The Juvenile Justice Act- Controversies and International Practice

Introduction:

* The Juvenile Justice Act was preceded by many welfare legislations.

* The first Juvenile legislation was the Apprentice Act 1850 which provided that children in the age group of 10-18 convicted by courts were intended to be provided with some vocational training which might help their rehabilitation.

* Then came the Reformatory Schools Act, 1897.

* The Indian Jail Committee (1919-1920) brought to the fore the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively.

* The Central enactment, the Children Act, 1960 was passed to cater to the heads of the Union Territories. To remove same inherent lacunae of the above mentioned Act, the Children (Amendment) Act was passed in 1978.

* Finally, the Act of 1986 was passed, further amended in 2000 and 2006.

* The Act of 2000 was passed with the purpose of incorporating into domestic law Indias obligations under international law as:

* a signatory of the U.N. Convention on the Rights of the Child of 1989,

* the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985) (known as the Beijing Rules) and

* the U.N. Rules for the Protection of Juveniles Deprived of their Liberty (1990)

* The Act provides for a special approach towards the:

1. prevention and

2. treatment of juvenile delinquency

* The Act provides a framework for the:

3. protection,

4. treatment and

5. rehabilitation of children in the purview of the juvenile justice system

* The Act derives it validity from Art. 15(3), 39(e) & (f), 45 and 47 of the Indian Constitution.

* The original act of 1986 was amended after India ratified the Convention on the Rights of the Child to comply with the obligations under the Convention. Though such a legislation fell in the State List of the Constitution, to bring the operations of the juvenile justice system in the country in conformity with the UN Standard Minimum Rules for the Administration of Juvenile Justice, Parliament exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make law for the whole of India to fulfill international obligations.

* Sec. 2(k) of the Act says that a juvenile" or "child" means a person who has not completed eighteenth year of age.

* Interestingly, Sec. 2 (h) of the J&K JUVENILE JUSTICE ACT, 1997 says that Juvenile means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.#

* If a juvenile is found guilty under the Act, he/she would be kept in a reformatory school/ borstal jail only for maximum up to 3 years.



Indian Penal Code and JJ Act:

* The Indian Penal Code enacted and codified approximately 150 years before under Section 82 and 83 represents much better classification of children in accordance with their age in respect of the offence committed by them, wherein the child up to the age of 7 years is totally exempted from any criminal liability and in case of children between the age of 7 to 12 years, there is judicial discretion to judge as to the maturity level of the child in respect of the offence committed.

* Sec. 82 IPC: Act of a child under seven years of age.--Nothing is an offence which is done by a child under seven years of age.

* Sec. 83 IPC: Act of a child above seven and under twelve of immature understanding. -- Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion.

Controversies:

* All this said, it is now pertinent to mention the controversies surrounding the Act. The pitch grew louder after the Delhi Gang Rape in which the Juvenile was found to be most brutal of all the rapists. The public opinion was that he should be tried along with other accomplices. In the meantime, the Supreme Court issued notice to the Union government on a public interest litigation petition seeking a direction to amend the Juvenile Justice Act. The petition called for amending the Act to insert a provision whereby an exception is mentioned regarding the non-applicability of the Act, qua juvenility, depending upon the facts and circumstances of a particular case, irrespective of the age of the accused i.e. below 18 years.

* The petition was moved on the ground that since in the Act no parameter about the physical or mental maturity of a juvenile was mentioned, it gave licence 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 only on the basis of their age being less than 18 years and being covered under the Juvenile Justice (Care & Protection of Children) Act.

* Meanwhile the S.C of India decided to examine the constitutional validity of the JJ Act even when the Attorney General pleaded that the Justice J. S. Verma committee report refrained from lowering the age for making a classification for juvenile.

* Finally, the Supreme Court 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. While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of the large body of crime in the country.

* #The clamour for reducing the age of juveniles from 18 to 16 had a set-back for the civil society in Jammu & Kashmir which has been trying hard to convince the state government to increase the age of Juveniles from 16 to18. But once the S.C dismissed the petitions challenging the JJ Act, 2000 and upholding the constitutionality, the civil society in Jammu & Kashmir are again upping the ante against the state law.



International practice and Juvenile Justice:

* Several other countries such as the U.S. and the U.K., which are both signatories to the U.N. Convention, have also faced an increase in violent crimes by juveniles but, unlike India, they have taken action to amend their laws.

* In the U.K., persons under 18 are tried by a Youth Court which is a special type of magistrates court for those aged 10-18 years. However, for serious crimes like murder or rape, the case starts in Youth Court but is transferred to a Crown Court which is the same as a Sessions Court.

* Therefore, in both the U.S. and the U.K., juveniles who commit violent crimes such as rape are prosecuted in the same manner as adults.

* Even the U.N. Convention and the Beijing Rules do not prohibit subjecting children/juveniles to the regular criminal justice system under certain circumstances. The U.N. Convention does not prohibit prosecuting a child under 18 who has committed an offence under the regular penal laws.

* Unlike the U.N. Convention, the Beijing Rules do not fix 18 as the age of a juvenile. Instead, the Beijing Rules provide for rules applicable to persons between the age of 7 and 18.

* Therefore, Indias international legal obligations do not prohibit it from amending the JJ Act to provide that persons between the age of 16-18 who are accused of rape, kidnapping and abduction of women and girls will be exempted from the jurisdiction of the JJB and tried in the adult criminal justice system.



Conclusion:

* The JJ Act, 2000 is a welfare legislation and as such doesnt need to be changed into retributive legislation. But, the crime against the women, elderly and children are on rise, more notably by the juveniles, and therefore India must work on two fronts:

1. Set right the structural forms of the correctional homes and impart training to the staff of such homes as per international standards.

2. Amend the law to protect more vulnerable than the juveniles i.e., women, elderly and children from the brutal crimes like rape, murder, sodomy and kidnapping.



Mansoor Ahmad

Judging juvenile

Judging juvenile
Two year ago Amnesty International (Human Rights Organization) started a campaign for increasing the age of juvenile in Jammu and Kashmir from 16 to 18 years,to press upon the state to bring the Juvenile justice Act in consonance with the UN Convention on the rights of child because except in J&K, all over India the age of Juvenile is 18 Years. But after the heinous act of rape and murder of 23 yr old student, there arise a debate on the justice to the victim or to the Juvenile, as among the perpetrator was a Juvenile and was convicted and sentenced according to the Juvenile Act 2000. Unequivocally this act of savagery arose the national conscience, and a vocal and fortitude demand arises for a tough act against the juvenile also, even debate on the legality and desirability of the juvenile act itself has been generated .
Indias Underlying Principle
After Independence, The 1960 Children Act was enacted to tackle the repercussion on children with the advent of industrialization which resulted in an increasing child delinquency in large city specially petty crimes such as theft. This act for the first time in India, prohibited the imprisonment of children under any circumstances. It also provided for separate adjudicatory bodies that is Children court and welfare board to deal with delinquent and neglected children. In addition it added a three tier institution for the children namely a n observatory home for children on whom the proceeding is pending, special school for delinquent children and a children home for neglected children. But it introduced a gender specific determination of juvenile which is 16 for boys and 18 years for girls.
In 1986 Juvenile Justice act was enacted in conformity with other international guideline for the juvenile, that are United Nation Declaration of the Rights of the Child in 1959 and the 1985 United Nations standard Minimum Rules for the Administration of the Juvenile Justice (Beijing Rules).Albeit it took care the rights of the child but still has some lacunae. With India became a signatory of the 1989 Convention on the Rights of Child after ratifying it in 1992, the need for more uniform Juvenile act was felt. After the United Nations Guideline for the Administration of Juvenile Delinquency (Riyadh Guideline) ,and United Nations Rules for the Protection of Juvenile Deprived of their liberty (JDL Rules),the provision of CRC got amplified. India enacted the Juvenile Justice (Care & Protection of Children) Act 2000 later amended in 2006 is the current act which deals with the Juvenile offences.
Juvenile Debate
JJ act 2000 is a progressive legislation, which replaced the judicial process with a reformatory regime, favoring supervised probation or stay in observation home over imprisonment. With this, the aim is to reform the young offender rather than putting them behind bar which often work to fan the recidivist tendencies in them. This act has three important provision different from the other legislations that are: 1 The Juvenile Court is replaced by a three member Juvenile justice Board, secondly it introduced a uniform Juvenile age that is 18 years for both boys and girls and the third is the custodial sentence under section 15(1)(g) was to be limited to three years. The last two provision is contentious among the different section of the societies. And the buzz around its reform got bigger and have multitude voice with the recent crime engaging young offenders.
Following American model is being cited for going strict with the young offenders. But Indias crime statistics is different from that of America. With its open policy the number of brutal crime including children is staggering high in America, the rate of Juvenile offender is almost the half of the total crime rate, in some of the school shooting cases the juvenile age was under 16 years. So all these increasing number of crimes forces the American Congress to amend their Federal and state Juvenile law. In contrast in India, according the National Crime Record Bureau (NCRB ) data between 2001 and 2011 the Juvenile delinquency rate has ranged between 1.6 to 2.1 per cent of total crime, and of these only 5 to 8 per cent are violent crimes like murder and rape . Therefore the US model is hardly of any significant relevance for India. As we have totally different strata and social problems from that of America, which act to a larger extent for an upbringing a mental makeup for offences in conflict with the law.
With the shaken conscience after the Delhi rape case, people emotion poured for the justice to the departed soul. But the demand for a tough Juvenile Punishment need to be rationally balanced. As in a nation governed by the rule of law emotion should not over rule the rational behind the law and a balanced Justice for all.
There is the misconception that Juvenile involved in heinous crime are matured enough as like a adult, which is not exactly the case as pointed by the Brain science expert. MacArthur Foundations undertaken a scientific exploration of the adolescent brain systems, and established that any deviant behavior is a function of two distinct sets of brain systems, namely the socio emotional system and the cognitive control system that involve different region of the brain which mature along different timetables. Thus competence related abilities matured by 16 years, but the capacity relevant to the decision about criminal culpability continues to mature till young age. These findings are supported by brain science researcher Laurence Steinberg who argue in his paper published in Issues in science and technology( Spring 2012) thus : Adolescents should be viewed as inherently less responsible than adults and should be punished less harshly than adults ,even when the crime they are convicted of are identical .


Required Reform
So scientifically and socially it will be not fair to divert from the reformative approach towards the retributive approach. Instead the reform methods itself need a reform. We have to get rid of the complacent attitude that a mere stint in the remand home or correctional home will reform the Juvenile. This stereotype method needs a gradation as the atmosphere in many such facilities is not conducive for reformation, and in fact may toughen or entrench criminal propensities. Former Chairmen of Child Welfare committee, a statutory body, S Syed Ahmed said There is nothing wrong in the Juvenile act , if something need to be changed it is the functioning of the correctional homes run by the govt. A report in India Today shows the bleak poignant state of the remand homes, there are 815 remand homes with a capacity of 35000. However there are more than 1.7 million juvenile accused in India.Merely going by a differential process for juvenile offender is not enough. It is obvious that the social contract underlying a lenient regime require equal attention to be paid to the design and implementation of a rehabilitation process. Juvenile convict of petty crimes and of one convict of serious horrendous crime needs separate treatment in their counseling and reformation as the former may tend toward the latter offence if not guided properly . There is scope of more positive reform and rehabilitation in Juvenile as compared to adult convict subjected proper guidance.



Reference:
The Hindu
Sikander Khan