March 24, 2016

Redefining, Reconsidering Juvenile Delinquency- Juvenile Justice (Care and Protection) Act 2015

By Ananya Mishra, 2nd Year Student at NUJS


“Child is father of man” – William Wordsworth. 

The word Juvenile comes from a word Juvenilis which means “of or belonging to youth”. Legally speaking a juvenile is a person who is not old enough to be held responsible for criminal acts. In layman’s language he is a minor or an immature person. This dictionary definition is the conventional concept with regard to children of tender age. It poses a question on increasing stastics of gruesome criminal acts committed by these juveniles whose juvenility is reflected in their acts.  They come as a shock and have imposed a question mark on the leniency and the special treatment given to them by various central legislations having in core their rehabilitation as aim.  Should age be allowed to be the mitigating factor for them? Figures on juvenile crimes by the National Crime Records Bureau (NCRB) reveal that from 2002 to 2012, there has been a 143 per cent increase in the number of rapes by juveniles. In the same period, figures of murders committed by minors went up by 87 per cent while there has been a whopping 500 per cent increase in the number of kidnappings of women and girls by minors. These acts of them establish them as capable to not only understand the gravity of their acts but also to commit them in cold blood and with sufficient mens rea. For that purpose Juvenile Justice (Care and Protection) Bill 2104 is an approach of drawing that line between being cared or to be held culpable. 

History of Juvenile Justice in India:

Prior to 1773, the penal systems including those for children were governed by prevailing customary laws. However a categorization of offenders on the terms of age is reflected in some aspects of penal laws of that era. The punishment for littering on the streets for children less than the age of 12 was less stringent than that ordained for an adult offender.  Post this period the advent of British led the foundation stone for ragged schools, i.e. schools for destitute children. The period of 1850-1919 witnessed a number of statutes coming up to horizon like the Indian Penal Code and the Criminal Procedure Code. Section 27 of the latter mandates that children be tried by special courts under Children Act 1960, for their treatment, training and rehabilitation. Section 82 of the former act excluded children aged less than 7 from any criminal culpability. Indian Government has come up with a number of legislations in the field of Juvenile Justice like the Children Act 1960, Juvenile Justice Act (Care and Protection) 2000, Juvenile Justice (care and Protection) Act 2006. Also the recently proposed Juvenile Justice (Care and Protection) Act, 2014 along with the United Nations Declaration of the rights of the Child in 1959, mandate the same. 

Juvenile Justice (Care and Protection) Act, 2014:

The Ministry of Women and Child Development had introduced the Juvenile Justice (Care and Protection of Children) Bill, 2014 in the Lok Sabha on 12th August, 2014. This has developed into an act after getting passed by Rajya Sabha This act sought to make more robust, effective and responsive the legislative framework for children in need of care and protection as well as children in conflict with law. 

The Act replaces and amends the Juvenile Justice (Care and Protection of Children) Act, 2000.  It addresses the methods of treating the children standing in conflict with law and also the need to attend with care and protection. It permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences.  Further, any 16-18 year old, who commits a serious offence, may be tried as an adult only if he is apprehended after the age of 21 years. Alongside the establishment of Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) in each district has been contemplated.  The JJB will conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or is to be tried as an adult.  The CWC will determine institutional care for children in need of care and protection. Furthermore, procedures regarding adoption and penalties for certain offences like selling narcotic substances to children or abduction of children have found place in the new Bill. A single person is now eligible to adopt a child, however, a single male is not allowed to adopt a girl child. The Bill also provides for ‘aftercare’ of persons between 18-21 years after they leave the institutional care, with a view to help them enter mainstream society.

It proposes that in case of commission of a heinous crime by a person who falls in in the age group of 16-18 years will be examined by the Juvenile Justice Board to assess if the crime was committed as a ‘child’ or as an ‘adult’. Psychologists and experts will be responsible for the contemplated assessment. They will be members of the board and hence it will ensure that the rights of the juvenile are duly protected if he has committed the crime as a child. The subsequent trial of the delinquent would largely depend upon the aforementioned assessment. A “heinous” offence is defined in the Bill as an offence for which the minimum punishment is imprisonment for seven years or more. The Juvenile Justice Board will be tasked with conducting preliminary inquiry into the nature of the offence and other circumstances. Such inquiry is required to be completed within a month.

The Ministry of Women and Child Development states that this two stage process is a more sensitive approach towards juveniles in need of it. At the same time it proves as a guard against crimes perpetrated on women. 

Criticisms of the Bill :

There are differing views on whether juveniles should be tried as adults. A section argues purporting inefficiency of the bill as a deterrent while another stands in opposition to retributive form of punishment suggested for children. 

Moreover  the Juvenile Justice system in India is centered on the constitutional mandate embodied in the language of Articles 15 (3), 39 (e), 45 and 47 of the Constitution of India.   The difference in procedures does not qualify as a reasonable classification to ensure equality among equals.

The Juvenile Justice jurisprudence in India has also stemmed from the nation being the signatory of various international covenants like United Nations Convention on the Rights of the Child and United Nations standard Minimum rules for Administration of Juvenile Justice. The UN Convention on the Rights of the Child mandates all signatory countries to treat every child under the age of 18 years as equal.  The provision of trying a juvenile as an adult stands in contravention of the Convention.

The word heinous offences could be a potential source of ambiguity. They are defined to be the offences having imprisonment for 7 years. It leads to the amalgamation of various kinds of offences in same category on the basis of penalties imposed for their violation. 

Under the act, Juveniles between 16 and 18 years of age, have to go through a preliminary inquiry to ascertain their guilt. If found guilty, the procedure recommends them to be sent to children’s court will be sent to a children’s court that can pronounce the child guilty. Such juveniles can be detained in a ‘place of safety’ until they reach the age of 21. If no signs of reformation are seen till the age of 21 they can be sent back to jails with adults. However at present, most states do not have the ‘place of safety’, also known as ‘borstals’. 

States such as Rajasthan, Odisha, Chhattisgarh and Jharkhand, there is a lack of such institutions and hence the juveniles meant to be sent to lace of safety are sent to regular jails. “In Delhi, the ‘place of safety’ was situated within the Tihar jail premises until the High Court suo moto took cognizance of the matter.

Also Article 3(1) of the act says that the particular act is based on the presumption of innocence of the juvenile to any mala fide or corrupt intent. However Article 15 contemplates a preliminary inquiry to determine his mental and physical capacity and the surrounding circumstances at the time of commission of offence. This provision is apparently presuming his guilt and the inquiry is only an attempt to look into the accessory factors of the situation. Thus these two provisions stand in contradiction to each other. 

Conclusion :

After the pronged debate of constitutionality, morality and utility of the said bill, it is pertinent to analyze this draft in the light of prevailing circumstances. Floodgates of cases of juvenile delinquency of various forms open, when the society is threatened by such offenders.   Thus a law capable of having a heavy hand, deterrent effect is needed as a solution to the present scenario The law should be capable to address the changing conditions of society.   The constitutional questions related to right to equality and right to life, posed on the said bill are not denied. Still Juvenile Justice (care and Protection) Bill, 2014, passed by both Rajya Sabha and Lok Sabha by now is worth given a place in legal system of the nation. This is not a mere bill however it supports and proposes a vital step towards the reformation of society. The effort in the direction of reconciling  two entirely contradictory schools of reformative and retributive form of justice in a dilemma struck society, should be welcomed.