Children in conflict with law belong to one of the most vulnerable sections of children in India. Rule of law and access to justice are the basic requirements for a country’s development and is as imperative for the reduction of social differences as the provision of basic services such as proper health and educational systems. However, it has been recognised that children, when dependent on the same justice mechanism as adults may find themselves further victimised by the system itself. It is this recognition that has led to the development of a separate child justice system or the juvenile justice system in many parts of the world.
In some countries, despite the recognition of the need for a separate juvenile justice system, children in the higher age group may be treated through the adult criminal justice system for certain offences and in many punishments for heinous crimes committed by juveniles is stringent and at par with that prescribed for adults. The stage of development of the understanding, discourse and even the law in the area of juvenile justice vary from one region to another, depending on the history and culture of its citizens, their approach to human rights, their legal and technical capacities and their government.
Development of Juvenile Justice System in India
The Indian Jail committee (1919-1920) is considered as one of the most momentous developments in the history of the juvenile justice system in India. For the first time in the history of prisons, reformation and rehabilitation of offenders were identified as the objective of the prison administration. The chief aims of these legislations generally were to extend the custody, trial and punishment of youthful offenders who come in conflict with the law and also for the protection of children and young persons, and put forth certain suggestions,
- It condemned the presence of children in jails and recommended the establishment of children’s court and juvenile homes.
- It condemned the practice of sending juveniles to jail and recommended setting up of separate machinery for the trial and treatment of children and youthful offenders.
- It recommended the creation of children Courts for hearing of all cases against children and young persons.
- It also suggested the children’s release on probation of good conduct with or without the supervision of a probation officer and also suggested provision of supervision after release.
Ever since India got independence, a number of jail committees have been appointed by the state governments but one report got much recognition which was given by the United Nations’ expert, Dr. W.C. Reckless who visited India during the years 1951-52 who had studied and suggested ways to improve the Jail Administration in India.
- He suggested a plea for transforming jails into reformation centres and advocated the establishment of new jails.
- He opposed the handling of juvenile delinquents by courts, jails, and police meant for adults.
- He also advocated the detention of the persons committed to the prison custody and for their reformation and rehabilitation.
- He further suggested the revision of outdated jail manuals1
The Government of India in 1980-1983 constituted an All India Committee on Jail Reforms under the chairmanship of Justice Anand Narain Mulla. The recommendations of this commission were known as “Mulla Commission” and the same has constituted a landmark in the reformatory approach to prison reforms. The recommendations of the Mulla Committee touched upon legislative, operational, security aspects besides matters like the classification of prisoners, living conditions inside the prisons, medical and psychiatric services, treatment programs, vocational training for prison inmates, problems related to under-trials and other non-convicted prisoners, problems of women prisoners and etcetera., which if implemented would go a long way to make prison administration efficient, humane and professional.
What does the Law say?
In India, the Juvenile Justice (Care and Protection of Children) Act, 2015 had virtually brought about a uniform system of juvenile justice in the whole country. It deals with two categories of children, who are in conflict with the law and those who are in need of care and protection. The reason for including children in need of care and protection is that these are children who are living on the edge and are vulnerable to come in conflict with the law if there is no timely intervention to prevent them from coming into such a situation.
It is an Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social reintegration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.2 In addition, the Act provided for the prohibition of confinement of children in a police lockup or jail, separate institutions for the processing, treatment and rehabilitation of the neglected and delinquent children, a wide range of disposition alternatives, to family/community-based placement and vigorous involvement of voluntarily agencies at various stages of the juvenile justice process. There are other laws and statutes that regulate the Juveniles, namely,
- Section 82 of IPC says, “nothing is an offence which is done by a child under seven years of age” and Section 83 states that “nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his act on that occasion.”
- According to section 360 of Code of Criminal Procedure, 1973, and under sections 3 and 4 of the Probation of Offenders Act, 1958 there are two types of release,
- On probation of good conduct, and
- After admonition.
- According to section 361 of Cr.P.C and section 6 of the Probation of Offenders Act, 1958 it is mandatory to the court to see all the aspects while sentencing the person below the age of 21 or woman, as to why the offender has not been released after admonition or on probation.
- According to article 40 of the UN Convention on the Rights of the Child, 1989 (UNCRC) which ratified by India in 1992 says, State Parties recognise the right to every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’ s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.3
The Nirbhaya case (16th December 2012) had a profound impact on public perception of the Act because one of the convicts was a juvenile and a few months shorter than 18 years of age. Due to which he was sentenced to three years in a reformatory home. Several writ petitions were filed against the legislation’s “soft” treatment to juvenile offenders even in heinous crimes but the Supreme Court of India held the Act to be constitutional. And following the same, public debates have been started about should the age of juvenility be reduced to 16 years as more and more children of this age group were committing crimes. Of the 1163 murders by juveniles in 2014, 844 were committed by those in the 16-18 years age group as per data released by NCRB. Director of an NGO Childline was of the view that children are getting exposure to that kind of which they are unable to think about the consequences of their actions. Thus, when they commit serious crimes, they must be dealt with accordingly as it should send a right message to society and will ultimately, discourage organised gangs that are using juveniles for heinous crimes.
While on the other side of the coin, child right activists and scholars were of opposite views. They opposed the proposed Bill which aimed to reduce the age of juvenility form present less than 18 to 16 years. Director of an NGO Aangan stood against the reduction of the age of juvenility and so was the opinion of Professor V. Kumari4.
However, the government came out in support of reducing the age of juvenility by passing a new Bill in December 2014 which led to a major amendment in the Juvenile Justice (Care and Protection of Children) Act, 2015.
Key Features of Juvenile Justice (Care and Protection of Children) Act, 2015
- It replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. It addresses children in conflict with law and children in need of care and protection.
- It permits juveniles between the age group of 16-18 years to be tried as adults for heinous offences. Also, any 16-18 years old, who commits a lesser, i.e., serious offence may be tried as an adult only if he is apprehended after the age of 21 years.
- Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district. The JJB will conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult. The CWC will determine institutional care for children in need of care and protection.
- Eligibility of adoptive parents and the procedure for adoption have been included in the Bill.
- Penalties for cruelty against a child, offering a narcotic substance to a child, and abduction or selling a child have been prescribed.
There are still differing views on whether juveniles should be tried as adults. Some argue that the current law does not act as a deterrent for juveniles committing heinous crimes. Whereas others are of the opinion that the UN Convention on the Rights of the Child requires all signatory countries to treat every child under the age of 18 years as equal. The provision of trying a juvenile as an adult contravenes the Convention. Nevertheless, the major amendment in the Juvenile Justice (Care and Protection of Children) Act, 2015 had led the citizens of the state to see the light of the day.5
2. The Juvenile Justice (Care and Protection of Children) Act, 2015
3. The UN Convention on the Rights of the Child, 1989
Meera Bharathi S
Student, Tamil Nadu National Law University
Meera Bharathi is a curious and enthusiastic person who loves writing. She has co-authored a few anthologies. She believes that a legally empowered society can pave the way for a better environment for the people to live in. For any clarifications, suggestions and feedback kindly find her at @firstname.lastname@example.org