Wisdom Crux

Overview of Development of Juvenile Justice System

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[Volume 2, Issue 2] – February, 2017

Author – Sakshi Kanodia, B.Com., LL.B., (3rd Year), Symbiosis Law College, Noida

INTRODUCTION

The term Juvenile Justice emerged from the word Juvenis, in Latin it means Young. Throughout the world, children who come in conflict with the law as a result of being accused or suspected of committing a crime are at the greatest risk of having their fundamental rights violated. To this end, states parties are required to establish laws, authorities, procedures, and institutions specifically applicable to those children alleged or accused of, or recognized as having infringed any penal law.

In most countries there are additional restrictions on the applicability of juvenile laws, and special protections are not applied universally to all children alleged to have committed an offence. In India, juvenile justice legislation is not applied in Jammu and Kashmir. In Pakistan, it has not been extended to the federally administered tribal areas or the provincially administered tribal areas. In Sri Lanka and Nepal, children who are jointly charged with adults are subject to the adult proceedings. Sri Lanka also does not extend special protections to children charged with certain serious offences (murder, attempt to murder and robbery). Laws differ from country to country.

HISTORICAL BACKGROUND

The Juvenile Justice systems, in various countries in the west have developed through a similar course((Ved Kumari, The Juvenile Justice System In India 45 [2nd ed. 2011])). First, there was a perception that children were not as mature as adults to understand the nature and consequences of their acts and could not be held at fault for their criminal acts. By the 1850s institutionalization was seen as non-fruitful as the refugees, reformatories, and other correctional institutions concentrated more on custody and less on reform. The failure of prisons to control crime and the rapid increase in juvenile delinquency necessitated alternative measures for children. The recognition of the harmful effects of keeping adults and juvenile offenders together resulted in separate juvenile jails and reformatories. The principle of segregation further led to separate hearings, other changes in the criminal procedure, and the creation of juvenile courts((D.P.Farrington, England and Wales, in Western Systems Of Juvenile Justice 73  [M.W.Klein ed., 1984])).

Even though the Juvenile Justice system in various countries have taken a similar course, there have been two different justification for a separate system for juveniles and the choice of rationale determined the nature of Juvenile Courts and procedure. The establishment of a separate juvenile court in England was the aftereffect of the principle of segregation of juveniles from adult offenders. Hence, the Children court established under the Children Act 1908 was a criminal court. The authorized magistrates held separate sittings and tried children in the same manner as adults. The juvenile court in America, on the other hand, was neither a criminal court nor did it follow the criminal procedure.

Though the first Juvenile Welfare Boards were established in Norway by an Act adopted in 1896, it was the enactment of the Juvenile Court in Illinois, Chicago, in America, in 1898 which gave impetus to juvenile court movement. It spread rapidly first in America((In the United States, juvenile court laws were enacted in thirty five states and the District of Columbia in 1910 and in forty six states by 1907.)) and then all over the world.

POLICY SHIFT IN THE JUVENILE JUSTICE SYSTEM (FROM ‘WELFARE’ TO ‘RIGHTS’)

A new relationship between child and state was based on the English concept of parens patriae. The landmark decision incorporating parens patriae into the American legal structure was given by the Supreme Court justices of the state of Pennsylvania in 1838. The shift away from parens patriae towards constitutional rights to children began with the challenge to the constitutional validity of the juvenile court itself.

In Haley v Ohio((92 L ed 224, 332 US 596 [1948])) and Gallegos v Colorado((8 L ed 2d 325, 370 US 49 [1962])) the admissibility of the confession of a child was questioned that Kent v United States((16 L ed 2d 84, 383 US 541 [1966])) considered the requirements for a valid wavier of the exclusive jurisdiction of the juvenile court. Through these cases related to certain restricted aspects, they unmistakably indicated that constitutional safeguards were not only for adult.

The tension between the ‘welfare’ & the ‘rights’ of child continues with efforts to balance the two rather than discard one for another((Clarke, Whose Justice? The Politics of Juvenile Control, 13 INTERNATIONAL JOURNAL OF THE SOCIETY OF LAW 407 [1985])).

Rights have been ensured by the welfare principles that came into force at the UN convention on the rights of the child 1989 (CRC) on 3rd September 1990. The convention recognizes not only the rights to be processed according to principals of justice but also the right to participation, name, nationality, identity, survival and development, adoption and right against exploitation and in all actions concerning children, whether undertaken by private or public or social welfare institutions, courts of law, legislative or administrative bodies, the best interest of the child shall be the primary consideration((UN Convention on the Rights of Child, article 3)).

The UN further adopted the rules for the protection of juveniles deprived of their liberty in 1990.UN guidelines for the prevention of delinquency (the Riyadh guidelines)((Adopted and Proclaimed, General Assembly Resolution 45/112 [Dec 14, 1990])) followed immediately.

JUVENILE JUSTICE SYSTEM IN INDIA: OVERVIEW

The history of the Indian Juvenile Justices has been divided here into five phases by reference to legislative or other landmark developments, namely,

  1. Prior to 1773
  2. 1773-1850
  3. 1850-1918
  4. 1919-1950
  5. Post 1950
  • PRIOR to 1773

Both the Hindu and Muslim laws had provisions for the maintenance of children. The primary responsibility to bring up children was that of parents and family((N.Chandrasekhara Aiyer, Mayne’s Treatise on Hindu Law and Usage 285 [11 Ed. 1953])). It is generally maintained that neither set of laws had any reference to juvenile delinquents((The  Hedaya, or Guide; A Commentary on The Mussulman Law 138, 146 [2nd Ed. 1870])). In addition, general principles of penology, capable of individualization of punishment, are also found in the two sets of laws. The Muslim law has given discretion to the kazee to determine the degree of tazeer or chastisement. The purpose of punishment is revising. Under Hindu law, the king in inflicting punishment was to ascertain the motive, the time and place of offence, consider the capacity of the criminal to suffer, the nature of the crime and cause of punishment to fall on those who deserve it((S.D.Sharma, Administration of Justice In Ancient India 61-2 [1988])).

All these provisions clearly show that children were recognized as separate entities from adults, needing special care from others for their survival, and not fully responsible for the acts.

  • 1773-1850

The period between 1773 and 1850 began with the emergence of The East India Company as a governing body from a trading company and ended with the introduction of the first legislations relating to children. This period also saw the conversion of prisons from places for transporting convicts to places for keeping convicts. The report of the committee appointed by Lord William Bentinck, pursuant to T.B. Macaulay on the subject of jail discipline, was submitted in 1839. It fearlessly exposed the evils of the jail management existing then.

This was the period when the west was getting engulfed in an all-round reformation movement. India as a British colony did not remain unaffected. The first ‘ragged school’ for orphans and vagrant children in India was established in 1843 through the exertions of an Englishman. The objects of the school were- 

  1. The reformation of juvenile offenders arrested by the police, and
  2. The encouragement of apprenticeship amongst the working class. All these developments together prepared the ground for the introduction of the Apprentices Act of 1850.
  • 1850-1919

Much legislation was enacted in this period covering a wide range of matters concerning children. In the field of criminal justice, legislation against the forcible abduction of children was proposed in 1848. The Apprentices Act 1850 authorized the magistrates to bind over juveniles between 10 to 15 years as apprentices to learn a trade, craft, or employment instead of sending them to prison for minor offences. This act mooted the concept of neglected children for the first time for legislative purposes and provided for a community alternative to imprisonment of delinquent children for minor offences. The Indian Penal Code 1860 declared children below 7 years of age as doli incapax, while the presumption of mens rea could be rebutted in case of children in the 7-12 age groups.

The idea of reformatory school for delinquent children was in the air for long in view of the bad prison conditions and the felt need for segregating delinquent children from adult offenders. The immediate impetus for enacting the Reformatory Schools Act 1876 was provided. The non delinquents were excluded from the scope of the Reformatory Schools Act 1876. The act permitted that a youthful offender sentenced to imprisonment or transportation or undergoing imprisonments, may be sentenced to a reformatory school instead of being detained in a prison((Reformatory Schools Act, 8, 10 section [1987])). It was amended in 1897.

Children of members of criminal tribes also received special attention around the same time around the same time under the Criminal Tribes (Amendment) Act 1897. Reformatory Schools were established at many places in India- Madras, Burma, Bihar, Orissa, Central Provinces, Bombay, and Delhi, but most of them were not considered to be appropriate.

  • 1919-1950

One of the most significant developments in the history of the Juvenile Justice system in India is the Report of Indian Jail Committee 1919-20((Manish Dwivedi, Juvenile Justice System in India 112-15 [ed. 2011])). The Jail Committee 1919-20 noted that prison administration, since 1889, had great advances in the material aspects of administration, health, food, labour, and so on, but little attention was paid to possibility of moral or intellectual improvement and reformation of prisoners. The committee further recommended the constitution of Children’s Courts with procedures ‘as informal and elastic as possible’. Taking note of the practical difficulty in creating Children’s Courts in view of the small number of children committing crimes, it suggested that the regular magistrates should sit at special hours, and if possible, in a separate room to hear charges against juvenile offenders. ‘the main object is to produce in the mind of the magistrate a clear  recognition of the fact that he is dealing with a case of a special condition in which he is expected to assume a different opinion or standpoint, a more like paternal attitude. In order to arrive at a wise decision it will be very desirable that the magistrate should have before him the information regarding the child, his home his habits, and the circumstances which have led him into crime’

Madras had already passed the first children act on 20 June 1920. Children Acts in Bengal and Bombay were enacted in quick succession in 1922 and 1924 respectively. More states followed suits in the year to follow: namely, The Delhi Children Act 1941, The Mysore Children Act 1943, The Travancore Children Act 1945, The Cochin Children Act 1946 and The East Punjab Children Act 1949.

On realizing that very little had been done by states for looking after destitute and delinquent children, the central government convened a conference recommended the appointment of an expert committee by the government for grafting a bill((Vijay Hansaria and P.I.Jose, Juvenile Justice System 2-3 [ed. 2010])). The modified bill was introduced in the Rajya Sabha on 14th September 1953.

  • POST 1950

Various official and non-official developments have contributed to the development of juvenile justice since 1950.

  • GOVERNMENT POLICIES

With the formation of the Planning Commission in 1951, The Five Year Plan were started and provisions for children were formed under these plans though implementation of services under juvenile justice has not been a specific head of expenditure in the Five Year Plan .

The Seventh Five Year Plan allocated Rs 799.97 crores only for central and centrally sponsored projects like the integrated child development services, services for children in need of care and protection, prevention and control of juvenile maladjustment, crèches and day-care centers for children of working/ ailing mothers, and training of ICDS and non-ICDS functionaries.

The Eighth Five Year Plan recognized the Girl Child as an important target group.

The Ninth Five Year Plan takes cognizance of the increasing problem of social maladjustments such as juvenile delinquency/vagrancy, abuse, crime, and exploitation.

The draft Tenth Five Year Plan by the Ministry of Social Justice and Empowerment points out that the mandate of the ministry is to reach out to every child in need of care and protection and to ensure that his/her basic rights are fulfilled. The strategies for implementing the objectives include national, state, and district-level consultations for partnerships between the government and NGO sectors, establishing a network of CHILDLINE services covering every district, building a preventive system to stem the numerous problems faced by children of the country.

  • JUDICIAL EFFORTS

The judiciary in India plays a very important role and has passed many significant judgments in favor of child rights.

In Sheela Barse v Union of India((JT 1986 136; 1986 SCALE (2)230)), the Supreme Court issued directions to the state government to set up mandatory observation homes where children accused of an offence could not lodged, pending investigation and trial will be expedited by juvenile courts.

In Sheela Barse v secretary, children aid society((1987 AIR 656; 1987 SCR [870])), the Supreme Court commented upon setting up committed juvenile courts and special juvenile court official and the proper rules and laws of care and protection of children in observation homes.

In Vishal Jeet v Union of India((1990 AIR 1412)), the Supreme Court issued convenient directions on a PIL to the state governments and all for eradicating the evil of child prostitution and for evolving programs for the care, safety, treatment, rehabilitation and development of the young fallen victims.

In Mahesh Chandra Mehta v State of Tamil Nadu((AIR 1997 SC 699)) the Supreme Court is clear-cut upon the constitutional perspective of abolition of child labor and issues appropriate guidelines to the government of India with respect to obligatory education, health, nutrition, etc of the child laborers.

In Sakshi v Union of India((AIR 2004 SC 3566)) the Supreme Court directed the government /law commission to conduct a study and submit report on the means of curbing child abuse.

  • LEGAL PROVISIONS

The constitution has secured specialized status for children in the Indian polity since its adoption in 1950. The Nehru Report((The Framing of India’s Constitution Select Documents, Vol. I, 58 to 60 [1966])) which contained the principles of the constitution for India is now incorporated in the constitution in Articles 15(8), 24, 39(e) and (f), and 45. The constitutional picture became clear with the transfer of education and administration of justice to the concurrent list by the 42nd constitution (amendment) act 1976.

A decision of Gujarat High Court((Kario alias Mansingh Malu and ors. Vs State of Gujarat (1969) 10 Cri LJ 66)) striking down a provision prohibiting a lawyer in juvenile court proceedings, as well as other difficulties  experienced over the years in the functioning of the CA60 led to Children (Amendment) Act 1978.

The approach towards institutions also differed under the various Children Acts. The need for a uniform Children Act sustained to be emphasized at official and non-official levels, but the central government showed its inefficiency to enact one on the ground that the subject matter of Children Act fell in the state list of the seventh schedule of constitution. The judiciary, too, time and again emphasized the need for a children act in every state((Sheela Barse vs. UOI, AIB 1986 (SC) 1773; Nuruddin vs. State of HP, 1984 Cri LJ 1712)).

Though the Juvenile Justice Act, 1986 enacted by the parliament extends to whole country except state of Jammu and Kashmir, it basically brought about a uniform system of Juvenile Justice in the whole country((The provisions of the Jammu and Kashmir children act 1970, in force in J&K, were more or less similar in approach to the juvenile justice act)).)).

The Juvenile Justice Act (Care and Protection of Children) 2000 was passed in Dec, 2000 and came in force on 1st April, 2001 and in 2006 it was amended with aim to protect, care, rehabilitate and educate the juvenile and to provide them with vocational training opportunities.

Recently Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed by Parliament of India. It desires to replace the existing Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, so that the juveniles in conflict with Law in the age group of 16–18, involved in outrageous Offences, can be tried as adults. The Delhi gang rape case in December 2012 had tremendous impact on public view of the Act. One of the convicts was found to be a juvenile and sentenced to 3 years in a reform home. The Act came into force from 15 January 2016. The bill introduced views from the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 whichever were missing in the previous act. The bill will allow a Juvenile Justice Board, which would comprise of psychologists and sociologists, to decide whether a juvenile criminal in the age group of 16–18 should tried as an adult or not in the court. Demands for a reduction of the age of Juveniles from 18 to 16 years were earlier turned down by the Supreme Court, when the Union of India stated that there is no proposal to reduce the age of a juvenile.

One of the most criticized steps in the new JUVENILE JUSTICE BILL 2015 is introduction of “Judicial Waiver System“ which grants treatment of juveniles, in certain conditions, in the adult criminal justice system and to punish them as adults. It is for the first time in India’s history that such a provision has been prescribed. Given to the serious criticism, Bill was referred to a Standing Committee of Parliament which also rejected such provisions. Considering the recommendations of Parliament’s Standing Committee are not binding, Government has moved ahead and introduced the Bill in Lok Sabha, where it stands passed. Bill is further criticized for prescribing an “Opaque Age Determination System” and its poor draft.

CONCLUSION

Law makers seriously need to be more proactive and take steps so that barbaric criminals like the Nirbhya juvenile convict are not allowed to walk free. Victims deserve justice and if law cannot protect society from criminals what good is it? The juvenile justice bill is definitely better over the former ones though the bill so passed is not all that favorable enough to curb the crime against women, yet it would create an option for more number of criminals to be tried before law for their crime. Inclusive of the 16-18 years into trial list as adults opens up the ray of light to seek for justice by many of those who have been discontented by the law just for the accuse being a juvenile((Abantika Ghosh, In Fact : New Juvenile Justice Act On The Way But Debate Continues, http://indianexpress.com/article/explained/in-fact-new-juvenile-justice-act-on-the-way-but-debate-continues/ [last updated jan 15,2017])). With the rising incidents of crime against women and the number of murders and similar offence where the accused kills the victim and escapes easily under the lieu of being a juvenile we are in a bit better position to get these accused to the real course of punishment they deserve.

The juvenile doesn’t mean a child by age but the temperament and growth along with the brain activity should be compared. The law should open up scope for more agitations and confrontation across the nation. Provisions and problems of the Act need to be understood only then improvements can be suggested.

One should never forget that a juvenile delinquent could be nothing more than a poor child caught red-handed in the struggle to survive and he or she deserves an empathic treatment.

The provisions should be there to support not to abuse.

In view of the history of fragmented implementation of the Juvenile Justice System and grant of secondary status to the needs of children, the future doesn’t seem nut bleak unless a complete revamping of the system and approach is undertaken. However, what is noteworthy is that the Indian state have almost always responded to international and national that bought focus on children.

It is time that persistent and collaborative measures are undertaken by all concerned for bringing the Juvenile Justice agenda to the forefront.