“Lets figure out ways of keeping our children out of the juvenile justice system and in the classroom so that they thrive. Because if you are in the juvenile justice system, the chances of going into the adult penal system are greatly increased.”
…Valerie Jarret
Children are the pillars of every progressive society and are considered to be the future builders of the modern world, henceforth are the supreme assets of any country and therefore every effort should be made to overcome the problem of juvenile delinquency generated with the advent of modernization and urbanization. Today crimes by children or in other words crimes by juveniles is not only unbridled but is exhibiting a very brutal color of mind set of these young offenders. The problem of juvenile delinquency is undoubtedly tragic to human interest as it is not only confined to our country but also cuts across national boundaries. Juvenile delinquency laws are inadequate to the extent of determining the age of juvenile when the offence is committed. The concept of juvenile delinquency to widen its limits has drawn adverse criticism on the ground that it is neither necessary nor desirable to use police and courts in private matters which can be well tackled by family themselves. All nations whether it be developed or under-developed desires their youth to refrain from any kind of criminal or anti-social or terrorist activities and therefore, these nations are constantly defining and re-defining their local laws which can ameliorate the future of juveniles. Juveniles are future of tomorrow and the need of the hour is to save our future generations from going astray. With change in time and nations on the road to development, there is a drastic change in the offences committed by juveniles, what to say, from theft to dacoity, murders, rapes, hacking, cyber-crimes, terrorism and many other un-imaginable activities. The purpose behind any juvenile law is not to punish a juvenile but is to safeguard him against the evils of crime society. Another aspect of Juvenile law is to reform and rehabilitate juveniles so as to evolve themselves as crime-free human beings. Also, through punitive measures, to act as a deterrent to habitual young offenders.
The first legislation concerning juveniles was the Apprentice Act, 1850 which provided that children in the age group of 10- 18 years convicted by courts to be provided with some vocational training which might help in their rehabilitation and reformation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought forth the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively. The three pioneer statutes (i.e. Acts concerning Madras, Bengal and Bombay) were extensively amended between 1948 and 1959.
Thereafter, the Central enactment, The Children Act, 1960 was passed to cater to the needs of the Union Territories. To remove some inherent lacunas in the above mentioned Act, The Children (Amendment) Act was passed in 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in forums, including Parliament but it could not be enacted on the ground that the subject matter of such a legislation fell in the State List of the Indian Constitution. To bring the operations of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), Parliament seems to have exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make laws for the whole of India to fulfill International obligations. On 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok Sabha.
Its objects and scope were straight and clear that a review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who are found in situations of social ill-treatment, destitution or neglect. The justice system available for adults was not considered appropriate to be applied to juveniles. It was felt that a uniform juvenile justice system should be adopted which could provide for adequate provisions in the changing social, cultural and economic scenario of the country.
The provisions contained in the Juvenile Justice Act, 1986 replaced the corresponding laws on the subject such as Children Act, 1960 and other State enactments on the subject.
As per The Juvenile Justice Act, 1986, the age for a female to be treated as juvenile was 18 years and that of a male was 16 years. Also, apart from the need for a uniform Act regarding children, the Juvenile Justice Act, 1986 was a result of Sheela Barse v. Union of India, 1986 (2) Scale 1.
Though, The Juvenile Justice Act, 1986 came into existence but still there existed loopholes and lacunas and as expected the Act of 1986 could not pass the test of time and had to make way for a new Act that is The Juvenile Justice (Care and Protection of Children) Act, 2000. Under this Act the age was made uniform for both Male and Female. This Act provided for a special approach towards the prevention and treatment of juvenile delinquency and provided a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. This law was brought in compliance to the 1989 United Nations Convention on the Rights of the Child (UNCRC), repealing the earlier Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992.
Since, there were few grey areas where this new Act was silent and not expressive in dealing with certain issues most importantly determining the age of a juvenile offender, the landmark judgment of the Hon’ble Supreme Court of India by a Constitutional Bench in the case titled as Partap Singh v. State of Jharkhand, 2005(3) SCC 551. was pronounced addressing this issue in detail and held that “reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court”. Thus, in light of the above decision by the Hon’ble Apex Court, the law pertaining this issue was amended.
The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 came into force on 22nd August 2006. This amendment provided a hope to those juveniles who were more than 16 years of age when the alleged crime had taken place and the old Act i.e. The Juvenile Justice Act, 1986 was in operation. When, The Juvenile Justice (Care and Protection of Children) Act, 2000 came, the age was increased to 18 years from 16 years pending trial. Therefore, this anomaly was removed by way of insertion of a special explanation in Section 20 of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. However, this provision of law happened to be misused by juveniles in their favour and the country witnessed nation wide heinous crimes committed by juveniles. The offenders in a way understood the shield provided by the amended Act.
The Constitution of India recognizes special status of children through Articles 15(3), 21A, 24, 39(e), 39(f) and 45.
The unfortunate and barbaric gangrape incident of Delhi (Nirbhaya case of 16th December, 2012) which shook the entire nation brought forth the existing lacuna in the present juvenile law. It was due to this incident the existing juvenile law suffered a nationwide criticism owing to its helplessness against crimes where juveniles especially between the age group of 16-18 years, get involved in heinous crimes like rape and murder. Following the sequence of events due to Nirbhayas case, an urgent need for a change in the present law was felt where 16 years or 17 years old were intended to be tried as adults. In 2015, responding to the public sentiment, Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by Parliament of India amidst intense controversy, debate and protest on many of its provisions by Child Rights fraternity. It replaced the Indian Juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed juveniles in conflict with law in the age group of 16-18 years, involved in heinous offences, to be tried as adults. Under the said law, the Juvenile Justice Boards comprising a metropolitan magistrate or a judicial magistrate and two social workers had the discretion to decide whether the offender should be tried by courts of law like adults or whether the offender should be tried as a juvenile. The new bill introduced concepts from The Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993[1] which were missing in the previous acts. The bill also sought to make the adoption process of orphaned, abandoned and surrendered children more streamlined. The lower house, i.e. Lok Sabha passed the bill on May 7, 2015 and the upper house, i.e. Rajya Sabha on December 22, 2015. The bill was given assent on 31st December, 2015 by the President of India and came into force from 15th January, 2016.
Thus, the new Act has been enacted to give effect to Indias international obligations arising from three international conventions to which India is a signatory namely, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), UN Convention on the Rights of Child (CRC) & United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules, 1990).
The American Juvenile Justice System is the system intended to regulate and address youths who are caught and convicted of crimes. The juvenile justice system intervenes in delinquent behavior through police, court and correctional involvement, and is largely punitive. Offending youths and their parents or guardians can face a variety of consequences including probation, community service, youth court, youth incarceration and alternative schooling. The juvenile justice system, similar to the adult system, operates from a belief that intervening early in delinquent behavior will deter adolescents from engaging in criminal behavior as adults.
In the United States of America, the definition of juvenile varies from State to State. The juvenile system applies to anyone between the age of 6-10 years depending upon the State. However it is 18 years except for eleven States (Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, South Carolina, and Texas) where a juvenile is a person under the age of 17 years and for the States of New York and North Carolina it is under 16 years. So the criminal majority begins at 16, 17 or 18 years. The traditional age of majority is 18 years and nearly all states permit persons less than 18 years to be tried as Adults.
The history of law in the United States was heavily influenced by the common law of England, which governed the American colonies. William Blackstone was one of the most important English lawyers of that time and his Commentaries on the Laws of England, first published in the late 1760s, were widely read and admired by founder fathers of the United States. “Infants” and “Adults” at Common Law is one of his Commentaries, where he has identified people who were incapable of committing a crime. According to him, there were two things which required to hold someone accountable for a crime. Firstly, the person had to have a “vicious will” i.e., the intent to commit a crime and Secondly, the person had to commit an unlawful act. If either the will or the act was lacking, no crime was committed. The first group of people Blackstone identified as incapable of committing a crime were “infants”. These were not infants in the modern sense of the word, but children too young to fully understand their actions. Blackstone and his contemporaries drew a line between “infant” and “adult” at the point where one could understand ones actions. Children under the age of seven were as a rule classified as infants who could not be guilty of a felony (a felony is a serious crime such as burglary, kidnapping, or murder). However, children over the age of 14 years were liable to suffer as adults, if found guilty of a crime. Between the ages of seven and fourteen was a grey zone. A child in this age range was presumed incapable of crime. If, however, it appeared that the child understood the difference between right and wrong, the child could be convicted and suffer the full consequences of the crime. These consequences could include death in a capital crime. (A capital crime is a crime for which one might be executed).[2]
During the nineteenth century, the treatment of juveniles in the United States started to change. Social reformers began to create special facilities for troubled juveniles, especially in large cities. In New York City, the Society for the Prevention of Juvenile Delinquency established the New York House of Refuge to house juvenile delinquents in 1825. The Chicago Reform School opened in 1855. The reformers who supported these institutions sought to protect juvenile offenders by separating them from adult offenders. They also focused on rehabilitation trying to help young offenders avoid a future life of crime. In 1899, the first juvenile court in the United States was established in Cook County, Illinois. The idea quickly caught on, and within twenty-five years, most states had set up juvenile court systems. The early juvenile courts shared with reform schools; the same desire to rehabilitate rather than to punish juvenile offenders. They were based on the legal doctrine of parens patriae.[3] In line with their “parental” role, juvenile courts tried to focus on the “best interests of the child”. They emphasized an informal, nonadversarial, and flexible approach to cases. There were few procedural rules that the courts were required to follow. Cases were treated as civil (non-criminal) actions and the ultimate goal was to guide a juvenile offender toward life as a responsible, law-abiding adult. The juvenile courts could, however, order that young offenders be removed from their homes and placed in juvenile reform institutions as part of their rehabilitation program.[4]
All the states adopted juvenile policies relating to decriminalization and deinstitutionalization during the 1970s and 1985. However such policies were not long lived and in the mid 1980s due to change in the nature of crime by young offenders, increase in violence etc criminalization of delinquents were revived. During the early 1990s, several states in US had called for special legislative session to deal with youth crime. Presently, in United States, slogan “adult crime adult time” is being adopted.
Beginning in the 1960s, the United States Supreme Court heard a number of cases that profoundly changed the proceedings in the juvenile courts. The first of these cases was Kent v. United States.[5] It was held that the Juvenile Court order waiving jurisdiction and remitting petitioner (Morris A. Kent Jr.) for trial in the District Court, was invalid.
In re Gault, 387 U.S.1 (1967). was a landmark U.S. Supreme Court decision in which the Primary Holding was that, the Due Process Clause[6] of the 14th Amendment[7] applies to juvenile defendants as well as to the adult defendants. Juveniles accused of crimes in a delinquency proceeding must be afforded many of the same due process rights as adults, such as the right to timely notification of the charges, the right to confront witnesses, the right against self-incrimination and the right to counsel.
Presently in 45 states, the maximum age of juvenile court jurisdiction is of 17 years. Five states Georgia, Michigan, Missouri, Texas and Wisconsin now draw the juvenile/adult line at the age of 16 years. Missouri raised the age of juvenile court jurisdiction to the age of 17 years in 2018 and the law will be into effect from January 1, 2021.
On a concluding note, I would like to quote some lines by Qorianka Kilcher who has beautifully summed up what I intend to express through this article.
“I think its important for us as a society to remember that the youth within juvenile justice systems are, most of the time, youths who simply havent had the right mentors and supporters around them because of circumstances beyond their control.”
Todays juvenile justice system still maintains rehabilitation as its primary goal and distinguishes itself from the criminal justice system in important ways. In the United States, with a few exceptions, in most of the states juvenile delinquency is defined as the commission of a criminal act by a child who was under the age of 18 years at the time when the offence was committed. Most states also allow youth to remain under the supervision of the juvenile court until the age of 21 years. In all States, the legal status of a young person charged with an illegal act is largely determined by the persons age, but the exact definitions are governed by State law. Whatever age is specified by State law as the upper age limit of original juvenile jurisdiction, young people who commit offences after that age are automatically under the jurisdiction of the criminal (adult) court. Whatever happens to them as a result of being arrested is outside the purview of the juvenile justice system. States may also set a lower boundary for the age of original juvenile court jurisdiction. Children below the specified age do not fall within the jurisdiction of the juvenile courts when they commit delinquent acts. Such matters are referred to a child welfare or social services agency.
India has the distinction of having the largest child population as against any country in the world, with approximately 450 million children under the age of 18 years as per the statistics of UNICEF-India.
The Juvenile Justice (Care & Protection) Act, 2015 is considered to be extremely progressive legislation and the Model Rules, 2016 have further added to the effectiveness of this welfare legislation. However, the implementation is a very serious concern and thus the Supreme Court of India constantly reviewed and monitored the implementation of this law in the case titled as Sampurna Behrua v. Union of India, (2018) 4 SCC 433. and Bachpan Bachao Andolan v. Union of India, (2011) INSC 403.
The Hon’ble Supreme Court vide its order dated 09.02.2018 passed in Writ Petition (Civil) No.473 of 2005, in the case of Sampurna Behrua (Supra), issued various directions to be complied with by the High Courts and other authorities. One of the direction was related to registration of proceedings on its own by the High Courts for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that road blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities. Accordingly, Hon’ble the Chief Justice of Punjab and Haryana High Court initiated suomotto proceedings in case Civil Writ Petition No.5315 of 2018 (Public Interest Litigation) vide order dated 01.03.2018. It is my privilege as an Advocate to have assisted the Hon’ble Bench and apprising it as to what measures regarding juvenile laws have been taken by the respective State Governments and what it intends to do in future.
In addition to the Hon’ble Supreme Court, the Hon’ble High Courts of Bombay and Allahabad are also monitoring the implementation of the Juvenile Justice Act through judicial proceedings. In order to upgrade the Juvenile Justice Administration System, the Government of India launched the Integrated Child Protection Scheme (ICPS) in 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme.
Based on a resolution passed in 2006 and reiterated in 2009 in the Conference of Chief Justices of India, several High Courts have constituted “Juvenile Justice Committees” headed by sitting judges of High Courts. These committees supervise and monitor implementation of the Act in their jurisdiction. In this way, just like other nations the law makers in India are also striving to achieve a cordial balance between the juvenile and the juvenile laws.
Thus, it is perceived that there is a constant need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of juveniles.
[1] The Hague Convention on Protection of children and Co-operation in Respect of Inter-country Adoption (or Hague Adoption Convention) is an international convention dealing with international adoption, child laundering, and child trafficking in an effort to protect those involved from the corruption, abuses, and exploitation which sometimes accompanies international adoption. (Drafted on 29th May, 1993 and Effective from 1st May, 1995).
[2] https://www.americanbar.org/content/dam/aba/migated/publiced/features/DYJpart1.authcheckdam.pdf accessed on 17th February, 2019 at 12:33 PM.
[3] A latin term that means “parent of the country”. The parens patriae doctrine gives the state the power to serve as the guardian (or parent) of those with legal disabilities, including juveniles.
[4] https://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf accessed on 17th February, 2019 at 12:41 PM..
[5] 383 U.S. 541 (1966); Morris A. Kent Jr., a 16-yearold boy, was detained and interrogated by the police in connection with several incidents involving robbery and rape. After Kent admitted some involvement, the juvenile court waived its jurisdiction. This allowed Kent to be tried as an adult. Kent was indicted in district court. Kent moved to dismiss the indictment because the juvenile court did not conduct a “full investigation” before waiving jurisdiction, as required by the Juvenile Court Act. A jury found Kent guilty and sentenced him to serve 30-90 years in prison. The U.S. Court of Appeals for the District of Columbia Circuit affirmed.
[6] Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses more broadly, concluding that these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
[7] The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection all of which are contained in Section One. However, the Fourteenth Amendment contains four other sections. Section Two deals with the apportionment of representatives to Congress. Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office. Section Four addresses federal debt and repudiates debts accrued by the Confederacy. Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.” The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War.
[8] Teigen Anne, “Juvenile Age of Jurisdiction and Transfer to Adult Court Laws”, National Conference of State Legislatures (11th January, 2019), retrieved from <
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“There can be no keener revelation of a society’s soul than the way in which it treats its children”
Nelson Mandela
Children are the greatest gift to the humanity and they are representative of the beautiful creation of god. They are most tender, gentle and fragile one and needs to be handled and protected with immense care and delicacy. Child labour is the practice of having children engages in economic activity, on a part or full time basis. The practice deprives children of their childhood, and is harmful to their physical and mental development. Poverty, lack of school and the growth of the informal economy are considered to be the key causes of child labour in India.The practice is considered exploitative by many international conventions. The legislations across the World also prohibit child labour. These laws do not consider all work by children as child labour, exceptions include work by the child artists, family duties, supervised training etc. The vast majority of child labour is found in rural settings. and informal urban economy. Many efforts had been put at both national and international level by adopting various enactments and conventions to tackle this problem.
A majority of countries have adopted various legislations to prohibit or placed severe restrictions on the employment and work of children, much of stimulated and guided by standards adopted by the International conventions.
Many efforts had been taken at international level to curb this problem which may be discussed under following headings :-
Child labour is considered exploitive by the United Nations. The instruments for the protection and welfare of the children are as follows :-
(a) The UN Declaration of the Rights of Child, 1959
In 1959, the United Nations Assembly adopted the Declarations of the Right of the Child. It marked the first major international concensus on the fundamental principles of children’s rights. The General Assembly affirmed that the child has the right to special protection for physical, mental and social development.
(b) The International Covenant on Economic, Social and Cultural Rights, 1966
The International treaty adopted by the United Nations General Assembly on 16 December 1966, and came into force from 3 January 1976, it reaffirms the principles of the Universal Declaration of Human Rights with regard to economic, social and cultural rights. It commits the parties to set age limit below which the paid employment of child should be prohibited and punishable by law.
(c) The International Year of Child, 1979
In 1976, during the 31st session of the United Nations General Assembly, 1979 was proclaimed as the International Year of the child with the following objectives:-
•To provide framework of advocacy on behalf of children for enhancing the awareness of the special need of children.
•To promote recognition of the fact that programmes for children should be an integral part of economic and social development.
(d) The UN Conventions on the Right of Child, 1989
It is a human right treaty which sets out the civil, political economic, social, health and cultural right of children. The convention defines a child as any human being under the age of eighteen years, unless the age of majority is attained earlier under national legislations.
International Labour Organization Instruments
ILO is an important specialized agency of the United Nations, which is working for the protection of children from exploitation and for the betterment of the conditions of labour throughout the world.
The efforts made by ILO to combat child labour are:-
(1) The Minimum Age (Trimmers and Stokers) Convention, 1921 (No. 15)
It provided that young persons under the age of eighteen years shall not be employed or work on vessels as trimmers or stokers.
(2) The Minimum Age (Underground Work) Convention, 1965 (No. 123)
The employment in underground mines which by their nature or the circumstances in which they are carried on are dangerous to the life, health, or morals of persons employed there in must be prohibited below the age of fifteen years of age.
(3) The Minimum Age for Admission to Employment Work, 1973 (No. 138)
One of the most effective methods of ensuring that children do not start working too young is to set the age at which children can legally be employed or otherwise work.The fundamental convention sets the minimum age for admission to employment or work at fifteen years for light work and the minimum age for hazardous work at eighteen.
(4) The Worst Forms of Child Labour Convention, 1999 (No. 182)
This fundamental convention defines child, “as person under eighteen years of age. It requires ratifying States to eliminate the worst forms of child labour.
(5) The Domestic Workers Convention, 2011(No. 189)
On 16 June 2011, convention was adopted by Internationals Labour Organization. Article 3 Clearly specify that each member States shall promote rights at work, namely :-
•The elimination of all forms of forced or compulsory labour
•The elimination of discrimination in respect of employment and occupations.
Elimination of child labour is a key component of UNICEF’S Policy. UNICEF has adopted the following objectives to deal with the problems of child labour :-
•To promote compulsory primary education.
•To implement programmes for the rehabilitation of child labour.
•To strengthen alliances between media, industry and the legal set up for social mobilization in support of elimination of child labour.
Government of India has passed a number of enactments to eradicate child labour. Some of the significance legislations are mentioned below :-
(1) The Employment of Children Act, 1938
The Act was enacted to regulate the employment of children in a certain industrial establishments and was amended by the Employment of Children (Amendment) Act, 1978. This Act prohibits employment or permission of child to work in any work connected with the transport of passengers, goods or mail by railways etc., who has not completed fifteen years of age.
(2) The Factories Act, 1948
The Act is applicable to any factory where in ten or more workers are working in any of which a manufacturing process is being carried on with the aid of power. Section 23 defines that no young person below fourteen years is allowed to be employed in dangerous machines.
(3) The Plantations Labour Act, 1951
The Act applies to any land used or intended to be used for growing tea, coffee, rubber, cinchona or any other plantations which measures 5 hectares or more and in which 15 or more workers are employed.The children below the age of fourteen years shall not be employed in plantations.
(4) The Mines Act, 1952
It has been provided in the Act, that no person below the age of fifteen years shall be allowed to be present in any part of a mine where any mining operation is being Carried on.
(5) The Motor Transport Workers Act, 1961
The Act prohibited the employment of children below fifteen years of age in motor transport undertakings.
(6) The Beedi and Cigar Workers (Conditions of Employment) Act, 1966
The Act prohibits the employment of young persons below fourteen years of age in industrial premises, where any manufacturing process connected with the making of beedi or cigar is carried on irrespective on the number of persons employed.
(7) The Child Labour (Prohibition and Regulations) Act, 1986
The Act, states that its main aim is to prohibit the engagement of children below fourteen years of age in certain employment and to regulate the conditions of work of children in certain other employments such as beedi making, soap manufacture, building and construction industry etc.
(8) The Child Labour (Prohibition and Regulation) Amendment Act, 2016
The Act prohibits the employment of children below Fourteen years of age in all occupations and of adolescents between Fourteen and eighteen years of age in hazardous occupations and process.
(9) The Right to Free and Compulsory Education Act, 2009
The Act makes education a fundamental right of every child between the ages of six and fourteen and specifies minimum norms in elementary school.
The issue of child labour has become one of the most sensitive and debated issue on the issue of rights of children. It is not a new phenomenon or feature peculiar to India- It has been there all over the world. The current causes of global child labour are poverty, limited access to education,unemployment,over population etc. Poverty is one of the important factor for this problem. Hence enforcement alone cannot help to solve it. The international community has shown its concern about the problem of human rights in general and child labour in particular by adopting a number of instruments. The child labour can be stopped when knowledge is translated into legislations and action, moving good intention and ideas into protecting the health of the children. Domestic policies, positive actions for the child’s welfare should be evidenced by way of various international conventions, legislations and judicial interpretations. A comprehensive integrated approach is required to tackle and combat child labour.
REFERENCE
1. Manjula Batra, The International Law and the Indian Child 5(Page Publications, New Delhi, 1990).
2. UNICEF, “Guide to the Convention on the Right of the Child”. Available from: http://www.unicef.org/crc/.,Last accessed on 12-9-2016.
3. U.Chandra, Human Rights 37(Allahabad Law Agency, Allahabad, 2006).
4. The International Covenant on Economic, Social and Cultural Rights, 1966, Article 10.
5. Pragnya Bhattamishra, International Conventions on Child Labour 89(Universal Law Publishing co; New Delhi,, 2012)
6. The United Nations Convention on the Rights of child, 1989, Article 4.
7. The Minimum Age (Trimmers and Stokers ) Conventions, 1956, Article 2.
8. The Minimum Age (Underground Work) Convention, 1956, Article 1.
9. The Minimum Age for Admission to Employment and Work, 1973, Article. 6
10. The Worst Forms of Child Labour Convention, 1999, Article 3.
11. B.K. Sharma, “Child Labour in India-A Brief Discussion,” Labour Law Journal, Vol.1, 2008, pp.199-202.
12. The Employment of Children Act, 1938 (Act No. 26 of 1938), Section 3 (1).
13. The Factories Act, 1948 (63 of 1948), Section 67.
14. The Plantations Labour Act, 1951 (69 of 1951), Section 2 C.
15. The Mines Act, 1952 (35 of 1952), Section 2 (e).
16. The Motor Transport Workers Act, 1961 (27 of 1961), Section 2.
17. The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 (32 of 1966) Section 2 (b).
18. The Child Labour (Prohibition and Regulation) Act, 1986 (61 of 1986), Section 3.
19. The Child Labour (Prohibition and Regulation) Amendment Act, 2016. Section 2(ii).
20. The Right to Free and Compulsory Education Act, 2009(35 of 2009), Section 3.
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Gita, an immigrant from Bihar, has been working in Delhi as a domestic worker since as long as she can remember. Although 40, she is petite and looks severely malnourished. A year ago Gita sent her youngest daughter to work in her place because she was sick and couldn’t afford to miss a day’s salary. All of 15, this girl had studied till class 8, carried the latest mobile phone and had aspirations like most of us do at that age. However she was forced to drop out of school because, according to her, she could get ‘free’ education only till class 8, had to look after her younger siblings (read brothers) when they came back from school, and had been engaged to be married to another 15 year old in Bihar. To me, however, there appeared to be only one reason: our half-hearted investments in the lives of our children, whether it is their education, health, marriage or work. Today, when political parties are fighting a closely contested election in Bihar amidst another ‘development’ rhetoric, I am forced to think of Gita’s story again.
India has many such more Gita’s who are forced everyday to marry their daughters much before they attain the legal age of marriage and can choose for themselves or exercise agency. Our country has the highest number of child brides in the world and the lowest political will to confront this social evil (India’s refusal to sign global resolution on child marriage raises concern, The Hindu, October 26, 2013).
Under the Prohibition of Child Marriage Act (PCMA) 2006, 18 years is the permissible age of marriage for girls and 21 years for boys. The Act, however, has several limitations. For one, it fails to declare that all child marriages are illegal. Second, the Act makes child marriages voidable only when children or guardians seek annulment of the marriage. Third, in doing so, it (mis)places the onus on the child and the parent to seek annulment and not on the State. Given the context of child marriages and the wider culture of marginalization, parents are not used to sending their children to school and getting them married or sending them to work becomes the obvious choice. Here the State has to take on a proactive role instead of holding the parents responsible. Fourth, the Act presumes that the child is able to exercise her agency to say ‘no’ to child marriage. And last, it takes for granted the presence of appropriate support structures and institutions which are essential for a child to defy marriage and also to rehabilitate her. (National Commission for Protection of Child Rights, 2013)
In reality it is unlikely that the parent/ guardian will take the initiative and risk of terminating a marriage and as a result the numbers of child marriages reported and stopped under the Act have been negligible. For instance, in 2010 there were only 60 registered cases of child marriage under the PCMA (Ministry of Women and Child Development, 2012). Even the National Crime Records Bureau 2012 records have shown that the conviction rate concerning child marriage is low. Another reason for this is often attributed to the institution of Child Marriage Prohibition Officers (CMPO) which exists in every State to prevent child marriages, and ensure protection of the victims as well as prosecution of the offenders. “In the data received by the NCPCR from the States regarding the implementation of the PCMA, it was found that in most cases the CPMOs were officers with additional responsibilities such as the DM, SDM, CDPO or BDO and thus could not address several issues pertaining to the prevention of child marriage in the State” (NCPCR, 2013).
Further, the cash transfer schemes introduced by the Central and State governments to help in delaying the age of marriage among girls in the country by incentivizing birth and sustenance of girl children have not been adequately tested and evaluated. These programmes are mainly driven by supplies. Schemes such as the Janani Suraksha Yojana and Indira Gandhi Matritva Sahyog Yojana exclude girls below 19 from maternity benefits thereby penalizing and victimizing child brides further, which is in contravention of the PCMA, and adding to the smugness and denial of our law and policy makers.
According to the 2001 census there were 1.5 million girls in India under the age of 15 already married. Of these, 20% or approximately 300,000 were mothers to at least one child. At the national level, one in every five girls aged 15-17 years and slightly more than half of girls aged 15-24, were married. In all, 47% of India’s girls aged 20-24 were married before the legal age of 18, with 56% from rural areas. Similarly, one in every 17 boys aged 15-20, and more than 80 percent of boys aged 15-24 were married. 40% of the world’s child marriages take place in India, resulting in a vicious cycle of gender discrimination, inter-generational poverty, illiteracy and high infant and maternal mortality rates. The risk of domestic violence, abuse and exploitation inherent in child marriages is well known. Being married early they conceive at a very early stage in their life. In the three years preceding National Family Health Survey-III (2005-06), there were 90 births per 1,000 girls aged 15-19 and 209 births per 1,000 girls aged 20-24, the highest of any age group. (NCPCR, 2013)
Interestingly, the inverse correlation between the attainment of education and the odds of getting married has been pointed out by NFHS-III. An analysis done to identify the determinants of early marriage revealed that “the higher the education the lower the odds that a girl aged 15-17 would be married and the lower the odds that a girl aged 18-24 would have been married before age 18”. Similarly, the proportion of girls who had begun childbearing was about three times as high among girls who had no education as girls who had 10 or more years of education. (NCPCR, 2013)
All of this therefore points fingers at the current legislative and policy framework for child marriage prevention and prohibition. It underrates the importance of education in disrupting the link between work and marriage for young girls and the inter-generational cycle of poverty and marginalization. Parents of these young girls, especially mothers like Gita, who have experienced the impact of early (and untimely) entry into workforce on early marriage and childbirth, and vice-versa, are found to be making an unprecedented demand for education for their children. They are willing to make investments in their children’s education, provided there exists a series of social security measures which ensure the retention of children in schools, and not their sudden drop-out, and enables them to exercise agency.
The last time I met her, Gita’s daughter told me that even if she was to get married, she would make sure that her children continue to study till the time they want and marry as per their choice when they were ready. Silver lining?
© Chawla Publications (P) Ltd.
India has approximately over 385 million children i.e. 42% of its population, the largest for any country in the world, placing an enormous responsibility on the state & nation to rear these, as responsible law abiding citizens. They are the representatives of the future of a nation. However, the dawn of industrialization, urbanization, mobilization, resulting in cultural variations, has eroded the existing protective structure making the juvenile more vulnerable to social maladjustment.[1] Juvenile delinquency is a gateway to adult crime. So every society ought to evolve a proper education, training & guidance, to get their mirth in the society.
The concept of Juvenile Justice as a phenomenon, developed in the 19 century. Earlier no concept of rights of children were adhered to & both the child & adult were treated at par. They were prosecuted in ordinary courts, subjected to same penalties ( death penalty & life imprisonment ) & served their sentence along with hardened, habitual criminals in the same prisons. This led to breeding of young criminals in the cells. However, in the middle of the 19 th century the sufferings of the children, drew the attention of the radical reformist, to bring about a change, for, what a child needs, is not, so much of a reformation as formation.[2] So, the emphasis shifted from protecting the society from a delinquent child, to protecting the child from a delinquent society. This led to the enactment of Children Act of 1960 which was subsequently re-enacted as Juvenile Justice Act, 1986. This act has been repealed by the Juveniles Justice (Care and Protection of Children) Act, 2000.
This Act intends to consolidate and amend the law related 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 this enactment.[3]
Indian Constitution under Article 15(3), Article 39 Cl. (e)&(f), Article 45 & 47, impose a primary responsibility of ensuring the needs of children and of protecting their basic Human Rights. The General Assembly of United Nations, adopted the Convention on Rights of the Child in November, 1989 and laid the standards to be followed by all member States in protecting the interest of the child. It also emphasized on social re-integration of child victims.[4] The new Act has been enacted to meet the international standards prescribed in the Convention on Rights of the Child, United Nations Standard Minimum Rules for the Administration of Juveniles Justice1985, United Nations Rules for Protection of Juveniles Deprived of the Liberty, 1990.[5]
Child in need of care and protection[6] under the Act means –
1) Who is found without any home or settled place or abode and without any ostensible means of subsistence,
2) Who resides with a person (whether a guardian of child or not) and such person –
a) Has threatened to killed or injure the child and there is a reasonable likelihood of the threat being carried out.
b) Has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being, abused or neglected by that person,
3) who is mentally or physically challenged or ill child or children suffering from terminal disease or incurable disease having no one to support or look after,
4) Who has parents or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,
5) Who does not have parent and no one is willing to take care of or whose parent have abandoned him or who is missing and run away child whose parents cannot be found after reasonable injury,
6) Who is being or is to grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,
7) Who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
8) Who is being or is likely to be for unconscionable gains,
9) Who is victim of any armed conflict, civil commotion or natural calamity,
The Act has increased the age of a child to be governed by the Juvenile Act & has deleted the difference between the male & female child. All children who have not completed the age of 18 years will be given the benefit under the Act.
If an inquiry has been initiated against a Juvenile in conflict with the law or a child in need of care & protection & during the course of such inquiry, the Juvenile ceases to be so, than irrespective of the provision under the Act or any other law in force, the inquiry shall continue & orders will be issued in respect of such a person as if he continues to be a Juvenile or a child. Arnit Das v. State of Bihar, 2001 Cri. L.J.4238
Juveniles indulge in deviant behaviour despite the unbridled efforts of the penologists to curb & restrict the menace. It has emerged as a global phenomena & is being dubbed as a social disease by sociologists, psychologist, psychoanalyst, psychiatrists, criminologists & jurist etc. The factors contributing to increase in criminality among youth are –
1. Economics Factors : Background of the juvenile often betray a life of deprivation. They usually hail from low income groups or from socially backward communities. They are forced to break the law generally to survive & indulge in begging, engage in prostitution, shoplifting & other serious crimes. They often become vulnerable & are exploited by the bad elements of the society.
But however among the privileged lot, economic factors work to produce delinquency in a different manner. Rich parents are either too busy to spend time with there children or are so career oriented that they consider spending time with children as wastage. They are willing to buy anything & everything for the child so long he is out of the way or does not demand attention or time. Vested with enormous wealth, absence of parental control, care & affection & with inexperience they plunge into – the world of sin and crime. Neglected, lonely and depressed they find resort in excessive drinking, smoking and drug addiction. They experiment with sex and drugs – ‘the good things in life’ at such a young age. Youth no longer can be perceived as innocent far less angels. They endlessly look for thrills as boredom and loneliness frustrates them. “The thrill for stronger & stronger stimuli is almost like an addiction” which often leads to violence.
2. In a world confronted with cut throat competition, technological changes and cultural variations, juvenile prowl tirelessly for a better deal so as to liberate themselves from the economic strains that there parents were accustomed to. As images of realizing there cherished aspirations play constantly on there mind, failure to achieve makes them violent & aggressive. Further, lack of opportunities or denial of opportunities frustrate them and they do not hesitate to commit the most vulnerable crimes to achieve what they dream & want in life.
3. Disintegration of the joint family system has deprived the child of set values & behavioural codes to conduct himself in a society. They usually deviate & fall prey to mischief mongers who divulge them into delinquency. Juveniles coming from broken homes, polygamous set up & crowded homes usually acquire manipulating, intriguing & hostile tendencies which are usually destructive. Such juveniles usually look for role models outside the family to identify himself with. This hour of identity crisis may tilt the balance in favour of deviant behaviour.[8]
4. Increasing industrialization has resulted in amazing migration of the rural population to the urban areas in an urge to uplift their dwindling socio-economic status, by opting for gainful occupations. Passion to achieve something makes them prone to opt for residing in urban slums and unplanned congested localities.[9] These further make them vulnerable to crime.
The nature and extent of juvenile delinquency has shown a tremendous rise. Approximately 93% of all heinous crime were committed by young novices. A report of the National Crime Records Bureau states that young people in the age group of 14 to 20 years are responsible for 50 % of all crimes committed in the country. A total of 9,339 Indian Penal Code cases were Registered against juveniles during 1998 showing an increase of 18.1 % over 1997.[10] In Special & Local law, cases registered against juveniles went up by 36.2% during 1998 as compared to 1997.[11] Of the total juveniles involved in crime in 1998, 77.5 % were either illiterate or had education only up to primary level.[12] This makes them highly vulnerable to fall prey to temptations, inducement and mechanization by vested groups to embark on a path of criminality.
Juvenile Delinquency should be tackled on the basis of two fundamental assumptions :
(a) Young offenders should not be tried but they should rather be corrected.
(b) They should not be punished but reformed so they should be tried by Juvenile Courts and Neglected Delinquents by Child Welfare Boards.
The Indian Penal Code and the Criminal Procedure Code, 1973 contain special provisions relating to juvenile offenders, their treatment and procedure.
It specifically states that a child below the age of seven is “doli incapex” that is incapable of committing a crime. ‘Nothing is an offence which is done by a juvenile below the age of seven years.’ He is presumed to be innocent in the eyes of law.
‘Nothing is an offence which is done by a juvenile above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct at that occasion.’
It states that whenever an offence is committed by a person who at the time of its commission is below twenty one years of age and offence committed is other than the one punishable with death penalty & life imprisonment, then he should be awarded a lenient punishment depending on his past history, character, circumstances in which he committed the act labeled as an offence and whether he was capable of knowing what he was doing is right or wrong. Whether he was capable of knowing but incapable of appreciating his acts as he was intoxicated without his knowledge. A person can be released on probation for a period not exceeding three years on entering into a bond with or without sureties.
SECTION – 27 lays down a lenient treatment to Juveniles below sixteen years age if they commit an offence other than the one punishable with death or life imprisonment.
To protect and prevent stigmatization and embarrassment, the juvenile is not subjected to the ordinary law courts but are governed by the Control Act i.e. The Juvenile Justice (Care And Protection of Children) Act, 2000 which lays down a different procedure for trial, adjudication and punishment. The consensus is that as far as possible young adult offenders should be saved from the labeling process and the contaminating effect of criminal justice system.
The juvenile justice act 2000 provides for care protection, treatment, development and rehabilitation of Juveniles. The gradual breakdown of the traditional means of societal control particularly in the family and community, the expanding rural urban drift, rapid industrialization has generated a strong tendency for increasing centralization of the authority in the hands of the state to reform irregular behaviour of the juveniles. Every type of juvenile misbehaviour is not to be described as delinquency because it maybe an offshoot of the process of developing or a byproduct of the conditions over which a juvenile himself might have no control. The responsibility vests in state to rationalize policies governing the administration of juvenile justice, on the basis of progressive move towards decriminalization, depenalization, diversion and deinstitutionalization to the extent possible so as to be in consonance with the socio – cultural conditions of the country. The act is divided into Five chapters & seventy sections.
(1) To lay down a uniform legal framework for juvenile justice so as to ensure that a child under no circumstances is lodged in a jail or police lock up.
(2) To spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the preview of juvenile justice system.
(3) To establish norms and standards for the administration of justice in terms of investigation and prosecution, adjudication and disposition, care and protection.
(4) To develop appropriate linkages and co-ordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected & socially maladjusted children.
(5) To constitute special offences in relation to juveniles and provision for punishment.
(6) To bring the juvenile justice system in the country in conformation with the United Nations Standard Minimum Rules for the administration of juvenile justice.
The juvenile justice act contemplates a vigorous use of the inherent potentials of the community for dealing with juveniles indulging in delinquent behaviour so as to bring them within the mainstream of social life. The Act authorizes the state government to constitute Juvenile Justice Board comprising of a judicial magistrate first class and two social workers of which at least one must be a female.[14] A Magistrate will be designated as the principal magistrate. Every magistrate so appointed must have a special knowledge of child psychology. Members must have been actively involved in health, education or welfare activities related to children for at least seven years.[15] Persons appointed as members can be removed by the state government if :-
(1) He has being found guilty of misuse of power.
(2) Has been Convicted of an offence in involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence,
(3) He fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three fourth of the sittings in a years.[16]
There must be at least two members present including the principal magistrate at the time of final disposable of the case. In case of difference of opinion the majority decision shall prevail. The Juvenile Board exclusively has the power to deal with proceeding under the Act.[17]
The court will first determine the age of the juvenile to analyze whether he is to be governed by the Act or under the criminal law of the land. For ascertaining the age of the accused an inquiry has to be conducted by a competent authority by giving equal opportunities to the parties to adduce oral & documentary evidence.[18] Such an inquiry must be conducted within four months[19] unless extraordinary circumstances permit otherwise. This would culminate either in treating him as a juvenile and subject him to the provisions of Juvenile Justice Act 2000 or an adult offender. The court has to determine the fact that which is the material date, the date at the time of commission of the offence or at the time when the juvenile is brought to the court. The court held that the date he is brought before the court is relevant. Arnit Das v. State of Bihar, 2000 SC 2264. The Juvenile apprehended by the police shall be placed under the charge of special Juvenile police unit and then forwarded during the pendency of inquiry to the observation homes. The proof of age is ascertained from entry in the school register. If it is doubtful medical evidence would prevail over it. Sunil Kumar v. State of U.P., 2000 Cri.L.J. 4687. Proceeding pending on the date of the Act will be concluded under the old Act. Lallan Singh v. State of U.P. 2002 (4) All India Criminal Law Reporter 947.
The parents or guidance of the child if found must be present before the Board when the Juvenile is produced.[23] The Probation officer will inquire into the family background.[24] The juvenile can be brought before a competent authority not only by a police officer but by any other person or organization duly authorized. The proceedings of the Juvenile Board are informal, strictly confidential and in the nature of a conference between a judge, probation officer, social worker, child and the parents. The issue is why the child committed an offence and not whether he has done it or not. The act denies access to the press and even the right to counsel is not available unless special permission of the Juvenile Welfare Board is taken. The Board can dispense with the presence of Juvenile. The Juvenile Board is satisfied that an offence has been committed then it can :-
a) allow the Juvenile to go home after advice and admonition.
b) direct the Juvenile to participate in group counseling
c) order the Juvenile to perform community service.
d) order the parents of the Juvenile or the Juvenile himself pay a fine if he is above fourteen years age and earning.
e) direct the Juvenile to be released all probation of good conduct under care of parent or guardian on executing a bond with or without surety for a period not more than three years or make an order directing the Juvenile to be sent to special home if he is over seventeen years but less then eighteen for the period of two years or till he ceases to be a Juvenile. A person can be realized even early if the probation officer submits the report of his good behaviour and reformation.[25] No Juvenile can be sentenced to be death or life imprisonment or sent to a prison in default of payment of fine.[26] The Act forbids joint trials of Juvenile and adults offenders.[27] The powers vested in the Board may be exercised by the High Court and the Court of Session whenever the proceedings come before them in Appeal. Any person aggrieved by the decision of the Juvenile Court can file an appeal within 30 days against the order of conviction to the Court of Session.[28] Decision of the Court of Session is final and conclusive. No second appeal lies. High court can however call for the record to determine its legality.[29] No appeal lies against the order of acquittal passed by a Juvenile court.[30]
A juvenile accused of a bailable or nonbailable offence is arrested and brought before a juvenile court then irrespective of the provisions of Criminal Procedure Code, shall be released on bail with or without surety but shall not be released if there appears a reasonable ground for believing that –
(1) That it is likely to bring him into association with any known criminal or
(2) To expose him to moral danger or
(3) That his release would defeat the ends of justice.[31]
The Act Specifically Prohibits the publication of the name, address or identity of Juvenile.[32] Any Juvenile in conflict with the law if he escapes from the observation or special home then he shall be arrested an brought back to the home no proceeding instituting against him however information will be given to the Board.[33] Any form of cruelty, assault, exposure or willful neglect to a juvenile whether physical or mental is punishable with imprisonment for a term of six months or fine.[34]
Abetment of the offence punishable up to one year and fine.[35] A juvenile suffering from an infectious dangerous disease, in sane, leprosy or addicted to drugs, requiring prolonged medical treatment, maybe sent to an approved place to ensure proper treatment.[36] Whosoever, employs Juvenile for the purpose of begging shall be punished with imprisonment for an term up to three years and fine.[37]
Any one Intoxicate a child or subject him to drugs without the order of the medical practitioner shall be punished with imprisonment for a term of three years and fined.[38] Any one employing a child in hazardous works or keeps in bondage shall be punished with imprisonment for three years and fine.[39] Observation homes not only provides juvenile, facilities for accommodation, maintenance, medical examination and education but also provide vocational training for useful occupation. The state government can release a juvenile from juvenile home & grant him a written license permitting him to live with or under the supervision of any responsible person named in the license who is consenting to take charge of him to educate & train him. Failure would result in revocation or forfeiture of the license. Institutional care is resorted to as a last mode if restoration to parents or guardian, release on advice and admonition, placement on probation or discharge on fine is not considered appropriate. This positive liberal approach provides flexibility in the treatment of the juvenile ensuring behavioural development and responsiveness to therapeutic devices. It also attempts to protect the basic human rights. It is an obligation cast upon the state government and union territory administration to constitute advisory boards to advice on matters related to the establishment and mobilization of the resources and co-ordination among various agencies. This interaction enables the boards to make optimum use of various sectors of socio economic welfare in the development of the juvenile justice system.
The Juvenile Justice Act & The Ministry of Welfare has incorporated a provision for creating a juvenile justice fund. It would be exclusively utilized for the welfare and rehabilitation of juveniles. This can be raised from voluntary donations, contributions by organizations. The Ministry has evolved strategies to provide full coverage to services rendered under the Act. This has resulted in setting up of 27 juvenile welfare boards, 189 juvenile courts, 280 observation homes, 36 juvenile homes & 46 after care homes for juveniles all over the country. Maharashtra having the maximum number of juveniles, has 152 such institutions to handle and reform them. It is followed by Uttar Pradesh and Karnataka at 70 & 52 respectively. The Ministry has proposed to institute various awards to felicitate people working for this noble cause.[40]
The Juvenile Justice Act, 2000 assigns a very sensitive role to the police who is the first representative of the law on streets. The police department is the first agency that comes in contact with juvenile delinquents. This finest experience is the deciding factor in the child’s future conduct. It is therefore important that case of juvenile be handled by expert who is conscious of the role he may be playing in the life of the children, their future and through them the lives of others who would be influenced by social contacts.
The police officer who apprehends a juvenile has to determine whether he is a neglected juvenile or a juvenile delinquent. To determine this he can conduct a preliminary inquiry to ascertain his age & then commence proceedings accordingly under the Juvenile Justice Act or the criminal law. The police has been vested with a discretion to release or not to release a juvenile on bail after his arrest and before producing him before a magistrate Discretion must be exercised carefully, conscientiously and diligently to justify the Trust reposed in him by law and to the welfare of the child. This he can do if he has a gift of observation, psychological traits to deal with children in moral danger and fair knowledge of varied social conditions prevailing in his jurisdiction. Police can undertake special programmes of patrolling high delinquency areas and places of entertainment.[41] Police can also launch a drive to educate the juveniles about there legal obligations and responsibilities. They can detect pre-delinquency behaviour and bring it to the notice of parents, teachers and others to take timely corrective action. It organize recreational activities for children living in high delinquency areas to enable them to spend there leisure hour in a constructive fashion under proper guidance and benevolent supervision.[42] They should understand the causes behind juvenile delinquency and use force with utmost restrain. Police actively co-operates with the civil administration in restricting juvenile delinquency through educative publicity, highlighting what parents and community can do to prevent it.
INTERPOL has recommended the following preventive measures to be taken by the police in the field of juvenile delinquency.[43]
(1) spotting areas of juvenile delinquency, detection of minors in moral or physical danger, idle and vagrant juveniles, juveniles begging or indulging in parasitical activities.
(2) juveniles in situations disposing them to prostitution, drug addiction or delinquency.
(3) detection of prostitution and proxamitism in juveniles.
(4) Localization, identification and penetration of juvenile gangs indulging in crime or violent behaviour.
(5) Guidance of juvenile first offenders by police officers working in association with the family and social welfare workers.
(6) Mixed night patrols (police monitors and social workers) for visiting public halls and places of amusement which have a floating juvenile clientele.
(7) Detection of criminogenic families or families with a retarded level of education (alcoholic families or families where father is constantly out of work).
(8) Action intended to restore moral and civic standards in schools.
(9) Police clues for organizing and effectively supervising leisure hours of juveniles.
(10) Supervision of all juvenile gatherings likely to lead violent behaviour.
The constitution of special police units all over the country will definitely help in restricting the growing menace of juvenile delinquency.
Despite the good offices of the government, the system is far too officious in its dealing with delinquents and neglected children. The governments sincere efforts to establish an efficient juvenile system is far from reality as the ground realities reveal a dismal picture.
The members of juvenile welfare boards do not sit on all five days they are not aware of the provisions of the Act. They lack legal qualifications and are incompetent to handle serious cases. Absence of sufficient funds, lack of infrastructure and poor maintenance results in hasty disposal of cases. Training and counselling a necessity for rehabilitation is neither done nor encouraged. The observation homes are overcrowded, understaffed as a result juveniles stay over an a year in violation of the Act. Attendants lack training in child psychology and are incapable of reforming them to enable them to lead a normal life. These homes have become institutions of child abuse rather than rehabilitation.[44] Further, the children entering these institutions soon realize that even after there discharge they cannot settle in life. The juvenile court has failed to prevent them from being stigmatized and labeled. They are generally viewed by the people, schools, armed forces and employers – the society generally – as criminals. The effort of the court to treat children guilty in a non criminal way has not been achieved as they are labeled as junior criminals. So the efforts of the juvenile act to ensure regenerative treatment has still to be realized so that the juvenile is brought back into the main fold of the society without being a threat to it.
The Juvenile Justice (Care & Protection of Children) Act, 2000, advocates a new concept of justice by making special provisions to ensure that they are not subjected to the provisions of criminal law, secrecy is maintained and publicity strictly avoided to prevent humiliation and embarrassment to the juvenile. Certain concrete steps should be initiated to ensure proper functioning & must be taken up by the government & NGO’S. These are:
(1) The Act undoubtedly is very well drafted but its administration and implementation is faulty. There is an urgent need of devoted, dedicated, sincere, and determined staff trained to handle juveniles.
(2) There should be effective co-ordination between various state administrators to bring efficiency and effectiveness in the functional machinery. Essential funds must be provided by the govt. and private organizations
(3) To prevent juvenile delinquency educators interacting with children must be capable of understanding and providing special care and attention. They should :
(a) develop a new value system in which school should be a force working against discrimination and rejection experienced by pupils drawn from low classes.
(b) make the school a instrument for fostering work attitudes, self-esteem and job skills to improve the employability of graduates coming from deprived areas.
(c) provide school experiences designed to improve the self image of delinquency prone children.
(4) The Community must step in to provide a sense of belongingness to the juveniles desperately in need of. This initiative would give them the identity to bring themselves back from where they had drifted away. Emphasis should be on understanding the child psychology, his attitude, reasons for deviance socio-economic position, his family background to provide treatment, counselling and compassionate understanding to his or her requirements. The effective establishment of after care organization is a necessity to ensure actual reformation. These organizations would assist the child when he leaves the observation home to lead an honest, industrious and meaningful life in a conducive environment.
The juvenile justice system is an effort to establish a social therapy based on benevolent intentions towards juvenile delinquents. The juvenile justice system is a movement towards decriminalization and depenalization, for every man is born good but circumstances transform him into a criminal.
“If every saint has a past, every sinner has a future.”
The objective is thus to recreate this good child by bridging the gap between the institutional treatment and the process of re-assimilation into the society.
© Chawla Publications (P) Ltd.
Trafficking in human beings is not a new phenomenon. Trafficking in women and children for commercial sexual exploitation and other abusive purposes is rampant in India. Women, children and men have been captured, bought and sold in market places for centuries. Human trafficking is one of the most lucrative criminal activities. It is estimated by the United Nations (UN) that 1 to 4 million people are trafficked worldwide each year[1]. Trafficking in women and children is an operation which is worth more than $10 billion annually. The NHRC Committee on Missing Children has reported that about 12.6 million (Governmental sources) to 100 million (unofficial sources) are stated to be child labour; 44,000 children are reported missing annually, of which 11,000 get traced; about 200 girls and women enter prostitution daily, of which 20 per cent are below 15 years of age Bachpan Bachao Andolan v. Union of India and Ors. (Writ petition [C]no. 51 of 2006, Supreme Court of India, decided on 18th April 2011).
Trafficking of women and children for commercial sexual exploitation is one of the most inhuman issues existing in our society. Internal trafficking of women and children for purposes of sexual exploitation, domestic servitude, bonded labour, and indentured servitude is highly widespread across the country, either because their husbands deserted them, or have had broken marriages and are into trafficking through coercion and deception or due to traditional compulsions like Devadasi.[1] Indian women are subjected to several forms of sexual exploitation on the pretext of economic security.
According to estimates by the United States Government, trafficking involving one million people is going on across international borders every year.[1] India, along with Thailand and the Philippines, has 1.3 million children in its sex- trade centres. The children come from relatively poorer areas and are trafficked to relatively richer ones.[2] According to an International Labour Organization (ILO) estimate, 15 per cent of the country’s estimated 2.3 million prostitutes were children, while the U. N. reported that an estimated 40 per cent were below 18 years of age. A large proportion of the women forced into sexual exploitation were tribal’s and Dalits[3] Sixty per cent of prostituted women in Mumbai’s red-light district areas are infected with Sexually Transmitted Diseases (STDs) and Acquired Immuno Deficiency Syndrome (AIDS). More than half of Mumbai’s 1, 00,000 prostitutes are infected with Human Immune deficiency Virus (HIV).[4]
Within the country, women from economically depressed areas often move into the cities seeking greater economic opportunities, and once victimized, traffickers force or coerce them into the sex trade. In some cases, family members sell young girls into the sex trade to sustain their family. Extreme poverty combined with the low social status of women often result in the handover by parents of their children to strangers of what they believe is employment of marriage.
Many indigenous tribal women are forced into sexual exploitation. According to the Indian Centre for Indigenous and Tribal Peoples (ICITP), more than 40,000 tribal women, mainly from Orissa and Bihar, were forced into economic and sexual exploitation. Press reports indicate that children were routinely trafficked from Assam into Haryana and other North Indian states for sexual slavery under the pretext of entering into arranged marriages. Similar to this, many Dalit women also face the triple burden of caste, class and gender. Dalit girls have been forced to become prostitutes for upper-caste patrons and village priests. Hotel Priya v State of Maharashtra & Ors Decided on 6th May, 2011 [Bombay High Court].
Besides inter-state trafficking, inter-country trafficking from Nepal, Bangladesh and Ukraine has substantially promoted immoral trafficking in India.[1]
The National Commission for Women (NCW) reported that organized crime plays a significant role in the country’s sex trafficking trade and that women and girls who were trafficked in the brothels frequently were subjected to extortion, physical beating or assault and torture, rape and sexual abuse, starvation, isolation in dark rooms, injuries, beating with hot iron rods, forced to use drugs and drink, multiple rape, mental torture, forced abortions, burning with cigarette butts and terrorised by gangs and criminals.[1]
Several factors force women and girls to fall into trafficking. The socio-cultural domain is entangled with traditions, superstitions and male chauvinist concepts. These encourage discrimination against women. The caste system and lack of social awareness give rise to degrading social status of women and exploitative traditional practices like dowry and child marriage practice give a neglected status of the girl children. Other reasons include economic exploitation, unfair distribution of wealth, lack of economic justice, unequal land holding system, no role for women in economic decision, denial of women’s rights to parental property, lack of training, skill education and employment. Similarly, lack of political commitment, i.e., issues related to women and children are not prioritised into the political programme. In addition, the lack of adequate laws for the protection and prevention of children who are victims of trafficking and selling complicate the situation. Ineffective implementation and enforcement of the laws and policies regarding the rights or women and children and lack of implementation of national, regional and international commitments on human rights issues are also responsible.
A study of gender reality over the years reveals how violence has always been used as a means to subjugate women and keep them in a position of subordination. Gender-based violence may take different forms and there may be distinctive patterns or manifestations of gender violence. Gender violence is present in all societies; it is a structural phenomenon embedded in the context of culture, socio-economic and emotional dependency. It is produced within class, caste and patriarchal social relations in which male power dominates. A narrow definition of violence may define it as an act of criminal use of physical force. But this is an incomplete definition. Violence also includes exploitation, discrimination, upholding of unequal economic and social structures, creation of an atmosphere of terror, threat, or reprisal and forms of religio-culture”. Varsha Kapoor v Union Of India & Ors on 3rd June, 2010 Delhi High Court, http://www.indiankanoon.org/doc/1107375
International conventions exist to punish and suppress trafficking especially women and children[1] Trafficking is now defined as an organized crime and a crime against humanity. The convention being an international convention is limited to cross border trafficking but does not address trafficking within the country.
The malady of prostitution is not only a social but also an economic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive. This devastating malady can be suppressed and eradicated only if the law-enforcing authorities in that regard take very severe and speedy action against all the erring persons such as pimps, brokers and brothel keepers.
In spite of the stringent and rehabilitative provisions of law contained in the Constitution of India, 1950; The Immoral Traffic (Prevention) Act, 1956; The Indian Penal Code, 1860 and The Juvenile Justice Act, 2000; it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived demanding an objective multi-dimensional study and a searching investigation into the matter relating to the causes and effects of this evil and requiring the most rational measures to weed out the vices of illicit trafficking. Vishal Jeet v Union Of India (AIR 1990 SC 1412).
Article 23 of the Constitution of India which is a Fundamental Right and which has been put under the caption ‘Right against exploitation‘ prohibits ‘traffic in human beings and beggar and other similar forms of labour’ and provides that any contravention of Article 23(1) shall be an offence punishable in accordance with law. The expression ‘traffic in human beings’ is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes.
Article 35(a) (ii) of the Constitution reads that “Notwithstanding anything in this Constitution, Parliament shall have, and the legislature of a State shall not have, power to make laws for prescribing punishment for those acts which are declared to be offences under this part. The power of legislation, under this article, is given to the Parliament exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform throughout the country. The power is specifically denied to the state legislatures.
In implementing of the principles underlying Article 23(1), The Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA) has been enacted under Article 35 with the object of inhibiting or abolishing immoral traffic in women and girls.
In this connection, it is significant to refer to Article 39 which relates to ‘Directive Principles of State Policy‘ under Part IV of the Constitution. Article 39 particularizes certain objectives. Clause (f) of Article 39 was substituted by the Forty- Second Amendment Act, 1976. One of the objectives under Clause (e) of Article 39 is that “The State should, in particular, direct its policy towards securing that the tender age of children are not abused”. One of the objectives under Clause (f) is that “The State should, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment”. These objectives reflect the great anxiety of the Constitution-makers to protect and safeguard the interests and welfare of the children of our country. The Government of India has also, in pursuance of these constitutional provisions of Clauses (e) and (f) of Article 39, evolved a national policy for the welfare of the children.
It will be apposite to make reference to one of the principles, namely, principle no. (9), formulated by the Declaration of the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1959. The said principle reads:
“The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.”
Before the adoption of SITA, there were enactments in some of the states for suppression of immoral traffic, but they were not uniform, nor were they found to be effective. With the growing danger in society to healthy and decent living with morality, the world public opinion congregated at New York in a convention for suppression of traffic in persons for exploitation for immoral purposes. Pursuant to the signing of that convention on May 9, 1950, our Parliament has passed an Act called “Suppression of Immoral Traffic in Women and Girls Act, 1956 which is now changed as “The Immoral Traffic (Prevention) Act, 1956” to which certain drastic amendments were introduced by the Amendment Acts of 46 of 1978 and 44 of 1986. This Act aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz, to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society.
Besides the above Act, here are various provisions in the Indian Penal Code, 1860 such as Sections 366-A (dealing with procreation of minor girl), Section 366-B (dealing with offence of importation of girl from foreign country), Section 372 (dealing with selling of minor for purposes of prostitution etc.) and Section 373 (dealing with 367 the offence of buying minor for purposes of prostitution etc.).
The Juvenile Justice Act, 2000 which provides for the care, protection, treatment, development and rehabilitation of neglected or juveniles in conflict with law contains a specific provision namely Section 12 which empowers a police officer or any other person or organization authorized by the State Government in this behalf to take charge of any neglected juveniles and bring them before the board constituted under this Act. The board under Section 33 has to hold an enquiry and make such orders in relation to the neglected juveniles as it may deem fit.
The Immoral Traffic (Prevention) Amendment Bill, 2006 was introduced in The Lok Sabha on May 22, 2006. The Bill has been referred to the Parliamentary Standing Committee on Human Resource Development.
The Immoral Traffic (Prevention) Amendment Bill, 2006 amends the Immoral Traffic (Prevention) Act, 1956 to combat trafficking and sexual exploitation for “commercial purposes“. The Bill deletes provisions that penalised prostitutes for soliciting clients. It penalises any person visiting a brothel for the purpose of sexual exploitation of trafficked victims. All offences listed in the Bill would be tried in camera, i.e., the public would be excluded from attending the trial. The term “trafficking in persons” has been defined with a provision for punishing any person who is guilty of the offence of trafficking in persons for the purpose of prostitution. The Bill constitutes authorities at the centre and state level to combat trafficking.
While prostitution is not an offence, practising it in a brothel or within 200 m of any public place is illegal. There seems to be a lack of clarity on whether prostitution ought to be a legitimate way of earning a living if entered into by choice.
The trafficking of women and children seems to be a journey from marginalization to stigmatization and ostracism via exploitation and torture. This paper in its conclusion would like to provide certain suggestions in order to combat trafficking.
International organizations should support research institutions and non-governmental organizations to undertake state-specific research into the trafficking phenomenon in order to disseminate credible information for public consumption.
Both State Government and the Central Government should be assisted to train, equip and empower personnel who are charged with overseeing the in and out migration of its people with the aim of protecting them against the nefarious activities of the traffickers.
The government should be well equipped to provide better rehabilitation facilities to women during natural disasters. The problem of trafficking does not end with the return of the survivors. There should, therefore, be proper rehabilitation and reintegration programmes for those who return to their homeland.
© Chawla Publications (P) Ltd.