The Need to make Juvenile Justice Act more Juvenile Friendly – Identifying the Areas of Concern (Part-I)

Introduction

Children form the nation’s precious human resource. The future accomplishment of the nation depends on how its children perform and execute in present. The great poet Milton said,

“Youth Shows the man as morning presentations the day”.

The issue of effective Juvenile Justice System and juvenile delinquency is persistently at the rise in India. In light of aloft voiced aspirations, the Juvenile Justice (Care and Protection of Children) Act 2015[1] was enacted replacing the previous Juvenile Justice (Care and Protection of Children) Act, 2000.

Recently the issue again came in light when the Supreme Court suo moto took cognizance of conditions of children protection homes across the country in the wake of the COVID-19 pandemic. Later on, Court gave directions regarding good practices to be followed by the states in the case titled “In Re Contagion of COVID-19 Virus in Children Protection Homes”.[2] This was done in view of the case in Chennai wherein 35 children had tested positive for Coronavirus in a government-run shelter home.[3]

Although Government has adopted Juvenile Justice (Care and Protection of Children) Act, 2015, to prevent the juvenile delinquency and provide proper care and protection to the children, due to inherent limitations, lack of implementation and applicability of some provisions the act is not producing the desired effects that it ought to be.

So the author by way of this Bipartite Article Series aims to highlight the key areas where immediate intervention and changes by the government is required. The first part identifies those key areas.

Violation of the Indian Constitution

1. The assumption that children between 16 and 18 years are culpable as adults and are competent to stand trial as an adult[4] in normal courts violates the right to equality under Article 14 and the special protection for children under Article 15(3).

Transfer of children above 16 years of age alleged to have committed a heinous offence to normal courts deprives them of the right to equality and rights under the JJ system. It violates the principles of best interest and institutionalization to be the last resort. Are those between 16 and 18 years competent to stand trial as adults?

Placing juveniles into an adult criminal justice system requires them to make adult decisions for which they are not equipped to understand the risks and consequences. In addition, because of their cognitive deficits juveniles have a reduced ability to assist counsel and receive a fair trial if they choose one. Children’s Courts were designated to try offences against children. They were not designed to try offences by children.

2. Preliminary inquiry by the JJB[5] violates the constitutional prohibition on procedural arbitrariness under Article 14 and 21.

JJB has to assess whether a child has the physical and mental capability to commit the offence along with the ‘circumstances in which he has committed the offence’ which implies an assumption that the child has already committed the alleged offence. JJB has power to arbitrarily inquire into the culpability even prior to prima facie establishment of guilt. Assessment of ‘mental capacity’ is highly complex and will inevitably lead to arbitrary transfers. It cannot be done accurately by the JJB even with the help of experienced psychologists.

3. Arbitrariness is inherent in the assessment of reformation by the Children’s Court and therefore violates the test of procedural fairness under Article 21.

Violation of the UN Convention on the Rights of the Child, 1989 [6]

  1. Trial and punishment of children between 16 and 18 years as adults violates the prohibition on discrimination under Article 2.
  2. The transfer system violates the core principle of the best interest of the child that is to be a primary consideration (Article 3).
  3. Institutionalization under the act violates the basic right that deprivation of liberty should only be a measure of last resort and for the shortest and appropriate period of time (Articles 6 & 37(b)).
  4. Preliminary inquiry by the JJB violates the presumption of innocence under Article 40(2)(b)(i) and determination violate the prohibition on arbitrary deprivation of liberty under Article 37(b).
  5. Trial and sentencing by an adult court offends the obligation under Article 40(1) to ensure that the child is treated with dignity and also that his or her reintegration into society is facilitated.
  6. Transfer of children to prison violate the mandatory requirement of separation of children from adults under Article 37(c).
  7. Maintenance of records of a child transferred to jail violates the right to the protection of privacy at all stages of the proceedings under Article 40 2) (vii).

False Implications

A significant number of cases of rape and kidnapping include ‘love’ cases and consensual elopement. A recent analysis by The Hindu of 600 cases of sexual assault before the Delhi District Courts revealed that “of the cases fully tried”, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Because of this children are seen as offenders under the POCSO Act.

Increasing Juvenile Delinquency in India

“All kids need is a little help, a little hope and somebody who believes in them.”

Juvenile delinquency is a serious problem and it is detrimental for the social order of the nation. This problem is viewed as a socio-legal category invented in conjunction with the juvenile court; as a label applied to youth at the end of a chain of decisions involving the police, public and juvenile court officials and as a form of behaviour that violates legal codes, regardless of its detection or processing.

The Juvenile Justice Bill was introduced in the Lok Sabha in 2014 after it was felt in the post- Nirbhaya case that some action has to be taken against the increasing involvement of juveniles in the age of 16-18 years in serious/heinous offences. But contrary to the objective of JJ Act, The National Crime Records Bureau (NCRB) data shows that there has been an increase in crimes done by the juveniles, especially by those who comes under the age of 16-18 years.

Landmark Judicial Dictums but Lack of Implementation

Although the decisions discussed under this head doesn’t belong to the Juvenile Justice Act specifically but their non-implementation increases the chances of children coming in conflict with the law. So, these decisions don’t form facts in issue but they are definitely relevant fact.

The Supreme Court in its decision in M.C. Mehta v. State of Tamil Nadu[7] dealt with child labour working in Match Industries at Sivakasi (Tamil Nadu) and directed that children should not be employed in hazardous jobs in factories for the manufacture of matchboxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.

But the enormity of the problem can be understood by the fact that according to the International Labour Organization Survey there are about 215 million child workers aged between 5 and 14 in the world. We make the largest share and our children are working in the zari industry, silk industry, carpet weaving, lock making, metal industry, fast food industries etc. and that too when we have the right to education up to the age of 14 as a fundamental right.

In Gaurav Jain v Union of India[8], the Supreme Court held that the children of the prostitutes also have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them.

In Sheela Barse v. Union of India[9], the court directed the state governments to take steps for completing the investigation within three months in cases lodged against children. Further, it directed the establishment of an adequate number of courts to expedite the trial of children detained in various jails.

As guardian of the Constitution, the Hon’ble Supreme Court of India has made a remarkable contribution towards the protection of children. The role of the Indian Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory interpretation.

The activism of the Indian Supreme Court to protect the children from various type of exploitation is commendable. Although the Supreme Court made laudable directions and suggestions in many instances to protect the basic rights of poor children, unfortunately, these directions and suggestions are not followed and implemented by the government machinery effectively. In this regard, the performance of the Indian Judiciary stands out as a signal contribution to the implementation of human rights generally and that of Child Rights in particular.

Age Determination- Still a Complex Problem

The legal definition of a child also affects how the courts deal with offenders. The age is very significant here, as a person who is a minor or a child cannot be tried and convicted in the same manner as an adult at the time of the commission of the offence, as the child is not capable of understanding the consequences of his/her actions and had no mens rea and considered doli incapax — that is, not capable of understanding the right from the wrong.

Age determination of the children in conflict with the law is a very complex issue. The largest number of cases that come before the High Courts and the Supreme Court under this legislation and its predecessors pertain to the determination of age. In the absence of a birth certificate, a child may easily be excluded from the operation of the JJ Act and denied its care and protection.

Inherent Arbitrariness in Assessment of Reformation Process

Whether or not a person has “undergone reformative changes” or “can be a contributing member of the society” is highly subjective and prone to arbitrariness, particularly when the quality of rehabilitative services that the State is duty-bound to provide under is highly miserable. The new Act in question is inevitably resulting in targeting of marginalized communities in India.

Data already shows that more than half the children apprehended for offences come from families with an annual income of less than Rs. 25,000 while only 0.55% of the children apprehended come from families with an annual income of more than Rs. 3,00,000. There are no doubts that the provisions of the current act result in class, caste and religion-based targeting of children under the garb of assessing their potential contribution to society and extent of reformation.

Overlooking Family Issues while determining culpability

Family plays a huge part in the development of an adolescent both positively and negatively. Adolescents learn what is and what is not acceptable by the surrounding environment. For example, if a father disrespects and hits mother, then a son might consider this as acceptable and copy it later in his own life.

Coming from a broken home through abandonment or divorce can profoundly affect a teen’s perception of life. Sometimes in these situations, a teen can be neglected, punished too harshly or not regularly disciplined. Any of these conditions can cause juvenile delinquency as the teen has missed out completely on moral development.[10]

A teen adopts moral and ethical values from his parents and other family members. It goes without saying that family plays a vital role in shaping a teen’s behaviour and grooming his/her personality. However, teens become violent or show signs of juvenile delinquency only when they’re facing disturbance at home. [11]

Not recognizing and giving due concern to Poverty

The vast majority of those arrested and convicted belong to poor economic status. We must bear in mind that they have no one to come between them, the police and the courts when the law is broken. They lack resources and the police, as well as other law enforcing authorities, are harsher to them.

In actual terms the administrative process of law enforcement is seen to be quite favourable to the persons in economic comfort. If two persons on different economic levels have committed the same offence, the one on the lower level is more likely to be arrested and convicted. It has to be accepted that the economic factors are quite important and relevant.

Poverty can instigate antisocial activities in many indirect ways. Unsatisfactory human relations have been frequently seen to emanate from destitution and poverty. The feelings of inadequacy and emotional insecurity play their part upon the inner life of a potential offender. Poverty does cause undernourishment and poor physical health which, in turn, may lead to a lowered mental resistance to temptation.[12]

Conclusion of First Part

As it is very much clear that 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 Justice Verma committee, the child responsible for a crime is to be first provided basic rights given under the constitution. The provisions of the JJ Act are not only controversial but also conflict with the whole objective and principle of fundamental rights.

The second part will try to put forward some suggestions to deal with the limitations of the act.

[1] http://legislative.gov.in/actsofparliamentfromtheyear/juvenile-justice-care-and-protection-children-act-2015

[2] https://www.livelaw.in/top-stories/suo-motu-matter-on-conditions-in-children-homes-sc-directs-centre-to-submit-note-on-funding-and-audits-160226

[3] https://www.livelaw.in/top-stories/consider-releasing-children-from-observation-homes-on-interim-bail-amid-covid-19-sc-154751

[4] Section 18(3) of JJ Act, 2015.

[5] Section 15 of JJ Act, 2015.

[6] https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

[7] (1991) 1 SCC 283.

[8] (1997) 8 SCC 114; AIR 1997 SC 3021.

[9] 1986 (3) SCC 632.

[10] https://www.enkivillage.org/causes-of-juvenile-delinquency.htm.

[11] (Prakash Haveripet, 2013).

[12] Children in India-2012, A Statistical Appraisal, Ministry of Statistics and Programme Implementation, New Delhi, 2012.


ABOUT THE AUTHOR

Harshit Sharma

Harshit

Harshit Sharma has done his B.A., LL.B (Criminal Law Hons.), from National Law University, Jodhpur (2019) and he completed his Masters in Criminal Law in July 2020. He secured AIR-15 in CLAT PG (2019) and he has Qualified NTA NET (December 2019). Currently, he is preparing for his Delhi Judicial Services 2019 Interview and simultaneously working for his PhD enrolment. He can be reached at harshitsharmanluj@gmail.com.

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