CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA*

Ved Kumari**

I The Juvenile Justice Act, 1986

THE JUVENILE Justice Act, 1986 (JJA) came into force more than twelve years
earlier on 2nd Oct., 1987 bringing about a uniform juvenile justice system in the
whole of India except the state of Jammu and Kashmir' . It also brought to
completion the process of geographical and differential dealing of delinquent
children which had begun with the passing of the Apprentices Act. 1850, furthered
by the Reformatory Schools Act, 1897 and strengthened by the series of Children
Acts since 1920. The twin doctrines of parens patriae and mens rea have provided
the basis and sustenance for this process. However, today voices are being heard
in some fora2 on the desirability of replacement of this legislation with a new
legislation. Large-scale dissatisfaction with the functioning of the JJA has led some
to demand exclusion of neglected children from its purview. Amendments to the
existing legislation or a new one is also demanded to incorporate the 'rights
approach' in view of the Convention on the Rights of Children lo which India is
also a party. This paper examines the trends, practices, judicial decisions and
perceptions about juvenile justice system in India, It argues that the
reconceptualisation of its nature and purpose is a precondition for changing its
functioning whether under the existing legislation or under a new legislation. Part
II of the paper presents the implementation scenario. Part III analyses recent judicial
decisions to highlight the injustice, which is occurring lo children under the
present juvenile justice system. Part IV discusses the possible options for change.
It concludes by offering a different conception of the nature of juvenile justice
system in India.

II Implementation of the JJA

The annual report of the Ministry of Welfare mentions the number of juvenile
welfare boards, juvenile courts and various categories of Homes functioning under

* Revised and updated version of the paper presented at National Seminar on Management
of Juvenile Maladjustment organised by Delhi Legal Aid Authority held in Delhi \\\ I 99o.
** Reader, Faculty of Law, University of Delhi.
1. Now (he Juvenile Justice Act. 1986 has been extended to the stale of .laininu And Kashmir
t o o.
2. Kg.. National Consultation on the Juvenile Justice Act. organised b\ the National Law
School in February 1999 in Bangalore and the National Seminar on Juvenile Justice, held by
Butterflies in Delhi in April, 1999.

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1999] CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA 393

the JJA.3 However, the reports indicating the quality of their functioning are far
from satisfactory and have not been heartening or complementary.
Apathy, irregularity and unawareness of the law are endemic in the functioning
of each of the component of the juvenile justice system. The magistrates to the
juvenile courts are appointed without any background in child psychology and
welfare in clear violation of the statutory direction. Relatively young and
inexperienced magistrates are appointed who lack sufficient maturity and skill to
handle more serious and complex offences.
During 1995-96 the author had the occasion to observe proceedings of the
juvenile court in Delhi for an average of two hours on more than fifteen days while
pursuing a complaint against two newspapers for publishing photograph of an
alleged delinquent juvenile. On most of the days, one of the two magistrates was
absent. Occasionally when both were sitting, they never functioned as ba bench oi
magistrates' as required by the Juvenile Justice Act 1986. Majority of the cases got
adjourned. Some witnesses spoke in English while others in Hindi but all statements
were recorded in English without any effort being made by anyone to acquaint the
child with what was being said or recorded or why the case had been adjourned.
Neither a case was ordinarily disposed off within three months nor any 'special
reasons' recorded for the delay as prescribed by Section 27 of the Juvenile Justice
Act 1986.
Invisibility secured by barring entry of public to juvenile court and homes
under the JJA was aimed at protecting juveniles against sligmatisation. It is really
resulting in shielding the long list of well-known day lo day irregularities,
malfunctioning and maladministration pervading the functioning of the JJA.
Various 'homes' established and maintained by the stale Governments are
often referred to as 'jails' by all within and outside the juvenile justice system
created by the JJA.4 In their conception and organisation those homes, in fact, arc
more like jails. The report of the Indian Jail Committee, as far back as 1919-20 had
observed5

We consider il to be very undesirable that reformatory schools, or their

equivalent, should be located in old jail buildings or placed near jails.
Unless this is avoided, the jail point of view and jail methods are likely
insensibly to be introduced. Endeavours should be made to approximate
these institutions to ordinary schools and such resemblance to jails as high
enclosing walls and iron-barred windows should be avoided. If possible,
properly planned buildings on the cottage system should be provided. As
the object in view should be to make the inmates fit for free life they should
be carefully trained in habits of self-control and self-reliance. As they get
older and can be trusted they should be sent out unattended.

3. In the year 1996-97. 271 Juvenile Welfare Boards. 189 Juvenile Courts. 280 Observation
Homes. 15\ Juvenile Homes, 36 Special Homes and 46 After-care Organisations were functioning
under the JJA in India.
4. Susan Mathews, A Report of the National Consultation on Juvenile Justice. 41 (1999).
Centre for Child and the Law. National Law School of India University. Bangalore, India.
5. Cmnd 1303. at 202-203 (1921).

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394 JOURNAL OF THE INDIAN LAW INSTITUTE (Vol. 41 : 3&4

Delhi administration constructed the juvenile-cum-observation home for girls

sixty years later in 1980 in the Nirmal Chhaya complex adopting just what was
proscribed. It is next to Tihar Jail, is distinguishable with its high walls, iron gales
and iron barred windows, follows a dormitory pattern. The home in Majnu-ku-Tila
has substantially the same things except that it is not next to a jail.
These and other homes under the JJA spend hardly 3 % of their total budget
on what may be termed as 'reformation and rehabilitative measures'. Custody has
become the prime concern rather than care, protection, treatment, development and
rehabilitation. The resultant violence and increasing apathy to maladministration
is reflected in instances like the murder of one inmate by another in the home at
Lajpa.1 Nagar.

Ill Judicial decisions

Most judicial decisions of the Supreme Court and High Courts relating to
delinquent children have remained unknown to the concerned courts and lawyers.6
Same questions are raised again and again and decided differently without any
reference to previous decisions. The recent incident when a magistrate sent to jail
a 14 year old girl suspected of murder contrary to law, shows only the tip of the
iceberg of ignorance, apathy and misconceptions pervading the field of juvenile
justice in India and the resultant injustice to children.
The question whether the JJA applied or not has arisen in numerous cases
despite the clear fact that the accused in those cases was a child on the date of the
offence.7 By reference to section 27 of the Code of Criminal Procedure it has been
argued that a juvenile court does not have jurisdiction to deal with children
committing offences punishable with death or life imprisonment or with children
over the age of 16 years.8 These cases have arisen despite two decisions of the
Supreme Court 9 on the issue and the definition of 'juvenile' under the JJA, which
includes girls till the age of 1 8 years. A further query had been what is the relevant
date at which the accused should be below the specified age for the JJA to apply.
Despite a Supreme Court decision to the contrary10 the High Courts of Andhra
Pradesh11 and Allahabad12 had held the age at commencement of the trial to be
relevant for applying the JJA. A full bench of the Andhra Pradesh High Court in
another case 13 later held the age at the date of commission of the offence to be
decisive and overruled the earlier single judge decision.
The judgement of the Allahabad High Court in Lai Diwan v. State of UP14
brings to light even more distressing facts about the awareness and sensitivity of

6. See. Ved Kuniari. "Dealing with Delinquents'. 430 Seminar 26 (June 1993).
7. Daljit Singh v. State. 1992 Cri. L. J, 1051 (P&H): Santa v. State. 1990 Cri.. L..I. 35\
(Bom).
8. Sangita R Jain v. S.A.Dwivedi. 1996 Cri. L. .1. 24 (Bom).
9. Raghbir v. State of Haryana. 1981 Cri. L. J. 1497(56): Rohtas v. State o\f Han-ana. A.l.R.
1.979 S.C. 1839.
10 Umesh Chandra v. State of Rajasthan. 1982 Cri L. J. 994.
11. V. Lakshminaravafia v. State. 1992 Cri. L. J. 334 (AP),
12. Shea Mongol Singh v. State. 1990 Cri. L. J. 1698 (Luck bench).
13. Badella Altiah v. State of AP.1995 Cri. L. J. 1983 (AP) (KB).
14. 1995 Cri. L. J. 3899 (All).

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1999] CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA 395

the judges to law and philosophy relating to delinquent juveniles. A fifteen years
old child was found to have committed murder and was sentenced to life
imprisonment by the sessions judge on 24.7.80. The child remained in prison for
long fifteen years becoming 31 and a half years old. Then on 22.2.85 the High
Court setting him at liberty decided by reference to the Uttar Pradesh Children Act
that he could have been sent to prison but not beyond the time when he would have
attained the age of 15 years.
Similar were the facts in Pradeep Kumar v. State of UP.1" A child below 16
years of age was convicted for murder and sentenced to life imprisonment by the
sessions court despite the UP Children Act because of which he could have been
sent to an approved school till the age of 15 years. The Supreme Court too had
merely set at liberty the accused who was more than 30 years on the date of disposal.
Both these children spent long years in prison because the sessions judge acted
in a mechanical manner and in ignorance of the law. But no compensation has been
granted either by the High Court or the Supreme Court for the loss of liberty for
such a long period of time beyond what was authorised by law.
More recently in Abdul Mannan v. State of West Bengal16 the Supreme Court
rejected the appeal of the accused being tried by sessions court who were children
on the date of commission of the offence and required lo be dealt with by a juvenile
court under the West Bengal Children Act, (WBC Act).
The Supreme Court itself mentioned that the accused, though entitled, could
not be dealt by the Children Court as none was existing. Even now no juvenile
court has been established for that area under the JJA. The court further said that
in the absence of a juvenile court, the sessions judge was authorised to deal with
delinquent children and that the matter was with the sessions judge.
If the case was to be decided on this basis, the Supreme Court should have
explained that while dealing with delinquent juveniles the sessions court was to
function according to the powers and procedure of a juvenile court prescribed by
the WBC Act.17 The trial of delinquent juveniles is required by the WBC Act to
be separated from that of non-juveniles charged for the same offence.18 Summon
procedure is required to be followed while holding trial of juvenile delinquents.
With the coming into force of the JJA repealing the WBC Act. among others, the
sessions judge is authorised to continue with the trial of delinquent children
pending before it. |y But if the sessions court finds that the child had committed
the offence, it is required to transfer the matter to the juvenile court for orders
according to the provisions of the JJA. In the absence of a juvenile court, the
sessions court can pass orders but only in accordance with the Juvenile Justice Act
1986. Instead of doing this while dismissing the appeal, the Supreme Court 20 said:

15. A.l.R. 1994 S.C. 104.

16. (1996) I S.C.C. 665.
17. The WBC Act, S.28.
18. Id. S. 25.
19. Section 3. S.26.
20. Supra npte 16 at 666-667.

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396 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 41 : 3&4

...even though at the relevant time the appellants were juveniles, by passage
of time they no longer remained to be juvenile offenders. They are now
in mid-thirties.

The object of the Juvenile Justice Act is to reform and rehabilitate the
juvenile offenders as useful citizens in the society. In the facts and
circumstances of the case, the benefit of the Central Act was denied to them
due to their own act of keeping the trial pending by protecting litigation
kept the case pending trial and in the meanwhile the appellants had
crossed the age of juvenile offenders and became adults. We do not think
it is a proper case for our interference as no useful purpose under Central
Act would serve.

One fails to understand whether the criterion to apply the Children Act in a case
is the factum of the offender being below the specified age on the date of commission
of the offence or her/his conduct after the commission of the offence?
The Supreme Court itself in an earlier case 2 1 decided that it was the age of the
accused at the time of commission of the offence, which determined the applicability
of the Children Act. In this case it was established that the accused was a child on
the date of the offence. Hence, he should have been dealt with under the provisions
of the West Bengal Children Act. 2 2 Had the proceedings been initiated as required,
his attainment of the specified age during the proceedings did not bar continuation
of the proceedings or passing of an order under the said Act. It had not been
pleaded that he had ceased to be a child by ihe time proceedings were initiated
against him before the sessions court took cognisance of the offence or by the time
he was arrested for the offence. In earlier cases where the child had become 25-26
years of age by the time it decided the issue of age, it closed the proceedings in
one case 2 3 while referred the matter to the juvenile court for disposal in another
ease.

IV Options for change

Apparently there are three standpoints on the matter - ( i ) some amendments
in the JJA; (2) two separate pieces of legislation for neglected and delinquent
children: and (3) one new holistic legislation. Dr. Hira Singh presents the first view
point. He emphasises the need to reinforce the existing infrastructure under the JJA
with some changes made to the legislation without changing its basic scheme. 2 5
\Singh basically believes that the true potential of the JJA has not been achieved
till date and it is more important lo realise that, instead of ushering in another
legislation. Taking cognisance of the emerging thinking for change in juvenile

21. Supra nole 1 0.

22. The WBC Aci. Section 3.
23. Jaxendra v. Stale of UP. 1982 Cri. L..1. 1000.
24. Supra note 10.
25. Hira Singh. "Current Issues in Juvenile Justice Administration" Paper presented at
National Consultation on Juvenile Justice organised by National Law School of India thihersity.
Bangalore (1999).

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 1 999] CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA 397

justice, Singh has suggested certain areas for particular attention.26 The assumption
underlying this standpoint is that the problems faced in the implementation is due
to some lacunae in the law and may be solved by such amendments. It also believes
that a new law will introduce more ambiguity and uncertainty till the new law again
becomes known and settled. The strength of this standpoint lies in the fact that after
so many years the JJA has now got to the stage when government and officials have
got to know about it. Bringing in wide amendments or a new law will introduce
ambiguity and again need the gestation period till the government will be ready
to deliver and implement the new law.
The question, however, is whether the unsatisfactory implementation is because
of problems inherent in its conception itself or due to unawareness of the law? That
there is large scale unawareness still about the JJA even among the judiciary, leave
apart the lawyers, police and the children, is beyond doubt. There have been at least
two cases in which the Bombay high court had to clarify that the Bombay Children
Act stood repealed since the implementation of the JJA. : 7 Despite such
clarifications, in another case the Bombay High Court itself prosecuted and convicted
a person for an offence against a child under the Bombay Children Act committed
after its abolition!2* The magistrate sending the 14 years old girl to central jail
in Delhi apparently did not know the law. If after so many years of its enforcement,
the implementation and awareness is so unsatisfactory, what justifies the confidence
or optimism of its believers that it can now be implemented in its letter and spirit?
It is not surprising, therefore, that the sceptics will have nothing to do with the
existing law and think that a completely new law is needed if any change is to be
envisioned in the juvenile justice system. The sceptics however are divided about
the need to have one holistic legislation for all children or to have iwo separate
ones for delinquent and neglected children. While the National Consultation on
the Juvenile Justice Act held in Delhi favoured a completely new holistic legislation
dealing with all aspects of survival, growth and development of all children.- 9
those held at Bangalore raised the question of two separate laws for neglected and
delinquent children which was vehemently opposed by others. 30

26. Applicability of the JJA to boys and girls up to the age of 18 years tor boih in accordance
with the UN Convention on Rights of the Child; re-examination of the definition of neglected
child to make it more precise and operational; special police units only to deal with children
under the JJA; further enlargement of community options for placement of children; provision
u{' adoption among the measures for dealing with children under the JJA; mandatory separation
of neglected from delinquent juveniles in (he observation homes; provision of basic norms of
institutional facilities, services and staff in ihe Act itself; review of provisions relating lo
uncontrollable children and cruelty to children to impose more responsibilities on parents and
msiiiuiions in view of the Convention on Rights of Children; submission of annual report by
stales for public discussion on progress achieved, identification of gaps and allocation of
necessary resources.
27. Alain Esteve. 1991 Cri. L.J. 445; Sarita. 1990 Cri. L..I. 351.
28. Umesh Chandra Pawar. 1994 Cri. L.J. 774.
29. N1PCC. "Main Observations and Recommendations" National Consultation Meet on the
Juvenile Justice System and The Rights of the Child, National Institute of Public Co-operalion
and Child Development, New Delhi (1999).
30. S. Mathews. A Report of the National Consultation on Juvenile Justice. Centre for Child
and the Law. National Law vSchool of India Universilv. Bangalore. India (1999).

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398 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 41 : 3&4

The issue came to be focussed once again during the consultations held in
October 1999, to discuss two draft legislations prepared by Prof. L.N.Mitra, director,
National Law School, Bangalore, on the request of Ministry of Empowerment and
Social Justice. The participants did not accept the drafts and it was recommended
that the government should first draft a policy relating to juvenile justice.
On the direction of policy the participants were strongly divided on the questions
whether (a) children committing more serious offences should be excluded from the
purview of juvenile justice system, and (b) neglected children should be excluded
from the purview of any legislation. Both the demands were supported by reference
to practices in the west.
In recent years some countries in the west, notably the USA and the UK, have
taken a backward swing away from care and protection and towards harsh and cruel
punishments for increasing number of juveniles committing violent and more
serious offences. Should India also follow suit and divert juveniles committing
serious offences to the criminal justice system? The question has already arisen
before some High Courts in the context of children committing offences under
TADA Act,31 NDPS Act32 and Schedule Caste and Schedule Tribes (Prevention of
Atrocities) Act 33 and has been decided differently.34 Percentage of crimes by
juveniles to total crime in India is minimal.3? The official figures of juvenile
delinquency since 1988 show a consistent overall decrease.36 Even though in 1997
there is a considerable increase in crimes of sexual harassment, arson, culpable
homicide not amounting to murder, murder, dowry death and molestation, the
figures have fluctuated widely between 1987-1997.37 It is submitted, therefore,
that a shift away from the care and protection philosophy is not justified in the
Indian context. Section 22 of the JJA does take note of serious offences by children
above 14 years of age though leaves much to be clarified in terms of what alternatives
are available to the state government in the situation.38
In case of neglected children care proceedings for children in need are part
of welfare system and not juvenile justice system in the west. It is argued that
their inclusion within the legislation dealing with delinquent children results in
their stigmatisation and denial of care and protection to them. Hence, they should
be excluded from the purview of the JJA or the proposed legislation. 39 The
question of stigma was well debated in Parliament while discussing the Children

31. Jagdish Bhuyan v. State. 1992 Cri. L.J. 3194 (Gah.).

32. Antarya/ni Patra v. State 1993 Cri. L.f. 1908 (On.).
33. In re sessions Judge Katpetta. 1995 Cri. L. .1. 330 (Ker.).
34. Supra note 6.
35. Crime in India 1997. Table 47 shows the share of juvenile delinquency has decreased
lo 0.59r in 1997 from 1,7% in 1988. The rate per lakh of population has come down to 0.8
in 1997 from 3.1 in 1988.
36. Id. Table 53 shows that the number of incidents of juvenile delinquency has gone down
to 17796 in 1997 from 24827 in 1988. Only 7909 children were arrested for a crime under
the Indian Penal Code showing a decline of 21.1% from such cases in 1996.
37. Id. see. Table 48.
38. Ved Kumari, Treatise on the Juvenile Justice Act. I9fi6.nl 175-187(1993). Indian Law
Institute.
39. Supra nole 30.

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1999] CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA 399

Bill, 1953, the Children Bill, 1959 and the Juvenile Justice Bill, 1986. Both
categories of children were included to ensure that no stigma should be attached
to the delinquent children. 40 Ironically, the reverse has happened. Crores of
neglected children41 as against a few thousand delinquent children are within the
purview of the JJA but instead of the disproportionately large number of neglected
children subsuming the meagre minority of delinquent children to ensure care and
protection to all, penalisation and stigmatisation of the former along with the latter
has occurred. I do not think that the problem of penalisation and neglect of the
neglected children by state will be solved by excluding neglected children from
the purview of the same legislation. The problem is more deep rooted in the
psychology of the privileged having negative attitudes towards the unprivileged
as potential troublemakers and burden on society.
Under the present system, the wide definition of neglected juvenile under the
JJA42 makes majority of India's child population43 subject to state power without
vesting in them any rights to state care and protection. The argument would have
had some merit if neglected children were to be excluded from any legislation and
were provided care only under the welfare schemes of the state. In such a case the
neglected children may avail of the state care if they found it suitable and will be
free to walk out from care institutions at will if they failed to provide environment
and facilities conducive to their growth and development. They will not be subject
to the unbridled power of the state whereby the state decides when, how many, and
in what circumstance, children may be taken in compulsory 'care' (read custody)
without any check on the quality of care offered. However the present move is not
in that direction. The current proposal is only to have two separate legislations for
the neglected and delinquent children. Such a move does not address the issue of
unequal power equation between children and state, making children vulnerable
to abuse and harassment by state agencies without any substantial benefit to them.
In my opinion such a move will not do anything for the neglected children but will
result in further penalisation and stigmatisation of delinquent children. Such a
situation will also create more problems for neglected children who are well known
to be falsely implicated in commission of offences.

40. Rajya Sablui Debates, 19-12-53: 19-4-54; 22-4-54; 24-4-54; 27-4-54: 28-4-54; 7-12-
60; 18-11-86.
41. There are no official statistics available on the number of neglected children in the
country. Even if one was to construe that figure by reference to the fact that 30% of India's
population lives below the poverty line and 39% of India's population is below the age of 16.
the number comes to about 12 crores.
42. S. 2 (I) of the JJA includes a child found begging; found without a place a permanent
abode and without any ostensible means of subsistence and a destitute; without parents or whose
parent are unfit or are incapacitated lo exercise control; lives in a brothel or associates with
prostitutes or other persons leading an immoral, drunken or depraved life: who is being or likely
to be abused for illegal or immoral purposes or unconscionable gain.
43. 39% of India's population is below the age of 16 years and 49% of India's rural
population and 38%- of urban population lives at/or below poverty level. Through migration
to urban areas. 37 million children live in urban poverty. Claire O'Kane and Kit a Panicker.
"Juvenile Justice System: A Situational Analyses of the Reality of the Children" paper presented
al- the National Consultation on Juvenile Justice. I l-M Fe.hninrv 19O0i

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400 JOURNAL OF THE INDIAN LAW INSTITUTE iVol. 41 : 3&4

Neither situation is desired by those demanding exclusion of neglected children

from the purview of the JJA. Their desire is to provide better care and protection
to all children. The suggestion for separate legislation for neglected and delinquent
children also neglects to take into consideration the example of various places in
the 'west' which have children committing offences also dealt within the care
proceedings. In Scotland (UK), all children needing care up to the age of 16 years
fall within the child hearing system.44 All children needing care whether neglected
or delinquent, are produced before the children's panel constituted by volunteers
from the community and they decide the future course of action by reference to the
child's developmental needs rather than by the fact of the child having committed
an offence or not.
The demand for a new comprehensive and holistic legislation for all children
has been reinforced time and again. The NIPPCD Meet recommended "the need to
have a holistic law relating to juvenile justice as a large number of laws such as
family law, labour law, property law, environmental law, constitutional law, contract
law, international law have specified provisions conferring right and entitlements
for children which need to be converged under one umbrella as this would facilitate
a comprehensive treatment to the juvenile justice system and other survival,
development and participation rights of children." 45
For various reasons the JJA needs a comprehensive review and amendments in
the JJA would not suffice.46 In view of India having signed the United Nations
Convention of the Rights of the Child, it is incumbent on the state to give rights
to children rather than merely discharge its welfare responsibilities towards children
under the new legislation. Any proposal for a new legislation certainly needs to
take note of the problems faced in the functioning of the JJA. The pattern of
implementation of the JJA till now has reflected a quantitative approach. Efforts
have been directed at increasing the number of juvenile courts, juvenile welfare
board and juvenile institutions so as to cover all the areas covered by the JJA. It
is time now to focus on the qualitative aspects of the implementation process. The
state governments and competent authorities should now concentrate their efforts
at implementation of other crucial provisions of the JJA which have remained
ignored hitherto and have adversely affected the rights of children and in ensuring
an effective juvenile justice system.
For example, care should be taken to ensure that only those magistrates are
selected as the juvenile court magistrates who have special background or training
in child psychology and welfare as mandated by section 6(3) of the JJA.
Appointment of the panel of two social workers to assist the juvenile court will
ensure a just balance between the technical legal training of magistrates and the

44. Children's Hearing system has been established since 1971 under the authority of Social
Work Act. 1968. Children's Reporters are a key element of the Child Hearing System to whom
all referrals of children who may be at risk, or who may have offended or been in some other
kind of trouble are made in the first instance.
45. Supra note 29 at \-2.
46. Ved Kuniari. "Plea for review of the Juvenile Justice Act 1986". Jr of Criminology and
Criminalistics, at 1 (April 1996).

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1999] CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA 401

care and protection approach of the social workers.47 The competent authority
should make use of the provisions relating to place of safety48 and fit person/fit
institution49 for temporary and long term residence of children in the locality
where the children usually live instead of sending them to observation/ juvenile/
special home situated far away. Visitors, as provided by section 54 should be
appointed for each home so that they can work as spokespersons for the inmates.
Advisory Boards under section 53, if activated, can minimise many problems
arising due to uncoordinated activities of various segments of the juvenile justice
system.
Selection and training of right kind of personnel is the key to solving most of
the problems. The recruitment qualifications, pay scales, classification, in service
and refresher training programmes need to be revised comprehensively. It is
unrealistic to expect that the least educated, lowest paid caretaker with army or
police background will act, without any training in child welfare, psychology or
the philosophy of juvenile justice, as the 'modeF to be emulated by the inmates
of the juvenile institutions. The policy of a departmental inquiry and routine
suspension of the caretakers in case of escape of a juvenile from the 'home' needs
to be changed if the care and protection approach is expected to be adopted by
them.
Training programmes are needed for each category of personnel dealing with
children at different stages of the processes under the JJA. While delivering
lectures on the JJA to judicial, police and correctional officers in the training
programmes organised by the National Institute of Criminology and Forensic
Science the author finds only rarely an officer or two who are actually functioning
under the JJA in the group of 30-35 trainees. It certainly does not amount to the
best utilisation of available resources. Despite the organiser's specific request for
deputation of officers from the concerned field, other officers get deputised because
either the department cannof afford to relieve the concerned officer or the concerned
officer has some personal preoccupation.
The training of juvenile justice personnel should,concentrate on two aspects.
The first is the law as laid down by the JJA and the judicial decisions. The second
and equally important aspect is the philosophy, origin and nature of juvenile
justice under the Juvenile Justice Act 1986.

V Reconceptualising juvenile justice system

For implementing the existing legislation, for amending it and for framing a
new law, what is essential is a clear conceptualisation of the juvenile justice
system. The term juvenile justice has been used in the sense of social justice for
-children in need of care and protection and in the sense of juridical justice after
the onset of delinquency. It is due to this dichotomous position that the latter is
seen as a subset of criminal justice system and results in negative approach towards
all children within the purview of legislation. Most of the judicial decisions

47. Juvenile Justice Act, S.5 (3).

48. Id. Ss.2 (o), 15(3), 18(3).
49. Id. Ss. 2(f). 16(1). 2 K b ) and (c).

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apparently reflect a technical view of the provisions, influenced by the criminal

justice approach and perspective of all concerned. It is essential to break away from
this conception and think of juvenile justice as a new and different system for
ensuring developmental rights to all children.
It is submitted that even the JJA does not conceive the juvenile justice system
under it as a subset of the broader criminal justice system but as a completely
independent justice system for juveniles. The opening statement mentions that the
JJA has been enacted to provide for the care, protection, treatment, development
and rehabilitation of neglected and delinquent juveniles...." It may be noticed tha|
punishment or even 'trial' of delinquent children is not among the purposes of the
Juvenile Justice Act 1986. For achieving its objectives, the JJA prescribes a detailed
scheme ensuring complete segregation of delinquent children from adult offenders
as well as the criminal justice system at all stages of proceedings concerning her/
him.
A delinquent child after arrest cannot be sent to a police station or jail 50 but
may be kept in an observation home,51 a place of safety or a parent or guardian.
An observation home, as the name suggests, has to have the qualities of a home and
is used for the purposes of observation of the child's attitudes and responses. Even
after the finding that she/he has committed an offence, the order of
institutionalisation. if chosen, will place her or him in a special home. A special
home has to provide not only care, protection and maintenance to the child but in
addition is responsible to provide facilities for reformation of the delinquent
child.52 Inquiry in relation to delinquent children is to be held by a juvenile court.
which is constituted not by any stipendiary magistrates, but only by those stipendiary
magistrates who have special knowledge of child psychology and welfare."'3
Summons procedure as prescribed by the Cr.PC is be followed by the juvenile court,
as far as may be and subject to the provisions of the JJA54 irrespective of the fact
whether the offence committed is minor or most serious.55 Even for purposes of bail
of the arrested juvenile the distinction between bailable and non-bailable offences
has been done away with and bail may be refused only on the three grounds
mentioned in section 18 of the JJA. 56 No penal consequences like death penalty,
imprisonment, imprisonment in default of payment of fine or furnishing surety may
accrue to a delinquent child." 57
It is submitted that a juvenile court is not a criminal court under the scheme
of the JJA and this fact has to be recognised if we want any changes in the attitudes
of personnel functioning under the JJA.
Under the scheme of the JJA, neglected children are dealt with by the juvenile
welfare board. 58 The members of the juvenile welfare board are vested with the

50. Juvenile Justice Act, S.18 (2) and (3).

51. Id. S.l 1.
52. Id S.IO.
53. Id. S. 6(3).
54. Id. S. 39.
55. Supra note 9.
56. Mata v. State of Rajasthan. 1996 Cri. L.J. 743(Raj).
57. Juvenile Justice Act, S.22.
58. Id. S. 4(2).

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1999] CURRENT ISSUES IN JUVENILE JUSTICE IN INDIA 403

powers of a magistrate. 59 It functions as a bench of magistrates and follows

summons procedure. 60 By no stretch of imagination can it be said that a juvenile
welfare board is a criminal court. The only distinction between the constitution,
powers and procedure of a juvenile welfare board and a juvenile court is that while
the former is constituted by honorary magistrates,61 the latter is constituted by
stipendiary magistrates.62 Therefore, can it be said that despite everything else
being the same, the fact of a magistrate being the presiding officer in a juvenile
court alone rtiakes it a criminal court? It is not the designation of the presiding
officer or the procedure prescribed for its proceedings which decides the
classification of a court as a criminal court but what it deals with and what it does
with what it deals with.
A juvenile court magistrate deals with children alleged or found to have
committed an offence. However, what needs to be analysed is whether the acts
committed by children covered by the JJA can be classified as offences? An offence
is that act which has been made punishable by the Indian Penal Code or any other
law.63 It is very important to note that though the act made punishable by such law
when committed by a child, remains punishable under that law but the child is not
punishable because of the JJA. 64 If the distinguishing feature of an offence is that
k is punishable, it has lost this feature under the scheme of the JJA. Cases of non-
child offenders65 who are released after due admonition or on probation are
distinguishable from those of children. In case of a non-child offender, the magistrate
has discretion and has to choose between penal and non-penal measures. But in
case of a child, no punishment can be imposed. Even though fine (which is
included in the list of punishments under section 53 of the IPC) may be imposed
on a child,66 the JJA has altered its penal character by limiting its imposition only
if the child is above 14 years of age and earns money and by the prohibition of
sending the child to imprisonment in default of payment of fine.67
A juvenile court cannot be equated with special courts established in other
special laws dealing with crime. The differential procedure prescribed for a juvenile
court coupled with the non-penal consequences flowing therefrom have turned the
juvenile court inherently different and distinguishable from other special courts.
Such special courts though have differential procedure but continue to prescribe
usually harsher penal measures for the convicts.
A juvenile court is distinct from an ordinary civil court as well, A civil court
adjudicates private disputes between two parties and gives decision in favour of
the party, which establishes a just claim. In case of a juvenile court, its responsibility

59 Ibid.
60. Id. S.39.
61. Id. S. 5(2).
62. Id. S. 4(2).
63. Indian Penal Code, S.40.
64 Juvenile Justice Act, S.22 r/w S. 21.
65. The term non-child offender has been preferred over adult offenders as minor boy<
above the age of 16 but below 18 years are also triable by the criminal justice system.
66. Juvenile Justice Act, S.21(l) (e).
67. Id. S.22 ( I ) .

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404 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 41 : 3&4

is not merely to judge whether the child has committed the alleged activity or not
but also to decide the best measure aimed at securing care, protection, treatment,
development and rehabilitation of the child. This obligation of the juvenile court
is peculiar to it and not shared either by a criminal or a civil court.
The juvenile justice system began and developed as an off shoot of criminal
justice system but the scheme of the JJA clearly shows that it has completely
severed its ties with the criminal justice system. Recognition of this independent
status to the juvenile justice system by all within and outside the system, is a
precondition for bringing about any change in formulation and implementation of
laws to ensure justice to juveniles.

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