Introduction:
A juvenile is a person below the age of 18 years who commits a crime.
All those offences that are committed by adults and are punishable, when committed by children under the age of 18yrs are denoted as juvenile crimes.
According to Section 82 and Section 83 of the Indian Penal Code-
Nothing is an offence if committed by a child below the age of 7 years.
Nothing is an offence which is done by a child between the age of 7 years and 12 years, provided, that the child is not intellectually mature.
Previous Legislations regarding Juvenile Delinquency
- The Apprentices Act, 1850
- The Reformatory School Act, 1876
- The Recommendations of the Indian Jails Committee, 1919-1920
- Children Act, 1960
In 1985, the United Nations passed a United Nations Standard Minimum Rules for the Administration of Juvenile Justice or the Beijing Rules. These rules broadly held that a juvenile will be dealt with for an offence in a manner which is different from an adult. Countries must take into consideration the emotional, mental and intellectual maturity of a child before fixing the age after which a person is to be tried as an adult. Also, juveniles should be kept in separate institutions from the adults to prevent indoctrination of these children by adults[1].
Thus, on the basis of these guidelines, a new law was enacted.
Juvenile Justice Act, 1986
This Act was the first proper legislation in post-independence India with regards to delinquent juveniles.
It provided care and protection for juveniles and gave guidelines for their rehabilitation so that they could be reintegrated back into society.
In the Act, juveniles were defined as a boy below age of 16yrs and a girl below age of 18yrs.
Something changed again in 1989. The United Nations put forward the UN Convention on the Rights of the Child (hereby UNCRC). Attention was drawn to four sets of political, civil, social and economic rights every child must-have. These primarily included, Right to Protection, Right to Survival, Right to Participation and the Right to Development[2].
According to the UNCRC, a juvenile is a child below the age of 18yrs and they shouldn’t be tried as adults.
India ratified the UNCRC in 1992. But the Juvenile Justice Act set the age limit for boys to be treated as adults as 16yrs. Hence as an obligation under article 15(3) of the Indian Constitution, the existing act was amended in the year 2000.
Juvenile Justice (Care and Protection of Children) Act, 2000 (hereby 2000 Act)
Under the Act, the age of boys and girls both was uniformly set as 18yrs in accordance with the UNCRC.
The Act divides children into two categories-
- Children in need of care and protection- These include children who are neglected, orphaned, abused, abandoned, are victims of any armed conflict or natural calamity. These children should be produced before a Child Welfare Committee (CWC) and under Section 34 of the Act, be placed in Children’s Home to provide the necessary care.
- Juvenile in conflict with the law- A child who is alleged to have committed an offence. He/she should be produced before the Juvenile Justice Board(JJB).
The JJB comprises of a Metropolitan Magistrate, Judicial Magistrate of the first class and two social workers out of whom one must be a woman. All three people are to form a bench and function as a unanimous unit.
According to the Act, a juvenile could be sentenced to a maximum period of 3 years by the JJB. During this period of 3yrs, the juvenile is to be held in an observation/ reform home, (established in every state under Section 8 and Section 9 of the Act) instead of prison so that he could be re-integrated to the society after completion of his sentence.
Rise in Juvenile Delinquency
The period between 2002-2013 saw a huge leap in the rate of Juvenile crimes committed by children between 16-18 years of age in India. From 531 murders in 2002, the figure went up to 1, 007 in 2013, for rape and assault with intent to outrage the modesty of women, the figures shot up from 485 and 522 to 1, 884 and 1, 424 respectively during the same period[3].
The 16th December 2012 gang rape in Delhi triggered major changes in the Indian juvenile system. One of the perpetrators of the Nirbhaya gang rape was a juvenile falling short of 1 month to complete 18yrs of age. As a result, he was tried as a juvenile and was let off after completing the maximum awarded sentence of 3yrs.
Similar was the case in the 2013 Mumbai gang-rape where two minors were released after completing their sentence of 3yrs.
These incidents lead to widespread protests throughout the territory of India with an increase in demand to reduce the age of juveniles from 18yrs to 16 years. Thus, pushed by public opinion, the government introduced an amendment in the 2000 Act.
The Juvenile Justice (Care and Protection of Children) Act, 2015
The Act was given Presidential assent on 31st December.
Major Change in the Act-
The Act permitted juveniles between the age of 16yrs-18yrs to be treated as adults for heinous offences. The Act defined heinous offences as those offences which attract a minimum punishment of 7yrs imprisonment under IPC or any other law. Example- rape, murder
Serious offences included the offences which attract minimum punishment of 3yrs-7yrs of imprisonment and petty offences incur that of 3yrs or less. For serious and petty offences, the JJB can issue a maximum sentence of 3 years.
The Act specifies that a juvenile cannot be sentenced to the death penalty or be given life imprisonment without the possibility of release.
For heinous offences, if a juvenile is apprehended before the age of 21 years, the JJB will conduct a preliminary enquiry. This will determine the mental and physical capacity to commit an offence and an understanding of its consequences. The JJB can then pass either of the 3 recommendation orders-
- The child is subjected to counselling or community service
- The child is required to stay at an observation home for a temporary or long term period
- The child is referred to a Children’s Court to determine whether to try him as an adult.
The Children’s Court is a Session Court set up under the Commissions for Protection of Child Rights Act, 2005. Once a juvenile is recommended to this court, it will determine whether to try the juvenile as an adult or else recommend counselling, stay at observation home etc.
Therefore, the juvenile may be tried as an adult based on the recommendations of the JJB and the Children’s Court.
Other Provisions-
- The Act introduced provisions regarding adoption of abandoned, orphaned and surrendered children. It found its basis from the Hague Convention on Protection of Children.
- Foster care was introduced in Section 44 of the Act. As per this, the families could sign up and the neglected children or those children in conflict with the law would be provided care by them. All such families would be monitored and given financial support from the government.
- The Act specified that during the adoption process, priority would be given to economically and physically disabled children.
- The parents who decide to give up their children for adoption would be given 3 months (instead of one month) to reconsider their decision.
- Any person found providing alcohol or drugs to the children would incur a mandatory punishment of 7yrs imprisonment or Rs. 1 lakh fine, or both.
- A person found indulging in child trafficking would be imprisoned for five years, or attract a Rs. 1 lakh fine or both.
Debate over Reducing age of Juvenile Delinquency In India
Arguments in favour:
The mild punishments have been used by the juveniles between 16yrs-18yrs of age as an escape from criminal prosecution. These juveniles are involved in heinous crimes and continue to perform these with complete knowledge of the consequences. If a person is old enough to commit rape, he is definitely old enough to face the punishment for it.
Thus, the state of mind of the juvenile should govern their trials and not the age factor by itself.
Hence, the amendment was required to set a deterrent in front of society.
Arguments in opposition:
- Child Rights activists have argued that this Act violates the UNCRC which specified the age limit for a juvenile as 18yrs. This argument may not be valid from a legal perspective as the government has not set a hard and fast rule to try juveniles between the age of 16yrs-18yrs as adults. Instead, it provides the conditions for the same.
- People argue that children get involved in crimes due to the lack of education and the struggles against poverty. As heinous are the crimes they commit, we as a part of the society have also failed to provide a healthy childhood for these children. So the root cause of the problems needs to be addressed instead of just increasing the punishment.
- According to the Justice Verma Committee, if a child less than 18yrs of age is subjected to a normal trial and a normal jail, there remains no chance of rehabilitation. They often turn into hardened criminals and repeated offenders, taking away the entire essence of the primary focus of the Act.
Conclusion
Causes of juvenile delinquency include substance abuse, poverty, peer pressure, mental disorders, parental disruption and social disorganisation. As important as setting up of a deterrent before the society is, acting at the root cause is also necessary. We are a legislation proactive nation. Instead of talking about vengeance, we have to work towards eradicating the social conditions which create these criminals in the first place.
Let us have more schools in the country and not jails. Let rationality determine our policies, not emotions. Let us talk about reform and not retribution. Let us help these victims of social apathy.
References:
[1]Haritha Dhinakaran, All about United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
[2] United Nations Children’s Fund, unicef.org, https://www.unicef.org/child-rights-convention/what-is-the-convention
[3] National Crime Records Bureau ,Crime in India,2013
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