UGC SPONSORED TWO DAYS STATE LEVEL SEMINAR ON

“HUMAN RIGHTS EDUCATION”

4TH WEEK OF FEB., 2015

ORGANIZED BY

SHRI PADMAPRABHA DIGAMBAR JAIN ARTS COLLEGE

ANSING, TQ. DISTT. WASHIM- 444507

PAPER SUBMITTED

ON

“HUMAN RIGHTS AND JUVENILE JUSTICE”

BY

DR. VIJESH B. MUNOT

OFFICIATING PRINCIPAL

AMOLAKCHAND VIDHI MAHAVIDYALAYA, YAVATMAL

Cell: 9423433241 Email: vijeshmunot@rediffmail.com

0
 “HUMAN RIGHTS AND JUVENILE JUSTICE”

Dr. Vijesh Bhanwarlalji Munot

Officiating Principal
Amolakchand Vidhi Mahavidyalaya, Yavatmal

The children being the national assets, it is the duty of every one to look after the
child with a view to make certain full development of its personality. Every equal
opportunity shall be provided to them so that they would be used as foundation of the
nation. Children are the citizens of the future epoch. On the proper bringing up of
children and giving them proper training to turn out to be good citizens depends the
future of the country. In recent years, this position has been well realized. In 1959, the
Declaration of rights of the child was adopted by the General Assembly of the United
Nations and in Article 24 of the International Covenant on Civil and Political Rights,
1966; the importance of the child has been appropriately recognized. India as a party to
these International Charters having ratified the Declaration, it is an obligation of the
Government of India as also the State machinery to implement the same in the proper
way.

The Children’s Act, 1948 has made elaborate provisions to cover this and if these
provisions are properly translated into action and the authorities created under the Act
become cognizant of their role, duties and obligation in the performance of the statutory
mechanism created under the act and they are properly motivated to meet the situations
that arise in handing the problems, the situation would certainly be very much eased.i

To borrow the words of one noted Nobel Laureate Gabrial Mistral as quoted by
Dr. N. V. Paranjape in his celebrated book Criminology and Penology:

“We are guilty of many errors and many faults, but our worst crime is
abandoning the children, neglecting the foundation of life. Many of things we
need can wait, the child cannot, right now is the time his bones are being formed,
his blood being made and his senses are being developed. To him, we cannot
answer ‘tomorrow’. His name is ‘Today’”.

1
 The movement for special treatment of juvenile offender started towards the end
of eighteenth century. Prior to this, juvenile offenders were dealt with exactly like those
of adults. They were prosecuted in criminal courts and were subjected to same penalties
as adults. That apart, they served their sentence in the same prison in which other
hardened criminals were lodged. The obvious result of lodging juveniles and habitual
offenders in the same prison was that there institutions virtually turned into breeding
centres of vices and criminality. The greater evil of the system was that it exposed young
offenders to contamination due to their incarceration with other criminals.ii

International concern for Juvenile Justice:

The burning issue relating to juvenile delinquency and juvenile justice in

developed and developing countries has drawn the attention of the United Nations. This
resulted in adoption of the following principles by the U. N. General Assembly in
November 1985-

a. Juveniles in trouble with law should be provided with carefully constructed legal
protection.

b. Pre-trail detention should be used only as a last resort. Child and juvenile
offenders should not be held in a jail where they are vulnerable to the evil
influences of the adult offenders.

c. Juvenile offenders should not be incarcerated unless there is no other appropriate

response that will protect the public safety and provide the juvenile with the
opportunity to exercise self-control.

d. Member nations should strive individually and collectively to provide adequate

means by which every young person can look forward to a life that is meaningful
and valuable.

i
Sheela Barse v. Secretary, Children’s Aid Society, AIR 1987 SC 656
ii
Dr. N. V. Paranjape: Criminology and Penology at p. 528
2
 The substantial law relating to juvenile delinquency, their care and protection and
over all juvenile justice in India is contained in Juvenile Justice (Care and Protection of
Children) Act, 2000. Before the enactment of this Act in 2000, Juvenile Justice Act, 1986
was the governing law on the subject and prior to this Children Act, 1960 was operative
throughout the country.

The Juvenile Justice (Care and Protection of Children) Act, 2000 is 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 approach in the adjudication and disposition of
matters in the best interest of children and for their ultimate rehabilitation.

The Act is passed to give valid effect to the provisions of Constitution contained under
Clause (3) of Article 15, Clauses (e) and (f) of Article 39, Article 45 and Article 47.
These Articles 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.

Further, this Act is passed to complied with the provisions prescribing a set of
standards to be adhered to by all State parties in securing the best interests of the child
mentioned under the Convention on the Rights of Child which has been adopted by the
General Assembly of United Nations on 20th November, 1989.iii

Section 2 (k) of 2000 Act defines juvenile as under. :

“Juvenile” or “Child” means a person who has not completed eighteenth year of
age.

In Sheela Barse v. Union of India,iv the Apex Court stated:

“If a child is a national asset, it is the duty of the State to look after the child with
a view to ensuring full development of its personality. That is why all the statutes dealing
with children provide that a child shall not be kept in jail. Even apart from this statutory

iii
Government of India has ratified the said Convention on 11th December, 1992
iv
AIR 1986 SC 1773
3
prescription, it is elementary that a jail is hardly a place where a child should be kept.
There can be no doubt that incarceration in jail would have the effect of dwarfing the
development of the child, exposing him to baneful influences, coarsening his conscience
and alienating him from the society. It is a matter of regret that despite statutory
provisions and frequent exhortations by social scientists, there are still large numbers of
children in different jails in the country”.

The National Policy for Children was adopted on 22 nd August, 1974. This policy,
inter alia, lies down that State shall provide adequate services for children both before
and after birth, and during the growing stages for their full physical, mental and social
development. The measures suggested include amongst others a comprehensive health
programme, supplementary nutrition for mothers and children, promotion of physical
education and recreational activities, special consideration for children of weaker sections
and prevention of exploitation of children.v

The United Nations Standard Minimum Rules for the Administration of

Juvenile Justice, often referred to as the Beijing Rulesvi is a resolution of the United
Nations General Assembly regarding the treatment of juvenile prisoners and offenders in
member nations. United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (Beijing Rules), 1985 defines a juvenile offender is a child or young
person who is alleged to have committed or who has been found to have committed an
offence.

The Rules along with other rights provides that basic procedural safeguards such as the
presumption of innocence, the right to be notified of the charges, the right to remain
silent, the right to counsel, the right to the presence of a parent or guardian, the right to
confront and cross-examine witnesses and the right to appeal to a higher authority shall
be guaranteed at all stages of proceedings to the juvenile. It further emphasis on elements
for a fair and just trial and that are internationally recognized in existing human rights
instruments.

v
R. D. Upadhyay vs State Of A. P. AIR 2006 SC 1946
4
 Yet another document dealing with rights of Child at global level is the United
Nations Convention on the Rights of the Child. It is a human rights treaty setting out the
civil, political, economic, social, health and cultural rights of children. The Convention
generally defines a child as any human being under the age of eighteen, unless an earlier
age of majority is recognized by a country's law.

vi
http://en.wikipedia.org/wiki/Standard_Minimum_Rules_for_the_Administration_of_Juvenile_Ju stice

REFERENCES:

Agrawal , Dr. H. O. : Human Rights, 3rd Edition, Universal Law Pub.

Ashutosh Dr. : Rights of Accused, Edition 2009, Universal Law

Publishing Company.

Bag, R. K. : Supreme Court on Criminal Justice, 2 nd Edition, Asia Law

House, Hyderabad.

Baker, Christopher : Human Rights Act, 1998: A Practitioner’s Guide: Sweet

and Maxwell Ltd., London.

Basu, Durga Das : Human Rights in Constitutional Law, Publisher Prentice-

Hall of India, New Delhi 1994.

Gaur, K. D. : Criminal Law: Cases and Materials, 3rd Edition 1999.

Kamalakar, Pandit : Human Rights and Crimnal Justice by, Asia Law House,
1st Edition, 2010, Asia Law House, Hyderabad.

Murthy, Y. S. R. : Human Rights Hand Book, Publisher-LexisNexis

Butterworths, 2007.

Pandey, J. N. : Constitutional Law of India, 42nd Edition 2005-2010,

Central Law Agency, Allahabad.

Paranjape N. V. : Criminology & Penology 14th Edition, Central Law Pub.

5
 Two optional protocols were adopted on 25th May 2000. The First Optional
Protocol restricts the involvement of children in military conflicts, and the Second
Optional Protocol prohibits the sale of children, child prostitution and child pornography.

The Convention inter alia with other rights recognizes the following rights to
protect the children.

The Convention acknowledges that every child has certain basic rights, including
the right to life, his or her own name and identity, to be raised by his or her parents within
a family or cultural grouping, and to have a relationship with both parents, even if they
are separated.

The Convention obliges States to allow parents to exercise their parental

responsibilities. The Convention also acknowledges that children have the right to
express their opinions and to have those opinions heard and acted upon when appropriate,
to be protected from abuse or exploitation, and to have their privacy protected, and it
requires that their lives not be subject to excessive interference.

The Convention also obliges signatory States to provide separate legal

representation for a child in any judicial dispute concerning their care and asks that the
child's viewpoint be heard in such cases. The Convention forbids capital punishment for
children.

In its General Comment 8 (2000) the Committee on the Rights of the Child stated
that there was an “obligation of all States parties to move quickly to prohibit and
eliminate all corporal punishment and all other cruel or degrading forms of punishment
of children”. Article 19 of the Convention states that State Parties must "take all

Siddique, Ahmed : Criminology- Problems and Perspectives, 4 th Edition

Reprint 2001.

JOURNALS/REPORTERS (WITH ABBREVIATIONS)

1. All India Reporter Supreme Court Weekly AIR SCW

2. All India Reporter AIR
3. Supreme Court Cases SCC
6
appropriate legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence.

Youths are easily prone to vices of society by the very nature of their
youthfulness. Hence, they required special care to protect their childhood. As India is a
country where traditions, custom etc. is well protected and bequeathed with large legacy
of culture, the problem of juvenile delinquency is not reveal as severe as it is existed in
western counties. However, as the impact of the western modernization civilization and
culture increased on the serene minds of Indian youth, they easily become prey to
delinquent behavior.

The notions to tackle the problems of juvenile delinquency are almost similar in
every country. The following are the three fundamental assumptions-

1. Young offenders should not be tried, they should rather be corrected;

2. They should not be punished but be reformed; and

Exclusion of delinquents i.e. children in conflict with law from the ambit of Court and
stress on their non-penal treatment through community based social control agencies such
a Juvenile Justice Board, Observation Homes and Special Homes (in India these are
provided under relevant Sections of Juvenile Justice (Care and Protection of Children)
Act, 2000).

Thus, the purpose of the Juvenile Justice legislation is to provide succor (help) to
the children who were being incarcerated along with adults and were subjected to various
abuses. It would be in the fitness of things that appreciation of the very object and
purpose of the legislation is seen with a clear understanding, which sought to bring relief
to juvenile delinquents.