An Overview of the working of the juvenile justice system and the effect of the changes brought about by the Amendment in 2006 in relation to Children in Conflict with the Law
There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfare is protected, that their lives are free from fear and want and that they grow up in peace . Kofi Annan.
Need for a law to apply to juveniles and the ideal scope and objectives of such a law.
Children make up a quarter of
Despite the presence of constitutional guarantees to equal opportunities and a plethora of child-centric legislation and civil rights, millions of Indian children – and especially those judged as being in conflict with the law – face widespread discrimination and deprivation. One of the many problems with the current state of affairs is the State’s decision to adopt a welfare-based – rather than a rights-based - approach towards the rehabilitation of these children. At the heart of this problem is the functioning of the judiciary at the grassroots level. Here, lower courts construe the relevant laws in such a way as to over look the concept of rights altogether and treat juvenile delinquents as adult offenders. Additionally, the whole concept of protective rather than penal provisions of the Juvenile Justice System (JJS) is ignored in toto, especially with relation to the children in conflict with the law.
Constitutional guarantees and rights recognized under the CRC.
Development of the JJS has come a long way, from the seeds of a rights based approach being found in the International Covenant on Civil and Political Rights (ICCPR) of 1966 to its final culmination in the Convention on the Rights of a Child (CRC). The ICCPR lays down specific provisions in the context of juvenile justice, these being Article 10(2) , which provides for the separation of juvenile offenders from adults for their speedy adjudication. Further still, Article 14 (4) categorically provided that the trial procedures for juveniles should take into account the age of juveniles and the desirability for their rehabilitation. These provisos could be considered as the platform or the stepping-stone for the development of certain necessary rights with regards to juvenile offenders. But despite their importance and usefulness the provisions as laid out were narrow and limited, and failed to provide wide spread protection to juvenile offenders. With the passage of time and with States developing separate juvenile justice systems, the need to have a complete framework at the international level became apparent.
Convention on the Rights of the Child 1989
The United Nations Convention on the Rights of the Child 1989 which came into force on September 3rd 1990 can be considered as the highest point in the quest for ensuring right to juveniles without at any point undermining the welfare principles of the JJS. The Convention not only recognized the rights which were to be processed according to the principles of justice, but also the rights to participation, name, nationality, identity, survival, development, adoption and the right against exploitation. The basic principles underlying the CRC are as follows 1. Primary stress was laid on the best interests of the child in all actions undertaken by public or private social welfare institutions, courts of law administrative authorities or legislative bodies 2. The children’s opinions to be given careful consideration in all matters affecting them 3. Efforts to be made to ensure family care to the child 4. Children to enjoy the rights as specified in the CRC without discrimination 5. State parties to respect the rights of a child and to ensure realization of their rights by taking measures to the maximum extent of their available resources with regard to economic social and cultural rights 6. State parties through appropriate and active means make the principles and provisions widely known to adults and children alike
As seen above the most important concept to have developed with the incorporation of the CRC was the concept of best interests of the child. The same was strengthened and upheld in regards to juvenile justice by the following provisions-
1. The well being of a child in the administration of justice needs to be upheld 2. Criminal responsibility should be related to age at which the children are able to understand the consequences of their actions as enshrined in Article 40 (3) (b) of the CRC and Rule 4 of the Beijing Rules 3. Diverting children from formal trial procedures as enshrined in Article 40 (3) (b) of the CRC and 11.1 of the Beijing Rules 4. Speedy adjudication should be of utmost importance as mentioned in Article 10 (2)(b) of the ICCPR 5. The arrest, detention or imprisonment should only be imposed on children as a measure of last resort Riyadh Guidelines
The United Nations further adopted the rules for the Protection of Juveniles deprived of their
This was immediately followed by the incorporation of the United Nations guidelines for the prevention of Juvenile delinquency also known as the Riyadh Guidelines These guidelines focus on early protection and preventive intervention paying particular attention in situations of social risk. Most importantly, Rule 7 of the Riyadh Guidelines provides that provisions are to be interpreted and implemented within the broad framework of the Universal Declaration for Human Rights, the International Covenant for Economic Social and Cultural Rights, the CRC and in the context of the Beijing Rules as well as other instruments and norms relating to the rights, interests and well-being of all children and young persons . The primary underlying principle of the
The Evolution of the Law in
The history of juvenile justice in
Prior to 1773 Prior to 1773, like other countries the concept of juvenile justice in
1773–1850 The East India Company dominated
1850 - 1919 The period between 1850 and 1919 was a time where the country was faced by a rapid social change, industrialization and increasing populations. These changes brought about a new class of delinquent, neglected, and dependent children needing formal intervention. Thus the need for new legislations dealing with children was felt. Some of the most important laws passed between 1850 and 1919 were the Apprentice Act (1850), the Indian Penal Code (1860), the Code of Criminal Procedure (1861), and the Reformatory Act (1876 and 1897). The Apprentice Act (1850) dealt with young people between the ages of 10 and 18 who were either destitute or petty offenders. Children who were convicted were made to serve out their sentences as apprentices for businessmen. Section 82 of the Indian Penal Code of 1860 also recognized the special status of children. It set age limits on criminal responsibility and excluded children younger than 7 from culpability. Moreover, children between 7 and 12 years old could be considered to have sufficient maturity to understand the nature of their actions under certain circumstances. The Code of Criminal Procedure of 1861 allowed for separate trials of persons younger than age 15 as well as their confinement in reformatories rather than prisons. The Act further provided mechanisms for placement on probation . It was result of these enactments that penal philosophy in
1919–1950 From 1919 and 1950 two major changes occurred in
Post 1950 The years following 1950 witnessed both official and non-governmental initiatives that contributed to the development of a more pronounced juvenile justice system in
By 1986, almost all states had passed their own children’s legislation. Because these acts lacked consistency in terms of defining delinquency, court procedures, and institutionalization practices, the Indian government felt a need for a children’s justice act that could be applied throughout the country. With that in mind, the central government passed the most comprehensive act to date, the Juvenile Justice Act of 1986. (JJA) The JJA was considered a unique piece 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. To accomplish the goals of this legislation, special provisions were made for separate procedures for handling offenders and non offenders. Juvenile courts were created to deal with juvenile delinquents, and juvenile welfare boards were established to handle neglected juveniles. The final decision regarding the implementation of these courts and boards was left to the respective state governments, but with some stipulations.
The years subsequent to the passing of the JJA were met with much discontent in the field of juvenile justice. The JJA despite being landmark legislation in the field of juvenile justice failed at various levels to fulfill the aims and goals of ensuring that juvenile delinquents needed special care and protection and had to be viewed in a different light.
Following which a number of national consultations were held concerning juvenile justice administration during 1999- 2000 to improve the existing unsatisfactory state of affairs. Three lines of thought emerged as to how to deal with the problem, some suggested that the law provided a satisfactory framework but needed proper implementation. It was possible to strategize within the law and use spaces and gaps to enforce the true spirit of the law. The second position was that the law, by its very design was inadequate. Amendments were needed to incorporate a uniform age for boys and girls as well as other measures like adoption foster care and non institutional measures along with the increased participation of the community. The third position was in favor of scrapping the present law and having a new one its place. A further divide within this approach was firstly to have a comprehensive code for children and have two laws, i.e. one to deal with neglected children and the other for delinquent children. It was within this background that a committee was appointed under the chairmanship of Justice Krishna to prepare a children code. This committee prepared the Code Bill 2000 and presented it to the then Prime Minister Atal Bihari Vajpayee on 14th November 2000. He assured that the same would be a valuable input. Following which the Juvenile Justice (Care & Protection of Children) Act was enacted .
The present day Administration of Juvenile Justice in
The Juvenile Justice (Care and Protection of Children) JJ(C&P) Act was enacted to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.
The Juvenile Justice Act 1986 was repealed by this Act. Any action taken under the former Act would be deemed to have been taken under corresponding provisions of this new Act .
First of all, the Act defines the ‘juvenile’ or ‘child’ as a person who has not completed 18 years of age . ‘Juvenile in conflict with law’ means a juvenile who is alleged to have committed an offence . An important change brought about by the Act was to replace the existing Juvenile Welfare Board with the Juvenile Justice Board (JJB) .
Specific principles of juvenile justice that have been overlooked in the JJ(C&P),
Despite the changes brought about the JJ (C&P) there are certain specific principles as envisaged under the (CRC) and the Constitution of India These include:
1. Firstly and most importantly, the JJ (C&P) has over looked certain crucial legal issues that have been raised for interpretation time and again before the Supreme Court and the High Courts. These questions were not clarified by the preceding JJA and the same has not been done in the current Act and can be enunciated as follows-
• The relevant date for the application of the Act. The Act in no way has categorically mentioned whether the act is to apply to a juvenile from the day of the commission of the alleged offence or from the date the juvenile is produced before the magistrate. • Whose responsibility is it to prove that the accused is a child? • The relationship between JJ(C&P) and other legislations containing an overriding clause. By doing so, the JJ(C&P) had created lacunae where such important issues are left to the vagaries of judicial interpretation, which in a country like
The Road to Redemption
In the wake of the above mentioned lacunae and drawbacks the Ministry of Law and Justice finally passed the Juvenile Justice (Care and Protection) of Children Amendment Act 2006 , which has taken a step forward towards filling the gaps in the JJS as pointed out in the preceding paragraphs
The first change brought forth by this act was change in the definition of a juvenile in conflict with the law, which now reads “a juvenile in conflict with the law” means a juvenile who is alleged to have committed an offense and has not completed his/her 18th year of age as on the date of commission of such offence” . The inclusion of the vital point regarding the date of commission of the offense thus lays to rest the point of the date of the application of the act as was brought forth time and again before the Supreme Court, especially in the cases of Umesh Chandra and Arnit Das . This change is further strengthened by the inclusion of section 7A.
"7A. (J) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence; the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect. " .
The interpretations by the Supreme Court and the Higher Courts in this regard had not been uniform and at most times had completely overlooked the broader contextual goals of best interests of the child as enshrined in the various child-centric acts, the CRC and the foundational concept of parens patriae of the JJS. The root of this problem till the above mentioned amendments lay in the lack of clarity on the consequences if the accused failed to raise the plea of being a child at the earliest given opportunity under the Acts.
The plea of child status has usually been allowed by a number of higher courts at various stages of initiation of proceedings; however there has been a serious lack of uniform practice or approach. In Krishna Bhagwan v State of
The two questions discussed in detail before High Court were: 1. First, whether the CA would be applicable if the convict was a child (a boy below the age of sixteen years) at the time of the offence but had crossed the age at the time of the sentence. 2. Second, whether the plea of age can be taken at the time of the appeal and what procedure should be adopted to determine the age of the convict at the time of the offence. Answering the first question the court quoted Sections 3 and 56 of the JJA and stated that even if a child accused has crossed over into adulthood, the inquiry maybe continued and orders be made as if the accused had continued to be a juvenile. The court while construing the same looked at the legislative intent about the possibility that while undergoing a trial, the accused might cease to be a juvenile. The court introduced a ‘deeming fiction’, which requires it to treat the accused as a child. In regards to the second question the High Court held that it could be done at the appellate stage, in case of children, but the court should be alert to the misuse of such a plea when a convict is sentenced.
However in the case of Sushil Kumar as the plea of child status was not raised before the Trial Court or the High Court or even in the original grounds of the Special Leave Petition but was added afterwards, the Supreme Court believed the plea to be an afterthought and dismissed the petition.
The Supreme Court took a different approach in the case of Gopinath Ghosh where the accused had given his age as much above the cut off age for a child. However in this case, the court not only allowed the plea of child status to be raised but also referred the matter to the Sessions Court for determination of the age of the accused.
In most cases presented before the Higher Courts, the beneficial provisions of the Acts were not applied at earlier stages because the parties concerned i.e. the child himself, the lawyer, the State counsel or the Magistrate did not raise the plea of child status. As these cases illustrate, the Supreme Court has taken contrary approaches in regards to the same.
The majority of children falling within the purview of the JJS are poor and illiterate and unaware of their rights as enshrined under the various acts. It would not be fair to expect them to be aware of the laws that exist for their benefit. Keeping this in mind it is only pertinent to say that a flexible approach should be taken by the courts in regards to recording of pleas of child status so as to uphold the underlying principle of best interests of the child. Evidence of Age and Determination of the Child
The issue of determination of the age of the child accused has on a number of occasions been deliberated by the came Higher Courts. Determination of the age of a child under the JJA is essential for two specific reasons. Firstly such age determination is of paramount importance to find out whether or not the person so accused falls under the purview of the JJA and secondly, recording of the same as nearly and accurately as possible is essential for deciding the duration of institutionalization. Age determination is however not an easy task especially in borderline cases, the reasons being, children usually do not have any documentary evidence and medical examinations. This leaves a margin of around 6 months if an ossification test of multiple joints is conducted
Different High Courts had adopted a varied range of ways to determine the age of the accused. In Shyam Narian Singh V State of Bihar , the Patna High Court determined the accused to be a juvenile on the basis of the age mentioned in his own evidence before the Magistrate as the same was not challenged by anyone.
However in the case of Gopal Chand Srivastav v State of U.P. the Judge at hand refused to rely on the evidence as adduced by the accused, as the accused appeared (to the residing judge) to be over 18 years. Though this form of decision-making was disapproved by the
It has to be kept in mind that a majority of children brought within the purview of the JJS usually do not have any documentary evidence of their age. In numerous cases where age determination had to proceed through documents adduced, major impediments were created by the discrepancy between the documents presented. The decisions were made on the basis of that document which was likely to be more reliable or authoritative. For example in the case of Anita V Atal Bihari and Another the entry of the date of birth in the record of registration of births and deaths maintained in accordance with the provisions of the Act of 1969 is admissible as evidence under Section 35 of the Evidence Act and found to be conclusive. Further still, in the case of Daljit Singh v State of
It is important to draw attention to the case of Kumar Satyanand v State of Bihar where the High court of Patna gave preference to documentary evidence over the medical evidence deducing that where documents like matriculation certificate, school leaving certificate or entries made in the different records of schools are available they should be accepted as reliable and genuine.
The second question that is raised in relation to determination of age is that of burden of proof. The Bombay High Court while adjudicating in the case of State v Dungaria Mahala held that it is the duty of the court to see that it does not exercise jurisdiction which it does not posses, thus the court has to make a thorough inquiry into the age of the accused. The same view has been reiterated by the High Courts of Andhra Pradesh,
The Supreme Court also strengthened the approach in two cases of Gopinath Ghosh and Bhola Bhagath v State of
The Supreme Court further in the case of Arnit Das stated that the court should avoid taking a hyper technical approach while appreciating evidence in regards to the age of the accused, whereby if two views are possible the court should lean in favour of holding the accused as a juvenile especially in borderline cases.
Therefore with the implementation of the amendments to the definition of a juvenile in conflict with the law and the inclusion of section 7 A, a set standard has been created which one hopes shall not leave such an important issue to unpredictable judicial interpretation.
The third change brought about is the deletion of the word ‘Group of Districts’ from section 6, i.e. constitution of the JJB for various districts. That there existed a serious problem of one JJB being constituted for a group of districts. The above entailed that children so arrested were taken far away from their homes and defeated the best interest policies of keeping the children within the ambit of their family structure. The deletion of the said word has thus made sure that every district will have its own JJB which shall make sure that the child is never too far away from his/r family.
Fourthly, there existed a problem of huge backlog of cases which has been to an extent rectified by the inclusion of sub clause (2) in section 14 which reads “The chief judicial magistrate or the chief metropolitan magistrate shall review the pendency of cases the board at every 6 months, and shall direct the board to increase the frequency of its sittings or may cause the constitution of additional boards.”
The inclusion of this clause, will go a long way in aiding Child Rights Organizations and NGO's who have time and again move to the Higher Courts seeking relief in the form of PIL's, specifically praying for the constitution of additional boards and for the increase in the number of their sittings. This in the long run will be beneficial both in the terms of time consumed in seeking basic constitutional rights, and also from a monetary view point .
Fourthly and most significantly, the inclusion of the words ‘life imprisonment’ in the section 16 (1), as was pointed out by Ved Kumari and which were detrimental towards achieving the goals of the Act, has finally been substituted but the words ' or imprisonment for any term which may extend to imprisonment for life'. This important substitution will thus prevent ‘conviction friendly’ judges as was in the case of Chanchu from sentencing juveniles to life.
Finally, the existing Section 21 which deals with the prohibition of the publication of the name and details of a juvenile, has been replaced by a new sec 21 which further adds to the old section through sub clause (2), an increased punishment of 25 thousand rupees from the existing punishment of one thousand rupees for the contravention of the provisions of sub clause 1 of the same section
These changes though few and limited, are along the lines of changes as suggested by the author and many other child rights activists and are a positive step towards the realization of rights as enshrined under the CRC.