Nikita Kaushik, Zheva Kaushik
“Children need love, especially when they do not deserve it.” — Harold. S. Hulbert, Child Psychiatrist
We all know that children are the real assets of any Nation. That being said, all children must be provided with a safe and healthy environment for them to become ideal citizens of our country. For this very reason, the constitution of India guarantees fundamental rights to all children and empowers the state to make necessary provisions to ensure the wellbeing of children living within its territory. A child is always born innocent but due to certain environmental, social and economical factors they may deviate towards criminal tendencies, which removed, may mould them into future citizens with stature and calibre.
Recently, ‘Juvenile Delinquency’ or ‘Juvenile in conflict with law’ as put in Indian context, has gained importance in the legal system. In India, the legal system is very careful in the way they handle the children in conflict with law. The reformation of juveniles is based on the believes that devastation caused by adult crimes can reduce significantly, if the juvenile’s behaviour is corrected through various effective interventions provided by the concerned authorities.
A ‘Juvenile’ is defined as a boy or girl who is yet to attain the age of 18 years, bears little resemblance to an adult and legally cannot be made answerable for his or her actions or offences. In simple words, a juvenile is that child who has committed an act of offence by violating certain law of that country. Therefore, in law, the terms ‘minor’ and ‘juvenile’ contain different meanings and cannot be used in the same context.
The word ‘Delinquent’ derived from a Latin word called ‘delinquere’. ‘De’ meaning ‘away’ and ‘linquere’ means ‘to fail ones duty’. Originally, delinquent was used for children who were abandoned or neglected by their parents. Nowadays, ‘Delinquent’ is used for those children who are in conflict with law.
History of Juvenile Justice Laws
India has a long history of providing provisions for the juveniles. Acts and laws similar to Justice juvenile act (JJA) can be traced as far as to The Code of Hammurabi in 1790 BC. This code was followed by the Babylonians of ancient Mesopotamia back in 1754 BC. This code stated that responsibility and supervision of the juveniles were vested on the family. The code of Hammurabi was enacted by the sixth Babylonian king, Hammurabi. These laws were written on various clay tablets and stone slabs and are one of the oldest deciphered laws in the world.
Normative Developments in India
In India, the first institution for the juveniles was established by Lord Cornwallis during the colonial regime in 1843. These institutions known as ‘Ragged School’ or ‘The House of Correction’, gave free educations to the poor and abandoned kids who were in conflict with law.
It was the Apprentice act enforced in the year 1850 which was the first law which required that juveniles between the age of 10-18 years should be provided vocational training as part of their rehabilitation process. It initiated differential treatment of children by providing for binding over of vagrant children and children committing petty offences below the age of 15 years as apprentices instead of sending them to jail.
1898 saw enactment of Reformatory schools act which provided sending children below 15 years of age to Reformatory schools instead of prisons. Under this Act, the court could detain delinquents in a reformatory school for a period of 2 to 7 years until they have attained the age of 18.
Pursuant to the recommendation of the All India Jail committee 1919-1920, the era of children’s act began in 1920 which extended the segregation of children accused of committing offences at the adjudication stage by establishing separate children’s court.
Since Juvenile justice was a sate subject most Individual provincial government in the colonial era chose to enact separate legislation for Juvenile in their own respective jurisdiction provinces .The Madras, Bengal and Bombay provinces passed their provisions under Children Acts in 1920, 1922 and 1924, respectively. Though the Bombay Children Act came into force four years after the Madras Children Act, it was the first Children Act to become completely functional. Children’s aid Society, a voluntary state agency formed in 1924, came into power to implement the provisions of Bombay Children Act. These laws contained provisions for the establishment of a specialised mechanism for the treatment of Juveniles.
Childrens Act 1960
In 1960, the Government of India enacted the Children’s Act, which was made applicable even to the Union Territories. Under this Act, a boy below 16 years of age and a girl below 18 years of age were to be legally termed as a ‘child’. There after a Child Welfare Board was set up to handle neglected children, and children’s court were established The Children Act, 1960, was a trailblazer for the Juvenile Justice Act, 1986. In 1986 The Juvenile Justice Bill, was introduced in the Lok Sabha and the Central Children Act was replaced by Juvenile Justice Act, 1974. The Law came into force in all the Union Territories while the States having no Juvenile law were free to adopt it too.
There were some major differences between the pre 1960 and post 1960 children’s acts,
- In the pre-1960 act the age at which the person was declared as a child varied but in contrast it was the same for boys and girls in the post 1960 children’s acts. In this act a child was defined as a boy below the age of 16 years and a girl below the age of 18 years;
- In pre 1960 act the children’s court was supposed to deal with children’s committing offences as well as neglected children. In the post 1960 children’s act two adjudicatory bodies were established, namely, ‘children’s courts’ consisting of two magistrates to deal with children in conflict with law and ‘child welfare committee’ to deal with neglected children.
- The post 1960 children’s act prohibited keeping of any child in any circumstance in a police station or jail.
- In pre 1960”s act ,In children’s home the children were segregated on the bases of age, sex, stage of proceedings, (remand homes during proceeding and children’s home pursuant to the direction of the court.)`
In the post 1960 children’s act three kinds of institutions were created, namely, ‘observation home’ to keep children during the pendency of proceedings going on before the children’s court or child welfare committees; ‘children’s home’ for keeping neglected children pursuant to the direction of the child welfare committee and ‘special home’ for keeping delinquent children pursuant to the direction of the children’s court.
The most remarkable provision of Children’s act 1960 was the complete prohibition of use of police station and jails under any circumstances for children covered within its purview and it was followed by all the Children’s act after 1960.
Juvinile Justice Act 1986
In 1983 , Sheela barse , a journalist filed the writ habeas corpus in the supreme court seeking release of 1400 children in various jails in India . During the pendency of this petition the Supreme Court recognised that there was differential cut off age defining the child in different children’s acts in force in different states of India. Hence the court directed uniform legislation for the whole country. Pursuant to this direction of the court, the parliament passed the first uniform legislation for the children applicable to the whole of India, namely the juvenile justice act 1986 (hereby mentioned as JJA 1986) The difference in JJA 1986 and children act 1960 was that JJA 1986 substituted the word ‘child’ by ‘Juvenile’ as per the United nations standard minimum rules for the administration of Juvenile Justice 1985 (also known as the Beijing rules) by the General Assembly.
Juvenile Justice (Care and Protection Of Children) Act 2000
The JJA 1986 was repealed and replaced by Juvenile Justice (care and protection of children) act 2000 (henceforth mentioned as JJA 2000) which came into force on 04.04.2001. It was enacted to bring the operation on Juvenile Justice in conformity with Convention on the rights of children and other United Nations instruments signed by India. This Act defined ‘Juvenile’ as a person who has not completed the age 18 years and also include constitution of Juvenile Justice Board to deal with children in conflict with law. This board was to consist of one magistrate and two social workers. This clearly was a big shift from legal to social orientation of the judicial body. This Act was amended twice through the Juvenile Justice (Care and protection of children) Amendment Act 2006 and 2011.
Juvenile Justice (Care and Protection of Children) Bill 2014
On 16.12.2012 a Delhi girl called Jyoti Pandey (called Nirbhaya by Media) was brutally gang rape. Protest against this crime resonated throughout the country. A boy aged 17 years was one of the accused in this gang rape and was accused of being the most brutal among all the accused of this gang rape. During the various protest in the after math of Nirbhaya rape the media highlighted many cases in which a child was involved and alleged that Juveniles were going scot free under the guise of Juvenile justice act despite committing a crime which was heinous. As result of this protest Juvenile Justice Bill was introduced in Lok Sabha on 8. 08.2014 introducing the possibility of sending 16-18 year old children to Jail in exceptional circumstances. This bill was passed in Lok Sabha and the president of India gave his consent to the bill on 31.12.2015 following which the bill came into force on 15.01.2016. This Act is now known as juvenile justice act 2015(henceforth to be mentioned as JJA 2015) and it repealed all the previous acts on juvenile justice made in the county.
Juvenile Justice (Care and Protection of Children) Act 2015
The objective of this act is to provide for the care protection, development and rehabilitation of a Juvenile. The juvenile justice (care and protection of children) act 2015 (hence forth to be mentioned as JJA 2015) substantially expanded the scope of care and protection to children in conflict with law and children in need of care. The provision of the act gave protection to the juveniles and children in need of protection by making specific reference to development and including social reintegration in addition to care, protection and treatment of children as components of a child friendly approach. This act consist of 10 chapters and applies to children who have not completed the age of 18 years. Importantly it provides for constitution of the ‘juvenile Justice Board’ (JJB) and the ‘Child welfare committee’ (CWC) for dealing with all the matters relating to children in conflict with law and children in need of protection and care.
The JJB has exclusive Jurisdiction to deal with all offences committed by children below the age of 16 years. And all offences committed by children between the age of 16-18 years which are classified as petty or serious act under JJA 2015.
In cases of 16-18 years old children accused of committing an offence the JJB is required to conduct a preliminary assessment with the help of professional exports to assess the mental situation of the child and evaluate the circumstances in which the offence was committed. After the assessment the JJB may decide to deal with the ‘child as a child’ or may transfer the child to the children’s court established under the Protection of child right act 2005 or the Special court established under the Protection of children against sexual offences act 2012 or a session court.
On receipt of such a child the children’s court has to conduct a fresh assessment whether the child should be tried as an adult or as a child in the children court. If it is decided to deal with the child as a child then it is required that an order as such may be passed. If it is decided to try the child as an adult, the children’s court should issue appropriate orders keeping in view the needs of the child.
The flaw in this act is that there is no mention whether the child must be required to undergo period of imprisonment prescribed by the offence.
If the child reaches the age of 21 years, before completing the period of stay, then the children’s court can make an assessment whether the child has reformed and is ready to be released if the child is seen as reformed then he or she has to be released under the care of monitoring authority for the remaining period of the stay. If not reformed, they have to be sent to prison for the remaining period of stay that was originally ordered.
An integral lacuna of giving differential treatment to some children opens the door to the demands for further lowering the cut off age to try a juvenile as an adult and expansion of list of offences under which they should be tried there by increasing the number of children’s to be excluded from the protective umbrella of Juvenile Justice Act. For example recently an 18 years old child was involved in causing death due to speed driving. Massive agitation occurred seeking the trial of the child as an adult, although the offence fell in the definition of petty offence as defined in the JJA 2015. This child was subsequently charged with culpable homicide not amounting to murder under section 304 of IPC and transferred to children court by the JJB to be tried as an adult.
The JJA 2015 provides for a liberal provision by giving one right of appeal against any order of JJB or children court to a 16-18 years old child alleged to have committed a heinous offence and to any other person aggrieved.
Another valuable provision of JJA 2015 is that it contains very detailed provisions relating to adoption of children, sponsorship, foster care as a Deinstitutional care. It emphasises on deinstitutionalise care as first preference for children in need of care and protection .Also various residential option for children in need of care and protection and Children in conflict with law is provided. Such as, observation home, special home children home, place of safety, fit person, shelter home etc.
JJA 2015 also provide for ‘After care’ which means making provisions of support, financial or other wise to a person who has completed 18 years of age but has not completed the age of 21 years and needs to leave institutional care to join the mainstream society.
The JJA 2015 shows positive attitudes toward children who have committed offences by referring to them as children. However, it has classified offences as serious, and heinous by linking it to the period of imprisonment prescribed for the offence. Such classification is not their anywhere in criminal justice system and opens a scope for demand for trial of some children as adults. This is in contrary to the provision of the act which emphasises on care, protection, development, treatment and social reintegration of children.
There is also an inherent contradiction in the act for example Chapter 2 of the Act provides for principles which are fundamental in the implementation of the act but the scheme of the act goes against them. The chapter has provision which emphasises principals of ‘presumption of innocence’ of all children till the age of 18 years but subsequent section provides for provisions to try 16-18 years old as adult in a criminal court which hints ac presumption that the child has indeed committed the offence.
It is hence concluded that there may be certain shortfalls in the drafting of JJA 2015. However there are various merits too. The biggest challenge as of now however is its implementation in true letter and spirit.