Juvenile delinquency has been a serious issue which is faced by every society at every point of time. This phenomenon is present in almost every class, caste and religion and there can be numerous reasons for the same such as to the nature of the social order the juvenile is born, mode of upbringing the juvenile, the level of tolerance in the juvenile’s family, inter-generational gap, financial background & poverty. The Juvenile Justice System in India has two facets one being definitely providing the juveniles an opportunity to improvise themselves under Rehabilitation Methods but one should not forget the other side of the same. The misuse of the power and the rights under the Juvenile Justice System in India is pretty common.
History of the juvenile justice system
It is important to look into history to trace the development of the Juvenile Justice System in India. According to some scholars, the English Federal Courts of High Chancery could be the beginning. Under the English Law of Equity, the crown had given the responsibility to the High Chancery to serve as parens-patriae to protect the interest of the children who had their property in jeopardy. A few other scholars were of the opinion that this system came from the common law of crimes.
According to the common law, a child under the age of 7 was considered to be incapable of developing the necessary criminal intent and a child between the ages of 7 and 14 was deemed incapable of having the required intent unless it can be proven that he had the maturity level to understand the consequences of his action. Special quasi-judicial tribunals were initiated to deal with children as adult criminal courts were incapable of efficiently dealing with youth offenders.
A doctrine – patria parens patriae – was established in ancient Rome where it role of children within the societies and family units were mentioned. Under this doctrine, a father had complete control over his children and was vested the power of life and death over his children. The State did not interfere in these matters. Children had no rights other than the goodwill of the father. With the passage of time and the development of the empire, it was realized that the doctrine was too harsh and was later softened. Now, the father had rights to own any property possessed by any family member.
It was during the British rule that India developed its Juvenile system and it was the direct consequences of the Western ideas and establishments in the arena of prison reforms and juvenile justice.
Indian conventions and precedents
The true test of “juvenility” is not the age but in the level of mental maturity of the offender. The same contention was put forward in the case of Subramanian Swamy and Ors v. Raju, where Dr Swamy contended that
“having regard to the object behind the enactment, the Children Act, 1960, it has to be read down to understand that the true test of “juvenility” is not in the age but in the level of mental maturity of the offender. The provisions of Sections 82 and 83 of the Indian Penal Code have been placed to contend that while a child below 7 cannot be held to be criminally liable, the criminality of those between 7 and 12 years has to be judged by the level of their mental maturity. The same principle would apply to all children beyond 12 and upto 18 years also, it is contended. This is how the two statutes i.e. Indian Penal Code and the Act has to be harmoniously understood.”
Two significant determinations:
- The lack of understanding and
- To determine the maturity of the child based upon his level of the heinousness of his crime.
In the United States of America, there is a system of ‘Waiver’ where the juvenile is treated as an adult in the cases of heinous offences. The applicability of the same was seen in the case of Reepak Ravindran v. State of U.P, where a 15 years old juvenile committed rape of a 7 years old girl after watching pornography film which shows that he knew all the magnitudes at the time of occurrence of the crime and as the nature of the crime was heinous, the Juvenile Court suggested that the matter should be sent to the Government for deciding the punishment of the juvenile considering him as an adult based upon his maturity and heinous nature of his crime. There are three types of waiver-
- Legislative waiver where the legislature excludes the jurisdiction of the juvenile court to handle offences such as murder, rape and there is no leniency in these cases.
- Judicial waiver where the judge of the Juvenile Court has the discretion to waive the jurisdiction in the case of heinous offences.
- Prosecutorial waiver where some powers are given to prosecutor in the case of heinous offences.
The Supreme Court of India should lay down such guidelines to determine the amenable treatment of a juvenile and should shift its concern from age-wise treatment to mental maturity characteristics. Such factors are already been taken into account on an International legal perspective which can be found in the case of Kent v. United States, where the US Apex Court elaborated some “elements to ascertain compliant treatment of juvenile in juvenile justice system videlicet:
- Seriousness and outcomes of the case;
- Precedent Criminal record of the child;
- Maturity level of the child;
- Background of the Child”
There is a need for the ordinary courts established under the Criminal Procedure Code to have jurisdiction to try offences where juveniles are accused of heinous offences. This issue was faced in the case of Raghubir v. State of Haryana, where the juvenile charged under Section 302 of the IPC was punished according to the Children Act, 1960 laying zero emphasis on provisions relating to the Indian Penal Code.
There is a general worldwide concern over the rising number of crimes committed by juveniles and whether the age limit should be 18 or below that. In the case of Salil Bali v. U.O.I, Mr Bali sought to make a distinctive definition of children with regards to Section 2(k) and 2(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Through this writ petition, there was a request to lower the age of juvenile from 18 (as fixed under JJA,2000) to 16 years in the light of violent crimes committed by them. The Apex Court, however, dismissed the petition on the ground that they didn’t find it necessary to interfere with the provisions of JJA, 2000. Though it ruled that the definition of ‘juvenile’ could be considered differently if sufficient data exists to necessitate the alteration.
International Conventions on Juvenile Justice
Different countries have different juvenile justice systems, it differs from one region to another because of various reasons e.g., the stage of development of understanding, the history and culture of the people living there, their approach to human rights, government’s technical and legal capacity etc…
A number of changes were witnessed in the 19th century US regarding the treatment of Juveniles. In the year 1825, the House of Refuge and in 1855 the Reform School was established in big cities like New York and Chicago for separating juveniles from adult hardened criminals. It was in 1899 in Illinois that the first juvenile court came up in the USA following which most states had developed their own juvenile court system within a span of 25 years.
The age of majority varies in separate States in the US. There is a collective agreement amongst all the states that the juveniles on attaining the age of fourteen will be tried as an adult in the court of law except a few states like Indiana, Vermont, South Dakota which have stricter rules, and where even a 10-year-old can be tried as an adult. With regard to heinous crimes, 12-year-olds can be given life imprisonment.
Juvenile crime had become an issue of great concern in the UK and various legislatures adopted stricter laws to control the same following which Children and Young Persons Act 1993 was implemented. According to Section 16 of the Act, any person under 10 must not be arrested. The difference between right and wrong is presumed to be not known to a person between the age of 10-14 and therefore, incapable of committing a crime due to lack of mens rea.
The concerned constable should arrange for an investigation to take place as quickly as possible as it has been given in the Act that a child may be kept in police custody for only 72 hours. According to Schedule 6, para 19(b) of the Police and Criminal Evidence Act, any juvenile arrested with prior warrant should not be released. Only when no other accommodation is available, shall a juvenile be detained in a police cell or when the custody officer thinks it is impractical of him to supervise the juvenile if not placed in the cell.
The concept of Juvenile Delinquency is not a new concept in India. It is concerned with the criminal behaviour of a child. After the shock waves of the Nirbhaya Case, it is seen that many prudent citizens in India are questioning the legislation governing the Juveniles in India. The Juvenile Justice System in India is no doubt giving the juveniles a chance to mould themselves into a responsible and prudent citizen of the nation.
At times, it is seen that the children below the age of eighteen commit heinous crimes for which they are not tried under the procedure established for the adults. Often they do know about the harsh consequences of their activities and are reluctant to leave the same, that’s where the actual fault in our justice system occurs. There should be amendments made to the legislation governing the juvenile laws to adopt laws and regulations from International forums to deal with such incidents so that no child starts developing mens rea out of the circumstances around him.
About the Authors: Deyashini Mondal and Bandana Saikia [2019-24] are UG Law students at Symbiosis Law School, Pune.