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An Analysis of Juvenile Justice in India
An Analysis of Juvenile Justice in India
Introduction
At one point of time, the 26/11 Mumbai terror attack accused, Ajmal Kasab, a Pakistani
terrorist, had claimed that he was a juvenile and therefore he should be given benefit of the
law relating to juvenile justice in India, notwithstanding the fact that he was involved in a
ghastly terror attack in which 164 persons were killed. However, his claim was found to be
false. The issue of juvenile justice again came upfront in the 16/12/2012 Delhi gang rape case
when one of the accused was found to be a juvenile. The law requires that this can be dealt
only under juvenile justice act and not under the normal criminal laws that apply to adults.
This implies that he cannot be sentenced to imprisonment and cannot be awarded death
penalty. Due to the strong demand from the society to consider this accused as an adult and
apply the normal criminal laws applicable to an adult, and thus award death penalty and
because of other similar cases cropping up regularly in the country, we need to take a deep
look into the laws to first understand the juvenile justice system of the country and second, to
see if we can treat juveniles at par with adults while granting punishment for committing such
heinous offences.
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2
under the age of eighteen years.3 Under A.P. Children Act, 1920 child means a person less
than 14 years of age.4 The Saurashtra and West Bengal defines a child as a person who has
not attained the age of eighteen years.5 Juvenile Justice Act, 1986 defined a juvenile or child
to be a person who in case of a boy has not completed age of 16 years and in case of a girl 18
years of age. The JJA Act, 1986 was repealed by 2000 Act and the distinction with regard to
age between male and female juveniles has been done way with by the Government of India
in performance of its obligation to the international obligations. Now age of juvenile in
conflict with law for male and female has been fixed at 18 years. A juvenile in conflict with
law under the Juvenile Justice (Care and Protection) of Children Amendment Act, 2006 is a
juvenile who is alleged to have committed an offence and has not completed his/ her 18th
year of age as on the date of commission of such offence.6
Indian laws have created four categories of persons according to their age. The criminal
liability of an accused depends upon the category in which that person falls. The first of these
is a person below seven years of age. Section 82 of the Indian Penal Code, 1860 states that
nothing is an offence which is done by a child under seven years of age. The simple reason
behind giving such an exemption is the absence of mens rea i.e. guilty mind or criminal
intent. People who at the time of commission of the crime could not and did not know the
right from the wrong should not be penalised. The second category of persons is those who
are between the age of seven and twelve years. Section 83 deals with them and lays down that
if an offence is committed by such a person, it will first have to be ascertained whether the
child has attained sufficient maturity of understanding due to which he can judge the nature
of his alleged conduct and the consequences thereof. The persons between the age of twelve
and eighteen years fall into the third category and if an offence is committed by such a
person, he shall be liable for such offence. However, he shall not be prosecuted and punished
like adult offenders, but would be dealt with only in accordance with the provisions of the
law relating to juvenile justice. Lastly, a person above the age of eighteen years is criminally
liable for an offence in accordance with the normal criminal laws of the country.
The history of juvenile justice in India can be traced back to the 18th century. Prior to 1773,
like other countries the concept of juvenile justice in India was far from developed.
Childrens actions, both criminal and non-criminal, were governed by the existing Hindu and
Muslim laws wherein it was the primary responsibility of the families to monitor their
childrens actions. Although these laws had no specific reference to juvenile delinquents, the
Hindu law of Manusmriti referred to certain offences, some of them included the examples of
a child, littering on a public street was not held liable for the actions so ensued, but as a
punishment was required to clean the litter whereas, adults on the other hand, had to pay a
fine and clean the trash.
The period between 1850 and 1919 was a time where the country was faced by a rapid social
change, industrialization and increasing population. These changes brought about a new class
of delinquent, neglected and dependent children needing formal intervention. Thus the need
for new legislations dealing with children was felt. Some of the most important laws passed
between 1850 and 1919 were the Apprentice Act (1850), the Indian Penal Code (1860), the
Code of Criminal Procedure (1861), and the Reformatory Act (1876 and 1897). The
Apprentice Act (1850) dealt with young people between the ages of 10 and 18 who were
either destitute or petty offenders. Children who were convicted were made to serve out their
sentences as apprentices for businessmen. The Code of Criminal Procedure of 1861 allowed
for separate trials of persons younger than age 15 as well as their confinement in
reformatories rather than prisons. It was the result of these enactments that penal philosophy
in India towards juveniles could be seen to be changing from that of penal to reformation.
The concept of a reformatory school for delinquent children came to fruition with the passage
of the Reformatory Schools Act of 1876. This policy of separate treatment of juveniles was
further bolstered by the Reformatory School Act of 1897, which dealt solely with the
treatment and rehabilitation of young offenders. It allowed boys younger than the age of 15 to
be placed in reformatory until 18 years of age. Boys younger than 14 years of age were
released on license, only on the grounds that they could obtain subsequent employment. 7
The years following 1950 witnessed both official and non-governmental initiatives that
contributed to the development of a more pronounced juvenile justice system in India. To
address the increase in neglected and delinquent children as a result of partition of the
country into Pakistan and India, the Indian government passed a Central Childrens Act
(CCA in 1960). The CCA provided for the care, protection, and treatment of juveniles, and
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made it applicable in the territories under direct central government rule. Further still in 1974,
India declared its National Policy for Children, recognizing children as the nations
supremely important asset and that their programmes must find a prominent place in the
national plan for the development of human resources. The policy included, among other
things, training and rehabilitation of delinquent, destitute, neglected and exploited children.
By 1986, almost all states had passed their own child legislations but these Acts lacked
consistency in terms of defining delinquency, court procedures, and institutionalization
practices. The Indian government thus felt the need for a children justice scheme that could
be applied throughout the country and this is how Juvenile Justice Act of 1986 substantiated.
The JJA was considered a unique piece of social legislation intended to provide care,
protection, treatment, development and rehabilitation for neglected and delinquent juveniles
as well as the adjudication of matters related to the disposition of delinquent juveniles. To
accomplish the goals of this legislation, special provisions were made for separate procedures
for handling offenders and non-offenders. Juvenile courts were created to deal with juvenile
delinquents, and juvenile welfare boards were established to handle neglected juveniles.8
With the enactment of JJA 1986, though there continued to be a single law, two distinct
machineries were set up to deal with neglected juveniles and delinquent juveniles.
Pending their enquiries before their respective competent authorities, both these categories of
children were kept in the Observation Home. JJA 2000 for the first time provided for
juveniles in conflict with law and children in need of care and protection to be kept
separately pending their enquiries. This segregation aims to curtail the corruption of the
innocent
child
from
the
influence
of
the
criminal
juvenile.9
provided for appointment of special police officer in each police station to deal with children
under it. It continues to provide for grant of bail to all children irrespective of the offence
being bailable or non-bailable, except when the release will expose the child to moral danger
or bring the child in contact with known criminals or will be against the interest of justice.10
Main Features of the JJA 2000, Juvenile Justice: Securing the Rights of Children during 1998-2008, Dr. Ved
Kumari
11
Juvenile Justice and Juvenile Correction: Pride and Prudence, M.S. Sabnis (Somaiya Publications Pvt. Ltd.,
Bombay and New Delhi- 1996)
12
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
Section 14, Juvenile Justice (Care and protection of Children) Act, 2000
absence of parents or guardian, or when the parent or guardian are not found fit to be given
the care of the juvenile, or when non-institutional modes of disposition could cause physical
or psychological danger to the juvenile, that the juvenile should be institutionalized.14 Any
organization that has a suitable programme and is willing to take responsibility of the juvenile
may be given the charge of a juvenile if the JJB believes that such programme will aid in the
rehabilitation of the juvenile.15 It is only in rare cases that a juvenile may be confined in a
place of safety instead of a Special Home. This rare case is a situation where the juvenile has
attained the age of 16 years and the offence committed is of a serious nature or the juveniles
conduct is improper.16 It must also be noted that not every juvenile who has committed
murder or rape is to be kept in a place of safety. Incarceration in a place of safety should be
ordered only if it would be dangerous to keep the juvenile with other juveniles because of the
peculiar nature of the offence committed or the behaviour of the juvenile.
Further, any order passed by the JJB may be challenged in appeal before the Sessions Court
within thirty days of the passing of the order.17
Sentencing juvenile offenders to death is prohibited by international law. Article 37 of the
Convention on the Rights of the Child states that State parties shall ensure that: Neither
capital punishment nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below the age of eighteen years of age. I would like to raise a
question here that are those juvenile who commit heinous offences of murder and rape are
also not to be treated equal to adults and thus no grave punishment has to be granted to them?
Is it the physical age that matters in determining the punishment and not the mental age of an
individual?
14
Clause 46 of the United Nations Guidelines for the Prevention of Juvenile Delinquency
Section 2(h) of Juvenile Justice Act, 2000
16
Section 16 of Juvenile Justice Act, 2000
17
Section 52 of Juvenile Justice Act, 2000
15
raised in relation to determination of age is that of burden of proof. The Supreme Court has in
the case of Gopinath Ghosh and Bhola Bhagath v State of Bihar18 categorically stated that the
responsibility of adjudging the age of the accused in case of any doubts as brought forth lies
with the Magistrate and the Court as dealing with the said matters.
Not Kids Anymore: A Need for Deterrence in the Juvenile Justice System
With increasing number of juvenile committing horrendous offences requiring severe
punishment, a question that is raised by every individual in the country today is why they are
not being treated as equivalent to adult offenders and awarded grave punishment. While the
public is of the view that ordering a rape convict or a murderer to spend just three years in a
correctional home is not going to deter others from committing crimes against women, the
Child Welfare Committee is of the view that juvenile offenders undergo severe mental
trauma owing to their upbringing in crime-prone localities; constant exposure to criminal
activities turns them into criminals; providing psychological counselling, and not punishing
them, will help in their transformation. Mr. S. Syed Ahmed, former Chairman of Child
Welfare Committee has also pointed out that there is no concrete data to prove that stiff
punishment resulted in the lowering of the crime rate anywhere in the world. He said that
crimes occur even in nations such as Saudi Arabia which follow the policy of an eye-for-aneye and tooth-for-a-tooth; therefore what is required is a change in our outlook and not
stringent punishment.19 I would like to know from Mr. Ahmed and all others holding the
same view that what outlook are they striving to change? Is it the one which makes a mother
pray for death penalty to the criminal of her daughter or is it the one which makes the public
come out in large numbers and hold protests and demonstrations asking the law makers to
treat and punish juveniles according to their mental and not physical age? Saying that
stringent punishment is not required to deter crime in the country is too oblique a perspective.
That way, even adult offenders should not be punished stringently; why should they be, when
such punishment does not serve the purpose of deterring the crime rate of the nation?
The underlying principle in not awarding exemplary punishment to juvenile is the legal
philosophy that juveniles lack the mental and physical maturity to take responsibility for their
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crimes, and because their character is not fully developed, they still have the possibility of
being rehabilitated. With the changing times, the interest in protection of juveniles has to be
balanced with the interest of protecting particularly vulnerable members of the society from
violent crimes committed by persons less than 18 years of age and amending the law.
Conclusion
Before claiming an amendment, we must think of those unfortunate juveniles who may have
committed certain offences in compelling circumstances. Also, though an amendment is
sought, there is no defined parameter to treat an offence as heinous or grave. Those
demanding a change must first seek to define the particular offences for which such
amendment is sought. Therefore, either extreme is not desirable. A delicate balance must be
struck as per which most juveniles, as a general rule, are required to be treated in a more
humane manner, but in some rarest of the rare cases of heinous and grievous offences
deliberately committed by a juvenile, he may be subjected to prosecution and punishment
under the normal criminal laws of the country. The response to juvenile crime has to be fair,
age-appropriate and in keeping with development psychology. Any amendment to existing
law requires in-depth understanding of the jurisprudence, philosophy and impact of the
current law. Amending the law as a reaction to the countywide outrage against one juvenile
may not serve the purpose as it might affect those other hundreds who are rightfully entitled
to the juvenile justice system already prevailing in the country. Thus, what we require is a
balanced and thoughtful approach wherein the juveniles who have the mental capacity to
commit grave offences must be punished with exemplary punishments, while those others
committing petty offences and not possessing the mental capacity to do so must be brought
under the veil of juvenile justice system and efforts must be made to rehabilitate them.