Juvenility: From Criminality to Responsibility

 

Dr. Lalit Dadwal

 

 

ABSTRACT:

The increasing trend in the incidence of Juvenile Crimes under penal laws is a matter of grave concern. It is a very serious issue for the nation and solutions to end the problem need to be sought very carefully. Indian legal system and judiciary has responded to these trends and has brought some amendments in the laws pertaining to juvenile justice in India.  A new law named as The Juvenile Justice (Care and Protection of Children) Act, 2015 came into force on 15^th January 2016 which defines new boundaries with regard to penalizing juveniles and providing children from impoverished backgrounds with the basic needs and facilities that they require to live. The Act has introduced a new era of juvenile justice in India by introducing the provision of transfer of 16-18 years delinquent to an adult criminal court. The juvenile justice boards have been given the responsibilities of age determination, to determine whether the offence is heinous, to conduct a preliminary assessment, and then to take a decision whether to transfer or not to transfer the child to the children’s court. The children’s court then is required to reassess if the child so transferred, should be tried as a child or as an adult. . The primary objective of this paper is to analyze the concept of ‘Age of Criminal Responsibility’ in light of the relevant provisions of the Indian Penal Code. Along with this, the paper also seeks to understand the provisions of the Juvenile Justice Act 2015, Causes of delinquent trajectories and International Jurisprudence on the issue of age. This paper will also focus on the juvenile delinquency, evolution of Juvenile Justice System in India, need for the JJ Act, 2015 and the role of judiciary .Further an attempt would also be made to come out with solutions to improve their situation in the society

 

 

A.    INTRODUCTION:

Juvenile delinquency problem has been in existence since time immemorial. It is an important feature of all societies, be it simple or complex. It is one of the serious problems of deviation which the children of almost all the modern societies of the world are facing. It is non- conformist behavior on the part of the child and it does manifest as a problem of personal disorganization but also a symptom of social break down. The phenomenon has been considered as a matter of great concern for every class of society down the ages in one or the other forms. According to Morrision¹, juvenile delinquency to be major social theme of the current period and he moralizes about the phenomena as “a peculiarly nasty product of the new freedom” involving teenage monsters of both sexes who take drugs, rob, riot and kill “just for kicks”. India is the home of more than one billion people, of whom one-third are children under 18 years of age. At approximately 440 million, not only does India have the world’s largest number of children, but also the largest number of vulnerable child population, of them nearly 44 million are in difficult circumstances. India has witnessed an increase both in crimes committed by children and those committed against them².

 

The increasing trend in the incidence of Juvenile Crimes under penal laws is a matter of grave concern. According to National Crimes Records Bureau report of 2015, a rate of crime under cases of juveniles in conflict with law has been increased from 1.7 to 2.5% since 2005 to 2015. There has been 0.8% increase in cases registered under IPC against Juveniles in conflict with the law during 2015. In 2015 cases registered against Juveniles in conflict with the law were 33,526. In 2005, the number of cases was 18,939. (NCRB, 2015).These figures drawn the attention to focus on psychosocial issues of Children with conflict in law in India. Major Juvenile crimes were: Theft (18.03 per cent), Rape (5.03 per cent), Kidnapping and Abduction (4.86 per cent), Assault on women with intent to outrage her modesty (4.29 per cent), Hurt (3.06 per cent) and Riots (3.03 per cent) in 2015.  The highest incidence of the juvenile rape cases in the country was reported from Madhya Pradesh (16.7 per cent) followed by Maharashtra (14.63 per cent), Rajasthan (9.83 per cent) and Chhattisgarh (8.43 per cent) in the country.

 

The NCRB compendium of 2016 reported that 27 percent of juvenile crime in 2015 was committed by individuals between ages 12-16, whereas 1.4 percent was committed by those in age group 7-12 (see Figure 1). It shows that almost 30 percent of juvenile crime incidences pertain individuals below 16 years of age.

 

The concept of juvenile delinquency is very complex and varies from country to country and even in the various provinces of the same country. No single definition may suit all nations because the sociologists, psychologists and legalists define ‘Juvenile Delinquency’ in their own way. It varies from nation to nation, for what is forbidden to do at one place, is allowed in the other place. For example, defying parents authority, skipping from school are treated as delinquent acts in USA but in India, these acts are not treated as delinquent acts³.  Thus Juvenile delinquency is a serious and multidimensional problem which is on rise. Despite intensive rehabilitative measures and special procedures for tackling the problem of juvenile delinquency at the national and international levels, there is a growing tendency among the youngsters to be violent and disobedient to law. Keeping in view the magnitude of the problem it is necessary to deal with this problem with a multidimensional approach. For this we need to evaluate the working of the police, juvenile courts, and other segments of the social control machinery that influences juvenile delinquency. It is crucial to frame a comprehensive social welfare programme with better resource utilization and emphasis on effective planning, monitoring and evaluation of the existing programmes. Thus rather than cutting the weeds from the top it should be destroyed by pulling it out completely. Similarly in order to get rid of juvenile delinquency we should destroy the conditions under which it breeds and for doing so a coordinated effort by the community is the only way out. The primary objective of this paper is to analyze the concept of ‘Age of Criminal Responsibility’ in light of the relevant provisions of the Indian Penal Code. Along with this, the paper also seeks to understand the provisions of the Juvenile Justice Act and International Jurisprudence on the issue of age. This paper will also focus on the juvenile delinquency, evolution of Juvenile Justice system in India, need for the JJ Act, 2015 and the role of judiciary .Further an attempt would also be made to come out with solutions to improve their situation in the society.

 

B.     Juvenile Delinquency:

Etymologically the term ‘delinquency’ has been derived from the Latin word delinquer which means ‘to omit’.  The Romans used the term to refer to the failure of a person to perform the assigned task or duty.  It was William Coxson who in 1484, used the term ‘delinquent’ to describe a person found guilty of customary offence.  The word also found place in Shakespearean famous play ‘Macbeth’ in 1605⁴.  An exact definition of juvenile delinquency has been a debatable issue since long.  Any unaccepted behavior of the society by the juveniles is covered under ‘delinquency.’  Delinquency signifies deviant behavior.  Deviance refers to divergence from the mean or standard position.  According to Albert Cohen, deviant behavior is that behavior which violates institutional expectations, that is expectations which are shared and recognized as legitimate within a social system.  Various statutes defined juvenile delinquency in different terms.  To quote but a few “The Illinois law defines a delinquent who is incorrigible or who is growing up in idleness, one who wanders about the streets in night time without being on any lawful business or one who is guilty of indecent conduct.”  According to New Mexico definition, ‘a delinquent child is one who, by habitually refusing to obey the reasonable and lawful commands of his parents or other persons of lawful authority, is deemed to be habitually uncontrolled, disobedient or wayward, or who habitually is a truant from home or school or who departs himself as to injure or endanger the morals, health or welfare of himself or others⁵.

 

C.     Causes of Delinquent Trajectories:

A large number of writings by both behavioral scientists and other researchers have been studied by the author ,for answering the question as to what causes juvenile delinquency. Studies of H.Sheth, Juvenile Delinquency in an Indian Setting, 1961, N.L.Mitra, Juvenile Delinquency and Indian Justice System,1988, S.K. Bhattacharya, Juvenile Justice : In Indian Scenario, 2000, Goldstein and Others, Mental Health Disorders: The Neglected Risk Factor in Juvenile Delinquency, 2005, S.P. Singh, An Outline of Juvenile Delinquency,2010, R. Pal, Psychological Dimensions of Juvenile Delinquency,2011,S.P. Gomango, Consequences of Child Maltreatment, 2005, A.K. Kumari, Juvenile Delinquency: A Socio-Legal Approaches,2007, A.E. Siegel, The influence of Violence in Mass Media upon Children’s Role Expectations, 1958, Walter R. Gove and Robert D. Crutchfied, The Family and Juvenile Delinquency ,1982 have been reviewed by the author. All these studies show that there was no single factor contributing solely to such behavior but a range of factors which contribute collectively and significantly. Lets discuss some of the factors responsible for delinquent behavior:   

No one is a born criminal. Circumstances make him so. Socio-cultural environment, both inside and outside of home, plays significant role in shaping one’s life and overall personality. Every child wants to be loved and understood. As the child grows he expects to have love and affection from his parents and family members. In case child fails to receive requisite quantum of love and understanding , he feels alienated and rejected and move out to satisfy his unmet needs by resorting to antisocial behavior. The biological, psychological and sociological are one of the important factors in the behavior pattern of adolescent. Mental illness or depression, frustration, anger has also been quoted as one of the Cause.

 

Family defines the overall personality of the children. It is the basic socialization agency for the children. Children usually learn the basic concepts of good and bad from their family. It shapes  their values and sets the norms of society. Within a family, the most important role is played by the parents, which is quite significant in determining a child’s behavior. Single parent families, separated families, frequent parents conflict, lack of trust and confidence among the parents, psychological problems in parents, etc can be some of the reasons behind juvenile delinquency. Another reason can be sibling rivalry due to unequal treatment between children. If parents are unable to exhibit moral behavior, children might get motivation to do something similar. The rapidly changing society patterns and modern living style, makes it very difficult for children and adolescents to adjust themselves to the new ways of lifestyle. They are confronted with problems of culture conflicts and are unable to differentiate between right and wrong.

 

Poverty and poor economic condition is also consider has major contributing factor of increasing juvenile crimes as result of poverty, parents or guardian fails to fulfill the needs of the child   and at the same time children wants that their desires should be fulfilled by parents by hook or by cook and when their desires are met they start themselves indulging in stealing money from homes or any other parents. And this develop habitual tendency of stealing which results into theft at large scale. High financial aspirations of youth which are unaffordable by parents might led to involvement in criminal activities. Juveniles want to improve their status and for this purpose they sometimes choose a wrong path, leading to criminal activities. Studies reveal that the children those who have experienced sex assault or any other kind of unwanted physical assault in their early childhood may develop any kind of repulsiveness in their behavior and mind. A sizeable number of delinquent acts- particularly theft, assaults, prostitution are directly associated with drug problems. Most youths who are addicted to drugs in an attempt to maintain their habit are forced to steal and commit other crimes. Association of youths with other delinquents, drug- addicts, criminals and maladjusted children also results in deviant or delinquent behaviour in children. Because, if individuals associate mostly with delinquents or criminals, or mal-adjusted individuals, chances are that they will become involved in delinquent activities.

 

Crime loaded serials/ movies, Porn movies may lead a child to delinquent path. The role of internet as a modern form of mass media is noteworthy. Internet is like a spider’s web and it’s a trap. Everything is available online. There are social - networking sites, cyber trespass, applications, porn sites, fake accounts etc. which is just a trap. Kids don’t know the repercussions’. There is hacking, greed, over-usage cyber - crimes, cyber bullying and stealing. Easy accessibility to porn links is a big problem.  Apart from this, the author personally feels that  increasingly violent and realistic adult games by children is also a matter of worry. The amount of time spent playing games (especially video games by boys, often in groups) has reached new highs. At the same time, young teens are more able to gain access to games with extremely violent or sexual content—often without parental awareness.

 

D.     Genesis of Juvenile Law in India:

India is home to the largest child population in the world, with over forty-four crore children constituting twenty-four percent of the population of the country are adolescent.  They constitute a vulnerable age group for social, educational, moral and physical development.  Protecting children from widespread prevalence of abuse is one of the biggest policy challenges facing India. Juveniles are the life-vein of the society, they are the pillars of the progressive Nation, they are the ‘crystallized energy stored reservoirs’ of the country, they have the potential and dynamic energies intertwined in them, they are the builders of future nation.  The transition period from childhood to pre-adolescence and adolescence is very crucial as during this period different characteristics, behavior and problems are exhibited⁶. With the advent of modernization, urbanization, industrialization etc., one of the various problems of social disorganization is ‘juvenile delinquency which needs greatest concern in the maintenance of social and cultural systems of any country.  The most interesting aspect of the subject of juvenile delinquency is that in every age it has been regarded as a problem peculiar to the contemporary society while the fact is that like adult criminal behavior it has always existed in some form or the other and there is no apparent reason to expect that it will not remain so in the future. 

 

Since a nation’s future depends upon 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 care and attention, he or she will blossom with faculties physical, mental, moral and spiritual, into a person of stature and excellence.  On the other hand, noxious surroundings, neglect of basic needs, bad company and other abuses and temptations would spoil the child and likely to turn him a delinquent⁷.  This phenomenon has a two dimensional basis.  Firstly, the violation of any code of conduct, whether for adults or young persons, is inevitable.  Secondly, the definition of juvenile delinquency as deviant child behviour itself depends upon the norms laid down by the society, in other words by the elders and clash of values due to generation gap is bound to occur⁸.

 

From 18^th century onwards there has been a distinct and laud worthy movement towards child amelioration.  A segment of this was aimed toward separating young offenders from hardened criminals and treating them in friendly way with the role of reforming, rehabilitating and reintegrating so that they become future useful citizens of their nation.  The movement for special treatment of juvenile offenders started towards the end of 18^th century.  Prior to this, juvenile offenders were dealt with exactly like those of adults.  They were prosecuted in criminal courts and were subjected to same penalties as adults.  That apart, they served their sentence in the same prison in which other hardened criminals were lodged.  The greater evil of the system was that it exposed young offenders to contamination due to their incarceration with other criminals.  The crusade against harshness towards young offenders began in 1772 when certain special concessions were granted to juvenile delinquents in civil matters, such as probate, gift and will etc.  They adoption of the principle of parens patriae evolved by Court of Chancery in England necessitated special provisions for handling the estates of minors as they could not manage their property themselves.  Similar concessions were later extended to children under the law of crimes and finally the problem of juvenile delinquency emerged as an independent movement⁹.

 

In India the first legislation for keeping children out of jails was enacted in the form of the Apprentices Act, 1850.  This Act was actually not regarding the delinquent behaviour of children, but contained the provisions relating to the relationship between employers and young persons learning a trade from them as apprentices.  But it did contain some provisions like authorizing the Magistrates to act as guardian in respect of a destitute child or any child convicted of vagrancy or the commission of a petty offence.  The Apprentices Act, 1850 was replaced by the Reformatory School Act, 1876 which was amended later in 1897.  The considerations which lead to separate correctional institutions for young offenders in the USA and England had their impact in India as well.  The Act provided that young offenders  up to 15 years of age found guilty of offences punishable with imprisonment were not to be sent to ordinary prisons but to reformative schools.

 

The years from 1920 onwards saw legislation for juvenile courts and other institutions in the various parts of the country in the form of Children’s Acts¹⁰.  In the year 1960, a central legislation was passed named as Children Act, 1960.  This enactment was intended to be and can be regarded as a model legislation on the subject.  As some lacunae were indentified in the Act of 1960, thus it was amended in the year 1978.  It is not only the legislature but judiciary also has expressed its concern over the issues relating to the juveniles. As the Supreme Court¹¹ on the lack of children Acts in some of the States made the following observations:

 

“It is deeply regretted that in Bihar, the delinquent child is inhospitably treated.  Why did the finer consciousness of juvenile justice not dawn on the Bihar legislators and government?  Why did the State not pass a Children Act through its elected members?  With all our boasts and all our hopes, our nation can never really be decriminalized until the crime of punishment of young deviants is purged legislatively, administratively and judicatively.”

 

Over the years the need was felt for a uniform legislation as the individual States had their own local children Acts to deal with delinquent and neglected children and the Children Act, 1960 was applicable to union territories.  It was realized in the light of our constitutional mandate as well as of various international instruments¹² that children should not be awarded harsh punishments when they deviate but should be dealt with humane touch since they are the future citizens of the nations and most valuable asset of mankind.  Under Indian Penal Code, 1860, there are some provisions which declare children below the age of seven as doli incapax¹³, with the presumption of mens rea being rebuttable in case of children between the ages of 7-12 years¹⁴.  The Preamble of the United Nation Declaration of the Rights of the Child 1959 implored to the World that “Mankind owes to the child the best it has to give” and that “The child, by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protection, before as well as after birth.”  The international and the constitutional mandate as regards child rights were ultimately fulfilled in the form of a uniform law- the Juvenile Justice Act, 1986.  The care and protection aspects in the Act was largely based on the doctrine of ‘Parens Patriae’ in which the children are not merely the responsibility of their parents but the responsibility lies heavily on the State to protect the rights of their most important though vulnerable section by providing them with opportunities and facilities to grow and develop to their fullest potential and also doing all to check that they do not mix with rogue elements in the society and become delinquent.  The Act of 1986 fixed the age limit for a boy to be a Juvenile as 16 years and for a girl as 18 years.  But this disparity was removed in the year 2000, when the Act of 1986 was repealed by the new Act of 2000¹⁵. 

 

On 20^th November, 1989 General Assembly of the United Nations adopted the Convention on the Rights of the Child wherein a set of standards to be adhered to by all State parties in securing the best interests of the child has been prescribed.  The Convention emphasizes social re-integration of child victims, to the extent possible, without resorting to judicial proceedings.  The Government of India, having satisfied the Convention, found it expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the international instruments.  Therefore, finally, Parliament passed the Juvenile Justice (Care and Protection of Children) Act, 2000.  It removed the age disparity by defining the juvenile or child as a person who has not completed the eighteenth year of age¹⁶. The decision of the legislature to increase the age of juvenility has been supported by the judiciary also, where the Supreme Court Judge, Justice Bhagvati observed, “Gerontocracy in silent manner indicated that like a young plant a child takes roots in the environment where it is placed.  Howsoever good the breed be if the sapling is placed on a wrong setting or an unwarranted place there would not be the desired growth.  Same is the situation with the human child.” ¹⁷

 

The Act of 2000 was amended twice in 2006 and 2011 to address gaps in its implementation and make the law more child-friendly.  During the course of the implementation of the Act, several issues arose such as increasing incidents of abuse of children in institutions, inadequate facilities, quality of care and rehabilitation measures in Homes, high pendency of cases, delays in adoption due to faulty and incomplete processing, lack of clarity regarding roles, responsibilities and accountability of institutions and, inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes etc., highlighted the need to review the existing law.  Further, increasing cases of crimes committed by children in the age group of 16-18 years in recent years made it evident that the current provisions and system under the Juvenile Justice Act, 2000 were ill equipped to tackle child offenders in this age group.  The data collected by the National Crime Records Bureau (NCRB) established that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences.  Since numerous changes were required in the Act of 2000 to address the above mentioned issues, it was proposed to repeal the existing law and re-enact a comprehensive legislation.  Thus came the present law of Juvenile Justice (Care and Protection of Children) Act, 2015 which ensures proper care, protection, development, treatment and social re-integration of children in difficult circumstance by adopting a child-friendly approach keeping in view the best interest of the child.

 

E.     Who is Juvenile

Under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as J.J.Act, 2015), juvenile¹⁸ means a child below the age of eighteen years whereas child¹⁹ means a person who has not completed eighteen years of age.  “Child in conflict with law”²⁰ 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.  ‘Child in need of care and protection’²¹ means a child who is found without any home, or is found working in contravention of labour laws, or is mentally or physically challenged and no one to look after, or has parent/guardian but unfit/incapacitated or is missing or run away child or is likely to be abused, tortured or exploited, or is likely to be inducted into drug or abused for unconscionable gains etc.  ‘Abandoned child’²² means a child deserted by his biological or adoptive parents or guardians who has been declared as such by the Committee after due inquiry. ‘Orphan’²³ means a child who is without biological or adoptive parents or legal guardian or whose legal guardian is not willing to take, or capable of taking care of the child.  ‘Surrendered child’²⁴ 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 major changes that have been made in the present Act of 2015 are regarding the offences which are being committed by the juveniles and which are on the rise also.  So, the term offence has been categorized into three, i.e. petty offences, serious offences and heinous offences, on which is based the procedural liability of the juvenile offender.  ‘Petty offences include the offences for which the maximum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment up to three years²⁵  ‘Serious offences’ includes the offences for which the punishment is imprisonment between three to seven years²⁶  ‘Heinous Offences’ includes the offences for which the minimum punishment is imprisonment for seven years or more²⁷  Besides defining the various terms under Sec-2, the Juvenile Justice Act, 2015, provides in detail the procedure relating to children in conflict with law, Juvenile Justice Board, Child Welfare Committee, procedure relating to children in need of care and protection, rehabilitation and social re-integration, adoption etc. In total this Act has 112 Sections under it which are further divided into ten chapters.

 

F.      Age as Deciding Factor for Juvenile Criminality: A Debatable Issue

The age of responsibility has been fixed at different levels in different Statutes, even in our country. The Census of India, 2011 defines children as persons under the age of 14 years, similarly most Government programs are targeted at children below the age of 14 years.  Under the Indian Majority Act, 1875²⁸ a person has not attainted majority until he or she is of eighteen years of age.  According to Article 21 (a) of the Indian Constitution all children between the ages of six to fourteen should be provided with free and compulsory education. Under Article 24 and 51-A(k) of the Constitution of India , the age of child has been kept 14 . Under Article 326 of the Constitution of India the age of 18 has been fixed to be registered as a voter .The child has been defined differently for different purposes under various laws. Section 82 of the Indian Penal Code, 1860, says that “nothing is an offence which is done by a child under the age of 7. Under Section 83, the age of criminal responsibility is raised to 12 years if the child has not attained the ability to understand the nature and consequences of his or her act. The Prohibition of Child Marriage Act, 2006 says that child means a person who if a male, has not completed 21 years of age and if a female has not completed 18 years of age.  One of the Condition for the solemnization of Marriage under Section 5 of the Hindu Marriage Act, 1955 is that the bridegroom must have completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage. Section 6 of the Probation of OffendersAct,1958, provides that when a person under 21 years of age is found guilty of having committed any offence punishable with imprisonment (but not with imprisonment for life), the court, by which the person is found guilty , is required not to sentence him to imprisonment unless it is satisfied that ,having regard to the circumstances of the case, including the nature of offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4 of the very same Act, and if, the Court passes any sentence of imprisonment qua the offender , it shall record its reasons for doing so.

 

Under Section 3 of the Probation of Offenders Act, 1958 the court is empowered to release an offender with an admonition for the offences referred to under the said section. However, under Section 4 of the 1958 Act, when a person is found guilty of an offence, which is not punishable with death or imprisonment for life, the court, which finds such a person guilty, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, can release him on probation of good conduct²⁹.

 

Other laws around child rights have variable definitions of minimum age. As per the Child Labour (Prohibition and Regulation) Act, 1986 – a child is defined as a person who has not completed 14 years of age.  The Plantation Labour Act 1951 has separate definitions for child, adolescent and adult. According to it ‘child' means a person who has not completed his fourteenth year. ‘Adolescent' means a person who has completed his fourteenth year but has not completed his eighteenth year where as ‘adult' means a person who has completed his eighteenth year. The Motor Transport Workers Act 1961, and the Beedi and Cigar Workers (Conditions of Employment) Act 1966, both define a child as a person who has not completed 14 years of age.

After analyzing the various legal provisions of age for defining the child, for the purpose of protections and realizing the rights of the children in India, it has become clear that in our country age is not uniform.

 

In order to fix the criminal responsibility, age of the child is significant. It is believed that children cannot be put in the same category as adults under the Criminal Justice system of the country and hence require development of special provisions for them.  The Hon’ble Supreme Court of India in Salil Bali v. Union of India and Another³⁰ has observed:

“the social policies should be evolved and applied to prevent juvenile delinquency, to establish a Juvenile Justice system for juveniles in conflict with law, to safeguard fundamental rights and to establish methods for social re-integration of young people who had suffered incarceration in prison or other corrective institutions. One of the other principles which was sought to be reiterated and adopted was that a juvenile should be dealt with for an offence in a manner, which is different from an adult.  It was stated that the age of criminal responsibility in legal systems that recognize the concept of the age of criminal responsibility for juveniles should not be fixed at too low an age level, keeping in mind the emotional, mental and intellectual maturity of children³¹.”

 

Children are qualitatively different from adults and for this reason, child and young crime are alarming.  As per the Beijing Rules, legal systems recognizing the concept of the age of criminal responsibility for juveniles, should not fix the beginning of that age at too low an age level.  Owing to culture, history, tradition and other factors this age varies across countries.  In U.S.A., the age to determine juvenility varies from state to state, while in most of the states it is 18 years, in few it is 16 or 17 years.  In U.K., a child between the ages of 10 to 18 years becomes criminally responsible for his actions.  He can be tried by the youth court or an adult court as per the severity of the offence committed.  In Canada, the Youth Criminal Justice Act governs the application of criminal and correctional law to those who are twelve years old or older, but younger than 18 at the time of committing the offence. Although trials take place in a Youth court, a youth may be awarded an adult sentence for certain offences and in certain circumstances³².  The apex court of our country i.e. Supreme Court has examined the Juvenile Justice System of other countries.  Countries like Brazil, Bangladesh, Afghanistan, Bhutan and Nepal also have the age of criminal responsibility at an age lower than 18 years, varying between age of 9 to 12 years. The juvenile justice system in the U.S. is governed by three important principles i.e. judicial waiver, Prosecution discretion and statutory legislation³³.  Thus it is clearly discernible that across the board, which includes the oldest living democracies of the United Kingdom and the U.S. as also, the societies under transition have in realization of their own requirement deviated from keeping the age of juvenility at 18.  The underlying principle that emerges from the legal structure of various nationalities is that, there cannot be a universally applicable age structure for exempting a person from criminal liability, particularly in cases of grave offences.  Even the international conventions recognize that keeping in mind the need to preserve the rights of victims, their families and the needs of the society, the reaction of the legal system may be propositional to the gravity of the offence.

 

At the present time juveniles are surpassing adult criminals committing offences unbelievable for their age.  Hue and cry has been raised from various quarters of the society for punishing them severely for heinous offences, the punishment even going to life imprisonment and death penalty according to the gravity of their offence.  In India the ethical, moral and legal problem was subject to vigorous and serious debate after the unfortunate and severely distressing gang rape of a 23 year old physiotherapist in Delhi by 6 depraved cruel men in moving bus on the cold fateful night of 16 December, 2012.  One of the rapists claimed to be even teen and a half years old at the time of the incident- a juvenile in the eyes of Indian law and the maximum punishment for him was three years.  He was the most brutal out of the six men yanking the hapless girl’s intestine out of her body by inserting a metal rod into her private parts even after the gang rape.  The questions were raised in the Indian subcontinent about whether he deserved any leniency at all?  A fast track court meted out death penalty for the four adult rapists, which has been confirmed by the Supreme Court, the 5^th later committed suicide in custody but the sixth and the most brutal so called juvenile was tried under the Juvenile Justice Act of 2000 and sentenced to three years confinement in a reformation home³⁴.  In September, 2013, a 12 year old girl was gang-raped by five of her friends in Assam.  The ages of the accused range between 15 and 16 years.  This is just one of the several cases which show that an increasing number of crimes are being committed by juveniles, especially between the ages of 15-18 and the crimes committed are not just petty in nature.  After the Delhi gang-rape case, a debate cropped up whether the age of a juvenile should be lowered from the present 18 years.  Millions were infuriated and demanded for a stricter punishment for the juvenile for the heinous crime committed by him- rape of a woman inflicting injuries which ultimately led to her death.  In such a scenario, the question arises whether juvenility is a justified reason for lenient punishments especially when they commit crimes of heinous nature?  Is merely age the correct basis to determine one’s state of mind?  Is it acceptable to let juveniles go scot-free for crimes committed by them only because of the benefit of falling younger by a couple of months?³⁵

 

Those who are in favour of a view that the age of juveniles should be kept at 18 only, gives the reason that younger mind is not so mature to understand the long lasting consequences of his act.  Such immature mind is easily influenced by his surroundings.  In the committal of the crimes like rape, theft, robbery, dacoity, media plays a greater role in influencing the innocent minds.  The risk-taking tendency is really high during adolescence.  It is discovered by neuroscientists that prefrontal lobe which is responsible for functions such as planning, reasoning, controlling the impulse etc., develop only after 25 years.  The psychological tests are highly subjective and arbitrary.  It is also argued by experts that some mature master-mind juveniles can crack the test and pass-off as immature while some susceptible immature juvenile minds can still be considered as mature.  According to a social worker Prof. Roop Rekha Verma, any law made out of public anger is always harmful. Making law keeping in view only one person and applying it on millions of people is not justiciable.  She further says that the crime cannot be stopped merely by making law.  A positive change is needed at social, economic, and psychological level.  In spite of life imprisonment and death sentence prescribed for murder under IPC, the crime rates have still not reduced.  All the above arguments seems justiciable if we consider the innocence part of the juveniles.  Now if we see the heinous crimes committed by juveniles in today’s fast changing mobi-lap society, the mind of such persons is developed to a greater extent.  They can easily access different sites and gain knowledge about almost everything.  The adults are not so acquainted with new technologies as the young generation.  Rape, theft banking frauds, computer hacking etc., are mostly committed by them.  Now their mind is not so undeveloped that they can be said to be not understanding their act and its consequences³⁶.  The argument against the reduction of the age of the juveniles in conflict with law has been based most importantly on the premise that having signed and satisfied the UN Convention, it would constitute a breach of the international commitments.  Critics of the amended JJ Act, have also been saying that with the percentage of crimes committed by juveniles out of the total reported crimes being less than 2% (in case of heinous crimes the story is different) there should not be any urgency to amend the law.  Along with this, it has been also argued that one or two incidents like the Delhi gang rape case (Nirbhaya) or Shakti Mill gang rape should not become the reason for drastic changes of the JJ Act.  The activists also hold that a child takes to crime because society has failed in its duty to take care of the child.  Sending 16-18 years old to jail will create even greater danger to society.  This is because a child going to jail at 16 and coming out at 26 or 36 will not be reformed.  He will not have a job and will probably turn to a life of crime³⁷.

 

The Nirbhaya after math witnessed wide and loud hue and cry from many quarters that the protection of juvenile from the regular criminal justice system must be done away with along with lowering the age of juvenility.  A senior counsel based in Chennai C.A. Sunderam said, “It cannot be that a person 17 years and 364 days old when he commits rape escapes severe punishment and had he committed one day late could be liable to life imprisonment.”  He added, “The Court could have such offenders examined by psychiatrists to know whether they are capable of understanding the enormity of the crime and are fully cognizant,” Senior lawyer Manoj Goel suggested, “A Judge must be allowed to decide whether a young offender has the maturity, awareness and consciousness of the crime being committed and then try such a person in the regular criminal courts under provisions³⁸.

 

As there were raging protests against the release of juvenile offender of the Nirbhaya case in December 2015, but the Supreme Court refused to put him back in the reform home lamenting that its hands were tied by law and there was no law to keep him confined any longer as he had already undergone the maximum term of three years on being found involved in the gruesome crime³⁹.

 

Criminal jurisprudence is not static but a dynamic concept.  The legislature has given serious thought to protect the rights of the victims and their family members.  In the overwhelming desire of protecting the rights of the juveniles, the rights of the victims subject to violent physical and sexual assault affecting the body, mind and psychology, in many cases irreversibly, cannot be overlooked.  It’s not a question of the effort being retributive or reformatory in nature.  The bigger issue is that law should be designed in a way that it should result in preventing crimes and maintaining the harmony in the society, in a way that no one feels threatened⁴⁰.

 

Law has to be ever changing, matching itself with the changing dimensions and needs of social life.  Since it is one of the major tools to deal with and suppress the rising criminality in the society it cannot shy away from its duty lethargically on the excuse of technicalities.  Everywhere in legal provisions there are exceptions, there are inherent and extra ordinary powers of the courts to do complete justice.  Nothing is sacrosanct that should come in the path of justice.  On the relationship between law and punishment Bentham said that if good laws were made there would be no need of a magic wand which had the power to annul them and if punishment was necessary it ought not to be remitted⁴¹.  In this world of transition when children are becoming mature earlier than the traditional times, physically and mentally, thanks to the injurious junk food and all types of vulgarity displayed on the internet and the media, they have become more experimental and daring.  Their psyhche is getting warped precipitated by various sinister stimuli present in their social surroundings further deteriorated by peer pressure and differential association.  Bentham held that it was the real punishment which did all the evil compared to the apparent punishment which did all the good.  We ought them as much as possible to diminish the former and to augment the latter.  In families, schools and society children should be made aware of basic knowledge of laws of their land, of offences and punishments, of the concepts that crime never pays and ‘Do unto others as you wish them to do to you.’  If a section of society is involved in rise in crime should it be absolved without being punished effectively on the ground of being under age?  The police as well as parents and teachers need to draw on the ‘Broken Windows Theory’ of criminology according to which small acts of deviance if ignored can escalate into more serious and major crimes.  The whole criminal justice system must ensure that crimes against women are no longer low risk even on behalf of physically immature though mentally mature actors of the civil society⁴².

 

Keeping in view the above philosophy, reasons, arguments and suggestions, finally the Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed by the Parliament.

 

G.     Legal Provisions and Judicial Attitude Relating to Juvenile Offenders

The new law relating to juveniles strikes a fine balance between the demands of the stakeholders asking for continued protection of rights of juveniles and the popular demand of citizens in the light of increasing incidence of heinous crimes by the juveniles.  The new version of the law is the result of an elaborate consultative process.  It provides that where during the inquiry, the child completes the age of eighteen years, the inquiry may be continued by the Board as if such person had continued to be a child⁴³.  Such person if not released on bail by the Board shall be placed in a place of safety during the process of inquiry⁴⁴.  If a person claims before a court that he is a child or was a child on the date of the commission of the offence, the court shall take the evidence and record a finding.  Such a claim by a person may be raised before any court and it shall be recognized at any stage, even after final disposal of the case⁴⁵. In G.C. Bhowmick v. The State of West Bengal⁴⁶, the main issue which came up for consideration was what was the relevant date for determination of age of child- whether it was the date when he was brought before court or when offence was committed.  It was held by the court that whether a person was a child or not had to be determined not with reference to the date of commission of the offence but with reference to the date when he was brought before the court. But later on in Pratap Singh v. State of Jharkhand,⁴⁷ the Supreme Court made it clear that the reckoning date for determination of age of juvenile offender is the date of offence and not the date when he is produced in court or competent authority.  As regards age of juvenile through birth certificates, school records and reports based on medical examination are the best and sole source of evidence for establishing the age, judicial verdicts have been fluctuating and unpredictable too.  In Santanu Mitra v. State of West Bengal, the entry of date of birth made in register of births and deaths was taken as reliable evidence by Supreme Court in computation of age of juvenile.⁴⁸  In Dayachand v. Sahib Singh⁴⁹, the court laid down that in case of a conflict between the school certificate and medical report regarding the age, the medical report shall prevail.  Ahmed Siddique was right when he said- “In Balbir Singh v. State of Rajasthan⁵⁰, the obvious approach based on common sense was adopted that the court must be extra cautions when determining age, giving opportunity to both parties to adduce evidence and to cross examine the opposite party. To this it may be added that the matter regarding age must be dealt with abundant caution in cases involving offences like rape and murder.  As it is upper limits prescribed for juvenile delinquents seems to be on the higher side keeping in view the escalating phenomenon of violence in the society.”

 

In Parag Bhati (Juvenile) through Legal Guardian-Mother-Smt. Rajni Bhati v. State of U.P. & Other⁵¹, the question which arose before the court for consideration was whether in the facts & circumstances of the case, when the date of birth mentioned in the matriculation certificate is doubtful, the ossification test can be the last resort to prove the juvenility of the accused?  To answer this question the court relied on the statutory provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000 (in short ‘the JJ Act).  Under Section 7-A of the JJ Act, the Court is enjoined to make an inquiry and take such evidence as may be necessary to determine the age of the person who claims to be a juvenile.  However, under Rule-12, the Juvenile Justice Board, is enjoined to take evidence by obtaining the matriculation certificate or the date of birth certificate given by school or by local body.  In case any of the above certificates are not available then medical opinion can be resorted to.  The Supreme Court further held that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act.  But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the Courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.  It is a settled position of law that if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by the Supreme Court in Abuzar Hossain⁵², an enquiry for determination of the age of the accused is permissible.

 

In Ankit Babu Sharma v. State of U.P ⁵³ the court held that “merely by declaration of being juvenile does not entitle juvenile to be released on bail as matter of right.  The way of commission of murder reflects his criminal mind and criminal association he is attached with, though a juvenile is 15 years of age but is accused of triple murder.  So, the rejection of bail application is proper”.

 

In  Arun Alias Bheem, Sukkey v. State of U.P.⁵⁴, during the pendency of the trial, new Act came into existence i.e. JJ Act, 2000.  As the accused was a minor at the time of the commission of offence, but not a juvenile, so has undergone the imprisonment for about 2 years and 4 months.  The Court held that it cannot be lost sight of the fact that the essence of JJ Act, 2000 is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society, instead of becoming hardened criminal in future.  Thus by reason of legal fiction, a person, although not a juvenile has to be treated to be one by the Board for the purpose of sentencing, which takes care of a situation that the person although not a juvenile but still would be treated as such under JJ Act, 2000 for the said limited purpose.  Thus, the appeal of the accused was partly allowed and the conviction was upheld but the sentence awarded by the court below was accordingly reduced to the period already undergone.

 

In  Prashant Mishra v. State of M.P.⁵⁵, Court discussed ,  what should be the parameters of granting the bail?  Sometimes the alleged offence may not be termed as heinous, however, what is relevant for the purpose of bail is the manner in which it was committed and social and domestic background of the juvenile as also his mental and psychological disposition and his proclivities.  However, simply denying the bail to the juvenile is not the way out.  His stay in the observation home should be utilized for the purpose of dead diction and reformation.  He needs to be properly counseled with a view to reclaim him as a useful member of the society. 

 

In  Mukarrab & Others v. State of U.P.⁵⁶ the questions which arose before the court were how to determine age in the absence of birth certificate?  Should documentary evidence be preferred over medical evidence?  Should the person whose age cannot be determined exactly, be given the benefit of doubt and be treated as a child?  To answer these questions the court held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining age of a person, but it is not of a conclusive and incontrovertible nature and it is subject to a margin of error.  Medical evidence also has to be considered along with other circumstances.  Age determination is essential to find out whether or not the person claiming to be a child is below the cut-off age prescribed for application of the JJ Act.  The issue of age determination is of utmost importance as very few children subjected to the provisions of the JJ Act have a birth certificate.  As juveniles in conflict with law usually do not have any documentary evidence, age determination, cannot be easily ascertained, specially in borderline cases.  Medical examination leaves a margin of about 2 years on either side even if ossification test of multiple joints is conducted.  While referring to Abuzar Hossain v. State of West Bengal⁵⁷, the court held that a claim of juvenility may be raised at any stage even after the final disposal of the case.  It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue.

 

In Sri Ganesh v. State of Tamil Nadu & another⁵⁸, while putting the emphasis on Ashwani K. Saxena v. State of M.P⁵⁹, the SC held that the trial court took into account the documentary evidence as contemplated in the statutory provisions and returned a finding that the accused was a juvenile in conflict with law, whereas the Madras HC could not find such conclusion to be vitiated on any ground.  In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the accused.  Further, if the allegations of the prosecution are that the offence u/s 376 IPC was committed on more than one occasion, in order to see whether the accused was juvenile or not, it is enough to see if he was a juvenile on the date when the last of such incidents had occurred.

 

Recently attention has been drawn towards one more vital fact and it is the birth proof of juveniles.  The Delhi High Court has ordered linking of birth registration system with the juvenile justice administration to ensure that they get permanent birth certificates.  The order once implemented could ensure that age inquiries conducted by Juvenile Justice Boards and Child Welfare Committees were treated as birth records.  This would have twin benefits.  Firstly the police would not put children in jails meant for adults and secondly repeat offenders would not be able to take advantage of the loophole in the J.J. Act that prescribe a fresh inquiry every time an accused claimed to be a minor.  High Court converted a letter by Advocate Anant Asthana in a PIL which cited information received under RTI showing that in Central Jail Nos. 7, 114 persons were shifted out to observation homes after found to be under age.  It was alleged that police had failed to find out the age of the accused at the time of arrest and in many cases it had deliberately ignored the evidence and acted only after age inquiry was conducted and it was found ultimately that the accused persons were juveniles.  The Delhi Legal Services Authority too said that once the police has access to age declaration in their data base they could verify if an arrested person was a major or minor removing the current large scale reliance on bone ossification medical tests which in any case had inbuilt ambiguity of two years⁶⁰.

 

The JJ Act of 2015 has the provisions for bail also to a person who is apparently a child.  Such person can be released on bail provided there does not appear a reasonable ground for believing that the release is likely to bring that person into association with any known criminal or expose him to moral, physical or psychological danger.  If such person is not released on bail then he is to be sent to an observation home or a place of safety⁶¹.  Juvenile offenders are entitled to the same set of constitutional guarantees that an adult is entitled to such as fair trial.  But very often adult offenders are able to secure bail faster than a juvenile.  Merely because the juvenile is not punished it can in no way take away his/her constitutional guarantee of liberty the only difference is that unlike adult offenders the State is required to protect them and ultimately rehabilitate them.  But protection cannot become custody⁶².  When a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry which is to be completed within four months and further a preliminary assessment in case of heinous offences shall be disposed of by the Board within three months. Cases of petty offences shall be disposed of through summary proceedings.  Inquiry of serious offences shall be disposed of by trial in summons cases.  Inquiry of heinous offences differs according to the age of the child which has been categorized into two, one is the child below the age of sixteen years and second, the child above the age of sixteen years^63.  It is totally misplaced to say that categorization of offences into heinous and non-heinous is not proper.  The criminal around the world is categorized on this basis, and accordingly provision for graded punishment depending on the seriousness of the offence is an established phenomenon, which is recognized under the J.J. Act also.  Further, the analysis of the crime committed by juveniles, when it comes to heinous offences, particularly in the context of the violent crimes against women is certainly high.  That’s why the juvenile criminality much depends upon the type of crime committed⁶⁴.  In case of heinous offence, the preliminary assessment is conducted by the Board with the purpose to find out the child’s mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence⁶⁵.  Where a Board is satisfied on inquiry that a child, though has committed an offence but is below the age of sixteen years, it can pass any of the order like allow the child to go home after advice or direct the child to participate in group counselling; order the child to perform community service; direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person; direct the child to be sent to a special home for providing reformative services including education, skill development, counselling, behavior modification therapy and psychiatric support.  In addition the Board may pass orders like to attend school or a vocational training centre or a therapeutic centre or prohibit the child from visiting, frequenting or appearing at a specified place or to undergo a de-addiction programme⁶⁶.  The Board may order the transfer of the trial of the case to the children’s Court⁶⁷ if after preliminary assessment it is of the view that there is need for trial of the said child as an adult who is above the age of sixteen years and has committed a heinous offence⁶⁸. The children’s court may further decide whether there is a need for such trial or not.  The 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.  The Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty one years and thereafter shall be transferred to a jail provided that the reformative services including educational services, skill development, alternative therapy such as counselling, behavour modification therapy and psychiatric support shall be provided to the child during the period of his stay in the place of safety.  The duty of the Court does not end here.  It has to ensure that there is a periodic follow up report every year by the probation officer or the district child protection unit or social workers as required, to evaluate the progress of the child in the place of safety and to ensure that there is no ill treatment to the child in any form.⁶⁹  As regards child who has attained age of twenty one years and yet to complete prescribed term of stay in place of safety the children’s court shall after getting the evaluation report whether the child has undergone reformative changes and can be now a contributing member of the society may decide to release the child on such conditions as it deems fit which includes appointment of a monitoring authority for the remainder of the prescribed term of stay or decide that the child shall complete the remainder of his term in a jail provided that each State Government shall maintain a list of monitoring authorities and monitoring procedure as may be prescribed.⁷⁰  An important provision of this Act is that no child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release for any such offence either under the provisions of this Act or under the provisions of the Indian Penal Code or any other law for the time being in force.⁷¹

 

As in this paper the emphasis is categorically laid on the provisions relating to children in conflict with law, but the J.J. Act, 2015 also provides the procedure in relation to children in need of care and protection.  The Supreme Court “while passing an order on a PIL has expanded the definition of the term “Child in need of care and protection” under the J.J. Act, 2015, to include child victims of sexual abuse, sexual assault and sexual harassment.  A Bench headed by Justice Madan B. Lokur said, “It would be unfortunate if certain categories of children are left out of the definition, even though they need as much care and protection.  Beneficial legislations of the kind that we are dealing with demand an expansive view to be taken.”  The PIL was based on a 2007 media report highlighting alleged sexual exploitation of children in orphanages at Mahabalipuran in Tamil Nadu⁷².  The POCSO Act of 2012 did not provide any definition of “children in need of care and protection” though “no one can deny that a child victim of sexual abuse or sexual assault or sexual harassment is a child in need of care and protection, the Bench, also comprising Justice Deepak Gupta said. Besides this the J.J. Act, 2015, gives in detail the procedure for the adoption⁷³ of orphan, abandoned and surrendered children, provides for rehabilitation and social re-integration of children⁷⁴ and provides the punishment for the commission of offences against children.⁷⁵

 

Although the lawmakers did not have problems with the other issues relating to children, they were divided over the issue of trying children between 16-18 years of age involved in heinous crimes as adults.  However, there is no scientific system of determining the age of children and in certain cases it is done by looking at the child.  The age criterion of a juvenile ignited a debate in different quarters.  Debate is no doubt the beauty of the democracy.  In a democratic society if any concrete conclusions are taken place after debate then the decisions could be good instrument and could be termed as just, fair and reasonable for the govern as well as to the government.  Finally, the debate has ultimately led to a decision in the form of the Juvenile Justice (Care and Protection of Children) Act, 2015, which has compelled the society to change its mindset.  Hence, social change is an inevitable phenomenon of every society because social conditions never remain static.  Social change whether it come through legislation or through judicial interpretation indicates the change in accepted modes of life or perhaps a better life.  The changing patterns do have an impact on the laws and life of a given society, while at same time preserving balance between individual rights and duties.  Thus social justice provides a potential force for attainment of a progressive social change where it could be said that our judiciary and parliament are living in realization of the social changes occurring in the society. 

 

H.     Conclusion and suggestions

The new Juvenile law is not at all an enemy of child rights, there are detailed provisions for the children in conflict with law as well as for children in need of care and protection.  The Act of 2015 has novel positive features for care, correction and rehabilitation of children which were missing in the previous Acts.  Just as parents cannot be lenient on all types of misbehavior of their children for the latter’s betterment, State too as Parens Patriaes cannot take a non interventionist approach towards the misgivings and mischief of their most important segment.  It has an obligation to do all reprimand, punish, correct, rehabilitate and reintegrate the prodigal children back into the social mainstream for they are its tangible future, wealth and strength.  And the State has done its job by enacting the Juvenile Justice (Care and Protection of Children) Act, 2015 which maintains the balance between the demand of the society (keeping in view the victim and her family’s grief) and the corrective measures for juvenile offenders.  The Constitution of India through several provisions grants important rights to children of the country.  It also lays down duties for the State to ensure that their needs are met and rights safeguarded.  While Article 15 (3) provides for special provisions to be made for children by the State.  Article 39 (e) states that the State shall direct its policy toward ensuring that the tender age of children is not abused.  Moreover, opportunities and facilities are to be provided to children so that they may develop in a healthy manner, in conditions of dignity and freedom and protected against exploitation, moral and material abandonment⁷⁶.  The UN Convention on the Rights of the Child requires States to recognize the right of every child accused of a crime to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.  India, being a signatory to this and those other International Conventions, has taken into consideration the norms set in these Conventions while framing the law for juveniles.  To some extent it can be said that the J.J. Act, 2015, reflects the intent of the people of India, expressed through the legislature, who have in their own wisdom come out with the wonderful legislation.  It also cannot be doubted that the law is restorative and not retributive, providing for rehabilitation and re-integration of children in conflict with law into mainstream society.  But here it needs to be emphasized that there can never be a last word in wisdom, as the wisdom in legislative enactments is dynamic in nature, the dynamism of which depends upon the changing demands of the society, dictated by new fact and requirements in the social milieu.

 

Glaring legal loopholes (which used to exist in earlier laws) cannot be permitted to be used by perpetrators of crime to their advantage and the concern of the law makers and the society as a whole should also be to ensure that on account of addition of restrictive deterrent inputs in the J.J. Act, 2015, the prospects of repetition of violent crimes are taken care of.  At the same time, the message that may be sent to other prospective offenders that there is no legal impediment in the commission of such crimes which has the effect of shaking the moral and social foundations of an orderly society also needs to be curbed, so that no one may feel incentivized to commit such violent crimes.  Moreover, its not about re-criminalization of the juvenile delinquency rather it should be seen as an effort to rectify a serious error in the use of wisdom by the legislature. If it was in the wisdom of the legislature to enact in the JJ Act in 2000, it’s the wisdom of the same Parliament to amend the concerned law and to evolve the ways and means to curb the prospects of commission of offences by juveniles⁷⁷.  Children of today are the citizen of tomorrow.  The welfare of the entire community depends on the health and welfare of child.  The Juvenile Justice System is a major integral component of child welfare.  It has significant role to play as far as the problem of juvenile delinquency is concerned.  Children should be allowed and provided opportunity to grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with skills and activations needed by the society.  Equal opportunities for development to all children during the period of growth should be provided for reducing inequality and ensuring social justice, which in turn would serve as an effective tool to curb delinquency in juveniles.  The earlier and the present juvenile law require the State to provide education, skill development counseling, behavior modification therapy and psychiatric support for inmates.  It is possible if the condition in juvenile homes across India is improved and the state has to acquire the expertise to undertake such activities or has to display the commitment to reform juveniles.  The enactment of the law was the easier part.  If the promise of reformatory, rather than retributive, punishment is to be met, central and state governments must address the gaping lacunae in the implementation of laws.  The law is dynamic and it should change according to the changing needs of the society but the responsibility of making a good and law abiding citizen lies on society only.  These budding juveniles need a right direction and guidance otherwise even the stringent punishment would not be able to prevent them from committing heinous crimes.

 

The nation must strive to provide education, health-care, sanitation and housing to every child.  It is not only the law which can reform the juvenile in conflict with law, the juvenile system as a whole needs to be reformed.  Families must instill moral values, core social institutions need to be strengthened and immediate intervention of child offenders needs to be undertaken.  Another strategy must promote delinquency prevention, and identify and control the group of serious, violent and chronic juvenile offenders.  The children are one of the important assets of nation.  The future of the country is hidden in its children.  No country can progress without over looking their interest.  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.  Many errors and faults of the society can be ignored but the worst crime is abandoning the children, neglecting the fountain of life.  Many of the things we need can wait.  The child cannot wait.  Right now is the time his bones are being formed.  His blood is being made, and his senses are being developed.

 

An essential reform is needed and education is the indirect means, the less the parents are capable of discharging their duty, the more necessary it is that Government should make up for their deficiencies.  Not only should attention be given to orphans left in indigence but also to children whose parents are not of a character to be trusted to those who have already committed some offence and to those who, being destitute of protectors and resources are a prey to all the reductions of want.  These classes so neglected in the greatest number of States become in consequence the pupils of crime.  To deter offences by children in future they should be send to caring residential school ensuring food, education and protection but for heinous offences they should not be let off in society untreated, unchanged and unreformed.  If the State is declared parens patriaes it should do all via laws and implementation to neutralize the social and economic forces that lead tender minds and bodies towards delinquency inclusive of focusing attention on the individuals who shows potentiality for antisocial behaviours.  But this latter part cannot be fulfilled without the equal and honest co-operation of the community, schools and family.  Teachers should be always on the lookout for early signs of delinquency in children and for this they should be trained to do so.  Next each school should have child guidance clinic in which able psychologists and sociologist should identify the problem in children and then counsel them.  Religious and moral trainings in the schools, homes and community are a good preventive also⁷⁸. Along with this the juvenile homes are required to be made a better place with trained staff, as the juveniles are to be kept out of jails and the Supreme Court⁷⁹ has also strongly condemned the detention of children in jail observing that the vicious atmosphere of the jail had a highly injurious effect on the mind of the child and that if the State Government had not got sufficient accommodation in its juvenile homes, he should be released on bail instead of being incarcerated in jail.

 

It is also to be kept in mind that in the sweeping compulsion to protect the rights of the juvenile in conflict with law, the needs of the society and the victims and their family to be protected and given justice cannot be lost sight of.  It may also be the case that the victim may also be a child directly facing the brunt of the violent act or he may be an orphaned child, as a result of the offence committed by the juvenile.  Laws in the ultimate analysis should lead to an organized social order, but not as a tool to protect the conscious perpetrators of crime, who beforehand have planned their action in consideration of the legal protection or discover the advantage at the cost of the victim, who also has the fundamental right of dignified life and personal liberty.⁸⁰

 

In view of the international instruments dealing with juvenile, the law on the subject in various countries, scheme of the law relating to juvenile offenders in our country and growing concern for increasing incidents of heinous crimes committed by juveniles, the present law relating to juvenile can be said to be expedient and fully justified.  The rights of women and girls against heinous crimes are as important as the rights of juveniles of care, protection and rehabilitation for the broader justice to society.  In course of time, the development of science and technology has affected the degree of maturity of juveniles also and a legal deterrence for the protection of other members of society from heinous crimes committed by juveniles has become inevitable.  By treating juveniles between age group of 16 to 18 years as adults for heinous crimes, the present law establishes harmony between two conflicting interests – the interests of the juveniles and the interests of the victims of heinous crimes committed by juveniles.  Thus it meets the needs of the society.⁸¹

 

The views expressed by Abraham Lincoln are relevant to be quoted at the end:

 

“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 out depends on him.  He is going to move in and take over your churches, schools, universities and corporations.  The fate of humanity is in his hands.”⁸²

 

REFERENCE:

1.       S.E Morrision, Juvenile Delinquency and Justice System, 1991, pp.88-89 Ashish Publishing House. New Delhi.

2.       Renu Sharma, “Legal-Frame work for Children in Conflict with the Law in India”. The Indian Journal of Social work: Tata Institute of Social Sciences., 2010, pp.329-350

3.       Shipra Lavania, Juvenile Delinquency, 1993, pp.1-14.Rawat publications. New Delhi.

4.       N.V. Paranjape, Criminology and Penology with Victimology, 2012, p.572, Central Law Publications, Allahabad

5.       M.Ponnian, Criminology and Penology, 2003, p. 69, Pioneer Books, Delhi

6.       Id., at 68.

7.       Supra note 4 at 570

8.       Ahmad Siddique, Criminology,  Eastern Book Company, Lucknow, 2007, p. 234.

9.       Supra note 4 at 571.

10.     Madras Children Act, 1920 (being the first one), followed by Bengal and Bombay in 1922 and 1924 respectively. others were the Punjab Borstal Act, 1926, Travancore Children Act, 1945, Cochin Children Act, 1946, Mysore Children Act, 1943, Uttar-Pradesh Children Act, 1951, Haryana Children Act, 1961 etc.

11.     Hiralal Mallick V. State of Bihar (1977) 4 SCC 44.

12.     Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 (the Havana Rules), the Hague convention on Protection of Children and Co-operation in respect of inter Country Adoption 1993, the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Economic and Social Council guidelines for Action on Children in the Criminal Justice System.

13.     Section 82, IPC, 1860. Doli incapx is a latin term that means “incapable of doing harm”. This term has been used to describe a presumption of innocence for children in criminal law in most countries. The basis of this presumption lies in the theory of criminal responsibility. Theory has been built upon a concept that a person should be held criminally responsible only for acts he intends to commit.

14.     Section 83, IPC, 1860.

15.     Uma Tripathi, “The Criminal Responsibility of the Under Age in India: An Analytical Study in Light of the Amended Juvenile Law”, Cr. L.J. Journal Section, Nov. 2016, p. 112.

16.     Sec. 2 (K), The Juvenile Justice (Care and Protection of Children) Act, 2000.

17.     Sheela Barse v. Secy, Children’s Aid Society AIR 1987 SC 656.

18.     Sec. 2 (35), The Juvenile Justice (Care and Protection of Children) Act, 2015.

19.     Id., Sec. 2(12).

20.     Id., Sec. 2(13).

21.     Id.Sec. 2(14).

22.     Id. Sec. 2(1).

23.     Id.Sec. 2(42).

24.     Id.Sec. 2(60).

25.     Id.Sec. 2(45).

26.     Id.Sec. 2(54).

27.     Id.Sec. 2(33).

28.     Section 3, Indian Majority Act, 1875

29.     Kush Kalra, “Does the age of Juveniles in India Needs Reconsideration?” The Law, Vol. V, Issue :XII, Dec 2017, p.20

30.     2013 Cri. L.J. 4597

31.     Ibid.

32.     Prof. (Dr.) B. Kumar, Kumari Swati, “Juvenile Justice, Human Rights and Contemporary Issues, Challenges and Opportunities in a Democratic Society”, Indian Bar Review, Vol-XLIII(2), 2016, p. 28.

33.     Dr. Subramanian Swami v. Raju through Member Juvenile Justice Board, AIR 2014 SC 1649.

34.     Supra note 15 at 110-111.

35.     Supra note 32 at 29.

36.     Kalindri, “Analysis of the Juvenile Justice Bill 2015”, Civil and Military Law Journal, Vol-52, 2016, No 1, p. 56.

37.     Abantika Ghose, Indian Express, 15^th May, 2015, p.5.

38.     The Times of India, Jan 6, 2013, pp. 5, 6.

39.     The Times of India, Dec 22, 2015, p.1.

40.     Justice Raghavendra Kumar, “The Case for Reduction of the Age of Juvenility”, Criminal Law Journal., Aug 2015, Journal Section, p. 69.

41.     Upendra Baxi, The Theory of Legislation, N.M. Tripathi Pvt. Ltd. 2009, p. 228.

42.     Supra note 15 at 116.

43.     Section 5, The Juvenile Justice (Care and Protection of Children) Act, 2015.

44.     Id., Sec. 6.

45.     Id., Sec. 9.

46.     1977 Cri. L.J. 1501

47.     AIR 2005 Sc 2731

48.     AIR 1999 SC 1587.

49.     1991 Cri. L.J. 1370 (SC)

50.     1994 Cri. L.J. 2750.

51.     2016 Cri. L.J. 2928 (SC).

52.     AIR 2013 SC 1020

53.     2016 Cri. L.J. (NOC) 40 (All).

54.     2016 Cri. L.J. 3057 (All).

55.     2016 Cri. L.J. 2294 (MP).

56.     (2017) 2 SCC 210.

57.     (2012) 10 SCC 489

58.     (2017) 3 SCC 280.

59.     (2010) 9 SCC 750

60.     Supra note 15 at 119.

61.     Section 12, the J.J. Act, 2015.

62.     How Juveniles are trapped in Criminal Justice System, The Times of India, July 29, 2016, p. 5.

63.     Section 14, the J.J. Act, 2015.

64.     Supra note 40 at 69.

65.     Section 15, the J.J. Act, 2015.

66.     Id., Sec.18.

67.     Id., Sec. 2(20) defines Children’s Court as 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 and where such courts not existing, the Court of Sessions.

68.     Id., Sec.18 (3).

69.     Id., Sec. 19.

70.     Id., Sec. 20.

71.     Id., Sec. 21.

72.     The Tribune, May 31, 2017, p.1.

73.     Chapter VIII (Sec 56 to 73).

74.     Chapter VII (Sec 39 to 55).

75.     Chapter IX (Sec 74 to 89).

76.     Article 39 (f), The Constitution of India.

77.     Supra note 40 at 69.

78.     Supra note 15 at 120.

79.     1986 Cri. L.J. 1736 (SC).

80.     Supra note 40 at 70, 71.

81.     Dr. Anil Kumar Dubey, “Criminal Liability of Juvenile in India: a Critical Analysis”, Cri. L.J., Journal Section, May 2016, Vol-122, p. 48.

82.     Supra note 32, p. 32.

 

 

Received on 20.06.2018       Modified on 14.08.2018

Accepted on 05.09.2018      © A&V Publication all right reserved