The Juvenile Justice (Care and Protection of Children) Act, 2015 — Critical Analysis
Introduction
The 2012 Delhi gang-rape was an unfortunate incident which shook the heart of the nation and struck a raw nerve. It brought out people on to the streets to put up a brave front against such vicious and brutal crimes that defy all bounds of morality. The incident also ignited national discourse on the question of juvenile delinquency as one of the prime accused in the case was a juvenile, just few months shy of turning eighteen — the age of majority under Indian law. The fact that this accused was tried in a juvenile court, thus escaping a death sentence, triggered a massive outcry on the inadequacy of the juvenile law to treat cases where such heinous crimes had been committed.
The negative public perception was captured perfectly through the words of Maneka Gandhi, when she remarked that “an adult crime by a juvenile required adult punishment, not leniency.”[1] The anger stirred by the treatment of the juvenile along with other factors such as the increase in juvenile crime rate and deplorable conditions of juvenile homes, forced the Parliament into deliberation and The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter referred to as “the Act”) took birth, ushering in a new era of juvenile justice laws in India.
The word juvenile is commonly used to refer to children, or people below the age of eighteen. The term in itself does not imply anything negative, nevertheless, it is commonly perceived to be attached with children who have committed a crime. In fact, the term juvenile although not defined in the Act, refers to all those who cannot be considered as adults. There are many jurists and academicians who have criticised the use of the word juvenile as it bears a negative psychological ring to it. The 2015 legislation has, to a limited extent, attempted to address these apprehensions by substituting its use. Yet, the title of the Act continues to carry the word juvenile, which shows the half-baked approach of the law-makers.
Analysis
Law is generally crafted with a view to safeguard the interests of minors. In most legislations, such as the Indian Contract Act, 1872 the scales are skewed towards the minors. The rationale behind this approach is that minors are not mature enough to think of their own interests and therefore, it is the duty of the law to safeguard their interests so that no one is able to take advantage of the position of a minor. This phenomenon can be seen in the Indian Penal Code too, wherein section 82 states that nothing done by a child under the age of seven years constitutes an offence. Section 83 protects children up to the age of twelve years, who have not developed sufficient understanding as to be able to judge the consequences of their actions.
Similarly, this Act too has been constructed in such a manner that seeks to protect the interests of juveniles and cater to their needs. The Constitution of India, under article(s) 15(3), 39(e)(f), 45 and 47, confers powers and imposes duties upon the State to ensure that the basic human rights of all children are protected and their basic needs are met. India is a party to several conventions which mandate that States must act in manner that secures the best interest of the child. Thus, the laws have been developed with an eye on the interests of the child.
A) History and Evolution
In order to make a detailed study and proper analysis of the current laws in force, it is pertinent to revisit the previous juvenile justice legislations.
1) Juvenile Justice Act, 1986: This Act was introduced in an attempt to bring about uniformity in the juvenile justice system in India. Prior to the conception of this Act, each State had its own rules and regulations governing the system which led to widespread confusion and malpractice in the bona fide implementation of these laws across the length and breadth of the country. The Act intended to solve the problem of juvenile delinquency and establish a greater involvement of welfare agencies for dishing out proper care, protection and rehabilitation to juveniles.
However, the effective implementation of this Act was marred with apathy and irregularity. Ved Kumari describes this apathy as having become “endemic in the functioning of each of the component of the juvenile justice system” [2]. Kumari, having had the opportunity to witness the proceedings of a juvenile court after the enactment of the Juvenile Justice Act, 1986, says that there were a lot of missing pieces and irregularities in the actual proceedings taking place in court. She states that there was no child friendly approach in the court and no attempts were made to explain to the child what was going on. Also, the proceedings were never disposed of within the prescribed time of three months and no reasons were recorded for the same[3].
She also explains that the provisions barring public entry to juvenile courts for supposedly protecting the children from stigmatisation actually shielded the maladministration of the courts and provided them invisibility. One of the biggest problems was that there was no distinction between those children who required care and protection from the State and those who had violated the law[4]. Therefore, the Act proved to be grossly inadequate, although it did bring in uniformity as it superseded around twenty-five Children Acts that were in place in different states[5].
2) Juvenile Justice (Care and Protection of Children) Act, 2000: To address the lacunae left by the 1986 legislation, the need was felt to review the working of the juvenile justice system. The steps undertaken by various agencies in pursuit of the objectives of the 1986 Act fell short and had many weak plugs. Thus, the Juvenile Justice Act was re-enacted in the year 2000 to fulfil the goal of establishing a proper juvenile justice system in India. Many significant amendments were made to the existing structure of the system.
First, the age of juveniles under the previous Act was set at sixteen for boys and eighteen for girls. Under the new provisions, the age became eighteen for both, as prescribed by international conventions such as Article 1[6] of the UN Convention on the Rights of Child. The new Act also dealt extensively with the separation of children in conflict with law and children in need of care and protection. The result of this process was that a system was created for juveniles which was different from the adult criminal justice system[7].
Another major change was that the date of commission of offence was decided as the date to be taken into account for determining the status of juvenility. This clarified a lot of ambiguity and was a consequence of the case Arnit Das v. State of Bihar[8], a landmark ruling of the Supreme Court. In 2007, an expansive list of model rules was passed based on the principle of the best interests of the child. The rules were a significant improvement as they provided for privacy of the child and the concept of “fresh start” for juvenile delinquents[9].
B) Juvenile Justice (Care and Protection of Children) Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted with a view to “consolidate and amend the law relating to children alleged and found in conflict with law and children in need of care and protection by catering to their basic needs through proper, care, protection, development…”[10] The Act came into force on January 15th, 2016 and has since then attracted lots of attack, criticism and fierce scrutiny for its approach towards children in conflict with law.
The provisions focus on adopting a child-friendly approach in adjudication and disposal of matters. Further, it seeks the rehabilitation and social re-integration of children in their best interests to allow them a fresh chance at life. The Statement to the Objects and Reasons to the Bill states that several issues arose during the implementation of the previous Act, such as abuse of children, inadequate facilities as well as lack of proper care and protection in these juvenile institutions. The increasing rate of crimes in the age range of 16–18, as per National Crime Records Bureau data, forced a rethink and found the previous Act ill-equipped[11].
The Secretary, Ministry for Women and Child Development, emphasised that the juvenile justice system was based upon the principle of restorative justice and that children would be provided with reformative measures[12].
Important Provisions — Before getting into critical aspects of the Act, it is necessary to have a quick run-through of the salient provisions of the Act.
Section 3 enlists the various general principles of law which are required to be followed in the administration of the Act[13]. Prominent among these are: the principle of presumption of innocence wherein all children are presumed to be innocent of any criminal intent, the principle of dignity and worth, the principle of best interest, the principle of non-waiver of rights, the principle of repatriation and restoration, the principle of a fresh start and the principle of natural justice.
The most important change brought through this Act is the lowering of age from 18 to 16 for juveniles committing heinous crimes. This clause has been introduced to act as a deterrent for child offenders[14]. However, the impact and scientific backing of the move is quite ambiguous. Earlier, all children below the age of 18 years were treated equally. Now, the Act also permits a juvenile between 16–18 to be tried as an adult for serious offences if caught by investigative agencies post turning 21 years old, which is a significant departure from the earlier statute.
The Act mandates that when a child is apprehended by the investigative agencies on allegations of conflict with law, he/she has to be produced before the Juvenile Justice Board (JJB)[15] within a period of twenty-four hours. A JJB consists of a Metropolitan Magistrate and two social workers, with one of them being a woman[16]. It is the role of the Board to ensure that the rights of the child are protected throughout the process and that the child and the parent/guardian are kept informed of the happenings[17].
Under section(s) 14 and 15, the Board is entrusted with the duty to hold a preliminary assessment into the nature of the offence and dispose of the case by taking action under relevant provisions of section(s) 17 and 18. Section 15 deals with the assessment to be conducted in cases of heinous crimes committed by a child above sixteen years of age. The Board is to perform an enquiry to determine the child’s “mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence.[18]” If the child is found guilty of a heinous offence, then the Board may find that there is a need to conduct a trial of the child as an adult and transfer the case to the Children’s Court.
After introduction in the Lok Sabha, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development for examination and report. The Committee tabled its 264th report on the Juvenile Justice Bill, 2014 in the Lok Sabha on 25th February, 2015.
C) Critical Analysis
At the outset, the Standing Committee Report states that the process of consulting and obtaining feedback from stakeholders was duly conducted by the Government. However, closer scrutiny reveals that major concerns such as those pertaining to provisions of children in conflict of law and the entire rationale behind repealing the Act of 2000 have not been given due consideration by the Ministry[19]. The Committee expressed its displeasure and dismay at the Ministry for not having taken into account the suggestions and concerns sent in by stakeholders while drafting the legislation.
The primary area of examination in the Act is that of the children in conflict with law. One of the reasons cited behind bringing down the age of juveniles for heinous crimes from 18 to 16 is the NCRB data on rise in crimes committed by children in this age group. The Ministry has relied on and interpreted this data without discerning the lacunae evident in it. According to the data, a total of 1.2% of all crimes in India are committed by juveniles, a minuscule number. Moreover, this percentage had hovered around the same figure over the years when the Act was drafted. The number of children booked for heinous crimes in 2012 stood at 6747 and in 2013, it rose marginally to 6854. To compare, the child population between the age of 16–18, as per the last census data, was over a staggering six and a half crores[20]. Minna Kabir, a child rights activist, adds that if one analyses the data further then around half of the cases turn out to be love affairs which are pressed as rape charges and another third of the cases can be attributed to a lack of sex education[21].
In this scenario, it is quite surprising that the government chose to re-enact the Juvenile Justice Act, 2000. Questions that are being raised on the entire rationale of the re-enactment are not entirely farcical. One of the reasons that could have been behind the government’s eagerness to bring in the new law is the public and media pressure that piled up post the 2012 Delhi rape. In essence, this move appears to be a populist measure, one with the objective of securing the vote bank, rather than one based on the actual need to amend the law. There is no scientific research to prove that jailing minors for heinous offences would provide a positive outcome in the form of a deterrent to future child offenders. In fact, studies from the US have proved that spending twenty years in jail is not at all beneficial for a juvenile. The US Department of Justice revealed in 2012 that putting juveniles in trial under the adult system did not act as a deterrent[22].
It is pressing to note that it is primarily the socially and economically backward sections of society that this legislation will torment — the poor, illiterate children who are deprived of proper education and opportunities, who face discrimination and disarray, leading them to a life of crime at a tender age. Psychologists believe that it is very easy for a young, adolescent mind to be led astray and it is equally easy to bring them back to the right path. It is well documented by scientists that the brains of young adolescents in the age range of 16–18 are not fully developed, very volatile and impulsive. These findings have to factored in when surveying the data on crime rates. The solution lies in education, not in punishment. The Bombay High Court, in the case of Mumtaz Ahmed Nasir Khan v. State of Maharashtra, held that the juvenile justice system is meant to be reformative and not punitive[23]. The Court commented that it ought to be more than just evaluating the child’s capacity to commit the offence as the purpose of the system is to save the child and reform, not retribute.
Faizan Mustafa, Vice-Chancellor of NALSAR, commented that “No child should go to prison. The government should not act in haste to satisfy the so-called conscience of society,” adding that it would be a regressive measure to try juveniles under the adult criminal law[24]. Expressing concern on the data being relied upon, he said “In 2012, India had approximately 434 million children below 18, of which about 40 per cent were vulnerable to committing crimes. It is being said that there is a spike in crimes committed by children… This is totally false. Out of the total crimes committed, crime rate by children constituted only 1.2 per cent.[25]”
The second challenge that this Act faces is that the scope of term ‘heinous crime’ has not been clearly laid out. Under the Indian Penal Code, heinous crimes include all those crimes for which the minimum punishment is imprisonment for seven years or more. Under this classification, even counterfeiting, cheating, arson, theft and trafficking come under heinous crimes. The Centre for Child and the Law, NLSIU has compiled a list of all offences fitting into the definition of heinous crimes under the IPC, Commission of Sati (Prevention) Act, Narcotic Drugs and Psychotropic Substances Act, Unlawful Activities (Prevention) Act and others[26]. This is very ambiguous and given that the principle of fresh start is not applicable in such cases, more clarity is necessary. It is the researcher’s opinion that the provision for reducing age of juvenility in heinous crimes be restricted to gruesome acts such as murder and rape, subject to facts of each individual case.
The Justice S. Verma Committee report found itself against the move of reducing the age for juveniles from 18 to 16 in cases of heinous crimes. The report cited the Convention on Rights of Child which mandates that life sentence should not be given to those below eighteen years of age[27]. The age of 16–18 is a critical one, where many sensitive and hormonal changes take place and children require greater protection. Therefore, there is no need to subject juveniles to the adult judicial system as it also goes against Article(s) 14 and 15(3) of the Indian Constitution[28].
The next bone of contention is another clause through which a person of age more than 21 can be tried as an adult for serious offences he/she committed as a juvenile. This provision violates Article(s) 14 and 20 of the Constitution and is also morally wrong as it tries to punish the juvenile for failure of the investigative agencies. Another blatant violation of natural justice is found in section 15 of the Act. This section prescribes the JJB to conduct an assessment into the capacity of the juvenile to commit a crime. It is essential to understand that the language of this section presumes the child to be guilty from the beginning, regardless of whether he/she actually committed the crime or not. This appears to be a case of sentencing before guilt and is against the test of procedural fairness, which is an integral part of due process (Maneka Gandhi v. Union of India), as it introduces a bias against the child from the start. It is in contravention of the principle(s) of presumption of innocence and best interests which must be followed in administration of the Act. Another criticism of the decision of the government to repeal the 2000 JJ Act is that the Supreme Court of India, in cases of Salil Bali v. Union of India[29] and Subramaniam Swamy v. Raju, had upheld the constitutionality of the Act, mandating that all children in conflict with law be dealt with equally irrespective of the gravity of their offence.
Conclusion
It is the need of the hour to bring about reforms in the way our juvenile justice system works. The Juvenile Justice (Care and Protection of Children) Act, 2015 however, is not the answer to this puzzle. Enabling the trial of children as adults and penalising them effectively destroys their lives in such a manner that does not even afford them a chance to reform themselves for mistakes they committed as naïve children. India’s justice system has always been reformative in the sense that it strives to restore the criminals back to society, not as fringe elements but as good Samaritans. It is necessary to understand how the transformation of children into the world of crime can be stopped at the grassroots. This is where the role of juvenile homes comes in.
Juvenile homes must be created in a manner where delinquents have the opportunity to tune themselves with the rest of the society. They must receive the opportunities to reform and be educated, to be ready to make the plunge back into civilised society and live an honourable life. In Sangli, a programme called ‘Disha’, has been turning around the lives of juveniles. With focus on rehabilitating them, the observation home has recorded a number of success stories by training and providing employment to such youth. The process of rehabilitation involves a multi-faceted psychological approach towards confidence building and employability, at the end of which the juveniles are ready to face challenges of everyday life[30].
The changes in the law regarding age of juveniles have been introduced out of fear that the increasing crime rates by juveniles would hamper the growth of society. These unfounded and baseless perceptions have made the legislators take a tough stance on the law for juveniles. Juveniles only make up for a small portion of the total crimes in society and there has not been a large increase over the years in these numbers. Therefore, the focus should not be on tougher laws, rather on proper implementation of the existing ones. The infrastructure currently in place is not enough for carrying out proper implementation and there is a severe dearth of resources. Instead of acting upon public uproar, the government should have ascertained its responsibility and dealt with the crumbling juvenile frameworks. While it cannot be disputed that incidences of gruesome crime at the hands of children are on the rise, the solution does not lie in jailing these children, but in educating and rehabilitating them.
Footnotes
[1] Rashme Sehgal, Does the Juvenile Justice Act Need Amendment? https://www.rediff.com/news/column/does-the-juvenile-justice-act-need-amendment/20140728.htm, (28–07–19, 23:29).
[2] Ved Kumari, Current Issues in Juvenile Justice in India, 41JILI (1999), pg. 393.
[3] Ibid.
[4] Suman Kakar, Juvenile Justice and Juvenile Delinquency in India, The Handbook of Juvenile Delinquency and Juvenile Justice, 1st ed. 2015, pg. 52.
[5] Gupta, S. Juvenile Delinquency Versus Juvenile Justice System, Social Defense, July, 1992 p.24–25.
[6] Article 1, United Nations Convention on the Rights of Child, 1989.
[7] Suman Kakar, Juvenile Justice and Juvenile Delinquency in India, The Handbook of Juvenile Delinquency and Juvenile Justice, 1st ed. 2015, pg. 52.
[8] (2000) 5 SCC 488.
[9] B.B. Pande, Rethinking Juvenile Justice: Arnit Das Style, (2000) 6 SCC (Jour) 1.
[10] Preamble, The Juvenile Justice (Care and Protection of Children) Act, 2015.
[11] Statement of Objects and Reasons, The Juvenile Justice (Care and Protection of Children) Bill, 2014.
[12] 264th Report, Parliamentary Standing Committee on Human Resource Development, 25th February, 2015, pg. 11.
[13] Section 03, The Juvenile Justice (Care and Protection of Children) Act, 2015.
[14] Meenal Thakur et al., Rajya Sabha Passes Juvenile Justice Bill, LiveMint, https://www.livemint.com/Politics/PYP4WQTleLGAhW2rodttIP/Juvenile-Justice-Bill-passed-in-Rajya-Sabha.html, (30–07–19, 20:20).
[15] Section 10, The Juvenile Justice (Care and Protection of Children) Act, 2015.
[16] Section 04, The Juvenile Justice (Care and Protection of Children) Act, 2015.
[17] Section 05, The Juvenile Justice (Care and Protection of Children) Act, 2015.
[18] Section 15, The Juvenile Justice (Care and Protection of Children) Act, 2015.
[19] 264th Report, Parliamentary Standing Committee on Human Resource Development, 25th February, 2015, pg. 15.
[20] Rashme Sehgal, Does the Juvenile Justice Act Need Amendment? https://www.rediff.com/news/column/does-the-juvenile-justice-act-need-amendment/20140728.htm, (30–07–19, 23:17).
[21] Ibid.
[22] Rashme Sehgal, Does the Juvenile Justice Act Need Amendment? https://www.rediff.com/news/column/does-the-juvenile-justice-act-need-amendment/20140728.htm, (30–07–19, 23:17).
[23] Sadaf Modak, Juvenile Justice Act reformative, not retributive, says Bombay High Court, https://indianexpress.com/article/cities/mumbai/juvenile-justice-act-reformative-not-retributive-says-bombay-high-court-5835359/, (30–07–19, 23:55).
[24] Proposed Juvenile Justice Bill not in Children’s Interest, https://www.india.com/news/hyderabad/proposed-juvenile-justice-bill-not-in-childrens-interest-207963/, (30–07–19, 23:25).
[25] Ibid.
[26] Shalini Nair, The Many Heinous Crimes that make a Juvenile an Adult, https://indianexpress.com/article/explained/the-many-heinous-crimes-that-make-a-juvenile-an-adult/, (31–07–19, 00:27).
[27] Justice Verma panel against reducing Juvenile Offender’s Age, https://timesofindia.indiatimes.com/india/Justice-Verma-panel-against-reducing-juvenile-offenders-age/articleshow/18158335.cms, (31–07–19, 00:48).
[28] 264th Report, Parliamentary Standing Committee on Human Resource Development, 25th February, 2015.
[29] (2013) 7 SCC 705.
[30] Smita Nair, Justice League: An Attempt to Institutionalise Juvenile Reform and Rehabilitation, https://indianexpress.com/article/india/juvenile-justice-correctional-home-rehabilitation-5857362/, (31–07–19, 00:16).
