PREKSHA SAINI1
- ABSTRACT
In India a “Juvenile” is a person who has not completed the age of eighteen years. Since children are considered the greatest asset of any country, it is the responsibility of the state to ensure they should grow as responsible citizens who are mentally alert, physically fit and morally healthy. The most significant legislation in juvenile law is Juvenile Justice (Care and Protection of Children) Amendment Act, 2015 which introduced stricter provisions for juvenile offenders but at the same time provided for establishment of Juvenile Justice Board and Child Welfare Committee. This article aims to explore the development of Juvenile Justice Legislation from the colonial era in British India to its current form in contemporary democratic India.
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KEYWORDS – Juvenile, Delinquency and Minor.
- INTRODUCTION
The Juvenile Justice in India is taken from western countries. It is the most progressive and enlightened system with the objective of ensuring all round growth of children. The future of a country depends upon its young generation, so it is a duty of the government to ensure that they grow in a safe environment. The Juvenile Justice system in India is conferred with the responsibility of ensuring that the juvenile offenders have a chance at ordinary life as a child offender is a product of unfavorable environment. There is a presumption that existed since ancient time that the juvenile offenders shall be dealt with leniency as young folks have a habit of behaving in an aggressive manner due to prolonged frustrations. The juvenile laws are embodied with the motive of correcting as well as reforming the offenders in all ways and not punishing them. The idea behind such reformative laws is that their brain is not fully
1 Preksha Saini, B.A. LL.B.(Hons.), Semester VI, Faculty of Law, BHU, Varanasi; prekshasaini06072003@gmail.com.
developed and they do not have a complete sense of wrong and right. Nations are defining and re-defining their juvenile laws so as to ameliorate their future.
- HISTORY OF JUVENILE LAW IN INDIA
- Pre-Independence- The movement for special treatment of juvenile offenders began around 18th century by developed countries like United States of America & United Kingdom .The first attempt to establish separate court for juvenile delinquents was made by United State of America in 1899 and other nations followed in its footsteps .
In India the special treatment of juveniles could be traced back to the code of Hammurabi 1790 BC. The first legislation dealing with the children in conflict with law in India was the Apprentices Act, 1850. The act allowed courts to treat the petty offences committed by children as apprentices rather than sending them to prison. Another radical legislation during the colonial times in relation to juvenile was Reformatory School Act, 1897. By the provisions of this act children under the age of 15 years who had been sentenced to imprisonment may be sent to reformative homes rather than prison. Since the scope of juvenile laws had started to expand the three presidencies- Madras, Bombay and Bengal- enacted their own juvenile laws. The Indian Jail Committee (1919-1920) emphasized on the need of square trial and lenient treatment of young offenders. This act allowed the provinces to make special legislations for juveniles in their respective jurisdictions. These recommendations prompted the promulgation of Children Act in Madras. The Madras Children Act, 1920, established under it a separate juvenile court and residential institution to ensure that children are not tried in regular courts. The Bengal Children Act, 1922 and Bombay Act, 1924 had different qualifying age for defining a child but they had the same motive of disassociating child offenders from the criminal justice system that an adult would face. Separate residential institutions were established for the children in conflict with law. The Jail Committee passed the Indian Children Act. This act allowed the provinces to make special legislations for juveniles.
- Post-Independence Period- The history of juvenile provisions in independent India goes back to the constitution which incorporated under fundamental rights and directive principles of state policy that the state shall protect and educate them. The Constitution of
India recognizes special status of children through Articles 15(3), 21A, 24, 39(e), 39(f) and 45.2
Until 1960 each state in India had its separate laws for juvenile in which they had different definitions and procedural requirements. In 1960 government enacted the Children Act, which kept the young offenders out of prison and offered welfare, education, mentoring and training to those in need. It also provided for development of observational homes, special education system and so on. Act No. 60 of 1960 “A legislation designed to ensure the well-being, support, education, and rehabilitation of neglected or offending minors, as well as the adjudication process for juvenile offenders within the Union territories.” This act was directly administered by Union government and it applied to every states and union territories.
In3 Sheela Barse Vs Union of India, Supreme Court in its judgment stated that,4 “Even where children are accused of offences, they must not be kept in jails. It is insufficient for the State to argue that the ward in which children are detained within a jail is separate from the area where other prisoners are held. The environment of a jail has a profoundly damaging impact on the mental well-being of a child, alienating them from society and fostering a strong aversion, even bordering on hatred, towards a system that confines them in such conditions. We would therefore like once again to stress upon the State Governments that they must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending investigation and trial. Under no circumstance should children be detained in jails. In cases where a State Government lacks adequate space in remand homes or observation homes, children should be granted bail instead of being incarcerated in jail.” As a result of this judgment Juvenile Justice Act, 1986 was enacted. Following the adoption of the United Nations Minimum Rules for Administration of Juvenile Justice of 1985, the term “minor” used in international law was coined for the first time. The implementation of the Juvenile Justice Act of 1986 brought about significant changes in domestic law, particularly in terms of terminology. As per this act the age to be treated as a juvenile for male was 16 years and that of female was 18 years. The main motive behind this act was to bring the domestic law in conformity with the United Nation standard 1985. This act was
2 The Constitution of India.
3 1986 SCALE(2)230.
4 Ibid.
basically a copy of Children Act 1960 with minor changes here and there, yet there existed loopholes and lacunas which necessitated the formulation and passage of new law.
The most important post-independence juvenile law was the Juvenile Justice Act, 2000. The act provided for a uniform age for both male and female to be treated as a juvenile. Under this act the terms “delinquent” and “neglected” children was redefined as “child in conflict with law” and “child in need of care and protection” respectively. According to the provisions of this act there shall be a juvenile officer in each police station with the adequate training to deal with a juvenile in coordination with the police and creation of Special Juvenile Unit. Sec.4 of this act provides for establishment of Juvenile Justice Board. Board is authorized to allow the juvenile to go home after advice and admonition [Section 15(1)(a)], direct the juvenile to participate in group counseling [Section 15(b)], to perform community service[Section 15(c)], order the parent or the juvenile himself if he is over 14 years of age and earns money, to pay fine[Section 15(d)], direct the juvenile to be released on probation of good conduct and placed under care[Section 15(e)], make an order, directing juvenile to be sent to a special home[Section 15(g)], and having regard to the nature of the offence and circumstances of the case, to reduce the period of stay in a special home[Section 15(1)]5.
There are some areas where the Act is silent, vague and not expressive. In the case ,6Deoki Nandan Dayam Vs. State of Uttar Pradesh the court affirmed that the entry in the school register, which includes the date of birth of the student, is considered admissible evidence for determining the age of the juvenile. In the judgment of landmark case Pratap Singh Vs. State of Jharkhand7, Supreme Court by constitutional bench held that,8 “reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he produced before the authority of the court”. As a result of this judgment Juvenile Justice Act, 2000 was amended in 2006 and again in 2011.
The Juvenile Justice Act (Care and Protection of Children) Amendment Act, 2006 gave hope to those juvenile offenders who were more than 16 years old when the alleged crime was committed and Juvenile Justice Act, 1986 was in operation. When Juvenile Justice Act 2000 was passed it changed the age from 16 years to 18 years. Under Juvenile Justice (Care and
5Available at
:https://indiankanoon.org/doc/1448957/#:~:text=(f)% 20direct%20the%20juvenile%20to,a% 20period%20of% 20 three%20years%3A (Last visited on 28 September 2022)
6 AIR 1959 AII 10.
7 2005 (3) SCC 551.
8 Ibid.
Protection of Children) Amendment Act, 2006 a special explanation was inserted in Sec. 20 to remove this anomaly.
The Juvenile Justice (Care and Protection of Children) Act 2015 was passed after much controversy and protest. It replaced the Juvenile Justice Act, 2000. The Act states that juvenile between the age group 16 to 18 years shall be tried and treated as adult in case of heinous crimes but in juvenile courts. It clearly defined the heinous, petty and serious crimes. The Juvenile Justice Board and Child Welfare Committee are granted more powers and functions. The provisions of this Act are more retributive than reforming, making the juvenile justice system much more responsive in accordance with the changing circumstances of society.
The Nirbhaya gang rape (Mukesh & Anr vs State For Nct Of Delhi)9 incident that took place in Delhi brought the focus on the existing lacuna in the present juvenile system. One of the accused in this case was a minor who was to turn 18 within six months, was given just three year sentence by Juvenile Justice Board. This sparked nationwide protest due to which stricter provisions by the way of Juvenile Justice (Care and protection of child) Act, 2015 were incorporated. Within the act the Juvenile Justice Board comprising a metropolitan magistrate or a judicial magistrate and two social workers, was conferred with the discretionary power to decide whether the accused shall be tried as an adult or as a juvenile.
In order to give effect to India”s international obligations arising from three international conventions to which India is a signatory namely, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), UN Convention on the Rights of Child (CRC) & United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules, 1990), new Act has been enacted such as Protection Of Children from Sexual Offences Act (POCSO), Child Labor(Protection and Regulation) Act, the POCSO Amendment Act 2019, National Child Labor Scheme and National Commission for Protection of Child Rights.
- CONCLUSION
In traditional law, the juvenile offenders were punished in strict and harsh manner. The practice of sentencing them with adult criminals further deteriorated the situation and lead to disintegration of the society. Step by step development of Juvenile Justice System in India since pre-independence period highlights the fact that government recognized its duty and acknowledged that children require special care and protection. However, it is wrong to turn a blind eye towards heinous and serious crimes committed by juvenile under age group 16-18 years as they are mature enough to understand the consequences of their actions. Lenient juvenile laws till 2015 gave a free pass to juvenile offenders which meant huge miscarriage of justice to the victims.
Following the Mukesh v. State (NCT of Delhi)20 famously known as Nirbhaya Case, came juvenile Justice (Care and Protection of Children) Act, 2015 revolutionized the Juvenile Justice System in India by introducing stricter laws in relation to serious and heinous crimes committed by juveniles. Juvenile Justice Board and Child Welfare Commission deals with reformation of juvenile offenders. These bodies protect the rights of children, provide them with opportunities to grow and ensure that they mature in safe environment.
20 Supra note 9.
