This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the emergence of juvenile justice in India, the existing laws in juvenile justice, changes brought in it due to the recent developments and the existence of juvenile justice systems in other countries, ways to give effect to the rehabilitation of juvenile offenders and the changes to be brought in the same.
Introduction – Emergence of Juvenile Justice Act in India
In the past few decades, there has been an unprecedented increase in the crimes by children who are below the age of 16 years. And the reasons advocated for the development of such behaviour among children are- The upbringing environment of the child, economic conditions, lack of education and parental care. An even more astonishing part of this aspect is that the children are being used as tools for the commission of a crime, and this age group includes especially children aged between 6-12 years, as at this point of time, the minds of innocent children can be manipulated in an easier way.
Under the law – Child is someone who has not attained the age of 18 years and is also not capable of understanding wrong and right or arriving at a reasonable conclusion. In the modern age of law, most of the countries dealing with juvenile acts have adopted the principle of “Doli Incapax” which by the very definition means that the person incapable of understanding the commission of a crime.
Emergence in India
The development of the Juvenile Justice Act in India can be dated back to the British Era. This is because it was during the British period when certain laws were enacted to address the issue of Juvenile delinquency. An example of this can be that of the introduction of the Whipping Act of 1864. This law was passed to punish the juveniles by the way of whipping them for the wrong committed by them and further creating a deterrence in the minds of juveniles in order to bring an end to such acts. The Indian Penal Code, 1860 and the Criminal Procedure Code, 1861, further took this forth by treating the child differently throughout their numerous provisions. The juvenile justice system is considered to be a direct consequence of reforms and developments in western countries.
Existing Juvenile Justice System in India
Juvenile Justice Act was enacted by India in the year 1986. Following this, the general assembly of the United Nations adopted the convention which dealt with the rights of a child, and it was in 1992 when India ratified the UNCRC. The main concern of the convention was to uphold and cherish the right of the child to reintegrate with the society without any judicial proceedings initiated or running against him and in order to attain this the government felt, there was a need to rewrite the existing law. And therefore in the year 2000, the old law was replaced by the new – Juvenile Justice(Care and Protection of Children) Act. And there existed wide differences between the old and the new law. And the changes were made in order to secure the interest of the Juveniles. One of the important changes to be taken into consideration was regarding the role of NGOs.
Section 8, 9, 34, 37 and 45 of the Juvenile Justice Act dealt with the role of NGOs and other organisations – Voluntary organisations may be certified to maintain homes under this act.
Section 45 of Juvenile justice act – The state government is empowered to make rules in order to ensure effective linkages between various governmental, non-governmental, corporate and other community agencies for the sake of rehabilitation and social integration of the child.
Role of NGOs and Social Workers – The basic notion which the NGOs are required to carry forth is offer care and compassion to a child and in addition to this also ensured that his rights are acknowledged and protected. Since the year 1980 the juvenile justice board has seen a shift from welfare to Justice approach, and irrespective of this shift the social workers have continued to pour in all the efforts and have been active participants in health, education and other welfare activities relating to children for a period of past seven years.
And, hence the Juvenile Justice Board which is usually headed by Metropolitan Magistrate or Judicial Magistrate of the first class has an additional requirement to appoint two social workers on board and these social workers should be the selection committee and further, their appointment is made by the state government. The amendment of 2000 is moreover elevated the position of social workers to being a part of the bench which constitutes the Juvenile Justice Board.
Juvenile Justice and Constitution of India
The Constitution of India is the Superior law of the land and the constitution lays down the rights and duties of its citizens which are to be followed. The working of government machinery is also provided by the constitution. And in addition to all this, Part IV of the Indian Constitution provides for Directive Principles of State Policy DPSP- and this is provided mainly to ensure the smooth functioning of the society. And regarding the rights and welfare of the children following has been provided by the constitution
- Right to Free and compulsory education to all the children aged between 6 to 14 years of age – Article 21A
- Right to be protected from any hazardous employment under the age of 14 years – Article 24 of the Indian Constitution.
- Right to be provided with proper Standard of living and Good Nutrition – Article 47 of the Indian Constitution.
- Right to be protected from Human Trafficking and Forced Labour – Article 39 of the Indian Constitution.
The lawmakers while drafting the Juvenile Act of 2015 have hence taken into consideration all the provisions which have been laid down by the constitution for the welfare and protection of the rights of children. And for the same reason chapter IV of the Juvenile Justice Act lays down numerous provisions which have focussed their attention on the betterment and welfare of children and also the reformation and rehabilitation of juveniles in every possible circumstance.
Indian Penal Code and Criminal Procedure Code
The Indian Penal Code came into being on 1st May 1861 and it was considered to be the first establishment of codified law in colonial India, and the IPC dealt with both adult and juvenile offences. Section 82 of IPC lays down – “Nothing is an offence which is done by a child under seven years of age”. And section 83 of IPC enshrines – ‘Nothing is an offence which is done by a child who is above 7 years of age and under 12 who has not attained the sufficient maturity of understanding in order to judge the nature and consequence of his act on that particular occasion’.
Further, there are Section 315 and 316 under IPC which discuss the offence of foeticide and infanticide. If a person does an act which amounts to culpable homicide which results in the quick death of an unborn child then the person will be charged with the act of Culpable Homicide.
There are numerous sections in IPC which discuss the matter of Kidnapping and Abduction. Section 361 states that if a male minor who hasn’t yet attained the age of 16 and a female minor who hasn’t attained the age of 18 if removed from their lawful guardians without their consent then the act is termed as the offence of kidnap.
Section 27 of the Criminal Procedure Code deals with the clause of – Jurisdiction in case of Juveniles, it lays down that – Any offence which is not punishable with death or imprisonment for life, which is committed by a person below the age of 16 years, may be tried by a court which is specially empowered under the children act to decide on such, matters. Or it can be dealt with by any other law for time being in force which is providing for treatment, training and rehabilitation of young offenders.
Section 437 of the Criminal Procedure Code lays down that a child in conflict with law can apply for an Anticipatory Bail. Justice Narayana Pisharadi of Kerala High Court held that the child in the conflict of law has all the rights to apply for anticipatory bail and there is no bar on this by any provisions of Juvenile Justice Act. The anticipatory Bail of a child in conflict with law is maintainable in the High Court or the Court of Sessions.
Juvenile Justice – Is it a Criminal Justice or Social Justice?
This aspect of Juvenile Justice laws draws the attention of critics because in most of the countries of the world the concept of juvenile justice is considered to be that of Criminal Justice, but at the same time the ministry or the department which is responsible for making laws and implementing them is the one from the Department of Social Justice. Further, the results arising out of it because of this mismatch are the following
- There arises a tension between the Protective and Rehabilitative approach of Juvenile Justice and the traditional approach of dealing with the crime.
- There will be ample scope for discrimination among the juveniles which will be based on the nature of the offence at every stage.
- There even arises a confusion in the law and its administration.
Changes brought in JJ Act in the wake of recent developments
The frightful Nirbhaya Case of December 16, 2012, brought the whole nation under shock and there was a dire need to make changes in the then existing juvenile laws as one of the convicts of Nirbhaya case was six months away from the completion of 18 years during the time of commission of the crime and he was considered to be the one accused with being most heinous with regard to the crime.
It was on December 22, 2015, that the Rajya Sabha finally passed the juvenile justice bill.
- The new law permits juveniles between the age of 16-18 years to be tried as adults if they are accused of committing an offence of heinous nature.
- That group of 16-18 years will be further examined by the juvenile justice board and this is done in order to know if the crime was committed by that person as an adult or a child.
- The juvenile justice board is required to consist of a team of psychologists and social experts and this is made in order to ensure that the rights of a juvenile are protected if the crime was committed by him as a child.
- Every district in the country must have a Juvenile Justice and additionally a child welfare committees, which come into play as a consequence of the passage of the bill.
Juvenile Justice Systems in other countries
It was on 20th November 1989 that the General Assembly of the United Nations adopted the conventions of rights of a child, and this convention even prescribes a set of standard to be adhered by all the member states and should strive to serve the best interest of a child. It can also be said that international conventions and instruments have contributed in an immense way to the prevention of child abuse. This, in turn, helps on a larger scale for the well-being and development of the child. In addition to this, even international bodies have paid much attention and laid their emphasis on the aspect of the overall development of the child.
Juvenile justice system in the US
The juvenile justice system is considered to be more flexible and easily enactable in the US when compared to other countries. There are two important stages in the juvenile justice system in India which are to be taken note of- In the first stage the police officer has complete rights to keep the child in his own custody or can even immediately release him or even admonish the offender in order to stop him for commission of further crimes of similar nature.
After the completion of the trial in the court, the juvenile offenders are sent either to children homes or any certified schools and this will be based on the order passed by the court.
Under the juvenile justice system in the US, a juvenile will be tried as an adult only in cases where the age of the juvenile is close to adulthood or when the juvenile is found out to be a habitual offender.
Juvenile justice systems in the UK
Juvenile courts came into existence in the year of 1908 in England and their primary aim was to provide the required care and protection to the children. In addition to this, they also focus their attention on removing all the unnecessary aspects from the environment around a child, as this can provide a great opportunity for the reformation of the offenders.
There were two important acts which were brought into being by the English courts which will we be discussed in the following article.
- The Children and Young Offenders Act, 1993 under this act the juvenile courts of England are conferred with special civil powers to take into account the matter in dispute. In addition to this, it also provides that the cases where the wrongs have been committed by young and child offenders should be tried in the juvenile courts itself and not in any other courts.
- The Criminal Justice Act 1948, this act is considered to be a new development in the Legislation of England and this act deals with the rights of juvenile offenders. The prime motto of the act was to provide security to a class of offenders and ensure their rehabilitation by sending them to remand homes.
Causes of Juvenile Delinquency in India
There are numerous causes and reasons put forth for juvenile delinquency in India, and it is often difficult to recognise and correct such a behaviour amongst children, and this happens because every individual has a different behavioural matter and especially among children it tends to change over time and hence, it becomes difficult to identify such a behavioural pattern. Following are the causes listed for Juvenile delinquency in India.
- Economic Instability and poverty– Abject poverty and economic instability among families in India are considered to be the major contributing factors to the increased juvenile delinquency. Non-availability of basic resources among numerous people gives rise to delinquency and this further results in habitual tendency to continue in the same line.
- Sexual Indulgence– Children who were subject to unwanted sexual activities or any kind of sexual assault in the early years of their childhood end up exhibiting a repulsive behaviour. Too much sexual variance among boys may further lead to the commission of crimes by them like that of kidnapping and rapes.
- The disintegration of Family– Lack of parent control and care towards their children and disintegration of families add to be the main causes for delinquency. Divorce of the parents and the absence of a caring and affectionate environment in the homes also act as promoters of juvenile delinquency in India.
- The advent of modern lifestyles– The rapidly growing and evolving times make it difficult for a majority of kids and adolescents to cope with and this may further lead to delinquency among the children.
- Migration– Migration acts as one of the major causes of the commission of an offence by the juveniles. For example- migration of boys to deserted and slum areas brings the in contact of anti-social elements and they are very much prone to get affected by them in many possible ways.
How to curb the wrongs committed by juveniles?
Juvenile delinquency in India is defined as the habitual commission of criminal acts or offences by young persons, who are usually below the legal age of maturity. In order to curb the wrongs committed by the juveniles, there are various developments brought into being by the juvenile justice act, and they are discussed as under
Juvenile Justice Board
Whenever an inquiry satisfies the juvenile justice board that the offence committed by the child was a petty offence then they are required to take the following measures
- Allow the child to return home after admonishing him or after properly advising him or her.
- Order to the child to perform community service, as this helps in instilling good values among the children and such a measure is to be undertaken when the offence is of quite a graver nature.
- Get the child to participate in group counselling and similar types of activities as this greatly helps in the rehabilitation of the child.
- The child is required to be released on probation if he was seen to exhibit good conduct.
- When the offence is not of a petty nature and quite grave, then the child should be sent to a special home for a period not exceeding 3 years.
- The child or even his parents can be advised to pay fine, and this further acts as a deterrence.
Proper observational homes and facilities for juveniles
The constitutional guarantees to the juveniles are the same as those promised to the adults and one of the important guarantees among them being a fair trial. However, it is an accepted notion that the adults usually secure the bail faster when compared to that of juveniles. Merely because the juveniles are not punished does not mean their constitutional rights are taken away from them. It is rather a duty cast on the government to ensure the rehabilitation of such offenders happens. In order to ensure this, governments are required to provide proper observational homes. The observational homes come to act as transit points and hence it is important for them to offer vocational training and education to the juveniles and further make sure there is a good atmosphere maintained in the homes in order to benefit the transformation of the juveniles.
Rehabilitation of Juveniles in India
Taking into consideration the prevailing scenario it can be said that there many loopholes when it comes to rehabilitation of juveniles in India. The Juvenile Justice (Care and Protection of Children) Act 2000, is indeed a very good law but at the same time, it lacks the demanded infrastructure. Further, dragging one’s attention to the statistics released every year in India it can again be said that, the juvenile boards in are less than the expected numbers in various districts of India and are also not up to the mark in terms of their efficiency.
The prime essence of juvenile justice boards in India is to have a group of medical officers, social activists who have been adequately trained, counsellors and psychiatrists. The presence of these people would help the board in arriving at the right decision in terms of future actions to be taken with regard to the juveniles committing crimes in India. But the sad reality again is that there is a dearth of these experts and this, in turn, is resulting in not attaining the excepted results by the board. Now, it is the work of each state government to implement all the requirements and ensure there is proper working of the broad in each and every district and it is also leading to the attainment of the desired results.
The aspect of media is also to be taken into account. The attention of media being dragged to the child as either a victim or an offender is very damaging to the child as the children are of tender age and are not generally expected to have the required maturity. Hence, in order to be in line with this, the juvenile justice act had issued the guidelines that, the child’s identity should not be disclosed anywhere in the media and the photographs of the child are not be published anywhere. If there is an inquiry held against a child under the JJ act, then there should be no report in the newspaper or magazine or any news sheet which is allegedly disclosing the name, school or identity of the child. The act further allows such a report to be made only if it is in the interest of the child.
The measures to be taken for the benefits of juveniles can be brought into reality only if there exists a proper linkage between the state and various district governments. Additionally, there is also a requirement for the child rights activities and groups to take up the initiatives of the transformation of juvenile offenders and this would further boost the process and help in bringing the desired change on a larger perspective. The increasing crime rated among the juveniles in the recent times and absence of deterrence among them creates an alarming situation which is to be given full attention to the earliest.
The measures mentioned in the article regarding the curbing of offences by juveniles require special attention and implementation of the same. With the current rate of crimes by juveniles, it is expected to be on a rise in the forthcoming years and therefore needs to be stopped in its initial stages itself.