Justice for the Juvenile Delinquent in 21st Century India

I. Introduction

I would that there were no age between sixteen and three-and-twenty, or that youth would sleep out the rest, for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.

~ In W. Shakespeare’s Winter's Tale (Act 3, Scene 3)

Between the innocence of childhood & the gruesomeness of crime lies a fine boundary that blurs, as the child is exposed to the vagrancies of a world that is ready to devour his vulnerability. Juvenile delinquency, wasn’t recognized as a separate concept by early criminologists and as such has recent roots. The first usage of the term was in 1816 in relation to the activities carried out by children which went against social regulations. It is universally accepted that in the initial years of life, people lack the necessary capabilities to traverse life & must be guided to ensure socially appropriate survival. Now, with the coming of television, internet & social media, sensitivities are complex & their resolution is a rocky road.

‘Juvenile’ is a person who has the ability to commit a crime & whose age falls in the range between minimum age of criminal responsibility & the age of criminal majority. The term ‘delinquent’ has a Latin origin and means ‘to omit’ & in common usage means any behaviour that deviates from social norms. Put together, these 2 terms encompass the broad range of activities carried out by a child or an adolescent that the society disapproves of & for which issuance of a corrective measure is justified.

When children have insufficient legitimate opportunities & challenges, they themselves take initiative to create a window, as a means to an end, that in most instances has an illegitimate character. If one undertakes a careful analysis of recorded criminal acts, of any nature, a strong correlation can be made between age & crime. Delinquency reaches a peak at the age of adolescence & sees a downward trend as age increases. Youth offenders differ from adult criminals in both their mental capacities & life experiences. It, thus, follows that both the age groups must be subjected to different treatment under the criminal justice system with a greater leeway provided to the former.

II. Statutory history

There are only a small number of countries that have undertaken the enterprise to effect legislation for upholding child rights in the past 200 years, India being an excellent exemplification of this trend. The first ever international treaty that initiated the pursuit of child rights is the Geneva Declaration on Rights of the Child, 1924. The evolution of Indian statutes pertaining to juvenile justice is traced hereinunder:

• Apprentices Act, 1850: Convicted children between 10-18 years of age were given rehabilitative vocational courses.
• Reformatory School Act, 1897: Provided for detention of juvenile delinquents in reformatory schools for 2-7 years however, after completing 18 years of age, they could no further be kept in these schools.
• Madras Children Act, 1920: Concept of juvenile courts was put in place. This legislation was followed by similar statutes in the Bengal & Bombay province.
• The Children Act, 1960: Probation officers were appointed for delinquent children. Also, juvenile cases were to be tried in Children's courts.
• Juvenile Justice Act, 1986: Pioneering central act governing juvenile delinquency. Provided for care, protection, rehabilitation of juvenile delinquents as well as neglected children.
• Juvenile Justice Act, 2000: Juvenile delinquent was redefined as a 'child in conflict with law'.
• Juvenile Justice Rules, 2007: Framework of rules formulated under the JJA, 2000 for its effective implementation.
• Juvenile Justice Act, 2015: Introduced the age-range criterion wherein a juvenile committing a heinous crime could be tried as an adult.

III. Causes of juvenile delinqu-ency

No human in all his sanity appreciates being tagged as a threat to the society, let alone a kid trying to comprehend the worldly affairs. So how is the phenomenon of juvenile delinquency expanding in scope & substance?

A) Psychological Determinants

Many developmental psychologists have evolved explanations for juvenile criminal tendencies that trace themselves to Freudian concepts of id, ego & superego. When the id (unconscious, primitive aspect of personality) has an overbearing effect over the super ego (internalized moral & ethical ideals) the person acts impulsively to gratify his instinctual needs. Both, heredity as well as the environment play a role in personality formation. Abnormalities or instability of instinct & emotion can find expression in the form of overt, violent & condemned behavioural patterns. Also, an individual may be faced with a mental dilemma while adjusting with either the society or with his own self, this is usually accompanied by strong emotions, which can influence his decision to act in a socially undesirable way.²

B) Social Determinants

1) Family

Family, as a fundamental unit in human life witnesses & plays an active role in the upbringing of the child, right from his birth. Research shows that homes that are disrupted due to various factors like poverty, unemployment, parental separation, parental delinquency, misdirected ideals, lack of parental care & protection, expose children to conditions for which they haven’t attained sufficient rationality to interpret.

2) Peer Groups

Children draw inspiration from the figures that they most closely associate with. Friends & peers include persons who most likely fall in the same age group as the child & harbor the same perspectives. A single group member holds the power to influence the entire flock.

3) School & Neighbourhood

Both these factors are passive contributors to delinquent behavior.

4) Biological Determinants

Children that can be held criminally liable are in a sensitive phase, mentally as well as physically. Hormonal & bodily changes pose a new found challenge before the child. If left unaware & without proper guidance, the biology of a person can overpower & compromise the reasoning abilities of the child. Also, factors like malnutrition, physical strain, sensory deficits, nervous system disorders may drive the affected to test the limits of his/her own disposition.

IV. Indian juvenile delinquency in numbers

The total number of cognizable juvenile crimes registered in 2019, in India, increased by approximately 2.038% from 2018. Theft (8697) saw the highest number of registered crimes followed by hurt & grievous hurt (6055) and burglary (2128). Heinous offences committed by juveniles saw a jump from the previous year. Murder was up by 7.8%, rape down by 19% and kidnapping & abduction was up by 7.8%. In 2019, Madhya Pradesh, Maharashtra, Delhi & Rajasthan led in juvenile crime while in 2018 the top 3 remained the same with Bihar falling 4^th.

V. Juvenile justice system in india

(A) Object of the Juvenile Justice Act (JJA), 2015

The first central legislation for juvenile rights i.e the Juvenile Justice Act, 1986 has undergone subsequent revision in the years 2000 & 2015. However, the philosophy behind each of these legislations has remained constant i.e securing & preserving rights of children, both, in conflict with law (CICL) & those requiring care and protection (CICP). The Indian statute, like its International counterparts, aims to safeguard the best interests of the child. Protection, Intervention & Rehabilitation are the 3 pillars that hold ground for the Indian Juvenile Justice system. Based on articles 15, 39, 45 and 47 of the Indian Constitution, the State is endowed with shouldering the duty to uphold, protect & tend to rights of the juvenile. The JJA, 2015 also reflects the principles propounded by the 1990 UNCRC, the Beijing Rules (1985), the Riyadh Guidelines (1990) & the Hague Convention on Adoption (1993).

(B) Age of Juvenile Criminal Liability

What exactly is this age of charm & magic which sours purity, turning it into vengeful moral turpitude?

Under common law, a child 7 years of age & below, is considered incapable of criminal intent & is dissolved from criminal liability. Between 7 and 14 years of age, it remains at the court’s discretion to decide whether or not the child had a ‘mens rea’ i.e a guilty mind.⁵

The issue of juvenile crime has become a global concern with differing rates of occurrence in different countries. Nations have defined juvenility in varied terms in the backdrop of their respective national criminal justice systems & prospects, e.g. the minimum age to fix criminal liability under English law is 10 years of age while in Sweden it is 15 years of age.⁶ India, however, has fixed the age of criminal minority at 7 years of age.

This principle has been defined in section 82 of the Indian Penal Code (IPC), providing blanket immunity to a child who is below 7 years. With regard to section 83 of the IPC, children between ages of 7 to 12 years are presumed to be ‘doli incapax’ unless it is proved otherwise. The JJA, 2015 delineates juvenile to be an individual who is below eighteen years of age. Also, under the Act, any person who has committed a heinous offence (for which 7 years imprisonment is the minimal punishment) & is within the range of sixteen to eighteen years of age can possibly be prosecuted as an adult.

(C) Should age of criminal liability be reduced?

After the Delhi gang-rape incident of 2012, a case that highlighted trial by media on a nation-wide scale, there was much hue & cry about reducing the age of criminal responsibility. A young woman, was, in an appalling manner, raped & killed by a group of men that also included a 17-and-a-half year old boy. The Indian populace was in a state of agitation, demanding stringent action & a provision to deal with children who commit such atrocious acts, in the most absolute way possible. This catalysed judicial action of amending the JJA, 2000 and inserting section 15 in the new JJA, 2015. Although, the provision has been designed, in a way, to simultaneously ensure justice to the victim of a heinous crime & to not compromise on the juvenile offender’s rights, it poses a dilemma of its own.

According to psychologists, a child has unformed mental capacities that are in a phase of transition as he enters adulthood. Many skeptics believe that the diminished age of culpability owes its origins to formal life currents like entering grad school or becoming an eligible voter. However, it is argued that, in an age where we tend to live parallelly, in a real & a virtual world, accompanied with an overload of information available at easy disposal, the age of maturity too has diminished.

It must also be considered that when a young mind feels the judicial heat that an adult offender faces, it leaves little room for rehabilitation and reformation of a child’s character, in order to reintegrate him into the society. Every saint has a past & every sinner has a future, which only enunciates that growth of an individual can’t be cut at the very roots by restricting his access to live a good life based on an action that was not suitably informed.⁷

(D) Features & Analysis of the Juvenile Justice Act, 2015

Approach articulated by the JJA, 2015 for children in conflict with law (CICL) is summarized below:

Children have been segregated into 2 groups- children in need of care & protection and those in conflict with law. For both, the underlying principle behind India’s juvenile justice legislative framework remains the same i.e to ensure the best interest of the child. Culpability of a juvenile is based on the nature of the crime, as enunciated under the JJA, 2015 which categorizes criminal activities under 3 comprehensive heads, viz; heinous offences, serious offences & petty offences.

• When a person between 16-18 years of age commits a heinous offense, a preliminary assessment will be conducted by the Juvenile Justice Board (JJB) & on finding a need for the child to be given the status of an adult, the JJB will hand over the proceeding to the Children’s Court which has jurisdiction to handle such offenses. If tried as an adult, the CICL is kept in a place of safety until he turns 21 years of age. After turning 21, the Probation Officer will conduct an evaluation of the reformative progress of the child, along with evaluation by relevant experts. If it is found that the CICL can be socially re-integrated, he will either be released while being under a monitoring authority’s observation for the remaining term, or will have to complete that term in jail. Also, the Children’s court orders preparation of Individual Care Plans (ICP) for CICLs & Probation officer/District Child Protection Unit/social worker conduct follow-ups on the same.
• When CICL are charged under a petty or a serious offense or a CICL less than 16 years of age has committed a heinous offense, one of the following orders maybe passed by the JJB:

i. Allowed to go home after admonition & counselling

ii. Required to participate in group counselling

iii. Directed to perform community services

iv. Pay fine

v. Released on probation while under observation of a parent/guardian/fit person for upto 3 years under a bond

vi. Released on probation & under care of a fit facility upto a period of 3 years

vii. Sent to a special home for upto 3 years to undergo reformative services. However, if the conduct of the CICL is such that he can’t be kept in a special home he would be kept in a place of safety for a period not exceeding 3 years. The court can provide for certain other requirements that need to be fulfilled for the holistic rehabilitation of the child.

• When a person commits the crime as a juvenile but turns 18 years of age during the inquiry process, he will still be treated as a child by the JJB & during the investigation, will have to stay in a place of safety.

JJA, 2000 defines the term ‘juvenile’ or ‘child’ as an individual who hasn’t attained the age of 18 years, whether it be a boy or a girl. The JJA, 2000 was amended to introduce new definitions for orphaned, abandoned & surrendered children. Also, the function, power & authority of the JJB & Child Welfare Committees (CWC) have been clearly delineated & registration of a child care institution is made mandatory.

The most controversial section of the 2015 Act is section 15. It provides for earmarking of an age range within which, if a juvenile falls & if he/she has committed a heinous crime, (punishment for which is minimum 7 years imprisonment), the JJB can look into the facts of the case & decide whether to try the individual as an adult. This further decides whether the child must be sent to a rehabilitation home or face adult prosecution in the Children’s court.

This provision has faced wrath on many grounds including it being cast as unconstitutional & in violation of the UNCRC principles. It has also been viewed as a step back from the JJA, 2000 taking on a retributive, rather than the reformative approach of the JJA, 2000.⁸ Along with conferring a good amount of discretion to the JJB, the section assumes & brandishes the child as capable of committing the offense even before he is found guilty, this doesn’t fall in line with section 3 (i) of the JJA, 2015 itself & creates bias. Those who vouch for the section, on the contrary justify that owing to excessive penetration of technology the threshold for age of maturity has lowered, making even an innocent child capable of committing ghastly crimes. This presumption though well-grounded is no reason for a child to be subjected to the treatment that an adult offender receives. In a regular court, the trial is offence-oriented while in the juvenile court it is offender-oriented.⁹ It is thus vital, for the JJB who determines the future of the juvenile, to conduct a thorough, end-to-end inquiry of the case, while taking the juvenile’s worldview into consideration as well.

Section 24 (2) of the JJA, 2015 allows retaining records of the juvenile delinquent if he/she has committed a heinous offense. This provision is violative of the right to privacy, the right to be forgotten as well as the UNCRC, which prohibits retention of juvenile records. Under section 21 of JJA, 2015 a CICL can’t be punished with either life imprisonment or death penalty. This was introduced by the JJA, 2000, prior to which a person 16-18 years of age could be sentenced to death.¹⁰ JJA, 2015 also provides for interventions in order to continue with the rehabilitation of the juvenile as well as for further follow-up steps after the reformatory process is concluded. These include the Individual Care Plan (ICP) & the After-Care support. However, the reported increase in number of re-offenders shows that the after-care mechanism is either poorly carried out or isn’t executed at all. Lack of human resource & expert staff in the observation homes can be seen as one of the causal factor to this issue.

VI. Conclusion

There have been major loopholes in implementation of the Act as is evident from the lack of infrastructure & financial aid provided by state governments to run the facilities. The Justice Verma Committee Recommendations (2013) state that many children’s homes & observation homes across the country have not been functioning in spirit of the JJA. Also, the requirement of the Act that a JJB & a Child Welfare Committee (CWC) be constituted for every district hasn’t been followed. In many juvenile facilities, counselling & mental health centres haven’t been established.¹¹ One of the indispensable principles propounded by the Judiciary in this regard, is that a retributive approach in juvenile cases must not be used. The society views a problem ex post while the courts view it as ex ante, it is important with regard to section 15 of the Juvenile Justice Act, 2015 that balance be maintained between both these facets for the child’s welfare. ¹² Moreover, the reformative approach to secure justice for the juvenile must be implemented judiciously, with enough scope left to institute sound punitive measures in cases wherein it is evident that the individual is a child only in terms of age, nonetheless, having an adult’s frame of mind.

The Juvenile Justice Act, 2015 may not be an utopian legislation, but if implemented in an astute manner can prove to be a step towards a prudent environment for the children of India, who’re essentially the drivers of future growth & innovation.

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Footnotes

1. Author is a student at Government Law College, Mumbai, India.

2. Factors Contributing to Juvenile Delinquency, K. M Bridges, Inst. Crim. L. & Criminology 531 (1926-1927) ↩

3. Crime in India, 2019: Statistics Volume-1, by the National Crime Records Bureau (NCRB), India ↩

4. Crime in India, 2018: Statistics Volume-1, by the National Crime Records Bureau (NCRB), India ↩

5. The problem of Juvenile Delinquency, Albert H. Burrows, Vol. 19, No. 6 ↩

6. https://www.slideshare.net/HAQCRCIndia/juvenile-justice-in-different-countries-age-of-criminal-responsibility-and-treatment-of-juvenile-offenders ↩

7. Quote by Oscar Wilde ↩

8. Shifting Epistemology of Juvenile Justice in India, Shailesh Kumar, Contexto Internacional vol. 41(1) Jan/Apr 2019 ↩

9. Mohammed Huzaifa Javed Ahmed & Anr v State Of Maharashtra (CRIMINAL APPEAL NO. 1153 of 2018, Bombay High Court) ↩

10. Ram Deo Chauhan & Raj Nath Chauhan vs State Of Assam (2000) 7 SCC 455 ↩

11. Justice Verma Committee Report on Amendments to Criminal Law, 23 January 2013, para 3, p.419 ↩

12. Mohammed Huzaifa Javed Ahmed & Anr v State Of Maharashtra (CRIMINAL APPEAL NO. 1153 of 2018, Bombay High Court) ↩