This article is written by Kaustubh Kumar, Law Student at National University of Study and Research in Law, Ranchi, and Hani Dipti, Law Student at Chanakya National Law University, Patna.
INTRODUCTION
“Children are the buds in a garden and should be lovingly and carefully nurtured, as they are the future of the nation and the citizens of tomorrow.” These words of Pt. Jawahar Lal Nehru succinctly defines the duty that parents, guardians, and society as a whole, carries to provide a comfortable socio-economic environment that might help the children in the enhancement of physical, moral and psychological well-being. It is the duty of the state to provide equal opportunity for the development of each child and strive to give them a socially just environment. But, in India, where nearly 41% of the population is below 18 years (i.e., the age of majority) that accounts for the world’s largest population of children, it is very problematic to cover each child. The children who are left behind or not able to enjoy the privileges provided by the state due to bad company or socio-economic circumstances get involved in various crimes that are known as Juvenile Crime or Juvenile Delinquency.
HISTORY OF JUVENILE ACTS
Juvenile Crimes are a harsh reality in India. It has been observed since the last few years that the number of juveniles involved in various heinous crimes like murder, gang rape, etc., are increasing rapidly. It is disgraceful that children are used by different gangs to commit various unlawful and illicit activities as children are innocent who can be manipulated and lured easily, and no one doubts them. To deal with such situations, the Apprentices Act, 1850, was the first legislation implemented. According to the Section 1 of this legislation, children under the age of 15 years, if found to have committed trivial offenses, then they will be bounded as apprentices. Further, in 1897, the Reformatory Schools Act was implemented. The Section 8 of the act stated that children below 15 years of age sentenced to imprisonment would be sent to a reformatory cell. After independence, the Parliament of India enacted the Children Act, 1960, to provide for the care, protection, maintenance, welfare, training, education, and rehabilitation of neglected or delinquent children and the trial of delinquent children in the union territories. Furthermore, to implement the guidelines contained in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, the Indian Parliament passed the Juvenile Justice, 1986, repealing the Children Act, 1960. On 20th November 1989, the United Nations General Assembly adopted a Convention on Rights of Child to protect the best interests of juvenile offenders. To protect the social reintegration of juveniles, the convention states that there shall be no judicial proceeding and court trials should be conducted against them. To give effect to the provisions of this convention, Juvenile Justice Act, 2000 was enacted that got amended twice in 2006 and 2011. But the frightening Nirbhaya Case where a juvenile was also part of that incident shook the conscience of society and made lawmakers rethink the legislation.
THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015 (“Act”)
This Act was enforced to redress the loopholes present in the previous legislation considering the dynamic nature of law and society. It provided a robust and effective justice system focusing not only on deterrent but also on reformative mechanisms. The Act has been passed by the Parliament of India amidst intense controversy, debate, and dissent on many of its provisions by the Child Rights fraternity.
This legislation classifies children into two broad categories as (a) Child in need of care and protection and (b) Child in conflict with the law. Furthermore, the Act divides offenses into three broad categories as heinous offenses, serious offenses, and petty offenses.
Child in Need of Care and Protection
Section 2(14) of the Act defines a ‘child in need of care and protection.’ Such a child is to be produced before the Child Welfare Committee within twenty-four hours. The Act accommodates mandatory reporting of a child isolated from his/her guardian. Non-reporting is treated as a punishable offense. The Child Welfare Committee is to send the child in need of care and protection to the appropriate Child Care Institution and direct a social worker, case worker, or the child welfare officer to lead the social investigation within fifteen days. A child needing care and protection will be sent to a Children’s Home for care, treatment, education, training, development, and rehabilitation. The Act also talks about Open Shelters for children in need of community support on a transient basis to protect them from abuse or keep them away from a life on the streets. The Child Welfare Committee could perceive a facility to be a fit facility to temporarily take the responsibility of a child. The Specialized Adoption Agency is to deal with the rehabilitation of orphans, abandoned, or surrendered children.
Child in Conflict with Law
Section 10 of the Act states that when a child in conflict with the law apprehended by the police, then he/she will be put under the charge of the special juvenile police or the assigned child welfare police officer, who shall produce the child before the Juvenile Justice Board (“Board”).The Board will inquire that a child irrespective of age has committed any petty offence, or serious offence or a child below the age of 16 years has committed any heinous offence. It may allow the child to go home after advice or admonition, or direct the child to participate in group counselling and similar activities, or order the child to perform community service, or order the child or parents of the child to pay a fine, or direct the child to be released on probation of good conduct, or direct the child to be sent to a special home for a period not exceeding three years. In the case of a heinous offense claimed to have been submitted by a youngster, who has completed or is beyond the age of 16 years, the Board may say that there is a necessity for preliminary assessment of the kid as a grown-up. No child in conflict with the law shall be sentenced to death or for life imprisonment without the chance of release.
INDIAN COURTS WHILE CONSIDERING JUVENILE JUSTICE ACTS
Before the implementation of the Act, a petition was filed in the court of law requesting to amend the Act. Moreover, it requested to add that if a child commits a heinous offense of 16 years or above, then he/she should be tried as an adult. The Supreme Court rejecting the petition declared that the Act is based on sound principles and as per the Indian Constitution and International Conventions. Similarly, in a case filed in 2014 of Mukesh & Anr. vs. State of NCT Of Delhi &Ors. (Delhi Gangrape case), the Supreme Court refused to give harsher punishment to the juvenile offender based on the heinousness of the crime. The Apex Court in Shilpa Mittal v. State of NCT of Delhi deliberated upon the issue “whether an offense prescribing a maximum sentence of more than seven years imprisonment but not providing any minimum sentence, or providing a minimum sentence of fewer than seven years, can be considered to be a ‘heinous offense’ within the meaning of Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015”. The court disposed of the appeal by holding that an offense that does not provide a minimum sentence of 7 years cannot be treated as a heinous offense. However, the Act does not deal with the offense where the maximum sentence is more than seven years imprisonment, but no minimum sentence or a minimum sentence of fewer than seven years is provided, shall be treated as ‘serious offenses’ within the meaning of the Act and dealt with accordingly till the Parliament takes the call on the matter.
CONCLUSION
The Juvenile Acts played a crucial role in the development and rehabilitation of children, but still juvenile crimes in India are on the rise. According to National Crime Records Bureau (“NCRB”) data, the crime rate by juveniles was 6.5% in all the states and 7.1% all over India in 2018 that got increased to 6.7% and 7.2% respectively in 2019. The Union Territory of Delhi alone accounts for 48.7% of the rate of crime by the juvenile in 2018 that increased to 49.7% in 2019. Moreover, the 2017 report of NCRB states that educated juveniles commit more crimes than illiterate ones. This trend shows that although the law was enacted to help children, it failed in achieving its goal. Although the 2015 Act is regarded as better than past legislations, various High Courts and legal scholars have time and again called for effective implementation of the Act. Hence, it is the onus on the Executive, that if it takes a task to work upon, then it should not leave it incomplete. The Act should be strictly implemented so that each child who requires care and protection might enjoy the privileges and for those who are with a criminal mindset, it shall act as deterrence.
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