A Critical Analysis Of Trial Of Children In Conflict With Law

Submitted in partial fulfillment of internal component for the award of degree B. com.,
L.L.B. (Hons.) for the subject

Law of Crimes - II

BY

Madumita Mira Balaji – Reg. No. BC0200021

Of

3rd year B. Com., L.L.B. (Hons.)

Under the guidance and supervision of

Ms. Mrinmooyee Mukherjee

Assistant Professor of Law

TAMIL NADU NATIONAL LAW UNIVERSITY

TIRUCHIRAPALLI

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ACKNOWLEDGMENT

I would like to express by special thanks of gratitude to my teacher Ms. Mrinmooyee

Mukherjee as well as our Vice Chancellor Ms. V. S. Elizabeth who gave me the golden
opportunity to do this wonderful project on the topic “A Critical Analysis Of Trial Of
Children In Conflict With Law” which also helped me in doing a lot of research and I came
to know about so many new things, I am really thankful to them.

Secondly, I would like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

DECLARATION:

Declaration I, Madumita Mira Balaji, Registration number BC0200021, hereby declare that
this Research Paper/ Research Project entitled “A Critical Analysis Of Trial Of Children In
Conflict With Law” under the guidance and supervision of Ms. Mrinmooyee Mukherjee,
Assistant Professor of Law, Tamil Nadu National Law University, Tiruchirapalli – 620 027.
This work has not been submitted either in whole or in part of any Degree/Diploma at any
university.

Place: Tamil Nadu National Law University, Tiruchirappalli

Date: March 15, 2023

Madumita Mira Balaji

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Introduction

Children are often called the ‘future of the country’ and if they are misled in any point in
time, then the whole future is said to have gone astray. This can be due to many reasons such
as undue influence, poverty, lack of education and so on. When children are in conflict with
law, they are not tried the similar way adults are as they are as adults due to the fact that they
have their entire lives ahead of them. The juvenile justice systems all around the world focus
on rehabilitation of the child offenders and aim at smooth induction back into the families
and normal society. In the Indian Subcontinent, the concept of Juvenile Justice was brought
in after the Declaration of the Rights of Child, 1959.

In India as well, one of the key pointers was to try the offenders but should not be punished.
They are to be corrected only and put in juvenile detention home. However, there are many
cases where the children have come out of the detention homes and have grown up to be
habitual offenders. This can be equated to the lack of facilities in the detention homes and the
project also aims to study the same. However, there are cases where children who have
committed heinous crimes have not reformed even after being in the juvenile detention
homes. This raises a question if trying all children as juveniles is the right approach or
whether some children who show criminal tendencies from a young age should be tried as
adults. This however poses a tricky ground and can be quite difficult to assess the same.
Owing to this, the paper will mainly aim to understand if children should be tried as adults for
the heinous crimes or for the ‘rarest of rare’ crimes.

Statement of Problem

According to Section 2(12) of the Juvenile Justice (Care and Protection of Children), Act
2015 a ‘child’ is someone who has not yet attained eighteen years of age. Moreover, the same
Act in Section 14(5)(f) provides that for heinous offences after assessing the comprehending
the ability of the child even those above the age of sixteen can be tried as an adult. This was
brought in after the amendment in 2015. However, after the analysis of case laws, this is very
rarely done. Most of the grave and heinous offenders are sent to detention homes to be
‘educated’ where the scenario is much more horrific. Thus, the problem here is to understand
if any child in conflict with law, irrespective of age can be tried as adults in grievous crimes.

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Research Questions

1. Has reducing the age of juvenile offenders had an improvement on the number of
juvenile convicts?
2. Do the Juvenile detention homes in India have the facilities in order to rehabilitate and
educate the children in conflict with law?
3. Does the socio-economic background of the children in conflict with law matter and
what impact has the Act has had on them?

Research Objectives

 To study the effectiveness of the Juvenile Justice (Care and Protection of Children),
Act 2015.
 To analyze if there are any changes to be made to the existing legislation.
 To look into the effectiveness of the current juvenile detention homes and
rehabilitation centers in India.

Research Methodology

The research methodology for this paper is doctrinal. The paper makes use of primary
sources like bare acts as well as secondary sources like research papers, newspaper articles
and so on.

Literature Review

1. “Critical Analysis of Juvenile Justice System in India with Special Emphasis on

Juvenile Delinquency & Rehabilitation Methodologies” by Shubham Kumar
Singh focuses on the existing legislation on juvenile justice system. It also goes into
the different theories for juvenile delinquency. Further, for the purpose of this project,
the sections on rehabilitation methodologies and evolution of the same are used. It
also provides the current system followed in India and gives recommendations.
2. Sunil Kumar wrote the paper “Study of Juvenile Justice Act and System in
India” gives information on the reasons due to which children come into conflict with
the law. It does a short comparative analysis on the juvenile justice systems in

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 different countries. Finally, it provides case laws to show the effectiveness of the
existing laws that helps the researcher understand the areas that need change.
3. “Should Juveniles Be Tried As Adults For Serious Crimes?” is an article that
critically analyses whether children should be tried as adults in India. It analyses the
post Nirbhaya age and if the judgment has had any impact on heinous crimes
committed by children. It also gives information on why children should not be tried
as adults for such crimes so the researcher can look at both points of views.

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Contents
1. Juvenile Justice Legislations............................................................................................6

1.1. History............................................................................................................................6

1.2. Existing Legislations.....................................................................................................6

1.3. 2015 Amendment...........................................................................................................7

2. Criticisms:..........................................................................................................................8

2.1. Socio-economic impacts................................................................................................9

3. Cases of Grave Crimes...................................................................................................10

3.1. Aftermath of 2012.......................................................................................................10

3.2. Issues with rehabilitation homes................................................................................11

4. Suggestions......................................................................................................................13

5. Conclusion.......................................................................................................................14

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 1. Juvenile Justice Legislations

1.1. History
The Juvenile Justice system in India has been around for a long period of time, dating from
the pre-independence era. Lord Cornwallis started a rehabilitation home for the children in
conflict with law nicknamed “Ragged School” and later the Apprentices Act, 1850 was
enacted. According to the Act, vocational training was to be provided for such youths who
were on the wrong side of the law. The Reformatory School Act also came about in 1897
which directed the delinquents under the age of eighteen to be put in reformatory schools.
Even before independence it is easy to notice that the law with respect to juvenile offenders
always focused on rehabilitation rather than on punishments and imprisonments. This
colonial law carried on post-independence as well.

The Children’s Act of 1960 made it completely illegal to imprison children under the age of
eighteen and made it mandatory for children to be provided with the care, nutrition and
education that would help them reintegrate into society smoothly. It further established a
place to stay while court proceedings are being held, a children's home for abandoned
children, and a specialised school for the juvenile offenders. All the acts with respect to
juvenile justice have been enacted in accordance with the rights to equality, against
exploitation, life and personal liberty as given in the constitution of India.

1.2. Existing Legislations

In the year 2000, with the assent of the president of India, the Juvenile Justice Act of 2000
was enacted. The phrase “children in conflict with law” was first introduced in this
legislation. The act prohibited the death penalties and life sentences even in the rarest of rare
cases. The Indian Penal Code, 1860 also speaks on the rights of juvenile offenders. Section
82 states that "nothing committed by a kid under the age of seven constitutes an offence." 1
Section 83 further states that, “Nothing committed by a kid over the age of seven but under
the age of twelve constitutes an offence if the child lacks the necessary maturity of
understanding to judge the nature and effect of this act on that specific occasion.” 2 This
shows that the Indian Penal Code gives the most benefit of the doubt to children and state that
children do not have the necessary cognitive development to understand the graveness of the
crime that they commit.

1
Section 82, Indian Penal Code, 1860
2
Section 83, Indian Penal Code, 1860

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Section 27 of the Code of Criminal Procedure, 1973 empowers special courts to look into
offences that committed by children that are not death imprisonment and life sentences 3.
Further, Section 437 of the Code provides that a child in conflict with law can seek
anticipatory bail.

1.3. 2015 Amendment

According to the Crime India Report of 2014, 66% of the crimes committed by juveniles
were done by the age group between 16-18. Owing to such statistics as well as the Delhi
Gang Rape Case4 of 2012, the legislature amended the existing Juvenile Justice Act, 2000
and enacted the Juvenile Justice Act, 2015. Section 2(35) of the Juvenile Justice Act, 2015
defines a juvenile as a child who is under the age of eighteen. Section 2(13) of the Act also
defines a juvenile offender to be someone who has allegedly committed a crime and is under
the age of eighteen. Even though one of the main reasons for the amendments was the fixing
of age of juvenile at eighteen, the amended act still capped the age of juvenile as eighteen.
However, if the child is between the ages sixteen and eighteen the Act gave powers to the
Juvenile Justice Board to examine whether the child was of mental maturity to understand the
heinousness of the crime they committed. If it is positive, then the child can be tried as an
adult in the children’s court and can be awarded a punishment of up to seven years 5. The
amendment further set up more institutions than that of the original act. It established
children’s courts in every district and also set up the Child Welfare Committees 6.

3
Section 27, Code of Criminal Procedure, 1973
4
Mukesh and Ors. v. State of Delhi, 2017 SCC Online SC 533
5
Section 15, Juvenile Justice Act, 2015
6
Section 27, Juvenile Justice Act, 2015

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 2. Criticisms:
One of the main criticisms against the amendment was that it was violative of many parts of
the Indian Constitution. One of the biggest contentions was that Section 15 violated Articles
14 and 21 with respect to the provision which allows the Board to decide whether a juvenile
aged between sixteen and eighteen can be tried as an adult. As repeatedly stated, the process
of understanding whether a child has the mental capability to commit a particular crime is
entirely subjective and it thus violates the principles of equity and fairness. This Section also
gives scope for a lot of arbitrariness due to the fact that an individual cannot adequately
examine the mental capability of another. The reduction of age was also a popular discourse
in the Indian judiciary. In the case law of Subramanian Swamy v Raju, through the Juvenile
Justice Board7 the court held strongly against the reducing of age of juvenile from eighteen. It
held that due to all the international obligations that India had and due to the principles of
justice and equity, all persons who were under the age of eighteen were to be considered
juveniles. Further, in the case of Salil Bali v Union of India 8, it was held that the age eighteen
was fixed so that the juveniles are rehabilitated and integrated back into society by the time
they become adults. Thus, through the above judgments it is clear that there is no requirement
for a separate age group to be treated differently. This also goes against the presumption of
innocence as per Section 3 of the Juvenile Justice Act, 2015. If the age of juveniles were to
be decreased to sixteen post which the criminals are treated as adults, then it would serve the
purpose that the amendment set out to achieve.

Further, Article 15(3) of the constitution mandates the making of law in favour of the
children and not against the children as the state takes a paternalistic role. Since the amended
act even though focuses on the rehabilitation and restoration of children, it still holds them in
similar standards as adults. This goes against the requirements and duties of a welfare state.
Section 53 mandates the establishment of rehabilitation as well as the reintegration centres
and talks about the management of the same. However, it is a well-known issue that there is
lack of adequate facilities in those institutions which are run by government as well as non-
government institutions. Due to the lack of such facilities, most of these children go through
abuse and come out of the institutions as hardened criminals.

In case such children are tried as adults, their right to equality of access, opportunity and
treatment is taken away as even though they are technically children, their trial goes on in a

7
Subramanian Swamy v. Raju, (2014) 8 SCC 390
8
Salil Bali v Union of India, (2013) 7 SCC 705

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different manner. Further, with respect to the definition of heinous offences, there can be a lot
of vagueness seen as there is no minimum number of years of punishment prescribed by the
amended act. There is a maximum period of ten years, but as per the Indian Penal Code of
1860, no minimum period is prescribed. There are also some offences that are very
ambiguous in nature and have no place in any of the classifications of the offences as stated
in the amended act.

2.1. Socio-economic impacts

Studies have revealed that almost half of the reported cases of juvenile delinquency have
been undertaken by kids from broken families due to the lack of family care and support.
From a psychological point of view, for the development of a child, the love of two parents is
required for wholistic development. Poverty is also a very huge factor in juvenile delinquency
as those mean that they do not have access to adequate healthcare, education. Records of the
National Crime Records Bureau show that most of the crimes committed by children have
been done by those from economically backward families with annual income of less than
Rs. 25,000. They were involved in petty crimes such as robbery. This shows that socio
economic factors have a very big impact on the juvenile crime rate. The Amended Juvenile
Justice Act set up State and Central Adoption Resource Agencies to make sure that children
that are being adopted are not exposed to such conditions as preventive measures.

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 3. Cases of Grave Crimes

3.1. Aftermath of 2012

In the year of 2012, the “Nirbhaya Rape Case” 9 was the most talked about case in the nation.
This particular case was a wake-up call with respect to safety of women in the nation. In
December 2012, Jyoti Singh, a paramedical student in Delhi was brutally gang raped due to
which she met with an untimely demise. One of the biggest causes of concern after the safety
of women was that of the one juvenile offender who was sent to the detention home and later
let off without much consequence. The offender was only a few months from turning
eighteen but was still treated as a juvenile. The juvenile offender was also said to be the
person who also did most damage to the victim but he was let off with the least punishment
while the others were awarded a death penalty.

Thus, with the amendment to the Juvenile Justice Act, 2015 juveniles over the age of sixteen
can be tried as adult for heinous crimes. This meant that, if the juvenile was older than the
age of sixteen, the juvenile justice board will decide whether the juvenile deserves to be tried
as an adult or as a child. This will be done by analysing the mental maturity of the child,
which is a very subjective thing as we will see later in the paper. If the child is seen to have
sufficient mental maturity according to the board, then they are tried as an adult in the
Childrens court. After the child turns twenty-one, after further investigation, trial as an adult
can be conducted in the court of law.

This was seen as a big step for the criminal justice system. Even after this, in a recent
judgment of the Shakthi Mills Gang Rape case 10, one of the accused was a minor and he was
sent to remand homes after being convicted. This shows that there has not been much change
even after the amendment. Further, in the case of Saurabh Jalinder Nangre v State of
Maharashtra11, a writ petition was brought to the Maharashtra High Court where the necessity
of sending a juvenile to children’s court was brought forth after the juvenile was accused of a
murder under Section 307 of the Indian Penal Code, 1860 12. The court held that even though
the juvenile was seventeen years of age, the crime committed was not of heinous nature and
thus does not need to be transferred to the children’s court. The court thus essentially meant
that murder does not qualify to be a heinous crime.

9
Mukesh and Ors. v. State of Delhi, 2017 SCC Online SC 533
10
State of Maharashtra vs. Vijay Mohan Jadhav & Ors.,
11
Saurabh Jalinder Nangre v State of Maharashtra, 2019 (1) Crimes 253 (Bom)
12
Section 307, Indian Penal Code, 1860.

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One of the main reasons for the juvenile justice system to exist is because children do not
have the mental capacity to assess the velocity of their crimes. A preliminary assessment is
undertaken whenever a juvenile is brought in for a crime to understand the mental and
physical capabilities of the child according to Section 15 of the Juvenile Justice Act, 2015. 13
This was also seen as one of the failures of the Juvenile Justice Act. There have been cases
where juveniles have come out of the remand homes and have continued to commit worse
and graver crimes. When such children come out of such homes their criminal records are
completely erased for the sake of smooth integration back into society.

In the year of 2009, the records of the National Crime Bureau reported that almost 30,000
persons below the age of eighteen was found to be committing cognizable crimes and around
a thousand were reported to be committing heinous crimes such as rapes. This showed that
juvenile crime rate in our country is increasing in a rapid manner. After the enactment of the
2015 amendment to the Juvenile Justice Act a slight decrease was seen but reducing the age
from 18 to 16 did not do much change. The Act also does not specify how to determine the
ways to understand the mental maturity of the child as it is a very subjective matter.

3.2. Issues with rehabilitation homes

One of the other reasons why juveniles should be tried as adults and given general
punishments is the situation of the juvenile detention homes. These detention homes have not
provided rehabilitation but have increased the trauma of the children. There have been reports
of assaults in these homes in the form of physical and sexual, drugs also form a big part of
these homes14. These kids have also been falsely accused of more crimes and have been sent
into darker holes of the criminal side. These are parts of the remand homes that are not
openly discussed and the rehabilitation part was taken a lot more seriously than the situation
of such places. There is also the problem of overcrowding of such places, which is no
different than a conventional jail.

If such kids are not being given the rehabilitation they deserve, they tend to come out as
hardened criminals ready to commit more crimes. When such juveniles are tried as adults,
they are exposed to punishments at a younger age and there is lesser chance of them
committing more crimes as they turn older. In any criminal justice system, the rule is that the
punishment should be proportional to the crime. With respect to the juvenile justice, this is
13
Section 15, Juvenile Justice Act, 2015
14
International Colloquium on Juvenile Justice: A Report. (New Delhi: HAQ: Centre for Child Rights, 2013),
pg. 45

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not applied as to small crimes as well as the most heinous crimes, the offenders are given the
same punishments.

4. Suggestions
The most important part of the juvenile justice laws in India is that it focuses on rehabilitation
and on smooth integration of the child back in to the society. In order to strengthen the

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juvenile justice system in India, the rehabilitation homes are to be focused more on helping
the children get their lives back in track than on treating the homes like jails. There should
also be more Juvenile Justice Boards and Children’s courts established in order to fast track
the trail of such children so that they can proceed to normalcy as soon as possible.

A skilled judge who can identify the educational, social, and therapeutic requirements of the
troubled kids should preside over the juvenile court. Children should be exposed to tuition
and counselling sessions so they can cultivate their interests and abilities through which they
can look for employment and a means of subsistence. Even though these facilities are said to
be provided by the existing system, the need of the hour is to make the rehabilitation centres
more effective as the whole system relies on the working of the rehabilitation homes so that
the children do not become adult criminals.

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 5. Conclusion
The Juvenile Justice (Amendment) Act, 2015 is not perfect as it contains one too many
loopholes when it comes to the provisions as well as the executing parts as we have seen in
the project. It is however important to note that there can be no winning when it comes to
such legislations. It is a two-sided coin where the state has to play a paternalistic role to the
juveniles and it also has to try to provide a punishment that is in line with the crime
committed. Without compromising one, the other cannot be done. It is crucial to realise that
when a case is being heard, the specifics of the incident and the type of act committed should
be used as benchmarks to determine if the alleged juvenile was capable of comprehending his
actions or not. Also, the definition of terrible acts needs to be reviewed. It is however up to
the skill of the drafters of the legislation to somehow bring both of the aspects to be in
tandem with one another.

Bibliography

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1. Shubham Kumar Singh, “Critical Analysis of Juvenile Justice System in India with
Special Emphasis on Juvenile Delinquency and Rehabilitation Methodologies”, Vol.
4, LAJ, 1, 1-13, (2022
2. Ved Kumari, “The Juvenile Justice Act, 2015 - Critical Understanding”, Vol. 58, JILI,
83-103
3. “Should Juveniles Be Tried As Adults For Serious Crimes?”,
https://eitherview.com/should-juveniles-be-tried-as-adults-for-serious-crimes/, 15th
March 2023.
4. Atul S. Jaybhaye, “Critical Analysis of Juvenile Justice System in India”, BLR,
(2017)
5. Panduranga B, Dr. Pavitra R Alur, “Study on Rehabilitation of Children in Conflict
with Law in India”, Vol. 6, JETIR, 67, 67-78, (2019).
6. Nadendla Roja Rani, “A Critical Analysis on Juvenile Justice (Care and Protection of
Children) Act, 2015”
7. Juvenile Justice (Care and Protection of Children) Act 2015.

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