Author: Deeksha Gupta


Introduction

Juvenile Justice (Care and Protection) Act, 2015 defines juvenile as a child below the age of eighteen years[1]. Juveniles are one of the most vulnerable groups of the society which require special protection of law. There are certain features which are peculiar to juveniles. For examples, most of the crimes are committed by the juveniles as a result of high risk taking behavior, they are more susceptible to peer pressure, and there are high chances of reformation among juvenile offenders[2]. As a result, every developed criminal justice system of the world has a separate system (separate from adult offenders) to deal with the juvenile offenders. Mostly, the system to deal with the juvenile offenders is based upon the reformative theory of law, the reason being:

(i)most of the juveniles are first time offenders and are not hardcore criminals

(ii)juveniles have much higher chances of reformation than the adults[3]

Laws In Force in India–

The first legislation in India for juveniles was the National Children’s Act, 1960 which was later replaced by Juvenile Justice Act, 1986. However, when in 1992, India ratified United Nations Convention on Rights of the Children (UNCRC), to adapt to the standards of the same, it became necessary to repeal the Juvenile Justice act of 1986 and enact a new legislation in accordance with the standards of the convention.

As a result, the Juvenile Justice (Care and Protection) Act was enacted in the year 2000 for the purpose of dealing with juveniles. It has been since amended in 2002, 2006 and 2015 to adjust with the changing circumstances of the society.

The act basically divided juveniles in two categories:

(i) Juveniles in ‘conflict with law’ – child who is alleged to have committed an offence and who has not completed the age of eighteen years on the date of commission of the offence. At the first instance, they are handled by the Juvenile Justice Boards.[4]

(ii) Juveniles in the ‘need of care and protection of law’ – these are the children found in any of the vulnerable conditions as mentioned in s 2(14) of the act. They are looked after by various Child Care Institutions.

Under the act, no child can be awarded death penalty or life imprisonment without the possibility of release.[5] Also, as per section 23 of the act, a child can never be tried with an adult.

The Juvenile Justice Board which is a body under the act, consists of a magistrate and two social workers, at least one of whom must be woman. No social worker can be appointed in a juvenile justice board unless he or she has worked in health, education or welfare activities related to children for at least seven years or is a practicing professional in child psychology, psychiatry, sociology or laws.[6]

However, in the aftermath of the role of the juvenile in the brutal Delhi Gang rape case, there was a huge public outcry and dissatisfaction over the inadequate punishment given to him as compared to his acts and the leniency shown towards him by the criminal justice system. A need was felt to make the law for juveniles stricter. An amendment was made to the Juvenile Justice (Care and Protection) act. Now the act gives the possibility for the trial of juveniles as adults in certain cases with certain conditions attached.

According to section 15 of the JJ act, 2015, in case of commission of a heinous offence by a child who is or has completed the age of sixteen years, the Juvenile Justice Board should carry out the preliminary assessment as to the mental and physical capacity of the juvenile to commit the said offence and his ability to understand the consequences of the offence as well as the circumstances in which he committed the said offence. The preliminary assessment must be completed within a period of three months from the date of production of child before the board. In other cases the inquiry by the board must be completed within a period of four months. The Board after the preliminary assessment may pass any of the order mentioned under section 18 of the same act. If after the preliminary assessment, the juvenile justice board feels that there is a need of trial of the juvenile as an adult, the board may pass an order, transferring the trial of the case to the Children’s court, having the jurisdiction to try such cases.

Under the act, if a juvenile after a trial is awarded a sentence and he attains the age of twenty one years of age and is yet to complete his sentence, the children’s court after taking report of Probation officer or District Child Protection Unit or Social worker as to the reformation of the child may decide to release him or order him to stay in the jail for the remainder of his term.[7]

Statistics

 According to the reports of National Crime Records Bureau, in the year 2015, there were a total of 31, 396 cognizable cases under IPC against the juveniles. Out of this, maximum number of cases were of theft, i.e. 6046 cases out of 31, 396, whereas a minimum 12 cases of counterfeiting were registered against juveniles in the year 2015.[8] According to NCRB data, cases involving juveniles has increased by 16%.[9]

If we analyse the number of juveniles apprehended by age group and gender, then according to the data given by National Crime Records Bureau, in the year 2015 total 38,221 boys were apprehended. On the other hand, only 853 girls were apprehended with relation to different crimes.[10] If we analyze the data with the point of view of age group, then the maximum number of juvenile offenders belong to the age group of 16-18 years (27449 boys and 537 girls) whereas minimum belong to the age group of 7-12 years (513 boys and 38 girls).[11]

If we see the total number of juvenile apprehended in the three years after the amendments have been made in the Juvenile Justice (Care and Protection) Act to make it more stringent then we will observe that there is no steep fall in the number of juvenile offenders as expected as an outcome of those amendments. The number of juvenile apprehended in the year 2013, 2014 and 2015 is 43,506, 48,230 and 39,074 respectively.[12]

Lacunae in Law

After observing the statistics of juvenile offenders for the years 2013, 2014 and 2015, and 2015 in detail, one can easily draw the inference that there is no steep fall in the juvenile delinquency as was claimed by the government of the day after the passage of the amendment act of 2015 in the Juvenile Justice (Care and Protection) Act.  However, if we closely observe the law and procedure we can conclude that it has caused more injury than healing the cause. There are a number of lacunas in the existing legal system for the juvenile, some of which are mentioned below:

  • After the amendment, under section 15 the power has been given to the Juvenile Justice Board to carry out the preliminary assessment to adjudge the mental and physical capacity of the offender to commit the offence and to understand the nature and consequence of his act. After the assessment, if the board thinks it, may pass an order to transfer the case for trial to the children’s court. Thus, the fate of the juvenile is completely dependent upon the assessment of the Juvenile Justice Board but they are working very casually and in a mechanical manner. According to Lawyer and Juvenile Law Expert Ananth Kumar Asthana, “medical experts write cursory and cryptic psychological reports”[13].
  • The act gives wide discretionary power to the board as well as police and do not provide any mechanism of checks and balances over them.
  • According to the act, the Juvenile justice board is to consist of two social workers who should have been involved in the health, education or welfare of children for at least seven years or is a practicing professional of child psychology, psychiatry, sociology or law. In India, it is more than impossible to have a practicing professional of child psychology or psychiatry in juvenile justice board of every district, looking at the educational system of India, especially the number of degree of holders in psychology and psychiatry.. Thus, how can the assessment of mental capacity of a child can be ensured with accuracy in the absence of a person trained in child psychology or sociology?
  • After the amendment of 2015, the act distinguishes between the children of below the age of 16 years and between the age of 16 and 18 years. However, there is no intelligible differentia that has been provided by the state except for the fact that it was done to pacify the public outrage created after the Nirbhaya Gang rape case.
  • Child Care Institutions defined under this act include Children home, open home, observation home etc. State has maintained these with the help of NGOs. But in the wake of recent controversies of Muzzafarpur and Deoria, these have also been surrounded by questions.

Conclusion

To achieve the objective of Juvenile Justice (Care and Protection) Act various steps needs to be taken. Firstly, proper training of members of juvenile justice boards and their proper working should be ensured. Secondly, periodic audit of child care institutions should be carried out. Thirdly, various educational and vocational training programmes should be carried out for juveniles in correctional homes for children in conflict with law so that the objective of reformation of juveniles can be achieved.

In order to realize the Juvenile justice in letter and spirit the need is to strengthen the basic infrastructure which in turn only be achieved through proper implementation of policies.


[1]Juvenile Justice (Care and Protection) Act, 2015, s. 2(35).

[2]Arthur Allen, Risky Behavior by Teens can be Explained in parts by how their brain change, The Washington Post (September 01, 2014), https://www.washingtonpost.com/national/health-science/risky-behavior-by-teens-can-be-explained-in-part-by-how-their-brains-change/2014/08/29/28405df0-27d2-11e4-8593-da634b334390_story.html?utm_term=.22494b96a80e.

[3]Jody Kent Levy, Notion that Kids are Different, Takes hold in Youth Justice Policy Reform ,Juvenile Justice Information Exchange (December 31, 2012), https://jjie.org/2012/12/31/over-years-notion-that-kids-different-takes-hold-youth-justice-policy-reform/.

[4]Juvenile Justice (Care and Protection) Act, 2015, s. 2(13).

[5]Juvenile Justice (Care and Protection) Act, 2015, s. 21.

[6]Juvenile Justice (Care and Protection) Act, 2015, s. 4(3).

[7]Juvenile Justice (Care and Protection) Act, 2015, s. 20.

[8]Juvenile Delinquency IPC Cases, All India Table- 37.5 (A), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/statistical-year-book-.india/2017/206.

[9]Prison Statistics of India 2015 (National Crime Records Bureau, 2015).

[10]Juveniles Apprehended by Age Group and Sex (IPC & SLL), All India Table – 37.8 (A), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/statistical-year-book-.india/2017/206.

[11]Juveniles Apprehended by Age Group and Sex (IPC & SLL), All India Table – 37.8 (A), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/statistical-year-book-.india/2017/206.

[12]Juveniles Apprehended by Age Group and Sex (IPC & SLL), All India Table – 37.8 (A), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/statistical-year-book-.india/2017/206.

[13]Bhavya Dore, A Year Since the New Juvenile Justice Act came into being, chaos rules its implementation, Scroll.in (January 15, 2017), https://scroll.in/article/826668/a-year-since-the-new-juvenile-justice-act-came-into-being-chaos-rules-its-implementation.


About the Author: Deeksha is a third-year student at Dr. Ram Manohar Lohia National Law University, Lucknow.


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