INTRODUCTION

“There can be no keener revelation of a society’s soul than the way in which it treats its

children.”

- Nelson Mandela.

Recognition of the rightful place of the child in the societal fabric, a paradigm shift from a need-

based approach to a right-based approach, aspiring development and mainstreaming of the child,

was a high water mark of progressive democracies in the last century. Child-centric human

rights jurisprudence has become pivotal in the law’s role in social engineering.

The word ‘juvenile’ originates in ‘juvenis’(Latin, young). Juvenile justice is the legal system that

aspires to protect all children, bringing within its ambit the children in need of protection,

besides those in conflict with law. However, the word has come to be used together and often

interchangeably with ‘delinquency’ – which describes children who are in conflict with law,

conjuring an image of violence.

The Juvenile Justice System in India, the ripple effect of the criminal justice system, has always

been marked by the tussle between the protective approach of juvenile justice and the traditional

approach of the latter. Despite the Constitutional guarantees and a plethora of child-centric

legislations and civil rights, innumerable Indian children, face widespread discrimination and

deprivation.

1

HISTORY

Development of Juvenile Justice System in India

Independence ushered in a new era for children in the country. The Constitution of India took

care of survival, development and protection needs of children by making relevant provisions in

‘Fundamental Rights’ and ‘Directive Principles of State Policy’. 

Children Act 1960

The special status accorded to children in the Constitution and the fact that there was a

substantial growth in the number of destitute, neglected and delinquent children in the wake of

partition, saw some special programmes being taken up to meet the needs of this group of

children during the First Five-Year Plan. Industrialization coupled with urbanization further

brought forth its own set of problems for children. One of them was increase in cases of juvenile

delinquency in large cities, the most common offence being theft. As legislation for dealing with

delinquent children existed only in few states, the Government of India enacted the Children Act

1960. The Act, however, was applicable only to the Union Territories as it was a model to be

followed by the states in the enactment of their respective Children Acts. 

The 1960 Children Act, provided for the care, protection, maintenance, welfare, training,

education and rehabilitation of neglected and delinquent children. For the first time in India, the

Children Act prohibited the imprisonment of children under any circumstance. It provided for

separate adjudicatory bodies – a children court and a child welfare board - to deal with

2

delinquent and neglected children. The Act also introduced a system of three-tier institutions,

namely, an observation home for receiving children during the pendency of their proceedings, a

children’s home for accommodating neglected children, and a special school for delinquent

children. It, however, introduced a sex discriminatory definition of child.Child in case of a boy

was one who was below 16 years and in case of a girl below 18 years of age. All states

subsequently enacted similar, but not exactly the same Children Acts. The definition of the term

child differed from state to state. As a result, delinquent and neglected children were subjected to

differential treatment emanating from the diverse conceptions of child and childhood.

Juvenile Justice Act 1986

The need for a uniform Children Act across the country paved the way for the enactment of the

1986 Juvenile Justice Act (JJA). It promoted ‘the best interest of the juveniles’ by incorporating

into its fold not only the major provisions and clauses of the Indian Constitution and the 1974

National Policy Resolution for Children but also the universally agreed principles and standards

for the protection of juveniles such as the 1959 United Nations Declaration of the Rights of the

Child and the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile

Justice (Beijing Rules). The JJA overruled imprisonment of juveniles in police lock-up or jail.

Other than this, it stipulated two main authorities – a juvenile welfare board and a juvenile court

– to deal with neglected and delinquent juveniles. It also stipulated establishment of various

kinds of institutions for the care of juveniles – a juvenile home for the reception of neglected

juveniles, a special home for the reception of delinquent juveniles, an observation home for the

temporary reception of juveniles during the pendency of any inquiry regarding them, and an

3

after-care home for the purpose of taking care of juveniles after they were discharged from a

juvenile home or a special home. It further guaranteed a wide range of dispositional alternatives

with preference for family or community-based placement, and a vigorous involvement of

voluntary agencies at various stages of the juvenile justice process. The basic ideology for

adopting this differential approach was to save children from devastating ill-effects of

criminalization, penalization and stigmatization. With the enactment of the JJA, the “welfare”

approach gave way to the “justice” paradigm (Maharukh Adenwalla: 2006). 

But the implementation of the JJA had many loopholes in terms of age determination, separate

trials, court proceedings, notification of charges to parents or guardians, filing of reports by

probation officers, reasons for and length of confinement, rehabilitation and after care of

juveniles. The juveniles were often not provided with a copy of the rules governing their

detention and the written description of their rights. Many juveniles housed in institutions run by

the government did not know the purpose of their stay and the future of their institutionalization.

Like the 1960 Children Act, the JJA too promoted a sex discriminatory definition of a juvenile.

Moreover, most of the states and union territories who had formulated their Rules for the

implementation of the JJA were devoid of the basic infrastructure consisting of juvenile welfare

boards, juvenile courts, observation homes, juvenile homes, special homes and after care homes.

They had also not taken up the required measures for observance of minimum standards for

institutional care or for the advancement of non-institutional care, such as foster care,

sponsorship, adoption, etc. The chasm between reality and the application of the law was felt all

the more with the adoption of the 1989 Convention on the Rights of the Child (CRC) and its

ratification by the Government of India in 1992. The provisions of the CRC with regard to

children in conflict with law were amplified in two other United Nations instruments - the United

4

Nations Guidelines for the Administration of Juvenile Delinquency (Riyadh Guidelines) and the

United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules). Both

provide detailed directions about the processes to be followed by the juvenile justice system in

dealing with persons below the age of 18. The 1993 World Conference on Human Rights in

Vienna and the successive adoption of Vienna Declaration and Programme of Action which

urged States to ratify and implement promptly the CRC too made a definitive impact on all those

concerned with the plight of these children in India including the government.

Juvenile Justice (Care & Protection of Children) Act 2000

Taking a cue from all these developments, the government recast the JJA so that it could be in

consonance with the CRC and brought in a new Act, the 2000 Juvenile Justice (Care &

Protection of Children) Act. The passing of this Act endorsed the “justice” as well as the “rights”

approach towards children and moreover made use of a better terminology by providing for

“juveniles in conflict with law” and “children in need of care and protection”. It calls for keeping

both the categories separate pending their inquiries. This segregation aims to curb the bad

influence on the child who is in need of care and protection from the one who is in conflict with

law. The JJA 2000 brings about standardization in the definition of a ‘juvenile’ or a ‘child’

across the country except for Jammu and Kashmir. A ‘juvenile’ or ‘child’ is a person who has

not completed eighteenth year of age. Juveniles in conflict with law include all those children

alleged to or found to have committed an offence. They are to be handled by the juvenile justice

board. Children in need of care and protection cover a range of ‘at risk’ children to be dealt by

child welfare committee. While dealing with juveniles and children, it gave importance to their

5

respective families for tendering of advice and counselling. It furthermore introduced a wide

range of community placement options for juveniles and children. The 2000 Act, though passed

with good intentions, overlooked the inclusion of certain substantive and procedural due process

rights.

Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006

JJA 2000 was further amended in 2006 to make it clear that juvenility would be reckoned from

the date of commission of offence who have not completed eighteenth year of age thus clarifying

ambiguities raised inArnit Das vs State of Bihar [(2000] 5 SCC 488]. The amendment also made

it clear that under no circumstances, a juvenile in conflict with law is to be kept in a police lock-

up or lodged in a jail. In addition, it stipulated that the Chief Judicial Magistrate or the Chief

Metropolitan Magistrate is to review the pendency of cases of the Board at every six months, and

child protection units should be set up in states and districts to see to the implementation of the

Act. 

National Human Rights Commission and Measures for Juvenile Justice System

The National Human Rights Commission (NHRC) is an embodiment of India’s concern for the

promotion and protection of human rights. Ever since the NHRC came into existence, it has been

concerned about the plight of juveniles who come in conflict with law and children who are in

need of care and protection. While the Law Division of the NHRC has been dealing with

complaints; the Policy Research, Projects and Programmes Division of the NHRC has been

monitoring the implementation of the related Act at the national level as well as studying and

6

recommending effective application of those international instruments that intend to improve the

overall functioning of the juvenile justice system in the country. Some instances of NHRC

intervention in this regard are given below.

Deaths and Rapes in Homes set up under JJA 1986

In September 1996, the NHRC called for information with regard to incidents of deaths and

rapes in Homes set-up under the JJA 1986 within 24 hours of its occurrence by writing to the

Chief Secretaries/Administrators of all the States/Union Territories. Later, in February 2002, the

NHRC modified its existing instructions on the subject directing that an inquest by a Magistrate

be conducted immediately in all cases of deaths in Homes and the report – including comments

on possible medical negligence – to be sent to the NHRC. In case of any allegation of

rape/unnatural offence on any inmate of the Home, a criminal case should be registered

immediately against the offending staff member/officer and a copy of the FIR and the

supervision note should invariably be sent to the NHRC. If any foul play is suspected in the

magisterial inquest, the post-mortem examination should invariably be done and the post-mortem

report sent to the NHRC. In all cases of death of an inmate where the initial inquest by a

Magistrate indicates some foul-play, magisterial inquiry should be made mandatory.

Escape of Inmates from Juvenile Homes

Under this broad head, the NHRC dealt with 87 cases, where its attention was drawn to the

escape of several inmates from the Beggars’ Homes/Juvenile Homes/Remand Homes situated in

7

different parts of Maharashtra. The Commission pointed out that it was the state government’s

duty to take appropriate measures for the safe custody of the inmates. The escape of such a large

number of inmates was indicative of the fact that there were either serious infrastructural

deficiencies or that security arrangements were faulty.

The Commission directed that the state chief secretary should review the functioning of these

homes with a view to ensuring better care and avoiding the recurrence of circumstances leading

to such incidents (NHRC: Annual Report 1998-1999).

Illegal Detention of a Three-year-old Child for Ten Years

A former Member of Parliament drew the attention of the NHRC to the plight of a young girl

who had witnessed a murder, and was thereafter, detained in police custody for about ten years.

The NHRC immediately took note of the letter and called for a report from the Director General

of Police, West Bengal. The report of the Director General of Police stated that on 30 March

1990, the learned Magistrate, Nadia had ordered that one child, who was an eyewitness in a case

in which her father had allegedly murdered her mother, should be lodged at Liluaha Home and

produced in the court, as and when required. She was last produced in the court on 20 September

1996, wherein she failed to identify the accused. In 1992, she was shifted from Liluaha Home to

a Child Care Home (run by an NGO) on the orders of an IAS Officer who was also the ex-officio

Director of Social Welfare Department, West Bengal, for proper upkeep, schooling, protection,

care and further rehabilitation of the concerned child. However, when the said NGO approached

the learned court for approval of transfer, the learned Sessions Judge termed the act as highly

irregular and asked for an explanation from the Director of Social Welfare for having transferred

the child without prior approval and intimation to the court. Subsequently, she was again sent

8

back to Liluaha Home. Through its memo dated 1 September 1997, the Social Welfare

Department once more directed transfer of the child to a government approved/recognized NGO

Child Care Home for her education, care and rehabilitation. The report stated that the court had

not passed any order so far.

The Commission expressed its shock at the inhuman and apathetic manner in which the case was

handled by the police and other authorities. It found the very idea of retaining a girl child, who

was only three years old at the time of the incident, and considering her competent to be a

witness in a court of law, and keeping her waiting for the commencement of the trial for ten long

years, as shocking. The appalling lack of interest shown by the authorities in the welfare of the

innocent child resulted in depriving her of her normal childhood which could never be regained.

No amount of compensation, the Commission felt, would be adequate for the loss she had

suffered. However, it recommended to the Government of West Bengal to ensure that the child is

suitably rehabilitated and educated in an SOS Children’s Home or sent to a reputable institute

run by an NGO in or around the city of Calcutta, till she became a major. The Commission also

recommended that a sum of Rs.50,000/- be deposited in her name through a court guardian, the

interest of which would be paid to the institute looking after her, and the principal amount to be

released to her on her becoming a major to enable her to settle in life. Thereafter, a compliance

report from the Government of West Bengal was received in the matter (NHRC: Annual Report

1999-2000).

Other Measures

In October 2005, when the Registrar General of the High Court of Patna informed the NHRC

that the implementation of the JJA 2000 was extremely poor in Bihar, the NHRC once again

directed that the matter of juvenile justice be reviewed expeditiously in each state and union

9

territory. Prior to this, the NHRC in collaboration with an NGO (Socio-Legal Information

Centre, New Delhi) had undertaken a study concerning the implementation of the JJA 2000 in 16

states. Its findings revealed that the implementation of the JJA 2000 was poor in all its aspects

and needed to be strengthened.

The NHRC organized a two-day National Conference on Juvenile Justice System in India on 3

and 4 February 2007 in New Delhi. The Conference made a number of

recommendations/suggestions to improve the functioning of the juvenile justice system in the

country. It laid stress on the implementation of the JJA 2006 in both letter and spirit, urging the

states/union territories to establish the required infrastructure under the juvenile justice system to

ensure that there is zero pendency and that the inquiry is completed within the stipulated period.

It also emphasized on providing requisite care to ensure protection, growth and development of

children, both in conflict with law and in need of care and protection.

JUSTICE AND THE JUVENILE

Calls to dilute the Juvenile Justice Act in light of what is perceived as lenient punishment to the

juvenile offender in the Delhi gang rape case are understandable but misplaced. The crime shook

the country’s conscience, brought forth an unprecedented outpouring of anger and triggered

collective introspection on the safety of women and girls. But even though there is a view that

the young perpetrator has been able to get away lightly, this is not reason enough to question or

do away with the principles underlying juvenile justice. Separate legislation has existed in many

countries around the world since the early 20th century for the care and protection of children,

10

including child offenders. The present system in India was introduced by a 1986 Act and

improved upon in 2000. The JJ Act, 2000, a progressive legislation, replaced the regular judicial

process with a reformatory regime, favouring supervised probation or stay in an observation

home over imprisonment. The law tries to reform a young offender’s conduct rather than confine

him for decades in a prison with adult criminals, which only works to fan recidivist tendencies.

While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the

Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of

the large body of crime in the country. However, merely going through a differential process for

juvenile offenders is not enough. It is obvious that the social contract underlying a lenient regime

requires equal attention to be paid to the design and implementation of a proper rehabilitation

process. Society will only countenance shielding young offenders guilty of great brutality from

the rigours of adult justice if it is confident that they will indeed benefit from the rehabilitative

approach to juvenile justice. In India, we need to guard against the complacent belief that a stint

in a remand home is enough for their rehabilitation. The atmosphere in many such facilities is

not conducive for reformation, and in fact may toughen or entrench criminal propensities. The

system should not end up creating a new underclass that combines a sense of triumph over

avoiding a prison term after committing heinous crimes, with the psychological effects of staying

under bleak, hope-denying conditions. Making juvenile correctional facilities more humane is

one part of the answer. But to address the need for proportionality — not so much in punishment

as in the necessity of socio-psychological repair — when a young offender commits truly

heinous crimes, a longer period of sustained counselling and rehabilitation ought to be an

essential part of the juvenile justice process even after the maximum period of remand is over.

11

DIVERSE JUSTICE STANDARDS AND DIVERSIFICATION OF LIABILITY: THE

NEED

Children need love, especially when they do not deserve it.”

-        Harold S Hulbert, child psychiatrist

Prescribing different treatment for juvenile offenders is an offshoot of the new penology, which

came to be applied with the realization that courts, procedures and prisons meant for adult

offenders could hardly be expected to serve the interests of juvenile offenders.  Erstwhile system

exposed delinquents to contamination due to incarceration with other criminals. The nation’s

future citizens deserve compassion and best care. A child is born innocent, and responsibility

should be attributed to such environmental factors that have stirred his criminal tendencies,

whose removal might mould him into a person of stature and excellence.

The child’s diminished legal capacities can be traced to the writings of thinkers like Locke. Since

antiquity he was exempted from the demands of utilitarian principles, subjected to different

standards of moral evaluation. John Stuart Mill extended the applicability of his doctrine only to

humans in the maturity of their faculties, emphasizing that those in a state to require being taken

care of by others, must be protected against their own actions and eternal injury. Fairness and

justness to children demands that their liability be diminished, that expecting the same maturity

and behaviour standards from the children as adults would be like treating “unequals as equals”,

and also ordains- as opined by John Rawls- that they must be subject to protective and restorative

measures as are most conducive to their societal re-integration.

12

  INTERNATIONAL LAW REGIME

The erstwhile League of Nations (1924) and the United Nations (1959) had adopted Declarations

on the Rights of Children- significant but non-binding. The seeds for the right-based approach

were sown in the ICCPR 1966. The eloquent evolution of the juvenile justice system has

culminated in the Convention on the Rights of the Child (CRC) 1989, a legally binding

instrument. It brings those less than 18 years of age under the ambit of the term ‘children’.

Articles 37 and 40 specifically and when read with the General Comment No.10, Children’s

Rights in Juvenile Justice, lay down a comprehensive mechanism that States must comply with,

taking note of the overall framework of the CRC and its main ‘umbrella rights’. The aforesaid

provisions must be read with the following international guidelines:

• Beijing Rules 1985;

• Riyadh Guidelines 1990;

• JDL Rules 1990;

• Tokyo Rules 1990;

• Guidelines for

€ Action on Children in the Criminal Justice System, ECOSOC Resolution 1997;

€  Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC

resolution 2005;

€  Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC

resolution 2005.

13

Preventing juveniles from coming into conflict with law in the first place and complete

rehabilitation by the time they leave the system is sought through alternative measures of

‘Diversion’ and ‘Restorative Justice’.

  INDIAN SCENARIO

Tracing the Evolution of the Law

• Pre-Independence Era

Differential treatment for children can be traced as far back as the Code of Hammurabi in

1790BC, the responsibility for their supervision and maintenance being vested on the

family. During the colonial regime the first center for destitute children called “Ragged

School” was established in 1843 by Lord Cornwallis. The period between 1850 and 1919,

marked by social and industrial upheavals, called for the enactment of the Apprentice Act

(1850), the IPC (1860), the CrPC (1861), and the Reformatory Act (1876 and 1897),

announcing the paradigm shift in the penal philosophy in India from punitive to

reformative.

As the country moved towards independence, recommendation to establish a special children’s

Act came from the Indian Jail Committee (1919–1920). Individual provincial governments chose

to enact separate legislation for juveniles in their respective jurisdictions; provinces of Madras,

Bengal and Bombay passed their own Children Acts in 1920, 1922 and 1924, respectively.

•   Post-Independence Era

•The Constitutional Scheme on the Protection of Juveniles

14

Article 15(3) enables the State to make special provisions for children. Entitlement to free

and compulsory education up to14 years has been read into Article 21. Articles 23&24

further enshrine fundamental protections and Article 45 is supplementary to Article 24.

Article 24 in turn supplements the Article 39(e)&(f) thus ensuring distributive justice to

children in the matter of education.

• India’s International Commitments and National moves on the issue

The second UN Congress on the Prevention of Crime and Treatment of Offenders at

London resulted in the enactment of the Central Children Act, 1960, followed by a

National Policy in 1974. India ratified the CRC in 1992; introduced a National Charter in

2003 and a National Plan of Action in 2005; and ratified in 2005 the CRC’s two optional

Protocols besides signing the SAARC Conventions. The concern over the issue is

reflected in the report of the Working Group on Development of Children for the

Eleventh Plan (2007-12) of the Planning Commission.

The CCA was replaced by Juvenile Justice Act, 1986, in conformity with Beijing Rules,

which was thereafter repealed by the Juvenile Justice (Care and Protection of Children)

Act 2000, amended in 2006. It has established the Child Welfare Committee to address

the needs of ‘children in need of care’ and the Juvenile Justice Board to deal with

‘children in conflict with the law’.

15

PORING OVER A FEW RELEVANT CASE LAW/AGE OF JUVENILES

Sanjay Suri  v. Delhi Administration1 proposed a separate structure to keep juveniles. The

issue of age of commission of offence has been elucidated under Sec.7A of JJAct, and

discussed in the noteworthy cases of Bhoop Ram v UP2, Gopinath Ghosh v West

Bengal3 and Bhola Bhagat v Bihar4. Age determination is of paramount importance to

find out whether the accused falls under the purview of the JJA and accurate recording of

the same is essential for deciding the duration of institutionalization. In Jaya Mala v.

Home Secretary, Government of J&K5, the apex court noted that the margin of error

radiological ascertaining is about two years. Validity of medical evidence was discussed

in Sunil Rathi v. U.P.6The issue of high pendency of cases was taken up in the case of

Sanat Sinha v Bihar7, and addressed by the insertion of Sec.14(2).Several directions were

issued to the Governments in Vishal Jeet v. UOI8 for eradicating the child prostitution

and for providing adequate rehabilitative homes.

A note of caution has been struck in regard to the apt interpretation of the beneficial legislation

in Pratap Singh v. Jharkhand9

IMPLEMENTATION RHETORIC: THE ROAD AHEAD

Despite the elucidation of comprehensive beneficial schemes for children, implementation is

defective. Appropriate training is absent; there’s tussle in granting bail to the delinquents, serious

1 AIR 1988 SC 4142 (1989) 3 SCC 13 AIR 1984 SC 2374 AIR 1998 SC 2365 AIR 1982 SC 12976 2006 (9) SCC 6037 1991 (2) Crimes 2418 (1990) 3 SCC 3189 AIR 2005 SC 2731

16

accountability concerns, and overall apathy. There are unprecedented incidents of police

brutality and abuse in the Observation Homes, along with incompetence and delay on the part of

probation officers.

Attempts have been made to ensure enforcement by drafting Model Rules 2007 as an addendum

to the Act and by creating an Integrated Child Protection Scheme. A ray of hope glimmers in the

form of the Protection of Children from Sexual Offences Bill 2011, which not only aspires to

curb the sexual atrocities against our children, but also to rein the media by prohibiting

comments on child, either accused or victim of an offence, which may lower character or

infringe privacy. It is high time now that the social workers take up the role of a friend, adviser,

reformer and healer simultaneously, and NGOs come forward to seek charge of juveniles

pending or on completion of inquiry.

CURRENT SCENARIO IN OUR NATION

In our country 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.

The recent rape case of "Nirbhaya" has caused utter dismay, concern and outrage amongst the

people. The gruesome act of brutalizing her with an iron rod was done none other but by a

juvenile and he has been sentenced for a period of 3 years as per Section 15 of JJ Act, 2000 as

per our law for juveniles. The principal ought to have been followed for trying juvenile offenders

is that Juvenility should be decided as per the state of mind and not just the state of body.

17

In our country it's a general trend to get our age reduced by 2-3 years at the time of matriculation

so even if the offender is above 18 years but on record he is a juvenile as per his birth certificate

then he would be treated as a juvenile. In the recent Nirbhaya's rape case all the other co-

accused are awarded death sentence but the person who committed the most brutal part of the

case has been awarded a mere 3 years of remand as per JJ Act, 2000.

JUVENILE JUSTICE ACT 2000

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 1989, repealed the earlier Juvenile Justice Act of 1986

after India signed and ratified Child Rights Convention 1989 in year 1992. This Act has been

further amended in year 2006 and 2010. Government of India is once again contemplating

bringing further amendments and a review committee has been constituted by Ministry of

Women and Child Development which is reviewing the existing legislation. Recent 16

December 2012 Gang rape incident in Delhi has raised a popular demand for amending this law

to allow harsher punishments to children involved in serious offences.

JJ Act is considered to be an extremely progressive legislation and Model Rules 2007 have

further added to the effectiveness of this welfare legislation. However the implementation is a

very serious concern even in year 2013 and Supreme Court of India is constantly looking into the

implementation of this law in Sampurna Behrua Versus Union of India and Bachpan Bachao

Andolan Versus Union of India. In addition to Supreme Court, various High Courts in India,

18

specifically Bombay High Court and Allahabad High Courts are also monitoring implementation

of JJ Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System,

Government of India launched Integrated Child Protection Scheme (ICPS) in year 2009-10

whereby financial allocations have been increased and various existing schemes have been

merged under one scheme.

A separate petition titled Deepika Thusso Versus State of Jammu and Kashmir is also pending

consideration before Supreme Court on implementation of Juvenile Justice Act, 1997 which is

applicable in the State of Jammu & Kashmir.

Based on a resolution passed in year 2006 and reiterated again in 2009 in the Conference of

Chief Justices of India, several High Courts have constituted "Juvenile Justice Committees"

which are monitoring committees headed by sitting Judges of High Courts. These Committees

supervise and monitor implementation of Juvenile Justice Act in their Jurisdiction and have been

very effective in improving state of implementation. Juvenile Justice Committee of Delhi High

Court is considered a model in this regard.

JUVENILE JUSTICE AMENDMENT ACT 2006

In this act a child or juvenile is defined as a person who has not completed his/her 18th year of

age. It outlines two target groups: Children in need of care and protection and Juveniles in

conflict with law. This act protects not only the rights of children, but a person's rights when

he/she was a child. Meaning that if a crime or an incident took place while the person was a

child, and then during the proceeding the juvenile ceased to be of age the case would continue as

if the juvenile has not turned eighteen yet.

19

The second chapter of the Act addresses Juveniles in Conflict with Law (JCLs). This section

calls for the establishment of Juvenile Justice Boards (JJBs) where the State Government sees fit.

JJBs 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. JCL cases can only be heard in the JJB and not by another court. The powers of

the JJB can be exercised in a High court or Court of Session when an appeal has been made as

part of the act, the state is required to set up a number of institutions where the needs and

protection of juveniles may be fulfilled. For the reception and rehabilitation of JCLs the state

must set up Observation Homes and Special Homes in ever district or group of districts. The

state may directly set up these homes or contract a voluntary organisation to do so. Observation

homes are for institutions for juveniles while their proceedings are underway. After the

proceedings of a particular case are complete, the JJB may decide that the rehabilitation of the

child is not complete and hence place them in a Special home for no longer than three years.

Juvenile Justice (Care and Protection of Children) Act 2000

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. Bail is

available to juveniles in all cases as long as the Board find 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. The SJPU are responsible for informing the

20

juvenile's parents of the arrest, as well as inform the Probation Officer who will make the

necessary enquires about the child.

The JJB must make an inquiry into the case and if they determine the child is guilty of the crime

then they may release the child after advice and counselling. The child can be released either to

his parents/guardians or into an institution, with or without a bond. The Board may also make the

child pay a fine (if he is above fourteen and earns) or complete hours of community service. A

social investigation report from the probation officer is required for the child to be discharged.

The probation officers may be required to continue a follow up of the child even after discharge.

A child can not be charged with the death penalty, imprisonment which can extend to life

imprisonment or committed to prison for inability to pay a fine or providing a security for the

bond.

Under this act juvenile cases can not be processed with non-juvenile cases. A juvenile can not be

rendered unfit or 'disqualified". Juveniles are not exposed to the media as magazines, news

papers and visual media are not permitted to release the information about the juvenile. Juveniles

who run away from the Observation or Special homes can be brought back without a warrant and

without punishment. Cruelty (such as assault or neglect) towards juveniles in the home or by any

person in charge of him/her is a punishable offence. This act also has provisions to penalize

people who exploit children for a crime. A person, who employs a child in a hazardous industry,

21

employs him/her for begging or provides a child with drugs or alcohol is liable to serve prison

time and pay fines.

Chapter III address Children in Need of Care and Protection (CNCP). In place of a JJB, CNCP

cases are heard by the Child Welfare Committee (CWC). The committee is meant to 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. The purpose of the CWC 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 child may be brought in front of the CWC by a police office, public servant, social

worker, CHILDLINE, the child or anyone public citizen. 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 JCL, CNCP are provided with Children's Homes and Shelter Homes. The

state may directly set up these homes or contract a voluntary organisation to do so. Shelter

homes are for children whose family can not be located or whose case has been completed.

Children who come from a different area or state are meant to be transferred to an institution and

CWC that is closest to his/her residence. The main aim of this system is to restore the child to his

family or family environment after determining the safety of the environment.

22

The fourth chapter discusses the importance of rehabilitation and social integration as the

purpose of this act. This section discusses certain non-institutional solutions such as adoption,

foster care, and sponsorship. Orphaned and abandoned children are eligible for adoption. The

CWC may declare a child fit for adoption and refer him/her to an adoption agency (set up by the

government) for placement. Foster care in this act is only for looking after infants before

adoption takes place. Sponsorship programmes are to help provide supplementary educational,

nutritional, medical and other services to families, guardians, and homes. After-care

organisations are also to be set up to take care of children after they leave the homes. Juvenile

Justice (Care and Protection of Children) Act 2000

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. Under this act the government can set up advisory boards at different levels to

advise them about various implementation aspects of the act. The JJB and CWC have the

authority to release a child to his/her parents or give the child leave because of a death in the

family, a wedding, a school examination, etc. For the carrying out of this act, the state shall

create a Child Protection Unit, whose officers are responsible to ensure that the act is properly

implemented. Rules for this act are to be made by each State Government.

23

JUVENILE IN CONFLICT OF LAW(PROVISIONS IN DIFFERENT LAW)

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. Children in Conflict with LawSome 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 institutions children are often died access to medical

care and education which are part of their rights. In 2002, 136,000 children in the Central and

Eastern Europe and the Commonwealth of Independent States were found guilty of criminal

offenses, compared to 117,000 in 1990. Russia accounted for 65% of these cases.

In India the number of cases of juvenile delinquents has increased from 17,203 in 1994 to 30,943

in 2004. The crimes committed by juveniles have also seen an increase in the same period from

8,561 to 19,229. 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 2004

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

24

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.

A major area of concern is the rise of juvenile crimes in the overall crimes committed in the

country. In 1994 juvenile crimes amounted to 0.5% of all crimes committed. In 2004 that number

has doubled to 1%. The Juvenile Justice system has gives rise to many child rights concerns as

children are often denied bail for petty crimes, the responsible stakeholders do not carry out

proper social investigations, the conditions in the homes is often unsafe and inhumane, and

juvenile justice boards are not child friendly and functions like an adult court.

With an increasing crime rate in the country as well as increasing number of people being

imprisoned either as part of their sentence or waiting trial there is need to consider the needs of

children whose parents have been imprisoned. Judicial proceedings or police arrests need to take

into account the larger unintended consequences of penal sanctioning. The detainment of parents

severely reduces families and communities economic and social abilities to successfully raise

children. It also leaves the child in long periods of uncertainty and instability. This is especially

seen with illegal immigrant families whose children spend months sometimes years in children's

homes awaiting the release of their parents. Children in Conflict with Law

25

According to HAQ: Centre for child rights there has been a 7.9% increase in crimes committed

by children between 2003 and 2004. In 2005 there was an 11.3% increase in crimes by children.

There has been an increase especially in certain kinds of crimes which is a grave concern such as

rape (by 11.9%), death due to negligence (150.8%), robbery (39.6%), attempt to murder (30.7%),

preparation and assembly for dacoit activities (27.6%), auto theft (18.6%) and murder (15.9%) is

a matter of concern. Surprising is the increase in number of cases of girls being charged with

rape. As most crimes are committed by juveniles from poor families they should also fall under

the children in need of care and protection category and should be treated as such. The main

legislation that deals with juveniles is the Juvenile Justice Act, 2000.

GAPS IN TRANSLATING LEGISLATION INTO PRACTICE

The condition of children entering the Juvenile Justice system throughout India is one of a

marked disconnect between ideal and reality. The Government of India is committed to the

values and principles of the UNCRC. However, the existing legislation is incompatible with the

children’s rights framework established by the UNCRC. CWC has carried out a detailed

comparative analysis between the provisions in the UNCRC and the JJ Act 2006. This analysis

indicates several gaps a the level of the legislation itself in terms of upholding children’s rights.

On the ground, police brutality against children, abuse in Government Homes and unjustifiable

periods of detention of children typify a system unable to effectively secure children’s basic

human rights. In addition, a lack of training and accountability has led to poor implementation of

26

children’s rights at all levels. Case backlog, untrained staff, and inadequate facilities are the

hallmarks of a juvenile justice system that is detaining children for extended periods of time

without regard to the costs of institutionalisation and the overall preference for diversion.

Children report abuse by police and staff at each step in the process, as well as high incidence

levels of corruption and bribery. Staff of Government, Observation and Special Homes lack any

codes of conduct and do not have to abide by any explicit child protection guidelines. The

deplorable conditions in the Children’s Homes have led children to even attempt suicide.

Further, there are limited ways of enforcing accountability of decisions made by the Child

Welfare Committees and Juvenile Justice Boards. The lack of mens rea for children has also

meant the lack of a determination of innocence or guilt, leaving children in extensive legal

proceedings without any way to combat their incarceration. Overall, there is a complete absence

of children’s voice in the entire procedures followed under the JJ Act. CWC has analysed the JJ

Act and the Model Rules released by the central government from the point of view of children’s

participation.

27

ACTIVISM AND ADVOCACY

CWC has maintained presence at the Government Boys and Girls Homes in Bangalore city and

the Government Children’s Home in Udupi over the past several years. As a former member of

the Child Welfare Committee in the Udupi Children’s Home, CWC’s Executive Director

Damodar Acharya was able to bring about major changes in the way the Home is run, while

introducing processes to ensure children’s voice in decisions concerning their lives.

At Bangalore, CWC has exposed the severe irregularities of the entire JJ system, right from the

police force to staff at Government Homes and members of Child Welfare Committees. A few

major interventions are detailed in the documents below where CWC has played the role of

watch-dog, intervened in rehabilitation efforts and provided recommendations for systemic

change.

Case study on repatriation of a Bangladeshi boy and related recommendations

Complaint lodged with Department of Women and Child Development and Karnataka State

Commission for Protection of Child Rights against sexual abuse of resident girls by Balakrishna

Masali, a member of Child Welfare Committe in Bangalore Girls Government Home.

28

Complaint lodged with Child Welfare Committee, Department of Women and Child

Development and Karnataka State Commission for Protection of Child Rights against extensive

rights violations in the ‘rescue’ of 15 girls from Andhra Pradesh in February 2010.

Further, CWC is represented on a national level committee on amending the Juvenile Justice Act

2006 and submitted detailed recommendations. This is a significant space for CWC to contribute

recommendations and directly influence legislation.

LEGAL INTERVENTIONS

A Public Interest Litigation (PIL) was filed in the Karnataka High Court calling for action

against extensive child rights violations in the Bangalore Observation Home in early 2012. CWC

petitioned to be heard as an impleading party in this PIL based our experience with the Juvenile

Justice system. Our overall plea was to expand the scope of the initial PIL to include all aspects

of the Juvenile Justice system in Karnataka and prioritise them as short-term and long-term goals

for change. Ashraya was another NGO heard in proceedings of this case. CWC was heard by the

Honourable Chief Justice along with the other petitioners over the course of three hearings and

made the following submissions to the High Court:

SPECIFIC PLEAS MADE BY CWC

The Court passed a final order to set up a High Court Committee to look into aspects of the

Juvenile Justice system in Karnataka state in a consistent and ongoing manner. CWC is one of

the three NGO members on the Committee chaired by four sitting High Court judges. Our

advocacy for systemic changes in JJ continues through our active participation in this

Committee.

29

REFORMING THE JUVENILE (HOMES) FIRST

The whole country is outraged at the recent judgment by the juvenile court in the Delhi rape

case. The teenage criminal has been awarded the maximum punishment under the present laws.

He has been sent to a reform home for juveniles for three years. Now that he is already serving

the sentence, let us look at the reality of these reformation homes. What do these reformation

homes do to truly reform juveniles in conflict with the law?

As a researcher working primarily on child protection policies, I have often found that while

most policies are well intentioned and intricate in their design, they face severe implementation

deficits. Juvenile reformation homes or "observation homes" in India suffer from multiple

shortfalls. While on paper, they are ideal spaces meant to reform juveniles and rehabilitate them

into the society; their reality is rather sordid. Characterised by crumbling infrastructure, these

places display decrepit standards of hygiene. The food and clothing provided is sub-standard.

Basic facilities such as bathroom and bathing facilities are abysmal. Many face a shortage of

staff.

All this, however, pales in comparison to the fundamental problem with these reform homes. A

terrible understanding of ‘detention’ among the staff, which translates into treating those inside

as criminals without investing in their education, reformation or ensuring that they understand

the nature of their crime, means that the environment required to ‘reform’ a person is absent.

These homes rarely possess adequate trained staff, counselors and psychiatrists, who can

clinically attempt to help reform the juvenile. Bullying and in-fighting dominate these

observation homes. Juvenile criminals usually participate more frequently in petty crime within

30

the confines of these homes than undergo reform. A recent study by the Asian Centre for Human

Rights labels juvenile homes as “India’s hell holes” because of the predominance of child sexual

abuse that takes place within their confines. In almost all the cases recorded on the report, a

member of the staff of the home carried out the sexual abuse, be it security guards, managers,

cooks, wardens or others. On interaction with the inmates of the homes, I found that none of

them are usually aware of the nature of their crime and are blankly living within the confines,

serving their sentence and waiting to leave it after completion of their sentence. Frankly, these

observation homes as they exist today are the last place that can reform juveniles.

A colossal problem in India, when it comes to child protection and juvenile justice, is the

dichotomy between our laws and policies on paper and their implementation. The main policy

for child protection in India is the Integrated Child Protection Scheme (ICPS). This policy covers

every aspect of child protection and rehabilitation in the country and looks at children in need of

care and protection along with juvenile in conflict with the law. Though well intentioned, its

implementation faces many problems that can be easily solved if adequate attention is paid to

these areas. Administrative problems, such as lack of updated data and regular reporting, choke

the system. Instead of augmenting the budget allocations to create a robust system of child

protection, the ICPS faced a reduction by 100 crores-- 25 percent of its total budget this year. The

300 crore allocated at present is not enough to adequately cover the policy let alone create a

scope for reforms. Moreover, there are multiple stakeholders involved in child protection—the

Department of Woman and Child Development, the Child Welfare Committees, the Juvenile

Justice Boards, the various government departments (Labour, Health and Education), the police

and the NGOs dealing with children. Each of these operates in its own silo, resulting in a lack of

31

collective understanding of child protection. All this adds to a fragmented perceptions and

consequently poor implementation.

The verdict the Delhi rape case demonstrates all that is wrong with our juvenile justice system.

Given the current juvenile justice system, one cannot pick a flaw with the verdict in itself, the

criminal has been handed over the harshest punishment possible within the confines of this

system. Therefore the problem is not with this verdict per se, as much as it is with the system. We

can't ask for the change in the sentence for this one case alone. We need to divert our attention

and energy in demanding a complete reform of the juvenile justice and child protection system.

Many suggestions have been made to prevent a repeat of the judgment in the Delhi rape case.

Perhaps, in dealing with a heinous crime, the spirit of the law needs to take precedence over the

strict letter of the law. But such a decision would not pass muster with India's higher courts.

Others have suggested bringing the age of child for criminal acts back to 16, which it was before

2000 when India changed it to 18 in accordance with the United Nations Convention on the

Rights of a Child.

My personal suggestion is that our laws need to re-define children as individuals below the age

group of 16, and define those within the ages of 16 and 18 as adolescents. 64 percent of all

juvenile criminals fall under the age group of 16-18 years. A classification of adolescent would

not automatically mean handing out harsher sentences for juvenile offenders between the ages of

16 and 18, or abandoning those in genuine need of care and protection. It would mean

recognising that this segment of the population is neither child nor is it at par with adults. It

should therefore be treated legally on a case-by-case basis.

32

The arguments opposing the lowering the age of a child or creating a category for adolescents are

particularly misplaced. The real issue that needs our attention is not the legal age of the juvenile.

The issue that needs our urgent attention is the state of these reform homes. Whatever be the age

of the juvenile, do these reform homes today truly help in reforming juveniles in conflict with the

law? Are juveniles being given a fair chance to reform? Are the correctional facilities adequate to

ensure that its inhabitants don't turn into adult criminals once they leave its confines?

Reforming the juvenile observation homes is the first step in reforming the system of child

protection and juvenile justice. These homes have to be created as holistic spaces, where

juveniles in conflict with the law find themselves converted into responsible adult citizens. Mass

outrage can be a good thing, especially in a country like ours. But we cannot allow outrage to

blind our rationality. Our outrage must move beyond one particular case and one particular

judgment. It must work towards totally reforming the present structures of dealing with juveniles

in conflict with the law.

33

CHILD RIGHTS

The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007

under the Commission for Protection of Child Rights Act, 2005, an Act of Parliament (December

2005). The Commission’s Mandate is to ensure that all Laws, Policies, Programmes, and

Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in

the Constitution of India and also the UN Convention on the Rights of the Child.

WHO IS A ‘CHILD’

According to international law, a child means every human being below the age of 18 years. This

is a universally accepted definition of a child and comes from the United Nations Convention on

the Rights of the Child (UNCRC), an international legal instrument accepted and ratified by most

countries.India has always recognised the category of persons below the age of 18 years as

distinct legal entity. That is precisely why people can vote or get a driving license or enter into

legal contracts only when they attain the age of 18 years. Marriage of a girl below the age of 18

years and a boy below 21 years is restrained under the Child Marriage Restraint Act 1929.

Moreover, after ratifying the UNCRC in 1992, India changed its law on juvenilejustice to ensure

that every person below the age of 18 years, who is in need of care and protection, is entitled to

receive it from the State.

What makes a person a ‘child’ is the person’s ‘age.’ Even if a person under the age of 18 years is

married and has children of her/his own, she/he is recognised as a child according to

international standards.

34

While all children need protection, because of their social, economic, or even geographical

location, some children are more vulnerable than others and need special attention. These

children are:

# Homeless children (pavement dwellers, displaced/evicted, refugees etc.)

# Migrant children.

# Street and runaway children.

# Orphaned or abandoned children.

# Working children.

# Child beggars.

# Children of prostitutes.

# Trafficked children.

# Children in jails/prisons.

# Children affected by conflict.

# Children affected by natural disasters.

# Children affected by HIV/AIDS.

# Children suffering from terminal diseases.

# Disabled children.

# Children belonging to the Scheduled Castes & Scheduled Tribes.

35

WHAT ARE CHILD RIGHTS?

All people under the age of 18 are entitled to the standards and rights guaranteed by the laws that

govern our country and the international legal instruments we have accepted by ratifying them.

THE CONSTITUTION OF INDIA:

The Constitution of India guarantees all children certain rights, which have been specially

included for them. These include:

# Right to free and compulsory elementary education for all children in the 6-14 year age

group (Article 21 A).

# Right to be protected from any hazardous employment till the age of 14 years (Article

24).

# Right to be protected from being abused and forced by economic necessity to enter

occupations unsuited to their age or strength (Article 39(e)).

# Right to equal opportunities and facilities to develop in a healthy manner and in

conditions of freedom and dignity and guaranteed protection of childhood and youth

against exploitation and against moral and material abandonment (Article 39 (f)).

Besides these they also have rights as equal citizens of India, just as any other adult male or

female:

# Right to equality (Article 14).

# Right against discrimination (Article 15).

36

# Right to personal liberty and due process of law (Article 21).

# Right to being protected from being trafficked and forced into bonded labour (Article

23).

# Right of weaker sections of the people to be protected from social injustice and all

forms of exploitation (Article 46).

Research, documentation and interventions by government and the civil society groups in the

past have clearly brought forth some of the following child protection issues and categories of

children that deserve special protection:

# Gender Discrimination.

# Caste discrimination.

# Disability.

# Female foeticide.

# Infanticide.

# Domestic violence.

# Child sexual abuse.

# Child marriage.

# Child labour.

# Child prostitution.

37

# Child trafficking.

# Child sacrifice.

# Corporal Punishment in schools.

# Examination Pressure and Student Suicides.

# Natural disasters.

# War and conflict.

# HIV/AIDS.

In the efforts to improve the implementation of the Juvenile Justice System in the country

UNICEF is also supporting the government with the development of training materials for the

Judiciary and various other functionaries of the system like the child welfare committee

members, police and care-takers in the various institutions under the Act.

38

CONCLUSION

The JJ Act was passed in 2000 with the purpose of incorporating into domestic law India’s

obligations under international law as a signatory of the U.N. Convention on the Rights of the

Child of 1989, the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985)

(known as the “Beijing Rules”) and the U.N. Rules for the Protection of Juveniles Deprived of

their Liberty (1990). Underlying these international texts is the legal philosophy that juveniles

lack the physical and mental maturity to take responsibility for their crimes, and because their

character is not fully developed, they still have the possibility of being rehabilitated. This basic

principle underlies the juvenile justice systems in many countries, including the United States

and the U.K.

The JJA creates a juvenile justice system in which persons up to the age of 18 who commit an

offence punishable under any law are not subject to imprisonment in the adult justice system but

instead will be subject to advice/admonition, counselling, community service, payment of a fine

or, at the most, be sent to a remand home for three years.

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

39

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.

‘Get tough’ approach

Several other countries such as the U.S. and the U.K., which are both signatories to the U.N.

Convention, have also faced an increase in violent crimes by juveniles but, unlike India, they

have taken action to amend their laws. Most States in the U.S. have enacted a juvenile code of

which the main objective is rehabilitation and not punishment. Juveniles appear in juvenile court

and not in adult court. Juvenile courts do not have the power to impose punishment and can

impose only rehabilitative measures or assistance by government programmes. However, since

40

the increase in violent crimes committed by juveniles in the 1990s, U.S. States have adopted a

“get tough” approach in response.

In most U.S. States, the jurisdiction of juvenile courts is automatically waived when a juvenile

above a certain age, usually 13 or 15, commits a violent or other serious crime, and the case is

automatically transferred to adult court. A certification hearing takes place and an adult court

prosecutor is required to convince the adult court that the case should be transferred. The

juvenile is entitled to an attorney at the hearing and to present any evidence which mitigates

against the transfer. For example, in Indiana, South Dakota and Vermont, children as young as

10 can be tried as adults. California’s Proposition 21 which was passed in 2000 allows

prosecutors to automatically try juveniles who commit felonies as adults. Under Michigan’s

Juvenile Waiver Law passed in 1997, juveniles can automatically be tried as adults.

Youth Court

Similarly, in the U.K., persons under 18 are tried by a “Youth Court” which is a special type of

magistrate’s court for those aged 10-18 years. The Youth Court can issue community sentences,

behavioural programmes, reparation orders, youth detention and rehabilitation programmes

which last three years. However, for serious crimes like murder or rape, the case starts in Youth

Court but is transferred to a Crown Court which is the same as a Sessions Court. The Crown

41

Court can sentence the child for offences of murder committed when the offender was a youth as

well as for “grave crimes” including sexual assault and sentence the child to “indeterminate

detention for public protection.”

The Crown Court can also give “extended sentence” to a minor. If a youth is jointly charged with

an adult, the charge is heard and tried by a regular court. If the youth is found guilty, the Crown

Court can impose a sentence which does not exceed the maximum sentence applicable to an

offender who is 21 years or older. Therefore, in both the U.S. and the U.K., juveniles who

commit violent crimes such as rape are prosecuted in the same manner as adults.

Even the U.N. Convention and the Beijing Rules do not prohibit subjecting children/juveniles to

the regular criminal justice system under certain circumstances. Article 40 of the U.N.

Convention provides that a child who has been accused of having violated the penal law shall

have the following guarantees: to be presumed innocent until proven guilty according to law, to

be informed promptly of the charges against him and to have legal or other appropriate

assistance in the preparation of his defence, to have the matter determined without delay by a

competent and impartial authority or judicial body, not to be compelled to confess guilty, and to

examine witnesses. Moreover, the state can establish a minimum age below which children shall

be presumed not to have the capacity to infringe the penal law. Therefore, in accordance with the

U.N. Convention, the JJ Act could have established an age limit, such as 14 or 16, below which a

person could not be deemed to have the capacity to commit an offence. In short, the U.N.

42

Convention does not prohibit prosecuting a child under 18 who has committed an offence under

the regular penal laws.

Unfortunately, the current system serves neither the purpose of rehabilitation nor deterrence

against future crime. As reported by India Today, there are 815 remand homes in India with a

capacity of 35,000. However, there are 1.7 million juvenile accused in India. Remand homes in

India are not conducive to the reform and rehabilitation of juveniles as envisioned by the

principles enshrined in international law. While rehabilitation is certainly an important legal and

societal objective, this interest surely has to be balanced with creating a legal deterrent to protect

women and girls from the increasing incidence of rapes by juveniles. Particularly in view of the

significant increase in rapes committed by juveniles since the JJ Act was passed, India should

consider amendment of the Act to transfer certain violent crimes such as murder and rape

committed by juveniles above a particular age to the adult criminal system.

43

BIBLIOGRAPHY

Books

Brenzel, Barbara. Daughters of the State: A Social Portrait of the First Reform School for Girls in North America, 1856-1905. (1983)

Hale, Robert. A Review of Juvenile Executions in America (1997)

Hawes, Joseph. Children in Urban Society: Juvenile Delinquency in Nineteenth Century America (1971)

Holl, Jack. Juvenile Reform in the Progressive Era: Willaim R. George and the Junior Republic Movement (1971)

Holt, Marilyn Irvin. The Orphan Trains: Placing Out in America (1992)

Knupher, Anne Meis. Reform and Resistance: Gender, Delinquency, and America's First Juvenile Court (2001)

Langsam, Miriam Z. Children West: A History of the Placing Out System of the New York Children's Aid Society, 1853-1890 (1964)

Mennel, Robert. Thorns and Thistles: Juvenile Delinquents in the United States, 1825-1940 (1973)

Odem, Mary. Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920 (1995)

Pickett, Robert. House of Refuge: Origins of Juvenile Reform in New York State, 1815-1857 (1969)

Platt, Anthony. The Child Savers: The Invention of Delinquency (1969)

Schlossman, Steven. Love and the American Delinquent: The Theory and Practice of "Progressive" Juvenile Justice, 1825-1910 (1977)

Schneider, Eric C. In the Web of Class: Delinquents and Reformers in Boston 1810s-1930s (1992)

Sprinhall, John. Youth, Popular Culture and Moral Panics: Penny Gaffs to Gangsta Rap, 1830-1996 (1998)

Stepenoff, Bonnie. The Dead End Kids of St Louis: Homeless Boys and the People Who Tried to Save Them (2010)

44

Sutton, John. Stubborn Children: Controlling Delinquency in the United States, 1640-1981 (1988)

 

Articles

Appier, Janis. "Juvenile Crime Control: Los Angeles Law Enforcement and the Zoot-Suit Riots," in Criminal Justice History: An International Annual 11 (1990)

Brenzel, Barbara. "Domestication as Reform: The Socialization of Wayward Girls, 1856-1905," Harvard Educational Review 50 (May 1980)

Brenzel, Barbara. "Lancaster Industrial School for Girls: A Social Portrait of a Nineteenth Century Reform School for Girls," Feminist Studies 3 (1975)

Bright, Charlotte Lyn, Scott Decker and Andrea M Burch. "Gender and Justice in the Progressive Era: An Investigation of Saint Louis Juvenile Court Cases, 1909-1912," Justice Quarterly 24 (December 2007)

Flynn. Frank. "Judge Merritt W. Pinckney and the Early Days of the Juvenile Court in Chicago," Social Service Review 28 (1954)

Fox, Sanford. "Juvenile Justice Reform: An Historical Perspective," Evaluation Quarterly, 3 (1979)

Gleuck, Eleanor. "Wartime Delinquency," Journal of Criminal Law, Criminology and Police Science, 33 (July-August, 1942): 119- 135.

Hirsch, Adam. "From Pillory to Penitentiary: The Rise of Penal Incarceration in Early Massachusetts," 80 Mich. L. Rev. 1179 (1982)

Ignatieff, Michael. "State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment," in Crime and Justice 3 (1981)

Jenkins, Philip. "The Radicals and the Rehabilitative Ideal, 1890- 1930," Criminology 20 (November 1982)

Jenkins, Philip. "Temperance and the Origins of the New Penology," Journal of Criminal Justice 12 (1984)

May, M. "Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid-Nineteenth Century," Victorian Studies, 17 (1973)

45

Mennel, Robert. "Origins of the Juvenile Court: Changing Perspectives on the Legal Rights of Juvenile Delinquents, " in Frederick Faust and Paul Brantingham (eds.) Juvenile Justice Philosophy (1974)

Mennel, Robert. "The Family System of Common Farmers': The Origins of Ohio's Reform Farm, 1840-1858," Ohio History 89 (Spring 1980)

Miller, Martin. "AT Hard Labor: Rediscovering the 19th Century Prison," Issues in Criminology 9 (Spring 1974)

Miller, Martin. "Sinking Gradually into the Proletariat: The Emergence of the Penitentiary in the United States," Crime and Social Justice 14 (Winter 1980)

Neuman, R.P. "Masturbation, Madness and the Modern Concepts of Childhood and Adolescence," Journal of Social History (1975)

Odem, Mary E. and Steve Schlossman. "Guardians of Virtue: The Juvenile Court and Female Delinquency in Early 20th Century Los Angeles," Crime and Delinquency 37 (1991)

Pisciotta, Alexander W. "Treatment of Trial: The Rhetoric and Reality of the New York House of Refuge, 1857-1935," The American Journal of Legal History 29 (1985)

Pisciotta, Alexander. "Child Saving or Child Brokerage?: The Theory and Practice of Indenture and Parole at the New York House of Refuge, 1825-1935," in The History of Juvenile Delinquency: A Collection of Essays, ed Albert Hess and Priscilla Clement (1993)

Pisciotta, Alexander. "A House Divided: Penal Reform at the Illinois State Reformatory, 1891-1915," Crime and Delinquency 37 (April 1991)

Pisciotta, Alexander. "Parens Patraie, Treatment and Reform: The Case of the Western House of Refuge, 1849-1907," New England Journal on Criminal and Civil Confinement 10 (Winter 1984)

Pisciotta, Alexander. "Race, Sex and Rehabilitation: A Study of Differential Treatment in the Juvenile Reformatory, 1825- 1920," Crime and Delinquency 29 (April 1983)

Pisciotta, Alexander. "Saving the Children: The Promise and Practice of Parens Patraie, 1838-1898," Crime and Delinquency 28 (July 1982)

Pisciotta, Alexander. "Scientific Reform: The 'New Penology' at Elmira, 1876-1900," Crime and Delinquency 29 (October 1983)

Pisciotta, Alexander. "Theoretical Perspectives for Historical Analsyes: A Selective Review of the Juvenile Justice Literature," Criminology 19 (May 1981)

46

Rafter, Nicole Hahn. "Chastening the Unchaste: Social Control Functions of a Woman's Reformatory, 1894-1931," in Social Control and the State: Historical and Comparative Essays ed by Stanley Cohen and Andrew Scull (1983)

Reichel, P. L. "19th Century Societal Reactions to Juvenile Delinquents--Preliminary Notes for a Natural History," Mid American Review of Sociology, 4 (1979)

Schlossman. S. and S. Wallach. "The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progressive Era," Harvard Educational Review 48 (1978)

Schlossman, Steven. "Juvenile Justice in the Age of Jackson," Teacher's College Record 76 (1974)

Schultz, J. Lawrence. "The Cycle of Juvenile Court History," Crime and Delinquency 19 (1973)

Sedlak, M. W. "Young Women and the City: Adolescent Deviance and the Transformation of Educational Policy, 1870-1960," History of Education Quarterly 23 (1983)

Shelden, Randall G. "Origins of the Juvenile Court in Memphis, Tennessee, 1900-1910," Tennessee Historical Quarterly 52 (1993)

Wood, Sharon E. "Savage Girls: The 1899 Riot at the Mitchellville Girls School," Iowa Heritage Illustrated 80 (1999)

47