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The Law Related To Juvenile Justice System In India: A Critical Analysis

Juvenile justice is probably the area that's most ripe for reform, in the nice liberal sense of the word, simply because there's no getting around the fact that a teenage brain is not an adult brain. - Robert Sapolsky

The word juvenile originated from a latin word 'juvenis', which means young.

In India, The term 'juvenile' has been defined in clause (h) of Section 2 of the Juvenile Justice Act, 1986:
(h) 'Juvenile' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years;

The term 'delinquency' has been defined in clause (e) of section 2 of the Juvenile Justice Act, 1986:
(e) 'Delinquent juvenile' means a juvenile who has been found to have committed an offence

There are many reasons like family environment, mental disorder, social disorganization etc. because of which a child commits crime and when a child repeatedly commits a crime he is known as Juvenile delinquent.

Juvenile delinquency or criminal activity by children below the age of 18 years continues to be a hot topic of discussion following the involvement of a juvenile in the Nirbhaya gang rape case that shook the nation in December 2012. The latest 'Crime in India' report published by NCRB for the year 2018 stated that a total of 31,591 crimes committed by juveniles were reported in 2018. Maharashtra alone accounted for 19% of these cases.

The number of 'Juveniles in conflict with law', according to NCRB, reflects the reported number of crimes committed by children below 18 years of age. Maharashtra reported the largest number of cases under this category in 2018, accounting for almost 19% of the national total. Not far behind, Madhya Pradesh accounted for 16.6% of the crimes. Incidentally Madhya Pradesh reported the greatest number of such cases in 2017. Delhi with 8.6% of the cases was third in the list. The top 10 states together accounted for 81.7% of the cases in 2018.

The majority of the crimes committed by juveniles were offences affecting human body and property. 92% of the cases involving juveniles were IPC related crimes. The maximum number of cases, including both IPC and SLL, were that of offences affecting human body (37.7%). This included hurt and grievous hurt (47%), rape (13%) and assault on women to outrage her modesty (12%) among many others.

Property related offences amounted to 37.6% of all crimes involving juveniles. Theft alone constituted 70% of these offences followed by burglary constituting 16.8% and robbery accounting for 10%. Cases under the POCSO Act, 2012 accounted for 45.4% of the cases under SLL.

Most commonly presumed reason behind the involvement of juveniles in crimes is their education and parenting. 91% of the juveniles had received at least primary level education. The 2018 data reveals that almost 45% of the juveniles involved in these cases were educated between matriculation and higher secondary. About 28% had education up to primary level. Some 9% were illiterate.

The family background as per NCRB report is the set up in which a juvenile was living. While almost 85% of the apprehended juveniles lived with their parents, 9% lived with guardians and only 6% were homeless.

Another startling fact is that 99.3% of the juveniles involved in these cases were boys and around three-quarters of the juveniles were between 16 to 18 years of age. A total of 382 juveniles or about 1% of all were below 12 years of age.

Overall, in fifteen years, the number of crimes committed by juveniles has increased by about 65%. During this period, 2016 saw the highest number of crimes by juveniles. Since then, the number has decreased by 6% each year.

Juvenile justice is a system of law that is intended to protect and promote the human rights of all young people. It is a branch of law that deals with minor / under-aged persons who have been accused of offences or who are neglected or abandoned by their parents / guardians. It is more concerned with the rehabilitation of its charges than is adult criminal justice.

In the context of juveniles accused of offences, termed as juveniles in conflict with the law, international standards emphasize the importance of prevention as well as rehabilitation. International standards recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth.

Juvenile justice policy in India is largely governed by the constitutional mandate given under Article 15 that guarantees special attention to children through necessary and special laws and policies that safeguard their rights. The policy is also founded on the constitutional guarantees such as the right to equality, protection of life and personal liberty and the right against exploitation (enshrined in Articles 14, 15, 16, 21, 23 and 24). The Indian Constitution emphasizes on the duty of the State to prevent exploitation of children, and to promote children's welfare.

A separate justice system is provided for dealing with the juveniles in India. It is concerned that when the juveniles are left upon on the same judicial mechanism or procedure like as of the adult offenders, then the juvenile may themselves gets victimized by the system itself. It is based on the principal of Doli Incapax (child cannot procure criminal intention).

Thus it had developed a different kind of justice system, both in respect of its procedure and facilities, like manner of interrogation of children by police, attitude of the lawyers, perception of judges regarding decision of guilt, handling by prison staff, living, educational, recreational conditions, safety purposes also program of rehabilitation and reintegration

The Juvenile Justice System In India Is An Absolute Necessity As Enumerated By The Following Reasons:
  1. To protect citizens and the community from crimes committed by young people.
  2. To hold youth who commit crimes accountable for their actions.
  3. To provide individualized assessments to rehabilitate and prevent further delinquent behavior through the development of educational, vocational, social, emotional and basic life skills which enable youth to grow and mature.
  4. To provide youth and all other interested parties fair hearings at which legal rights are recognized and enforced.

The present law, Juvenile Justice (Care and Protection of Children) Act 2000, amended in 2006, was replaced in 2015 by a new law Juvenile Justice (Care and Protection of Children) Act 2015.

The juvenile justice system in India is attracting increasing interest due to the fact that in the past few decades, there has been an unprecedented increase in the crimes by children who are below the age of 18 years, most famously in the 2012 Nirbhaya gang rape case. This should serve as a warning to Indian society, as children are the paragon of development and future of a nation. So, a safe and healthy environment must be provided for utmost nurture of their character.

Add to that the fact that according to the latest census 2011 data shows that around 41 percent of India's is below the age of 20 years. This means that it is the need of the hour not only to uproot the menace of juvenile delinquency but also create permanent solutions to keep a control on the problem of Juvenile Delinquency. We truthfully don't desire to live in a society made dangerous by anti-social elements. Such a society would be uncivilized and stunted by the endless cycle of crime and violence.

In the best interest of the delinquent that he or she should be rehabilitated as early as possible and integrated back in the society. I also feel that the State must protect the rights of these children and come up with reformative methods and instill in them values that can socially uplift them and give them a new found confidence so that they can play a constructive and productive role in the society. Judging by recent statistical data, the next decade is likely to witness a considerable rise in crimes by juveniles.

The core problem of the juvenile justice system in India seems to be that it does not have a strong deterrent effect on the anti social behavior of youth. Juvenile offenders believe that committing heinous crimes is no issue as they will get away scot free with very little or no punishment in name of reformation and the excuse of their immaturity, leading to increased recidivism. Concerns have arisen which call into question the validity of the Juvenile Justice system of India.

This research paper is an overview of the Juvenile Justice system of India in which it is presented, critically analyzed, investigated and discussed in order to increase my overall knowledge of the Juvenile Justice system of India. This paper calls into question, takes a new look at and re-examines the law related to juveniles in India.

Reasons For Juvenile Delinquency

When a minor commits a crime, it is addressed differently in the court system. Special courts and judges are set up for handling juvenile delinquency cases. This is done to protect the minors from the harsh realities of adult court and sentencing. It is the belief of the legal system that minors who commit crimes are not completely aware of their actions.

They believe the thought and decision-making process of a minor is not fully developed and the court wishes to approach these cases in a different manner. In many circumstances, a minor can overcome the crime that was committed and go on to lead an adult life that is crime-free. It is only under special circumstances that the court will allow a minor to be tried as an adult because the system prefers rehabilitating minors instead of punishment.

So, why do juveniles commit crime? What are the Causes of juvenile delinquency?
Turning to criminal acts is often a result of other issues in the life of a minor. It is because of this the court system tries to approach criminal acts differently with underage offenders than with adults. Understanding the causes of juvenile delinquency is an integral part of preventing a young person from involvement in inappropriate, harmful and illegal conduct.

Some Of The Reasons That Are Most Common For A Minor To Turn To Juvenile Delinquency Include:
Individual Risk Factors
Several risk factors are identified with juvenile delinquency. A minor who has a lower intelligence and who does not receive a proper education is more prone to become involved in delinquent conduct. Other risk factors include impulsive behavior, uncontrolled aggression and an inability to delay gratification. In many instances, multiple individual risk factors can be identified as contributing to a juvenile's involvement in harmful, destructive and illegal activities.

Family Risk Factors
A consistent pattern of family risk factors are associated with the development of delinquent behavior in young people. These family risk factors include a lack of proper parental supervision, ongoing parental conflict, neglect and abuse (emotional, psychological or physical). Parents who demonstrate a lack of respect for the law and social norms are likely to have children who think similarly. Finally, those children that display the weakest attachment to their parents and families are precisely the same juveniles who engage in inappropriate activities, including delinquent conduct.

Mental Health Risk Factors
Several mental health factors are also seen as contributing to juvenile delinquency. It is important to keep in mind, however, that a diagnosis of certain types of mental health conditions--primarily personality disorders--cannot be made in regard to child. However, there are precursors of these conditions that can be exhibited in childhood that tend to end up being displayed through delinquent behavior. A common one is conduct disorder. Conduct disorder is defined as a lack of empathy and disregard for societal norms.

Substance Abuse Risk Factors
Substance abuse is found in a majority of cases of juvenile delinquency. Two trends are identified in regard to substance abuse and minors. First, juveniles are using more powerful drugs today than was the case as recently as 10 years ago. Second, the age at which some juveniles begin using drugs is younger.

Children in elementary schools are found to be using powerful illegal drugs. The use of these illegal substances or the use of legal substances illegally motivates young people to commit crimes to obtain money for drugs. Additionally, juveniles are far more likely to engage in destructive, harmful and illegal activities when using drugs and alcohol.

Sexual Abuse Factors
Child sexual abuse can result in both short term and long-term harm, including psychopathology in later life. Physical and social effects including depression, post-traumatic stress disorder, poor self-esteem, anxiety disorders, general psychological distress and disorder are instilled in them.

Not all victims of child abuse and neglected child experience behavior consequence. Studies have found abused and neglected children to be at least 25% more likely to experience problem such as Delinquency, teen pregnancy, drug use and mental health problem. According to National Institute of Justice Study, abuse and neglected children were 11 times more likely to be arrested for criminal behaviour. A Juvenile is 2.7 times more likely to be arrested for violent and criminal behaviour than an adult.

Historical Evolution Of Juvenile Justice Laws In India

Historical development of juvenile justice in India can be divided into six phases through reference to the treatment of children, legislative developments, judicial Intervention and other government policies. These six phases are: a) prior to 1773; b) 1773 - 1849; c) 1850 1919; d) 1919 - 1950; e) 1950 2000; and f) 2001-2015
  1. Status of Juvenile Justice Prior to 1773
    Both Hindu law (Manusmriti) and Islamic law (Sharia) prescribes for maintenance and proper upbringing of the children and it was the sole responsibility of parents to provide care and protection to the children and if the families were unable or incapable, someone from the community took care of the children.

    According to Islamic law if anyone found an abandoned child and felt that child would be harmed, then he was under a duty to take care of the child. A close examination of Manusmriti and Sharia indicate that children were prescribed different punishments for the commission of certain offences. For example, under Hindu law, if a child was found throwing filth in public, he had to clean the place while an adult had to pay the fine.

    In Muslim law, there is a specific Injunction which forbade execution of children. Provisions in the traditional texts show that children were treated separately and differently from adults, with a focus on special care for their survival; they were not held fully responsible for their actions as adults were
     
  2. Status of Juvenile Justice 1773 - 1849
    During this period, India was predominantly dominated by the East India Company which started as a trading company in 1608. After the company failed, the Crown took over the reins, through the Governor General. This was the period when the momentum in reforms started gaining pace and the affect was also visible. Colonial exploitation ruined the agrarian economy forcing the deprived class to live in slums or the city outskirts.

    This increased destitution and delinquency among children.18 The year 1773 was a benchmark in the Indian legal system, as the Regulating Act of 1773 granted East India Company, the power to make and enforce laws and further the Charter Act of 1833 changed the commercial status of the company, into a governing body. Between 1773 and1850, many committees were established focusing on children in jails.

    In this phase, welfare mechanism for children took different forms. Krishna Chandra Ghoshal and Jai Narayan Ghoshal approached the then Governor General for establishing homes for destitute juveniles in the major trading city of Calcutta. Similarly the first Ragged School for vagrant and orphan children was established in 1843 at Bombay, which is now known as David Sasson Industrial School.

    The objective was to reform the child delinquents who were arrested, by encouraging them to work through apprenticeship and Industrial Training, which prepared the base for passing the Apprentices Act 1850. The approach adopted was largely welfare-oriented and needs-based.
     
  3. Status of Juvenile Justice 1850-1919
    In 1850, the Apprentices Act was passed, to keep juveniles out of jails and subsequently, by the Report of the All-India Jail Committee, 1919-1920, children were segregated from the prevalent criminal justice system. This period saw passing of specific legislations concerning children, the first of which that provided a special status to juveniles was the Apprentices Act 1850. Children who were vagrants and committed petty offences in age group of 10-18 years were made to undergo their sentence as apprentices.

    The objective of the law was to channelize the energy of children and divest their minds, from criminal influence and make them work so that after reaching majority they can earn a living. Subsequently, the Indian Penal Code, 1860 fixed the age limitations for criminal culpability of juveniles under Sections 82 & 83 of the Code. The said sections provided protection to children from criminal prosecution until they had developed cognitive faculties to understand the nature of their actions.

    The Code of Criminal Procedure 1861, and 1898, in three sections S. 298, 399 & 562 - prescribed for separate trial for the persons below the age of 15 years and required that they should be confined in reformatories rather than in adult prisons. This changed the approach towards and treatment of juveniles from punishment to reformation.

    As prison reports constantly pointed towards the change in policy and administration, noticing high rate of perpetrators and increase of juvenile offenders, especially in Pune, where the number alarmingly increased from one to sixty five between 1860-1861, the Whipping Act of 1864 was passed by the government with the aim of deterring children from committing crimes in future, by whipping them for certain crimes, which in consequence would and save the government of the investment, to establish reformatories for the juveniles.

    The period between 1872 and 1875, witnessed juvenile prisons running smoothly and satisfactorily in terms of health and conduct of the juvenile offenders as they were provided mechanical and scholastic education and other after care facilities while at other places the proportion of juveniles to the total imprisoned was increasing so segregation of them became a necessity.

    This different treatment of juveniles was strengthened by The Reformatory Schools Act 1876 which provided that boys under the age of fifteen who were imprisoned or transported should be placed in the reformatories. The period of incarceration was specified to be not less than three years and not be more than seven years.

    The second Reformatory Schools Act of 1897 dealt specifically with the treatment and rehabilitation of juvenile delinquents in the age group of seven and fifteen years but it did not establish such places for girls. Children of the criminal tribes received special attention after the enactment of criminal tribes (amendment) Act 1897.

    It provided for establishing agricultural and reformatory schools for the children of criminal tribe members in age group of four to eighteen years. The Code of Criminal Procedure of 1898 extended imprisonment at the reformatory schools for the juveniles until they completed the age of eighteen years, and then prescribed that they be placed on probation till they are twenty-one.
     
  4. Status of Juvenile Justice 1919-1950
    The Indian Jail committee was established in 1919-1920, which urged to the British government for establishing separate institutions and to have separate trials for the juveniles. It further urged that juveniles should compulsorily be given bail in most cases and their reformation and rehabilitation should be the motive of the law.

    Further, the League of Nations Declaration instigated Madras (1920), Bengal (1922), and Bombay (1924) in enacting the Children Acts and later the Delhi Children Act 1941, Mysore Children Act 1943, The Travancore Children Act 1945, The Cochin Children Act 1946, and the East Punjab Children Act 1946. Although Bengal Children's Act was passed subsequently; it had a juvenile court from 1914 onwards. Madras Children's Act was the first delinquency law in India.

    However, it did not use the term delinquent instead defined a 'child', as anyone under the age of fourteen years, a 'young' person from fourteen to eighteen years and a 'youthful offender' under the age of eighteen years who has been convicted of offence mentioned in Indian Penal code or any other special or local laws for which an offender can be incarcerated.

    One of the most significant legislations pertaining to street or vagabond children - The Vagrancy Act 1943 - was enacted and it provided for care and training for children below fourteen years living on begging or who lacked proper guardianship, or had parents who were involved in criminal habits and drinking, visiting prostitutes or were destitute.
     
  5. Status of Juvenile Justice 1950-2000
    By 1960 many states had that varied established separate systems and laws for juveniles in terms of definitions, their procedural requirements and so much so their implementation, also varied. In 1960 the Union government enacted The Children Act 1960, which was also applicable to Union Territories and was directly administered by the Union government.

    The Children Act 1960 was intended to serve as a model for the various state legislations, as well as became the basis for the Central law passed as Juvenile Justice Act 1986. The Supreme Court, in its judgment in Sheela Barse's case, played a pivotal role in triggering the passing the uniform law on juvenile justice, as it stated that children in jails are entitled to special treatment and recommended that the Parliament enact a uniform law which is applicable throughout the country.

    Parliament invoked its power under Article 253 of Constitution of India in making the juvenile justice law in India, in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules 1985) and abided with other international obligations cast which India had ratified.

    For the first time the Juvenile Justice Act 1986 mandated care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for adjudication and disposition of juvenile delinquency matters throughout country. The Act formulated separated procedures for the juvenile delinquents and neglected juveniles, by establishing separate juvenile courts and juvenile welfare boards.

    Juvenile courts handled the offences committed by girls under the age of eighteen years and sixteen years for the boys accused of committing crime. Under the 1986 law, juvenile delinquents are defined as persons below specified ages who committed certain acts that would be treated as crimes if committed by adults.

    These juveniles are processed through special courts following the due process of law, applied to adult offenders with an exception that these proceedings are to be held in private and be kept confidential and as far as possible be non-judicial in nature. The delinquents who are convicted could be fined or placed under supervision for a maximum of three years but they cannot be executed or imprisoned or jailed.

    A major aim of the 1986 Act was to bring the domestic law in conformity with the UN Standard of 1985. However, this aim was not fully achieved, which necessitated the formulation and passage of a new law in 2000.
     
  6. Status of Juvenile Justice 2000-2015
    The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework for juvenile justice in India. The Act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system.

    This law, brought in compliance of the 1989 UN Convention on the Rights of the Child (UNCRC), repealed the earlier Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992. This Act has been further amended in 2006 and 2010.

The Act is considered to be extremely progressive legislation and the Model Rules 2007 have further added to the effectiveness of this welfare legislation. However, the implementation is a very serious concern even in 2013 and the Supreme Court of India is constantly looking into the implementation of this law in Sampurna Behrua V. Union of India and Bachpan Bachao Andolan V. Union of India.

In addition to the Supreme Court, the Bombay and Allahabad High Courts are also monitoring implementation of the Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System, the Government of India launched the Integrated Child Protection Scheme (ICPS) in 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme.

This Is An Act Which Aims To:
  1. Consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection (Replace Juvenile justice Act, 1986
  2. Provide for proper care, protection, treatment and cater to their development needs
  3. Provide a child-friendly approach keeping their best interest in mind while dealing with them

This act sources it's principles and foundations in:
  1. The Constitution of India: Article 15(e), 39 (e) & (f), 45, 47
  2. United Nations Convention on Rights of the Child (UNCRC), 1989 (Ratified by India in 1992 (with a reservation on child labour eradication alone))
  3. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules)
  4. United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990

Juvenile Justice (Care and Protection of Children) Act, 2015 had been passed by Parliament of India amidst intense controversy, debate and protest on many of its provisions by Child Rights fraternity. It replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allows for juveniles in conflict with Law in the age group of 1618, involved in Heinous Offences, to be tried as adults.

The Act also sought to create a universally accessible adoption law for India, overtaking the Hindu Adoptions and Maintenance Act (1956) (applicable to Hindus, Buddhists, Jains, and Sikhs) and the Guardians and Wards Act (1890) (applicable to Muslims), though not replacing them. The Act came into force from 15 January 2016.

It was passed on 7 May 2015 by the Lok Sabha amid intense protest by several Members of Parliament. It was passed on 22 December 2015 by the Rajya Sabha.

To streamline adoption procedures for orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority (CARA) has been given the status of a statutory body to enable it to perform its function more effectively. A separate chapter on Adoption provides detailed provisions relating to adoption and punishments for noncompliance. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption.

As of 2019, Ministry of Women & Child Development of Government of India is working towards bringing an amendment, primarily to remove courts from adoption process, to handover it to Executive Magistrates/ District Magistrates and to make Child Welfare Committees administratively and judicially subordinate to District Magistrate, despite nationwide protest against such a move.

The Ministry of Women and Child Development began contemplating several desired amendments in 2011 and a process of consultation with various stake holders was initiated. The Delhi gang rape case in December 2012 had tremendous impact on public perception of the Act. One of the accused in the 2012 Delhi gang rape was a few months younger than 18 years of age and under the Act was tried in a juvenile court.

Eight writ petitions alleging the Act and its several provisions to be unconstitutional were heard by the Supreme Court of India, prompting the juvenile court to delay its verdict. In the second week of July 2013 the Supreme Court dismissed the objections, holding the Act to be constitutional. Demands for a reduction of the age of juveniles from 18 to 16 years were also turned down by the Supreme Court, when the government of India stated that there is no proposal to reduce the age of a juvenile.

On 31 August 2013 the case returned to the juvenile court and a sentence of 3 years in a reform home was handed down. The victim's mother criticized the verdict and said that by not punishing the juvenile the court was encouraging other teenagers to commit similar crimes.

In July 2014, Minister of Women and Child Development, Maneka Gandhi said that they were preparing a new law which will allow 16-year-olds to be tried as adult. She said that 50% of juvenile crimes were committed by teens who thought that they get away with it. She added that changing the law, which will allow them to be tried for murder and rape as adults, would scare them. The bill was introduced in the Parliament by Maneka Gandhi on 12 August 2014. On 22 April 2015, the Cabinet cleared the final version after some changes.

A revamped Juvenile Justice Bill was passed in the Lok Sabha on 7 May 2015. The new bill will allow minors in the age group of 16-18 to be tried as adults if they commit heinous crimes. The crime will be examined by the Juvenile Justice Board to ascertain if the crime was committed as a 'child' or an 'adult'.

The bill will allow a Juvenile Justice Board, which would include psychologists and social workers, to decide whether a juvenile criminal in the age group of 1618 should be treated as an adult or not. The bill introduced concepts from the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 which were missing in the previous act. The bill also seeks to make the adoption process of orphaned, abandoned and surrendered children more streamlined.

The bill introduces foster care in India. Families will sign up for foster care and abandoned, orphaned children, or those in conflict with the law will be sent to them. Such families will be monitored and shall receive financial aid from the state. In adoption, disabled children and children who are physically and financially incapable will be given priority. Parents giving up their child for adoption will get 3 months to reconsider, compared to the earlier provision of 1 month.

A person giving alcohol or drugs to a child shall be punished with 7 years imprison and/or ₹100,000 fine. Corporal punishment will be punishable by ₹50,000 or 3 years of imprisonment. A person selling a child will be fined with ₹100,000 and imprisoned for 5 years.

One of the most criticized steps in the new JJ Bill 2015 is introduction of 'Judicial Waiver System' which allows treatment of juveniles, in certain conditions, in the adult criminal justice system and to punish them as adults. This is for the first time in India's history that such a provision has been prescribed. Given to the severe criticism, Bill was referred to a Standing Committee of Parliament which also rejected such provisions. Since recommendations of Parliament's Standing Committee are not binding, Government has moved ahead and introduced the Bill in Lok Sabha, where it stands passed.

The bill is also criticized for prescribing an opaque Age Determination System and its poor draft. There are numerous drafting errors which have been coming to notice after the Bill has been rolled out for implementation on 15 January 2016. As of now the present Government is working on an amendment to solve such errors.

The bill now stands Passed in Rajya-Sabha on Tuesday 22 December 2015, after the Nirbhaya case accused juvenile was released

Constitutional Provisions And Safeguards For Children In India

After Independence, the constitutional provisions have inspired the developments in the field of juvenile justice. Part III and Part IV which deal with Fundamental Rights and Directive Principles of state Policy respectively contain some special provisions with respect to children.
  1. Article 15(3): Permits the State to make special provisions for children and women
  2. Article 23: Prohibits the traffic in human beings and forced labour
  3. Article 24: Forbids the employment of children below the age of 14 years in factories, mines and other hazardous occupations
  4. Article 39 (e): Directs the State to safeguard the tender age of children from entering into jobs unsuited to their age and strength forced be economic necessity
  5. Article 39 (f): Directs the State to secure facilities for the healthy development of children and to protect childhood and youth against exploitation and moral and material abandonment.
  6. Article 45: Requires the State to provide free and compulsory education to all children up to age of 14 years.
  7. Article 47: states it is the duty of the state to raise level of nutrition and standard of living. Parliament has enacted the 86th Constitutional amendment in 2002 and made Right to Education a fundamental right.

Brief Comparative Analysis Of Juvenile Criminal Law Of Foreign Countries

It is absolutely essential to compare the juvenile justice systems of India with other countries as we need to ensure that we have an adequate and modern legal system and it helps to note how our country is lagging behind as others keep on progressing.

France:
France has three stages of criminal minor:
  1. The infant, who doesn't have his own perception of his acts yet, doesn't commit any offence and consequently, can't be convicted.
  2. Minor between 7/8 and 13 years old, has its own discernment. No criminal punishment, but educative measure can be pronounced against him, since a 2002 law.
  3. Minor between 13 and 18, commit an offence, and punishment can be educational and criminal in special cases.

USA:
In the U.S.A., the juvenile's definition varies from state to state. The system applies to anyone between the age of 6-10 depending on the state and 18 except for eleven states (including Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, South Carolina, and Texas) where a juvenile is a person under 17 and New York and North Carolina where it is under 15. So the criminal majority begins at 16, 17 or 18 years old. In France, the criminal irresponsibility of children under 13 is defined by the article 122-8 of the criminal code. Young aged between 13 and 18 are assumed irresponsible, but they can be involved in a criminal sentence if circumstances and juvenile delinquent personality justify it.

United Kingdom:
Youth Justice system in England considers that the young people are offenders under the age of 18, or in some cases aged 18 but remaining in the under 18 estate, and will be held in either a Secure Children's Home (SCH), a Secure Training Centre (STC) or a Young Offender Institution (YOI). The Youth Justice Board is responsible for placing young people in custody and typically those aged under 15 will be held in an SCH and those over 15 will be held in either a YOI or STC. Only 17-year-old female young people are normally placed in a YOI.

Canada:
The YCJA (Youth Criminal Justice Act) governs the application of criminal and correctional law to those 12 years old or older, but younger than 18 at the time of committing the offence. Youth aged 14 to 17 may be tried and/or sentenced as adults under certain conditions, as described later on in the act. Though all trials will take place in a youth court under the Youth Criminal Justice Act, for certain offences and in certain circumstances a youth may receive an adult sentence.

Italy:
Article 98 sub section1 of Italian Penal Code states that in turn a person who has reached the age of 14 but not 18 at the time of committing a crime and who is 'capable of understanding and willing' must be punished but the punishment may be reduced. Between the ages of 14-18 the ability to understand and to form mental intent must be clearly ascertained in each case by the presiding judge. Concerning the decisions that the court can impose, the penal code states that the orders and sentences applicable to adults may also be applied to minors with considerable latitude and reductions. If the youth is deemed likely to re-offend he/she can be confined to a judicial reformatory.

Germany:
Only a small part of the convicted juveniles is sent to prison; in 2009, unsuspended youth penalty was imposed on 2,076 convicted minors only. Unsuspended youth penalty in Germany means high security prisons for duration of 6 months up to 5, or in exceptional cases, 10 years. The minimum length of youth imprisonment is six months, the maximum five years for 14 -17-year-old juveniles. In cases of very serious crimes for which adults could be punished with more than ten years of imprisonment, the maximum length of youth imprisonment is ten years. In the case of 1820-year-old young adults sentenced according to the JJA the maximum penalty is ten years, too. The preconditions for youth imprisonment are either the dangerous tendencies of the offender that are likely to exclude community sanctions as inappropriate, or the gravity of guilt concerning particular, serious crimes (like murder, aggravated robbery etc.

Pakistan:
Where a child under the age of fifteen years is arrested or detained for an offence, which is punishable with imprisonment of less than ten years, shall be treated as if he was accused of commission of a bailable offence. No child under the age of fifteen years shall be arrested under any of the laws dealing with preventive detention or under the provisions of Chapter VIII of the Criminal Procedure Code.

Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life.

Despite the variance in specific issues across regions, some general comments can be made about the administration of juvenile justice. While the majority of the countries have committed in principle to a comprehensive juvenile justice system, with many having specific legislation for young offenders, there remains a lack of full implementation in practice.

Critical Analysis And Criticism Of Juvenile Justice Laws In India

I will be focusing my attention especially to the Juvenile Justice (Care And Protection Of Children) Act, 2000 and its amended form the Juvenile Justice (Care And Protection Of Children) Act, 2015, as they are the most relevant and impactful juvenile justice laws in India.
  1. Juvenile Justice (Care And Protection Of Children) Act, 2000
    Juvenile Justice (Care And Protection Of Children) Act, 2000 The Act is a central Act and primary legal framework for juvenile justice in India, which came into force on April 1, 2001, throughout the country. The act provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. It is based on (i) provisions of the Indian Constitution; (ii) United Nations Convention on Rights of the Child, 1989; (iii) United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules); (iv) United Nations Rules for the Protection of Juveniles deprived of their Liberty, 1990.

    The Juvenile Justice Act, in its preamble itself signifies the need of the child care by providing that it is an Act to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment. Recently the exhaustive amendments of 2006, and rules framed in the year 2007 is credit worthy as it incorporates many aspects regarding juveniles.

    The Act is considered to be extremely progressive legislation and the Model Rules 2007 have further added to the effectiveness of this welfare legislation. However, the implementation is a very serious concern even in 2013 and the Supreme Court of India is constantly looking into the implementation of this law in Sampurna Behrua Versus Union of India and Bachpan Bachao Andolan Versus Union of India.

    In addition to the Supreme Court, the Bombay and Allahabad High Courts are also monitoring implementation of the Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System, the Government of India launched the Integrated Child Protection Scheme (ICPS) in 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme.

    A separate petition titled Deepika Thusso Versus State of Jammu and Kashmir is also pending consideration before the Supreme Court on implementation of the Juvenile Justice Act, 1997 which is applicable in the State of Jammu and Kashmir.

    Based on a resolution passed in 2006 and reiterated in 2009 in the Conference of Chief Justices of India, several High Courts have constituted 'Juvenile Justice Committees headed by sitting judges of High Courts. These committees supervise and monitor implementation of the Act in their jurisdiction.

    Salient features of Juvenile Justice (care and protection of children) Act 2000:
    1. *
      1. The Act known as 'The Reformatory Act' deals with two categories of children, namely children in need of care and protection and children in conflict with the law.
      2. The competent authority to deal with children in need of care and protection is the Child Welfare Committee which constitutes a Chairperson and four other members, one of whom atleast should be a woman.
      3. Juvenile Justice Board (JJB) is the competent authority to deal with children in conflict with law which comprises of three members. The Chairperson of the Board should be a First Class Judicial Magistrate and two honorary social workers out of whom at least one should be a woman.
         
    2. The Act provides for the establishment of various kinds of Institutions such as:
      Children's Home for the reception of child in need of care and protection. - Special Homes for the reception of child in conflict with law - Observation Homes which are meant for the temporary reception of children during the pendency of any inquiry. - After-care Organizations which are meant for the purpose of taking care of children after they have been discharged from Children's Home or Special Homes.
       
    3.  A few sections in the Act (Sec 23 26) are focused on the offences committed by anyone against a child such as assault, causing mental or physical suffering and employment of a child which are considered as non bailable offences. iii. Rules under the Juvenile Justice (Care and Protection of Children) Act 2000 (56 of 2000) and the Amendment Act 33 of 2006):
      The Ministry of Women and Child Development at New Delhi, the 26th day of October, 2007 notified the Model Rules under the Juvenile Justice (Care and Protection of Children) Act 2000 and the Amendment Act 2006 to be administered by the States for better implementation and administration of the provisions of the Act in its true spirit and substance.

      These rules called the Juvenile Justice (Care and Protection of Children) Rules, 2007 has come into force on the date of its publication in the Official Gazette and these Rules will be conformed to until the concerned State Government formulates Rules specific for the State with effect to implementation of the JJ Act.

      The Act in Section 68 prescribes various areas wherein the Rules can be applied to for better implementation of the Act, specifically with management of the homes, standards to be adhered to, roles and responsibilities of the JJ functionaries, procedures and functioning of the competent authorities, rehabilitation mechanism and operation of JJ Fund.

      Issues with the Juvenile Justice (care and protection of children) Act 2000:
      • The first is related to the responsibility of the Juvenile and Child Welfare Officer in a police station as well as the special police unit created in every district and city to deal with juveniles and to upgrade the treatment of police with juvenile or children. The said officer is usually, either busy in the criminal investigation and administration or has no interest in such matters.

        They are obliged to produce the child before the welfare board for care, protection, development, and training, but the police officers were reluctant towards their powers and duties. This all happens because of the absence of superior authority to control and supervise them.

        They are not accountable to any agency. The employment of child for begging, procuring of a child or Juvenile for hazardous employment and keeping him in bondage and withholding his earnings or use of such earning for his own purpose is made a cognizable offence, that means the police can investigate the matter without Magistrate's order, but they are failed to take steps.
         
      • The second problem is related to the powers of Juvenile Justice Board, wherein after inquiry, the board has a very wide blanket to 'release' the juvenile to home after advice or admonition or to participate in a group counselling, community service, order to pay fine, order to release on probation of good conduct and lastly to send him to a special home, which defeated the purpose of this Act i.e. training, education, reformation, and rehabilitation.

        Even if the Board decided to send the child in a special home under section 15(1)(g), then also, the period of the stay may be reduced, which results in the release of the maximum number of children without proper education, training, and correction. Such vast and vague powers of the Board are unreasonable and arbitrary in nature.
         
      • The third problem is of age, which is changed from 16 to 18 years in the case of a male child, which is not proper in recent times. As per Indian Penal Code,1860 the child below 7 years is doli-incapax (can't be held liable for any offence) where a child between 7 to 12 years is doli-capex (can be held liable for the offence committed). That means a child above 12 years is capable enough to understand the nature and consequence of his act, and therefore must be held absolutely liable.

        In today's era, the age of majority is reduced. A male child attains puberty in 13 years of his age. That means a male child above 13 years is capable enough to commit sexual offences which required sufficient mental and physical capability. But even after committing such a heinous offence, he can be absolved from his liability.
         
      • The fourth problem is that this Act is purely reformative. The present World is indeed focusing more on reformative theory, but we cannot prevent crimes merely by reforming criminals. Juvenile committing heinous offences like murder or rape must face the penal consequences of their acts because each juvenile is coming from different backgrounds possess different maturity of understanding and many are encouraged to commit a crime, as the punishment is very lenient. So, while applying reformative theory, strict deterrent theory should also be given importance.
         
      • The fifth problem is that the act bars the appeal against the order of the Child Welfare Committee in respect to finding that the child is not neglected. A person has no right to challenge the order of the Board and Committee before any court resulted in the release of the wrongdoer without the reconsideration of the matter. This provision is against the right to appeal; thus, justice is denied.
         
      • The sixth problem is that there is no flexible procedure for sentencing
         
      • The seventh problem is that this is a system in which the maximum amount of sentence served by a delinquent who say partakes in armed robbery in order to feed himself is the same as the one given out to a serial rapist or murderer; just so long both are under eighteen years of age. This is the serious problem identified with the Act and could be used as a loophole by adult criminal elements in society manipulating the vulnerable youth.
         
      • The eighth problem is that there is no logical or scientific reason which shows that total and complete rehabilitation can be achieved by a delinquent/ offender/ child in conflict with the law within a maximum period of three years.
         
      • The ninth problem is that the act does not deal with physical and psychological maturity of a Juvenile.
         
      • Lastly, Provisions of Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 failed to reflect in the Act.
         
  2. Juvenile Justice (Care And Protection Of Children) Act, 2015
    Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by Parliament of India amidst intense controversy, debate and protest on many of its provisions by Child Rights fraternity. It replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed for juveniles in conflict with Law in the age group of 1618, involved in Heinous Offences, to be tried as adults.

    The Act also sought to create a universally accessible adoption law for India, overtaking the Hindu Adoptions and Maintenance Act (1956) (applicable to Hindus, Buddhists, Jains, and Sikhs) and the Guardians and Wards Act (1890) (applicable to Muslims), though not replacing them. The Act came into force from 15 January 2016. It was passed on 7 May 2015 by the Lok Sabha amid intense protest by several Members of Parliament. It was passed on 22 December 2015 by the Rajya Sabha.

    To streamline adoption procedures for orphan, abandoned and surrendered children, the existing Central Adoption Resource Authority (CARA) has been given the status of a statutory body to enable it to perform its function more effectively. A separate chapter on Adoption provides detailed provisions relating to adoption and punishments for noncompliance. Processes have been streamlined with timelines for both in-country and inter-country adoption including declaring a child legally free for adoption.

    As of 2019, Ministry of Women & Child Development of Government of India is working towards bringing an amendment, primarily to remove courts from adoption process, to handover it to Executive Magistrates/ District Magistrates and to make Child Welfare Committees administratively and judicially subordinate to District Magistrate, despite nationwide protest against such a move.

    The Ministry of Women and Child Development began contemplating several desired amendments in 2011 and a process of consultation with various stake holders was initiated. The Delhi gang rape case in December 2012 had tremendous impact on public perception of the Act. One of the accused in the 2012 Delhi gang rape was a few months younger than 18 years of age and under the Act was tried in a juvenile court.

    Eight writ petitions alleging the Act and its several provisions to be unconstitutional were heard by the Supreme Court of India, prompting the juvenile court to delay its verdict. In the second week of July 2013 the Supreme Court dismissed the objections, holding the Act to be constitutional. Demands for a reduction of the age of juveniles from 18 to 16 years were also turned down by the Supreme Court, when the government of India stated that there is no proposal to reduce the age of a juvenile.

    On 31 August 2013 the case returned to the juvenile court and a sentence of 3 years in a reform home was handed down. The victim's mother criticized the verdict and said that by not punishing the juvenile the court was encouraging other teenagers to commit similar crimes.

    In July 2014, Minister of Women and Child Development, Maneka Gandhi said that they were preparing a new law which will allow 16-year-olds to be tried as adult. She said that 50% of juvenile crimes were committed by teens who thought that they get away with it. She added that changing the law, which will allow them to be tried for murder and rape as adults, would scare them. The bill was introduced in the Parliament by Maneka Gandhi on 12 August 2014. On 22 April 2015, the Cabinet cleared the final version after some changes.

    A revamped Juvenile Justice Bill was passed in the Lok Sabha on 7 May 2015. The new bill will allow minors in the age group of 16-18 to be tried as adults if they commit heinous crimes. The crime will be examined by the Juvenile Justice Board to ascertain if the crime was committed as a 'child' or an 'adult'.

    Salient Features Of Juvenile Justice (Care And Protection Of Children) Act 2015:
    • Any child that found committing any crime will now be send for a preliminary assessment for a period of three months, up from the earlier one month.
    • A clarification is added that the preliminary assessment is not a trial, but to assess the child's capacity to commit the crime.
    • The Act will allow a Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a juvenile criminal in the age group of 1618 should tried as an adult or not.
    • A new clause on fair trial is added, under which the assessment will look into the special needs of the child, under the tenet of fair trial under a child-friendly atmosphere.
    • The child will not suffer from any disqualification that arises from any conviction under the Act.
    • The records of any conviction will be destroyed after the expiry period of appeal, except in the case of heinous crimes.
    • Biological parents giving up children for adoption, will be given three months to rethink their decision, instead of the existing one month.
    • The Act introduces foster care in India.
    • The aftercare of the child in institutional care will not be restricted to only one time.
    • Any child leaving institutional care can now receive financial support more than one time.
    • Disabled children will be given precedence in inter-state adoption.
    • Abandoned children, found by the childcare facilities, will be kept for 60 days before being given up for adoption or foster care, instead of the existing 30 days.
    • Any child who has been abandoned by biological parents due to unavoidable circumstances will not be considered to be willfully giving up the child.
    • In acting on an appeal against an order passed against the child, the board will now take help of experienced psychologists and medical specialists.
    • There will now be proper training of special juvenile units in the police force.
    • NCPCR and SCPCR will be the nodal authorities to be responsible for monitoring implementation, the publicity of the amended act, and to look into cases that arise out of the Act.
    • The discretionary powers will be given to Juvenile Justice Board to transfer juveniles to criminal court for trial and punishment. Since JJB is presided over by Chief Judicial Magistrate of the district, one could assume that the chances of transfer of adolescents to adult court would apparently be more
    • Judicial wavers as provided in the present Act, that will subject a juvenile to the jurisdiction of the regular criminal court to be tried as an adult will not create any kind of deterrent effect and may turn juvenile into a hardened criminal.
    • The proposed legislation, clearly defined and classified offences as petty, serious and heinous, and defined differentiated processes for each category
    • No life-imprisonment or death sentence to a juvenile.
    • The inquiry of the case should be completed within four months of the first production of the child in the Juvenile Justice Board. This can be extended for the maximum of two more months by recording the reason in writing.
    Issues: With The Juvenile Justice (Care And Protection Of Children) Act 2015
    An unfortunate and regressive aspect is that this act violates the various provisions as following:

    Violations of the Indian Constitution:
    1. Assumptions in clauses 7, 15(3), 16(1), 19(3), 20, 21, and 22 that children between 16 and 18 years are as culpable as adults and are competent to stand trial in an adult court violates the right to equality under Article 14 and the special protection for children under Article 15(3).
    2. Preliminary inquiry by the JJB under clause 16(1) violates the constitutional prohibition on procedural arbitrariness under Article 14 and 21.
    3. Arbitrariness is inherent in the assessment of reformation by the Children's Court under clause 21 and therefore violates the test of procedural fairness under Article 21.
    4. Clause 7 violates the constitutional prohibition under Article 20(1) on retrospective application of penal laws and penalties.
    Violations of Rights under the Juvenile Justice Law
    1. Preliminary inquiry by the JJB under clause 16(1) violates the presumption of innocence.
    2. Exclusion of children between 16 and 18 years found to have committed heinous offences under clause 19(1) deprives them of their right to rehabilitative alternatives under the JJAct2015.
    3. Institutionalization under clauses 20(3), 21(2) and 22 is the only and not the last resort for children in this category, which is in violation of the fundamental principles of best interest and institutionalization as a measure of last resort.
    4. Transfer of children to the adult court under clause 19(3) denies them their right to be dealt with by a child-friendly and multidisciplinary Juvenile Justice Board, deprives them of the right to privacy, and also violates the principle of best interest provided under the JJ Act 2000, Model Rules 2007, and the JJ Act 2015itself.
    5. Maintenance of records of a child transferred to jail under clause 25(3) violates the principle of fresh start, hinders the ultimate goal of rehabilitation and exposes the child to legal disqualifications.
    Violation of the UN Convention on the Rights of the Child, 1989
    1. Trial and punishment of children between 16 and 18 years as adults violates the prohibition on discrimination under Article 2.
    2. The transfer system violates the core principle of the best interest of the child, which is to be a primary consideration (Article 3).
    3. Institutionalization under clauses 20(3), 21(2) and 22 violates the basic right that deprivation of liberty should only be a measure of last resort and for the shortest appropriate period of time (Articles 6 & 37(b))
    4. Preliminary inquiry by the JJB under clause 16(1) violates the presumption of innocence under Article 40(2)(b)(i).
    5. Preliminary inquiry by the JJB under clause 16(1) and a determination by the Children's Court under clause 21(1) violate the prohibition on arbitrary deprivation of liberty under Article 37(b).
    6. Trial and sentencing by an adult court offends the obligation under Article 40(1) to ensure that the child is treated with dignity and also that his or her reintegration into society is facilitated.
    7. Transfer of children to prison under clauses 20(3) and 21(2)(ii) violate the mandatory requirement of separation of children from adults under Article 37(c).
    8. Clause 7 violates the prohibition on retroactive juvenile justice under Article 40(2)(a).
    9. Maintenance of records of a child transferred to jail under clause 25(3) violates the right to the protection of privacy at all stages of the proceedings under Article 40(2)(vii).
    Further negative implications and effects include:
    Implication of preliminary inquiry on rights of juveniles

    Numerous instances of children being falsely apprehended by the police cannot be ignored. JJB has to assess whether a child has the physical and mental capability to commit the offence, along with the 'circumstances in which he has committed the offence' which implies an assumption that the child has already committed the alleged offence. JJB has to arbitrarily inquire into the culpability prior to even a prima facie establishment of guilt. Assessment of 'mental capacity' is highly complex and will inevitably lead to arbitrary transfers. It cannot be done accurately by the JJB even with the help of experienced psychologists.

    Implications of being tried as an adult
    Transfer of children above 16 years alleged to have committed a heinous offence will deprive them of the right to equality and rights under the JJ system. It will violate the principles of best interest and institutionalization to be the last resort. Are those between 16 and 18 years competent to stand trial as adults? - Placing juveniles into an adult criminal justice system requires them to make adult decisions for which they are not equipped to understand the risks and consequences. In addition, because of their cognitive deficits juveniles have a reduced ability to assist counsel and receive a fair trial if they choose one. (US example) .Children's Courts were designated to try offences against children. They were NOT designed to try offences by children.

    Arbitrariness inherent in any assessment of reformation
    Whether or not a person has undergone reformative changes or can be a contributing member of the society is highly subjective and prone to arbitrariness, particularly when the quality of rehabilitative services that the State is duty bound to provide under. The new Act to the child in question is not put to the same test. It will inevitably result in the targeting of marginalized communities in India. Data already shows that more than half the children apprehended for offences come from families with an annual income of less than Rs. 25,000 while only 0.55% of the children apprehended come from families with an annual income of more than Rs. 3,00,000. There are no doubt the provisions of the current Bill will result in class, caste and religion-based targeting of children under the garb of assessing their potential contribution to society and extent of reformation.

    Place of Safety
    Persons between 18-21 years apprehended for committing an offence when she/he was below 18 years and denied bail. Children below 16 years whose behavior and conduct is such that it is not in their interest or in the interest of other children that they be housed in a Special Home. Persons between 16-21 years alleged to have and found to have committed a heinous offence. (Segregation stipulated) Person in respect of whom a Magistrate or court is conducting an age inquiry. State Government to set up at least one place of safety in the State.

    Sections 14(1) and (2) of the new act
    In the new Act the sections 14(1) and (2) are major issues of concern. The first is the ground on which the Juvenile Justice Board will decide if a 16- or 17-year-old is to be tried under the JJ Act or in a normal court. The most contentious aspect of these tests is that almost all, if decided in the affirmative, would have a presupposition that the child is guilty of having committed the offence. And also, the question remains unanswered that on what grounds exactly is the board going to make these determinations within a one-month period and before the actual trial. Under this Act the juveniles between 16 to 18 years of age, who are found guilty of committing heinous offences after going through a preliminary inquiry by the Juvenile Justice Board, 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. Even then if they are not found to have been reformed by 21, they can be sent to jails housing adults. At present, most states do not have the 'place of safety', also known as 'borstals'.

    Extension of definition of heinous offences
    The new juvenile laws have extended its definition of heinous offences beyond rape and murder. Heinous fences include all offences that are punishable with 7 years or more of imprisonment. Experts have analyzed the law, and have enumerated various offences for which children can be tried as adults. These include offences related to drugs, waging war, trafficking, abetment of crimes, allowing one's premises to be used, and many others

    Juvenile Justice Board's subjectivity
    As per the new Juvenile Justice Act there is a provision of availing experts in around 600 above districts in the country to provide their inputs to the JJBs Based on their analysis it is to be decided whether or not a child committing a crime is in a 'child-like' frame of mind or not. This idea may appear sound on paper, or in a parliamentary debate, but in reality, it is highly subjective. It places too much liability on the Juvenile Justice Board which may end up succumbing to the public outcry and consequently would lead to the children being transferred to the adult criminal justice system.

    Misuse of POCSO
    This law becomes contentious also because of the rising phenomenon of teenagers eloping and consensual sex among teenagers. The boys can now face trials for rape. Under the Protection of Children from Sexual Offences Act (POCSO), a child cannot consent to a sexual act until the age of 18, so any act of sex, even consensual, is considered to be rape.

Some Recommendations To Improve The Juvenile Justice System

  1. The High Court should take initiative to create and establish more and exclusive Juvenile Justice Boards in order to dispose Juvenile cases within specified period as intended in J. J. Act, of 2000.
  2. The Juvenile Justice Board should be made functional on all working days and the proceedings be held on all working days.
  3. The Act should be amended to enable the JJB to directly entertain complaints of child for offence against them instead of being through police so that the child can give his complaint without any fear.
  4. The JJ Act, 2000 does not make any difference between a male and a female child. Such scheme of the JJ Act however fails to take a note of the fact that the female juvenile being highly vulnerable is likely to be more comfortably and conveniently exploited and even abused adversely. Such a female juvenile needs special protection even at an observation home or at a place of safety, notwithstanding the fact that voluntary social organizations may come forward to provide a place of safety. An inbuilt safety mechanism is required to be provided to such a female juvenile in the Act itself.
  5. Provision should be made to divert at least 25% of the fine amount collected by the criminal courts at each place towards creation of a juvenile welfare and rehabilitation fund, at the disposal of the J J Board of the particular place/area to be utilized by it in day to day rehabilitation need of the juvenile or child concerned
  6. Section 16(1) of the Act should be amended and expression 'life imprisonment', be substituted by expression 'any imprisonment'. This shall be in consonance with the Legislative intent in section l6 (2) of the Act.
  7. The Act is silent as to whether a juvenile involved in a TADA/POTA/NDPS Act case can be bailed out under section l2. To avoid any confusion and give immediate relief to the juveniles the Act should specifically provide for bail even in cases of above said categories.
  8. The Juvenile Justice Act is silent about doing justice to the victims who have been victimized in the hands of juveniles. Necessary provisions/amendments should be made in this regard
  9. 'Protective custody' should be defined in Juvenile Justice Act to avoid any confusion.
  10. The Act should make it clear as to when enquiry commences. Section 14 being silent about it may create confusion.
  11. Voluntary social organisation with necessary government supervision and assistance should be allowed to run after care programmes to build a meaningful and constructive after care programme in order to rehabilitate the inmates by helping them to secure jobs in various government and private undertakings.
  12. Until special police units are constituted investigation of cases of juveniles should be done by the specially trained police officers for which a training should be imparted to them.
  13. Orientation courses, seminars, and awareness programmes should be organized by government on juvenile justice on regular intervals to enable the functionaries imbibe the message discussed and conveyed to them.
  14. It is not enough to make good legislation unless it is honestly, strictly and scrupulously enforced without fear and favour. The Juvenile Justice Act has been enacted for the purpose of providing care and protection to the child. So the functionaries of the JJS should enforce the Act honestly, strictly and without any fear and favour.
  15. The primary purpose of JJS being protection of the child, it is required to adopt measures for keeping the child integrated with the family and within the mainstream of the society. The Advisory Board should be established at the central, state, district and city level for integration of the children with the family. The Advisory Boards should be provided infrastructure and facility so that desired qualitative output can rendered by them.
  16. The community participation should be maximised.
  17. NGOs working on the street and with children should be increasingly involved. For children without family, every efforts should be made to find out an alternative family placement, failing which institutionalization may be resorted to.
  18. The pattern of the SOS children's villages which stood recommended as far back as 1920 by the Indian Jail Committee 1919-20 should be followed by the homes established or recognized for placing children. Community services for education, vocational training and recreation along with other children in the society may be used by these homes to ensure that the institutionalized juveniles are not marginalised and that the standard of programmes for the institutionalized children is at par with those for other children.
  19. The community-based programmes should be under close supervision to ensure fulfillment of obligation by the child and the person in whose care juvenile is placed under the placement order. For this purpose the number of probation officers/social workers and case workers be also increased to the standardized ratio between such workers and children.
  20. The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007 under the Commission for Protection of Child Rights Act, 2005, an act passed by Parliament in December 2005. The Commission's Mandate is to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in the Constitution of India and also the UN Convention on the Rights of the Child. The Commission should focus and evolve programmes for all categories of children co-ordinating various programmes, undertaking follow-up of its recommendation with various other bodies and departments to create a database for policy formulation and review.
  21. The states should establish a clear relationship between JJA and other legislations that affect the life of the children covered under its scope.
  22. There is need to evolve alternative ways of dealing with children. Merely renaming the existing structures as by done the JJA serves no purpose. The state should start experimental projects with alternative ways for dealing with children and after successful evaluation they should be made part of the enforceable law.
  23. Probation and other community-based programmes, apart from being cost effective should be preferred for their potential for ensuring better care and rehabilitation of juveniles.
  24. We should try to mould our society in such a way such that no juvenile commits crime. Circumstances are one thing that we all know is the root cause of many juveniles becoming offenders. If this thing can be sorted out, I feel that the problem of juvenile justice will to a great extent will be solved of its own.
  25. The act should be implemented heavily. The Juvenile Justice Act is comprehensive and if implemented honestly can curb incidents like Delhi gang rape by providing timely help to juveniles who might turn into criminals. The problem is not with the act but with its implementation. Instead of making amendment in the act, the need of the hour is to make sure that existing provisions in the act are implemented.
     

Landmark Juvenile Cases In India

  1. In Pratap Sing Vs. State of Jharkhand, AIR 2005 SC 2731, Issue of the Child is one of the most vexed and critical issue in implementation of the Act. The crucial date for determining the claim of child is the date of commission of the offence and not the date or arrest or production of juvenile before the Juvenile Justice Board. As per Section 9 of the New Act, the Magistrate who is not empowered to exercise the power of Juvenile Justice Board under this Section, is of the opinion that a person brought or appearing before him with allegations of having committed any offence is a juvenile, then he shall without any delay, and without waiting for such person to raise claim of juvenility, ascertain the age of that person and record its opinion and forward the juvenile along with record to the Juvenile Justice Board, having jurisdiction over the proceeding.
     
  2. In Hari Ram v. State of Rajasthan and Anr. MANU/SC/0744/2009: (2009) 13 SCC 211. Hon'ble Supreme Court of India took the view that the Constitution Bench judgment in Pratap Singh case was no longer relevant since it was rendered under the unamended Act. In Hari Ram while examining the scope of Section 7A of the Act, it is held that the claim of juvenility can be raised before any court at any stage and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. {proviso to Sec 9 of New Act} ➢ Further, it was also held that on a conjoint reading of sections 2(k), 2(l), 7A, 20 and 49 r/w Rules 12 and 98 {proviso to Sec 9 of New JJ Act} places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1.4.2001 would be treated as juveniles even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted.
     
  3. In Dharambir v. State (NCT of Delhi) and Anr., MANU/SC/0290/2010 : (2010) 5 SCC 344 The Appellant was not a juvenile within the meaning of 1986 Act, when the offences were committed but had not completed 18 years of age on that date. . Section 20 also enables the Court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the Court, while maintaining the conviction to set aside the sentence imposed and forward the case to the J.J. Board concerned for passing sentence in accordance with the provisions of the 2000 Act.
     
  4. While determining the age, as observed by the Honorable Apex Court in Rajinder Chandra Vs. State of Chhattisgarh, AIR 2002 SC 748, the approach of the Courts or Juvenile Justice Board should not be hyper technical. It obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Section 9 & 94 has also used certain expressions which are also be borne in mind. It uses the expression 'on the basis appearance'.

    Further, the age determination inquiry has to be completed and age be determined within fifteen days which is also an indication of the manner in which the inquiry has to be conducted and completed. Age determination inquiry contemplated under section 94 of the Act enables the court to seek evidence and, in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school.

    Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above-mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
     
  5. In Sheela Barse & Ors vs Union Of India & Ors on 13 August, 1986, the SC held the following:
    1. The right to speedy trial is a fundamental right implicit in Art. 21 of the Constitution. If an accused is not tried speedily and his case remains pending before the Magistrate or the Sessions Court for an unreasonable length of time, it is clear that his fundamental right to speedy trial would be violated unless, of course, the trials held up on account of some interim order passerby superior court or the accused is responsible for the delaying the trial of the case. The consequence of violation of the fundamental right to speedy trial would be that the prosecution itself would be liable to be quashed on the ground that it is in breach of the fundamental right. [566E-G] Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, [ 1979] SCR 169, relied upon.
       
    2.  Every State Government must take necessary measures for the563purpose of setting up adequate number of courts, appointing requisite number of Judges and providing them the necessary facilities. Its also necessary to set up an Institute or Academy for training of judicial officers so that their efficiency maybe improved and they may be able to regulate and control the flow of cases in their respective courts.[567B-C]
       
    3. So far as a child-accused of an offence punishable with imprisonment of not more than 7 years is concerned, period of 3 months from the date of filing of the complaint or lodging of the First Information Report is the maximum time permissible for investigation and a period of 6 months from the filing of the charge sheet as a reasonable period within which the trial of the child must be completed. If that is not done, the prosecution against the child would beliable to be quashed. Every State Government shall give effect to this principle or norm in so far as any future cases are concerned. [567E-F]
       
    4. So far as concern spending cases relating to offences punishable with imprisonment of not more than 7years, it is directed that every State Government shall complete the investigation within a period of 3 months from today if the investigation has not already resulted infilling of charge sheet and if a charge sheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, the prosecution shall be quashed. [567F-G]
       
    5. The State Governmentsmust set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial. On no-account should the children be kept in jail and if a State Government hasn't got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail. [565D-E]
       
    6. Instead of each State having its own Children's Act different in procedure and content from the Children's Acting other States, the Central Government should initiate Parliamentary Legislation on the subject, so that there iscomplete 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.
       
Conclusion
In conclusion, children are the symbol of development and future of a nation. So a safe and healthy environment must be provided for utmost nurture of their character. Also, India, is a home to the largest child population. But in recent times we have witnessed a high rate of juvenile offences in India, which is a major concern for our country's future. A child is born innocent, and he must be bestowed with a holistic physical, mental, moral and spiritual development to make them one of the duty-bound citizens of the world's largest democracy.

However, unfortunately, due to several factors, whatsoever they may be, turn innocent children into juvenile delinquents. Which in turn means transforming an innocent child to a juvenile offender. Exploitation of children has been a long-standing practice. These delinquents go through a lot of abuse which vary in nature as physical, sexual, or psychological or as a combination. The abuse has a long lasting and profound effect on a child's life.

The problem of child abuse is a serious one and it is unlikely that it gets solved any sooner. The reason why this has prolonged is that the society has affected the children in a negative way and that there are factors such as family influence, social environment, mental disorder and sexual abuse. This develops in young people low self-esteem and they go through mental trauma which later correlates with delinquent behavior.

Thus, our criminal jurisprudence, regarding juvenile offenders says that, prevention is better than cure regarding juveniles and that they must be protected from going in a wrong and dark path, and that is the cause why our Indian judicial system gives emphasis on the Reformatory form of punishment to a juvenile offender.

The Reformatory form of punishment has the advantages of rehabilitation, in that it creates opportunity of employment for offenders, by educating and treating them instead of just issuing punishment.

Once rehabilitated they would be able to work and function effectively in the community, in the long term being beneficial to the country. With the archaic punishment system, it is more of a one-way road but with rehabilitation the offender would have choices, because they would have gained an education, learned a trade, develop career skills, and have received mental/substance treatment and can therefore get successfully reintegrated into society and begin life anew.

Additionally, while most approaches to juvenile justice focus on the punishment or treatment of juvenile delinquents, the restorative justice process seeks to repair wrongs by involving the entire community in offender rehabilitation and holding them accountable for their behavior. It is absolutely imperative to rehabilitate and reintegrate the child into society and to make him understand the grievance and serious responsibility for the offence he has committed.

This is envisaged and dealt with in the Juvenile Justice Act of 2005 and includes the applicable provisions of the 1985 Beijing Rules. Young minds being the future of society, their age, the physical constitution must be taken into account. and mental. The restorative justice system also maintains this objective as its overarching goal.

Furthermore, our constitution provides for a separate treatment for children. The children who are not born criminal, are being transformed into one due to an infernal social environment and non-deterrent laws. So, a different justice procedure is provided by JJ Act. And it can be efficacious from the root only if the observatory homes are being administered with utmost care and affection, where the maximum part of reformation of the child is done.

But is most of the observatory home, it has been witnessed that, most of the juveniles are getting drug addicted, living in a filthy environment, no effective educational classes are conducted and are being regularly sexually abused which will not suffice the purpose of juvenile justice. Besides a good law, a strong implementation is also the need of the hour.

The measures to be taken for the benefits of juveniles can be brought into reality only if there exists a proper linkage between the state and various district governments. Additionally, there is also a requirement for the child rights activities and groups to take up the initiatives of the transformation of juvenile offenders and this would further boost the process and help in bringing the desired change on a larger perspective. The increasing crime rates among the juveniles in the recent times and absence of deterrence among them creates an alarming situation which is to be given full attention to the earliest.

The aforementioned recommendations to improve the juvenile justice system mentioned in the a regarding the curbing of offences by juveniles require immediate attention and implementation of the same. With the current rise in rate of crimes by juveniles, it is expected to only increase the forthcoming years and therefore needs to be stopped in its initial stages itself.

For over a century, states have firmly believed on the notion that the juvenile justice system was a weapon to protect the public by providing a system that responds to the criminal acts of children who are maturing into adulthood. States recognize that children who commit crimes are different from adults: as a class, they are less blameworthy, and they have a greater capacity for transformation.

To respond to these differences, states have established a separate judicial system for juveniles, and they have created a separate, youth-based service delivery system that is different than that provided to adults. It has seen that the countries with economies in transition have witnessed a dramatic rise in delinquency rates.

Most children and young people in conflict with the law have committed minor crimes barring some exceptions. Reducing the age of Juvenile in conflict with Law can never be the solution to the problem of Juvenile Delinquency. Considering Nirbhaya Case as a whole and sole reason and also the moral foundation and justification to reduce the age of Juvenile from 18 to 16 and thereby causing the Juvenile Justice (care and protection) Act of 2000 to undergo the drastic and dramatic changes is nothing but a pathetic exhibition of social prejudices by the central government.

The demand to lower the age of age of Juvenile to 16 was misinformed, emotive and motivated. It is nothing but a ploy to add to already overwhelming powers of the state that it exercises over its citizens. The centre of interest in juvenile court is always a juvenile and his welfare, and not the act or its consequences which might have resulted in his or her being brought before the court. Juvenile justice system needs to maintained rehabilitation as its primary goal and should clearly distinguish itself from the criminal justice system.

Hence, instead of reducing the age, an attempt should have been made to remove the very root cause of the problem i.e. mould our juveniles in such a way and provide them with such a socio-psychological-emotional atmosphere and support that they don't commit crime at the very first step itself. We should not forget that the essence of the Juvenile Justice System should be 'restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into the mainstream society'.

It is pertinent to understand that Juveniles need reforms, not prison. The new Amendment in Juvenile Justice Act will throw open the gate for frivolous FIRs. The Juvenile Justice Act of 2000 was comprehensive and if would have been implemented honestly could have curbed incidents like Delhi gang rape by providing timely help and necessary support to juveniles who might turn into hardened criminals.

The problem is not with the act but with its implementation. The Juvenile Justice (Care and Protection) Act, 2000 was a progressive piece of legislation with its heart in the right place. The need of an hour is to fix the systemic problems and strengthen the existing juvenile justice system such that it can fulfil its objectives to reform and rehabilitate the young people who need it the most. History, from time to time has witnessed that the sole measure of stipulating stringent laws would only promote hatred and injustice.

Law can never be the solution. Law can only supplement the solution. Therefore, the time has come to adopt a flexible, novel approach to tackle the problem of Juvenile Delinquency, an approach- full of love, compassion, understanding, values and last but not the least justice.

In recent years, children and their problems have been receiving attention of both government and the society. But it has been seen that the problems are enormous and never ending, thus resulting in lack of everything that has been done till today. If these problems are not curbed soon then the growth of the children will be hampered resulting in a a dark future to our country. The amendments that have been raised should be implemented in such a manner that the fruitful result is achieved.

The social, economic and other factors which have been the root causes of Juvenile Delinquency needs to be dealt with at the very initial stage. Every society must, therefore, devote full attention to ensure that children are properly cared for and brought up in a proper atmosphere, where they could receive adequate training, education and guidance in order that they may be able to have their rightful place in the society when they grow up. What needs to be done is the question that arises before us.

We cannot uproot this menace but there are solutions to keep a control on the problem of Juvenile Delinquency. In the best interest of the delinquent, he or she should be rehabilitated as early as possible and integrated back in the society. Also the State must protect the rights of these children and come up with reformative methods and instill in them values that can socially uplifts them and give them a new found confidence so that they can play a constructive role in the society.

Bibliography:
  1. https://www.firstpost.com/india/latest-census-data-shows-youth-surge-nearly-41-of-indias-population-is-below-the-age-of-20-2581730.html
  2. https://factly.in/more-than-99-of-the-juveniles-apprehended-for-crimes-are-boys/
  3. https://www.lawctopus.com/academike/juvenile/
  4. https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2015
  5. https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2000
  6. https://thelawbrigade.com/wp-content/uploads/2019/05/Aniruddha-Babar.pdf
  7. https://blog.ipleaders.in/critical-analysis-of-juvenile-justice-act-2000/
  8. https://blog.ipleaders.in/amendments-juvenile-justice-act/
  9. http://www.alsi.edu.in/images/a-critical-analysis-on-juvenile-justice.output.pdf
  10. https://blog.ipleaders.in/juvenile-justice/
  11. https://indiankanoon.org/doc/525548/
Written By Mohammed Arafat Mujib Khan

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