DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISAKHAPATNAM, A.P., INDIA
CHILDREN IN CONFLICT WITH LAW
CODE OF CRIMINAL PROCEDURE
Submitted to
(Ms. Soma Batta!"#$a%
AN&IT ANAND ')*'* I+ SEMESTER
DAMODARAM SANJIVAYYA SANJIVAYYA NATIONAL NATIONAL LAW UNIVERSITY, VISAKHAPA VISAKH APATNAMPage TNAMPage 1
AC&NOWLED,EMENT
Writing a Project is one of the most significant academic challenges I have ever faced. Though this project has been presented by me but there are many people who remained in veil, who support and helped me to complete this project. I am very thankful to my subject teacher Mrs. !M" #$"TT"%$"&'" without whom this project was not possible. he gave her valuable time from her busy b usy schedule to help me at every stage to complete the project. I thanks to all of them who help in my completion of project.
. DAMODARAM SANJIVAYYA SANJIVAYYA NATIONAL NATIONAL LAW UNIVERSITY, VISAKHAPA VISAKH APATNAMPage TNAMPage 2
CONTENTS
%ontents "cknowledgment "bstract cope of the study +ey &esearch uestion &eview of iterature &esearch Methodology $ypothesis Introduction Important Terms 1uvenile crimes 1uvenile justice system $istorical background Integrating welfare and justice The "ge 4actor 1uvenile 1ustice legislation !verriding effect of juvenile legislation 6elhi gang rape %onclusion
Page (o. ) * * / 0 23 22 2) 2/ 2/ 20 25 )) )-
ABSTRACT
The term 'children in conflict with the law' refers any person below the age of 18 who has come in contact with the justice system as a result of committing a crime or being suspected of committing a crime. Most children in conflict with the law have committed petty crimes such as DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 3
vagrancy, truancy, begging or alcohol use. Some have committed more serious offenses. Some children are coerced into crime by adults who use them as they now they cannot be tried as adults. !ften prejudice, stereotyping and discrimination brings children into conflict with law without a crime being committed. More than 1 million children worldwide are detained by law officials. "n "ndia the number of cases of juvenile delin#uents has increased from 1$,%& in 1(() to ($,() in %&11. The crimes committed by juveniles have also seen an increase in the same period from 8,*+1 to +(,%%(. Some of the increase can be attributed to the definition of juveniles being changed to include ages 1+18, but none the less more and more children are coming into conflict with law in the 1+18 age group. There are various reasons why children end up committing crimes. -bout +) of cases in %&1 were children who had no education or only education up to primary level. /hildren living with parents0guardians accounted for $+.+ of the total juveniles arrested. The number of homeless children arrested for various crimes was only $.*. uveniles usually come from poor families earning less than 2s. %*,&&& a year 3$%.4. !ften children are victims of crime as they are used for begging, drug peddling, and prostitution.1 SCOPE OF THE STUD-
The proposed study includes the study of %hildren in %onflict with aw. The provisions related to this matter are given under the 1uvenile 1ustice "ct. This project will look into the various aspects in which such juvenile are dealt with. The project will discuss the need of separate and specific regulation to deal with the matters of child delin7uency. 4urther it will look into the change in the provision of juvenile laws with time. Provisions are supported with the help of case laws so that to understand the present reality of the juvenile laws.
&e$ Resea"! uestio/0 The key 7uestions which this research would answer are8
What are the causes behind juvenile delin7uency9
1 See: htt:!!""".#h$%&%$'e$'&$a.()g.$'
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage *
What are the main features of 1uvenile 1ustice :%are and Protection; "ct, )3339 What type of procedure followed by 1uvenile 1ustice %ourts9 What are the types of orders that can be passed for delin7uent children under 11 act9 What are the different protections given by the legislature and the judiciary to juvenile delin7uents1
Re2ie3 o4 Lite"atu"e0
1uvenile 1ustice :%are and Protection of %hildren; "ct, )333 &astogi .& Prevention and Treatment of 1uvenile 6elin7uency in India, ) %anadian 1. %orrection <)*, 25-5=25/3. This article states about the social and judicial approach
towards delin7uent juvenile. +umari ved, 1uvenile 1ustice8 ecuring the &ights of %hildren during 2550=)330, :)335; (>1 &. This article deals about the rights and liabilities of juvenile. It shows need of
change in judicial approach in such cases with time. ?arious landmark 1udgment under 1uvenile 1ustice "ct
Resea"! Met!odo5o6$0
The methodology adopted is doctrinal study of the topic. &esearch is library and web sources based. (o access to specialist collections and access to comparative or historical materials is re7uired. H$7ot!esis0
The 1uvenile 1ustice "ct, deals with all the prospects of children in conflict with law. The procedure of the court :juvenile board;, trail, investigation, bail issues and other relevant issues are given in the act and the project will look into those provisions.
“Children are fascinating; children are important-both very good reasons for wanting to find out more about them.” $. &udolph chaffer, "ntroducing /hild 5sychology "s a society, we are in agreement that children need special attention due to their young age, developmental needs and evolving capacities. "nother argument is that children are not merely in a state of @becomingA, @evolvingA, or in a @transitionA stage to adulthood, but have their own
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage +
innate capacities and strengths. They are entitled to their own set of BrightsC. The tate, community, and family are eDpected to provide optimal opportunities to facilitate each childCs growth and development, and to ensure the fulfillment of hisEher rights. >nfortunately, despite these well meaning intentions, appropriate care and nurture elude large numbers of children in India. " substantial number of children are growing up in an environment of chronic poverty, neglect, abuse and eDploitation. The reason for this can be found in the basic structure of patriarchal society as well as in the inade7uate tate and societal commitment to seriously address the vulnerabilities of children. The fall out of this situation is all around us8 malnourishment, school drop outs, discrimination against the girl child, child labour, street children, child trafficking, children with disability, and child beggars. "dverse home and environmental conditions can have other impact too8 children get into 8at risk’ behaviours such as addiction or crime. In Fngland, around the nineteenth century, four key categories of children were identified as special child care concerns. They were8 !i5d"e/ o4 t!e st"eet :@beggars, prostitutes etcA.;, $ou/6 o44e/de"s , !i5d"e/ at 3o"9 and s7eia5 6"ou7s such as children with disabilities,
abandoned children etc. In the twenty first century too these concerns continue to remain among the key priority areas related to children worldwide. The "nnual &eport :)323= )322; of the Ministry of Women and %hild 6evelopment, Government of India) outlines that India has the largest child population in the world :around 25H of the worldCs children;. More than one third of the countryCs population, around **3 million, is below 20 years. It is estimated that around 23 million or *3 per cent of IndiaCs children are vulnerable or eDperiencing difficult circumstances characteriJed by their specific social, economic and geopolitical situations. The &eport endorses that all these children need special attention. !ver the years the tate has introduced several policies, programmes and legislation to focus not only on the well being of all children but especially to address the priority needs of the above mentioned large categories of vulnerable and marginaliJed children. Much before child rights became an integral part of national and international documents and discourses, the Indian %onstitution< had specifically outlined provisions for children in critical 2 www.wcd.nic.in 3 "rticles 2*, 2-, 2-:<;, 25:2; :a;, )2, )2:";, )<, )*, <5:e; <5:f; of the Indian %onstitution are significant forchildren as they highlight e7uality, non discrimination, making special provisions for women and children,
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage
areas such as overall growth and development, education and protection from any form of abuse and eDploitation. India has comprehensive policy documents* and action plans- for children. India has also been a signatory to >( %onventions. cott :)33385; aptly comments, @Policy makers view children as a very special class of citiJens, a group whose uni7ue traits and circumstances warrant a different regulatory scheme from that which applies to the rest of us. These special protections are grounded firmly in a consistent account of what it means to be a child.A While there are specific legislations to deal with different priority areas pertaining to children, the 1uvenile 1ustice system is the largest machinery in India to work with two significant groups of vulnerable children8 children without family or family support, and children who allegedly commit offences. IMPORTANT TERMS
In this project some legal terms has been used fre7uently so it is necessary to map out the parameters of the terms that will be used often in later discussions. They are8 C!i5d"e/8 "ll human beings :boys and girls; who have not completed eighteen years of age :as
per the international definition provided in "rticle 2 of the %onvention on the &ights of the %hild; :u2e/i5e i/ Co/45it 3it! La3 = This is a term given under the 1uvenile 1ustice :%are and
Protection of %hildren; "ct, )333 :hereafter referred to as the 1uvenile 1ustice "ct; to all children who have been apprehended :arrested; by the police for alleged offence charges. The children have not completed eighteen years of age at the time of the alleged offence. Thus this term also includes those persons who are apprehended after they have completed 20 years, but were less than 20 years at the time of the alleged offence. and other safeguards
* The (ational Policy for %hildren, 25*, the first comprehensive national policy on children was followedby (ational Policy on Fducation, 250/, (ational Policy on %hild abour, 250, (ational (utrition Policy, 255< etc.
+ The (ational %harter for %hildren, )33* highlights areas of child protection, survival, life and liberty,protection from economic eDploitation and all forms of abuse.
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage -
O44e/e = "n illegal act or violation of any law committed by the juvenile in conflict with law
for which offence charges are levied. :u2e/i5e :ustie S$stem = This is not one single entity. Within the conteDt of the juvenile in
conflict with law, the juvenile system comprises all those mandatory Institutions :!bservation $ome and pecial $ome; and #odies :1uvenile 1ustice #oard; that have been eDclusively set up to work with the juvenile in conflict with law and implement the 1uvenile 1ustice "ct. The juvenile justice system also includes those organisations that work with the juvenile justice system as one of their responsibilities :police, public prosecutor who legally represent the police case before the 1uvenile 1ustice #oard and the 4ree egal "id lawyer;. !ther voluntary organiJations, (G!s or individuals who work with children within the juvenile justice system are also part of the system. Obse"2atio/ Home = This is a childrenCs residential institution as mandated by the 1uvenile
1ustice "ct. 1uveniles in conflict with law are admitted into the !bservation $ome and stay there till they are released on bail or through other !rders of the 1uvenile 1ustice #oard. The !bservation $ome is a closed Institution. %hildren cannot leave without specific !rders of the 1uvenile 1ustice #oard. #asic re7uirements of food, clothing, and shelter are met in the !bservation $ome. There are a few opportunities for vocational training as well. The !bservation $ome offers temporary stay till suitable !rders are passed;. :u2e/i5e :ustie Boa"d0 It is the mandated authority to deal with the cases of juveniles in
conflict with law. The 1uvenile 1ustice #oard is a three member bench comprising a Magistrate and two social workers of which one is a woman. The 1uvenile 1ustice #oard takes all decisions pertaining to the juvenile at all stages8 the first production before the #oard after being apprehended by the police, bail, period of in7uiry and closing of the case with the 4inal !rder. B1uvenile crimeC or Bjuvenile offenceC is the term used to study children who commit a crime or get apprehended on Boffence chargesC. Whenever we think of a child or a group of children, it usually conjures up a benign image. Generally, children are viewed as @youngA, @innocentA or @helplessA. %hildren are considered dependent on adult care and protection. Their abuse or eDploitation evokes anger andEor sympathy. The image of BcrimeC on the other hand is stark, sordid, and one of harm being done. There is a fear factor too. 1uDtaposing these two BimagesC of DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage
BchildC and BcrimeC and understanding Bjuvenile crimeC often becomes challenging. When the media reports about heinous crimes being committed by children, there is public outrage and anger. uestions are raised on the rationale for @treatingA such children differently when the safety of society itself is at stake. It becomes difficult to associate crime with child vulnerability. It raises more uncomfortable 7uestions than we would like to answer. There are two strong positions on juvenile crimeK the @get toughA approach vis=L=vis the @supportiveA approach towards children who commit crimes. The former approach is emphatic that crime needs to be tackled punitively especially if it has been a serious violation of law. The young age of the person involved cannot be a sole justification. The latter is e7ually strong in the argument that children need to be viewed differently even when they transgress the law or are involved in serious offences. While there have been debates about the cut off age for majority, age of consent etc, there is no debate on the need to create the distinction between child and adult. There have been a number of research studies and theoretical perspectives on children, which assert that children need to be understood differently from adults. It is widely accepted that young people re7uire special care and protection up to a certain age. Their well being is the responsibility of the family, society and the tate.
:U+ENILE CRIME0 DELINUENC- OR +ULNERABLE TO DELINUENC-
While juvenile crime may be individual in some cases, it is necessary to continue focusing on it as a social problem. 4reeman :2502; notes, @#y personaliJing causes, the social reality of trouble can be astutely ignoredNIndividualiJation also depoliticiJesA. In a study by 6abir and (igudkar :)33-; on the status of the implementation of the 1uvenile 1ustice :%are and Protection of %hildren; "ct, )333 within the tate of Maharashtra, India, the magistrates identified four causes of offence8 poverty, unemployment, negative impact of the social environment and the family atmosphere in general. 4actors associated with poverty and lack of access to facilities and resources is one of the major causes of juvenile offence. %hild neglect and delin7uency does not happen in a vacuum. There are larger societal issues of deprivation and child rights violation that re7uire attention at the macro level. The report of a thematic consultation for the >nited (ations ecretary=GeneralCs study on violence against children :)33-; analyJes that key systemic issues for juvenile offence include8 DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage /
2. The use of the justice system for children in need of care and protectionK the criminaliJation of normal, petty misbehavior, survival behaviors and status offencesK and the criminaliJation of children who are victims of abuse, ). ?iolence in the home and dysfunctional families, <. The failure of care and protection systems, including the lack of social support systems, appropriate social policies and preventive programs, *. 6iscrimination against vulnerable groups of children, including negative attitudes and stigmatiJation of children based on race, gender, ethnicity etc, and -. ocial and economic conditions, particularly poverty and socio=economic ine7ualities. UNDERSTANDIN, THE :U+ENILE :USTICE S-STEM
The >nited (ations ecretary=GeneralCs report on @&ule of law and transitional justice in conflictand post=conflict societiesA :"ugust )33*; defines @justiceA as an ideal of accountability and fairness in the protection, vindication of rights and the prevention and punishment of wrongs. 1ustice implies regard for the rights of the accused, for the interests of victims and for the wellbeing of society at largeA. The juvenile justice system is the machinery specifically created for juveniles in conflict with lawK it could either function within the adult criminal justice system or independently. It need not be a single en tity. It is usually a large network of institutions and groups that are involved in the delivery of juvenile justice :such as police, %hildrenCs $omesE%enters, 1uvenile %ourtsEPanelsE#oards, the concerned tate 6epartments, judiciary, governmental and non=governmental organiJations;. ome of the fundamental principles of a juvenile justice system include humane treatment of children, creating a child=centered system, provision of specialiJed services along with a multi disciplinary approach. @1uvenile justiceA can also refer to legislations, norms and standards of arrest, conditions of bail and detention, procedures and judicial processes :from first entry of the juvenile to reintegration;, institutions and bodies specifically applicable to juvenile offenders. It also includes efforts to address the root causes of offending behaviour and implement measures to prevent such behavior :1uvenile 1ustice Training Manual, Penal &eform International and >(I%F4 4. The justice system comprises tate=run law enforcement institutions :!bservation $ome, pecial $ome, 1uvenile DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 10
1ustice #oard, pecial 1uvenile Police >nit :within the police;, Prosecution services, and legal aid;. The non=tate mechanisms include voluntary workers, (G!s, academic centers, policeEjudicial training centres, and child related %ommissions established by the tate./ In different countries the juvenile justice system has evolved based on the legal mandates of the country and societal realities. "ccording to #utts, et al., :)33-; intervening with young offenders before they graduate to serious crime is a basic principle of the juvenile justice system. %reating opportunities for the development of children and reducing their vulnerability is another key objective. The >nited (ations B%ommittee on the &ights of the %hildC in their @General %omment no. 23A :)33; asserts that @%hildren differ from adults in their physical and psychological development, and their emotional and educational needs. uch differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and re7uire a different treatment for children. In all decisions taken within the conteD t of administration of juvenile justice the best interests of the child should be a primary considerationA Histo"$ o4 :u2e/i5e :ustie Le6is5atio/s i/ I/dia si/e );<= a/d t!ei" s7ei4i 7"o2isio/s0 ). :u2e/i5e :ustie At );<=
11 "ct was enacted in pursuance of the #eijing &ules 250-, prior to the %&%
•
6efinition of juvenile or child O 2/ years for boys and 20 years for girls
•
%hildren were categoriJed as delin7uent juveniles and neglected juveniles
•
#oth categories of children were kept in an !bservation $ome together pending in7uiry
•
1uvenile Welfare #oard was formed to deal with the neglected juveniles and the 1uvenile %ourt
•
was the adjudicating authority for the delin7uent juvenile
67 /ommon -pproach to ustice for /hildren , )330, http8www.unrol.orgEdoc DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 11
The neglected juveniles were in the 1uvenile $ome and the delin7uent juveniles to the pecial
•
$ome The Government of India ratified the >nited (ations %onvention on the &ights of the %hild in 255) thereby making it eDpedient to adhere to the standards prescribed in the %onvention. $ence, the 250/ 11 "ct had to be reviewed and changes had to be made in order to secure the best interest of the child and focus on social re=integration of the child without resorting to judiciary
The 11 "ct 250/ was repealed and the 1uvenile 1ustice :%are and Protection of %hildren; "ct )333 was passed taking into consideration all the International standards prescribed as per the %onvention on the &ights of the %hild, the tandard Minimum &ules for the "dministration of 1uvenile 1ustice, 250- :#eijing &ules;, The >( Guidelines for the Prevention of 1uvenile 6elin7uency called the &iyadh Guidelines, 2553 and the >nited (ations &ules for the Protection of 1uveniles 6eprived of their iberty :2553; '. T!e :u2e/i5e :ustie (Ca"e a/d P"otetio/ o4 C!i5d"e/% At '
The Title of the "ct stresses on the need for care and protection to both categories of children
•
>niform age for both boys and girls O any child who has not completed the age of 20 fall
•
within the jurisdiction of the "ct to comply with the %&% definition of the child
eparation of child in need of care and protection and child in conflict with law
•
•
%onstitution of %hild Welfare %ommittees to deal with children in need o f care and protection
and 1uvenile 1ustice #oards to handle children in conflict with law
The category of children in need of care and protection has been eDpanded to include victim of
•
armed conflict, natural calamity, civil commotion, child who is found vulnerable and likely to be inducted into drug abuse
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 12
More legal protection assured for the child in conflict with law O detention to be resorted to as
•
the last option, dis7ualification of past records and privacy maintained
The innovation the law makes with respect to children in need of care and protection is the
•
conceptualiJation of restoration of the child as being the focal point, with restoration being conceptualiJed as restoration to parents, adopted parents or foster parents. :ec<5;.
The law outlines four options of restoration for children in childrenCs homes and special homes
•
which include adoption, foster care, and sponsorship and after care. *. T!e :u2e/i5e :ustie (Ca"e a/d P"otetio/ o4 C!i5d"e/% Ame/dme/t At> '=
The 11 "ct )333 was subse7uently amended and hereafter referred to as the Principal "ct
•
The "mendment "ct brought about )/ amendments which are in force
•
This "ct forms the legal system and framework for the care, protection, treatment and
•
rehabilitation of children of both categories
T!e Ob#eti2e o4 t!e At0
= To ay 6own " egal tructure 4or The 1uvenile 1ustice ystem In The %ountry = To Provide " pecial "pproach To The Protection "nd Treatment !f 1uveniles = To outline the machinery and infrastructure re7uired for the care, protection, treatment, development and rehabilitation of juveniles = To establish norms and standards for administration of juvenile justice = To establish linkages and co=ordination between the formal system of juvenile justice and voluntary efforts in the welfare of juveniles = To constitute special offences in relation to juveniles and provide punishment.
Sa5ie/t 4eatu"es o4 :u2e/i5e :ustie At0
a; The "ct known as BThe &eformatory "ctC deals with two categories of children, namely children in need of care and protection and children in conflict with the law. b; The competent authority to deal with children in need of care and protection is the %hild Welfare %ommittee which constitutes a %hairperson and four other members, one of DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 13
whom at least should be a woman. %hapter I? of this Module would focus in detail about %hildren in need of care and protection and the functioning of the %W% in rehabilitation and disposition of cases. c; 1uvenile 1ustice #oard :11#; is the competent authority to deal with children in conflict with law which comprises of three members. The %hairperson of the #oard should be a 4irst %lass 1udicial Magistrate and two honorary social workers out of whom at least o ne should be a woman. pecial provisions for children in conflict with law and the responsibilities of the #oard are discussed in detail in %hapter III of this Module. ). The "ct provides for the establishment of various kinds of Institutions such as = %hildrenCs $ome for the reception of child in need of care and protection. = pecial $omes for the reception of child in conflict with law = !bservation $omes which are meant for the temporary reception of children during the pendency of any in7uiry. = "fter=care !rganiJations which are meant for the purpose of taking care of children after they have been discharged from %hildrenCs $ome or pecial $omes.
<. " few sections in the "ct :ec )
iii. &ules under the 1uvenile 1ustice :%are and Protection of %hildren; "ct )333 :-/ of )333; and the "mendment "ct << of )33/;8
The Ministry of Women and %hild 6evelopment at (ew 6elhi, the )/th day of !ctober, notified the Model &ules under the 1uvenile 1ustice :%are and Protection of %hildren; "ct )333 and the "mendment "ct )33/ to be administered by the tates for better implementation and administration
of
the
provisions
of
the
"ct
in
its
true
spirit
and
substance.
These rules called the 1uvenile 1ustice :%are and Protection of %hildren; &ules, )33 has come into force on the date of its publication in the !fficial GaJette and these &ules will be conformed
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 1*
to until the concerned tate Government formulates &ules specific for the tate with effect to implementation of the 11 "ct. Integrating elfare and !ustice
While viewing the rehabilitation of children within the legal framework, the integration between @1usticeA and @WelfareA is of critical importance. @The traditional concerns of the law are procedural fairness, protecting the innocent against arbitrary decisions, and the punishment of wrong doers according to the seriousness of their offenceA, whereas @welfare is represented by the desire of the law to diagnose the underlying problems of children who commit crimes and to treat these problems in some therapeutic wayA. The modern theory of juvenile justice argues for individualiJed justice tailored to treat a wide range of factors. Penal &eform International and :1uvenile 1ustice Training Manual, note that the juvenile justice system is governed by a philosophy of least restrictive action, that is, to the eDtent possible, the juvenile should not be in custody and should be in alternate care. In the Indian conteDt, it would be largely in the care of parentsEeDtended family members. The manner in which these children are treated by the justice system is a critical factor in determining the eDtent and 7uality of their reintegration into their families, schools and communities :Penal &eform International and >(I%F4, 1uvenile 1ustice Training Manual "he “#ge” $actor
Though it is difficult is to create a clear distinction regarding the period of transition between childhood, adolescence and adulthood, the age of legal responsibility or @criminal responsibilityA has been clearly defined in most countries. In India, the age of @criminal responsibilityA is seven years. This means that children below seven years cannot be apprehended on any offence charge. The entire juvenile justice system is based on the age factor and the life span perspective, which holds that capacities of children are evolving and until a certain age, they are unable to fully understand and anticipate the conse7uences and impact of their actions andEor behaviour. Thus age plays a crucial role. It separates the adult from the child, even though both of them may have committed the same kind of crime. "ge also has a bearing on the way the child who has committed an act of offence is treated vis=L=vis an adult who may have committed the same offence. " juvenile offenders BbehaviourC of breaing a law would be would be addressed with DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 1+
correction, guidance or support. They may be considered @immatureA. "dult criminals are viewed as fully responsible for their behaviour and deserving of punishment. This view has led to the establishment of a different set of law, a special court and a different jurisprudence for the young offender. The emphasis is more on correction and rehabilitation rather than punishment. The juvenile justice system for children who commit crimes is different from the adult criminal justice system. In case of >mesh %handra ?s. tate of &ajisthan a three judges bench "s regards the general applicability of the "ct, we are clearly of the view that the relevant date for the applicability of the "ct is the date on which the offence takes place. In )333 there appeared to be a shift in the view of
the $onCble upreme %ourt it observed in the case of "rnit 6as ?s. tate
of #ihar 0, that @o far as the present conteDt is concerned we are clear in our mind that the crucial date of determining the 7uestion whether a person is a juvenile is the date when he is brought before the competent authorityA. This crucial issue was once again considered by a five 1udge #ench in case of Pratap ingh ?s. tate of 1harkhand and others,5and it was held that the reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in the courtA %hildren "ct was enacted to protect young children from the conse7uences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens area as in the case of an adult. This being the intendment of the "ct, a clear finding has to be recorded that the relevant date for applicability of the "ct is the date on which the offence takes place. It acknowledges that the child, though responsible for any act committed, re7uires a different approach vis=a=vis adult offenders. The emphasis is on a childCs right to family, education, rehabilitation and social reintegration. This is imperative, as very often children who commit offences have already been denied of their basic rights of education and development. Poverty can deprive children and their family of a steady income and livelihood, and a sense of security. This is crucial for a child to grow up well. Moreover other eDacerbating factors such as strained andEor violent family relationships also affect the overall well being of the child. "t - "I& 250) % 23- "I& )333 % ))** / "I& )33- % )<2 DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 1
several points in time, this can be a push factor leading them into the web of crime. They become vulnerable to delin7uency. :u2e/i5e :ustie Le6is5atio/s i/ I/dia0
The first central legislation on 1uvenile 1ustice was passed in 250/, by the >nion Parliament, providing a uniform law on juvenile justice for the entire country. Prior to this law each state had its own enactment on juvenile justice with there being differences in the way juveniles were treated by different state legal systems. The 1uvenile 1ustice "ct was thus passed to provide care, protection, treatment, development and rehabilitation of neglected or delin7uent juveniles and for the settlement of certain matters related to and disposition of delin7uent juveniles. !ne major issues before the legislature is regarding the age of the juvenile. "fter Pratap inghs case23, the legislature through the amendment in )33/ removed any doubt by setting out in ection ) :l; definition of juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence and has not completed 20 years of age as on the date of commission of such offence. FDplanation to ection )3 has also been added which further clarifies that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any %ourt, the determination of juvenility of such a juvenile shall be in terms of clause :2; of section ), even if the juvenile ceases to be so on or before the date of commencement of this "ct and the provisions of this "ct shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. 4urther ection :a; has also been added which allows a person to raise a plea of juvenility even after final disposal of the case and puts obligation on the court to conduct an in7uiry to ascertain such persons age as on the date of offence and if found to be a juvenile on that day, to transfer the case to the 1uvenile 1ustice #oard for appropriate orders. ection /* of 11 "ct eDtends the benefit of the provisions of act to those persons undergoing sentence of imprisonment at the commencement of the act and who were below 20 years of age as on the date of offence. 10 ibid DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 1-
"ll doubts regarding the age for computation of @juvenilityA have been now laid at rest by judgment of upreme %ourt delivered on 3-.3-.)335 in case of $ari &am &ajasthan "nr,22 @The
law
as
?s. tate of
now crystalliJed on a conjoint reading of ections ):k;,
):l;, ", )3 and *5 read with &ules 2) and 50, places beyond all doubt that all persons who were below the age of 20 years on the date of commission of the offence even prior to )332, would
be treated as juveniles,
even if
the
claim of juvenility
2st "pril,
was raised after
they had attained the age of 20 years on or before the date of commencement of the "ct and were undergoing sentence upon being convicted.A There are certain guiding principles which need to be adhered to in the administration of juvenile justice and they form the basis on which the "ct and the &ules are formed. The juvenile justice functionaries should abide by the following fundamental principles in order to understand the "ct, interpret according to the situation in which the child is taken into custody and most importantly contribute to better and effective implementation of the "ct. They are basically drawn from all the national and international standards pertaining to children wherein a strong impetus is given to the fulfillment and protection of the childCs rights. Fmphasis is also laid on reintegration of the child into the family system to ensure proper care and protection from all kinds of eDploitative situations O2e" "idi/6 e44et o4 #u2e/i5e 5e6is5atio/.
The provisions of 1uvenile 1ustice :%are and Protection of %hildren; "ct )333 have an overriding effect on all other legislations irrespective of the nature of offence committed by a child who is less than 20 years of age as on the date of commission of offence. ection 2:*; provides8 (otwithstanding anything contained in any other law for the time being in force the provisions of this "ct shall apply to all cases involving detention, prosecution, penalty or sentence of imprisonment of juveniles in conflict with law un der such other law. In case of &aj ingh vs. tate of $aryana,2) it was held that juvenile legislation shall reign supreme
in
juvenile
cases
no
matter
the
nature
of
offence
committed .
11 %&IMI(" "PPF" (!. 53 !4 )335 :"rising out of ..P.:%rl.;(o.<<
Thus irrespective of the provisionE "ct under which a case is registered against a juvenile, the juvenile is to be dealt with only under the 1.1 "ct and not any other special "ct for the purposes of in7uiry and any final order pursuant thereto. "nother crucial issue is as to 3!e/ t!e 75ea o4 #u2e/a5it$ a/ be raised.It has been a settled position that the plea of juvenility can be raised at any stage, even after a person has been sentenced by trial court. There are many important judgements on this aspect. In case of 1ayendra "nr. ?s. tate of >ttar Pradesh2< the appellant was about 2/ year old on the date of commission of the offence and on the date of report during appeal before the supreme court he was about )< year old. The court held that the appellant should be released forth with in the view that he can neither be imprisoned nor could be sent to approved school, being more than 20 year of age. P"i/i75es to be 4o55o3ed i/ admi/ist"atio/ o4 t!e "u5es0
= Principle of presumption of innocence = Principle of dignity and worth = Principle of &ight to be heard8 = Principle of #est Interest8 = Principle of family responsibility8 = Principle of afety :no harm, no abuse, no neglect, no eDploitation and no maltreatment;8 = Positive measures to promote well being of the ch ild, reduce vulnerabilities and aim at development of childCs identity 8 = Principle of non=stigmatiJing semantics, decisions and actions8 = Principle of non=waiver of rights8 = Principle of e7uality and non=discrimination8 = Principle of right to privacy and confidentiality8 = Principle of last resort8 = Principle of repatriation and restoration8 = Principle of 4resh tart
13 :2502; * %% 2*5 DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 1/
The "ct in ection /0 prescribes various areas wherein the &ules can be applied to for better implementation of the "ct, specifically with management of the homes, standards to be adhered to, roles and responsibilities of the 11 functionaries, procedures and functioning of the competent authority. It is recommended that the "ct is implemented in line with the &ules to promote better understanding of the "ct in order to benefit the children who come in contact with the 11 ystem. $owever, 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 20 years of age and amending the law when societal conditions radically change over time. "s per the reports of the (ational %rime &ecords #ureau :(%&#; entitled @%rime in India )322A and @%rime in India )32),A the percentage of crimes committed by juveniles as compared to total crimes has not significantly increased from )332=)32). "ccording to the (%&# statistics, India is not in the throes of a general crime wave by juveniles. $owever, the (%&# statistics relating to violent crimes by juveniles against women are very troubling. @%rime in India )322A suggests the number of rapes committed by juveniles has more than doubled over the past decade from <55 rapes in )332 to 0-0 rapes in )323. @%rime in India )32)A records that the total number of rapes committed by juveniles more than doubled from *0- in )33) to 22*5 in )322. "s the data suggests, between )322 and )32) alone, there was a massive increase in instances of rape by juveniles by nearly <33, which is almost as much as the increase in such cases over the entire previous decade. This increase alone makes amendment of the 11" imperative. The improvement of the juvenile justice system is a gradual process, which re7uires intensive and continual follow=up as well as long=term commitment rather than a series of Bad hocC eDercises and Bknee=jerkC responses. Training programs should be based on participatory techni7ues that promote sensitiJation 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 b etter understanding of the constraint . It is vital for the authorities involved in the juvenile justice system to build effective partnerships with civil society. (on=Governmental !rganisations :(G!Cs; have the capacity to
provide
community=based life=skills programs, Bgroup counselingC, community work opportunities, and open Bcustody group homesC for children in conflict with law. ?oluntary sector organisations can DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 20
thus help the governmental agencies to engineer a substantial shift towards non=custodial alternatives
for
corrective
measures
involving
juveniles.
$owever, though the juvenile system at present needs some major amendments in its various parts, this article will be mainly focusing on the issue of age to categoriJe an individual as a juvenile or as to what should be the lines to decide as to whether the accused should be treated in the juvenile board or in an adult court. hould we follow the 11" strictly in black and white, or can we dilute it at times, as per the demanding needs of the justice9 hould @"GFA alone be the criteria to place an accused in the category of juvenile or should the @M"T>&IT'A of the accused be also taken into consideration9 De5!i ,a/6 Ra7e (Ni"b!a$a% Case
The recent gang rape of a )<=year old girl in (ew 6elhi, India raised a lot of pertinent 7uestions in the minds of the public. People across the country reacted with rage and hurt and collectively came together to start a movement for the safety of women in India. In the midst of this agitation, the media shared details about a young boy whose odious acts of violence further sculpted public opinion. The people of India called for amendments in the juvenile justice system by reducing the age of juveniles to 2/ years :currently 20 years; whilst child rights organiJationsEactivists argued to adhere to the present justice system for children. 6elhi gang rape was mainly the incident which forced the authorities to pay heed to this topic once again and brought into spotlight the criteria of classifying an individual for the juvenile trial. It was after and due to this incident only that public protests against the Government of India and the Government of 6elhi took place for not providing ade7uate security for women in (ew 6elhi, where thousands of protesters clashed with security forces. imilar protests took place in major cities throughout the country. This incident generated widespread national and international
coverage
and
was
widely
condemned,
both
in
India
and
abroad.
The brutal incident took place on 2/th of 6ecember, )32). The case involved a rape and murder that occurred on the fateful day in Munirka, a neighborhood located in the southern part of (ew 6elhi, when a )<=year=old female physiotherapy intern was beaten and gang raped in a private bus in which she was travelling with a male friend. There were siD others in the bus, including DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 21
the driver, all of whom raped the woman. The woman died from her injuries thirteen days later while undergoing emergency treatment in ingapore. "ll the accused were arrested and charged with seDual assault and murder. !ne of the accused, &am ingh, died in police custody on 22 March )32< in the Tihar 1ail. The rest of the accused went on trial in a fast=track courtK the prosecution completed its evidence on 0 1uly. !n 23th eptember )32<, the four remaining adult defendants were found guilty of rape and murder and three days later were sentenced to death by hanging. "nd one of the accused, who was a juvenile, was convicted of rape and murder and given the maDimum sentence of three years imprisonment in a reform facility, as per the 11 act. It was the conviction of this juvenile in this case, which raised the hue and cry for lowering down the age of juvenile from 20 to 2/, so that the juvenile accused, who was the main culprit in the case be tried in an adult court as other accused.
In the <<=page charge sheet, the 6elhi Police described the juvenile as the most brutal of the siD accused . The accused was declared as 2 years and siD months old on the day of the crime by the 1uvenile 1ustice #oard :11#;, which relied on his birth certificate and school documents. The 11# rejected a police re7uest for a bone ossification :age determination; test for a positive documentation of his age. !n )0th 1anuary, the juvenile was declared to be a juvenile by the 11#. " petition moved by 1anata Party president ubramanian wamy seeking the prosecution of the minor as an adult because of the ghastly nature of his alleged crime was rejected by the 11#. The minor was tried separately in a juvenile court. !n <2st "ugust, the juvenile was convicted of rape and murder under the 1uvenile 1ustice "ct and given the maDimum sentence of three years imprisonment in a reform facility, inclusive of the eight months he spent in remand during the trial. Disussio/ o/ t!e Issue
"s of now, one of the biggest challenge posing a big 7uestion mark on the face of all the judicial authorities in regards to the juvenile is to what should be the criteria of classifying as to whether the case of a juvenile should be tried in a juvenile court or not9 hould age be the only criteria for this purpose9 hould judges follow the 11 act blindly in black and white i.e. categoriJing DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 22
cases solely on the basis of the age, without going into the intention and purpose of the legislators behind enacting such type of legislation9 In the 6elhi incident, one of the accused was aged about 2 years i.e. below 20 years and as per the prevailing law has been treated as a juvenile and kept in some reformatory schoolE borstal jail. (ot only this, as per the prevailing law the 1uvenile 1ustice :%are and Protection of %hildren; "ct, )333, his trial was also conducted separately and even after being found guilty of rape and murder was awarded only a tiny imprisonment in a reform facility up to < years.A
(ow, the 7uestion that is facing towards us all is that whether such modest punishment for his such a heinous and grevious act is enough and fulfilling its purpose9 "s per the researcher, since the "ct has no parameter about the physical or mental maturity of a juvenile is mentioned, it has like given license to @all matured, cruel type of persons under the age of 20 years to live with full impunity and commit any crime of any level and walk scot free only on the basis of their age being less than 20 years and being covered under the 1uvenile 1ustice "ct.A The issue has assumed @public significanceA as such a @juvenile would make mockery of law and would walk free without any appropriate punishment and fair trial as far as the victim is concerned.A "s per the researcher, 6elhi gang rape case was an eDample that should be @taken into consideration by the official respondents to immediately carry out amendments in the definition of juvenility and insert appropriate eDceptions which would cover the facts and circumstances of that case and which would include the gravity and heinousness involved in that particular case along with the level of maturity and understanding of that particular offence by the juvenile concerned.A @The insertion of the eDception is the need of the hour as the law on this aspect is totally silent and people would use the silence of law to their benefit as has been done in the 6elhi incident.A The time has come in order to bring some reform in the 1uvenile laws as there is a steep rise in serious crimes involving youth of 2/ O 20 years of age and they very well know that below 20 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. DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 23
:: At /eeds ame/dme/t as it does /ot ta59 about t!e 7!$sia5 o" me/ta5 matu"it$ o4 a #u2e/i5e
The two main components of any crime in law is @"ctus &eaA and @Mens &eaA and when both the components are proved in the court of law, then only an individual is convicted. (ow, in the case of a juvenile, the actus rea part of his offence is protected under the juvenile law and the mens rea part is never taken into consideration, as there are no parameters to judge the same.
$aving no parameters about the physical or mental maturity of a juvenile, it has like given a license to @all matured, cruel type of persons under the age of 20 years to live with full impunity and commit any crime of any level and walk scot free only on the basis of their age being less than 20 years and being covered under the 1uvenile 1ustice :%are Protection of %hildren; "ct.A
The mental maturity of the juvenile is to be judged on the fact if he was fully aware and conscious during the eDecution of the crime. If not then an adult of the age of <3 who has committed a crime unintentionally should be tried at the juvenile court for the reason that he was not mentally alert. The researcher would vow that age is no reason to eDempt somebody who has brutally raped and been the reason for the death of a future Indian when he was completely aware and conscious of what he was doing. " hard step now can be a warning to the many young minds who grow up today and design their perspectives for tomorrow considering the handling of law in their hands just for fun.
CONCLUSION
La3s s!ou5d be d$/ami i/ /atu"e a/d s!ou5d !a/6e 3it! t!e !a/6i/6 soiet$.
It is a famous saying that whatever will not change with the changing time, will ultimately result in failure and so stands for the law as well. ociety is not static, it is dynamic. Its needs change DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 2*
with time to survive. It is correct to reform and rehabilitate a child in conflict with law, however we should not send a signal in society that a person below 20 years of age can commit any kind of heinous acts and still get away with a minor penalty . o, need is to take into account mental maturity age of person and not just chronological age while deciding the case. 4acilities at reformation centre should be improved so that real rehabilitation happens rather than just lip service.
Today, with breakdown of joint family system, rise of nuclear family, increasing influence of social media children are eDposed to a number of threats =psychological, physical, seDual. In our country inspite of political e7uality, ine7ualities like socio=economical, regional, are wide spread. (eed of the hour is to build character of our future generation. ociety should evolve a procedure :Mentoring, etc; to supervise and guide children during adolescent age so that they learn to respect fellow citiJens, &TF act should be strengthen to include children up to 20 years of age into education system, since education has a transformative effect on a person, training to deal with different crisis in life and most important patriarchal attitude of society towards females should change.
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAMPage 2+
