This article is written by Kishita Gupta from the Unitedworld School of Law, Karnavati University, Gandhinagar. This article analyzes the extent of success in the implementation of the Beijing Rules in the JJ Act 2015.
Table of Contents
Introduction
The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, commonly known as the “Beijing Rules” were adopted by United Nations General Assembly resolution 40/33 of 29 November 1985. The resolution invited and requested the member states for implementing these rules in their respective juvenile justice legislation. The Juvenile Justice Act of 1986 was the first nationally enacted law governing the care and protection of children. While it kept the scheme and main characteristics of The Children Act of 1960, it did it differently. Later on, an amended Act was introduced in 2000 and 2006.
However, the aftermath of the Nirbhaya rape case led to the introduction of the amended Juvenile Justice (Care and Protection) Act 2015 (hereinafter referred to as the JJ Act) to make broad provisions for children in conflict with law and children in need of care and protection, while considering the standards outlined in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993), and other related international instruments.
Overview of Beijing Rules
All juvenile offenders, regardless of colour, gender, language, religion, or caste, will be subject to the same Minimum Rules. The goal of criminal justice is to promote proper child-rearing and defence, as well as to ensure that he is treated fairly not only in terms of the nature of the crime or the seriousness of the alleged crime but also in terms of the crime’s context or its situation. This often promotes the child’s best interests and rejection of institutionalization as alternatives. As a result, deprivation of liberty can only be used as a last resort, and for as little time as possible.
These Rules emphasize the need for a healthy social program for juveniles by assuring that such a program will help to reduce juvenile crime and delinquency, among other things. Juvenile justice is considered to be an important part of juvenile social justice. Rule commands would automatically differentiate how such laws are implemented from how they are enforced in other states, taking into account current requirements in the Member States. Furthermore, it is necessary to consistently improve juvenile justice without falling behind in the evolution of comprehensive juvenile social policies in general, as well as taking into account the necessity for continuing employee resource expansion.
Fundamental Principles of juvenile justice
The fundamental Principles governing the Beijing Rules 1985 are as follows:
- The well-being of the Juvenile and his/her family.
- A juvenile must get suitable conditions to lead a meaningful life in a community that is free of crime and delinquency.
- Positive measures to be taken to give full access to resources to the juvenile to promote his well-being by dealing with the case in a humanely, fairly and effective manner.
- Juvenile justice must be an integral part of a country’s national development.
- The member states should ensure the implementation of these rules concerning the economic, social, and cultural conditions prevailing in their nations.
- Juvenile justice services shall be systematically developed and coordinated to improve and sustain the competence of personnel involved in the services, including their methods, approaches, and attitudes.
Aim of juvenile justice
These Rules were implemented as a means to strengthen the juvenile justice system across the whole world. The aim and objective of this initiative have been highlighted in Rule 5.
- One of the main objectives is the well-being of the juvenile, emotionally, mentally, and physically. This has been a primary focus of legal systems in which underage offenders are dealt with by family courts or by administrative authorities, but such well-being of a juvenile must also be emphasized in a criminal court model, to ensure that the penalties awarded for their offences are not merely punitive.
- The second objective behind the implementation of these rules is “the principle of proportionality”. This concept has acted as a mechanism to curb any punitive sanctions. The response and reformative measure awarded to juvenile offenders should be based on not just the gravity of the offence committed but also the personal circumstances of the offender. Personal factors such as the family situation, social status, the injury caused due to the offence should give effect to the proportionality of the reaction.
Similarly, as has been observed in some juvenile justice systems, responses aimed at ensuring the welfare of the young offender may go beyond necessary and so infringe on the young individual’s fundamental rights. The proportionality of the response to the circumstances of both the perpetrator and the offence, including the victim, should be protected in this case as well.
In essence, rule 5 requires no less than a fair response in every given incidence of juvenile misbehaviour or criminality. The combined issues in the rule may serve to drive development in both directions: new and innovative sorts of reactions are just as desirable as safeguards against an overabundance of formal social control over adolescents.
The essence of Beijing Rules in JJ Act, 2015
Now let’s briefly see some of the provisions of the JJ Act 2015 that are inspired by the Beijing Rules, 1985.
General principles
Section 3 of the JJ Act 2015 includes all of the general principles that were present in the JJ Act 2000, plus two new ones: the Principle of Diversion and the Principles of Natural Justice. The majority of these concepts apply to both law-breaking minors and children in need of care and protection. In this section, we will be discussing the role played by the Beijing Rules in formulating these principles in the juvenile justice administration in India.
Presumption of Innocence
As per Section 3(i) of the JJ Act 2015, up until the age of eighteen, any child is deemed innocent of any mala fide or criminal intent. This finds its origin from Article 11 of the Universal Declaration of Human Rights and in Article 14(2) of the International Covenant on Civil and Political Rights which was adopted in Rule 7(1) of the Beijing Rules which guarantees the safeguard of all the basic procedural rights which includes the right to be presumed innocent until proven guilty.
In Vinod Solanki v. Union of India [2008], the Supreme Court held that presumption of innocence is a human right as contained in the International Covenant of Child Rights.
Under the JJ Act, 2015, the presumption of innocence extends not only to the child’s innocence but also to the fact that they had no “mala fide” or “criminal intent” even if the JJB finds that he or she committed the violation.
Prof. Ved Kumari in her book The Juvenile Justice (Care and Protection of Children) Act 2015- Critical Analysis, sees an “apparent conflict” between this idea and the JJ Act 2015, which “allows for the selective transfer of children to be treated as adults if they are accused of committing a severe crime.” “This principle is couched in the form of irrebuttable presumption provided in the Evidence Act bearing the words ‘shall presume,’” she continues.
Principle of Dignity and Worth
The principle that all human beings must be treated with dignity and worth is mentioned in Section 3(ii) of the JJ Act 2015. Although the Beijing Rules don’t directly mention this principle there are various instances where the emphasis has been laid on the well-being of the juvenile. The purpose of training and therapy for juveniles in institutions is to provide them with care, protection, education, and vocational skills to help them become socially constructive and useful parts of society as laid down in Rule 29.
In Francis Coralie Mullin vs. Administrator, Union Territory of Delhi (1981), the Supreme Court believed that various other factors such as enough nourishment, clothing, and shelter, as well as facilities for reading, writing, and expressing oneself in a variety of ways, as well as freedom of movement and mixing and mingling with other people, is included under the right to life and personal liberty under Article 21 of the Constitution of India.
Principle of Participation
The Beijing rule mentions a competent authority to adjudicate in Rule 14. The formation of the Juvenile Justice Board(JJB) has enshrined this in the JJ Act. Part two of the rule states that the proceeding must be held in a child-friendly setting and the child’s best interests. Section 3(iii) of the JJ Act 2015, the participation principle focuses on the same thing.
During the investigation before the JJB and during the child’s stay in a child care institution, an atmosphere must be developed that allows a child to engage in the juvenile justice system. A child may reveal self-incriminating information while engaging in the investigation; however, the JJB is prevented from evaluating this information under Article 20 (3) of the Indian Constitution, which is a fundamental right.
Principle of Best Interest
Section 2(9) of the JJ Act 2015 defines “best interest of the child” as “the basis for any decision taken involving the child, to guarantee the fulfilment of his basic rights and needs, identity, social well-being, and physical, emotional, and intellectual development.”
Part 2 of rule 14 also holds importance in the best interest of the child which is a separately recognised principle as per section 3(iv) of the JJ Act,2015.
In situations of adoption, custody, and guardianship, the idea of child rights law is that “the wellbeing of the child is the foremost priority.” The principle of best interest reflects this mindset. This principle states that the child should be the centre of every decision or action performed on their behalf. It is critical to guarantee that such a decision or action has a good impact on the child and does not harm their welfare. This approach should be applied everywhere: at home, or in schools, in child care facilities, and in front of any adjudicating authority.
Principle of Family Responsibility
The principle of family responsibility as per Section 3(v) of the JJ Act 2015 states that the biological/adoptive/foster parents have the primary responsibility of care, nurture and protection of the child. The JJ Act 2015 prefers “family-based care such as restoration to family or guardian” as a method of rehabilitation and social reintegration as per Section 39 of the Act. The underlying theme behind several principles of juvenile justice administration is that the family is the ideal setting for a child, except in circumstances where it is against the child’s best interests. This should be kept in mind by all stakeholders when decisions are made regarding a child.
We can find this principle in the Beijing Rule 18 and 26.5 which says that parents have not only the right but also the responsibility to care for and monitor their children inside the family. As a result, Rule 18.2 mandates that the separation of children from their parents be used only as a last resort. The parents or guardians of the institutionalized juvenile shall have a right of access in the juvenile’s best interests and well-being.
Principle of safety
Stakeholders in the juvenile justice system are most concerned about a child’s safety as per Section 3(vi) of the Act. Several provisions of juvenile justice legislation are based on the safety of children in conflict with the law:
- Not being held in police lock-ups/jails; denial of bail in circumstances where release would expose the child to “moral, physical, or psychological danger” as per Section 12;
- DCPU arranging community service upon completion of investigation as per Juvenile Justice (Care and Protection) Model Rules (JJ MR), 2016, Rule 11(5); non-disclosure of child’s identity as per Section 74;
- Arrangements of safety inside the childcare institution as per JJ MR, 2016, Rule 21(5)(vi).
This principle finds its root in the Beijing Rules according to which the risk of “criminal contamination” to juveniles while in detention before trial should not be disregarded. As a result, it’s critical to emphasize the importance of taking alternate steps. Rule 13.1 supports the creation of new and innovative strategies to avoid such detention in the juvenile’s best interests by doing so.
Principle of Positive Measures
To reduce children’s vulnerabilities and the need for intervention under this Act, all measures, including those of family and community, must be mobilized for promoting well-being, facilitating identity development, and providing an inclusive and enabling environment as per Section 3(vii) of the Act.
The provision of constructive inputs to enable a child to cope in a communal environment is likewise covered by the principle of positive measures. This can be accomplished by assigning human resources who are competent, trained, and experienced in dealing with youngsters. As a result, training for workers who work with children in the juvenile justice system is critical.
This principle is mentioned in Rule 22 of the Beijing Rules which states that to build and maintain the requisite professional competence of all personnel dealing with juvenile cases, their professional education, in-service training, refresher courses, and other relevant forms of instruction should always be used. Personnel in the juvenile justice system must reflect the diversity of kids who come into touch with it. Efforts will be taken to ensure that women and minorities are fairly represented in juvenile justice systems.
Principle of Non-stigmatising Semantics
This principle under Section 3(viii) restricts the use of any adversarial or accusatory words when dealing with juveniles. Even though this principle is not directly mentioned anywhere in the Beijing Rules, it finds itself indirectly in the legislation. The JJ Board is also required to maintain a child-friendly environment during the inquiry as per both Beijing Rules and the JJ Act 2015 which includes using child-friendly terminology only.
This is based on the belief that criminal justice terminology is disparaging, accusatory, and pejorative, and hence inappropriate for children. As a result, juvenile justice legislation substitutes the words “apprehend” for “arrest,” “child in conflict with the law” for “accused,” “inquiry” for “trial,” and “found to be in conflict with the law” for “convict.” Under juvenile justice legislation, words like “prosecute” “summon,” and “warrant” are not used regarding a child in conflict with the law.
Principle of Non-Waiver of Rights
“No waiver of a child’s right, whether sought by the child or a person acting on behalf of the child, or by a Board or a Committee, is authorized or legitimate, and any non-exercise of a fundamental right must not amount to waiver.” This Principle is mentioned in Section 3(ix) of the JJ Act 2015.
Under the Right of Children to Free and Compulsory Education Act 2009, for example, children in observation homes are entitled to free and compulsory education up to the elementary level. A child is entitled to action under the Protection of Children from Sexual Offenses Act 2012 if he or she is sexually assaulted by Special Home management or personnel.
The Beijing rule 24 states that the promotion of the well-being of the child in the childcare institutions is of paramount importance and therefore education and other basic facilities are to be provided to the child no matter what.
Principle of Equality and Non-discrimination
Rule 2.1 clearly states that there shall be no distinction of any kind and that all the Rules must be applied impartially which means that the Beijing Rules supports and promotes equality and non-discrimination among every juvenile.
The Principle of Equality and Non-discrimination as mentioned in Section 3(x) of the JJ Act 2015 suggests that juvenile justice legislation should apply equally to all children in the juvenile justice system – no juvenile should be denied juvenile justice protection, and all children should be handled in their best interests. As the phrases “on any grounds, including” imply, the grounds of discrimination specified are not exhaustive.
Principle of Right to Privacy and Confidentiality
In India, the right to privacy is considered a fundamental right and the ‘right to be left alone’ as ruled in the case of Justice K.S.Puttaswamy(Retd) vs Union of India (2018). Therefore it is very necessary to protect the privacy of the child in conflict with the law. Section 3(xi) talks about protecting the privacy of the child by all means. Further, Section 74 of the JJ Act 2015, prohibits a child’s identity from being revealed. Publication of a report in any medium addressing any inquiry, investigation, or court procedure that discloses “the name, residence, or school, or any other particular, which may lead to the identity of a child in conflict with the law” is prohibited under this section. Earlier juvenile justice legislation featured a similar provision.
Rule 8 of the JJ Act 2015 emphasizes the necessity of safeguarding the right to privacy of minors. Young people are especially vulnerable to stigmatization. The permanent labelling of young people as “delinquent” or “criminal” has been shown to have negative consequences (of various kinds) according to criminological studies on labelling processes. Rule 8 emphasizes the necessity of safeguarding the juvenile from the negative consequences that may arise from the dissemination of information about the case in the media (for example the names of young offenders, alleged or convicted). Individual rights should be respected and upheld, at least in theory.
Principle of Institutionalization as a Measure of Last Resort
“Detention pending trial shall be used only as a measure of last resort and for the shortest possible period,” according to Rule 13 of the Beijing Rules, further mentions that, “alternative measures, such as close supervision, intensive care, or placement with a family, in an educational setting, or at home, shall be used whenever possible to replace detention pending trial.” The Havana Rules also stipulate that “deprivation of a juvenile’s liberty should be the last choice, for the shortest possible term, and should be limited to exceptional instances.”
The Beijing Rule 19.1 says that “the placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary term” when it comes to ‘disposition measures’ (final orders). In the case of the JJ Act 2015, Section 3(xii) mentions this principle and then Section 10 prohibits detaining a child in confrontation with the law in a jail or police lockup. The most important Section in this regard is Section 12 which prohibits detention of the juvenile with only some exceptions. It infers that bail is a matter of right for a juvenile.
Principle of Repatriation and Restoration
According to Section 39 of the JJ Act 2015, the recommended process of rehabilitation and social reintegration under juvenile justice legislation is ‘restoration to family or guardian.’ Rule 18.2 emphasizes the importance of the family, which is “the natural and fundamental group unit of society,” according to the International Covenant on Economic, Social and Cultural Rights (ICESC) Article 10(1). Parents have not only the right but also the responsibility to care for and monitor their children inside the family. As a result, Rule 18.2 mandates that the separation of children from their parents be used only as a last resort. It should only be used when the facts of the case justify such drastic measures (for example child abuse).
Principle of Fresh Start
“Records of juvenile offenders must not be used in adult procedures in subsequent cases involving the same offender,” according to Beijing Rule No. 21. The use of this paragraph of the Beijing Rules should not be limited to adult criminals; such records should not be used in subsequent juvenile prosecutions. The relevant documents of a child’s conviction must be destroyed after a specified length of time and ensure that the child shall not suffer any disqualification when restored in society, according to Section 24 of the JJ Act, 2015.
The goal of the juvenile justice system is to provide good inputs so that the child can live a full life, rather than jeopardize the child’s future. Because the juvenile justice system is rehabilitative rather than punishing, the youngster should be given a “clean slate” to start over.
Principle of Diversion
The principle of diversion is also mentioned in Beijing Rules 11, as well as Section 3 (xv) of the JJ Act of 2015. “Measures for dealing with children in dispute with the law without resorting to court proceedings shall be promoted unless it is in the best interest of the child or society as a whole,” the bill states.
“Efforts shall be made to establish, in each national jurisdiction, a set of laws, rules, and provisions specifically applicable to juvenile offenders and institutions and bodies entrusted with the functions of the administration of juvenile justice,” the Beijing Rule 2.3 advocated on the international stage.
Apart from the principle of diversion, neither the JJ Act, 2015, nor the JJ Model Rules, 2016, contain the word “diversion”. But the Rule 8 of JJMR 2016 mentions that “no First Information Report shall be registered except where a heinous offence is alleged to have been committed by the child, or when such offence is alleged to have been committed jointly with an adult.” Furthermore, “the right to apprehend shall be employed only in the case of grave offences unless it is in the best interest of the child.”
Principles of Natural Justice
Section 3(xvi) of the JJ Act 2015 states that all persons or bodies acting in a judicial capacity under this Act shall adhere to basic procedural standards of fairness, including the right to a fair hearing, the rule against bias, and the right to review. Even though Beijing Rules does not mention this principle in its wording, we can find its genesis in various Rules which talk about fair and equal treatment of juveniles, fair and equal treatment of female offenders, etc.
In the case of Canara Bank v. Debasis Das (2003), the concept of ‘natural justice’ was defined by the Supreme Court. “Natural justice rules are not formalized canons. They are, however, values ingrained in man’s consciousness. Natural justice refers to the administration of justice in a liberal, common sense manner. Natural justice is something that has been laid down by the courts as the minimum protection of an individual’s rights against the arbitrary procedure that may be adopted by a judicial, quasi-judicial, or administrative authority while making an order affecting those rights. These restrictions are designed to keep such authorities from doing wrong.”
Age of criminal responsibility
The Beijing Rule 4 leaves it at the discretion of the member states to decide the age of criminal responsibility based on the culture and the history of the country. The modern approach would be to assess whether a child can live up to the moral and psychological components of criminal accountability; that is if a child can be held responsible for essentially antisocial behaviour based on her or his own judgment and understanding. The concept of responsibility would be rendered meaningless if the age of criminal liability was set too low or if there was no lower age restriction at all. In general, the concept of responsibility for delinquent or criminal behaviour and other social rights and responsibilities are inextricably linked (such as marital status, civil majority, etc.).
Therefore, in India as per the JJ Act, a juvenile is a child who hasn’t completed the age of 18 years, where the term child means any person below the age of 18 years.
Rights of juvenile
As per Rule 7 of the Beijing Rules, at all stages of the proceedings, fundamental procedural safeguards such as the presumption of innocence, the right to be informed of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses, and the right to appeal to a higher authority must be guaranteed.
Rule 7.1 emphasizes a few key factors that are internationally recognized in current human rights documents and are vital elements for a fair and just trial. Article 11 of the Universal Declaration of Human Rights and Article 14, paragraph 2 of the International Covenant on Civil and Political Rights, for example, both include the presumption of innocence. Rule 14 and subsequent rules of the Standard Minimum Rules address matters that are particularly relevant to proceedings in juvenile cases, whereas rule 7.1 reinforces the most fundamental procedural safeguards in a broad sense.
Another right such as the presence of a legal counsel/parents/guardian during every stage of the trial is covered under Rule 15. Rule 16 discusses the special enquiry report of the juvenile. Avoidance of unnecessary delay is discussed under Rule 20.
The JJ Act 2015 provides a juvenile with several rights. These rights are as follows:
- Right to equality and non-discrimination
- Privilege against self-incrimination
- Right to consult a lawyer and to legal aid
- Non-retroactive juvenile justice
- Right to be produced before JJB within 24 hours
- Right to be informed about charges
- Bail as a matter of right
- Presumption of innocence
- Right to be dealt with under the special law for children in conflict with the law
- Right to fair and speedy inquiry
- Right to life
- Right to education
- Right to child-friendly procedures and ambience
- Right to be heard
- Right to privacy
- Best interest principle
- Protection from torture and ill-treatment
- Right to be protected from sexual offences
- Right to rehabilitative dispositions
- Institutionalisation as a measure of last resort
- Prohibition against the imposition of the death penalty or life imprisonment without the possibility of release
Conclusion
As noted above, the JJ Act, 2015 and the JJMR 2016 were made in accordance with the international provisions. After discussing the provisions of the JJ Act and the Rules mentioned in the Minimum Standard Rules (Beijing Rules) we can say that the JJ Act is successful in implementing the Rules laid down by the International standards. All that is required now is a stricter implementation of this Act in India to fulfil the ultimate aim of the juvenile justice administration.
Reference
Handbook for Advocates working with children in conflict with Law
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