Juvenile Delinquency in India – A Legal Analysis – By Debalina Chatterjee

By | November 17, 2018
Juvenile offender

INTRODUCTION

With the fast pace of development in our country, we notice lots of changes appearing in the environment, society, our educational system and then the behaviour of our children.

Reports in various researches and surveys show an increase in the delinquent behaviour of the students aged 14-20 years. Children committing crimes in developed countries were kind of a common problem but recently remarkable crimes were seen on an increase in an Indian school and also children studying in reputed schools and belonging to good families have been involved in serious crimes like sexual abuse, attempt to murder, robbery and many more. The question arises here, what made these children act in this manner and if this is the cost we have to pay in return of the development in our country and rise in our living standards, then are we mentally and materialistically prepared to accept and fight with such conditions of our upcoming generation.

Crime is an inevitable and universal phenomenon which forms an inseparable part of every human society. Like adult criminal behaviour, behaviour among children and young persons have always existed in some form since time immemorial and in most societies it has evoked a different legal reaction. It is often said that it is easier to mould a child than to mend a man and that the child of today is the citizen of tomorrow. It is therefore essential that criminal traits in youngsters be timely curbed so that they do not become habitual offenders in their late life. It is with this end in view that the problem of juvenile delinquency is presently being tackled by most of the countries of the world on a priority basis.

The Juvenile Justice Act,1986 was enacted by the Indian Parliament to deal with socially-deviant children. This act was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. This Act was in turn repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 due to some drawbacks of the previous act.

INTERNATIONAL PERSPECTIVE

Long ago, countries basically had no concern for children and their rights. The beginning of the movement for the rights of children can be traced back to the mid 19th century with the publication of an article in June 1852 by Slagvolk titled “The Rights of the Children”.

Article 24 of the International Covenant on Civil and Political Rights (ICCPR) provides:

  • Every child shall have without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to measures of protection as are required by his status as a minor on the part of his family, society and the state.
  • Every child shall be registered immediately after birth and should have a name.
  • Every child has the right to acquire a nationality.

The principles in the Declaration of the Rights of the Child adopted by the UN General Assembly on 20 November 1959 state that: The child shall enjoy special protection, shall be given opportunities and facilities by law and by other means to enable him to develop physically, mentally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

On 20th November 1989, General Assembly of the United Nations adopted the Convention on the Rights of the Child. The Convention draws attention to the right to survival, right to protection, right to development, right to participation. According to Article 6 of this convention, state parties recognise that every child has the inherent right to life. State parties shall ensure to the maximum extent possible the survival and development of the child. Article 34 of this Convention state parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.

The juvenile delinquency problem involves millions of youth worldwide. While handling the problem of juvenile delinquency the English criminal justice administrators have preferred to deal with it outside the framework of criminal law.

The 1908 Children Act created a separate and distinct system of justice board and on the juvenile court, the 1993 Children & Young Persons Act formally required the court to take account of welfare consideration in all cases involving child offenders. A child under the age of  10 should not be arrested according to section 16 of the Children and Young  Person Act, if a juvenile is arrested and later he turns out to be below the age of ten years he should be released immediately according to section 34(2) of Police and Crime Evidence Act.

Serious youth violence, substance abuse problems among offenders, female delinquency and other issues are currently confronting the American juvenile justice system. The system that is currently operational in the United States was created under the 1974 Juvenile Justice & Delinquency Prevention Act. The Juvenile Justice & Delinquency Prevention Act called for a ‘deinstitutionalization’ of juvenile delinquents. The Act required that states holding youth with adult prisons for status offences remove them within a span of two years.

INDIAN PERSPECTIVE

To provide for the care, protection, treatment, development and rehabilitation of the neglected and delinquent juveniles the Juvenile Justice Act, 1986 was enacted by Parliament. Several provisions of the Constitution of India including article 15(3), clauses (e) and (f) of article 39, article 45 and 47 also impose on the state a primary responsibility of ensuring all the needs of children. Article  24 prohibits the employment of children in factories. Article 45 makes provision for early childhood care and education to children below the age of six years.

The Government of India has ratified the Convention on the Rights of the Child has found it expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (The Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments. To achieve this objective the Juvenile Justice (Care and Protection of Children ) Act 2000 came into force. At present, the Juvenile Justice (Care and Protection of Children) Act, 2015 is in force as it has repealed the Act of 2000. It provides to treat juveniles aged between 16 and 18 as adults if they are charged for commission of heinous crimes, a new legal position which has been criticized by the child rights activists.

The Juvenile Justice (Care and Protection of Children) Act, 2015 is a forward-looking and comprehensive enactment dealing with children in conflict with the law and those requiring care and protection. However, its laudable features have been overshadowed by one provision that states that children in the 16-18 age group will henceforth be tried as adults if they are accused of committing “heinous offences”. It is felt that mere enactment is not sufficient; rather there is a burning need for providing regular orientation training to those who are associated with the implementation of the enactment establishing the required coordination among them. To achieve this goal, a determined political will, as well as people’s participation, is very much required.

THEORETICAL EXPLANATIONS OF JUVENILE DELINQUENCY

There are many different theories that have contributed to the understanding of juvenile delinquency. These theories fall into three categories: biological, psychological and sociological theories. The sociological theories of juvenile delinquency include the strain theory, labelling theory and social control theory, these have proven to be most convincing.

STRAIN THEORY – Against the backdrop of the macrostate of anomie, Merton analysed the individual patterns and means to achieve society’s set goals during anomic conditions by identifying five types of adjustment. Merton refers to five these five types adjustment to anomic conditions as “modes of individual adaptation”: conformity, the most common mode, the acceptance of both cultural goals and institutionalized means; retreatism, a deviant alternative that rejects the goals and means of society; rebellion, an uncommon deviant alternative that rejects and actively substitutes the goals and means of society; ritualism, the means to legitimately guarantee that the cultural goals are respected even though the goals themselves are not realistic; and innovation, a form of acceptance of the goals but rejection of the means.

LABELLING THEORY – The labelling theory of juvenile delinquency deals with the effects of labels, stigmas on juvenile behaviour, youths who are labelled as “criminals” or “delinquents” they tend to act as the labels thus abandoning social norms.

SOCIAL CONTROL THEORY – This was devised by Travis Hirchi in the 1960’s. There are several different bonds that an individual must make that will determine whether or not he/she will commit criminal offences. The first one is an attachment, meaning that the socialisation of an individual depends on an individuals interest in another human being. The second one is a commitment meaning that a lack of commitment towards social laws can lead to delinquent behaviour. The third bond that must be made is involvement. Hirchi believed that an individual who participated in positive activities would not have the time to commit criminal acts. The fourth and final bond must be made is belief. When a person does not live in an area that holds the same values one tends to rebel and commit criminal acts.

CHILD IN CONFLICT WITH LAW A STUDY

According to section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, ‘juvenile’ or ‘child’ means a person who has not completed the eighteenth year of age.

According to section 2(l) of this act “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence.

The  Juvenile Justice (Care and Protection of Children) Act, 2015 has defined juvenile and child separately. According to section 2(12) of this act “child” means a person who has not completed eighteenth years of age. Section 2(35) states that “juvenile” means a child below the age of eighteenth years. The phrase “juvenile in conflict with law” has been replaced by the phrase “child in conflict with law” by the Act of 2015. According to section 2(13) “ child in conflict with law” means a child alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence.

In the Juvenile Justice (Care and Protection of Children) Act, 2000, chapter II dealt with juvenile in conflict law,  sections 4 to 28 dealt with all the provisions relating to juvenile justice board, the procedure for dealing with juvenile in conflict with the law and their rehabilitation. Whereas in the new act of 2015 juvenile justice board is in chapter II, the procedure relating to the child in conflict with law is under chapter IV and rehabilitation and social reintegration is under chapter-VII.

Section 10 of  the Juvenile Justice ( Care and Protection of Children) Act ,2000, states that as soon as a juvenile in conflict with law is apprehended by police, he shall be placed under the charge of the special juvenile pole unit of the designated of police officer who shall immediately report the matter to a member of the board. Section 21 of this act prohibited publication of name and other particulars of the juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.

Sections 23-26 deal with special offences like cruelty to a juvenile, employment of child for begging and specified punishments for these offences. Section 28 provided for alternative punishment in cases where an act or omission constituted an offence under this act as well as under any central or state Act.

Many new provisions has been added to the  Juvenile Justice ( Care and Protection of Children) Act, 2015 by substituting the old provisions like orders regarding a child not found to be in conflict with law, powers of children’s court, child attained age of 21 years and yet to complete prescribed term of stay in a place of safety. Procedure in relation to children in conflict with law is being dealt with under sections 10 to 26. Some of the relevant provisions of the act of 2015 regarding procedure in relation to children in conflict with the law are  as follows:

Section 10 of the   Juvenile Justice ( Care and Protection of Children ) Act,2015 read as follows-

“Apprehension of child alleged to be in conflict with law-(1) As soon as a child alleged to be in conflict with law is apprehended by the police such child will be placed under the charge of the special juvenile police unit or the designated child welfare police officer, who shall produce the child before the Board without any loss of time, but within a period of twenty-four hours of apprehending the child excluding the time necessary for the journey from the place where such child was apprehended :

Provided that in no case, a child alleged to be in conflict with the law shall be placed in a police lockup or lodged in a jail.

(2) The State Government shall make rules consistent with this Act-

(i) to provide for persons through whom ( including registered voluntary or non-governmental organisations) any child alleged to be in conflict with law may be produced before the board.

(ii) to provide for the manner in which the child alleged to be in conflict with law may be sent to an observation home or place of safety, as the case may be”.

Any person in whose charge a child in  conflict with law is placed, shall while the order is in force, have the responsibility of the said child, as if the said person was the child’s parents and responsible for the child’s maintenance:

Provided that the child shall continue in such person’s charge for the periods stated for the board, notwithstanding that the child is claimed by the parents or any other person except when the board is of the opinion that the parent or any other person is fit to exercise charge over such child. (Section 11)

Under section 12 of this Act when any person, who is apparently is child is alleged to have committed boilable or non bailable offence, is apprehended or detained by the police or appears or brought before a board, be released on bail with or without surety or placed under the supervision of a probation officer under the care of a fit person. section 13 makes it obligatory for the officer designated as child welfare police officer of the police station or the special juvenile police unit to inform their parents, guardians or privation officer where a child alleged to be in conflict with law is apprehended.

Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an enquiry in accordance with the provisions of this Act an may pass such orders in relation to such children as it deems feet. The inquiry shall be completed within a period of four months from the date of the first production of the child before the Board. A preliminary assessment in case of heinous offences shall be disposed of by the Board within a period of three months from the date of the first production of the child before the board.

According to section 15, in case of a heinous offence alleged have been committed by a child, who has completed or is above the age of 16 years, the Board shall conduct a preliminary assessment with regard to his mental and psychical capacity to commits such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence and may pass an order in accordance with provisions of subsection (3 of section 18). According to section 18 (3) of the Act, where the Board after preliminary assessment pass an order that there is a need for trial pf the said child as an adult, then the Board may order the transfer of the trial of the case to the children’s court having jurisdiction to try such offences.

Where a Board is satisfied on inquiry that the child brought before it has not committed any offence, then the Board shall pass an order to that effect. In accordance with section 18, where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then based on the nature of  offence the Board may allow the child to go home after advice or admonition or direct the child to participate in group counselling and similar activities or order the child to perform community service under the supervision of an organisation or institution, or order the child or parents or guardian of the child to pay fine. As per section 21, no child in conflict with the law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offences either under this Act or Indian Penal Code(1860).

In the case of a runaway child in conflict with law, any police officer may take charge of a child in conflict with the law who has run away from a special home or an observation home.

The institution which is responsible for dealing with a child in conflict with law is the Juvenile Justice Board. Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2015 directs that the State Government shall constitute for every district one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act. The functions and responsibilities of the Board shall include:

1) Ensuring the informed participation of the child and the parent or guardian, in every step of the process.

2) Ensuring that the child’s rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation.

3) Ensuring the availability of legal aid for the child through the legal services institutions.

4) Wherever necessary the Board shall provide an interpreter or translator having such qualification, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings.

5) Conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommendation for improvement in the quality of services to the District Child Protection Unit and the State Government and performs many other functions also.

For the rehabilitation and social reintegration of a child in conflict with the law, there are observation homes and special homes. According to this Act “ observation home” means an observation home established and maintained in every district or group of districts by a State Government, either by itself, or through a voluntary or non-governmental organisation, and is registered purposes specified in subsection (1) of section 47.

Observation home shall be registered under section 41 of the Act for the temporary reception, care and rehabilitation of any child alleged to be in conflict with the law, during the pendency of any inquiry under this Act.

According to section 2 (56) of this Act, “special home” means an institution established by a State Government or by a voluntary or non-governmental organisation, registered under section 48, for housing and providing rehabilitative services to children in conflict with law, who are found through inquiry, to have  committed an offence and sent to such institution by an order of the Board.

Other than Juvenile Justice Act, 2015, the Code of Criminal Procedure 1973 also has a provision relating to the jurisdiction in the case of juveniles under section 27 which states that any offence not punishable with death or imprisonment of life, committed by any person who at the date when he appears or is brought before the court is under the age of sixteen years, may be tried by the court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

JUDICIAL RESPONSES

1)The Supreme Court has always been sensitive and active to the problems and needs of juvenile offenders. The Constitution also mandates the court to interpret the provisions in such a way so as to provide relief and give individualised treatment acting more as parens patriae.

Regarding basic rights and the plight of juvenile offenders, P.N. Bhagwati and R.S. Pathak JJ, in Mumbai v. the State of U.P, held:

Juvenile Delinquency is by and large the product of social and economic maladjustment. Even if it is found that these juveniles have committed any offence, they cannot be allowed to be maltreated. They do not shed their fundamental rights when they enter the jail. Moreover, the objective of the punishment being reformative, we fail to see what social objective can be gained by sending them to jail where they come in contact with hardened criminals and lose whatever sensitivity they may have to finer and nobler sentiments.

In this case, many juvenile undertrials were kept in Kanpur Central Jail, where they were being sexually exploited by the adult prisoners, in spite of the fact that there was a children’s home in Kanpur. The court observed that no person under 16 years of age should be sent to jail, instead he must be detained in a children’s home or any other suitable place of safety, as the law is very concerned with ensuring that a juvenile does not come into contact with hardened criminals and his chances of reformation are not belied by contact with habitual offenders.

2) The Supreme Court in Sheela Barse (1) v. Union of India condemned and discouraged the detention of children below 16 years in jail, in a milestone decision. The court observed:

It is a matter of regret that despite statutory provisions and frequent exhortations by a social scientist, there are still a large number of children in different jails in the country…. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail …. On no account should the children be kept in jail and if a state government has not got sufficient accommodation in its remand homes or observation homes, the children should be released on bail instead of being subjected to incarceration in jail.

3) In another case in the series, Sheela Barse v. Children’s Aid Society, an appeal was made against the judgment and the order of the high court on the ground of thigh courts failure to consider several contentions. It was held there was a need for special training to child welfare officers (Probations Officers), superintendence of observation homes, judicial officers of juvenile course and works of the home. Children of the homes should be kept engaged in suitable occupations, buy should not be paid remuneration for their work. The State Government was directed to act in confirmative with statutory and constitutional obligations and to implement the directions of the high court and the Supreme Court.

4) Sheela Barse v. Union of India, the Supreme Court again declared the addition of non – criminal, mentally ill children and adults to jail, illegal and unconstitutional.

5) In Sanjay Suri v. Delhi Admn, the Supreme Court expressing concern over human rights of juvenile delinquents laid down some directions:

due care shall be taken to ensure that the juvenile delinquents are not assigned work in the same area where regular prisoners are made to work. Care should be taken to ensure that there is no scope of their meeting and having contacts…. that steps should be taken to shift the wardens at the end of every three years …. Such transfer will be helpful in restoring discipline in the jails.

6) Krishna Iyer J in Hiralal Mallick v. State of Bihar[9], with respect to the sentencing policy towards juvenile delinquents, observed, The family tie of the juvenile in jail must be kept alive.

7) In Ramdeo Chauhan v. State of Assam[10], it was held that whenever any juvenile delinquent accused of an offence, irrespective of the punishment imposable by law, is produced before a Magistrate or a court,such Magistrate or court, after it is brought to its notice or is observed by the Magistrate or the court itself that the accused produced before it was under the age of 16 years, shall refer the accused to juvenile courts , if the act is applicable in the States and the courts have been constituted, or otherwise refer the case to the court of the Chief Judicial Magistrate  who will deal with their matter in accordance with the provisions of law.

DRAWBACKS

The frightful incident of ‘ Nirbhaya Rape Case’ raised many debates and the prime issue was the involvement of the juvenile perpetrator, who was only six months short from becoming an adult. This attracts the law of Juvenile Justice ( Care and protection ) Act, 2000 and the culprit was sentenced by the court only for three-year confinement. Against this decision of Apex Court, several protests were made, which demanded amendment in the existing Juvenile Justice Law. The Ministry of Women and Child Development justified the introduction of the bill for several reasons. The prime two reasons of all were, first,  the Juvenile Justice Act, 2000 was facing implementation and procedural delays. Secondly, the National Crime Records Bureau (NCRB) Reports indicate an increase in the Juvenile Crime between the age group of 16-18 years( i.e. 1% in 2013 to 1.2% in 2013).

The Supreme Court in Salil Bali v. Union of India & another A.I.R 2013 S.C 3743 , dealt with the contention that it was necessary that provisions of Section 2(k) , 2 (l) and 15 of the Act, 2000 are to be reconsidered in the light of criminal offences being committed by person within 16 to 18 years of age , such as gang rape of a young woman inside a moving vehicle on 16th December , 2012 wherein along with others , a Juvenile who had attained age of 17 years , was being tried separately under provisions of Act, 2000.

According to H.V.S. Murthy, the former president of the Mysuru Bar Association, the New Juvenile Justice bill “ violates the very essence of the Juvenile Justice Act”. Secondly, it violates various Fundamental Rights. Third, this Act does not take consideration of other relevant factors like the social background and psychological issues. It has been well established by many neuroscientists that in adolescence period, the child faces tremendous psychological, hormonal, emotional and structural change in the human brain, which subjects the child to great vulnerability. Fourth, this Act can also open the floodgate of cases by angry parents who want to resist their children from getting into a love relationship.

SUGGESTIONS

Control of delinquency needs effective implementation of the Juvenile Justice Act, with full public awareness and proper orientation and training to professionals and law enforcement agencies. Application of UN Rules for juveniles deprived of their liberty (1990) and advocacy for various legal provisions provided for juveniles could help.

The following steps could be taken to minimize the problem of juvenile delinquency:

  1. A proper mechanism should be created to access the needs and requirements of the juveniles and it should be reviewed regularly.
  2. The approach of the agencies like police involved in the system may be a more reformative character rather than pure penal. The objective may be to reform the delinquents rather than just to punish them.
  3. The government should put more emphasis on useful and attractive beneficial long-term schemes for juveniles so that they feel motivated to the mainstream of society and regain their self-confidence, which is generally lost because of the callous attitude of the society.
  4. Through the economic sector, development programmes with income generation opportunities, professional training, and vocational education are the areas which can help and prevent youth involvement in delinquent activities.
  5. It is widely believed that early phase intervention represents the best approach in preventing juvenile delinquency. Prevention requires individual, group and organizational efforts aimed at keeping adolescents away from breaking the laws. Involvement of NGOs and local community can also help in preventing juvenile delinquency.
  6. Single parents and parents whose children belong to a broken home should take much care of their children from their initial stage of development because they are more likely to become delinquent.

CONCLUSION

The profile of children in India reveals that a majority of them are living in conditions of want, deprived of basic survival subsistence, and developmental opportunities. High rates of child mortality, school dropouts, child labour, handicapped children, and the problem of juvenile delinquency are indicators of the need for intervention by the state.


By – Debalina Chatterjee

(Jogesh Chandra Chaudhuri Law College)


Sources:

1. Mamta Rao, “Law Relating to Women and Children”, Eastern Book Company, 2012, P.530

2. Available at: http://www.legalservicesindia.com/ article/ article/ juvenile delinquency in india-u-k-and-u-s-a-2006/html.

3. Available at  https://is.muni.cz/el/1423/jaro2015/SPP209/um/Zembrovski_2011_Sociological_Theories_of_Crime_pdf

4. (1982) 1 SCC 545: 1982 SCC (Cri) 269.

5. (1986) 3 SCC 596: 1986 SCC (Cri) 337

6. (1987) 3 SCC 50: 1987 SCC (Cri) 458

7. (1993) 4 SCC 204: 1993 SCC (Cri) 1142

8. (1988) Supp SCC 160: 1988 SCC (Cri) 248

9. (1977) 4SCC 44: 1977 SCC (Cri) 538.

10. (2001) 5 SCC 714: 2001 SCC (Cri) 915.

11. TWO HUNDRED the Juvenile Justice (Care and Protection of Children) PARLIAMENT OF INDIA RAJYA SABHA TWO HUNDRED SIXTY-FOURTH REPORT Juvenile Justice (Care and Protection of Children) Bill, 2014 ( PARLIAMENT OF INDIA RAJYA SABHA).

12. Apoorva Shankar, The juvenile justice bil, 2015: All you need to know, The official blogsite of PRS Legislative Research (2015), http://www.prsindia.org/theprsblog/?p=3610


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