Aditi Nandanwar elucidates the Juvenile Justice Act 2000, and the subsequent amendments brought under the Juvenile Justice Amendment Bill of 2015. She also points out the loopholes in the Bill that need to be addressed, taking into account the socio – economic background of the juvenile etc.
India has had a long history of juvenile justice. The Indian government has always believed in reforming the child rather than penalising him. According to Dr Yug Mohit Chaudhary, who has spent his entire course of legal practice dealing with the juveniles in the Mumbai Central Prison and in the Observation Home, Dongri, Mumbai, “Juveniles whilst in jail behave like adults imitating the older prisoners, but once shifted to the observation home, within a few days the child in them comes to the fore, shouting and playing and fighting with their peers, doing all the things that a child is expected to do. They suddenly turn impish. They even look younger.”
The UN Convention on Rights for Children (CRC) was enacted in November 1994 and all countries except the USA and Somalia has signed this treaty. This agreement lays down the basic rules of life and education of children. It outlines the fundamental rights of children. This Act has thus, laid down some set rules and guidelines that are to be followed by all nations while dealing with juveniles or children in conflict with the law.
THE JUVENILE JUSTICE ACT, 2000
In the earlier times, different states had different legislations. Amongst these, the oldest one was the Madras Children Act, 1920. In the year 1986, the Supreme Court in the case of Sheela Barse v. Union of India recommended the Central Government to formulate a uniform legislation to look after the juvenile justice system in India and applied to all states. Hence, in the same year, the Juvenile Justice Act was passed which “provided for care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for the adjudication of certain matters related to the disposition of delinquent juveniles.” This Act was re-enacted with a few modifications in 2000 and came into effect in 2001.
Recently, after various grave and heinous offences committed by children across the country, the Government of India decided to amend this Act. The Amendment Bill was passed by the Lok Sabha in 2014 and by the Rajya Sabha in 2015.
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) AMENDMENT BILL 2015
There has been a lot of debate regarding the amendments brought by the Bill. The most important argument of these is whether it is in line with the UN CRC. India is one of the signatories of the CRC and is expected to follow the guidelines for the protection of children under this Agreement.
One of the major changes that the Bill has brought in the Act is to treat children between the ages of 16 and 18, in conflict with the law to be tried as adults if found involved in sufficiently grave or “heinous” offences by the Juvenile Justice Board. This Board is supposed to be comprised of a metropolitan magistrate or a judicial magistrate of the first class and two social workers, at least one of whom must be a woman. Heinous offence under the Bill is defined as “for which the minimum punishment under the Indian Penal Code (IPC) or any other law for the time being in force is imprisonment for seven years or more.”
This, however, does not completely violate the UN CRC. According to this Agreement, all the children under the age of 18 years are supposed to be given equal treatment. Article 37 of the CRC reads that “no one is allowed to punish children in a cruel or harmful way. Children who break the law should not be treated cruelly. They should not be put in prison with adults, should be able to keep in contact with their families, and should not be sentenced to death or life imprisonment without possibility of release”. However, in Article 40, the CRC also gives that “Children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their rights. Governments are required to set a minimum age below which children cannot be held criminally responsible and to provide minimum guarantees for the fairness and quick resolution of judicial or alternative proceedings”.
There are a lot of countries which support the view that children who commit heinous offences must be treated unequally; some of them include France, Germany, and the United Sates of America. The USA has in fact not signed the Agreement altogether.
In India, most of the juvenile offences are committed by children living in the poor households. These children are highly influenced by the society they live in and the activities going on around them. Treating such children as adults will further have a negative effect on them. Surely, putting them in jail with other adult convicts is not going to reform them into adjusting with the society; however, not penalising them wisely or not making them understand the gravity of their act will also lead to them not realising their mistake. A child’s mind is very easy to mould. Justice Krishna Iyer has called our jails the “universities of crime”. So, the probability of the child becoming a criminal rather than a transformed person living in the society is higher. Hence, the government, rather than taking an extremist step should think about the consequences of the legislations being drafted and enacted.
Not only are these children, who are sent to the prisons with adults influenced by them, they are also harassed in all senses. In the case of Sanjay Suri and Anr. V. Delhi Administration, Delhi and Anr., the Supreme Court dealt with the incarceration of children in Tihar Jail and resulted in a separated structure being erected to keep juveniles. The inquiry revealed that juvenile prisoners were sexually assaulted by adult prisoners. The Court said that –
“We are anxious to ensure that no child within the meaning of the Children’s Act is sent to jail because otherwise the whole object of the Children’s Act of protecting the child from bad influences would be defeated”.
Sentencing children in conflict with the law for however grave the offence is, in an adult jail would traumatise them for life. This will further increase their rage and anger in the wrong direction and will in no sense help in their rehabilitation. Not only does this violates the UN CRC, but also violates Article 21 of the Indian Constitution.
There is yet another problem with this amendment. As mentioned earlier, most of the children in conflict with the law come from small households and poor families. Hence, it becomes very difficult to determine the age of the child. There have been several cases where the courts have questioned the age of the child and whether they can be treated as a juvenile. It often happens that the family at the time of admitting their child in a school reduces or increases their age so as to meet the requisites for admission. The courts often rely upon the matriculate certificate issued by the schools which become an erroneous document to determine the age of the child. In the case of Raisul v. State of U.P., the court held that the age of the accused cannot be determined by the estimate of the courts.
The most common argument for treating children committing heinous offences between 16 and 18 years as adults is that “if they are capable enough to rape/commit any such heinous offence against a person, they are capable enough to be treated as adults.” However, this argument isn’t strong enough to counter the fact that the child still is at a stage in his life where he is not capable of understanding its repercussions. Agreed, that treating such children as any other petty juvenile offender who has committed theft or negligence or trespass isn’t fair but treating them as an adult isn’t fair either. Putting them in jails will also affect their lives while struggling with education and jobs.
The government should come up with better alternatives other than creating JJBs or treating juvenile offenders between 16 and 18 years as adults. They should legislate taking into consideration the psychology of children and the UN CRC which governs the children’s rights all around the world.
- Adenwalla, M. M. (2006). Child Protection and Juvenile Justice System for Juveniles in Conflict with Law. Mumbai: CHILDLINE India Foundation.
- UNICEF. (2007). General Comment No. 10 (2007). Committee on the rights of the Children. Geneva: United Nations.
- CHILDLINE 1098 SERVICE » Strategic Policy Initiative » JJ-Act » A Brief History Of Children Acts. (n.d.). Retrieved October 08, 2016. Access at – http://www.childlineindia.org.in/1098/b15jjact-history.htm
- The Convention on the Right for Children; Protection rights: keeping safe from harm. Retrieved October 08, 2016. Access at – http://www.unicef.org/crc/files/Protection_list.pdf