Juvenile justice?

In this article, Ana Khan discusses the Challenges to Juvenile Justice Laws in India.

Introduction

“If you want real peace in the world, start with the children.” – Mahatma Gandhi

The growth of any civilization depends upon its children because they are the future. On the other hand, there are juvenile delinquents since the beginning of human civilization and in every time-phase it was decided to treat the cause not the symptoms, that is, to help the juvenile delinquents to help them through restorative process rather than penalising them, that’s why we have incorporated juvenile welfare laws in India. Moreover, in India, almost 440 billion children are below 18 years and it serves as home to 19% of the world’s children[1].

Who is a Juvenile?

  • According to 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 maturity[2].
  • 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 earlier[3]”.
  • Juvenile Justice (Care & Protection) Act, 1986 defines “a juvenile or child, who in case of a boy has not completed age of 16 years and in case of a girl 18 years of age[4]”.
  • Juvenile Justice(Care and Protection of Children) Act, 2000 defines “juvenile” or “Child” as a person who has not completed eighteenth year of age[5].
  • Juvenile Justice Care and Protection Act, 2015 defined “child” “means a person who has not completed 18 years of age[6]

Definition and Nature of “Delinquency”

Delinquency is unwelcomed action of a child, which is socially not permitted in the society. A juvenile delinquent is a disorder which is defined as “a child acting like an adult”. The action of the child may seem to be very foolish but actually it’s a matter of serious concern. It is believed that delinquency is considered only when the behaviour of the child is harmful. Frederick B. Sussmann, who wrote a book on “Law of Juvenile Delinquency” presented a list of acts or conditions included in delinquency definition as “infringement of any law or ordinance, habitual absence, alliance with thieves, brutal or immoral persons, and beastly beyond authority of parent or guardian”.

Causes of Child Delinquency

Juvenile delinquency takes place at different places and it may vary in degree. The child being the future of the country should be given a good environment in which he/she can nurture himself/herself. Nowadays, juveniles are engaging in various serious offences like rape, murder, dacoity, theft, robbery. There are innumerable causes behind the psychic of a delinquent child which is further defined in two broad categories:

  • Biological causes
  • Societal and Environmental causes
  1. Biological causes
  2. Ocular Ailments- It is a disease of retina which can result in the loss of vision. It leads to irritability and discomfort which will further hamper them in leading a moral life.
  3. Hearing Problem- deafness or incapability of hearing leads to the incapability to do any work properly which further leads to antisocial behavior.
  4. Excessive Strength- A child who is possessed with excessive strength and his mental trait being uncultured will lead to the imbalance in the body which will further encourage a child to do a crime.

Societal and Environmental Causes

  1. Cultural Conflicts- The urbanization and modernization have resulted in drifting of people which has further led to the conflict between the immigrants and the inhabitants. India also played as a victim of cultural conflict during the time of Indo-Pak partition in 1947, where the immigrants from Sindh settled down in India and resulted into a massive increase in the crime rate.
  2. Family Background-Sutherland said that “the family background has greatest influence on the criminal behaviour of offender or Juvenile. The Children divert themselves towards criminal tendencies, if they find their parents or members of the family behaving in the similar manner[7]. A child who is grown up in a hostile aggressive parenting atmosphere becomes an easy prey to criminality”
  3. Socio-Economic Condition- Nowadays, money is a parameter to judge a person’s societal status. Everyone around is so busy in earning that the  parents are not been able to look after their wards which further leads a child to indulge in illegal activities.
  4. Neighbourhood- One thing leads to another, as the parents/guardians are busy in their own livelihood, the bad influence of neighbours also tend to destroy the genesis of a child.
  5. Trend of Alcoholism- it has become a fashion among the youth to have a shot of vodka. Generally, it is the reason for a fight amongst the Husband and the Wife, which leads a bad impression on the child. It is necessary to keep a discipline in the home for the proper upbringing and to create a friendly atmosphere for a child.The family should take care of child otherwise they might be indulging in commission of offence[8].
  6. Peer Pressure- The behaviour of an individual usually depends upon the peers. Gangs act as a contributory factor towards the commission of a crime. If a child remains with other delinquents then he will be more prone to the criminal activities which he could not think of alone.
  7. Cinema and Social Media- cinema and social media plays an important role in the overall development of a person. What they watch on social media and television they try to do in their real life also. The parents must pay attention to their children, they should not refrain from watching any content but rather they should try to inculcate some moral values in the children.
  8. Significance of School- The school plays a significant role in the upbringing of a child, it is the school where the child has the closest relation with other children for such a long time. “School is usually thought as a constructive agency but when it fails) to perform its designated functions, it may become by virtue of its negligence, a main contributor to delinquency.”[9]

Provisions under Indian statutes regarding the Juvenile Justice laws in India

Constitutional Provisions

The Constitution of India provides a comprehensive study and understanding of child rights. State owes special care and protection towards them and therefore constitution of India has provided with several rights dealing with their liberty, development and care, non discrimination, educational rights, etc. It is further supported with comprehensive legal regime[10]. Article 15(3), which provides the state to make special laws for women and children[11]. Article 39(f) was inserted in the Constitution of India by the 42nd Amendment Act, provides that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and they must be protected against exploitation and against moral and material abandonment.[12] Article 47, which imposes a duty on the State to raise the level of nutrition and the standard of living to improve public health[13].

Indian Penal Code and Code of Criminal Procedure(CrPc) Provisions

Indian Penal Code provides different provisions for the protection of child. According to Section 82 of the Indian Penal Code, it says “Nothing is an offence which is done by a child under seven years of age[14]”. Under the age of 7 years, no infant can be guilty of a crime; for, under that age an infant is, by presumption of law, doli incapax, and cannot be endowed with any discretion. Section 83 provides an act of a child above seven and under  twelve of immature understanding. Where the accused is a child between 7 and 12 years of age, the capacity to commit an offence only arises when the child has attained sufficient maturity of understanding to judge the nature and consequences of his conduct[15].

Section 27 of CrPc, provides that any person who at the date of appearing before the court is under 16 years of age is not punishable with death or imprisonment for life. According to Section 318 of CrPc where the accused does not understand the proceedings (though not of unsound mind) the court can have the inquiry or trial, in case of a court other than High Court if the proceedings result in conviction, the proceedings shall be forwarded to the High Court with the circumstances of the case  and the High Court shall pass the order as it thinks fit[16].

History

The Apprentices Act, 1850 was the first legislation to deal with children in conflict with law in India. It provided that children under the age of fifteen who were found guilty of committing petty offences were to be placed as apprentice in a trade[17]. In 1919, a jail committee was designated and according to the recommendations of the committee, different legislations were enacted at different provinces. The first Children Act was the Madras Children Act, 1920 followed by Bengal Children Act, 1922 and Bombay Children Act,1924. In February 1924, a voluntary state-aided agency, the Children’s Aid Society, was formed to implement the provisions of the Bombay Children Act in the Municipal Corporation of Bombay. The institutions established by the agency for care and protection of children which continue till date[18].

The first central legislation, The Children Act,1960 was enacted as the model legislation which was to be followed by the states while enacting their own legislation. The Act provided for a discriminatory definition of “child” since a boy below 16 years of age was considered to be a child as opposed to 18 years for a girl child[19]. The Act also initiated two distinct bodies to determine matters involving “children in conflict with law” and “children in need of care” known as the Children’s Court[20] and Child Welfare Board[21] respectively. It prohibits imposition of death penalty, imprisonment, or use of police station or jails for housing children under any circumstance. Before the amendment in 1978, it did not recognize the right to a lawyer in the proceedings in the children’s court[22].

In Spite of all these legislations, the problem still remained the same because several states had several laws concerning juvenile justice which treated differently in the same situation. There was no concrete definition of “child”, different state laws recognized child differently[23]. In Sheela Barse v. Union of India[24], it was held by the Supreme Court:

“…we would suggest that instead of each State having its own Childrens’ Act different in procedure and content from the Children’s Act in other States, it would be desirable if the Central Government initiates Parliamentary Legislation on the subject, so that there is complete uniformity in regard to the various provisions relating to children in the entire territory of the country. The Children’s Act which may be enacted by Parliament should contain not only provisions for investigation and trial of offences against children below the age of 16 years but should also contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children who are either accused of offences or are abandoned or destitute or lost. Moreover, it is not enough merely to have legislation on the subject, but it is equally, if not more, important to ensure that such legislation is implemented…”.

On November,1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice[25], was adopted by UN General Assembly, where the term “juvenile” and “juvenile justice” were used for the first time in the realm of International Law.

Juvenile Justice (Care & Protection of children) Act,1986

The Juvenile Justice Act,1986 was the first act regarding the care and protection of children which was uniform all over the country. While it retained the scheme and primary features of The Children Act,1960[26]. The age of the juvenile remained the same as it was mentioned in the Children Act, 1960. The new feature which was introduced under this act was that the juveniles were divided into two broad categories: (a) Delinquent Juveniles (b) Neglected Juveniles. Both the children were to be kept in “Observation Homes” as long as their inquiries are pending.

The Juvenile Justice (Care & Protection) Act, 1986 was replaced by Juvenile Justice (Care & Protection) Act, 2000 because the previous act did not provide the wider scope on “Delinquent Juveniles” and “Neglected Juveniles”.

Juvenile Justice (Care & Protection) Act, 2000.

The Juvenile Justice Act,2000 provides two main broad categories named as “child in conflict with law” and “child in need of care and protection” which the JJA,1986 failed to do. It lays down that the “child in conflict with law” must be kept in observation homes and “child in need for care and protection” must be kept in the children home during the pendency of their proceedings.

A revolutionary change made by the JJA, 2000 is the establishment of Children’s Court known as Juvenile Justice Board(JJB). It constituted of a bench of one Magistrate and two social workers.

Juvenile Justice Board have the jurisdiction to decide:

  • Determination of the age of a juvenile.
  • Grant of bail.
  • To determine whether the child has committed the alleged offence or not.
  • To pass the appropriate orders regarding the same.

International Obligations under Juvenile Justice Act, 2000

The Juvenile Justice Act,2000 supplicate international obligations of the Convention on the Rights of the Child (CRC). There are two kinds of provisions under the CRC for a child in conflict with law, which is mentioned as:

  1. General Provisions- such as Article 2[27] and Article 6[28] of the Convention which talks about the non discrimination on the grounds of race, color, sex and language and right to freely express his/her own feelings.
  2. Specific Provisions- such as Article 37 and  Article 40 of the Convention. Article 37(a)[29] of the Convention provides capital punishment and long term imprisonment shall not be imposed on the child.

Challenges to Juvenile Justice (Care & Protection) Act, 2000

  • According to Article 37(a) of the Convention on the Rights of the Child, No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment[30]. This provision has not been mentioned under the JJA, 2000 and keeping in mind, the sad and uncomfortable reality of child abuse, this provision has to be incorporated.
  • Article 40 of the CRC mandates the state to incorporate certain basic guidelines for a child in conflict with law, but the same has not been incorporated in the JJA, 2000. Though CrPc and Constitution of India provide laws for the protection of children but according to JJA, 2000 the laws must be made by the state, thus leaving space for the state to do unjust and exploit the rights of the child.
  • According to Article 40(3)(b) of the Convention, Human Rights and Legal safeguards are fully respected while dealing with such children. The appointment of JJB consists of one magistrate and two social workers, which in majority can even overrule the judgment of magistrate, it is not in compliance with the legal safeguards in India by giving such powers to the social workers (who may not have the legal knowledge).
  • According to Section 29[31] of the Act, the Government “may” form Child Welfare Committee for the exercise of the powers. The use of the word “may” is a big mistake because unless the making of rules is made compulsory, the execution of the act will remain uncertain.
  • According to Section 14[32] of the Act, the inquiry needs to be completed within 4 months from the date of the onset unless it is extended because of some special cases. Here, the Act fails to justify the “special cases”, thus leaving the scope of arbitrariness in the hands of Juvenile Justice Board (JJB).
  • Section 23[33] of the Act defines for the punishment of cruelty done to the child. As the punishment prescribed is not deterrent in nature. The potential of fine and punishment needs to be increased so that it instills fear on the minds of the people.
  • Section 63 of the Act provides for the Special Police Unit for the juveniles. But this is nothing but a mere lip service because there is no guidelines mentioned regarding the training of the police.

Juvenile Justice (Care & Protection) Act, 2014

In the case of Mukesh & ors. V. State of Delhi, popularly known as “Delhi Gang Rape” case, a juvenile, who was few months less to 18 years have been sentenced to 3 years custodial sentence, however, it was said that he was the active member in the rape case. It outraged the spark amongst the people and it was contended that there is a need to amend the Juvenile Justice (Care & Protection) Act, 2000. According to the data collected by the National Crime Record Bureau cases registered for juveniles under the age of 16-18 year are mentioned as: There were a total of 36,138 cases registered in 2014. Of these cases, the highest pertained to riots (1,733 cases), kidnapping at rank two (1,635 cases) and cases of rape stood third (1,488 cases)[34].

Other crime heads under which juveniles between the age group of 16-18 years were reported, were, assault on women to outrage her modesty (1,392 cases); murder (844 cases); and attempt to murder (806 cases)[35].

As a result of amendment, on 8th August, 2014, Juvenile Justice (Care & Protection) Act, 2014 where the age of the juvenile was reduced from 18 years to 16 years, that is, any child who have alleged for the heinous crime under the age of 16 to 18 years shall be tried as an adult. The power is constituted with the Juvenile Justice Board (JJB) to decide whether the juvenile is to be sent to rehabilitation home or tried as an adult.

Challenges to Juvenile Justice laws in India

  • 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.
  • 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[36]:
  1. Lack of finances.
  2. Stigma in institualization.
  3. Unconsciousness of society towards the after care programme.
  4. Non compliance of parents in the after care plan.
  5. A little inter-relationship between the juveniles and the after-care workers.
  • According to Section 21 of the Act, after attaining the age of 21, the Children’s 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)[37] of the Indian Constitution and also by keeping a 21 year old adult with hardened criminals will make a child like them and this will not serve the purpose of Reformative Theory.
  • According to Section 16 of the Act, the 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 off 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 a clear infringement of Article 14 and 21 as prescribed under Part III of the Indian Constitution, as the procedure is arbitrary and irrational.

The case of Darga Ram v. State of Rajasthan

The facts of the case are as follows:

The Complainant had organized the jagran somewhere in the outskirts of the village in Rajasthan. Around 50 persons including men,women and children were there till midnight including 7 year old Kamala (victim) and Darga Ram(appellant). Kamala went to sleep along with other children in a nearby place. When the complainant i.e the father of the victim came to the house he found Kamala missing. Assuming that she may have gone to the relative’s home, a search was made at their houses but Kamala was not been found. The search was then extended in the outskirts of the village and it was found dead by one of the member of the village. On further inquiry, it was found that Kamala had been raped and killed by crushing her head with the stone. A case under Section 302 and 376 of the Indian Penal Code was registered. The police further investigated and arrested Darga Ram who was a deaf, dumb and an illiterate adolescent on the basis of the injuries found on his private part along with blood stains which matched the blood group of the victim (Kamala).

The Sessions Court and the High Court convicted the appellant under section 302 and 376 of IPC and awarded the punishment of life imprisonment.

On the final appeal the appellant raised the additional plea of juvenility on the date of the commencement of the crime.

Since the appellant was illiterate and did not have any documentary evidence like school or any other certificate. So the court has directed the Medical College, Jodhpur for medical examination of the appellant. After all the procedure done the age of the appellant was found between 33 to 36 years.

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A Critical Analysis of Darga Ram v. State of Rajasthan

The contention of Juvenility at the Apex Court

The apex court submitted that there was enough explanation for the determination of age on the basis of medical examination as per Section 7A of the Juvenile Justice Act, 2000 which provides that whenever it is contended that the accused was a juvenile on the date of the commission of an offence, the court shall make and inquiry and take such evidence as may be necessary to determine the age of the child and Rule 12(3)(b) of the Juvenile Justice Rule,2007, which says in the absence of matriculation certificate, birth certificate from the school and birth certificate from the municipal corporation, medical report will be considered from the Medical Board to determine the age of the Juvenile.

However, the lower court ordered the life imprisonment which the appellant had already suffered for 4 years. The appellant’s hearing and speech impairments never attracted Section 2(d)(iii)[38] of the JJA, 2000 which protects physically and mentally challenged children.

In the case of Kulai Ibrahim v. State of Coimbatore[39], the court held that the juvenile at any point of time during the trial has the right to raise the question of juvenility even after the disposal of the case under proviso of section 9 of Juvenile Justice Act, 2015.

It is necessary to raise the issue as to why hearing and speech impairment and lack of schooling till the age of seventeen years not considered as a ground of mitigating circumstances.

Perceiving Children’s Intellectual Capacity and Determining Capability

John Locke described minors as those who are lacking certain amount of explanation and comprehension because of which they are neither free as adults not they are equal to them.

However, our recent criminal law system advises that any offender within the age of 16 to 18 years, who have been alleged for the heinous crime shall be treated as an adult (Juvenile Justice Act, 2014).

It has always been argued that the children are mentally deficient either because of the insufficient socialization or because of the lack of domestication.

The last 2 decades of research on adolescent psychosocial and brain development have helped to reconceptualize adolescence as a period of increased vulnerability (Steinberg, 2014; Casey, 2013). The science of adolescent development documents have found that the youth between the ages of 10 and 20 are biologically and psychosocially less mature than adults. Stimulated by the hormonal change of puberty, their brains are undergoing a period of great plasticity in which the socioemotional system that controls emotions and sensitivity to rewards is developing more rapidly than (or “hijacking”) the cognitive control system that regulates planning, thinking ahead, and self-control. These asynchronously developing brain systems in part account for why many adolescents are risky decision makers, impulsive, quite susceptible to peer influence, and not very future oriented. Individual differences aside, the general consensus is that adolescence is a period of life characterized by vulnerability, malleability, and immaturity in judgment[40].

According to Laurence Steinberg, In sum, the consensus to emerge from recent research on adolescent brain is that teenagers are not as mature in either brain structure or function as adults. This does not mean that adolescent brains are “defective”, just as no one would say that newborns muscular systems are defective because they are not capable or their language systems are defective because they can’t yet carry conversation[41].

A juvenile who was the minor during the commission of the crime in the case of Darga Ram v. State of Rajasthan, cannot be held liable as there was an incomplete formation of cognitive capacities and decisional capabilities.

The Fixation of Heinousness of a crime

In Salil Bali v. Union of India & anr[42], it was contended to amend the present Juvenile Justice law and to reduce the age from 18 years to 16 years and to amend the juvenile law in such a way that the juveniles who have committed the heinous offences like rape and murder should be tried as an adult. The Supreme Court rejected the plea and held that the Juvenile Act is based on the sound principles and with consonance to the Indian Constitution. Several International Instruments also recognizes the child rights like Beijing Rules, Riyadh Guidelines that allows separate criminal justice systems for the juveniles.

Even in the case of Mukesh & ors v. State of Delhi, popularly known as “Delhi Gang Rape case” the apex court refused to grant the harsher punishment on the account of the heinousness of the conduct.

There are of course exception where a child develop the criminal propensities at such a tender age and becomes almost impossible to re-integrate them with the other members of the society, but such examples are very less. It’s better try to reintegrate children into the mainstream society rather than keeping them with the hardened criminals in the jail.

Landmark Cases

In Sanjay Suri v. Delhi Administration[43], the Supreme Court ordered the release of juvenile undertrial prisoners. The judgement also highlighted that the jail authorities shall not accept the age of the juvenile until and unless the age is specifically mentioned in the documents supporting detention.

In Jayendra v. State of UP[44],where the order of the High Court sending a child to imprisonment for committing an offence was challenged before the Supreme Court. The Supreme Court called for the report by the medical in charge of the jail to determine the age of the child and it was found that the age of the child at the time of committing an offence was 16 years and 4 months and the sentence for imprisonment was quashed and the convict was released immediately.

In Munna v. State of UP[45], the apex court released certain directions regarding children in prisons. The supreme Court held that even if a child is found to be guilty of an offence, he should not be mistreated. They should not lock-up their fundamental rights when they enter in jail.

In Bhoop Ram v. State of UP[46], the Supreme Court followed the decision of Jayendra v. State of UP and it was also held that the time of the commission of an offence is sufficient to determine the age of a person.

In Raj Singh v. State of Haryana[47], the Supreme Court held that the age of the boy or girl has to be determined at the time of the happening of an offence, whereas the court overruled this judgment in Arnit Das v. State of Bihar[48], in this case, R.C Lahoti, J. reminds that it is pertinent to note that neither the definition of juvenile, nor any other provision contained in the Act specifically provides the date by reference to which the age of a boy or a girl has to be determined so as to find out whether he or she is a juvenile or not[49]. Here the Supreme Court held that the age of the boy or girl has to be determined at the time when they are bought before the competent authority. The rationale behind this judgment is the apex court has identified the problem that many children have been lodged in adult jails because they have no evidence to proof their age.

In Raj Singh v. State of Haryana[50], the juvenile who was less than 16 years of age at the time of the commencement of the offence was convicted under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and was awarded with the punishment of imprisonment. But the Supreme Court held that under section 2(e) of the Juvenile Justice(Care & Protection) Act, 1986 defines that a juvenile who has been found to guilty of an offence was a juvenile, hence the entire trial was quashed.

The U.S decision in this regard was held in Gault, In re[51], here the juvenile offender of 15 years of age was admitted to state industrial school till he turned 18 while the punishment to an adult was fine of $ 50 and 2 months of imprisonment. It was argued that the code of Arizona is unconstitutional because it gives unlimited power in the hands of the judge to decide the punishment of an offence. Arizona argued that the main purpose of the juvenile justice is to separate them from the criminal proceedings and the punishment given to the juvenile was reformative rather than punitive.

Justice Verma Committee Report on Juvenile Justice Laws in India

According to Justice Verma Committee report on “Amendments to Criminal Law” has noted that “the Juvenile Justice Act has failed miserably to protect the children in the country[52]. We cannot hold the child responsible for a crime before providing to him/her the basic rights given to them by the Indian Constitution.’’ the report looked extensively on the children homes and found them lacking in basic infrastructural requirements, where they are forced to grow and becomes the prey of “sexual offences”. The juvenile homes are unable to provide the basic constitutional rights which are mentioned for the children under the Indian Constitution. The nutritional, emotional, mental requirements are so low that they often not be able to cope up and contribute to the society.

Recommendations

With all due respect to the existing law, the following recommendations are made:

  • The court should approach reformative approach towards the child delinquency rather than the punitive one. The state should try to create such an environment so as to re-integrate the delinquent with the mainstream of the society.
  • State should not be given so much power so as to make the law regarding the Juvenile Justice Act, rather more power should be given to the International Conventions and CrPc, so that the purpose of the JJA should be attained.
  • The Juvenile Justice board is of great importance and hence a special training programme in child psychology should be conducted for the members of the JJB including the Magistrate.
  • The Magistrate should not be engaged in any other work except for juvenile cases so as to complete the inquiry within 4 months.
  • Children Homes are meant for both “child in conflict with law” as well as “child in need for care and affection”. It is important to separate homes for both the categories of children not only on papers but also on the ground level.
  • The homes for children should be under the CCTV surveillance so as to facilitate the inspection process by the board along with the surprise visits.

Conclusion

According to the National Crime Records Bureau Report, 2015 on “Juveniles in Conflict with Law” Out of the total juveniles apprehended in various crimes, 4,757 were illiterate and 14,229 had education up to primary level. These two categories together accounted for 45.9% of the total juveniles apprehended during the year 2015. Children living with parents have accounted for 85.6% (35,448 out of 41,385) of the total juveniles apprehended[53]. The share of homeless children who were involved in various crimes was just 3.9% (1,622 out of 41,385). Going through the data of NCRB, there is a need to first properly implement the existing policies which the Government has made for the benefit of children like the mid-day meal policy, Samagra Shiksha (recently added by the Union Budget 2018-2019).

Also, according to the National Crime Records Bureau Report, 2015, the data shown below depicts that most of the juvenile delinquents were found between the age group of 16 to 18 years.

Reducing the age of the juvenile delinquents from 18 years to 16 years as mentioned in Juvenile Justice (Care & Protection) Act, 2015 is not a solution. It is appreciable that the Indian Legislature has tried to fulfill the obligations as mentioned under the Convention, the government should try to implement the Act properly and also they should follow the reformative approach and try to engage juveniles in some skilled work so that they can lead a peaceful life afterwards.

References

[1] Karnika Seth,Protection of Children on Internet,06(Universal Law Publishing Co.Pvt Ltd,New Delhi,2015 edition).

[2]  “The Beijing Rules”, adopted by General Assembly resolution 40/33 of 29 November 1985.

[3] United Convention on the Rights of Child,1989, Article 1.

[4] Juvenile Justice(Care & Protection of Children) Act,1986,Section 2(h).

[5] Juvenile Justice(Care & Protection of Children) Act,2000,Section 2(k).

[6] Juvenile Justice(Care & Protection of Children) Act,2015, Section 2(12).

[7] Sutherland E.H and Cressey D.R.,Juvenile Delinquency. New York: Mcgrawhill Book Co., 1949.

[8] Annual Report of Children’s Aid society Bombay (1960-61) pp. 33-34.

[9] Shipra Lavania, ‘Juvenile Delinquency’,(1983) Pub. by Rawat Publications, Jaipur, p.1920.

[10] Girish Abhyankar & Richa Bathija & Tulika Anand, Light at the End of Tunnel: A Forethought on Age of Criminal Responsibility, (Sept.14,2014), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2482237

[11] The Constitution of India, ar.15(3).

[12] The Constitution of India, ar.29(f).

[13] The Constitution of India, ar.47.

[14] The Indian Penal Code, 1860, Section 82.

[15] Ratanlal & Dhirajlal, The Indian Penal Code 466-467(Justice K.T Thomas, M.A Rashid, LexisNexis, 33rd edition,2016)

[16] Code of Criminal Procedure,1973, Section 318.

[17]  Ved Kumari, Juvenile Justice: Securing the Rights of Children during 1998-2008, 2 NUJS    L. REV. 557, 558 (2009).

[18] MAHARUKH ADENWALLA, CHILD PROTECTION AND JUVENILE JUSTICE SYSTEM FOR JUVENILE IN CONFLICT WITH LAW 13 (2006).

[19] The Children Act,1960, Section 2(e).

[20] The Children Act,1960, Section 2(f).

[21] The Children Act,1960,Section 4.

[22] Gitanjali Ghosh,Stocktaking of the Juvenile Justice Mechanism in India: A Long Overdue Need, NLUA Law & Policy Review,2015,(Jan.7,2017),https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2892546

[23] Supra note 4.

[24] (1986) 3 SCC 632

[25] Supra at note 10.

[26] Ved Kumari

[27]States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

[28]States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

[29] States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

[30] Id.

[31]  The State Government may, within a period of one year from the date of commencement of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, by notification in the official gazette, constitute for every district, one or more, Child Welfare Committees for exercising the powers and discharge the duties conferred on such Committees in relation to child in need of care and protection under this Act.

[32]  Where is juvenile having been charged with the offence is produced before a Board, the Board shall hold the inquiry in accordance with the provisions of this Act and may make such order in relation to the juvenile as it deems fit.

Provided that an inquiry under this section shall be completed within a period of four months from the date of its commencement, unless the period is extended by the Board having regard to the circumstances of the case and in special cases after recording the reasons in writing for such extension.

[33] Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.

[34] Aaron Pereira, 75% of the Juveniles held in 2014 were above 16 years of age, The Indian Express,(Aug.20,2015,6:02:10 pm),https://indianexpress.com/article/india/crime/75-of-juveniles-in-2014-were-between-16-18-years-of-age/

[35] Id

[36] Ved Kumar, Treatise on The Juvenile Justice Act, 1986, Indian Law Institute, 1993 at p 107.

[37] 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

[38] who is mentally or physically challenged or ill children or children suffering from terminal diseases or incurable diseases having no one to support or look after.

[39] AIR 2014 SC 2726

[40] Sandra Graham, ‘Juvenile Justice for Some’ ,Association for Psychological Science, (Feb.2015), https://www.psychologicalscience.org/observer/juvenile-justice-for-some

[41] Laurence Steinberg, Ph.D., one of the world’s leading experts on adolescence, is a Distinguished University Professor and the Laura H. Carnell Professor of Psychology at Temple University.

[42] (2013) 7 SCC 705

[43] AIR 1986 SC 414.

[44] AIR 1982 SC 685.

[45] AIR 1982 SC 806.

[46] AIR 1987 SC 1329.

[47] 2000 (6) SCC 759.

[48] AIR 2000 SC 2264.

[49] Id., p. 2267.

[50] (2000) 6 SCC 759.

[51] Decided by U.S Supreme Court, May 15, 1967.

[52] Bindu Shajan Perappadan, ‘Juvenile Justice Act has failed miserably, The Hindu, (June 13,2016, 10:10), https://www.thehindu.com/news/national/juvenile-justice-act-has-failed-miserably/article4337040.ece

[53] http://ncrb.gov.in/StatPublications/CII/CII2015/chapters/Chapter%2010-15.11.16.pdf

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