The Juvenile Justice Act- Controversies and International Practice
Introduction:
• The Juvenile Justice Act was preceded by many welfare legislations.
• The first Juvenile legislation was the Apprentice Act 1850 which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help their rehabilitation.
• Then came the Reformatory Schools Act, 1897.
• The Indian Jail Committee (1919-1920) brought to the fore the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively.
• The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union Territories. To remove same inherent lacunae of the above mentioned Act, the Children (Amendment) Act was passed in 1978.
• Finally, the Act of 1986 was passed, further amended in 2000 and 2006.
• The Act of 2000 was passed with the purpose of incorporating into domestic law India’s obligations under international law as:
o a signatory of the U.N. Convention on the Rights of the Child of 1989,
o the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985) (known as the “Beijing Rules”) and
o the U.N. Rules for the Protection of Juveniles Deprived of their Liberty (1990)
• The Act provides for a special approach towards the:
1. prevention and
2. treatment of juvenile delinquency
• The Act provides a framework for the:
3. protection,
4. treatment and
5. rehabilitation of children in the purview of the juvenile justice system
• The Act derives it validity from Art. 15(3), 39(e) & (f), 45 and 47 of the Indian Constitution.
• The original act of 1986 was amended after India ratified the Convention on the Rights of the Child to comply with the obligations under the Convention. Though such a legislation fell in the State List of the Constitution, to bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make law for the whole of India to fulfill international obligations.
• Sec. 2(k) of the Act says that a “juvenile" or "child" means a person who has not completed eighteenth year of age.
• Interestingly, Sec. 2 (h) of the J&K JUVENILE JUSTICE ACT, 1997 says that “Juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.#
• If a juvenile is found guilty under the Act, he/she would be kept in a reformatory school/ borstal jail only for maximum up to 3 years.
Indian Penal Code and JJ Act:
• The Indian Penal Code enacted and codified approximately 150 years before under Section 82 and 83 represents much better classification of children in accordance with their age in respect of the offence committed by them, wherein the child up to the age of 7 years is totally exempted from any criminal liability and in case of children between the age of 7 to 12 years, there is judicial discretion to judge as to the maturity level of the child in respect of the offence committed.
• Sec. 82 IPC: Act of a child under seven years of age.--Nothing is an offence which is done by a child under seven years of age.
• Sec. 83 IPC: Act of a child above seven and under twelve of immature understanding. -- 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.
Controversies:
• All this said, it is now pertinent to mention the controversies surrounding the Act. The pitch grew louder after the Delhi Gang Rape in which the Juvenile was found to be most brutal of all the rapists. The public opinion was that he should be tried along with other accomplices. In the meantime, the Supreme Court issued notice to the Union government on a public interest litigation petition seeking a direction to amend the Juvenile Justice Act. The petition called for amending the Act to insert a provision whereby an exception is mentioned regarding the non-applicability of the Act, qua juvenility, depending upon the facts and circumstances of a particular case, irrespective of the age of the accused i.e. below 18 years.
• The petition was moved on the ground that since in the Act no parameter about the physical or mental maturity of a juvenile was mentioned, it gave licence to “all matured, cruel type of persons under the age of 18 years to live with full impunity and commit any crime of any level and walk scot-free only on the basis of their age being less than 18 years and being covered under the Juvenile Justice (Care & Protection of Children) Act.
• Meanwhile the S.C of India decided to examine the constitutional validity of the JJ Act even when the Attorney General pleaded that the Justice J. S. Verma committee report refrained from lowering the age for making a classification for juvenile.
• Finally, the Supreme Court dismissed a batch of petitions seeking a direction to the Centre to take steps to make changes in the Juvenile Justice (Care and Protection of Children) Act 2000 to ensure that juveniles be tried under normal law in offences like rape and murder. While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of the large body of crime in the country.
• #The clamour for reducing the age of juveniles from 18 to 16 had a set-back for the civil society in Jammu & Kashmir which has been trying hard to convince the state government to increase the age of Juveniles from 16 to18. But once the S.C dismissed the petitions challenging the JJ Act, 2000 and upholding the constitutionality, the civil society in Jammu & Kashmir are again upping the ante against the state law.
International practice and Juvenile Justice:
• Several other countries such as the U.S. and the U.K., which are both signatories to the U.N. Convention, have also faced an increase in violent crimes by juveniles but, unlike India, they have taken action to amend their laws.
• In the U.K., persons under 18 are tried by a “Youth Court” which is a special type of magistrate’s court for those aged 10-18 years. However, for serious crimes like murder or rape, the case starts in Youth Court but is transferred to a Crown Court which is the same as a Sessions Court.
• Therefore, in both the U.S. and the U.K., juveniles who commit violent crimes such as rape are prosecuted in the same manner as adults.
• Even the U.N. Convention and the Beijing Rules do not prohibit subjecting children/juveniles to the regular criminal justice system under certain circumstances. The U.N. Convention does not prohibit prosecuting a child under 18 who has committed an offence under the regular penal laws.
• Unlike the U.N. Convention, the Beijing Rules do not fix 18 as the age of a juvenile. Instead, the Beijing Rules provide for rules applicable to persons between the age of 7 and 18.
• Therefore, India’s international legal obligations do not prohibit it from amending the JJ Act to provide that persons between the age of 16-18 who are accused of rape, kidnapping and abduction of women and girls will be exempted from the jurisdiction of the JJB and tried in the adult criminal justice system.
Conclusion:
• The JJ Act, 2000 is a welfare legislation and as such doesn’t need to be changed into retributive legislation. But, the crime against the women, elderly and children are on rise, more notably by the juveniles, and therefore India must work on two fronts:
a. Set right the structural forms of the correctional homes and impart training to the staff of such homes as per international standards.
b. Amend the law to protect more vulnerable than the juveniles i.e., women, elderly and children from the brutal crimes like rape, murder, sodomy and kidnapping.
Mansoor Ahmad
Introduction:
• The Juvenile Justice Act was preceded by many welfare legislations.
• The first Juvenile legislation was the Apprentice Act 1850 which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help their rehabilitation.
• Then came the Reformatory Schools Act, 1897.
• The Indian Jail Committee (1919-1920) brought to the fore the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively.
• The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union Territories. To remove same inherent lacunae of the above mentioned Act, the Children (Amendment) Act was passed in 1978.
• Finally, the Act of 1986 was passed, further amended in 2000 and 2006.
• The Act of 2000 was passed with the purpose of incorporating into domestic law India’s obligations under international law as:
o a signatory of the U.N. Convention on the Rights of the Child of 1989,
o the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985) (known as the “Beijing Rules”) and
o the U.N. Rules for the Protection of Juveniles Deprived of their Liberty (1990)
• The Act provides for a special approach towards the:
1. prevention and
2. treatment of juvenile delinquency
• The Act provides a framework for the:
3. protection,
4. treatment and
5. rehabilitation of children in the purview of the juvenile justice system
• The Act derives it validity from Art. 15(3), 39(e) & (f), 45 and 47 of the Indian Constitution.
• The original act of 1986 was amended after India ratified the Convention on the Rights of the Child to comply with the obligations under the Convention. Though such a legislation fell in the State List of the Constitution, to bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make law for the whole of India to fulfill international obligations.
• Sec. 2(k) of the Act says that a “juvenile" or "child" means a person who has not completed eighteenth year of age.
• Interestingly, Sec. 2 (h) of the J&K JUVENILE JUSTICE ACT, 1997 says that “Juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.#
• If a juvenile is found guilty under the Act, he/she would be kept in a reformatory school/ borstal jail only for maximum up to 3 years.
Indian Penal Code and JJ Act:
• The Indian Penal Code enacted and codified approximately 150 years before under Section 82 and 83 represents much better classification of children in accordance with their age in respect of the offence committed by them, wherein the child up to the age of 7 years is totally exempted from any criminal liability and in case of children between the age of 7 to 12 years, there is judicial discretion to judge as to the maturity level of the child in respect of the offence committed.
• Sec. 82 IPC: Act of a child under seven years of age.--Nothing is an offence which is done by a child under seven years of age.
• Sec. 83 IPC: Act of a child above seven and under twelve of immature understanding. -- 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.
Controversies:
• All this said, it is now pertinent to mention the controversies surrounding the Act. The pitch grew louder after the Delhi Gang Rape in which the Juvenile was found to be most brutal of all the rapists. The public opinion was that he should be tried along with other accomplices. In the meantime, the Supreme Court issued notice to the Union government on a public interest litigation petition seeking a direction to amend the Juvenile Justice Act. The petition called for amending the Act to insert a provision whereby an exception is mentioned regarding the non-applicability of the Act, qua juvenility, depending upon the facts and circumstances of a particular case, irrespective of the age of the accused i.e. below 18 years.
• The petition was moved on the ground that since in the Act no parameter about the physical or mental maturity of a juvenile was mentioned, it gave licence to “all matured, cruel type of persons under the age of 18 years to live with full impunity and commit any crime of any level and walk scot-free only on the basis of their age being less than 18 years and being covered under the Juvenile Justice (Care & Protection of Children) Act.
• Meanwhile the S.C of India decided to examine the constitutional validity of the JJ Act even when the Attorney General pleaded that the Justice J. S. Verma committee report refrained from lowering the age for making a classification for juvenile.
• Finally, the Supreme Court dismissed a batch of petitions seeking a direction to the Centre to take steps to make changes in the Juvenile Justice (Care and Protection of Children) Act 2000 to ensure that juveniles be tried under normal law in offences like rape and murder. While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of the large body of crime in the country.
• #The clamour for reducing the age of juveniles from 18 to 16 had a set-back for the civil society in Jammu & Kashmir which has been trying hard to convince the state government to increase the age of Juveniles from 16 to18. But once the S.C dismissed the petitions challenging the JJ Act, 2000 and upholding the constitutionality, the civil society in Jammu & Kashmir are again upping the ante against the state law.
International practice and Juvenile Justice:
• Several other countries such as the U.S. and the U.K., which are both signatories to the U.N. Convention, have also faced an increase in violent crimes by juveniles but, unlike India, they have taken action to amend their laws.
• In the U.K., persons under 18 are tried by a “Youth Court” which is a special type of magistrate’s court for those aged 10-18 years. However, for serious crimes like murder or rape, the case starts in Youth Court but is transferred to a Crown Court which is the same as a Sessions Court.
• Therefore, in both the U.S. and the U.K., juveniles who commit violent crimes such as rape are prosecuted in the same manner as adults.
• Even the U.N. Convention and the Beijing Rules do not prohibit subjecting children/juveniles to the regular criminal justice system under certain circumstances. The U.N. Convention does not prohibit prosecuting a child under 18 who has committed an offence under the regular penal laws.
• Unlike the U.N. Convention, the Beijing Rules do not fix 18 as the age of a juvenile. Instead, the Beijing Rules provide for rules applicable to persons between the age of 7 and 18.
• Therefore, India’s international legal obligations do not prohibit it from amending the JJ Act to provide that persons between the age of 16-18 who are accused of rape, kidnapping and abduction of women and girls will be exempted from the jurisdiction of the JJB and tried in the adult criminal justice system.
Conclusion:
• The JJ Act, 2000 is a welfare legislation and as such doesn’t need to be changed into retributive legislation. But, the crime against the women, elderly and children are on rise, more notably by the juveniles, and therefore India must work on two fronts:
a. Set right the structural forms of the correctional homes and impart training to the staff of such homes as per international standards.
b. Amend the law to protect more vulnerable than the juveniles i.e., women, elderly and children from the brutal crimes like rape, murder, sodomy and kidnapping.
Mansoor Ahmad
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