In India the laws relating to protection of children are found in a number of legislations. The Constitution on India provides the basis for the legal framework to protect children, whom it recognizes as a discrete group with identifiable rights and needs. The constitution mandates child protection as a special provision in Article 15 (3)[1]. Article 39 (E) & (F)[2]provides protection of children’s healthy development. Article 24[3]prevents children from working in hazardous situations below 14 years. Article 45[4]provides the right of children for free and compulsory education and Article 47[5]prohibits the consumption of liquor and intoxicating drugs, except for medical purposes. Moreover, Indian Penal Code, 1860 provides protection of children from sexual abuse in sections 354, 375 and 509, selling of minors for prostitution in sections 366, 366A, 366B and 372, buying minors for the purpose of prostitution in section 373 and non-consensual assault of male child in section 377.
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 This law, brought in compliance of Child Rights Convention[6], repealed the earlier Juvenile Justice Act of 1986. This Act has been further amended in year 2006 and 2010.
Main provisions of the Act
The act defines “Juvenile “or “child” as a person who has not completed 18 years of age[7]. The act deals with two kinds of juveniles, “juvenile in need of care and protection” and “juvenile in conflict with law”. Section 2(d)[8]of the act defines a child in need of care and protection as a child who is without a home, settled home or place of abode, a child who is found begging on the streets , a street child , a child who resides with such a person who has threatened to kill the child, a child who is mentally challenged , an abandoned child, a child who is vulnerable and can be dragged into drug abuse, sexual acts and a child who is victim of civil commotion and natural calamity. Juvenile in conflict[9]with law has been defined as a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.
Juveniles in Conflict with law:
The second chapter of the Act addresses Juveniles in Conflict with Law. This chapter calls for the establishment of Juvenile Justice Boards where the State Government sees fit[10]. Juvenile Justice Boards 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. Juvenile in Conflict with Law cases can only be heard in the Juvenile Justice Board and not by another court[11]. The chapter also deals with establishment of Observation homes[12]which are institutions for juveniles while their proceedings are underway.
As per the act 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[13]. Bail is available to juveniles in all cases as long as the Board finds that 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.
Order that can be passed against Juvenile:
The chapter II to the act lays down the orders that can be passed against a juvenile[14]when the Juvenile Justice Board is satisfied that the Juvenile has committed an offence. The orders mentioned are:
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counselling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counselling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person,on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour andwell-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for the good behaviour and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
(i) in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two years;
(ii) in case of any other juvenile for the period until he ceases to be a juvenile:
The Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it think fit.
Order that cannot be passed against a Juvenile:
Section 16 to the act states that a juvenile who has been found guilty of any crime can in no circumstance be punished with a death sentence , life imprisonment, or committed to prison in default of payment of fine or in default of furnishing security[15].The proviso to the section lays down the case of a juvenile who is above 16 years of age and has committed an offence and the Board is satisfied that the offence committed is of so serious in nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government[16].
Children in Need of Care and Protection:
Chapter III addresses Children in Need of Care and Protection. In place of a Juvenile Justice Board, Children in need for care and protection cases are heard by the Child Welfare Committee[17]. The committee should 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[18]. The purpose of the Child Welfare Committee 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 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 Juvenile In Conflict with law, Children in need of care and protection are provided with Children’s Homes[19]and Shelter Homes[20]. The state may directly set up these homes or contract a voluntary organization to do so. The main aim of this system is to restore the child to his family or family environment after determining the safety of the environment.
Protection Measures:
Chapter IV of the Act envisages for the rehabilitation and social reintegration of the children and and discusses certain non-institutional solutions such as adoption[21], foster care[22], and sponsorship[23]. Orphaned and abandoned children are eligible for adoption. Foster care in this act is only for looking after infants before adoption takes place[24]. Sponsorship programmes[25]are to help provide supplementary educational, nutritional, medical and other services to families, guardians, and homes. After-care organizations[26]are also to be set up to take care of children after they leave the homes.
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[27]. Under this act the government can set up advisory boards at different levels to advise them about various implementation aspects of the act.
The Juvenile Justice (Care And Protection) Act, 2000- A Critique Analysis
Though the Juvenile Justice (Care and Protection) of Children Act, 2000 is a good piece of legislation serving the twin purpose of providing justice and providing ways of rehabilitation to the Juveniles in Conflict with Law and Juvenile in need of care and protection but it is not free from flaws and criticism. There are glaring deficiencies both, in procedural as well as substantive portions which require attention.
a) Usage of the word ‘may’:
A lot of the implementation part has been left up to the States by way of the rules that the States may formulate. The usage of the word ‘may’ as far as the framing of rules by the States is concerned, is a major fallacy because until and unless, the formulation of rules is not made mandatory, the implementation of the Act will remain a dream. Sec. 8 of the Act is an example of the abovementioned problem. According to Sec.8 (3) of the Act, the State may formulate rules and standards for the observation homes that are to be established. Leaving something as important as maintenance of standards to the discretion of the State is a major problem and should be made mandatory for the State to regulate such basic areas. Even the appointment of inspection committees for the children’s homes has been left to the discretion of the States and they ‘may’ constitute such committees according to Sec. 29. Something as important as after care organizations, to check up on the juveniles who have left the special homes and have been adopted or rehabilitated, has also been left to the discretion of the States according to Sec.44.
b) Extension of period regarding inquiry:
Sec. 14[28]says that any inquiry regarding a juvenile, needs to be completed within a period of four months unless there are some special circumstances in special cases. There is absolutely no mention of what the maximum period for inquiry should be and what may be the special circumstances under which the period should be extended. This discretion permits cases to languish in the system indefinitely. Sec. 14 gives a lot of scope for arbitrariness and any lackadaisical attitude on behalf of the juvenile justice board may be sought to be explained as the special circumstances of the cases and hence, they have the option of getting away with it. This is extremely dangerous for a juvenile, in whose case the inquiry should be completed as soon as possible.
c) Adequate training for the officials dealing with juveniles:
No provisions have been provided in the Act regarding the specifications of the special training of the officials who are supposed to deal with juvenile offenders. Even though Sec. 63 provides for properly trained police unit, it pays mere lip service to the requirement of special training because no proper guidelines have been provided as to how the special training will be given. Lack of properly trained officials defeats the entire purpose of the Act.
d) Punishment for cruelty to a juvenile:
According to Sec. 23[29], a person responsible for cruelty to a juvenile will be punished with
Imprisonment for a period of 6 months or with fine or with both. It is very strange that at a time when the government is trying to curb the menace of cruelty with juveniles, the punishment that they have prescribed is in no way going to act as a deterrent to such erring individuals. The punishment needs to be increased and also the fine amount needs to be specified so that it may discourage the potential law breakers in this area.
e) The issue of Age of Juvenile:
Indian laws have created four categories of persons (who are accused of committing any offence) on the basis of their age. The criminal liability of a person, who has committed an offence, depends on the age-wise category to which he belongs. This is explained as under:
(1) Below 7 years of age:
Section 82 of the Indian Penal Code declares that nothing is an offence which is done by a child under seven years of age. Thus, irrespective of what crime is committed by a child below seven years of age, he shall not be liable for any punishment for such crime.
(2) Between the age of 7 years and 12 years:
Section 83 of the Indian Penal Code lays down as under:
“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 conduct on that occasion.”
Thus, if an offence is committed by a child who is above 7 years of age but under 12 years of age, it will first have to be ascertained whether the child has attained sufficient maturity of understanding due to which he can judge the nature of his alleged conduct (i.e., the act of committing the offence) and the consequences thereof.
Now, if such a child commits an offence and he did not have the sufficient maturity of understanding the nature and consequences of his conduct, he would not be liable for that offence. On the other hand, if he had the sufficient maturity of understanding to judge the nature and consequences of his conduct (leading to that offence), he shall be liable for that offence in accordance with the provisions of law. However, even in such a case, he shall not be prosecuted and punished like adult offenders. Such a child committing an offence shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India. Thus, even if such a child is liable for action for the offence committed by him, he cannot be imprisoned and he cannot be given death penalty.
(3) Between the age of 12 years and 18 years:
If an offence is committed by a person who is of the age of 12 years or above but below the age of 18 years, he shall be liable for such offence. However, he shall not be prosecuted and punished like adult offenders. He shall be dealt with only in accordance with the provisions of the law relating to juvenile justice in India. Thus, such a person also cannot be imprisoned and he cannot be given death penalty.
(4) Of or above the age of 18 years:
If a person committing an offence has completed the age of 18 years or is above the age of 18 years, he is criminally liable for such offence in accordance with the normal criminal laws of the country.
In the light of Juvenile Justice Act: According to the Juvenile Justice act a “child” or Juvenile is a person who is under 18 years of age[30]. The act fails to punish offenders who are under 18 years of age but have attained mental maturity and are aware about the nature and circumstances of their act. The intention behind the existence of the Act was to protect the juveniles because they were not supposed to have the necessary mental element required to commit crimes. This was the reason behind having milder laws and punishments to deal with juvenile offenders. However, in the light of cases[31]of crimes committed by maximum amount of brutality by Juvenile it is very evident that the offenders had the necessary knowledge and mental element regarding the commission of the crime and the provisions of the Act have now turned out to be a shield to protect them and provide them with lighter modes of punishment such as counseling or being kept in a correction home for 3 years.
In the case of Kakoo vs State of A P[32], Kakoo named boy of 13 years of age had committed rape on a small child of two years. He was convicted and sentenced for four years rigorous imprisonment. When the case reached the apex court it adopted humanitarian attitude and reduced the sentence to only one year rigorous imprisonment. Justice Sarkaria observed that an inordinate long imprisonment term is sure to turn a juvenile delinquent into obdurate criminal and laid an emphasis that in case of child offenders current penological trends command ‘a more humanitarian approach.
Recently the Supreme Court while declining petitions[33] seeking the lowering of the age in the act from 18 to 16 years for juveniles and demanding that those involved in heinous crimes should not be treated differently from other offenders said:
“The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the rules framed there under in 2007, is restorative and not retributive, providing for rehabilitation and re-integration of children in conflict with law into the mainstream of society”
“It is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future,” the court said.
Law in other countries and age of criminal responsibility[34]:
In England, the age of criminal responsibility, is set at 10 years. This means that any individual above the age of 10 is considered fully aware of the difference between right and wrong. In case of a juvenile offender, he/she can either be tried as a juvenile or as an adult, depending again on the heinousness of the crime. In case the offender is tried as an adult the Crown Court (the UK version of a criminal court) has in its discretion to award the maximum amount of punishment as would be awarded to an adult.
Similarly in the United States the case of Kent v The United Case[35] in 1966 saw a juvenile, who was convicted of house breaking robbery and rape, tried as a major. He was sentenced to thirty to ninety years behind bars.
In fact, the Unites States has drawn a clear distinction between juveniles as victims of an unresponsive society and those who are fully aware of the heinousness of their crimes. The legislation of the country allows in certain cases, keeping in mind the heinousness of the crime committed, to try juvenile offenders as adults. The justification offered behind this waiver is to recognise the inherent and all important principle of Mens Rea or guilty conscience.
This waiver of jurisdiction by the Juvenile Board is brought about by a clear understanding that in certain cases the board may not be adequately equipped to handle the offender, particularly one who committed the crime knowing fully well the consequences of his/her actions.
Another justification offered is the prime responsibility of the State to protect society from such offenders. By waiving its jurisdiction the juvenile court recognises that the offender is beyond the scope of juvenile rehabilitation and legitimises the waiver of jurisdiction as a means of protecting society at large from the offender.
Australia too follows a system similar to the United Kingdom. The age for criminal responsibility in Australia is also 10 years[36], which means a child is not supposed to know the difference between right and wrong if he/she is below 10 years. From 10 years to 14 years an accused comes under what is called ‘rebuttable presumption’, this means that by default the child is supposed to be unaware of the consequences and inherent illegality of the act committed, however the prosecution is free to rebut this understanding. Any individual over 14 years of age is held accountable of any crime committed by him and whether the individual is to be tried as a minor or an adult depends again on the heinousness of the crime.
Coming back to India and the Juvenile Justice Act 2000, it is easy to notice that rather than have a flexible procedure for sentencing we have opted for a rigid and sweeping one. This is a system in which the maximum amount of sentence served by a delinquent who say partakes in armed robbery in order to feed himself is the same as the one given out to a serial rapist or murderer; just so long both are under eighteen years of age.
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.
Summing up though the Juvenile Justice Act is a Progressive step in providing justice and rehabilitation to the Juveniles in conflict with law and Children in need of care and protection but the need of the hour is to amend it to overcome the lacunas it has and make it progressive with time.
[1] Article 15(3) of Indian Constitution
[2] Article 39 (E) & (F) of Indian Constitution
[3] Article 24 of Indian Constitution
[4] Article 45 of Indian Constitution
[5] Article 47 of Indian Constitutions
[6] United Nations (1989) Convention on the Rights of the Child New York
[7] Section 2(k) of Juvenile Justice (Care and Protection of Children) Act 2000.
[8] Section 2(d) of Juvenile Justice (Care and Protection of Children) Act 2000.
[9] Section 2(l) of Juvenile Justice (Care and Protection of Children) Act 2000.
[10] Section 4 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[11] Section 4(2) of the Juvenile Justice (Care and Protection of Children) Act 2000.
[12] Section 8 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[13] Section 10 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[14] Section 14 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[15] Section 16 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[16] Proviso to Section 16 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[17] Section 29 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[18] Section 29(2) of the Juvenile Justice (Care and Protection of Children) Act 2000.
[19] Section 34 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[20] Section 37 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[21] Section 41 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[22] Section 42 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[23] Section 43 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[24] Section 42 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[25] Section 43 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[26] Section 44 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[27] Section 48 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[28] Section 14 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[29] Section 23 of the Juvenile Justice (Care and Protection of Children) Act 2000.
[30] Section 2(k) of Juvenile Justice (Care and Protection of Children) Act 2000.
[31] Priyangi Agarwal,Juvenile offender major crimes, Times of India, dated Jan 8, 2013.
[32] AIR 1976 SC 1991.
[33] Salil Bali v. UOI; Writ petition (c) no. 10 of 2013.
[34] Neal Hazel, Cross-national comparison of youth justice Pg. 35 , The University of Salford available at : http://www.yjb.gov.uk/publications/resources/downloads/cross_national_final.pdf
[35] Kent v The United Case ;383 U.S. 541
[36] Gregor Urbas, The Age of Criminal Responsibility, Australian Institute Of Criminology Pg. 1, available at http://www.aic.gov.au/documents/0/0/A/%7B00A92691-0908-47BF-9311-01AD743F01E1%7Dti181.pdf