CHAPTER III

JUVENILE JUSTICE ACT

3.1 INTRODUCTION

On 20th November, 1989 the United Nations adopted a Convention on Right of Child
and this convention defined that “Child” mean a human being below the age of eighteen
years. This forced the Indian Legislation to revoke the Juvenile Justice Act 1986 by the
Juvenile Justice (Care and Protection Act) 2000. In this the age of the juvenile for both male
and female has been fixed at 18 years. According to this maximum punishment that can be
given to a juvenile is of 3 years. During that punishment he will not be in a regular prison
instead he will be in reform home where he can be retreated to be a responsible citizen of the
country.

The Juvenile Justice Act, 2000 was made to adhere to the principles of United Nations
Conventions. This Act mainly dealt with the rehabilitation of minor. Section 4 of the Juvenile
Justice Act, 2000 set forth for the Juvenile Justice Board.

Children in India have faced many problems. The question of providing proper care
and protection to the children is a big challenge. Large numbers of children on account of
socio-economic reasons have committed an offence and adding themselves in the list of
delinquent children. Today children are under the tremendous social pressure due to new
changing social perceptions. The National Crime Record Bureau Report 2013 indicated that
30,303 juveniles in conflict with law were apprehended in 2010, 33,887 were apprehended in
2011, 39,822 were apprehended in 2012 and 43,506 were apprehended in 2013 under Indian
Penal Code and Special Local Laws. This figure shows that the involvement of juvenile in
commission of crime is increasing day by day. The other problem is that the large numbers of
children in India are living in condition of want, deprived of basic survival, subsistence,
health, education and developmental opportunities. The report of UNICEF in 2005 on the
state of world’s children under the title “Child under Threat”, speaking regarding India
mentioned that millions of Indian children are equally deprived their right of survival, health,
nutrition, education and safe drinking water. The Report of the Asian Centre of Human Rights
2013 pointed out the real picture of child care and protection through institutions. A total of
48, 338, child rape cases were recorded from 2001 to 2011. Many of child rape cases take
place in observation home, special home, children home and shelter home set up or

58
recognized or registered for child care. This is what is happening to the most of the young
children who if properly taken care of, would shine the future of the country.

The children in India require both sided protections. At the one hand they need to be
provided with the basic necessities for their overall development making them physically
strong, mentally alert and academically brilliant by affording them, irrespective of their sex,
family atmosphere for proper growing of the child. The other side requires prevention and
treatment of a child who is termed to be a delinquent. The action is required on two reasons.
The Firstly preventing and controlling the increase of the juvenile delinquency and secondly
by giving the delinquent child proper opportunity to reform himself and join the mainstream
of the society. If we neglect and do not provide adequate food, health care and education of
children, heavy price will have to be paid in future.

Thus, there is need to give specific importance to children in society. Importance of a

child is well recognized since ages. Children are valued assets of a nation. Their importance
can well be imagined and appreciated from what Winston Churchill said about them. He had
said “that there is no finer investment for any community than putting milk into babies.” This
appeal to the people everywhere, this fundamental faith in juvenile justice, this reorganization
of the worth of the infants born and unborn, is the beginning of juvenile justice, says Justice
Krishna Iyar.1 “Child is the father of man” and in order to enable lathering of a valiant and
vibrant man, the child must be groomed well in the formative years of his life. He must
receive education; acquire knowledge of man and materials and blossom in such an
atmosphere that on reaching age, he is found to be a man with a mission, a man who matters
so far as the society is concerned.2 In Bandhua Mukti Morchas3 case the importance of a child
has been highlighted observing that including the children being lights to the society as a
whole. If children are deprived of their childhood socially, economically, mentally, the
nation’s get deprived of the potential human resources for social progress, economic
empowerment and peace and order, the social stability and good citizenry.

The future, development and stability of a society depend on the quality of its
children. Child welfare is of supreme importance to mankind. At present time the child is
considered as an important social unit and is held to be entitled to all that makes for healthy
living, sufficient recreation, schooling adopted to his natural living methods, intelligent home
1
V.R. Krishna Iyar, “Jurisprudence of Juvenile Justice: A preamble perspective", quoted in article “Right of
Child and Child Labour: A Critical Study by Sriniwas Gupta, JILL XXXVII (1995) p. 531
2
M.C. Mehta v. State of Tamilnadu, AIR 1997 SC 701
3
Bandhua Mukti Morcha v. Union of India, AIR 1997 SC 2218, p. 2220

59
care and the right to develop his abilities to their fullest extent 4 . Total well-being of the child
includes not only the care of maladjustment and delinquent children but also the development
of child physical, mental, emotional and social faculties 5. Children ought to have been the
subject of prime focus of development planning, research, and welfare in India but
unfortunately, it has not been so. Despite the Constitutional vision of a healthy and happy
child protected against abuse and exploitation. The majority of children in India continue to
live without a cared, protected and meaningful childhood. The juvenile justice system as
conceived by legislation aims at providing care, protection, treatment, development, and
rehabilitation of delinquent and neglected juvenile.

If we can control juvenile delinquency we shall be controlling and checking the future
criminals. It is a fact that tendency among children to commit crime and indulge in anti-social
activities is increasing. The word ‘juvenile’ came from the Latin word ‘juvenis’ it means
youth. A juvenile is a person who is under the age of 18 years. The age limit below which it
should not be permitted to deprive a child of his or her liberty should be determined by law.
Juvenile can be defined as a child who has not attained a certain age at which he, like an adult
person under the law of the land, can be held liable for his criminal acts. The juvenile is a
child who is alleged to have committed or violated law which declares the act or omission on
the part of the child as an offence. Juvenile in legal terms is used in different context. Juvenile
is used when reference is made to a young criminal offenders and minor relates to legal
capacity or majority6. The Juvenile Justice Act, 1986 had defined juvenile, according to it
juvenile means in case of boy who had not completed the age of 16 years and in case of girl
she had not completed the age of 18 years. The Act, 1986 differentiate between boy and girl
on account of their sex. But the Juvenile Justice Act, 2000 has accepted same age for both
boy and girl. It defines ‘juvenile’ means a boy or a girl who has not completed the age of 18
years.

The juvenile justice system includes juvenile delinquent and neglected child. The
word ‘delinquency’ has been derived from the Latin word ‘delinquer’ which means to omit.
Juvenile delinquency refers to the involvement by the teenagers in an unlawful behaviour
who is generally under the age of 18 years and commits an act which would be considered as
a crime. A child is known as a delinquent when he or she commits an act or omission which is

4
Edvin R.A, Saligaman (Editor-in-Chief). "Encyclopedia of the Social Sciences" Vol. III, Macmillan Company,
1951 reprint, p. 380
5
Alice Jacob and Kusum Kumar, "Child Welfare", published in SN. Jain (Ed), "Child and the Law" (1979) p. 41
6
The Black Law Dictionary

60
against the law and which is not accepted by the society. A child is born innocent, but due to
the unhealthy environment, negligence of the basic necessities and a wrong company may
turn into a delinquent. Juvenile delinquency is a grave problem it cannot be solved by means
of legislation and government efforts alone. The Juvenile Justice Act, 1986 had defined
juvenile delinquent which means a boy or girl who had committed an offence and in case of
boy who had not completed the age of 16 years and a girl not completed the age of 18 years.
The Juvenile Justice (Care and Protection of Children) Act, 2000 has replaced the word
juvenile delinquent and use the term juvenile in conflict with law. The Act uses the similar
age for both girl and boy. According to the Act, 2000 juvenile in conflict with law means a
juvenile who is alleged to have committed an offence and who has not completed eighteen
years of age on the date of commission of such offence. The neglected children are socially,
economically and educationally backward and they have no means of livelihood, health and
education. They are not committed an offence but situated in such a condition in which they
are abused, neglected and exploited. The Juvenile Justice Act 1986 had defined the term
neglected child. Neglected child means a child who found begging, destitute, orphan, or
living with parents who unable to take care and protection, deprived their right to life, being
exploited, abused or likely to be used for illegal purposes. The term neglected child
stigmatizing the children in the society as unmannered children and treated same as treated
delinquent juvenile.

So, the Juvenile Justice Act, 2000 use the term child in need of care and protection
and negates the stigmatization. ‘Child in need of care and protection’ means a child, who is
found without home, found begging, mentally and physically challenged, parent is unfit to
take care, abused, exploited and child labour etc. In India many of the states Children Acts
have not been effectively enforced. Some of these Acts themselves have defects. Official
machinery is not effectively used for controlling this problem. Government as well as private
agencies must work hand in hand with all sincerity and seriousness to find on effective
remedy for the problem of juvenile delinquency. The public attitude towards Juvenile
delinquents and neglected child must also change. Juvenile Justice System is a phenomenon
developed to care, protection, reformation, socialization and rehabilitation of delinquent
juveniles and neglected child. Juvenile justice system addresses the social, cultural and
economic causes of deviance and effective measures of crime prevention in the society. The
juvenile justice system gives high priority to reduce the need of legal interventions in order to
protect children from ill effect of criminalization, penalization, stigmatization and

61
criminogenic effects. The purpose behind this different attitude towards children is to save
them from ordinary criminal proceedings where in punitive considerations prevail over
protective consideration. The Juvenile Justice System prescribes that delinquent juveniles are
not arrested, investigated, prosecuted and adjudicated in the same way as an adult. The
juvenile justice system includes legislation, norms, standards, guidelines, policies,
procedures, mechanisms, institutions and bodies specifically applicable to juveniles. The
juvenile justice system is offered a chance to juveniles to start a fresh life in the society and
be the useful citizen of the society7 .

The principal role of the Juvenile Justice System has been to provide specialized and
preventive treatment services for children and young person's as means of prevention,
rehabilitation, and improved socialization8. During the Seventh UN Congress on Prevention
of Crime and the Treatment of Offenders, three approaches to juvenile justice were identified 9
, namely, the due process model, the welfare or parents’ partial model and the participatory
model. It may be noticed that the Juvenile Justice System is one of the several measures taken
by the state to attain the vision of the Constitution of India relating to the care and welfare of
children. The Constitution of India makes the country a welfare state and recognizes the
special status of children through Articles 15(3), 21, 21-A, 23, 24, 39(e) and (f), 45 and 51-A
(k).

The Juvenile justice system is one of a number of measures which society has devised
and developed for the purposes of socializing and controlling children. The system has
multiple functions and aims. From the beginning it had been concerned both with protecting
society and serving the best interests of the child, while at the same time meeting the child’s
needs and protecting his rights. The juvenile justice system thus performs the welfare cum
criminal justice functions, in this duality of its roles; the system strives to achieve explicit
social goals such as the provision of minimum standards of child care. The system also
functions to safeguard the right of children as per the United Nations Declaration of the
Rights of the Child, 1959. The central functions of the juvenile justice system are to
provide - for the care, protection, treatment, development and rehabilitation of neglected or
7
Srivastava S.P: Juvenile Justice in India ( Policy, Programme and Perspective) 1989 Ajanta Publications, p. 4,
5
8
Juvenile Justice : Before and After the Onset of Delinquency, working paper prepared by the Secretariat, Sixth
UN Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, Venezuela, p. 6 (25 August
to 5 September 1980), A/CONF. 87/5, 4 June 1980
9
Youth Crime and Justice, working paper prepared by the Secretariat, Seventh UN Congress on the Prevention
of Crime and the Treatment of Offenders, Milan, Italy, p. 6 (26 August to 6 September 1985) A/CONF, 122/7,17
April 1986

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delinquent juveniles and for the adjudication of matters relating to and disposition of
delinquent juveniles in the light of the avowed policy of providing opportunities to such
children to become useful citizens for any country. The envisaged framework undoubted
entails a purposeful blending of institutional devices with community-based approaches, of
professional services with voluntary efforts and of the State interventions with the informal
collective initiatives of the people themselves. The Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders identified three models of juvenile
justice system on the basis of contemporary approaches to dealing with juvenile offenders10;

(a) The due procedural model;

(b) The social welfare model and

(c) The participatory process models

The first model is based upon the concept of legality, the role of law and due process,
the professional lawyers making the main decisions. The second model is based upon notions
of economic and social justice through State planning and Welfare, with administrators and
professionals from the "helping services" making the main decision. The resolution of the
issue with respect to the first two competing models is essential for the proper development
of a mechanism to control and protect the juveniles, The third model resolves the issue
because juvenile justice can more meaningfully take place at the macro level, with greater
participation of citizens in resolving or containing of conflict at the local level with a
minimum intervention of the centralized power structure of the modern State11 .

The third model exists still in the pre-industrialized countries and is also applied to
juvenile and youthful offenders in the developing countries. At present there is hardly any
country in which juvenile justice system subscribes entirely to one of these three models.
Most juvenile justice systems have elements of each model to a varying degree. The balance
between the three models has been achieved according to the culture and the stage of
development of a country. The juvenile justice system in each country is related to the history
and culture of the country, to the criminal justice system for adults and other social
institution.12

10
Supra Note 9
11
Ibid.
12
Supra Note 9

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 The juvenile justice movement appears to have owed more to the slowly changing
conceptions of childhood which came to maturity during the seventeenth and eighteenth
century. Until that time the children accused of delinquent behaviour were treated like adults
in matters of penal policy. They were brought before the same Magistrate or Judge as were
adults and were remanded to the same prisons as were hard core criminals, to await their trial.
Once convicted, they were behaving just like habitual offenders to the same sentences
including death transportation and imprisonment as were adults. Until the commencement of
the nineteenth century, it was by no means considered unreasonable that children should be
sentenced to death, transportation or imprisonment.13

This realization and the attempts to come to terms with it have supplied the agenda for
child law reform movement which even persists to the present time. There were two
important elements in the development of institutional concern for children: one was
concerned with the physical abuse and other with moral contamination. The recognition of
the stigmatizing effects on children resulting from their association with the penal system led
to a concern to keep children out of ordinary criminal courts and their hearing systems. In
theory it was then recognized that it is desirable to treat children according to their underlying
needs and not in response to specific acts. The concern for the children had grown during the
nineteenth century on account of the recognition of special needs of children. Such concern
was based in part upon humanitarian ideas but also upon belief that the problem of juvenile
delinquency could be prevented by segregating, educating and correcting children who
showed first signs of delinquency. By the end of nineteenth century these ideas were firmly
backed by legislation, and thus courts for children were required to be set up to give
expression to humanitarian beliefs.

The other legal root of the juvenile justice is that a child under the age of seven is
conclusively presumed incapable of entertaining criminal intent and therefore of committing
the crime. Between the ages of seven and twelve, a child is presumed to be incapable of
committing a crime but the presumption may be rebutted by showing that it the offender has
enough intelligence to know the nature of his act. After the age of 12 years children treated
like adults are presumed to be responsible for their actions.

The juvenile justice ideology emerged thus at the end of a century of developments
which had separated children from criminal adults at all stages of the judicial and the
treatment process. The desire for individualization and reformation of the child had played an
13
Supra Note 7

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important part in the development of juvenile justice, and in fact was one reason why a
separate system arose. In essence, the twentieth century progress in juvenile justice could he
attributed to its nineteenth century ancestry. The contemporary juvenile justice scenario
represents ad judicious blend of censure or penalty on the one hand, and s sympathetic good
sense on the other. Each country is now moving toward a central point where ideas drawn
from welfare approach and those from criminal justice arc finely balanced. The juvenile
justice systems in different parts of the world represent a synthesis or convergence of law and
welfare to a degree which earlier was deemed impossible. In other words, the contemporary
concept of the juvenile justice system provides a meeting place for the innovative approaches
of criminal justice, welfare and the Community.14

Children are the easy victims of the unlawful activities be it the petty offences or
something as serious as trafficking or war crimes. Perhaps this is because of their innocence
and their vulnerability, it is important to recognize that children are not born into crime; they
may be led into it. They are innocent and, therefore, they need to be protected and
safeguarded. However, those who have been victim of the situation needs to weaned away
from it through child friendly ways. They need redirection and channelization of their spirits
and energies. This requires a sensitive heart and a proactive mind that could counsel them.
Sometimes it may require tougher route of transformation through the restorative work and
channelization while they are regrouped in Observation Homes and Special Homes. The
longer they are left on this path the more likely it is that more long-term negative outcomes
will be encountered and may manifest antisocial behaviours throughout their lives originally
these children were referred to as juvenile delinquents.

The first legislation on juvenile justice in India came in 1850 with the enactment of
Apprentice Act, which required that children between the ages of 10-18 convicted in courts to
be provided vocational training as part of their rehabilitation process. This Act was replaced
by the Reformatory Schools Act, 1897. The Act provided that young offenders up to 15 years
of age found guilty of offences punishable with imprisonment were not to be sent to ordinary
prison but to reformative schools. The Children Act, 1960 was passed to fulfil the obligation
as accepted by India in the UN Declaration on the Rights of the Child in 1959. The Act
provided care, protection and treatment to delinquent children and neglected children. The
need of comprehensive juvenile justice framework was considered by the international

14
Phillida Parsloe, Juvenile Justice in Britain and the United States: The Balance of Needs and Resources,
London, Paul 1978, p. 21

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community and recognizes the UN Standard Minimum Rules for Administration of Juvenile
Justice 1985 called Beijing Rules. The India is the signatory of the Beijing Rules. The Beijing
Rules directed that State Parties of the Beijing Rules to enact or amend their existing juvenile
justice law according to the rules.

In respect of Beijing Rules the Indian Parliament had passed the Juvenile Justice Act,
1986. It was the primary comprehensive legal framework on juvenile justice in India. The Act
provided for a special approach towards the prevention and treatment of juvenile delinquency
and also provided a framework for the protection, treatment and rehabilitation of children in
the purview of the juvenile justice system. The law replaced the Children Act 1960. This Act,
the first central legislation on Juvenile Justice was passed in 1986, by the Union Parliament,
thereby providing a uniform law on juvenile justice for the entire country. Juvenile Justice
Act, 1986 was applied uniformly throughout India except state of Jammu and Kashmir: Prior
to this law each state had its own enactment on juvenile justice with there being differences in
the way juveniles were treated by different state legal systems.

The first uniform law on juvenile justice however did not result in any dramatic
improvement in the treatment of juveniles. The law continued to provoke a lot of concern, in
human rights circles, pertaining particularly to the way juveniles were treated in detention
centres designated as special homes and juvenile homes. Following closer international
attention to the issue of juvenile justice in the late 1990’s, the issue moved to the centre stage
even in domestic circles with a number of consultations held on juvenile justice both
nationally and regionally. The Juvenile Justice Act, 1986 was more humanistic and treatment-
oriented. This Act was considered a unique aspect of social legislation intended to provide
care, protection, treatment, development, and rehabilitation for neglected and delinquent
juveniles as well as the adjudication of matters relating to the disposition of delinquent
juveniles. The Convention on the Rights of the Child 1989 is considered by the international
community. It provides comprehensive frame work for fair administration of juvenile justice.
After one year of the CRC, the United Nations considered the Guideline for the Prevention of
Juvenile Delinquency and Rules for the Protection of Juveniles Deprived of their Liberty in
1990. Above international instruments are accepted minimum standards for the
administration of juvenile justice and direct State Parties to enact or amend their existing
juvenile justice law according to international instruments.15

15
Prof. Unafei and Mr. Kei Someda: "International Instruments in the Field of Juvenile Justice", pp. 169-175

66
 The India ratified the CRC in 1992 and passed the Juvenile Justice (Care and
Protection of Children) Act, 2000. The Juvenile Justice Act, 2000 aims at consolidating and
amending laws relating to juveniles in conflict with law, and children in need of care and
protection by providing proper care, protection and treatment h catering to their
developmental needs, by adopting child friendly approach in adjudication and disposition of
matters in the best interest of children and for their rehabilitation through various institutional
mechanisms established. The Juvenile Justice Act, 2000 covers children up to 18 years and
provides for a uniform legal framework of juvenile justice across the country. It seeks to
ensure that no child in any circumstances is lodged in jail or police lock up. The Act took care
for providing machinery and infrastructure required for care, protection and rehabilitation of
children. The Act provides two separate bodies to deal with the children. Juvenile Justice
Board deal with juvenile in conflict with law and Child Welfare Committee is constituted for
care and protection of child in need of care and protection.

With the passage of time there is a shift of strategic focus of the country from welfare
to development to a right based approach. In the 9th Plan child development was viewed, not
merely as a desirable societal investment for the nation’s future but also as the right of every
child to achieve his/her full development potentials. The 12th Plan in its vision has included
commitment to survival, protection and all-round development of children of all ages,
communities and economic groups. National Commission for Protection of Child Right has
also been constituted by the Government-of India in March 2007 in order to ensure that all
Laws, Policies, Programmes and Administrative Mechanisms are in consonance with the
Child Rights perspective as enshrined in the Constitution of India and also the UN
Convention on the Rights of the Children, under The Commission for Protection of Child
Rights Act, 2005, an Act passed by Parliament in December 2005. The Commission
visualizes a rights-based perspective flowing into National Policies and Programmes along
with different approach at the State, District and Block levels, taking care of specificities and
strengths of each region. In order to touch every child, it seeks a deeper penetration to
communities and households and expects that the ground experiences inform the support the
field receives from all the authorities at the higher level. Thus, the Commission sees an
indispensable role for the State, sound institution-building processes, respect for
decentralization at the level of the local bodies at the community level and larger societal
concern for children and their well-being. However, the juvenile justice legislation in India

67
has tried to move out of the derogatory nomenclature and introduced the concept of ‘children
in conflict with law’ and ‘children in need of care and protection’.

Although the implementation of the Juvenile Justice Act is clearly a reflection of the
seriousness of the government’s attempts to provide spaces for children and be more child
friendly and restorative. However, still the juvenile in conflicts with law continues to be seen
as a delinquent with all deliberate intentions to go against the law. In this orientation we end
up undermining the inherent innocence of the child. Thus, instead of having a protecting and
a caring attitude towards these children we often turn hard in our dealings with these children
both during legal and other rehabilitative activities, thus overlooking the critical need of these
children of being looked after and attended to.

The Juvenile Law in India need to be amended due to the rise of Juvenile
Delinquency in India, Children were influenced by the care free attitude of the Western
World. There was increase in participation of minors in illegal activities. There was a 30% of
rise in the crimes by the Juveniles in the period of 2012-14. According to National Crime
Record Bureau (NCRB) the crime of Juvenile increased by proportion from 1% to 1.2% from
2003-13.

There was a reformative attitude of approach in addressing Juvenile Criminals until

the Nirbhaya Event (Delhi Gang Rape case). Thus, a retributive attitude of approach was
adopted in treating the Juvenile offender. All these incidents forced the Legislature to repeal
the Juvenile Justice (Care and Protection of Children) Act, 2000 with new The Juvenile
Justice (Care and Protection of Children) Act, 2015 has been enacted.

3.2 JUVENILE JUSTICE ACT, 2015

The Juvenile Justice Act, 2015 introduced many changes to the existing law based on
day today requirements of reforming the laws and making the juvenile justice system more
responsive to the changing circumstances of society. The Act seeks to hold the child accused
of crime accountable, not through punishments but through counselling.

The Act amended in 2015 changed the nomenclature of ‘juvenile’ to ‘child’ and ‘child
in conflict with law’.

The Act defines orphaned, surrendered and abandoned children.16

16
https://www.tndalu.ac.in/econtent/34_Law_of_Crimes_II_(Code_of_Criminal_Procedur.pdf

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 “Abandoned Children” means a child deserted by his biological or adoptive parents or
guardians, who has been declared as abandoned by the committee after due inquiry.

“Authorized Foreign Adoption Agency” means a foreign social or child welfare

agency that is authorized by the Central Adoption Resource Authority on the recommendation
of their Central Authority or Government department of that country for sponsoring the
application of non-resident Indian or overseas citizen of India or persons of Indian origin or
foreign perspective adoptive parents for adoption of a child from India.

“Best interest of a child” means the basis for any decision taken regarding the child, to
ensure fulfilment of his basic rights and needs, identity, social well-being and physical,
emotional and intellectual development.

“Child” means a person who has not completed eighteen years of Age.

“Child In Conflict with Law” means a child who is 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.

“Child In Need of Care and Protection” means a child-

 who if found without any home or settled place of abode and without any
ostensible means of subsistence; or
 who is found working in contravention of labour laws for the time being in
force or is found begging, or living on the street; or
 who resides with a person (whether a guardian of the child or not) and such
person-
o has injured, exploited, abused or neglected the child or has violated
any other law for the time being in force meant for the protection of
child; or has threatened to kill, injure, exploit or abuse the child and
there
o is a reasonable likelihood of the threat being carried out; or has killed,
abused, neglected or exploited some other child or children and there is
a reasonable likelihood of the child in question being killed, abused,
exploited or neglected by that person; or
o who is mentally ill or mentally or physically challenged or suffering
from terminal or incurable disease, having no one to support or look

69
 after or having parents or guardians unfit to take care, if found so the
Board of the Committee; or
o who has parent or guardian and such person or guardian is found to be
unfit or incapacitated, by the committee or the Board, to care for and
protect the safety and well-being of the child; or
o who does not have parents and no one is willing to take care of, or
whose parents have abandoned or surrendered him; or
o who is missing or run-away child, or whose parents cannot be found
after making reasonable inquiry in such a manner as may be
prescribed; or
o who has been or is likely to be abused, tortured or exploited for the
purpose of sexual abuse or illegal acts; or
o who is found vulnerable and is likely to be inducted into drug abuse or
trafficking; or
o who is being or is likely to be abused by any armed conflict, civil
unrest or natural calamity; or
o who is at imminent risk of marriage before attaining the Age of
marriage and whose parents, family members, guardian and any other
persons are likely to be responsible for solemnization of such marriage.

“Child Friendly” means any behaviour, conduct, practice, process, attitude,

environment or treatment that is humane, considerate and in the best interest of the child.

“Child Legally Free For Adoption” means a child declared as such by the Committee
after making due inquiry under Section 38;

“Child Welfare Officer” means an officer attached to a Children’s Home, for carrying
out the directions given by the committee or, as the case may be, the Board with such
responsibility as may be prescribed;

“Child Welfare Police Officer” means an officer designated as such under Sub-Section
(1) of Section 107;

“Children’s Court” means a court established under the commissions for Protection of
Childs Rights Act, 2005 or a special Court under the Protection of Children from Sexual

70
Offences Act, 2012, wherever existing and where such courts have not been designated, the
courts of sessions having jurisdiction to try offences under the Act;

“Child Care Institution” means Children Home, open shelter, observation home,
special home, place of safety, Specialized Adoption Agency and a fit facility recognized
under this Act for providing care and protection to children, who are in need of such services;

“Childline Services” means a twenty-four hours emergency outreach service for

children in crisis which links them to emergency or long-term care and rehabilitation service;

“District Child Protection Unit” means a Child Protection Unit for a District,
established by the State Government under Section 106, which is the focal point to ensure the
implementation of this Act and other child protection measures in the district;

It also gives definition for petty, serious and heinous crimes by children.

 “Heinous Offence” under Section 2 Clause 33 includes the offences for which
the minimum punishment under the Indian Penal Code (45 of 1860) or any
other law for the time being in force is imprisonment for seven years or more.
 “Serious Offence” under Section 2 Clause 54 includes the offences for which
the punishment under the Indian Penal Code (45 of 1860) or any other law for
the time being in force, is imprisonment between three to seven years.
 “Petty Offences” under Section 2 Clause 45 includes the offences for which
the maximum punishment under the Indian Penal Code (45 of 1860) or any
other law for the time being in force is imprisonment up to three years.

3.2.1 GENERAL PRINCIPALS OF CARE AND PROTECTION OF CHILDREN

The Central Government, the State Governments, the Board, and different offices, by
and large, while executing the provisions of this Act will be guided by the accompanying
basic principles, specifically:

Section 3 of the Juvenile Justice Act 2015 states the principles of care and protection
of children:

1. Principle of the Best Interest of the Child- “Best interest of the child” signifies the
reason for any choice taken with respect to the child, to guarantee satisfaction of

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 his fundamental rights and needs, character, social prosperity and physical,
enthusiastic and scholarly improvement.

2. The Principle of Presumption of Innocence- It will be regarded all through the

procedure of justice and protection, from the underlying contact to elective
consideration, including aftercare. Any unlawful behaviour of a child which is
done for endurance, or is because of environmental or situational factors or is done
under the control of adults, or peer groups.

3. Principle of Right to maintain privacy and Confidentiality- Each child has an

option to the right of his protection and privacy by all methods and all through the
legal procedure. No report of the juvenile will be distributed that may prompt the
recognition of the juvenile but to the situations where the exposure of their
distinguishing proof identity would cause protection of them.

4. Principle of equality and non-discrimination- That there shall be no discrimination

against a child on any grounds including sex, caste, ethnicity, place of birth,
disability and equality of access, opportunity and treatment shall be provided to
every child. Every single suitable measure should be taken to ensure that the child
is secured against all types of discrimination or punishment based on the status,
activities, expressed opinions or convictions of the child’s parents, lawful
guardians, or family members.

5. Principle of Participation- The child should be provided with an opportunity to

being involved and the child who is capable of forming his or her own views has
the right to express those views freely in all matters which is affecting the child’s
growth and development, the views of the child is given due importance in
accordance with the age and maturity of the child.

6. Principle of institutionalization- It is a measure of last resort, in certain

circumstances the family is not capable of taking care of the well being of the child
and when the child has no family to be cared for and there is no one to look after
the child, the government must make alternative provisions.

7. Principle of Diversion- Diversion presents a few preferences when contrasted with

the conventional criminal justice framework which can be excessively unbending,
awkward, slow and inert to the necessities of children who are often first-time or

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 non-genuine offenders. Police are the first point of contact between the juvenile
and the juvenile justice Board or the court and as such the police think that it is not
essential to proceed for the juvenile to the judicial bodies on the consideration that
the rights of the child, protection of the society and the rights of the victims, they
may divert the juvenile from the formal court processes based on the acts and
rules.

8. Principles of Natural Justice- Every child should be treated fairly and equally,
regardless of his or her race, ethnicity, colour, gender, language, religion, political
or another opinion, national, ethnic or social origin, property, disability, and birth
or another status. In certain cases, special services and protection will need to be
instituted to ensure children’s rights are met equally.

9. Principle of Family Responsibility- Guardians or parents of a juvenile must be

associated with the groundwork for the inquiry and trial and be available when it
happens. They ought to be educated by police, investigators or judges that a
conventional request will happen and that they are welcome to join in.

10. Principle of Dignity and worth- The treatment of the child will be predictable with
the child’s feeling of pride and worth. Every single person is brought into the
world free and equivalent in poise and rights. They are invested with reason and
conscience and should act towards each other in a soul of fellowship (Article I of
UN Declaration Human Rights). All children will be managed with respect due to
their inherent dignity and human beings.

11. Principle of Safety- The state has a greater responsibility for ensuring the safety of
every child in its care and protection, without resorting to restrictive measures and
processes in the name of care and protection.

12. Principle of Positive Measures- The main theme of the principle is the promotion
of the wellbeing of the juveniles. The characters and behaviours of the juveniles
shall be corrected and reformed by following positive measures.

13. Principle of non-stigmatizing Semantics- The principle of non-stigmatizing

semantics proposes not to utilize words that are utilized in ordinary criminal
procedures, choices, and activities that may stigmatize the juveniles. The rule
command to maintain a strategic distance from the utilization of antagonistic or

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 accusatory words, for example, capture, remand, blame, charge sheet, preliminary,
indictment, warrant, summons, conviction, detainee, reprobate, ignored, custody or
prison.

14. Principle of non-waiver of Rights- The Constitution of India carefully precludes

the waiver of rights. The equivalent is epitomized in the juvenile justice system in
India. The legal rights enforced by the Juvenile Justice Act should not be
postponed under any circumstances by any juvenile, competent authority and
stakeholder working under the juvenile justice system. Also, further, the non-
exercise of fundamental rights doesn’t add up to the waiver of the equivalent.

15. Principle of Repatriation and Restoration- States that it shall be ensured that a
child shall not be separated from his or her parents against their will. However, the
Board or the Court considers the separation is necessary for the best interests of
the child in accordance with the law and procedures, such determination may be
necessary in a particular case such as one involving abuse or neglect of the child
by the parents, or one where the parents are living separately and a decision must
be made as to the child’s place of residence.

16. Principle of Fresh Start- The principle of fresh start promotes a new beginning for
the juvenile in conflict with the law. This rule also instructs to destroy all past
records of the juvenile within a stipulated period. They are ensured to erase all
their past records.
This Act gives clarity on the functions and powers of the Juvenile Justice Board and
the Child Welfare Commission.

3.2.2 JUVENILE JUSTICE BOARD:

Section 4 of Juvenile Justice Act 2015 deals with the Juvenile Justice Board. This is
judiciary body before which children detained or accused of a crime are brought. Juvenile
justice Board acts as a separate court for juveniles since they are not to be taken to a regular
criminal court.

The Board shall consist of a Metropolitan Magistrate or Judicial Magistrate of First

Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate with at least three
years’ experience and two social workers, of whom at least one shall be a woman, forming a

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Bench and every such Bench shall have the powers conferred by the Code of Criminal
Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of First Class.

No social worker shall be appointed as a member of the Board unless such person has
been actively involved in health, education, or welfare activities pertaining to children for at
least seven years or a practicing professional with a degree in child psychology, psychiatry,
sociology or law.

No person shall be eligible for the selection of board,

 If he/she has any past record of violation of human rights or child rights.
 If he/she has been convicted of an offence involving moral turpitude, and such
conviction has been reversed or has been granted full pardon in respect of such
offence.
 If he/she has been removed from service of the Central Government or a State
Government or an undertaking or corporation owned or controlled by the Central
Government or a State Government.
 If he/she has ever indulged in child abuse or employment of child labour or any
other violation of human rights or immoral act.

The State shall ensure that the induction training and sensitisation of all members
including Principal Magistrate of the Board on care, protection, rehabilitation, legal
provisions and justice for children is provided within a period of sixty days from the date of
appointment.

3.2.3 CHILD WELFARE COMMITTEE

Section 27 of Juvenile Justice Act 2015 deals with the Child Welfare Committee. The
State Governments set up these committees in districts in accordance with the provisions of
the Act. The Committees have the power to dispose of cases for the care, protection,
treatment, development and rehabilitation of the children in need of care and protection, as
well as to provide for their basic needs and protection.

 The Act provides for an efficient and organized system for the adoption of orphaned,
surrendered and abandoned children.

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  It also makes it compulsory for all child care institutions to be registered.

 An important provision of the amended Act is that it provides for minors in the age
group 16 – 18 years to be treated as adults in the case of heinous crimes.

 The Act also gives the Central Adoption Resource Authority (CARA) statutory status.

 The Act distinguishes between children in conflict with the law and children in need
of care and protection.

 Under the previous Act, any minor, regardless of the crime committed, could be
convicted only to a maximum of 3 years. Under no circumstances could the minor be
tried in an adult court or sent to an adult jail, or given a penalty longer than 3 years.
However, this changed with the 2015 amendment. All children below the age of 18
would be treated equally except for one departure from the norm. That is, in the case
of heinous crimes. Any minor of the age group 16 – 18 and who has been accused of
committing a heinous crime can be tried like an adult. For this, the Juvenile Justice
Board would assess the child’s physical and mental capacities, his/her ability to
comprehend the consequences of the crime, etc. and determine whether the child can
be treated as an adult.

3.2.3.1 ROLE OF THE COMMITTEE

Section 9 and 10 deals with the role of committees

Sec (9): The Committee will work as a Bench and will have the forces given by the Code of
Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, by and large, a
judicial Magistrate of First Class.

Sec (10): The District Magistrate will be the complaints redressal expert for the Child
Welfare Committee and anybody associated with the youngster may record an appeal before
the District Magistrate, who will consider and pass suitable requests.

3.2.3.2 PROCEDURE FOR THE COMMITTEE

Section 28 of the Act shows the Procedural Ways:

1. It implies that the Committee will meet at least 20 days in a month and will watch
such guidelines and methodology with respect to the exchange of business at its
meetings, as might be endorsed.

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 2. A visit to a current child care organization by the Committee, to check its working
and prosperity of the child will be considered as a sitting of the Committee.

3. A child needing care and insurance might be delivered before an individual from
the Committee for being set in a Children’s Home or fit individual when the
Committee isn’t in the meeting.

4. In case of any difference of views among the individuals from the Committee at
the hour of taking any choice, the assessment of the dominant party will win
however where there is no such majority, the assessment of the Chairperson will
win.

5. Subject to the arrangements of sub-section (1), the Committee may act, despite the
nonattendance of any individual from the Committee, and no structure made by the
Committee will be invalid by reason just of the nonappearance of any part during
any phase of the procedure.
Given that there will be in any event three individuals present at the hour of definite removal
of the case

3.2.3.3 POWER OF THE COMMITTEE

Section 29 deals with the Power of Committee:

(1) The Committee will have the position to discard cases for the consideration, security,
treatment, improvement, and recovery of youngsters needing care and insurance, just as to
accommodate their essential needs and assurance.

(2) Where a committee has been comprised for any zone, such Committee will, despite
anything contained in some other law until further notice in power, however spare as in any
case explicitly given right now, the ability to manage all procedures under this Act associated
with children needing care and security.

3.2.3.4 FUNCTIONS AND RESPONSIBILITIES OF COMMITTEE

1. Promoting awareness;

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 2. Conducting inquiry;

3. Directing the child welfare officers to conduct a social investigation;

4. Inquiry for fit persons taking care and security of children;

5. Handling placement of a child in foster care;

6. Taking care, insurance, proper recovery or reclamation of kids needing care and
security, in light of the child’s individual consideration plan;

7. Conducting 2 inspection visits per month;

8. Making a move for the restoration of explicitly mishandled youngsters who are
accounted for as kids needing care and assurance to the Committee by Special
Juvenile Police Unit or neighbourhood police, all things considered, under the
Protection of Children from Sexual Offenses Act, 2012 (32 of 2012); and

9. Orphan and abandoned children are legally free for adoption.

3.3 NEED FOR NEW JUVENILE JUSTICE ENACTMENT 201517

The Articles 15(3), 39 (e) and (f), 45 and 47 of the Constitution of India confer
powers and impose duties on the State to ensure that all the needs of the children are met and
their basic rights are fully protected.

It was the need of the time to re-enact the Juvenile Justice Act, 2000 taking into
consideration various international conventions. The concept of juvenile in India, until
passing of Children Act, 1960 there was no uniformity regarding age limitation of juvenile
delinquent. Bombay Children Act 1948, Haryana Children Act defined “Child” to mean a boy
who has not attained the age of sixteen years or girl who has not attained age of eighteen
years. The U.P. Children Act and The East Punjab Act, Andhra Pradesh (Telangana Area)
Children Act defined “Child” as a person under age of sixteen years. Under A.P. Children Act
1920 “child” means a person under 14 years. The Saurashtra & West Bengal defines a 'child”
a person who has not attained the age of eighteen years. Juvenile Justice Act, 1986 defined a
juvenile or child to be a person who in case of a boy has not completed age of 16 years and in
case of a girl 18 years of age.

17
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 The JJA Act, 1986 was repealed by 2000 Act and the distinction with regard to age
between male and female juveniles has been done away with by the Government of India in
performance of its obligation to the international obligations. Now age of juvenile in conflict
with law for male and female has been fixed at 18 years.

The National Crime Record Bureau (N.C.R.B.) data shows that there had been an
increase of offences committed by juvenile, especially in the age group of 16 to 18. One of
the preparators in the Delhi gang rape of 2012, was few months short of 18 years age and he
was tried as juvenile. He was sent to Reformation Home for 03 years and was released in
December, 2015. This had raised the public demand for lowering age of juvenile under the
Act. The provisions of this new enactment are basically generally highlighted only for the
aspect of a much-contemplated change in the definition of a child in conflict in law and
making classification based on age and understanding of offence. This would be indeed
injustice to the legislators and the makers of this excellent legislation relating to child
welfare. Therefore, the Act, 2015 has been enacted.

The Juvenile Justice (Care and Protection of Children) Act 2015 is enforceable from
January 15, 2016.

3.4 AGE DETERMINATION18

While determining the age, as observed by the Honourable Apex Court in Rajinder
Chandra Vs. State of Chhatisgarh, AIR 2002 SC 748, the approach of the Courts or Juvenile
Justice Board should not be hypertechnical.

Section 9 & 94 of the New Act has also used certain expressions which are also be
borne in mind. It uses the expression "on the basis appearance”. Further, the age
determination inquiry has to be completed and age be determined within fifteen days which is
also an indication of the manner in which the inquiry has to be conducted and completed.

"Age determination inquiry" contemplated under section 94 of the Act enables the
court to seek evidence and, in that process, the court can obtain the matriculation or
equivalent certificates, if available. Only in the absence of any matriculation or equivalent
certificates, the court need obtain the date of birth certificate from the school first attended
other than a play school. Only in the absence of matriculation or equivalent certificate or the
18
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date of birth certificate from the school first attended, the court need obtain the birth
certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but
certificates or documents). The question of obtaining medical opinion from a duly constituted
Medical Board arises only if the above-mentioned documents are unavailable. In case exact
assessment of the age cannot be done, then the court, for reasons to be recorded, may, if
considered necessary, give the benefit to the child or juvenile by considering his or her age on
lower side within the margin of one year.

3.5 BAIL GRANT TO CHILD19

➢ In normal course, a juvenile is entitled to bail, notwithstanding gravity of the crime. His
bail can be refused only when there are reasonable grounds for believing that his release is
likely to bring into association with any known criminal or expose his moral, physical or
psychological danger or that his release would defeat the ends of justice. ➢ The language in
Section 12 of the Act that “notwithstanding anything contained in the Code /of Criminal
Procedure, 1973, or any other law for the time being in force ” mandates that this Section is
having overriding effect and the juvenile accused shall be released. ➢ Since the Child in
conflict with law is entitled to be released on bail, he is also entitled to get interim bail. It
may be pointed out that the Hon'ble Supreme Court has held in the case of Sukhwant Sing &
ors. Vs. State of Punjab, (2009) 7 SCC 559 that when there is power to grant bail, there is
inherent power to the court concerned to grant interim bail to the person, pending final
disposal of the bail application and it is in the discretion of the concerned Court to grant
interim bail. The same is applicable to the Juvenile Justice Board. When pending final
disposal of the application, juvenile may be released on interim bail.

3.6 CHANGES BROUGHT ABOUT BECAUSE OF NIRBHAYA’S CASE20

The JJAct 2000 was repealed and 2015 Act was enacted. New Act classifies offences.
A 'heinous offence' is offence with minimum punishment of seven years of imprisonment or
more. A 'serious offence' are offences with three to seven years of imprisonment and a 'petty
offence' is with a less than three years imprisonment.

19
https://www.mlsu.ac.in/econtents/1076_Juvenile%20Justice%20Act.pdf
20
https://www.mlsu.ac.in/econtents/1076_Juvenile%20Justice%20Act.pdf

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 The old Act i.e JJA,2000 treats all the children below 18 years equally but there is
exception made in the new Act of 2015 with respect to the age group of 16 to 18 years if they
commit heinous offence then they can be tried as adult.

3.7 ESSENTIALS TO TRY THE OFFENCE AS ADULT21

➢ (Sec 19 of new Act) The Childrens Court to Decide the aspect as to whether the child is to
be tried as an adult if

➢ age group of children is 16-18

➢ committed heinous crime having minimum imprisonment of more than seven years.

➢ The Board to conduct inquiry and assessment of child under section 15

• his mental and physical capacity to commit such offence,

• ability to understand consequences of such offence and

• circumstances in which he allegedly committed an offence

➢ The JJBs will conduct a preliminary inquiry of a crime committed by a child within a
specified time period and decides whether he should be sent to rehabilitation centre or sent to
a children’s court to be tried as an adult. The board can take the help of psychologists and
psycho-social workers and other experts to take the decision.

➢ As per Section 14 such an inquiry is to be completed within a period of four months from
the date of first production of the child before the Board, unless the period is extended, for a
maximum period of two more months by the Board, having regard to the circumstances of the
case and after recording the reasons in writing for such extension. If inquiry by the Board for
petty offences remains inconclusive even after the extended period, the proceedings shall
stand terminated. However, that for serious or heinous offences, if the Board requires further
extension of time for completion of inquiry, the same is to be obtained from the Chief
Judicial Magistrate or, the Chief Metropolitan Magistrate, as the case may be.

21
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3.8 CODE OF CRIMINAL PROCEDURE EFFECT IN JUVENILE JUSTICE22

CrPC have a huge effect in dealing with the crime of minors in Juvenile Justice. CrPC
also play a major role in deciding the cases of a juvenile by proper implementation of
sections of Criminal law.

In the context of CrPC, the code of criminal procedure talks about the jurisdiction of
juveniles through the help of Section 27. According to Section 27 of CrPC, any offence
committed by a person who is below the age of 16 whose punishment does not include death
or imprisonment will be dealt with the law which provides treatment, training, imparting
good social values and rehabilitation of convicted minors.

Another Section of CrPC which is most essential for Juveniles so that the juveniles can be
benefited from it is Section 437 of The Code of Criminal Procedure. According to this
section, any child who is convicted of any crime can request or demand anticipatory bail
which is maintainable in the High Court as well as the Court of Session.

However, since there are very few cases of anticipatory bail for minors, The Juvenile Justice
Board finds it difficult to deliver judgments and thus making the system of anticipatory bails
in case of minors, more time consuming than in the case of adults.

3.9 PROCEDURE OF INQUIRY AND TRIAL UNDER NEW ACT 23

➢ Section 14 (5) (d)Cases of petty offences, shall be disposed of by the Board through
summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure
1973;

➢ Section 14 (5) (e) - inquiry of serious offences shall be disposed of by the Board, by
following the procedure, for trial in summons cases under the Code of Criminal Procedure,
1973;

➢ Section 14 (5) (f) - inquiry of heinous offences,

22
https://www.mlsu.ac.in/econtents/1076_Juvenile%20Justice%20Act.pdf
23
https://www.mlsu.ac.in/econtents/1076_Juvenile%20Justice%20Act.pdf

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(i) for child below the age of sixteen years as on the date of commission of an
offence shall be disposed of by the Board under clause;
(ii) for child above the age of sixteen years as on the date of commission of an
offence shall be dealt with in the manner prescribed under section 15.

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