written By Kitanjalee Singh
Children are considered the nation-builders of tomorrow. No one can deny the fact that every country’s tomorrow is dependent on what they do with their children today. Indeed, the Constitution of India like any other country has provided the children with several provisions to ensure their welfare. Not only this, but the lawmakers of our country firmly believe that if a child commits a wrongful act that is criminal in nature, then instead of punishing the child, our law focuses on reformation. It considers punishment to be curative more than to be a deterrent. Despite the bona fide intention behind the reformative theory of our country, the juveniles crime rate kept increasing and thus, one day, the brutal assault and rape incident of December 16th, 2012 in Delhi, where one of the accused was alleged to be a juvenile and this incident showed its true colour when the victim breathes her last on December 29th, 2012. This incident shocked the whole country and questioned the legality of the provisions of the Constitution, where irrespective of the gravity of the crime, the juvenile walks down freely. Consequently, the lawmakers amended the then-present act and enacted the Juvenile Justice (Care and Protection) Act, 2015. In this research paper, we will look at how the need of securing a child’s future took place in the world. In addition to this, we will also examine the laws for the protection of these children and how with time our legislators have been calling for amendments to fill the inadequacies. Moreover, reckon with the present condition of juveniles, which stimulates them to commit a wrongful act.
“Our children are the rock on which our future will be built, our greatest asset as a nation. They will be the leaders of our country, the creators of our national wealth, those who care for and protect our people.”
– Nelson Mandela.
Children are not only considered the gift of gods but are also the greatest national asset of a country. The present children will pave the path of the future of a country. These children will grow up to become the future leaders of a country.
After agitating for self-governance for years, India got independence in 1947, despite all the visions our forefathers had for the country, the laws for the children have always been of much significance. As a result, our constitutional provisions form an indispensable part of the heights we have reached in the development of children. Along with it, our constitution also provides some provisions to deal with the rights of juvenile offenders. In addition, the whole purpose of these laws protecting the juveniles is concerned with their reformation and then their successful reintegration into society.
Despite all these incentives provided to the children, our country is still a victim of juvenile delinquency, i.e., a person who has committed a crime but according to law has not attained a particular age to be liable for the crime committed. Therefore, it becomes significant to not only look at the laws and their implementations but also the causes which are still powerful enough to make a child think like a criminal at his age.
STATEMENT OF PROBLEM
This research paper analyses how has the historical system of juvenile justice in India evolved to its present form. The main aim of the juvenile justice system has always been to ensure the welfare and betterment of juveniles. Taking into consideration the fact that some juveniles delinquency might be intentional and therefore, the responsibility of the act lies with the juvenile, but there are other instances where either because of the situation or the company, the child is deliberately committing a wrongful act. On that account, this paper will also be examining the causes of juvenile delinquency. In addition, this research is relied upon is that whether the provisions under the Juvenile Justice (Care and Protection Of Children) Act, 2015 favour the child’s well-being or the juvenile justice act is a mockery to the rights of the juveniles, itself.
The research question which will be dealt with in the research work is:
“Does the whole transition to acquire the present Juvenile Justice System is a benediction for the juvenile’s betterment or the whole system is an irony in itself ?”
The hypothesis made by the researcher about the possible outcome is that despite all the changes incorporated in the present justice system, does it with all the intents and purposes provide necessary protections to these juveniles or not. Along with this, the researcher is certain that the causes for a juvenile to commit a criminal act are not only limited to the way s/he thinks but has other factors contributing to their delinquency.
The objective of the research work is to ascertain whether the historical development with reference to the juvenile justice system has led us to the correct path, i.e., institution of the Juvenile Justice (Care and Protection of Children) Act, 2015 or the critics of the Act have shown us a better vision of this Act. Furthermore, this research takes account of all the provisions provided for the welfare of these children, besides this, it also takes note of the prevailing conditions of our country which still is not able to keep these children away from committing crimes. It is said that there is always more to just the corrective measures which can be taken by the constitution to end juvenile delinquency.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
JUVENILE DELINQUENCY AND ITS CAUSES
Pope Clement XI introduced the idea of ‘the correction and instruction of profligate youth’ in institutional treatment in 1704. Subsequently, Elizabeth Fry and her colleagues mobilized resources to create separate institutions for juvenile offenders. As a result, the Reformatory Schools Act and the Industrial Schools Act were enacted in the United Kingdom. In 1847, the United States of America became the first country in the world to establish special courts for juveniles. However, under the Juveniles Offenders Act, the first ‘Juvenile Court’ could only be established in Chicago in 1899. The first juvenile court in England was established in 1905.
Most statutory provisions in India, which has a long history of juvenile legislation, have followed, more or less, the British model. In the last quarter of the nineteenth century, India adopted the English idea of providing separate treatment for young offenders.
In India, the Apprentices Act, 1850 was chronologically the first piece of legislation dealing with children in conflict with the law, provides for binding over of children under the age of 15 years found to have committed petty offences as apprentices. The Reformatory School Act, 1876 was the next landmark legislation concerning the treatment of these juvenile delinquents. It was the first attempt to separate juvenile offenders from adult prisoners. The young offenders were lodged in these institutions which imparted industrial training to them for their rehabilitation.
The Parliament of India enacted the first central legislation, i.e., the Children Act, 1960 and introduced a sex-discriminatory definition of child and established two separate adjudicatory bodies, the Children’s Court and the Child Welfare Board. Alongside, prohibited imposition of death penalty or sentence of imprisonment or use of jails or police station for keeping children under any circumstance.
Retaining the primary features of the Children Act 1960, Parliament enacted Juvenile Justice Act, 1986. Indeed, it continued the same sex-discriminatory definition of a child but substituted the word ‘juvenile’ for ‘child’. This act provided the same two separate authorities and also the same three categories of residential institutions as provided by the Children Act, 1960.
Despite the laws and regulations, most of the states did not have the required juvenile legislation, therefore, to remove these varying standards, norms, practices of juvenile justice and implement uniform laws in the country, Juvenile Justice Act was enacted in 1986.
In 2000, Indian legislator made a sincere effort and enacted the Juvenile Justice (Care and Protection of Children) Act to inculcate the standards set out in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the Convention on the Rights of the Child, 1989, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990 and all other relevant international instruments. The main concern was about the rehabilitation of the minor, i.e., the manner in which minors were promulgated to deal with offences committed by them should be different from the law applicable to adults.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2000 despite being amended twice to reflect the emerging issues of the society, this law still suffered a nationwide criticism owing to its inability to try the juveniles who were involved in a heinous crime.
In the wake of it, Juvenile Justice Bill was introduced by the government in August 2014 in the lower house of the Parliament. The government gave various reasons to justify the need for a new law. It recalled that the existing Juvenile Justice Act, 2000 was facing implementation issues and procedural delays, etc. Not only this, but the government also cited data from the National Crime Records Bureau, NCRB to claim that there has been an increase in crimes committed by juveniles, especially by children in the age group of 16-18 years. The data clearly shows that “the percentage of juvenile crimes, when seen in proportion to total crimes, has increased from 1% in 2003 to 1.2% in 2013. During the same period, 16-18 year olds accused of crimes as a percentage of all juveniles accused of crimes increased from 54% to 66%.” Consequently, the Juvenile Justice Bill, 2014 was passed by the Parliament of India as the Juvenile Justice (Care and Protection of Children) Act, 2015, which came into force on January 16th, 2016.
As earlier stated, that the major objective behind bringing a whole new legislation is the increased number of crimes particularly by the children of age group from 16 years to 18 years. Indeed, the punishment awarded to a juvenile in the 2000 act did not connote to the actual repercussions of the act committed, therefore, this law clearly states that the responsibility of a criminal offence by a child of 16 to 18 years rests with the child itself. This provision is related to the heinous crime by a juvenile, who is between the mentioned age group and therefore, will attract a punishment of minimum 7 years. Despite the atrocity of crime committed by a juvenile, a child can never be awarded a death penalty or life imprisonment.
The juvenile will be tried in the Children’s Court but as an adult. It is, therefore, the duty of the Children’s Court to ensure that the child found guilty of the heinous crime shall be sent to a place of safety till the attainment of 21 years and thereafter, the person shall be shifted to jail. It can be deduced that if a juvenile is found guilty of committing a heinous crime, s/he shall in any circumstance not get the benefit of being a child. In addition, this act also pays attention to the reformative services which will be provided to the juvenile during the period of his stay in the place of safety. This act highlights the two main bodies to be set up in each district to provide a framework to deal with both categories of children: Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs). In addition, this bill states three types of offences, firstly, a heinous offence as mentioned above, attracts a minimum penalty of seven years imprisonment under any existing law, secondly, a serious offence refers to an offence which has imprisonment between three to seven years and thirdly, a petty offence which is penalized with up to three years imprisonment. Indeed, the penalties for committing offences against children are also laid down in the bill. The offences include selling or buying the child, cruelty against a child, giving a child an intoxicating substance.
After having a look at the intent of the government behind this law, let us see what the protestors have criticised the law for. They argued this new law to be unconstitutional. In the infamous case of Pratap Singh v. State of Jharkhand, it was observed by the Apex Court that Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice provides that the moral and psychological components should be given much importance while a juvenile is being held responsible for his/her criminal act.
Our law clarifies that if a juvenile between the age of 16 and 18 years commits a heinous crime which is punishable with a minimum of 7 years, then the juvenile needs to be produced before the Juvenile Justice Board, who will then adjudge on the physical and mental capacity of the child. Needless to say, the duty assigned to the Juvenile Justice Board is indeed challenging and subjective in nature leading to a huge uncertainty. Furthermore, many critics assert that the earlier juvenile justice system wanted reformation, although, now India is adopting a retributive approach where the juveniles of 16-18 age group will be tried as an adult if they committed a criminal act. In a nutshell, the main difference between the old and new acts is that the former was rehabilitative in nature, while the latter is indirectly falling under retribution.
Concludingly, Juvenile Justice System has always been considered a weapon to protect the children and therefore indirectly the whole country by addressing the wrongful doing of a child. Therefore, the centre of interest of the system has always been the juvenile and his welfare. Indeed, these initiatives are still criticised claiming instead of changing the law, an attempt should have been made to remove the very root cause of the problem. They state that the people of a country should work according to the prescribed law rather than vice-versa. Furthermore, they say that the Juvenile justice system needs to maintain its primary goal – rehabilitation.
JUVENILE DELINQUENCY AND ITS CAUSES
The word ‘Juvenile” has been derived from the Latin term, ‘juvenis’ which means young.
The term ‘Delinquency’ has also been derived from the term ‘do’ (away from) and ‘liqueur’ (to leave). The Latin initiative ‘delinquere’ translate as to emit in its original earliest sense.
Juvenile Delinquency is an act of committing a crime or offence by a young person who is below the age at which ordinary criminal prosecution is possible. Since a large percentage of criminal careers have their roots in childhood, thus, Juvenile Delinquency becomes a doorway to adult crime, producing severe difficulties all over the world. Despite all the industrious efforts taken by the government, there are still many loopholes in our society that make a child think of a criminal act at his age. Not just our country, India but the whole world is still striving hard to reduce juvenile delinquency. Why aren’t we still able to control it?
The Juveniles’ choice of delinquency is fostered by a wide range of factors. Considering the wide range of causes for juvenile delinquency or adolescent crime, we can broadly divide them into three categories.
First, the social reasons, which includes family as it has the greatest influence on the way a child thinks and acts. For instance, a child grown up in a hostile or aggressive parenting atmosphere becomes an easy prey to criminality. Moreover, it can be deduced that these children are not emotional balanced; situations like divorce, partition, abandonment and death of parents, leave the child broken and at times if they get no support from other relatives, these children take no time to turn into criminals. After family, the school plays a crucial role in the upbringing of a child as it is the school where a child has its closest relationship with other children for such a long time. “School is usually thought as a constructive agency but when it fails to perform its designated functions, it may become by virtue of its negligence, the main contributor to delinquency.” Besides all these, substance abuse is also found in a majority of juvenile delinquent cases. Most of the time, these children consume drugs at a younger age because of peer pressure. The intake of these substances leads these adolescents to commit crimes under its influence, which may most likely be destructive or harmful or illegal. Alongside all these, cinemas and social media play a significant role in the overall development of an individual. Whatever one watches on television or social media, they try to imitate in their real life as well. As a result, parents must pay close attention to their children and try to inculcate moral values in them.
Second is the economic reasons, scholar like George Bold hold that economic conditions play a major role in most cases. Subsequently, we have closely seen the relationship between economic conditions and juvenile or child delinquency in India. First and foremost, it includes the mother of all evils, poverty. Indubitably, the major cause of Juvenile Crime in India is Privation. Being unable to fulfil their basic needs, they end up doing anti-social work such as theft, pocket money, trafficking etc.
According to the National Crimes Record Bureau, a large number of juveniles apprehended in 2015(42.4%) belonged to poor families whose annual income was up to ₹25,000. The share of juveniles from families with income between ₹25,000 and ₹50,000 was 28.2%. The share of juveniles hailing from the income group (₹50,000 – ₹2,00,000) was 25.9%. The share of juveniles from families in the income group (₹2 lakh to ₹3 lakh) and income group (above ₹3 Lakh) was low at 2.3% and 1.1% of total juveniles apprehended respectively.
The third is the psychological causes, under which comes Emotional instability, one of the most important psychological causes. The lack of love and empathy, emotional insecurity, inferiority, the feeling of inadequacy and the reaction to rebellion makes the personality of a child unbalanced, rendering the child motivated enough to commit a crime. In addition, it has been reported that there a close relationship between the crime committed and the mental state of an individual. It states that a child does not need punishment, rather requires treatment.
It wouldn’t be wrong if I say that the Government of India has made a lot of efforts to improve the condition of these juveniles and till date has been favouring reformation rather than punishment. Though the crime rate is in a better condition than before, it does not imply that there are no loopholes. Despite the government trying to be at its toes and kept changing and amending the laws when required, there is still a lot more to do. Even if the laws of a country are in their best form, what matters is how much the implementing authorities are taking responsibility and performing their task at hand. It is important to understand that the prevention of juvenile delinquency requires not only the governing laws and implementation of them, but also requires coordination between the government agencies, police, judiciary, educational institutions, social workers and voluntary organizations. Therefore, the duty of a state is not only to protect the rights of these children but also to come up with reformative methods to inculcate values in them which will unequivocally uplift them socially alongside give them confidence so that they are able to play a constructive role in the society.
The Constitution of India asserts that if juvenile criminality is addressed at its root, it can be effectively dealt with. Offenders frequently develop a desire to commit crimes while they are young, thus this is a great time to face their immorality because children are more adaptable and easily moldable into positive characters. Therefore, the Indian Constitution provides the citizens with certain rights. Similarly, there are rights and provisions especially devised for the well-being of children, which include the Fundamental Rights and Directive Principles mentioned in Part III and Part IV, respectively in the Constitution;
Article 15 (3): This Article permits the State to make special provisions for the upliftment and betterment of children and women.
Article 21A: This Article provides the right to free and compulsory education to children under the age of 6 to 14 years.
Article 24: This Article forbids the employment of children who are below the age of 14 years in any factory or any mine or any other hazardous occupations.
Article 39 (e): This Article directs the State to safeguard the tender age of children from abuse in any form by an adult or from entering into jobs unsuited to their age and strength forced to be an economic necessity.
Article 39 (f): This Article directs the State to give opportunities and facilities for the healthy development of children and also protect them against exploitation as well as against moral and material abandonment.
Article 45: This Article states that the State shall endeavour to provide free and compulsory education to all children up to the age of 14 years.
Article 47: This Article states that the state must raise the level of nutrition along with the standard of living.
Along with the above-mentioned articles, the Indian Penal Code also provides provisions for the same. The Indian Penal Code is based upon this doctrine of ‘doli incapax’. This doctrine is mentioned in Article 40(3)(a) of the United Nations Convention on Rights of Child which urges the States Parties though not obligates to specify a minimum age below which a child is exempted from any kind of criminal liability, presumed not to have ability to the decipher the nature and consequences of the Act.
Under the Indian Penal Code, the Minimum Age of Criminal Responsibility (MARC) is fixed at 7 years. The penal provisions and judgments regarding the same are:
Section 82: This Section states that any unlawful act done by a child under 7 years of age is not considered an offence under any circumstances.
Section 83: This Section states that if an illegal act is done by a child who is above 7 years and below 12 years and has not attained sufficient maturity of understanding to interpret the nature and consequence of the act then the child is free from criminal liability as the act will not be considered as an offence.
Section 84: This Section provides that an act done by an individual who at the time of doing the Act was incapable of knowing the nature or the legality of the Act is not considered as an offender, and his offence is not an offence.
On the whole, all these aforementioned articles and provisions by the Constitution of India helps safeguard helpless children against any misuse of power. Thus, our Constitution provides certain right which directly contributes to the welfare of a child. For instance, Article 21(A) of the Indian Constitution provides free and compulsory education to the children of age group, six to fourteen years.
In this Research paper, I sought to demonstrate the evolution of the justice system for juveniles, showing how the present-day juvenile justice system got its existing form. The lawmakers always wanted to give a prominent place to the reformative factor which will help a child think differently and get engage in productive work as an outcome. Consequently, when a child is held accountable for violating the law, they are kept in juvenile homes and are provided relevant correctional facilities for their welfare, here, the primary aim is to rehabilitate them.
Every law which is debated upon for hours in the Parliament of India is always concerned about how competent would it be when it comes to the welfare of the public. These laws try to do some good to the people of the country. Besides the intent, every law should also be backed by adequate industrious officers who are able to work for its implementation because we need to understand that changes in law do not necessarily translate into changes in practice.
Every law has its own benedictions and loopholes. It’s always the time that shows us what outweighed what and under which circumstance. Likewise, the Delhi gang rape on December 16th, 2012 made the government realise that the then-present law, the Juvenile Justice (Care and Protection) Act, 2000 has some inadequacies and needs an urgent call. Consequently, the Parliament enacted the Juvenile Justice (Care and Protection) Act, 2015, which along with other parameters, most notably, paid heed to the age factor. The current law not just safeguards the interests of the juveniles but most importantly, provides justice to all those victims who are victims not only because of the crime committed on that individual but also because of the fact that despite the graveness of the crime committed, the accuser walks away without any constraint and with the support of the laws of the country.
Though the juvenile justice laws were changed to incorporate the needs of the changing scenario, there is always a different perspective to view things, therefore, in this paper, I have also examined the viewpoints of critics towards the new act. Moreover, another concern for the betterment of juveniles is the ever-increasing numbers of juveniles who are still prone to criminal acts. The reasons which even in today’s world has lifted the children to commit criminal acts by deviating from their normal age group, which is in most of the times not a choice for these children, rather a circumstantial incident, as it is also known that children in nexus to the activities which are not consistent to the norms and standards of the legal world belong to one of the most vulnerable sections, especially in a country like India.
- National Crime Bureau Data available at https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%2010-15.11.16_2015.pdf
- Analysis of statistical data available at
- Shipra Lavania, ‘Juvenile Delinquency’,(1983) Pub. by Rawat Publications, Jaipur, p.1920.
- Causes and preventions of Juvenile Delinquency at http://www.legalserviceindia.com/legal/article-1724-juvenile-delinquency-in-india-causes-and-prevention-.html
- Referred for basic concepts – https://thefactfactor.com/facts/law/legal_concepts/criminology/juvenile-delinquency/14242/
- Article based on Juvenile Justice available at – http://docs.manupatra.in/newsline/articles/Upload/0760102C-037B-43A4-A4B9-4ED1FAC05A0C.pdf
- Analysis of Juvenile Justice is available at https://www.alsi.edu.in/images/a-critical-analysis-on-juvenile-justice.output.pdf