Open Access Research Article
JUVENILE JUSTICE IN THE PRESENT ERA
Published Paper
Article Details
JUVENILE JUSTICE IN THE PRESENT ERA
AUTHORED BY - MD. TAUSEEF ALAM &
SUJAL KUMAR
Abstract
The protection of children from all types of exploitation and abuse is
the main objective of our society today. The system gives juvenile delinquency
priority treatment and protection. Juvenile delinquency occurs when a young
person under the age of 18 commits a crime. The Indian Legislative System
states that a legislative framework governs juvenile justice. A person who may
be charged with a crime despite being older than the legal age of majority but
who is nonetheless assumed innocent is referred to as a "juvenile." A
kid under the age of seven is given complete protection from criminal
responsibility under the Indian Penal Code of 1860 since it is believed that he
is incapable of committing a crime (doli incapax). Criminal Code. A major flaw
in this Act is the lack of oversight and cooperation among the numerous
agencies. The reforming aspect of juvenile criminal legislation must take
precedence over the deterrence aspect. A categorical legal system that divides
the juvenile justice system into various age groups is now urgently needed. In
order to ensure that the juvenile is effectively rehabilitated while
simultaneously being discouraged from breaching the law, the 2015 Act
establishes a balance between protection and punishment. The disease that afflicts
our broken civilization must be made known to civil society. In reality,
children who commit crimes are victims of society rather than true criminals.
Juvenile delinquency can be prevented early on if additional care is given at
home and at school. In order to foster a child's ability to think, parents and
teachers are essential.
KEYWORDS: Juvenile
Justice, Child in conflict with the law, Age determination, Bail.
INTRODUCTION
We are guilty of many errors and many
faults, But our worst crime is abandoning children and neglecting the fountain
of life. Many of the things we need can wait. The child cannot. Right now is
the time his bones are being formed, his blood is being made, and his senses
are being developed. To him we cannot answer ‘Tomorrow’. His name is ‘Today’. –
said Gabriela Mistral. Considering that the future of every nation depends on
how its children age and develop, children are seen as a vital national asset.
One of the legal maxims we follow is “Nil Novi Spectrum” which means nothing is
new on earth. The primary goal of our society today is the protection of
children from all forms of exploitation and abuse. Today by the virtue of the Juvenile
Justice ( Care and Protection) Act 2000 we strive for the interest of the
children and their rehabilitation through various institutions established by
the act. According to the Indian Legislative System, juvenile justice is
defined by a legal framework. Juvenile delinquency is receiving preferential
care and protection from the system. A crime committed by a young person under
the age of 18 is considered juvenile delinquency.
The Hon’ble Supreme Court in its
ruling of Sheela Barse II v.
Union of India[1] held that
Children's statutes provide that a kid shall not be detained in jail because if
a child is a national asset, the State has a responsibility to care for the
child in order to ensure the complete development of the personality. It was
mandated that kids should never be detained in jail, and if a state government
does not have enough space for kids in its remand homes or observation homes,
kids should be released on bond instead than detained in jail. The provisions
of juvenile justice have their roots lying down in art. 15(3) which empowers
the government to make special laws for children. In, Satto v. State
of Uttar Pradesh[2] the
Hon’ble Supreme Court remarked that “correctional informed by compassion, not
incarceration leading to degeneration, is the primary aim of this field of
criminal justice.”
BACKGROUND
The word "juvenile" has
recently received a lot of significance. In the current context, the term
"juvenile" refers to a person who, while being older than the minimum
age of criminal responsibility, may be held criminally liable but who is still
presumed innocent.[3] As the law
of children changed throughout time to meet the demands of the circumstances
that were in play at the time, numerous enactments also emerged in India slowly
but gradually. It should be acknowledged that taking a too-lenient stance would
undoubtedly compromise the necessary steps that need to be taken to maintain
the social as well as the moral foundation of society. However, an overly
strict approach would undoubtedly crush the dreams of young people who haven't
had a chance to see the world but who, despite the government's best efforts,
tragically were embroiled in crimes when they were still very young. Under the
Indian Penal Code, 1860, by virtue of Section 82, absolute immunity from
criminal liability is provided to a child under the age of 7 years as he is
considered incapable of committing a crime (doli incapax). Section 83 of the
Penal Code provides partial/qualified immunity to a child above 7 years and
under the age of 12 on the grounds of immaturity. The Penal Code treats a child
above 12 years at par with adults.
Challenge faced by Juvenile Justice Act 2000
Concerns that the Juvenile Justice
Act of 2000 was inadequate to deal with this new breed of offenders, the
so-called juvenile super predators, were stoked by the horrifying rape in the
Nirbhaya case,[4] in which
one of the offenders was 17 years old and just 3 months away from reaching
majority. The legality of the juvenile laws and the necessity of adopting harsh
punishments as deterrents were questioned by policy elites, the media, as well
as regular individuals from all walks of life. The Parliament gave in to the
demands of some critics riding on the myth of super predators after coming
under unprecedented scrutiny and criticism for what was seen as an inability to
address the juvenile threat. The Parliament gave in to the demands of certain
critics riding on the concept of super predators after coming under
extraordinary criticism and scrutiny for what was seen as an incapacity to
address the juvenile threat. The JJ Act, 2015 was therefore introduced by the
Parliament to facilitate the prosecution of juveniles in adult court. A kid
between the ages of 16 and 18 who is accused of committing a severe crime may be
sent to an adult criminal justice system, sometimes known as a children's
court, to be prosecuted as an adult under the current system. The most
controversial part of the JJ Act, 2015, is Section 15, which requires the
Juvenile Justice Board (hereafter referred
to as JJB) to send cases involving a minor between the ages of 16 and 18
who is accused of committing a serious offense to a children's court. The Board
will make this judgment based on an initial evaluation to determine the child's
capacity to commit such an offense. This Section places an onerous on the JJB
to enlist the help of psycho-social workers, psychologists, and other
specialists in order to determine the accused's mental ability. The Board may
transfer the child to the Children's Court under Section 18 if it is satisfied
with its preliminary evaluation.
Procedure Outlined under Section 15
If the Juvenile Justice Board (JJB)
determines decisively that the juvenile's degree of maturity shows that he
committed the heinous crime as an adult and not as a kid, the transfer of the
juvenile to adult courts is justified under the 2015 Act. The JJB must make a
preliminary determination about "his mental and physical competence to
commit such an act, the ability to appreciate the consequences of the offense,
and the conditions wherein he allegedly committed the offense," according
to Section 15 of the Act. The Board may move the case's trial to a children's
court if it determines that the youngster needs to be tried as an adult.
The adolescent must commit a heinous
offense, as defined in section 2 (33) of the Act, for this provision to be
applicable. Section 2(33) read as “‘Heinous
offenses’ includes the offenses for which the minimum punishment under the
Indian Penal Code or any other law for the time being in force is imprisonment
for seven years or more.” In contrast to minor and serious offenses, this
category of crimes is unique. The Board must adhere to the Code of Criminal
Procedure's 1973 summons case trial procedure for such severe offenses. The
court in Subramanian Swamy v. Raju The Member, Juvenile Justice Board[5] observed
that a certain incident leaves a lasting impression on the nation's or
society's mind. One such incident was the Delhi Gang Rape Case, which happened
in December 2012 aboard a moving bus. Six people, one of whose ages was a few
months under 18, gang-raped a 23-year-old college student. As a result, the
juvenile accused in the JJB trial was given a three-year sentence to serve in a
special home. The irony of the law is that the young offender was allowed to
live freely in society even after committing the heinous crimes of rape and
murder, which included inserting an iron rod into the victim's private area.
Procedure to apprehend a child in conflict with the
law
Section 10[6]
talks about the apprehension of a child in conflict with the law. Whenever the
police get a piece of information regarding any offences in which the child is
in conflict with the law, then they will relay this information to the Special
Juvenile Police Unit. After that, the case will be handed over to the child
welfare police officer of the relevant police station, and an entry will be
created in the track child portal to maintain track of the case. Depending on
the type of offence the suspected kid committed, either a DDR(Daily dairy
register) will be filed in the event of a minor offence or an FIR would be
filed in the case of a significant or heinous act. The Chief Welfare Police
Officer under section 13 of the act owes the duty to inform the parents or the
guardians of the child in conflict with the law about the situation and
subsequently direct them to be present before the board where the child will be
produced. After recording the case the child is sent for a medical examination
a designated Child Wellbeing and Protection Officer (CWPO) or Special Juvenile
Police Unit will conduct his evaluation (SJPU). Additionally, the parents and
the probation officer will get notification of the arrest in order to conduct
an investigation. It is important the child is produced before the Juvenile
Justice Board by a designated child welfare officer. After the production of
the child before the Juvenile Justice Board, the child is sent to the
Observation which is generally the shelter for the child in conflict with the
law. State Legal Services Authority duly receives the file from the Child
Wellbeing and Protection Officer in order to access the situation of whether
free legal aid is required or not.
Social Background Report: The major
important document which has to be prepared within two weeks, is called the
social background report. A report on a kid in conflict with the law that the
child welfare police officer has prepared, including the child's history. It is
the responsibility of the Special Juvenile Police Unit or the Child Welfare
Police Officer to get in touch with the child's parents or legal guardians in
order to acquire the best information possible. When making decisions about the
children's case, this report is regarded as a crucial document for their welfare.[7]
Judicial Take on Criminal Liability of Juvenile
The court once convicted a
13-year-old boy in its ruling of Kakoo v. State of Himachal Pradesh[8] accused of
raping a two-year girl. The attorney for the accused pleaded with the court to
examine Sections 83 and 84 of the Indian Penal Code, which provides that
children and adults should not be treated equally while a criminal case is
being heard, in order to reduce the term of the penalty. Even though the
youngster was found guilty of rape, the court decreased the punishment by
taking the attorney for the accused child's case into consideration. Thus, it
may be inferred from the verdict that Sections 82 and 83 do more than only
provide for "doli incapax"; they also serve as a reminder to courts
that minors are not to be regarded equally to adults when considering a matter.
Further Court in Durga v. State
of Rajasthan[9] observed
that this is a really fascinating scenario to comprehend the caliber of the
evaluations done upon juveniles. According to Section 15, a committee made up
of psychologists and psychosocial workers with extensive expertise working with
problematic adolescents shall be chosen to carry out the initial evaluation.
The Honourable Rajasthan High Court noted that the girl called Durga, who was
in trouble with the law, was not given "any meaningful opportunity of
hearing or legal counsel" in the current case, which is truly intriguing
to read. The Juvenile Justice Board violated the principles of natural justice,
the Juvenile Court Board failed to consult appropriate psychologists with
experience working with troubled children as required, and the child was
unjustly admitted to the MBH Hospital's psychiatry department. These findings
were made clear to the court.
Age Determination
The present piece of legislation
beautifully craved down the provision based on the present-day scenario of the
nation creating a concrete hierarchy of documents. The primary document which
is taken into consideration is the matriculation certificate. The conflict
arises when there exists any variation in the documents by the Board of
education and the government municipal corporations which issue the Birth
certificate. But the entry of the matriculation certificate or any equivalent
document can only be discarded when it is established the document is
fabricated.[10] Further, the stand was made clear in the case
of Sheela Devi v. State of Haryana[11]
which involved a juvenile accused of rape. When the offense was committed the
accused was below 18 years as per the matriculation certificate of the accused.
The court held that since the accused had appeared in the examination before
the date of the accident, the certificate issued by the board of examination
cannot be said to be fabricated. The court made the stand of matriculation as
the primary evidence to establish the age of the accused on the basis of the
matriculation certificate. Moreover, the court can rely upon other documentary
evidence such as transfer certificates and other documents, without going for
the records from the gram panchayat.[12] Once it is an established fact that the age
as per the birth of date in the matriculation certificate is genuine then in no
possibility the court will go for the admission of any evidence, if so then it
will violate the statutory provision.[13]
The Hon’ble Supreme Court in the case
of Rajinder Chandra v. State of Chhattisgarh[14]
held that in the case of there is any question as to whether the accused was a
juvenile or not on the day of the offence, the juvenile should be given the
benefit of the doubt. In case of the absence of the matriculation certificate
then the other admissible document available in the hierarchy are: -
- The Certificate of birth issued
by the Municipal corporation or authority or panchayat
- In the absence of a
matriculation certificate or any equivalent document or the certificate
issued by the municipal authority then, the age shall be determined by an
ossification test or any of the latest tests if the committee orders such.
The age determination test must be completed within 15 days of such order
by the Board or Committee.
It is imperative to note that Section
94 (2)(iii) clearly states that the ossification test is only to be done if the
documents mentioned under sub-clause (i) and (ii) are not available. Justice
Banumathi and Justice Sikri through their ruling in the case of Mukarrab
v. State of Uttar Pradesh[15] express
that the age determination based on ossification may be useful but not
conclusive. The test can by no means be accurate and so infallible as to
indicate the correct number of years and days of a person’s life he lived.
Further, the hon’ble supreme court in the ruling of KulaiIbrahim v. State
of Coimbatore[16] held that
the accused has the right to raise the question of juvenility at any point of
time during the trail or even after the disposal of the case as empowered under
the section 9 of the Juvenile Justice Act, 2015.[17]
Bail in case of a child in conflict with the law
Every juvenile criminal has a right
to bail, and the spirit of the juvenile justice laws clearly indicates that
kids in legal trouble should be freed on bond, excepting three things: (a) The
juvenile will be put in danger on a moral, physical, and psychological level
or, (b) the bail will defeat the ends of justice or, (c) the bail is likely to
associate them with any known criminals.[18]
In so far as Juveniles are concerned granting bail is the rule and the
rejection of the bail is the exception. The court must ensure the balance
between the situations and the rights of the juvenile. The Hon’ble apex court
has cautioned the court to try the cases with much more sensitivity while
dealing with juveniles in serious and heinous crimes like sexual harassment and
molestation, gang rape, rape, murder, trafficking, drugs, etc.[19] The major
aim of the Juvenile Justice Act is to treat the juvenile with care and
sensitivity and help them reform and settle into the mainstream of society.[20] The court
in Manoj v. State[21] held that
“Grant of bail is mandatory, unless and
until exceptions carved under section 12 are made out.”
The Hon’ble Allahabad High Court in Sanjay
Kumar v. State of Uttar Pradesh[22]
granted the bail to the juvenile booked under sections 392 and 411 of the
Indian Penal Code, 1860 and held that, “ The
existence of such ground should not mean the guess work of the court but it
should be substaintiated by some evidence on record.” Further, The
Rajasthan High Court in Prakash v. State of Rajasthan[23] granted
bail for the alleged offence of rape[24]
in the absence of reasonable ground to believe that the juvenile if released on
bail, is likely to come into association with any known criminal or he will be
exposed to physical, moral and psychological danger. The court further observed
that “from the kind perusal of section 12
of the act, it is clear that a delinquent juvenile ordinarily has to be
released on bail irrespective of nature of the alleged to have been committed
by him”, unless there are pieces of evidence to prove that the bail will
lead to harming the juvenile accused.
The provision is to save the innocent
who has been caught in the throes, not the criminals of heinous crimes to
obtain selfish means. As seen in the case of Bholu v. Central Bureau
of Investigation[25] that the
bail application can also be rejected if the juvenile is accused of a heinous
crime and is to try as an adult as decided by the Juvenile Justice Board under
section 15. Granting the bail becomes a matter of cautiousness and not a matter
of right. The Allahabad High Court rejected another bail application of the
juvenile in the case of Monu alias Moni alias Rahul alias Rohit v. State
of Uttar Pradesh[26] where the
accused was apprehended for the offence of kidnapping and rape at gunpoint, the
court observed that “Merely by
declaration of being a juvenile does not entitle a juvenile in conflict with
law to be released on bail as a matter of right. The Act has a solemn purpose
to achieve betterment of juvenile offenders but it is not a shelter home for
who have got criminal proclivities and criminal psychology.”
The Juvenile Justice Act is a
combination of both the substantial and the procedural law and takes into
consideration the interest and care of the child in conflict. A division bench
of Madras High Court in the case of K. Vignesh v. State[27] held that
the application of anticipatory bail under section 438 of the Code of Criminal
Procedure (CrPC) is not maintainable before the Hon’ble High Court or the Court
of the session as, one has to understand that without any doubt whatsoever, a
child in conflict with law cannot be arrested so the apprehension of the arrest
does not come into question.
Further, it a well-settled position
that under what circumstance the bail will be rejected under exceptional
circumstances, even if the bail is rejected the child cannot be taken into
judicial or police custody, rather the child will be taken to an Observation
Home by the Juvenile Justice Board. Even the Section 12 of the act does not
provide any equivalent as of section 438 of CrPC to the Juvenile Justice Board,
the board has no jurisdiction to entertain the plea of Section 438 of CrPC.[28] The
Hon’ble Supreme Court upheld the death penalty in the case of Amrutlal
Someshwar Joshi v. The State of Maharashtra[29]
despite there was the possibility that the offender was below the age of 18 at
the time of the commission of the crime.
Conclusion
The Supreme Court of India emphasized
that “obviously that in a civilized society cannot be denied the importance of
child welfare because the welfare of the whole societies depends on the
development and welfare as well as health and well-being of its children.
Therefore, it is essential for the development of a nation, how its children
grow and develop.”[30] The
importance of real-world experience must be emphasized. The absence of
coordination and control between the various agencies constitutes a fundamental
weakness in this Act. Police officers, attorneys, and court officials are among
the many persons involved in the administration of this Act who are not
familiar with the idea and philosophy of the juvenile justice system. Juvenile
criminal law's reforming component must take precedence over its deterrent
component. Despite its flaws, the 2015 Act strikes a balance between protection
and punishment, making sure the juvenile is successfully rehabilitated while
also being deterred from breaking the law. Strengthening the other components
is vital if the nation is to have stronger juvenile laws and regulations. There
is an emergent need for constructing a
judicial system and categorizing by splitting the juvenile justice system into
different age groups.
Everyone is aware of the rising
number of juvenile offences that are currently raising the contentious topic of
age determination. The accused's age is one of the most crucial factors in
assessing his or her degree of maturity. The question of whether a juvenile can
be tried as an adult or not is being raised by the rising crime rate. The
process of guaranteeing the best interests of children in accordance with the
mandate of the Indian Constitution and international agreements includes more
than only addressing the challenges of juvenile delinquency and ensuring the
welfare of children in need of care and protection. To accomplish the stated
goals, a lot has to be done. As Abraham Lincoln once said that “A child is a
person who is going to carry on what you have started. He is going to sit where
you are sitting, and when you are gone, attend to those things you think are
important. You may adopt all the policies you please, but how they are carried
out depends on him. He is going to move in and take over your churches,
schools, universities, and corporations. The fate of humanity is in his hands”.
Civil society must be made aware of
the sickness that exists in our dysfunctional society. Children who commit
crimes are not actually criminals; rather, they are the victims of society. If
extra care is taken at home and in school, juvenile delinquency can be stopped
at an early stage. In order to develop a child's thinking, parents and
instructors are crucial. Instead of classifying them as "criminals"
or "delinquents," attempts should be done to provide them the
opportunity to make amends. It would also be preferable if the mistakes they
have made in their life (including social and psychological issues) were made
known to them. Like many other societal ills, the issue of child criminality is
related to the flaws and social maladjustments in our society. The concept that
young offenders require empathy and compassion from our society rather than the
strict application of the law is progressively getting more support.
[1] Sheela Barse II v. Union of India, (1986) 3 SCC 632.
[2] Satto v. State of Uttar Pradesh, AIR 1979 SC 1519.
[3] Juvenile Justice (Care and Protection of Children) Act,
2015, § 3, No. 2, Acts of Parliament, 2016 (India).
[4] Mukesh & Anr. v. State for NCT of Delhi &
Others, (2017) 6 SCC 1.
[5] Subramanian Swamy v. Raju The Member, Juvenile
Justice Board, Criminal Appeal No, 695 of 2014.
[6] Juvenile Justice (Care and Protection of Children)
Act, 2015, § 10, No. 2, Acts of Parliament, 2016 (India).
[7] Ramachandran v. The Inspector of Police, 1994 CriLJ
3722
[8] Kakoo v. State of Himachal Pradesh, AIR 1976 SC 1991.
[9] Durga v. State of Rajasthan, 2019 CriLJ 2720.
[10] Leena Katiyar v. State of Uttar Pradesh, 2015 CriLJ
4683.
[11] Sheela Devi v. State of Haryana, 2016 CriLJ 1340.
[12] Kiran Laxman Dabade v. State of Maharastra, 2016
CriLJ 3165.
[13] Tausif Ahmed v. State of Bihar, Criminal Revision No.
981 of 2015.
[14] Rajinder Chandra v. State of Chhattisgarh, [2002] 2
SCC 287.
[15] Mukarrab v. State of Uttar Pradesh, (2017) 2 SCC 210,
para 29.
[16] KulaiIbrahim v. State of Coimbatore, 2014 (12) SCC
332.
[17] Juvenile Justice (Care and Protection of Children)
Act, 2015 (Act 2 of 2016), s. 9.
[18] Vigneshwaran v. State, 2016 SCC OnLine Mad 20388.
[19] Om Prakash v. State of Rajasthan, (2012) 5 SCC 201.
[20] Ibid, para 3.
[21] Manoj v. State, 2006 Cri LJ 4759 (Delhi).
[22] Sanjay Kumar v. State of Uttar Pradesh, 2003 Cri LJ
2284.
[23] Prakash v. State of Rajasthan, 2006 Cri LJ 1373.
[24] Indian Penal Code,1860, § 376, No. 45, Acts of
Parliament, 1860 (India).
[25] Bholu v. Central Bureau of Investigation, 2018 SCC
Online 747 (P&H).
[26] Monu alias Moni alias Rahul alias Rohit v. State of
Uttar Pradesh, 2011 Cri LJ 4496.
[27] K. Vignesh v. State, 2017 SCC OnLine 28442 (Mad).
[28] Kapil Durgvani v. State of Madhya Pradesh, 2010 SCC
OnLine 641 (MP).
[29] Amrutlal Someshwar Joshi v. The State of Maharashtra,
(1994) 6 SCC200.
[30] Lakshmi Kant Pandey v. Union of India, 1992 AIR 118.
Article Information
JUVENILE JUSTICE IN THE PRESENT ERA
Authors: MD. TAUSEEF ALAM, SUJAL KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/13
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.