An Overview of the Indian Juvenile Justice System

Author – Jagriti Khokher

JUVENILE JUSTICE SYSTEM

Introduction

The word ‘juvenile’ originated from the Latin term ‘juvenis’ which means young. The Cambridge dictionary defines juvenile as a young person who is not old enough to be considered an adult.

Section 2(35) of the JJ Act, 2015 defines a juvenile as a child below the age of 18 years.^[1]

In general terms, a juvenile can be defined as a child who has not attained the age of 18. Juvenile crime, formally known as juvenile delinquency, is a term that defines the participation of a minor in an illegal act. And Juvenile Justice is the legal system that aspires to protect the human rights of all children. Earlier children were prosecuted and punished in the adult courts and were locked up in jail with adults.

A child is a part of society. Societal context like poverty, violence, abuse, inequalities etc., is bound to have effects on a child’s attitude and behaviour. Various risks like individual risk, family risk, mental health risk and substance abuse risk factors contribute to juvenile delinquency.

Thus to protect children from such risks there has been a need for a separate system of justice for juveniles. The Constitution has several provisions, including clause (3) of Article 15, clauses (e) and (f) of Article 39, articles 45 and 47, which impose a primary responsibility on the State to ensure that all the needs of children are met and that their basic human rights are fully protected. That’s why a separate act was implemented to safeguard these human rights of children and to make them a better person for the future.

Background of Juvenile Justice in India

Prior to 1773, the personal laws of Hindu and Muslim governed the society. The personal law of the Hindus was Manusmriti and the Islamic personal law was Sharia. Both the laws accentuated the proper upbringing of children as a solitary responsibility of parents and they had to take good care of them and protect them. If the families were incapable of doing so then someone from the society was responsible to take care of the children.

According to Islamic law, if an abandoned child was found and it was felt that the child could be harmed then the person who found the child was under an obligation to take care of that child.

If a close look at Manusmriti and Sharia is taken, it could be traced that children were prescribed different punishments for committing certain offences. According to Manusmriti if a child was found throwing filth in public, he had to clean the place while for the same act an adult had to pay a fine. And according to Sharia, there was a specific injunction that forbade the execution of children. Provisions of traditional texts show that children were treated separately and differently from adults, with a focus on special care for their survival; they were not held fully responsible for their actions as adults were.

Then from 1773 to 1849 liveliness in reform started gaining pace and the effects were visible. Colonial exploitation ruined the economy of India which resulted in forcing the deprived background to live in slums or the outskirts of the city. This increased impoverishment and delinquency among children. In 1787, two advocates named Krishna Chandra Ghoshal and Jai Narain Ghoshal pleaded to the then Governor-General of India to establish homes for destitute juveniles in the region of Calcutta (now known as Kolkata).^[2] In 1843, the first ragged school for vagrant and orphan children was established by Lord Cornwallis in Bombay which is now known as David Sasson Industrial School. The reformative approach was adopted to reform the arrested child delinquents by encouraging them to work through apprenticeship and industrial Training, which prepared the base for passing the Apprentices Act, 1850.^[3] This approach was largely welfare-oriented and needs-based. In 1850, the Apprentices Act was passed to keep juveniles out of jails and consequently, by the report of the All India Jail Committee, 1919-1920, children were segregated from the prevalent criminal justice system.

The Indian Penal Code (IPC), 1860 fixed the age limitations for criminal culpability of juvenile’s under Sections 82 & 83 of the code. The said sections protected children from criminal prosecution until they had developed cognitive faculties to understand the nature of their actions.  Then the Code of Criminal Procedure of 1861 & 1898 in Sections 298, 399 & 562 prescribed for a separate trial for the persons below the age of 15 years and required that theory should be confined in reformatories rather than in adult prisons. This changed the approach towards the treatment of juveniles from punishment to reformation. As prison reports constantly pointed towards the change in policy and administration noticing a high rate of perpetrators and an increase of juvenile offenders, the Whipping Act of 1864 was passed. The objective of this act was to deter children from committing crimes in future, by whipping them for certain crimes, which in result would and save the government of the investment, to establish reformatories for the juveniles.

In the post-independence period, the Juvenile Justice policy in India is structured around the Constitutional mandate prescribed in the language of Articles 15 (3), 21, 24, 39 (e) and (f), 45 and 47, as well as several international Covenants, such as the UN Convention on the Rights of the Child (CRC) and the UN Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules).^[4] In 1986, a first formal attempt by the government of India to formulate a specific law for juveniles in India. The Juvenile Justice Act, 1986 came into force. Later this act of 1986 was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000, brought in compliance with the Child Rights Convention 1989 after India signed and ratified Child Rights Convention 1989 in the year 1992. The 2000 Act was further amended in the year 2006 and 2015.

Why a separate Criminal Justice System for Juveniles is needed?

In the past, children were prosecuted and punished by the adult courts and were kept in prison with adult criminals. Children are different from adults. They do not have a rational or sane understanding and so they do not understand the consequences of their actions they commit due to their tender age. Children are the most fragile part of society and are victims of exploitation and abuse by parents, guardians and larger society. Therefore, juveniles require a humane approach rather than a law and order approach. It is a fundamental principle in law that if children are treated in the same manner as adults, that would amount to inequality. Children should be dealt with with the utmost care. It is a noticeable fact that children imitate the actions of adults. So, society is highly responsible in moulding a child. The environment or the surrounding he lives in affects his attitude and behaviour. To they ought to be treated differently from adults who are presumed to be aware of the consequences of their acts.  

Children work in exploitative conditions and they are deprived of the right to a dignified life which is a fundamental human right. They are left on the streets; they are abused and forced to beg and work and they are subjected to violence. Putting a delinquent juvenile in jail with adults would only amount in them becoming more firm criminals and would not reform them. The aim to reform the juveniles is the most effective approach that has been adopted by the justice system.

Juvenile Justice (Care and Protection Act), 2000

The Juvenile Justice Act, 1986 was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000 with the changed national and international outlook regarding juveniles. Thus, a separate juvenile justice system evolved in India.^[5] The act aims to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting 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 enactment. The aim and intent of the Act was to provide protection for children. This act was further amended twice in 2006 and later in 2011. The amendment was made to address the gap and loopholes in the implementation.^[6]

To close gaps in law and implementation like abuse of children in institutions, high pendency, quality of care & rehabilitation measures, delays in adoption, accountability of institutions, role confusion inadequate provisions to address offences against children and to address increasing crimes being committed by children between 16 and 18 years as the JJ Act, 2000 was “ill equipped to tackle child offenders in this age group” this act was repealed. Parliamentary Standing Committee examined that the JJ Bill concluded that “juvenile crime is a miniscule proportion of total crime committed and the same is not significantly increasing” and that these can be dealt with entirely under the JJ system. It also observed that the system proposed under the Bill violated the Indian Constitution and the UNCRC.^[7]

Juvenile Justice (Care and Protection Act), 2015

In the wake of Delhi gang rape (16 Dec 2012), the law suffered nationwide criticism owing to its helplessness against crimes where juveniles get involved in heinous crimes like rape and murder. The Apex Court in a PIL decided on March 28, 2014, in Subramanian Swamy and others vs. Raju and others,^[8] refused to read down the provisions of Juvenile Justice Act, 2000, in order to account for the mental and intellectual competence of a juvenile offender and refused to interfere with the age of a juvenile accused, in cases where juveniles were found guilty of heinous crimes. It was held by the Court that the provisions of the Act are in conformity with the Constitutional directives and international conventions. The Court further directed that the classification of juveniles as a special class stood the test of Article 14 of the Constitution of India and that it should restrict itself to the legitimacy and not the certainty of the law. The baton had been passed on to the Parliament to finish the relay race in time by enacting a new law.^[9] In 2015, responding to the public sentiment, both the houses of parliament in India further amended the bill that lowered the juvenile age to 16 and proposed adult-like treatment for juveniles accused of heinous crimes.^[10]

The Act aims to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.^[11]

Comparison between the two Acts

• In the 2000 Act, all children under the age of 18 years treated equally. Maximum penalty for juvenile in conflict with law is three years. While in 2015 Act, Juveniles aged between 16-18 years committing serious or heinous offences could be tried as adults. However, there will be no death penalty or life imprisonment.
• In the 2000 Act, Juvenile Justice Board(JJB) Conducts inquiry and directs the juvenile to be placed in any fit institution for a period not exceeding three years. While in 2015 act, JJB adds a preliminary inquiry, conducted in certain cases by JJB to determine whether a child is placed in a home or sent to Children’s Court to be tried as an adult.
• In 2000 Act, Child Welfare Committee disposes cases for children in need of care and protection; Frequency of meetings not specified. In 2015 act, functions are same as in the Act; training of members to be done within two months of Bill becoming law; Committee to meet at least 20 days in a month.
• In 2000 Act, appeal to the Session Court is filed within 30 days of JJB order and further appeal to a High Court. In 2015 act, appeal JJB/CWC order within 30 days to Children’s Court, further High Court (District Magistrate for foster care, etc).
• No provision for inter-country adoption in the 2000 Act; the Guidelines Governing the Adoption of Children, 2011 provide for inter-country adoption. While Inter-country adoption allowed if adoption cannot take place within the country, within 30 days of child being declared legally free for adoption in 2015 act.
• In 2000 act, temporary placement of a child to be given for adoption, with a family for a short/extended period of time; biological family may be allowed to visit. 2015 act has same provision as the 2000 Act with a new provision for monthly checks on foster family by the CWC.
• In 2000 act, after-care Monetary and continued support for children after they leave special or children home for a period of three years or till 21 years of age. While in 2015 act, one-time financial support to children leaving child care institutions after completing 18 years of age.^[12]

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^[1] THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2015, Bill No. 99-C of 2014

^[2] Juvenile Law, Rajendra Criminal Law firm, https://www.criminaladvocate.in/juvenile-law/ (Last visited on May 20, 2021)

^[3] Government of India, The Apprentices Act, New Delhi, Publication Division, 1850

^[4] Mousumi Dey, Juvenile Justice In India, International Journal of Interdisciplinary and Multidisciplinary Studies, http://www.ijims.com/uploads/c516b1534d85a22ad192z9.pdf

^[5] Pragati Ghosh, Essay on the Evolution of Juvenile Justice System in India, Share your knowledge, https://www.shareyouressays.com/knowledge/essay-on-the-evolution-of-juvenile-justice-system-in-india/119420

^[6] Purti Vyas, An analytical study of Juvenile Justice System in India, iPleaders, https://blog.ipleaders.in/juvenile-justice-system-india/#_ftn2

^[7]Arlene Manoharan, Key Changes brought in by the JJ Act 2015 and Model Rules 2016 – An Overview, NJA, Bhopal,  http://www.nja.nic.in/Concluded_Programmes/2018-19/P-1112_PPTs/5.Changes%20brought%20in%20by%20JJ%20Act%202015,%20Rules%202016.pdf

^[8] Subramaniam Swamy & ors vs. Raju & ors JT 2014 (4) SC 328

^[9] Anil Malhotra, Juvenile Justice Law and POCSO- A child law in making, http://www.aimjf.org/download/Documentation_EN/JUVENILE_JUSTICE_LAW_AND_POCSO__A_CHILD_LAW_IN_THE_MAKI_NG-13.01.2016.pdf

^[10] Juvenile Justice (Care and Protection of children) Act, 2000, https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2000

^[11] THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

^[12] PRS Legislative Research,

[13] Maharaja Agrasen Institute of Management Studies, Delhi- 3rd year