Juvenile Justice Law in India:- Age classification Two Sides Of The Same Coin | Volume III Issue III | Author: Muskan Patel Co-Author: Shraddha Malu |

ABSTRACT

This paper is based on title “Juvenile Justice Law in India: – both the side of coin”. This research assessed the Juvenile Justice system in India in the lights of protected reasoning and International parameters.After Nirbhaya case happened in 2012, the amendment of Juvenile Justice (Care and Protection) Act, 2015 came into force and from then it has been a very controversial topic all around the nation because of the matter of age classification. Due to increased crime rates of juveniles, there was a need for Juvenile Justice Board(JJB) in every state who would do preliminary assessment to analyze the maturity level, physical & mental capacity and the circumstances under which he has committed the offence. However, The JJB somewhere in some cases has failed to consider preliminary assessment in fair manner which has also lead to arbitrariness. Children are born selfless and crime free, it is the surrounding which inculcate crime in them. The present paper is a result of a socio- legal- historical- analytical study and research of Juvenile Justice Act 2015, which will comprehensively reveals how the new act has positively influenced in order to decrease the juvenile crimes rate in India and also trying as an adult of juvenile would scare them, which will prohibit them to do such Heinous offence again in future. With positive aspect there is a negative side as well, that it has directly violated not only the constitutional rights of children but also the International laws.

Keyword: – Age classification, Juvenile Justice Act 2015,Positive aspect, Negative side, International Laws.

Chapter – 1

INTRODUCTION

“The children of any nation are its future. A country, a movement, a person that does not value its Youth & Children, does not deserve its future.” – By Oliver Tambo

So let’s just begin with some basic information regarding the juvenile act, 2015.The Juvenile Justice (care and protection of children) act, 2015 (JJAct, 2015) or we can say that thejuvenile Act, 2015 was passed by the parliament of India. Lok Sabha has passed this act on 7^th May 2015 and on 22th December 2015 it was passed by Rajya Sabha and finally came into force from 15^th January 2016.

Since a nation future depends upon the young generation, the children deserve compassion and bestowal of the best care to protect this burgeoning human resource. A child is born innocent and if nourished with tender, cares and attention he or she will blossom into a person of stature and excellence. Since Importance of child is well recognized in this era, so In order to deal with young offender Juvenile Justice System has been developed by almost all the countries. Nowadays dueto new changing social perceptions children are under tremendous social pressure and due to this they try to commit crimes.

As we know child is future of our nation, so first let’s understand with clarity the concept of ‘juvenile’ or ‘child’. The definition of Juvenile or Child is defined in Juvenile Justice Act, 2015 under Section 2 (12) ‘child’ means a person who has not completed eighteen years of age. And Section 2(35) “juvenile” means a child below the age of eighteen years.

Therefore they should ensure that if a child commits an offense he should not tried in the same way as adults. The term “Children in Conflict with the Law” means a person who is below 18 years of age comes in contact with the justice system as a result of being suspected or accused of commission of an offense. A child can come in conflict with the law when he commits petty offenses such as vagrancy, begging, or alcohol use or serious/heinous kinds of offenses such as rape or murder. And also Juvenile Justice Act, 2015 talks about juvenile who are in need of care & protection under Section 2(14).

Offences committed by juveniles are categorized as-

1. Petty offences- below 3 years of imprisonment.
2. Serious offences- 3 to 7 years of imprisonment and
3. Heinous offences those with minimum punishment of 7 years of imprisonment under IPC or any other law

A juvenile cannot be given life imprisonment or death penalty.[1]

However, In Shilpa Mittal V. State of NCT of Delhi& Anr.[2]The court directed that there is 4th Category of offences where there is no min sentence prescribed but the max sentence is more than 7 year, offences like 121A, 122, 364A (Kidnapping & Ransom), 304(Culpable Homicide) of IPC and many more other sections. The court held that ‘in exercise of powers conferred under Article 142 of the Constitution, we direct that from the date when the Act of 2015 came into force, all children who have committed offences falling in the 4th category shall be dealt with in the same manner as children who have committed ‘serious offences’.

• Juvenile Justice System

Juvenile Justice Board- (JJB)

The foundation of juvenile justice Boards is One of the most important and progressive features of the Act of 2000.JJB is constituted in each district for exercising the powers and discharging its functions for them. The JJB under sec 15 of JJAct 2015 conduct a preliminary inquiry/assessment to assess the child’s mental and physical capacity, ability to understand consequences of the offence, and the circumstances under which he has alleged committed that offence. After that on the basis of his assessment, the Board shall determine whether the child is fit to be tried as a juvenile or there is a need for trial of the said child as an adult by the Children’s Court.

The purpose of thespecial court is to provide socio-legal rehabilitation and reformation not punishment therefore, the aim is to hold a child culpable for their criminal activity, not through punishment, but bycounseling them to understand their actions and persuade them away from criminal activities in the future.

The constitution of JJB is defined under Section 4(2) of the act. That is a board shall consist of a metropolitan magistrate or a judicial magistrate of first class with at least three years of experience and two social workers, of whom at least one should be a woman, forming a bench and every such bench shall have the powers conferred by the code of criminal procedures, 1973.

Juvenile/children court-

Juvenile court which is also known as children’s court are made for handling the problems of delinquent, neglected, or abused children. Under the Juvenile Justice law and provisions of the Criminal Code Procedure, children are not to be taken to a regular criminal courts, the purpose of a separate court is socio-legal rehabilitation and reformation instead of punishment.

If the juvenile is betweenthe age of 16-18, and have committed a heinous crime therefore, after the assessment of JJB it is of favor that child should be tried as adult then the case will be transferred to children court where he will be tried as adult for the committed offences. The children’s court may be an existing court of session that is dealing with child specific laws, which is set up for the purpose of dealing with crimes under JJ Act and can pass sentence more than 3 years but not death penalty and life imprisonment. If the child is found guilty of heinous offence, he will be sent to place of safety till 21 year of age, only after that he will be sent to jail.

Research Objectives

1. To identify the need to change Juvenile Justice Act 2000 to 2015.
2. To analyse the constitutionality of JJAct 2015 by introducing both the sides of the same coin (for & against).
3. To studyall about Juvenile Delinquency.
4. To examine the legal scenario of India with International Covenants.
5. To analyse the scenario of Juvenile Justice Law in different Countries.

Research Questions

1. Why there was a need to change JJAct 2000 to 2015?
2. Why Juvenile delinquency is arising?
3. What is relation of International Covenants with Juvenile Justice Act 2015?
4. What is the situation of Juvenile Justice System/Law in different country?
5. Is juvenile justice (care and protection of children) act 2015 (hereinafter known as ‘JJAct 2015’) in consonance with constitution of India:- both the sides of the same coin (for & against)

 Chapter – 2

WHY THERE WAS A NEED TO CHANGE JUVENILE JUSTICE ACT, 2000 TO 2015?

The Act of 2015, has replaced the earlier Juvenile Justice Act 2000 after the shocking, brutal and frightful offence done by a juvenile in “Nirbhaya Delhi Gang Rape Case”[3], on December 16, 2012. The incident has shocked the whole nation and many controversies as well as debate were started among the legal fraternity and socialist. The main reason and issue of the debate was the involvement of accused (Juvenile), who was just six months short to attain the age of 18 years.

Even many PIL were filled to deal with the provision of age classification of juvenile with regards to JJAct 2000[4]. Therefore the involvement of the accused in such a heinous crime of rape forced the Indian Legislation to introduce a new law and thus, Indian Parliament came up with a new law which is known as “Juvenile Justice (Care and Protection of children) Act 2015.

The JJ Act, 2015 protects the fundamental right to life of the victim. The right to life also includes right to justice. The previous Act (JJ Act 2000) by providing blanket immunity to the juvenile offenders and subjecting them to the same punishment irrespective of the severity of the crime committed by them denied the victim the right to justice. Where a child is not eligible to be punished but is capable of committing rape or murder it is against the principle of justice and principle of proportionality of punishment if he is given blanket immunity.

Keeping in view the increasing number of serious offences being committed by persons in the age group of 16-18 years and recognizing the rights of the victims as being equally important as the rights of juveniles, special provisions have been made in the new Act to tackle heinous offences committed by individuals in this age group.

 In July 2014, Ministry of Women and Child Development, Maneka Gandhi said that they were preparing a new law which will allow 16 years old to be tried as adults. She said that 50% of juvenile crimes were committed by teens who thought that they get away with it. She added that changing the law, which will allow them to be tried for murder and rape as adults, would scare them to do such offences again in future.

The bill was introduced in Parliament by Maneka Gandhi and thecabinet clears the final version after some changes. The government introduced the juvenile Justice bill in August 2014 in loksabha and gave various reasons to justify the need for a new law. It was said that the existing juvenile Justice act 2000 was facing implementation issues and procedural delays with regard to adoption etc. Additionally, the government cited national crime records bureau (NCRB) data to say that there has been an increase in crimes committed by juveniles, especially by those in the 16-18 year age group. Therefore, then the government of India replaces the juvenile Justice act 2000 in 15th January 2016.

Mercedes Hit and Run case of July 2016 was the first case after the enactment of the new JJ Act, 2015 whereby the accused was tried as adults. The accused of 17 year and 11 months ran over a 32-year-old marketing executive while driving his father’s Mercedes.[5]

The major amendments which came into force in Juvenile Justice Act 2015 were –

1. The crimes were divided into 3 classifications i.e. the petty offences, serious offences and heinous offences.
2. This act allow Juvenile of 16 yr or older to be tried as adult for Heinous offence like rape, murder.The assessment of the heinous crime should be disposed of within 60 days from the first production of the child before the juvenile justice board.
3. The Juvenile Justice Board must be constituted in every district to deal with children in conflict with the law. The board comprises of a metropolitan judge and judicial magistrate with two social workers along with women.
4. The Juvenile Justice Board comprise of Psychologists and Sociologists will decide whether a Juvenile Criminal in the age group of 16-18 should be tried as an adult or not.
5. A new clause on fair trial is added, under which the assessment will look into the special needs of the child, under the tenet of a fair trial under a child-friendly atmosphere.
6. If any child is found to be committing any crime then he will be sent for a preliminary assessment for a period of 3 months. A clarification is added that the preliminary assessment is not a trial but to assess the child’s capacity to commit the crime.
7. No life-imprisonment or death sentence to a juvenile
8. Child Welfare committee consisting of a chairperson and four other members will look at institutional care for children in their respective districts.
9. Now proper training of special juvenile units in police force should be given.
10. NCPCR and SCPCR will be the nodal authorities to be responsible for observing the implementation, the publicity of the amended act, and to look into cases that arise out of the act.
11. Inter-country adoption allowed if adoption cannot take place within the country, within 30 days of the child being declared legally free for adoption.
12. If the biological parents want to give their child for adoption, then they have given a chance to rethink about their decision for three months instead of one month.

Chapter – 3

JUVENILE DELINQUENCY

A juvenile delinquent is teenagers who go against the state or federal law by committing offence. Basically, Juvenile delinquency is the act of committing a crime at a very young age.

We often get confuse with two terms that is Minor and Juveniles. The term ‘Minor’ and ‘Juveniles’ are used in two different contexts. The term Minor is used to define the legal capacity of the child while the term Juveniles is used in reference with the young criminal offenders.

Who are Juvenile Delinquents?

Juvenile delinquents are the offenders who are normally under 18 year of age. Fundamentally it is a young inveterate or habitual disobedient.

Few Act of delinquency may include.

• When Juvenile running away from home without permission of parents or guardian.
• When there is habitual absenteeism beyond the control of parents.
• Use of vulgar language.
• When juvenile stroll around rails, roads, streets
• Committing sexual offenders.
• Shoplifting etc.

Juvenile may do such activity singly or in gang.

Teens or young person are still immature and do not think like an adults, therefore they are more likely to make mistakes or committing crimes that are not fully in their control. Teens can break laws for various reasons, and there are a number of factors that can lead them to juvenile delinquency.

Majority of the crime is committed by those who are in the age group of 16-18 years because of the negative influence of the peer groups or the surroundings. There are some of the reasons which affect the juveniles to commit crime.

Reasons of juvenile delinquency-

1. Individual factor-

Lower intelligence, no proper education, bad company of people is more likely to develop delinquent behavior in juvenile .Other factor may include like impulsive behavior, uncontrolled anger, inability to delay gratification that may lead to his delinquent behavior. Mental health and mental state also play an important part of individual factor for his behavior in a society. Thus these factors contribute a lot in involvement of juvenile in harmful, destructive, shocking and illegal activities.

2. Family problems-

A child learns from his family the difference between good and bad, right and wrong, appropriate and inappropriate; they learn their values and set of norms of society through their parents. Thus a family acts as the socialization school for the children.

Parents and family members have a great role in shaping the personality of the child. Parents should not only teach but also set a good example in front of their children. Family is the role model for a child, it is the grass root level which makes or breaks a child’s character.

3. Substance abuse factors-

Substance abuse is found in a majority of juvenile delinquent cases. Additionally, when a child is under the influence of drugs or alcohol, he is most likely to engage in destructive, harmful and illegal activities. The use of these substances leads to engage in committing crimes.

4. Inefficient education infrastructure-

Lack of proper education, teacher, management, habits etc can lead to raise in criminal propensities in children. Even problems like the use of obscene language, cheating, lying, petty theft, weapon possession etc. which also give rise to develop criminal mentality into children.

5. Peer groups –

The peer group is an informal network of individual of similar age with whom the child meets and interact .After the family and school, the children spends the rest of the day with their friends. A bad friends company affects the mind of the juvenile the most. Habit of children with their friends such as stealing, gambling, smoking, alcohol etc are generally found among such peers.

6. Unemployment-

There is a Hindi saying that goes like ‘khali dimag shetan ka ghar’, not merely regular employment, but satisfactory employment is needed to keep a man away from crime.

Juvenile delinquency is an gigantic problem in India by which most of the youth ruin their lives because of juvenile crime and may also cause few problems related to youth, their families and the entire society which suffer multiple consequence of Juvenile delinquency as follows –

1. Deterioration in social/ emotional development in society
2. PTSD (Post Traumatic Stress Disorder) – Thinking constantly about the traumatic event, having nightmares. Avoiding places, people, or activities that make them uncomfortable or which may re-mind them of negative events.
3. Fear, anxiety, depression.
4. Development regression- as we know that child is a future of our nation if there is increased in juvenile delinquency then there will be a greater threat to development in country.
5. There will be risk of future victimization, perpetration or people may face coincident or bystander victimization.
6. Impairment in learning.

Prevention – how we can curb juvenile delinquency?

1. Proper treatment.
2. Rather than treating them as hardcore adult criminals we must protect them from the regular criminal framework, we cannot sacrifice a child who will serve as a future of the country.
3. Stop them from becoming habitual offenders.
4. Instead of punishment use the concept of welfare, development and growth of juvenile.
5. Providing proper counseling, psychotherapy and proper education to juvenile offender and his family.
6. Some employment, educational and rehabilitation techniques should be used to help them to live a criminal free mind.
7. Parents should not only teach but also set a good example in front of their children. They can also see whether their kids are in good company or not.
8. Imparting of sex education in schools.
9. Change is possible through better social, economic conditions, creation of awareness and also through change in people’s attitudes towards juveniles.

‘World’s biggest strength lies in youth’ therefore a juvenile is a future of this world and in order to save them from getting in wrong doings here, are few recommendationas follows-

1. Children must be given proper education, to avoid delinquency among them.
2. Imparting of sex education in schools can also be a recommendation to decrease juvenile delinquency.
3. School dropout shall be given proper information/guidance of anti-social behavior by NGO through conscious aid program.
4. There must be awareness program like ‘nukad natak’ which must show the importance of societal surrounding, family, friends, and education around juvenile.
5. The juvenile offenders must be treated according to their sensitive cases – Every individual case of delinquency shall be study separately keeping in view the specific problem to rehabilitate, recondition and readjust the individual into mainstream society.
6. There must be no loophole in the system and if there is, then it must be eradicated.
7. “Once they’re‘cuffed, it’stoo late” therefore, Juvenile must be taken to correction homes or rehabilitation center according to their cases but should not be taken to jail because it may turn them into harden criminal.

Children are born selfless and crime free, it is the negative influence of the peer groups or the surroundings of the society which inculcate crime in them. Therefore, it is very important to understand the concept of juvenile delinquency and the conditions giving birth to the high rate of crime by juveniles. This is the reason the preliminary assessment to study and analysis the juvenile delinquency, to understand the physical and mental capacity of the child to commit the offence as well as his ability to understand the consequence of the offence and the circumstances under which he committed the offence.

Chapter – 4

INTERNATIONAL COVENANT

What is an International Convention?

An International Convention or treaty is an agreement between different countries that is legally binding to the contracting States. Existing international conventions cover different areas, including trade, science, crime, disarmament, transport, and human rights. A convention becomes legally binding to a particular State when that State ratifies it. Signing does not make a convention binding, but it indicates support for the principles of the convention and the country’s intention to ratify it.[6]

UNCRC- United Nation Child Rights Conventions.

The united nation in an International Organization to maintain peace and security and to promote human rights. One of the ways it does this is through international human rights agreement based on three core principles of human right Dignity, Equality and respect. The United Nations Convention on the Rights of the Child is one of this and sets a global human rights agenda for every person under the age of 18. It was recognized by the vast of the majority UN Member states in 1989 and is now the most ratified human rights treaty. 

WHAT DOES THE UNCRC SAYS?

The convention describes the obligations states parties have to all children’s, living within its borders. The convention is wide reaching and covers many aspects of children’s lives. Rights are described by articles there are four important articles that apply across all other rights in convention these general principles are

• Non- discrimination.
• The best interest of the child.
• The right to life, survival & development.
• The rights for children’s views to be given to weight.

The others Rights can be grouped into 5 categories including

1. Civil rights & freedoms.
2. Family environment & alternative care.
3. Health & welfare.
4. Education leisure and culture.
5. Special protection measures that covers children’s in emergency situations, in justice systems, child exploitation and children belonging to minority groups.

An additional three optional protocols have also been included in the convention over the years related to military conflicts, sale of children and individual complaints by children to committee.

The Beijing rules- United Nation Standard Minimum Rules for the  Administration of Juvenile Justice, 1985

It is a resolution of the United Nation General Assembly regarding the treatment of juvenile prisoners and offenders in member nations.

• A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult.
• In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.
• Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.[7]

In India for example a boy less than 16yrs of age and about 12 years of age was to be prosecutedfor criminal offences then these juvenile shall not be sent to an adult jailbut should be sent to another institution separated from adult so that these adults do not indoctrinate this juvenile.Reforms are the central agenda or purpose of the Beijing rules.

Chapter – 5

LAWS PREVAILING IN OTHER COUNTRIES

Country	Minimum Age (Juvenile can be tried for an offence)	Age to be tried as Adult	Penalty ( for juvenile treated as adult)	Name of Juvenile Act	Whether it is a signatory country (date)[8]	Ratification, Acceptance(A), Accession(a), Succession(d)[9]
Canada	12 yrs.	14 yrs.	Murder 7-10 yrs. maximum penalty for other offences is 3 yrs. no life	Youth Criminal Justice Act 2003 (most recent amendment)	28 May 1990	13 Dec 1991
France	On case to case basis.	16 yrs.	Same as an adult imprisonment on case to case to basis	Juvenile Justice System	26 Jan 1990	7 Aug 1990
Germany	14 yrs.	14 yrs.	10 yrs. Imprisonment no life imprisonment and no death penalty.	The Juvenile Welfare Act (JWA)	26 Jan 1990	6 March 1992
India	7 yrs.	16-18 yrs.	Same as an adult no life Imprisonment or death penalty.	Juvenile Justice (Care and Protection of Children) Act 2017	–	11 Dec 1992 (a)
Japan	14 yrs.	20 yrs Exception-16yrs (Death)[10]	5 years imprisonment in cases of Rape. Others case to case basis.	Juvenile Law 2008	21 Sept 1990	22 April 1994
Pakistan	7 yrs.			Juvenile Justice System	20 Sept 1990	12 Nov 1990
Republic of Korea	14 yrs.	19 yrs	Perpetrators under 14 cannot be sent to prison and those under 19 are exempt from the death penalty or imprisonment for longer than 20 years.	Juvenile Act- Republic of Korean	23 Aug 1990	21 Sept 1990
South Africa	10 yrs.	16 yrs	Same as an adult no life Imprisonment or death penalty.	Child Justice Act 2008	29 Jan 1993	16 Jun 1995
UK	10 yrs.	17 yrs.in England, Wales and North Ireland and 16 yrs. in Scotland (can be lower in exceptional cases)	Same as an adult no life Imprisonment or death penalty	Children and Young person Act 1963	19 April 1990	16 Dec 1991
USA	6-10 yrs.	13 yrs.	Same as an adult no life Imprisonment or death penalty	Juvenile Justice and delinquency prevention Act (JJDPA), 2002	16 Feb 1995	–

Chapter – 6

IS JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015 (HEREINAFTER KNOWN AS ‘JJACT 2015’)IN CONSONANCE WITH CONSTITUTION OF INDIA:- BOTH THE SIDES OF THE SAME COIN (FOR & AGAINST)

‘Every truth has two sides; it is as well to look at both before we commit ourselves to either. Its only the circumstances they are in, makes them behave in such a manner.’

With the very positive aspect of JJAct 2015, there has been a bit negative side too because of which it has been a big fuss and a very controversial topic for debates. As we know that till the date heated debate was all about Age classification of 16-18 yrs. where a Juvenile is being tried as an adult for heinous offences.

As mention in Section 15 of JJAct 2015, that in case a child, between 16 to 18 years of an age has committed a heinous offence then the Juvenile Justice Board (JJB) may conduct a preliminary assessment in order to assess the maturity level of the child, his mental and his physical capacity to conduct such an offence and the ability to understand the consequences of committed offences.

In section 18 (3) of JJAct 2015, it is stated that JJB may pass an order that there is a need for trial of the said child as an adult under which the Controversial topic has been that preliminary assessment which is done by JJB is a very subjective and enormous process which can lead to arbitration as well. Therefore it violates constitutional provisions and international covenants as well.

As it is aforesaid that everything has two sides; positive and also negative, so let’s see JJAct 2015 both the sides of the same coin.

Article 14

Art 14 talks about, Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

For

There is no differential treatment of such children on any ground. The new Act establishes a more robust, effective and responsive legislative framework for children requiring care and protection, as well as children in conflict with law. Its provisions responded to the perceptions, articulated by a wide cross-section of society for the need to have an effective and strengthened system of administration of juvenile justice, care and protection.

In this modern era it is observed that the mind-set and maturity level of a child is like an 18 year old or an adult so he or she can understand the gravity of a heinous crime committed therefore, The Act is meant to see all equally. It should do the same effectively also it can’t neglect the criminal Intentions of child from 16 to 18 years of age, hence it mentions the Juvenile Justice Board may conduct a preliminary assessment in order to assess the maturity level of the child, his mental and his physical capacity to conduct such an act. Section 15 was founded which made out a case where a child could face trial as an adult in certain circumstances.

And also all the juvenile were not being treated as adult, whether to treat that juvenile as an adult or not is being decided after the preliminary assessment under sec 15 of JJ act 2015, all the important aspect will be addressed in preliminary assessment i.e., “evaluated on the basis of their particular maturity level, intelligence, life experience and feelings of moral responsibility, background history” juvenile delinquency which affect state of mind of the juvenile at the time of commission of crime and if it’s of the opinion after inquiry that there’s a need for trying the child as an adult than the case will be transferred to the children’s court/ sessions court having jurisdiction as per JJ act, 2015 section 18(3), which does not violate any provision of constitution which also include the right of equality and being in the favour of natural justice.

Keeping in view the increasing number of serious offences being committed by persons in the age group of 16-18 years and recognizing the rights of the victims as being equally important as the rights of juveniles, special provisions have been made in the new Act to tackle heinous offences committed by individuals in this age group.

Against

Article 14 of the Constitution of India clearly mentions that everyone will be provided with equal protection of the Law and everyone will be treated equally before the Law. Some children are denied this protection and equality before the same. This is not constitutionally acceptable. The transfer system of a child to adult criminal system under the Act, violates the right to equality under the Constitution because children and adults cannot be tried as equals because they are not equals.

Child is someone who has not attained the age of 18 years and is also not capable of understanding wrong and right or arriving at a reasonable conclusion. In the modern age of law, most of the countries dealing with juvenile acts have adopted the principle of “Doli Incapax” which by the very definition means that the person incapable of understanding the commission of a crime, treating children 16-18yr as an adults violates the fundamental right to equality under Article 14 of the Constitution.

Which means that if a 16-year old or above child commits an offence that attracts a minimum seven year sentence, he will be produced before the JJB comprising a magistrate and two social workers who will decide on the physical and mental capacity of the child to commit the offence as well as his ability to understand the consequence of the offence and the circumstances in which he committed the offence.

This is a very subjective process which creates scope for an enormous amount of arbitrariness. Latest research shows that individualized assessments of adolescent mental capacity are not possible.

If the juvenile has been treated as an adult the children come in contact with hardened criminals in jail, it would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society and thus eliminating any scope for reformation, Which goes against the objective of juvenile justice law.

The objective of the Act is to provide care to the juveniles in need and to protect the child’s innocence and not to create unnecessary age classification which stands against the constitutional provision I.e., art. 14.

Under the Indian law a person under the age of 18 –

• is not allowed to vote,
• cannot enter into contract,
• a girl cannot give consent for sexual relationships,
• a child cannot marry,

Yet, by the amended act, that child is tried as an adult and  after a preliminary assessment, the child is presumed to have the knowledge and understanding of the alleged crime he has committed.

 Such a scenario would be travesty of Justice. Therefore, that child should be tried as a child and no juvenile should face inequality.

Article 21

‘Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law’

For

The JJ Act, 2015 came into force to protect the fundamental right to life of the victim under which the right to life also includes right to justice. The previous Act (JJAct, 2000) was providing blanket immunity to the juvenile offenders and subjecting them to the same punishment irrespective of the severity of the crime committed by them which denied the victim the right to justice.

However the juvenile offender who is found to have committed a heinous crime and is between 16-18yeras then the Juvenile Board may transfer the case to a Children’s Court where they may send him to a place of safety and after the attainment of 21 years and thereafter he shall be transferred to a jail.[11]Thus protecting the fundamental rights to live with dignity guaranteed under the Constitution of India.

Also The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.[12]

Against

Article 21 prohibits arbitrary deprivation of life and personal liberty by laying down that these two possessions can only be taken away in accordance with procedure established by law. Hence, the preliminary assessment by the Juvenile Justice Board providing for procedural arbitrariness violates Articles 14 and 21 because an accurate assessment of mental capacity for the purpose is just not possible and will result in subjective and arbitrary transfers into the adult criminal system. This goes against the very basis of the Constitution.

International Covenants

The united nation in an International Organization committed to maintaining peace and security and to promoting human rights. One of the ways it does this is through international human rights agreement based on three core principles of human right Dignity, Equality and respect. Different International Covenants for protecting the child right globally are as follows:

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also known as the Beijing rules, was adopted on 29 November 1985 for protecting the well being of children.

The United Nations Rules for the Protection of Juveniles deprived of their Liberty, 1990 also known as the Havana rules, lays down the standard for the management of the juvenile justice system.

The United Nations Convention on the Rights of the Child (CRC), 1989 provides for the protection of children by ensuring the rights available to them.

The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 also known as the Riyadh guidelines, provides for the prevention of juvenile delinquency.

The United Nations Guidelines for Action on Children in the Criminal Justice System, 1997 also known as the Vienna guidelines, were adopted for the protection of children and it was addressed not only to the states, but also NGO’s and media.

For

UNCRC was ratified by the India on 11 dec 1992 and it was even brought in 2000 Act to adhere to the standards set by the Convention. However you may have seen that even after following the rules of international convention the rate of crime committed by juvenile was increasing as it was mentioned by ncrb report on crime rate of Juvenile in conflict with law.[13]

Therefore in order to maintain peace and security of nation there was necessity to implement age classification and the act of 2015 maintains this aim and seeks to improve implementation and procedural delays experienced by the 2000 Act.

However, many other countries who have also ratified the Convention try juveniles as adults, in case of certain crimes. These countries include the UK, France, Germany, etc. Therefore the provisions of various countries cannot be overlooked while dealing with such a sensitive issue.

Even UNCRC is not binding (non-enforceable) on Indian legislation as mentioned in DPSP Article 51-A & Article 256 of constitution. However, it is a moral obligation to follow by state parties but thinking about global peace and security before considering national peace will lead to cataclysm of India.

Against

UNCR i.e. United nation child right convention says that every child is entitle to equality, dignity and respect and every child everywhere should enjoy the rights contained in it therefore the JJAct 2015, provision which create classification of 16-18 yr to be tried as adult for certain offence is in not accordance with UNCRC.

Further Beijing Rules it is also knows an united nation standard minimum rules for the administration of juvenile justice the three rules which says that

• Child must be treated different from adult.
• For juvenile the beginning of that age shall not be fixed at too low an age level.
• And juvenile shall be kept separate from adults.[14]

Hence the JJAct 2015 treats the Juvenile of 16-18 as adult which shows that it is violative of Beijing rules as well.

Chapter – 7

CONCLUSION

There is a saying that ‘children are not born with criminal mind it is the society or surrounding which inculcate in them’

No individual ever is born as a criminal in this world. It is the circumstances, problems and different kind of adversities which are faced by them in the adolescent age due to which they are deviated to unlawful and harmful acts. As Children develop the nation’s precious human resources therefore, future accomplishment of the nation depends upon the execution and performance of children. The great poet Milton said, “Youth Shows the man, as morning presentations the day“. So it is the devotion of the general masses to deal with every pre-adult with a vision to ensure full advances of its personality.

Children are the future controllers and light bearers of the Society: they are the units of our understanding, social legacy, conviction structures, and rationalities. Children are genuinely future part of our world as sensational instructors, specialists, judges, rulers, powers, coordinators, engineers, politicians due to which the entire functioning of society shall be work peacefully and safely in future. Disastrously a broad number of children are obstructed from securing their childhood and right to pertinence and thereby they are subjected to exploitation, misuse, and abuse.

The amendment of 2000 to 2015 was very necessary and important and definitely a major attempt of the legislature for recognition of Adoption towards the Orphaned, Abandoned and Surrendered children because of which the laws and the policies related to adoption have become very clear and simpler. The Juvenile Justice (Care and Protection of Children) Act 2015, fight for the rights of the child.  The changes that are made to protect the children’s from human trafficking, child abuse, toy playing of child etc. Proposed changes made in the act have converted the entire process very efficient and user friendly. Also keeping in view the increased offence done by the juvenile in the age group of 16-18 years, it was essential to amend the JJAct 2000.

Chapter – 8

SUGGESTION

In authors view we would like to give few suggestion and recommendationafter going through long run way regarding classification of age in JJAct 2015.

It is a great initiative by legislation in order to rehabilitate and reforms the Juvenile.The Juvenile Justice System deals with ‘children in conflict with the law’, and ‘children in need of care and protection’.  It acknowledges the rights of the victim being equally important as right of Juvenile offender rather than the earlier act (JJACT 2000) which was providing blanket immunity to the Juvenile offenders. Also it takes initiative to make Juvenile offender understand the consequences of offence done by them. However if we look at the objective of JJAct 2015 then it is to provide care, protection, treatment, development and rehabilitation of the neglected juvenile delinquent.

So accordingly to maintain this objective Juvenile delinquency can be stopped at an early stage by providing special care to juvenile at homes and schools. It is the duty and responsibility of family especially of parents towards the society and the role of government at the national level to properly encourage the mind of a child, without cataloguing them as criminals or delinquents. The more the steps taken and the more the plans being implemented, the greater the chances to upbringing the society from the darker juvenile crimes to a brighter society free from the increase rate of juvenile delinquencies. Only after that a crime free, corruptions free and a healthy society is possible and practicable.

There are few things that the concerned authority should pay attention to if the juvenile are tried as an adult and are kept in prison for the committed offences. 

• The juvenile who are kept in jails should not be kept with other criminals because if they come in contact with prison subculture and prison gangs then there is probability that a juvenile may became hardened criminals in future, it would lead to effect of dwarfing the development of the child, exposing him to baneful experience, coarsening his conscience which will unfortunately eliminate the scope for reformation to greater extent. They should be provided with proper and positive environment in prison and also at place of safety.
• Also there should be proper check and balance in Juvenile Justice System so that the functioning with regards to

1. Police station working, where a juvenile offender should not be kept in prison but should be placed under the charge of the special juvenile police unit or the designated child welfare police officer.
2. Also ensure the proper safety and counseling session under observation homes and place of safety. Now a day’s offences like prey of sexual assault under observation home itself[15] is increasing therefore if there is proper check in such homes there will be less chances of increase in Juvenile delinquency.

One of the court’s key observations is that “essentially, the trial in the regular court is offence-oriented; in the juvenile court, it is offender-oriented. In other words, in the children’s court, societal safety and the child’s future are balanced. For an adult offender, prison is the default opinion; but for a juvenile it is the last resort”.

[1]Juvenile Justice Act, 2015, S.21.

[2]Shilpa Mittal vs. State of NCT of Delhi & anr. on 9 January, 2020.

[3]Mukesh & anr. V. NCT Delhi, AIR 2017 SC 609.

[4]Dr. Subramanian Swamy And Ors vs Raju Thr.Member Juvenile Justice … on 28 March, 2014.

[5] Astha mishra, ‘Adult time for adult crime’, SCC Online Article, april 10 5:30, https://www.scconline.com/blog/post/2018/01/31/adult-time-adult-crime-road-juvenile-justice/.

[6]Frequently asked question about International convention, 19 May 4:30, https://www.un.org/esa/socdev/enable/convinfofaq.htm.

[7] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), May 19th, 4:15 pm, https://www.ohchr.org/documents/professionalinterest/beijingrules.pdf.

[8]UNCRC, signatory report, May 24, 10 pm,

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&clang=_en.

[9] Ibid

[10]  Art.20 of the Juvenile Law (Shōnen Hō), Law No. 168 of 1948.

[11] Juvenile Justice Act, 2015, S.19(3)

[12] Juvenile Justice Act,2015, S.19(2)

[13] NCRB Report , 4 June, 5:00 pm, https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%2010-15.11.16_2015.pd.

[14] Supra Footnote No. 8

[15] Muzzafarpur Child Care Centre Sexual Assault cases.