The need for making Juvenile Justice Act more Juvenile friendly
September 23, 2020
Haven’t we all heard of the famous saying that youth of today are the leaders of tomorrow? How is that so? Children are a part of the nation’s valuable resources. The future success of the country depends on how its children learn and succeed in the present day.
India, for the last decade, has seen a massive jump in the incidence of juvenile crime. It is difficult to believe how the rate of juvenile delinquency is rapidly increasing like flu in our society. The word Juvenile has derived from the Latin word ‘Juvenis’ meaning ‘young’. A person who hasn’t achieved 18 years of age is called as ‘Juvenile’ or child. Children are born with innocence, and if not nurtured with enough care and attention, they tend to not grow in a meaningful way. It is their emotional, physical, moral and spiritual growth that allows them to achieve their fullest potential.
We cannot always build the future for our youth, but we can build our youth for the future.
Franklin D. Roosevelt
A child is like an uncut diamond which takes shape once trimmed. And how a child, like an uncut diamond, is shaped depends on society. It is believed that the strictest parents groom the best liars, here referring to children as liars don’t mean them telling lies, it means literally living them, it means living as some other person in your own house. Juvenile delinquency means the transition of an innocent child into a criminal. It is a concept that describes the involvement of a minor in an unlawful act. Delinquency is due to fractured families, adolescent, tagging, gangs, peer pressure, lack of leisure, unfriendly households, etc. It is rightly believed that prevention is better than cure, thus several shelter homes have been opened up by the government of India.
Significant legislation for Criminal Justice
For the care of juveniles in India, a special justice system is established. It is noted that, when minors are subjected under the same judicial process as adult offenders, they may get victimized by the system itself. It is built on the notion of Doli Incapax, meaning a child cannot procure criminal intention. Therefore, it has established a particular justice system, both in terms of its processes and services, such as the way in which juveniles are interviewed by the authorities, the conduct of prosecutors, the view of judges regarding the determination of guilt, the treatment of prison personnel, housing, medical facilities, leisure standards, and the safety goals.
There has always been a steady increase in the issue of effective Juvenile Justice System and juvenile delinquency in India. In the light of the high-profile expectations, the Juvenile Justice Act, 2015 was enacted replacing the previous Juvenile Justice act, 2000. It was after the Nirbhaya rape case, in which one of the convicted was a Juvenile, a few months less than 18 years of age, was sentenced to three years in a reformed house, which was assumed to be insufficient for the crime committed. This made people’s blood boil over the act, and soon debates on lowering the Juvenility age from 18 to 16 were addressed.
In the aftermath of the COVID-19 pandemic, the issue came in light when the Supreme court suo moto acknowledged the conditions of child safety homes throughout the world. Later on, directions were given by the court regarding good practices to be followed by the states in the case titled “In Re Contagion of COVID-19 virus in Children Protection Homes”. This action was taken in the view of a case in Chennai where 35 children had tested positive for coronavirus in a shelter home run by thegovernment.
To prevent the juvenile delinquency and provide proper care and protection to the children the government has adopted Juvenile Justice Act 2015, but due to inherited limitations, less implementation and applicability of some provisions the act is not producing the desired effect that it ideally should. It was then the legislature decided to come up with the Juvenile Justice Act 2015, according to which if any child between the age of 13 to 18 commits any heinous crime, will be tried as an adult.
Can the Act have possibly violated the rights provided by the Constitution of India?
As per the Juvenile Justice Act, 2015, if any child between the age of 13 to 18 commits any heinous crime, will be tried as an adult. Because, it is observed that children between 16 to 18 years of age are as culpable as adults and are competent to stand trial as an adult in normal courts, their rights are said to be violated such as the right to equality under Article 14 and the special protection for children under Article 15 of the Indian Constitution.
children above 16 years of age who are convicted of committing a crime, to
normal courts deprives them of the rights to equality and the right under the
Juvenile Justice system. The ideals of best interest and institutionalisation
to be the final course of action are violated. Are the children between 16 and
18 years competent enough to stand trial as adults?
Putting children in criminal justice as adults pressurise them to make adult decisions for which they are not qualified to understand the risks and consequences. In comparison, minors lack the ability to assist counsel and receive a fair hearing if they want one because of their developmental disabilities. Children’s courts have been designed to prosecute crimes against children, and not to track crimes against children.
Preliminary enquiries by the Juvenile Justice Board violates the constitutional provision on procedural arbitrariness under article 14 and 21. The Juvenile Justice Board must determine whether the child has the mental and technological capability to commit the crime, along with the ‘circumstances in which the felony has been committed’, which means that the child has already committed the offence. Even prior to prima facie establishment of guilt, the Juvenile Justice Board has the power to unilaterally evaluate the guilt.
The mental capacity evaluation is complex and can eventually lead to unreasonable transitions. It is impossible to do so specifically for the Juvenile Justice Board, even with the aid of experienced psychologists. Arbitrariness is permanent in the study of reformation by the Children’s Court and therefore violates the tests of procedural fairness under Article 21.
Violation of the UN Convention on the Rights of Children, 1989
Under Article 40, maintenance of records of a child transferred to jail violates the rights to the protection of privacy at all stages of the proceedings.
Under Article 37, the transfer of children to prison violates the mandatory requirement of separation of children from adults.
To ensure that the child is treated with dignity and also that his reintegration into society is facilitated, trial and sentencing by an adult court offend is the obligation under Article 40.
Under Article 37, determination violates the prohibition on arbitrary deprivation of liberty.
Under Article 43, preliminary enquiries by the Judicial Justice Board violates the presumption of innocence.
Under Article 2, trial and punishment of children between 16 and 18 years as adults violate the prohibition on discrimination.
Under Article 3, the transfer system violates a call principal of the best interest of the child that is to be a primary consideration.
Under Article 6 and 37 institutionalisations violates the basic rights that the deprivation of liberty should only be a measure of final course of action and for the least and appropriate time period.
A rapid increase in the Juvenile delinquency in India
In today’s time, all that kids really need is a little help, hope, and someone to believe in them. The alarming issue of Juvenile delinquency is detrimental to the social stability of the country. Irrespective of its detection or processing, the phenomenon is used as a socio-legal term invented in conjunction with the juvenile court; as a stigma attached to young people at the end of the chain of judgments concerning the police, juvenile court authorities, the media, and as a mode of behaviour that violates legal courts.
It was in the post-Nirbhaya case, where some steps
were taken against rising involvement of Juveniles between the ages of 16 to 18
in serious crime, the Lok Sabha decided to introduce the Juvenile Justice Bill
Contrary to the objective of the Juvenile Justice Act, there has been an increase in crimes done by the juveniles, specially by those who come under the age of 16 to 18 years according to the National Crime Records Bureau data.
Age – Still a Problem?
The manner in which courts deal with juvenile
delinquents also affects the legal definition of a child. Age is definitely one
significant factor here, a minor cannot be tried and convicted in the same
manner as an adult after he has committed the offence, as a juvenile is not
capable of recognizing the repercussions of his acts and is incapable of
understanding the right from the wrong.
The conflict between the age determination of children and statute is a very complex problem. A substantial number of lawsuits are taken before the Supreme Court and the High Court under this legislation and its predecessors pertain to the determination of the age. If the birth certificate of a child is missing, a child may easily be removed from the operation of the Juvenile Justice Act and care and protection can be denied.
Inherent arbitrariness in the evaluation of the legislative process
A person is extremely subjective and vulnerable to
arbitrariness whether or not he has experienced a ‘reformative improvement’ or
‘can be a contributing member of society’, particularly when the quality of
recovery services that the state is supposed to offer is very low. The latest
act in question is targeted at oppressed groups in India.
According to a study, more than half of the children apprehended for crimes come from families with an annual income of less than Rs. 25,000, while just 0.55% of the children apprehended come from the families with an annual income of more than Rs. 300000.
Overview of family problems when assessing culpability
Family plays a significant role in the growth of an adolescent, both positively and negatively. If not provided with a better environment and better emotional support, they start looking for it in the outside world. Kids tend to imitate and thus parents consider addressing each other as ‘mom’ and ‘dad’ instead of calling out each other by their names in front of their names. Imitation plays a very significant role in the process of child development, as it not only provides the child with an initial communication but also helps them to differentiate between others.
Parents tend to monitor their behaviour only during the initial stages of their child’s growth, but what’s important is to monitor it throughout, as the kids will consume only what’s served to them. For example, if a child witnesses domestic violence at his own home, he might find it appropriate, and later imitate it in his own life. A teen’s perception of life can be profoundly affected if he comes from a broken home through abandonment or divorce.
conditions cause juvenile delinquency as the child has missed out on moral
Moral and ethical values are adopted by the parents and the other members of the family. It is obvious that the family plays an important role in shaping a teen’s behaviour and grooming the personality. However, when the children are facing disturbances at home they become violent or show signs of juvenile delinquency.
Children belonging to Poor Economic Status need to be given due attention
The vast majority of those arrested and sentenced
belong to the weaker economic sections of the society. One must keep in mind
that there is no one to have their backs. They lack money, and the law
enforcement agencies are harsher on them.
As a matter of fact, the regulatory process of law enforcement is considered to be very favourable to those of economic comfort. Where two people have committed the same crime at various economic levels, one at a lower level is more likely to be arrested and convicted. It is obvious that the economic conditions are very significant and relevant.
Feelings of inadequacy and mental vulnerability play their part in the inner life of a potential criminal. Poverty induces undernutrition and poor physical fitness, which, in turn, can lead to decreased behavioural resistance to temptation.
Summary of limitations of the Juvenile Justice Act, 2015
The concept of parental responsibility in case of ‘juvenile delinquency’ has not been defined by the Juvenile Justice Act, 2015.
The procedural and substantive guarantees, such as the right to equal treatment, right to a speedy trial, the presumption of innocence is et cetera have not been provided by the Juvenile Justice Act, 2015.
There is no link between the Juvenile Justice Act, 2015 and the other major problems such as child labour, sexual abuse, exploitation, education, adoption, etc.
Social welfare of the juveniles is the major objective of this act. However, it has failed to provide any schemes involving education, legal guidance, healthcare and social assistance in relation to the juvenile offender.
It looks like the act has been bought in the legislature to toe the line and has given a provision to a harsh procedure for a juvenile thus punishing them and satisfying the public demand. The legislature has given up on duty to protect the children. There is no provision for any real social reforms that tackle the core issue of why children commit a crime or why there has been an increase in crime committed by children of the relevant age group, the act just takes an easy way out and makes provisions for stricter penalties.
The children of a country are its supremely
valuable assets and the prosperity of the nation lies in their proper growth.
In order to change teenagers in the fight against the legislation, the system for teenagers should be changed in general. Education, which plays a considerable and remedial role in balancing the socio-economic structure of the country, is the core of human resource development. While growth provides economic benefits to society in general, concrete steps are also needed to ensure that the marginalised and vulnerable sectors of the community, such as Women, Children and the poverty-stricken, sick and elderly, are reached.
Juvenile delinquencies can’t be ceased just through the correct execution and revisions of the Juvenile Justice Act.
services such as Kishori Shakti Yojana and Rajiv Gandhi Scheme for the
Enhancement of Teenage Girls should be supported with more enthusiasm and
commitment by the governing body to inspire young women in their lives and to
develop balanced capacities.
rehabilitation centres should offer support and counselling at a
highly-subsidised rate that would also retain juvenile delinquents who cannot
afford to operate pricey NGO facilities.
Changing views over time has led to the development of an effective juvenile justice system, such that on the one hand there will be less government interference and less institutionalisation, while on the other hand ensuring that the recovery process is strong enough to prevent juveniles from coming back into conflict with the law.
Therefore, there is a strong need for a campaign which can help increase awareness among the workers involved with the Criminal Justice Act 2015, particularly the Special Youth Police Unit. The Government should work towards the implementation of a welfare model for juvenile justice, with a special emphasis on improving the welfare of the child. In the welfare model, the emphasis on juvenile justice is on the perpetrator rather than the crime and on the welfare of the child rather than the penalty or responsibility of the offence.
Another characteristic of juvenile justice systems operating on a rehabilitation model is the high degree of authority granted to judges, probation officers and criminal probation authorities so that they can do what they feel best for the individual juveniles they are associated with.
Children are the country’s potential resource. The Juvenile Justice Scheme is founded on the idea of social security and children’s rights. Reformation and recovery are the main focus of the justice system. It’s about providing an environment for the child to grow his or her personality. After all, the aim is to try to establish an equal culture of a high order. In this phase, we need to develop a strong system and an effective implementation of juvenile justice.
Children who are not born delinquent are being corrupted by a diabolical social system and a non-deterrence statute. A separate judicial process provided for by the Juvenile Justice Act can only be successful from the root if the observatory home is conducted with the greatest care and love, where the greater portion of the reformation of the child is carried out. It is quite clear that the current juvenile act is inequitable in its implementation and is held back by the laws of the 19th century when there is a possibility of leading children as adult offenders.
The provisions of the Criminal Justice Act are not only contentious but also conflict with the very objective of fundamental rights. It is necessary to protect children under 18 years of age from the current situation and to shield them from the normal justice system. Children in dispute with the law need security, education and treatment. Kids are the future of the country; thus, meaningful steps need to be made to strengthen the structure of juvenile justice.
Editor’s Note There was never any doubt that the previous juvenile law enacted in 2000 was not being implemented properly and that there was a need to revisit its provisions. In many ways, the Juvenile Justice (Care and Protection of Children) Bill, 2015, passed by the Lok Sabha, is a forward-looking and comprehensive enactment that provides for dealing with children in conflict with the law and those requiring care and protection. However, its laudable features were overshadowed by the provision that allowed children within the 16-18 age group to be tried as adults if they are accused of committing ‘heinous offences’. This was done to help address the public disquiet over the perception that young offenders are getting away with light punishment after committing crimes such as murder and rape.
However, as it is very much clear from the present article, the new juvenile act is regressive in its approach and pushed backed the reforms to the 19th century as there is a possibility of convicting children as adult criminals. According to the Justice Verma committee, the child responsible for a crime is to be first provided basic rights given under the constitution. The objective of the present article is to focus on how the provisions of the JJ Act are not only controversial but also conflict with the whole objective and principle of fundamental rights.