Laws related to Juvenile Records: A Comparative Analysis

Introduction:

Children are the most valuable asset of a country. It is so because they are the immediate future of a country. Thus child-related offences not only cast a shadow on the country’s future but also doubts the societal health and maturity of the country. This makes it necessary for the state to first, focus on prevention that is education and providing proper health care to the children and secondly, to design special laws dealing with child offences. As mentioned above Juvenile Records refer to a detailed history of a child’s offences or crimes.[1] Before analysing the topic in detail it is important to note that according to The Juvenile Justice (Care and Protection of Children) Act, 2015, section 2(35) defines a Juvenile as a child below the age of 18 years.[2]

The fundamental legal intent while framing juvenile laws isn’t the quantum of the punishment but that of the principle of reformation and rehabilitation. Reformative justice is very core to the Indian judicial principles and the same has been observed in the Juvenile laws in India. A separate set of laws with respect to juveniles have been framed to prevent the juveniles from getting victimized by the system itself. Numerous countries have framed juvenile laws by keeping in mind the child-friendly approach. This article aims to study the element of Judicial record by doing a comparative analysis between 2 countries which are Columbia and India respectively. The prime reason for choosing Columbia is that Columbia was ranked 2^nd in the list of countries with the highest number of child offences/ juvenile crimes.[3] The data was collected on the basis of the number of murders done by children in these countries. Murder has been defined as a heinous crime in different nations and is thus an appropriate basis to rank countries in relation to juvenile crimes.

Juvenile Crimes

As it is very clear from the title, Juvenile crimes are those which are committed by Juveniles and as explained above juveniles are the ones who are below the age of 18. But why is it necessary to study the topic of Juvenile crime separately? The reason lies in the tender nature of children. The below-mentioned headline explains different legislation on juvenile crimes and the scope of the same. But before that, it is important to note few case laws related to Juvenile crimes.

Mukesh and Anr. Vs NCT Delhi (Nirbhaya Case) [4]

This is one of the most controversial and burning cases with respect to heinous crimes and juvenile protection. This case brought light to the debate juveniles of 16 yrs and above committing a crime of heinous in nature being under trial as adults. The sole reason being that the nature of the crime is heinous in nature. This case had brought few amendments to the Juvenile Justice Act. Moreover, the topic deals with the confidentiality of the accused juveniles. This case saw a mass violation of the privacy of the accused juveniles. All this was done by the media houses as there were several protests in the national capital demanding death sentences to these “accused”. Hence this issue still stands debatable whether it is right to conduct a trial of juveniles of age 16 and above as adults when they are accused of heinous crimes. But the fact that there were gross violations of the privacy rights of the accused juveniles due to the prevalent public pressure in the country cannot be ignored.

Gaurav Kumar vs State of Haryana[5]

The Honourable Supreme Court of the country observed that the current Juvenile Justice Act of 2000 needs a reappraisal because the real legal intent of the law is not being delivered. In the present case, the juvenility of the accused was under scrutiny. The court through this judgement held that the law fails to deter juveniles from committing heinous offences. Hence the Supreme Court agreed to the fact that the above-mentioned law needs a restructuring. It is important to note that the legal intent of Juvenile laws isn’t to set and establish punishments for juvenile crimes but to set and frame laws that are children friendly and will cater to reduce the prevalent juvenile crimes in society.

Legislations related to Juvenile crimes

It becomes very crucial to understand the numerous legislations and laws related to Juvenile offences that are followed over the globe. Numerous international conventions and laws are well established in the interest of the protection of juveniles. Some of the prominent international covenants dealing with the international juvenile system are as follows:-

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985[6]

These rules are also famously called the Beijing rules. Clause 8 of these rules is titled as “Protection of Privacy”. It advocates for the privacy of Juveniles with respect to child offences and aims to avoid publications of Juvenile records in the public forum to avoid harm and labelling to the juvenile. Clause 8.2 of the aforementioned document is as follows:

“8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.” [7]

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990[8]

These rules are also called the Havana Rules and have laid down the common management system with respect to the juvenile justice delivery system. Different countries in the world have taken reference of these laws.

The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990[9]

These are popularly called the Riyadh guidelines. These guidelines are responsible for advocating juvenile delinquency.

The United Nations Guidelines for Action on Children in the Criminal Justice System, 1997[10]

These rules are also known as the Vienna Guidelines which are aimed at the protection of children from crimes. The peculiarity of this convention is that it was not only addressed to the member nations but also to numerous NGOs, Think Tanks and Media houses over the globe.

Comparative Analysis of Legislations in Different Countries

As the researcher has chosen Columbia and India for comparative analysis, the below mentioned are the legislations associated with Juvenile offences.

India

The Juvenile Justice (Care and Protection of Children) Act of 2015[11] deals with the laws related to juvenile offences. It is important to note that the first paragraph on page 2 of this act cites the Beijing Rules (No 1 in the above-mentioned list). This highlights the fact that India too drafted the juvenile justice laws in line with The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985.

This act has been drafted keeping in mind the child-friendly approach which is crucial while drafting a law related to child offences. The introductory paragraph of the act highlights this fact. Numerous sections of this act reflect the child-friendly nature of this act, for example, Section 91 (1) and 91(2) which are defined as follows;

“91. (1) If, at any stage during the course of an inquiry, the Committee or the Board is satisfied that the attendance of the child is not essential for the purpose of inquiry, the Committee or the Board, as the case may be, shall dispense with the attendance of a child and limit the same for the purpose of recording the statement and subsequently, the inquiry shall continue even in the absence of the child concerned, unless ordered otherwise by the Committee or the Board.”

“(2) Where the attendance of a child is required before the Board or the Committee, such child shall be entitled to travel reimbursement for self and one escort accompanying the child as per actual expenditure incurred, by the Board, or the Committee or the District Child Protection Unit, as the case may be.”

Thus examples of sections like this highlight the child-friendly approach of this Act.

Columbia

It is well-established fact that the Columbian juvenile system initially did not have a separate set of laws only designed for juveniles. While we study particular legislation of a country it is important to understand the historical discourse of the country. For example, the Indian Freedom struggle needs to be studied in tandem with the legislations that were passed in colonial times (by the British parliament). Similarly, Columbia has a notable history of children being used in the gullera forces in the rebellion. Thus the lawmakers in Columbia framed juvenile related laws in line with this historical discourse. It is the Code on Minors and the Code on Childhood and Adolescence of 1990,[12]which is the most important legislation related to the same. This code was amended in the year 2006. Few references from the United Convention on the rights of children (UN CRC).[13] Moreover, article 93 of the political constitution of Columbia also backs the CRC, which is the convention on the rights of the children.

Confidentiality of the Juvenile records- A comparison

As the topic of this research paper suggests this is the most important part of the entire paper. Today, in a virtual world where any kind of information is spread over a click, it becomes crucial to discuss the confidentiality of juvenile records. It is the word “Juvenile” in the term Juvenile records that makes it more sensitive, the jurisprudence all over the world has agreed to the argument that records relating to crimes must be avoided from putting them in the public forum, these are one of the most basic rights guaranteed to the accused/prisoners. Thus, in the case of juveniles, the tender nature of children makes it more important to protect juvenile records. The following paragraphs analyse the confidentiality of juvenile records in India and Columbia.

India

Chapter 2 of the Juvenile Justice (Care and Protection) Act of 2015[14] is titled General Principles of care and protection of children. Principle 11 of the same is related to the right to privacy and confidentiality of the juveniles. It states that “Every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process”.

Secondly, section 99 of the abovementioned act deals with the confidentiality clause. It states that; “99. (1) All reports related to the child and considered by the Committee or the Board shall be treated as confidential: Provided that the Committee or the Board, as the case may be, may, if it so thinks fit, communicate the substance thereof to another Committee or Board or to the child or to the child’s parent or guardian, and may give such Committee or the Board or the child or parent or guardian, an opportunity of producing evidence as may be relevant to the matter stated in the report. (2) Notwithstanding anything contained in this Act, the victim shall not be denied access to their case record, orders and relevant papers.”

Thirdly, section 110(2)(xiii) of the above-mentioned act states that; manner in which the relevant records of the child may be destroyed by the Board, police or the court under sub-section (2) of section 24; these are the three specific sections in the Act which deal with the subject of confidentiality of juvenile records.

Although there are strict legal provisions regarding the same. The ground reality is somewhat different. Although the law strictly prohibits publicising juvenile records, the cops have been accused in multiple instances of not following the established procedure.[15] When the crime is heinous in nature, the media already starts a trial by completely violating the confidentiality clause, the example of the Nirbhaya case can be cited here. Moreover, in the case of X Minor Thr. Father Natural … vs State &Ors, of the Delhi High Court ( dated 17 April 2012) further emphasised the confidentiality clause and held that the clause must be upheld in all the stages of the proceedings.

Columbia

As stated above Columbia has had different legislations related to Juvenile offences. Section 16-2331 of the code of the district of Columbia deal with Juvenile case records; confidentiality; inspection and disclosure. Subsection (b) of this document states that“(b) Except as otherwise provided in this section and in section 16-2333.01, juvenile case records shall be kept confidential and shall not be open to inspection, nor shall information from records inspected be divulged to unauthorized persons.”[16] The subsequent section of this act states that only the courts and the investigation agencies have the authority access to these records at any point of time. Moreover clause f of this act states that “(f) Notwithstanding subsections (b) and (c) of this section, the Superior Court may by rule or special order provide that particular items or classes of items in juvenile case records shall not be open to inspection except pursuant to rule or special order; but, in dispositional proceedings after an adjudication, no item considered by the judge (other than identification of the sources of confidential information) shall be withheld from inspection:

(1) In delinquency or need of supervision cases, by the attorney for the child; or

(2) In neglect cases, by the attorney for the child and an attorney for the parent, guardian, or other custodian of the child.”[17]

Hence it is clear that the law clearly mandates the procedures in favour of the confidentiality principles. But the major reason for choosing Columbia was, the country is ranked very high in terms of child offences. This increases the rate of violations of the privacy and confidentiality of juvenile records. Hence the investigating and judiciary in Columbia must ensure that justice is truly served in this regard.

Conclusion

Both countries have well-defined laws in relation to the confidentiality of juvenile records. So, the problem isn’t with the legislation but with the enforcement and investigation agencies in these countries. They are accused of having violated these clauses. There are numerous examples in which an individual was denied a job opportunity just because he was juvenile offender years back.[18] The individual has already completed his punishment (here rehabilitation) and deserves the job opportunity in equal capacity. Thus, the violation of such confidentiality clauses can cause serious harm to an individual for years. As both the countries are party to all the major juvenile protection conventions, they shall abide by the same and should deliver justice in totality.

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References:

[1]Criminal Watch Dog,https://www.criminalwatchdog.com/faq/what-are-juvenile-records#:~:text=You%20probably%20know%20that%20the,a%20child’s%20crimes%20and%20convictions.&text=A.k.a.%20crimes%20are%20crimes%2C%20no,at%20which%20someone%20commits%20them (last visited June 9, 2021).

[2]Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Acts of Parliament, 2015 (India).

[3]Nation Master, https://www.nationmaster.com/country-info/stats/Crime/Murders-committed-by-youths (last visited June 13, 2021)

[4]Mukesh and Anr. Vs NCT Delhi, (2017) 6 SCC 1

[5]Gaurav Kumar vs state of Haryana, (2015) 16 SCC 310

[6]United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), Adopted by General Assembly resolution 40/33 of 29 November 1985, https://www.ohchr.org/documents/professionalinterest/beijingrules.pdf (Last visited on June 13,2021).

[7]Id

[8]United Nations Human Rights Office of the Commissioner, https://www.ohchr.org/en/professionalinterest/pages/juvenilesdeprivedofliberty.aspx (Last visited June 13, 2021). 

[9]United Nations Human Rights Office of the Commissioner, https://www.ohchr.org/en/ProfessionalInterest/Pages/PreventionOfJuvenileDelinquency.aspx#:~:text=Adopted%20and%20proclaimed%20by%20General,112%20of%2014%20December%201990&text=1.,of%20crime%20prevention%20in%20society. (Last visited on June 13,2021).

[10]United Nations Human Rights Office of the Commissioner, https://www.ohchr.org/EN/Professionalinterest/Pages/CriminalJusticeSystem.aspx (Last visited June 13, 2021).

[11]Id at 2

[12]Jennifer Pierce, Colombia, RESEARCH & EVALUATION CTR.: JOHN JAY C. OF CRIM. JUST. https://jjcompare.org/category/colombia/ (Last visited on June 21,2021).

[13]Id

[14]Id at 2

[15]Rashme Sehgal, Juvenile at crossroads, Firtspost, (June 16, 2021), https://www.firstpost.com/india/juveniles-at-crossroads-cops-ignore-confidentiality-clause-in-2015-jj-act-deny-reformed-youths-chance-to-rebuild-life-4696971.html.

[16]Code of District of Columbia, https://code.dccouncil.us/dc/council/code/sections/16-2331.html, ( June 16, 2021).

[17]Id

[18]Id at 13