A

DISSERTATION
ON

JUVENILE JUSTICE SYSTEM: A COMPARATIVE STUDY OF

POLICY AND PRACTICES

LLB 502
X SEMESTER
B.B.A. LL.B. (M)

BY

ARPIT MAGGO
40717703516

SUPERVISOR:
RAJNI KHERIA
(Professor, VIPS, IPU)

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES

GGSIP UNIVERSITY

JUNE,2021
!

1
 DECLARATION

I, hereby declare that the dissertation entitled "Juvenile Justice System: A Comparative Study Of Pol-
icy & Practices” is based on original research undertaken by me and it has not been submitted in any
University for any degree or diploma.

Place: New Delhi, India

Date: 22nd June 2021

Arpit Maggo

2
 CERTIFICATE

This is to certify that the dissertation entitled “Juvenile Justice System: A Comparative Study Of Pol-
icy & Practices” has been prepared by Arpit Maggo, a student of Vivekananda Law School, Viveka-
nanda Institute of Professional Studies under my supervision and guidance. I recommend it for eval-
uation.

Place:
Date:
(Signature Of The Guide)

3
 ACKNOWLEDGMENT

If I try to express my sense of gratitude to all those who have assisted my in this work my task would
be enormous. Each one with whom I had discussion on the subject has contributed something useful
and revealing. I feel greatly indebted to my supervisor, Ms. Rajni Kheria, Professor, Vips, IPU, Delhi
for suggesting the problem to work upon, for proof reading my drafts, pointing out my errors, helping
me in improving my work to bring it to its current form and also for their encouragement, kindness
and patience throughout the work which I will always cherish.

It would be impossible for me during my whole life to search any word or phrase to express my rev-
erence to my parents who were the strong inspiring force behind my taking up and accomplishing this
task.

Lastly, I shall ever remain indebted to members of my family and friends, without whose active co-
operation and encouragement it would not have been possible for me to have this work accomplished.

New Delhi

Arpit Maggo!

4
 LIST OF ABBREVIATIONS

AC : Appeals Cases (in U.K’s official Law Reports series)

AIR : All India Reporter

AP : Andhra Pradesh

All ER : All England Reports

All : Allahabad

CRC : Convention on the Rights of the Child, 1989

CWC : Child Welfare Committee

Cal : Calcutta

Cr App R : Criminal Appeal Reports

Crim LR : Criminal Law Review

Cri LJ : Criminal Law Journal

Cr.L.R. : Criminal Law Review

Cr.P.C. : Criminal Procedure Code

FIR : First Information Report

IPC : Indian Penal Code

i.e. : id est, meaning that is [Latin phrase]

Ibid : cited in the preceding footnote

JJA : Juvenile Justice Act, 1986

JJS : Juvenile Justice System

JJB : Juvenile Justice Board

Ker : Kerala

5
MLJ : Madras Law Journal

MP : Madhya Pradesh

Mad : Madras

No. : number

Ori : Orissa

Pat : Patna

pp. : page

Parens patriae : [Latin] father of the nation

Raj : Rajasthan

QB : Queen’s Bench

SC : Supreme Court of India

SCALE : Supreme Court Cases

SCC : Supreme Court Cases

Suo moto : [Latin] by its own motion or its own accord

Supra : mentioned above or earlier

In toto : [Latin] entirely or completely or in total

U.K. : United Kingdom

UN : United Nations

U.S.A. : United States of America

Vis-à-vis : in relation to; with regard to.

6
 TABLE OF CASES

Ajay Pratap Singh v. State of Madhya Pradesh 2000(1) C.CrJ. 137 (MP)

Antaryami Patra v. State of Orissa 1993 Cri LJ 1908 (Ori)

Arnit Das v. State of Bihar AIR 2000 SC 2264

Aquil Alvi v. State Of UP 1996 Cri LJ 103

Bakau Pande & others v. State of Bihar, AIR 2004 SC 997

Bhola Bhagat v. State of Bihar AIR 1998 SC 236

Deoki Nandan Dayma v. Stale of Uttar Pradesh (1997) 10 SCC 525

Dharam Pal v. State AIR 1975 SC 1917

Dhruvendra Singh v. Stale of Rajasthan 1990 Cr. L.R 481(Raj)

Dilip Saha v. State of West Bengal AIR 1978 CAL 529

Gaurav Jain v. Union of India and others AIR 1997 SC 3021

Gopinath Ghosh v. State Of West Bengal AIR 1978 CAL 529

Harnam Singh v. State AIR 1976 SC 2071

Jagdish Bhuyan v. State 1992 Cri LJ 3194 (Gah)

Kakoo v. State AIR 1976 SC 1991

7
Karuppayee and another v. State 1997 Cri LJ 1627 (Mad)

Kishan Pishan v. UOI Wrt 5044 of 2019

Krishna Bhagwan v. State of Bihar 1991 Cri LJ 1283

Ku. Anita v. Atal Behari 1993 Cri LJ 549

Lakhi Sahu (Kanu) v. Emperor AIR 1932 (Cal) 487

Mohd. Dahaur Mia v. State of Bihar 1995 (2) Crimes116 (Pat)

Nazir Hosain Halder v. State Of West Bengal 1998 Cri LJ 1720

Pratap Singh v. State of Jharkhand 2004(5) SCALE 617

Radhika v. State Of U.P CA 4418

Rahul Mishra v. State of Madhya Pradesh 2001 Cri LJ 214

Rajender Chandra v. Chandigarh Administration AIR 2000 SC 748

Rajendra v. State of Uttar Pradesh 1997 Cri LJ 2700 (All)

Rajindra Singh Gorkhi v. State Of UP (2000) 5 SCC 488

Ramchandran . Inspector of Police 1993 Cri LJ 3722 (Mad)

Sanjay Kumar v. State 2000 Cri LJ 1918 (MP)

Sheela Barse v. Union of India AIR 1986 SC 1773

8
Shilpa Mittal v. State Of Delhi NCR SLP 7678 of 2019

Sidharth v. State of Bihar AIR 2005 SC 4352

Sri Krishna v. State of UP AIR 1991 SC 43

State v. Dundaria Mahala 1961Cri LJ 815

Sunil Kumar v. State 1983 Cri LJ 99 (Ker)

Superintendent, Central Jail, Hyderabad v. C. Narsim- 1999 Cri LJ 1425 (AP)

hulu

Umesh Chandra v. State of Rajasthan 1982 Cri LJ 994

Vishal Jeet v. Union of India AIR 1992 SC 1412

Vikas Chadha v. Vikas Choudhary & Anr 2008(9) SCR 911

9
 TABLE OF CONTENTS

CONTENTS PAGE NO.

1- Declaration 2
2- Certificate 3
3- Acknowledgement 4
4- Abbreviations 5
5- Table Of Cases 7
6- Chapter 1: Introduction 12-16
7- Chapter 2: Psychological Approach 17-30

2.1 Concept of Juvenile

2.2 Juvenile Delinquency
2.3 Causes of Juvenile Delinquency
2.4 Juvenile Justice System
2.5 Crime and Delinquency
2.6 Problems of Juvenile Delinquency
2.7 Some regional aspects of Juvenile Delinquency
2.8 International Conventions
2.9 Psychological Approach
2.10 Should Juvenile Offenders be charged as an adult?
2.11 Biological Approach of Juvenile Crimes
2.12 Conclusions regarding Psychological Interventions

8- Chapter 3: A Indian Legal Scenario 31-64

3.1 Indian Legislation

3.2 The Normative Structure
3.3 The Juvenile Justice Act, 1986
3.4 The Juvenile Justice Act, 1986 and Juvenile Justice (Care and Protection) Act, 2000
3.5 The Juvenile Justice (Amendment Act) 2006
3.6 Juvenile Justice (Care and Protection) Act, 2015

10
 3.7 Authorities working for Juvenile Justice
3.8 Conclusion
3.9 Leading cases on Juvenile Justice
3.10 Fixing of Age

9- Chapter 4: Foreign Law 65-84

4.1 United States Of America

4.2 United Kingdom
4.3 France
4.4 Australia

10- Chapter 5: Impact Of Covid-19 On Children’s Rights 85-96

5.1 Introduction
5.2 General Recommendations
5.3 Directions for Prevention of Children from Covid-19 issued by Supreme Court
5.4 UNICEF access to justice at the time of Covid-19
5.5 Conclusion

11- Chapter 6: Conclusion & Suggestions 97-107

6.1 Conclusion
6.2 Issues
6.3 Suggestions

12- Bibliography 108-110

11
 CHAPTER 1
INTRODUCTION!

INTRODUCTION

Juvenile Delinquency is a big problem in India and world over. There can be no denial to the fact that
today’s delinquent child if not properly taken care of, will be tomorrow a criminal. Delinquency
amongst children can be controlled before they become serious threat to the society. The statistics
provided by various agencies from time to time show an upward trend in the incidents of crime by the
juveniles. There is need to have a thorough study of various facts and causes leading to delinquencies,
disorderly conduct, vagrancy and conflict of a child with law and also the solution to the problem
including proper protection and rehabilitation of the delinquent child.

OBJECTIVE OF DISSERTATION

1. To critically analyse the implications of Juvenile Justice Act in India and across the globe.

2. To furthermore discuss the scope of the Act w.r.t. the procedural laws.

3. To critically analyse the juridical dispute and resolves vis-a-vis the present socio-legal approach

towards juveniles.

4. To study various judgements to discuss the position of Juvenile Justice.

RESEARCH METHODOLOGY

The methodology to be adopted by the researcher will be purely doctrinal in nature. The research shall

involve an in-depth study of two types of source materials i.e., primary materials and secondary

materials. Primary materials shall consist of text of laws, government reports, judgments etc. on the

issue and secondary materials shall consist of books, articles, research papers, etc. The research

shall include the evaluation of numerous case studies and the use of internet shall be made to gather

12
important information regarding the issue of research. The research shall be analytical and

descriptive in nature.

CHAPTERISATION

• CHAPTER ONE: INTRODUCTION

This Chapter contains the Introduction to the Dissertation , Chapterisation, Objective, Litera-
ture Review and the Hypothesis.

• CHAPTER TWO: PSYCHOLOGICAL APPROACH

This Chapter states for the meaning of the term “Juvenile” and “Juvenile delinquency” and
causes of Juvenile Delinquency. It further goes on to elaborate the Juvenile Justice System in
India. It also deals with the approaches to delinquent and criminal behavior from a psycholog-
ical perspective with main focus on the issues and the causes of juvenile delinquency.

• CHAPTER THREE : INDIAN LEGAL SCENARIO

The problem of Juvenile Delinquency is not new. It occurs in all societies simple as well as
complex. Considering the magnitude of the problem and the issues involved all the legislations
for combating the issue of “Juvenile Delinquency” are discussed in this chapter.

• CHAPTER FOUR: FOREIGN LAWS

This chapter talks in detail about the Juvenile laws prevailing in countries like U.S.A., U.K.,
France and Australia. Through this chapter the researcher seeks to analyze as to what features
of the Juvenile Justice System prevalent in these four countries can be incorporated into the
Indian Juvenile Justice System for the development and better working of our system.

13
• CHAPTER FIVE: IMPACT OF COVID-19 ON CHILDREN’S RIGHTS

This chapter contains how the COVID-19 pandemic has impacted the rights of children in India
and all over the world. The measures taken by the government to protect the well-being of the
children during and after the COVID-19 pandemic.

• CHAPTER SIX: CONCLUSION AND SUGGESTIONS

In this final chapter the researcher ends the dissertation by mentioning the main issues that
exist as of today in the Juvenile Justice System and various suggestions have been made in
order to ensure that the menace of juvenile delinquency is combated. With this regard this
chapter states for the various suggestions provided by the legal fraternity and ends on by stating
the suggestions on it.

LITERATURE REVIEW

• Becker1 (1968) had reported that juvenile’s delinquency could be a rational response to the incen-
tives for legal and criminal activities. According to him the estimation shows that the youth will
engage in criminal behavior if the potential gains are large enough and likelihood of substantial
punishment is relatively low.

• Camenor and Phillips (2002)2 observed that fathers play a critical role in the rearing of boys at a
tender age and having a step-father also increases the delinquency among the children rather than
having a step-mother.

• Juby and Farrington3 (2001) claimed through three theories that explain the relationship between
the distorted families and delinquency. According to his first theory i.e. trauma theory the loss of
parents results in the damaging effect on children because of the attachment they had with their

1
Becker, G. S. (1999). Crime and Punishment: An Economic Approach', Journal of Political Economy. International Library
of Critical Writings in Economics, 111, 141-189.
2
Comanor, W., & Phillips, L ,The impact of income and family structure on delinquency, 1995.
3
Juby, H., & Farrington, D. P, Disentangling the link between disrupted families and delinquency: Sociodemography,
ethnicity and risk behaviours. British Journal of Criminology, 2001.

14
 parents. Further according to his second theory i.e. Life course theory points separation as a long
drawn out process rather than a discrete event, and on the effects of multiple stressors typically as-
sociated with separation, and according to the last theory i.e. selection theory which contended that
the distorted families is the prime reason behind delinquency because of the pre-existing difference
in the income of the family and the method of child rearing.

• According to K.S Narayan (2005) despite the decrease in the incidence of juveniles crimes at both
absolute and relative level, but in urban and rural it is reported often that the practices of juvenile
servitude, child labor, domestic juvenile servitude and girl juvenile trafficking. Such reports claim
the examination of juvenile problems.

• Moffitts4 (1993) it marks the difference between on those who committees crime in early age and
continue it throughout the life and the offenders who commit offence during their teen age. In the
words of Tomovic VA Juvenile delinquency is the condition arising out of the socio-personal dis-
organization in the sequence of experience and influences that shape behavior problems. Basically
it is considered as the product of social process involving numerous variables and the failure of so-
cial and personal controls.

• Peiser5 (2001) according to him the parental discipline pattern is a key to examine the contribution
of family and personality factor to delinquency, he too claimed that the self-esteem is an important
factor in the development of delinquency, in some countries a comparative study was conducted in
this view of self-esteem where according to Kaplan (1957, 1977, 1978, and 1980) negative self-
esteem is the output of the situations in the adolescent is unable to defend their self-image and situ-
ations like school failure, rejection by school, parental rejection and some environmental factors
results in the delinquency among juveniles.

• Weatherburn and Lind6 (1997) they observed the reason for the delinquency in rural and urban ar-
eas. According to them socio-economic reasons are the basic cause which leads to the increasing
offence in the rate among juveniles.

• Rights Of The Children In The Times Of COVID-19 observed the steps the government needs to
take to ensure the safety of children and their rights in the times of COVID-19.

4
Moffitt, T. E. , Adolescence-limited and life-course-persistent antisocial behavior: A developmental taxonomy (2017).
5
Peiser, N. C. , The impact of family relations and personality factors on delinquent behaviours among youth, (2001
6
0. Weatherburn, D., Ku, S., & Lind, B. ,Social and economic stress, child neglect and juvenile delinquency. Sydney(2001).

15
• Impact Of COVID-19 on Children’s Access to Justice by Unicef Observed the access to justice of
children at these times.

HYPOTHESIS

There is Definite and significant laws in India in the concept of Juvenile Justice ( Care & Protection)
Act, 2015. the government of India despite in best intentions and efforts lacked the power to order
implementation. Ongoing failure of a system presupposes the ongoing existence of some stumbling
blocks in the proper implementation itself. Therefore, this study adopts the hypothesis that there are
some other major stumbling blocks in the effective implementation of juvenile justice system in India.

16
 CHAPTER 2
INTRODUCTION AND PSYCHOLOGICAL APPROACH

2.1 CONCEPT OF JUVENILE

Before the establishment of juvenile court, children under the age of 7 were never held responsible for
criminal misconduct. The law considered them incapable of forming the necessary criminal intent. But
this belief was negated by showing that the children as young as aforementioned understood that the
act committed by them amounted to criminal offence yet indulged in it. It was therefore, agreed that
children above the age of 14 could be charged for committing crime and must be handled in the same
manner as an adult criminal.

A “Juvenile” or “Child” means a person who has not completed 18 years of age. A boy or girl under
18 years of age is a juvenile or child under section 2(35) of Juvenile Justices act 2015. The age of
juvenility of a boy under Juvenile Justice Act 1986 (hereinafter JJA 1986) was below 16 years and that
of a girl child was below 18 years of age7. People had campaigned to increase the age of boy juveniles
to bring it on par with girl juveniles.

The age of a boy juvenile has been increased to 18 years of age by Juvenile Justices act 2000 mainly
to bring juvenile legislation into conformity with the Convention on the Rights of the Child, 1989
(CRC) which the Government of India had ratified8 on 11th December 1992.

It is argued, that due to the increase in the age of boy juveniles under the 2000 Act, a much larger
number of juveniles in conflict with law are entering the juvenile justice system, therefore, the existing
infrastructure is insufficient to cope with this added burden. Some officials have demanded that the
age of boy juvenile be reduced to 16 years.

Juvenile Justice (Care and Protection of Children) Act, 2015 has been 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 allows for juveniles in conflict with Law in the age group of 16–18, involved in Heinous
Offences, to be tried as adults.

7
Juvenile Justice Act, 1986, s2(h).
8
‘Ratification’ is the act by which a country shows its willingness to be bound by an international instrument.

17
2.2 JUVENILE DELINQUENCY

Etymologically, the term “delinquency” has been derived from the Latin word delinquer which means
to “omit”. William Coxson in 1484, used the term “delinquent” to describe a person found guilty of
customary offence.

The National Probation Association of United States defines a delinquent child as:

(a) A child who has violated any law of the state or any .ordinance or regulation of a subdivision of a
state.

(b) A child who by reason of being way ward or being habitually disobedient is uncontrolled by his
parents, guardian or custodian.

(c) A child who habitually so deports himself so as to injure or endanger the morals or health of
himself or the other.

Penologists have interpreted the term “juvenile delinquency” differently. Generally speaking the term
refers to a large variety of disapproved behaviors of children and adolescents which the society does
not approve, and for which some kind of punishment, admonishment or corrective measures is justified
in public interest. Thus the term has a very extensive meaning and includes rebellious and hostile
behavior of children and their attitude of indifference towards the society. Certain other acts such as
begging, truancy, vagrancy, obscenity, drinking and gambling etc., which youngsters very often com-
mit, are also included within the meaning of the term “juvenile delinquency”. It may, therefore, be
referred that a delinquent juvenile is an adolescent person between childhood and manhood or wom-
anhood, as the case may be, who indulges in some kind of anti-social behavior, which if not checked,
may turn him/her into a potential offender. ‘Juvenile delinquency” has become a global phenomenon
these days.

2.3 CAUSES OF JUVENILE DELINQUENCY

The main causes of juvenile delinquency are thought to be –

(i) The industrial development and economic growth has resulted into urbanization which in turn
has given rise to new problems of lack of proper housing facilities, slum dwelling, overcrowd-
ing in metros, lack of parental control and family disintegration amongst others. The high cost

18
 of living in urban areas makes it necessary, even for women, to take up outdoor job for sup-
porting the family financially. As a result the children are left neglected at home without any
parental control. Moreover the temptations for modern luxuries of life prompt youngsters to
resort to wrongful acts to satisfy their wants. All these factors cumulatively lead to an enormous
increase in Juvenile Delinquency in urban areas.

(ii) Disintegration of family system and laxity in parental control is yet another cause of increase
in Juvenile Delinquency.

(iii) Unprecedented increase in divorce cases and matrimonial disputes can also be attributed as one
of the causes for disrupting family solidarity. The psychological effects of broken marriages
on children can be immense and often force them to withdraw from society and indulge in
practices which otherwise are views as illegal or immoral.

(iv) Biological factors such as early psychological maturity or law intelligence also account for
Juvenile Delinquency. The age of puberty has gone down by 3-4 years so the children fall prey
to sex involvements as they are not mentally matured.

(v) Poverty is identified as yet another potential cause for Juvenile Delinquency. Failure of parents
to provide even basic necessities of life such as food and clothing etc., draw children towards
delinquency. Due to lack of resources and their hunger to get more they indulge in criminal
activities, unmindful of the consequences.

(vi) Besides the aforementioned reasons, illiteracy, child labor, filthy lifestyle etc., are also some
of the contributing factors to Juvenile Delinquency.

2.4 JUVENILE JUSTICE SYSTEM

The concept of Juvenile Justice System (JJS) was derived from a belief that the problems of Juvenile
Delinquency and youth in abnormal situations are not amenable to resolution within the framework of
the traditional processes of criminal law. JJS, therefore, is not designed to respond to the needs of
young offenders only. One principal role of JJS has been to provide preventive and specialized treat-
ment services for children and youngsters as a means of "secondary prevention", rehabilitation and
improved social life. During the ‘7th UN Congress on Prevention of Crime and Treatment of Offend-
ers’, three approaches to Juvenile Justice were identified. They were:

(i) The due process model, which places justice for juveniles in the protection of substantive and
procedural rights of young persons involved with legal processes.

19
(ii) The welfare or parens patriae model, which considers Juvenile Justice primarily in terms of
interventions that foster the economic and social well-being of young persons in contact with
the legal system.

(iii) The participatory model, which views Juvenile Justice as requiring the active participation of
the community in containing the harmful behavior of young persons, the integration of mar-
ginalized youth or young offenders into the mainstream of social life, and the minimization of
formal legal intervention.

Analyses have shown that Juvenile Justice Models in different countries have combined the character-
istics of the above mentioned models to suit their own needs. Like most of the JJS systems across the
globe, the JJS in India too cannot be described entirely in terms of one of these models but rather in
terms of a combination of them, with features from the welfare modified justice and justice and crime
control models. As in the crime control and justice models the law in relation to delinquent children in
India focuses on the criminal offences and police, lawyers and judges are the prime actors. There is
possibility of punishment also, even though only in exceptional circumstances. For children in need of
care, the law is closer to the welfare and modified justice models, allowing comparatively more but
not complete informality in processes, doing away with lawyers and judicial officers and involving
child care experts focusing on their development, growth and social reintegration.

The term "Juvenile Justice" has been given different meanings in different contexts. It has been vari-
ously used to refer to the juvenile court and to a stream of affiliated institutions that take responsibili-
ties for control and rehabilitation of the young, including the police, the juvenile court in itself, the
prosecuting and defense attorneys, the juvenile detention centers, and juvenile correctional facilities.
In its wider perspective it includes provisions for the welfare and wellbeing of all the children in need
of care and protection, while the formal system of Juvenile Justice actually deals with those who are
already in conflict with law or are likely to be so, for various reasons. It also implies fairness and
justice towards juveniles in the political, social and economic spheres. This term is therefore, used to
refer to social as well as juridical justice. India seeks to provide social and juridical justice to neglected
and delinquent children through the use of code, constables, court, and residential institutions for both
categories of children; those committing an offence and others living in circumstances likely to lead
them into a life of crime. The legislation incorporating the JJS has been making provisions for the care,
protection, treatment, development, and rehabilitation of neglected and delinquent juveniles, and for
the adjudication of certain matters relating to and disposition of delinquent juveniles. Their provisions

20
govern the relationship between children and police, adjudicatory bodies, correctional homes, proba-
tion services, community participation and after care programs.

The Constitution of India recognizes the special status of children through Articles 15(3), 24, 39(e)
and (f) and 45. India's National Policy for Children adopted in 1974 declares that children are su-
premely important national assets. In pursuance of the constitutional directions various laws have been
enacted covering a wide range of matters relating to children. Some of the important statutes are Child
Labour (Prohibition and Regulation) Act, 1985, The Juvenile Justice Act, 1986 now repealed and the
present Act is Juvenile Justice (Care & Protection of Children) Act, 2000.

2.5 CRIME AND DELINQUENCY

The term delinquency rather than crime is used when either a child or an adolescent commits an of-
fence. It desires to draw a distinctive line between delinquency and criminality; it is perhaps due to the
fact that Juvenile Delinquency starts with no definite purpose or motive. At the first stage, there is no
motive of material gain. The offence is committed just to earn livelihood with minimum labor. More-
over, Cesare Beccaria, the founder of Classical school of criminology, while discussing punishment
for criminality has exempted the children and the insane from punishment viewing that the children
are incapable of skillful judgments as to the importance of their acts. Hence, in case of crime, there
should a definite motive or purpose, a capacity of skillful judgment of the act. While delinquency
includes any type of wrong doing, either having a motive of material gain or not, a delinquent child
can be defined as a 'wayward, incorrigible or habitually disobedient child'.

Thus running away from school, truancy, visiting places where liquor is used, wandering about pro-
tected places, indulging is sexual promiscuity, associating with deviants smoking cigarettes and the
like are considered as juvenile offences. So it can be said that delinquency is more inclusive in nature,
although the range of inclusion varies among different societies of the world. It can be seen that which
is an offence to a juvenile is not an offence to an adult. For example running away from home or
smoking cigarettes is not considered as an offence when committed by a juvenile. Hence, the term
delinquency rather than crime is used in a wider sense of the concept. Juvenile Delinquency is one of
the major social problems of deviation, which almost all the modern societies have to face. To state an
example, the category of activities being recognized in the United States as delinquent acts are as
follows:-

(i) Driving a car without license

(ii) Skipping school

21
(iii) Running away

(iv) School probation or expulsion

(v) Stealing items

(vi) Gang lighting

2.6 PROBLEMS OF JUVENILE DELINQUENCY

he problem of Juvenile Delinquency is becoming more complicated and universal. The crime preven-
tion programs are either unequipped to affect this realities or don't exist. Many developing countries
have done little or nothing to affect these problems, and international programs are obviously insuffi-
cient9.

A grave problem like delinquency can't he solved by means of legislation and government efforts
alone. As far as India cares in many of the States children acts haven't been effectively enforced. Some
of these acts themselves have lesser effects. Official machinery isn't effectively used for controlling
this problem. Government as well as private agencies must work hand in glove with all sincerity and
seriousness to find on effective remedies for the problem of Juvenile Delinquency. The public attitude
towards juvenile delinquents must also change. A delinquent may be a product of unwholesome envi-
ronment congenial for the event of his faculties in conformity with social expectations.10 Developed
countries are engaged in activities aimed at juvenile crime prevention, but the overall effect of these
programs is rather weak because the mechanisms used are often inadequate to address the existing
situation.

On the whole, current efforts to fight juvenile delinquency are characterised by the lack of systematic
action and the absence of task-oriented and effective social work with both offenders and victims,
whether real or potential. Analysis is further complicated by a scarcity of international comparative
data.

Different approaches are utilized in scientific and practical literature on juvenile crime and violence,
to define and explain delinquent behaviour by children . To criminologists, delinquency encompasses
all public wrongs committed by children between the ages of 12 and 20.

9
United Nations: Report of the Secretary-General. (2003). World Youth Report 2003: The Global Situation of Young Peo-
ple.
10
Nayak, B. K. (2013). Juvenile delinquency: its magnitude and impact at Gondar town in Ethiopia. International
Journal of Management and Social Sciences Research, 2(9), 14-21.

22
In an attempt to explain the theoretical underpinnings of delinquency, sociologists associate the spe-
cifics of youth behaviour with their home situation, family, neighbourhood, peers and many other
variables that are considered to leave an indelible impression on young people's social environment.
We must not overlook the fact that anti-social behaviour may be a normal part of growing up or the
beginning of a long-term pattern of criminal activity.

2.7 SOME REGIONAL ASPECTS OF JUVENILE DELINQUENCY

While certain aspects of delinquency are universal, others vary from one region to a different. As a
rule, cultural contexts are important in understanding the causes of delinquency and developing cul-
turally appropriate measures to affect it. In Africa, delinquency tends to be attributed primarily to
hunger, poverty, malnutrition and unemployment, which are linked to the marginalization of juveniles
within the already severely disadvantaged segments of society. One-half of all households in Africa
live in poverty. Many of the urban poor sleep in slum and squatter settlements with overcrowded,
unhealthy housing and a scarcity of basic services. It is here that the bulk of urban youth and youngsters
live.

One of the foremost serious problems is that the great number of street and orphaned children, whose
numbers are growing as a result of continuous and multiple armed conflicts, the advent of HIV/AIDS,
and therefore the breakdown of a centuries-old way of living and social organization. Juvenile crime
and delinquency are on the increase, a trend also linked to the rapid and dramatic social, political and
economic changes that have taken place in Africa in recent decades. The principal offences committed
by children are theft, robbery, smuggling, prostitution, the abuse of narcotic substances, and drug traf-
fic.

In Asian countries, juvenile crime and delinquency are largely urban phenomena. Statistically, as is
true elsewhere, children constitute the foremost criminally active segment of the population. The most
noticeable trends within the region are the increase in the number of violent acts committed by chil-
dren, the rise in drug-related offences, and therefore the marked growth in female Juvenile Delin-
quency.

The sharpest increase in the rate of juvenile violence in most Western European countries occurred
within the mid-1980s or early 1990s. In some countries, the official figures rose between 50 and 100
per cent. In England and Wales, for instance, approximately 360 of each 100,000 youths aged 14-16
years were "convicted or cautioned by the police" for violent crimes in 1986; by 1994, that figure had
increased to in Western Germany in 1984, the amount of 14- to18-year-olds suspected of violent

23
crimes was approximately 300 per 100,000; by 1995, that figure had more than doubled to approxi-
mately 760 per 100,00511.

In most European Union countries, the rise in juvenile crime has corresponded to observed increases
in poverty and unemployment rates among vulnerable groups. The overall crisis in Eastern Europe and
therefore the Commonwealth of Independent States deriving from the transition to market-based econ-
omies has contributed to an increased tendency towards criminal behaviour, owing mainly to the weak-
ening of the primary institutions of socialization (the family, the public education system, recreation
services, work collectives and the informal peer environment) and to personal alienation. Juvenile
Delinquency within the region is most frequently associated with the unemployment of both children
and fogeys, poverty within the family, or pressures on overworked parents to successfully maintain
the traditional guardianship of children.

2.8 INTERNATIONAL CONVENTIONS

2.8.1 UNITED NATIONS CONVENTION ON THE RIGHTS OF CHILDREN, 1990 (UNCRC)

Article 40(3)(a) of the U.N. Convention provides that a child who has been accused of getting violated
the penal law shall have the subsequent guarantees: to be presumed innocent until proven guilty con-
sistent with law, to be told promptly of the fees against him and to possess legal or other appropriate
assistance within the preparation of his defence, to possess the matter determined without delay by a
competent and impartial authority or judicial body, to not be compelled to confess guilt, and to look at
witnesses. Moreover, the state can establish a minimum age below which children shall be presumed
to not have the capacity to infringe the penal law. Therefore, in accordance with the U.N. Convention,
the JJA has established an age limit of 18, below which a person could not be deemed to have the
capacity to commit an offence. But, the U.N. Convention doesn't prohibit prosecuting a child under 18
who has committed an offence under the regular penal laws.

Article 1 gives the definition of a “child” as follows: “For the purposes of the present Convention, a
child means every human being below the age of eighteen years unless, under the law applicable to
the kid, the majority is attained earlier.”

Article 37(a) of the CRC prohibits the imposition of capital punishment and life imprisonment without
the possibility of release on offenders below 18 years of age.

11
Pfeiffer, C. (1998). Trends in juvenile violence in European countries. US Department of Justice, Office of Justice Pro-
grams, National Institute of Justice.

24
2.8.2 UN STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE (“THE
BEIJING RULES”)

They were adopted by the General Assembly of the United Nations in 1985.

Rule 4.1 mandates Member States to refrain from fixing a minimum age of criminal responsibility that
is too low, bearing in mind the facts of emotional, mental and intellectual maturity.

“4.1 In those legal systems recognizing the concept of the age of criminal responsibility for juveniles,
the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emo-
tional, mental and intellectual maturity.”

Rules 17.1, the guiding principles of adjudicating matters involving juveniles are enlisted:

a) The reaction shall always be proportional to not only the circumstances and therefore the grav-
ity of the offence, but also to the circumstances and wishes of the juvenile also as to the needs
of society;

b) Restrictions on personal liberty of the juvenile shall be imposed only after careful consideration
and shall be limited to the possible minimum;

c) Deprivation of private liberty shall not be imposed unless the juvenile is adjudicated of a sig-
nificant act involving violence against another person or of persistence in committing other
serious offences and unless there is no other appropriate response;

d) The well-being of the juvenile shall be the guiding factor while considering his case.

It is clear that the Beijing Rules don't prohibit the detention of a juvenile if he's proved to possess
committed a violent, serious offence, or to possess repeatedly committed such serious offences though
Rule 17.2 of the Beijing Rules prohibits the imposition of execution of juveniles. Thus, the principles
don't advocate leniency in handling such offenders but only contemplate that detention is limited to
the foremost serious cases where no other alternative is found appropriate after careful consideration.

2.8.3 HAVANA RULES

Rule 12 provides that a juvenile should be bereft of his/her liberty only as a measure of the pis aller
limited to exceptional cases and for the minimum necessary period. Even then, detention should be in
such a fashion and in conditions that respect the human rights of juveniles.

25
Rule 11(a) of the Havana Rules, 1990 define a juvenile as every person under the age of 18 and allow
national laws to determine a minimum age below which such person will not be detained.

2.8.4 UN COMMITTEE ON THE RIGHTS OF THE CHILD

Paragraph 32 of General Comment no. 10 says that a minimum age of criminal responsibility below
the age of 12 years is taken into account by the Committee to not be internationally acceptable. In
practice, however, the age of criminal responsibility varies considerably across countries. An investi-
gation of 90 countries found the minimum age of criminal responsibility ranged from 6 to 18 years
and the median age was 13.5 (Hazel 2008).

2.9 PSYCHOLOGICAL APPROACH

2.9.1 HOW CAN ONE HELP A JUVENILE DELINQUENT?

i) Look at the child's situation closely for signs of substance abuse.

(ii) If you see any, get the child to a program or counsellor who specializes in the handling of such
problems.

(iii) Consider situations back home. Are there a lot of fights? Is there any sort of domestic violence
committed in front of the child? Are you considering divorce? Any of these problems may
impact the mental makeup of the child.

(iv) If you believe any of these is an issue take the child to a counsellor.

(v) Work closely with the school and keep track of the child's progress.

(vi) Teachers and school counsellors may have a good idea about a child's attitude, social group
and behavioural problems.

(vii) Ask the school for information and advice on dealing with the child.

(viii) Be cooperative and try not to offer excuses. Take their suggestions.

(ix) Get a lawyer. If a child has been charged as a Juvenile Delinquent, hire an attorney to represent
him/her in court.

(x) Talk to the police, probation officers or juvenile officers who are involved in your child's case.
Be friendly and cooperative. Find out what they see because of the problem and invite advice.

26
 (xi) Find a good counsellor. If a child is involved in juvenile offences, you need to get help as soon
as possible. No matter what the basis of the matter, counselling can probably assist you to know
it albeit it can not help you solve it.

2.9.2 ROLE OF THE MEDIA IN SUCH CASES

Television and movies have popularized the "cult of heroes", which promotes justice through the phys-
ical elimination of enemies. Many researchers have concluded that children who watch violence tend
to behave more aggressively or violently, particularly when provoked. This is mainly characteristic of
8 to12 years old boys who are more susceptible to such influences. Media bring an individual to vio-
lence in three following ways:-

First, movies that demonstrate violent acts excite spectators and therefore the aggressive energy can
then be transferred to lifestyle, pushing a person to interact in physical activity on the streets. This type
of influence is temporary, lasting from several hours to many days.

Second, television can portray ordinary daily violence committed by parents or peers (the imposition
of penalties for failing to review or for violations of certain rules or norms of conduct). It is impossible
to seek out television shows that don't portray such patterns of violence because viewer approval of
this sort of programming has ensured its perpetuation. As a result, children are continually exposed to
the use of violence in several situations and therefore the number of violent acts on television appears
to be increasing.

Third, the violence depicted within the media is unreal and features a surrealistic quality; wounds bleed
less and therefore the real pain and agony resulting from violent actions are very rarely shown. So, the
results of violent behaviour often seem negligible. Over time, television has caused a shift in the system
of human values and indirectly led children to view violence as a desirable and even courageous way
of re-establishing justice. The American Psychological Association has reviewed the evidence and has
concluded that television violence accounts for about 10 per cent of aggressive behaviour among chil-
dren12.

2.9.3 FAMILY - RELATED OFFENCES

12
American Psychological Association (APA) Commission on Violence and Youth, Youth and Violence, Summary report
of the APA Commission on Violence and Youth (1993), available at <http://www.apa.org/pi/prevent-violence/re-
sources/violence-youth.pdf> (viewed on 30th January 2015.

27
The problems that bring girls to the court system are often different than those of boys, at least at first.
Girls are more likely to be detained for family-related offences, like showing "out-of-control" behav-
iour at home or stepping into fights with relations. Boys, on the opposite hand, are more likely to be
detained for more traditional criminal offences, like theft or assaults on strangers. The noteworthy
thing here is that while there are ways to tackle offensive boys there are very few such programs for
girls. The JJS must do more to satisfy the special needs of female offenders. Juvenile detention centres
were designed to handle people that have committed crimes — and these are usually boys. But girls
are often in trouble for issues associated with family issues and wish programs that affect the entire
family.

2.10 SHOULD JUVENILE OFFENDERS BE CHARGED AS AN ADULT?

People who are in support of abolishing juvenile courts and the juvenile justice system argue that
those juveniles' who are found guilty of a felony or first-degree murder should be tried in adult crim-
inal court. Many states have passed laws making it easier to undertake certain juveniles as adults.

However, those who are against trying juvenile offenders in adults criminal court argues that juve-
niles have not yet achieved full development of their brains and are thus less culpable for the crimes
they commit. They assert that it is immoral to subject children to adult punishments as it is ineffec-
tive and leaves psychological scars on juveniles which leads the juvenile to re-offend. Furthermore,
community leaders and social workers advanced the notion that the juveniles' offenders are weak and
immature they need proper guidance, protection and socialization of adults.

Scientific studies have determined that the human brain undergoes continuous development up to the
age of about eighteen. The brains of juveniles, especially frontal lobes, are not fully developed. Juve-
niles lack the ability to perform critical adult functions such as planning, anticipating the outcome of
an event, taking critical decisions and controlling impulses. Although juveniles should be punished
for their offences one must also remember that they are not as matured and responsible as adults.

Most juvenile's offenders are physically and sexually assaulted within the first seventy-two hours of
jail custody. The results of such mental torture carried out during interrogation leaves deep scars on
the delicate minds of juveniles which could lead to suicide or other severe psychological problems.
These effects make juvenile offenders prosecuted as adults more dangerous.

Juvenile Justice (Care and Protection of Children) Act, 2015 has been gone by Parliament of India
amidst intense controversy, debate and protest on many of its provisions by the Child Rights frater-
nity. It replaced the Indian delinquency law, Juvenile Justice (Care and Protection of Children) Act,

28
2000, and allows for juveniles in conflict with Law within the age bracket of 16–18, involved in Hei-
nous Offences, to be tried as adults

2.11 BIOLOGICAL APPROACH OF JUVENILE CRIMES

The biological approach to delinquent behaviour has focused more on brain dysfunction and impair-
ment in learning capabilities. Other research has shown abnormal Electro Encephalo Gram (EEG)
recordings of the brain activity in criminals and delinquents, relating this to violent and aggressive
behaviour, destructiveness, limited impulse control and poor social adaptation.

The relationships between a delinquent child and those with whom he/she associates are significant
factors in Juvenile Delinquency. It is possible that juvenile delinquents have delinquent friends. In
some sorts of differential association theory, a child might not have had propensities to delinquency
before his association with delinquents. But it's possible that after a toddler acquires delinquent friends,
he/she learns the values, attitudes and skills conducive to delinquency and, as a result, becomes delin-
quent him/herself.

One may argue that relationships with peers, especially among delinquents, are sufficiently strong to
produce a change in attitude and behavioural changes. We need to understand that, in our society,
although teenagers strive to satisfy their parents' desires, they also look fairly often to their peers for
approval also. Consequently, our society still has in its midst a set of teenage societies which focus
teenage interests and attitudes on things far removed from adult responsibilities, societies that may
develop standards that lead teens away from those goals established by the larger society.

2.12 CONCLUSIONS REGARDING PSYCHOLOGICAL INTERVENTIONS13

A useful way of dealing with offenders then appears to be to utilize the research findings by taking a
multi-systemic approach, using an empirically derived means of classifying offenders and then match-
ing offenders with best-fit treatments. In turn, a conceptual framework (and associated philosophy) is
also needed which incorporates a bio-psychosocial model blended with psycho-dynamic concepts (es-
pecially those concerning destructiveness, guilt, and reparation). As stated at the outset, the success of
techniques used, and the research they are based upon is perhaps related to the extent to which they
promote an individual's belief in the power of his reparative, restorative and loving capacities, and in

13
Timothy Keogh, Approaches To The Psychological Treatment Of Juveniles In Detention, available at
<http://www.aic.gov.au/media_library/publications/proceedings/25/keogh.pdf> (viewed on 31st January 2015).

29
turn his ability to engage in sustaining and loving human relationships. In cases where juveniles have
become hardened and destructive, this may need to be fostered in its most disguised and desperately
weak form.

The value of such a philosophical underpinning in dealing with psychopathic children and adolescents
is too much. The psychopathic child has an addiction to cruelty and cruel power but it is said that
"before they can get in touch with more caring concerned parts of themselves, they have to begin to
take other people more seriously . . . there needs to be a sobering down from the omnipotent destructive
state where anything goes".

30
 CHAPTER THREE :
INDIAN LEGAL SCENARIO

3.1 INDIAN LEGISLATION

The Madras Children Act 1920 was the first Children Act to be enacted, closely followed by Bengal
and Bombay in 1922 and 1924, respectively. Later, many more states enacted their own Children Acts,
covering within their sphere two categories of children, viz., (i) delinquent children, and (ii) destitute
and neglected children. Both these categories of children were to be kept in remand homes and certified
schools or released on probation, with a possibility of imprisonment when the nature of offence was
serious and the character of the offender so depraved as to justify imprisonment. During this period
the “welfare” approach was adopted for delinquent, destitute or neglected children14.

The most significant legislation in the area of juvenile delinquency was the 1960 Children Act, which
provided for the care, protection, maintenance, welfare, training, education and rehabilitation of ne-
glected and delinquent children. For the first time in India, the Children Act prohibited the imprison-
ment of children under any circumstance. It provided for separate adjudicatory bodies namely a chil-
dren court and a child welfare board to deal with delinquent and neglected children. The Act also
introduced a system of three-tier institutions, namely, an observation home for receiving children dur-
ing the pendency of their proceedings, a children’s home for accommodating neglected children, and
a special school for delinquent children. It introduced a sex discriminatory definition of child. A child
in case of a boy was one who was below sixteen years and in case of a girl below eighteen years of
age. All states subsequently enacted similar, but not exactly the same Children Acts.

The National Policy for Children, 1974, declared that the nation's children are a supremely important
asset and that their nurture and solicitude are the responsibility of the state. It says further, 'It shall be
the policy of the state to provide adequate services to children, both before and after birth and through
the period of growth, to ensure their full physical, mental, and social development'. The state has un-
dertaken to protect children against neglect, cruelty, and exploitation. The socially handicapped chil-
dren are one of the categories of children mentioned for special attention and services. The socially
handicapped children, i.e. the children 'who have become delinquent of have been forced to take to

14
Ved Kumari, The Juvenile Justice System in India: From Welfare to Rights, (2004), Chapter 2

31
begging or are otherwise in distress' , have been ensured facilities for education, training, and rehabil-
itation and will be helped to become useful citizens.

The policy promised more than it could deliver: a variety of measures to be taken for ensuring their
full physical, mental, and social development; a comprehensive health program, nutritious diet, health
and nutrition education of expectant mothers; free and compulsory education up to the age of 14 phys-
ical education, games, sports, and other recreational, cultural, and scientific activities. It also envi-
sioned special assistance to all children belonging to the weaker Sections to ensure equality of oppor-
tunities. The normative structure of the JJS, therefore, must incorporate these programs, activities and
schemes for the all-inclusive growth and development of the character and abilities of delinquent and
neglected children.

3.2 THE NORMATIVE STRUCTURE

From the time when the National Policy for Children was adopted till the enforcement of the Juvenile
Justice Act, three sets of laws applied to socially handicapped children in different parts of the country.
In the States and Districts where the Children Act was not enacted or if enacted, not enforced, provi-
sions of the Code of Criminal Procedure, 1973 applied.

The principles, procedure and consequences relating to the socially handicapped children differed ma-
terially under these three sets of laws. The differences resulted in discriminatory treatment being meted
out to children residing in different parts of the country. A delinquent child of 17 years was entitled to
the benefits of the Children Acts in Gujarat or West Bengal but not so in Maharashtra. In some areas
delinquent children could be sentenced to death, in others they could be imprisoned only in exceptional
cases and in some other areas imprisonment of children was illegal under any circumstance. Voices
were raised at various levels for a uniform legislation but to not avail. For the rest of India, the Juvenile
Justice Act introduced a uniform normative structure of JJS with its enforcement in 1987. The enact-
ment of the JJA by the parliament marked a change in the known official stand that 'juvenile justice'
was covered by entries contained in the state list. The JJA made the delinquent and neglected children
all over the country a concern of the state at the national level. The legislation itself, however, did not
mark a change in the policy relating to the agencies, services, and programs to deal with delinquent
and neglected children. The definition of 'drug' had been substituted by the definition of 'narcotic drug'
and `psychotropic substances'. As a consequence of this change, the provision for transfer of children
addicted to narcotic drugs and psychotropic substances to an appropriate treatment centre had been

32
incorporated in Section 48 of the JJA. These provisions had resulted, apparently, as a consequence of
the rapid increase in the problem of drug addiction among children and young persons.

The importance of after-care could not be over-emphasized, especially in case of institutionalized chil-
dren. Section 12 of the JJA relating to after-care was much more elaborate and listed out all the matters
that went into the making of an exhaustive scheme for after-care. But like its predecessor, the provision
did not make after-car compulsory and left it to be regulated by rules to be made under the JJA. En-
forcement of the JJA, however, had introduced some major changes in the normative structure of the
JJS in India. These changes included:

i. A uniform definition of juvenile for the whole country.

ii. A wider role to voluntary organizations.

iii. Prohibition of imprisonment of children under all circumstances.

iv. A uniform structure of juvenile justice for the whole country, except the state of Jammu and
Kashmir.

The Juvenile Justice (Care & Protection) Act, 2000 (hereinafter JJ(C&P) Act) was passed by Parlia-
ment and has been enforced since 1 April 2001 in the whole of India except the state of Jammu and
Kashmir. On coming into force, the JJ(C&P) Act has repealed and replace the JJA, 1986. The JJ(C&P)
Act has been enacted specifically in recognition of India's ratification of the UN Convention on Rights
of Child and other relevant international instruments.

The Juvenile Justice act of 2015 replaced the Juvenile Justice act of 2000 because there existed a need
for a more robust and effective justice system that focused on deterrent as well as reformative ap-
proaches. The approach towards Juveniles should be different from that of adults, there were conten-
tions made in the Parliament that the Juveniles should be given more space for transformation or refor-
mation or improvement and that is only possible when there’s a special justice system. Thus, the new
act i.e. the Juvenile Justice (care and protection of children) Act, 2015 focused on a Juvenile friendly
approach of adjudication and disposition of matters.

33
RELEVANT PROVISIONS UNDER THE CODE OF CRIMINAL PROCEDURE, 1973

The Code of Criminal Procedure of 1898 contained provisions regarding the jurisdiction of criminal
courts and custody of juvenile offenders. The present position under the Code of Criminal Procedure,
1973 regarding jurisdiction is as follows:

Any offence not punishable with death or imprisonment for life, 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 (60 of 1960), or any other law for the time being in force providing for the treatment, training
and rehabilitation of youthful offenders15.

The JJ(C&P) Act, 2000 has been enacted with the following objectives:

i. Providing proper care, protection and treatment by catering to the development needs of so-
cially deviant children and neglected juveniles.

ii. Adopting a child-friendly approach in the adjudication and disposition of matters in the best
interests of children.

iii. Rehabilitation of such children through various institutions established under the Act.

iv. The adjudication of certain matters related to and disposition of delinquent juveniles.

The JJ(C&P) Act, 2015 has been enacted with the following objectives:

With the coming of the 2015 Act, the scope of the definition of ‘Child in need of care & protection’
was enhanced to another level by considering the following points from the many mentioned in Section
2 (14) of the Juvenile Justice (care and protection of children) Act, 2015:

1. Those whose guardians or parents are/ were unfit or uninterested in taking care of the
child.

2. Those who are/ were found performing works that are in contravention to the labor laws.

3. Ones who have the imminent threat of marriage before attaining the specified lawful age.

15
Code of Criminal Procedure 1973, s.27

34
 4. The meaning of adoption has also been specified in the Act through which the rights an
adopted child stands recognized.

The aims to consolidate the laws relating to children alleged and found to be in conflict with law and
children in need of care and protection by catering and considering their basic needs through proper
care& protection, development, treatment, social- integration, by adopting a child friendly approach
in the adjudication and disposal of matters in the best interest of children. The act also focuses on re-
habilitation of juvenile offenders through various child care houses and institutions.

RELEVANT PROVISIONS UNDER THE INDIAN PENAL CODE, 1860

Section 82: Nothing is an offence which is done by a child under 7 years of age.

Section 83: Nothing is an offence which is done by a child above 7 years of age and under 12, who
has not attained sufficient maturity of understanding to judge the nature and consequences of his con-
duct on that occasion.

If the accused child wants to avail the defence under this he has to prove that he is below 12 years of
age and that he has not attained adequate maturity of understanding therefore he did not know what he
was doing was wrong. The children between the age of 7 to 12 years of age who have committed an
offence are responsible for their criminal acts, but are not to be treated or sentenced in the same manner
as an adult. Such children will be dealt with under the juvenile legislations and the main focus will be
on reforming and rehabiliting them.

3.3 THE JUVENILE JUSTICE ACT, 1986

The Juvenile Justice Act was enacted to provide for the care, protection, treatment, development and
rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters related to
and disposition of delinquent juveniles.

i. Special Provisions Relating to a girl child.

ii. Measures to prevent all forms of discrimination against girl child.

iii. Elimination of all forms of discrimination against the girl child.

35
 iv. Elimination of negative cultural, attitudes and practices against girls.

v. Elimination of discrimination against girls in education, skill, development and training.

vi. Elimination of discrimination against girls in health and nutrition.

vii. Elimination of girl child labor.

viii. Elimination of violence against the girl-child.

ix. Promoting the girl-child's awareness of and participation in social economic and political life.

x. Strengthening the role of the family in improving the status of the girl-child.

xi. Duty of Government to direct its policies to eliminate discrimination against girl child.

3.4 THE JUVENILE JUSTICE ACT, 1986 AND JUVENILE JUSTICE (CARE & PROTECTION) ACT,
2000

The long title of the JJA described it as, "An Act to provide for the care, protection, treatment, devel-
opment and rehabilitation of neglected or delinquent children and for the adjudication of certain mat-
ters relating to and disposition of delinquent children."

As the name suggests, the JJ(C&P) Act has been enacted to consolidate and amend the law relating to
juveniles in conflict with law and children in need of care and protection, by providing for proper care,
protection and treatment by catering to their development needs and by adopting a child-friendly ap-
proach in the adjudication and disposition of matters in the best interest of children and for their ulti-
mate rehabilitation through various institutions established under this enactment.

The terms 'care', 'protection', 'treatment', 'development', and 'rehabilitation' were not defined by the
JJA. The JJ(C&P) Act is also silent on the matter. These terms, however, may be understood by refer-
ence to the statements in the National Policy and other related schemes. Hence, care ought to include
the survival needs of children, that is, adequate food, clothing, and shelter. They ought to be protected
against neglect, cruelty and exploitation. Provisions ought to be made for proper programs for reform-
ing the behaviour and attitude of the delinquent children. Such programs ought to aim at instilling in
children the values of honesty and industrious life so that they become robust citizens, physically fit,
mentally alert, and morally healthy, endowed with the skills and motivations needed by society.
Measures necessary for their all-round development and growth ought to be made part of the Juvenile

36
Justice Schemes and programs. The scheme for the Welfare of Children in Need of Care and Protection
conceives of rehabilitation in terms of ameliorative services of food, shelter, clothing, medical atten-
tion, and curative services or education, pre-vocational and vocational training, vocational guidance,
recreation and cultural development and citizenship education to make the children, when they grow
up, job-worthy.

3.5 Juvenile Justice (Amendment) Act, 2006

Some significant amendments have been made in the Juvenile Justice (Care and Protection of Chil-
dren) Act, 2000. Now the Central government is authorized to make rules on all matters on which state
governments can make rules and enjoins the state governments to make their rules in accordance with
the model rules framed by the central government. The central government notified Model Rules 2007
on October 26, 2007, which are binding on all states till the states make their own rules16. The Rules
prescribe and restate the fundamental principles involved in the administration of Juvenile Justice and
the protection of children – such as the ‘presumption of innocence’, ‘principle of dignity and worth’,
deference to the ‘best interests of the child’, principle of ‘family responsibility, positive measures,
principle of repatriation and restoration, and the idea of ‘fresh start’ among others.

The most crucial issues under all the enactments since 1920 are the issues relating to age which deter-
mine the applicability of the Act in a given case. The cut-off age defining a child under these legisla-
tions differed but these Acts applied to children below the specified age.

3.6 JUVENILE JUSTICE (CARE & PROTECTION) ACT, 2015

The key purpose to bring a new legislation was the increased number of crimes (particularly rapes),
by juveniles (16-18 years). However, several questions were raised on the new law, as being more
retributive than reformative. Retributive because it contains provisions for teenagers who commits

heinous crime (with punishment of 7 years or more) shall be tried like adults but in the children#s court.

The Children#s Court shall make sure that the child found guilty of heinous crime shall be sent to a

place of safety till he/she attains the age of 21 and afterwards, the person shall be shifted to jail. This

16
The Juvenile Justice (Care and Protection of Children) Rules 2007, r.96

37
means that on being found guilty of committing a heinous crime, he/she shall not get benefit of being
a child.

The new Juvenile law was also criticised by many protestors as being unconstitutional. In Pratap Singh
v. State of Jharkhand, it was observed by the Court that in Rule 4 of the United Nations Standard
Minimum Rules for the administration of Juvenile Justice, while holding a juvenile responsible for a
crime, the moral and psychological components must be given importance.According to Prof. Ved
Kumari, if a juvenile of the age of 16 commits a heinous crime and his or her offence is punishable
with 7 year imprisonment, then he/she need to be produced before the JJB,who will adjudge on the
physical and mental capacity of the child; whether that juvenile has committed such offence has the
ability to understand consequence of the offence and in what circumstances the offence has been com-
mitted.This work of the JJB is challenging and there is a huge chance of uncertainty.

Another issue raised by many activists is that the 2015 Act violates the spirit of Article20(1),where a
person cannot be subjected to greater punishment that what would have been applicable to him under
the law of the land. Under the new Act, if a juvenile sentenced under the law who has completed 21
years of age but has not completed the full period of his sentence may be sent to jail if it is considered
appropriate.This new law undermines the spirit of Article 20(1).

3.6.1 SALIENT FEATURES OF THE JJ ACT, 2015:

1. Definition of $child in need of care and protection#!expanded- The definition as per the new

Act now also includes a child who is found working in contravention of labour laws, at immi-
nent risk of marriage before attaining the lawful age for the same or who resides with such a
person who has or had threatened to injure, exploit, abuse or neglect the child or violate any
other law or whose parents or guardians are unfit to take care of him.

2. CWC is no longer the final authority in cases of children in need of care and protection-
The District Magistrate (hereinafter, the DM) shall be the grievance redressal authority for the
CWC and anybody connected with the child may file a petition before the DM, who shall
consider and pass appropriate orders.

3. Procedure for inquiry- The CWC shall now conduct an inquiry of any child produced before
it, as opposed to children for whom production reports are received. Procedure now includes
orphaned and surrendered children as well.

38
 4. Extensive definition of $adoption#! provided- an extensive definition of adoption has now

been provided and child#s rights have been recognised.

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2000 AND THE JUVENILE
JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 – THE COMPARISON

“Any fool can make a rule, and any fool will mind it”, said Henry David Thoreau. After all, law is
another creation of one man to pull strings of many men and thus can never be ideal. Flawlessness
being a mirage in any human creation, even law has succumbed to cracks and crevices.

The Juvenile Justice Act of 2000 and 2015 have considerable differences. The changes have been
brought about to provide an enhanced and more effective law to tackle with growing complexities in
juvenile delinquencies. The same are listed below:

3.6.2 PREAMBLE

The preamble to the Act has been enhanced to widen the ambit of the Act. The previous Act
stated as follows:

An Act to consolidate and amend the law relating to juveniles in conflict with law and children in need
of care and protection, by providing for proper care, protection and treatment by catering to their de-
velopment 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. WHEREAS the Constitution has, in several provisions, including
clause (3) of article 15, clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a
primary responsibility of ensuring that all the needs of children are met and that their basic human
rights are fully protected; AND WHEREAS, the General Assembly of the United Nations has adopted
the Convention on the Rights of the Child on the 20th November, 1989; AND WHEREAS, the Con-
vention on the Rights of the Child has prescribed a set of standards to be adhered to by all State parties
in securing the best interests of the child; AND WHEREAS, the Convention on the Rights of the Child
emphasises social reintegration of child victims, to the extent possible, without resorting to judicial
proceedings; AND WHEREAS, the Government of India has ratified the Convention on the 11th De-

39
cember, 1992; AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bear-
ing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing rules), the
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other
relevant international instruments.

The enhanced definition reads as:

An Act to consolidate and amend the law relating to children alleged and found to be in conflict with
law and children in need of care and protection by catering to their basic needs through proper care,
protection, development, treatment, social re-integration, by adopting a child-friendly approach in the
adjudication and disposal of matters in the best interest of children and for their rehabilitation through
processes provided, and institutions and bodies established, hereinunder and for matters connected
therewith or incidental thereto. WHEREAS, the provisions of the Constitution confer powers and im-
pose duties, under clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47, on
the State to ensure that all the needs of children are met and that their basic human rights are fully
protected; AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which
has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the
child; AND WHEREAS, it is expedient to re-enact the Juvenile Justice (Care and Protection of Chil-
dren) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict
with law and children in need of care and protection, taking into consideration the standards prescribed
in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protec-
tion of Juveniles Deprived of their Liberty (1990), the Hague Convention on Protection of Children
and Co-operation in Respect of Intercountry Adoption (1993), and other related international instru-
ments.

In the Preamble, there is change in language and exclusion of paragraph referring to social integration
of child victims through diversion. There is also reference made to the Hague Convention.

40
Application-

Section 1(4) of the Act deals with application of the law.The new definition includes reference to

$children in need of care and protection#.

The provision now includes reference to $children in need of care and protection#, and specifies that it

is applicable to procedures, or decisions or orders relating to rehabilitation, adoption, re-integration

and restoration of juveniles. As regards $children in conflict with law#!includes apprehension, social

integration and rehabilitation.

Advisory Board

The Act of 2000 defined $advisory board#! under section 2(a).Under the new law, no provision for

advisory board has been provided.

$Abandoned Child#

Under the old law, the Juvenile Justice Model Rule 2(a) defined abandoned as an unaccompanied and
deserted child who is declared abandoned by the Committee after due inquiry. As per the 2015 Act,

section 2(1) makes specific provision for $abandoned child.

Authorized Foreign Adoption Agency

The new law makes a new provision authorising foreign adoption agency, which was not prevalent in
the previous legislation.

Provision made for CARA

Section 2(7) of the new Act defines Authority to include within its ambit the Central Adoption Re-
source Authority.Provision for the same has been made under Section 68 now.

Child Welfare Officer

New provisions under Section 2(17) for Child Welfare Officer and under Section 2(18) for Child Wel-
fare Police Officer are made.The same was missing in the previous law.

41
Children#s Court

A new and important provision has been made for Children#s Court. This was missing in the previous

legislation. This is a very important amendment brought about.

Administration of the Act

A new provision has been added dealing with some fundamental principles that must be followed
while administering the Act.

Principle of presumption of innocence

The principle under section 3(i) of the new Act and is precise and to the point, unlike the old legislation.

Right of child to be heard

The new provision is precise and has included the clause giving due regard to age and maturity as per
the UN Principle.

$Best interest#!principle

The $best interest#!principle has been included as a principle, in addition to the definition of best interest

in Section 1.

Juvenile Justice Board

may has been replaced with shall, thus making it mandatory for the State Government to constitute
JJBs in every district.Chief Metropolitan Magistrate and Chief Judicial Magistrates cannot be ap-
pointed as Principle Magistrate of JJBs. The Magistrate should have atleast three years experience.
The selection procedure for the appointment of social workers should be prescribed by State Govern-
ment.

Bail to a person who is apparently a child alleged to be in conflict with law

As per the new law the JJBs need to record reasons for denying bail as well as the circumstances that
led to such a decision. If the child is unable to fulfil the conditions of the bail order within 7 days,
he/she must be produced before the JJB for modification of the order.

42
Inquiry

Section 14(4) of the new law provide that inquiry into petty offences can be terminated if the proceed-
ings are not completed even after 6 months. Extension of inquiries for serious and heinous offences
have to be granted by the CJM/CMM for reasons to be recorded in writing.

Proceedings

Child friendly approach must be taken. JJB should ensure that no child is ill-treated in police custody
and order corrective steps in case the same has happened. Petty offences to be disposed off through
summary proceedings.

Preliminary assessment into heinous offences must be made by the JJB before proceeding.

Powers of children#s court

New provision for Children#s Court has been made and its powers are listed under Section 19. The

court can either try the child as an adult or conduct an inquiry and pass orders under Section 18(1) if

it doesn#t see the need for trial of the juvenile as an adult.

Order that can be passed

Under the new law, juveniles can be sentenced to imprisonment including imprisonment for life. How-
ever, it prohibits imposition of death penalty and life imprisonment without the possibility of release.

Child Welfare Committee

Under the new provision, setting up of CWC has been mandated upon the State Government for each
district (one or more). Also it must ensure that induction training and sensitisation of all members of
the committee is provided within 2 months from date of notification. The District Magistrate shall
conduct a quarterly review of the functioning of the Committee.Also, functions and responsibilities of
the Committee which earlier found mention under the JJ Model Rule 25, are now listed under Section
30.

43
Procedure in relation to children in need of care and protection

New provision has been made on mandatory reporting regarding a child found separated from guardian
has been added.Also new provision penalising failure to report a child found separated from guardian
has been added. Also penalty for non-reporting can be imposed.

Surrendering the child

A new provision for surrendering of children has been made to curb the incidents of abandonment.
The provision reads as:

Surrender of children.

(1) A parent or guardian, who for physical, emotional and social factors beyond their control, wishes
to surrender a child, shall produce the child before the Committee.

(2) If, after prescribed process of inquiry and counselling, the Committee is satisfied, a surrender deed
shall be executed by the parent or guardian, as the case may be, before the Committee.

(3) The parents or guardian who surrendered the child, shall be given two months time to reconsider
their decision and in the intervening period the Committee shall either allow, after due inquiry, the
child to be with the parents or guardian under supervision, or place the child in a Specialised Adoption

Agency, if he or she is below six years of age, or a children$s home if he is above six years.

Registration of child care institutions and open shelter

Stronger provisions have been made with wider scope and more details, wholly or partially for housing
children in need of care and protection or children in conflict with law, regardless of whether or not
they are receiving government grants. Also, a new provision has been added imposing penalty for non-
registration of child care. Open shelters shall also be registered. Objectives of shelter homes must be
clarified and information about the children using Shelter Homes to be sent to the District Child Pro-
tection Unit (DCPU) and CWC.Also, the children in need of care and protection must be placed in
foster care. The State government is responsible for the same.

Children#s Homes

State to designate the same for children with special needs. Individual Care Plans shall be the basis of
monitoring and management.

44
Eligibility of prospective adoptive parents

A new and credible provision has been inserted in the new law with regard to eligibility of prospective
adoptive parents. This very important provision was missing in the previous legislation.

3.7 AUTHORITES WORKING FOR JUVENILE JUSTICE

The following are the authorities which are working presently for Juvenile Justice:-

3.7.1 THE CHILD WELFARE COMMITTEE

CWC is the sole authority constituted to deal with cases concerning children in need of care and pro-
tection for each district. The Committee is the final authority to dispose-off cases pertaining to the
care, protection, treatment, development and rehabilitation of the children as well as to provide for
their basic needs and safeguarding their human rights. The CWC does play an important role in cater-
ing to the needs of the children in conflict with law.

3.7.2 POLICE

For the purpose of achieving rehabilitation and social integration, elaborate procedures are prescribed
under the Act. The Act under Section 63 provides that the Police Officers with adequate aptitude and
appropriate training and orientation, be designated as a Juvenile or Child Welfare Officer, to handle
the juvenile in coordination with the local Police.

The key responsibility of Police Officers, whether designated as a Juvenile or Child Welfare Officer
or not, is that the Officer, should always keep in mind that a juvenile in conflict with law or a child in
need of care and protection, is required to be handled gently and cannot be treated on par with persons,
who are, otherwise, called criminals. A special juvenile polices unit needs to be opened by Goa police
as envisaged under the JJ act 2015 and Rules 2007 therein.

There are various cases where children are made the scape goat for increasing detection of crime at
the police station levels. I have come across children during my legal intervention at the board who
are apprehended and lodged in the observation home inspite of such children not involved in the crime.
Till a lot of cases have been dealt most of it leading to acquittal with no convictions.

45
 3.7.3 PROBATION OFFICER

In the said act Probation Officer’s role is very vital in providing effective implementation. In order to
discharge his duties the Probation Officer ought to know the very fundamental principle underlying
the Juvenile Justice Act. Primarily the Probation Officer plays a dual role; one as an investigator and
the other as a supervisor. Secondly; he has a vital role in reformation, rehabilitation and reintegration
of the children who come within the purview of the Juvenile Justice Act.

3.7.4 STATE GOVERNMENT

In order to achieve the prime objective enshrined in the Juvenile Justice Act, the State Government is
required to provide all the support system to ensure that the Board functions effectively. The State
Government is under the obligation to provide logistic support to ensure all the provisions are enforced
in its true spirit. It is not possible with the sole participation of Government to enforce the Act in its
true spirit. The need for collaboration and partnership with stakeholders can alone make it viable for
the enforcement of the Act in its true spirit and in toto. The Act also does put to a certain extent an
onus on the legal fraternity to look into other aspects rather than solely legal. The functioning of all
the stake holders revolves around the infrastructure and facilities provided by the State Government.

3.8 CONCLUSION

Juvenile justice is the only existing legislation on children, which purely and primarily deal with chil-
dren in conflict with the law and their rehabilitation. This law has been designed to apply the principle
of reformation rather than the punitive approach. It has been noted that the enforcement of this law in
terms of protection of the children is weak.

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. Some of the key

46
provisions include 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”.

JJ Act, 2015, has brought the drastic change in the Juvenile Justice Act, 2000, in the area of treatments
of juvenile, the functioning of the Juvenile Justice Board, and Child Welfare Committee, the forum of
appeal against the order of Juvenile Justice Board and Child Welfare Committee, as well as in the area
of intercountry adoption and aftercare of the children.

The Act is a beneficial piece of legislation and therefore, must be interpreted and understood to ad-
vance the cause of legislation and to confer the benefits of the provisions thereof to the categories of
persons from whom the legislation has been made.

That a nation's future lies with its children has become a cliché. It is more so in case of India, with
around 42% population below the age of 18 years.

Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and the pervasive humanism which
bespeaks the super parental concern of the State for its child-citizens including juvenile delinquents.

3.9 LEADING CASES ON JUVENILE JUSTICE

The Supreme Court in Deoki Nandan Dayma v. Stale of Uttar Pradesh17 held that entry in the school
register as to the date of birth of student is admissible in evidence to show whether the accused is
juvenile or not. Its acceptance shall, however, depend on the probative value of such entry in the school
register, that is, whether it was proper or not. The Court further clarified that in case of difference of
date of birth between school certificate and medical certificate, the date mentioned in school certificate
should be taken as authoritative because the certificate of medical officer may be based on mere guess.
Allowing the appeal, the Court directed the High Court of Allahabad to re-hear and dispose of the
revision at the earliest as it was already long pending before it.

In Mohd. Dahaur Mia v. State of Bihar18 , the petitioner alleged that he was a juvenile below the age
of 16 years under the Juvenile Justice Act, 1986 (now repealed). The CJIVI, however, held no enquiry
for determination of the age of the accused under section 32 of the Act nor did he record any opinion
about the age of the petitioner. The Patna High Court held that in case of a juvenile accused, his bail

17
(1997) 10 SCC 525.
18
(1995) (2) Crimes 116 (pat).

47
application has to be considered only under Section 18 of the Act and bail application under Section
439 of Cr.P.C. would not be maintainable and if a person is aggrieved by an order passed under Section
18 of the Act, he has a remedy to appeal before the Court of session under Section 37 of the Act. The
High Court has only the provisional power under Section 38 of the Act.

In Ajay Pratap Singh v. State of Madhya Pradesh19 , the High Court set aside the charges against the
juvenile accused because no inquiry as to the determination of his exact age was made by the trial
Court. In this case, Sessions Judge had decided vide his order dated 10th July, 2000 that according to
the medical report of the accused he was above the age of 16 and, therefore, could not be allowed the
benefit of trial under the Juvenile Justice Act, 1986. On appeal, the High Court ruled that where the
accused has claimed himself to be a juvenile, it is the primary duty of the trial Court to enquire and
ascertain about the exact age of the accused and decide whether he or she is entitled to the benefit of
being tried under the Juvenile Justice Act.

In the case of Dhruvendra Singh v. Stale of Rajasthan20, the High Court observed that for the purpose
of application of the Juvenile Justice Act, the Court should not depend on the medical report of the
accused of his physical built of the body for determination of the age of the accused but should take
into available evidence as to his age.

In Ku. Anita, Minor v. Atal Bihari21, the High Court of Madhya Pradesh ruled that the date of birth of
the juvenile accused as recorded in the Register of Birth and Death, are more authentic than the one
entered in the medical report and, therefore, the former should be given priority while considering the
age of the accused for his or her trial under the Juvenile Justice Act.

Relevant date as to determination of age of the Juvenile: Whether it should be the date on which of-
fence is committed or the date on which the juvenile is brought before the Court for trial. In the case
of Krishna Bhagwan v. State of Bihar22, the full bench of Patna High Court observed that for determi-
nation of the age of the juvenile for the purpose of his trail under the Juvenile Justice Act, the relevant
date should be the date on which the offence was committed. Therefore where the juvenile accused is
within the age limit prescribed by the act, he or she should be tried in a Juvenile Court (now juvenile

19
(2000) (1) C.CrJ. 137 (MP).
20
(1990) Cr. L.R 481(Raj).
21
(1993) Cri LJ 549.
22
, (1991) Cri LJ 1283.

48
justice broad under the JJ (C&P) Act, 2000) despite the fact that he exceeded that age limit at the time
when he was brought before the Court for trial.

Reiterating the same view, the Supreme Court in Bhola Bhagat v. State of Bihar23, held that for being
entitled to be tried under the Juvenile Justice Act, the age of the accused on the date of occurrence of
the offence should be taken into consideration and it is immaterial if he exceeds the prescribed age on
the date of his being produced before the Court for trial.

But the Supreme Court in its decision in Arnit Das v. State of Bihar24, overruling its earlier decision
held that the crucial date to decide the issue whether a person is juvenile or not, is the date when he/she
is brought before the component authority and not the date of commission of the offence . The com-
petent authority shall proceed to hold inquiry as to the age of that person for determining the same by
reference to the date of appearance of the person before it.

In Rajender Chandra v. Chandigarh Administration25, the accused was charged under section 302/34,
IPC on February 27, 1997 and was taken into custody the same day. He claimed Himself to be a
juvenile and demanded the benefit of being tried under the Juvenile Justice Act, 1986 (now re-
pealed).The Court of magistrate first class rejected the plea of the accused after holding an inquiry
about his age and the session Court also maintained the trial Court decision. The accused filed a revi-
sion petition against this order and the high Court accepted the petitioner's plea that he was a juvenile
and was entitled to be tried under the Juvenile Justice Act. The complainant and father of the victim
both appealed against the order of the High Court to the Supreme Court.

The Supreme Court came to the conclusion that on the basis of BHP, birth & death register and the
high school certificate, the date of birth of the accused was 30th September, 1981 and this was sup-
ported by evidence of the parent and teachers of the accused. The Court held that the burden of proving
that the accused was within the prescribed age limit for being treated as juvenile is on the accused
himself. But the plea of the accused that he was a juvenile and hence be tried under the Juvenile Justice
Act having been rejected by the trial Court and the Court of Session, there was two distinct opinions
about this issue. Therefore, the Court ruled that where there are two conflicting views about a particular

23
AIR 1998 SC 236.
24
AIR 2000 SC 2264.
25
AIR 2000 SC 748.

49
issue, the one which is beneficial to the accused should be accepted. Accordingly, the accused was to
be treated as juvenile and be tried under the Juvenile Justice Act.

In Pratap Singh v. State o f Jharkhand26, a three judge Bench of the Supreme Court, while considering
the question regarding the date by reference to which age of a boy or a girl has to be determined so as
to find out whether he or she is a juvenile or not, observed that there exists conflict between the deci-
sions of the Court in Arnit Das v. State of Bihar27, and Umesh Chandra v. Stale of Rajasthan28. The
bench, therefore, observed that since the question involved is one of the frequent recurrences and the
view of law taken in this case is likely to have bearing on the new Juvenile Justice Act, 2000 the matter
deserves to be heard by constitution bench of the Court.

The view expressed by the Supreme Court in Arnit Das's case, find support in the provision contained
in section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which provides that
where the Court is satisfied that at the beginning of inquiry, the accused was a juvenile, his trial under
the act would continue even if he or she crosses the prescribed maximum age of 18 years during trial
proceedings. Thus the crucial date for determination of the age of the accused to be tried under the
Juvenile Justice Act would be the date on which he was produced before the competent authority or
juvenile justice board for inquiry or trial.

In the case of Sidharth v. State of Bihar29, the appellant was found guilty of conspiracy and murder
having caused death of deceased by firing shot from close range. It was proved that he had actually
participated in conspiracy to cause murder and made all arrangements for the crime. He was, therefore,
convicted under section 302 read with sections 120-B and 34 IPC. The appellant act 1986 which was
rejected. Thereafter he made subsequent claim for benefit under the JJ (C&P) Act, 2000 which was
rejected by the Chief Judicial Magistrate on determination of age of appellant. He challenged the find-
ing of Chief Judicial Magistrate but could not successes hence he filed an appeal before the Supreme
Court. The apex Court held that the decision as to denial of benefit of Juvenile Justice Act, both under
the old and new Act, having become final and conclusive, the same cannot be challenged in subsequent
appeal before the Supreme Court. The appeal was, therefore, dismissed.

26
(2004) (5) SCALE 617.
27
AIR 2000 SC 2264.
28
(1982) Cri LJ 994.
29
AIR 2005 SC 4352.

50
In Sheela Barse v. Union of India30, the Supreme Court had observed that despite statutory provisions
to the effect that children should not be kept in jail, a large number of children and juveniles were still
lodged in jails. The Court observed that there is no controversy or doubt that the juveniles have to be
kept in observation homes and not in jail pending inquiry or trial irrespective of the fact that they have
crossed the age limit of being treated as juvenile pending inquiry or trial.

In the case of Bakau Pande & others v. State of Bihar31, the appellant was involved in a murder case
along with 14 other co-accused and convicted under section 300 read with section 149 IPC. The plea
of the accused (appellant) that he was a child on the date of offence was considered by the trial Court
and he was a child on the date of offence was considered by the trial Court and decided in negative.
The order was not challenged hence it become final and no arguments on this issue were raised during
trial or before high Court. It was contended before the Supreme Court that the date of birth recorded
in the school register was wrong and an affidavit to this effect was filed before the Court by the father
of the child (i.e. appellant). The Court observed that a self-serving affidavit filed by father of the child
cannot be acceptable and the disputed factual question as to the age of the appellant had attained final-
ity in view of the earlier orders of the trial Court as well as the high Court, hence it cannot be raised
again before the Supreme Court. The Court also ruled that acquittal of some of the accused persons
would not come to the rescue of others who are convicted on the basis of evidence on record estab-
lishing their presence and participation. The appeal was, therefore, dismissed.

In Dilip Saha v. State of West Benga132, the full bench gave elaborate reasons for holding that the age
at the data of commission of the offence was decisive of the applicability, taking into account the
protective nature of the Act. First, it pointed out that attainment of a particular age was no bar to the
trial of a child delinquent under the Act. Secondly, the Act had conferred on the child certain rights
not enjoyed by adults: release on bail in generally non-bailable cases; prohibition against imposition
of death penalty or imprisonment; ban on preventive proceedings; removal of disqualifications; and so
on. "These beneficial provisions are rights vested in a juvenile delinquent on the day the offence is
committed. He cannot be denied of them by reason of the fact that at the time of actual trial he has
become an adult.. Thirdly, the section providing for separate trial of child delinquent from adult of-
fender, did not say 'that if a person was a child at the time of commission of the offence but became
an adult at the time of trial, he would be deprived of the benefits conferred by the ... Act.. The fourth
argument was the most forceful of all. The Court pointed out that sometimes delay in the trial of an

30
AIR 1986 SC 1773.
31
AIR 2004 SC 997.
32
AIR 1978 CAL 529.

51
accused may be caused by the investigating officer. In such cases, denial of the benefits of the Act
would defeat its whole object and purpose. It will also be against the constitutional principle.

In Kishan Pashan Vs Union of India33 , the criminal proceedings against the petitioner before Juvenile
Justice Board merits consideration. A criminal case registered against the petitioner as NCR No.
197/2013 under sections323, 504 and 506 of IPC, went to trial as case no.81/15 before the Juvenile
Justice Board, Gorakhpur.The learned Juvenile Justice Board convicted the petitioner under sections
323 and 505 of the IPC in its judgement rendered on 5.11.2019.

In Radhika V. State Of U.P34, Since the appellant claims juvenility and after holding a preliminary
assessment in this regard, her case was segregated as a juvenile and Juvenile Justice Board, Etawah
vide its order dated 22.2.19 pursuant to Section 15(1) of the Juvenile Justice Act, 2015 have adjudi-
cated after assessing her age related document that the alleged delinquent offender is above 16 years
of the age at the time of incident and according to preliminary assessment with regard to her mental
and physical capacity, she was quite intelligent and has sufficient ability to understand the far reaching
consequences of her conduct in commission of crime (Assessment order by the Board dated
22.2.19/Annexure No. 14 to the affidavit). After holding the assessment, the Board has passed an order
that there is need of trial of said child as an adult and transferred the case to Children Court/Special
Judge, POCSO Act, Etawah, where bail application was moved on behalf of the appellant and the same
was rejected by Special Judge, POCSO Act, Etawah. Hence the appeal U/s 101(5) of Juvenile Jus-
tice Act,2015 before this Court.In Umesh Chandra v. State of Rajasthan35, a full bench of the Supreme
Court, too, held the date of commission of offence as the relevant date for applying the Children Act.
It observed:-

“As regards the general applicability of the Act, we are clearly of the view that the relevant
date for the applicability of the Act is the date on which the offence takes place. Children Act
was enacted to protect young children from the consequences for their criminal acts on the
footing that their mind at that stage could not be said to be mature for imputing mens rea as in
the case of an adult. This being the intendment of the Act, a clear finding has to be recorded
that the relevant date for applicability of the Act is the date on which the offence takes place.
It is quite possible that by the time the case comes up for trial, growing in age being an invol-

33
(2020) Wrt 5044
34
(2019) CA 4418
35
(1982) Cri LJ 994.

52
 untary factor, the child may have ceased to be a child. Therefore, ss.3 and 26 became neces-
sary. Both the sections clearly point in the direction of the relevant date for the applicability
of the Act as the date of occurrence. We are clearly of the view that the relevant date for the
applicability of the Act so far as the age of the accused who claims to be a child, is concerned,
is the date of the occurrence and not the date of the trial. (However, this ruling of the Court
seems more an orbiter than the dicta as it is not clear from the facts of the case whether this
point was an issue in the case”

GRANT OF BAIL TO JUVENILE

The Case of Rahul Mishra v. State of Madhya Pradesh36 involved the consideration of grant of bail to
a juvenile delinquent. In this case the accused, a juvenile was charged under Section
147,294,452,323,506, Part II, 307 and 302 IPC and it was proved that appellant juvenile under the age
of 16 was present at the spot when the crime was committed and , therefore, his bail to a juvenile, the
High Court in this case observed that "normally juvenile should be released on bail but bail should be
refused when grant of bail itself is likely to result in injustice , that is when its appears that his release
on bail is likely to bring him into association with any known criminals or expose him to moral danger
or his release would defeat the end of justice. That is there is likelihood of the juvenile delinquent to
whom the bail is granted, interfering with the course of justice or he is likely to abscond from the
jurisdiction of the Court. The Court pointed out that the juvenile delinquent may appear to be guilty
prima facie but he specially protected and favorably considered for grant of bail under Section 18 of
the Juvenile Justice Act, 1986 which is now repealed. The Court therefore, directed that the applicant
shall be released on bail on his furnishing a bail bond of rupees ten thousand only with the surety of
the like amount to the satisfaction of the Juvenile Court subject to reasonable condition imposed upon
him by that Court.

NEGLECTED CHILDREN

It would also be pertinent to refer to the decision of the Supreme Court given in Laxmi Kant Pande v.
Union of India, wherein the Court modified its judgment given under the children Act, 1960 prior to
coming into force of the Juvenile Justice Act, 1986 and ruled that the cases of neglected children would
henceforth be dealt with by the welfare boards instead of Juvenile Courts. The Apex Court held that

36
(2001) Cri LJ 214.

53
by operation of law consequent to Juvenile Justice Act, the Juvenile Courts under the earlier Children
act would no longer deal with the matters of neglected juvenile and the welfare boards constituted
under the Juvenile Justice Act shall be the appropriate authority for such cases. This alteration shall be
operative from 1st September , 1990 so that adequate notice shall be available of this change in the
law .the decision in this case clearly reflect the judicial wisdom of the Apex Court in implementing
the new philosophy of judicial justice.

In Sunil Kumar v. State37, P.S. Poti, the then acting Chief Justice, pointed out various illegalities and
malpractices followed in the functioning of the Children Act in Kerala. His criticism included:

i. A neglected child was `convicted';

ii. Children pleaded 'guilty' and such pleas were recorded;

iii. Cases were dealt with by the police and the Juvenile Court mechanically and without applica-
tion of mind;

iv. Cases were initiated after lodging a First information Report;

v. Children sent to institution were treated as imprisoned; and

vi. No distinction was mentioned I practice among different institution as required by the Act.

The Court ordered release of all the twelve children before it and directed the release of all the other
children similarly kept because the law did not permit such detention the Court further observed:

An attempt should be made in every case to ascertain the where about of the parents of the child and
to persuade them to take the child at their home. it is only when it could be positively. Found that the
children will not be accepted at their homes that the Court should find that the child is neglected.

SEPARATE SCHOOLS & HOSTELS FOR THE CHILDREN OF PROSTITUTES

The children of prostitutes, if not segregated from their mothers, may lead into the career of prostitution
which may lead to aggravate juvenile delinquency. Therefore, a suggestion had been mooted out from
some quarters that these children should be brought up in separate schools exclusively meant for the

37
(1983) Cri LJ 99 (Ker.).

54
purpose. The question of feasibility of establishing separate schools and hostels for prostitute's children
came up for decision before the Supreme Court in a social actions writ petition in Gaurav Jain v. Union
of India38. Answering in the negative, the Apex Court held that segregating prostitute's children by
locating separate schools and providing separate hostels would not be in the interest of such children.
The Court further observed that "normally prostitutes do not want children to be born to them. But
once born, it is in the interest of the children and society to separate them from their mother and they
be allowed to mingle with others and become a part of society. They should not be permitted to live in
undesirable surroundings of prostitute houses". Particularly, the young girls whose body and mind are
likely to be abused with growing age for being admitted to profession of their mother should be sepa-
rated from the vicious surroundings of prostitute houses.

The Supreme Court reiterated its earlier stand in Vishal Jeet v. Union of India39 and refrained itself
from expressing any opinion on the issue of rehabilitation of the children of the prostitutes through
separate schools or hostels for them. The Court, however, issued direction to constitute a Committee
to examine the problem and report to the Court.

In yet another public interest litigation writ under Article 32 of the Constitution, namely, Gaurav Jain
v. Union of India and others40 the Supreme Court reiterated its earlier stand seeking improvement in
plight of child prostitutes and children of prostitutes and observed that "it is the duty of the State and
all voluntary non-government organizations and public spirited persons to come to their aid to retrieve
them from prostitution, rehabilitate them with helping hand to lead a live of dignity of person, self-
employment, education, financial support. Marriage and acceptance by the family is another important
input to rekindle faith of self-respect and self-confidence in them". The rescue and rehabilitation of
the child prostitutes and children should be kept under the Department of Women & Child Welfare
under the Ministry of Welfare & Human Resources which should devise schemes for proper and ef-
fective implementation of reform and rehabilitation schemes. In addition, the Supreme Court appointed
a Committee to enquire into the problem of children of fallen women and submit a report. Consequent
to the report submitted after extensive traveling to far and aim not only at giving benefits to the children
but also to root out the very source of the problem and the Government should evolve suitable program
of action.

38
AIR 1990 SC 292.
39
AIR 1992 SC 1412.
40
AIR 1997 SC 3021.

55
In relation to child offenders, the protective approach of the Supreme Court has been well reflected in
Dharam Pal41, Kakoo42, Hiralal Mullick43, Raisul44, and Harnam Singh45. The Supreme Court, with
its protective approach towards children, emerged as the protector of the impoverished and became
more accessible. In addition, it undertook a massive exercise involving a large body of state authorities
pursuant to the Public interest litigation filed by Sheela Barse against imprisonment of children and
generated a lot of awareness towards the existence and differential approach of states towards children
committing offences.

DEALING WITH CHILDREN COMMITTING SERIOUS OFFENCES

The question of the jurisdiction of a Juvenile Court to deal with offences punishable with death or life
imprisonment arose for the first time in 1932 before the Calcutta High Court in Lakhi Sahu v. Em-
peror46 and became the focal point in numerous other cases right up to 1990s.

In Jagdish Bhuyan v. State47, the accused was a boy, less than sixteen years old, accused for an offence
under the Terrorist and Disruptive Activities Act (TADA). The issue was whether his case would be
governed by the JJA or TADA. The state argued that TADA had an overriding effect over JJA in view
of its section 25. The defense counsel argued that section 25 of the TADA could not override the JJA,
which was enacted in view of Article 15(3) of the Constitution. The Guwahati High Court said that
although both the JJA and the TADA were special Acts, Section 25 of the TADA contained a non
obstinate clause, which clearly gave the TADA, in case of conflicts, an overriding effect over the
provisions of other enactments.

In Antaryami Patra v State of Orissa48 the issue related to grant of bail to a delinquent juvenile in-
volved in a case under the Narcotic Drugs and Psychotropic substances Act (NDPSA). While grant of
bail is the general principle under the JJA, bail under the NDPSA in an exception. The Court did not

41
Dharam Pal, AIR 1975 (SC) 1917.
42
Kakoo, AIR 1976 (SC) 1991.
43
Hiralal Mullick, (1997) 4SSC 44.
44
Raisul, AIR 1977 (SC) 1822.
45
Harnam Singh, AIR 1976 (SC) 2071.
46
1932 (Cal) 487.
47
1992 Cri LJ 3194 (Gau).
48
1993 Cri LJ 1908 (ori).

56
accept the argument of the defense counsel that the JJA, being the latter of the two special legislations,
should apply. Section 37 was added by amendment in the NDPSA in 1989 and had to be given an
overriding effect over Section 18 of the JJA. The Court further observed that the NDPSA was a special
statute containing a special provision with regard to the preconditions to be satisfied for an accused to
be released on bail. Hence, bail could not be granted to a juvenile unless the special conditions as laid
down by the NDPSA were satisfied by him.

In re Sessions Judge Kalpetta49, the question arose in a case of rape and other offences by a juvenile
against a girl belonging to a Schedule Tribe. Should the juvenile be tried in accordance with the pro-
visions of the schedule Castes and Schedule Tribes (prevention of Atrocities) Act 1989 (henceforth,
1989 Act) or those of the JJA? Disagreeing with the judgment in Antaryami Patra, the Kerala High
Court held that in case of any offence by a juvenile, the JJA applied. 'A reading of the provisions of
the 1989 Act will show that the act was concerned with the victims of the crimes. It is not concerned
with the offenders... The overriding power, according to us, cannot be extended to nullify the provi-
sions contained in the 1986 Act which is concerned with juveniles who are offenders. The 1989 Act is
not concerned with offenders. So it cannot have any impact on the 1986 Act which is concerned with
juvenile offenders... In this view we hold that the 1989 Act cannot override the provisions of the 1986
Act which specifically deal with juvenile offenders.' The Madhya Pradesh High Court in Sanjay Ku-
mar50 relied on Antaryami Patra for holding that a juvenile was not entitled to be released on bail
under the NDPSA unless the conditions mentioned in Section 37 were fulfilled.

These judgments show how similar provisions may be given different interpretation for extending
protection to children. The approach of the Guwahati High Court is most perfunctory when it gave a
blanket overriding effect to the TADA over the JJA without examining the individual provisions of
the two Acts. A close examination of the two Acts reveals that while the bail provisions in the two
Acts may be said to be in conflict with each other, the same is not true for other provisions. For exam-
ple, the TADA vested jurisdiction in the special Courts notwithstanding anything contained in the
Cr.P.C. The Juvenile Court having been constituted under the JJA and not under Cr.P.C, the exclusive
jurisdiction of the Juvenile Courts to deal with all delinquent juveniles was not affected by the TADA.
Similarly, the punishments prescribed under the TADA were to be imposed by the special Court. Once

49
(1995) Cri LJ 330 (Ker).
50
2000 Cri LJ 1918 (MP).

57
the special Courts were found to have no jurisdiction in the case for juveniles, there was no question
of imposing the punishment under the TADA.

The approach of the Madras High Court in Ramchandran v Inspector of Police51 shows yet another
way not to exclude children from the purview of the JJA. The question in this case did not relate to the
commission of a serious offence by the child accused, but the declaration of the accused as a goonda
due to the commission of offences antecedent to the current offence. The Court found it unnecessary
to examine the overriding effect of the power of detention under the Act in question for the simple
reason that this Act was attracted only in case of goondas, bootleggers, drug offenders, and the like,
and a child, in its opinion, could not satisfy the definition of a goonda. The child will never become a
goonda if the police discharged its function promptly and properly. When a child commits a serious
offence, the police must take prompt steps to take him into custody and place him under proper care
so that there is no opportunity for him to indulge in further criminal activities which may affect law
and order

In Rajendrav v. State of Uttar Pradesh52, the Court upheld the order of sending the juvenile delinquent
to an approved school for two years for an offence of murder, In other cases the orders were found to
be inappropriate for various reasons. In one case, a sentence of imprisonment made without inquiry
into age was found to be illegal53.

In Sri Krishna v. State of UP54, the Supreme Court held that the sentence of life imprisonment without
proper determination of age could not be sustained in view of the provisions of the Children Act and
ordered the accused to be released on probation.

In Karuppayee and another55, the Court held that the order directing the juvenile to he sent to jail, on
completion of their stay in an approved school, to serve the remaining period of life sentence imposed
upon them was illegal and contrary to the decision of the Supreme Court56. It approved the approach
taken in an earlier judgment57 where the JJA followed a liberal approach.

51
(1993) Cri LJ 3722 (Mad).
52
(1997) Cri LJ 2700 (All).
53
Hiromal s/o chuharmal v. Emperor, AIR 1948 (Sind) 63 (DB).
54
AIR 1991 (SC) 43.
55
(1997) Cri LJ 1627 (Mad).
56
State of AP v. Vallabhapuram Ravi, AIR 1985 (SC) 870.
57
Rajan @ Thiruvengada Karthigean v. State, (1993) MLJ (Cri) 257.

58
In Superintendent, Central Jail, Hyderabad v. C. Narsimhulu58 the Andhra Pradesh High Court held
that persons between 16 and 21 years of age on the date of conviction may be sent to borstal school.

In Shilpa Mittal Vs State of Delhi NCR59, The Court assented to Mr. Luthra's submission but reasoned
that it was not the duty of the Court to fill in the gap and correct it. The Court stated that it could add
or subtract words from a statute when the intention of the legislature is clear. However, in cases where
the purpose of the legislature is unclear, the Court cannot add or subtract words to give meaning which
the Court feels would fit into the scheme of things. The Court was interpreting a statute that must be
interpreted as per its language and intent. The purpose of the Act of 2015 is to ensure that children
who come in conflict with the law are dealt with separately and not like adults. When the language of
the section is clear where it prescribes a minimum of 7 years imprisonment while dealing with heinous
offenses then we cannot wish away the word 'minimum'.

The Court disposed of the appeal by answering the issue and holding that an offense that does not
provide a minimum sentence of 7 years cannot be treated as a heinous offense. However, the Act does
not deal with the fourth category of offenses, i.e., offense where the maximum sentence is more than
seven years imprisonment, but no minimum sentence or a minimum sentence of fewer than seven years
is provided, shall be treated as 'serious offenses' within the meaning of the Act and dealt with accord-
ingly till the Parliament takes the call on the matter.

In Subramanian Swamy and Ors Vs Raju Thr. Member Juvenile Justice Board and Anr, A ghastly
incident of gang rape took place in a moving bus in the streets of Delhi. In connection with the said
incident six accused were arrested on 22.12.2012, one of whom, namely, the first respondent in the
present special leave petition was a juvenile on the date of the occurrence of the crime. The victim of
the offence died on 29.1.2013. While the Juvenile Justice Board (hereinafter for short "the Board")
was in session of the matter against the first respondent, the petitioners in the special leave petition
approached the Board seeking implement in the proceedings before the Board and an interpretation of
the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter for short
'the JJ Act ) so as to enable the prosecution of the first respondent in a regular criminal court. The Hon.
Supreme Court by dismissing the petition upheld the constitutional validity of the J.J.Act -2000 (2006)
and stated that " If the provisions of the Act clearly indicate the legislative intent in the light of the

58
(1999) Cri LJ 1425.
59
(2020) SLP 7678 of 2019

59
country s international commitments and the same is in conformity with the constitutional require-
ments, it is not necessary for the Court to understand the legislation in any other manner. In fact, if the
Act is plainly read and understood, which we must do, the resultant effect thereof is wholly consistent
with The Act, therefore, need not be read down, as suggested, to save it from the vice of unconstitu-
tionality for article 14. are such unconstitutionality does not exist”.

3.10 FIXING OF AGE

The issue of Fixing of Age has been around since many years, In the case of State v. Dungaria
Mahala60 , the medical evidence showed the accused to be below the specified age. The Bombay High
Court held that it was for the prosecution to prove that the accused was not a child, but when it showed
him to be above the specified age, the accused was asked to prove that he was a child. (Nazir Hossain
Halder v. State of W.B61.)

The Calcutta High Court in the case of Dilip Saha v. State of W.B62. said that the person, who is
asking application of the Children Act, should ask for an inquiry to determine his age. Thereafter the
court is obligated to determine the age and record its finding.

The next thing that comes into question is who should ensure the age and whom is the burden to
ensure that evidence is forthcoming to prove age?

In the case of Gopinath Ghosh v. State of W.B63. it was held that it was the duty of the Magistrate to
secure the evidence of age. If necessary the magistrate may refer the accused to the Medical Board or
the Civil Surgeon, as the case may be after obtaining credit worthy evidence about age. The magistrate
may as well call upon accused also to lead evidence about his age.

In the case of Aquil Alvi v. State of U.P64. , the Allahabad high Court held that the high court or the
Court of Sessions may exercise the power of inquiry when proceedings come before them in appeal,
revision or otherwise after commitment of the case, and did not direct that the inquiry must be held by
the competent authority alone.

60
1961 Cri LJ 815
61
1998 Cri LJ 1720
62
AIR 1978 CAL 529
63
1984 Supp SCC 228
64
1996 Cri LJ 103

60
Another question that has been around for a while is what will be the relevant date to determine age
in continuing offences?

In the case of Vimal Chadha v. Vikas Choudhary and another65 , the accused was charged for murder
and extortion. He made calls for ransom even after the hostage was killed. By the time the accused
made the last call, he had crossed the age of eighteen years by a day. The Supreme Court held in
continuing offence, the relevant point to determine the age is the date on which the last ransom call
was made; the Supreme Court held that the JJA did not apply.

3.10.1 Determination of age in the. Absence of Birth Certificate

Age determination is of paramount importance for ascertaining whether an accused comes within
purview of Juvenile Justice Act, 2015 or not. The 2015 Act gives some special privileges to juveniles
accused of committing a crime. Importance of age determination has further increased after the
introduction of “judicial waiver” system which allows treatment of juvenile offenders as an adult if
they are accused of committing a heinous crime (between 16-18 years of age).

The provisions for age determination lean heavily in favour of juvenile offenders. The Child Welfare
Committee (CWC) has been given wide powers in this aspect. If an accused, by his appearance,
appears to be child below 18 years, then the committee shall record the approximate age and proceed
without any further inquiry. If there are reasonable grounds for doubting the age, then the committee
relies upon matriculation certificate or birth certificate. Only in the absence of birth certificate or
relevant school documents, the committee decides to go ossification test or other medical test for
determination of age.

Age determination is a crucial aspect since the benefits enshrined under the Juvenile Justice (Care and
Protection of Children) Act, 2015 are available only to a person who has not completed the age of
eighteen years. Sec 2(35) of the 2015 Act defined juvenile as a child below the age of eighteen
years. Under the 2015 Act, the importance of age determination has further due to the creation of an
exception under which a child above sixteen years of age may be tried as an adult if he is accused of
committing a heinous offence.

65
2008 (9) SCR 911

61
3.10.2 PROCEDURE OF DETERMINATION OF AGE

Under the 2015 Act, a three layered procedure is mentioned for determination of age:-3

1. Based upon appearance- In this case, a presumption is drawn in favour of a juvenile. If a person
appears to be a child below 18 years, then the Child Welfare Committee (CWC) shall record the
approximate age and proceed without waiting for further confirmation.
2. Based upon documentary evidence- If there are reasonable grounds for doubting the age, then the
date of birth mentioned in matriculation certificate, or birth certificate shall be relied upon.
3. Based upon medical evidence- Medical opinion has to be relied upon only in the absence of
documentary evidence.

3.10.3 RELIABILITY OF DOCUMENTARY EVIDENCE

When matriculation certificate or birth certificate is available, courts usually refuse to entertain any
objection over the age of a juvenile. This is mainly because documentary evidence is the primary
evidence under Indian Evidence Act, 1872.4 In Nirbhaya’s case, the age of the accused was 17 years
and six months according to his birth certificate and other school documents. Police requested the court
to conduct ossification test. But the court refused the plea and held that it cannot permit the test in
presence of a positive evidence such as birth certificate.5 In Raju Kumar v. State of Haryana, court
admitted “mark sheet” as proof of age.

Courts have always interpreted the provisions of Juvenile Justice Act in favour of juveniles. In Arnit
Das v. State of Bihar66, court held that while deciding whether an accused is a juvenile or not, a hyper-
technical approach should not be adopted while appreciating the evidence adduced on behalf of the
accused. When two views are possible are possible on the same evidence, the court should lean in
favour of holding the accused to be juvenile in borderline cases.

In a few cases, court has rejected school documents for determination of age if they do not fulfill the
requirements of Indian Evidence Act, 1872. In Ravindra Singh Gorkhi v. State of Uttar
Pradesh67 , court rejected school leaving certificate as it did not satisfy the requirements of Indian

66
(2000) 5 SCC 488

67
(2006 )5 SCC 584

62
Evidence Act, 1872. The court found that no proper register was maintained and original register
wasn’t produced before the court. Register wasn’t maintained in the ordinary course of business. It
was concluded that the certificate was made for the purpose of that case only. Therefore, court rejected
the said certificate.

The curious case of Bihar

Forging a school leaving certificate is relatively easy as compared to other documents. This is
evident by a scandal which was busted in Bihar. Bihar police arrested a school principal who
made fake certificates for adult criminals and certified in courts that they were juveniles. His
modus operandi was very simple. Since he was the principal, it was relatively easy for him to
fake a school leaving certificate. On an additional charge of Rs. 50,000, he would certify in
court that his clients were juveniles. Police suspects that he sold more than 100 forged school
leaving certificates during his tenure as a principle. He even sold them to criminals from other
states as well. As per police reports, there are many other people selling fake certificates.

3.10.4 CONCLUSION

There are better techniques available and are used for determination of age across the world. For
example, the U.S. immigration department uses “wisdom teeth” technique for determination of
age. Under this technique, doctors examine the third molar which usually erupts between 17 to 25
years of age. The average error is in this technique is also significantly lower than the ossification of
any other bone. Another technique is the “epigenetic clock” technique. Epigenetic clock is DNA
clock which measures DNA methylation levels to estimate age of a tissue or an organ. The median
error in this technique can be reduced to less than four weeks. Such techniques need to be introduced
in India as well.

Until better techniques aren’t adopted for determination of age, courts shall be look into “state of
mind” and “criminal maturity” of a juvenile and decide whether he should be tried as an adult or not.
This is primarily because some kids grow faster than others. For instance, a boy who is reared in
high delinquency area may reach criminal maturity by the age of twelve or thirteen years. He has
reached criminal maturity because criminality has become an integrated part of his personality. He
plans his offenses, knows how to “fix” things if caught, and thinks of himself as “delinquent” or
“bad.” This approach is based upon the principle enunciated in sec 83 of the Indian Penal Code, 1860
which states nothing is an offence done by a child above 7 years and under 12 years of age if it is

63
proved that he was immature to understand the consequences of his act. However, this approach shall
be used only in the cases where medical evidence is not conclusive and there are reasonable grounds
for doubting the credibility of available documentary evidence.

64
 CHAPTER FOUR:
FOREIGN LAWS

The basic actions to prevent children and young people from engaging in criminal activities as well as
to, protect the human rights of youth already found to have broken the law, have been established by
the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (also
referred to as “The Beijing Rules”) (United Nations, 1985) and the Guidelines for the Prevention of
Juvenile Delinquency, 1990 (also referred to as “The Riyadh Guidelines”) (United Nations, 1990). In
1989, the focus on safeguarding the human rights of children and young people was strengthened by
the Convention on the Rights of the Child (CRC) (United Nations, 1989), which entered into force in
1990. In 1995, the United Nations adopted the World Programme of Action for Youth (WPAY),
providing a policy framework and practical guidelines for national action and international support to
improve the situation of young people.

4.1 UNITED STATES OF AMERICA

Juveniles have not always been processed through a separate system of justice. In all modernized
countries, until the 19th century, the criminal code applied to all people — adults and children alike.
During the 19th century, a number of developments paved the way for a separate system of justice for
juveniles in the United States68.

A Juvenile Court was established in Chicago in 1899, the first such Court in the world. At that time,
when the number of dependent and destitute children was increasing because of an increase in birth
rates and an influx of immigrants to America, the establishment of the Juvenile Court system in the
United States was part of a reform movement to protect children. This movement included the estab-
lishment of child labour laws, compulsory education, and houses of refuge. Juvenile Courts were es-
tablished in order to introduce the practice of in loco parentis in place of parents69. The origin of the
Juvenile Court can be traced back to early English legal doctrine known as parens patriae (the state as

68
Richard A. Lawrence and Craig T. Hemmens, Juvenile Justice, SAGE Publication, Inc., 2008
69
Toru Ogino, “Prevention of Juvenile Crimes in US and Japan”, Harvard University Press, 2005, available at
<http://dev.wcfia.harvard.edu/us-japan/research/pdf/05-11.Ogino.pdf> (viewed on 3rd February 2015)
Ibid

65
parent), which justified the Court's jurisdiction in cases in which parents had failed to properly care
for and supervise their children.

In the early 20th century, the ideas and practices of Juvenile Court in the United States had a great
impact on many countries. Juvenile Courts were established in the United Kingdom in 1908; in France,
Austria and Belgium in 1912; in Hungary in 1915; in Spain in 1916; and in Germany in 192370. Each
State's processing of law violators is unique. Even within States, case processing often varies from
community to community depending on local practice and tradition. Consequently, any description of
juvenile justice processing must be general, outlining a common series of decision points.

In USA the law enforcement diverts many juvenile offenders out of the justice system. At the time of
arrest, a decision is made either to send the matter further into the justice system or to divert the case
out of the system, often into alternative programs. Usually, law enforcement makes this decision, after
talking to the victim, the juvenile, and the parents, and after reviewing the juvenile's prior contacts
with the juvenile justice system. 22% of all juveniles arrested in 2009 were handled within the police
department and then released. 70% of arrested juveniles were referred to juvenile court.

Federal regulations discourage holding juveniles in adult jails and lockups. The authorities must detain
a juvenile in secure custody for a brief period in order to contact a parent or guardian or to arrange
transportation to a juvenile detention facility. Federal regulations require that the juvenile be securely
detained for no longer than 6 hours and in an area that is not within sight or sound of adult inmates.

Most juvenile court cases are referred by law enforcement. The law enforcement referrals accounted
for 83% of all delinquency cases referred to juvenile court in 2009. The remaining referrals were made
by others such as parents, victims, schools, and probation officers. The court intake function is gener-
ally the responsibility of the juvenile probation department and/or the prosecutor's office. At this point
they must decide either to dismiss the case, handle the matter informally, or request formal intervention
by the juvenile court.

To make this decision, an intake officer first reviews the facts of the case to determine if there is
sufficient evidence to prove the allegation. If there is not, the case is dismissed. If there is sufficient
evidence, intake will then determine if formal intervention is necessary. About half of all cases referred
to juvenile court intake are handled informally. Most informally processed cases are dismissed. In the
other informally processed cases, the juvenile voluntarily agrees to specific conditions for a specific
time period. These conditions are often outlined in a written agreement, generally called a "consent

66
decree." Conditions may include such items as victim restitution, school attendance, drug counselling,
or a curfew. In most jurisdictions, a juvenile may be offered an informal disposition only if he or she
admits to committing the act. The juvenile's compliance with the informal agreement is often moni-
tored by a probation officer. Consequently, this process is sometimes labelled "informal probation."

If the juvenile successfully complies with the informal disposition, the case is dismissed. If, however,
the juvenile fails to meet the conditions, the intake decision may be to formally prosecute the case, and
the case will proceed just as it would have if the initial decision had been to refer the case for an
adjudicatory hearing.

During the processing of a case, a juvenile may be held in a secure detention facility:
Juvenile courts may hold delinquents in a secure detention facility if the court believes it is in the best
interest of the community or the child. After arrest a youth is often brought to the local juvenile deten-
tion facility by law enforcement. Juvenile probation officers or detention workers review the case and
decide if the juvenile should be held pending a hearing by a judge.

In all States, a detention hearing must be held within a time period defined by statute, generally within
24 hours. At the detention hearing a judge reviews the case and determines if continued detention is
warranted. As a result of the detention hearing the youth may be released or detention continued. In
2009 juveniles were detained in 1 in 5 (21%) delinquency cases processed by the juvenile courts.
Detention may extend beyond the adjudicatory and dispositional hearings. In some cases crowded
juvenile facilities require that detention continue beyond adjudication until a bed becomes available in
a juvenile correctional institution or treatment facility.

Prosecutors may file a case in either juvenile or criminal court. In many States prosecutors are required
to file certain (generally serious) cases involving juveniles in the criminal court. These are cases in
which the legislature has decided the juvenile should be handled as a criminal offender. In a growing
number of States the legislature has given the prosecutor the discretion of filing a defined list of cases
in either juvenile or adult court. In these States both the juvenile and adult courts have original juris-
diction over these cases and the prosecutor selects the court that will handle the matter.

If the case is handled in juvenile court, two types of petitions may be filed: delinquency or waiver. A
delinquency petition states the allegations and requests the juvenile court to adjudicate (or judge) the
youth a delinquent, making the juvenile a ward of the court. This language differs from that used in
the criminal court system (where an offender is convicted and sentenced).

67
In response to the delinquency petition, an adjudicatory hearing is scheduled. At the adjudicatory hear-
ing (trial), witnesses are called and the facts of the case are presented. In nearly all adjudicatory hear-
ings the determination that the juvenile was responsible for the offense(s) is made by a judge; although,
in some States the juvenile is given the right to a jury trial. In 2009, juveniles were adjudicated delin-
quent in 59% of cases petitioned to juvenile court for criminal law violations.

Intake may ask the juvenile court to transfer the case to criminal court:
A waiver petition is filed when the prosecutor or intake officer believes that a case under jurisdiction
of the juvenile court would be more appropriately handled in criminal court. The court decision in
these matters follows a review of the facts of the case and a determination that there is probable cause
to believe that the juvenile committed the act. After this is established, the court then considers whether
jurisdiction over the matter should be waived and the case is transferred to criminal court.

There are three mechanisms by which a juvenile's case may be waived to an adult court:

• Judicial Waiver Offences

A judicial waiver occurs when a juvenile court judge transfers a case from juvenile to adult court in
order to deny the juvenile the protections that juvenile jurisdictions provide. All states except Ne-
braska, New York, and New Mexico, currently provide for judicial waiver and have set a variety of
lower age limits (Snyder, Sickmund & Poe-Yamagata, 2000). In most states, the youngest offender
who can be waived to adult court is a 17 or 18-year-old, although in some states, this age is as low as
13 or 14. Usually, the offence allegedly committed must be particularly egregious in order for the case
to be waived judicially, or there must be a long history of offences.

• Statutory Exclusion

By 1997, 28 states had statutory exclusions, which are provisions in the law to exclude some offences,
such as first-degree murder, from juvenile court jurisdiction. This number is expected to increase.

• Concurrent Jurisdiction

Some states also have a legal provision which allows the prosecutor to file a juvenile case in both
juvenile and adult court because the offense and the age of the accused meet certain criteria. Prosecu-
torial transfer does not have to meet the due process requirement stipulated by Kent v. U.S. Approxi-
mately 15 states currently have this provision, although this number is expected to increase in the next
few years.

68
The most important case guiding juvenile waiver is Breed v. Jones (1975). This case designates that a
juvenile cannot be adjudicated in a juvenile court then be waived and tried in an adult court. To do so
is to try the youth twice for the same crime (double jeopardy), which violates the Fifth Amendment.
However, in reality, this case did not have much impact on the juvenile system since juveniles are now
subject to a waiver hearing which appears to be similar to a trial except in outcome

The jurisdiction over the matter should be waived or not, is dependent upon the issue whether the
juvenile is amenable to treatment in the juvenile justice system. The prosecution may argue that the
juvenile has been adjudicated several times previously and that interventions ordered by the juvenile
court have not kept the juvenile from committing subsequent criminal acts. The prosecutor may argue
that the crime is so serious that the juvenile court is unlikely to be able to intervene for the time period
necessary to rehabilitate the youth.

If the judge agrees that the case should be transferred to criminal court, juvenile court jurisdiction over
the matter is waived and the case is filed in criminal court. If the judge does not approve the waiver
request, an adjudicatory hearing is scheduled in juvenile court.

Between the adjudication decision and the disposition hearing, an investigation report is prepared by
probation staff. Once the juvenile is adjudicated delinquent, a disposition plan is developed. To prepare
this plan, probation staff develops a detailed understanding of the youth and assess available support
systems and programs. To assist in preparation of disposition recommendations, the court may order
psychological evaluations, diagnostic tests, or a period of confinement in a diagnostic facility.

At the disposition hearing, dispositional recommendations are presented to the judge. The prosecutor
and the youth may also present dispositional recommendations. After considering options presented,
the judge orders a disposition in the case.

Most juvenile dispositions are multi-faceted. A probation order may include additional requirements
such as drug counselling, weekend confinement in the local detention centre, and community or victim
restitution. The term of probation may be for a specified period of time or open ended. Review hearings
are held to monitor the juvenile's progress and to hear reports from probation staff. After conditions of
the probation have been successfully met, the judge terminates the case. In 2009, 60% of adjudicated
delinquents were placed on formal probation.

Juvenile aftercare is similar to adult parole. Following release from an institution, the juvenile is often
ordered to a period of aftercare or parole. During this period the juvenile is under supervision of the

69
court or the juvenile corrections department. If the juvenile does not follow the conditions of aftercare,
he or she may be recommitted to the same facility or to another facility.

In most States, the juvenile court has original jurisdiction over all youth charged with a law violation
who were below the age of 18 at the time of the offense, arrest, or referral to court. Since 1975, four
States have changed their age criteria: Alabama increased its upper age from 15 to 16 in 1976 and to
17 in 1977; Wyoming reduced its upper age from 18 to 17 in 1993; and New Hampshire and Wisconsin
lowered their upper age from 17 to 16 in 1996. In many States, the juvenile court has original jurisdic-
tion over young adults who committed offenses while juveniles. In some States, a combination of the
youth’s age, offense, and prior record places the youth under the original jurisdiction of both the juve-
nile and criminal courts. In situations where juvenile and criminal courts have concurrent jurisdiction,
the prosecutor has the authority to decide which court will initially handle the case. Transfer under
concurrent jurisdiction provisions is also known as prosecutorial waiver, prosecutor discretion, or di-
rect file. The authority of the juvenile court judge to waive juvenile court jurisdiction and transfer the
case to criminal court is called judicial waiver. In 31 States, juveniles who have been tried as adults
must be prosecuted in criminal court for any subsequent offenses.

In 2011, Wisconsin teenager Brogan Rafferty, 16, was charged with two offences: Killing a man and
attempting to murder another. He was tried as an adult and sentenced to prison. The same year, a 12
year old Colorado boy shot his parents to death and attacked two younger siblings, the motives of
which remain a mystery. He was sentenced in Juvenile court to seven years in detention after pleading
guilty71.

In the landmark Roper v. Simmons72, the Supreme Court ruled that capital punishment may not be
imposed for crimes committed sas minors. The opinion, delivered by Justice Anthony Kennedy, de-
clared that minors had diminished culpability due to immaturity and therefore their execution was
cruel and unusual under evolving standards of decency. Setting the age of adulthood at 18 is arbitrary
and is a cultural evolution more than a scientific one. In a media-saturated age, juveniles today are far
more aware than their predecessors were. However, awareness is not the same as maturity. The argu-
ment to lower the juvenile age limit in select cases was rejected. The lower age limit is sought only for
some crimes as the public is swayed by an emotional response to their brutality than by reason alone.

71
“Juvenile Justice System in USA”, <http://www.americanbar.org/content/dam/aba/migrated/publiced/fea-
tures/DYJpart1.authcheckdam.pdf> (viewed on 04th April 2015)
72
(2005) 543 U.S. 551.

70
The US Supreme Court did not deny the brutality of some of the crimes committed by juveniles but
made the interesting point that this very factor - the brutality of the crime - may overpower any miti-
gating arguments based on youth as a matter of course if the application of the death penalty was
allowed.

4.2 UNITED KINGDOM

In United Kingdom, Youth Justice and Criminal Evidence Act, 1999, says children between ages 10
and 18 are capable of committing a crime and will be tried in a separate court for youth. In exception-
ally severe cases, a youth can be tried as an adult in regular courts73.

The British legal system introduced different treatments for young offenders from the 1850s onwards,
when reformatory and industrial schools were first introduced. From the 1880s onwards, campaigners
began to call in particular for the introduction of a special court to handle cases involving children and
young people74.

Finally the Juvenile Courts were established in England and Wales under the Children Act of 1908.
The Act had six parts: infant life protection; the prevention of cruelty; the prohibition of juvenile
smoking; the refining of the roles of industrial and reformatory schools; the creation of the juvenile
courts; and a 'miscellaneous' division which included such provision as the banning of under-fourteens
from public houses75. While the Act made the law clearer in certain areas, it further extended the power
of the state to determine family matters, and it formally introduced the juvenile court to the British
legal systems. Many sections of this law were repealed by the Children and Young Persons Act of
1933. In matters relating to the treatment of juvenile delinquency this act was amended in 1938 and
again by the Criminal Justice Act of 1948.

A child under the age of 10 should not be arrested according to Section 16 of the Children and Young
Persons Act, and if a juvenile arrested and later he turns out to be below the age of 10 years he should
be released immediately according to Section 34(2) of Police and Criminal Evidence Act. A child may
be only kept in police custody for 72 hours and as soon as possible the constable concerned should
make arrangements for the investigations to take place. After a juvenile has been charged and if he is
detained he must be brought in front of the magistrates’ court in accordance with the provisions of

73
“About the youth justice board”, available at <http://www.justice.gov.uk/about/yjb> (viewed on 22nd February 2015).
74
G. Behlmer, Friends of the Family: The English Home and its Guardians, Stanford, 1998, pp. 242-7.
75
H. Hendrick, Child Welfare: England 1872 – 1989, London, 1994 pp. 121-5.

71
Section 46(1), as soon as is practicable and in any event, in all circumstances not later than the day of
the following charge. A juvenile who has been arrested under a warrant should not be released accord-
ing to Schedule 6, para 19(b) of the Police and Criminal Evidence Act. A juvenile must not be detained
in a police cell unless no other accommodation is available and the custody officer does not think it is
practical to supervise him if he is not placed in a cell.

In Section 50 of the Children and Young Persons Act 1933 it has been stated that it shall be conclu-
sively presumed that no child under the age of 10 can be guilty of an offence. Between the ages of 10-
14 years a child is presumed not to know the difference between right and wrong and therefore inca-
pable of committing a crime because lack of mens rea. This is a reputable presumption and the burden
of rebutting it, is upon the prosecution as was also held in the case of JM (a minor) v. Runeckles76.
From the cases of C (a minor) v. Director of Public Prosecutions77, CH v. Director of Public Prose-
cutions there were five relevant principles laid down which are not contentious:

• The presumption of doli incapax can only be rebutted by clear positive evidence that a child
knew that his act was seriously wrong.

• Evidence of the omission of the acts amounting to the offence itself is not sufficient to rebut
the presumption.

• Interviews with the child are capable of proving the necessary insight into the mental functions
of the child from which inferences may be drawn to rebut the presumption.

• The conduct of the child before or after the act may go to prove his guilty mind.

• The older the child is and the more obviously wrong the act, the easier it will generally to prove
guilty knowledge.

In the case of L v. Director of Public Prosecutions78 the youth court was correct to find that there was
sufficient evidence of the presumption that the appellant was doli incapax to be rebutted. In IPH v.
Chief Constable of South Wales79a 11 year old boy was said to have enough knowledge that his act
was causing a damage to the motor vehicle and also in the case of JM (a minor) v. Runeckles where a
13 year old who attacked under kid with a milk bottle, must have known that it was seriously wrong

76
(1984) 79 Cr App R 255.
77
(1995) 2 All ER 43.
78
(2003) QB 137.
79
(1987) Crim LR 42.

72
to engage in such a behaviour. In the case of Director of Public Prosecutions v. K&B80 children below
14 years of age or of 14 years of age were convicted for rape and indecent assault as the children were
found with guilty mind leading to mens rea. In Powell’s where a 16 year old with a previous conviction
for indecent assault received six years Section 53(2) detention of rape of a 15 year old girl, illustrates
the courts attempt to balance the various considerations posed by the very serious youthful offenders.

A single police reprimand for non-serious offences, is to be followed by a final warning according to
Section 65(1) of the Crime and Disorder Act, if another offence was committed. Any subsequent of-
fences would automatically lead to prosecution, unless two years had elapsed since the earlier, final
warning, and the offence was a minor one neither the reprimand nor the final warning would be re-
quired should the police decide that the offence was sufficiently serious for immediate prosecution. In
the Reynolds it was seen that when two co-offenders were convicted of domestic burglary were dif-
ferentiated on the basis that one had previous convictions for that kind of offence receiving a custodial
sentence whereas the other one not having any previous conviction received a community service
order. If an eight year old girl found shoplifting with a group of older girls in the local shopping centre
might be referred by the police to social services. The local authority could apply to the court for a
child safety order. The orthodoxy of the 1991 Act said that if the offence is too serious to be properly
punished by financial penalties alone; the punishment should be partial restriction on liberty and free-
dom of movements.

Section 91 speaks about detention on grievous If a grievous crime has been committed by a child of
14 or under like murder, Section 14 of Sexual offence Act 1956, Section 15 of the Act related to
indecent assault on the man, Section 1 of the Road Traffic Act 1988 causing the death of a person due
to rash driving, or under Section 3A causing a death by rash driving while drunk or drugged the court
is of the opinion that if there is no other method in which the case may legally be dealt with suitable,
the court may sentence the offender to be detained for such period, not exceeding the maximum term
of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may
be specified in the sentence.

There are instances where sentence of detention or study for life has been upheld. In Attorney Gen-
eral’s Reference a 20 year old man was given life imprisonment as he had an untreatable Psychopathic
disorder with a propensity to commit sexual assaults. In Carr a girl aged 15 had committed grievous
bodily injury under Section 18 by stabbing another girl in the back. She was also held for two other

80
1 Cr App R 36 (DC).

73
cases of attempting to strangle other girls and that was taken into consideration. A 42 months sentence
was awarded keeping in mind the psychiatric advice. In Sheldon a boy aged 13 attempted to a murder
a girl aged 10 by tripping her and then applying pressure on her neck which made her unconscious. He
then committed sexual abuse by inserting an object into her vagina. He was sentenced to four years of
punishment keeping in mind the ray of hope of redemption. Gitta Sereny analysed one of the case in
which Mary Bell a child of 11 years in 1968 was held guilty of killing two young boys at the age of
10. The boys killed aged 3 and 4 respectively. It was found on enquiry that the child was emotionally
abused by a seriously disturbed mother’ a mother who immediately after the birth cried “Take the thing
away from me” and jerked the body of the kid away when the child put in her arm. Though the trial
court judge wanted to make a hospital order but as there was no suitable place available, she was
sentenced to detention for life.

Young people are offenders under the age of 18, or in some cases aged 18 but remaining in the under
18 estate, and will be held in either a Secure Children’s Home (SCH), a Secure Training Centre (STC)
or a Young Offender Institution (YOI). The Youth Justice Board is responsible for placing young
people in custody and typically those aged under 15 will be held in an SCH and those over 15 will be
held in either a YOI or STC. Only 17 year old female young people are normally placed in a YOI.

Young people can be sentenced to Detention and Training Order (DTO) or imprisonment under section
90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or imprisonment under section 226
or 228 of the Criminal Justice Act 200381. YOIs holding young people operate within many of the
same rules and policies as prisons for men and women. Whilst sentenced young people will be subject
to the YOI Rules, young people on remand are subject to the Prison Rules. Where an offender will
serve his sentence is decided by Her Majesty’s decision. If the offender has any kind of life sentence,
then the YOI makes certain reports about him and then the offender is sent to the “Lifer Centre” to
await a final decision on where he will go. It will then be up to staff in Head Office to decide where
he will finally be sent to serve his sentence. For all other sentences the local prison or remand centre
will decide as to in which YOI the offender will have to go.

At YOI, initially there will be an induction. The offender and the prison staff talk about anything the
offender is worried about. Then, if the sentence of the offender is 4 weeks or longer then the prison
staff will work with the offender to make a plan called a sentence plan. This plan talks about the things
offender and prison staff have agreed to do while he is in the YOI. For example, it will talk about

81
“Young people (juvenile offenders)”, available at <https:// www.justice.gov.uk/offenders/types-of-offender/juveniles >

74
education and the work he will do. If he has less than 3 months left in the YOI, the plan will talk about
what he needs to do to get ready for life after he leaves. The sentence plan will usually carry on for at
least 3 months after he leaves the YOI. This is because someone from the probation service (usually
the offender’s manager) will work with him to see how he is getting on after he leaves the YOI. People
called offender managers and offender supervisors will help him do all the things in his sentence plan.
The offender manager is someone from the probation service outside the prison. In YOI, the offender
can get education, training in learning new skills or in finding a job, physical education like sports,
watch television, play games, can do religious service in the YOI.

After this the offender is helped by the prison staff to get ready for life after he leaves the YOI. They
talk about his life, job, health, money and family. After the offender leaves the YOI he still has to
follow certain rules for at least 3 months or till he turns 22, whichever is earlier. This is called as
supervision. Someone from the probation service, probably the offender’s manager, will work to see
how he is getting on after leaving the YOI. At the time of leaving the YOI a document called license
is given to the offender which tells him about the rules he need to follow after having left the YOI82.

4.3 FRANCE

The first law on Juvenile Courts in France was enacted in 1912. In the course of time this law was
found to be inadequate to meet the changing conditions and it was replaced by a decree of February 2,
1945, which later became law and which was amended on August 25, 1948. The 1996 amendment to
the Law of 1945 was proposed to combat the rise in juvenile crime that began in 195583. Not only were
juveniles committing more crimes, they were also committing more violent crimes than in previous
decades. In 1988, juveniles under the age of eighteen committed two percent of the nation's homi-
cides84. This is the current governing law. The 1996 Amendment created a new procedure that requires
a hearing on the offense charged, where the judge is authorized to order either a rehabilitative measure
or a penalty-in either case, the judge is authorized to order that the juvenile be confined to a public
detention facility85. This change in French law, similar to the change in U.S. law, has reduced the
French juvenile justice system to trying juveniles at younger ages without focusing on the individual

82
Ann E. Norman and Alan A. Parrish (Ed.), Prison Nursing, Ed.1, 2002, p.114.
83
Calvin Peeler, “Always a Victim and Never a Criminal: Juvenile Delinquency in France”, North Carolina Journal of
International Law and Commercial Regulation Inc., Ed. 22, 1997.
84
Laurence Follea, “Deux pour cent des homicides commis par des moins de 18 ans (Two percent of homicides committed
by those under 18 years of age)”, Le Monde (Paris), 1993.
85
Supra 91

75
circumstances that cause juveniles to commit murder. This law created a specialised jurisdiction with
a specific juvenile court judge who has jurisdiction over both civil and penal matters. Because of the
court’s dual jurisdiction for “children in need of care” and “juvenile delinquents”, the juvenile court
judge is in an unparalleled position to identify and react to the risk/needs factors most often associated
with young offenders.

This legislation provides for a separate Juvenile Court in each Court of first instance. The Juvenile
Court is presided over by a "children's Judge" selected among the Judges of the Court of first instance
and appointed for 3 years. The children's Judge is assisted by assessors (Court advisors), men or
women active in child welfare work, who are appointed also for 3 years. They are nonprofessional
members of the Court who help the Judge to consider cases and reach decisions.

The Juvenile Courts that handle a large number of cases may have two or more Judges. The Juvenile
Court in Paris, which also serves the surrounding territory of the Department of the Seine and hears
more than half of the cases of juvenile delinquency in the whole of France, has a presiding Judge and
a vice president. Unlike the Juvenile Courts elsewhere in France, the tenure of office of the children's
Judge in Paris is not limited in time. In France no criminal charge can be brought against a child up to
the age of 10 years; and for child between 10-13 years of age, only educational penalties such as
placing in a specialized Centre or home are to be given, while between 13-16 years of age, minors will
get only half of the adult sentence. Lastly, between 16-18 years of age, person would be remanded to
Criminal Court and plea of juvenility can be set aside. The use of an offender's age as a mitigating
factor in sentencing determinations is employed on a case by case basis is not a standard applied in a
wholesale manner to all juveniles of the same age.

In June 2011, French Parliamentarians voted on a new law in the National Assembly introducing a
reform of the juvenile justice system. The law provides for the creation of a criminal court with a
juvenile judge to adjudicate on recidivist offenders aged 16 to 18 years. The law also introduces new
procedures for faster prosecution. The law was largely criticised by civil society as it represents a

76
regression of juvenile justice and puts in danger the specificity of the justice system for minors86. Ac-
cording to the magistrate, "nothing will change in juvenile delinquency only how they are judged." He
said “We regressed the principles but not the crime”87.

The Juvenile Courts hear cases of persons under 18 years of age who are accused of major or minor
offenses or present other serious problems of behaviour. Some of these cases are heard by regular
Courts, which may refer them to the Juvenile Courts. Protective, educational, or corrective measures
are prescribed; penalties are permitted only as exceptions.

The juvenile court judge undertakes the criminal investigation; orders social psychological and family
studies; and integrates educational, occupational, medical and psychiatric services for the young per-
son and their family. Most of the procedures involving children and young people take place in the
informal settings of the chambers of the juvenile court judge where the judge usually dispenses with
the legal formalities which are obligatory with adults. In France the view is that delinquency will be
prevented, and the risks to vulnerable children reduced, if those condemned can keep or establish a
place within conventional society. Hence the juvenile court judge is charged with the task of facilitat-
ing the young person’ “inclusion” into conventional life by bringing their influence to bear on the
education, social work, leisure, housing and other relevant systems (Ely 1990)88.

The judge receives referrals from many sources: schools, social services, police, children’s organisa-
tions, parents or even children themselves. While cases involving serious or persistent offending may
be referred for trial, for the vast majority of cases the judge typically requests that a social and educa-
tional worker assess the family environment in which the youth is being raised. This inquiry focuses
on the problem profile of the youth’s family, the extent of the youth’s criminal record, and the youth’s
school behaviour. After this preliminary investigation the juvenile court judge has a wide range of
options at his/her disposal to respond to the problem profile of the youth and the family89.

The judge has the following options:

• placing the juvenile in a children’s home;

86
("Réforme de la justice des mineurs en examen au sénat") The law (No. 2011-939) was published in the Official Gazette
in August 2011 and came into force in early 2012.
87
“Juvenile Justice: States Lowering The Minimum Age Of Criminal Responsibility”, available at
<https://www.crin.org/en/library/publications/juvenile-justice-states-lowering-minimum-age-criminal-responsibility>.
88
Raymond Arthur, “YOUNG OFFENDERS: CHILDREN IN NEED OF PROTECTION”, available at <
http://tees.openrepository.com/tees/bitstream/10149/58438/5/58438.pdf>.
89
Ibid.

77
 • appointing a social worker to assist the youth and family;

• placing the youth into the care of a special educational establishment where the child may be
ordered to see a psychiatrist, psychologist or vocational guidance expert;

• placements in local activity schemes designed to steer adolescents away from opportunistic
petty offences;

• community service order for offenders between sixteen and eighteen years of age; or placing
the youth in custody if necessary (detention).

The most common outcome that results from the information provided to the juvenile court judge is
Educative Action in an Open Environment. This order requires that the child live with the parent(s),
and that the family meet regularly with a social worker. The social worker evaluates the young person
and the family and draws up a plan. The social worker works directly with the young person to help
them implement the plan. The situation is evaluated within six months after the order is issued to
determine whether to extend or terminate the order. The focus is on evaluating the risk posed to the
child if he remains within the family. Where it is deemed necessary, experts will also be consulted to
assess the specific risk factors in health, mental health, and school. In addition, the juvenile court judge
has the option of retaining the youth under the court’s protective care until age twenty one. During this
period, the judge considers the specific problems that are inhibiting the youth’s ability to reintegrate
into the community. The judge also has the authority to devise, implement, and monitor a plan of
intervention that can include, but is not limited to, foster care, special education, and training programs.

The French model has many advantages, it is based on informal procedures and powers that maximise
the quantity and quality of information the judge is able to utilise in devising, implementing, and mon-
itoring the outcome of individual cases. The French youth justice system places priority on under-
standing the juvenile’s actions and offering therapeutic interventions rather than condemning the child.
The aim is to take into consideration the personal situation of the juvenile in order to prevent further
offending behaviour. The extraordinary powers of the judges allow them to influence and direct access
to state resources or programs. The youth court judge in conjunction with social workers acts at a
critical moment of the young person’s life “when destiny is still flexible”. The focus of judicial inter-
vention is on the family, rather than on ascertaining the precise actions that have taken place and on
characterising specific acts as criminal or as child abuse90.

90
Ibid.

78
4.4 AUSTRALIA

In all the Australian States there are specialised children’s courts that have jurisdiction over offences
committed by young people. The courts may be constituted by a specialised children's court magis-
trate/judge, or by a magistrate constituting a children's court and exercising the powers under the rel-
evant legislation. Australia’s legislation, policy and practice, recognizes that juveniles are more vul-
nerable than adults and need to be handled differently. Compared with adults, juveniles lack maturity,
are more likely to take risks and are more easily influenced by peers. A sentence in prison may develop
a criminal mindset and set a path for an adult life of crime.

Throughout Australia juveniles have been dealt with separately from adults and treated less harshly
than their adult counterparts. A range of policing measures has been introduced to divert offenders
away from the criminal justice system. These include cautioning, conducting meetings between an
offender and their victim, and convening specialty courts. These options for dealing with juvenile
offenders are often more intensive and costly than dealing with adult offenders, but have a better
chance of ensuring young people do not go on to commit further crimes.

According to the Australian Institute of Health and Welfare (2007 (b)) 13,254 young people of Aus-
tralia experienced some form of juvenile justice system supervision during 2005-06. Out of these,
11,265 were aged between 10 to 17 years of age and were more likely to be male (around 83%) and
aged 16 years of age or older (64%). The Australian Institute of Criminology (AIC) has monitored
juveniles in detention in Australia since 1981. It has found that the number of juvenile detainees per
100,000 head of population dropped from 64.9 in 1981 to 37 in 2008.

Jurisdiction No Criminal Re- Presumption against Treatment as

sponsibility Criminal Responsi- child/juvenile
bility

Commonwealth Under 10 years 10 to less than 14 Not specified

Crimes Act 1914, years
s.4M Crimes Act 1914,
Criminal Code Act s.4N
1995, s.7.1 Criminal Code Act
1995, s.7.2

79
Australian Capital Under 10 years 10 to less than 14 Under 18 years
Country Children and Young years Children and
People Act 1999, Children and Young Young People Act
s.71(1) People Act 1999, 1999, s.8
s.71(2)

Northern Territory Under 10 years 10 to less than 14 Under 18 years

Criminal Code, years Juvenile Justice
s.38(1) Criminal Code, Act, s.3
s.38(2)

New South Wales Under 10 years 10 to less than 14 Under 18 years

Children (Criminal years Children (Criminal
Proceedings) Act Common law Proceedings) Act
1987, s.5 doli incapax 1987, s.3

Victoria Under 10 years 10 to less than 14 Under 18 years

Children and Young years Children and
Persons Act 1989, Common law Young Persons Act
s.127 doli incapax 1989, s.3

South Australia Under 10 years 10 to less than 14 Under 18 years

Young Offenders years Young Offenders
Act 1993, s. 5 Common law Act 1993, s.4
doli incapax

Western Australia Under 10 years 10 to less than 14 Under 18 years

Criminal Code Act years Young Offenders
Compilation Act Criminal Code Act Act 1994, s.3
1913, s.29 Compilation Act
1913, s.29

80
 Queensland Under 10 years 10 to less than 14 Under 17 years
Criminal Code Act years Juvenile Justice
1899, s.29(1) Criminal Code Act Act 1192, s.5 and
1899, s.29(2) s.6

Tasmania Under 10 years 10 to less than 14 Under 18 years

Criminal Code Act, years Youth Justice Act
s.18(1) Criminal Code Act, 1997, s.3
s.18(2)

In Australia, children's first contact with the formal juvenile justice system occurs when they are ar-
rested, summoned or have other forms of contact with police as a person suspected or accused of a
crime. Cautioning schemes of the police can be informal and at the discretion of individual police, or
formal and connected with formal diversionary processes. The number of informal cautions or warn-
ings issued to children is very hard to estimate because the nature of the caution or warning might
mean that no record is kept of the encounter between the child and the police. Some jurisdictions are
now beginning to keep statistics about the numbers of informal and/or formal cautions issued, along
with statistics about other diversionary schemes such as family group conferencing, etc.

When police decides to bring a child to court, they proceed by way of arrest or court attendance notice.
The rate at which police uses these mechanisms differs in each jurisdiction. Indigenous children are
more likely to be arrested than summoned when they are formally processed by police. Most jurisdic-
tions keep some statistics on the numbers of criminal matters heard in children's courts. As children
may be charged with more than one offence in a single case, many jurisdictions keep statistics regard-
ing the 'most serious offence charged' for each case, rather than the total number of charges. Some
children's matters are heard in district courts or a Supreme Court, and these too are often excluded
from published data91.

91
“A statistical picture of Australia's children”, available at <http://www.alrc.gov.au/publications/2-statistical-picture-aus-
tralias-children/juvenile-justice-systems#_ftnref197>.

81
Sentences in most jurisdictions include:

• fines,

• community service,

• probation and other supervision, and

• detention

A child with more than one proved offence in any given case could receive more than one penalty or
sentence in most jurisdictions. Some jurisdictions therefore report the 'most serious penalty rather than
the total number of penalties given in any one case when reporting sentencing statistics.

Children may be held in custody in juvenile detention centres because they are on remand or because
they are sentenced to detention on conviction of an offence. The increasing numbers of young peo-
ple being held in custodial remand is of serious concernin many Australian states and territories. As
on 30 June 2006, 58% of young people in juvenile justice detention were remanded in custody awaiting
trial or sentencing92.

4.4.1 NEW SOUTH WALES

Juvenile Courts, first introduced in New South Wales under the Neglected Children and Juvenile Of-
fenders Act, 1905. Then it was regulated by the Child Welfare Act, 1939 and today it is governed by
Children (Criminal Proceedings) Act 1987. Under this law every Juvenile Court has a Special Judge
with jurisdiction in a prescribed area. In areas lacking Juvenile Courts the functions of these Courts
are performed by a specially designated police Judge or by two Justices of the peace.

The Juvenile Courts are required to hear cases of persons under 18 years of age who have violated a
law or ordinance, or are uncontrollable, or neglected. The latter category includes children and young
people whose home conditions are such as to lead to moral neglect, vice, or crime; who lack proper
food, clothing, medical care, or living quarters; who are engaged in street trades without a permit; and
who fail to comply with the law on compulsory school attendance. When a child or young person is
arrested he may be detained in a receiving home pending the hearing of his case or during adjournment

92
Professor Paul Mazerolle and Dr Jennifer Sanderson, “Understanding Remand In The Juvenile Justice System”, avail-
able at <http://www.griffith.edu.au/__data/assets/pdf_file/0016/338110/understanding-remand-in-the-juvenile-justice-
system.pdf> .

82
of the hearing, or he may be permitted to go home with a parent or other person who is willing to
undertake his care during such a period.

In disposing of a case the Court may

• admonish the child or young person and discharge him, or

• it may release him on probation to his own family or another family, or

• it may send him to an institution, or

• commit him to the authority of the Minister of Public Instruction who may

% have him apprenticed, or

% placed in employment without being apprenticed, or

% placed in a private family.

A person under 18 charged with a serious crime is usually tried by the regular Court. Some cases of
this kind, however, may be referred to the Juvenile Court. A parent or guardian guilty of contributing
to the delinquency of a child or young person may be ordered to pay a fine.

The sessions of a Juvenile Court must be held in a building or room approved for that purpose; if a
Court room is so approved the hearing must take place at a time different from that at which ordinary
Court business is transacted. The sessions of the Juvenile Court are closed to persons not directly
connected with the case93.

4.4.2 SOUTH AUSTRALIA

The law of 1941 provides for the establishment of Juvenile Courts in South Australia. Any Court of
summary jurisdiction is considered as a Juvenile Court if it consists of either a Special Judge or two
Judges chosen from a panel of Judges who are considered by the authorities as qualified to hear chil-
dren's cases. The Juvenile Courts deal with persons under 18 who are accused of committing a crime,
or are destitute, neglected, uncontrollable or incorrigible, or fail to attend school although required by
law to do so.

93
New South Wale, Child Welfare Act 1939.

83
The first thing the Court may do upon the receipt of a case is to order a physical and mental examina-
tion of the young person and an investigation of his environment and other circumstances. In disposing
of a case the Court may commit the young person to an institution other than prison, or it may place
him in the custody of the Children's Public Welfare and Relief Board, which may release the young
person on probation, or send him to a reformatory or training school, or dismiss the case if the parent
promises to take measures for assuring good behaviour on the part of the young person.

The Juvenile Court is authorized to remove the young person from unsuitable surroundings and to
make proper provision for his education and training. The Court must have regard for the young per-
son's general welfare. No child under the age of 8 years is considered guilty of an offense. Sentence of
death is never pronounced against a person under 18. The Juvenile Court must sit in a building separate
from the one in which a regular Court is sitting. Attendance at the hearing of a case is limited to
members and officers of the Court, persons connected with the case, and other persons with the Court's
permission. Newspaper reports may not reveal the name of a young person under 18 who is involved
in a case before the Juvenile Court94.

E.g. Jason Downie, now 23, killed teenager Chantelle Rowe and her parents Andrew and Rose Rowe
at Kapunda, north of Adelaide, in a stabbing attack at their home, driven by a sexual infatuation with
the teenager. A report from forensic psychologist gave a disturbing insight into the killer. The offender
had developed elements of post-traumatic stress disorder caused by his heinous and gruesome crimes,
which have resulted in him appearing psychologically detached from his offending behaviour. When
the offender was inquired as to who was responsible for his offending behaviour and he replied as
follows “Easy question, it's me, I'm responsible. Obviously if I hadn't been stupid that day and just
calmed down and talked to her, none of this would have happened”. He eventually pleaded guilty to
the triple murders and was given a hefty 35-year non-parole period95.

94
South Australian Statutes, 1941.
95
“Jason Downie Confirms Kapunda Triple Murder Guilt”, available at <http://www.adelaidenow.com.au/news/south-
australia/jason-downie-confirms-kapunda-triple-murder-guilt/story-e6frea83-1226310033674>

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 CHAPTER FIVE:
IMPACT OF COVID-19 ON CHILDREN’S RIGHTS

5.1 INTRODUCTION

What India is witnessing today in the wake of COVID-19 will continue to disrupt life, aggravate vul-
nerabilities, and erode the dignity of those already living on the margins. COVID-19 and how it has
panned out has resulted in gross violations of fundamental rights, exacerbated existing vulnerabilities,
and unleashed a pandemic of hunger and poverty where there was none.

Indelible images of the toddler trying to wake his dead mother on a railway platform and the 12-year-
old girl who worked on a chilly farm in Telangana, and died an hour before reaching home after having
walked hundreds of kilometers to her home in Chhattisgarh, are heart wrenching examples of the im-
measurable losses of life, livelihoods, and breakdown of families that each day brings.

Childhoods stand threatened by the unprecedented social and economic disruption. Among those se-
verely impacted are children of migrant workers, children of daily wage earners, child labourers, chil-
dren in street situations, child care institutions (CCIs), or conflict zones, children in need of care and
protection, children in conflict with the law, pregnant girls, children with disabilities, transgender chil-
dren, children living with HIV/AIDS, children living in poverty, children in abusive, violent or exploi-
tative situations, children of sex workers and prisoners, refugee children, foreign children residing in
CCIs, children affected or likely to be affected by other natural disasters, such as Amphan, floods in
Assam, etc. The lockdown period will also forever be marked by the millions of people who in a bid
to survive, undertook mass distress migration back to their native villages.

5.1.1 TO PROTECT CHILDREN’S WELL-BEING DURING AND AFTER COVID-19, CENTRAL

GOVERNMENT AND STATE GOVERNMENTS NEED TO ENSURE:

1. An assessment of the situation of children as a result of the impact of COVID both in the short and
long term and make such data available in the public domain.
2. Funding for children is not cut, existing resources are effectively utilized and augmented where
there is a shortfall, and flexibility in utilization of Central Government funding.

85
3. Children and families receive their statutory entitlements (for adults) to livelihood for adults, food,
and supplementary nutrition, health, education, care and protection, and efforts are intensified to
cover those currently outside the net of social protection.
4. Children, especially girls, children with disabilities and transgender children, are not pushed out of
education, children of migrant families are enrolled and supported to continue their education wher-
ever they are.
5. Childcare through provision of crèche and daycare facilities so that children are protected and cared
for, as poor families rejoin the workforce for their livelihood.
6. Local authorities and bodies ensure children are not exploited, physically/ sexually/ emotionally
abused, trafficked for labour/ sexual exploitation/ other purposes, forcibly married, or discriminated
against, or separated from their families.
7. Core child protection services, service providers and authorities (Childine, JJBs, CWCs, DCPUs,
SJPUs and police, Child Care Institutions, lawyers, frontline workers in CSOs/NGOs, counsellors)
and Anganwadi workers are declared as ‘essential’ during any lockdown or declared emergency96.
8. Sponsorship Guidelines should be framed in a consultative manner and the fund enhanced to enable
gatekeeping, and provide support for children in the Juvenile Justice system.
9. Systems for reporting violence against children are strengthened and accessible to all children, in-
cluding children with disabilities, children living in CCIs, and children in police custody.
10. Safety and wellbeing of frontline workers/ caregivers responsible for children’s care and pro-
tection against COVID risks, provision of PPE, timely payments, additional hazard pay, insurance,
adequate and ongoing training, supervision and psychosocial support.

The judiciary should ensure:

11. Priority is given to cases involving children in conflict with the law and cases of crimes against
children.
12. While adopting video-conferencing or practice physical distancing, children’s rights are pro-
tected, their right to be heard is ensured, and due process is followed during trials by courts or
inquiries by JJBs or CWCs.

96
Unicef. (1989). Convention on the Rights of the Child.

86
National and State human rights institutions should:
13. Monitor children’s situation and State action to assess whether responses to COVID-19 are
compliant with children’s rights under the Constitution, domestic laws, and international human
rights law.

5.2 GENERAL RECOMMENDATIONS

1. Ensuring Rights of Children-

The restrictions imposed by the lockdown have deprived several groups of children and families of
their right to a dignified life. The pandemic is also having a discriminatory impact on children based
on their identity, location or situation and aggravating their vulnerabilities. Children’s voices have
been absent and efforts need to be made by the government to hear their views. The government should
consider children’s best interests and ensure measures are taken to mitigate adverse impact on children,
particularly those experiencing vulnerabilities. Further, all functionaries need to apply the fundamental
principles of child rights ensuring that no child is stigmatized or discriminated against based on their
COVID-status and/or their sex, caste, religon, tribe, disability, gender identity, sexual orientation, eth-
nicity, language, social origin, place of birth, HIV/AIDS status, or the identity or status of their parent
or their political or other opinion etc.

2. Ensure Adequate and Appropriate Resources

COVID-19 has has pushed the government to prioritise its expenditure. The budget for children (BfC)
in 2020-21 in the Union Budget is only 3.16%. This share has been declining over the years as has the
share for education, health and child protection. The COVID crisis demands much higher investment
if we are to stem the intergenerational impact that this country will witness.
The basic entitlements for children have so far been delivered through a number of centrally sponsored
schemes (CSS)97. The result is a fragmented system that fails to account for the linkages between
nutrition and gender, water and sanitation, child protection, education, etc. This situation is exacer-
bated by the peculiarities of CSS as instruments of social policy financing; its centralised nature with
fixed norms and unit costs usually set at the national level which does not allow for flexibility at the

97
Integrated Child Development Scheme (ICDS), National Health Mission (NHM), Integrated Child Protection Scheme
(ICPS), Sarva Shiksha Abhiyan (SSA), Janani Suraksha Yojana (JSY), Pradhan Mantri Jan Arogya Yojna (PM-JAY) etc., as well
as a host of state-specific schemes.

87
state and local levels. To ensure effective protection of children’s rights while responding to COVID-
19.

• There should be no cuts in existing budgets for children.

• States need to ensure effective utilization of existing resources and flexibility needs to be pro-
vided to them in utilization of Central Government funding.

• Investments in public health, education, and child protection need to be enhanced and augmented
where there is a shortfall. Efforts to enhance resources at the local level should be intensified.

• With migrants returning to their home States, livelihood generation, expansion of public health
facilities and increased social security for vulnerable groups is exigent. Therefore, the extent of
vertical distribution of tax proceeds needs to be revised upwards and more flexibility needs to be
given to State Governments in the CSS to address COVID-19 related challenges98 .

• Allocations must be made to enable urgent filling of vacancies/repurposing of additional human

resources in the health, education, and child protection systems.

• Budget provisions need to be made for protection of frontline workers, functionaries, CHILD-
LINE 1098, statutory bodies and authorities against COVID risks. PPEs, additional hazard pay,
insurance, ongoing training and supervision to ensure their well-being the provision of quality
services.

• Budgetary allocations are necessary to prepare schools for classroom teaching while ensuring
physical distancing, filling of all vacancies, and provision of adequate facilities for handwashing,
sanitation, and safe drinking water.

• Additional financial resources must be provided to Child Care Institutions (CCIs) for provision
of additional items such as sanitization supplies, protective gear, medication, additional nutrition
to boost immunity, additional clothing and bedding; capital costs to add infrastructure and equip-
ment to ensure health and safety of children.

• Additional financial resources must be provided for infrastructural modifications, PPE, and other
materials required for courts, Juvenile Justice Boards (JJBs), Child Welfare Committees (CWC),

98
Ghosh, J. (2020). A critique of the Indian government’s response to the COVID-19 pandemic. Journal of Industrial and
Business Economics, 47(3), 519-530

88
 District Child Protection Units (DCPUs), Special Juvenile Police Units, police stations, and
CHILDLINE 1098 to meet the physical distancing requirement and safety protocols.

• Budget needs to be allocated urgently for community level child protection mechanisms, their
training and development.

• Existing guarantees (eg., MGNREGA, PDS) need to be augmented and creatively used to en-
hance social security for children and families.

• The government must also improve fund utilisation under Swachh Bharat Mission – Urban
(SBM-U) and build capacities of local government functionaries and Gram Panchayats.

• State Labour Welfare Boards must Use the Building and other Construction Workers Cess Fund
for health, nutrition, protection, and care for children of all construction workers irrespective of
their registration in the State Labour Welfare Board

3. Ensuring Monitoring of Impact of and Response to COVID-19 on Children’s Rights

Multi-stakeholder monitoring of children’s situation and State responses is critical to ensure children’s
rights are not undermined or violated:
• The Hon’ble Supreme Court of India should enlarge the scope of In re: Contagion of COVID-
19 Virus in Children Protection Homes, Suo Motu Writ Petition (Civil) No.4 of 2020, to all
issues affecting fundamental rights of children during COVID-19 and monitor compliance with
its directions.

• A Parliamentary Ad-hoc Committee may be constituted to study the impact of COVID-19 on

children and consultations should be held to hear children from all sectors and genders di-
rectly.99

• Juvenile Justice Committees of the Supreme Court and the High Courts should urgently hold
a review-cum-consultation meeting with all stakeholders including civil society organisations
to assess the impact of COVID-19 on children’s rights and recommend immediate measures to

99
As was done in Adhoc Committee of the Rajya Sabha to Study the Alarming Issue of Pornography on Social Media and
Society as a Whole.

89
 be taken by concerned stakeholders, including the JJBs, CWCs, relevant Departments, and the
Legal Services Authority.
• The National and State Human Rights Institutions (HRI), especially NHRC, SHRCs, NCPCR
and SCPCRs should set up a compliance dashboard providing information on compliance with
various administrative and judicial directions issued for COVID-19. They should jointly ex-
amine the impact of COVID-19 on children’s rights, particularly their right to food, health,
education, protection and safety, right to be heard, and access to justice; issue recommendations
to the government, and approach the High Court or Supreme Court for necessary directions.

• All Ministries/State Departments involved in COVID-response, should provide disaggregated

data on their website indicating the impact on children including those in CCIs, based on their
caste, tribe, sex, gender identity, religion, disability, ethnicity, nationality, etc., and the benefits
they have derived under existing schemes or response measures. It becomes essential to ensure
an integrated and effective MIS for collection, analysis and dissemination of evidence on mat-
ters related to children and COVID-19.

• Civil society organisations and academic institutions should undertake independent evaluations
and assessments of the impact of COVID-19 on children and their rights.

4. Strengthen community-based action and oversight

There is a need to mobilize and mandate communities in a participatory manner- one that promotes
their leadership in identification of needs and arriving at solutions to support children and families.
This would include local authorities, functional village level groups/committees such as Village Child
Protection Committees, School Management Committees (SMC), SHGs, VHSC, Nehru Yuva Kendra
fellows, adolescent girls’ groups, village youth groups, parents groups, local leaders, community el-
ders, residential cooperatives, and Resident Welfare Associations. The government must provide in-
formation and tools in an audio-visual format to orient and sensitize them to enable the following.
• Monitor the protection and safety of children, including those with disabilities, within quaran-
tine facilities seeking segregated living facilities with sanitation for women and children are
provided.

90
• Work towards ensuring that all children, families, expectant mothers, in the community, in-
cluding those without ration cards, have access to food grains and cooking supplies, drinking
water and milk, or make these available through locally run community kitchens.

• Facilitate access of all children and families outside the current net of social protection, partic-
ularly migrant workers returning to their homes, to benefits such as ration card, PDS,
MGNREGA, ICDS, Anganwadi services (immunization and nutrition, Supplementary Nutri-
tion Program (SNP), Take Home Rations (THR) neonatal care, Mid-Day Meal, schemes for
girls under the ‘Beti Bachao – Beti Padhao’ umbrella, cash transfer schemes such as sponsor-
ship, pensions (for disability, widow, senior citizen) scholarships, Indira Aawas Yojana (IAY);
schemes under the Swachh Bharat umbrella, school enrolment, civil registrations, skill devel-
opment for youth.

• Map, anticipate and act to prevent and respond to children falling out of family and community
safety nets particularly for school drop-out, trafficking for labour or sexual exploitation, do-
mestic violence, family conflict, emotional violence and structural discrimination based on sex,
gender identity, disability, religion, caste, sexual orientation, and class. Report cases, make
referrals, monitor and follow-up cases of children in the community. Display information on
CHILDLINE 1098 and other key services and helplines to report cases.

• Facilitate the formation of children’s groups where they share their concerns and raise their
voices.

• Liaise with the local authority on issues which require intervention/ support, especially related
to health (functioning of health Sub-centers and PHC, access to reproductive health services),
education, anganwadi services (restarting with adequate safeguards to prevent spread of Covid-
19, ensuring space for all children), and child protection (access to block CPC/po-
lice/CWC/courts/JJB,/DCPU, compensation, and other child protection services).

• Proactively facilitate a supportive environment for children and families returning to the vil-
lage, provide peer support to parents and emotional support to children. Encourage sharing of
resources to help families settle and cope with the emotional and financial shocks

91
 • Create awareness to ensure that no one is stigmatized or discriminated against based on their
identity or COVID-status

5.3 DIRECTIONS FOR PREVENTION OF CHILDREN FROM COVID-19 ISSUED BY SUPREME COURT

The Supreme Court passed various directions in a suo moto case titled ‘In Re: Contagion of COVID-
19 virus in Children Protection Homes’ to prevent the spread of COVID-19 virus to Child Care Insti-
tutions. There are children who need care and attention and are kept in or children in conflict with law
who are kept in various types of homes and children who are kept in foster and kinship care. The Court
said that in these circumstances, it was felt that it is in the interest of children all of whom fall within
the ambit of Juvenile Justice (Care and Protection of Children) Act, 2015 should be protected and
prevented from contagious COVID-19.

The division bench comprising of Justice L. Nageswara Rao & Justice Deepak Gupta issued a number
of directions and measures to Child Welfare Committee, Juvenile Justice Boards, Child Care Institu-
tions and State Governments across India. The bench observed that the directions have been formu-
lated on the basis of current information and understanding of COVID19 precautions and response.
Following measures were enumerated by the bench:-

Measures to be taken by Child Welfare Committees:-

• CWCs are directed to proactively consider whether a child or children should

be kept in the CCI considering the best interest, health and safety concern.

• Special online sittings or video sessions may be called to consider measures to prevent spread of
COVID-19 in Children’s Homes and shelters.

• Online help desks and support systems for queries should be established at state level.

• CWCs to monitor regularly through video conferencing, telephonically to ensure prevention of

all forms of violence.

Measures to be taken by Juvenile Justice Boards and Children Courts:-

• The Juvenile Justice Boards/Children’s Courts to consider measures to prevent risk of harm aris-
ing out of COVID-19.

92
 • JJBs and Children’s Courts are directed to consider whether a child should be kept in CCIs con-
sidering the best interest, health and safety concerns.

• Children alleged to be in conflict with law, residing in observation homes to be released on bail.

• Ensure counselling services are provided for all children in observation homes.

Directions to the State Governments:-

• Circulate information with instruction to all CCIs about how to deal with COVID-19 immedi-
ately.

• Begin preparing for a disaster/emergency situation that may arise and develop a system for how
to organised trained volunteers who could step in to care for children.

• Ensure that all government functionaries perform their duties diligently and that strict action
would be taken should there be any dereliction of duty.

• Make provisions to ensure that counselling is made available, and that there are monitoring sys-
tems in place to prevent violence, abuse, and neglect, including gender based violence, which
may be exacerbated in contexts of stress produced by lockdown.

• Ensure adequate availability of good quality face masks, soap, disinfectants such as bleach, or
alcoholbased disinfectants, etc.

• Ensure availability of adequate food, drinking water, and other necessities such as clean clothes,
menstrual hygiene products, etc.

The bench further directed the State Government and nodal departments to keep the superintendents
abreast with all relevant advisories, and circulars along with guidance issued where required. The Ju-
venile Justice Committees (JJCs) of every High Court shall also ensure that these directions are com-
plied with in letter and spirit. At the same time, it will be ensured that the directions issued by the
State in respect of lockdown shall not be violated.

The Supreme Court while disposing the suo moto writ petition request the JJCs of all the High Courts
to not only ensure due compliance of the order but they shall also regularly monitor the implementation
of the directions issued as frequently as possible and at least once a week.

93
5.4 UNICEF ACCESS TO JUSTICE AT THE TIME OF COVID-19

When children encounter the justice system – as alleged offenders, victims, witnesses or as parties to
civil or administrative matters – they are entitled to specialized processes and procedures that are con-
sistent with the United Nations Convention on the Rights of the Child and other international standards,
guidelines and rules.1 Yet many justice systems are neither child-friendly nor gendersensitive, and
often fail to meet the needs or uphold the rights of all children. For example, it is widely acknowledged
that detention must only be used as a measure of last resort and for the shortest appropriate period of
time. However, in many countries, children suspected or accused of committing an offence are rou-
tinely held in police custody, detention centres, prisons or other custodial settings100.

Justice systems that are child-friendly and gender-sensitive operate in the best interest of the child,
taking into account specific circumstances and ensuring alignment with relevant international human
rights standards and instruments. In the case of children in conflict with the law, this includes the
provision of legal aid and representation to ensure that every child deprived of liberty is treated hu-
manely and with dignity. It also means taking into account a child’s age-specific needs, establishing
restorative justice and diversion programmes, promoting alternatives to detention, providing rehabili-
tation and post-release support, and training justice actors in child rights and protection, including
traditional or customary justice mechanisms.

Evidence from the COVID-19 pandemic – along with previous infectious disease outbreaks – suggests
that existing child protection violations are exacerbated, and new risks emerge, in times of crisis. In
addition to the adverse impacts of detention and incarceration on their well-being, children risk con-
tracting the virus when detained in confined and overcrowded spaces. They are also more vulnerable
to neglect and abuse, especially if staffing levels or care are undermined by the pandemic or contain-
ment measures. Children in detention facilities often have inadequate access to clean water and sani-
tation, nutrition and medical care, creating conditions where the spread of infectious diseases such as
COVID-19 are rife.

Disruptions to child protection services and the justice system due to lockdowns can also cause delays
in court proceedings and to legal aid and representation. It may also mean that children face long

Fore, H. H. (2020). A wake-up call: COVID-19 and its impact on children's health and wellbeing. The Lancet Global
100

Health, 8(7), e861-e862.

94
periods deprived of liberty and separated from their families. For child victims, abuse, violence and
exploitation could occur with impunity, as could a child’s re-traumatization in seeking justice. Under-
standing the current status of justice for children is therefore essential to calling attention to immediate
and long-term measures that need to be put in place to ensure the safety and well-being of all children
amidst the pandemic’s continuing fallout.

5.4.1 FULFILLING THE RIGHTS OF EVERY CHILD WHO COMES INTO CONTACT WITH THE LAW

Access to justice is more than a legal abstraction – it is a prerequisite for protecting and upholding the
human rights of all people, including children. It is also key to achieving the Sustainable Development
Goals (SDGs), in particular for building peaceful, just and inclusive societies as called for in SDG 16.

Upholding the rights of children who come into contact with the law is a vital component of a healthy,
well-functioning child protection system at all times, and something that cannot be overlooked in crisis
situations. The data presented in this brochure reveal a mixed picture on how COVID-19 has impacted
access to justice for children. On the one hand, many countries have taken steps, such as releasing
children from detention, in response to the current pandemic. The survey also suggests that many
countries have not seen any change or have managed to actually increase the availability, access to,
and/or delivery of justicerelated services. On the other hand, diversion and alternative measures to
detention have been less commonly employed by governments. Establishing such processes and pro-
grammes typically require a mid- to long-term investment. This means that countries that already had
such processes or programmes in place prior to the pandemic might have been more easily able to
leverage them quickly when the pandemic hit.

Increased access to justice can be promoted by working with national child protection systems to en-
sure that every child who comes into contact with the law can claim his or her rights. This can be
achieved by building systems that are more responsive and protective of girls and boys. It entails di-
verting children from arrest and providing alternatives to detention, utilizing restorative justice ap-
proaches, providing post-release support, prioritizing pretrial processes involving alleged child offend-
ers and child victims, and expanding the availability of legal aid for all children.

In responding to the COVID-19 pandemic, governments and authorities can take a number of concrete
steps to ensure that every child deprived of his or her liberty is fully respected and protected.4 An
immediate moratorium should be issued on admitting children to detention facilities, and governments

95
should refrain from arresting and detaining children for minor offences and violation of curfew orders.
Governments and other relevant authorities should also release all children who can safely return to
their families or provide an appropriate alternative for those who cannot. If sustained, such measures
can become steps towards making the justice system more child-friendly and gender-sensitive – and
thereby fulfilling the rights of every child who comes into contact with the law.

5.5 CONCLUSION

A worldwide pandemic has provided the opportunity to assess the loopholes in a child rights policy. One of the
most important learnings from the pandemic is that there is an urgent need to assess and redesign the child rights
policies and programmes in terms of the pandemic.

The COVID-19 pandemic has posed a child rights crisis in the country that needs immediate attention and
action. Millions of children in the country already living with hardships will fall into adversity and poverty if
the COVID-19’s impact on them remains unaddressed. There is a need to strengthen the family-based childcare
systems in the country to protect children from further deprivation due to the COVID-19 pandemic. There must
be considerable focus on strengthening adoption and foster care through minimising delays and gaps in the
processes.

COVID-19-specific or pandemic-specific guidelines or standard operating procedure (SOP) needs to be pre-

pared to facilitate early placement of children with PAPs and prospective foster families (PFFs) during the
pandemic situation. Necessary capacity building and training of social workers, counsellors and other stake-
holders are required to help them function effectively at the time of the crisis. There is a need to review the
existing child protection policies and prioritise the same in plans for mitigating the COVID-19 pandemic across
all the sectors, including health, education and livelihood, to reduce child vulnerability.

There is a foremost need for collaborative actions by the government, non-governmental organizations (NGOs),
child rights activists and other development agencies to identify and map the vulnerable children in the com-
munity and provide the necessary services. Collaborative actions help utilise resources at the optimal level. A
time-bound and PAPs/PFFs-friendly system for a smooth adoption or foster care process is highly required.

Research institutes have an important role to play in policy advocacy through encouraging more research on
adoption and foster care systems in India, especially at times of health crises, to strengthen child protection
systems in the country, especially family-based childcare.

96
 CHAPTER SIX:
CONCLUSION AND SUGGESTIONS

6.1 CONCLUSION

Today, one of the biggest challenge in regards to the juvenile, posing a big question mark on the face
of all the judicial authorities is as to what should be the criteria of classifying as to whether the a
juvenile should be tried in a juvenile court or not? Can age be the only criteria for this purpose? Should
judges categorize cases solely on the basis of the age, without going into the intention and purpose of
the legislators behind enacting such type of legislation?

The basic aim behind the enactment of the Juvenile Justice Act as well as forming up of the Juvenile
Justice Boards is to reform the offenders and not to punish them. The basic ideology for enacting an
Act with such a type of differential approach is to save children from devastating ill-effects of crimi-
nalization, penalization and stigmatization, in short, the “welfare” of the children and not to punish
them.

There is no concrete data or evidence neither of India nor of any other country, where stiff or harsher
punishment for any crime has resulted in lowering down of the crime rate. As per the National Crime
Records Bureau reports the share of juvenile crime to the total IPC crimes has almost remained con-
stant from 1.2% in 1989 to 1.2% in 2013. The data published also shows that in 1999, 2.7% of the total
IPC crimes were murder and 2.1% were rape; in 2000, 2.6% of the total IPC crimes were murder and
1.8% were rape; in 2001, 2.2% of the total IPC crimes were murder and 2.1% were rape.

India is a signatory to the UNCRC which obliges the States to establish a minimum age below which
children shall be presumed not to have the capacity to infringe the penal law. In accordance with this
India has established an age of 18 years under which a person could not be deemed to have the capacity
to commit an offence. Countries all over the world use this definition. Neuroscience proves in more
ways than one, that an adolescent is at an age where he/she is not mature enough to understand the
consequences of his/her actions. He/she is still vulnerable and can live a normal healthy adult life if
allowed to undergo reformation through corrective measures. It is said that the juveniles have not yet
achieved full development of their brains and are thus less culpable for the crimes they commit. It is
immoral to subject children to adult punishments as it is ineffective and leaves psychological scars on
a juvenile which leads the juvenile to re-offend. Proper guidance, corrective treatment, education,
healthcare etc gives a child a chance to reform. It is upon the community and State to provide these

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facilities to a child in order to increase the possibility of a better life. Instead, children are sent to
remand homes, observation homes etc where they are subject to various forms of abuse.

The international commitments entered into by India oblige it, to set up a particular framework to deal
with juvenile offenders. The provisions of the United Nations Standard Minimum Rules for the Ad-
ministration of Juvenile Justice, 1985 (Beijing Rules); the Convention of the Rights of the Child, 1990
(CRC) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990
(Havana Rules), are to be kept in mind while drafting a well-defined juvenile justice system.

Rule 17.1 of the Beijing Rules take into account penological objectives in addition to rehabilitation of
the offender. The guiding principles of adjudicating matters involving juveniles enshrined under it are
as follows:

a) The reaction shall always be proportional to not only the circumstances and the gravity of the
offence, but also to the circumstances and needs of the juvenile as well as to the needs of
society;

b) Restrictions on personal liberty of the juvenile shall be imposed only after careful consideration
and shall be limited to the possible minimum;

c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a
serious act involving violence against another person or of persistence in committing other
serious offences and unless there is no other appropriate response;

d) The well-being of the juvenile shall be the guiding factor while considering his case.

Thus it is clear from the above rule that the Beijing Rules do not prohibit detention of a juvenile if he
is proved to have committed a violent, serious offence, or to have repeatedly committed such serious
offences though Rule 17.2 of the Beijing Rules prohibit the imposition of capital punishment on the
juveniles. Thus, the Rules do not advocate leniency in dealing with such offenders but only contem-
plate that detention be limited to the most serious cases where no other alternative is found appropriate
after careful consideration.

Rule 11(a) of the Havana Rules, 1990 define a juvenile as every person under the age of 18, and it
allows national laws to determine a minimum age below which such person will not be detained. Rule
12 of the Havana Rules provides that a juvenile should be deprived of his/her liberty only as a measure
of the last resort limited to exceptional cases and for the minimum necessary period. Even then, deten-
tion should be in such a manner and in conditions that respect the human rights of juveniles.

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The two main components of any crime in law are “Actus Rea” and “Mens Rea” and when both the
components are proved in the court of law, the individual is convicted. As far as a juvenile is con-
cerned, the actus rea part of the offence is protected under the juvenile law and the mens rea part is
never taken into consideration, as there are no parameters to judge the same.

Sections 82 and 83 of the Indian Penal Code provides that a child below the age of 7 years cannot be
criminally held liable and the criminality of the children between the age of 7 to 12 years is to be
judged by the level of their mental maturity. The same principle should be applicable to all children
beyond 12 and upto the age of 18 years also. This is how the two statutes i.e. Indian Penal Code and
the Act can be harmoniously understood.

The Act is also violative of Article 14 of the Constitution as all offenders below the age of 18 years
irrespective of the degree/level of mental maturity and irrespective of the gravity of the crime commit-
ted are treated at par. This blanket treatment which is provided to all the offenders below the age of 18
committing any offence, regardless of the seriousness and depravity, is wholly impermissible under
our constitutional scheme. The non-obstante provisions contained in Section 1(4) of the Juvenile Jus-
tice Act as well as the bar imposed by Section 7 on the jurisdiction of the criminal court to try juvenile
offenders cannot apply to serious and heinous crime committed by juveniles who have reached the
requisite degree of mental maturity, if the Act is to maintain its constitutionality.

The various researches done on this issue completely agree with the view that an individual is matured
enough at the age of 16 as to differentiate between what is right and what is wrong, but having
knowledge of right and wrong is not enough a ground to punish a juvenile for his acts. Rather what is
required is the culpable mind to commit the crime. An individual of not 16, but even of 15 may be
very rightly able to distinguish between right and wrong, but he is not matured enough to be aware of
all the consequences of his acts and have a fear out of punishments.

The Act has no parameter about the physical or mental maturity of a juvenile. Rather it gives a license
to “all matured, cruel type of persons under the age of 18 years to live with full impunity and commit
any crime of any level and walk scot free as they have the benefits of the Juvenile Justice (Care &
Protection of Children) Act. This feature of the Act is being used adversely by the master minds of the
crime as they have started hiring the poor and needy minors in greed for small amounts of money to
execute their acts, because they know very well that JJA would be acting as a safeguard for them and

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ultimately at maximum they can be punished with a mere custody for a period of 3 years, no matter
how heinous the crime is.

After the 16th December, 2012 case of State (Government of NCT of Delhi) v. Ram Singh and an-
other101 (hereinafter the “Nirbhaya” case), in which the most brutal offender out of six was below 18
but was given only three years of custody and that also in a special home. It has been urged that the
Juvenile Justice Act should be amended and the age of juvenility should be fixed at 16 years as by this
age in today’s media influenced the children get mature enough to understand the implications of their
acts.

On 22nd December 2012, a judicial committee headed by Justice J.S.Verma, former Chief Justice of
India, was appointed by the Central government to submit a report, within 30 days, to suggest amend-
ments to criminal law to sternly deal with sexual assault cases.

The committee in its report submitted that assuming that if in the cases of heinous offences, a juvenile
offender is sent to life imprisonment (at an age below 18 years), the offender would be released some-
times in the mid-30s. There is little assurance that the convict would emerge a reformed person, who
will not commit the same crime that he was imprisoned for or any other crime. The attempt made by
Ms. Kiran Bedi to reform Tihar Jail inmates was, and continues to be, a successful experiment. But
our jails still do not have reformatory and rehabilitation policies. The jail authorities do not engage
with the inmates as human beings. They do not bring about transformation. And as a consequence, our
system gives birth to more criminals including juveniles in our prisons or even in juvenile homes and
protective homes where the juveniles are told that the State will protect and provide for them, but
which promise is a fruitless one.

A three judges bench of incumbent Chief Justice Altamas Kabir, and Justices S.S. Nijjar and J. Che-
lameswar, in the case of Salil Bali v. Union of India & Anr102 on 17th of July, 2013 dismissed a batch
of petitions seeking a direction to the Centre to take steps to make changes in the Juvenile Justice (Care
and Protection of Children) Act 2000 to ensure that juveniles be tried under normal law in offences
like rape and murder. The honourable Supreme Court also did not accept the plea that the investigating
agencies should be permitted to keep records of the juvenile offenders, and take preventive measures
to ensure that repeat offenders were brought to justice.

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(2013) SC 114.
102
(2013) 7 SCC 705.

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Two Writ Petitions were filed, one by Dr. Subramanian Swamy and the other by the parents of the
victim of the 16th December 2012 gang rape case. A three judges bench comprising of Justices Pal-
anisamy Sathasivam, Ranjan Gogoi and Shiva Kirti Singh delivered the judgment in the case of Dr.
Subramanian Swamy and Ors. v. Raju, Through Member, Juvenile Justice Board and Anr103 on 28th
March 2014. Dr. Subramanian Swamy had clarified to the Court that what he contended was that
having regard to the object behind the enactment, the Act had to be read down to understand that the
true test of “juvenility” was not in the age but in the level of mental maturity of the offender. This
would save the Act from unconstitutionality and also further its purpose. The Act was not intended to
apply to serious or heinous crimes committed by a juvenile.

The bench refused to enter into the said arena of reducing the age of juvenility. Elaborate statistics
were laid before the Hon’ble Court to show the extent of serious crimes committed by juveniles and
the increase in the rate of such crimes, of late. But the Hon’ble Court observed that it was for the
legislature to consider this issue. Courts must take care not to express opinions on the sufficiency or
adequacy of such figures and should confine their scrutiny to the legality and not the necessity of the
law to be made or continued.

The repercussions that such an amendment can lead to, is that the girls under the age of 18 years, who
are forced to work in brothels, at present, are rescued and rehabilitated under the Juvenile Justice Act,
but once the age is reduced to 16, police will arrest them and charge them with prostitution for no fault
of theirs. The reduction of age would certainly help the police as homeless juveniles are easy targets
for them and can be easily implicated in false cases. Further repercussions of the amendment would
be that in India the definition of a child doesn’t have any uniformity. Article 1 of the CRC to which
India is a signatory clearly states a child means every human being below the age of 18 years. In India,
majority is attained at 18. But, a child labourer is a person below the age of 14. The Constitution of
India, in the Fundamental Rights and the Directive Principles of State Policy, prohibits child labour
below the age of 14 years; a person can have consensual sex at 16 but can marry only at 18 and con-
sume alcohol only when he/she turns 25. Amending the age of a juvenile at such a stage, when we
have such ambiguous laws may lead to disturbance in the other laws.

Undoubtedly, juveniles in conflict with law and children in need of care and protection are defenceless
and they need special protection. The state guarantees special treatment to them through statutory law.
However, in practice, they often get victimized by legal and procedural entanglements. The operation
of children's' institutions is completely dissatisfactory and it is only the magistrate (as presiding officer

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(2013) (5) CTC 106.

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of the Juvenile Justice Board) who seems to be taking an interest in the situation but there is sheer lack
of counsellors and therapy for the juveniles. These juveniles are more prone to human rights violations
at the hands of state agencies, their own family and community in the form of arbitrary detention, cruel
punishments, torture and abuse.

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) BILL, 2014

The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on
12th August 2014 by the Ministry of Women and Child Development headed by Ms. Maneka Gandhi.
There were three schools of thought prevailing on the issue of lowering the age of the juveniles to 16
years of age from the current 18 years. One school proposed that the age should not be used, another
school said that the age must be reduced but the government should not be vested with the power to
condemn the child immediately, and the third view, which was also of the majority said that the child
be sent to jail immediately through the court system, bypassing the Juvenile Justice Board.

The Ministry suggested a middle path by not giving the government the opportunity to interfere. Every
case of heinous crime committed by a juvenile will go through scrutiny on whether it should be tried
in a juvenile court or an adult one. The Juvenile Justice Board is a competent authority to judge this as
it has psychologists and experts as its members.

The Ministry has proposed that children in the age group of 16 to 18 years, who commit heinous
offences such as rape and murder, should be tried through a different process and procedure. The
Juvenile Justice Board will conduct a preliminary inquiry in such cases, which will look at the mental
and physical capacity of the child to commit the offence, his ability to understand the consequences of
the offence and the circumstances under which the offence was committed. After conducting the pre-
liminary inquiry, the Board may transfer the case to a Children’s Court, which is a court of session for
speedy trial of such cases.

During and after the trial such children will be placed in a “place of safety” till they attain the age of
21 years. The Children's Court will ensure that there is periodic follow-up of the child every year by
the probation officer or the District Child Protection Unit or a social worker to evaluate his progress.
Once the child reaches the age of 21 and is yet to complete his term, the Children's Court after con-
ducting an assessment based on progress reports, can either release the child under probation or send
the child to an adult jail for completing his remaining term. As the juvenile justice system is based on
the principle of restorative justice, such children during their stay in a 'place of safety' will be provided

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with reformative measures such as education, health, nutrition, de-addiction, treatment of diseases,
vocational training, skill development, life skill education and counselling.

The Bill includes some general provisions like (i) principle of presumption of innocence for any child
below the age of 18 years; (ii) principle of best interest for all decisions taken regarding the child; (iii)
principle of institutionalisation stating that a child shall be placed in institutional care as a step of last
resort, etc.

The Juvenile Justice (Care and Protection of Children) Bill, 2014 has been challenged by a coalition
of 58 NGOs, activists who have demanded that the ministry should reconsider its decision to allow
treatment of some juvenile offenders as adults while looking for solutions in the existing Juvenile
Justice System. Angan Trust, Centre for Child and the Law, National Law School of India University,
Bangalore (NLSIU), Child Rights and You (CRY), HAQ: Centre for Child Rights104, Leher and Save
the Children are part of the coalition that called upon the government to deliberate before deciding to
repeal and re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000.

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015

The JJ Act, 2015 incorporates a different part on offenses against youngster and a few of the offenses
recorded in this section were so far not enough secured under some other law.

These incorporate deal and acquisition of kids for any reason including illicit reception, beating in
organizations, giving kids inebriating alcohol or opiate medicate or psychotropic substance or to-
bacco items, utilization of kid by activist or grown-up gatherings, offenses against crippled kids and,
seizing and kidnapping of youngsters.

Further, the JJ Act , 2015 endorses discipline for the different offenses against kids, for example, up-
graded discipline for mercilessness to youngsters from a half year to three years. The offering or pur-
chasing of youngsters will be a culpable offense with detainment of five years. Beating inside a
Child Care Institution will be a culpable offense. Appropriation without recommended methodology
should be culpable with detainment upto three years or fine of Rs.1 lakh or with both. For the com-
pelling usage of these arrangements, JJ Model Rules, 2016 accommodates kid cordial methodology
for detailing, recording and trial.

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‘HAQ’ in Urdu means Rights.

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The legal procedure identifying with adolescent equity framework is set apart by the strain between
the defensive approach of the Juvenile Justice (Care and Protection of Children) Act, and the con-
ventional way to deal with managing crime. While the higher courts as a rule have advanced the care
and insurance logic of the adolescent equity framework the conditions offering ascend to them and
the choice there under demonstrate the ignorance at all levels of the legal procedure. The require-
ment for making mindfulness among the lower legal about the procedural contrasts between the trials
of grown-up and blamed child, can't be overemphasized.

The Supreme Court on 6 April 2015 asked the legislature to achieve essential changes in the adoles-
cent law with a specific end goal to have a hindrance impact and to make an impression on the gen-
eral public that life of the casualty was similarly essential under the govern of law. Expressing it was
"to a great degree troublesome" to acknowledge that an adolescent reprobate would not know about
the results while perpetrating violations like assault, murder and dacoity. The court said that the spurt
in association of minors in such appalling wrongdoings called upon a basic need to reflect on
changes in the Juvenile Justice (Care and Protection of Children) Act, 2000.

According to a 2015–16 economic analysis, it is found that there is a sharp decrease in government
school enrolments in provincial regions from 2007 to 2014. It stressed the need to build these num-
bers significantly to accomplish the Universalization of Education. However, considering such pro-
posals, funds assigned to the Sarva Shiksha Abhiyan was raised by a minimum percent. There exists
just a single welfare scheme identified with child labour scheme for the welfare of working children
in needing care and security and that too saw a certain decline in funding.

It is appropriate to take note of those children needing care and security just as children in conflict
with the law scarcely discover whether there any place in the budget allocation. An expansion in
wrongdoings against juveniles and juveniles makes them much progressively powerless, henceforth
the absence of consideration regarding child security is perturbing. Deficient financing for essential
plans will undoubtedly negatively affect the reformative and rehabilitative methodology received by
the acts of 2000 and 2015.

Juvenile Justice (Care and Protection) Act 2015 was passed in light of the failure of Child protection.
Yet at the same time there exists a similar circumstance due to the absence of duty and commitment,
coordination between different partners in Child Protection and due to the absence of experienced
and logical social work experts in the usage of ICPS at state to grass-root level. Child protection
should go under a single organization following with a positive, adequate and proficient hierarchical
structure which should root till the village level.

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6.2 ISSUES

1. The current system serves neither the purpose of rehabilitation nor deterrence against future
crime. There are 815 remand homes in India with a capacity of 35,000.

However, there are 1.7 million juvenile accused in India105. Remand homes in India are not
conducive to the reform and rehabilitation of juveniles as envisioned by the principles en-
shrined in international law. The infrastructure is there but it is not followed as per the Act even
today. Rehabilitation is certainly an important aspect but at the same time we need to protect
the woman and girls of our county. This system does not guarantee that the juvenile after being
let off will not commit the same crime. The interest of the society is of utmost importance and
if by losing one life in the process we are able to save many more innocent lives then undoubt-
edly we are thinking about the safety and betterment of the society. The juvenile offenders of
different age are kept separately. The segregation on this basis is not proving to be of much
use. This segregation can be based on the nature of the offence committed by the offender. But
as of today there is no appropriate infrastructure to carry this out.

2. The Act has been adversely affected because the lawyers who are practicing in the adult courts
and those who are practicing in the Juvenile Justice Board have not changed their mindset.
They have not acquired the sensitivity that is required here to deal with the juveniles. The
purpose of a separate Act is being defeated because of this.

3. The root problem of most of the juvenile offenders is that their parents are not able to provide
them adequate care. They are mostly from a financially weaker background.

There is a scope for possible changes in the current juvenile justice system. Violent crimes such as
rape and murder can be included in the adult criminal system for the juveniles after a certain age. The
negative part of the Act is that it always looks at the condition of the accused (juvenile). The questions

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‘From the editor in chief’ available at http://indiatoday.intoday.in/story/india-today-editor-in-chief-aroon-purie-on-the-
need-to-re-examine-juvenile-justice-system-in-india/1/241860.html

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that are kept in mind when the juvenile commits a crime are: “Are they about 18? If they are, yes they
are convicted. No? Okay, we need to send them to a Reformatory home!”

What our system fails to realize in the process is that the condition of the victim is never ever taken
into notice. The system has become more and more sympathetic to the delinquent in spirit, and anti-
punitive in purpose. The question that is to be thought over is that when a juvenile commits a very
brutal crime and poses a threat to society, should he be protected on account of his age and freed from
proper trial and appropriate punishment? The policy of “Catch them young” should be adopted in
our justice system.

6.3 SUGGESTIONS

Here are some suggestions that the researcher feels can help in improving the juvenile justice system
of the country.

1. First of all, we should try to mould our society in such a way such that no juvenile commits
crime. Circumstances are one thing that we all know is the root cause of many juveniles becom-
ing offenders. If this thing can be sorted out, the researcher feels that the problem of juvenile
justice will to a great extent will be solved of its own.

2. The Act should be implemented to its fullest extent as it is comprehensive enough and if imple-
mented honestly it can curb incidents like the “Nirbhaya” gang rape case by providing timely
help to juveniles who might turn into criminals. The problem is not with the act but with its
implementation. Instead of making amendment in the act, the need of the hour is to make sure
that existing provisions in the act are implemented.

3. Since, there is every possibility that the above 2 suggestions may not be enforceable as has been
in the last 28 years since the enactment of the Act, what at present we can do to improve our
juvenile justice system is to adopt the approach or concept of some foreign countries such as
“Get tough” and “Youth Court” of U.S.A and U.K. respectively.

4. The system of “Judicial Waiver Offences” as is prevalent in the USA can be incorporated in
our justice system also. A judicial waiver occurs when a juvenile court judge transfers a case
from juvenile to adult court in order to deny the juvenile the protections that juvenile jurisdic-
tions provide. This decision may be taken by Juvenile Justice Board after conducting a prelim-
inary inquiry in the case of the juveniles appearing before them in the Board. If the members of

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 the Board are of the opinion that the case of the juvenile offender should be tried by an adult
court then the juvenile should be transferred to an adult court.

5. A classification of the offences can be done on the basis of the gravity of the offence committed
by the juvenile. The “Statutory Exclusion” principle followed in the USA under which some
offenses, such as first-degree murder, rape, etc are to be excluded from juvenile court’s juris-
diction can also be followed.

6. The segregation of the juvenile offenders in the special homes should not be based only on the
age rather it should be based on the nature of each juvenile offender. So it is suggested that a
psychological analysis of the juvenile needs to be carried out when he/she is brought to the
home.

7. Most of the children who commit crimes are not afraid of the deterrent effect of the punishment.
Weak policing plays a major role in the increase in the crime rates. The prospective offenders
are not afraid of being caught. Our policing needs to be improved and it has to be more stringent.

8. A monitoring committee needs to be established which looks after the child after he moves out
of the observation home so that the juvenile is reintegrated into the society that is to say that the
provisions under Section 44 of the Act read with Rule 38 of the Model Rules 2007 need to be
put into practice.

9. Most of the juvenile offenders are the ones who do not get an opportunity to get education or
to develop. They are completely neglected, exploited and abused children. They belong to fi-
nancially weak families and thus their family circumstances are not amenable, not favourable.
They are forced to leave their families as they cannot support him, cannot provide him the care
which a child needs because they were also struggling for their own survival. Thus it is upon
the State to look after such juveniles and their families so that a conducive environment is pro-
vided to them to live in.

10. There is no welfare system going on as of today and they are only carrying out cler-
ical work. The Principal Magistrate interacts with the juvenile offenders only for a few minutes
and this time is not enough for the counselling of the child. The Probation Officer also visits
only once and makes his report and there are no further visits made by such an officer. A proper
welfare system needs to be built which can work towards achieving the purpose the Act.

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 BIBLIOGRAPHY

1. BOOKS

• Ved Kumari, The Juvenile Justice System in India: From Welfare to Rights, 2nd Edn., Oxford

University Press, 2010

• N.L. Mitra, Juvenile Delinquency and Indian Justice System, Deep and Deep Publications,

1988

• Asutosh Mookerjee, Juvenile Justice: An in-depth study of matters relating to children, S.C. Sarkar
& Sons, Calcutta, 1989

2. ARTICLES

• Organization of African Unity and UNICEF, Africa’s children, Africa’s future, a background

sectoral paper prepared for the OAU International Conference on assistance to African

children, Dakar, 1992

• National Institute of Justice Research Preview Series, Trends in juvenile violence in

European countries, based on a presentation by Christian Pfeiffer, 1998

• American Psychological Association (APA) Commission on Violence and Youth, Youth and

Violence, Summary report of the APA Commission on Violence and Youth, 1993

• Rights Of Children in the times of COVID-19

• Impact Of COVID-19 on Children’s Access To Justice by Unicef

3. WEBSITES

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• http://www.prsindia.org/uploads/media/Juvenile%20Justice/Juvenile%20justice%20Bill,

%20%202014.pdf

• http://wcd.nic.in/icpsmon/pdf/draft_%207_%20JJ_Bill_June_2014_18062014.pdf

• http://www.apa.org/pi/prevent-violence/resources/violence-youth.pdf

• http://www.aic.gov.au/media_library/publications/proceedings/25/keogh.pdf

• http://jaideepprabhu.org/tag/iccpr/

• http://www.waseda.jp/flaw/icl/assets/uploads/2014/05/A02859211-00-000290001.pdf

• http://www.justice.gov.uk/about/yjb

• http://www.livelaw.in/supreme-court-urges-re-examination-juvenile-law/

• http://lawcommissionofindia.nic.in/

• https:// www.justice.gov.uk/offenders/types-of-offender/juveniles

• https://www.livelaw.in/top-stories/supreme-court-live-in-couple-ph-high-court-socially-morally-
unacceptable-remark-order-protection-175308?infinitescroll=1

4. MISCELLANEOUS

4.1 ACTS

• The Indian Penal Code, 1860

• The Code of Criminal Procedure, 1973

• Juvenile Justice Act, 1986

• The Juvenile Justice (Care and Protection of Children) Act, 2000

• The Juvenile Justice (Care and Protection of Children) Rules, 2007

• The Juvenile Justice (Care and Protection of Children) Act, 2015

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4.2 REPORTS

• National Crime Records Bureau, Ministry of Home Affairs, Government of India, Crime

in India, 2014

• United Nation Organization, World Youth Report, 2003

• PRS Legislative Research, Report of the Committee on the Amendments of Criminal Law, 2013

110