It imposes a certain degree of obligation on our legal system to tend to the needs of children and to ensure their justice when we recognise children as future citizens of the country. The key agenda is to comply with the Constitution, which, by Fundamental Rights and Directive Principles of State Policy, has provided for comprehensive rights for children. Children are addressed in Articles 23, 24, 39 and 41, thereby shielding them from any potential adversity. The Juvenile Justice (Care and Protection of Children) Act passed on 7 May 2015 has extended the skylines that have majorly reshaped the perspective. The purpose of this specific article is to appreciate the characteristics and transformation of the Juvenile Justice (Care and Security of Children) Act and, more specifically, to discuss the existing legal issues and weaknesses.
Introduction
The expression ‘juvenile justice’ originated from the Latin word ‘juvenis‘ meaning ‘young’ and therefore a juvenile justice system is the one that is primarily established for the young. The Juvenile Justice (Care and Protection of children) Act promises to be a law that is child-friendly and provides for their rehabilitation, social reintegration, basic care, protection and welfare.
Juvenile delinquents are those who, as prescribed by statute, have not reached the age of maturity, but behave in a manner prohibited by law. In discourses on juvenile justice, the word ‘delinquency’ is generally not preferred, and therefore the Act describes a juvenile delinquent as a ‘child in conflict with law'[CCL]. The new 2015 legislation postulates several principles for the ‘child in conflict with law’ for their overall well-being and protection.
A child and a juvenile have both been identified as individuals who have not attained the age of 18 years as per the said Act and a ‘Child in conflict with law’ is identified as “a child who is alleged or found to have committed an offence and who has not completed the age of eighteen years on the date of commission of such an offence.” Children in need of care and protection are also acknowledged by the Act as it is considered that a variety of factors may threaten their lives and lead them down a dangerous path.
Evolution of Juvenile Law
Evolution of Idea
International standards affirm that the right of any child suspected to be, convicted of, or regarded as having breached criminal law to be handled in a manner consistent with the promotion of the sense of dignity and worth of the child.”[1]. In India, Article 15 of the Indian Constitution primarily regulates the juvenile justice system and provides special attention to children through relevant and important laws and policies that secure their interests, as well as international standards. The policy is also focused on the Constitutional mandate enshrined in Articles 14, 15, 16, 21 and 24 concerning the right to freedom, the protection of life and personal liberty and the rights against exploitation.
Children were tried and sentenced in adult criminal courts until the last century and imprisoned along with adults. It was only in the last century that a sense of juvenile welfare began to take shape. Children are one of the most vulnerable members of society and are victims of being manipulated and abused by parents, guardians and the wider society. It also calls for a compassionate approach to them, rather than a policy of law and order or a retributive approach to justice. Children living on the streets who are abused or forced to live in harsh situations need the utmost protection from the state and society. The exploitation and neglect of these children by society is a significant cause of delinquency. It would not encourage them to reform or reintegrate into society but would cause them to become tough criminals by putting them behind the bars in the company of adult criminals. Children are often unaware of the repercussions of the actions they undertake because of their tender age, but if such actions are punishable crimes, they should be handled differently from adults who are expected to recognise the ramifications of the acts they commit.[2]
Evolution of Legislations
The Apprentices Act was passed in 1850 to keep juveniles out of prisons and children were subsequently separated from the prevalent criminal justice system by the Report of the All India Jail Committee (1919-1920). This age saw the passage of specific laws related to children, the first of which was the Apprentices Act, 1850, which granted juveniles legal importance. Children who were vagrants and who committed minor crimes were convicted as apprentices in the age range of 10-18 years. The aim was to harness children’s energies and disentangle their minds from criminal influence to make them work so that they can earn a living after attaining majority. Indian Penal Code, 1860 via Section 82 & 83, set age limits for juvenile criminal culpability. The above sections offered immunity from criminal prosecution for children before their cognitive skills were developed to determine the impact of their behaviour.
The Code of Criminal Procedure (1861&1898) recommended special trials for individuals under the age of 15 and allowed them to be housed in reformatories rather than in adult prisons. The government passed the Whipping Act, 1864 due to a marked rise in the number of crimes, to prevent children from committing crimes in the future, by whipping them for such crimes, which would save the government from investment, to set up juvenile reformatories.[3]
The Juvenile Justice Act, 1986 was the first-ever Act aimed solely at revamping and devising a specific law in India for juveniles. A juvenile was described as a child up to 16 years of age for boys and 18 years of age for girls. Children were labelled as ‘juvenile delinquents’ (children below the specified age and committing an offence) and’ neglected juveniles ‘(children in need of care and protection from state and its institutions). The Act provided for the investigation/proceedings for all groups of children to be held in an Observation Home together during the pendency of the investigation. The Act prevented the arrested child from being held in police custody or prison.
The bail was to be allowed to a child as a matter of right except if there were reasonable justifications to deduce that if the juvenile was released he/she would come into contact with any known offender or if the juvenile would be subject to moral threat or if the release may lead to defeat in meeting ends of justice. The institutional systems set up to address the two classifications of juveniles were extraordinary – the Juvenile Welfare Board for tending to the necessities of neglected juveniles and the Juvenile Court for adjudicating and mediating upon juvenile delinquents. When the procedures were finished, the dismissed juveniles were sent off Juvenile Homes while juvenile delinquents were kept in Special Homes, for a specific timeframe.
A paradigm change was reflected by the Juvenile Justice ( Care and Protection of Children) Act, 2000. Since India had ratified the United Nations Convention on the Rights of the Child in 1992, domestic law had to be structured in line with the international standards to which India had agreed to be bound. A child was defined as a person who has not completed the age of eighteen years under the Act of 2000 and the gender disparity in the 1986 Act was rectified in the definition of child/juvenile. A ‘Child in conflict with law’ implied a juvenile who is charged to have committed an offence, while ‘children in need of care’ and protection included those who were being grossly abandoned, abused, tortured, or exploited for sexual abuse or illegal act.
The groups of children were not to be detained together during the course of the proceedings, as in the 1986 Act. In alignment with the United Nations Minimum Rules for the Administration of Juvenile Justice, 1985 the Act also required the establishment of separate homes for various age categories of children to separate younger offenders from the more mature ones. In each district, the Act provides for remand homes, juvenile justice boards and child welfare committees and provides for 4 categories of juvenile court: (i) observation homes, (ii) special homes, (iii) children’s homes and (iv) shelter homes and also, after-care organisations.
The Act contains a clause specifying the right of the child to engage in proceedings relating to him or her (Section 12). The Act also recognises that if proper justice is to be addressed to all child delinquents, civil society must be significantly involved. The Juvenile Justice (Care and Protection of Children) Rules, 2007 form a model of rules based on which each state should prepare its own rules that are required to better clarify how the Act will be enforced. The Act also provides for a Special Juvenile Police Unit to handle juveniles efficiently and for every police station or Child Welfare Officer to be trained and educated on carefully handling juveniles.
The ‘children in need of care and protection’ included children suffering due to armed conflict, natural disasters, civil unrest, children who are deemed vulnerable and likely to be inducted into substance abuse, etc. This provision has come under scrutiny, though this may be advantageous in itself, as the scheme remains predominantly custodial in nature, hence how useful it would be for a broader spectrum of children to be brought under the law.
The criticism of this Act is that it contradicts established principles of human rights that have been developed by States at an international level, while its preamble suggests that the law aims to comply with the same and to integrate international standards into domestic law. The 2000 Act is now heavily weighted in favour of detention in institutions, and the legislation promotes re-criminalization rather than de-criminalization by extending the powers of the police. The ‘best interest principle’ included in the Act had a protectionist stance in which the authorities under the Act used their value structure and belief system to assess and decide on the child’s best interest. Such a scheme may have community support, but it may not be in harmony with the changing outlook on the rights of children. The principle of best interest contradicts the principle of ‘right to participation’ which is also incorporated in the Act, leading to confusion as to whether or not the opinion of a child on his / her best interests can override the imposition of the same by the law by adults.[4]
The 2000 Act was revised, which gave way to the 2006 Amendment Act on Juvenile Justice (Care and Protection of Children). There were a total of 26 changes made to the parent Act. The 2012 Delhi rape case led to a national uproar about reforms in juvenile laws. The Juvenile Justice (Care and Protection of Children) Act, 2015 was adopted with comprehensive rights and protection for children both ‘in conflict with law’ and ‘in need of care and support’. In the case of heinous offences, seven years of imprisonment can be awarded, and in the case of minor offences, between three and seven years. Petty crimes require three years of incarceration. No child may be given life imprisonment or the death penalty.
The Act requires the establishment of Juvenile Justice Boards with a metropolitan magistrate and two social workers in each district zone, one of whom is a woman. The Boards will direct a preliminary investigation within a prescribed time-frame into a crime committed by a juvenile and then determine if the juvenile should be sent to a rehabilitation facility or a Children’s Court to be prosecuted like any other adult. Before coming to conclusions, the Board can take support and advice from psychologists and psycho-social volunteers and various specialists. It has been made compulsory to preserve anonymity regarding the child delinquent by the media.
“Concerning ‘children in need of care and protection’, Child Welfare Committees would be set up in each district with a chairperson and 4 other members having experience in dealing with children. Stress has been laid on adoption as well and the Central Adoption Resource Agency would frame rules for the adoption of orphaned children. Inter-country adoption has been permitted in case no Indian adoptive parents are found/available within 30 days of the child being declared open for adoption. Essential conditions for adoptive parents have also been laid down i.e., adoptive parents should be sound (both financially and physically), a single male may not adopt a girl child and specially-abled children would be given priority for adoption. Children can be allowed to be placed under foster care based on the mandate of CWC and the selection of foster family would be done based on ability, intent, capacity and prior experience of taking care of children. The Sale and Purchase of children are prohibited and invites imprisonment up to 7 years. Corporal punishment to children in child-care institutions is punishable. The juvenile justice law tries to protect the juveniles from every potential risk.”[5]
Potential Risks
The risks that can drive a child to crime can be defined as I individual risk, (ii) family risk, (iii) risk of mental health and (iv) risk of drug abuse. The ratio of IPC crimes recorded against juveniles to overall IPC crimes committed in the country in 2005 was 1.0%, which increased marginally to 1.1% 2015, according to data provided by the National Crime Records Bureau. It was also found that among juveniles in conflict with laws, the boys were disproportionately higher than girls. The ratio of girls to boys who were detained for crimes under the Indian Penal Code was 1:45 in 2015. In 2015, the largest number of cases were registered against juveniles under the crime head of ‘theft’ (19.2%), criminal trespass/burglary (8.3%), ‘rape’ (5.4%), kidnapping and abduction (5.2%) and injury caused by rash driving/road rage (4.9%). Together, these five crime categories accounted for 43% of the total of 31,396 IPC cases with regards to juveniles in conflict with the law.
Basis of Current Law
In Gaurav Jain[6] case, when dealing with a written petition under Article 32 of the Indian Constitution concerning the predicament of prostitutes and their offspring, drew attention to the Preamble of the Constitution and pointed out that children have the right to equality and the right to general well-being, integrity and treatment, to adequate safeguards and rehabilitation of society to make them available to society and that it is an integral part of the Indian Constitution. In Laxmikant Pandey v. UOI[7], the Hon’ble Supreme Court of India held that every juvenile has the right to proper care, assistance and affection, morality and proper protection, and this is only possible if the juveniles are brought up in a proper family and good atmosphere.[8] In Subramanian Swamy v. Raju[9], It acknowledged that if by determining the age of eighteen years, the legislature has adopted a legally acceptable demarcation between child criminals and adults, the court investigation must be curbed. It further maintained that there is a considerable mass of global outlook that it is appropriate to regard all people under the age of eighteen as infants, and separate treatment should be planned for them. It further specified that the affirmed subject was to guarantee their reintegration into society and to make it easier for juvenile offenders in the future to become functional members of society.
It was decided that recovery rather than punishment should be given a comparatively greater priority. Punishment does not always have an appropriate reaction to criminal offences committed by minors. Punishment, detention, alienation from society, exposure to abuse and torture in custodial environments by state officials, limitations on human contact, naming, shaming, labelling and stigmatisation can sometimes trigger more deviant conduct for the adolescent. This is known as ‘secondary deviance.’ Recent jurisprudence affirms the requirement for a reformative rather than a retributive justice system.
Current Challenges, Loopholes and Flaws in the Law
Limitations
In the beginning, the essence of the remedy offered by the Juvenile Justice Act is unclear. If the remedy is claimed to be of civil nature, the range of protective rights provided in criminal cases by the Constitution will cease to apply and would be treated as laws designed exclusively to protect and care for juveniles. On the contrary, if it were perceived as a punitive remedy for illegal acts, it will curb civil protections available to juveniles. [10]
Wailing over the inadequate implementation of criminal justice systems around the world, Gus Martin stated, “There are many stories describing incompetence, mistreatment, corruption, and cover-ups within dysfunctional juvenile justice systems.” The Hon’ble Supreme Court in Exploitation of Children in Orphanages in State of TN v. Union of India[11] ruled that “Even if bail is not granted, the child (in conflict with the law) cannot be kept in jail or police lockup and has to be kept in an observation home or place of safety”[12]. Where the judiciary has sought to ensure the safety and welfare of children, inquiries have uncovered the troubling facts of extreme corporal punishments being inflicted on juveniles sent to correctional facilities that are meant to provide a holistic development atmosphere and ensure the child’s transformation. As per a study from a leading Indian newspaper, “corporal and coercive punishments have been reported is close to half of 9,500 child care institutions and homes. Hitting, spanking, restrictions on movement, withholding food, rough language and intimidation practised as forms of the chastisement of inmates.”[13]
“Extensive powers have been conferred on the Juvenile Justice Board as it can mandate the trial of a child (between 16-18 years) as an adult after a preliminary assessment. It has been argued that this provision amounts to coming to a sentencing decision even before the guilt has been proven and it signifies a violation of the presumption of innocence as given under Section 3(i) of the Act, a vital tenet of the criminal justice system. In the case of Ryan International[14], a boy aged 16 years was initially denied bail and subsequently tried as an adult as per the instruction of the Board. The social investigation and psychological reports on which the Board constructed and decided the matter mentioned various social factors and settings that might have led to his alleged act, but the Board ignored them forthrightly. This implies a trend of many such cases of ‘child (in)justice’ that India might find its children entrapped, and paints a dispiriting picture for the future of juvenile delinquents and juvenile justice.”[15]
The impracticality of a precise evaluation of mental capacity/maturity for the transition of a child’s trial to Children’s Court is another major restriction of the Act. It will also be rife with inaccuracies and arbitrariness and would make it possible for innate preconceptions to dictate which child must be assigned to an adult court. Also, the very belief that children between the ages of 16 and 18 are eligible to stand trial as adults is not exempt from gender prejudice. A related issue is that it would not be appropriate to expose a child to the adult criminal justice system if the legal system would not authorise a child under the age of 18 to drive, vote, enter into contracts, marry or own land, an argument put forward by the interveners (Thukral and Asthana 2015) and also observed by the Hon’ble Supreme Court itself in the Salil Bali case[16]. The Parliamentary Standing Committee has argued that the inclusion of children into the criminal justice system constitutes a breach of Article 21 because the procedures found therein are incompatible with the standards for children.[17]
Furthermore, proviso of Section 24(2) of the Convention on the Rights of the Child (CRC) provides that the preservation of information of a juvenile is punishable by a breach of the right to privacy according to Articles 16 and 40(2)(b)(vii) of the CRC, which applies to ‘all stages of proceedings,’ including ‘from initial contact with law enforcement until the final decision by the competent authority, or release from supervision, custody or deprivation of liberty.’ Sections 19(3) and 20(2)(ii) explicitly violate Article 37(c) of the CRC, which speaks of the separation of juveniles from adults and does not mean that a child placed in a child care facility must be transferred to an adult care facility immediately after he or she turns eighteen.[18]
Conclusion
The law is indeed a progressive and a comprehensive one but there are still some concerns that need to be addressed. The inadequate execution of services by community-based organisations is one of the issues to be taken into account, primarily due to the insufficient monitoring of government agencies. The preservation and enhancement of human rights and, in particular, of juvenile rights are not seen as a topic of significance. Another problem in today’s age is disproportionate usage and abuse of technology. Children have been introduced to a more hostile environment by the internet, leading them to commit crimes or increasing their chances of becoming victims of cybercrimes. The non-inclusion of bail provisions for crimes committed by children under NDPS or UAPA in Section 12 will be part of the flaws in the Act. The correction of these issues would make the law completely effective and beneficial for the juveniles.
Frequently Asked Questions
- Is a lawyer required in juvenile cases as well?
Ans: A lawyer may be required in juvenile cases but this becomes the duty of the Juvenile Justice Board to ensure that the juvenile is given the required legal aid and guide them through the legal procedures.
- Enlist the fundamental principles that guide the functioning of the Juvenile Justice Board?
Ans: There are 16 fundamental principles as mentioned in Section 3 of the Juvenile Justice Act, 2015. They are:
- Principle of presumption of innocence
- Principle of dignity and worth
- Principle of participation
- Principle of best interest
- Principle of family responsibility
- Principle of safety
- Positive measures
- Principle of non-stigmatising semantics
- Principle of non-waiver of rights
- Principle of equality and non-discrimination
- Principle of right to privacy and confidentiality
- Principle of institutionalisation as a measure of last resort
- Principle of repatriation and restoration
- Principle of fresh start
- Principle of diversion
- Principles of natural justice.
Assessment Questions
- What is the definition of a child in conflict with law?
- Under which act were children punished as apprentices?
- Which International convention did India ratify in 1992?
- List the articles of the Indian Constitution that focus on children.
- In which was it held that children would not be kept in police custody even if they do not get bail?
References
[1] Art. 40 cl. 1, United Nations Convention on the Rights of the Child (1990).
[2] https://www.youtube.com/watch?v=3mIEFwhFeGE&t=317s.
[3] Ibid.
[4] https://www.youtube.com/watch?v=-abBF6joRjY&t=889s.
[5] https://www.gktoday.in/gk/juvenile-justice-care-and-protection-of-children-act-2015/.
[6] Gaurav Jain v. Union of India AIR 1997 SC 3021.
[7] Laxmikant Pandey v. Union of India and Ors. AIR 1992 SC 118.
[8] Vaibhav, Shruti Katiyar, Juvenile justice system in India and contemporary challenges, 4 International Journal of Law 34, 36 (2018).
[9] Subramanian Swamy v. Raju Thr. Member, Juvenile Justice Board (2014) 8 SCC 390.
[10] N.M. Khirale, Juvenile Justice: Issues and Challenges, 6 EPRA International Journal Of Multidisciplinary Research 51, 53 (2020).
[11] Exploitation of Children in Orphanages in State of Tamil Nadu v. Union of India 2020 SCC OnLine SC 576.
[12]https://lawsisto.com/legalnewsread/MzUxNQ==/Child-in-conflict-with-law-cannot-be-kept-in-Police-Custody-or-Jail-SC.
[13]https://timesofindia.indiatimes.com/india/corporal-punishment-in-50-of-child-homes-report/articleshow/67607252.cms.
[14] Ryan Augustine Pinto v. State of Haryana and Anr. CRM-M-35002-2017 (O&M).
[15] Shailesh Kumar, Shifting Epistemology of Juvenile Justice in India, 41(1) Contexto Internacional 113, 128 (2019).
[16] Salil Bali v. Union of India (2013) 7 SCC 705.
[17] Kumar, supra note 20.
[18] Ibid.
