Write a note on ‘Juvenile Justice System in India’ with special

reference to the Juvenile Justice (Care and Protection of Children) Act,

2015.

INTRODUCTION

Juvenile justice is a system of law that is intended to protect and promote the human rights of
all young people. It is a branch of law that deals with minor / under-aged persons who have
been accused of offences or who are neglected or abandoned by their parents / guardians. It
is more concerned with the rehabilitation of its charges than is adult criminal justice. In the
context of juveniles accused of offences, termed as juveniles in conflict with the law,
international standards emphasize the importance of prevention as well as rehabilitation.
International standards recognize “the right of every child alleged as, accused of, or
recognized as having infringed the penal law to be treated in a manner consistent with the
promotion of the child‟s sense of dignity and worth.”
Juvenile justice policy in India is largely governed by the constitutional mandate given under
Article 15 that guarantees special attention to children through necessary and special laws
and policies that safeguard their rights.3 The policy is also founded on the constitutional
guarantees such as the right to equality, protection of life and personal liberty and the right
against exploitation (enshrined in Articles 14, 15, 16, 21, 23 and 24). The Indian
Constitution emphasizes on the duty of the State to prevent exploitation of children, and to
promote children‟s welfare.

WHO IS A JUVENILE?
A Juvenile can be defined as a child who has not attained a certain age, at which, like an
adult, under the law of the land, can be held liable for his criminal acts. The term juvenile
justice emerged from the Latin word „juvenis‟, which means „Young‟, hence a juvenile
justice system is one that is specially established for the young. As per the Juvenile Justice
(Care and Protection of Children) Act 2015, the term „juvenile‟ refers to a child below the
age of 18 years.4 The 2015 Act deals with two kinds of children – child in conflict with the
law, defined as a child who has alleged or found to have committed an offence and who has
not completed eighteen years of age on the date of commission of the offence;5 and a child in
need of care and protection – which includes many situations where children are abused,
exploited, neglected or inflicted violence upon, without being cared for by their parent /
guardian.

WHAT IS JUVENILE DELINQUENCY?

Juvenile delinquents are those who have not attained the age of adulthood as per the law of
the land, and have yet, acted in a manner that is prohibited by law. Such prohibited
behaviour largely consists of acts that would be termed as offences under criminal law when
committed by adults. Since the child is a part of society, the social context around him / her is
bound to have an effect on the child‟s attitude and behavior. Poverty, unemployment,
exposure to and experience of violence, abuse, inequalities and changing values are bound to
impact children and their behavior. There is a complex mix of social, economic and human
factors that
contribute to juvenile delinquency. Risk factors contributing to juvenile delinquency may be
categorized as individual risk, family risk, mental health risk and substance abuse risk.7
Individual risk factors are those factors pertaining to the juvenile as an individual, including
his / her physical, mental and emotional self. Family risk factors are those factors pertaining
to parents and other family members who are responsible for the upbringing of the juvenile.
They include upbringing by relatives (in the absence of parents) who may not have emotional
attachment towards or provide proper attention to the needs of the juvenile. Mental health
risk factors are those factors which are precursors of certain mental health conditions, that
tend to be displayed through juvenile delinquent behavior. Substance abuse risk factors are
those factors pertaining to access to and abuse of drugs and other forms of illegal substances.
Matrix 1 below further illustrates various risks and causative factors for juvenile delinquency.

Juvenile delinquency and international framework

Juvenile delinquency has received major attention at the international level to cater the need
for establishing a proper Juvenile Justice Framework which would work as a model for the
countries to constitute and run their Juvenile Justice System to deal with Juvenile
delinquency and child protection. Several International instruments have been developed to
cope with juvenile-related matters. In 1985, the General Assembly by resolution adopted
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The
Beijing Rules, 1985). In 1990, Riyadh Guidelines, i.e United Nations Guidelines for the
Prevention of Juvenile Delinquency, 1990 laid down the guidelines for the protection of the
young offenders and also listed the preventive measures to be taken. The Beijing Rules are
not binding on the States as such however many of its principles have been incorporated into
an international treaty, Convention on the Rights of Child (CRC), 1989, which aims to
protect the human rights of the children in order to protect their interests. The prime concern
of these guidelines is to socialize and integrate the child through the active support of the
family and group of common interest.

JUVENILE JUSTICE SYSTEM IN INDIA

Rights under Constitution

The Constitution of India sets out the rights and privileges of the citizens of the country. It
accommodates a few arrangements to guarantee the welfare of the children. It imposes duty
on state to protect and uphold the basic human rights of the people especially of the children
and directs the State to maintain the conceivable outcomes for their welfare and development
in a free healthy environment. Article 15 (3), Article 21, Article 39 clause (e), (f), Article 45,
47 and 51- A conjunctively works to ensure the welfare of the children and to build their
capacity to remake their lives.
Juveniles and their liability under criminal law
The term "juvenile justice" in the Indian context is just not limited to the law governing
juveniles committing offences but also includes their rehabilitation differentiating it from the
traditional criminal justice system that works on the philosophy of repression and retribution.
The law gives opportunity for corrective behaviour and rehabilitation considering that most
of the children who commit criminal offenses are the ones who have been exposed to socially
and ethically inappropriate environments and as an end result fall prey to deviances. The
Indian Penal Code, 1860, section 82, clearly demarcates the age, till which, a child is
considered juvenile and is exempted from the liability that falls under the head of doli
incapax. The culpability of a child is perceived on the basis of the understanding of the child
who is above 7 years of age and below 12 years of age. As per criminal law, a person can be
treated as a criminal/offender when there is a clear case of a guilty mind, implying that a
person is able to form a mensrea (mala fide intention) and that intention is executed with
actusrea, an overt act. These two requisites are required to form a liability for any person.
This demarcation is apparently based on the belief that children cannot be treated as criminals
as their faculties are not fully developed and so they are not able to form any intention that
would further result in any felony. A child is unable to differentiate between right and wrong
and this is what led to the adoption of a separate system to deal with juvenile crimes in India
with special focus on reformation and correction rather than punishment. The children below
18 years should not therefore be subjects of adult Criminal Justice System but should be
given counselling, proper advice and opportunity for reformation through community
services.

Legislative framework
The journey of Juvenile Justice System is marked with several milestones in India with
various laws passed and amended from time to time to ensure protection, development and
welfare of the children. A brief trail of specific legislations passed in India for juveniles is as
follows:-

The British introduced The Apprentices Act, 1850, to address petty offences among poor
children and orphans under 15. The Reformatory Schools Act, 1897, established reformatory
schools for youthful offenders. The Indian Parliament enacted The Children Act, 1960, after
independence. The All-India Jail Committee's recommendation in 1919-1920 led to the
formation of Children Acts in 1920 in Madras, Bombay, and Bengal. The landmark case of
Sheela Barse in 1986 paved the way for uniform legislation for juveniles in India, as
recognized by the Supreme Court.
The Juvenile Justice Act, 1986 was a uniform legislation in India to protect children's rights
and privileges. It was repealed in 2000 to align with the Convention on the Rights of the
Child (CRC) and the Juvenile Justice (Care and Protection of Children) Act, 2000, which
mandated a uniform age of 18 for both boys and girls. The Act was amended in 2011 to
include provisions for children with diseases like TB, leprosy, and mental disabilities. In
2016, the Juvenile Justice (Care and Protection of Children) Act, 2015, came into force to
address exceptional cases of brutality committed by 17-year-olds, treating them as criminals
and allowing them to be tried according to the law.
Overview of Juvenile Justice (Care and Protection of Children) Act (JJ Act), 2015
The Act follows child- benevolent approach in dealing with the matters related to child and
promotes application of certain principles laid down under section 3 of the JJ Act that are
fundamental and presumes innocence of child to be treated without any discrimination with
equal dignity and rights; believes in principles of participation, the best interest of the child,
privacy and confidentiality by all mean to the child, non-waiver of the fundamental rights of
the child and focuses on family responsibility towards child that may be served through
proper mechanism provided in the act. It aims to provide proper care, protection,
development and social re-integration: repatriation and restoration to the children in ‘need of
care and protection’ and also to children who are in ‘conflict with law’. It lays down
diversion principle and mandate to follow the principle of natural justice. However, one of
the focal objectives of the Act is also to set deterrent norms for the juvenile wrongdoers and
to protect the rights of the victims as well and ensure that they too receive justice.
Child in need of care and protection
The JJ Act 2015 tries to ensure welfare of children in all possible manners. In terms of
section 2 (14),the term ‘child in need of care and protection’ refers to a child
who does not
have a home or any place to live; is without any ostensible means of subsistence; is in a
destitute plight, working in miserable conditions in defiance of labour laws; or is suffering
from neglect, exploitation and abuse. The term “child in need of care and
protection” firstly
found mention in Juvenile Justice Act 2000 replacing the term “neglected
children”. The
purpose of this replacement was to minimise the negative connotation that gets associated
with such children and maximize the achievement of their rights. The Child Welfare
Committee is vested with powers to deal with such cases and pass orders in matters related to
child in need of care and protection.
Child in Conflict with Law
Section 2 (12) of the JJ Act defines “child” as a person who has not completed 18 years of
age and also sets to defines “Child in Conflict with Law” to mean, a person who is alleged
and found to have committed a crime and who is below 18 years of age at the time when
offence is said to be committed (Section 2 (13) of JJ Act). The present juvenile Act has also
included some new definitions such as abandoned, surrendered, orphaned children.
Age determination of the child
The JJ Act 2015 is applicable or not depends upon the age of child on the date when the said
offence is alleged to be committed. The Board will record the observation about the age of
the child and may proceed with further course of action. On the contrary, if the Board is
suspicious about the age of the child, it will follow the process of age determination by
seeking evidence as to age of the child as provided under the Act. For this purpose, the issue
of age can be decided on the basis of the date of birth certificate (DOB) given by the school
to child or the certificate of matriculation or equivalent issued to the child by the concerned
examination Board and where no such above said record is available, the birth certificate
given by a corporation or a birth certificate by municipal authority or a birth certificate by
panchayat, as the case may be, can be relied upon. However in the absence of the
abovementioned
documents, age shall be determined by an ossification test or any other latest
medical age determination test as specified to be conducted within 15 days of the orders of
the Committee or the Juvenile Justice Board (section 94 JJ Act).
Role of Juvenile Justice Board, children’s court and child welfare committees:
The Act provides for the establishment of the Juvenile Justice Board, children’s court and
Child Welfare Committee to conduct inquiry and deal with all issues related to children. All
cases reported to be committed by a child below 18 years will have to be reported to the
Juvenile Justice Board in the first instance. A person alleged to have committed a crime can
claim that he/she was a child at the time of the occurrence of the offence at any point or stage
of the case proceeding in front of the court, as mandated by the JJ Act 2015. The claim can be
raised even at the time when the case has been disposed off and the person ceases to be a
child. Such claim can be put in front of the Supreme Court for the first time even if it has not
been raised in the front of the High Court and Trial Court.
The Juvenile Justice Board has jurisdiction to take cognizance of all offences committed by
children below the age of 18 years whether they are petty, serious or heinous crimes. The
cases of petty offences are to be dealt by the Juvenile Justice Board through summary
proceedings however in the cases of serious offences committed by the child under the age of
eighteen years and heinous offences committed by the child below the age of sixteen years,
the Juvenile Justice Board will conduct appropriate inquiry and trial will be as in cases of
summon as per procedure provided under the Criminal Procedure Code, 1973. In those cases
where 16 to 18 years old children are apprehended for commission of any offence which is
considered heinous, a preliminary assessment will have to take place by the Board with the
help of social experts in child related issues and psychologists (section 15 JJ Act). The
assessments will be conducted to know the mental and physical capacity of the child to
understand the consequences and circumstances in which the child allegedly committed such
a heinous offence. On the basis of the assessment, the Board will decide to deal with the
alleged child as a child or as an adult. It can also transfer the case to “children’s
court”
defined as constituted under the Commissions for the Protection of Child Rights Act, 2005 or
a special court under the Protection of Children from Sexual Offences Act, 2012. In areas
where such courts have not been designated, the Session Court has jurisdiction to try the
offenders. [(Section 2(2), JJ Act].
Once the Juvenile Justice Board completes its preliminary assessment and decides to transfer
the case to the Children’s Court, it is up to the Children’s Court to decide
and conduct the
trial of the alleged child as an adult. If it deems fit to try the case of the child as an adult
person it has to pass the appropriate order taking in to account child’s special need
following
child friendly and fair approach as per provisions of section 19 of the JJ Act. However, if it
finds contrary, in such situation it may hold inquiry as a Board and pass orders according to
section 18 of the JJ Act. For the purpose of the period of stay, the court will send the child to
the place of safety or observation home till he attains 21 years of age. As per section 20 Of JJ
Act, in case the child reaches the age of 21 years and till then his/her prescribed term is not
completed, the Children’s Court will conduct an assessment to know whether
the child has
been reformed or not. If the Children’s Court finds that the child can be socially
reintegrated
as a good member of society, the child can be released with some conditions as the Court
deems fit, but if the Court finds that the child is not reformed, it can send him/her to jail.
Thewide discretion has been enshrined in the hands of the Children’s
Court, however, no
sentence of death or life imprisonment can be given to the child in conflict with law.
Child Welfare Committees have an important role in disposing of matters relating to and
affecting the security of the children that needs due attention and adequate consideration. It
has to take suitable efforts for providing care, attention to the child bothering for their
protection to ensure development, welfare, proper treatment and social rehabilitation of the
child. It is the responsibility of the State to constitute child welfare committee in each district.
Child care units
As per the JJ Act 2015, it is mandatory to register all child care institutions within the
specified time period whether run by the government; voluntary organisations;
nongovernmental
organisations. In Juvenile Justice System, child care institutions not only
works for providing shelter, food to the children as categorised under the Act as juvenile
offenders or those who requires of due care and state protection but also endeavours to
secure them from the hardship of bars and strives to rehabilitate them. Child care institutions
are recognised under these heads as shelter homes, foster care, observation homes, special
homes, children homes, place of safety, specialised adoption agency (JJ Act provides detailed
provision for the adoption of children), a fit facility and District Child Protection Unit.
Main provisions for child welfare
Provision for bail -Section 12 of the Act lays down provision for bail, the child in strife with
law or claimed to have submitted an offence must be released on bail irrespective of the
classification of the offences, bailable or non-bailable, provided in Criminal Procedure Code
or under any other law in force at that time period but this is subject to special circumstances
where bail will not be provided to the child viz., If there is an apprehension that such person
will be exposed to any kind of danger: moral physical or psychological, or associate with
known criminal or the release of such person would defeat the ends of justice. It is to be
noted that the term ‘ends of justice’ should be perceived in terms of the welfare of the child
and fair trial on the part of the Board.
Provisions for safety & security of child in conflict with law -The present Juvenile Act
makes clear provisions for the safety and security of the alleged child who is under the
suspicion by the police to be in conflict with law. In this situation the special juvenile police
or the officer designated as such shall produce the alleged child in front of the Juvenile
Justice Board within the specified time of 24 hours excluding the journey time required to
reach the place. As per the provisions of the Act no alleged child will be landed in a police
lock up or jail, the special juvenile police or the officer designated are duty bound under the
JJ Act to inform the parents of the juvenile and the child shall be placed in a safe and secured
place at the time of inquiry. The Board is required to inform the probation officer about the
bail if it is granted to the concerned child. (Section 13 JJ Act)

Provisions for rehabilitation, social re–integration and Restoration-Rehabilitation, social

integration and reformation of the children are the prime concerns of the Act. Rehabilitation
of the child can be recognised in two ways; community-based rehabilitation and institutional
based rehabilitation. For reintegration and rehabilitation purposes, preference is given to
individual care plan of child through family-based care; however, this varies from case to
case. Rehabilitation and Social integration of the children in strife with law will be kept in
perception homes built up or spot of wellbeing or fit office and so forth. On the other hand,
children who need proper care, state attention and protection should not be pushed in child
care institution at the first instance as long as they have protection of family and supervision
of guardian. But if they are helpless, they should be placed under the protection of these
institutionalised homes till they attain 18 years. Children homes, specialised adoption
agencies or open shelter are casted with prime responsibility for Protection and Restoration of
such children.
Fresh Start or Second Chance to the guilty child -
According to section 24 of JJ Act, all criminal records relating to the juveniles will be
destroyed except in special circumstances. The concept of fresh start gives a better life and
possibility to the juvenile offender. It provides a chance of education, social reintegration and
a second chance to lead an improved life. As per the rule, the child should not suffer from the
disqualification adhered to him due to the conviction. In this regard, the Board shall order the
police or the concerned authority to destroy the records related to the child’s conviction.
However, this provision has an exception, when the convicted child is tried as an adult by the
Children Court and found guilty of heinous crime will not get the benefit of the provision of
removal of disqualification.

Appeal and Revision- The provisions of appeal are provided under Section 101 of the JJ
Act
2015. As per the Act, the aggrieved person can file under the following circumstances:
i. Appeal against the orders of the Juvenile Justice Board or committee to the
Children’s Court within the specified time period i.e.30 days from the order except
in matter of foster care, sponsorship after care, the appeal from order of committee
lies with District magistrate. However, after the expiry of the 30 days’ time period, an
appeal can be filled to the Session Court or to the District Court, as the case may be,
if the Court is satisfied about the cause of delay.
ii. Appeal against the order given by the Board after making preliminary assessment in
to cases of heinous crime under section 15 of JJ Act to the Court of Session.
iii. Appeal against the order of the Children’s Court. For this purpose, the appeal can be
filed to the High Court as per the Criminal procedure Code.

CASE LAWS- In Bijoy @ Guddu Das vs The State Of West Bengal (order dated 2
March, 2017), High Court of Calcutta issued certain directives to the investigating agencies,
prosecutors and the Special Courts to maintain the sanctity and preservation of basic human
rights and the fundamental right of dignity to a child victim and further to follow the
provisions of criminal law, POCSO and Juvenile Justice Act in its letter and spirit.

Munna v. Sate of U.P, 1982 deals with matter relating to the Ill-treatment and sexual
exploitation of Juvenile under trial prisoners retained in Kanpur jail. The Supreme Court in
the matter observed that:
 “Juvenile delinquency is, by and large, a 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 don’t shed their fundamental rights when they
enter the jail.”
 “The object of punishment being reformation, no social objective can be gained by
sending juveniles to jails where they would come into contact with hardened criminals
and lose whatever sensitivity they may have to finer and nobler
sentiments”.

Despite of several legislations on Juvenile justice yet so much has to been done for the plight
of children in India, the latest case of Sampurna Behra, 2018 also draws our attention
towards lacunas and lapses in implementation of provisions of Juvenile Justice Act,
management and maintenance of child care institutions and inadequacy of staff.

NEED FOR A SEPARATE SYSTEM OF CRIMINAL JUSTICE FOR JUVENILES

World history bears witness to the fact that children have been prosecuted and punished for
commission of offences in adult courts, and lodged in jails along with adults. It is in the last

century that a consciousness has arisen, leading to a separate justice process for juveniles.

Despite the existence of the juvenile justice system in India, there is often no clear

understanding among members of the public as to why the juveniles cannot be treated like

adults, prosecuted in adult courts, punished like adults and lodged in adult jails. Whenever a

juvenile is accused of committing a heinous crime, there is a public outcry that the juvenile

justice system is lenient, and a demand for exemplary and stringent punishment with

deterrent effect, as a way of providing justice to the victim. Such responses and demands

arise from an incorrect understanding of the juvenile justice system and philosophy behind

the same. They have resulted in more punitive responses to juvenile offenders.

There are many reasons and arguments that are advanced in favour of a separate criminal

justice system for juveniles.

 It is a fundamental principle in law that if un-equals are brought on one platform and
treated in the same manner, that would result in inequality, not equality. Children are
differently situated from adults.
 Children are one of the most vulnerable sections of the society and are victims of
exploitation and abuse by parents, guardians and the larger society. Hence they
require a humane approach, instead of a law and order approach or a retributive
approach to justice.
 Millions of children are left on the streets to fend for themselves, abused, forced to
work and beg, subjected to violence and denied a right to a dignified life, which is the
human right of all, including children. They are in dire need of care and protection
from the State. A major contributory factor to children coming in conflict with the
law, is the abuse / exploitation / neglect meted out by society to the concerned child.
A manner in which the society repairs the harm caused is by adopting a humane,
rehabilitative and reparative approach to children.
 Putting children in jail with adults would not help them reform or reintegrate with
society but would cause them to become hardened criminals.
  Children are often not aware of the consequences of the acts they commit due to their
tender age; hence if those acts are punishable offences, they ought to be treated
differently from adults who are presumed to know the consequences of the acts they
do.

APPROACHES TO JUVENILE JUSTICE

The need-based / welfare-oriented / charity-based approach influenced law and policy on

juveniles for centuries. This approach perceived children in need of care and protection as
tragic victims of circumstance, deserving sympathy and pity. Charities gained importance
as a means for the survival of such children. Since the charities were bestowing a benefit
to such children out of their benevolence, they expected children to be grateful to them
and abide by their conditions. Though some children benefitted from the welfare approach,
by and large, such an approach was disempowering for children as they had no say in what
would be the „benefit‟ given to them, the manner or duration for which they were given the
benefit. While the welfare approach was well-intended, with a particular focus on the welfare
of children, it did not adequately focus on developing their potential to the maximum in order
that they become capable human beings. The charity / welfare approach was particularly
problematic as it did not recognize the capacity of children to participate in / voice their
opinion on crucial decisions that affected their lives. Further, it did not aim at promoting
inclusion or mainstreaming of such children into society in the long run. Its approach led to
segregation rather than integration of children in mainstream society. While charitable
organizations working on caring for children play a supportive role, it is imperative that
persons administering such charities acknowledge and promote empowerment of children,
warranting the society’s respect for their rights, rather than addressing the perceived needs of
children.
However, with the formulation of international standards on child rights, particularly the
United Nations Convention on the Rights of the Child, there was a paradigm shift from a
welfare-oriented, charity-based approach to a rights-based approach. This approach
perceived issues pertaining to the child as legally enforceable rights and entitlements, with
corresponding duties and responsibilities on the State, family and community at large.
The present Indian law, which witnessed major amendments in 2000, and thereafter in
2006 and 2015, is aligned with the rights-based approach to children and to juvenile justice.