A STUDY OF THE JUVENILE

JUSTICE SYSTEM IN INDIA

A

DISSERTATION

SUBMITTED TO THE FAIRFIELD HVPS COLLEGE OF LAW IN PARTIAL

FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF

MASTER OF LAW

(L.L.M.)

Under The Supervision of: - Submitted By:

ASST. PROFESSOR L.L.M. 4th Sem

HVPS COLLEGE OF LAW Enrol. No.:-

BATCH: 2021-2023

i
 DECLARATION

I, pursuing L.L.M. at HVPS COLLEGE OF LAW, MUMBAI

do hereby declare that this is my original work prepared by me in partial fulfillment
of the requirements for any purpose, academic or otherwise under the
supervision of, (Asst. Professor -Hvps College of Law).

Neither the said work, nor any part thereof, has earlier been submitted to any
University or Institution for the award of any degree and diploma.

Further, wherever any book, article, research work or any other work has been used to
carry out this study, the same has been fully cited and acknowledged.

L.L.M. (Hons.)

HVPS COLLEGE OF LAW

DATED:

ii
 CERTIFICATE

This is to certify that the Dissertation entitled JUVENILE JUSTICE SYSTEM is a

bona fide record of independent research work done by , student of
L.L.M. 4th Semester Enrollment No: under my supervision Asst. Professor Ms.
and submitted to

Supervisor

Ms.

ASST. PROFESSOR

iii
 ACKNOWLEDGEMENT

It is my moral duty to acknowledge the genuine help and support, which I have
received from different people during the completion of this dissertation.

First of all, I am highly thankful to my learned supervisor Ms. (Asst.

Professor) Hvps College of Law, for supervising me in my dissertation. She with her
guidance, vigilant supervision and cooperation, taught me the right procedure to carry
out my work. She rendered her full co-operation and help, sometimes laying aside her
own work by spending her precious time in guiding me. She on the one hand, allowed
me to work freely, while on the other she critically analyzed my work.

I am grateful to Ms (Asst. Professor) Hvps College of Law, for

supporting and guiding me in completing my research work.

Above all, I thank almighty for blessing me with the strength and capability to
complete this venture, without which nothing is possible.

L.L.M.

HVPS COLLEGE OF LAW

DATED:

iv
 LIST OF ABBREVIATIONS

 A. -- Indian Law Reports Allahabad series

 Acton -- Acton‘s Reports, Prize Causes, Privy Council (Eng.)
 AC -- Appeal Cases (Eng.)
 Agra -- North-Western Provinces High Court Reports, Agra
 Agra F.B. -- North-Western Provinces High Court Reports, Agra
 Agra FB -- Agra Full Bench Rulings
 Agra FBR -- Agra Full Bench Rulings
 Agra HCR -- Agra High Court Reports
 AIR -- All India Reporter
 AIR All -- All India Reporter Allahabad
 B. -- Indian Law Reports Bombay Series
 B. & Ald. -- Barnwell & Alderson‘s Reports (Eng.)
 Bald. -- Bal deva Ram Dave‘s Privy Council Cases
 Beng.LR -- Bengal Law Reports
 BHC -- Bombay High Court Reports
 B.L.J -- Bombay Law Journal
 B.L.R -- Bengal Law Reports
 B.L.R -- Bombay Law Reporter
 BLT -- Burma Law Times
 CARA -- Central Adoption Research Authority
 CJM -- Chief Judicial Magistrate
 CMM -- Chief Metropolitan Magistrate
 CRC -- Convention on the Rights of the Child, 1989
 CWC -- Child Welfare Committee
 Cal -- All India Reporter Calcutta
 Cal -- Indian Law Reports Calcutta series
 Cal LJ or CLJ -- Calcutta Law Journal
 DTO -- Detention and Training Order
 ECHR -- European Court for Human Rights
 E.R -- English Reports (Eng.)

v
 El. & Bl. -- Ellis & Blackburn‘s Reports (Eng.)
 Ibid -- Latin, short for ibidem, meaning the ―same place‖
 ILR All -- Indian Law Reports Allahabad series
 ILR Bom -- Indian Law Reports Bombay series
 IPC -- Indian Penal Code
 ICCPR -- International Convention on Civil and Political Rights
 I.R -- Irish Reports (Ireland)
 Ind. Cas. -- Indian Cases
 JJA -- Juvenile Justice Act
 JJB -- Juvenile Justice Board
 KB -- King‘s Bench (Eng.)
 KBD -- King‘s Bench Division (Eng.)
 KLR -- Kathiawar Law Reports
 LJP. -- Law Journal Reports
 LJPro -- Law Journal, Probate Court (Eng.)
 LLJ -- Lahore Law Journal
 LWOP -- Life without Possibility of Parole
 Mad HCR -- Madras High Court Reports
 Mad LJ or MLJ -- Madras Law Journal
 NGO -- Non Governmental Organization
 p. -- Page
 pp. -- Pages
 Pat. LR -- Patna Law Reporter
 UDHR -- Universal Declaration of Human Rights
 UNCRC -- UN Convention on the Rights of the Child, 1989
 v. -- Versus

vi
 TABLE OF CASES

 Amaravathi v. State of Tamil Nadu, H.C.P (MD) No. 1122 of 2016

 Dharambir v. State (NCT of Delhi) and Anr, (2010) 5 SCC 344
 Duksha v. Ukraine
 Exploitation of Children in Orphanage in the State of Tamil Nadu v. Union of
India,
 Francis Caralie Mullin v. The Administrator Union Territory of Delhi and
other, A.I.R. 1981 S.C. 746
 Gopi Nath Ghosh v. State of West Bengal, AIR 1986 SC 1773
 Hari Ram v. State of Rajasthan and Anr, (2009) 13 SCC 211
 Kashish Minor v. State of Haryana, CRM-M-33941-2017
 Lakhi Sahu v. Emperor, AIR 1932 Cal. 437
 Legal Aid Committee v. Union of India, AIR 1989 SC 1278
 M.C. Mehta v. Union of India, AIR (1996) 6 SCC 756
 Mohan v. State, CRL.A.-1181/2016
 Mukarrab and others v. State of Uttar Pradesh, Criminal Appeals Nos. 1119-20
of 2016, decided on November 30, 2016
 Mukesh Yadav v. Union of India and Ors.W.P.(C)—6062/2017
 Nart v. Turkey, 20817/04
 Neelam Joshi v. State of Rajasthan, CRLMA Case No. 265 of 2017
 Nortier v. The Netherlands
 People‘s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473
 Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731
 Rajinder Chandra v. State of Chhattisgarh, AIR 2002 SC 748
 Robin Singh v. State of Haryana, CRM-M-11451-2017
 Sakshi v. Union of India, AIR 199 SC 1412
 Salil Bali v. Union of India & Anr., AIR 2013 SC 3743
 Sampurna Behrua v. Union of India & Ors (2011) 15 SCC 232
 Satto v. State of Uttar Pradesh, 1979 Cri.L.J. 943
 Sheela Barse v. Secretary, Children Aid Society, AIR 1987 SC 656
 Sheela Barse v. The Secretary, AIR 1987 SC 656: (1987) 3SCC 50
 Sri Ganesh v. State of Tamil Nadu and Anr, CRIMINAL APPEAL NO. 39 OF
2017 (Arising out of SLP (Cri.)No.9073 of 2015), decided on 6 January 2017

vii
 Sumit Kumar Singh v. State of Madhya Pradesh, CRR 02973/2017
 Stephanie Joan Becker v. State and Anr, Civil Appeal No. 1053 of 2013
 Sukhwant Singh & Ors. v. State of Punjab (2009) 7 SCC 559

viii
 TABLE OF CONTENTS

DECLARATION........................................................................................................ii

CERTIFICATE..........................................................................................................iii

ACKNOWLEDGEMENT.........................................................................................iv

LIST OF ABBREVIATIONS................................................................................v-vi

LIST OF CASES................................................................................................vii- viii

CONTENTS........................................................................................................ix- xiv

SYNOPSIS...................................................................................................1-7

1 Review of Literature..................................................................................1
2 Need for the study..................................................................................1-2
3 Objective of Study.....................................................................................3
4 Hypothesis.................................................................................................4
5 Research Questions...................................................................................4
6 Research Methodology..........................................................................4-5
7 Scheme of Chapterisation......................................................................5-7

CHAPTER- 1

DEFINITION OF THE TERMS „CHILD‟ AND „JUVENILE‟ AND THE

DIFFERENCE BETWEEN THEM............................................................8-13

‗Child‘ 8

Child under Juvenile Justice (Care and Protection of Children) Act,

2015 8-10

Classification of the term Child‘..............................................................10-12

ix
 JUVENILE‘...........................................................................................13

CHAPTER- 2

JUVENILE DELINQUENCY...................................................................14-21

Introduction...................................................................................................................14

What is Juvenile Delinquency.................................................................................14-15

Juvenile Delinquents.....................................................................................................16

What are the causes of Juvenile Delinquency?.......................................................16-17

Dealing with Juvenile Delinquency.........................................................................18-19

Juvenile Delinquency Prevention…........................................................................19-21

CHAPTER- 3

HISTORY OF JUVENILE JUSTICE SYSTEM (ACT OF 1986, 2000 AND

2014)……………………………………………………………………… 22-30

Ancient period…..........................................................................................................23

Modern period…...........................................................................................................23

British period….......................................................................................................24-25

After Independence.................................................................................................25-29

The Children‘s Act, 1960…....................................................................................25-26

The Juvenile Justice Act, 1986…............................................................................26-27

The Juvenile Justice (Care and Protection of Children) Act,

2000…...........................................................................................................27-28

The Juvenile Justice (Care and Protection of Children) Act, 2006.........................28-29

x
 The Juvenile Justice (Care and Protection of Children) Act,
2015…...........................................................................................................29-30

CHAPTER- 4

PRESENT JUVENILE JUSTICE SYSTEM IN INDIA........................31-74

Introduction.............................................................................................................31-32

Role of Judiciary in Indian Juvenile Justice System................................................32-33

Role of Police in Indian Juvenile Justice System.........................................................34

The Juvenile Justice (Care and Protection of Children) Act, 2015.........................35-44

General Principles of Juvenile Justice Board..........................................................36-41

Key provisions of the Juvenile Justice (Care and Protection of Children)

Act, 2015......................................................................................................42-44

Important Provisions of Juvenile Justice (Care and Protection of Children)

Act, 2015......................................................................................................44-58

Children‘s Court......................................................................................................59-63

Children‘s Court may decide........................................................................................60

Powers of Children‘s Court.....................................................................................60-62

Children‘s Court may not decide..................................................................................63

Child Care Institution..............................................................................................64-71

Rehabilitation..........................................................................................................71-72

Adoption 72-73

Offences under the Act.........................................................................73-74

xi
 CHAPTER- 5

CRITICAL ANALYSIS OF WORKING OF COURTS UNDER

JUVENILE JUSTICE ACTS....................................................................75-83

Case Study 1…........................................................................................................75-78

Case Study 2…........................................................................................................79-80

Case Study 3….............................................................................................................81

Case Study 4….............................................................................................................82

Case Study 5…..............................................................................................................83

CHAPTER 6

CONSTITUTIONAL AND STATUTORY PROVISIONS RELATING TO

JUVENILE JUSTICE SYSTEM..............................................................84-89

The Constitution of India.........................................................................................84-87

Important Constitutional provisions relating to the welfare of

juvenile...........................................................................................................85-87

Indian Penal Code, 1860 and the Code of Criminal Procedure,

1973…..........................................................................................................88-89

CHAPTER 7

JUVENILE JUSTICE SYSTEM IN OTHER COUNTRIES AS

WELL...........................................................................................................90-97

The United States of America.................................................................................90-92

England and Wales..................................................................................................92-93

France 94-95

xii
Saudi Arabia............................................................................................................95-96

Pakistan 96-97

CHAPTER 8

INTERNATIONAL CONCERNS FOR JUVENILE............................98-113

Universal Declaration of Human Rights..................................................................98-99

European Convention on Human Rights...............................................................99-101

United Nations Convention on the Rights of Child (UNCRC)...........................102-103

Rights included within the UNCRC...........................................................................102

Basic principles of UNCRC.................................................................................102-103

General Provisions...............................................................................................103-105

Civil Rights and Rights to Freedoms..................................................................105-107

Family Environment and Alternative Care.........................................................107-109

Basic Health and Welfare....................................................................................109-110

Education, Leisure and Cultural Activities.........................................................110-111

Other Special Protection Measures......................................................................111-112

Other important International documents to regulate Juvenile Justice

System.............................................................................................................113

CHAPTER 9

CONCLUSION AND SUGGESTIONS...............................................114-120

Conclusion...........................................................................................................114-117

Some Shortfalls....................................................................................................117-118

xiii
Suggestions and Recommendations....................................................................119-120

BIBLIOGRAPHY..................................................................121-125

xiv
 SYNOPSIS

1. REVIEW OF LITERATURE

A study can only contribute to the current literature if it is conducted following a

review of the relevant literature. Keeping this general idea in mind, and in order to
narrow the scope of the current study, the researcher will examine the existing
literature on insanity by reading and observing the many publications on the subject. A
survey of theoretical viewpoints, research studies, reports, and reviews from
government, national, and international organizations reveals that adolescent
delinquency and offense are multifaceted and multidimensional. There are several
research regarding areas such as:

 Individual child factors such as age, gender, behavior, and mental health might
impact delinquency and criminality.

 Laws governing juvenile crime and judicial system.

 International instruments on juvenile justice

2. NEED FOR THE STUDY

In the last few decades, the crime rate by the children under the age of 16 years has
increased. The reason for the increasing crime rate may be due to several factors. The
factors pertaining to Juvenile Delinquency (criminal acts performed by Juveniles) can
broadly be divided into two categories- (a) The subjective approach, and (b) The
objective approach. The subjective approaches include: anthropological, medical,
biological, psychological, psychiatric and analytical approaches. Whereas, the
objective approaches include geographical, ecological, economic, social, sociological
and cultural approaches. Among the casual factors, the social and economic factors
are of utmost importance. While, the most disappointing part is that children

1
(especially under the age group of 5 to 7 years) nowadays are used as a tool for
committing the crime as at this stage their mind is very innocent and can easily be
manipulated.

The frightful incident of ―Nirbhaya Delhi Gang Rape Case1‖ on December 16,
2012 shocked the whole nation and many debates were started among legal fraternity
and socialists. The main reason and issue of the debate was the involvement of the
accused, who was just six months short to attain the age of 18 years. The involvement
of the accused in such a heinous crime of rape forced the Indian Parliament to
introduce a new law and thus, Indian Parliament came up with a new law which is
known as ―The Juvenile Justice (Care and Protection of Children) Act,
2015 ‖. The Act eliminated current juvenile laws and made significant revisions. One
such notable change is that juveniles aged 16 to 18 years should be tried under the
Juvenile Justice (Care and Protection of Children) Act of 2015. The Juvenile Justice
(Care and Protection of Children) Bill, 2015, was passed by the Lok Sabha on May 7,
2015, and by the Rajya Sabha on December 22, 2015. It obtained Presidential assent
and went into effect on December 31, 2015. The Act applies throughout India. The
Juvenile Justice (Care and Protection of Children) Act of 2015 strengthens provisions
for both children in need of care and protection and youngsters in conflict with the
law. Nonetheless, some unique and significant. However, several novel and important
definitions were also included, such as orphaned, abandoned, and surrendered
children; petty, serious, and heinous offences committed by children; clarity in
powers, functions, and responsibilities of Juvenile Justice Board (JJB) and Child
Welfare Committee (CWC); special provisions for serious offences committed by
children over the age of sixteen years; and a new chapter on Adoption to streamline
adoption of orphan, abandoned, and surrendered children. The researcher has so
attempted to study and analyze the provisions relating to the juvenile justice
system in India and other nations, as well as to conduct a comparative study
among them.

3. OBJECTIVES OF STUDY

1
K.D. Gaur, Indian Penal Code (Universal Law Publishing Co Ltd, 2013).

2
The goal of this research is to examine the juvenile justice system in India and give a
comprehensive overview of prior and current juvenile delinquency systems. However,
it also examines the structure that governs the indictment of young guilty parties. The
study also attempts to provide a vivid account of other countries' juvenile justice
systems. Juvenile refers to a youngster under the age of 18. India is a developing
country. Juvenile crime rates are on the rise. The Juvenile Justice Act of 1986 was
passed by Parliament to provide care, protection, treatment, development, and
rehabilitation for neglected or delinquent juveniles. However, the Juvenile Justice Act
of 2000 was adopted, and it serves as the fundamental legal foundation for juvenile
justice in India. This Act was further revised in 2006 and 2010. Following the Delhi
gang rape (16th December, 2012), the legislation was widely criticized for its
incompetence in dealing with crimes involving juveniles, including as rape and
murder. The Juvenile Justice Bill, 2014 was enacted by Parliament in December 2015
and became the Juvenile Justice Act of 2015. It entered into force on January 15,
2016. The administration claimed that the existing Juvenile Justice Act of 2000 was
experiencing implementation challenges and procedural delays in terms of adoption,
among other things. Furthermore, the government cited National Crime Records
Bureau (NCRB) data to claim that juvenile offenses had increased, particularly among
those aged 16 to 18.

According to NCRB data, the proportion of juvenile crimes to total crimes climbed
from 1% in 2003 to 1.2% in 2013. During the same time period, the percentage of 16-
18 year olds accused of crimes rose from 54% to 66%. Meanwhile, India has signed
and ratified the 1989 UN Convention on the Rights of the Child (UNCRC), which
defines a person as a juvenile if they are under the age of 18.

3
4. HYPOTHESIS

Following hypothesis was formulated with which the work proceeded:

i) That the legislations formulated are inadequate.

ii) That the judicial approach is satisfactory.

5. RESEARCH QUESTIONS

 What is the historical background of India's present juvenile justice statutes?

 What are the statutory and constitutional laws that govern India's juvenile justice
system?
 What is the judicial position on India's juvenile justice system?
 Explain the main international instruments governing juvenile rights.
 State a comparative examination of other countries' present juvenile justice
systems.

6. RESEARCH METHODOLOGY

Methodology applied to conduct this research is content analysis and descriptive

method. The present study is a doctrinal, non- empirical, descriptive and analytical
which includes perusal of mostly published work like researching through archives of
public libraries, published academic journals.

The proposed research will use the following research materials:

 Text books, research papers and reports published by any university, public
library or a government department or ministry will be used as primary sources of
research material.

4
 The judgments of the different law courts of India and foreign nations, statues and
codes of different countries including India would constitute the primary source of
the research material.

 Research articles and research papers uploaded online by individuals, online blogs
and debates, research work presented in national and international seminars and
debates but not published, political administrative and private papers will be used
as secondary research materials.

 The different manuals, journals, commentaries and digests, observations of the

court judgments, parliamentary debates will also be used as secondary sources for
the purpose of this research work.

7. SCHEME OF CHAPTERISATION:

Chapter -1: Definition of the terms „Child‟ and „Juvenile‟ and the difference
between them

This Chapter defines the terms "child" and "juvenile," as well as the underlying
principles, with the goal of reviewing the current research and achieving the overall
study's objectives. The extent of the phrases mentioned above has been discussed in
relation to the Juvenile Justice (Care and Protection of Children) Act of 2015.

Chapter- 2: Juvenile Delinquency

This Chapter defines juvenile delinquency as the participation of a minor kid, typically
aged 10 to 17, in illegal behavior or activities. A thorough investigation has also been
conducted into juvenile delinquents and the elements that contribute to such
delinquency. Furthermore, there has been discussion about how to deal with adolescent
delinquency and the many preventative services offered by a number of government
and commercial agencies.

5
Chapter- 3: History of Juvenile Justice System (Act of 1986, 2000 and 2014)

The researcher conducted a full study on the history of the juvenile justice system in
India in this Chapter, which includes the backdrop of Juvenile Justice during the
Ancient, Modern, and British periods. However, there has also been discussion about
the Children's Act of 1960 and the Juvenile Justice Act of 1986.

Chapter-4: Present Juvenile Justice System in India

In this Chapter, the researcher conducted extensive research on India's current juvenile
justice system in relation to the Juvenile Justice (Care and Protection of Children) Act,
2015, as well as the fundamental principles by which the Central Government, State
Governments, the Board, and other agencies, as the case may be, will be guided in
implementing the provisions of this Act.

Chapter- 5: Critical Analysis of working of courts under Juvenile Justice Act

In this chapter, the researcher attempts to explore the judicial position of the Juvenile
Justice Act, as well as several case laws on the subject.

Chapter-6: Constitutional and Statutory provisions relating to Juvenile Justice

System

This Chapter contains several constitutional and statutory provisions for the welfare
of juveniles (the Indian Penal Code, 1860, and the Code of Criminal Procedure,
1973).

Chapter-7: Juvenile Justice System in other countries as well

In this Chapter, the researcher attempted to compare the Indian juvenile justice system
with that of other countries using three models that inspire administration of juvenile
justice:-The Welfare, Juvenile, or Control Models, as well as the Retributive and
Restorative Models.

Chapter- 8: International Concerns for Juvenile

This Chapter outlines numerous texts from international organizations that regulate
children's rights or may be relevant for the enforcement of criminal sanctions, such as
the Universal Declaration of Human Rights, the United Nations Convention on the
Rights of the Child, and the European Convention on Human Rights, among others.

Chapter-9: Conclusion and Suggestions

6
This chapter discusses the research's result, as well as significant limitations. The
researcher attempted to make proposals for reforming India's present juvenile justice
system.

*****************************

7
 CHAPTER 1

DEFINITION OF THE TERMS „CHILD‟ AND „JUVENILE‟ AND

THE DIFFERENCE BETWEEN THEM

“A child is a person who is going to carry on what you have started. He is

going to sit where you are sitting, and when you are gone, attend to those
things you think are important. You may adopt all the policies you please,
but how they are carried on depends on him. He is going to move in and
take over churches, schools, universities and corporations. The fate of
humanity is in his hands.”2

- Abraham Lincoln

CHILD

A 'child' is defined as someone under the age of 18 who lacks the maturity to grasp the
implications of their actions, even those that are wrong or against the law. Most
countries now use the principle of "doli incapax," which refers to being unable to
understand the nature and implications of one's actions, in their penal codes. However,
the country's penal legislation, the Indian Penal Code, 1870, also specifies that only
children between the ages of seven and twelve can be convicted, providing that the
conduct they have committed is a serious crime and they have achieved sufficient
understanding to grasp the implications of their deed.

Child under Juvenile Justice (Care and Protection of Children) Act, 2015:

2
Congressional Record- Volume 131, pp-6479

8
 These are the following children‘s under the Juvenile Justice (Care and Protection of
Children) Act, 2015:

i. Abandoned Child,
ii. Child,
iii. Surrendered Child

i. Abandoned Child

According to Section 2(1), ―abandoned child‖ means a child deserted by

his biological or adoptive parents or guardians, who has been declared as abandoned
by the committee after due inquiry.

Child abandonment is the practice of relinquishing interests. Causes include various

social and cultural factors as well as mental illness. However, poverty has been
regarded as a root cause of child abandonment. For instance, people in cultures with
poor social welfare measure systems who are not financially capable of taking care of
a child are more likely to abandon them.

Abandonment of a child is considered to be a serious crime. Whoever being the father

or mother of a child under the age of twelve years, or having the care of such child,
shall expose or leave such child in any place with the intention of wholly abandoning
such child, shall be punished with imprisonment of either description for a term which
may extend to seven years, or with fine, or with both.3 While, on the other hand
„Baby dumping‟ refers to parents abandoning or discarding a child younger than 12
months in a public or private place with the intent of disposing of them.4

ii. Child

3
The Indian Penal Code, 1860 ( Act 45 of 1860), s.317

4
https://en.wikipedia.org/wiki/Child_abandonment

9
 According to Section 2(12), ―child‖ means a person who has not completed
eighteen years of age. In 1989, the United Nations Convention on the Rights of the
Child resolved to recognize specific children‘s rights worldwide. The Convention
defines child as a human being below the age of 18 years unless under the law
applicable to the child, majority is attained earlier.

iii. Surrendered Child

According to Section 2(60), ―surrendered child‖ means a child, who is

relinquished by the parent or guardian to the Committee, on account of physical,
emotional and social factors beyond their control and declared as such by the
Committee.

The Juvenile Justice (Care and Protection of Children) Act, 2015

classifies the term „child‟ into the following categories:

 Child in conflict with law

 Child in need of care and protection

―Child in conflict with law‖ means a child who is alleged or found to

have committed an offence and who has not completed eighteen years of age on the
date of commission of such offence.5

While, ―Child in need of care and protection‖ means a child-

i. who is found without any home or settled place of abode and without
any ostensible means of subsistence; or

5
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.2(13)

10
 ii. who is found working in contravention of labour laws for the time being in force
or if found begging, or living on the street; or

iii. who resides with a person ( whether a guardian of the child or not) and such
person-

a. has injured, exploited, abused or neglected the child or has violated any other law
for the time being in force meant for the protection of child; or
b. has threatened to kill, injure, exploit or abuse the child and there is a reasonable
likelihood of the threat being carried out; or
c. has killed, abused, neglected or exploited some other child or children and there is
a reasonable likelihood of the child in question being killed, abused, exploited or
neglected by that person; or

iv. who is mentally ill or mentally or physically challenged or suffering from terminal
or incurable disease, having no one to support or look after or having parents or
Guardians unfit to take care, if found so by the Board or the Committee; or

v. who has a parent or guardian and such parent or guardian is found to be unfit or
incapacitated, by the Committee or the Board, to care for and protect the safety
and well being of the child; or

vi. who does not have parents and no one is willing to take care of, or whose parents
have abandoned or surrendered him; or

vii. who is missing or run away child, or whose parents cannot be found after making
reasonable inquiry in such manner as may be prescribed; or

viii. who has been or is being or is likely to be abused , tortured or exploited for the
purpose of sexual abuse or illegal acts; or

11
ix. who is found vulnerable and is likely to be inducted into drug abuse or
trafficking; or

x. who is being or is likely to be abused for unconscionable gains; or

xi. who is victim of or affected by any armed conflict, civil unrest or natural
calamity; or

xii. who is at imminent risk of marriage before attaining the age of marriage and
whose parents, family members, guardian and any other persons are likely to be
responsible for solemnisation of such marriage.6

 Children Act, 1960:- Section 2(e) of the Act states ―child‖ means a
boy who has not attained the age of sixteen years or a girl who has not
attained the age of eighteen years.7
 United Nations Convention: – It defines ―child‖ as a human being below
the age of eighteen years unless the law declaration applicable to child,
majority is attained earlier.8

6
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.2(14)

7
The Children Act, 1960 ( Act 60 of 1960)

8
UN Convention on the Rights of Child, 1989, art. 1

12
JUVENILE

The term ‗Juvenile‘ can be defined as a person below the age of responsibility and
above a certain minimum age, who is held to be punishable for breaking the law or
designating young offenders against the law.9

 The Madras Children Act, 1920 defines juvenile delinquents as a person under
14 years of age or upwards but under the age of 16 years, is called a
―young person‖.
 The Bengal Children Act, 1922 defines that any person under the age of 14
years is regarded as a ―child‖; any person of the age of 14 years or upwards
but under the age of 16 years is called a ―young person‖.

Section 2(h) of the Juvenile Justice Act, 1986 defines juvenile as a boy who has not
attained the age of 16 years or a girl who has not attained the age of eighteen years.

Section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000
defines juvenile as a person who has not completed eighteen years of age. While,
Section 2(35) of Juvenile Justice (Care and Protection of Children) Act, 2015
defines juvenile as a child below the age of eighteen years.

***********************************

9
The Oxford English Dictionary, 2nd ed.vol VIII, at pg.332

13
 CHAPTER 2

JUVENILE DELINQUENCY

INTRODUCTION

Juvenile Delinquency is the participation by a minor child, usually between the ages
of 10 and 17, in illegal behavior or activities. Juvenile delinquency is also used to
refer to children who exhibit a persistent behavior of mischievousness or
disobedience, so as to be considered out of parental control, becoming subject to legal
action by the court system. Juvenile delinquency is also known as
―juvenile offending,‖ and each state has a separate legal system in place to deal with
juveniles who break the law.

WHAT IS JUVENILE DELINQUENCY?

Juvenile delinquency occurs when a minor violates a criminal statute. When a

juvenile commits a crime, the procedures that take place differ from those of an adult
offender. In all states, juvenile court systems, and juvenile detention facilities, deal
specifically with underage offenders. While it is common for state statutes to consider
people under the age of 17 as minors, the justice system can charge minors even
younger as adults, if the crime committed is very serious.10

Fredrick B. Sussman has given a summary list of acts or conditions included in

delinquency definitions or descriptions tabulated in decreasing order of frequency and
he indicates the item included in the laws of various states and territories, which are
as follow:

10
https://legaldictionary.net/juvenile-delinquency/

14
 Violates any law or ordinance,
 Habitually truant,
 (Knowingly) associates with thieves, vicious or immoral persons,
 Incorrigible,
 Beyond control of parent or guardian,
 Growing up in idleness or crime,
 So deports self as to injure or endanger self, others,
 Absents self from home (without just cause and without consent),
 Immoral and indecent conduct,
 (Habitually) uses vile, obscene or vulgar language (in public place),
 (Knowingly) enters, visits house of ill repute,
 Patronizes, visits policy shop or gaming place,
 (Habitually) wanders about railroad yards and tracks,
 Jumps train or enters car or engine without authority,
 Patronizes saloon or dram house where intoxicating liquor is sold,
 Wanders streets at night, not on lawful business,
 Patronizes public poolroom or bucket shop,
 Immoral conduct around school ( or in public place),
 Engages in illegal occupation,
 In occupation or situation dangerous or injurious to self or others,
 Smokes cigarettes (or uses tobacco in any form),
 Frequents place whose existence violates law,
 Is found in place for permitting which adult may be punished,
 Addicted to drugs,
 Disorderly,
 Begging,
 Uses intoxicating liquor,
 Makes indecent proposals,
 Loiters, sleep in alleys, vagrant,
 Runs away from state or charity institution,
 Found on premises occupied or used for illegal purpose,
 Operates motor vehicle dangerously while under the influence of liquor,
 Attempts to marry without consent, in violation of law,
 Given to sexual irregularities.

15
JUVENILE DELINQUENTS

Juvenile Delinquents are often defined as children between the ages of 10 to 17 who
commit a criminal act. However, Juvenile Delinquency is a broad based term given to
juveniles who commit crime. Section 2(e) of the Juvenile Justice Act, 1986 stated
that juvenile is the one who has been found to have committed an offence. While,
Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015
also defines juvenile delinquent as a child in need of care and protection. There are
two main types of offenders: repeat offenders and age specific offenders.11

Repeat offenders: Repeat offenders are also known as ―life-course

persistent offenders.‖ These juvenile delinquents begin offending or showing other
signs of antisocial behavior during adolescence. Repeat offenders continue to engage
in criminal activities or aggressive behaviors even after they enter adulthood.

Age- specific offenders : This type of juvenile delinquent behavior begins during
adolescence. Unlike the repeat offenders however, the behaviors of the age-specific
offender ends before the minor becomes an adult.
The behaviors that a juvenile shows during adolescence are often a good indicator of
the type of offender he will become. While age-specific offenders leave their
delinquent behavior behind when they enter adulthood, they often have more mental
health problems, engage in substance abuse, and have greater financial problems than
adults who were never delinquent as juveniles.

CAUSES OF JUVENILE DELINQUENCY

Many children garner the label of juvenile delinquent early, often between the ages of
6 and 12 years. Many juvenile behaviors during the pre-teen and teenage years may
be considered normal behavior for children, as they stretch their boundaries, and
struggle to develop their self perception. There are, however, certain signs that a child
might be headed in a bad direction.
11
https://legaldictionary.net/juvenile-delinquency/

16
Predictors of juvenile delinquencies may appear as early as preschool, and often
include:

 Abnormal or slow development of basic skills, such as speech and language

 Chronic violation of the rules
 Serious aggressive behavior toward other students or teachers

Studies have found that a number of life circumstances constitute risk factors for a
child to become a juvenile delinquent. While these are many and varied, the most
common risk factors for juvenile delinquency include:

a. Broken homes (family)

b. Friends‘ influence
c. Exclusion
d. Racial discrimination
e. Violence on TV, radio and Internet
f. Drug addiction
g. Alcoholism
h. Maternal drug use
i. Poor nutrition
j. Birth complications
k. Lack of stimulation and affection
l. Abuse/ neglect
m. Biological hereditary defects
n. Poverty
o. Modern way of life
p. Absence of recreation
q. Urbanization and industrialization
r. Slum dwelling, etc.12

12
Dr. S.S. Singh, Offences against Children & Juvenile Offence (Central Law Publications)

17
DEALING WITH JUVENILE DELINQUENCY

The procedures followed in the juvenile justice system differ greatly from those
followed for adult offenders. Each state has specific programs or systems that deal
with juvenile offenders. Juvenile offenders come into police contact in number of
ways. Some are caught committing a crime and arrested, others are referred to police
by parents or school officials. Once the police have become involved, they may
choose to deal with a juvenile offender in several ways. The police can:

 issue a warning and release the minor

 detain the minor and notify the parents to pick him up

 refer the case to juvenile court

 arrest the minor and refer the case to juvenile court

If the case goes to court, the minor and the parents meet with a juvenile court intake
officer. The intake officer can handle the case informally, referring the juvenile to a
probation officer, he can dismiss the case, or he can file formal charges. When
deciding whether to file charges, officers often consider:

 the offence

 the offender‘s age

 the offender‘s previous record

 the offender‘s educational or social history

 the ability of the parents to control the offender‘s behavior or seek help

18
 If dealt with informally, the minor reports to a probation officer, and is given advice
and ordered to perform community service, pay fines, attend treatment, or enter
probation.

If charges are filed in juvenile court, the minor is arraigned, at which time his charges
are read before a judge. The judge then decides whether to detain or release the
juvenile until the hearing takes place. After appearing in court, three things are
possible:

1. Plea Agreement – the minor may enter a plea agreement with the court. This often
requires the juvenile to comply with certain conditions, such as attending counseling,
obeying a curfew, or paying restitution.

2. Diversion – the judge may divert the case, which means he retains control over the
matter until the juvenile successfully completes treatment programs or performs
community services. If the juvenile fails to comply, formal charges may be reinstated.

3. Adjudicatory Hearing – the judge may decide to have an adjudicatory hearing,

which is a trial in a juvenile case. While both sides argue the case and present
evidence, a juvenile trial takes place in front of a judge, not a jury. If, at the end of the
hearing, the judge decides the juvenile is delinquent, he may order punishments such
as probation, community service, or even detention in a juvenile centre.

JUVENILE DELINQUENCY PREVENTION

Prevention of juvenile delinquency serves at-risk youths, their families, and the
public, as it can put a stop to the transition of juvenile offenders to adult offenders.
Prevention services are offered by a number of government and private agencies. The
most effective programs for juvenile delinquency prevention share the following key
components:

19
 A. Education

Model programs have assisted families and children by providing them with
information. Some programs inform parents on how to raise healthy children; some
teach children about the ill effects of drugs, gangs, sex and weapons and others aim to
express to youth the innate worth they and all others have. All these programs provide
youths with the awareness that every action has a resulting consequence and
therefore, they should strive to work for their betterment and for the society as well.
Educational programs have the underlying intent of encouraging hope and opening up
opportunities for young people.

B. Recreation

One of the immediate benefits of recreational activities is that they fill unsupervised
after- school hours. The Department of Education has reported that youths are more
likely to commit crimes 2 p.m. and 8 p.m. with crime rates peaking at 3 p.m.
Recreation programs allow youths to connect to other adults and children in the
community. Such positive friendships may assist children in the later years. Youth
programs are designed to fit the personalities and skills of different children and may
include sports, dancing, music, rock climbing, drama, karate, bowling, art and other
activities.

C. Community involvement

Girl scouts, boy scouts, church youth groups, and volunteer groups all involve youth
within a community. Involvement in community groups provide youth with an
opportunity to interact in a safe social environment.

D. Parent – child interaction training program

The "Parent-Child Integration Training Program" takes parents and children

approximately 12 weeks to complete. It is designed to teach parenting skills to parents
of children aged two to seven who exhibit major behavioral problems. The program
places parents and children in interactive situations. A therapist guides the parents,

20
educating them on how best to respond to their child's behavior, whether positive or
negative. The program has been shown to reduce hyperactivity, attention deficit,
aggression, and anxious behavior in children.

E. Bullying prevention program

The Bullying Prevention Program is put into place in elementary and junior high
school settings. An anonymous student questionnaire fills teachers and administrators
in as to who is doing the bullying, which kids are most frequently victimized, and
where bullying occurs on campus. Once teachers and administrators have learned
about how and where bullying occurs at their school, they set up class rules and
facilitate discussions that address the problem. Individual bullies and victims receive
independent counseling. The program succeeds in creating a safer, less hostile
environment for students at minimal cost.13

*************************************

13
https://www.impact law.com/criminal-law/ juvenile/prevention

21
 CHAPTER 3

HISTORY OF JUVENILE JUSTICE SYSTEM IN INDIA (ACT OF

1986, 2000 AND 2014)

 THE APPRENTICE ACT, 1850

 THE REFORMATORY SCHOOLS ACT,1897

 VARIOUS CHILDREN ACTS ( state laws)

 The Madras Children Act, 1920

 The Bengal Children Act, 1922
 The Bombay Children Act, 1924
 The Hyderabad Children Act, 1951
 The Mysore Children Act, 1943
 The East Punjab Children Act, 1950

 THE CHILDREN ACT, 1960

 THE JUVENILE JUSTICE ACT, 1986

 THE JUVENILE JUSTICE ( CARE AND PROTECTION OF CHILDREN) ACT,

2000

22
  THE JUVENILE JUSTICE ( CARE AND PROTECTION OF CHILDREN)
ACT, 2015

ANCIENT PERIOD

In ancient India, the society was governed as directed by ―Dharma‖ and

―Neeti‖. While, the specific mention for the treatment or punishment of the children
can be found in the ―Neeti Shashtra‖ or in ―Dharma Shashtra‖. For example,
we find the following verses in Chanakya Neeti:

―Children should be given love, affection and nourishment till five years, they
should be kept under discipline and control for ten years, and when they attain the
age of 16 years, they should be treated as friends.”

However, it is correct to say that the juvenile delinquency poses a serious problem
before the future society. In ancient period student had to spend his time in learning
and performing Brahmacharya and they did not often come into the contact with the
general public. On these observations an inference can be drawn that in ancient India
the juvenile got fair treatment and their offences were not equated with as the offences
of adult persons and adults were responsible for delinquent behavior because parent
had the responsibility to teach their child discipline in life, to move on right path and
observe moral behaviour.14

MODERN PERIOD

The reforms in the modern period towards the juvenile justice system go to the British
rulers. They adopted a reformistic approach toward the juvenile delinquents in India
through enacting legislations which helped us in protection of juveniles and their
sympathetic handling in order to prevent their growing into the hardened criminals.

14
Dr. S.S. Singh, Offences against Children & Juvenile Offence (Central Law Publications), p.no.211

23
BRITISH PERIOD

The British period witnessed various legislations which are as follow:

 The APPRENTICE ACT of 1850 was the first legislation to address the needs of
children. Children aged 10 to 18 who had been convicted by a court were
supposed to be given some vocational training to help with their rehabilitation.
 Subsequently, the concept of juvenile justice gained momentum with the passing
of the Indian Penal Code, 1860. It provides that nothing is an offence which is
done by a child under seven years of age. 15 While, Section 83 provides for the
immunity given to the children between the age group of 7 and 12 without having
the capacity of understanding the nature and consequences of the acts committed.
On the other hand, there are certain provisions for the protection of children from
sexual abuse in Sections 354, 375 and 509, selling of minors for prostitution in
Section 366, 366A, 366B and 372, buying minors for the purpose of
prostitution in section 373, etc.
 The REFORMATORY SCHOOLS ACT, 1897 and Indian Jail Committee
(1919-1920) advocated for treating juvenile offenders differently than adults.
Detention of juvenile offenders should also be forbidden, and reformatory
institutions and juvenile courts should be established with procedures that are as
casual and fluid as possible. The committee also demonstrated the desirability of
creating provisions and special laws for juveniles who have not committed any
crime so far or who are the first offender, but there will be the possibility in the
near future due to residing with offenders / criminals in reformative and remand
homes.
 The Madras Children Act of 1920 was the first to be enacted, followed by
Bengal and Bombay in 1922 and 1924. However, many states created their own
Children's laws, encompassing the categories of children, such as delinquent
children and neglected children.

15
The Indian Penal Code, 1860 ( Act 45 of 1860) , s.82

24
 The juvenile courts handle these two kinds of children. These children were to be
housed in rehabilitative and remand homes or freed based on their good character,
with the potential of jail if the nature of the offense was significant and the
offender's character was so wicked as to warrant imprisonment.16
 In 1928, Central Provinces (M.P.) approved another Act that followed the pattern
of previous legislation. At the same time, the following states approved laws
related to children.:

 Hyderabad Children Act, 1951

 Mysore Children Act, 1943
 East Punjab Children Act, 1950

AFTER INDEPENDENCE

CHILDREN ACT, 1960

Following the adoption of the Indian Constitution in 1950, the state was required to
provide special protection and treatment to India's children. Following India's
partition, the number of neglected and delinquent youngsters increased dramatically.
Some unique activities were implemented in the first five-year plan to address the
needs of neglected children. Industrialization and urbanization caused a variety of
challenges for children in India, one of which was an increase in occurrences of
juvenile delinquency in major cities, with theft being the most common offence
committed. Because laws dealing with juvenile delinquents existed only in a few
states, the Government of India moved to enact the Children Act in 1960. Though the
Act only applied to the U.Ts, it served as a model for states to follow when enacting
their own Children Acts.

16
Wrobleski. M .Henry( 2000), An introduction to law enforcement and criminal justice (Thomson
Learning, USA), pg.-540-541

25
The Children Act of 1960 addressed the care, protection, welfare, education, and
rehabilitation of neglected and delinquent children. For the first time in India, any Act
expressly barred the imprisonment of children in jail under any conditions. It
established separate legal bodies to deal with delinquent children, including the
Children Court and the Child Welfare Board. The Act defines a kid as a male under
the age of sixteen and a girl under the age of eighteen. However, all states passed or
adopted identical Children Acts, but the concept of the child changed from state to
state, resulting in varying treatment of delinquent and neglected children in different
states.

JUVENILE JUSTICE ACT, 1986

The requirement for a consistent Children Act across the country led to the passage of
the Juvenile Justice Act (JJA) in 1986. It promoted juveniles' best interests by
incorporating not only the major provisions and clauses of the Indian Constitution and
the 1974 National Policy Resolution for Children, but also universally accepted
principles and standards for juvenile protection, such as the 1959 United Nations
Declaration of the Rights of the Child and the 1985 United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (Beijing Rules). The Act
prohibited the detention of juveniles in police lockups or jails.

It also provided for the establishment of various types of institutions for the care of
juveniles, including a juvenile home for the reception of neglected juveniles, a special
home for the reception of delinquent juveniles, an observation home for the temporary
reception of juveniles while any inquiry into them was pending, and an after care
home for the purpose of caring for juveniles after they were discharged from a juvenile
home or a special home. It further guaranteed the involvement of a wide range of
dispositional alternatives, with a preference for family or community-based placement,
and a vigorous involvement of voluntary agencies at various stages of the juvenile
justice process, with the object of protecting children from the devastating effects of
criminalization, penalization, and stigmatization. It also gives a humanitarian approach
to Special Juvenile Police Units through sensitization and training of police personnel.

26
However, several flaws were discovered throughout the Act's implementation. For
example, age determination, separate trials, court proceedings, communication of
charges to parents or guardians, probation officer report filing, juvenile rehabilitation,
and after-care. Juveniles who stayed or were detained in government-run institutions
were unaware of the purpose of their presence. Furthermore, the states and union
territories that developed their laws for implementing the Juvenile Justice Act did not
adhere to the fundamental framework of Juvenile Welfare Boards, Observation
Homes, Juvenile Courts, and After-care Homes. Since the ratification of the
Convention on the Rights of the Child, there has been a conflict between reality and
legal application.

JUVENILE JUSTICE (CARE AND PROTECTION OF

CHILDREN) ACT, 2000

Taking a cue from all these developments, the government recast the Juvenile Justice
Act, 1986 so as to bring it in consonance with the 1989 UN Convention on the Rights
of the Child (UNCRC), which India signed and ratified in 1992 and passed the
Juvenile Justice ( Care and Protection of Children ) Act, 2000. The passing of this
Act endorsed the ―justice ‖ as well as the “rights ‖ approach towards children
and moreover made use of a better terminology by providing for ―juveniles in
conflict with law‖ and ―children in need of care and protection‖. It calls for
keeping both the categories separate pending their inquiries. The Act brings about
standardization in the definition of a ―juvenile‖ or a ―child‖ across the country.
Juveniles in conflict with law‖ include all those children alleged to or found to have
committed an offence. They are to be handled by the Juvenile Justice Board and
are constituted

27
 under Section 4. While, ―childre n in need of care and protection” cover a range of
„at risk‟ children to be dealt by Child Welfare Committee. It furthermore
introduced a wide range of community placement options for juveniles and children.

Section 8 provides for establishment of Observation Homes for temporary reception

of the juvenile in conflict with law during inquiry and trial of this case. Section 9
makes provisions for Special Homes for juvenile who are found guilty of an offence.
While, Section 12 provides that the juvenile should be released on bail as general and
should be sent to jail only in special cases. On the other hand, Section 16 prohibits the
Juvenile Justice Board for making any order against the juvenile who are found guilty
of an offence. The following orders cannot be made by the Board:

I. An order awarding death sentence, or

II. An order awarding imprisonment for any term which may extend to
imprisonment to life, or
III. An order for imprisonment in default of payment of fine, or
IV. An order for imprisonment in default of furnishing security.

JUVENILE JUSTICE ( CARE AND PROTECTION

OF CHILDREN)(AMENDMENT) ACT, 2006

The Juvenile Justice (Care and Protection of Children) Act, 2000, was revised in 2006
to make it plain that juvenility would be considered from the date of the commission
of the offence for those who had not reached the age of 18, so resolving the
difficulties presented in Arnit Das v State of Bihar.17 The modified Act made it plain
that under no circumstances could a youngster in confrontation with the law be held in
a police lockup or jail. Furthermore, it specifies that the CJM or CMM has every right
to evaluate the pendency of cases in the Board every six months, and that child
protection units shall be established in each and every state and district to monitor the
implementation of the Act.

17
[(2000)5 SCC 488]

28
 JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) (AMENDMENT) ACT, 2015

The Union Cabinet, chaired by Prime Minister Shri Narendra Modi, has approved the
introduction of an amendment to the Juvenile Justice (Care and Protection of
Children) Bill 2014. The Act proposes to replace the existing Indian juvenile
delinquency law, the Juvenile Justice (Care and Protection of Children) Act of 2000,
by allowing juvenile criminals aged 16 to 18 to be tried as adults for major offenses
committed. On August 12, 2014, the Ministry of Women and Child Development
introduced the Juvenile Justice (Care and Protection of Children) Bill in the Lok
Sabha. The bill was referred to the Department-related Parliamentary Standing
Committee. In their report on February 25, 2015, the Committee offered many
recommendations to better enhance the Bill. Thereafter, the Bill was passed on 31st
December, 2015.

The new act provides that serious offences being committed by juvenile in the age
group of 16-18 years and recognizing the rights of victims as being equally important
as the rights of juveniles, special provisions were proposed to tackle heinous offences
committed by individuals in this age group. The new Act provides that in case of
heinous offences committed by a juvenile in the age group of 16- 18 years will be
examined by the Juvenile Justice Board to assess if the crime was committed as a
‗child‘ or as an ‗adult‘. Since this assessment will take place by the Board which will
consist of psychologists and social experts, it will ensure that the rights of the juvenile
are duly protected if he has committed the crime as a child. The trial of the case will
accordingly take place as a juvenile or as an adult on the basis of this assessment. It
also provides for mandatory registration of all institutions engaged in providing child
care. New offences including illegal adoption, corporal punishment in child care
institutions, the use of children by militant groups and offences against disabled
children were also incorporated in the proposed legislation.

An act to consolidate and alter the law governing children who are alleged to be in
conflict with the law. An act provides that children in need of care and protection be
provided for by meeting their basic needs through proper care, protection,
development, treatment, and social reintegration, as well as by adopting a child-
29
friendly approach in the adjudication and disposal of matters in the best interests of
children and their rehabilitation through processes provided, and institutions and
bodies established, hereunder and for matters concerned with or incidental thereto.

**********************************

30
 CHAPTER 4

PRESENT JUVENILE JUSTICE SYSTEM IN INDIA

INTRODUCTION

Adolescent Justice is a legitimate structure which characterizes equity for adolescent

under the Indian Legal System. The framework is giving an extraordinary treatment
and security to adolescent wrongdoing. Juvenile Delinquency implies a wrongdoing
submitted by youth who is younger than 18 years. At introduce, everybody realizes
that there is an expanding rate of adolescent violations and this expanding rate is
making a begging to be proven wrong issue of age assurance. Age assurance is
considered as a standout amongst the most imperative factor to decide the
development level of the charged. The expanding wrongdoing rate is bringing up an
issue that whether the adolescent can be attempted as a grown-up or not? The
demonstration itself reply to the inquiry that no adolescent guilty party who goes
under the meaning of " tyke with struggle with law" as characterized under sub –
segment 13 of Section 2 of the Act should not be attempted as grown-up and might
sent to Child Care Centre or any Rehabilitation Centre (till the wrongdoer achieve the
age of 21 years and after that he or she may moved to the correctional facility or jail).

Accordingly, the present Juvenile Law in India considers Age Determination as a vital
significance to see if the guilty party falls under the domain of Juvenile Justice Act.
According to the Act, the most extreme residency of discipline which can be given to
the adolescent wrongdoers is three years and this discipline is legitimate for egregio us
wrongdoing too. In the event of a grownup wrongdoer, the most extreme discipline
which can be given is 7 years or life detainment or capital punishment. In any case,
the Act, if there should be an occurrence of adolescent guilty parties accept on
Reformation of adolescent however much as could reasonably be expected. The
investors‘ reorganization sort of discipline under the Act incorporates: – Sending

31
adolescent to Rehabilitation Centres, Juvenile Schools or influencing them to include
in different program headed by government or NGO's. In the present situation, there is
no compelling reason to give such a minor sort of discipline for an intolerable and
cruel offense due to Age assurance or Age factor. Assault is Rape; one can't walk way
taking a request of age factor or mental inadequacy or mental unfitness. Thus, the
current law for the sake of Age assurance or Age Consent isn't making an obstacle
impact on the counter – social conduct of youth. Adolescent guilty parties are in trust
that carrying out terrible wrongdoing is no issue as they will escape next to no or no
discipline in name of reformation. Adopting of reformative hypothesis of discipline
by law, is giving an undue preferred standpoint to adolescent to sustain their capacity
to perpetrate wrongdoing without confronting any brutal results.

Transformation is great yet not generally. In the event that law is looking at changing
the adolescent wrongdoers so they can have a superior life in future then law ought to
likewise discuss the privileges of the casualty. The hypothesis of reconstruction is
helping adolescent to change yet it isn‘t helping the casualty at all. The show
adolescent framework in India is made on trust that adolescent wrongdoers can be
improved and restored , sending them to bars or detainment facilities will going to
reaffirm their status and way of life as "culprits". Presently the inquiry emerges is that
there is no assurance that adolescent wrongdoers will get improved and won't
demonstrate their against – social conduct again. The act is concentrating on the
reorganization as opposed to punishment. Punishment will make a hindrance impact
on the adolescent and expanding rate of wrongdoing by adolescent will back off.

ROLE OF JUDICIARY IN INDIAN JUVENILE JUSTICE SYSTEM

The Supreme Court and different High Courts in India play a significant part in the
development of the Juvenile Justice System in India. In the early stages, issues
involving juvenile delinquents are handled by subordinate courts, but the judicial
response to a juvenile in conflict with the law is represented in the judgments of the
Hon'ble Supreme Court and other High Courts. The courts/juvenile justice board have

32
a legislative and constitutional duty to deal with juveniles who break the law. The
relevant authority is obligated to conduct a thorough investigation and provide the
minors with the chance to present their case before the court or board concerned.
Child delinquency is acknowledged as a key issue confronting both developing and
developed countries. To address this hurdle, governments have formed numerous
courts to carry out various laws issued, so making significant contributions to the field
of juvenile justice for the benefit of juvenile offenders. On several times, the judiciary
has shown great concern over the appropriate application of beneficial aspects of the
legislation relating to children.18

In Sheela Barse v. Union of India19, The Supreme Court directed the State
Government to construct up appropriate observation homes where children accused of
an offence could lodge, pending investigation and trial, which will be hastened by
juvenile courts.
While, in Sheela Barse v. Secretary, Children Aid Society 20, The Supreme Court
commented on the establishment of dedicated juvenile courts and special juvenile
court officials, as well as the adequate care and safety of children in observation
homes.
In Sakshi v. Union of India21, The Supreme Court directed the government/Law
Commission to conduct a research and produce a report on the measures of preventing
child abuse.

18
“Juvenile Justice System and its delinquency in India‖, LEGAL SERVICES INDIA,
http://www.legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-
1031-.1.html.

19
AIR 1986 SC 17/33

20
AIR 1987 SC 656

21
AIR 199 SC 1412

33
 ROLE OF POLICE IN INDIAN JUVENILE JUSTICE SYSTEM IN INDIA

The police are ultimately responsible for arresting the kid and bringing him before the
kid Justice Board. A kid's initial encounter with the juvenile justice system is with the
police. at any case, a youngster cannot be held at a police station or jail 22. The police
examine a juvenile's case and file charge sheets to the competent authorities, and after
the investigation is completed, the juvenile is accompanied to the special home or his
place of residence if he is under the age 23 of 18. In addition, the police have the right
to quickly release a youngster on bail upon arrest.24

All juvenile systems prioritize the well-being of the juveniles 25. Under this Act, a
special juvenile police unit, which includes law enforcement personnel, is
principally involved in the prevention of juvenile crime in order to carry out their
duties more successfully. In every police headquarters, a minimum of one officer
with full ability and suitable training is also appointed as the juvenile welfare
officer.26

22
The Juvenile Justice ( Care and Protection of Children) Act, 2000, s.9 (Proviso)

23
―Juvenile Offenders and Victims (2006)‖, NATIONA L REPORT,
http://ojjdp.ncjrs.gov/ojstatbb/nr2006/ downloads/NR2006.PDF.

24
The Juvenile Justice ( Care and Protection of Children) Act, 2000, s.12(2)

25
Law Commission of India Report (Aug., 1997)

26
The Juvenile Justice ( Care and Protection of Children) Act, 2000, s. 63(2)

34
 THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015

The frightful incident of raised several debates of which the prime issue was the
involvement of the juvenile offender, who was solely six months short from turning
into adult in N irbhaya gang rape case. The nationwide clamour led to the enactment
of the law of Juvenile Justice Act, and therefore the offender was sentenced by the
court just for three-year confinement. Against this call of Apex Court, many protests
were created that demanded modification within the existing Juvenile Justice Law.
However, this case isn't solely reason for the govt. to introduce this bill. The Ministry
of Girls and Kid Development also introduced the bill with many alternative reasons.
The prime two reasons are- firstly, the Juvenile Justicee Act, was facing
implementation and procedural delays. Secondly, the National Crime Records Bureau
(NCRB) Reports indicated increase in the Juvenile Crime between the people of 16-18
years. However, the introduction of the new Juvenile Justice (Care and Protection of
Children), 2015, has introduced a number of the exceptional changes within the
existing Juvenile Law. The bill has 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.

Objective of Juvenile Justice (Care and Protection of Children) Act, 2015-

 To ensure that every child enjoys his rights,

 To stay on protection and care of children without facing harassment or abuse,

 Ensure timely and productive reintegration into society if in confrontation with

the law.,

 To streamline the central adoption agency.

35
GENERAL PRINCIPLES OF JUVENILE JUSTICE BOARD

The Central Government, State Governments, the Board, and other agencies, as the
case may be, while implementing the provisions of this Act, shall be governed by the
following essential principles, namely-

 Principle of presumption of innocence

Any youngster under the age of eighteen is deemed innocent of any mala fide or
criminal intent. The presumption of innocence, denoted by the Latin phrase Ei
incumbit probatio qui dicit, non qui negat (the burden of evidence is on the one who
declares, not on the one who denies), is the notion that one is presumed innocent
unless proven guilty.27 The presumption of innocence is a legal right for the accused
in criminal trials and recognized as an international human right under Article 11 of
the Universal Declaration of Human Rights. However, the presumption of innocence
is also established in Article 21 of the Indian Constitution. The basics components of
presumption of innocence are :

 Age of innocence

The age of innocence is the minimum age at which a juvenile or child in conflict with
the law cannot be subjected to the criminal justice system. Given the circumstances of
mental and intellectual maturity, the age of criminal responsibility shall not be set at
an excessively young age.28 According to this principle, the mental and intellectual
development of a juvenile, kid, or a juvenile in confrontation with the law under the
age of eighteen is regarded insufficient around the world.

27
https://en.wikipedia.org/wiki/Presumption_of_innocence

28
The Beijing Rule 4(1)

36
  Procedural protection of innocence

All procedural safeguards that are given by the Constitution and other statutes to
adults and that go in to reinforce the juvenile's or child's right to presumption of
innocence shall be guaranteed to juveniles, children, or juveniles in dispute with the
law..

 Provisions of Legal Aid

Juveniles in dispute with the law have the right to be informed about the accusations
leveled against them, as well as the right to legal representation. Provisions must be
established for legal aid and other such assistance through legal services at the state's
expense.

1) Principle of dignity and worth

All humans must be treated with equal dignity and rights. The term dignity also refers
to human worth. Human dignity violations in the form of humiliation are acts that
degrade or lower a person's or group's self-worth. Torture, rape, social
marginalization, labor exploitation, bonded labour, and slavery are only a few
instances of activities that violate human dignity. Respect for dignity includes not
being humiliated, respecting personal identity, boundaries, and space, not being
labeled and branded, being offended by information and choices, and not being
blamed for their actions..

Similarly, the juvenile or child's right to dignity and value must be maintained and
protected throughout the whole process of dealing with the kid, from the initial
contact with law enforcement agency to the implementation of all measures for
dealing with the child..

37
 2) Principle of participation

Every kid has the right to be heard and participate in all procedures and decisions
impacting his interests, and the child's views must be considered in light of his age and
maturity. The principle of participation is a political principle or practice that can also
be considered a right. The principle of participation states that people who are affected
by a choice have the right to participate in the decision-making process. Participation
indicates that one's participation will impact the choice.29

3) Principle of Right to be heard

Every child's right to freely express his opinions on any issues impacting his interests
will be completely protected at all stages of the juvenile justice system. Children's
right to be heard shall entail the construction of developmentally appropriate
instruments and processes of interacting with the child, fostering children's active
participation in decisions concerning their own life, and offering chances for decision
and discussion..
4) Principle of best interest

All decisions affecting the child must be made with the primary goal of serving the
child's best interests and assisting the youngster in reaching his or her full potential. In
all activities touching children, whether conducted by public or private social welfare
institutions, courts of law, administrative authorities, or legislative bodies, the best
interests of the child must be a major consideration..30

29
https://en.wikipedia.org/wiki/Public_participation

30
UN Convention on the Rights of Child, art. 3

38
 5) Principle of family responsibility

The primary responsibility for the child's care, nurture, and protection shall rest with
the biological family or adoptive or foster parents, as applicable. Each person has a
vital part in his or her family, and they should behave and feel toward one another. As
husbands, spouses, and children, we must learn what God expects of us in order to
fulfill our purpose as a family. If we all do our share, we'll be connected forever..31

6) Principle of safety

All precautions must be made to ensure that the child is secure and does not suffer any
injury, abuse, or maltreatment while in touch with the care and protection system or
later. Child protection relates to preventing violence, exploitation, abuse, and neglect.
Children must be protected both within and outside the home..32

7) Positive measures

All resources, including those of family and community, will be deployed to promote
well-being, facilitate identity development, and provide an inclusive and supportive
environment.

8) Principle of non-stigmatising semantics

In child-related processes, no adversarial or accusatory language should be utilized.

The Act's non-stigmatizing semantics must be strictly followed, and the use of
adversarial or accusatory words such as arrest, remand, accused, charge-sheet, trial,
prosecution, warrant, summons, conviction, inmate, custody, or jail is prohibited in
proceedings involving children or juveniles in conflict with the law under this Act.
31
Gospel Principles, (2011), 212-17

32
UN Convention on the Rights of Child, art.19

39
 9) Principle of non-waiver of rights

No waiver of any right of the child is acceptable or legitimate, whether sought by the
kid or a person acting on behalf of the child, or a Board or a Committee, and any non-
exercise of a Fundamental Right shall not constitute a waiver..

10) Principle of equality and non- discrimination

Every child shall be entitled to equal access, opportunity, and treatment regardless of
gender, caste, ethnicity, location of birth, or handicap. The ―equality principle‖ is a
philosophical, moral, and legal philosophy that states that all individuals are equal and
should be treated similarly under the law.33 Each child within their authority without
discrimination of any type, regardless of the child's or his or her parent's or legal
guardian's race, color, gender, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status..

11) Principle of right to privacy and confidentiality

Every kid has the right to privacy and confidentiality at all times, even during the
court process.

12) Principle of institutionalism as a measure of last resort

A kid shall be placed in institutional care as a last resort after a reasonable

investigation.

33
https://www.conservapedia.com/Equality_principle

40
13) Principle of repatriation and restoration

Every child in the juvenile justice system shall have the right to be reunited with his
family as soon as possible and to be restored to the same socioeconomic and cultural
status that he was in before coming under the purview of this Act, unless such
restoration and repatriation is not in his best interests.
.
14) Principle of diversion

Measures for dealing with children in dispute with the law without resorting to court
proceedings must be advocated unless they are in the best interests of the child or
society as a whole.

15) Principle of fresh start

Unless there are exceptional circumstances, all previous records of any kid in the
Juvenile Justice system should be deleted..

16) Principles of natural justice

All persons or bodies operating in a judicial capacity under this Act must conform to
basic procedural fairness criteria, such as the right to a fair hearing, the rule against
bias, and the right to review.34

34
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.3, Chapter II

41
 Key provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2015

 Changed the term "juvenile" to "child in conflict with law" throughout the Act to
remove the negative connotation.

 New definitions include orphaned, abandoned, and surrendered children, as well

as small, serious, and heinous crimes committed by children.

 The Juvenile Justice Board (JJB) and Child Welfare Committee (CWC) have
distinct authorities, functions, and responsibilities, as well as timetables for
inquiries. The Act requires each district to establish Juvenile Justice Boards and
Child Welfare Committees. Both must have at least one female member each.

 Special provisions for heinous offences committed by children above the age
of sixteen years- Section 15 includes unique rules for dealing with young
offenders who commit serious crimes between the ages of 16 and 18. Following a
preliminary evaluation, the Juvenile Justice Board has the option of transferring
cases involving serious offenses committed by such minors to a minors's Court
(Court of Session). Children are placed in a "place of safety" during and after trials
until they reach the age of 21. The Children's Court will then evaluate the
youngster. Following the examination, the youngster is either released on
probation or, if not reformed, is sentenced to jail for the remainder of the term.
The law will operate as a deterrent for minor offenders committing horrible crimes
such as rape and murder, and it will protect the rights of the victim.

 Separate new chapter on Adoption to streamline adoption of orphan,

abandoned and surrendered children- To streamline adoption procedures for
orphaned, abandoned, and surrendered children, the existing Central Adoption
Resource Authority (CARA) is designated as a statutory entity, allowing it to
perform its tasks more effectively. Adoption is covered in a separate chapter
(VIII), which includes explicit provisions and penalties for failing to follow the
procedure. Timelines for both in-country and inter-country adoption have been
42
 shortened, as has the declaration of a child's legal adoption eligibility. According
to the laws, a single or divorced individual can adopt; nevertheless, a single guy
cannot adopt a girl kid.

 Inclusion of new offences committed against children- The Act includes several
new offences committed against children that have not yet been appropriately
addressed by any existing law. These include the sale and procurement of children
for any purpose, including unlawful adoption, physical punishment in child care
institutions, the exploitation of children by militant groups, crimes against
disabled children, and kidnapping and abduction of children.

 Penalties for child maltreatment, narcotics, kidnapping, and selling have been
prescribed. Any official who fails to report an abandoned or orphaned kid within
24 hours faces imprisonment for up to six months, a fine of Rs. 10,000, or both.
Non-registration of childcare institutions carries a penalty of up to one year in
prison, a one-lakh fine, or both. The penalty for feeding a youngster intoxicating
liquor, narcotic or psychotropic substances is imprisonment for up to seven years,
a fine of one lakh rupees, or both.

 Mandatory registration of Child Care Institutions- All child care institutions,

whether run by the state government or by voluntary or non-governmental
organisations, that are intended to house children entirely or partially, regardless of
whether they receive government grants, must be registered under the Act within 6
months of its commencement. Noncompliance carries a severe penalty.

Several rehabilitation and social reintegration strategies have been

implemented for children in confrontation with the law, as well as those in need of
care and protection. Children in institutional care get a variety of services,
including education, health, nutrition, de-addiction, disease treatment, vocational
training, skill development, life skill education, counseling, and so on, to enable
them play a productive role in society. There are other non-institutional choices
available, including: sponsorship and foster care, including group foster care, for
placing children in a family environment other than the child's biological family,
which must be selected, qualified, approved, and supervised for giving care to
43
 children.

IMPORTANT PROVISIONS OF JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015

 JUVENILE JUSTICE BOARD

Juveniles accused of or detained for a crime are brought before the Juvenile Justice
Board (JJB) under the Juvenile Justice (Care and Protection of Children) Act of 2015.
The JJB has authorities and functions related to children that contradict with the law
under this Act. A separate Act serves the objective of socio-legal rehabilitation and
reformation rather than punishment. The goal is to hold a child accountable for their
criminal activity, not by punishment, but by counseling the youngster to comprehend
their acts and dissuade them from engaging in criminal behavior in the future. The JJB
have distinct functions since they need to coordinate for the best interests of the child.

44
  ESTABLISHMENT OF BOARD35

The State Government shall establish one or more Juvenile Justice Boards in each
district to exercise the authorities and discharge the functions relating to children in
dispute with the law under this Act. The State Government should ensure that all
members of the Board, including the Principal Magistrate, are trained and sensitized
on care, protection, rehabilitation, legal provisions, and justice for children, as may be
required, within sixty days of their appointment.36

 CONSTITUTION OF BOARD37

A Board shall be composed of a Metropolitan Magistrate or a Judicial Magistrate of

First Class who is not the Chief Metropolitan Magistrate or Chief Judicial Magistrate
(hereinafter referred to as the Principal Magistrate) with at least three years of
experience, as well as two social workers chosen in such a manner as may be
prescribed, at least one of whom must be a woman, to form a Bench. However, every
such Bench has the authority provided by the Code of Criminal Procedure, 1973 on
such Metropolitan Magistrate or Judicial Magistrate of the First Class, as the case may
be..

35
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.4(1)

36
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s. 4(5)

37
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.4(2)

45
  QUALIFICATIONS38

The social worker to be appointed as a member of the Board shall be a person not less
than 35 years of age who has a postgraduate degree in social work, health, education,
psychology, child development, or welfare activities pertaining to children for at least
seven years, or a practicing professional with a degree in child psychology,
psychiatry, sociology, or law..

 DISQUALIFICATIONS39

A person is not eligible for selection as a member of the Board if he—

 If you have a history of violating human or child rights,

 have been convicted of a moral turpitude offense that has not been fully
pardoned,
 have been removed or dismissed from service with the Central Government or a
State Government,
 or have engaged in child abuse or child labor,
 you are not eligible for this position..

 TENURE OF THE BOARD40

The Board will have a three-year term, and member appointments will coincide with
the Board's duration. A social worker who serves on the Board may be appointed for

38
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.4(3)

39
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.4(4)

40
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.4(6),(7)

46
no more than two consecutive terms. Members of the Board's tenure will be extended
based on their performance review by the State Government's District Child
Protection Unit.41 In addition, any member may resign at any moment by providing
one month's early written notice.

However, the appointment of any member of the Board (excluding the Principal
Magistrate) may be terminated following an inquiry by the State Government, if he:

- Found guilty of abuse of power under this Act.

- Fails to attend Board proceedings for three months without valid reason.
- Attends less than three-fourths of sittings per year.
- Becomes ineligible under sub-section 4 during term.

 PROCEDURE OF THE BOARD42

When non-serious offenses (those punishable by less than seven years in jail for
adults) and apprehension are not necessary in the juvenile's best interests, the police
or Child Welfare Officer must notify the juvenile's parents or guardians. However, the
Board shall have the authority to summon the juvenile for additional hearings. If the
Board is not in session, the juvenile in violation of the statute must appear before a
single Board member.43

However, in the case of juveniles in conflict with the law, the Police or Child Welfare
Officer is not obligated to register a FIR or submit a charge-sheet, unless the offence
committed by the juvenile is heinous, such as rape or murder.

41
The Juvenile Justice (Care and Protection of Children) Rule, 2007

42
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), ss. 5,6,7,9

43
The Juvenile Justice ( Care and Protection of Children) Rules, 2007, Rule 11

47
When such acts are committed jointly with adults; in the case of simple infractions,
the Police or Child Welfare Officer must enter information about the Juvenile's
offence in the general daily notebook and transmit it to the Board before the first
hearing..

Any individual who has reached the age of eighteen and is caught for committing an
offense while under the age of eighteen shall be treated as a juvenile during the course
of the investigation, according to the rules of this section. Where an inquiry has been
initiated in respect of any child under this Act, and the child reaches the age of
eighteen years during the course of the inquiry, the Board may continue the inquiry
and pass orders in respect of such person as if such person had continued to be a
child..

Furthermore, the Board shall convene at such times and respect such norms in relation
to the transaction of business at its meetings as may be required, and shall guarantee
that all procedures are child-friendly, that the enterprise is not threatening to children,
and that it does not resemble traditional courts..

When the Board is not in session, a child in violation of the law may be brought
before a single member. A Board may act despite the absence of any member of the
Board, and no order issued by the Board shall be illegal only because of the absence
of any member during any stage of proceedings. In the event of a disagreement among
the Board members in the final disposition, the majority opinion shall prevail;
however, if no such majority exists, the opinion of the Principal Magistrate shall
prevail..

When a Magistrate who is not authorized to exercise the Board's powers under this
Act believes that the person accused of the offence and brought before him as a child
committed the offence, he must record such opinion and immediately forward the
child, along with the record of such proceedings, to the Board with jurisdiction. In
case a person alleged to have committed an offence claims before a court other than a
Board that the person is a child or was a child on the date of commission of the
offence, or if the court itself believes that the person was a child on the date of
commission of the offence, the said court shall make an inquiry, take such evidence as

48
may be necessary (but not an affidavit) to ascertain the age of such person, and record
a finding on the issue specifying the age of such person as nearly as possible. If the
court determines that a person committed an offence while a child, it shall refer the
child to the Board for appropriate orders.

 CHILD ASCERTAINMENT

The question of the child is one of the most difficult and crucial issues in implementing
the Act. The critical date for determining the claim of child is the date of commission
of the offense, not the date of arrest or production of the juvenile before the Juvenile
Justice Board.44

According to the new Act, the Magistrate who is not empowered to exercise the
power of the Juvenile Justice Board under this Section is of the opinion that a person
brought or appearing before him with allegations of having committed an offence is
juvenile, then he shall without any delay and without waiting for such person to raise
a claim of juvenility, ascertain the age of that person and record its opinion and
forward the juvenile along with the record to the JJB, having jurisdiction.45

In Hari Ram v. State of Rajasthan and Anr.46, The Supreme Court of India ruled
that the Constitution Bench's decision in the Pratap Singh case is no longer relevant.
Juvenile claims can be raised at any stage and must be determined using the
provisions of the 2000 Act and its Rules, even if the juvenile ceased to be so before
the Act's commencement date.47 Furthermore, it was further decided 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 the new JJ Act], places beyond all doubt that all persons who were under the
age of 18 years on the date of commission of the offence prior to 1.4.2001 would be
classified as juveniles, even if the claim of juvenility was made after they had reached
the age of 18 years on or before the date of commencement of the Act and were
awaiting sentence upon conviction. In Dharambir v. State (NCT of Delhi) and
Anr48, When the offenses were committed, the Appellant was not a juvenile under the
1986 Act because he was not yet 18 years old. Section 20 also allows the Court to
consider and decide a person's juvenility while preserving the conviction to set aside
the sentence imposed and forward the matter to the JJB concerned for passing

49
sentence in accordance with the requirements of the JJ Act of 2000.

 AGE DETERMINATION

According to the Hon'ble Apex Court in Rajinder Chandra v. State of Chhattisgarh49,

the methodology of the courts or Juvenile Justice Board should not be overly technical
while evaluating age. It requires the court to conduct simply an inquiry, not an
investigation or a trial, and to do so under the JJ Act rather than the Code of Criminal
Procedure. Sections 9 and 94 of the Act utilize the wording "on the basis of
appearance." Furthermore, the age determination inquiry must be finished, and age is
decided within 15 days, indicating how the inquiry must be performed and concluded.

The age determination inquiry proposed by Section 94 of the Act allows the court to
seek evidence, including matriculation or comparable credentials, if available

47
The Juvenile Justice ( Care and Protection of Children) Act,2015 (Act No.2 of 2016), s.9 (Proviso)

48
(2010) 5 SCC 344

49
AIR 2002 SC 748

50
. Only in the absence of any matriculation or comparable credentials is the court
required to seek a date of birth certificate issued by a corporation, municipal body, or
panchayat. The issue of obtaining a medical opinion from a lawfully constituted
Medical Board arises only if the aforementioned documents are unavailable. In the
event that an exact age estimate is not possible, the Court may, for reasons to be
recorded, provide the benefit to the child or juvenile by considering his or her.

 POWERS, FUNCTIONS AND RESPONSIBITIES OF THE BOARD 50

The Board created for any district shall have the exclusive authority to deal with any
procedures under this Act relating to children in dispute with the law within its
jurisdiction51. The powers granted to the Board by or under this Act may also be
exercised by the High Court and the Children's Court, when the proceedings come
before them under Section 19 or in appeal, revision, or otherwise.52.

The functions and responsibilities of the Board shall include-

 Ensuring informed participation of the child and parent/guardian throughout the

process.
 Protecting the child's rights during apprehending, inquiry, aftercare, and
rehabilitation.
 Providing legal aid to the child through legal services institutions.

50
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.8

51
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.8(1)

52
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.8(2)

51
 If the child is unable to understand the language used in proceedings, the Board
will provide an interpretation or translator with the requisite credentials and
experience for a charge as prescribed.;
 The Probation Officer or Child Welfare Officer, if unavailable, will conduct a social
investigation and submit a report to the Board within 15 days of the first production to
determine the circumstances surrounding the alleged offense. ;
 Adjudicate and resolve instances of children in dispute with the law in line with
the procedure of inquiry stipulated in section 14.;
 Transferring matters concerning the child alleged to be in conflict with the law,
stated to be in need of care and protection at any stage, thereby recognising that a
child in conflict with the law can also be a child in need of care simultaneously,
and there is a need for both the Committee and the Board to be involved.;
 Disposing of the matter and passing a final order that contains an individual care
plan for the child's rehabilitation, including follow-up by the Probation Officer,
the District Child Protection Unit, or a member of a non-governmental
organization, if required.;
 Disposing of the case and issuing a final order with an individual care plan for the
child's rehabilitation, including follow-up by the Probation Officer, the District
Child Protection Unit, or a member of a non-governmental organization, if
needed.;
 Conducting at least one monthly inspection visit of residential facilities for
children in conflict with the law and recommending action for improvement in
service quality to the District Child Protection Unit and the State Government.;
 Order the police to register a first information report for offenses committed
against any child in disagreement with the law, under this Act or any other law for
the time being in force, in response to a complaint.;
  Order police to register First Information Reports for offenses against children
in need of care and protection under this Act or other applicable laws, based on
written complaints from a committee.;
 Conducting regular inspections of adult jails to check if any child is housed in
such jails and taking immediate actions to transfer such a child to the observation
homes.; and

52
 Any other function as may be prescribed.53

 INQUIRY BY BOARD REGARDING CHILD IN CONFLICT WITH LAW

When a child claimed to be in conflict with the law is brought before the Board, the
Board shall conduct an investigation in accordance with the provisions of this Act and
may make such orders in regard to the child as it deems appropriate. The inquiry must
be completed within four months of the child's first appearance before the Board,
unless the Board extends the period for a maximum of two months and records the
reasons in writing. The Board shall dispose of a preliminary evaluation in cases of
serious offences within three months of the child's initial appearance before the Board.
If the Board's probe into the petty offenses remains unresolved even after an extended
period, the procedures shall be terminated.

The board shall take the following steps to ensure fair and speedy inquiry, namely:-

 At the time of commencing the inquiry, the Board shall convince itself that the
child in conflict with the law has not been subjected to any ill-treatment by the
police or by any other person, including a lawyer or probation officer, and take
corrective measures in the event of such ill-treatment.;

 In all matters under the Act, the processes shall be handled in as simple a manner
as practicable, and care shall be made to ensure that the child against whom the
proceedings have been instituted is given a child-friendly environment during the
proceedings.;

 Every child brought before the Board shall have the chance to be heard and
participate in the inquiry.;

53
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.8(3)

53
 The Board will conduct summary procedures for petty offenses in accordance with
the method outlined in the Code of Criminal method, 1973 (2 of 1974).;

 The investigation of significant offenses shall be dealt with by the Board,

following the procedure for trial in summons cases under the Code of Criminal
Procedure, 1973 (2 of 1974);

 inquiry of heinous offences,-

 The Board will handle cases involving children under 16 years old as of the date
of the offense under subsection (e);
 For children over the age of sixteen as on the date of commission of an offence,
shall be dealt with in the manner stipulated by section 15.54

 ASSESSMENT INTO HEINOUS OFFENCES BY BOARD 55

In the case of a heinous offence alleged to have been committed by a child who has
completed or is over the age of sixteen, the Board shall conduct a preliminary
assessment of his mental and physical capacity to commit the offence, ability to
understand the consequences of the offence, and the circumstances under which he
allegedly committed the offence. The Board may seek the aid of professional
psychologists, psycho-social workers, or other specialists. However, it should be noted
that such a preliminary evaluation is not a trial, but rather an assessment of the child's
competence to commit and understand the implications of the alleged act. Where the
Board is satisfied with the preliminary assessment that the case should If the Board
decides to proceed with the summons case, it will follow the trial procedure outlined
in the 1973 Code of Criminal Procedure. Also, the order of the Board to dispose of the
subject will be appealable under this Act..

54
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s. 14(5)

55
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.15

54
  INQUIRY IN PENDING CASES56

The Chief Judicial Magistrate or the Chief Judicial Magistrate shall evaluate the
pending cases of the Board once every three months and shall direct the Board to
increase the frequency of its sittings or may recommend the establishment of new
Boards.

The number of cases pending before the Board, duration of such pendency, nature of
pendency, and reasons thereof shall be reviewed every six months by a high-level
committee consisting of the Executive Chairperson of the State Legal Services
Authority, who shall be a Chairperson, the Home Secretary, the Secretary responsible
for the implementation of this Act in the State, and a representative from a voluntary
or nongovernmental organization to be nominated by the Chair..

The Board shall also provide information on such pendency to the Chief Judicial
Magistrate, Chief Metropolitan Magistrate, and District Magistrate on a weekly basis
in such manner as may be determined by the State Government.
In Sampurna Behrua v. Union of India & Ors.,57 The Supreme Court ruled that there
is no legal limitation against having more than one Juvenile Justice Board in a district,
based on the number of open inquiries and the distance involved in transporting
children from the Observation Home to the Juvenile Justice Board location. As a
result, it is made plain that a district can have many Juvenile Justice Boards..

 BAIL GRANT TO THE JUVENILE

In normal circumstances, a minor is entitled to bail, regardless of the nature of the

offense. His bail can be denied only when there are reasonable grounds to believe that
his release is likely to put him into association with any known criminal or exposehis
moral, physical, or psychological danger, or that his release would defeat the interests
of justice.

56
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.16

57
(2011) 15 SCC 232

55
 Section 12 of the Act states that the juvenile accused would be discharged
regardless of the Code of Criminal Procedure, 1973, or any other law in existence.

Since the youngster in conflict with the law is entitled to be freed on bail, he is also
entitled to get interim bail. It should be noted that in the case of Sukhwant Singh &
ors. v. State of Punjab58, the Hon'ble Supreme Court held that when there is power to
grant bail, the court concerned has an inherent power to grant interim bail to the
person pending final disposition of the bail application, and it is at the discretion of
the concerned Court to grant interim bail. The same applies to the Juvenile Justice
Board. When pending the ultimate disposition of the application, juvenile may be
freed on interim bail.

 ORDERS BY BOARD REGARDING A CHILD NOT FOUND IN

CONFLICT WITH LAW59

If a Board is satisfied after an inquiry that the child placed before it has not committed
any offence, the Board shall pass an order to that effect, notwithstanding anything
opposite written in any other legislation currently in force. If the Board determines
that the child requires care and protection, it may refer the child to the Committee and
provide appropriate directions.

58
(2009) 7 SCC 559

59
The Juvenile Justice ( Care and Protection of Children ) Act, 2015 (Act No.2 of 2016), s. 17

56
  ORDERS BY BOARD REGARDING A CHILD FOUND TO BE IN
CONFLICT WITH LAW60

Where a Board is satisfied on inquiry that a child, regardless of age, has committed a
petty offence, a serious offence, or a child under the age of sixteen has committed a
heinous offence, then, notwithstanding anything contrary contained in any other law
for the time being in force, and based on the nature of the offence, specific need for
supervision or intervention, circumstances as brought out in the social investigation
report, and the child's past conduct, the,-

- Allow the youngster to return home after advise or admonition by conducting proper
investigation and counselling with the child and his parents or guardians;

- Direct the youngster to participate in group counseling and similar activities. ;

- Order that the kid undertake community service under the supervision of an
organization or institution, or a designated person, persons, or group of people
identified by the Board.;

- Order the child, parents, or guardian of the child to pay the fine.:

Provided that, if the youngster is working, it may be ensured that the provisions of any
labor legislation now in existence are not infringed.;

-Direct the child to be released on probation of good conduct and placed under the
care of any parent, guardian, or fit person, on the condition that such parent, guardian,
or fit person execute a bond, with or without surety, as the Board may require, for the
child's good behavior and well-being for any period not exceeding three years.;

-Direct the child to be released on probation of good conduct and placed under the
care and supervision of any fit facility to ensure the child's good behavior and well-
being for a term of not more than three years;

60
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s. 18

57
 -Direct the child to be committed to a special home for such term, not exceeding three
years, as it sees proper, to provide reformative services including education, skill
development, counseling, behavior modification therapy, and psychiatric care during
the period of stay in the special home.:

Provided that if the child's conduct and behavior has been such that, or would not be
in the child's or the interest of other children placed in a special home, the Board may
send such kid to the place of safety.61

The Board may, in addition pass orders to-

I. Attend the school; or

II. Attend a vocational training centre; or
III. Attend a therapeutic centre; or
IV. Prohibit the child from visiting, frequenting or appearing at a specified place; or
V. Undergo a de-addiction programme.62

If the Board, after conducting a preliminary assessment under Section 15, determines
that the child should be tried as an adult, it may order that the matter be transferred to
the Children's Court, which has jurisdiction over such offenses.63

61
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s. 18(1)

62
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s. 18(2)

63
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s, 18(3)

58
CHILDREN‟S COURT

Police, parents, and child welfare authorities bring young people to the Children's
Court, sometimes known as a juvenile court, to answer for their behavior.64 The
Children's Court is a tribunal with unique competence to issue judgments for offenses
committed by children or teenagers under the age of majority. In Lakhi Sahu v.
Emperor65, the Calcutta High Court found that the juvenile court was empowered to
handle with matters of only those minors who were not accused with offences
punishable by death or imprisonment for life.

In Gopi Nath Ghosh v. The State of West Bengal66, The Supreme Court ruled that
when a juvenile delinquent is arrested, he or she must be brought before a juvenile
court; if no juvenile court is established for the area, the court of sessions will have the
powers of a juvenile court.

According to Section 2(20) of the Juvenile Justice (Care and Protection of Children)
Act, 2015, "Children's Court" refers to a court established under the Commissions for
Protection of Child Rights Act, 2005 or a Special Court under the Protection of
Children from Sexual Offences Act, 2012. If such courts are not designated, the Court
of Session has jurisdiction to try offences under the Act.

64
http://www.aic.gov.au/media_library/publications/proceedings/09/oconnor.pdf

65
AIR 1932 Cal. 437

66
AIR 1986 SC 1773

59
 CHILDREN‟S COURT MAY DECIDE67

In the case of a serious crime allegedly committed by a kid who has reached or
exceeds the age of sixteen. The term "heinous offence" refers to offenses for which
the minimum sentence under the Indian Penal Code or any other law currently in force
is seven years in jail or more.68 The police or the Child Welfare Officer must also
record the juvenile's social history and the alleged offence in the juvenile's case diary,
which must be immediately reported to the Board. The police or the Child Welfare
Officer may apprehend the youngster only if he is suspected of committing a major
offense. Police or the child. The police or the Child Welfare Officer should instead
consider the juvenile as a child in need of care and protection and bring him before the
Board.69 The Board shall perform a preliminary evaluation on his mental and
physical capacity to commit such offence.

Following are the powers of Children‟s Court70:

After receiving a preliminary assessment from the Board, the Children's Court may
decide that -

I. The youngster should be tried as an adult in accordance with the rules of the Code
of Criminal Procedure, 1973, and appropriate orders should be issued following
the trial;

II. The child's specific requirements, the principles of fair trial, and maintaining a
child-friendly environment;

67
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), ss.19,20,24

68
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.2(33)

69
The Juvenile Justice ( Care and Protection of Children) Act, 2007, rule 11

70
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.19

60
 The Children's Court may conduct an inquiry as a Board and issue orders in
accordance with section 18. The final order must include an individual care plan for
the child's rehabilitation, including follow-up by the probation officer, District Child
Protection Unit, or social worker..

-The Children's Court shall ensure that the child who is found to be in conflict with
the law is sent to a place of safety until he reaches the age of twenty-one years, and
thereafter, the person shall be transferred to a jail, provided that the reformative
services, including educational services, skill development, alternative therapy such as
counselling, behavior modification therapy, and psychiatric support, shall be provided
to the child during the period of his stay in.

-The Children's Court shall ensure that there is a periodic follow-up report every year
by the probation officer, the District Child Protection Unit, or a social worker, as
required to evaluate the progress of the child in any place of safety and to ensure that
the child is not ill-treated in any form.

Where the child in conflict with the law attains the age of twenty-one years and is yet
to complete the term of stay, the Children's Court shall provide for a follow-up by the
probation officer, the District Child Protection Unit, a social worker, or by itself, if
such child has undergone reformative changes and if the child can be a contributing
member of society, and for this purpose, the child's progress records, along with the
evaluation of relevant experts, are to be.

Following the conclusion of the stated procedure, the Children's Court issues the
following judgment: -

I. Decide to release the child on such conditions as it thinks proper, including the
establishment of a monitoring authority for the duration of the prescribed period
of stay.;
II. Decide that the child would complete the rest of his term in a jail.71

71
Dr. S.S. Singh, Offences against Children & Juvenile Offence (Central Law Publications), pg.256

61
In Satto v. State of Uttar Pradesh72, Justice Krishna Iyer stated that the Juvenile Judge
continues to play an important role in ensuring the safety of juveniles detained. The
court is responsible with making the serious decision whether to deprive juveniles of
their liberty or to release them into the custody of their parents or to a third party, and
if so, what conditions should be imposed on their release. When reaching such a
decision, the Judge must follow due process hearing processes, and the legal
procedure should favor release. If the judgment is to detain, the Judge must create a
record to justify it. The constitutionality of preventative detention in juvenile court
must be tested. If the power is sustainedProcedural safeguards should be as specific as
they are for adults. We should discard the premise that secure detention is good for
children., .73

In Salil Bali v. Union of India & Anr.,74 the age limit was raised from sixteen to
eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000 is a
decision made by the Government, which is strongly in favor of retaining Sections
2(k) and 2(l) in the form they exist in the Statute.

The age of eighteen has been determined on account of the understanding of experts
in child psychology and behavioral patterns that until such an age, children in
confrontation with the law might still be redeemed and restored to mainstream
society, rather than becoming hardened criminals in the future.

72
1979 Cri.L.J. 943

73
Id. At p. 945

74
AIR 2013 SC 3743

62
 CHILDREN‟S COURT MAY NOT DECIDE75

I. Children in confrontation with the law cannot be condemned to death or life

imprisonment without the chance of release for any offense.

II. Chapter VIII of the Code of Criminal Procedure does not apply to children.

III. No combined procedures between a kid in conflict with the law and a non-child.

IV. If the Children's Court determines that the individual accused of violating the law
is not a child, they will not be tried alongside children.

All procedures in regard of a child accused or found to be in conflict with the law
pending before any Board or court on the date of commencement of this Act, must
continue in that Board or court as if this Act had not been enacted.

75
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), ss.21,22,23

63
CHILD CARE INSTITUTION

A child care institution, as defined by the JJ Act of 2015, is a children's home, open
shelter, observation home, special home, place of safety, specialized adoption agency,
or a fit facility designated by the Act for providing care and protection to children in
need of such services. Children in confrontation with the law receive residential care
and protection in observation homes, special homes, and places of safety.

In Sheela Barse v. Union of India,76 the petitioner asked for release of children who
are under the age of 16 years detained in jails within different states of the country.
The Supreme Court was pleased to direct all the High Courts and District Judges to
submit to it information regarding children in jails and whether juvenile courts had
been set up. Everywhere children are accused of offences, they must not be kept in
jails. It is the atmosphere of the jail which has a highly injurious effect on the mind of
the child.

In Sheela Barse v. The Secretary,77 the Suprem Court held, that realizing the
importance of proper handling and caution of children, the court obligated upon every
generation to bring up children in a proper way. The juvenile court has to be manned
by a judicial officer with some special training. Without these any judicial officer,
indeed, not be competent to handle the special problem of children.

76
(1986) 3 SCC 596

77
AIR 1987 SC 656: (1987) 3SCC 50

64
CHILD CARE INSTITUTIONS:

a) Children home
b) Open shelter
c) Foster care
d) Observation home
e) Special home
f) Place of safety
g) Specialised Adoption Agency
h) A fit facility
i) District Child Protection Unit

a) Children‟s Home78:

Section 2(19) defines a Children's Home as one founded or maintained by the State Government
in any district or set of districts, either independently or through a non-governmental
organization. It must be registered for the placement of children in need of care and protection in
order to provide them with care, treatment, education, training, and rehabilitation.
b) Open Shelter79:

Section 2(41) defines a "open shelter" as a facility for children developed and
managed by the State Government or a registered volunteer or non-governmental
organization for specific objectives. Open shelters will serve as a community-based
institution for children who require short-term residential help. It will send every
month.

78
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.50

79
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.43

65
such information, in the manner as may be prescribed, regarding children availing the
services of the shelter to the District Child Protection Unit and the Committee. Open
shelter is based on the cardinal principles of ―protection of child rights‖ and
―best interest of the child‖.

c) Foster Care80:

Section 2(29) defines foster care as the Committee placing a child in the domestic environment
of a qualified, approved, and supervised family who are not the child's biological family. Foster
families will be chosen based on their ability, intent, capacity, and prior experience caring for
children. Furthermore, the child's parents may see the kid in the foster family at regular intervals,
unless the Committee believes that such visits are not in the best interests of the child..

d) Observation Home81:

Section 2(40) defines an observation house as one that is constructed and maintained
by a State Government, either directly or through a non-governmental organization,
and is registered. Observation houses are created for the temporary reception of any
youngster in confrontation with the law while the pendency of any inquiry against him
or her..

Objective of residential care in an Observation Home :

80
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.44

81
The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.47

66
 To secure the safety, protection, and care of the alleged child in conflict with the
law throughout the time of inquiry.

 To support the kid through the inquiry phase by ensuring that legal aid is
accessible to the child, ensuring attendance at every hearing, and explaining to the
child the procedure and progress on the case.

 To develop an Individual Care Plan for each child based on understanding the
child's background, needs, and interests using appropriate methods such as
counseling sessions, interaction with the child's family, home visits, aptitude
testing for education and vocational training, and consultation with physical and
mental health professionals.

Approach to providing services in an observation home:

Because an Observation Home is a temporary residential care facility for a child who
is believed to be in conflict with the law, the approach to the provision of services in
the institution as a whole, and its duty bearers, must be one that ensures:

 There is no presumption that the putative youngster in confrontation with the law
is guilty. Therefore, an Observation Home must not resemble a prison in terms of
its building, services, or how duty bearers interact with children..

 Services and care are provided in a manner that facilitates determining the
individual requirements of each accused kid in conflict with the law using suitable
methods and consultation with professionals..

 By the end of the stay, the child has a clear and specific rehabilitation plan that
can be monitored..

67
 Key messages to children in an Observation Home care :

Key messages that must be sent to children in Observation Homes, which include
care, include:

 The Observation home does not assume a child is guilty.,

 The purpose of the observation house is to support the youngster.,

 The observation home will investigate as many options as possible to help the
youngster embark on a path of recovery and reintegration into society..

e) Special Home82:

Section 2(56) defines a special home as an institution established by a State Government or a

voluntary or non-governmental organization registered under Section 48 to house and provide
rehabilitative services to children in conflict with the law who are found to have committed an
offence and sent to the institution by an order of the Board..‖

Objective of care in Special Home:

 Offer reformative services such as education, skill development, counseling,

behavior modification treatment, and psychiatric support during the stay at the
Special Home.;

 Create, review, and implement an Individual Care Plan for each child based on
understanding the child's background, needs, and interests using appropriate
measures such as counselling sessions, interaction with the child's family, home

82
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.48

68
 visits, aptitude testing for education and vocational training, and consultation with
physical and mental health professionals.;

 Ensure that children accept responsibility and accountability for the crime they were
discovered to have done, and begin a process of healing and rehabilitation. ;

 Preparing the youngster for reintegration into the family and community by
providing skills and a strategy to ensure that he or she does not commit crime
again..

Approach to provision of services in a Special Home :

Because Special Home is a reformative care facility that accommodates children

judged to have committed offences for a period of up to three years and is not a
prison, the approach to providing services by the institution as a whole, and its duty
bearers, must be one that assures:

 Children are not considered as criminals or captives, and should be given as much
liberty as possible.;

 Upon joining the institution, children must be reassured that the Special Home
and its staff are available to support them during their stay.;

 Children are guided through a process of accepting accountability and

responsibility for their actions.;

 Children must be helped to make a fresh start in their life and to become
emotionally and financially self-sufficient when they reintegrate into society..

69
 Key messages to children in Special Home :

 Children are neither criminals nor prisoners. The role of the special home staff is
to support youngsters in the process of accepting responsibility and accountability
for their acts and reformation..

 The unique house would provide as many possibilities as possible for youngsters
to access amenities to assure their reformation and rehabilitation..83

f) Place of safety84:

Section 2(46) defines a "place of safety" as any institution, not a police lockup or jail, that
accepts and cares for children who are found to be in conflict with the law by an order of the
Board or the Children's Court. This includes both during the inquiry and ongoing
rehabilitation..‖

g) Specialised Adoption Agency:

Section 2(57) defines a Specialized Adoption Agency as an institution established by the State
Government or a non-governmental organization and recognized under Section 65 to house
orphaned, abandoned, or surrendered children placed there by the Committee for adoption..‖

In Stephanie Joan Becker v. State and Anr.85, the Supreme Court ruled that adopting
parents must be physically, intellectually, and emotionally stable, financially capable;

83
https://vikaspedia.in/education/child-rights/living-conditions-in-institutions-for-children-in-conflict-
with-law/objectives-and-approach-of-child-care-institutions

84
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.49

70
 and motivated to adopt a child, and free of any life-threatening medical conditions.
Any prospective adoptive parent, regardless of marital status or whether or not they
have a biological son or daughter, can adopt a child. Adoption would benefit the child
in addition to fulfilling the foreign adoptive parent's legal obligations.86

h) A Fit Facility87:

Section 2(27) defines a "fit facility" as a facility run by a governmental organization

or a registered voluntary or non-voluntary organization that is recognized as suitable
for a specific purpose by the Committee or Board..‖

i) District Child Protection Unit

Section 2(26) defines a District Child Protection Unit as a State Government-established unit
responsible for implementing the Act and other child protection measures in the district..‖

REHABILITATION

The majority of youngsters discharged from special schools and other institutions
require significant assistance in reintegrating into the community. They require quick
refuge, acceptable support, and proper guidance for their reintegration into society and

85
Civil Appeal No. 1053 of 2013

86
Dr. S.S. Singh, Offences against Children & Juvenile Offence (Central Law Publications), pg.250

87
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.51

71
 return to the mainstream. A few other neglected and uncontrolled youngsters require
temporary assistance until they are reclaimed by their parents/guardians.

Sections 39-55 of Chapter VII of the Juvenile Justice (Care and Protection of Children)
Act, 2015 address rehabilitation and social reintegration, marking a positive step.
Section 39 discusses rehabilitation and social reintegration. It specifies that the
rehabilitation and social reintegration of a child shall commence during the kid's stay in
a Children Home or Special Home and shall be carried out alternately by
i. Adoption
ii. Foster care
iii. Sponsorship, and
iv. Sending the child to an alter-care organisation

ADOPTION

 Chapter 8 of the Act deals with provisions related to the eligibility of adoptive
parents and the procedure for adoption..

 To improve adoption procedures for orphaned, abandoned, and surrendered

children, the Central Adoption Resource Authority (CARA) will become a
statutory organization to enhance its effectiveness. A separate Chapter (VIII) on
adoption offers explicit requirements relating to adoption and sanctions for
noncompliance with the clearly forth procedure..

 Sections 58–61 of the Act deal with the procedure for adoption by Indian
prospective adoptive parents living in India88, procedure for inter-country
adoption

88
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.58

72
  of an orphan or abandoned or surrendered child89, procedure for inter-country
adoption90, and Court procedure and penalty against payment in consideration of
adoption9.

OFFENCES UNDER THE ACT

Sr. Section Offence Penalty

1 74 Prohibition on disclosure Imprisonment for a term which may

of identity of children extend to six months or fine which
may extend to two lakh rupees or both.
(JJB or CWC)

2 77&78 Giving a child any Imprisonment: up to seven years; Fine:

intoxicating up to one lakh rupees
liquor/narcotic
drug/tobacco/psychotropic
substances
3 71 Selling or buying a child Imprisonment: up to five years; fine;
one lakh rupees
4 75 Subjecting a child Imprisonment: up to three years;
to cruelty fine: and/or one lakh rupees
5 76 Employing a child for Imprisonment: up to five years; fine:
begging one lakh rupees
6 79 Engaging a child and Rigorous imprisonment for a term
keeps him in bondage which may extent to five years
for and

89
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.59

90
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.60

91
The Juvenile Justice ( Care and Protection of Children) Act, 2015 (Act No.2 of 2016), s.61
73
 the purpose of shall also be liable to fine of one lakh
employment or withholds rupees
his earnings or uses such
earning for his own
purposes
7 80 Punitive measures for Imprisonment of either description
adoption without for a term which may extend up to
following prescribed three years, or with fine of one lakh
procedures rupees,
or with both.
8 34 If information regarding Imprisonment up to six months or
a child as required under fine of ten thousand rupees or
Section 32 is not given both
within a period specified
in the said Section, then,
such act shall be regarded
as an offence
9 42 Failure to comply with Imprisonment up to one year or
Section 41(1)- minimum fine of one lakh rupees or
Registration of Child both.
Care
Institutions

********************************************

74
 CHAPTER 5

CRITICAL ANALYSIS OF WORKING OF COURTS

UNDER JUVENILE JUSTICE ACT

The Courts in such situations act as a ‘parens patria’

because they have a kind of guardianship over minors
who from their legal disability stand in need of
protection.

CASE STUDY 1

Exploitation of Children in Orphanage in the State of Tamil

Nadu v.

Union of India

 The case, registered as public interest litigation in 2007, made its way to the courts
on the basis of a letter and 2007 article alleging systematic sexual abuse of
children in NGO and state-run institutions in Mahabalipuram (Tamil Nadu)
including allegations of foreign and Indian tourists receiving sexual services from
children either over the telephone or at orphanages and of the sexual abuse of girls
in schools.
 On 5 May, 2017, the Supreme Court of India issued significant directives to
government in India in this case. The decade old case highlighted a number of all

75
 too familiar and disturbing trends- sexual abuse and exploitation of children and
the lack of proper documentation and available data on children living in
residential care institution.

 In the above case, the following directives were issued by the court:

 The definition of the expression ―toddler in need of care and safety‖

underneath segment 2(14) of the JJ Act need to now not be interpreted as an
exhaustive definition. The definition is illustrative and the blessings envisaged
for kids in need of care and safety need to be prolonged to all such children in
reality requiring state care and protection.

 The Union government and the governments of all States and Union Territories
need to ensure that the method of registration of all infant care institutions is
finished undoubtedly via 31st December, 2017 with the whole records being
confirmed and tested and the statistics shall be to be had with all of the involved
officials. The registration method ought to also include a facts base of all
children in need of care and safety which ought to be updated each month. at
the same time as keeping the same, issues of confidentiality and privacy have to
be kept in thoughts via the worried authorities.

 The state Governments and Union Territories need to draw up plans for complete
and proper utilisation of offers (together with expenditure statements) given by
using the Union government beneath the integrated toddler safety Scheme.
Returning the offers as unspent or casual utilization of the offers will no longer
ensure anybody‘s gain and is efficaciously wasteful expenditure.

 it is vital that the Union authorities and the country Governments and Union
Territories need to focus on rehabilitation and social re- integration of kids in
want of care and safety consisting of skill improvement, vocational schooling,
and so on. which ought to be taken advantage of keeping in thoughts the need to
76
 rehabilitate such children.

 The kingdom Governments and Union Territories are directed to set up

Inspection Committees as required by means of the JJ Act and the version rules
to behavior normal inspections in order that the dwelling situations of kids in
those institutions go through high quality modifications.

 The practise of man or woman child care plans is extraordinarily important and
all governments of the States and Union Territories should ensure that there
may be a baby care plan for each child in each infant care establishments. it's
far a continuing process which have to be initiated right away.

 anywhere the country fee for safety of child Rights has now not been established
or though installed is not completely purposeful inside the absence of a
Chairperson or someone or more contributors, the kingdom Governments and
Union Territories have to make sure that every one vacancies are filled up with
devoted people on or earlier than 31st December, 2017. The SCPCRs so
constituted must submit an Annual document so that everybody is aware of
their activities and can contribute in my view or collectively for the advantage
of children in need of care and safety.

 The education of employees as required by way of the JJ Act and the model
policies is crucial. There are an good enough number of teachers which can
soak up this project which include police teachers and judicial teachers within
the States. There are also country wide stage bodies that may assist within the
system of education which include our bodies like the Bureau of Police research
and training, the national Judicial Academy and others which includes
established NGOs. anywhere viable education modules have to be organized at
the earliest.

77
 it is time that the governments of the States and Union Territories keep in mind
deinstitutionalization as a possible opportunity. It is not necessary that each
infant in want of care and protection must be located in a toddler care
establishments. options such as adoption and foster care want to be seriously
considered by means of the concerned government..

 The significance of social audits can not be over- emphasised. the need of having a
social audit has been felt in a few statutes which have been stated above and also
by using the Controller and Auditor fashionable of India. That being the position,
it's miles imperative that the manner of carrying out a social audit ought to be
taken up in rights earnestness through the country wide commission for the safety
of baby Rights as well as by means of each country commission for the protection
of infant Rights. this is possibly the nice possible technique through which
transparency and accountability within the management and functioning of child
care institutions and other bodies below the JJ Act and model rules may be
monitored and supervised..

 We renowned the contribution made with the aid of Ms. Aparna Bhatt in taking
keen interest within the troubles raised on this PIL and for rendering effective
attention to this court docket at all times. The splendid court legal offerings
Committee will deliver an honorarium of Rs. 2 lakh to Mr. Aparna Bhatt out of
the price range to be had for juvenile justice issues.

 at the same time as there can be some different troubles especially concerning
children in need of care and protection, we leave those troubles open for
consideration and supply liberty to the found out Amicus to transport the correct
application in this regard which include any utility for change or clarification of
the guidelines given above.

 The Union of India is directed to speak our instructions to the involved Ministry or
department of every country and Union Territory for implementation and to
collate vital information concerning the implementation of these instructions with
the assistance of the countrywide commission for the protection of toddler Rights
and the state commission for the safety of infant Rights. a standing record in this
regard ought to be filed in this court docket on or earlier than 15th January, 2018.

78
The Registry will list this situation at once thereafter.

79
CASE STUDY 2

Mukarrab and others

v.

State of Uttar Pradesh92

This Court observing that there is no document from which date of birth of the
appellants could be ascertained, directed ossification test to be conducted so as to
ascertain the age of the appellants.

The Court said that the claim of juvenility can be raised in appeal even if not
pressed before the trial court and can be raise for the first time before this court
though not pressed before the trial court and in the appeal court. For making a claim
with regard to juvenility after conviction, the claimant must produce some material
which may prima facie satisfy be court that an inquiry into the claim of juvenility is
necessary.

The doctors have examined the appellants and given their opinion as that on pe rusal
of the documents, it was revealed that the year of commission of crime was 1994.
The accused has submitted the documentary proof of his age stating date of birth to
be 1-7-1978 and date of birth as 5-2-1979 respectively. Therefore, at the time of
commission of the offence in 1994, the appellants would have been only aged about
15 years and the benefit of the JJ Act to be extended to the appellants.

Taking his age as 34 years on the date of the examination he would have been 18
years, 2 months and 7 days on the date of the occurrence but such an estimate
would be only an estimate and the appellant may be entitled to additional benefit of
one year in terms of lowering his age by one year which would then bring him to
be 17

92
Criminal Appeals Nos. 1119-20 of 2016, decided on November 30,2016
80
years and 2 months old a juvenile. Keeping in view the above principles, the court
consider the medical opinion of the Medical Board determining the age of the
appellants as between 35-40 years on the date of examination, i.e. on 2-5-2016. On
the basis of the age of the appellants determined between 35-40 years in May 2016,
giving a variation of two years in upper age limit i.e. age of the appellants would be
38 years. The age determination based on ossification test though may be useful is
not conclusive.

81
CASE STUDY 3

Sri Ganesh

v.

State of Tamil Nadu and Anr.93

In this case, the court said that the trial court took into account the documentary
evidence as contemplated in the statutory provisions and returned a finding that the
date of birth of the appellant was 19.10.1991. During the course of its judgment the
High Court could not find such conclusion to be vitiated on any ground. In the face of
the relevant documentary evidence, there could not be medical examination to
ascertain the age of the appellant and as such the consequential directions passed by
the High Court were completely unwarranted. Further, if the allegations of the
prosecution are that the offence under Section 376 IPC was committed on more than
one occasion, in order to see whether the appellant was juvenile or not, it is enough to
see if he was juvenile on the date when the last of such incidents had occurred. The
trial court was therefore justified in going by the assertion made by the victim in her
cross examination and then considering whether the appellant was juvenile on that
date or not.

93
CRIMINAL APPEAL NO. 39 OF 2017 (Arising out of SLP(Cri.)No.9073 of 2015), decided on 6
January 2017

82
CASE STUDY 4

Mukesh Yadav

v.

Union of India and Ors.94

In this case, the court made notice that Section 21 of the Act prohibits publication of
the name of the ‗juvenile in conflict with law‘, the underlying object of the said
provision being to protect a juvenile from any adverse consequences on account of the
conviction for an offence, committed as a juvenile.

The court said that by keeping in mind the fact that the object of the Act is to ensure
that no stigma is attached to a juvenile in conflict with law, in the court‘s view, once
the juvenile has been extended a protective umbrella under the said enactment, there
was no good reason for the respondents to have insisted that the petitioner ought to
have disclosed the information relating to the allegations against him pertaining to an
offence that was committed during his childhood where he was tried by the Juvenile
Justice Board and was subsequently acquitted.

94
W.P.(C)—6062/ 2017, decided on 14 December 2017

83
CASE STUDY 5

Moha

n v.

State95

Under the abovementioned case, this court concluded that the appellant had sexual
intercourse with the prosecutrix. As the evidence has the overtures of consensual
sexual intercourse, the age of the prosecutrix becomes relevant. In respect of
ascertaining the age of a child, who is also a victim of a crime under Section 361 IPC,
the age of the prosecutrix is relevant. Therefore, this court has relied on the decision
of the Apex Court in Jairnail Singh v. State of Haryana 96, which has been held that
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is
applicable for ascertaining the age of the child who is a victim of a crime. Therefore
the consent of the prosecutrix, being a minor, was inconsequential. Hence the appea l
was dismissed. Further, there are vestiges of non- consensual intercourse as well as
enticement in the testimony of the prosecutrix. Hence, the court is of the view that this
case is not a fit case for granting less than the statutory minimum as there are no
adequate and special reasons for doing so.

Accordingly, having being regard to the facts and circumstances of the case and the
fact that minors consent in meaningless, the court upheld the conviction and modify
the order on sentence to the extent that the appellant Mohan shall undergo rigorous
imprisonment for a period of seven years for the offence under Section 376 IPC.
Order on payment on fine shall remain unchanged.

**********************************

95
CRL.A.-1181/ 2016, decided on 5th June 2017
96
(2013) 7 SCC 263

84
 CHAPTER 6

CONSTITUTIONAL AND STATUTORY PROVISIONS RELATING

TO JUVENILE JUSTICE SYSTEM

“Juvenile Justice has constitutional roots in Articles 15(3) and 39(e) and the
pervasive humanism which bespeaks the super parental concern of the
State for its child-citizens including juvenile delinquents.”97

The Constitution of India

The Constitution of India is considered as the fundamental law of the land. Preamble
of the Constitution of India provides that the statute has come into existence with a
principal object to secure to all citizens of India, justice-social, economic and political
and to promote among them all fraternity assuring the dignity of individual and the
unity and integrity of the nation. The objective mentioned in the preamble can only be
achieved when necessary opportunities are available to the citizens to develop this
personality and for this some fundamental rights have been guaranteed to citize ns in
Part III of the Indian Constitution. The Indian Constitution empowers the State to
make special provisions for the protection and welfare of women and children98 as
they require special treatment on account of their very nature.

In Sheela Barse v. Union of India,99 the Supreme Court held that if a child is a
national asset, it is the duty of the state to look after the child with a view to ensuring

97
Hon‘ble Judges/Coram: R.S. Pathak and V.R. Krishna Iyer, JJ. In Satto and Ors. V. State of U.P.

98
The Constitution of India, 1950, art.15

99
AIR 1986 SC 1773

85
full development of his personality. Bhagwati, C.J. has pointed out that,100 ―A
problem child is indeed a negative factor. Every society must, therefore, devote full
intention 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.‖

6.1.1. Following are the important Constitutional provisions relating to the

welfare of juvenile:

 ARTICLE 21-

Article 21 clarifies and crystallizes the general principle that no person shall be
deprived of his life or personal liberty except according to procedure established by
law. It provides for the right to life with human dignity101 and free from
exploitation102. While, on the other hand, Article 21A provides for the right to free
and compulsory elementary education for all the children under the age of 6 to 14
years.103

 ARTICLE 23-

Article 23 is the other prominent Article which creates right to a person against
exploitation and prohibits traffic in human being and other similar forms of forced

100
Sheela Barse v. Secretary, Children Aid Society, AIR 1987 SC 656 at p. 659

101
Francis Caralie Mullin v. The Administrator Union Territory of Delhi and other, A.I.R. 1981 S.C.
746

102
People’s Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473

103
https://blog.ipleaders.in/juvenile-justice-system-india/

86
labor. The term ‗traffic in human beings‘ includes traffic in women and children for
immoral purposes.

 ARTICLE 24104-

Article 24 of the Constitution of India provides the most relevant provisions which are
directly connected to employment of child workers. This Article strictly prohibits
employment of a child below the age of 14 years in any factory or mine or in any
other hazardous employment.105

Under Part IV of the Constitution of India, several provisions are enshrined for the
protection of child, which imposes duty on the State to follow the Directives both in
manner of administration of justice as well as in the making of laws. The Directive
Principles of State Policy have not been included in the Constitution as mere idle
words but are an important and integral part of the Constitution designed to conform
to and run as subsidiary to the Fundamental Rights. The Directive Principles and
Fundamental Rights are supplementary and complementary to each other in aiming at
the same goal of bringing about, as envisaged in the preamble, a social revolution and
the establishment of welfare state.

 Articles 39(e) and (f) contain provisions pertaining to child welfare. There is a
duty bestowed upon the State to take appropriate measures to prevent abuse of
tender aged children and they are protected against exploitation.

 Article 38 provides that state shall strive to promote the welfare of the people
(child) by securing and protecting as effectively as it may, a social order on which
justice social, economic and political shall inform all the institutions of national
life.

104
Dr. S.S. Singh, Offences against Children & Juvenile Offence (Central Law Publications), pg.22

105
M.C. Mehta v. Union of India, AIR(1996) 6 SCC 756

87
 Article 41 provides that the State shall within the limits of its economic capacity
and development, make effective provision for securing the right to education.
The implementation of this provision is also expected to promote the welfare of
the children proportionately.

 Article 45 provides that the State shall endeavor to provide early childhood care
and education for all children until they complete the age of six years.

In Legal Aid Committee v. Union of India, 106 the Supreme Court held that children
require the protective umbrella of society for better growth and development as they
are not in a position to claim their entitlement to attention, growing up, food,
education and the like. It is the responsibility of the society and is one of the
paramount obligations of those who are in charge of governance of the country today
to attend to the children to make them appropriate citizens of tomorrow.

106
AIR 1989 SC 1278

88
 INDIAN PENAL CODE, 1860 AND THE CODE OF
CRIMINAL PROCEDURE, 1973

The Indian Penal Code came into being on 1 st May, 1861 and it was considered to be
the first establishment of codified law in colonial India, and the IPC dealt with both
adult and juvenile offences. Section 82 of IPC lays down, ―Nothing is an
offence which is done by a child under seven years of age.‖ While, Section 83
enshrines,
―Nothing is an offence which is done by a child who is above 7 years of age
and under 12 who has not attained the sufficient maturity of understanding in order to
judge the nature and consequences of his act on that particular occasion.‖

Further, there are certain sections under IPC which discuss the offence of foeticide
and infanticide107. If a person does an act which amounts to culpable homicide which
results in the quick death of an unborn child then the person will be charged with the
act of Culpable Homicide.

There are numerous sections in IPC which discuss the matter of kidnapping and
Abduction. If a male minor who hasn‘t yet attained the age of 16 and a female minor
who hasn‘t attained the age of 18 if removed from their lawful guardians without their
consent then the act is termed as the offence of kidnap.108

The Criminal Procedure Code also deals with the clause of jurisdiction in the case
of juvenile. It provides that109- Any offence which is not punishable with death or
imprisonment for life, which is committed by a person below the age of 16 years, may
be tried by a court which is specially empowered under the Children Act to decide on
such matters. Or it can be dealt with by any other law for the time being in force
which is providing for treatment, training and rehabilitation of young offenders.

107
The Indian Penal Code, 1860 (Act 45 of 1860), ss. 315,316

108
The Indian Penal Code, 1860 (Act 45 of 1860), s.361

109
The Code of Criminal Procedure, 1973 (Act No. 2 of 1974), s.27

89
While, it also lays down that a child in conflict with law can apply for an Anticipatory
Bail.110 Justice Narayana Pisharadi of Kerala High Court held that the child in conflict
with law has all the rights to apply for anticipatory bail and there is no bar on this by
any provisions of Juvenile Justice Act. The anticipatory bail of a child in conflict with
law is maintainable in the High Court or the Court of Sessions.

*****************************************

110
The Code of Criminal Procedure, 1973 (Act No. 2 of 1974), s. 437

90
 CHAPTER 7

JUVENILE JUSTICE SYSTEM IN OTHER COUNTRIES AS WELL

In the world, there are three models that inspire administration of juvenile justice:-

 The Welfare model

 The Juvenile Model or Control Model- Retributive model
 The Restorative Model

The age of criminal responsibility and treatment of juveniles thus varies under the
different models adopted by various countries. Some of them are as follow:-

THE UNITED STATES OF AMERICA111

 Name of the Act: Juvenile Justice and Delinquency Prevention Act (JJDPA-
1974). In 2002, the Act was reauthorized.

 Age of criminal responsibility : The lowest age is six in North Carolina; several
states have no set standard and thus rely on the common law age of seven.
 Punishment/ Incarceration: On June 25, 2012, the US Supreme Court ruled
unconstitutional the mandatory sentence of life without the possibility of
parole (LWOP) for crimes committed by juveniles. The ruling did not specify

111
Inter-American Commission on Human Rights, Juvenile Justice and Human Rights in the Americas,
July13, 2011
https://www.oas.org/en/iachr/children/docs/pdf/JuvenileJustice.pdf

91
 whether it applied retroactively to those in prisons or to future juvenile felons. The
Court banned only mandatory life sentences without parole for those under age 18
convicted of murder; it did not completely banish life (with parole) sentences
for such convicts.

In most states, cases referred to juvenile court that meet certain criteria may be
transferred to criminal court upon the authorisation of the juvenile court judges. This
mechanism is known as ―judicial waiver‖, since the judge is ‗waiving‘ the
juvenile court‘s jurisdiction and giving the case over to the criminal system.

Judicial waiver: Under judicial waiver laws, the case originates in juvenile court.
Under certain circumstances, the juvenile justice court judge has the authority to
waive juvenile court jurisdiction and transfer the case to criminal court. State statutes
vary in how much guidance they provide judges on the criteria used in determining if
a youth‘s case should be transferred. Almost all states have judicial waiver provisions
which is the most traditional and common transfer and waiver provision.

Prosecutorial waiver: These laws grant prosecutors discretion to file cases against
young people in either juvenile or adult court. Such provisions are also known as
―concur rent jurisdiction‖, ―prosecutorial discretion‖, or ―direct file‖. Fifteen
states have concurrent jurisdiction provisions.

Reverse waiver: This is a mechanism to allow youth whose cases are being
prosecuted in adult court to be transferred back to the juvenile court system under
certain circumstances. Half of the states have reverse waiver provisions.

Statutory or Legislative Exclusion: These laws exclude certain youth from juvenile
court jurisdiction entirely by requiring particular types of cases to originate in
criminal rather than juvenile court. More than half of the states have statutory
exclusion laws on the books.

Blended Sentencing: These laws allow juvenile or adult courts to choose between
juvenile and adult correctional sanctions in sentencing certain youth. Courts often will
combine a juvenile sentence with a suspended adult sentence, which allows the youth

92
 to remain in the juvenile justice system as long as he or she is well- behaved. Half of
the states have laws allowing blended sentencing in some cases. Certain states have
recently changed their state laws and are aiming towards removing juveniles from the
criminal justice system (as of 2011).

ENGLAND AND WALES

 Name of the Act: A number of Acts, dating back to 1993, provide for the system
of juvenile justice in England and Wales and attempt to ensure that a fair trial and
fair treatment is given to children accused of crimes; Children and Young
Persons Act, 1933 ( as amended by s.16(1) of the Children and Young Persons
Act, 1963) and The Criminal Justice Act, 1948 which deals with the rights of
juvenile offenders and also provides certain class of security to them by sending
them to remand homes.112

 Age of criminal responsibility: The minimum age of criminal responsibility in

England and Wales is currently ten years old. Those below this age are
considered doli incapax and thus incapable of forming criminal intent.

 Punishment/ Incarceration: For children to whom preventive methods do not

apply, for example, due to the seriousness of the offense or who have exhausted
them, the juvenile justice system then operates in the form of a Youth Court,
which hears cases of ten to eighteen years old. This youth court was established to
prevent children and young people from entering into contact or associating with
adult suspects during any phase of a trial.

112
https://blog.ipleaders.in/juvenile-justice-system-india/

93
 Detention and Training Order (DTO):

Persons aged between twelve and seventeen: can be given a DTO that lasts
for between four months and two years. Half of the time is spent in custody and
half in the community. The DTO can be made available by the Home Secretary
for the persons between the ages of eleven and twelve when dealing with a
persistent offender.

The court has a range of different sentences for young offenders; for example,
supervision orders that can have a variety of conditions attached to them or an Action
Plan Order, an intensive three month long-community based programme. More
serious custodial methods of punishment are detention and training orders. These
orders are normally given to children representing a high level of risk [to the public,
have a significant offending history or are persistent offenders and where no other
sentence will manage their risks effectively.‖]

Only those offenders over the age of fifteen years may be sentenced to detention
in a young offenders‟ institution, although this latter restriction does not apply to
children aged ten and over convicted of murder. While, for very serious offences
children are prosecuted in the Crown Court. The Crown court can sentence
children between ten and eighteen years old that have committed an offense that
is punishable by fourteen or more years‟ imprisonment for adult offenders,
children that have committed murder, or certain sexual offenses, may be sentenced for
up to the adult maximum for the same offense. The young offenders are not placed in
prisons alongside adults, but can be placed in secure training centres, secure
children‘s homes or young offenders‘ institutions.

Murder carries a life sentence . For persons convicted of murder that are under
eighteen years of age indefinite detention begins in a social service
accommodation.

The person is then transferred to a young offender institution at eighteen and to

prison at twenty one. The Lord Chief Justice sets the length of detention and it is for
the Parole Board to determine whether the young person should be released.

94
FRANCE

 Name of the Act: Since the Order of 2nd February 1945, a specific justice system
applies to children and adolescents under 18 years of age , namely juvenile
justice.

 Age of Criminal Responsibility: While the onset of criminal responsibility in

France is age 13, children aged 10-12 may be brought before child court judges
solely for the purpose of applying security measures, provided that child is at risk.
Accordingly, it is possible to apply a minimum age excluding serious offences.
Sentencing young person‘s at least 13 but not yet 17 happens as an exception; as a
rule, ―educational security measures‖ are applied instead.

 Punishment/ Incarceration: In June 2011, French Parliamentarians voted on a

new law in the National Assembly introducing a reform of the juvenile justice
system. The law provides for the creation of a criminal court with a juvenile judge
to adjudicate on recidivist offenders aged 16 to 18 years. The law also introduces
new procedures for faster prosecution. The law was largely criticised by civil
society as it represents a regression of juvenile justice and puts in danger the
specifically of the justice system for minors.

Juvenile assize courts try serious offences committed by minors from 16 to 18 years
of age in accordance with the special procedure applicable to minors. These courts
comprise three professional judges and a civilian jury. Minors are considered
criminally responsible as soon as they are ―capable of discernment.‖ Age
of discernment is set roughly between the ages of 8 to 10, from which age minors
can be sentenced. Penalties are adapted to the age of the offender:

From 10 to 13 years of age, educational penalties can be imposed on minors (such as

the confiscation of an object, for example). If the minor concerned does not comply
with the penalty, he or she may be placed in a household or a specialized centre for
juvenile offenders;

95
 From 13 to 16 years of age, minors may be criminally sentenced; they can receive a
prison sentence but are liable to only half the sentence prescribed for adults; they
cannot be remanded in custody, except if they have committed a serious offence;

From 16 to 18 years of age, minors can be remanded in custody and the excuse of
minority can be set aside. Because juvenile delinquents are now younger and commit
more serious offences, juvenile justice has gradually tended to accelerate procedures
and to strengthen educational supervision.
A new piece of legislation in France allows children between the ages of 16-18 who
have twice or more re-offended to be sentenced as adults and faced with harsh
prison sentences.

A child in conflict with law can also be treated as a child in need of care and
protection in certain cases such as in the case of a child in the 7-12 year age group
caught for a petty offence or in the case of a first time offender. In such cases the
child will be transferred to the Child Welfare Committee for care, protection and
rehabilitation.

SAUDI ARABIA113

 Name of the Act: The main laws governing juvenile justice are the Juvenile
Justice Act, 1975, the Juvenile Justice Regulations, 1969, the Law of Criminal
Procedure, 2001, the Detention and Imprisonment Act, 1978, the Detention
Regulation and the Juvenile Homes‟ Regulation, 1975 and the basic law of
governance, 1992. All laws are based on Shariat ( as of August 2012)

 Age of criminal responsibility: The minimum age for criminal responsibility has
reportedly been raised from 7 to 12 years, but reports are inconsistent and the rise
does not apply to girls or in qisas girls.

113
Global Initiative to End All Corporal Punishment of Children, Saudi Arabia Country Report,
August 2012 http://www.endcorporalpunishment.org/pages/pdfs/states -reports/Saudi%20Arabia.pdf
96
  Punishment/ Incarceration: There are three types of offences- qisas (punished
by retaliation), hadd (for which the prescribed penalty is mandatory), and ta’zir
(for which the punishment is discretionary).

Corporal punishment (amputation and flogging) is lawful as a sentence for crime,

including for child offenders. Flogging is mandatory for a number of offences (hadd),
and can be ordered at the discretion of judges (ta’zir). Sentences range from dozens to
thousands of lashes, and are usually carried out in instalments, at intervals ranging
from two weeks to one month. The Juvenile Justice Regulations (1969) encourage
juvenile courts to settle cases without placing children in supervised facilities and to
limit penalties to admonishment, guidance, counselling or a reprimand but under the
Juvenile Justice Act (1975), young persons under 18 may be sentenced to corporal
punishment including flogging, stoning and amputation. Under the Law of Criminal
Procedure (2001), amputation is carried out pursuant to a Royal Order issued by the
King or his representative, and must be witnessed by the representatives of the
Administrative Governor, the Court, the Bureau of the Promotion of Virtue and
Prevention of Vice and the police. Saudi Arabia also reported the execution of one
juvenile in 2011.

PAKISTAN

 Name of the Act: Juvenile Justice System Ordinance, 2000

 Age of Criminal Responsibility : Section 82 of the Pakistan Penal Code sets the
age of criminal responsibility for most offences at seven, while Section 83
presumes that children between case of children between 7 and 12 years of age are
doli incapax the prosecution and so the prosecution must prove the child knew
their acts were ‗ seriously wrong‘.

 Punishment/ Incarceration: 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

97
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 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.

***************************************

98
 CHAPTER 8

INTERNATIONAL CONCERNS FOR JUVENILE

Nowadays, children‘s rights are of great importance for international community and
they are regulated with numerous international instruments and treaties. Being a
vulnerable or in specific category, there is obvious need to protect juveniles in every
aspect of their lives (family, education, freedom of expression, health, conscience and
religion, protection against exploitation, protection of the children w ith special needs
in armed conflicts and so on). The children rights are part of the numerous
international instruments that provide both their rights in general and the rights of the
juvenile deprived of their liberty.

Some of these documents have obligatory character for the member states, for
example, the UN Convention on the Rights of the Child (UNCRC) and some of
them represent soft law with a form of recommendation how to react on a juvenile
crime such as the United Nations Standard Minimum Rules for the administration
of the Juvenile Justice other. Furthermore, this is organized on the national levels with
domestic laws in order to organise this area more specifically to ensure the
achievement of the goals.

Following are the documents from international organizations that manage the
children rights or that can be of interest for execution of criminal sanctions
and represent secondary source of law:

Universal Declaration of Human Rights

Universal Declaration of Human Rights (UDHR) was adopted and proclaimed by the
United Nations General Assembly on 10 December 1948 and it represents ―a
mixture of the rights of the most diverse nature‖. It proclaims that fundamental human
rights should be universally protected. It also highlights that the principle of non-

99
 discrimination is crucial no matter of race, colour, sex, language, religion, political
or other opinion, national or social origin, birth or other status. 114 It also lays down
provisions for the persons deprived of their liberty115 and proclaims that no one can be
subject to torture or cruelty, inhuman or degrading treatment or punishment ;
and no one can be subject to arbitrary arrest, detention or exile116.

However, there are certain criticisms of the UDHR, such as; one of them is the fact
that everyone has the right to live in society where all the rights from the UDHR are
fulfilled. The critique is the fact it does not say how it can be done. Moreover, not
having significant number of countries as its member states and its non binding
character are some of the considerable drawbacks.

European Convention on Human Rights

Council of Europe was established after the World War II with the aim to prevent
atrocities to happen again. The main goals of the Council of Europe are: respect of
human rights, democracy and rule of law. In order to achieve this, Assembly
proclaimed European Convention on Human Rights in Rome 1950. It has been
believed that the convention remains by far the most successful manifestation of the
aspiration of the UDHR and that it has created the most effective system for
international protection of human rights in existence.

It is legally binding document which means that member states are accepting the
obligations to respect its provision. It refers directly on juvenile delinquency,
nevertheless it is still significant.117 It provides for prohibition of discrimination on

114
The Universal Declaration of Human Rights, 1948, art.2

115
The Universal Declaration of Human Rights, 1948, art.5

116
The Universal Declaration of Human Rights, 1948, art.9

117
The European Convention on Human Rights, 1953, arts.5,6

100
any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other
status is regulated118, which applies on minors as well since these rights belong to
everyone. Also, great importance has been provided to the juvenile by providing right
to liberty and security119, right to a fair trial120 and no punishment without law121.

It also provides that no one can be deprived of the liberty except when it is prescribed
by the law and that detention of minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority.122The right to a fair and public hearing by a court is
authorized by the law. Even though the trial needs to be public, there is a possibility to
exclude public from the trial if it is ―in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties require so.‖123

The European Court for Human Rights (ECHR), in one the important decisions in
the case of Adamkieuwicz v. Poland stressed out that the best interest of the child
should be protected. Moreover, the age of juvenile, level of maturity and intellectual
and emotional capacities need to be taken into account. The ECHR admits that the
detention in prison can be made but it needs to be the last resort and it needs to last for
the limited period of time. Next, every specific case and personality of person should
be considered. Finally, the ECHR agreed that minors should be separated from

118
The European Convention on Human Rights, 1953, art.14

119
The European Convention on Human Rights, 1953, art.5

120
The European Convention on Human Rights, 1953, art.6

121
The European Convention on Human Rights, 1953, art.7

122
The European Convention on Human Rights, 1953, art.5,1(d)

123
The European Convention on Human Rights, 1953, art. 6(1)

101
 adults.124 The ECHR also pointed out the vulnerability of the child while deciding if
the treatment can be qualified as inhuman or degrading. 125 Also, a concurring opinion
from two judges in a certain case126 pointed out that the minors are entitled to the
same fundamental rights as adults, whereas personality, development and limited
social responsibility should be considered while applying Artic le 6(the right to a fair
trial). Furthermore, the states should provide the children with the special care and
assistance in order to fully assume responsibilities in the communities.

United Nations Convention on the Rights of the Child (UNCRC)

The UNCRC is an international agreement across the world which sets out rights of
children between the ages of 0 to 18 in general, concerning all aspects of children‘s
lives and also the situation when children have the problems with the law. The UN
Convention on the Rights of the Child is the first legal binding document
recognizing the individual rights of children all over the world. It was unanimously
adopted by the UN General Assembly on 20th November, 1989 and was put into
effect in 1990. It was argued that ―the Convention was an overdue response to
the urgent need to elaborate a legally binding document that would focus exclusively
on the specific needs and interests of the child which, as will be seen below, differs in
important aspects from those for adults.‖127

The importance of UNCRC, when compared with other documents is that it

represents the instrument that combines all groups of human rights (civil, political,
economic, social and cultural rights) of every child with respect to the principle of
non-discrimination on the ground such as race, colour, sex, language, religion,

124
Nart v. Turkey, 20817/ 04

125
Duksha v. Ukraine

126
Nortier v. The Netherlands
127
The Rights of the Child in the Administration of Justice, 2008: 339

102
 political or other opinion, national, ethnic or social origin, property, disability, birth or
other status.128

Rights included within the UNCRC are as follow:-

a) Universal- These are same for everyone regardless of race, sex, religion, politics,
etc.
b) Indivisible- They are equally important and interdependent

c) Inalienable- All human beings have rights and they cannot be taken away

The United Nations Convention on the Rights of the Child, recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world. It provides for such
fundamental human rights and the dignity and worth of the human person and has
determined to promote social progress and better standards of life in larger freedom.

Following are the basic principles of the Convention129:

 General Principles

 Civil Rights and Right to Freedoms

 Family Environment and Alternative Care

 Basic Health and Welfare

 Education, Leisure and Cultural Activities

128
https://repository.gchumanrights.org>...PDF International Instruments on Juvenile Delinquency,
Reactions to Juvenile…
129
Dr. S.S. Singh, Offences against Children & Juvenile Offence (Central Law Publications), p.no.26

103
  Protection and Safety

GENERAL PROVISIONS130

 Children must be protected from discrimination:

All rights apply to all children without exception. It is the State‘s obligation to protect
children from any form of discrimination and to take positive action to promote their
rights. The present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child‘s or his or her parent‘s or legal
guardian‘s race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.131

Following points shall be kept into mind so that children must be protected from
discrimination:

 Ensure equal treatment of children

 Avoid de facto discrimination
 Train all juvenile justice personnel
 Establish rules, regulations, protocols
 Give support, assistance for reintegration
 Abolish status offences- both sexes
 Implement child protective measures

130
The United Nations Convention on the Rights of the Child (UNCRC), 1989, arts. 2,3,6,12

131
The United Nations Convention on the Rights of the Child (UNCRC), 1989, art.2

104
  Best interests of the child

All actions concerning the child shall take full account of his or her best interests. The
state shall provide the child with adequate care when parents or others charged with
that responsibility, fail to do so. The member states shall ensure services and facilities
responsible for the care or protection of children which shall conform to the standards
established by competent authorities, particularly in the areas of safety, health in the
number and suitability of their staff as well as competent supervision.132

The following are best interests of the child:

 Primary consideration in all decisions affecting children

 Children different from adults-basis for their lesser culpability

 Require separate juvenile justice system

 Discard retributive principle, embrace restorative justice

 Maintain concern for public safety

 Survival and development

Every child has the inherent right to life and the State has an obligation to ensure the
child‘s survival and development.133 These are the following two rights to life,
survival and development134:

132
Id., art.3

133
Id., art.6

134
The United Nations Convention on the Rights of the Child (UNCRC), 1989, art.6

105
  Delinquency- very negative impact on a child‘s development
 Policies must support child development

CIVIL RIGHTS AND RIGHT TO FREEDOMS

a) Registration of name and nationality

All children have the right to a legally registered name, officially recognized by the
government. Children have the right to a nationality (to belong to a country). Children
also have the right to know and as far possible, to be cared for by their parents.135

b) Preservation of identity

The State has an obligation to protect and if necessary, re-establish basic aspects of
the child‘s identity. This includes name, nationality and family ties.136

c) Freedom of expression

The child has the right to express his or her views, obtain information and make ideas
or information known, regardless of frontiers. Children have the right to get and share
information as long as such information is not damaging to them or others. The
freedom of expression includes the right to share information in any way they choose
including by talking, drawing or writing.137

135
Id., art.7

136
Id., art.8

137
Id., art.13

106
 d) Freedom of thought, conscience and religion

The State shall respect the child‘s right to freedom of thought, conscience and religion
subject to appropriate parental guidance.138 The Convention recognizes that as
children mature and is able to form their own views; some may question certain
religious practices or cultural traditions. The Convention supports children‘s right to
examine their beliefs but it also states that their right to express their beliefs implies
respect for the rights and freedoms of others.

e) Freedom of association

Children have the right to meet together and to join groups and organisations 139, as
long as it does not stop other people from enjoying their rights. In exercising their
rights, children have the responsibility to respect the rights, freedoms and reputations
of others.

f) Right to privacy

Children have a right to privacy. The law should protect them from attacks against
their way of life, their good name, their families and their homes.140

g) Access to appropriate information

Children have the right to get information that is important to their health and well-
being. Governments should encourage mass media- radio, television, newspapers and
Internet content sources- to provide information that children can understand and to
not promote materials that could harm children. Mass media should particularly be

138
Id., art.14

139
Id., art.15

140
Id., art.16

107
 encouraged to supply information that minority and indigenous children can
understand. Children should also have access to children‘s books.141

h) Detention and punishment

No one is allowed to punish children in a cruel or harmful way. Children who break
the law should not be treated cruelly. They should not be put in prison with adults,
should be able to keep in contact with their families, and should not be sentenced to
death or life imprisonment without possibility of release.142 They are following-
 No death penalty
 No life sentence without parole
 Detention- as measure of last resort and for shortest possible
time.

FAMILY ENVIRONMENT AND ALTERNATIVE CARE

a) The rights of parents

States shall respect the responsibilities, rights and duties of parents or legal guardians
or other persons legally responsible for the child, to provide in a manner consistent
with the evolving capacities of the child, appropriate direction and guidance in the
exercise by the child of the rights recognized in the present Convention.143

141
Id., art.17

142
Id., art.37
143
Id., art.5

108
 b) Parental responsibilities144

Parents have non joint primary responsibility for raising the child and the State shall
support them in this. Governments must respect the responsibility of parents for
providing appropriate guidance to their children.

c) Separation from parents

The child has a right to live with his or her parents unless this is deemed to be
incompatible with the child‘s interests. The child has also the right to maintain contact
with both parents if separated from one or both.145

d) Protect from abuse and neglect

The State shall protect the child from all forms of maltreatment by parents or others
responsible for the care of the child and establish appropriate social programmes for
the prevention of abuse and the treatment of victims. Children have the right to be
protected from being hurt and mistreated, physically or mentally. Governments should
ensure that children are properly cared for and protect them from violence, abuse and
neglect by their parents or anyone else who looks after them. Any form of discipline
involving violence is unacceptable.146

e) Children deprived of family environment

Children who cannot be looked after by their own family have a right to special care
and must be looked after property, by people who respect their ethnic group, religion,
culture and language. According to the Convention in the family-

144
Id., art.18

145
Id., art.9

146
Id., art.19

109
  All members are equal regardless of their age
 Children have the right to demand good life conditions and family serenity
 Children have the right to chose family activities
 In the case of divorce, children have the right to choose where and with which
parent they wish to stay.

BASIC HEALTH AND WELFARE

a) Survival and development

Children have the right to live. Government should ensure that children survive and
develop healthily.147

b) Disabled children

Children who have any kind of disability have the right to special care and support,
education and training to help him or her enjoy a full and decent life in dignity and
achieve the greatest degree of self- reliance and social integration possible.148

c) Social security

The child has a right to benefit from social security including social insurance.149

147
Id., art.6

148
Id., art.23

149
Id., art.26

110
 d) Adequate standard of living

Children have the right to a standard of living that is good enough to meet their
physical and mental needs. Governments should help families and guardians who
cannot afford to provide this, particularly with regard to food, clothing and housing.150

e) Health service

The child has a right to the highest standard of health and medical care or the best
health care possible- to safe drinking water, nutritious food, a clean and safe
environment and information to help them stay healthy.151

EDUCATION, LEISURE AND CULTURAL ACTIVITIES

a) Education

The child has a right to education and the State‘s duty is to ensure that primary
education is free and compulsory, to encourage different forms of secondary
education accessible to every child and to take higher education available to all on the
basis of capacity. School discipline shall be consistent with the child‘s rights and
dignity. The state shall engage in international co-operation to implement this right.152

b) Leisure, play and culture

150
Id., art.27

151
Id., art.24
152
Id., art.28

111
 Children have the right to relax and play and to join in a wide range of cultural,
artistic and other recreational activities.153

OTHER SPECIAL PROTECTION MEASURES

a) Refugee children

Children have the right to special protection and help if they are refugees (if they have
been forced to leave their home and live in another country).154

b) Child Labour

The Convention protects children from harmful and exploitative work but there is
nothing in it that prohibits parents from expecting their children to help out at home in
ways that are safe and appropriate to their age. Also, the children‘s work should not
jeopardize any of their other rights including the right to education or the right to
relaxation and play.155

c) Sexual exploitation

The state shall protect children from sexual exploitation and abuse including
prostitution and involvement in pornography. This provision in the Convention is
augmented by the Optional Protocol on the sale of children, child prostitution and
child pornography.156

153
Id., art.31

154
Id., art.22

155
Id., art.32

156
Id., art.34

112
 d) Abduction, sale and trafficking

The government should take all measures possible to make sure that children are not
abducted, sold or trafficked.157
e) Other forms of exploitation

Children should be protected from any activity that takes advantage of them or could
harm their welfare and development.158

f) Torture and deprivation of liberty

No child shall be subjected to torture, cruel treatment or punishment, unlawful arrest

or deprivation of liberty. Both capital punishment and life imprisonment without the
possibility of release are prohibited for offences committed by persons below 18
years. A child who is detained shall have legal and other assistance as well as contact
with the family.159

g) Rehabilitation of child victims

Children who have been neglected, abused or exploited should receive special help to
physically and psychologically recover and reintegrate into society. Particular
attention should be paid to restoring the health, self-respect and dignity of the child.160

157
Id., art.35

158
Id., art.36

159
Id., art.37

160
Id., art.39

113
 Other important International documents for regulating juvenile
justice system

There are significant numbers of international documents that represent secondary

source of law about execution of criminal sanction towards juvenile such as:

 The UN Charter

 International Covenant on Civil and Political Rights

 International Covenant on Economic, Social and Cultural Rights

 European Convention on the Exercise of Children‘s Rights

 Convention against torture and other Cruel, Inhuman or Degrading Treatment or

Punishment adopted by the UN

 European Convention for the Prevention of Torture and Inhuman or Degrading

Treatment or Punishment; adopted by the Council of Europe

 Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment the UN

 CPT Standards, Council of Europe and many more

*************************************

114
 CHAPTER 9

CONCLUSION AND SUGGESTIONS

CONCLUSION

No doubt, ―juveniles in conflict with law‖ and ―children in need of care

and protection‖ are impoverished and need special care and protection. The state
ensures special treatment to them through various legislations. But in reality, they
often get victimized by legal and procedural complication. They are more prone to
human rights violations sometimes by the hands of state agencies or otherwise by
their own family in the form of arbitrary detention, cruel punishments, torture and
abuse. Since last few years, the problems of children in need of care and protection
and those in conflict with the law has been receiving considerable attention by the
government, NHRC, NGO as well as the civil society. But, the problems faced by
them are extremely large and all that is being done is not enough. It is sad that serious
crimes like rape and murders also go unpunished with the offender wearing the garb
of juvenility. Also, the age must not be the sole criterion to award a lenient
punishment to the offender.

For this purpose, the Juvenile Justice (Care and Protection of Children) Act,2015 was
passed, the laudable features of which have been overshadowed by one provision that
demands children in the age group 16-18 to be prosecuted as adults if found guilty of
heinous crime. However, one must remember that juveniles involved in crimes are not
criminals but are the victims of society. Juvenile delinquency can be stopped at an
early stage provided special care is taken both at home and in school. Parents and
teachers play an important role in nurturing the mind of the child. Attitude and
perception towards Child Rights needs a change. On the Legislative side a lot of work
has to be done in India but implementation part still requires improvement, in order to

115
achieve the desired goal of welfare of the children. The judiciary has also played an
appreciable role and has contributed a lot in proper and beneficial implementation of
the juvenile justice legislation by interpreting the provisions of the Juvenile Justice
Act so as to provide maximum benefit and relief to the maximum number of juveniles
covered under the beneficial and favourable legislation. A good intended legislation,
properly and sincerely implemented and visionary interpreted can significantly
reverse the crime trends in the juvenile. Therefore, it is important that as a society we
must give full attention towards children to ensure that all children are properly cared
for which they have their legitimate rightful place in the society.

 Whether Juvenile courts be abolished?161

Supporters of getting rid of juvenile courts centre their arguments on the need to
punish juvenile criminals and a concern for juveniles‘ rights:

1. The Juvenile Court is founded on false premises because its purpose is to shield
youths from the consequences of their own actions.

2. The Juvenile Court fails to deter juvenile violence.

3. The current juvenile crime problem requires that we punish juvenile offenders in
order to deter the next generation of juveniles from becoming predators.

4. Justice demands that juvenile courts be abolished- If juveniles are tried in adult
courts, they will be afforded their full array of constitutional rights.

161
https://w w w. cliffsnotes. co m/study- guides/c riminal -justice/the-ju ve nile-justice -syste m/should-
juveniles-be-tried-as-adults

116
  Whether Juvenile courts not be abolished?

Many experts believe abolishing the juvenile court will only make matters worse:

1. The premise of the Juvenile Court is sound- since children have not fully
matured, they shouldn‘t be held to the same standards of accountability as adults.
2. The purpose of the juvenile court is to treat, not to deter.

3. Changing the social environment in which juveniles live in a more effective way
to reduce juvenile violence than punishing juvenile offenders in adult courts.

4. While the denial of full constitutional rights for juveniles is sometimes a

problem, the juvenile court‘s mission is benevolence- to serve the best interests of
children.

Evaluating the case for abolishing juvenile courts

It has been suggested that the entire debate over whether or not to abolish the juvenile
court diverts attention away from the most important question confronting the
juvenile justice system: How can juvenile delinquency be reduced when neither the
present juvenile courts nor adult criminal courts are designed to attack the various
environmental factors that are among the causes of juvenile violence?

The initial causes of much juvenile crime are found in the early learning experiences
in the family. They involve weak family bonding and ineffective supervision, child
abuse and neglect, and inconsistent and harsh discipline. In addition, there are
indicators that very poor urban communities put youths at greater risk for involvement
in violence. Some neighbourhoods also provide special opportunities for learning or
participating in violence.

The presence of gangs and illegal drug markets provides exposure to violence,
negative role models and possible rewards for youthful involvement in violent
criminal activities. Schools also play a part in generating juvenile violence. An

117
important cause of the onset of serious violent behaviour is involvement in a

118
delinquent peer group. In addition, growing up in poverty and unemployment has
major effects on the likelihood that a young person will turn to violence during the
transition to adulthood.

SOME SHORTFALLS

During the debate in the Lok Sabha in May, 2015, Shashi Tharoor, an INC Member of
the Parliament (MP), argued that the law was in contradiction with the international
standards and that most children who break the law come from poor and illiterate
families. He said that they should be educated instead of being punished. Child Rights
Activists and Women Rights Activist have called the bill a regressive step and have
criticized the bill. Many activists and experts viewed post December 2012 Delhi Gang
rape responses as creation of media sensationalisation of the issue and cautioned
against any regressive move to disturb the momentum of Juvenile Justice Legislation
in the country. However, some sections in the society felt that in view of terrorism
and other serious offences, Juvenile Justice Act of 2000 needed to be amended to
include punitive approaches in the existing Juvenile Justice Law which so far is
purely rehabilitative and reformative. Some argued that there is no need of tampering
with Juvenile Justice Act for putting up effective deterrent against terrorism. Retired
Judge of Delhi High Court, Justice RS Sodhi on 8 August, 2015 told Hindustan
Times, ―We are a civilised nation and if we become barbaric by twisting our
own laws, then the enemy will succeed in destroying our social structure. We should
not allow that but we must condemn this move of sending children to fight their
war.‖162

 One obstacle in implementing the Juvenile Justice Act is the United Nations
Convention on the Rights of the Child, an international treaty signed and ratified
in December, 1992. Although Article 1 of the CRC allows each acceding state to
define the juvenile age limit, Article 37(a) nevertheless stipulates that no child
shall be subjected to torture or other cruel, inhuman or degrading treatment or

162
http://w w w.le galse rvic esindia. co m/article/19 72/Juv enile -Justice- Ca re -an d-P r otection- of-C hildren -
Act,-2015.html
119
 punishment. Neither capital punishment nor life imprisonment without possibility
of release shall be imposed for offences committed by persons below eighteen
years of age.
 A second hurdle in implementing the Juvenile Justice Act is the International
Convention on Civil and Political Rights, which India acceded to in April, 1979.
Article 6(5) of the ICCPR states, ―Sentences of dea th shall not be imposed
for crimes committed by persons below eighteen years of age and shall not be
carried out on pregnant women.‖
 India has lowered the juvenile age limit from 18 to 16 but we may not pursue the
death penalty or a sentence of life imprisonment without the possibility of parole.
Thus, a new category is created between juvenile and adult. This is not very
helpful for Indian bureaucrats who are considering a waiver of the juvenile age
bar only in cases of the most grievous crimes such as murder, acid attack, rape and
repeat offenders in cases of robbery, kidnapping, and dacoity. In essence,
international law prohibits the very sentences for which Indian Legislators have
lowered the juvenile age limit.

120
 SUGGESTIONS AND RECOMMENDATIONS

In order to make full use of the legal provisions available for juvenile, the State
may initiate the following steps:

 To form groups of local citizens and assist these groups of local citizens and assist
these groups in conducting activities aimed at the prevention and control of
juvenile delinquency, making use of local people and resources for various
purposes through a program of education, promotion and organization.

 Combating local conditions known to contribute to juvenile delinquency.

 Advise local, state and federal officials, public and private agencies and lay
groups on the needs for and possible methods of the reduction and prevention of
juvenile delinquency and the treatment of delinquent children.163

 Consultation with the schools and courts of this state on the development of
programs for the reducing and preventing delinquency and the treatment of
delinquents.

 Evaluating the rehabilitation of children committed to the department and to

prepare and submit periodic reports to the committing court for the following
purposes.164

 Administering within the state any juvenile justice acts and programs that the
governor requires the department to administer.

163
Dr. R. Tripathi, Juvenile Delinquency: Overview, Prevention and Laws in India, the International
Journal of Social Sciences and Humanities Invention 1899-1903, 1901 (2016).

164
Ibid.

121
 Visiting and inspecting jails, detention facilities, correctional facilities,
facilities that may hold juveniles involuntarily or any other facility that may
temporarily
house juveniles on a voluntary or involuntary basis.

 Applying for, allocating, disbursing and accounting for grants that are made
available pursuant to juvenile justice acts or made available from other state or
private sources to improve the criminal and juvenile justice systems in the
state.
All money from juvenile justice act grants shall, if the terms under which the
money is received require that the money be deposited into an interest bearing
fund or account is deposited in the state treasury to the credit of the juvenile
justice program purposes fund, which is hereby created. All investment
earnings shall be credited to the fund.165

 Assisting, advising and making any reports that are required by the governor,
attorney general or general assembly.

****************************************

122
165
Supra note 22 at 109

123
 BIBLIOGRAPHY

BOOKS

 K.D. Gaur, Indian Penal Code (Universal Law Publishing Co Ltd, 2013)

 Wrobleski. M .Henry( 2000), An introduction to law enforcement and

criminal justice (Thomson Learning, USA)

 Gospel Principles, (2011), 212-17

 Dr. S.S. Singh, Offences Against Children and Juvenile Offence ( Central Law
Publications)

124
 STATUTES

 The Constitution of India, 1950

 The Indian Penal Code, 1860 ( Act 45 of 1860)

 The Code of Criminal Procedure, 1973 (Act No. 2 of 1974)

 The Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No.2
of 2016)

 The Children Act, 1960 ( Act 60 of 1960)

 The Juvenile Justice ( Care and Protection of Children) Act, 2000

 The Juvenile Justice (Care and Protection of Children) Rule, 2007

125
 REPORTS

 ―Juvenile Offenders and Victims (2006)‖, NATIONAL REPORT

 Law Commission of India Report (Aug., 1997)

 Congressional Record- Volume 131

 Global Initiative to End All Corporal Punishment of Children, Saudi

Arabia Country Report, August 2012
http://www.endcorporalpunishment.org/pages/pdfs/states- reports/Saudi
%20Arabia.pdf

 Inter-American Commission on Human Rights, Juvenile Justice and

Human Rights in the Americas, July13, 2011

126
 ARTICLES AND JOURNALS

 “Juvenile Justice System and its delinquency in India‖, LEGAL SERVICES

INDIA, http://www.legalservicesindia.com/article/article/juvenile-justice-system-
&-its-delinquency- in-india-1031-.1.html.

 http://www.aic.gov.au/media_library/publications/proceedings/09/oconnor.pdf

 https://blog.ipleaders.in/juvenile-justice-system-india/

 https://www.cliffsnotes.com/study-guides/criminal-justice/the-juvenile-justice-
system/should-juveniles-be-tried-as-adults

 http://www.legalservicesindia.com/article/1972/Juvenile-Justice-Care-and-
Protection-of-Children-Act,-2015.html

 Dr. R. Tripathi, Juvenile Delinquency: Overview, Prevention and Laws in India,

the International Journal of Social Sciences and Humanities Invention 1899-1903,
1901 (2016)

 https://www.impactlaw.com/criminal- law/juvenile/prevention

 https://en.wikipedia.org/wiki/Presumption_of_innocence

 https://en.wikipedia.org/wiki/Public_participation

 https://www.conservapedia.com/Equality_principle

127
 INTERNATIONAL DOCUMENTS

 UN Convention on the Rights of Child, 1989

 The Beijing Rule 4(1)

 Gospel Principles, (2011), 212-17

 The Universal Declaration of Human Rights, 1948

 The European Convention on Human Rights, 1953

 The Rights of the Child in the Administration of Justice, 2008: 339

 https://repository.gchumanrights.org>...PDF International Instruments on

Juvenile Delinquency, Reactions to Juvenile…

128