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The Juvenile Justice (Care and Protection of Children) Act, 2015 received parliamentary approval on 22 December, 2015, replacing the pre-existing Juvenile Justice (Care and Protection of Children) Act, 2000. There was a great need to have an efficient juvenile justice system to control the growing crime rate in India.
The treatment of children ought to be different from that of adults. They should be given more room for improvement and reformation. Therefore, arises the need for a separate justice system for children in conflict with the law. Many young offenders are also victims, with complex backgrounds.
These children are distressed because, more often than not, they are being abused, exploited or neglected, or they do not have parents to take care of them, or are mentally ill. Due to their sensitive needs and volatility, they are also likely to be inducted into drug abuse or trafficking.
It has been recognised that children, when dependent on the same justice mechanism as adults may find themselves further victimised by the system itself, and therefore, arises the need for a separate legal justice system.
Salient features of the Act
The existing law for juvenile justice in India is the Juvenile Justice (Care and Protection of Children) Act, 2015. It was enacted to adopt a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this law.
- Definition of child
Firstly, the act defines a child as a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories, namely ‘child in conflict with law’, and ‘child in need of care and protection’.
- Classification of offences
The Act has also made a clear distinction of the kinds of offences, categorising them as petty, serious and heinous. It stated that in case of a heinous offences alleged to have been committed by a child who has completed or is above the age of sixteen years, a preliminary assessment with regard to his mental and physical capacity to commit such offence will be conducted, and that the child may be tried as an adult.
It was by this Act that it was recognised that the rights of juvenile accused are equally important as those of victims, and therefore, special provisions were proposed to tackle heinous offences committed by individuals in the 16-18 age group. This provision of the Act has faced criticism, which will be dealt with later on.
- 2015 Amendment
The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on 12 August, 2014 by the Ministry of Women and Child Development. This Bill aimed at making a more robust, effective and responsive legislative framework for children in need of care and protection as well as children in conflict with law.
In the Act of 2015, the definition of a ‘child in need of care and protection’ had been expanded, such that it includes a child who is:
- Found working in contravention of labour laws, or
- At imminent risk of marriage before attaining the lawful age, or
- Who resides with such a person who has or had threatened to injure, exploit, abuse or neglect the child or violate any other law, or
- Whose parents or guardians are unfit to take care of him/her.
Also, the definition of ‘adoption’ had been added, and the rights of an adopted child have been recognised in the Act.
- Introduction of children’s court
A very important provision of ‘children’s court’ had been made, which was absent in the 2000 statute. Under this, a court is 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, wherever existing and where such courts have not been designated, the Court of Sessions is having jurisdiction to try offences under the Act.
The new Act of Juvenile Justice (Care and Protection of Children) Act, 2015 has faced wide criticism. The criticisms are as follows:
- Treatment of juveniles as adults in some cases
One of the major of these criticisms is that under this Act, juveniles can be tried as an adult if they committed the wrongful act as an adult. The UN Convention on the Rights of the Child requires every individual below the age of 18 years to be treated as a ‘child’. Therefore, the above-mentioned provision in the Act of 2015 is seen to be in contravention of the Convention. Some also say that it destroys the rehabilitative foundation of the existing juvenile justice system in India.
- Inherently discriminatory nature of the Act
Another criticism is that this new law discriminates against children on the basis of their age and nature of the offence. It is also not premised on the understanding that children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their amenability to rehabilitative interventions.
- Scope for misuse and arbitrariness
It is also criticised that the method of identifying whether the child between the age of 16 and 18 years committed the crime as a child or as an adult, is very subjective, and may be very inaccurate at times.
- Children’s Courts being
It is also said that the children’s courts, that were essentially developed to try offences against children, are now trying offences by children under the new law, which destroys the essence of these courts.
Also, upon turning 21 years of age, the fate of the person will lie in the hands of the Children’s Court. As per Clause 21 of the Act, the Court will decide whether a person has “undergone reformative changes” or “can be a contributing member of the society”. Such an inquiry is highly subjective and prone to arbitrariness that falls foul of Article 14 of the Indian Constitution.
Similar laws in other countries
The system of juvenile justice may be different in different countries. The stage of development of the understanding, discourse and even the law in the area of juvenile justice vary from one region to another, depending upon the history and culture of its citizens, their approach to human rights, their legal and technical capacities and their government.
- Juvenile justice system in the UK
In the UK, as juvenile crime became a growing concern, many legislatures adopted stricter laws, and Children and Young Persons Act of 1993 was implemented. Section 16 of the Act provides that a person under the age of 10 should not be arrested.
Between the ages of 10- 14 years a child is presumed not to know the difference between right and wrong and therefore incapable of committing a crime due to lack of mens rea.
It also provides that a child may be only kept in police custody for 72 hours and as soon as possible the constable concerned should arrange for the investigation to take place. A juvenile who has been arrested with a prior warrant should not be released according to Schedule 6, para 19(b) of the Police and Criminal Evidence Act.
A juvenile must not be detained in a police cell unless no other accommodation is available and the custody officer does not think it is practical to supervise him if he is not placed in a cell.
- Juvenile justice system in the US
The 19th century US witnessed a drastic change as far as treatment of Juveniles was concerned. Big cities like New York and Chicago opened New York House of Refuge in 1825 and Chicago Reform School in the year 1855 respectively for juveniles to separate them from adult hardened criminals.
The first juvenile court in the US came into existence in the year 1899 in Illinois. After this within a span of 25 years most states had established juvenile court system.
The age of majority varies in separate States in the US. There is unanimity in almost all US States on the point of trying juveniles at par with adults on juvenile attaining the age of fourteen years in certain circumstances barring states like Vermont, Indiana, South Dakota where a child of even ten years can be tried as an adult. In heinous crimes even life imprisonment can be granted to child aged twelve years.
The rising rates of juvenile delinquency and crime committed by juveniles is a pertinent issue today and due focus must be provided. Though the Government has passed statues dealing with this issue, these statutes have shown to do nothing to neither reform juveniles, nor deter them from crime.
It can be concluded that a separate legal system for juveniles is necessary for better handling of cases related to juvenile delinquency. The reformist aspect of juvenile criminal jurisprudence must be focused upon, over its deterrent aspect. It can be seen that the 2015 Act, albeit its criticisms, achieves the balance between the penal and the protective, such that the minor is sufficiently rehabilitated and dissuaded from crime at the same time.
Author: Deepali Sherawat from NMIMS, Mumbai.
Editor: Anna Jose Kallivayalil from NLU, Delhi.