CRIMINALS OR VICTIMS? THE UNRESOLVED STRUGGLES OF JUVENILE JUSTICE IN INDIA BY - AYUSHI SINGH & RIDDHI SOLANKI
CRIMINALS OR VICTIMS? THE UNRESOLVED STRUGGLES OF
JUVENILE JUSTICE IN INDIA
AUTHORED BY – AYUSHI SINGH
& RIDDHI SOLANKI
INTRODUCTION
The concept of child-centric
justice in India has undergone a significant evolution, tracing its roots from
ancient leal traditions to contemporary practices. This research project aims
to explore the historical trajectory and current state of child-centric justice
approaches in India, examining how societal, cultural and legal paradigms have
shaped the treatment of children within the justice system.
The post-independence
period saw a gradual shift towards a child-centric approach in the judicial
system, culminating in the Juvenile Justice Act, 1986 and its subsequent
amendments. These legislative changes reflected India’s commitment to
international standards, particularly the United Nations Convention on the
Rights of the Child (UNCRC), 1992. Contemporary child-centric justice faces
numerous challenges, including debates over the age of criminal responsibility,
the treatment of juveniles/delinquents in conflict with law, and the balance
between rehabilitation and punitive measures.
Delinquency is a deviation
from the course of usual social life. Juvenile delinquency refers to illegal or
criminal behaviour committed by minors (under the age of 18 years), which may
prove to be hazardous and detrimental to the society. To curb the acts of
crime, that are committed under the protection and umbrella of being a minor,
each nation has its own legislation which covers the definition of ‘juvenile’
and ‘acts of juvenile’ and subsequently provides for punishment for the same.
The Office of Juvenile
Justice and Delinquency Prevention (OJJDP),[1]
a component of the U.S Department of Justice, defines Juvenile Delinquency as “the
illegal behaviour of a child or youth under the statutory age of majority”.
According to Black Law’s
Dictionary,[2]
juvenile delinquency is an “anti-social or criminal behaviour by juveniles” and
“violation of the criminal code and/or pursuit of certain behaviours, such as
underage drinking, by juveniles”.
The National Crime Records
Bureau (NCRB),[3] uses
the term “juvenile in conflict with law” to refer to youth involved in
delinquent behaviours.
Ministry of Women and
Child Development, defines juvenile delinquency in line with the Juvenile
Justice Act, focusing on children in conflict with the law and the need for
their protection and rehabilitation.
In India, the prevention
of juvenile delinquency is a vital part of the overall crime prevention in
society. The juvenile system however echoes a likeness for social rather than
judicial approaches for juveniles. The prevention of crime requires individual,
group and organizational efforts aimed to curb minors from exhibiting criminal
behaviour. One approach used to prevent youth crime focuses on using the treat
of harsh punishment as a deterrent, this method focuses on communicating the
severe consequences they might face if they break the law.
This research project will
delve into the historical, legal, and sociocultural aspects of child-centric
justice in India, analysing its evolution from ancient roots to current practices.
By examining this trajectory, we aim to provide insights into the challenges
and opportunities for further developing a more effective and compassionate
juvenile justice system in India.
1. Historical Background of Juvenile Justice in India
1.1
Early Approaches to Juvenile Justice
A. Pre-independence treatment
of juvenile offenders.
The juvenile justice
system in India has experienced significant transformations, highlighting an
increasing recognition of the distinct needs and vulnerabilities of children involved
with the law. Historically, there was no recognition of separate legal system
for juveniles during the British colonial influence. However, in 1908 the
establishment of first juvenile court in Bombay marked the onset of a more
progressive and enlightened approach, which emphasized rehabilitation over
punishment.
The concept of
differentiated treatment for children dates back to the Code of Hammurabi in
1790 BC, which assigned the responsibility for their care and supervision to
their families. The period between 1850 and 1919 was characterized by
significant social and industrial changes which paved the way for important
legislative advancements.
In addition to this, the Reformatory School Acts of 1876 and 1897 enabled courts to detain juvenile delinquents
in reform schools for a period ranging from two to seven years. Also, it was
ensured that they received appropriate treatment until they reach the age of
majority. Furthermore, The Criminal Procedure Act of 1898[4]
acknowledged the need for a specialized approach to deal or handle minor
offenders. It allowed probation up to the age of twenty-one years to those who
demonstrated good behaviour.
In 1919 – 1920, the Indian
Jail Committee drafted the Indian Children Act, which empowered provincial
governments to enact their own legislation for juveniles. By the early 1920s,
provinces such as Madras, Bombay and Bengal had implemented their own Children
Acts, thereby establishing a dedicated and specialized juvenile justice system.
It sets the foundation for more child- focused approaches in the future.
B. Post-Independence Era
Between 1948 to 1959,
there were only some minor amendments in Children’s Act but a significant shift
occurred in 1960. It is to be noted that various therapeutic recommendations
were adopted at the second United Nations Congress on the Prevention of Crime
and Treatment of Offenders held in London which led to the enactment of the
Children Act 1960, by the Union Government. It is aimed to ensure the
protection and care of children in Union Territories.
Although state-specific
children’s acts which were implemented post-independence to address issues
related to delinquent youth, these laws often lacked minimum standards for
basic living conditions, needs and standard care. Acknowledging this gap
highlighted the necessity for uniform legislation to tackle these shortcomings,
leading to the eventual enactment of the Juvenile Justice Act of 1986.
The Juvenile justice Act
1986[5]
was enacted to provide for care, protection, treatment, development and
rehabilitation of delinquent or delinquent juveniles. In India, the juvenile
justice policy is largely based on Part- III (Fundamental Rights) and Part IV
(Directive Principles of State Policy) of the Indian Constitution. Furthermore,
this policy incorporates several international covenants, including the UN
Convention on the Rights of the Child (CRC) and the UN Standard Minimum Rules
for Administration of Juvenile Justice, commonly known as Beijing Rules.
After independence, the
provisions of the Constitution incorporated for the protection and development
of children through its fundamental rights as well as directive principles. The
Children Act of 1960,[6]
prohibited the imprisonment of children under any circumstances and mandated
their care, welfare, education, maintenance, protection and rehabilitation.
This Act was specifically applicable to Union Territories and established three
essential institutions: a facility for observation during court proceedings, a
home for neglected children and a special school for youth offenders.
In order to maintain
consistency with The Children Act and align with the United Nations Declaration
of the Rights of the Child 1959, the Juvenile Justice Act of 1986 was enacted.
Eventually, the government progressed and led to the enactment of The Juvenile
Justice Act of 2000.
2.
The
Juvenile Justice Act: Key Milestones
The evolution of juvenile
justice from early acts to the current system reflects a growing understanding
of child psychology, child rights, and the societal factors that contribute to
juvenile delinquency. It reflects a shift from a punitive, one-size-fits-all
approach to a more refined, rights-based and rehabilitative system. In the
current scenario, the complexity of factors influencing juvenile behaviour are
aimed to be addressed through balancing the needs of the child with the safety
of the society.
2.1 Early Juvenile
System (Late 19th to Mid-20th Century)
Ø Apprentices Act, 1850: In British India, the
first piece of legislation that aimed to sort and address children in conflict
with the law was the Apprentices Act, 1850.[7]
It provided for binding over of children under the age of 15 years found to
have committed petty offences as apprentices to master craftsmen or
tradespeople. Instead of punishment, it proposed a rehabilitative method
through apprenticeship.
Ø Reformatory Schools Act,
1897:
Consequently, the Reformatory Schools Act, 1897,[8]
was built upon the principles introduced in the Apprentices Act. It provided
that children up to the age of 15 years sentenced to imprisonment may be sent
to reformatory cell. Under this act, the children could be detained for 3 to 7
years, but not beyond the age of 18 years. It was primarily meant to provide
basic education and vocational training.
Ø Children Act, 1960: It attempted to provide
for the care, protection, maintenance, welfare, training, education and
rehabilitation of neglected or delinquent children and for the trial of
delinquent children in the Union territories.[9]
2.2 Mid-Stage Evolution (Late
20th Century)
Juvenile Justice Act, 1986
The Juvenile Justice Act,
1986,[10] a
uniform legislation in the country was enacted by the Parliament in order to
provide care, protection, treatment, development, and rehabilitation of
neglected or delinquent juveniles and for the adjudication of certain matters
relating to, and disposition of, delinquent juveniles as a uniform system of
juvenile justice mechanism throughout the country. It also included universally
agreed principes and standards for the protection of the juveniles such as the
United Nations Standard Minimum Rules for the Administration of the Juveniles
Justice, 1985 (commonly known as “Beijing Rules”).
Section 2(a) of the
Juvenile Justice Act, 1986,[11]
defined the term juvenile as a “boy who has not attained the age of 16 years
and a girl who has not attained the age of 18 years”.
Section 52, 53 and 54 of
Juvenile Justice Act, 1986,[12]
also provided for the establishment of social welfare and juvenile
rehabilitation funds, the establishment of advisory councils and the
appointment of visitors to juvenile institutions.
In compliance with the
Convention on the Rights of the Child (CRC) embraced by the General Assembly of
United Nation, the Juvenile Justice Act, 1986, was repealed in India and to
bring the uniformity to the definition of a ‘Juvenile’.
2.3 Contemporary Time
Evolution (Early 21st Century)
2.3.1 The Juvenile Justice (Care and Protection of Children)
Act, 2000,[13]
It was enacted in
accordance with International Convention on Rights of the Child and with the
aim to “consolidate and amend the law
relating to juveniles in conflict with law and children in need of care and
protection, by providing for proper care, protection and treatment by catering
to their development needs, and by adopting a child-friendly approach in the
adjudication and disposition of matters in the best interest of children and
for their ultimate rehabilitation through various institutions established
under the enactment”.
A.
Title of the Act
The title of the act
stresses on the need for care and protection to both categories of children.
Among the major changes brought by the act, the first and foremost is in the
definition of ‘Juvenile’, which provides that Juvenile means a person who has not
completed eighteenth year of age. Among the cosmetic changes the terminologies
“Juvenile Delinquency” and “Neglected child” has been substituted by “Child in
conflict with law” and “Child in need of care and protection” respectively.[14]
B.
Maturity level of the juveniles
An issue which needed
special attention is parallel culpability of the children (between the ages 16
to 21 years) with that adult. The Juvenile Justice Act, 2000, reverse the
well-founded principle of juvenile justice by allowing the Juvenile Justice
Board under the act to waive off the right of children above the age of 16
years who have committed a heinous offence into the criminal justice system.
This means that children between the ages of sixteen and eighteen involved in
heinous crimes are to be tried as adults and would receive the maximum
punishment
In Prabhakaran v. State of
Tamil Nadu, 1987,[15] the
Madras High Court observed that the rights of a child are an integral part of
human rights, but it is less focused upon by the protagonists of human rights.
It stated further that if the Board is satisfied that a juvenile has committed
an offence it would allow the juvenile offender to go home with an advice or
admonition or direct him for group counselling, community services etc; direct
him to be released on probation as also order such directives as it may think
fit. Thus, the main intention of the law makers is the welfare of the juvenile
offender.
C.
Applicability of the Act
In a Supreme Court case of
Jameel v. The State of Maharashtra,[16]
the applicability of Juvenile Justice Act, 2000,[17]
was addressed. When the matter was of unethical sexual intercourse at the age
of 16 in 1989, the SC interpreted the intent of the legislature and held that
the law (Juvenile Justice Act, 1986) in force at that time of the offense would
determine the juvenile status. A later legislation (here, the Juvenile Justice,
2000) cannot be applied retroactively to change the status of an accused from
adult to juvenile if they were considered to be an adult under the law
applicable when the offense was committed.
D.
Constitution and the Juvenile system
In R.K Tarun v. Union
of India& Ors.,[18] the
court held that section 15 and 16 of the Juvenile Justice (Care and Protection
of Children) Act, 2000, violated the rights guaranteed to a citizen under
Article 21[19] of
the constitution. In another case Pratap Singh v. State of Jharkhand,[20] it
was observed by the court that while defining juvenile criminality or criminal
responsibility, the moral and psychological components must be given prime
importance. The Juvenile Justice Act, 2000, violated the Article 14 of the
Indian constitution that guarantees equality before law. It treated all the
juvenile offenders under one criterion, regardless of the severity of their
crime. This blanket approach failed to depict the true intent of the
legislature as it didn’t distinguish between minor offenses and serious crimes.
Juvenile Justice Act,
2000,[21]
violated Article 15(3)[22]
which guarantees special provisions for women and children. It treated all the
under 18 offenders under the same category, thereby failing to make adequate
provisions for younger children. Also, the act’s focus on rehabilitation rather
than punishment could be seen as inconsistent with the constitutional
protections against self-incrimination or double jeopardy guaranteed by Article
20.
E.
Key Challenges in Implementing the Juvenile Justice Act of
2000
Although the Juvenile
Justice Act, 2000,[23] was
adopted in accordance with the International Convention of Rights of the Child,
it faced severe criticism due to shortcomings in its interpretation, meaning
and true intent of the legislature. The act imposed a rigid sentencing
structure regardless of the offense’s nature or severity, failing to
distinguish between minor infractions and serious crimes. Furthermore, the Act
rehabilitation framework was questioned for its arbitrary three-year maximum
timeframe, which disregarded the individual time framework of the offenders.
The critics of the act also pointed out that the legislation failed to consider
the varying levels of cognitive development and maturity among juveniles,
instead solely relying on maturity as a determining factor. These issues collectively
were responsible for the shortcomings of the Act in addressing the complex
system of juvenile delinquency.
2.3.2 Juvenile Justice (Care & Protection of Children)
Act, 2015
In the backdrop of the
2012 Nirbhaya Rape Case, in which a juvenile accused received a lighter
punishment because of his age, it was realised that there were several
loopholes in the JJ Act 2000,[24] and
it was flawed with implementation issues. The case raised critical questions
about the accountability and punishment of juvenile offenders involved in
heinous crimes, sparking a revaluation of existing laws. In response to the
public outcry and concerns arising from the Nirbhaya case, the Juvenile Justice
(Care and Protection of Children) Amendment Act, 2015 was enacted.[25]
Accordingly, it was laid down under the bill of 2015 that the Juvenile Justice
Board will decide whether a juvenile between the age group of 16 to 18 years
should be treated as an adult. The juveniles who commit heinous crimes such as
murder and rape should be treated as adults.
Fig No. Juvenile Delinquency in India (2008-2013)
Fig No. Rate of Crimes
under cases of juvenile in conflict with law
A.
Analysis of Notable Amendments
To address the
complexities of juvenile justice and child protection in India, the Juvenile
Justice (Care & Protection of Children) Act, 2015,[26]
introduced comprehensive changes. It extended the preliminary assessment period
for juveniles to three months, clarifying that this assessment evaluates the
child’s capacity rather than serving as a trial. It emphasizes fair trials in
child-friendly atmospheres, protects against disqualifications from
convictions, and mandates the destruction of most conviction records after the
appeal period. It also mandated training for NCPCR and SCPCR as nodal
authorities for implementation. The amendment aimed to balance rehabilitation
with accountability, addressing juvenile justice issues more comprehensively.
B.
Stringent Aspects of the Act
The act can be a worrisome
piece of legislation on some aspects, one of them being the fact that more
juveniles will be incarcerated, as it is seen that the Act promotes the
adoption of a retributive and punitive stance against them. Further, also the
Act recommends to adopt Judicial weaver to try juvenile for heinous crimes.
Under the new act, juveniles alleged to have committed a heinous crime will be
confined to a “place of safety”, which is essentially a place of imprisonment,
both during the period of inquiry and after the conviction. This concept is
nothing but a gross violation of international norms of human rights, as
juveniles who were incarcerated would higher rates of recidivism and poorer
educational attainments than juveniles who were not detained in correctional
institutions The Act has further violated the fundamental rights guaranteed
under Article 14[27] and
Article 15(3)[28] of
the Constitution, as out of 472 million children of the country, only 1.2% have
committed crimes. And that, of these, only 2.17% had committed murder and 3.5%
had committed rape. Since the act has come into force, it has evidently
jeopardised the other 99.98% children in this country.
A study stated that
although the proposed policy under the Act of 2015 was contrary to the
established principles of juvenile justice, the solution wasn’t reversion to
the position under the act of 2000 with focus on its implementation. They hold
that the Act of 2000 didn’t take into account that heinous offences should
carry with them a higher punishment than just three years, which falls short of
guaranteeing effective rehabilitation, After an analysis of the Acts, they
concluded that the Act of 2000 was more offender centric and didn’t acknowledge
the plight of victims, They suggest that while retaining the emphasis on
rehabilitation , principles of restorative justice ought to be annexed as the
mandatory second limb for the formulation of a comprehensive juvenile justice policy in India.[29]
3.
CONTEMPORARY CHALLENGES IN THE
JUVENILE
JUSTICE
SYSTEM
3.1 Age
Determination and Debate over “Children as adults”:
The 2015 Act,
distinguished between minor, serious and heinous offenses and proposed that
juvenile offenders between the ages of sixteen and eighteen who commit ‘heinous
offences’ be tried as adults in the criminal justice system. The newly amended
act itself states that no juvenile offender who comes under the meaning of the
word child with conflict with law as mentioned in sub – section 13 of Section 2
of the Act shall not be tried as adult and shall sent to Child Care Centre or
any Rehabilitation Centre (till the offender attain the age of 21 years and
then he or she may shift to the jail or prison). Hence it is to concluded that
the current Juvenile laws in India, considers age determination as main thing
to decide as whether the offender falls under the purview of Juvenile Justice
Act or not.[30] The
Act empowered the Juvenile Justice Board (‘JJB’) to determine the level of
maturity of the juvenile over sixteen years of age, and accordingly transfer
the juvenile to adult courts.
Fig No. Age Wise Distribution of Juvenile Delinquents
2005-2015
Source – Author’s
interpretation of the NCRB data
The Madhya Pradesh High
Court in a recent case of Budhiya v. The State of Madhya Pradesh, 2021,[31]
denied bail to a 15-year-old juvenile who raped a minor girl. The Bench stated
that because the age of a child in heinous crimes is still preserved below 16
years, it provides protection to delinquent under the age of 16 years to commit
heinous offences.
3.2 Legal and Ethical
Implications of Lowering the Age for adult trials
The juvenile justice
system is centred around the rehabilitation of young offenders, recognizing
that children, due to their psychological immaturity are more amenable to
reform. By lowering the age for adult trials, the focus shifts from rehabilitation
to punishment, reflecting a more retributive justice model.
The Act also conflicts the
United Nations Convention on the Rights of the Child (UNCRC), which defined a
child as any individual below the age of 18 years and advocates for the use of
rehabilitation rather than punitive measures. This legal shift also undermines
the Beijing Rules (1985), which recommended that young offenders should only be
subject to measures that foster their rehabilitation.
Juveniles tried and
sentenced as adults are often placed in adult correctional facilities where
they are exposed to hardened criminals and stringent environments. Although the
specific environmental conditions within youth detention facilities vary
widely, all detained youth are removed from the typical social context and
placed in an atypical social context during a time of extensive social
development.[32]
This can lead to greater recidivism, as juveniles are more likely to get
influenced negatively rather than reformation. Youth detained in adult facilities
are vulnerable to exploitation by older inmates.[33]
In this sense, incarceration may stall adolescents' psychosocial development by
reducing opportunities for normative social experiences, disrupting contact
with key social others (e.g., parents, friends, teachers, mentors) and
increasing contact with antisocial others (i.e., fellow inmates).[34]
Because delinquent behaviour results from a dynamic interaction between
developmental immaturity and bonding to antisocial socializing units, this may
increase the likelihood of future delinquent behaviour.[35]
Further, many juveniles
who commit crimes are found to have undiagnosed mental health issues, trauma,
or developmental disorders which may be ignored due to lowered age for adult
trials.
3.3 Social Integration and
Rehabilitation
Juveniles tried and
convicted as adults face social stigma that can affect their ability to
reintegrate into the society. This would lower their chances of leading a
normal life, the ethical dilemma would be that whether the society should
sacrifice the long-term welfare of juveniles for short term punitive measures
and satisfaction.
With regards to
Rehabilitation, the parliamentary Standing Committee, in its 264th
report, noted that while there has been notable research as far as the
condition of juvenile homes are concerned, none of these studies have addressed
the need to trace the level of reform and rehabilitation of children in
conflict with law after they are released. More importantly, there is no data
or record with regard to juveniles who committed crimes after attaining
majority or leaving the homes. Training and treatment of juvenile offenders is
likely to go to waste if their difficult transition from institution outside
world is not helped and guided by humane and efficient after-care programmes.[36]
Section 3 of the 2015 Act,
envisages providing a ‘fresh start’ to a juvenile delinquent, directing the
removal and deletion of records of delinquency except in ‘special
circumstances. Though espousing the need of repatriating a juvenile back into
the society, the exception of ‘special circumstances’ takes us a step
backwards.
A recent Supreme Court
case also highlighted the importance of the ‘fresh start’ principle. The
respondent, Ramesh Bishnoi, was denied a job appointment due to his previous
record that highlighted his conviction as a juvenile, which was not sealed or
removed. Upholding the High Court’s order of reinstating Bishnoi’s appointment,
the Supreme Court held that the principle of fresh start read with the
rehabilitative objective of the 2000 and the 2015 Act should ensure that an
individual is not prevented from securing a job. The SC further noted that “even
if he had been convicted, the same could not have been held against him from
getting a job, as admittedly he was a minor when the alleged offences were
committed and the charges had been framed against him”.
3.4 Judge's Dilemma: What
Actions Do They Take and How Do They Approach Them?
The issues judges have to
deal with in juvenile cases are testimony to the fact that a legal system needs
to be better designed to handle such matters. Ideally, there are legal
principles available; however, there exists a significant struggle in
translating such principles into practice and having direct implications on the
life of a juvenile inside the justice system. Another landmark case which
defined such apprehensions was Ashwani Kumar Saxena v. State of Madhya Pradesh.[37]
While there have been
instances in which legislation was followed appropriately, evidence from the
field reflects a lingering mis framing of adolescent development at the hands
of those in the judicial system. The Juvenile Justice Act of 2015 is a step
forward as it mandates training for members of juvenile justice boards but yet
disappointingly fails to take specific, effective steps to train magistrates
who are so often essential in these proceedings. Such a lag in training can
lead to uneven implementation of the law and sometimes less-than-optimum
support for youths.
The shift of cases to the
adult criminal justice system further denies young offenders’ chances for
rehabilitation, mostly condemning them to constantly reoffend and not to be
reintegrated into society. To this end, there is a great need for uniform
training as well as follow-up support to judges and other officials operating
in the juvenile justice system. Thus, we would be able to fulfil the letter and
spirit of the principles that govern juvenile justice more effectively, whereby
the rights and developmental needs of young persons are promoted within the
legal framework.
4.
INDIA’S JUVENILE JUSTICE SYSTEM AND
ITS ALIGNMENT WITH GLOBAL STANDARDS
The laws under Indian
juvenile justice system have always tried to strike a balance between
accountability and rehabilitation with core emphasis on the interests of the
child. The juvenile system in India if founded on principles of non –
discrimination, rehabilitation, and safeguarding children’s welfare which
aligns with international standards especially the United Nations Convention on
the Rights of the Child (UNCRC). In comparison to other systems like United
Kingdoms and United States of America, the juvenile system of India emphasizes
more on rehabilitation.
To evaluate the fairness
and efficiency of India’s Juvenile System of India, it must be considered in
the context of international human rights standards for juvenile offenders. Let
us analyse the influence of global norms on the treatment of juvenile offenders
and how they assist in shaping Indian laws and policies.
4.1 United Nations
Convention On The Rights of Child (UNCRC)
The United Nations
Convention on the Rights of the Child (UNCRC) was adopted in 1989 to set out
the civil, political, economic, social, health and cultural rights of children.
The United Nations Convention on the Rights of the Child (UNCRC) was adopted to
succeed the 1924 Declaration of the Rights of the Child by the League of
Nations. The UNCRC standardizes international law by determining the basic
rights of children and parents, protection from abuses, parental
responsibilities, and legal representation, among others. Notably, the UNCRC
expressly forbids the use of capital punishment upon minors and by extension
those who commit crimes while minors[38].
It is based on certain leading principles
which are demonstrated below –
4.2 International Covenant on Civil and
Political Rights (ICCPR)
Political and civil rights
are safeguarded under the ICCPR, to which India is a signatory. However, these
protections don't entirely cover juvenile offenders. India has placed a
reservation on Article 10, which deals with the treatment of young offenders,
signalling its intent to keep its juvenile justice system separate from the obligations
of this article.
Over time, India's
juvenile justice system has adopted several reforms influenced by the Beijing
Rules. These guidelines encourage finding alternatives to detention and aim to
reduce the length of time young offenders are held, aligning with India's focus
on rehabilitation and reform within its juvenile justice framework.
4.3 The Riyadh Guidelines
(United Nations Guidelines for the Prevention of Juvenile Delinquency)
India’s approach to
addressing the root causes of juvenile crime has been shaped by the Riyadh
Guidelines, which focus on preventive measures for juvenile delinquency. The
Indian government recognizes the importance of tackling issues like poverty,
education, and family stability as key factors in reducing juvenile crime.
India’s commitment to safeguarding the rights and welfare of juvenile offenders
is evident through its alignment with international human rights standards,
including its ratification of the UNCRC and the integration of crucial
principles from global recommendations. This international framework ensures
that juvenile offenders in India receive the care and attention they need, with
a strong emphasis on rehabilitation and focusing on the child’s well-being
within the justice system[39].
5.
Youth
Justice Models: Tracing Their Origins and Evolution Across Nations
Exploring
the origin and evolution of juvenile system is a multifaceted task. There are
five – youth justice models that have influenced this system - the welfare
model, the justice model, the minimum intervention model, the restorative
justice model, and the neo-correctionalist model. It is to be noted that these
models are considered the ideal type that highlights major differences in the
approaches adopted to treat young offenders and no system corresponds
exclusively to one model. Most of the systems have evolved over time and share
multiple approaches. It gives rise to a question whether we can find any common
pattern in the evolution of juvenile systems nationwide. To answer the same let
us first discuss the characteristics of each model.
5.1
The Welfare Model
This model adopts a
positivist perspective, according to which the offenses committed by juveniles
are influenced by social or environmental factors which are not under the
control of the individual. The main idea of this model is to look for the ‘best
interests’ and ‘needs’ of children. It emphasizes more on support and treatment
rather than punishment.
The main feature of this
model is that it uses same tribunals for both – the children in need of care as
well as those in need of legal issues. Its jurisdiction extends to ‘status
offenses’ like truancy. Also, it allows intervention of courts even before the
offence is committed and includes informal procedures without legal
requirements. Social scientific experts such as psychologists and social
workers advise decision- makers to exercise their discretion in the ‘best
interests of the child.
5.2 The Justice Model
This model adopts a
classicist approach which is opposite to the welfare model’s positivism. It
emphasizes that young people possess free will and are accountable for their
actions subjected to exceptions. This system focuses on the deeds of the child
rather their welfare needs. The primary goal of the same is to determine
whether the offender is guilty or innocent and if the they are convicted it
should be followed by punishment based on the seriousness of the crime.
The Justice model pays
attention towards procedural rights comprising of the right to be informed of
charges, legal representation, a fair hearing and the presumption of
innocence. However, granting sentence
for a punishment resemble those in adult courts which is focused on
proportionate and consistent penalties.
5.3 The Minimum Intervention
Model
This model is rooted in
the criminological theory named – ‘labelling theory’. This theory suggests
formal actions against juveniles have the potential to commit more harm than
good. Also, it can be noted that keeping the offenders in custodial
institutions may expose them to more criminal influences which in turn can lead
to deeper involvement in crime leading to a cycle of ‘secondary deviance’.
It includes avoiding
custodial sentences unless absolutely necessary. Furthermore, intervention of
the judiciary should be cautious and the courts should try not to intervene in
minor cases that could have resolved informally. Along with this, minor
offenses should be decriminalized in order to remove the threat of criminal
sanctions. Serious offenses should be depenalized and should rather be handled
through civil proceedings and in child sensitive institutions.
5.4 The Restorative Justice
Model
This model offers a
different view of crime as co pared to the traditional criminal justice. This
model focuses on the harm done to the victim rather than the offence committed
against the State. It believes that the needs of the victims are often
overlooked in the conventional systems. The traditional approaches leave the
responsibility of dealing with offenders to state agencies while the
restorative justice involves offenders, victims and their communities in
deciding how to address the crime. The emphasis is on the specific interests of
those directly affected, rather than the broader “public interest.”
It believes that there
should be less reliance on prisons and also it recognized that incarceration
often hinders meaningful restoration.
5.5 The Neo- Correctionalist
Model
This is a punishment
driven approach which focuses more on crime prevention. It is centred around
tough interventions aimed at reducing reoffending, even if it means harsher
penalties. The primary goal of this model is to provide efficient juvenile
system by increasing the speed of the processes and enhancing coordination
between criminal justice agencies. Key policies under the neo-correctionalist
model include mandatory penalties, progressive sentencing for repeat
offenders, fast-tracking young offenders through the justice system, and
encouraging inter-agency collaboration.
This is how the juvenile
justice system has evolved through the influence of five key models where each
model has its own approach to handle these young offenders. Although no system adheres
solely to one model, many nations incorporate a blend of these approaches,
reflecting varied philosophies and social priorities in juvenile justice.[40]
6. Flaws in the
Present Juvenile Justice System
The shift of India’s
juvenile justice system towards retributive approach has a lot of issues. It is
believed that to serve the best interests of children, the most effective way
is to incline towards rehabilitation model. Let us delve into the issue further
to highlight various flaws in our current juvenile system.
The first thing is that
there is simply no basis to uphold the notion of an alarming rise in crimes
committed by children in conflict with the law. Issues to be tackled here are
two: first, the data does not generate reason for the shift to a retributive
model given the insignificance of juvenile crime; and second, the data itself
is full of inconsistencies.
However, in fact, in the
year 2015, it was revealed that the percentage of crime committed in India by
CCL was 1.2% and the number is considered low by the international standards.
This percentage is so low that the crimes committed under this head fall into a
negligible percentage that often falls under consensual sexual activities
between CCL misrepresented as criminal offenses. Moreover, the juvenile crime
percentages of metro cities and states and Union territories have witnessed a
declining trend in the period of 2016-18.
The data collected itself
is not trustworthy as it is garnered and filed in a manner that makes it
unreliable. The National Crime Records Bureau monitors crime in India and uses
the number of FIRs or First Information Reports as its basis. However, FIRs
can't hope to fill most convictions, and it simply distorts the natural crime
rate. Once again, the data is presented in such a way that the impact is
sensationalized, although, statistically, it is well managed.
Even the new Juvenile Justice Act falls short of making proper procedural protections for children in the age group of sixteen to eighteen years. There is a prima facie issue that the preliminary assessment of maturity has no scientific basis, and the Act does not demand greater proof at the process of decision-making to either try CCL as adults. This is important because children fundamentally differ from adults and should have different considerations in law. Another serious omission is in the areas of aftercare and rehabilitation services. Most institutions tasked with rehabilitation are grossly under-resourced and inadequately trained. There is huge variance in quality of services being offered from state to state. Most of the institutions in the country do not even reach the minimum threshold of registration under the new Act. Reports of rampant abuse and lack of proper gender and age segregation within these facilities remain a serious issue.[41]
Even the new Juvenile Justice Act falls short of making proper procedural protections for children in the age group of sixteen to eighteen years. There is a prima facie issue that the preliminary assessment of maturity has no scientific basis, and the Act does not demand greater proof at the process of decision-making to either try CCL as adults. This is important because children fundamentally differ from adults and should have different considerations in law. Another serious omission is in the areas of aftercare and rehabilitation services. Most institutions tasked with rehabilitation are grossly under-resourced and inadequately trained. There is huge variance in quality of services being offered from state to state. Most of the institutions in the country do not even reach the minimum threshold of registration under the new Act. Reports of rampant abuse and lack of proper gender and age segregation within these facilities remain a serious issue.[41]
7.
PHILOSOPHICAL PERSPECTIVE:
INSTITUIONAL FETISHISM AND DECONSTRUCTION OF THE JUVENILE JUSTICE SYSTEM IN
INDIA
Institutional fetishism
refers to an over-reliance on established systems and structures that focus
more on procedural compliance rather than attending to the actual needs and
well-being of people, particularly juveniles. In India, it has the form of strict
adherence to bureaucratic protocols, which often override the very goals of
rehabilitation and reintegration. The criticism is focused on how these
institutions, instead of providing scope for reforming in a positive manner,
merely continue to provide custodial and punitive responses that overlook
This philosophical approach provokes a critical analysis of paradigms in juvenile justice by questioning the effectiveness of institutions in place and their utility in changing the course of young offenders. It is based upon the fact that it would encourage a paradigm shift focusing upon the child-centric approach.[42]
This philosophical approach provokes a critical analysis of paradigms in juvenile justice by questioning the effectiveness of institutions in place and their utility in changing the course of young offenders. It is based upon the fact that it would encourage a paradigm shift focusing upon the child-centric approach.[42]
8.
SUGGESTED REFORMS TO THE
INDIAN JUVENILE JUSTICE SYSTEM
While the new Juvenile Justice
Act is an attempt to comply with the best interest criteria of the child, most
provisions are biased towards retributive justice that poses more harm not only
to the children but also to the larger society. In that regard, this section
recommends some reformative changes to the existing system in full recognition
that public safety is no less an important concern in the sentencing of
juvenile justice. Inasmuch as rehabilitation is integral to the Act, there are
certain circumstances under which more drastic steps are warranted. The
Nirbhaya case acted as a catalyst to media sensationalization of crimes
committed by youth. The political parties were quick to make promises in line
with the desires of the public. Under such scenario, the full abolition of
these very provisions may not be possible. Therefore, it is suggested to make a
balance that also works to the benefit of CCL.
A rehabilitative juvenile justice
system calls for not only fiscal investment but also human resources, involving
an enormous effort from the State. But, again, this would be worth the price.
Rehabilitative and reformative intervention showed considerable rehibition of
recidivism rates. Although such a step entails much investment, this will
eventually prove to be for the good of the society, children, and the victims
at large. It may eventually salvage costs in the prosecution of CCL and
juvenile homes. The investment in the future of children was long overdue.
There are some very attractive reasons why we should desist from adopting a
"tough on crime" attitude when it comes to the youths and their
offenders. Instead, all provisions need to be targeted so that CCL member s are
reintegrated into society.[43].
By investing in the future of the
juveniles and ensuring their reintegration into society, the system can
actually benefit not only the children but the crime levels and wider social
costs as well. A balanced approach which would require upholding public safety
alongside rehabilitation is both necessary and long overdue.
8.1
Strengthening Child Welfare Institutions
Improved, upgraded, and given
the more appropriate infrastructure child welfare institutions, along with more
proper training and holistic rehabilitation programs, would better rehabilitate
children in conflict with the law. All these will achieve a safe environment
for a child, access to education and mental health, and targeted support system
so that the child becomes better through child welfare institutions.
Accountability measures may be supplemented by facilitating NGO and community
organization partnerships.
8.2 Role of Education and
Community Involvement
Some
interventions can involve the early years and community-based programs to stop
juvenile delinquency. These would include educational programs with life
skills, conflict resolution, or emotional regulation. The avenue that could
build their support networks into engaging in positive social behaviours and
thus not being isolated would include involvement of the community. Programs
aimed at bringing families and other stakeholders in the community may build a
protective environment for children and discourage deviant behaviour.
8.3 Psychosocial Support and Trauma-Informed
Approaches
More emphasis on trauma-informed
care is also seen in the setting of juvenile justice to meet the psychological
needs of the youthful offenders. Trauma-informed care recognizes the trauma
effect on behavior and builds an environment and approach that is safe and
supportive. Training staff to be sensitive to trauma tends to open up more
responsive interactions and interventions, which helps individuals heal and
rehabilitate. More could be done from these rehabilitation processes by
considering mental health support and counselling in order to deal with the
real issues that lead to delinquent behaviour.
8.4 Involvement of NGOs and
Civil Society
Key to the rehabilitation of
juvenile offenders who ultimately reintegrate into society is cooperation with
NGOs and civil society bodies. These organizations can make resources,
mentorship, and other support services available to each individual child. The
juvenile justice system can effectively improve positive outcomes and minimize
recidivism by engaging in partnerships that find strengths and leverage
expertise within communities. An advocacy effort promotes and increases
awareness and mobilizes more resources because civil society is involved in the
cause of children's rights and welfare[44].
DATA
INTERPRETATION AND ANALYSIS – EMPIRICAL STUDY
The data collected through
the method of circulated google forms shows the perception and perspective of
the respondents in context of juvenile justice system in India. The sample size
of the survey includes 100 citizens of ages starting from 18 years.
1.
Demography
i.
Age
The sample
size consists of citizens classifies into five categories – 12-18,18-25,26-35,
above 35 years. Here, 6% people are from age group 12-18 years category. 18%
from 18-25 years, 16% from 26-35 years, 60% from above 35 years.
ii.
Gender
Out of 50
samples collected 13 were females while 37 were males.
2.
Educational Qualification
Out of sample
size of 50 people, 2 belong to first category, 3 belong to second category, 22
belong to third category and 23 belong to fourth category.
3.
Familiarity with the Juvenile Justice
Act
The survey
indicates that a significant majority, 64%, are fully aware of the topic, while
36% have varying degrees of awareness, suggesting a strong overall familiarity
among the population.
4.
Evolution of Juvenile System from
historical times to present day
16% people
believed that the juvenile system in India has drastically improved while 46%
people agreed that it has somewhat improved. According to 28% people there is
no significant change and 5% believed that it has worsened.
In general
opinion is positive, but it still has some scope for improvement. Though
recognition of progress appears in data, most of them demand more significant
changes.
5.
Key factors that contribute to
juvenile delinquency in India
On analysing the responses, it was seen that
people were convinced that poverty and economic stability contributes to
22% juvenile delinquency in India. Family dysfunction or lack of support was
given 17% prevalence.23% was attributed to peer pressure and influence,
22% was given to lack of education and opportunities, 19% to exposure
to violence in the community, 22% to substance abuse (alcohol,
drugs), 15% was given to mental health issues, 7% was given to poor
access to recreational activities and programs, 24% to media influence
and 2% prevalence was given to others.
6.
What should be the primary focus of
law for juvenile offenders: punishment or rehabilitation?
Majority of
people that is 58% believed that the primary focus of law should be on both
punishment and rehabilitation. 12% answered that law should focus on punishment
while 24% agreed that focus should be on rehabilitation.6% of the respondents
were not sure about the same.
7.
Do you think the increasing trend of
using children to commit crimes, as a means to avoid stricter punishments
applicable to adults under the Bharatiya Nyaya Sanhita (BNS), is a serious
concern?
On analysing
the responses, 44% strongly agreed and 8% disagreed with the question above.
42% answered with agree, 6% of them were neutral.
8.
In cases where children are used by
adults to commit crimes (as outlined in the BNS), should stricter penalties be
imposed on the adults involved?
To this
question 68% strongly agreed while 22% agreed. 8% had a neutral stand and 2%
disagreed.
9.
Do you support the decision to lower
the minimum age which is currently 16 for juveniles to be tried as adults in
cases of heinous crimes?
On analysing
the responses, it was seen that 27 people agreed and supported the decision
while 9 of them did not support the decision. 12 of them said that it depends
on specific case and 2 of them were unsure.
10. What
are the main challenges faced by the juvenile justice system in India today?
11. How
can child-centric justice approaches be better integrated into the general
criminal justice system?
12. What
improvements, if any, would you recommend to the existing juvenile justice
system?
13. In
your opinion, how can India better balance the protection of society with the
rights of juvenile offenders?
Strict action
against adults who promote juvenile offenders and strong law enforcement can
work its way to strengthen the juvenile justice system. Increasing awareness
and regulation of social media can help lead legal rights and consequences
toward building social acceptance of juvenile laws, especially for victims.
Rehabilitation rather than punishment should be promoted among juveniles so
they may not face any liability in the future. Some more reforms suggested
include separate juvenile courts, training of all judges and police officials,
and providing legal representation to all of them. At-risk youth should receive
counselling, education, and vocational training through community-based
programs.
The important
steps involve updating the Juvenile Justice Act in accordance with the
international standard, increasing the age of criminal responsibility, and
enhancing the delivery of support services, including child-friendly police
stations. This will also call for efforts and considerations for data-driven
policy action. Community engagement and collaboration with NGOs will enhance
capacity. Redemption and detoxification can be achieved through non-punitive
measures such as issuing warnings for minor offenses and the establishment of
fast-track courts without increased stigma. Education and awareness about
comprehensive counselling of minors are very important factors to create a
supporting environment around the rehabilitation of youths.
CONCLUSION
The evolution of child-centric
justice approaches in India reflects a growing recognition of the rights of a
juvenile offender and their special status within the Indian legal system.
Historically, the treatment of juveniles in conflict with law was based on a
punitive model which influenced future legislators to introduce changes in the
legislation with regards to the rights of a juvenile. Thereby significant
reforms, particularly through the Juvenile Justice (Care and Protection of
Children) Act and its amendments, have shifted the focus towards
rehabilitation, reformation and reintegration of children. Despite these
advancements, the challenges in the contemporary times persist resulting from
systemic gaps, inconsistent implementation and societal stigmatization. Therefore,
to uphold the best interests of children, there is a pressing need for
continued reforms, proper resource allocation and a shift towards juvenile
offenders. India’s child-centric justice approach must continue to evolve to
suffice the need of the hour and to control emerging issues, including the
growing involvement of children in heinous crimes. By adapting to these
challenges, the system can ensure a more holistic and effective approach that
upholds the well-being of the society as a whole.
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