Rights of Juvenile in India

By Ankit Kaushik

INTRODUCTION

Children are the precious asset of our country and it is the responsibility of everyone to ensure that they have a safe environment to live in. But the last decade has seen a huge leap in the rate of Juvenile crime in a developing country like India. Today, Juvenile crime is like a disease to our society.
The criminal justice system of India treats everyone differently for different crimes and also gives some exceptions and leniency to some classes of people. These exceptions are mentioned in the Indian Penal Code. “Juvenile” has been defined differently in different Acts, but as per the latest Act i.e. The Juvenile Justice (Care and Protection) Act, juveniles are those who have not attained the age of 18 years. There is a juvenile justice system that treats juveniles differently than adults, because our society believes that former is different from the latter, both in terms of responsibility and potential for rehabilitation.

Although there is concern with public safety and holding juvenile offenders accountable for their actions, there is greater emphasis on rehabilitation than on punishment in the juvenile justice system. “Rehabilitation” means to restore someone to a useful life through therapy and education. For example, a juvenile who commits an offense may be required to participate in counseling or a program to help him make better decisions in the future. But in the light of the present scenario does the “rehabilitation” really lead to a reformation in the child? In spite of the presence of the welfare laws for juveniles, there is a rise in the number of Juvenile offenders across the country. Juveniles are sent to the rehabilitation centers in order to make their future better. For this purpose, rehabilitation centers are made so that special care and protection can be given to these children and it is assumed that they will return back as a reformed person. So, a pertinent question arises here is that whether rehabilitation centre are playing their role at their best or not?

In this paper, the focus has been done on the functioning of the rehabilitation centre and rights of the juvenile. This paper starts with a historical background of legislation made on juveniles and covers all the current legislations along with the role of NGOs and the current scenario of juveniles in India and ends with the result of research.

HISTORICAL BACKGROUND

1850 – The Apprentices Act,
It was the first law which required that children between the ages of 10-18 convicted in Courts to be provided vocational training as part of their rehabilitation process

1897 – Reformatory school Act,
Under the Act, the Court could detain delinquents in a reformatory school for a period of two to seven years but after they had attained the age of eighteen years, the Court would not keep them in such institutions.

1920 – Madras Children Act,
The Juvenile Court philosophy was first introduced in the Madras Children Act 1920, (followed by the Bengal Children Act (1922) and the Bombay Children Act (1924), thereafter by many other Children Acts).

1923 – Amendment in Criminal Procedure Code
The Criminal procedure code (CrPC) was amended to provide a special procedure for adjudicating criminal cases concerning child offenders.

1960 – The Children Act,
The children act was passed to function as model legislation and for use in union territories. This Act established separate Child Welfare Boards to handle cases relating to neglected children. It also created the position of a probation officer who could “advise and assist neglected or delinquent children.”[5] In addition, it established separate Children’s Courts for cases related to delinquent juveniles, thereby separating the judicial process for delinquent and neglected children.

1986 – The Juvenile Justice Act
The Juvenile Justice Act, 1986, was enacted to provide 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.
It repealed all other Children Acts and provided for a uniform legal framework for the juvenile justice system throughout the country.

2000 – The Juvenile justice (care and protection) Act,
The Juvenile Justice (Care and Protection) Act was re-enacted with some modifications. It came into effect in April

2001- The ‘Central Rules’ were notified in June 2001. The Juvenile Justice (Care and Protection) Act (2000) has ensured that irrespective of religion, children in need of care and protection are provided the benefits of a separate judicial process. However, in addition to the Juvenile Justice (Care and Protection) Act (2000), Hindu and Muslim personal laws also govern children in India.

REFORMATIONS IN ACT

The Government of India enacted the Juvenile Justice Act in 1986. In 1989, the General Assembly of the United Nations adopted the Convention on the Rights of a Child. India ratified the UNCRC in 1992. The convention outlines the right of the child to reintegrate into the society without judicial proceedings, wherever avoidable. Hence, the Government, to fulfill the standards of the convention, felt a need to re-write the law. Hence in 2000, the old law was replaced by the Juvenile Justice (Care and Protection of Children) Act. There is a wide difference in both the acts which has been explained below:-

JJA1986____________________

DEFINITION:

Sec 2(h): Boy under 16; Girl under 18

BAILABLE AND NON-BAILABLE OFFENCES:

Sec 18 (1) Bail to be given as a matter of right. Bail not to be given if there are reasonable grounds for believing that release is likely to bring him into association with any known criminal or expose him to moral or that his release would defeat the ends of his justice.

INFORMATION TO BE PROVIDED BY THE POLICE:

Sec 19(a) Information by the Police Officer-in-charge on arrest to be provided to the parent /guardian and probation officer.

TIME FOR INQUIRY:

Sec 27: To be completed from months from the date of commencement, unless for special reasons which are to be given in writing.

Institutions Under The Acts

Delinquent Children: Juvenile Court, Special home.

Neglected Juveniles: Juvenile home for Neglected Juvenile.

Role Of NGO’s

Sec. 9,10,11,12: Fit institutions status may be granted to non-governmental Organizations who provide services required.

JJ (CPC) Act 2000_______________
DEFINITION:

Sec 2 (k): Person who has not attained
18 years of age.

BAILABLE AND NON-BAILABLE OFFENCES:

Sec 12 (1) same as Sec 18(1) of JJA 1986.

INFORMATION TO BE PROVIDED BY THE POLICE:

Sec 10: as soon as CICWL is apprehended, he shall be placed under the charge of SJPU or the DPO who shall immediately a matter to the member of the board.
Sec 13: Same as sec 19(a) of the JJA 1986.

TIME FOR INQUIRY:

Sec 14: (CICWL) 4 months from date of commencement, Rest same as sec 27 of JJA 1986.

Sec 33.2: (CINOCAP) Inquiry should be completed
Within four months of the receipt of the order or with in such shorter period as may be fixed by the committee.

Institutions Under The Acts

CICWL: Observation home and reception unit in the observation home.
CINOCAP: Shelter Homes Sec (37), Children Home sec(34).

Role Of NGO’s

Sec.8,9,34,37,44: Voluntary organizations may be Certified to manage homes under the act.
Sec.45: The state government may make rules to ensure effective linkages between various governmental, non-governmental, corporate and
Other community agencies for facilitating the rehabilitation and social integration of the child.

ROLE OF SOCIAL WORKERS AND NGOs

The primary role of NGO is to offer a framework of operation in the child welfare sector, ensuring every child if ever enter the system, is treated with care and compassion with all its rights acknowledged and protected. Though since the 1980s there has been a shift from welfare to the justice approach, social workers continue to play a crucial role in the treatment of juvenile offenders.
As earlier mentioned the JJB consists of a metropolitan magistrate or a judicial magistrate of the first class and two social workers. The social workers should have “been actively involved in health, education, or welfare activities pertaining to children for at least seven years”. The Model Rules has prescribed the criterion necessary for appointment as a social worker on the board, “the social worker to be appointed as a member of the board shall be a person not less than 35 years of age, who has a postgraduate degree in social work, health, education, psychology, child development or any other social science discipline and has been actively involved and engaged in planning, implementing and administering measures relating to child welfare for at least seven years.

The two social workers are to “be appointed by the state government on the recommendation of the selection committee”. The selection committee has its members, amongst others, “two representatives of reputed non-governmental organizations working in the area of child welfare”. The social worker members on the JJB must be assertive, and not get overwhelmed by the magistrate, as they have an important role to play in the rehabilitation of the juvenile.

Under Section 5(4) of JJA 2000, the social worker members can overrule the magistrate. They should familiarize themselves with the provisions of juvenile legislation as also with the papers and proceeding of each case pending before the JJB to ensure that justice is done to the juvenile. It is for the social worker members to gain the confidence of the juvenile, whilst at the same time to portray to him that though his best interest is on their minds, he is going to be dealt with sternly. It is under the orders of the JJB that the juvenile is placed in an institution. Hence, it is imperative that the JJB, especially the social worker members, regularly visit the observation homes, the special homes and other institutions where juveniles are referred to ensure that the objective of reformation and rehabilitation is satisfied.
The 1986 Act also recognized the importance of social workers whilst dispensing justice to juveniles. The Juvenile Court was to be assisted by a panel of two honorary social workers possessing such qualifications as may be prescribed, of whom at least one shall be a woman, and such panel shall be appointed by the state government.

The 2000 Act elevated the social worker to being part of the bench that constitutes the JJB, instead of merely assisting the magistrate. Despite, social work intervention playing an important role, the same is always voiced alongside words such as “honorary”, “voluntary”, “charitable”. Not only under the 1986 Act were “two honorary social workers” assisting the Juvenile Court, but a similar trend continues under the 2000 Act. The social worker members on the JJB are to be paid “travel and sitting allowances” as may be fixed by the state government. It is high time that the government recognizes that social workers are professionals, playing a crucial role, and the importance of whose work requires to be accepted and appreciated.
Pos are qualified social workers. The Superintendents of child-care institutions are also academically trained social workers, as is also the other senior staff employed in the homes. Pos and the staff attached to institutions have several critical parts to play in the lives of juveniles. Their role has a great significance as delinquents often indicate that their families are not concerned about their welfare.

Firstly, that of a friend so that the child feels comfortable to speak freely with him. Secondly, that of an advisor and guide so that the child has the confidence to approach him when in need. Thirdly, that of a reformer so that the child understands that what he did was wrong. Fourthly, that of a healer who helps the child accomplish his full potential, and directs him towards his future. The setting-up of a child guidance clinic in an institution is vital as repeated sessions with the juveniles are crucial to bringing about a change in his attitude. It is a qualified and trained child psychologist or psychotherapist in a child guidance clinic who can bring about positive change in the juvenile’s future.
NGOs too play a pivotal role. They under JJA 2000, can seek a charge of juveniles pending or on completion of inquiry in the capacity of a “fit person” or “fit institution”. The 2000 Act has empowered voluntary organizations under an agreement with state governments to establish and maintain observation homes and special homes. Moreover, voluntary organizations need to provide services within institutions established and maintained by the state government, such as counseling, imparting education and vocational training etc. to secure the juvenile his comprehensive rehabilitation.

CURRENT SCENARIO

In spite of the presence of careful child Acts, the last decade has seen a huge leap in the rate of juvenile offenders in India.
One of the six men involved in the Nirbhaya gang-rape case (in Delhi) was a juvenile at the time of committing the crime. The juvenile will walk free after three years at a reformatory home as per the Juvenile Justice Act. Members of the All India Mahila Sanskritik Sangathan staged a demonstration in the city to protest against an order passed by the JJB in New Delhi directing a 17-year old convict in the gang-rape of a 23-year old physiotherapy student to undergo three years, the maximum tenure prescribed under the JJ Act, in a Correctional Home. The protestors called for more stringent punishment to the offender. There were demands from some in India to reduce the upper age limit for juveniles from 18 to 16, in light of the Delhi gangrape case. However, child rights activists said that changing this section of the law in response to a public outcry over a few cases would be a regressive step. In July, the Supreme Court dismissed eight petitions brought by the public asking the Court to rule that crimes of rape and murder committed by juveniles should be punished under adult laws and that the upper age limit for juveniles be lowered to 16. But a subsequent petition, currently being considered by the Supreme Court, asks judges to consider the mental maturity of the juvenile delinquents instead of his or her age in cases where a young person is accused of involvement in a particularly serious crime. Juvenility is mainly a state of mind, and not only a state of body.
Even as the nation pushes and the government debates lowering the age limit in juvenile crimes in the light of the Delhi gang rape, National Crime Records Bureau (NCRB) data shows that most juvenile crimes are committed by those in the age group of 16-18 years. Notably, the minor accused in the Delhi gang rape, who was allegedly the most brutal among the six accused, is 17 and a half years old

The NCRB data also shows rapes committed by juveniles have jumped by 188%. The only categories of crimes involving juveniles for which growth figures are higher are theft and robbery which recorded a growth rate of around 200% and abduction of women which recorded an exponential rise of 660%.

In 2011 the growth in rape by juveniles (34%) over 2010 was again among the highest. Other growth figures that were higher than this included dowry deaths (63.5%) and abduction of women (53.5%) – both crimes against women. According to NCRB data for 2011, 64% of all juvenile criminals fall in the age group of 16-18. In 2011, 33,887 juveniles were arrested for 25,178 instances of crime. Of these, 1,211 juveniles fell in the 7-12 years age group, 11,019 fell in the 12-16 years age group while 21,657 fell in the 16-18 years age group. In Delhi itself, of the 925 boys arrested for juvenile crimes in 2011, 567 were in the 16-18 years age group.

Again, while the debate on the issue of revisiting age limit in juvenile crimes has focused on the juvenile justice act being a reformatory tool, the NCRB data is not very encouraging, especially in case of Delhi. Close to 22%, out of all juvenile criminals in Delhi, were repetitive offenders in contrast to the national average of 11.5%. Sources say even this data gives a very conservative figure as only those convicted earlier are called repetitive offenders. Also, those who have turned adults and continued in crime are not included. The grim picture this paints is a reflection of the failure of remand homes to reform juveniles.

Even the argument that broken families and children without parents lead to more juveniles taking to crime falls flat if the NCRB data is any indication. It shows that in 2011, only 5.7% of all juveniles arrested were found to be homeless. The rest either stayed with their parents (81.3%) or relatives.

However, socio-economic conditions have been a factor. A large chunk of the offenders come from extremely poor families making for close to 57% of all juvenile criminals. Lack of education is another important factor with over 55% juvenile criminals being with illiterate or limited to primary education.

Across the country, Madhya Pradesh, Maharashtra, Chhattisgarh, Andhra Pradesh, Rajasthan, and Gujarat accounted for close to 70% of all juvenile crimes registered in 2011. Madhya Pradesh led the pack in rape cases with 271 cases, followed UP (146) and Maharashtra (125). Delhi recorded 47 cases of rapes by juveniles. All together make for over 50% of all rape cases by juveniles.
It is widely proved that early-phase intervention represents the best approach to preventing juvenile delinquency. In order to prevent juvenile crimes, we have to deal not only with maladjusted children whose difficulties bring them before Law, but also with those who while not violating laws are disturbing others in school and other places. First of all, we should identify such juveniles and give them treatment. Prevention requires individual, group, organizational efforts that aim at keeping juveniles from breaking the law.

CONCLUSION

From the above discussion, we can say that serious crimes like rape and murder also go unpunished with the offender wearing the grab of juvenility. Juvenile crimes cannot be stopped only through the proper implementation and amendments of the Juvenile Justice Act. In order to reform the juvenile in conflict with Law, the juvenile system as a whole needs to be reformed first. The ramshackle conditions of observation homes and juvenile justice boards need to be addressed immediately. The nation must strike to provide education, health care, sanitation and housing to every child. Apart from multiple laws governing children, there exist many other problems at the grassroots level. Government-sponsored children’s homes are often unable to accommodate neglected children. Children are sometimes even kept in jail. Thus, there is a problem in the execution of laws pertaining to children and the maintenance of children’s homes due to both a lack of awareness of child rights and India’s burgeoning child population.

Juvenile crimes cannot be stopped only through the proper implementation and amendments of the Juvenile Justice Act. It is vital to make aware of civil society about this disease that exists in our sick society. Juveniles involved in crimes are not criminals, in fact, they are victims of society. Juvenile delinquency can be stopped at an early stage, provided special care is taken both at home and in school. Parents and teachers play a significant role in nurturing the mind of a child. Instead of labeling them as “criminals” or “delinquents,” steps need to be taken to give them a scope of rectification and it would be better if the errors in their lives (involving social and psychological) are brought to their notice. The problem of child crime like many other social evils is linked up with the imperfections and maladjustment of our society. The idea is gradually gaining wider acceptance that juvenile delinquent needs the sympathy and understanding of our society and not the heavy hand of the law.

Formatted on February 13th, 2019.

One Reply to “Rights of Juvenile in India”

Leave a Reply

Your email address will not be published. Required fields are marked *