Saumyata Panwar, Student, B.B.A. L.L.B.(Hons.), Batch of 2012-2017, Gujarat National Law University
A Critical Analysis on the Juvenile Justice (Care and Protection of Children) Act, 2000
‘Juvenile delinquency’ has occupied an important place in the discussions regarding criminal law in the country. The Juvenile Justice (Care and Protection of Children) Act, 2000 in India was enacted to ensure protection of the rights of juveniles and lays down provisions to be adhered to while dealing with a juvenile in conflict with law. For this purpose, the Act provides for several bodies to be set up across the country. The paper attempts to analyse the degree of implementation of this legal framework post a decade since its enactment. After the ‘Delhi gang-rape’ case the issue with respect to penances prescribed under the Act is much-debated. While a maximum period of imprisonment is laid down, there has been no attempt to grade the offences as per their nature or gravity. In light of the present scenario, does the established age of criminal responsibility justify leniency in punishment to a juvenile offender compared to that for an adult for the same crime? The paper attempts to answer this question especially with reference to cases involving heinous crimes.
In 1989, world leaders decided that children needed a special convention exclusively for them because they often need special care and protection that adults do not. Further, the leaders also wanted to ensure that the countries recognize that children also have human rights. Thus the General Assembly of the United Nations adopted the Convention on the Rights of the Child (CRC).
The Convention prescribes a set of standards to be adhered to by all State-parties in securing the best interests of the child on the principles of non-discrimination and non-exploitation. It sets a standard in legal and social services. Also, it emphasises on social reintegration of child victims without resorting to judicial proceedings to the extent possible. The Government of India ratified the CRC in the year 1992 agreeing to hold itself accountable for its actions before the international community.
In November 1985, the General Assembly adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) which aims to further the well-being of juveniles and their families. It states that a person is most susceptible to deviant behaviour when he is a juvenile. Hence, juveniles require extra attention so that they do not take up a path of crime and delinquency. They should be humanely dealt in conflict with the law ((U.N. General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Res. 40/33, Sess. 40, A/RES/40/33, 3, (29/11/1985) available at https://www.ncjrs.gov/pdffiles1/Digitization/145271NCJRS.pdf last seen on 27/05/2014)). Judicial offenders should, moreover be treated impartially irrespective of race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or other status ((Ibid)).
Other resolutions dealing with this subject are: UN Rules for the Protection of Juveniles Deprived of their Liberty ((U.N. General Assembly, United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Res. 45/113, Sess. 45, A/RES/45/113 (14/12/1990) available at http://www.crin.org/docs/UN_JJ_standards.doc last seen on 21/04/2014)), UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) ((U.N. General Assembly, United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), Res. 45/112, Sess. 45, A/RES/45/112 (14/12/1990) available at http://www.crin.org/docs/resources/publications/HRBAP/IHCRC/UnitedNationsGuidelinesforthePreventionofJuvenileDelinquency.pdf last seen on 21/04/2014)), Guidelines for Action on Children in the Criminal Justice System- Economic and Social ((Economic Social Council, Guidelines for Action on Children in the Criminal Justice System- Economic and Social, Res. 1997/30, Sess. 18, E/RES/1997/30 (21/7/1997) available at http://www.un.org/en/pseataskforce/docs/guidelines_on_justice_in_matters_involving_child_victims_and.pdf last seen at 15/05/2014)), Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime- Economic and Social ((Economic Social Council, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime- Economic and Social, Res. 2005/20, Sess. 14, E/RES/2005/30 (22/7/2005) available at http://www.un.org/en/pseataskforce/docs/guidelines_on_justice_in_matters_involving_child_victims_and.pdf last seen at 15/05/2014)).
Position in india
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 abandonment ((Art. 39(f), the Constitution of India)). Free and compulsory education is desired to be provided to all children up to the age of fourteen ((Art. 45, the Constitution of India)).
The comprehensive Integrated Child Protection Scheme (ICPS) introduced in 2009-2010 brings together multiple schemes of the Ministry of Women and Child Development under one umbrella. Several existing child programmes are consolidated with improved norms for protecting children and preventing harm.
The first legislation dealing with children in conflict with law in our country was the Apprentices Act, 1850 binding over children under the age of 15 years committing petty offences as apprentices. The Reformatory Schools Act, 1897 subsequently provided that children up to the age of 15 years may be sent to reformatory cell. Then the Juvenile Justice Act, 1986 was enacted to introduce a uniform system of juvenile justice mechanism in the country. Under this Act, Section 2(a) defined the term juvenile as a “boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years.”
This was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000. As per this Act, a “juvenile” or “child” means a person who has not completed eighteenth year of age ((Section 2(k), Juvenile Justice (Care and Protection of Children) Act, 2000)). The relevant date for determining the age of the juvenile would be one on which the offence has been committed and not when he is produced in court ((Pratap Singh v. State of Jharkhand and Anr., AIR 2005 SC 2731)). The purpose of this Act is to ensure the protection of children who require care, keeping in mind their developmental needs. The legislation adopts an approach which strives to take measures in the best interests of the child during adjudication and disposition of cases. It deals with both- children requiring care and juveniles in conflict with law.
Rights of juveniles in conflict with law
Juveniles in conflict with law are those juveniles who are alleged to have committed an offence ((Section 2(l), Juvenile Justice (Care and Protection of Children) Act, 2000)). The Juvenile Justice (Care and Protection of Children) Act, 2000 confers several rights on juveniles in conflict with law in order to protect them.
The media is prohibited from disclosing the name, picture, address, school or any other particulars which may lead to the identification of the juvenile. However, if such disclosure is in interest of the juvenile, the authority holding the inquiry may permit so for genuine reasons ((Section 21, Juvenile Justice (Care and Protection of Children) Act, 2000)). This is in consonance with the right to fair and just trial of the child. Section 51 states that the report of the probation officer or social worker considered by the competent authority is to be treated as confidential and not to be disclosed to anyone except parents/ guardians that too when justice requires. His identity, privacy and innocence are to be respected at all costs. It is essential to uphold such a right of fair trial. This Section is also important as it prevents the consequences of labelling a child as a ‘criminal’.
Further, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Thus, separate trials take place in cases where a juvenile is accused along with adults. This is also done in order to give special attention to the juvenile.
The Act punishes those who are in charge of children and are guilty of abandoning, assaulting or wilfully neglecting them along with those who employ children to beg, or offer them intoxicants. Exploitation of child employees is also punishable. When a juvenile is accused of committing an offence, an inquiry against him must be completed within a period of four months unless the Board requires more time on reasonable grounds.
If the inquiry once completed reveals that the juvenile is guilty of the crime, the Board may allow the juvenile to go home after advice or admonition; order the juvenile to be sent to a special home on certain conditions; direct the juvenile (above 14 years) or his parent to pay a fine; direct the juvenile to participate in group counselling and similar activities; perform community service; or release him on probation of good conduct and place him under the care of any parent, guardian or other fit person ((Section 15, Juvenile Justice (Care and Protection of Children) Act, 2000)).
An important provision in the Act is that no juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security. This is because emphasis on punishment rather than prevention and rehabilitation is neither philosophically sound nor effective.
Bodies under the justice system
The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for several bodies to be set up across the country in order to fulfil its purpose of reformation and rehabilitation of the juvenile offenders. Juvenile Justice Boards are set up ((Section 4(1), Juvenile Justice (Care and Protection of Children) Act, 2000))in various districts by the State governments. Their purpose is to hold the inquiry in accordance with the provisions of the Act and make such order in relation to the juvenile as they deem fit ((Section 14, Juvenile Justice (Care and Protection of Children) Act, 2000)). These boards have the exclusive power to deal with such proceedings. In order to ensure effectiveness, no member of such a board must lack knowledge or training in child welfare and child psychology ((Section 4(3), Juvenile Justice (Care and Protection of Children) Act, 2000)).
During the pendency of trial, a juvenile in conflict of law is to temporarily reside in an Observation Home. This may be set up by the State government in collaboration with voluntary organisations in every district ((Section 8(1). Juvenile Justice (Care and Protection of Children) Act, 2000)). It provides for temporary reception of any juvenile in conflict with law during the pendency of any inquiry. Special homes are also to be set up by the State governments for reception and rehabilitation of a juvenile in conflict with law as per Section 9 of Act. At the end of financial year 2011-2012, about 733 juvenile justice homes in India had received grants under the Integrated Child Protection Scheme (ICPS] ((Asian Centre for Human Rights, India’s Hell Holes: Child Sexual Assault in Juvenile Justice Homes (March 2013) , http://www.scribd.com/doc/137150275/India-s-Hell-Holes-Child-Sexual-Assault-in-Juvenile-Justice-Homes)).
The Act also provides for setting up of Child Welfare Committees ((Section 29, Juvenile Justice (Care and Protection of Children) Act, 2000))and Children’s homes ((Section 34, Juvenile Justice (Care and Protection of Children) Act, 2000))that shall take care of children in need of care and protection. Shelter homes are to be established ((Section 39, Juvenile Justice (Care and Protection of Children) Act, 2000))to function as drop-in-centres for the children in the need of urgent support. The main purpose of a shelter home is restoration of and protection to a child deprived of his family. Also, the State Government or local authority may create a fund ((Section 61, Juvenile Justice (Care and Protection of Children) Act, 2000))for the welfare and rehabilitation of the juvenile.
While such policies under the Act have a good intention, in reality they lack efficient implementation. Years after its introduction, many states have failed to incorporate the policies in their legislative apparatus or dispose the necessary measures to render the law eﬃcacious ((F. Ferrara and V. Ferrara, The Children’s Prison: Street Children and India’s Juvenile Justice System, 9 (2005).)). The infrastructure of the observation homes is often sub-standard and lacks a hygienic atmosphere. The home often provides clothes and food of low quality ((S. Farooqui, Reforming the juvenile (homes) first, DNA, Bangalore (September 2, 2013), http://www.dnaindia.com/analysis/standpoint-reforming-the-juvenile-homes-first-1883447)). Another major problem is that the homes are mostly under-staffed and lack existence of trained counsellors and psychiatrists. This in turn obstructs the proper reformation of a child based on his education, behaviour and crime committed. It cannot be disputed that in the absence of good infrastructure and other basic facilities, the juveniles cannot be reformed psychologically.
It is abhorrent that a place where a juvenile needs most attention, he/she is being exploited not only mentally but physically. Astonishingly, sexual abuse is rampant at these places and thus it is justified to label them as “India’s hell holes ((Supra 18)).” Several cases of repeated rape, sodomy, sexual harassment by the staff- security guards, wardens, cooks, senior inmates etc. have been reported. Such offences have not only taken place in privately run juvenile homes by NGOs but also in government-run homes. Both lay and professional works emphasize the possible emotional consequences of child sex, including severe depression, psychosis, and suicide ((F. RUSH, BEST KEPT SECRET- SEXUAL ABUSE OF CHILDREN, 7 (1980).)). In such an environment, the victims are unable to protest and are also forced to remain silent for long periods without any aid.
Even the Integrated Child Protection Scheme facesadministrative problems- lack of updated data and regular reporting. Even though there is an urgent need to increase budget allocations, the ICPS faced a reduction by 100 crores this year ((HAQ: CENTRE FOR CHILD RIGHTS, BUDGET FOR CHILDREN 2013-14, A FIRST GLANCE, 6 (2013).)). In such a scenario, a robust child protection system cannot be built.
Sadly, most of the observation homes are in dilapidated conditions ((Pamposh Raina, Life in India’s Juvenile Homes, New York Times (August 1, 2013), http://india.blogs.nytimes.com/2013/08/01/life-in-indias-juvenile-homes/?_php=true&_type=blogs&_r=0)). Rule 63 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 mandates the Inspection Committees to “visit and oversee the conditions in the institutions” at least once in every three months to ensure safety, well-being and permanence of the institutions and look out for any incidence of violation of child rights, but such inspections seldom take place. On adding up all of the above, we can conclude that the condition of the justice system is pitiable.
Age of criminal responsibility
Children are qualitatively different from adults and for this reason, child and youth 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. Emotional, mental and intellectual maturity must be born in mind while determining such age ((Supra 1, at 4)). It is important to fix such an age because in its absence, the notion of responsibility would hold no meaning. Owing to culture, history, tradition and other factors this age varies across countries.
In the 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 circumstances.
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. This was because while the other 5 convicted were sentenced to death penalty, the 17-year old convict was only sentenced for a term of 3 years. This is the maximum punishment that could be imposed as per the juvenile laws ((Section 15(1)(f), Juvenile Justice (Care and Protection of Children) Act, 2000)). In fact, he was only a couple of months short of attaining majority. 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.
Owing to such a scenario, outrage and concern follow. The question arises whether juvenility is a justified reason for lenient punishments especially when they crimes of heinous nature are committed. 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?
Before answering this question, it is important to identify the reasons of such delinquent behaviour among juveniles. A disturbed life, poor role models or influential delinquent groups are a few. While not class-linked, self-reported delinquent behaviour is most prevalent among the lowest socio-economic groups ((C. A. Hartjen and S. Priyadarsini, Delinquency In India – A Comparative Analysis (1984), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=93313)). Poverty can compel juveniles to resort to illegitimate means to achieve socially valued goals. Children are ‘hired’ by criminals to do jobs for them so that strict punishment is not inflicted, in some situations. Juvenile delinquency is a modern phenomenon that emerged in response to changes in larger society ((T. J. Bernard, Cycle Of Juvenile Justice (1992), https://www.ncjrs.gov/App/publications/abstract.aspx?ID=133564)). The theory of ‘social disorganisation’ suggests that instances of crime have increased due to the breakdown of institutions like family, school etc. When a child fails to associate himself to others, he is compelled to take actions which may or may not be rational.
A considerable section of the society now believes that the age of criminal responsibility should be lowered and strict punishments should be imposed on the delinquents. Age should not be the biggest defence for committing a crime. Such a section advocates that children today lose their innocence and mature earlier as compared to ancient times. They are more aware of the ramifications of their acts. They are exposed to the world and understand it better because of amalgamation of cultures, influence of media and an increasing overall social awareness. The issue of reduction in the age of juveniles from 18 to 16 years, as it was in the Juvenile Justice Act of 1986, was also raised in the Lok Sabha on 19th March, 2013, during the discussion on the Criminal Law (Amendment) Bill, 2013, but was rejected by the House.
Such a realisation led to the moving of a petition in the case of Salil Bali v. Union of India & Anr to the Supreme Court of India contending that the age of criminal responsibility must be lowered ((AIR 2013 SC 3743)). It was urged that it is necessary for the provisions of Section 2(k), 2(l) and 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, to be reconsidered in the light of the spurt in criminal offences being committed by persons within the range of 16 to 18 years.
It must be noted that the age of responsibility of understanding the consequences of one’s actions has been recognized as 12 years in the Indian Penal Code. The provisions of the Child Labour (Prohibition and Regulation) Act, 1986 also treat children up to the age of fourteen years differently from children between the ages of fourteen to eighteen, for the purposes of employment in hazardous industries. Hence, a conflict arises under the present juvenile justice system and criminal jurisprudence regarding the age of understanding. It was also contended in the above case that no protection must be granted to those accused less than 18 years of age in serious offences like rape and murder and that they must be tried under the normal law. Also, the investigating agency should be permitted to keep the record of such offenders to take preventive measures to enable them to detect repeat offenders and to bring them to justice.
However, the Supreme Court held that the age should not be hampered with and rejected the petition to lower the age. The Apex Court observed that the age had been decided taking into consideration the general trend of legislation, internationally and within the country as well. Such age is fixed on account of understanding of experts in child psychology and behavioural patterns which indicate that the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. Mental growth is highly important in assessing the maturity of a person. Therefore, till such an age the children in conflict with law can be restored to society.
Keeping in mind the present situation, it can be said that the number of crimes committed by juveniles need to be checked. The crimes committed are even of a heinous nature insofar as juveniles are committing acts of murder and rape. Age must not be the sole criteria to award a lenient punishment to the offender. Section 376A and 376E of the Indian Penal Code have been inserted in the year 2013 and impose death penalty on those who are convicted for rape. In contrast to this, Section 15 of the Juvenile Justice (Care and Protection of Children) Act imposes only a sentence of 3 years. This period of maximum three years is laid down without any reference to the nature of crime committed. It is not justified to let perpetrators of such crimes get off with such leniency. No mercy should be bestowed on someone who does not show mercy to the victim. A correctional course is thus required to be undertaken in this regard.
The country cannot afford the misuse of the present legislation at the hands of the offenders. It is not only unfair to the victims but also creates an unsafe, chaotic environment. It is important to distinguish minor delinquents from “hard-core” type of criminals ((A. V. CICOUREL, THE SOCIAL ORGANIZATION OF JUVENILE JUSTICE, 120 (1995).)). A serious attempt is to be made to grade the nature of offences to suit the reformation contemplated by the Act so that it benefits the society. It seems rather unreasonable to impose the same punishment on juveniles in conflict with law, irrespective of the gravity of the offences committed by them. A petty theft cannot be compared with the offence of raping a woman that puts her into a vegetative state. Heinous crimes of rare nature are a class of their own and hence should not be considered akin to petty crimes. The issue regarding extent of punishment with regard to the nature of crime needs to be addressed in such a manner as would make the juvenile system more effective.
In light of the present laws, there is a need to amend the existing laws or bring in new legislations to address this issue. The age of criminal responsibility can be lowered as a whole. Offences can be classified on the basis of their nature in order to impose punishment accordingly. Alternatively, a provision can be made for exercise of discretion by the courts while awarding sentences when it comes to heinous crimes committed by juveniles on a case-to-case basis, in order to ensure deterrence.
Moreover, in order to reform the juvenile in conflict with law, the juvenile system as a whole needs to be reformed first. The ramshackle conditions of the observation homes and juvenile justice boards need to be addressed immediately. The nation must strive to provide education, health-care, sanitation and housing to every child. Families must instil moral values; core social institutions need to be strengthened and immediate intervention of child offenders needs to be undertaken ((R LOHRLR, D.P. FARRINGTON AND J. JUSTICE, NEVER TOO EARLY, NEVER TOO LATE: RISK FACTORS AND SUCCESSFUL INTERVENTIONS FOR SERIOUS AND VIOLENT JUVENILEOFFENDERS, 2 (1998).)). Another strategy must promote delinquency prevention, and identify and control the group of serious, violent, and chronic juvenile offenders ((J. C. Howell, Guide For Implementing The Comprehensive Strategy For Serious, Violent, And Chronic Juvenile Offenders, Office Of Juvenile Justice And Delinquency Prevention
US Dept Of Justice (1995).)).Only then will crimes gradually reduce. The juvenile justice system will prove beneficial only if the Juvenile Justice (Care and Protection of Children) Act, 2000 is implemented effectively and efficiently.
After all, the fact that a rape victim herself is affected for a life term is not in balance with the lenient punishment for the same imposed on a juvenile delinquent. Much needs to be done so that the letter of the law coincides with the spirit of law.