Wisdom Crux

Justice to the Juveniles: Myth or Reality

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[Volume 2, Issue 3] – March, 2017

Author – Piyush Kanhaiya, B.A., LL.B., (3rd Year), Delhi University, Campus Law Centre

The word Juvenile is defined as “a child below the age of eighteen years”((Section 2(35): Juvenile Justice (Care and Protection of Children) Act, 2015)). Juvenile Delinquency basically refers to the criminal activity of any child, below 16 years of age in case of boys and 18 in case of girls, which are violating the law of the land. If the same act is committed by an adult, then it is termed as crime.

Juvenile Delinquency is considered to be the gateway of the criminal world as majority of the criminals committed their first crime in their childhood. Over the time, it has become a matter of great concern for the child right activists as well as the government of any particular country. The juvenile offender faces a hearing, rather than a trial, which incorporates his social and legal factors. A juvenile offender is judged “delinquent” rather than “guilty.” Because of the individual’s nature of the juvenile system, sentences of criminal varies and may cover a wide range of punishments based on community and residential options.((SrishtiAgnihotri and Minakshi Das, Rehabilitation not retribution should be the focus of juvenile justice, The Wire (Dec. 30, 2015); Available at: http://thewire.in/2015/12/30/rehabilitation-not-retribution-should-be-the-focus-ofjuvenile-justice-18262/)) The disposition is based on the individual’s offense history, severity of the offense and includes a significant rehabilitation component.

India has recently passed a new law in the aftermath of much debated ‘Nirbhaya Gang Rape’ case wherein one of the accused was a minor and subsequently tried as a Juvenile. The new law would try the juvenile between the age group of 16-18 as adults in cases of heinous crimes such as rape, murder, etc. Furthermore, in these cases, the Juvenile Justice Board which would comprise of the Magistrate and two Social Workers will have the adjudicating powers in order to decide whether the minor offender be tried as juvenile or adult.

JUVENILE DELINQUENCY & JUVENILE JUSTICE IN INDIA

Juvenile delinquency refers to criminal and anti-social behavior committed by persons under the age of 18((Bryan A. Garner, Encyclopedia Britannica and Black’s Law Dictionary, 9th edition)). Juvenile delinquency envisages two types of behaviors in general:

  1. Delinquent Offences:These are the violations of legal statutes that also apply to adults in the criminal justice system. It include acts of violence against persons, such as rape, murder, aggravated and simple assault, armed robbery, harassment, menacing, stalking, child abuse, and similar offenses. These offences also includes the crime relating to property like theft, burglary or larceny, arson, motor vehicle theft, criminal mischief, damage to property, vandalism, and others.A variety of miscellaneous crimes sometimes known as public order offenses also come under the ambit of Delinquent offences.((Available at: http://criminal-justice.iresearchnet.com/crime/juvenile-delinquency/))
  2. Status Offences:Thebehavior which is considered unsuitable or detrimental for children, and such are prescribed because of the age of the offender. If such behavior is committed by adults, is not illegal.((Available at: http://cjpapers.blogspot.in/2011/08/juvenile-delinquents-vs-status.html))

Causes of Juvenile Delinquency:

The foundations for adolescent wrongdoing are generally found at every level of the social structure, including society in general, social establishments, social gatherings and associations, and interpersonal relations. Adolescents’ decision of misconduct is cultivated by an extensive variety of elements, the most imperative of which are depicted beneath.

  1. Individual Factor:A child who has a lower knowledge and who does not get an appropriate training or education((Forward by K.G. SalyiDail, Educational Advisor to the Government of India, Report on delinquent children and juvenile offenders in India, 1955, Govt. of India, Ministry of Education)) is more inclined to wind up required in delinquent conduct((VedKumari, The Juvenile Justice System in India: From Welfare to Rights (Law in India), 1st edition, Oxford University Press, USA, 2004)). Other factors would include uncontrolled aggression, impulsive behaviour and an inability to delay gratification. In many cases, several individual factors can be identified as contributing to juvenile’s involvement in destructive, harmful and illegal activities.
  2. Family Factor:A consistent pattern of family factors are connected withthe development of delinquent behavior among young people. These family factors would include ongoing parental conflict, neglect, a lack of proper parental supervision and abuse (physical, psychological and emotional). Parents who show a disrespectful attitude towards the law and social norms are likely to have children who think in the same manner as they((Manish Dwivedi, Juvenile Justice System in India, Adhyayan Publisher, 2011)). Finally, the children who display the weakest attachment or connection with their parents and families are precisely the same juveniles who get engage in inappropriate or illegal activities, including delinquent behaviour.
  • Mental Health Factor:There are several mental health factors which are also seen as contributing to juvenile delinquency. It is vital to remember, however, that a diagnosis of specific types of mental or psychological health conditions primarily personality disorders cannot be made in regard to child. However, there are antecedents of these conditions that are revealed in childhood that tend to end up being displayed through delinquent behavior((Glanville L. Williams, The Criminal Responsibility of Children,Cr.L.R.1954, pp. 493-94)). A common and the most typical one is conduct disorder. Conduct disorder is defined as; a disregard for societal norms and lack of empathy((K. Kusum, ‘Juvenile Delinquency- A Socio-legal Study, KLM Book House, New Delhi, 1979)).
  1. Substance Abuse Factor:Substance abuse is found in a majority of cases of juvenile delinquency. Two trends are recognized with regard to substance abuse and minors. First, juveniles are utilizing more powerful drugs today than was the situation as recently as prior to 10 years. Second, some juveniles begin using drugs at a very young age.Theuse of illegal substances motivates children to commit crimes to obtain money for drugs((LomborosoCesare L. Uomo Delinquency. 1876, Translated with modification of Horbton, H.P. (1911) as crime, its causes and remedies Modern Criminal Science Series No. 3 Boston, Little Brown, 1911)). In addition, juveniles are far more likely to engage in harmful, destructive and illegal activities when using alcohol and drugs.

 

TRIAL COMPETENCY & JUVENILE JUSTICE IN INDIA

The Juvenile Justice (Care and Protection of Children) Act, 2000 has been designed for the care, treatment, protection, development and restoration or rehabilitation of delinquent juvenile and for the adjudication of certain matters relating to and disposition of delinquent juveniles((Available at: wcd.nic.in/sites/default/files/jjactamedment.pdf)). The Juvenile Justice Act,1986 was replaced by JJ Act, 2000 that provides for a uniform legal framework of justice across the country with a view to safeguard that no child in any situation is held up in prison or lock up. This act covered children upto the age of 18 years and provided for their proper machinery and infrastructure required for protection, care, development and rehabilitation. Moreover, Child Welfare Committees are constituted for the care and protection and treatment of child in need of care and protection and Juvenile Justice Boards deal with juvenile in conflict with law((Apoorva Shankar, The juvenile justice bill, 2015: All you need to know, The official blog site of PRS Legislative Research (2015), http://www.prsindia.org/theprsblog/?p=3610)).

Juvenile Justice Boards were constituted to deal with the juvenile in conflict with law and consists of a Judicial Magistrate first Class or Metropolitan Magistrate and two social workers of whom at least one would be a woman under Section 4(2) of JJ Act, 2000((Section 4(2): The Code Of Criminal Procedure, 1973: All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences)).To keep the juvenile away from the regular courts filled with nasty atmosphere, the rules of 2007 were framed which provided that in no situation the board shall operate from within any court premises. Hence, all the criminal cases of juvenile were to be dealt by JJB and further appeal to Children Court and not the regular courts like Sessions Court.

The Juvenile Justice (Care & Protection) Act, 2015 is an ‘Offence Centric Act’ unlike the JJ Act of 2000 which is a ‘Child Centric Act’. The 2015 Act categorizes the offences committed by the juvenile into three parts viz., Heinous Offences, Serious Offences Petty Offences.

The Act also permits juveniles between the ages of 16-18 years to be tried as ‘adults’ for heinous offences. Also, any 16-18 year old, who commits alesser, i.e., serious offences may be tried as an adult only if he isapprehended after the age of 21 year((Available at: http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-bill-2014-3362/)).

As per 2011 census data, juveniles between the ages of seven to 18 years constitute about 25% of the total population((Single year age data, Population Enumeration Data (Final Population), Census of India, 2011)). According to the National Crime Records Bureau(NCRB), the percentage of juvenile crimes as a proportion of totalcrimes has increased from 1% to 1.2% from 2003 to 2013((Juveniles in Conflict with Law, Crime in India 2013, National Crime Records Bureau, Ministry of Home Affairs)). During the same period, 16-18 year olds accused of crimes as apercentage of all juveniles accused of crimes increased from 54%to 66 %. The types of crimes committed by juveniles in the 16-18year age group include burglary, rape, kidnapping/abduction, robbery, cheating, rioting, murder etc.

As new Act of 2015 passed, treats juvenile especially the age group of 16-18 years committing heinous offences more harshly and more like adult defendants, defense attorneys started raising competency to protect their clients in juvenile court. Also the problem with the criminal competency statutes as the standard that they were developed to determine the competency of ‘adult’ defendants and not which can be unique to youth. ‘Criminal Competency Statutes’ majorly include intellectual disability and mental illness or insanity, as reasons for incompetency to trial. However, while dealing with the juvenile, Juvenile courts must also consider a third ground for incompetence i.e  assessing of Developmental maturity in addition of the above two mentioned grounds.

  1. Intellectual Disabilities:

Intellectual disabilities are more common among juveniles than adults under the supervision of the criminal justice system in India. Unlike adults, juveniles may have more intellectual deficits like learning disability, low IQ, or other neuropsychological impairment that affects their competence((AnetteMcGaha et al., “Juveniles Adjudicated Incompetent to Proceed: A Descriptive Study of Florida’s Competence Restoration Program,” Journal of the American Academy of Psychiatry and the Law, vol29.,2001, p. 427)). So in courts these children face problems with their memory or processing information, in addition to challenges like abstract reasoning and executive functioning.

  1. Mental Illness:

Symptoms of mental illness cannot be diagnosed easily in case of juvenile as it may vary with age. A child’s ongoing development makes it challenging to determine whether a symptom actually exists, or if it is just a behavior that will naturally subside with age((Available at: http://nationalpsychologist.com/2014/03/assessing-juveniles-competence-to-stand-trial/102461.html)). Moreover, a juvenile’s mental illness may be more detrimental to his or her ability to understand the proceedings and participate in his or her defense, rising to the level of incompetence to stand trial than it might to an adult with the same diagnosis.

  • Developmental Maturity

Developmental immaturity alone can raise concerns about a youth’s competence to stand trial. Neurological, cognitive, and psychosocial development all contribute to a juvenile’s factual and rational level of understanding of the court process. During adolescence, youth may have an unstable sense of self, be emotionally impulsive, and have a decreased ability to make rational and reasonable decisions on their own((Supra note8.)). It would be foolish to neglect these major components of human development when making such determinations.

The JJ Act of 2015, highlighted on the criteria of ‘Maturity level of Juveniles’ as a ground of incompetency by a juvenile. It has been discovered by many neuropsychologist that “adolescent brains are far less developed than previously believed”((Hybrid Medical Animation, Cruel and Unusual Punishment: The Juvenile Death Penalty, American Bar Association, 2004, p.1)). According to Ruben C. Gur, the biological age of majority is close to 22 years and the pertinent parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable, develops after attaining the age of maturity((Ruben C. Gur, American Bar Association, DECLARATION OF RUBEN C. GUR, PH.D. 15)). In this respect to punish a juvenile, like an adult would result in excess punishment. According to MaharukhAdenwalla, “The Juvenile Justice (Care and Protection of Children) Act, 2015 has reversed the well founded principle of juvenile justice by allowing Juvenile Justice Boards to waive the right of children above the age of 16 years who have committed a heinous offence into the criminal justice system.”((MaharukhAdenwalla, A dislocation of the juvenile justice system, The Wire, 23 May 2015 Available at: http://thewire.in/2015/05/23/a-dislocation-of-the-juvenile-justice-system-2282))

Unlike the repealed act of 2000, the new Act made the most insignificant clause or provision of making of ‘Preliminary Assessment Report’ which includes a preliminary inquiry of a juvenile to ascertain his mental, psychological and physical capacity to commit the offence for which he/she is tried for and circumstances in which he committed the offence. This report is submitted by the psychologists to the Juvenile Justice Board (JJB) within one month from the date of start of trial. In the same way, Social Investigation Report prepared by Probation Officer and Medical Report prepared by Medical experts are also submitted to JJBs to ascertain the competency of the Juvenile for the trial.

CONSTITUTIONAL PROVISIONS AND JUVENILE LAWS IN INDIA:

The JJ Act, 2015 has remained in controversies since its inception due its alleged contravention to the Part III of Constitution of India. Several NGOs and child rights activists have vehemently opposed this Act stating that it violates Art. 14, 15(3), 20(1) & 21 of the constitution and also offshoots the United Nations Conventions on the Child Rights with whom India became a signatory in 1992 along with ratification. On the contrary, the authors here holds a negative view about these allegations and have tried to address the same via established constitutional principles and landmark Supreme Court judgments.

Now, as per Article 14, equality before law or the equal protection of laws does not mean the same treatment to everyone. As no two human beings are equal in all respects, the same treatment to them in every aspect would result in unequal treatment. For example, the same treatment in all respect to a child as to an adult, or to a sick or physically challenged as to a healthy person, or to a rich person as to poor will result in unequal treatment which nobody would justify or support. Therefore, the underlying principle of equality is not the uniformity of treatment to all in all respects but to balance both the sides as per the need and status. This exercise is termed as ‘reasonable classification’ and it can only be achieved by passing appropriate legislations in the light of public welfare((V.N. Shukla & M.P. Singh, The Constitution of India, 12thedn., Eastern Book Company, Lucknow, 2013, pp.49-50)) and in making it, a legislature must be allowed a wide latitude of discretion and judgment.((Tiger v. Texas, 84 L ED 1124: 310 US 1417)) Similarly, as per the new law, the offence committed by the Juveniles has been categorized into 3 kind viz., heinous, Serious and Petty offences. Even the Supreme Court has time and again reiterated((CharanjitLalChoudhary v. Union of India, AIR 1951 SC 41; Bhudhan Choudhry v. State of Bihar, AIR 1955 SC 191; Bidi Supply Co. v. Union of India, AIR 1956 SC 479; State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75)) that Article 14 does not rule out classification for purpose of legislation((KedarNathBajoria v. State West Bengal, AIR 1953 SC 404, 406, 409)). However this classification can also be tested on the grounds of ‘Intelligible differentia’ & ‘Rational Nexus’ as propounded by the honorable supreme court in landmark judgment of St. of west Bengal v/s. Anwar Ali Sarkar((AIR 1952 SC 75)) and other subsequent verdicts((Motor General Traders v. State of A.P., AIR 1984 SC 121; PrabodhVerma v. State of U.P., AIR 1985 SC 167)).

Moving further, article 15(3) empowers the state to make special provisions for the betterment of women and children and accordingly JJ Act has been adopted by the government which stands in consonance with the UN convention on Rights of the Child((Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 and entry into force 2 September 1990, in accordance with Article 49)). The sole contention remains here is the age of Juvenile which has been lowered to 16-18 age group as per new law which is against the mandate of UNNCRC((UNCRC mandates that the age of Juvenile should be 18 years)). The answer to this issue lies in the principle of ‘Sovereignty’, as the governments of the respected states are well aware about their social-economic & legal needs and they can take decisions accordingly. Even at the global level, countries such as USA, UK, France, South Africa, Canada and Germanyhas lowered the age of juveniles as per their domestic requirements in spite of being the signatories of UNCRC.((The juvenile justice (care and protection of children) bill, 2014, PRS Legislative Research, 2016, Available at: http://www.prsindia.org/billtrack/the-juvenile-justice-care-and-protection-of-children-bill-2014-3362/))

Another issue, which is pointed out by many protestors, that the 2015 Act violates the basic spirit of Article 20(1) of the Indian Constitution because the bill states that a 16-18 years old committing a serious offence and apprehended after 21 year of age, will be tried as adults. This would violate the abovementioned Fundamental Right which states that no person can be given a penalty greater than that which would have been applicable to him under a law not in force at the time of commission of offence. This means that at a later date a person a person would face a penalty that is higher than what would be applicable to him at the time commission of serious offence. The parliamentary standing committee also observed that this provision goes against the ethos of constitution and recommended for it deletion and the authors also supports this view without any opposition.    

CONCLUSION AND SUGGESTIONS

The author is of the view that the control of delinquency would need a very effective implementation of the Juvenile Justice Act with extensive public awareness as well as orientation. Furthermore, age shall not be the sole reason to award a lesser punishment for such heinous crime done by the offender. Sec 376A and 376E of IPC was added in the year 2013 which imposes death penalty for committing rape. In contrast to the same, Sec 15 of the Juvenile Justice (Care and Protection of Children) Act imposes a mere sentence of 3 years which is laid down without any reference to the nature of crime committed. It is immoral to let the offender of such crimes let go without any severe punishment for such heinous crimes.The law needs to deter juveniles from committing heinous crimes and safeguard the rights of victims((Gaurav Kumar vs. State of Haryana, Petition for Special Leave to Appeal, 2366-2368/ 2015)). For crimes like rape and murder it is hard to conceive that the juvenile is not aware of the consequences. In our view, no mercy should be shown towards the offender of such heinous crime who have not shown any mercy while committing such crime. The misuse of the present law cannot be handed over to the offender. If done so, it would not only create a chaotic environment for the victim but also create an unsafe society around us.

Recommendation

  • The provision relating to apprehending of a child after 21 years of age, as an adult committing a heinous offence and thus violating Article 14, 20(1) of Indian Constitution, should be deleted.
  • A proper and reasonable investigation time period should be provided to conclude the ‘Preliminary Assessment Report’, to avoid any casualties.
  • An increased focus on the implementation of the Act and uniform establishment of systems and procedures under it,by all agencies. A proper mechanism should be created to assess the needs and requirements of the juveniles and it should be reviewed regularly.