states this system was found to be cost effective.

LIMITATIONS

Therapeutic Jurisprudence cannot be mainstreamed because it is costly and requires an immense

amount of man power. Trained psychologists are required in a large number with rehabilitation facilities,
proper administrative structuring. The role of police also has to be modified which could take years, the
court personnel, lawyers the entire law enforcement institution has to be sensitized and trained. Indian
legal education has to be modified- the curriculum must be made so that makes them understand the
tenets of restorative justice, capacity building strategies stemming from research by students must be
implemented in all ways possible. The criminal justice system is so well engrained that it is extremely
difficult to change the existing system in India. Any major changes to it will require years of research and
training to ensure a smooth transition. The biggest limiting factors are the financial aspects and the lack
of structural facilities and resources.

JUVENILE JUSTICE IN INDIA

1
Madden, R. and Wayne, R., 2003. Social Work and the Law: A Therapeutic Jurisprudence Perspective. Social
Work, 48(3), pp.338-347.
2
1977 AIR 1926, 1978 SCR (1) 153
3
Halder, Debarati, Why Law Fails to Be Therapeutic in Spite of Therapeutic Judicial Efforts: A Critical
Analysis of Indian Legal Education From the Therapeutic Jurisprudence Perspective (October 28, 2018).
Unitedworld Law Journal, Vol 2, Issue: I, ISSN: 2457-0427, (2018) pp 173-182. Available at
SSRN: https://ssrn.com/abstract=3274175
The Rule 4 of United Nations Standard Minimum Rules for the Administration of Juvenile Justice, In those
legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of
that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and
intellectual maturity4

United Convention on the Rights of Child defines “child” as “every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained earlier5

Juvenile Justice Care and Protection Act, 2015 defined “child” “means a person who has not completed
18 years of age6

Juvenile generally refers to someone who has committed an offense and is below the age of 18. A minor
is one who is not allowed to partake in an activity due to his or her age.

In Salil Bali v. Union of India & anr7 it was battled to alter the current Juvenile Justice Law and to lessen
the age from 18 years to 16 years and to change the Juvenile law so that the adolescents who have
submitted the shocking offenses like assault and murder ought to be tried at courts as a Major. The
Supreme Court dismissed the supplication and held that the Juvenile Act depends on the sound standards
and with consonance to the Indian Constitution. A few International Instruments likewise perceives a
minor’s rights like Beijing Rules, Riyadh Guidelines that permits separate criminal equity frameworks for
the Juveniles.

Indian Juvenile Justice System was adopted in 1986, and amended in 2000, according to the provisions of
United Nations Convention on Rights of the child. The rights entailed in the convention are –

Right to Survival

Right to Participation
Right to Protection
Right to Development
The act has been further amended in 2006 and 2011. Since then it has broadened the scope of
rehabilitation of the child, included child labourers within its ambit. On face of it focuses on rehabilitation
which is one of the key components of restorative justice.

Challenges

 Section 4(2)(viii) provides child in need of care and protection for those who have been tortured, abused
and exploited for the purpose of sexual abuse. The section provides protection for children but ignores
the one who have faced the sexual abuse in the past. It grossly affects the mind of the child which leads
to social stigma.

4
UNGA Res 40/33 (29th November 1985) ‘The Beijing Rules’
5
UN Convention on rights of a child (1989) Article 1
6
 Juvenile Justice(Care & Protection of Children) Act,1986,Section 2(h)
7
According to Section 2(5) defines the word “aftercare” to provide them financial support to persons who
have completed the age of 18 years but are less than 21 years of age. But the following problems could
have enumerated against the proper results of after-care institutions 8

 Insufficient funds
 Stigma attached to institutionalization.
 Ignorance about the aftercare programme
 Noncompliance of parents in the after care plan.
 Lack of a connection or relationship between the aftercare workers and juveniles.

The Section 21 of the Act, states that after attaining the age of 21, the Juvenile Court may decide if the
child has undergone the reformative changes and needs to be released or he should be transferred to a
jail. This provision is in violation of article 20(1)9 of the Indian Constitution and by confining a 21 year old
with criminals will make a child like them and this will not serve the purpose of Reformation and
Therapeutic Justice.

 Section 16 of the Act, states that in case of a heinous offence committed by a child who has completed
the age of 16 years, the Juvenile Justice Board shall conduct the inquiry about the physical and mental
state of the child and then only the Board will decide whether to dispose the case or to start a trial. The
foremost flaw with the section is it implies an assumption that the child is guilty of an offence and is
violative of Article 14 and 21 as prescribed under Part III of the Indian Constitution, as the procedure is
arbitrary and irrational.

There is a lack of clarity regarding appointments in this particular sector about the roles of various
officials. There is no surge into run away or missing kids from these facilities as this may be extremely
harmful for children as they may be abused by the officials. There is an increasing number of
maltreatment cases against the children in care homes. The delay in trial leaves children with no option
than staying in the facilities awaiting judgement. There is no registration for recovery or re-joining given
under this act. This absolves the establishments under this act of any responsibility. The states are unable
to maintain such correctional facilities due to lack of proper guidelines.

Therapeutic Justice majorly involves a problem solving court and with above issues it is evident that in
India, it is not followed as it should be. The courts are making value judgments about children of
8
Ved Kumar, Treatise on the Juvenile Justice Act, 1986, Indian Law Institute,
1993 at p 107.
9
Article 20(1), Constitution of India
Protection in respect of conviction for offences

(1) No person shall be convicted of any offence except for violation of the law
in force at the time of the commission of the act charged as an offence, nor
be subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence
impressionable age and labelling them as ‘delinquents’ This entire idea Is antithetic to healing and
development of the child. The Juvenile Justice Board enquires whether a child is mentally or physically fit
for trial and may even dispose the case; this approach neglects the healing or therapy that a child needs if
he or she is unfit. This is a complete shrug gage of the burden of state towards its subjects especially
those pushed to extremes due to inequality. According to major surveys most juveniles either suffer from
severe mental health issues or are from underprivileged backgrounds.

The separate centres where juveniles are kept are not inspected regularly and major sexual offences,
abuse of juveniles occur in these facilities that go unnoticed by authorities.

An ideal approach should be to immediately assign a social worker when a juvenile is identified- the social
worker must prepare a preliminary report of the condition of the juvenile. If they are fit for court only
then they must proceed. The report of the social worker can be scrutinised by the Juvenile Justice Board.
The court proceedings must be language sensitive, hopeful and empathetic towards the juvenile. This
does not mean to absolve him of any guilt that would be a gross injustice to the victims of the crime. This
means to understand and reform the wrong doer and make him align his thinking with the acceptable
norms of the society. This involves a level of introspection and realisation that should be done by
methods used by trained psychologists. Healing avenues should be given to the victim as well. In these
situations depending on the victim’s wishes a direct dialogue between them can also give closure and
release to both sides.( This must be done keeping in mind that the victim is mentally ready and does not
face any further trauma and the juvenile has taken responsibility for his or her actions)

THERAPEUTIC JURISPRUDENCE IN CASES OF SEXUAL HARASSMENT

The rise of fourth wave feminism brought the me-too movement, wherein perpetrators of sexual
harassment from different fields were called out by the victims. The sole number of people addressed
showed that this was a wide spread problem faced by women in all walks of life especially at workplace.
It gained momentum after many celebrities were called out. It showed an immense level of organization
and collectivisation by women all over the world without any formal outlet or institution. However it also
highlighted a dysfunctional redressal mechanism for harassment. The victims majorly were unwilling to
approach courts as they were time consuming, most of the times the perpetrator was their boss hence
immediate relief was impossible and there was a high chance of risking one’s livelihood. However all the
victims were on the same page on the concept of acknowledgment? The sole aim of publically calling out
their perpetrators was not shaming them but forcing them to acknowledge their acts and understand
their faults.

It’s almost surprising that the number of women who want to pursue the legal remedy is negligible.
Another reason for not approaching courts would be the nature of proceedings. In India the courts deal
with such cases with the least empathy possible – with the lawyers asking inappropriate questions
themselves, the judges making indefinite remarks.

This atmosphere can be quite traumatizing for a survivor. This is where Therapeutic Jurisprudence seems
an ideal option. It aims to rehabilitate the perpetrator however this does not mean it absolves him or any
guilt. It rather makes them approach the act heads on and face their doings. This approach makes the
perpetrator-

 Acknowledge his act

 Understand its consequences and nature
 Leads to Guilt/Realization
 Willing to make amends to victim
The perpetrator is made aware of his wrong doing and his mind-set and psyche is studied by
psychologists. This helps in understanding whether the perpetrator has some underlying mental
disorders or complexes that make him act a certain way for example Childhood trauma, abusive
relationships, addictions etc.

This also helps victim get closure in terms which is paramount to their wellbeing.

It is also essential to understand why women take an alternative approach to sexual harassment-

 Poorly drafted laws

 Trivialization by police and court personnel
 Societal backlash

These issues can be solved by encouraging more research into the drafting of sexual harassment laws to
make them all inclusive in India and to eliminate all barriers to entry that women face while approaching
authorities.

Trivialization by police is something that will improve if the system is turned completely therapeutic.
Therapeutic Jurisprudence gives unarguably an undue weightage on mental health which ensures that
survivors are treated with empathy, respect and given due therapy and healing. It also ensures they get
what they want, with problem solving courts women can talk about reparations from their perpetrators
with help of their legal counsel. This is essential as many cases go by where women don’t see much point
in sending their perpetrator to prison as they believe it surely keeps him out of their sight but doesn’t
benefit them or help them in any way, rather their trauma and wounds are still intact.

Perpetrators are not left unpunished under therapeutic court system- they are socially isolated if needed,
however they are not labelled as a ‘criminal’ , they are forced to inculcate active empathy and provide
redressal and recourse for the survivor.

The role of effective lawyering is crucial. A therapeutic Justice system requires its lawyers to be mindful of
the phrases they use amidst clients and the means they use to reach their ends. This ensures a level of
ethics and an understanding of human psychology that needs to be incorporated in the Indian legal
education from early on.

This skill development would benefit the students who chose a different career path as well.

The requirement of ethics in the legal field is something that is essential, we recently saw a leading senior
counsel and her juniors laughing while a sexual harassment victim was testifying in the Supreme Court of
India. It was a high profile case which is why the survivor’s voice was stifled for a very long time. This lack
of empathy not only discourages other women to speak but also mocks the courage of survivors that
choose to stand up.

With the Me too movement another danger that women are facing is a threat of a defamation suit. Even
when posts are anonymous defamation suits are slapped on platforms that share and host such content.
(Insert two cases)

Harvey Weinstein, famous Hollywood producer was accused of multiple harassment cases, his first action
was to file criminal defamation suit against the media houses- and later in a separate criminal action by
the victims all the allegations were proven.

In case of journalist Priya Ramani and MJ Akbar the victim shaming was evident when the latter at the
Delhi High Court said the allegations against him were concocted. It is essential that problem solving
courts come up as they advise everyone to use a respectful language , in Australia judges are directed to
frame the sentencing in ways that don’t label the perpetrator or shame him. The power dynamics are
also skewed in a country like India- even media houses are scared to run stories against the rich and
politically influential- it is highly unlikely that women get justice through the regular course.

It is also essential that survivors are protected against victimisation that is bound to occur at some level if
the posts are shared on a public platform. The survivor may or may not be able to deal with it.

The above mentioned issues can be solved just by initiation of a therapeutic justice system for all sorts of
sexual harassment. However the line to draw here is that the option to go for a criminal trial should be
completely in the hands of the survivor. In more heinous sexual crimes like rape, gang rape, sodomy – It
is essential that there is a deterrent effect.

This approach does not aim to completely reform the existing system but add a necessary option for
women to speak up in much more empathetic court environment.
METHODOLOGY

The current study work of all the existing literature available in shape of reports, judgements, books etc.,
has been consulted. An endeavour to analyse the subject matter has been undertaken. Therapeutic
Jurisprudence as a concept has been analysed with its core values and significance. Juvenile Justice
System in India has been analysed with stress on case laws/ judgements. Sexual harassment cases have
been analysed in the light of the me-too movement by reviewing various works by sociologists and legal
experts. In brief a doctrinal approach has been adopted.
CONCLUSION

REFERENCES