Wisdom Crux

Reinventing Juvenile Justice

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Juvenile Justice System in India in context of Juvenile delinquency

[Volume 2, Issue 10] 

Author – Ankita Sharma, BA.LLB, Ramaiah College of law, Bangalore

Co-Author – Amritanshu Jha, BBA.LLB, Sharda University

ABSTRACT

The Nirbhaya Case of 2012 popularly known as Delhi gang rape case has given rise to significant number of burning questions and thoughts in relation to juvenile conflicts and their treatment. The havoc created a lot of chaos while dealing with the culprits as it was difficult to ascertain the juvenile age.

This Article titled “Reinventing Juvenile Justice – Juvenile Justice System in India in context of Juvenile delinquency” aptly covers all the issues underlying under the Juvenile Justice Act while dealing with juvenile culprits. A dynamic and systematic approach has been applied in order to bring out the issues pertaining to the same by taking into consideration all the relevant factors which tends to affect the applicability of laws relating to the child in conflict with the law. This article has all important points stated in it which significantly throws light on the evolution of Juvenile laws, definition of child under different statutory books, International Conventions and why there is a need to recognise child rights. Also Constitutional provisions (Article 14 and 21) in relation to Section 15 of Juvenile Act of 2015 and POCSO Act have been discussed in brief. Further, role of Judiciary in deciding cases relating to juvenile and few suggestions regarding proper implementation of laws have been highlighted in the Article to grab the attention of the present working scenario of Juvenile laws in our country.

INTRODUCTION

Our Society is changing and the baby boom generation is greying. The fact of concern arises with the contentions as to the humanist fundamental which is often missed when the point of dealing with delinquents, juvenile and adult arises.

The rise in youth violence is intimately tied to the social forces. Thus it can be clearly established that the life experiences for both the young and the old are changing. The explosive societal mix has been one of the major factor which attracts juveniles to commit heinous offences and also treating them as adults.

WHO IS A CHILD?

The consideration of an age as to who shall come under the definition of child is a debatable issue and many established laws intend to define Child in various aspect.

  1. According to UN Convention on the Rights of the Child (CRC), a child is a person who is under the age of 18 years and thus includes;
  • Infancy
  • Early childhood
  • Middle childhood
  • Adolescents
  1. Accordingly, Indian Majority Act, 1875[ref] SECTION 3 OF INDIAN MAJORITY ACT, 1875[/ref] emphasizes on the fact that every person domiciled in India shall be major only when he completes 18 years of his age.
  2. The Factories Act, 1948[ref] SECTION 2 (a), (b), (c) OF FACTORIES ACT, 1948[/ref] tends to define child as anyone who has not completed 15 years of his age. Also it states that anyone who has completed 15 years of his age but not 18 years is to be recognized as Juveniles.
  3. Juvenile justice Act of 2015 finally categorized the definition of child. It stated that any child who is in conflict with the law and is between 16-18 age groups shall be treated as an adult for heinous offences. Heinous offences here means to imply rape, murder and other such crimes as stated in I.P.C for which punishment is imprisonment for seven years or more. The legal significance of the same is clearly stated under the Act.[ref] SECTION 15 OF JUVENILE JUSTICE ACT, 2015[/ref]

DEVELOPMENT OF LAWS RELATING TO CHILDREN – INDIAN SCENARIO

Before Independence

Centuries ago India has witnessed the existence of juvenile legislation in different forms and perspectives and more or less has followed the pattern of British statutory laws. Earlier in 19th century the concept of separate legislation for treatment of juvenile was evolved and in consequence of which Apprentices Act, 1850 was passed. Further in the same line was drawn Indian Penal Code, 1860.[ref] SECTION 82 OF IPC, exempts children under 7 years of age from any kind of criminal responsibility.[/ref]

During the reign of British, various laws were formulated to look into the issues relating to juveniles. The whipping Act of 1864 was enacted in order to punish juveniles through whipping. This was basically done to make them realise their mistakes so that they do not repeat the same and were then set free. The other landmark legislation of the era were;

  • Criminal Procedure code of 1861,
  • The Reformatory school Act, 1876 (modified in 1897)[ref] This act fostered the establishment of reformatory schools by local governments.[/ref]
  • Borstal School Act
  • Children’s Act, 1920
  • Other separate legislations were passed by the provinces of Madras, Bengal and Bombay in 1920, 1922 and 1924.

After Independence

Post Independence, India propounded various legislations in order to protect the rights of a child. The constitution of India has considered that children are national asset and must be protected against all kind of atrocities and abuse and hence should be provided with the basic amenities in order to grow up in a sustainable environment. 

Part III (Fundamental Rights) and IV (Directive Principles of State Policy) of the Constitution exemplifies the important provisions governing the laws relating to children. Article 15 (3)[ref] State can make special provisions for children and women.[/ref], 23[ref] Prohibits trafficking of human being and forced labor.[/ref], 24[ref] Prohibits employment of children in any factories, mines or hazardous places if he/she is below 14 years of age.[/ref], 39(e)[ref] State’s duty to safeguard the tender age of children.[/ref]& (f)[ref] State’s duty to protect children against exploitation.[/ref], 45[ref] State’s duty to provide for free and compulsory education till the age of 14 years.[/ref] and 47[ref] State’s duty to raise the level of nutrition and standard of living.[/ref] are the significant provisions that have been inserted in the Constitution to protect and promote the welfare of children. Other important Acts such as Juvenile Justice Act of 1986 (Then amended in 2000 and later Juvenile Justice (Care and Protection) Act of 2015, Child labor Prohibition Act of 1986, Children’s Act of 1960, Child Marriage Restraint Act, 1929, POCSO Act of 2012 were also passed to protect their rights and safeguard their well being in an appreciable manner.

India’s International link ups

India ratified CRC in the year 1992and further introduced a National Charter in 2003 and a National Plan of Action in 2005. Also in the year 2005 India ratified CRC’s two optional Protocols besides signing the SAARC Conventions. Indian laws were formulated well in compliance with UNCRC[ref] Articles 34,35 and 36.[/ref], Beijing and Havana Rules and other International perspectives in order to deal with all kinds of issues relating to children.

 

CHILD RIGHTS AND CHILD PROTECTION – A NECESSITY

A necessity to protect children against all evils was felt long back and also various initiatives have been taken to curb the negatives. The Act of 2015 has clearly embarked the laws relating to juvenile delinquents in a more prospective way. The Act has established a definite arena of how a child in conflict with law should be treated without outraging their innocence and basic rights to which they are entitled.

Article 14 of the Constitution obligates the State not to deny to any person equality before law or equal protection of laws within the territory of India.

In India, the concept of equality was not the formal equality as was observed in USA but was that of proportional equality which recognized that everyone was not equal and that the State was obligated to enact laws in favour of the weak and disadvantaged section of the society. Proportional equality was based on that of right to equal treatment in similar circumstances and that the persons who were unequally circumstanced could not be treated at par. It was submitted that through Article 14, it was recognized that weaker and vulnerable sections required special/additional protection.[ref] Two Hundred and Sixty Fourth Report, The Juvenile Justice (Care and Protection of Children) Bill, 2014 at p. 29.[/ref]

The UNCRC, 1989 lays down a set of 4 basic rights which includes:

  • Right to survival
  • Right to protection
  • Right to Development
  • Right to participation

Thus, juveniles who are in conflict with the law and children in need of care and protection need special care and protection. Statutory provisions tend to provide protection to victimized children through legal entanglements. The society in which we live and in which children are expected to grow must be free from all evils and negativities because children are more prone to be influenced and be affected by the actions around them. They are usually exploited by their own family or community in an arbitrary manner such as cruel behaviour and punishments, detention, abuse and torture.

Other factors such as drug abuse, psychopathic personality, mental retardation, neurosis, emotional disturbances, faulty discipline, broken homes, parental absenteeism, dominance of parents or guardians, peer pressure contributes a lot in commission of a crime in innocence. Also socio cultural factors such as, alienation and rebellion, social rejects, gangs and companions, poverty, stress, delinquent gang sub culture and undesirable relations tend to affect the mind of a child in a very holistic way.

SIGNIFICANCE OF HEINOUS OFFENCE

(As per the JJ (C&P) Act, 2015 and Constitutional provisions)

Section 15 (1) of the Juvenile Justice Act, 2012 states that “in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18.”

The JJ Act allows children between 16 and 18 years alleged to have committed heinous offences to be tried and sentenced as adults. While it does not expressly lower the age of a child in conflict with law from 18 to 16 years, the effect is the same, as the Bill proposes that children above 16 years can be tried and treated as adults. It thus completely destroys the rehabilitative foundation of the existing juvenile justice system in India by adopting a retributive approach for heinous crimes committed by children in this age group. One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution.[ref] Ibid at para 3.16.[/ref]

Heinous and serious offences are punishable with imprisonment for seven and three years or more respectively under the Indian Penal Code.[ref] Law & Policy BRIEF, Vol. I, Issue 8, August 2015 at p. 1.[/ref] This policy of excluding children from the protection of juvenile law is based on a system of judicial waiver and individualized sentencing that ignores findings of adolescent culpability, procedural fairness and the amenability of children to corrective intervention. It sits incongruously with the Act’s own objectives of ensuring proper care, protection, development and social reintegration of juvenile offenders.[ref] Ibid.[/ref] In the case of children who have committed a heinous crime and have completed 16 years, Section 16(1) of the Act requires the Juvenile Justice Board to inquire into the child’s mental and physical capacity in order to decide whether he should be tried as an adult or not. This is based on two faulty assumptions: the first that children who commit heinous crimes are as culpable or blameworthy as their adult counterparts, and the second, that such maturity can be ascertained with scientific precision.[ref] Ibid at p. 2.[/ref]

Research in developmental psychology explains the difference in cognitive capacity and psycho social maturity between children including adolescents and adults that influence their decision-making in anti-social situations.[ref] Elizabeth Cauffman and Laurence Steinberg, “(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults,”Behav. Sci. Law 18: 741 at742-743 (2000)[/ref] Whether the juvenile understood the consequences of the offence or whether he or she had the mental and physical capacity to commit the offence is a narrow and non-holistic approach to respond to serious/heinous crimes. It fails to take into account the ongoing process of development and its impact on children, especially adolescents.

Also, the deprivation of the protection against disqualification under the provisos to Ss. 24(1) and 24(2) violates the right to life under Article 21 and the right to equality under Article 14. The reformation inquiry u/s 21 is redundant in light of these two provisions. Even if a child is found to have undergone reformative changes at the end of a highly arbitrary assessment process, she/he will incur the disqualification attached to the conviction making it impossible to secure gainful employment, stand for elections or benefit from the fundamental principle of ‘fresh start’. These provisos constitute a flagrant violation of the right to life and human dignity as they will deprive children of a livelihood and leave them with no avenues for a dignified existence, hence violating Article 21 of the Constitution.

With the advent of POCSO Act 2012, sexual activity which was earlier treated as consensual was criminalized, resulting in a significant surge in rape and kidnapping/abduction cases against women. Further, a significant number of cases of rape and kidnapping included love cases and consensus elopement where girl’s parents charged the boy with rape subsequently. Hence, it is clearly evident that juvenile crime is a miniscule proportion of total crime committed and that the same is not significantly increasing, and hence does not forma a rationale for such a scheme of classification.

RECORDED DATA – NCRB Report

The data for Crimes in India, 2013” showed juvenile crimes to be 1.2 per cent of the total crimes committed. Total IPC crimes committed by juveniles in 2013 were 31, 725, out of which 1, 884 were rape and (5.93 per cent of total IPC crimes) and 1, 007 murders which constituted 5.93 and 3.17 per cent of the total IPC crimes. Hence, 9.1 per cent of total IPC crimes constituted rape and murder. Further, the increase in number of rape cases in 2013 could be attributed to the Protection of Children from Sexual Offences Act, 2012 which increased the age of consent to sexual activity from 16 to 18 years. It is thus emphasized that NCRB data based on children was mostly not about children who were found guilty but was of those alleged to have committed an offence.

JUDICIAL PRONOUNCEMENTS – An appraisal

Every saint has a past and every sinner a future. When a crime is committed then variety of factors is responsible for making the offender commit the crime. The Supreme Court and High Court of India have also emphasized the reformatory and rehabilitative aspects of sentencing in a very significant manner keeping in mind the child rights.

The Nirbhaya case has enlightened the need to interpret laws more delicately in order to implement it effectively. As a result of which Juvenile Act of 2015 brought the new scenario of treating juveniles committing heinous offences.

The judiciary of our country plays a very important role in bringing out the issues which tends to affect the peace and integrity of the Nation and deal with it a very diligent way. The judiciary interprets the existing laws and passes judgments and orders accordingly. The aspects relating to juveniles are really critical and needs proper understanding and implementation.

The Supreme Court in Sheela Barse v. Union of India[ref] 1986 AIR 1773. 1986 SCR (3) 443[/ref] gave directions to set up observation homes in order to keep children who have been accused or those against whom investigation is pending and trial will be executed by juvenile courts.

Also in Vishal Jeet v. Union of India[ref] AIR 1997 SC 699[/ref], directions were issued to the state Government and Union territories to remove the evils of child prostitution and promote programs for the care, protection and rehabilitation of the juvenile.

Further in Sakshi v. Union of India[ref] AIR 2004 SC 3566, 2004 (2) ALD Cri 504 [/ref] the Supreme Court in the instant case issued directions to local governments and law commissions to conduct a research and submit a report on how to curb child abuse.

SIGNIFICANT PROPOSITIONS

  1. Proper compliance with UN rules and regulations can foster more protection and security to child in conflict with the law.
  2. Public awareness and proper training programs must be adopted by local government to help child to understand the difference between right and wrong so that they do not repeat the same mistake of commission of an offence which is punishable under any recognized statutory law of the nation.
  3. Proper mechanism must be set up for the treatment of juvenile/ child in conflict with the law so that they can reform themselves properly and return back to society with clean hands.
  4. The review and revision of laws relating to children must be done at proper intervals without ignorance.
  5. Non – Government organizations should take initiatives to curb child abuse and atrocities in order to establish and build an environment suitable for their tender growth.
  6. Government should make proper reformative and rehabilitative schemes in order to deal with delinquents.
  7. Retributive mechanism should be avoided because this course of action can have an adverse impact on the minds of the child.
  8. Rehabilitative homes must aim to revive the child in conflict with law back to their original state of mind by conducting various motivational seminar and conferences.
  9. Proper co-ordination between the state and local government can boost the results and help in reduction of crimes by juveniles.

The changing trend in the present century has brought forward many activities/conduct/crimes of children that are more conducive to negativities in the environment around them. Children at their tender age are more likely to be affected by their socio legal, political and religious circumstances and this somewhere contributes to the commission of brutal offences in the absence of mens rea and malafide intention. This curbs the innocence of the child and further stops him from understanding what is right and wrong. The non existence of psychology to understand the act committed by him is the major issue that is required to be dealt with in a very effectual way.

CONCLUSION

The new Act of 2015 is one of the landmark legislation in the history of juvenile laws which tends to implement and execute the laws in the interest of justice and equity. As we all are aware of the fact that with the development and advancement in the field of technology, the crime rates in our country has increased to a higher level and is most likely to target the youths and adolescents. No doubt, the statutory law framed by the Indian government has somewhere succeeded to curb the commission of heinous crimes by the children in their tender age but there is a still long way to go.

The research conducted by various organisations and bureau gives a clear indication of the fact that the children in the age group of 16-18 are found to be indulged in the commission of heinous offences. Intervention in the early stages of commission is the best approach to prevent the juvenile delinquency. Hence, if society seeks to involve actively in order to eradicate such commission of offences, then this can generate the best results in curbing the crimes by teens.

Late Dr. A.P.J. Abdul Kalam, the Former President of India exfoliated his thoughts by stating:

“Where there is righteousness in the heart, there is beauty in the character. When there is beauty in the character, there is harmony in the home. When there is harmony in the home, there is order in the nation. When there is order in the nation, there is peace in the world.”

Hence, it can clearly be extracted from the sayings that humanity has brightness in its future and one cannot and must not take risk to put future at stake under the burden of any folly and ignorant act.