India is home to the largest child population in the world. The Constitution of India guarantees Fundamental Rights to all children in the country and empowers the State to make special provisions for children. The Directive Principles of State Policy specifically guide the State in securing the tender age of children from abuse and ensuring that children are given opportunities and facilities to develop in a healthy manner in conditions of freedom and dignity.
Juvenile can be defined as a child who has not attained a certain age at which he, like an adult person under the law of the land, can be held liable for his criminal acts. The juvenile is a child who is alleged to have committed /violated some law which declares the act or omission on the part of the child as an offence. Juvenile and minor in legal terms are used in different context. Juvenile is used when reference is made to a young criminal offenders and minor relates to legal capacity or majority.
The Juvenile Justice (JJ) system is based on principles of promoting, protecting and safeguarding the rights of children. It was enacted by the Indian Parliament in 1986. In the year 2000, the Act was comprehensively revised based on the United Nations Convention on the Rights of the Child (CRC), which India had ratified in 1992; the Beijing Rules; the United Rules for the Protection of Juveniles Deprived of their Liberty; and all other national and international instruments, thereby clearly defining children as persons up to the age of 18 years(Section 2 (k) of the Act defines “child‘ as a person who has not completed eighteen years of age. The Act is based on the provisions of Indian Constitution and the four broad rights defined by the UN CRC:
• Right to Survival
• Right to Protection
• Right to Development
• Right to Participation
This Act repealed the earlier Juvenile Justice Act of 1986 and has been further amended in years 2006 and 2011. The Juvenile Justice (Care and Protection of Children) Act, 2000, is the primary legal framework for juvenile justice in India. The JJ Act primarily focuses on the twin interrelated aspects of juvenile delinquency and handling of children in need of care and protection. The JJ Amendment Act, 2006, brought substantive changes to the JJ Act, 2000. It has been enacted to provide for care, protection, development and rehabilitation of neglected, delinquent children and includes within its ambit child labourers. Section 2 (d) (ia) includes ‘working children‘ within the purview of a ‘child in need of care and protection‘. The Act broadened the scope of rehabilitation of the child in need of care and protection, or of a juvenile in conflict with the law, through not only the institutional but also the non-institutional approach.
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, counseling, community service, payment of a fine or, at the most, be sent to a remand home for three years.
Juvenile Justice (Care and Protection of Children) Act, 2000, has the following issues:
• delays in various processes under the Act, such as decisions by Child Welfare Committees (CWCs) and Juvenile Justice Boards (JJBs), leading to high pendency of cases.
• delay in inquiry of cases leading to children languishing in Homes for years altogether for committing petty offences.
• increase in reported incidents of abuse of children in institutions.
• inadequate facilities, quality of care and rehabilitation measures in Homes, especially those that are not registered under the Act, resulting in problems such as children repeating offences, abuse of children and runaway children.
• disruption of adoption and delays in adoption due to faulty and incomplete processing and lack of timelines.
• lack of clarity regarding roles, responsibilities, functions and accountability of Child Welfare Committees and Juvenile Justice Boards.
• limited participation of the child in the trial process, delays in rehabilitation plan and social investigation report for every child.
• lack of child-friendly procedures by Juvenile Justice Boards and conduct of Board sittings in Courts in many districts.
• lack of any substantive provision regarding orders to be passed if a child apprehended for allegedly committing an offence was found innocent.
• no specific provisions for reporting of abandoned or lost children to appropriate authority in order to ensure their adequate care and protection under the Act.
• non-registration of institutions under the Juvenile Justice Act and inability of the states to enforce registration due to lack of any penal provisions for non-compliance.
• lack of any check-list of rehabilitation and re-integration services to be provided by institutions registered under this Act.
• inadequate provisions to counter offences against children such as corporal punishment, sale of children for adoption purposes, ragging etc; and
• increase in heinous offences committed by children and lack of any specific provisions to deal with such children.
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 brutal Delhi gangrape case has bought forth a new controversy related to juvenile justice in India. One of the accused, as per police record and, according to reports, the most aggressive of the lot who brutalised the young girl, is a minor of 17 years.
In India the sentencing and trial of juvenile offenders is mandated and governed by the Juvenile Justice Act 2000. Section 15(1)(g) of the JJ Act mandates that a juvenile convicted of any offence can be sentenced to a special home for a period of three years, maximum and thereafter be released on probation. As the accused happens to be a juvenile the maximum time that he shall serve is three years or 1095 days in a special rehabilitation home.
The biggest reason for our current system is the supposed rehabilitation of the offenders. A glimpse of this may be found in the rechristening of the word offender to ‘Juvenile in conflict with the law’. But there is no logical or scientific reason which shows that total and complete rehabilitation can be achieved by a delinquent/ offender/ child in conflict with the law within a maximum period of three years. In the case of the Delhi rapist, even if one were to say that the boy needs to be rehabilitated and that perhaps the reason for his barbaric and animalistic act was a deep-rooted psychological problem, there is no assurance that the issue can be dealt with in three years. Of course, the absolute lack of implementation of the provisions of the JJ Act after a juvenile completes his sentence is another concern. India's massive population makes it impossible to track and ensure that a juvenile once released continues with his therapy or even reports regularly to his parole officer. With this basic and undeniable truth it is a matter of simple calculation that in all probability the Delhi rapist shall be on the streets within the next three years that's 1095 days with nothing more than a stint in a special home in the name of absolute and complete Rehabilitation.
Thus the demand came up is that juvenile who commits crime of this gravity should not be left to walk free after serving maximum of 3 years that too in special home.
In this backdrop, the Government of India is now contemplating re-enacting a new JJ Act, 2014, for which a review committee has been constituted under the Ministry of Women and Child Development. The baton has been passed on to Parliament to enact a new law.
The Bill seeks to achieve the objectives of the United Nations Convention on the Rights of Children as ratified by India on December 11, 1992. It specifies procedural safeguards in cases of children in conflict with law. It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc. The Bill further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years.
The Bill defines a child as anyone less than 18 years of age. However, a special provision has been inserted for the possibility of trying 16-18 year olds committing heinous offences, as adults. A heinous offence is defined as one for which the minimum punishment under the Indian Penal Code is seven years.
The Bill states that one or more JJBs to be constituted, for each district, for dealing with children in conflict with law. JJBs are composed of a Metropolitan or Judicial Magistrate and two social workers, one of whom shall be a woman. Powers and responsibilities of the JJBs include: (i) ensuring legal aid for a child; (ii) adjudicating and disposing of cases related to children in conflict with law; (iii) conducting regular inspection of adult jails to ensure no child is lodged in such jails and other inspection visits and; (iv) conducting inspection visits of residential facilities for such children.
Other provisions in the Bill are:
• Children’s Court: A Children’s Court is a Court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012. It will try 16-18 year olds that commit heinous offences, after confirming that they are fit to be tried as adults. It ensures that a child in conflict with law is sent to a place of safety until he attains the age of 21 years, after which he is transferred to a jail. During the child’s stay in the place of safety, reformative services such as counselling, etc. shall be provided. The Court shall ensure periodic follow up reports by District Child Protection Units.
• Child Welfare Committees (CWCs): States shall constitute one or more CWCs for each district for dealing with children in need of care and protection. The powers and responsibilities of a CWC include: (i) conducting inquiries; (ii) selecting registered institutions for the placement of a child and; (iii) addressing orphans, abandoned children, surrendered children and sexually abused children, etc.
• Special Juvenile Police Units (SJPU) and Child Welfare Police Officers: An SJPU will be established in each district, consisting of a police officer and two social workers. One Child Welfare Police Officer will be present in every police station.
• Adoption: Prospective adoptive parents must be consenting. A single or divorced person can also adopt, but a single male cannot adopt a girl child. Parents must be physically fit, financially sound, and mentally alert and motivated to adopt. Regulations regarding adoption shall be framed by the Central Adoption Resource Authority.
• Penalties: Any official, who does not report an abandoned or orphaned child within 24 hours, is liable to imprisonment up to six months or fine of Rs 10,000 or both. The penalty for non-registration of child care institutions is imprisonment up to one year or fine of one lakh rupees, or both. The penalty for giving a child intoxicating liquor, narcotic or psychotropic substances is imprisonment up to seven years or fine of one lakh rupees, or both.
The draft Bill therefore provides a comprehensive mechanism to deal with children in conflict with law as well as children who are in need of care and protection. However, only a stringent implementation can provide a meaningful disposition to make it a true letter of law.
Thus 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 constraints and bottlenecks at various levels.
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.