Children in conflict with law

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

CHILDREN IN CONFLICT WITH LAW

CODE OF CRIMINAL PROCEDURE

Submitted to

(Ms. Soma Battachrjya)

ANKIT ANAND

2013023

IV SEMESTER

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM

ACKNOWLEDGEMENT

Writing a Project is one of the most significant academic challenges I have ever faced. Though

this project has been presented by me but there are many people who remained in veil, who

support and helped me to complete this project.

I am very thankful to my subject teacher Mrs. SOMA BHATTACHARYA without whom this

project was not possible. She gave her valuable time from her busy schedule to help me at every

stage to complete the project. I thanks to all of them who help in my completion of project.

.


CONTENTS

Contents Page No.

Acknowledgment 2

Abstract 4

Scope of the study 4

Key Research Question 5

Review of Literature 5

Research Methodology 5

Hypothesis 5

Introduction 6

Important Terms 8

Juvenile crimes 10

Juvenile justice system 11

Historical background 12

Integrating welfare and justice 16

The Age Factor 16

Juvenile Justice legislation 18

Overriding effect of juvenile legislation 19

Delhi gang rape 22

Conclusion 25


ABSTRACT

The term 'children in conflict with the law' refers any person below the age of 18 who has come

in contact with the justice system as a result of committing a crime or being suspected of

committing a crime. Most children in conflict with the law have committed petty crimes such as

vagrancy, truancy, begging or alcohol use. Some have committed more serious offenses. Some

children are coerced into crime by adults who use them as they know they cannot be tried as

adults. Often prejudice, stereotyping and discrimination brings children into conflict with law

without a crime being committed. More than 1 million children worldwide are detained by law

officials. In India the number of cases of juvenile delinquents has increased from 17,203 in 1994

to 97,943 in 2011. The crimes committed by juveniles have also seen an increase in the same

period from 8,561 to 69,229. Some of the increase can be attributed to the definition of juveniles

being changed to include ages 16-18, but none the less more and more children are coming into

conflict with law in the 16-18 age group.

There are various reasons why children end up committing crimes. About 64% of cases in 2013

were children who had no education or only education up to primary level. Children living with

parents/guardians accounted for 76.6% of the total juveniles arrested. The number of homeless

children arrested for various crimes was only 7.5%. Juveniles usually come from poor families

earning less than Rs. 25,000 a year (72.3%). Often children are victims of crime as they are used

for begging, drug peddling, and prostitution.1

SCOPE OF THE STUDY

The proposed study includes the study of Children in Conflict with Law. The provisions related

to this matter are given under the Juvenile Justice Act. This project will look into the various

aspects in which such juvenile are dealt with. The project will discuss the need of separate and

specific regulation to deal with the matters of child delinquency. Further it will look into the

change in the provision of juvenile laws with time. Provisions are supported with the help of case

laws so that to understand the present reality of the juvenile laws.

1 See: http://www.childlineindia.org.in


Key Research Question: The key questions which this research would answer are:

What are the causes behind juvenile delinquency?

What are the main features of Juvenile Justice (Care and Protection) Act, 2000?

What type of procedure followed by Juvenile Justice Courts?

What are the types of orders that can be passed for delinquent children under JJ act?

What are the different protections given by the legislature and the judiciary to juvenile

delinquents?

Review of Literature:

Juvenile Justice (Care and Protection of Children) Act, 2000

Rastogi S.R Prevention and Treatment of Juvenile Delinquency in India, 2 Canadian J.

Correction 324, 1959-1960. This article states about the social and judicial approach

towards delinquent juvenile.

Kumari ved, Juvenile Justice: Securing the Rights of Children during 1998-2008, (2009)

NUJS LR. This article deals about the rights and liabilities of juvenile. It shows need of

change in judicial approach in such cases with time.

Various landmark Judgment under Juvenile Justice Act

Research Methodology:

The methodology adopted is doctrinal study of the topic. Research is library and web sources

based. No access to specialist collections and access to comparative or historical materials is

required.

Hypothesis:

The Juvenile Justice Act, deals with all the prospects of children in conflict with law. The

procedure of the court (juvenile board), trail, investigation, bail issues and other relevant issues

are given in the act and the project will look into those provisions.


“Children are fascinating; children are important-both very good reasons for

wanting to find out more about them.”

H. Rudolph Schaffer, Introducing Child Psychology

As a society, we are in agreement that children need special attention due to their young age,

developmental needs and evolving capacities. Another argument is that children are not merely

in a state of “becoming”, “evolving”, or in a “transition” stage to adulthood, but have their own

innate capacities and strengths. They are entitled to their own set of ‘rights’. The State,

community, and family are expected to provide optimal opportunities to facilitate each child’s

growth and development, and to ensure the fulfillment of his/her rights. Unfortunately, despite

these well meaning intentions, appropriate care and nurture elude large numbers of children in

India. A substantial number of children are growing up in an environment of chronic poverty,

neglect, abuse and exploitation. The reason for this can be found in the basic structure of

patriarchal society as well as in the inadequate State and societal commitment to seriously

address the vulnerabilities of children. The fall out of this situation is all around us:

malnourishment, school drop outs, discrimination against the girl child, child labour, street

children, child trafficking, children with disability, and child beggars. Adverse home and

environmental conditions can have other impact too: children get into ‘at risk’ behaviours such

as addiction or crime.

In England, around the nineteenth century, four key categories of children were identified as

special child care concerns. They were: children of the street (“beggars, prostitutes etc”.),

young offenders, children at work and special groups such as children with disabilities,

abandoned children etc. In the twenty first century too these concerns continue to remain among

the key priority areas related to children worldwide. The Annual Report (2010- 2011) of the

Ministry of Women and Child Development, Government of India2 outlines that India has the

largest child population in the world (around 19% of the world’s children). More than one third

of the country’s population, around 440 million, is below 18 years. It is estimated that around

170 million or 40 per cent of India’s children are vulnerable or experiencing difficult

circumstances characterized by their specific social, economic and geopolitical situations. The

Report endorses that all these children need special attention. Over the years the State has

2 www.wcd.nic.in


introduced several policies, programmes and legislation to focus not only on the well being of all

children but especially to address the priority needs of the above mentioned large categories of

vulnerable and marginalized children.

Much before child rights became an integral part of national and international documents and

discourses, the Indian Constitution3 had specifically outlined provisions for children in critical

areas such as overall growth and development, education and protection from any form of abuse

and exploitation. India has comprehensive policy documents4 and action plans5 for children.

India has also been a signatory to UN Conventions. Scott (2000:9) aptly comments, “Policy

makers view children as a very special class of citizens, a group whose unique traits and

circumstances warrant a different regulatory scheme from that which applies to the rest of us.

These special protections are grounded firmly in a consistent account of what it means to be a

child.” While there are specific legislations to deal with different priority areas pertaining to

children, the Juvenile Justice system is the largest machinery in India to work with two

significant groups of vulnerable children: children without family or family support, and children

who allegedly commit offences.

IMPORTANT TERMS

In this project some legal terms has been used frequently so it is necessary to map out the

parameters of the terms that will be used often in later discussions. They are:

Children: All human beings (boys and girls) who have not completed eighteen years of age (as

per the international definition provided in Article 1 of the Convention on the Rights of the

Child)

Juvenile in Conflict with Law- This is a term given under the Juvenile Justice (Care and

Protection of Children) Act, 2000 (hereafter referred to as the Juvenile Justice Act) to all children

who have been apprehended (arrested) by the police for alleged offence charges. The children

have not completed eighteen years of age at the time of the alleged offence. Thus this term also

3 Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23, 24, 39(e) 39(f) of the Indian Constitution are significant forchildren as they highlight equality, non discrimination, making special provisions for women and children,and other safeguards4 The National Policy for Children, 1974, the first comprehensive national policy on children was followedby National Policy on Education, 1986, National Policy on Child Labour, 1987, National Nutrition Policy,1993 etc.5 The National Charter for Children, 2004 highlights areas of child protection, survival, life and liberty,protection from economic exploitation and all forms of abuse.


includes those persons who are apprehended after they have completed 18 years, but were less

than 18 years at the time of the alleged offence.

Offence - An illegal act or violation of any law committed by the juvenile in conflict with law

for which offence charges are levied.

Juvenile Justice System - This is not one single entity. Within the context of the juvenile in

conflict with law, the juvenile system comprises all those mandatory Institutions (Observation

Home and Special Home) and Bodies (Juvenile Justice Board) that have been exclusively set up

to work with the juvenile in conflict with law and implement the Juvenile Justice Act. The

juvenile justice system also includes those organisations that work with the juvenile justice

system as one of their responsibilities (police, public prosecutor who legally represent the police

case before the Juvenile Justice Board and the Free Legal Aid lawyer). Other voluntary

organizations, NGOs or individuals who work with children within the juvenile justice system

are also part of the system.

Observation Home- This is a children’s residential institution as mandated by the Juvenile

Justice Act. Juveniles in conflict with law are admitted into the Observation Home and stay there

till they are released on bail or through other Orders of the Juvenile Justice Board. The

Observation Home is a closed Institution. Children cannot leave without specific Orders of the

Juvenile Justice Board. Basic requirements of food, clothing, and shelter are met in the

Observation Home. There are a few opportunities for vocational training as well. The

Observation Home offers temporary stay till suitable Orders are passed).

Juvenile Justice Board: It is the mandated authority to deal with the cases of juveniles in

conflict with law. The Juvenile Justice Board is a three member bench comprising a Magistrate

and two social workers of which one is a woman. The Juvenile Justice Board takes all decisions

pertaining to the juvenile at all stages: the first production before the Board after being

apprehended by the police, bail, period of inquiry and closing of the case with the Final Order.

‘Juvenile crime’ or ‘juvenile offence’ is the term used to study children who commit a crime or

get apprehended on ‘offence charges’. Whenever we think of a child or a group of children, it

usually conjures up a benign image. Generally, children are viewed as “young”, “innocent” or

“helpless”. Children are considered dependent on adult care and protection. Their abuse or


exploitation evokes anger and/or sympathy. The image of ‘crime’ on the other hand is stark,

sordid, and one of harm being done. There is a fear factor too. Juxtaposing these two ‘images’ of

‘child’ and ‘crime’ and understanding ‘juvenile crime’ often becomes challenging. When the

media reports about heinous crimes being committed by children, there is public outrage and

anger. Questions are raised on the rationale for “treating” such children differently when the

safety of society itself is at stake. It becomes difficult to associate crime with child vulnerability.

It raises more uncomfortable questions than we would like to answer.

There are two strong positions on juvenile crime; the “get tough” approach vis-à-vis the

“supportive” approach towards children who commit crimes. The former approach is emphatic

that crime needs to be tackled punitively especially if it has been a serious violation of law. The

young age of the person involved cannot be a sole justification. The latter is equally strong in the

argument that children need to be viewed differently even when they transgress the law or are

involved in serious offences. While there have been debates about the cut off age for 'majority',

age of 'consent' etc, there is no debate on the need to create the 'distinction' between child and

adult. There have been a number of research studies and theoretical perspectives on children,

which assert that children need to be understood differently from adults. It is widely accepted

that young people require special care and protection up to a certain age. Their well being is the

responsibility of the family, society and the State.

JUVENILE CRIME: DELINQUENCY OR VULNERABLE TO DELINQUENCY

While juvenile crime may be individual in some cases, it is necessary to continue focusing on it

as a social problem. Freeman (1981) notes, “By personalizing causes, the social reality of trouble

can be astutely ignored…Individualization also depoliticizes”. In a study by Dabir and Nigudkar

(2005) on the status of the implementation of the Juvenile Justice (Care and Protection of

Children) Act, 2000 within the State of Maharashtra, India, the magistrates identified four causes

of offence: poverty, unemployment, negative impact of the social environment and the family

atmosphere in general. Factors associated with poverty and lack of access to facilities and

resources is one of the major causes of juvenile offence. Child neglect and delinquency does not

happen in a vacuum. There are larger societal issues of deprivation and child rights violation that

require attention at the macro level.


The report of a thematic consultation for the United Nations Secretary-General’s study on

violence against children (2005) analyzes that key systemic issues for juvenile offence include:

1. The use of the justice system for children in need of care and protection; the criminalization of

normal, petty misbehavior, survival behaviors and status offences; and the criminalization of

children who are victims of abuse,

2. Violence in the home and dysfunctional families,

3. The failure of care and protection systems, including the lack of social support systems,

appropriate social policies and preventive programs,

4. Discrimination against vulnerable groups of children, including negative attitudes and

stigmatization of children based on race, gender, ethnicity etc, and

5. Social and economic conditions, particularly poverty and socio-economic inequalities.

UNDERSTANDING THE JUVENILE JUSTICE SYSTEM

The United Nations Secretary-General’s report on “Rule of law and transitional justice in

conflictand post-conflict societies” (August 2004) defines “justice” as an ideal of accountability

and fairness in the protection, vindication of rights and the prevention and punishment of

wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for

the wellbeing of society at large”. The juvenile justice system is the machinery specifically

created for juveniles in conflict with law; it could either function within the adult criminal justice

system or independently. It need not be a single entity. It is usually a large network of

institutions and groups that are involved in the delivery of juvenile justice (such as police,

Children’s Homes/Centers, Juvenile Courts/Panels/Boards, the concerned State Departments,

judiciary, governmental and non-governmental organizations). Some of the fundamental

principles of a juvenile justice system include humane treatment of children, creating a child-

centered system, provision of specialized services along with a multi disciplinary approach.

“Juvenile justice” can also refer to legislations, norms and standards of arrest, conditions of bail

and detention, procedures and judicial processes (from first entry of the juvenile to

reintegration), institutions and bodies specifically applicable to juvenile offenders. It also

includes efforts to address the root causes of offending behaviour and implement measures to


prevent such behavior (Juvenile Justice Training Manual, Penal Reform International and

UNICEF). The justice system comprises State-run law enforcement institutions (Observation

Home, Special Home, Juvenile Justice Board, Special Juvenile Police Unit (within the police),

Prosecution services, and legal aid). The non-State mechanisms include voluntary workers,

NGOs, academic centers, police/judicial training centres, and child related Commissions

established by the State.6

In different countries the juvenile justice system has evolved based on the legal mandates of the

country and societal realities. According to Butts, et al., (2005) intervening with young offenders

before they graduate to serious crime is a basic principle of the juvenile justice system. Creating

opportunities for the development of children and reducing their vulnerability is another key

objective. The United Nations ‘Committee on the Rights of the Child’ in their “General

Comment no. 10” (2007) asserts that “Children differ from adults in their physical and

psychological development, and their emotional and educational needs. Such differences

constitute the basis for the lesser culpability of children in conflict with the law. These and other

differences are the reasons for a separate juvenile justice system and require a different treatment

for children. In all decisions taken within the context of administration of juvenile justice the best

interests of the child should be a primary consideration”

History of Juvenile Justice Legislations in India since 1986 and their specific provisions:

1. Juvenile Justice Act 1986

JJ Act was enacted in pursuance of the Beijing Rules 1985, prior to the CRC

Definition of juvenile or child – 16 years for boys and 18 years for girls

Children were categorized as delinquent juveniles and neglected juveniles

Both categories of children were kept in an Observation Home together pending inquiry

Juvenile Welfare Board was formed to deal with the neglected juveniles and the Juvenile Court

was the adjudicating authority for the delinquent juvenile

6 UN Common Approach to Justice for Children, 2008, http:www.unrol.org/doc


The neglected juveniles were in the Juvenile Home and the delinquent juveniles to the Special

Home

The Government of India ratified the United Nations Convention on the Rights of the Child in

1992 thereby making it expedient to adhere to the standards prescribed in the Convention.

Hence, the 1986 JJ Act had to be reviewed and changes had to be made in order to secure the

best interest of the child and focus on social re-integration of the child without resorting to

judiciary

The JJ Act 1986 was repealed and the Juvenile Justice (Care and Protection of Children) Act

2000 was passed taking into consideration all the International standards prescribed as per the

Convention on the Rights of the Child, the Standard Minimum Rules for the Administration of

Juvenile Justice, 1985 (Beijing Rules), The UN Guidelines for the Prevention of Juvenile

Delinquency called the Riyadh Guidelines, 1990 and the United Nations Rules for the Protection

of Juveniles Deprived of their Liberty (1990)

2. The Juvenile Justice (Care and Protection of Children) Act 2000

The Title of the Act stresses on the need for care and protection to both categories of children

Uniform age for both boys and girls – any child who has not completed the age of 18 fall

within the jurisdiction of the Act to comply with the CRC definition of the child

Separation of child in need of care and protection and child in conflict with law

Constitution of Child Welfare Committees to deal with children in need of care and protection

and Juvenile Justice Boards to handle children in conflict with law

The category of children in need of care and protection has been expanded to include victim of

armed conflict, natural calamity, civil commotion, child who is found vulnerable and likely to be

inducted into drug abuse


http://www.legalserviceindia.com/constitution/const_home.htm

More legal protection assured for the child in conflict with law – detention to be resorted to as

the last option, disqualification of past records and privacy maintained

The innovation the law makes with respect to children in need of care and protection is the

conceptualization of restoration of the child as being the focal point, with restoration being

conceptualized as restoration to parents, adopted parents or foster parents. (Sec39).

The law outlines four options of restoration for children in children’s homes and special homes

which include adoption, foster care, and sponsorship and after care.

3. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006

The JJ Act 2000 was subsequently amended and hereafter referred to as the Principal Act

The Amendment Act brought about 26 amendments which are in force

This Act forms the legal system and framework for the care, protection, treatment and

rehabilitation of children of both categories

The Objective of the Act:

- To Lay Down A Legal Structure For The Juvenile Justice System In The Country

- To Provide A Special Approach To The Protection And Treatment Of Juveniles

- To outline the machinery and infrastructure required for the care, protection, treatment,

development and rehabilitation of juveniles

- To establish norms and standards for administration of juvenile justice

- To establish linkages and co-ordination between the formal system of juvenile justice and

voluntary efforts in the welfare of juveniles

- To constitute special offences in relation to juveniles and provide punishment.

Salient features of Juvenile Justice Act:

a) The Act known as ‘The Reformatory Act’ deals with two categories of children, namely

children in need of care and protection and children in conflict with the law.

b) The competent authority to deal with children in need of care and protection is the Child

Welfare Committee which constitutes a Chairperson and four other members, one of


whom at least should be a woman. Chapter IV of this Module would focus in detail about

Children in need of care and protection and the functioning of the CWC in rehabilitation

and disposition of cases.

c) Juvenile Justice Board (JJB) is the competent authority to deal with children in conflict

with law which comprises of three members. The Chairperson of the Board should be a

First Class Judicial Magistrate and two honorary social workers out of whom at least one

should be a woman. Special provisions for children in conflict with law and the

responsibilities of the Board are discussed in detail in Chapter III of this Module.

2. The Act provides for the establishment of various kinds of Institutions such as

- Children’s Home for the reception of child in need of care and protection.

- Special Homes for the reception of child in conflict with law

- Observation Homes which are meant for the temporary reception of children during the

pendency of any inquiry.

- After-care Organizations which are meant for the purpose of taking care of children after they

have been discharged from Children’s Home or Special Homes.

3. A few sections in the Act (Sec 23–26) are focused on the offences committed by anyone

against a child such as assault, causing mental or physical suffering and employment of a child

which are considered as non bailable offences.

iii. Rules under the Juvenile Justice (Care and Protection of Children) Act 2000 (56 of 2000) and

the Amendment Act 33 of 2006):

The Ministry of Women and Child Development at New Delhi, the 26th day of October, notified

the Model Rules under the Juvenile Justice (Care and Protection of Children) Act 2000 and the

Amendment Act 2006 to be administered by the States for better implementation and

administration of the provisions of the Act in its true spirit and substance.

These rules called the Juvenile Justice (Care and Protection of Children) Rules, 2007 has come

into force on the date of its publication in the Official Gazette and these Rules will be conformed


to until the concerned State Government formulates Rules specific for the State with effect to

implementation of the JJ Act.

Integrating Welfare and Justice

While viewing the rehabilitation of children within the legal framework, the integration between

“Justice” and “Welfare” is of critical importance. “The traditional concerns of the law are

procedural fairness, protecting the innocent against arbitrary decisions, and the punishment of

wrong doers according to the seriousness of their offence”, whereas “welfare is represented by

the desire of the law to diagnose the underlying problems of children who commit crimes and to

treat these problems in some therapeutic way”. The modern theory of juvenile justice argues for

individualized justice tailored to treat a wide range of factors. Penal Reform International and

(Juvenile Justice Training Manual, note that the juvenile justice system is governed by a

philosophy of least restrictive action, that is, to the extent possible, the juvenile should not be in

custody and should be in alternate care. In the Indian context, it would be largely in the care of

parents/extended family members. The manner in which these children are treated by the justice

system is a critical factor in determining the extent and quality of their reintegration into their

families, schools and communities (Penal Reform International and UNICEF, Juvenile Justice

Training Manual

The “Age” Factor

Though it is difficult is to create a clear distinction regarding the period of transition between

childhood, adolescence and adulthood, the age of legal responsibility or “criminal responsibility”

has been clearly defined in most countries. In India, the age of “criminal responsibility” is seven

years. This means that children below seven years cannot be apprehended on any offence charge.

The entire juvenile justice system is based on the age factor and the life span perspective, which

holds that capacities of children are evolving and until a certain age, they are unable to fully

understand and anticipate the consequences and impact of their actions and/or behaviour. Thus

age plays a crucial role. It separates the adult from the child, even though both of them may have

committed the same kind of crime. Age also has a bearing on the way the child who has

committed an act of offence is treated vis-à-vis an adult who may have committed the same

offence. A juvenile offenders ‘behaviour’ of breaking a law would be would be addressed with


correction, guidance or support. They may be considered “immature”. Adult criminals are

viewed as fully responsible for their behaviour and deserving of punishment. This view has led

to the establishment of a different set of law, a special court and a different jurisprudence for the

young offender. The emphasis is more on correction and rehabilitation rather than punishment.

The juvenile justice system for children who commit crimes is different from the adult criminal

justice system. In case of Umesh Chandra Vs. State of Rajisthan7 a three judges bench As regards

the general applicability of the Act, we are clearly of the view that the relevant date for the

applicability of the Act is the date on which the offence takes place. In 2000 there appeared to be

a shift in the view of the Hon’ble Supreme Court it observed in the case of Arnit Das Vs. State

of Bihar8, that “So far as the present context is concerned we are clear in our mind that the

crucial date of determining the question whether a person is a juvenile is the date when he is

brought before the competent authority”. This crucial issue was once again considered by a five

Judge Bench in case of Pratap Singh Vs. State of Jharkhand and others,9and it was held that the

reckoning date for the determination of the age of the juvenile is the date of the offence and not

the date when he is produced before the authority or in the court”

Children Act was enacted to protect young children from the consequences of their criminal acts

on the footing that their mind at that age could not be said to be mature for imputing mens area

as in the case of an adult. This being the intendment of the Act, a clear finding has to be

recorded that the relevant date for applicability of the Act is the date on which the offence takes

place. It acknowledges that the child, though responsible for any act committed, requires a

different approach vis-a-vis adult offenders. The emphasis is on a child’s right to family,

education, rehabilitation and social reintegration. This is imperative, as very often children who

commit offences have already been denied of their basic rights of education and development.

Poverty can deprive children and their family of a steady income and livelihood, and a sense of

security. This is crucial for a child to grow up well. Moreover other exacerbating factors such as

strained and/or violent family relationships also affect the overall well being of the child. At

several points in time, this can be a push factor leading them into the web of crime. They become

vulnerable to delinquency.

7 AIR 1982 SC 10578 AIR 2000 SC 22449 AIR 2005 SC 2731


Juvenile Justice Legislations in India:

The first central legislation on Juvenile Justice was passed in 1986, by the Union Parliament,

providing a uniform law on juvenile justice for the entire country. Prior to this law each state had

its own enactment on juvenile justice with there being differences in the way juveniles were

treated by different state legal systems. The Juvenile Justice Act was thus passed to provide care,

protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for

the settlement of certain matters related to and disposition of delinquent juveniles.

One major issues before the legislature is regarding the age of the juvenile. After Pratap Singh's

case10, the legislature through the amendment in 2006 removed any doubt by setting out in

Section 2 (l) definition of juvenile in conflict with law to mean a juvenile who is alleged to have

committed an offence and has not completed 18 years of age as on the date of commission of

such offence.

Explanation to Section 20 has also been added which further clarifies that in all pending cases

including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in

conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in

terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of

commencement of this Act and the provisions of this Act shall apply as if the said provisions had

been in force, for all purposes and at all material times when the alleged offence was committed.

Further Section 7(a) has also been added which allows a person to raise a plea of juvenility even

after final disposal of the case and puts obligation on the court to conduct an inquiry to ascertain

such person's age as on the date of offence and if found to be a juvenile on that day, to transfer

the case to the Juvenile Justice Board for appropriate orders.

Section 64 of JJ Act extends the benefit of the provisions of act to those persons undergoing

sentence of imprisonment at the commencement of the act and who were below 18 years of age

as on the date of offence.

All doubts regarding the age for computation of “juvenility” have been now laid at rest by

judgment of Supreme Court delivered on 05.05.2009 in case of Hari Ram Vs. State of

10 ibid


Rajasthan & Anr,11 “The law as now crystallized on a conjoint reading of Sections 2(k),

2(l), 7A, 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were

below the age of 18 years on the date of commission of the offence even prior to 1st April,

2001, would be treated as juveniles, even if the claim of juvenility was raised after

they had attained the age of 18 years on or before the date of commencement of the Act and were

undergoing sentence upon being convicted.”

There are certain guiding principles which need to be adhered to in the administration of juvenile

justice and they form the basis on which the Act and the Rules are formed. The juvenile justice

functionaries should abide by the following fundamental principles in order to understand the

Act, interpret according to the situation in which the child is taken into custody and most

importantly contribute to better and effective implementation of the Act. They are basically

drawn from all the national and international standards pertaining to children wherein a strong

impetus is given to the fulfillment and protection of the child’s rights. Emphasis is also laid on

reintegration of the child into the family system to ensure proper care and protection from all

kinds of exploitative situations

Over riding effect of juvenile legislation.

The provisions of Juvenile Justice (Care and Protection of Children) Act 2000 have an overriding

effect on all other legislations irrespective of the nature of offence committed by a child who is

less than 18 years of age as on the date of commission of offence.

Section 1(4) provides: Notwithstanding anything contained in any other law for the time being in

force the provisions of this Act shall apply to all cases involving detention, prosecution, penalty

or sentence of imprisonment of juveniles in conflict with law under such other law.

In case of Raj Singh vs. State of Haryana,12 it was held that juvenile legislation shall reign

supreme in juvenile cases no matter the nature of offence committed .

Thus irrespective of the provision/ Act under which a case is registered against a juvenile, the

juvenile is to be dealt with only under the J.J Act and not any other special Act for the purposes

of inquiry and any final order pursuant thereto.

11 CRIMINAL APPEAL NO. 907 OF 2009 (Arising out of S.L.P.(Crl.)No.3336 of 2006)12 (2000) 6 SCC 759,


Another crucial issue is as to when the plea of juvenality can be raised.It has been a settled

position that the plea of juvenility can be raised at any stage, even after a person has been

sentenced by trial court. There are many important judgements on this aspect. In case of

Jayendra & Anr. Vs. State of Uttar Pradesh13 the appellant was about 16 year old on the date of

commission of the offence and on the date of report during appeal before the supreme court he

was about 23 year old. The court held that the appellant should be released forth with in the view

that he can neither be imprisoned nor could be sent to approved school, being more than 18 year

of age.

Principles to be followed in administration of the rules:

- Principle of presumption of innocence

- Principle of dignity and worth

- Principle of Right to be heard:

- Principle of Best Interest:

- Principle of family responsibility:

- Principle of Safety (no harm, no abuse, no neglect, no exploitation and no maltreatment):

- Positive measures to promote well being of the child, reduce vulnerabilities and aim at

development of child’s identity :

- Principle of non-stigmatizing semantics, decisions and actions:

- Principle of non-waiver of rights:

- Principle of equality and non-discrimination:

- Principle of right to privacy and confidentiality:

- Principle of last resort:

- Principle of repatriation and restoration:

- Principle of Fresh Start

The Act in Section 68 prescribes various areas wherein the Rules can be applied to for better

implementation of the Act, specifically with management of the homes, standards to be adhered

to, roles and responsibilities of the JJ functionaries, procedures and functioning of the competent

authority.

13 (1981) 4 SCC 149


It is recommended that the Act is implemented in line with the Rules to promote better

understanding of the Act in order to benefit the children who come in contact with the JJ System.

However, the interest in protection of juveniles has to be balanced with the interest of protecting

particularly vulnerable members of society from violent crimes committed by persons under 18

years of age and amending the law when societal conditions radically change over time. As per

the reports of the National Crime Records Bureau (NCRB) entitled “Crime in India 2011” and

“Crime in India 2012,” the percentage of crimes committed by juveniles as compared to total

crimes has not significantly increased from 2001-2012. According to the NCRB statistics, India

is not in the throes of a general crime wave by juveniles. However, the NCRB statistics relating

to violent crimes by juveniles against women are very troubling. “Crime in India 2011” suggests

the number of rapes committed by juveniles has more than doubled over the past decade from

399 rapes in 2001 to 858 rapes in 2010. “Crime in India 2012” records that the total number of

rapes committed by juveniles more than doubled from 485 in 2002 to 1149 in 2011.

As the data suggests, between 2011 and 2012 alone, there was a massive increase in instances of

rape by juveniles by nearly 300, which is almost as much as the increase in such cases over the

entire previous decade. This increase alone makes amendment of the JJA imperative.

The improvement of the juvenile justice system is a gradual process, which requires intensive

and continual follow-up as well as long-term commitment rather than a series of ‘ad hoc’

exercises and ‘knee-jerk’ responses. Training programs should be based on participatory

techniques that promote sensitization and behavioral changes among the various stakeholders

responsible for the working of the juvenile justice system. Training also creates opportunities for

stakeholders to interact amongst themselves and get a better understanding of the constraint .

It is vital for the authorities involved in the juvenile justice system to build effective partnerships

with civil society. Non-Governmental Organisations (NGO’s) have the capacity to

provide community-based life-skills programs, ‘group counseling’, community work

opportunities, and open ‘custody group homes’ for children in conflict with law. Voluntary

sector organisations can thus help the governmental agencies to engineer a substantial shift

towards non-custodial alternatives for corrective measures involving juveniles.

However, though the juvenile system at present needs some major amendments in its various


parts, this article will be mainly focusing on the issue of age to categorize an individual as a

juvenile or as to what should be the lines to decide as to whether the accused should be treated in

the juvenile board or in an adult court. Should we follow the JJA strictly in black and white, or

can we dilute it at times, as per the demanding needs of the justice? Should “AGE” alone be the

criteria to place an accused in the category of juvenile or should the “MATURITY” of the

accused be also taken into consideration?

Delhi Gang Rape (Nirbhaya) Case

The recent gang rape of a 23-year old girl in New Delhi, India raised a lot of pertinent questions

in the minds of the public. People across the country reacted with rage and hurt and collectively

came together to start a movement for the safety of women in India. In the midst of this agitation,

the media shared details about a young boy whose odious acts of violence further sculpted public

opinion. The people of India called for amendments in the juvenile justice system by reducing

the age of juveniles to 16 years (currently 18 years) whilst child rights organizations/activists

argued to adhere to the present justice system for children.

Delhi gang rape was mainly the incident which forced the authorities to pay heed to this topic

once again and brought into spotlight the criteria of classifying an individual for the juvenile

trial. It was after and due to this incident only that public protests against the Government of

India and the Government of Delhi took place for not providing adequate security for women in

New Delhi, where thousands of protesters clashed with security forces. Similar protests took

place in major cities throughout the country. This incident generated widespread national and

international coverage and was widely condemned, both in India and abroad.

The brutal incident took place on 16th of December, 2012. The case involved a rape and murder

that occurred on the fateful day in Munirka, a neighborhood located in the southern part of New

Delhi, when a 23-year-old female physiotherapy intern was beaten and gang raped in a private

bus in which she was travelling with a male friend. There were six others in the bus, including

the driver, all of whom raped the woman. The woman died from her injuries thirteen days later

while undergoing emergency treatment in Singapore.


All the accused were arrested and charged with sexual assault and murder. One of the accused,

Ram Singh, died in police custody on 11 March 2013 in the Tihar Jail. The rest of the accused

went on trial in a fast-track court; the prosecution completed its evidence on 8 July. On 10th

September 2013, the four remaining adult defendants were found guilty of rape and murder and

three days later were sentenced to death by hanging. And one of the accused, who was a juvenile,

was convicted of rape and murder and given the maximum sentence of three years' imprisonment

in a reform facility, as per the JJ act. It was the conviction of this juvenile in this case, which

raised the hue and cry for lowering down the age of juvenile from 18 to 16, so that the juvenile

accused, who was the main culprit in the case be tried in an adult court as other accused.

In the 33-page charge sheet, the Delhi Police described the juvenile as the most brutal of the six

accused . The accused was declared as 17 years and six months old on the day of the crime by

the Juvenile Justice Board (JJB), which relied on his birth certificate and school documents. The

JJB rejected a police request for a bone ossification (age determination) test for a positive

documentation of his age.

On 28th January, the juvenile was declared to be a juvenile by the JJB. A petition moved by

Janata Party president Subramanian Swamy seeking the prosecution of the minor as an adult

because of the ghastly nature of his alleged crime was rejected by the JJB. The minor was tried

separately in a juvenile court.

On 31st August, the juvenile was convicted of rape and murder under the Juvenile Justice Act

and given the maximum sentence of three years' imprisonment in a reform facility, inclusive of

the eight months he spent in remand during the trial.

Discussion on the Issue

As of now, one of the biggest challenge posing a big question mark on the face of all the judicial

authorities in regards to the juvenile is to what should be the criteria of classifying as to whether

the case of a juvenile should be tried in a juvenile court or not? Should age be the only criteria

for this purpose? Should judges follow the JJ act blindly in black and white i.e. categorizing

cases solely on the basis of the age, without going into the intention and purpose of the

legislators behind enacting such type of legislation?


In the Delhi incident, one of the accused was aged about 17 years i.e. below 18 years and as per

the prevailing law has been treated as a juvenile and kept in some reformatory school/ borstal

jail. Not only this, as per the prevailing law the Juvenile Justice (Care and Protection of

Children) Act, 2000, his trial was also conducted separately and even after being found guilty of

rape and murder was awarded only a tiny imprisonment in a reform facility up to 3 years.”

Now, the question that is facing towards us all is that whether such modest punishment for his

such a heinous and grevious act is enough and fulfilling its purpose?

As per the researcher, since the Act has no parameter about the physical or mental maturity of a

juvenile is mentioned, it has like given license to “all matured, cruel type of persons under the

age of 18 years to live with full impunity and commit any crime of any level and walk scot free

only on the basis of their age being less than 18 years and being covered under the Juvenile

Justice Act.”

The issue has assumed “public significance” as such a “juvenile would make mockery of law and

would walk free without any appropriate punishment and fair trial as far as the victim is

concerned.”

As per the researcher, Delhi gang rape case was an example that should be “taken into

consideration by the official respondents to immediately carry out amendments in the definition

of juvenility and insert appropriate exceptions which would cover the facts and circumstances of

that case and which would include the gravity and heinousness involved in that particular case

along with the level of maturity and understanding of that particular offence by the juvenile

concerned.”

“The insertion of the exception is the need of the hour as the law on this aspect is totally silent

and people would use the silence of law to their benefit as has been done in the Delhi incident.”

The time has come in order to bring some reform in the Juvenile laws as there is a steep rise in

serious crimes involving youth of 16 – 18 years of age and they very well know that below 18

years is the 'getaway pass' for them from the criminal prosecution. The punishment should be

made a bit deterrent in order to inject the feeling of fear in the mind of the criminal.


JJ Act needs amendment as it does not talk about the physical or mental maturity of a

juvenile

The two main components of any crime in law is “Actus Rea” and “Mens Rea” and when both

the components are proved in the court of law, then only an individual is convicted. Now, in the

case of a juvenile, the actus rea part of his offence is protected under the juvenile law and the

mens rea part is never taken into consideration, as there are no parameters to judge the same.

Having no parameters about the physical or mental maturity of a juvenile, it has like given a

license to “all matured, cruel type of persons under the age of 18 years to live with full impunity

and commit any crime of any level and walk scot free only on the basis of their age being less

than 18 years and being covered under the Juvenile Justice (Care & Protection of Children) Act.”

The mental maturity of the juvenile is to be judged on the fact if he was fully aware and

conscious during the execution of the crime. If not then an adult of the age of 30 who has

committed a crime unintentionally should be tried at the juvenile court for the reason that he was

not mentally alert. The researcher would vow that age is no reason to exempt somebody who has

brutally raped and been the reason for the death of a future Indian when he was completely

aware and conscious of what he was doing. A hard step now can be a warning to the many young

minds who grow up today and design their perspectives for tomorrow considering the handling

of law in their hands just for fun.

CONCLUSIONLaws should be dynamic in nature and should change with the changing society.

It is a famous saying that whatever will not change with the changing time, will ultimately result

in failure and so stands for the law as well. Society is not static, it is dynamic. Its needs change

with time to survive. It is correct to reform and rehabilitate a child in conflict with law, however


we should not send a signal in society that a person below 18 years of age can commit any kind

of heinous acts and still get away with a minor penalty . So, need is to take into account mental

maturity age of person and not just chronological age while deciding the case. Facilities at

reformation centre should be improved so that real rehabilitation happens rather than just lip

service.

Today, with breakdown of joint family system, rise of nuclear family, increasing influence of

social media children are exposed to a number of threats -psychological, physical, sexual. In our

country inspite of political equality, inequalities like socio-economical, regional, are wide

spread. Need of the hour is to build character of our future generation. Society should evolve a

procedure (Mentoring, etc) to supervise and guide children during adolescent age so that they

learn to respect fellow citizens, RTE act should be strengthen to include children up to 18 years

of age into education system, since education has a transformative effect on a person, training to

deal with different crisis in life and most important patriarchal attitude of society towards

females should change.


Children in conflict with law

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