In
India the laws relating to protection of children are found in a number of
legislations. The Constitution on India provides the basis for the legal
framework to protect children, whom it recognizes as a discrete group with
identifiable rights and needs. The
constitution mandates child protection as a special provision in Article 15 (3)[1]. Article 39 (E) & (F)[2]
provides protection of children's healthy development. Article 24[3]
prevents children from working in hazardous situations below 14 years. Article
45[4]
provides the right of children for free and compulsory education and Article 47[5]
prohibits the consumption of liquor and intoxicating drugs, except for medical
purposes. Moreover, Indian Penal Code,
1860 provides protection of children from sexual abuse in sections 354, 375 and
509, selling of minors for prostitution in sections 366, 366A, 366B and 372,
buying minors for the purpose of prostitution in section 373 and non-consensual
assault of male child in section 377.
The Juvenile Justice (Care and Protection of Children)
Act, 2000 is the primary legal framework for juvenile justice
in India.
The Act provides for a special approach towards the prevention and treatment
of juvenile delinquency and provides a
framework for the protection, treatment and rehabilitation of children in the
purview of the juvenile justice system. This
law, brought in compliance of Child Rights Convention[6],
repealed the earlier Juvenile Justice Act of 1986. This Act has been further
amended in year 2006 and 2010.
Main provisions of the Act
The act defines “Juvenile
“or “child” as a person who has not completed 18 years of age[7]. The act deals with two kinds of
juveniles, “juvenile in need of care and protection” and “juvenile
in conflict with law”. Section 2(d)[8]
of the act defines a child in need of care and protection as a child who is
without a home, settled home or place of abode, a child who is found begging on
the streets , a street child , a child who resides with such a person who has
threatened to kill the child, a child
who is mentally challenged , an abandoned child, a child who is vulnerable and
can be dragged into drug abuse, sexual acts and a child who is victim of civil
commotion and natural calamity. Juvenile in conflict[9]
with law has been defined as a juvenile who is alleged to have committed an offence
and has not completed eighteenth year of age as on the date of commission of
such offence.
Juveniles in Conflict with law:
The
second chapter of the Act addresses Juveniles in Conflict with Law. This chapter
calls for the establishment of Juvenile
Justice Boards where the State Government sees fit[10].
Juvenile Justice Boards must contain a Metropolitan or Judicial magistrate and
two social workers where one of the workers must be a woman. The magistrate is
required to have a background in child psychology or child welfare. Juvenile in
Conflict with Law cases can only be heard in the Juvenile Justice Board and not
by another court[11].
The chapter also deals with establishment of Observation homes[12]
which are institutions for juveniles while their proceedings are underway.
As
per the act when a police officer comes in contact with a juvenile he must
place the child with the Special
Juvenile Police Unit (SJPU) who must report the child to the
board without delay[13].
Bail is available to juveniles in all cases as long as the Board finds that the
release of this child will not place him in any danger or in the influence of
criminals. If the child is not released on bail he is only to be placed into
the custody of an Observation Home.
Order that can be passed against
Juvenile:
The
chapter II to the act lays down the orders that can be passed against a
juvenile[14]
when the Juvenile Justice Board is satisfied that the Juvenile has committed an
offence. The orders mentioned are:
(a)
allow the juvenile to go home after advice or admonition following appropriate
inquiry against and counselling to the
parent or the guardian and the juvenile;
(b)
direct the juvenile to participate in group counselling and similar activities;
(c)
order the juvenile to perform community service;
(d)
order the parent of the juvenile or the juvenile himself to pay a fine, if he is
over fourteen years of age and earns
money;
(e)
direct the juvenile to be released on probation of good conduct and placed
under the care of any parent, guardian
or other fit person,on such parent, guardian or other fit person executing a bond, with or without surety, as
the Board may require, for the good behaviour
andwell-being of the juvenile for any period not exceeding three years;
(f)
direct the juvenile to be released on probation of good conduct and placed
under the care of any fit institution for the good behaviour and well-being of
the juvenile for any period not exceeding
three years;
(g)
make an order directing the juvenile to be sent to a special home,-
(i)
in the case of juvenile, over seventeen years but less than eighteen years of
age for a period of not less than two
years;
(ii)
in case of any other juvenile for the period until he ceases to be a juvenile:
The
Board may, if it is satisfied that having regard to the nature of the offence
and the circumstances of the case it is expedient so to do, for reasons to be
recorded, reduce the period of stay to such period as it think fit.
Order that cannot be passed against
a Juvenile:
Section
16 to the act states that a juvenile who has been found guilty of any crime can
in no circumstance be punished with a death sentence , life imprisonment, or
committed to prison in default of payment of fine or in default of furnishing
security[15]
.The proviso to the section lays down the case of a juvenile who is above 16
years of age and has committed an offence
and the Board is satisfied that the offence committed is of so serious in
nature or that his conduct and behavior
have been such that it would not be in his interest or in the interest of other
juvenile in a special home to send him to such special home and that none of
the other measures provided under this Act is suitable or sufficient, the Board
may order the juvenile in conflict with law to be kept in such place of safety
and in such manner as it thinks fit and
shall report the case for the order of the State Government[16].
Children in Need of Care and
Protection:
Chapter
III addresses Children in Need of Care and Protection. In place of a Juvenile Justice Board, Children
in need for care and protection cases are heard by the Child Welfare
Committee[17].
The committee should have a chairperson and four other members of whom at least
one should be a woman and at least one expert in children's issues[18].
The purpose of the Child Welfare Committee is to provide for the care,
treatment, protection, rehabilitation and development of the child and in doing
so uphold the rights of the child. The committee may commit a child to the
Children's home or a Shelter home if the child has no immediately available
family or support system.
Like
in the case of Juvenile In Conflict with law, Children in need of care and protection
are provided with Children's Homes[19]
and Shelter Homes[20].
The state may directly set up these homes or contract a voluntary organization
to do so. The main aim of this system is to restore the child to his family or
family environment after determining the safety of the environment.
Protection Measures:
Chapter
IV of the Act envisages for the rehabilitation and social reintegration of the children
and and discusses certain non-institutional solutions such as adoption[21],
foster care[22],
and sponsorship[23].
Orphaned and abandoned children are eligible for adoption. Foster care in this
act is only for looking after infants before adoption takes place[24].
Sponsorship programmes[25]
are to help provide supplementary educational, nutritional, medical and other
services to families, guardians, and homes. After-care organizations[26]
are also to be set up to take care of children after they leave the
homes.
The
last chapter of the act contains many miscellaneous provisions. Some of the
notable provisions are as follows. The act allows for children with special
needs such as a mental or physical disease to be given the necessary attention
at an approved institution that specialises in the form of care[27].
Under this act the government can set up advisory boards at different levels to
advise them about various implementation aspects of the act.
The Juvenile Justice (Care And
Protection) Act, 2000- A Critique Analysis
Though the Juvenile Justice (Care and Protection) of
Children Act, 2000 is a good piece of legislation serving the twin purpose of
providing justice and providing ways of rehabilitation to the Juveniles in
Conflict with Law and Juvenile in need of care and protection but it is not
free from flaws and criticism. There are glaring deficiencies both,
in procedural as well as substantive portions which require attention.
a) Usage of the
word ‘may’:
A
lot of the implementation part has been left up to the States by way of the
rules that the States may formulate. The usage of the word ‘may’ as far as the
framing of rules by the States is concerned, is a major fallacy because until
and unless, the formulation of rules is not made mandatory, the implementation
of the Act will remain a dream. Sec. 8 of the Act is an example of the
abovementioned problem. According to Sec.8 (3) of the Act, the State may
formulate rules and standards for the observation homes that are to be
established. Leaving something as important as maintenance of standards to the
discretion of the State is a major problem and should be made mandatory for the
State to regulate such basic areas. Even the appointment of inspection
committees for the children’s homes has been left to the discretion of the
States and they ‘may’ constitute such committees according to Sec. 29.
Something as important as after care organizations, to check up on the
juveniles who have left the special homes and have been adopted or rehabilitated,
has also been left to the discretion of the States according to Sec.44.
b) Extension of period regarding inquiry:
Sec.
14[28]
says that any inquiry regarding a juvenile, needs to be completed within a
period of four months unless there are some special circumstances in special
cases. There is absolutely no mention of what the maximum period for inquiry
should be and what may be the special circumstances under which the period
should be extended. This discretion permits cases to languish in the system indefinitely.
Sec. 14 gives a lot of scope for arbitrariness and any lackadaisical attitude
on behalf of the juvenile justice board may be sought to be explained as the
special circumstances of the cases and hence, they have the option of getting
away with it. This is extremely dangerous for a juvenile, in whose case the
inquiry should be completed as soon as possible.
c) Adequate training for the officials dealing
with juveniles:
No
provisions have been provided in the Act regarding the specifications of the
special training of the officials who are supposed to deal with juvenile
offenders. Even though Sec. 63 provides for properly trained police unit, it
pays mere lip service to the requirement of special training because no proper
guidelines have been provided as to how the special training will be given.
Lack of properly trained officials defeats the entire purpose of the Act.
d) Punishment for
cruelty to a juvenile:
According
to Sec. 23[29],
a person responsible for cruelty to a juvenile will be punished with
Imprisonment
for a period of 6 months or with fine or with both. It is very strange that at a time when the
government is trying to curb the menace of cruelty with juveniles, the
punishment that they have prescribed is in no way going to act as a deterrent
to such erring individuals. The punishment needs to be increased and also the
fine amount needs to be specified so that it may discourage the potential law
breakers in this area.
e) The issue of Age of Juvenile:
Indian
laws have created four categories of persons (who are accused of committing any
offence) on the basis of their age. The criminal liability of a person, who has
committed an offence, depends on the age-wise category to which he belongs.
This is explained as under:
(1) Below 7 years of age:
Section
82 of the Indian Penal Code declares that nothing is an offence which is done
by a child under seven years of age. Thus, irrespective of what crime is
committed by a child below seven years of age, he shall not be liable for any
punishment for such crime.
(2) Between the age of 7 years and 12 years:
Section
83 of the Indian Penal Code lays down as under:
“Nothing
is an offence which is done by a child above seven years of age and under
twelve, who has not attained sufficient maturity of understanding to judge of
the nature and consequences of his conduct on that occasion.”
Thus, if
an offence is committed by a child who is above 7 years of age but under 12
years of age, it will first have to be ascertained whether the child has
attained sufficient maturity of understanding due to which he can judge the
nature of his alleged conduct (i.e., the act of committing the offence) and the
consequences thereof.
Now, if such a child commits an offence and he did not have the
sufficient maturity of understanding the nature and consequences of his
conduct, he would not be liable for that offence. On the other hand, if he had the sufficient
maturity of understanding to judge the nature and consequences of his conduct
(leading to that offence), he shall be liable for that offence in accordance
with the provisions of law. However, even in such a case, he shall not be
prosecuted and punished like adult offenders. Such a child committing an
offence shall be dealt with only in accordance with the provisions of the law
relating to juvenile justice in India. Thus, even if such a child is liable for
action for the offence committed by him, he cannot be imprisoned and he cannot
be given death penalty.
(3) Between the age of 12 years and 18 years:
If an offence is committed by a person who is of the age of 12 years
or above but below the age of 18 years, he shall be liable for such offence.
However, he shall not be prosecuted and punished like adult offenders. He shall
be dealt with only in accordance with the provisions of the law relating to
juvenile justice in India. Thus, such a person also cannot be imprisoned and he
cannot be given death penalty.
(4) Of or above the age of 18 years:
If a
person committing an offence has completed the age of 18 years or is above the
age of 18 years, he is criminally liable for such offence in accordance with
the normal criminal laws of the country.
In the light of Juvenile Justice Act: According to the Juvenile Justice act a
“child” or Juvenile is a person who is under 18 years of age[30].
The act fails to punish offenders who are under 18 years of age but have
attained mental maturity and are aware about the nature and circumstances of
their act. The intention behind the
existence of the Act was to protect the juveniles because they were not supposed
to have the necessary mental element required to commit crimes. This was the
reason behind having milder laws and punishments to deal with juvenile
offenders. However, in the light of cases[31]
of crimes committed by maximum amount of brutality by Juvenile it is very
evident that the offenders had the necessary knowledge and mental element
regarding the commission of the crime and the provisions of the Act have now
turned out to be a shield to protect them and provide them with lighter modes
of punishment such as counseling or being kept in a correction home for 3
years.
In the
case of Kakoo vs State of A P[32],
Kakoo named boy of 13 years of age had committed rape on a small child of two
years. He was convicted and sentenced for four years rigorous imprisonment.
When the case reached the apex court it adopted humanitarian attitude and
reduced the sentence to only one year rigorous imprisonment. Justice Sarkaria
observed that an inordinate long imprisonment term is sure to turn a juvenile
delinquent into obdurate criminal and laid an emphasis that in case of child
offenders current penological trends command 'a more humanitarian approach.
Recently the
Supreme Court while declining petitions[33] seeking the lowering of
the age in the act from 18 to 16 years for juveniles and demanding that those
involved in heinous crimes should not be treated differently from other
offenders said:
“The essence of the Juvenile Justice (Care and
Protection of Children) Act, 2000, and the rules framed there under in 2007, is
restorative and not retributive, providing for rehabilitation and
re-integration of children in conflict with law into the mainstream of society”
“It is probably better to try and re-integrate children with criminal
propensities into mainstream society, rather than to allow them to develop into
hardened criminals, which does not augur well for the future,” the court said.
Law in other countries and age
of criminal responsibility[34]
:
In England,
the age of criminal responsibility, is set at 10 years. This means that any
individual above the age of 10 is considered fully aware of the difference
between right and wrong. In case of a juvenile offender, he/she can either be
tried as a juvenile or as an adult, depending again on the heinousness of the crime.
In case the offender is tried as an adult the Crown Court (the UK version of a
criminal court) has in its discretion to award the maximum amount of punishment
as would be awarded to an adult.
Similarly in
the United States the case of Kent v The United Case[35] in
1966 saw a juvenile, who was convicted of house breaking robbery and rape,
tried as a major. He was sentenced to thirty to ninety years behind bars.
In fact, the
Unites States has drawn a clear distinction between juveniles as victims of an
unresponsive society and those who are fully aware of the heinousness of their
crimes. The legislation of the country allows in certain cases, keeping in mind
the heinousness of the crime committed, to try juvenile offenders as adults.
The justification offered behind this waiver is to recognise the inherent and
all important principle of Mens Rea or guilty conscience.
This waiver of
jurisdiction by the Juvenile Board is brought about by a clear understanding
that in certain cases the board may not be adequately equipped to handle the
offender, particularly one who committed the crime knowing fully well the
consequences of his/her actions.
Another
justification offered is the prime responsibility of the State to protect
society from such offenders. By waiving its jurisdiction the juvenile court
recognises that the offender is beyond the scope of juvenile rehabilitation and
legitimises the waiver of jurisdiction as a means of protecting society at
large from the offender.
Australia too
follows a system similar to the United Kingdom. The age for criminal
responsibility in Australia is also 10 years[36],
which means a child is not supposed to know the difference between right and
wrong if he/she is below 10 years. From 10 years to 14 years an accused comes
under what is called ‘rebuttable presumption’, this means that by default the
child is supposed to be unaware of the consequences and inherent illegality of
the act committed, however the prosecution is free to rebut this understanding.
Any individual over 14 years of age is held accountable of any crime committed
by him and whether the individual is to be tried as a minor or an adult depends
again on the heinousness of the crime.
Coming back to
India and the Juvenile Justice Act 2000, it is easy to notice that rather than
have a flexible procedure for sentencing we have opted for a rigid and sweeping
one. This is a system in which the maximum amount of sentence served by a
delinquent who say partakes in armed robbery in order to feed himself is the
same as the one given out to a serial rapist or murderer; just so long both are
under eighteen years of age.
Of course, the
absolute lack of implementation of the provisions of the JJ Act after a
juvenile completes his sentence is another concern. India’s massive population
makes it impossible to track and ensure that a juvenile once released continues
with his therapy or even reports regularly to his parole officer.
Summing up
though the Juvenile Justice Act is a Progressive step in providing justice and
rehabilitation to the Juveniles in conflict with law and Children in need of
care and protection but the need of the hour is to amend it to overcome the
lacunas it has and make it progressive with time.
[1] Article 15(3) of Indian
Constitution
[2] Article 39 (E) & (F) of
Indian Constitution
[3] Article 24 of Indian
Constitution
[4] Article 45 of Indian
Constitution
[5] Article 47 of Indian
Constitutions
[6] United Nations (1989) Convention on the Rights of the Child New York
[7] Section 2(k) of Juvenile Justice
(Care and Protection of Children) Act 2000.
[8] Section 2(d) of Juvenile Justice
(Care and Protection of Children) Act 2000.
[9] Section 2(l) of Juvenile Justice
(Care and Protection of Children) Act 2000.
[10] Section 4 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[11] Section 4(2) of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[12] Section 8 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[13] Section 10 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[14] Section 14 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[15] Section 16 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[16] Proviso to Section 16 of the Juvenile Justice (Care and
Protection of Children) Act 2000.
[17] Section 29 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[18] Section 29(2) of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[19] Section 34 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[20] Section 37 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[21] Section 41 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[22] Section 42 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[23] Section 43 of the Juvenile Justice
(Care and Protection of Children) Act 2000.
[24] Section 42 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[25] Section 43 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[26] Section 44 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[27] Section 48 of the Juvenile
Justice (Care and Protection of Children) Act 2000.
[28] Section 14 of the Juvenile Justice (Care and Protection of
Children) Act 2000.
[29] Section 23 of the Juvenile Justice (Care and Protection of
Children) Act 2000.
[30] Section 2(k) of Juvenile Justice
(Care and Protection of Children) Act 2000.
[31] Priyangi Agarwal
,Juvenile offender major crimes, Times of India, dated Jan 8, 2013.
[32] AIR 1976 SC 1991.
[33] Salil Bali v. UOI; Writ petition (c) no. 10 of 2013.
[34] Neal Hazel, Cross-national
comparison of youth justice Pg. 35 , The University of Salford available at : http://www.yjb.gov.uk/publications/resources/downloads/cross_national_final.pdf
[35] Kent v The United Case ;383 U.S. 541
[36] Gregor Urbas, The Age of
Criminal Responsibility, Australian Institute Of Criminology Pg. 1, available
at http://www.aic.gov.au/documents/0/0/A/%7B00A92691-0908-47BF-9311-01AD743F01E1%7Dti181.pdf
