The first law on juvenile
justice in India is came into force in 1850. According to this law children
between 10 – 18 years will be convicted in courts and they will be given
vocational training for their rehabilitation.
OVERVIEW: The Universal
Declaration of Human Rights adopted by the United Nations in 1948 laid stress
on the importance of the child. It was maintained that motherhood and children
are entitled to special care and assistance and every child shall enjoy the
special protection. The child must be fed, nourished and protected against
every form of exploitation and must be given all means for his normal
development. The Government of India adopted the National Policy Resolution for
children in 1974 which emphasized that children who are socially handicapped,
delinquent or had been forced to take to begging should be provided facilities
for education, training and rehabilitation so that they might become useful
citizens.
But the problem of juvenile
delinquency is gradually increasing due to various factors such as population,
occupational and cultural variations etc. This problem is worldwide. Even in
developed countries juvenile crimes increased every year. In India a total of
44000 crimes were committed under the IPC by the juvenile and youthful
offenders. It was therefore, necessary to bring them back into society as
decent law abiding citizens. Thus, the National Law Policy implemented various
Children Acts in the country. These acts includes special handling to juveniles
by police, separate arrangements for trial and processing of juveniles.
PREVAILING
JUVENILES LAWS: Section 82 and 83
of IPC provides a special consideration for children of immature understanding.
Under the age of seven , a child is doli incapax (deemed incapable of forming the intent to commit a crime or
tort, especially by reason of age) as per presumption of law. If a child is
above 7 years and under 12 years of age and it is proved that he did not know
the natural and physical consequences of his conduct, it should not be treated
as an offence. Section 399 of Crpc provides that when any person under 15 years
, sentenced by criminal court to imprisonment, the court might direct that such
person would be sent to any reformatory school where there are means of
discipline and of training in some useful industry. Section 562 made provision
for person under 21 years for release on probation of good conduct.
The first special law was the
Reformatory School Act, 1876 which was modified in 1997. It was provided that a
child found guilty should be detained in such schools for a period of 3-7
years. The Indian Jails Committee 1919-1920 emphasized separate treatment of
children and youthful offenders for their reformation.
Further the Indian Government enacted
a Children Act in 1960 which introduced some new features. One important
provision was the set up of Juvenile Court. The purpose of juvenile court is
not to punish but to help a child in trouble. States lay down special
qualification of child welfare and psychology for the appointments of a
juvenile court magistrate. The children’s court deals with those who come in
conflict with law and Child Welfare Board deals with children who are found
neglected and uncontrollable.
With the establishment of juvenile
courts an entirely new procedure was introduced. The basic idea is that of
guardianship of the state. The juvenile offenders are not treated as criminals but
the ward of the state and receives care and protection. Some Children Act
provides that the police should appear in the juvenile court in plain clothes
so that the child may not have any fear in his mind. As a rule, children are
not to be handcuffed by the police. The Saurashtra Children Act provided for a
ban on the entrance of a lawyer in the juvenile court but the Gujrat High Court
in Mansing v. The state of Gujrat (1969)
10 Guj.L.A.66 [i]
struct down Section 22 of the Saurashtra Children Act 1954 which prevented
a legal practitioner from appearing in any case before the juvenile court. In
its verdict the court opined that this provision violate the article 22(1) of Constitution
which confers on a person the fundamental right to be defended by legal
practitioner of his own choice.
The Children Act provides for the
setting up remand or observation homes for children’s safety while their cases
are pending before the juvenile courts.
NEED OF JUVENILE
JUSTICE ACT 2015: In the wake of Delhi Gang Rape (16 dec, 2012), [ii]
the law suffered a nationwide criticism owing to its helplessness against
crimes where juveniles get involved in heinous crimes like rape and murder. In
2015, both the houses of Parliament amended the Bill, that lowered the juvenile
age to 16 and proposed adult like treatment for juveniles accused of heinous
crimes. After the 2012 Delhi Gang Rape, it was found that one of the accused
was a few months away from being 18. So, he was tried in a juvenile court. On July
31, 2013 Subramanian Swamy files a PIL in Supreme Court seeking that the boy to
be tried as an adult.
The Juvenile
Justice (care and protection of children) Act, 2000 provides the framework to
deal with children who are in conflict with law and children in need of care
and protection. This Act was facing implementation issues and procedural delays
with regard to adoption etc. There was increase in crimes committed by juveniles
of 16-18 years age. Under this Act, any child offender may spend a maximum of 3
years in institutional care or special homes. They were not given any penalty
higher than 3 years ,not be tried as an adult and be sent to an adult jail. But
the new law treats all the children below 18 years and who commits a heinous
offence as an adult. The Juvenile Justice Boards shall assess the child’s
mental and physical capacity and on its basis decide whether the child is fit
to be as an adult.
The new Bill also
outlined the detailed procedures for adoption and introduces a provision for
inter- country adoption so that prospective parents living outside the country
can adopt a child in India. The Bill focused on the children need of care and
protection. A child who found orphaned, abandoned or surrendered is brought
before a Child Welfare Committee within 24 hours. On the special investigation
report, the Committee decides whether to send the children to their own homes
or any other facility it deems fit or to declare the child to be free for
adoption or foster care.
Also various
penalties for committing offences against children are laid out in the Bill.
These includes giving a child an intoxicating substance punishable with seven
years imprisonment and one lakh fine and selling or buying a child will be
punishable with five years of imprisonment and one lakh rupees. The Bill
introduces Foster Care. Families will sign up for foster care and abandoned
orphaned children or those in conflict with law will be sent to them. Such
families shall be monitored and shall receive financial aid from the State. In
this context, disabled children and children of physically and financially
incapable will be given priority.
The Act also
modified section 77 that if a person gives to any child any intoxicating liquor
or any narcotic drug or tobacco products except on the order of duly qualified
medical practitioner, shall be punishable with rigorous imprisonment for a term
which may extent to seven years and one lakh fine. It also provided that all
child care institutions whether Governmental or non-Governmental, are to be
mandatorily registered under this Act within six months from the date of the
commencement of the Act. Stringent penalty is imposed in case of
non-compliance.
CRITICISM: Under Juvenile Justice Act 2015, juveniles
between the age of 16-18 years of age when found guilty of committing heinous
offences by the Juvenile Justice Board will be sent to a children’s court that
can pronounce the child guilty. Such juveniles can be detained in a place of
safety until they reach the age of 21. If still found not reformed by 21, they
can be sent to jails housing adults. But at present most states do not have the
place of safety or Borstals. In some states juveniles sent to regular jails
where reformation if always in doubt. It is really unfortunate that out of all
the vices that has transpired in Indian soil, we today find our children as our
greatest enemies. It is the world of darkness that grab them in crimes. There
is need to show light to them.
CONCLUSION: The new Act provides great provisions for
the adoption of the children for their benefit. Moreover, strict registration
of child welfare institutions guaranteed the complete protection of abandoned
children. The provision to treat 16-18 years of age as adult is good as per
today’s changing society, this age group is mature enough to understand and
differentiate between the right and wrong.
“WEARING A SUIT DOESN’T MAKE YOU MATURE OR
KNOWLEDGEEABLE. IT ONLY MAKES YOU SEEMS SO TO PEOPLE WHO ARE IMMATURE AND
IGNORANT”.
