juvenile justice act controversy.docx

7/27/2019 Juvenile Justice Act Controversy.docx

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The controversy on Juvenile Justice Act, 2000

The Juvenile Justice (Care and Protection of Children) Act, 2000 was passed toprovide

for the care, protection, treatment, development, rehabilitation and social integration of

delinquent juveniles. The Act states that any person up to the age of 18, who commits an offence

punishable under any law, are not subject to imprisonment in adult justice system, but will

undergo reformatory programmes in remand homes not exceeding 3 years.

History of the Act:

Roots of Indian Juvenile Justice can be traced to 1920s when the Indian Jail Committee

(1919 - 1920) recommended a distinct & comprehensive handling of child offenders. This led to

the enactment of Children Act in the provinces of Madras, Bombay & Bengal in 1920, 1922, and

1924 respectively.

Later, this unique justice system received fresh impetus with the passing of

UN Rules for the Administration of Juvenile Justice 1985 (also called Beijing

Rules)

UN convention on the Rights of the Child (CRC) 1989

Both these rules were ratified by Government of India.

Based on Beijing Rules, the first central lawThe Juvenile Justice Act, 1986

was passed.

Based on CRC, which was ratified in 1992, the present Juvenile Justice Act, 2000,

was passed.

Changes in JJ Act 2000:

The JJ Act 2000 differed from its 1986 counterpart in three important aspects.

The juvenile court replace by three members Juvenile Justice Board (a magistrate & two

social work members).

Age of juvenility raised for male child from 16 to 18

Maximum custodial sentence under Section 15 (1) (g) is three years.

Present controversy:

In the light of the horrific Delhi rape case, the main offender is getting away with 3 years

of custody as he was a few years short of attaining 18 years of age when the crime was

committed. This led to public outcry to reduce the age of juveniles from 18 to 16 & increase the

period of custody.


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Arguments for reducing age of juvenility:

As per National Crime Records Bureau (NCRB) the percentage of crimes committed by

juveniles to total crimes has not significantly increased from 2001 to 2012. However the violent

crimes committed by juveniles have doubled in the past decade.

Petitioners also challenged the Act based on the following points:

The JJ Act is violative of Articles 14 and 21 and thus ultra vires the Constitution

Section 2(k) and (l) of the Act that defines juvenile or child as any person below theage of 18 years runs contrary to Sections 82, 83 of Penal Code that confers totalexemption to children below seven years of age and partial exemption to those below 12

years only.

Sections 19 and 21 that prohibit creating judicial records of juvenile proceedings andpublication of juvenile names and identity are in conflict with the interests of the society.

Comparison with other countries:

1. USA :

Most states in the USA have enacted the juvenile code with main objective of

rehabilitation and not punishment. However with the increase in violent crimes, states adopted a

Get Tough approach in 1990s.

Under this approach, the jurisdiction of juvenile courts is automatically waived when a

juvenile above a certain age, near 13 to 15 years, commits a violent crime; the case is

automatically transferred to adult court. The adult court prosecutor has to convince the adult

court that the case should be transferred. The juvenile is entitled to an attorney at the hearing andcan present any evidence to prevent the transfer.

Ex: In Indiana, South Dakota, Vermont, children as young as 10 can be tried as adults.

2. UK :

In UK, persons under the age of 18 (i.e., from 10 -18) are tried by a Youth Court. Theyouth court can issue community programmes, rehabilitation etc for a maximum period of three

years. However for serious crimes the case starts at youth court but is transferred to Crown Court

(same as sessions court). If found guilty, the sentence is similar to that of an adult offender.

Rule 17 of Beijing Rules provides that reaction shall be in proportion to the circumstance &

gravity of the offence, needs of the juvenile and society. Rule 2.3 provides that the states can set

the minimum age which must be between 7 to 18 years of age.

Therefore Indias international obligations do not prohibit it from amending the JJ Act 2000.


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Arguments against reduction of age of juvenility:

Indian juvenile justice makes no distinction between age group and violent & non-violentcriminality of juveniles.

In the 1990s the US shifted towards Retributive Juvenile Justice Policy due to the rise inincidence of juvenile offences. This led to the Get Tough Approach. This re-criminalisation

cannot be replicated in India because for the period 2001- 2011 juvenile delinquency rate ranged

between 1.6 % to 2.1% of total crime (as against half of total crime rate in US) & of these only5-8% were violent crimes like rape & murder ( as against a substantial percentage of violent

crimes in US)

However this approach is abating now. In 2005, the Supreme Court of USA abolished

juvenile death penalty; in 2010 it prohibited sentencing juveniles to life imprisonment without

parole for crimes other than homicide.

This was under the influence Brain Science Research which shows that adolescent brainsystem & its deviant behavior is a function of two distinct sets of brain system.

a. Socio emotional system.b. Cognitive control system.

Therefore competence related abilities mature by the age of 16 but capacity relevant to decisionsabout criminal culpability continues to mature till young adulthood. These findings of

MacArthur Foundation, Washington are supported by many brain scientists and researchers.

Based on these scientific reports juveniles should be tried under JJ Act up to age of 18.

In response, the Supreme Court of India gave the following reasons for not amending the JJ Act

Article 1 of the UNCRC requires the state parties to treat all persons below 18,irrespective of gender, as children, and

There is adequate scientific data to indicate that brain growth continues till the age of 18.

The court also appeared to be giving a fair chance to the petitioner when it invited scientific data

to prove the earlier onset of cognitivity. This way the court answered and dismissed all thepetitions in a logical and a legal manner.

What needs to be done?

Both sides however agree that reforms are needed to improve the rehabilitation

programmes. According to a study conducted by the India Today group, there are 815 remandhomes in India with a capacity of 35,000 inmates, but there are 1.7 million juveniles accused.

Remand homes are not conducive to reform or rehabilitate as envisioned by the International

Law. This system of complete apathy may end up creating a new underclass which combines asense of triumph over avoiding a prison term after committing heinous crimes with the


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psychological effects of staying under bleak, hope denying conditions. Segregation of juveniles

on the basis of age should be done to ensure that younger juveniles with tender and

impressionable minds are not mistreated and are kept away from elder juveniles. Improvedinfrastructure and manpower can aid in better rehabilitation programme.

The period of custody should be increased as three years is a short time for any lastingreform activity. Long periods of custody can act as a deterrent & ensure adequate rehabilitation.

Therefore instead of reducing the age, more attention should be given to improving theconditions of remand home, creating better constructive occupational training, reformatory

activities etc that can help juveniles return to society as reformed individual instead of hardcore

criminals.

As stated by Justice J S Verma in his report on Amendments to Criminal Law - We cannot hold

the child responsible for a crime before first providing to him/her the basic rights given to him bythe Indian Constitution.

By,

Naina Thomas

Reference:

1. The Hindu January 24, 2013 Juvenile Justice Act has failed

2. Frontline February 8, 2013Forcing the issue

3. The Hindu August 23, 2013This is no childs play Opinion-B.B Pande

4. The Hindu September 6, 2013Justice and the juvenileEditorial5. The Hindu September 9, 2013 - Balancing the Juvenile ActOpinion-Aparna Viswanath

6. The Hindu September 24, 2013Justice cannot follow a tough actOpinion-B.B Pande

7. Beijing Rules - www.un.org/documents/ga/res/40/a40r033.htm

8. Juvenile Justice Act 2000 - wcd.nic.in/childprot/jjact2000.pdf
http://www.un.org/documents/ga/res/40/a40r033.htmhttp://www.un.org/documents/ga/res/40/a40r033.htmhttp://www.un.org/documents/ga/res/40/a40r033.htm

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