INTRODUCTION
Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.
–Martin Luther King, Jr.
The term `minor’ originated from French term `minuere’ which translates to `smaller or lesser’. In India, there are dozen of statutes which deals with the law related to minors, namely, Indian Majority Act, 1875; Indian Contract Act, 1872; Prohibition of Child Marriage Act, 2006; POCSO Act, 2012; Juvenile Justice Act, 2015; personal laws; etc. but the inconsistencies in the age of minority created by these statutes have given rise to the question as to who is actually a minor in India?
The concept of `minor’ was discussed at length in the domain of contractual law in the case Mohori Bibi v. Dharmodas Ghose, (1903) ILR 30 Cal. 539(PC) and gained momentum with the trial in the Delhi Gang Rape Incident[1*] which lead to the `Criminal Law Amendment in the year of 2013, thereby, amending Indian Penal Code, 1860; Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 on the laws related to sexual offences & proceeding with the children in conflict with law between the age of 16-18 years engaged in heinous crimes to be treated and tried as an adult and, further, on different dimension, in the case Independent Thought v. Union of India, AIR 2017 SC 4904, where the Hon’ble Supreme Court read down Exception 2 to Section 375 of IPC, 1860 that allowed the husband of a girl child, between fifteen and eighteen years of age the right to have intercourse with her, irrespective of her consent.
[1* State Through Reference v. Ram Singh & Ors. Death Sentence Reference No.6/2013]
There is versatility in the nomenclature which is used to refer to the world minor, namely, child, juvenile, child in conflict with law, doli incapax, ward, adolescent, etc. Every term has its own significance and used in different context in different statutes. The age of minor is not only different in different statutes but it also differs according to the gender. This leads us to the question, “who is actually a minor is India?”
DEFINING THE TERM `MINOR’
■ United Nations Convention on Rights of the Child, 1989 (UNCRC) provides, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.”
This gives the various countries, the freedom to fix the age limit in determining that who is a child.
Definitions in India–
1. Section- 11 of Indian Contract Act, 1872, a minor is a person who has not attained the age of 18 years.
2. The age of majority of a person as per section 3 of the Indian Majority Act, 1875, person is deemed to have attained the age of majority when he completes the age of 18 years, except in the following cases a person continues to be a minor until he completes the age of 21 years-
i. Where a guardian of a minor’s person or property has been appointed under the Guardians and Wards Act, 1890 or
ii. Where the superintendence of a minor’s property is assumed by a Court of Wards.
3. Concept of Doli Capax & Doli Incapax–
i. Section 82 of Indian Penal Code, 1860 (IPC), nothing is an offence which is done by a child under seven years of age. (Doli Incapax)
ii. Section 83 of Indian Penal Code, 1860 (IPC), nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. (Doli Capax– if child have attained sufficient maturity).
4. Other Provisions of IPC, 1860–
i. Section 89 of IPC, 1860 provides the protection to the people for the action taken in good faith for the benefit of a person under twelve years of age.
ii. Section 317 of IPC, 1860 makes punishable the action of the father or mother of a child under the age of twelve years, exposing or leaving such child in any place with the intention of wholly abandoning such child.
iii. Section 363 of IPC, 1860 makes the act of kidnapping any minor under sixteen years of age if a male, or under eighteen years of age if a female punishable.
iv. Section 369, IPC, 1860 makes the act of kidnapping or abducting any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child.
v. To ensure that children are not kidnapped for the purpose for begging, section 363A of IPC, 1860 provides provision against such kidnapping or maiming a minor for purposes of begging is a criminal offense under IPC, 1860.
Sec. 363A(4)(b) provides- `minor’ means–
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.
vi. Section 366 A of IPC, 1860 makes kindnapping for the purpose of illicit intercourse by inducing any minor girl under the age of eighteen years a punishable offence.
vii. Section 372 & 373 of IPC, 1860 makes the use of any person under the age of eighteen years, for the purpose of prostitution or illicit intercourse, a punishable offence.
5. Protection of Children from Sexual Offences (POCSO) Act, 2012, Section-2 (1) (d) “child” means any person below the age of 18 years.
But there is a difference of age of child, when the child is the victim of sexual offences, under section- 4 of the Act. It provides-
Sec-4. Punishment for penetrative sexual assault.–
(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
This way two categories of child victims are created-
i. Child below the age of sixteen years, and
ii. Child between the age of sixteen and eighteen years.
6. Information Technology Act, 2000, Explanation of section – 67B, children means a person who has not completed the age of 18 years.
7. Prohibition of Child Marriage Act, 2006, makes child marriage punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both. Sec-2 (a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.
8. Special Marriage Act, 1954 & Hindu Marriage Act, 1955, conditions of valid marriage– the male has completed the age of twenty-one years and the female the age of eighteen years.
9. Minor in Muslim Law– In Muslim law a person is said to be minor if he or she has not attained the age of puberty. The age of puberty is 15 years for marriage, dower and divorce. For purpose other than marriage, dower and divorce, the age of majority is governed by the Indian Majority Act, 1875. For filling a suit in a court of law, the minimum age is eighteen years even if the suit may relate to marriage, dower and divorce. A minor can not file any suit relating to his marriage without the `next friend’.
10. Guardianship and Wards Act, 1890, section 4(1) “minor” means a person who, under the provisions of the Indian Majority Act, 1875, is to be deemed not to have attained his majority.
Section 4 (3) “ward” means a minor for whose person or property, or both, there is a guardian.
11. Hindu Adoption and Maintenance Act, 1956, section 3 (c) “minor” means a person who has not completed his or her age of eighteen years.
12. Age of majority in other religions:
■ In Judaism, a male becomes an adult at age of 13 years and a female becomes an adult at age of 12 years.
■ In the Roman Catholic Church, a person is considered an adult at the age of 18 years.
13. The Plantation Labour Act, 1951 has separate definitions for child, adolescent and adult.
i. `Child’ means a person who has not completed his fourteenth year.
ii. `Adolescent’ means a person who has completed his fourteenth year but has not completed his eighteenth year.
iii. `Adult’ means a person who has completed his eighteenth year.
14. The Juvenile Justice (Care and Protection of Children) Act, 2015, provides for strengthened provisions for both children in need of care and protection and children in conflict with law. There is a change in nomenclature from `juvenile’ to `child’ or `child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”.
i. Section 2(12) “child” means a person who has not completed eighteen years of age.
ii. Under Section 15, special provisions have been made to tackle child offenders committing heinous offences in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous offences by such children to a Children’s Court (Court of Session) after conducting preliminary assessment. Besides this, the provisions provide for placing children in a `place of safety’ both during and after the trial till they attain the age of 21 years after which an evaluation of the child shall be conducted by the Children’s Court. Afterwards, the child is either released on probation and if the child is not reformed then the child will be sent to a jail for the remaining term. The law will act as a deterrent for child offenders committing heinous offences such as rape and murder and will protect the rights of victim.
15. Section 27 of The Code of Criminal Procedure (CrPC), 1973 provides for jurisdiction in case of juveniles – If any offense not punishable with death or imprisonment for life, if committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, may be tried by the court of’ a Chief- Judicial Magistrate, or by any court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of the youthful offenders.
Here, the paradox arises, child under the age of 18 years are dealt under JJ Act, 2015 but at the same time power has been provided to the court of CJM under sec 27 of CrPC, 1973 to deal with the child under the age of 16 years. Moreover, the above mentioned statutes demonstrates that the Indian Legal System has made separate provisions for the minors as the law makers feel is suited to the Indian demography and benefit the young citizens. However, in the larger context, the confusion surrounding the age of who is a child still remains and the perpose for ascertaining the age also remains unfulfilled.
MINOR’S AGE AS PER STATUTES PREVAILING IN THE UNITED KINGDOM
Common Law is the origin of almost every major law in India, thereby, it is crucial to glance over the statutory provisions of the United Kingdom. These are as follows:
Age of Minority
In England, Wales and in Northern Ireland a minor is a person under the age of 18 as per section 1, Family Law Reform Act 1969. In the said statute the age of majority was reduced from 21 to 18 years by amendment[2*]. In Scotland, this age is 16 years as per section 1, Age of Legal Capacity (Scotland) Act 1991[3*].
[2* (http://www.legislation.gov.uk/ukpga/1969/46/section/1).]
[3* Sec-1, Age of Legal Capacity (Scotland) Act 1991; Age of legal capacity-
(1) As from the commencement of this Act-
(a) a person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction;
(b) a person of or over the age of 16 years shall have legal capacity to enter into any transaction.]
MINOR’S AGE AS PER STATUTES PREVAILING IN THE UNITED STATES OF AMERICA (USA)
The USA is a federal country which gives autonomy to the states to formulate law, thereby, the age of minority varies from state to state amongst the 50 states of the USA. In most of the states, the age of majority is 18 years but in some states it varies between the age of 18 and 21 years.
SIGNIFICANCE OF AGE OF MINOR IN LEGAL PROVISIONS (INDIA):
1. MATRIMONIAL LAWS
– Maintenance: There are provisions for maintenance of the married girl child, the husband is liable to pay the maintenance if he is a major and if the husband is a minor, his parents would be liable to pay the maintenance.
– Child Marriage:
➢ The legal status of a child marriage in Hindu as well as Muslim Law is voidable at the option of the parties. However, if the consent is obtained by fraud, deceit or if the child is enticed away from his lawful guardians and if the sole purpose is to use the child for trafficking or other immoral purposes, the marriage would be void.
➢ In Hindu Law, under Section 13(2)(iv) of the Hindu Marriage Act, 1955, a child bride under the age of 15 years must repudiate the marriage after attaining the age of 15 years but before she attains the age of 18 years, i.e. even before she attains majority.
➢ Under Muslim Law, Section 2 (vii), Dissolution of Muslim Marriages Act, 1939 provides that if a minor girl is given in marriage by her father or other guardian before she attained the age of fifteen years may repudiate the marriage before attaining the age of eighteen years. Provided that the marriage has not been consummated.
One question remains unanswered as to who will represent or help these children, who have been forced to marry, to approach the Courts. This is also not in consonance with the provisions of secular law i.e. Prohibition of Child Marriage Act, 2006, according to which marriage of a child bride below the age of 15 years is void and there is no question of seeking a divorce since, a void marriage is no marriage
– Age of Consent For Marriage:
■ Its time to re-think over different age for female (18 years) and male (21 years) for valid marriage by bringing a uniform age of consent of marriage for all citizens equally.this can be done by putting an end to the stereotype that wives must be younger than their husbands.
■ The 18 years old have the liberty to chose their government irrespective of their gender but they are not mature enough as to make decision about their matrimonial life. Thereby, there is need to recognise a universal age for majority. The age of majority must be recognised uniformly as the legal age for marriage for men and women alike as is determined by the Indian Majority Act, 1875, i.e. eighteen years of age. The differences in age for husband and wife have no basis in law as spouses entering into a marriage are by all means equals.
■ In Independent Thought v. Union of India, AIR 2017 SC 4904, the Hon’ble Supreme Court read down Exception 2 to Section 375 of IPC that allowed the husband of a girl child – between fifteen and eighteen years of age the right to have intercourse with her. The Supreme Court dealt specifically with the exception dealing with married girls aged between fifteen to eighteen years. The Court rightly held that a child remains a child regardless of whether she is married or unmarried and therefore intercourse with a minor would be rape regardless of her marital status.
2. GUARDIANSHIP LAWS–
– Guardianship and Wards Act, 1890, Section-21 provides the capacity of minors to act as guardians-A minor is incompetent to act as guardian of any minor except his own wife or child or where he is the managing member of an undivided Hindu family, the wife or child of another minor Member of that family.
– In a matrimonial relation, the laws on guardianship are clear, the husband will be the guardian of his wife minor or major. The issue also becomes relevant if the husband of the minor girl himself is a minor. Then the question arises that when it comes to compulsory registration of marriage, should the law encourage the tacit compliance of child marriage by allowing the valid marriages as per personal laws to get registered, or should the law not register these marriages as this action prima facie amounts to turning a blind eye towards the secular statutory law against child marriages.
3. IN THE DOMAIN OF CONTRACTUAL LAW
■ Minor’ s contract void ab initio: Before 1903, it was not clear that contract enter into by the minor is void or voidable. But the landmark judgement of Privy Council in the case of Mohori Bibi v. Dharma Das Ghose, (1903) ILR 30 Cal. 539 (PC), removed this ambiguity by holding that the minor’s agreement is void ab initio. Since, for making an agreement enforceable and to convert it into a contract, one of the condition is that the party should be competent to contract but minor is not competent to contract because he has not completed the age of 18 years and anyone who enters into contract with a minor that contract will be void ab initio. Simultaneously, a clause is incorporated that allows a minor to enter into contract for his benefits, it means that the minor can enforce that particular part of contract which is in his own interest. Thereby, the minor can sue the other party to get the benefit for his welfare but if a minor enters into a agreement with anybody, then he is not personally accountable, only minor’s property will be accountable to pay the debt.
The law protects the minor’s rights since they are not mature and may not possess enough capacity to judge what is good and what is bad for them. The position of agreement made by a minor is void-ab initio, i.e. absolutely null and void from the very beginning, therefore, it does not give rise to any legal consequences.
ANALYSIS OF THE PARADOX, SUGGESTIONS & CONCLUSIONS
Our society has come a long way from the era when different civilizations bestowed adult responsibilities on the pre-pubescents but with the progression of time, the society went through multitude of changes and with these changes, the temperament of the people of society also changed. The fast emerging modern technology provided the platform for not only convenience to life but also a breeding ground for more versaltile crimes involving the youngsters. As a coin have two sides, similarly, this situation have two outcomes- at one end the mind of the adolescents is manuplated which leads them to become aggressors and on the other end, they are the victims of crimes due to loopholes in the statutory protections.
After comprehensive and elaborate study of Indian Statutes and the law of some leading nations, the prima facie observation is that there is confusion and complexities surrounding the age of minority around the world due to the lack of a clear cut definition. This ambiguity creates mahem in the life of the youngsters.
There is a need to distinguish between civil law and criminal law while dealing with the concept of the age of minority because these law operates on different set of ingredients and ascpects. In civil law, it is more about capacity including the physical and mental capacity but criminal law is diverse because the rules of criminal jurisprudence lay emphasis over the intent i.e. `mens rea’ to constitute guilt in a crime mere physical action is not enough to inculpate a person. While establishing guilt of a person, the judge has to ascertain whether the person have capacity (the word is used in the criminal jurisprudence of almost every nation) to formulate a particular intent or is the person mature enough to understand the nature of the act he/she is engaged.
There can be unanimity and certainity in the age in the civil law, field covering contractual law, matrimonial law, law related to alcohol consumption, sufferage rights, guardianship laws, etc. as in these fields, there is necessity of development of mental and physical state that in majority of cases is attained at post pubescent stage i.e. around the age of 18 years and for this law around the world and in India is somewhat certain and unanimous.
While dealing with criminal law, there is a need of developing the concept of `doli capax’ & `doli incapax’ in a comprehensive manner for unanimous application of the laws relating to criminal offences, such as- murder, sexual abuse, IT related offences, fraud, etc. because criminality among youth is the outcome of several factors as `no-one is born criminal’. For instance, some children have a highly cognitive mind at a very young age who are capable of performing complex tasks while most children of his/her age would not be able to perceive in the same manner. Moreover, the background of upringing also plays a vital role in shaping an individual, for instance, three scenarios or cases of a child of 14 years-
i. First case, child have been consistently exposed to child abuse, or
ii. Second case, a child of the same age living with thieves or habitual offenders, or
iii. Third case, where the child is brought up by a normal family who are providing him/her proper education and care;
Then in these scenarios, these three children of the same age can not be placed in the same category as this will create a paradoxical situation in the implementation of law.
At present, what the countries around the world and our own nation is doing is that they are implementing the different laws imposing various criminal liability over different age groups which they feel is best suited to their demographic situation and the temperament of the society due to which efforts at international level do not bear any fruit in a long run. This fails in checking crime rate and rather caste a stigma on the youth which renders the possibility of their reformation a very difficult task.
Therefore, it is crucial to recognize the fact that providing uniformity or certainity of a specific age will not subserve the purpose but the mental capacity of comprehending the state and nature of affairs should define the level of maturity which is subjective from child to child. Now, the issue is how to come out of this paradox? One solution could be the analysis of children which could be done by the establishment of Committees at national, state and district level; comprising of child psychologists as well as members from legal field who have the experience of dealing with children related crimes, child rights, etc. who can analyse the background of the upbringing and the current situation of the concerned child be he/she is a victim or the offender. Child cells could be established at every village, town and city; the official of such cells will also possess training in dealing with children envolve in crimes to assist committee in their function. As earlier stated, no one is born criminal but the situations during the period while growing up, turns an innocent child into a heinous criminal. So, such establishment and psychological help will provide a way for reformation to the children exposed to crimes.
The essence of criminal jurisprudence, itself eliminates the question of certainity or unanimity in the age for a person to be described as a child rather there is a need for law makers around the world to truly develop the concept of doli capax and doli incapax to genuinely mitigate the issue of conflict and paradox in the age of minority.
© Chawla Publications (P) Ltd.
Introduction
After the Nirbhaya’s case the Juvenile Justice (Care and Protection) Act, 2000 had been repealed and The Juvenile Justice (Care and Protection of Children) Act,- 2015 come into the force. In Nirbhaya’s case CCL had played an important role to commit the Crime but due to Juvenile Justice (care and protection), 2000 The CCL who played a heinous role to commit the crime was sent to a reformation home for 3 years. Due to this incident turn up unprecedented public outrage leading to woman safety and other issues. Public coming out to the street and the government was forced to set up the committee of Former Chief Justice of India Hon’ble Justice Shri J.S. Verma for various amendment in Criminal law. At that time in all over India, there is a demand to change the age of Juvenile and bring it to 16 years instead of 18 years. At that time committee was not in the opinion to change the age to 16 years after verifying the various data relating to the crime committed by the Children. During those days the demand was also raised to treat Juvenile as an adult and send them for regular trial and the punishment because they thought that the child has some mental, physical capacity to doing or commit the crime but some child right activities were against this.
To, come out with this situation the legislature change the Law of 2002 and enacted the Law of 2015 and come up with very new concept relating to the Preliminary Assessment. Preliminary Assessment means to determine that children (aged between 16 to 18) who commit the heinous offence treated as an adult or not.
Preliminary Assessment an innovative concept was introduced with the enactment of The Juvenile Justice (Care and Protection of Children) Act,- 2015, To strike a balance between the child rights, international obligations and victim perceptions and People’s outrage.
What is a Preliminary Assessment?
This concept was enacted in Section 15 of The Juvenile Justice (Care and Protection of Children) Act, 2015. I have reproduced this section for reference.
“15 (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment regard to his 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, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.-For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:
Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:Provided further that the assessment under this section shall be completed within the period specified in section 14.”
For doing Preliminary Assessment there is a basic condition to be full filled. Conditions are mention as under :-
1. A juvenile has completed the age of 16 years.
2. A juvenile has alleged to commit a Heinous offence.
Now question come to our mind that what is a heinous offence. The Said definition is defined under the act in section 2(33).
2(33) “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more;”
Let me explain this in details because the board has to define whether an alleged offence committed by a juvenile is falling under the Heinous offence or not. Now take an example that Supposes if Juvenile who completed 16 years had alleged to the committed offence under 307 of IPC. In this section 307 of IPC prescribe sentence is imprisonment is for life or imprisonment for 10 years is given in the IPC. But to consider that whether this act falls in heinous offence in the definition the describe minimum imprisonment of 7-year barrier but if we look at the Sentence of IPC 307 there is no word “MINIMUM” imprisonment, therefore, this offence does not fall under the heinous offence. And the second condition is not full filled therefore in this case Preliminary assessment has not done by the board. For this one can refer the Judgment of the Apex court Pronounce in Shilpa Mittal v. State of NCT of Delhi & ANR in Criminal Appeal No-34 of 2020. (Clik here) wherein para 36 is relevant and the said is reproduced below.
“36. In view of the above discussion we dispose of the appeal by answering the question set out in the first part of the judgment in the negative and hold that an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. However, in view of what we have held above, the Act does not deal with the 4 th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided, shall be treated as `serious offences’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.”
Therefor to identified whether the alleged act falls under the heinous offence category or not is a primary very important factor for determination. If, board after seeing all the aspect of heinous offence and after the determination of age i.e the juvenile is 16 year or above. If above mention two basis condition are full filled than then the board has done to the preliminary assessment. Now the board has to do preliminary assessment in regards to:-
[i] the mental and physical capacity of the child to commit the offence.
[ii] the ability of the child to understand the consequences of the offence; and
[iii] the circumstances in which the child allegedly committed the offence.
Now the board has to do preliminary assessment keep above factor in mind. To come out with the conclusion board may take the assistance of experienced psychologists or psycho-social workers or other experts. Board can refer the juvenile to Psychologist or psycho-social worker or other expert depending on the fact of the case. Board has to find out whether child is capable of doing crime or he has knowledge of consequences of it and under which circumstances he has done this. After considering the report of all the expert board has to pass order whether the juvenile is treated as an adult or child. Keeping in mind that the Preliminary assessment is not a trial.
Before passing the order it is the duty of the board must have to secure the participation of child through guarding/parents because it required by law under section 3(4) of the JJ ACT say that “Every child have a right to be heard and to participated in all processes and decision affecting his interest.”
Suppose If, board rely upon the psychologist report then it is a duty of the board that if juvenile wants to cross-examine the psychologist then the board has to give chance to cross-examination of a psychologist if the juvenile has not given this opportunity it will against the natural Justice and the principal of JJ Act-2015. Furthermore, the board has to consider the child’s view about the age and maturity of the juvenile. Board has to look other various factor or documentary evidence this inside was given in In the case of Navin Bhai BIJal Bhai v. the State of Gujarat (CRA-374-2019 dated 08-05-2020) by Hon’ble Gujarat High court, that Such As Panchnama of Scene, Arrest Panchnama, Medical history given before the doctor, furthermore Contents of the Statement of CCL except the confession part recorded by the Police under section 161 of Cr. P.C. for circumstances in which allegedly committed, statement of the victim, Social Investigation Report (it is very important for determination before passing any order in Favour or against the juvenile as the case may be.
Board has to do a Preliminary assessment within 3 months of the First production of the Juvenile.
Conclusion:-
The preliminary assessment is a barrier and it in safeguard for the juvenile. Because in the act Every child is presumed to be innocent. Moreover, this provision is also consonances with victimology because if the crime is very heinous then juvenile may be treated as an adult and transfer to children court where he will get the imprisonment as per the Section -21 of the JJ Act-2015. I may conclude with an example suppose one juvenile i.e. a boy allegedly indulges in Murder where he stands beside his father and father has murdered the but police has lodged the Fir against son and father. In another case, Juvenile has committed murder and rape where he is only one to carry out the crime. So in the first scenario, Preliminary assessment comes to the safeguard for the Juvenile, it is in line of the aim and object of the Act and in Second Scenario it is for a victim to get Justice. It is a tool which can be used as a Sword and Shield. Therefore it is a very innovative concept. it Preliminary assessment is doing balancing between the rights of Child and Victim.
© Chawla Publications (P) Ltd.
The Juvenile Justice (Care and Protection of Children) Act, 2015 (in short ‘the Act’) was brought in the system of criminal trial wherein juvenile aged between 16-18 years can be deemed to be an adult in case of commission of heinous offences and therefore can be tried before a criminal court under Section 6 of the Code of Criminal Procedure, 1973 (in short `Cr P C’) in accordance with the ordinary procedure of law. Section 15 of the Act provides the mechanism for determination of the mental and physical capacity of a juvenile of such age regarding the commission of the offences and the consequences thereof in order to presume such juvenile `as an adult’ by employing legal fiction. The juvenile in fact need not to be an adult. But in law such juvenile will be considered as an adult.
Since such an inquiry has immense ramification qua a juvenile aged between 16-18 years, it is of paramount importance that the said inquiry is conducted following the provisions of law in its letters and spirits. But in fact more often than not, it is found that such legal mandate in conducting such an inquiry is breached in impunity.
According to Section 14 of the Act, when a `child in conflict with law’ within the meaning of Section 2 (13) of the Act is produced before the Juvenile Justice Board (in Short `the Board’) constituted under Section 4 of the Act, the Board is obligated to hold an inquiry as per Chapter XXI of the Code of Criminal Procedure, 1973 (in short `Cr PC’) in case of petty offence defined under Section 2(45) of the Act (vide Section 14 (5)(d)); or an inquiry as per Chapter XX of Cr P C in case of serious offence defined under Section 2(54) of the Act (vide Section 14(5)(e)), or an inquiry as per Chapter XX of Cr P C in case of heinous offence defined under Section 2(33) of the Act for a child below the age of sixteen years as on the date of commission of the offence (vide Section 14(5)(f)(i)). At the conclusion of such inquire the Board may pass either an order under of exoneration under Section 17 or an order of (victual) conviction under Section 18 of the Act. In case an Order is passed under Section 18 of the Act, the Board is required to follow the provisions mentioned under Section 18(1) and / or 18(2) of the Act.
However, in case `a child in conflict with law’ above the age of sixteen years as on the date of commission of the offence being an accused of a `heinous offence’, a preliminary assessment inquiry has to be conducted in terms of Section 15 of the Act (vide Section 14(3)/ 14(5)(f)(ii)).
The purpose of such preliminary assessment test under Section 15 of the Act is to ascertain as to whether `the child in conflict with law’ is required to be tried as an adult by a Children’s Court (vide Section 18(3)) or by the Board. In the aforesaid eventuality, once `a child in conflict with law’ is produced before the Board, it is therefore, imperative for the Board to conduct a preliminary assessment test under Section 15 of the Act with regard to:
a. The mental and;
b. Physical capacity to commit a heinous offence within the meaning of Section 2(33) of the Act and;
c. Ability to understand the consequences of the offence and;
d. The circumstances in which he allegedly committed the offence.
In coming to such a conclusion the board may take the assessment of experienced psychologist or psycho-social workers or other experts.
In this regard, it may be mentioned that the Board must consist of a Magistrate with at-least 3 years of experience and two social workers (vide Section 4(2)).
Rule 10A of the said Act (Care and Protection of children) Model Rules, 2016 (in short `Central Rules’) prescribes the procedure for preliminary assessment into heinous offences by the Board. It provides that the Board shall in the first instance determine whether the child is of 16 years of age or above. According to sub-Rule (2) of the Central Rules, for the purpose of conducting a preliminary assessment in case of heinous offences the Board may take assistance of psychologist or psycho-social workers or other experts who have experience of working with the children in different circumstances. According to sub-rule (3) of the Central Rules, while making the preliminary assessment, the child shall be presumed to be innocent. According to sub-rule (4) of the Central Rules, where the board, upon a preliminary assessment passes an order that there is a need for trial of the said child as an adult, `it shall assign reasons for the same’.
In order to appreciate the aforesaid provisions Section 3 of the said Act may be taken into consideration. Section 3 enumerates `General Principles to be followed in administration of the said Act’. According to Clause (i) of Section 3, a child shall be presumed to be innocent of any mala-fide or criminal intent. According to clause (ix) of section 3, no waiver of any right of the child is permissible or valid. According to Clause (xvi), basic procedural safeguards of fairness shall be adhered to, including the right of a fair hearing, rule against bias, etc.
In the aforesaid backdrop, it is therefore evident that the preliminary assessment test is a compulsory step which has to be necessarily followed by a Board once a child is produced before it in the eventualities as mentioned hereinabove. The procedure enumerated in Section 15 read with Rule 10A of Central Rules make it imperative for the Board to scrupulously and religiously follow the procedure in order to come to an independent decision, of course with aid of expert opinion. The crux is that the formulation of the opinion must, therefore be by the Board and none else. The Board cannot abdicate its essential judicial function. It is trite law that no decision making authority can abdicate its decision making power to another authority (vide: Gangajali Education Society v. Union of India, (2017) 16 SCC 656).
An order under Section 15 of the Act not only gives a different legal character to a juvenile aged between 16 to 18 years thereby presuming the said juvenile to be an adult in the contemplation of law, but also takes away the application of the beneficial provisions enumerated under Section 18(1)/(2) of the Act. It eventually determines the forum for trial, procedure for trial and the punishment that can ultimately be imposed in case the said juvenile is found to be guilty. Since the provision under Section 15 of the Act deals with a legal fiction (vide Section 18(3)), it has to be construed strictly. It is too well settled that a deeming provision deserves strict construction (Vide: Gopal & Sons (HUF) v. CIT, (2017) 3 SCC 574).
Once an order is passed under Section 19 (3) of the Act, the case of the said child is transferred to the Children’s Court within the meaning of Section 2(20) of the Act. In case the Children’s Court is a designated court under Section 25 of the Commissions for Protection of Child Rights Act, 2005 (in short `the Child Rights Act’) vis a vis under Section 28 of the Protection of Children from Sexual Offences Act, 2012 (in short `POSCO’), it will follow the procedure for trial of a sessions case under Chapter XVIII of Cr PC (vide Section 19 (2) read with Section 33 of POSCO vis a vis Section 25 of the Child Rights Act and Rule 12(8) of the Central Rules). The Children’s Court may draw presumptions of guilt and culpable mental state under Sections 29 and 30 of POSCO respectively, in appropriate cases. It may pass any order of sentence except death sentence and life imprisonment without remission (vide Section 21) unlike the Board under Section 18 of the Act. The protection against disqualification under Section 24 of the Act will also not operate qua a child in conflict with law who was tried as an adult by the Children’s Court.
Section 15 of the Act therefore, envisages a crucial judicial examination which determines the status of the child qua a criminal trial. Though Section 15 of the Act is a component of an enquiry and not a trial, nevertheless, such inquiry requires application of judicial mind and the same is not a ministerial work. In this regard it may be mentioned that in the Act, the provisions for trail as envisaged under Cr PC has been generally conceptualized as inquiry. By virtue of sub-rule (3) of Rule 10A of Central Rule, during the decision making process the Board is obliged to presume the child to be an innocent.
The decision passed by the Board must necessarily be supported by reasons inasmuch as assigning reason is the best way out to demonstrate the application of mind. In case the reasoning fails, as a consequence thereof, the conclusion fails equally. An order under Section 15 of the said Act has therefore need to demonstrate satisfaction regarding the mental and/or physical capacity of the child to commit a heinous offence; the ability of the child to understand the consequences of the offences, and the circumstances in which the alleged offence had occurred.
Very recently, the Hon’ble Supreme Court of India in Shilpa Mittal v. State of NCT of Delhi and Another, AIR 2020 SC 405 has underlined the importance of such provision and held,
“18. The Children’s Court constituted under the Act of 2015 has to determine whether there is actually any need for trial of the child as an adult under the provisions of Cr. PC and pass appropriate orders in this regard. The Children’s Court should also take into consideration the special needs of the child, tenets of fair trial and maintaining child- friendly atmosphere. The Court can also hold that there is no need to try the child as an adult. Even if the Children’s Court holds that the child has to be tried as an adult, it must ensure that the final order includes an individual care plan for rehabilitation of the child as specified in Sub-section (2) of Section 19. Furthermore, under Sub-section(3) such a child must be kept in a place of safety and cannot be sent to jail till the child attains the age of 21 years, even if such a child has to be tried as an adult. It is also provided that though the child may be tried as an adult, reformative services, educational services, skill development, alternative therapy, counselling, behaviour modification, and psychiatric support is provided to the child during the period the child is kept in the place of safety.”
The Hon’ble Punjab and Haryana High Court in Bholu v. CBI, 2019 (1) RCR (Cri) 603 has inter alia held that the parameters led down under Section 15 of the Act are required to be followed strictly. It was held:
“17. In the present case, the petitioner, being more than 16 years of age as on the date of commission of alleged offence, the matter had to be considered in view of provisions of Section 15 of Act for the purpose of making preliminary assessment, as to whether the child in conflict with law had to be tried as an adult or not. The three parameters as provided under Section 15 of the Act are required to be followed strictly. The Act of 2015 has been enacted by the Parliament under the powers available under Article 253 of the Constitution of India, the age for trying the child/juvenile as an adult has been reduced from 18 to 16 years.
18. The case, in hand, falls within the category of heinous offence and the petitioner, being more than 16 years of age on the date of commission of offence, is required to be dealt with as per provisions of Section 15 of the Act for the purpose of making preliminary assessment. As per arguments of learned counsel for the petitioner, the Board has not conducted the preliminary assessment as per provisions of the Act and Rules framed thereunder. A conjoint reading of both Rules 10, 10A inconsonance with Section 14, 15 and 18(3) would reveal that the path to be tread upon by the Board, post the production of the Juvenile has been clearly spelt-out where heinous offence has been alleged to be committed by a child, who has completed 16 years of age. Rule 10(5) clearly reflects that the Child Welfare Police Officer is to produce the statements of witnesses and other documents prepared during the course of investigation within a period of one month from the date of first production of a child before the Board. It is also required that a copy thereof is to be given to the child or parent or guardian of the child. The legislature in its wisdom has prescribed the period of one month to produce the statements of the witnesses and other documents with a copy to the child, subsequent to which, the Preliminary Assessment in case of heinous offences under Section 15 of the Act has to be completed. Meaning thereby, the copy of list of witnesses and other documents along with copy of final report is to be supplied to the child or his parents or to the guardian before making the Preliminary Assessment as per provisions of Section 15 of the Act. It is also stipulated in Section 15 read with Rules 10 and 10-A along with other provisions of the Act that three basic parameters are necessary to be followed in case of a heinous offence before passing the order under Section 18(3) for determining the need for trial of a child as an adult. The Board had to follow three parameters for making Preliminary Assessment as to whether there is a need for the trial of said child as an adult or not. It is to be seen as to how the Board as well as the Appellate Court has appreciated the circumstances of the commission of alleged offence, without the list of witnesses, documents relevant to the matter as well as the final report, which in any case the investigating authority is to file before the Board in less than two months of the production of the child before it.
19. In the present case, no list of witnesses and documents were supplied to the petitioner or his parents or guardian, which itself shows that the Board as well as the Appellate Court have decided the case without any application of mind and contrary to the provisions of the Act and the Rules framed thereunder.
20. The proviso to Section 15 enables the Board to take the assistance of any experienced psychologist or other experts to make the Preliminary Assessment. It is clearly mentioned in para No.17 of order dated 20.12.2017 passed by the Board that in case, the opinion/assistance of any expert is required, the same be taken. It is necessary to assess the mental capacity of the juvenile. It was mandatory for the Board to assess the mental capacity of the alleged offender to commit such an offence and also the ability to understand the consequences of the same. It is also clear from the order that the clinical psychologist has himself suggested that if any further assessment is required, the juvenile may be sent to the Institute of Mental Health at Rohtak. However, it has completely been ignored by the Board and the assessment is based on inappropriate tests, namely, coloured Progressive Matrices (CPM) and Malin’s Intelligence Scale for India Children (MISIC) meant for children between the ages of 5-11-1/2 and 5-15 has been taken as the basis for the determination of the mental capacity of a child of 16-1/2 years. Both the Board as well as the Appellate Authority have completely ignored this fact. The petitioner wanted to cross examine the psychologist regarding the same but his request was declined and no permission was granted to him. The social investigation report is also self contradictory and the same is not worth considering. The copies of the tests, in question, were not provided to the petitioner/parents/guardian but were shown just prior to the hearing of arguments. It was not practically possible to understand 35 pages of the report by any layman in a time period of less than 30 minutes. However, in a time period of 30 minutes, the petitioner got to have a look at the record of Dr. Joginder Singh Kairo, Clinic Psychologist. It came out that he had carried the assessment on the basis of two tests i.e (i) Coloured Progressive Matrices (CPM) and (ii) Malin’s Intelligence Scale for Indian Children (MISIC). The petitioner (represented by his father) and his counsel were having no idea about these tests. Subsequently, they tried to find out and came to know that those tests were absolutely irrelevant to the case of the petitioner and could not be used for making the mental assessment of the petitioner. The basic book on Clinical Child Psychology written by Radhey Sham and Azizuddin Khan categorically states that Malin’s test of Intelligence for children is made for 5 to 15 years of children. Since the petitioner was 16.75 years old, when these tests were conducted on him, which were not correct tests and have resulted in wrong results. Said expert himself stated in his report that it would be appropriate that further assessment be made by a higher authority. This resulted in the petitioner doubting the credentials of the so called experts. Only because of this reason, the petitioner not only sought copies of the reports but also wanted to cross examine them so as to check the veracity and the credentials of the experts and their reports. However, he was not allowed in spite of specific request and averments made to that effect, leading to travesty of justice. The IQ test of the petitioner was conducted when he was more than 16 years and 9 months of age. An IQ of 95 at the age 16.75 would necessarily translate to 15.67 years, going by the formula for determining the mental age of any child, which is mental age/Biological Age x 100. This means that the petitioner-child has been determined to have a mental age of less than 16 years as per the report of socalled expert. Even as per said report, the petitioner had to be necessarily treated to be below 16 years. As the tests in question, in any case, are for children below the age of 15 years, the IQ of 95, determined by these tests, would obviously translate to a mental age of much less than 15 years in any case.
21. The observations made by the Appellate Authority in para No.16 of the order is reproduced as under :-
“Only requirement was to look into the statement of witnesses already running recorded so far and documents, if any, running collected by that time. That too, in the opinion of this court can well be substituted with the brief summary of the investigation/status report running filed before the Board from time to time as compelling investigating agency to place on record the statements of its witnesses and documents running collected during the course of investigation prior to filing of the final report by the investigating agency amounts to intruding in the sphere of investigation which may hamper a fair and impartial investigation.”
22. The Appellate Court has further held that there was no requirement of giving any statement of witnesses or documents etc. to the petitioner/guardian/parent, which is absolutely in contradiction with the provisions of Rule 10(5) read with Sections 3(iii) and (xvi) read with Section 8(3) of the Act. As a matter of fact, all provisions of the Act as well as the Rules made thereunder have to be read harmoniously, to achieve the objective of the Act.
23. However, learned counsel for the respondent-CBI has tried to convince the Court by stating that the reports/documents are not required to be supplied by considering the factum of confidentiality.
24. The plea of confidentiality as submitted by learned counsel for the respondent-CBI is actually for the protection of the child from third party by considering the privacy of the child. It cannot be interpreted that a delinquent child would not get a fair hearing, whereas, it is the requirement of Section 8(3) of the Act that the participation of the child and the parent or guardian is to be at every step of the process. Section 3 especially states that a positive interpretation has to be given to ensure that an environment is created so that the child should feel comfortable. The confidentiality is required with regard to third party just to protect the interest of the child. All the reports related to the child and considered by the Committee or by the Board are required to be treated as confidential subject to the proviso.
25. Even the Central Bureau of Investigation has also admitted in the proceedings before the Board as well as the Appellate Authority that it does not have such officers, who are specially trained to undertake such investigation, involving children. Meaning thereby, it is clear that the Central Bureau of Investigation does not have such an infrastructure to conduct the investigation for reaching to its logical conclusion keeping in view the special provisons of the Act. All these grounds were mentioned before the Appellate Authority but were not taken into consideration.
26. The argument raised by learned counsel for the respondent-CBI that this Court has a limited jurisdiction to invoke in the revision petition, does not carry any weight because as per provisions of Section 102 of the Act, in case, there is any illegality and perversity or there is non-compliance of mandatory provisions, this Court has a power to exercise the revisional jurisdiction. This view has been supported by the law laid down in cases Jagannath Choudhary v. Ramayan Singh 2002(2) RCR (Criminal) 813 and Rajinder Singh v. Vishal Dingra 2015(8) RCR (Criminal) 453.”
The Division Bench of Hon’ble Rajasthan High Court in Smt. Durga Bherulla Meena v. State of Rajasthan, 2019 Cri LJ 2720 (Raj) has inter alia held that the requirements of Section 15 of the Act are mandatory:
“31. In view of the above discussion made herein above, we conclude as below:
I. that the entire investigation is vitiated for the reason that no female police officer was associated in the investigation against female child offender. Furthermore, the investigation was not conducted by the Special Juvenile Police Unit as warranted by Section 107(2) of the Juvenile Justice Act;
II. that the appellant did not murder her husband in furtherance of any pre-conceived design or in a cold calculated manner, and thus there was no justification for her trial as an adult by a Sessions Court by virtue of Section 15 of the Juvenile Justice Act;
III. that the Principal Magistrate failed to adhere to the mandatory requirements of Section 15 of the Act while holding the enquiry and making the assessment;
IV. that no legal assistance/ effective opportunity of hearing was provided to the appellant child during the preliminary assessment made by the Juvenile Justice Board under Section 15 of the Act and thus also, these proceedings are vitiated;
V. that the preliminary assessment order is also vitiated for the reason that the appellant was unjustly kept confined in the psychiatry ward of the Hospital and because no psychologist or psycho-social worker having experience of working with children in difficult circumstances (as mandated by Section 15(3) of the Juvenile Justice Act), was associated during the enquiry conducted under Section 15 of the Juvenile Justice Act;
VI. While holding the inquiry, the Juvenile Justice Board, failed to adhere to the principle that the child shall be presumed to be (15 of 25) [CRLA-27/2019] innocent unless proved otherwise as mandated by Section 3 of the Juvenile Justice Act read with Rule 10A(3) of the Model Rules, 2016. No consideration of this principle is reflected in the order and thus, the illegality is incurable and goes to the root of the matter;
VII. copy of the order passed under Section 15 of the Act was not provided to the juvenile of thus breaching the mandate of Rule 10A of the Model Rules of 2016;
VIII. that the under-trial child was sent to the District Jail, Pratapgarh vide order dated 19.08.2017 and thus, was treated in gross contravention of the mandate of Section 19(3) read with Section 46 of the Act of 2015 thereby vitiating the entire proceedings before the Sessions Court.
IX. The child suffered incarceration from 16.05.2016 to 11.02.2019 on which date this Court suspended the sentences awarded to her and thus, she has undergone a custodial period of nearly two years and seven months in a prison which course of action is totally prohibited by law.”
The Hon’ble Odisha High Court in Manas Kumar Khuntia v. State of Orissa, 2016(II) Orissa Law Reporter 935 has insisted on mandatory compliance of Section 15 of the Act. It was held
“10. In view of section 15 read with section 14 (5) (f) of the 2015 Act, it is clear that once the child is above the age of sixteen years as on the date of commission of “heinous offence”, he shall be dealt with in the manner prescribed under section 15 of the 2015 Act. The Board shall conduct a preliminary assessment with regard to his 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, and may pass an order in accordance with the provisions of sub-section (3) of section 18. For making such an assessment, the Board may take into the assistance of experienced psychologists or psycho-social workers or other experts.
11. In view of the purpose of amendment for which the Juvenile Justice (Care and Protection of Children) Act, 2015 was enacted after repealing the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) by virtue of section 111 of 2015 Act, it is the requirement of law that in case of a child who has completed or above the age of sixteen years as on the date of commission of “heinous offence”, the Juvenile Justice Board constituted under section 4 of 2015 Act has to make a preliminary assessment in terms of section 15 of 2015 Act. Though in the proviso to Sub-section (1) of section 15 of 2015 Act, the word “may” had been used, but in the context of the provision, when the power is coupled with an obligation and duty, the word “may” which denotes discretion should be construed to mean a “command” and it becomes mandatory otherwise it would defeat the very purpose of the amended Act.
12. The L.C.R. does not indicate that any such assessment has been made and therefore, before adjudicating the bail application, it is felt necessary that a preliminary assessment report in terms of section 15 of the 2015 Act should be called for from the learned C.J.M.-cum-Principal Magistrate, Juvenile Justice Board, Jajpur in J.G.R. Case No.21 of 2016.”
The Hon’ble Delhi High Court in Pradeep Kumar v. State of NCT of Delhi, (2019) 260 DLT 641 (Delhi) has inter alia held
“9. The proviso attached to Section 15 of the Act, provides that the JJ Board may take the assistance of experienced psychologist or psycho-social worker or other experts. Further, the explanation to the Section provides that preliminary assessment is not a trial but is to assess the capacity of such CCL to commit and understand the consequences of the alleged offence.
10. The JJB-II as well as the Appellate Court has taken into consideration, all the parameters and factors mentioned in Section 15 of the Act while passing the impugned order and judgment, respectively. Further, the JJB-II has given a careful thought and consideration to the submissions of both the parties as well as the legal position in this regard. Similarly, the Appellate Court has also given careful thought and consideration to the submissions of the learned counsel for the petitioner. There is no doubt that the JJ Board may seek the opinion of an expert regarding the mental and physical capacity of a CCL to commit an offence and it is not necessary that if an expert opined that the mental and physical capacity of a CCL and his ability to understand the consequence of the offence are positive, then the JJ Board is bound by the expert opinion. It is well within the jurisdiction of the JJ Board to agree or disagree with the preliminary assessment report of the CCL submitted by such a psychologist to the JJ Board. But the circumstances, in which the alleged offence was committed has to be considered by the JJ Board independently, in which the alleged offence was committed and the JJ Board has to apply a judicial mind.”
The Hon’ble Karnataka High Court in Puneet S. v. State of Karnataka, 2019 (4) AKR 662 has held that
“9. Section 15 of the JJ Act is a procedure to conduct a Preliminary assessment to consider this type of heinous offence. The said provision specifically says that if the offence is heinous in nature and the accused person has completed the age of 16 years and if he is below the age of 18 years, the Board shall conduct a preliminary assessment with regard to the mental and physical capacity to commit such offence, and also the ability to understand the consequences of the offence and the circumstances in which, he allegedly committed the offence and thereafter, the Board can pass appropriate orders under sub section (2) of section 15 or under sub section (3) of Section 18 of the JJ Act.
10. For the purpose of analysing and coming to a conclusion to pass order u/s.15 of the JJ Act, the Board has got ample power to take the assistance of an experienced psychologists or Psycho-social workers or other experts. It is also made clear that, if the Board is satisfied on the preliminary assessment and arrived at a conclusion that the Board itself can dispose of the case by following the procedure to try the accused before the Board itself as contemplated under the provisions of the Cr P C and the JJ Act. In such on eventuality, the Board shall not send the Juvenile to the Sessions Court for trial. Therefore, it is crystal clear that such power is exclusively vested with the Board to pass such an order. The main object of Section 15 is to ascertain and assess the total capacity of the accused on the basis of the facts and on the basis of the expert’s opinion if necessary as contemplated under the said provisions. It is not a mechanical power entrusted to the Board. It should also be borne in mind that mere using of the words that “the accused is mentally and physically capable of committing such an offence and ability to understand the consequences and also the circumstances existed to establish the above said factors”, but, the Board has to in detail examine with reference to the surrounding circumstances and if necessary after taking expert’s opinion has to reason out, why the Board is coming to such a conclusion. But, this has not been taken care of by the learned Sessions Judge while passing the impugned order.
11. Be that as it may, as could be seen from the above said provision, the learned Sessions Judge or the Special Judge or the Child Friendly Court, presided over by the learned Sessions Judge have absolutely no power to pass any order u/s.15 of the Act. It is the statutory power vested with the Board. This has completely lost the sight of the Sessions Judge as could be seen from the order itself.
12. Once the Board comes to the conclusion that the Board has got jurisdiction then the Board shall follow the procedure as contemplated u/s.15 of the JJ Act and to proceed with the trial against the accused. If the Board come to the conclusion otherwise than the above, and after inquiry, the Board is of the opinion that the accused after the preliminary inquiry as contemplated u/s.15, feels that there is a need for trial of the child as an adult, then by giving reasons to the effect that the accused/juvenile is between the age of 16 and 18 years, and he was mentally and physically competent to commit such an offence and he was able to understand the consequences of the offence and also the circumstances in which he has committed the offence, then only the Board shall pass order of transfer of the case to the Children’s’ Court/Sessions Court having jurisdiction to try such offence, as specified under section 18(3) of the said JJ Act.
13. Looking from the above said angle, considering the provisions of Sections 15 and 18 of the JJ Act, the II Addl. Sessions Judge, Kolar, had absolutely no jurisdiction to pass order u/s.15 of the JJ Act. The Sessions Court has not even cared to look into the provisions of the Act, but in an over enthusiasm appears to have passed the above said order. Under the above said circumstances, the order is not sustainable either in law or on facts.”
The Hon’ble Bombay High Court in Mumtaz Ahmed Nasir Khan and Others v. State of Maharashtra and Others, 2019 (4) Bom CR (Cri) 261 (Bombay) has inter alia held
“33. As Section 15 permits the Board may, during the preliminary assessment, take the assistance of experienced psychologists or psychosocial workers or other experts. First, the preliminary assessment is “not a trial.” Second, it is, instead, an inquiry to assess the child’s capacity to commit the alleged offence and to understand its consequences. On inquiry, the Board must satisfy itself in its preliminary assessment about the juvenile’s mental and physical capacity, his ability to understand the consequences of the offence, and so on. Then, if the Board is “satisfied on preliminary assessment that the matter should be disposed of”, it will follow “the procedure, as far as may be, for trial in summons case under Cr PC.” The Board’s order is appealable under sub-section (2) of Section 101.
38. A universally accepted ideal is that children are dependent and deficient in the mental and physical capacities, and are in need of guidance. Perhaps, initially, a multi-visual medium like TV; later, a globe devouring internet (appropriately, ominously worded as “world wide web”), and finally-and fatally-the post-truth social media have let the children, especially the adolescents, leapfrog into the adult world. Mostly it is a crash-landing, with disastrous consequences. So the childhood innocence is the casualty. These devices may have made a child bypass his or her childhood, sadly. Then, naturally, the theory of reduced culpability for juveniles relative to adults has taken a statutory dent. The good-old-days icon of a truant child seems to get replaced by the modern-day mascot of a violent predator.
87. So we need to revisit Section 15 of the Act to determine what circumstances compel a juvenile to face the trial as if he were an adult. (1) It must be a heinous offence; here it is. (2) The child must have completed sixteen years; here he has. (3) The Board must have conducted a preliminary assessment; here it has. (4) That preliminary assessment concerns four aspects: (a) the child’s mental and (b) physical capacity to commit such offence; (c) his ability to understand the consequences of the offence; (d) and the circumstances in which he allegedly committed the offence. The preliminary assessment, indeed, has been on all these aspects. Agreed. But has the Board found the child fitting into the scheme on all four counts?
88. I reckon of the four aspects-physical capacity, mental ability, understanding, and the circumstances-none is dispensable. They all must be present, for they are not in the alternative. Let us remind ourselves, just because the statute permits a child of 16 years and beyond can stand trial in a heinous offence as an adult, it does not mean that the statute intends that all those children should be subject to adult punishment. It is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled.
89. Here, the Social Investigation Report records many factors uniformly in the older juvenile’s favor. It misses out on one very vital aspect: the neighborhood perception of the juvenile. It records an improbable circumstance: that in a residential apartment, none was present to provide information on that count. On every other parameter, the Report favors the juvenile. In fact, the juvenile makes a clean breast of the incident or crime and expresses remorse for the accident, as he calls it. It is, true, an extra-judicial confession. So is what the police have extracted from him about the child’s death. The older juvenile did report to the Probation Officer about the police brutality and the Report responds to it. It has informed the Board about the juvenile’s allegation.
90. Despite the older juvenile’s “confession” to crime, the Report records that he has been manipulative and evasive-even contradictory. But the very Report belies it. Perhaps, the gravity of the offence and the public outcry must have heavily weighed on the Report. Let us take, for want of better evaluative norms, Kent’s criteria and assess the Board’s justification to try the older juvenile as an adult:
(1) The seriousness of the alleged offense to the community and whether protecting the community requires a waiver:
The offence serious-even grave-and the community needs protection. But the Social Investigation Report misses out on gathering the community’s opinion whether it needs protection from this juvenile. Is he a predator on the prowl and out to repeat the offence with or without provocation? The older juvenile, in fact, is an ordinary, unremarkable neighborhood boy.
(2) Was the alleged offence committed in an aggressive, violent, premeditated, or willed manner?
No. Even the extra-judicial confession does not spell out that it was.
(3) Was the alleged offense committed against persons or against property, with a greater weight attached to offenses against persons, especially if personal injury resulted.
The alleged offence answers this claim here.
(4) The prosecutive merit of the complaint; that is, is there evidence upon which the court may be expected to return a guilty verdict?
Very likely (only for the evaluative purpose, though)
(5) The desirability of trial and disposition of the entire offense in one court when the juvenile’s associates in the alleged offense are adults.
It does not apply here.
(6) The sophistication and maturity of the juvenile by consideration of his home, environmental situation, emotional attitude, and pattern of living:
Post the alleged offence, the juvenile seems to have displayed some sophistication in making calls of ransom only to deflect the police attention. But the juvenile’s home, environmental situation, emotional attitude and pattern of living are normal or unremarkable. Especially, his family and pattern of living are almost ideal, as per the Report.
(7) The record and previous history of the juvenile, including previous contacts with the law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation or prior commitments to juvenile institutions.
To this criterion, the answer is a clear no. The juvenile had been pursuing his education, had been under strict parental care, and has no criminal track record.
(8) The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by using the procedures, services, and facilities currently available to the juvenile court.
On this count, we may note that post the incident, the parents faced social opprobrium and shunning. They were forced to shift to some other place. They preferred the juvenile to be kept in the Observation Home.
91. In the Observation Home, the older juvenile’s conduct is reported as good. He studiously pursued his studies and even cleared the Board examination. Both the Social Investigation Report and the MH Report reveal that the juvenile has been remorseful about the event and displayed a calm, unagitated mind.
92. The explanation to Section 15 of the Act clarifies that the preliminary assessment is not a trial; it is an exercise to assess the child’s capacity to commit and understand the consequences of the alleged offence.
93. In this context, if the Board’s criteria of evaluation, as affirmed by the Appellate Court, are followed, then every case becomes an open and shut case. If the child is 16 or above and is capable of committing the offence and understanding the consequences, that will suffice. I am afraid it ought to be more than that. The whole endeavor of the JJ Act is to save the child in conflict with the law from the path of self-destruction and being a menace to the society. It is reformative, not retributive. Section 15, I believe, must be read and understood keeping in view the objective that permeates the whole Act and the spirit it is imbued with.
94. That to contain crime, the State must be strict and the punishment must be harsh is an intuitive assertion; but sometimes the solution to the crime are counterintuitive. Steven D. Levitt and Stephen J. Dubner, in their popular book Freakonomics[16] , have hypothesized that the juvenile crime in a few of states of the US has come down thanks to Roe v. Wade, a judgment of the American Supreme Court that legalized abortion. Critics apart, there can be ideas that are worth exploring. It is equally worthwhile, first, to explore for ideas, instead getting stuck in a predictable, plebian approach to societal problems.
98. Merely on the premise that the offence is heinous and that it lends to the societal volatility of indignation, we are bracing for juvenile recidivism. Retributive approach vis-a-vis juveniles needs to be shunned unless there are exceptional circumstances, involving gross moral turpitude and irredeemable proclivity for the crime. Condemned, any juvenile is going to be a mere numeral in prison for a lifetime; reformed, he may redeem himself and may become a value addition to the Society. Let no child be condemned unless his fate is foreordained by his own destructive conduct. For this, a single incident not revealing wickedness, human depravity, mental perversity, or moral degeneration may not be enough. Just deserts are more than mere retribution.
99. The Society, or restrictively the aggrieved person, views any problem ex post; it wants a wrong to be righted or remedied to the extent possible. The courts, especially the Courts of Record, view the same problem ex ante. “It involves looking forward and asking what effects the decision about this case will have in the future”[19]. To be more accurate, the courts balance both perspectives. I reckon Section 15 of the Act requires us to balance both the competing perspectives: ex post and ex ante.
[19] [The Legal Analyst, Ward Farnsworth, The University of Chicago Press, Ed. 2007. P. 5]
100. So I conclude that the Board, in the first place, has mechanically relied on the Social Investigation Report and MH Report, without analyzing the older adult’s case on its own. Similarly, the Appellate Court has also endorsed the order in appeal, without exercising the powers it has under Section 101. So both fail the legal scrutiny; they have failed to exercise the jurisdiction vested in them.”
After an inquiry under Section 15 of the Act, one `a child in conflict with law’ is forwarded to the Children’s Court in terms of Section 18(3) of the Act, the Children’s Court is obligated to decide the issue as to the need for trial of the said child by the Children’s Court a-fresh (vide Section 19(1)). In case the Children’s Court finds that there is a need for trial of the child as an adult as per ordinary procedure of Cr P C (read with Section 4(2) of Cr PC), the Children’s Court may proceed in terms of Section 19(1)(i) of the Act. However, if is it found by the Children’s Court that there is no need for trial of the child as an adult, the Children’s Court may conduct an inquiry under Section 14(5)(e) of the Act. Hence, it is evident that in order to commence trial of a child aged between 16 to 18 years in case of heinous offences the Children’s Court has to conduct an additional inquiry. In this regard attention may be drawn to the provision of Rule 13 of the Central Rules. As per Rule 13(1) Children’s Court is obliged to decide whether there is need for trial of the child as an adult or not and to pass appropriate orders. As per Rule 13(6), the Children’s Court shall record its reasons while arriving at a conclusion in passing an order under Section 19(1) of the Act.
The Hon’ble Delhi High Court in CCL LK @ LKP v. State, (Delhi), 2019 (262) DLT 319 has interpreted Section 19(1) of the Act read with Rule 13 of the Central Rules and held as follows:
“19. Though, once again the expression used in Rule 13(1) is that the Children’s Court may decide, however, Rule (6) uses the expression ‘shall’ and mandates the Children’s Court to record its reasons while arriving at a conclusion whether the child is to be treated as an adult or as a child.
20. Rule 13(7) stipulates that in case the Children’s Court decides that there is no need for trial of the child as an adult, then it shall decide the matter itself. It is thereafter to conduct an inquiry as if it was functioning as a Board and follow the procedure for trial in summon cases under Cr. P.C.
21. Rule 13(8) stipulates that in case the Children’s Court decides that there is need for trial of the child as an adult, it is to follow the procedure prescribed by Cr. P.C. or trial by Sessions.
22. Reading of Rule 13 in conjunction with Section 19 of JJ Act clearly shows that it is obligatory on the part of the Children’s Court to take a decision after receipt of the preliminary assessment report from the Board as to whether there is need for trial of the child as an adult or as a child. Appropriate speaking order recording reasons for arriving at the conclusion is to be passed by the Children’s Court.
23. In the present case, once the preliminary assessment report was received from the Board opining that the child should be treated as an adult, record does not reveal any application of mind or an independent decision taken by the Children’s Court in terms of Section 19 read with Rule 13(1) and 13(6). The Children’s Court has thereafter proceeded on to frame charges by the impugned order.
24. Perusal of the record further shows that the testimony of the child victim has already been partly recorded before the trial court.
25. No doubt, the Children’s Court has not passed an order under Section 19, independently taking a decision as to whether the petitioner is to be tried as an adult or as a child, the same in my opinion would not vitiate the proceedings, thereafter undertaken but, would be an irregularity which would be curable.
26. The reason for holding so, is that in both eventualities, i.e. trial as an adult and trial as a child, the proceedings have to continue before the Children’s Court.
27. In terms of Rule 13(7) in case the Children’s Court decides that there is no need for trial of the child as an adult, then, it (Children’s Court) has to conduct an inquiry as if it were functioning as a Board and following the procedure for trial of the summon cases.
28. In case the Children’s Court decides to try the child as an adult, then, it (Children’s Court) has to conduct the trial following the procedure of trial by Sessions Court.”
The two-tier inquiry as conceptualized under the Act cannot be diluted under any circumstances either by the Board or by the Children’s Court even though no objection was raised from the defence. It is trite law, nevertheless fundamental that a Legislative wisdom decision cannot be abjured by resorting to the equitable doctrine of waiver [Vide: The Deputy Legal Remembrancer on behalf of the Government of Bengal v. Upendra Kumar Ghosh, (1907-1908) XII Cal WN 140 at Page 143].
Apart from that under Section 3 of the Act no waiver of right of the child is permissible or valid (vide (ix)).
From the facts and circumstances as narrated hereinabove, it is evident that under the Act and the Central Rules there are two tier inquiry contemplated before forwarding a child in conflict with law aged between 16 to 18 years for alleged commission of heinous offence to the Children’s Court and the procedure of such inquiry as contemplated are to be strictly construed by the Board and the Children’s Court respectively.
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“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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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.