JUVENILE DELINQUENCY AND JUVENILE JUSTICE IN INDIA: AN OVERVIEW

Republished, initially published on 11th February 2022

INTRODUCTION

Each generation paves the way for a new and improved society. They contribute to the community’s development to make it more comfortable for generations to come,  and this cycle goes on. A child is considered a blessing or a gift of god. They are the most critical natural asset that one can have. As a society, we must care for them. We are liable to provide them with a healthy environment, socio-economic security, proper education, and other essentials in order to nurture them so that they can grow into contributing youth and one day take care and provide for children of their own.

But in some cases, we can see that a child can turn against his\ her society. Children are expected to be obedient, respectful towards others, and have good virtues, but that is not always the case. The reason children turn against society is primarily due to the lack of care, healthy socio-economic environment, education, etc. that are to be provided by the caregivers of the children. Because of this, children grow to be unfit for survival in society; they become unfit in terms of physical and mental capability. This often pushes them to go through paths that are both dangerous and unacceptable society. These children become delinquents or children in conflict with law. Hence the children or the youth considered to be the backbone of society becomes the reason for its downfall.   

The Black’s Law Dictionary defines the terms Delinquent and Delinquent Child. According to the dictionary a Delinquent[1] is “He who has been guilty of some crime, offense, or failure of duty”, and a Delinquent Child[2] is “An infant of not more than specified age, who has violated any law or who is incorrigible”. A juvenile is defined in the Juvenile Justice (Care and Protection of Children) Act, 2015, under Section 2(35), which goes on to say “juvenile means a child below the age of eighteen years”. This definition is given in accordance with the criminal proceedings carried out in today’s circumstances. So when a Juvenile commits or takes part in the commission of an illegal activity, they are termed as Juvenile Delinquents. That is, they deviate from society’s paths, and their actions prove to be dangerous for them, their loved ones, and society. The acts of Delinquency that they can commit may be petty offences or heinous crimes. Once offences are committed, like any other in the society who has committed an offence, they are also subjected to reforms. These reforms can be in the form of punishments or, as we see in most cases are subjected to rehabilitation so that they can be reintegrated into society to restart their lives by following the paths of the society. They become delinquents because of the way they are brought up, and due to the environment around them, no child is born a delinquent. And so the justice system is bound to provide them with an opportunity to understand the nature of consequences of the acts that they have done, and in turn the justice system is bound to understand the mental, physical and social circumstances under which the juvenile had to do such an act against the society. This is where juvenile justice comes into the picture.  

Juvenile justice is that part of criminal law applicable to persons who are not old enough to be held responsible for criminal acts to protect child rights. There are enacted juvenile codes in countries to deal with cases relating to juvenile Delinquency. Child rights are a specific form of Human rights. According to Article 1 of the Universal Declaration on Human Rights[3]“All human beings are born free and equal in dignity and rights” is the basic principle for child rights. Human rights are inherent to all human beings, regardless of their race, sex, nationality, ethnicity, the language they speak, their religion, or any other status. Some examples of Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights without any discrimination, which applies to adults and children. Child Rights are those Human Rights that apply to all Human beings under the age 18 years. Child rights were recognized initially after World War I, with the adoption of the Declaration of Geneva, in 1924. But the Declaration of children’s rights, 1959 paved the way for the recognition and appreciation of Child Rights on a global scale. Later in the year 1989 the United Nations Conventions on the Right of Child (UNCRC)[4] was adopted. The Convention contained the profound idea that children are not mere objects in the parents’ care or adults in training for whom decisions are made. But Rather, they are human beings and individuals with their rights. The Convention says childhood is separate from adulthood and lasts until 18 years. These 18 years are a unique, protected time for the child, in which they must be allowed to grow, learn, play, develop and flourish with dignity. The Convention sets out the rights to be realized for children to develop to their full potential. It offers the child’s vision as an individual, a member of a family and community, with rights and responsibilities that may be appropriate to their age and stage of development. By recognizing children’s rights in this way, the Convention firmly focuses on the whole child. It identifies the fundamental human dignity of all children and the urgency of ensuring their well-being and development. It also clarifies the idea that essential quality of life should be the right of all children, rather than a privilege enjoyed by a few. As human rights, children’s rights are constituted by fundamental guarantees and basic human rights, and we can broadly classify them into four. The first one is the Right to Survival which includes the Right to be born, the Right to minimum standards of food, shelter and clothing, the Right to live with dignity, Right to health care, to safe drinking water, nutritious food, a clean and safe environment, and information to help them stay healthy. Right to Protection which includes Right to be protected from all sorts of violence, Right to be protected from neglect, Right to be protected from physical and sexual abuse, Right to be protected from dangerous drugs. The third one is the Right to Participation which includes Right to freedom of opinion, Right to freedom of expression, Right to freedom of association, Right to information, Right to participate in any decision making that involves him/her directly or indirectly. The fourth one is Right to Development which includes Right to education, Right to learn, Right to relax and play, Right to all forms of development – emotional, mental and physical.

In India today we have the Juvenile Justice (Care and Protection of Children) Act, 2015[5]. When we look at the history of laws against juvenile Delinquency, The Apprentices Act, 1850 was the first of its kind talking about punishments for delinquents that are children, that is, those who are under the age of 15 for the commission of petty offences. Then came the Reformatory Schools Act, 1897 which sent children under the age of 15, who were sentenced for imprisonment, to reformatory schools instead of sending them to prison. The Madras Act started a new trend of addressing criminal cases regarding children in separate juvenile courts, which in 1920 was followed by many other States. In the year 1960, the Children’s Act, 1960 came into force. The Act was the first to introduce a sex- discriminatory definition for child and give two separate adjudicatory bodies for children in conflict with law and children in need of care and protection, respectively. The Act was subjected to amendments and later came the Juvenile Justice Act, 1986, applicable for the whole of India. It continued to follow the same sex discriminatory definition of child and two separate adjudicatory bodies for children in conflict with law and children in need of care and protection. Further, it changed the term of ‘child’ to ‘juvenile’ and also provided provisions for the establishment of advisory board, creation of a Children’s Fund etc.   

The Juvenile Justice (Care and Protection of Children) Act, 2000, repealed the Juvenile Justice Act, 1986. The Act was considered to be extremely progressive in nature. The Act was the result of the sincere effort on the part of the legislature to incorporate the principles of the United Nations like the Convention on the Rights of the Child (UNCRC)[6], The Beijing Rules[7], United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990 Rules)[8] etc. the reason for which this Act was considered to be progressive in nature was due to the fact that the scheme of the Act is rehabilitation rather than an adversarial approach, which the courts generally used. Here we can say that with the enactment of the new Act, the lawmakers wanted to incorporate the side of Human Rights as well. The Act goes on to define a juvenile saying that it is a person under the age of 18 years. It advocates for a justice system different from that of the criminal justice system used for adults. It mentions about the composition of Juvenile Justice Board and their functions. As mentioned before, the main aim of the Act is to inculcate the concepts of rehabilitation and re-integration. The Act was later subjected to amendments in 2006 and 2010. In the wake of the Delhi Gang Rape case (16th December 2012), which shook the nation to its core, many questions were put forth regarding to the situation when a juvenile commits a heinous crime. According to the law, they could not be tried for a case of rape or murder or any horrific crimes as adults. But in that case one of the accused was a minor, who reportedly caused gruesome harm to the victim. This question led to the formation of the Juvenile Justice (Care and Protection of Children) Bill, 2014, which the parliament passed, and finally, the Juvenile Justice (Care and Protection of Children) Act, 2015 came into force, repealing the Act of 2000.

The major purpose of the Juvenile Justice (Care and Protection of Children) Act, 2015 was to reduce the number of crimes committed by Juveniles in India, especially those involved in the age group of 16- 18 years. The main difference that we can see between the Juvenile Justice (Care and Protection of Children) Act, 2000 and that of the Juvenile Justice (Care and Protection of Children) Act, 2015 is that in the recent Act there is a change in the treatment of juveniles in some cases. According to the Act, when a juvenile (here between the age of 16-18 years) commits a heinous offence, he may be tried as an adult after the preliminary assessment before the Juvenile Justice Board. This is in the case where the juvenile has the capability to understand the seriousness of their action and its consequences on society as a whole. Further, the Act provides for many other changes and new provisions compared to the Act of 2000. The Act gives many important definitions. Section 2 of the Act deals with the definitions, it defines a child as a person who has not attained the age of 18 (Section 2(12)) and goes on to further divide them into two categories, that is, a child in conflict with law (Section 2(13)) and a child in need of Care and Protection (Section 2(14)). The Act provides a detailed and extended definition for a child in need of care and protection. Chapter II of the Act talks about various principles that shall be applied, for example, presumption of innocence, principle of safety, principle of fresh start etc. A case law that deals with Principle of Fresh Start is Union of India (UOI) and Ors. V. Ramesh Bishnoi[9], in this case, the Respondent was denied a job opportunity on account of the case that was brought up against him when he was a juvenile (acquitted). The Supreme Court held that he has the right to get the job, especially when he is eligible for the same, even if he was convicted according to the principle of fresh start (Section 3(xiiv)). The Act has also clearly distinguished the different kinds of offences by categorising them as petty, serious and heinous offences. In case of a heinous offence that has been alleged to have committed by a child who is between the age of 16- 18 years, a preliminary assessment concerning his mental and physical capacity to commit such offence will be conducted, and that the child can be tried as an adult, if it is determined by the Board that they had the mental and physical capability to do the same (Section 14 Section 15 and section 18 of the Act).

Chapter V and Chapter VI talk about the Children’s Welfare Committee and focus on the committee’s procedural aspect and the Juvenile Justice Board, respectively. It says that Children’s Welfare Committee is no longer the final authority in deciding cases of children in need of care and protection. It further elucidates that The District Magistrate shall be the grievance redressal authority for the Children’s Welfare Committee and anybody connected with the child may file a petition before the District Magistrate, who shall consider and pass appropriate orders (Section 27(10)). The other significant feature that has been brought about in the Juvenile Justice (Care and Protection of Children) Act, 2015, is that it provides with a separate Chapter for Adoption (Chapter VIII). This chapter talks about a number of adoption procedures for the orphaned, abandoned and surrendered children. It establishes a statutory status to the Child Adoption Resources Authority (Section 60). It also gives Provision for considering the eligibility of adoptive parents, which would help in identifying whether or not a person taking a child in adoption is suitable for the child’s growth and development. A case law that deals with the aspect of adoption is Union of India (UOI) and Ors V. Ankur Gupta and Ors[10], this case dealt with the concept of adoption between countries and the parents here were catogarised as “OCI living in India”. The Act also proposes for several rehabilitation and social integration measures for institutional and non-institutional children. Another important provision for Children’s Court has been included in this Act, which was absent in the Act of 2000 (Section 2(20)).

Even though the Act was implemented as the need of the hour, the Act cannot be considered to be free from criticisms. It faced a massive uproar, especially regarding the treatment of juveniles as adults in some cases. This is due to the fact that this provision clashes with the provisions of the United Nations Convention on the Rights of Children. The Convention on the Rights of Children requires every individual below the age of 18 years to be treated as a ‘child’. The Juvenile Justice Acts that were brought about throughout many years were in accordance to the United Nations Convention on the Rights of Children and many of the international conventions and hence going against it would be like going against the whole purpose of the enactment. The arguments that were raised had their basis on this regard.

CONCLUSION

As the years pass by, we can see that there has been an increase in the number of cases pertaining to Juvenile Delinquency and Juvenile Crimes in India. Juvenile Delinquency, like any other crime can be curbed from the initial stage itself, if we can identify them. Prevention is always better than cure, so if children are brought up in a way that they can see the rights and wrongs in the society, we can control these kinds of behavior to a certain extend. But no human being is perfect, they can make mistakes while raising a child or during the growth of the child, exposing them to situations that they are not supposed to be a part of. And in order to curb that there are various legislations that are brought about so that the law can take the matters at hand and provide a solution for the society.

We have seen the evolution of the legislations that were brought about for the children in conflict with law and children in need of care and protection. The whole concept of Human Rights has also been embedded in the legislation considering the Children’s Rights as the core for the Act. These Acts are enacted for the benefit of the children, to help them follow the right path. At the outset, we can conclude that the Juvenile Justice (Care and Protection of Children) Act, 2015 is a credible enactment with more enhanced and effective provisions. Every new law that is implemented is for the benefit and growth of the society. And so it is our duty to follow the rules and regulations of the land in order to make progress as mankind. 

[1] BLACK’S LAW DICTIONARY, REVISED 4^TH EDITION

[2] BLACK’S LAW DICTIONARY, REVISED 4^TH EDITION

[3] Created on 10 December 1948

[4] Signed on 30 November 1989

[5] ACT NO. 2 OF 2016

[6] Signed on 30 November 1989

[7] Adopted by General Assembly resolution 40/33 of 29 November 1985

[8] Adopted by General Assembly resolution 45/113 of 14 December 1990

[9] 2020(1)SCT229(SC)

[10] AIR2019SC1316