This article is written by Shirsti, student of BA.LL.B. from RNB Global University. This article provides a detailed discussion regarding the Juvenile Justice System and the present scenario in India.

INTRODUCTION

“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait, the child cannot, right now is the time his bones are being formed, his blood is being made and his senses are being developed. To him, we cannot answer ‘tomorrow’. His name is ‘Today’.” – Nobel Laureate Gabrial Mistral.

A maxim that best describes the Juvenile Justice system is the ‘Nil Novi Spectrum’ implies that nothing is new on this planet. This has been in existence since ancient period as a presumption in the whole world, that the Juveniles should be dealt leniently because there exists a system of thought that, they have a habit to respond in thoughtfully and anxiously which is accompanied with aggressive approaches.

In the last few years, there have been many such crimes in the world which are being committed by young children. This tendency of committing crime is mainly seen between teenagers (specially children 15-16 years) and the reasons for such can be psychological causes, early life experiences, financial stress, differently raising, a sense of male dominance, lack of education and several others. Since crime happens at a very young age, there is a view that short punishment can teach them a good lesson and they will learn from there mistakes and hopefully become better human beings in the near future. And the most disappointing part  is  that, past few decades have witnessed horrific crimes that are committed by children (especially under the  age group of 16 and below 7 years) who, nowadays are used as tool for committing the  crime as at that  this stage their mind is very innocent and can easily be manipulated.

The greatest example of juvenile crimes is the December 2012, Nirbhaya gang rape case[1] which shocked the whole nation. This particular incident has raised many debates, as the accused was just 6 months short of the adult age (18).  The presence of a juvenile in such a heinous crime compelled the Indian Legislature to decide and introduce Juvenile Justice (Care and Protection), 2015.

DEFINITION OF CHILD AND JUVENILE IN VARIOUS LAWS

The word “Juvenile” originates from a Latin word “Juvenis” that means young. Generally, a “child” refers to a person who has not attained the age of 18 and is not mature enough to understand what is right and what is wrong. Today, the penal laws of most countries have adopted the principle of ‘doli incapex[2]’ which means  a child is incapable of forming the criminal intent to commit an offense.

According to Section 2 (12) of The Juvenile (Care and Protection) Act, 2015, a “child” means a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories:

• “child in conflict with law”[3]
• “child in need of care and protection”[4]

A child who has committed an offense and is under 18 years of age on the date of the commission of the offense is basically called a “child in contravention of the law”.  The second sub-category “child in need of care and protection” means a child defined under section 14 of the Act.

• The Mines Act, 1952 is the significant trade-related act that depicts an adult as a man who has completed eighteen years of age (thusly a child is a man who has not completed eighteen years of age).[5]
• According to Section 2e of the Children Act, 1960  “ child” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.[6]
• The  Child  Labor  (Prohibition  and  Regulation)  Act,  1986  defines  a  child  as  a  man  who  has  not completed fourteen years of age.[7]
• The Factories Act, 1948 and Plantation Labor Act 1951 states that a child is one that has not completed fifteen years of age and a juvenile is one who has completed fifteen years of age yet has not completed eighteen years of age.[8]

According to international law, ‘child’ means every person under the age of 18 years.  This is the universally accepted definition of a child and comes from the United Nations Convention on the Rights of the Child (UNRCC), an international legal instrument that has been accepted and ratified by most countries.[9]

DIFFERENCE BETWEEN JUVENILE AND CHILD

A person under the age of full legal liability and responsibility is a minor or a person under the legal age of eighteen years is a minor.  A child accused of a crime is not tried as an adult and is sent to a child care center while a juvenile is a person between the ages of sixteen and eighteen.  A young person who has been charged with a crime is a juvenile delinquent and is tried as an adult in a court proceeding.

In general sense, both the words have the same meaning but there is a difference in terms of implication in the eyes of law.  Minor refers to young and teen persons whereas juvenile indicates either immature persons or young offenders.

JUVENILE DELINQUENCY : A RISE IN CURRENT SCENARIO

Juvenile delinquency includes the involvement of a juvenile in illegal activities or behavior.  Delinquency may not always be considered a criminal activity, but such behavior is harmful to the child and the society itself.

The crime rate in India is already on the rise, and what we see now is a rise in juvenile offenders.  The biggest example of such a heinous crime committed by a juvenile would be the  Nirbhaya case of 2012. This outraged the people and so the authorities deemed it fit to change the law.

Causes of juvenile delinquency:

SOCIAL FACTORS

1. Broken home – If one or both parents are dead, one or both parents are suffering from serious health problems, if one or both parents live away for work purposes or both parents if there is a divorce, then the house can be broken.  Educating children and interacting with them is a very important duty of parents.  If for some reason the house breaks down, it can leave an impact on the development of the child.  Children who have lost the love and control of their parents will become more vulnerable to anti-social influence.
2. Poverty- It is another potential cause of juvenile delinquency. Failure of parents to provide necessities of life such as food and clothing etc. draws their children to delinquency in a quest for earning money by whatever means. At times, even the parents connive at this for the sake of petty monetary gains
3. Bad company – Peer groups, neighbors and companions will have a big impact on a child’s behavior.  If they are in poor companionship, this can lead to crimes.  If the child joins a bad partner or group, this can lead to a change in the child’s attitude and make him more likely to become a criminal.
4. Industrial development and economic growth: The industrial development and economic growth in India has resulted into urbanisation which in turn has given rise to new problems such as housing, slum dwelling, overcrowding, lack of parental control and family disintegration and so on. The high cost of living in urban areas makes necessary even for women to take up outdoor jobs for supporting their family financially, with the result their children are left neglected at home without any parental control. Moreover, temptation for modern luxuries of life lures youngsters to resort to wrongful means to satisfy their wants. All these factors cumulatively lead to an enormous increase in juvenile delinquency in urban areas

PERSONAL  FACTORS

1. Mental instability – It has been observed from many studies that many juvenile delinquents are mentally unstable.  They may have been suffering from some mental deficiency or mental illness.  As we all know that children who are mentally handicapped are not able to differentiate between right and wrong. Such children become vulnerable and are often used by gangsters for criminal purposes.
2. Emotional problems – Emotional problems such as jealousy and inferiority are common in children who are delinquent.  These children become criminals when they feel that the society is against them, they are not treated fairly, they are denied their basic rights.  Such inferiority will result in juvenile delinquency.

BIOLOGICAL FACTORS

1. Biological factors such as, early physiological maturity or low intelligence, also account for delinquent behavior among juveniles.

HOW JUVINILE JUSTICE SYSTEM IS DIFFERENT FROM CRIMINAL JUSTICE SYSTEM

The Supreme Court, in Dr. Subrumanian Swamy and Others v. Raju, Through member of JJ. Board & another [10], has clarified that juvenile justice system and criminal justice system are different from each other. They have different aims. While criminal trial is adversarial, the juvenile trial is child-friendly. The difference between the two systems are as follows:[11]

• In case of juvenile offenders, FIR and charge-sheet are filed only in serious cases, where the punishment for the offence exceeds seven years.
• A juvenile in conflict with law is not ‘arrested’ but ‘apprehended’, only when allegation is for serious crime.
• One apprehended the police must immediately place such juvenile under the care of welfare officer who produces him/her before the Juvenile Justice Board. Thus, police does not retain pre-trial custody over the juvenile.
•  Under no circumstances is the juvenile to be detained in jail or police custody.
•  Grant of bail to juvenile offender in conflict with law is a rule.
•  JJ. Board conducts child-friendly inquiry and not an adversarial trial.
• The criminal trial aims at finding the guilt or innocence with the object to punish the offender but juvenile trial aims at reformation and rehabilitation of the errant juvenile who is in conflict with law.
• Juvenile system establishes post-trial avenues for the juvenile to enable him to make an honest living.

EVOLUTION OF JUVENILE JUSTICE SYSTEM IN INDIA

PRE-INDEPENDENCE ERA.

Ancient India, though governed by many laws, had hardly any laws specifically dealing with juvenile delinquency. As the problem of neglected children and juvenile delinquency increased over time, a need was felt to enact a law in this regard. During the colonial rule, in 1843, the first center for these children called “Ragged School” was established by Lord Cornwallis.  After 1850, the Apprentice Act [12] was passed, chronologically the first law to require that children aged 10–18 years convicted in courts be provided with vocational training as part of their rehabilitation process. Another landmark law was the Reform Schools Act, 1876 and 1897.  Under the Act, the court was empowered to detain offenders in a correctional school for a period of two to seven years, but after attaining the age of eighteen, they would not be kept in these institutions.  In addition, the Criminal Procedure Act, 1898 provided special treatment to juvenile offenders.  The Code provided for probation for good conduct by criminals up to the age of twenty-one. Then the Indian Children Act was enacted by the Indian Prisons Committee (1919–1920).  Under this act, the individual provincial government was empowered to make separate laws for juveniles in their respective jurisdictions.  The provinces of Madras[13], Bengal[14] and Bombay[15] passed their own Children’s Acts in 1920, 1922 and 1924 respectively.

POST INDEPENDENCE ERA

After gaining independence, a new act focused on children was passed in 1960. It was the Children Act, 1960 which provides for “the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the Union Territories”[16]. Even after this the juvenile justice system had to face various problems; most important among them is the fact that different states had different acts to deal with juvenile delinquency, which led to children in equal situation being judged differently in accordance with different provisions in different acts.

The Supreme Court in Sheela Barse v. Union of India (1986) [17] observed “we would suggest that instead of each State having its own 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.”  This led to the passing of the Juvenile Justice Act, 1986 for the care, protection and rehabilitation of juvenile offenders and neglected children.

The General Assembly of the United Nations adopted a Convention on the Rights of the Child on 20 November 1989. [18]  The Convention seeks to protect the best interests of juvenile offenders.  The Convention states that in order to protect the social-reintegration of juveniles, there shall be no judicial proceedings and court hearings against them.  The Convention leads Indian legislation to repeal the Juvenile Justice Act, 1986 and enact a new law.  Thus, the Indian Legislature came up with a new Act called “Juvenile Justice (Care and Protection of Children) Act, 2000”.

Moreover, the increasing number of cases of juvenile crimes in the last recent years and the horrific incident of “Delhi Gang Rape Case” have compelled the law makers to enact laws.  The biggest drawback of this act was that it did not have well-equipped legal provisions and the deterioration of the juvenile system was also the main reason for stopping juvenile crimes in India.  This act was soon replaced by the Juvenile Justice (Care and Protection) Act, 2015.

JUVENILE JUSTICE ACT, 2015

The Juvenile Justice Act of 2015 replaced the Juvenile Justice Act of 2000 on the grounds that there existed a need for a more powerful and viable justice framework that focused on impediment in the form of reformative methods.  Juveniles should not be treated as adults, there were disputes in Parliament that juveniles should be given more room for change or reconstruction or reform and this is possible only when there is extraordinary justice framework. Subsequently, new demonstration, for example, to the Juvenile Justice (Care and Protection of Children) Act, 2015, focused on a juvenile agreed method of mediation and disposal of cases. [19]

 Salient Features of the Act are as follows: –

• Section 2(12) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child as a person who has not completed the age of 18 years i.e. below the age of 18 years. The Act has given a classification regarding the term ‘Child’ namely “Child in need of care and protection” and Section 2 (13) of the Act, talks about “Child in conflict with law”.
• A clear distinction was made regarding the aspects of the offences, meaning that categories of crimes were created as heinous, serious and trivial.  Specifications have been made in respect of juveniles in the age group of 16-18 years who, if committed by them of any kind of crime, after observing their mental capacity, be tried as an adult.
• Introduction of Juvenile Courts, which meant that special courts had to be set up that would only try juvenile offences, such as NDPS courts, courts dealing with POCSO, etc.
• Child Welfare Committee about ‘Child in need of care and protection’ and Juvenile Justice Board is another authority concerning the ‘Juvenile in conflict with law’.
• Juvenile Justice Board: It is a judiciary body before which children detained or accused of any crime are brought. It acts as a separate court for juveniles as they do not have to be taken to regular criminal court. The Board consists of a Judicial Magistrate of the first class and two social workers, of whom at least one must be a woman. The board is child friendly and not intimidating for the child.
• Child Welfare Committee: The State Governments constitute these committees in the districts as per the provisions of the Act. The committees have the power to deal with matters of care, protection, treatment, development and rehabilitation of children in need of care and protection as well as to provide for their basic needs and protection.
• All child care institutions, whether run by the State Government or by voluntary or non-governmental organizations, must be compulsorily registered under the Act within 6 months from the date of commencement of the Act.
• There is a separate new chapter on adoption to streamline adoption processes for orphaned, abandoned and surrendered children. In addition, the Central Adoption Resource Authority (CARA) was given the status of a statutory body to enable it to perform its functions more effectively. The Act states that the adoption of a child is final when the court issues an order of adoption.

JUVENILE JUSTICE IN REFERRENCE TO CONSTITUTION OF INDIA

The Constitution of India is considered the fundamental law of India.  The constitution provides the rights and duties of the citizens.  It also provides for the functioning of government machinery.  In Part III the Constitution has provided fundamental rights for its citizens, similarly in Part IV it has provided the Directive Principles of State Policies (DPSP) which act as general guidelines in framing government policies.  The constitution has provided some basic rights and provisions especially for the welfare of children.  Like:

1. Right to free and compulsory elementary education for all the children under the age of  6 to 14 years. (Article 21A)
2. Right to be protected from any hazardous employment under the age of fourteen age. (Article 24)
3. Right to be protected from being abused in any form by an adult. (Article 39e).
4. Right to be protected from human trafficking and forced bonded labour system.  (Article 39)
5. Right to be provided with good nutrition and proper standard of living. (Article 47)
6. Article 15(3) of the Constitution of India provides special powers to State to make any special laws for the upliftment and the betterment of children and women.

PRESENT STATE OF JUVENILE JUSTICE SYSTEM IN INDIA

Like various nations, India had a legal system that specifically and explicitly manages the rights and assurances of juvenile guilty parties who try to handle the issue of juvenile misconduct.  The juvenile justice system in India is based on three fundamental concerns:

• Young children should not be tried in court, rather they should be corrected in the most ideal way,
• They should not be punished by the courts, but they should be given the opportunity to change
• Early social controls for a child who violates the law should be established on non-punitive treatment through a network of organizations, for example: – observation homes [20] and special homes.[21]

JUVENILE COURTS

The main function of the Juvenile Courts is to have a  special and specialized procedure for dealing with juvenile offenders.  Unlike earlier criminal courts, which did not differentiate between juveniles and adults, juvenile courts at present provide the necessary protection to children as they are not in a position to defend themselves properly.  A need was felt to make the process more corrective for the juveniles rather than punitive.

Juvenile courts hold legitimate authority over a minor for a set time limit—until the juvenile becomes an adult, or significantly longer now and then.

Types of cases heard in Juvenile Courts

Not all cases heard in Juvenile court are wrongdoing cases (those including the commission of a wrongdoing). There are two different kinds of cases: reliance cases and status offenses. Different strategies are commonly applied to each of the three types of juvenile legal disputes.

1. Juvenile misconduct cases: these cases involve minors who have allegedly committed the offense—meaning that if the wrongdoing had been committed by an older person, an attempt would have been made to try the case in ordinary criminal court.  In any case, the technique in juvenile court is completely different from that in adult criminal court.
2. Juvenile dependency cases: including minors who have been abused or sacked by their parents or watchmen, called “juvenile dependency” cases, are additionally heard in juvenile court.  In a juvenile dependency case, the adjudicator will ultimately choose whether a minor should be taken out of a dangerous domestic environment.
3. Cases Including Status Offenses : A position offense is a violation that applies only to minors.  Models include delinquency (skipping school), curfew violations and, sometimes, underage drinking.

 

WHAT IS THE DOCTRINE OF ‘DOLI INCAPAX’

The law assumes that a child below 7 years of age is a ‘doli incapax’.  This means that the child lacks the necessary ability to understand the nature and consequences of the act done by them and thus, lacks the ability to form a mens rea.

Doli Incapax is a Latin term which means “incapable of doing harm”, which has been used under criminal law to assume the innocence of a child.  The principle behind doli incapax is rooted in the concept of criminal responsibility, which means that a person must be held criminally responsible for the act he or she intended to commit.

Doli Incapax is recognized in most countries.  In India, this principle comes under sections 82 and 83 of the IPC.  The Code of Criminal Procedure recognizes that children below the age of 7 years, a child is unable to understand the nature and consequences of their own actions and provides full immunity for any offense committed by them.

In the case Kaku v State of Himachal Pradesh [22], the accused of 13 years of age had committed the offense of rape on a child of 2 years of age and was thus sentenced by trial to rigorous imprisonment for 4 years by the Trial Court, which was upheld by the High Court. On pleading Sections 82 and 83 of the IPC, the Court took into account the circumstances of the case and opined that the punishment shall be reduced to 1 year of rigorous imprisonment with a fine, along with 6 months of rigorous imprisonment for default in payment of fine. It was also said that the convict would be kept separate from the adult prisoners.

CASE LAWS

• The Supreme Court in Bachpan Bachao Andolan v. Union of India, [23] while enumerating the aforesaid principles emphasized the need for intervention strategies for curbing and eliminating the increasing use and abuse of drugs, alcohol and other narcotic abusive substances in children, mostly adolescents and desired that a National Policy be framed on this very crucial aspect juvenile problem. Thus, it would be seen that fundamental principles for administration of juvenile justice, as elaborated in the Juvenile Justice Act, 2015 and the Rules made thereunder include right to be heard, positive rehabilitative measures and avoidance of maltreatment to juveniles who are in conflict with law. The law seeks to ensure best interest of the juveniles and protect their right to dignity by providing care and support.
• The Supreme Court in State of Madhya Pradesh v. Anoop Singh, [24] reiterated that ossification test is not the sole criteria for age determination. The age determination based on ossification test though may be useful, it is not conclusive. So also, an X-ray ossification test can by no means be so infallible and accurate test as to indicate the correct number of years or days of a person’s life. In result, the Medical Board in determining the age of appellants cannot be relied upon so as to give benefit under Juvenile Justice Act and in the absence of cogent evidence. The plea of juvenility is liable to be rejected and appeal is dismissed.
• In Satya Deo v. State of Uttar Pradesh [25], it was held that the child will not be denied his right to be treated as a juvenile at the time of the commission of an offense if he was below 18 years even if the offense took place before the enforcement of the Act of 2000. As per Section 25 of the 2015 Act, the 2000 Act would continue to be applied to cases that were pending before the passage of the 2015 Act.
• In Salil Bali v. Union of India [26], 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.
• In Jhabua Murder case [27], two minors aged 17 and 16 years were awarded life imprisonment. The two accused stabbed the deceased (teenager) over a matter of 800 rupees.

CONCLUSION

Children are undoubtedly the future of this world.  There is a great need for more reformed legislation aimed at prevention of such juveniles so that their future and the future of the society can be secured.  It will help to make the world a better place and can also reduce the chances of future crimes.  Even juvenile delinquent acts by children can have a huge impact on their future, and hence, need to be dealt with at an early stage.

The rising rate of juvenile delinquency in India is a matter of great concern and needs attention.  Although the government has enacted various laws and regulations to prevent the incidence of juvenile offences, the current laws on juveniles are not creating a deterrent effect on juveniles and thus the results are not useful and the legislative intent is not being fulfilled. To prevent this issue of juvenile delinquency everyone has their own role as society has different role, parents have different role, rehabilitation homes have been assigned a different role, etc. If all these factors work accordingly then this real life problem will be easily solved in very less time.

 

REFERENCES

[1]  1998 SCC, Del 879 : (1999) 77 DLT 181

[2] Section 82 of IPC states that a child below the age of seven years is doli incapex

[3] Section 13 of The Juvenile Justice (Care and Protection of Children) Act,2015

[4] Section 14 of The Juvenile Justice (Care and Protection of Children) Act,2015

[5] 2 (b) of the Mines Act, 1952

[6] Bare Act , The Children Act , 1960 , Universal Publication , 12^th Edition

[7] The Child Labour (Prohibition and Regulation) Act, 1986, Act No. 61 of 1986, 23th December, 1986.

[8] Shreyansh  Chouradia  (2012),  Child  Labour:  The  Burning  Predicament  In  The  World,  Legal  Service  of  India, http://www.legalserviceindia.com/article/l216-Child-Labour.html /Accessed 20th July, 2016

[9] Article 1 of the UN Convention on the Rights of Child, 1989.

[10] AIR. 2014 S.C. 1649.

[11] Prof. N.V. Paranjape, Criminology, Penology with Victimology, page no 670, Central Law Publications, 17th edition , 2017

[12]  Edited by Witerdyk, A. John, Juvenile justice Systems: International Perspectives, 266, Canadian Scholars Press Inc. Edition: 2, 2002

[13] Madras Children Act, 1920

[14] Bengal Children Act, 1922

[15] Bombay Children Act, 1924

[16] Adenwalla, Maharukh, Child Protection and Juvenile Justice Sysyem: for Juvenile in Conflict with Law, 13, Childline India Foundation, December 2006

[17] AIR 1983 SC 378

[18] Prof. N.V. Paranjape , Criminology , Penology with  Victimology, page no 673 ,Central Law Publications, 17th  edition,2017.

[19] Purti Vyas, Juvenile Justice Act, 2015, An analytical study of Juvenile Justice System in India (June.10,2021, 9:00am), https://blog.ipleaders.in/juvenile-justice-system-india/

[20] Section 47 of the Juvenile Justice ( Care and Protection) Act , 2015

[21] Section 48 of the Juvenile Justice ( Care and Protection) Act , 2015

[22] AIR 1976 SC 1991.

[23] (2017) 1 S.C.C 653.

[24] (2015) 7 S.C.C 773.

[25] AIR 2019 SC 860

[26] (2013) 7 SCC 705

[27] (2015) 16 SCC 310