JUVENILE JUSTICE : BEYOND MINIMUM AGE OF

CRIMINAL RESPONSIBILITYRESPONSIBILITY

- Maharukh Adenwalla

DIMINISHED CRIMINAL RESPONSIBILITY - MACR

• SECTION 82 IPC:Act of a child under 7 years of age.–Nothing is an offence which is done by a child under 7 years of age.

• SECTION 83 IPC:Act of a child above 7 & under • SECTION 83 IPC:Act of a child above 7 & under 12 of immature understanding.-Nothing is an offence which is done by a child above 7 years of age & under 12, who has not attained sufficient maturity of understanding of knowing the nature & consequences of his conduct on that occasion.

IMPLICATION OF MACR

CERTAIN CHILDREN ABOVE 7 YEARS AND ALL CHILDREN ABOVE 12 YEARS ARE AWARE OF THE NATURE AND THE NATURE AND CONSEQUENCES OF THEIR CONDUCT.

QUESTION RAISED

IF CHILDREN KNOW THE NATURE & CONSEQUENCES OF THEIR CONDUCT WHAT IS OF THEIR CONDUCT WHAT IS IT THAT ALLOWS FOR THEIR DIFFERENTIAL TREATMENT UNDER LAW.

RIGHT TO EQUALITY

• ART. 7 OF UDHR : All are equal before the law & are entitled without any discrimination to equal protection of the law.law.

• ART. 14 OF CONSTITUTION : The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

PROPORTIONAL EQUALITY

• All are not equal.• State is obligated to enact laws in favour

of weak & disadvantaged.• Right to equal treatment in similar • Right to equal treatment in similar

circumstances.• Persons who are unequally circumstanced

cannot be treated on par.

LEGISLATIVE CLASSIFICATION

• Reasonable.• Test of Reasonableness :(1) subject-matter of legislation to be a well-

defined group distinguishable from the defined group distinguishable from the rest;

(2) distinguishable feature to have a rational relation with object sought to be achieved by such legislation.

ARTICLE 15(3) of Constitution

Nothing in this article shall prevent the State from making any special provision for any special provision for women & children.

QUESTION RAISED

Does the Juvenile Justice [Care & Protection of Children] Act 2000 satisfy the objective for treating satisfy the objective for treating juveniles in conflict with law differently from adult offenders.

Reasons for differential treatment

• Report of the Indian Jails Committee 1919-1920.

• Beijing Rules.• Convention on the Rights of the Child.• Convention on the Rights of the Child.• General Comment No. 10.• Dr. Laurence Steinberg.• Dr. Ved Kumari.• Salil Bali vs. UOI : [2013] 7 SCC 705.

Report of the Indian Jails Committee, 1919-1920

• A child criminal is the product of unfavourable environment & is entitled to a fresh chance under better surroundings.

• Prospect of reformation are hopeful.• Prospect of reformation are hopeful.• Does not have the same full knowledge &

realisation of the nature & consequences of his act as does an adult.

Report of the Indian Jails Committee, 1919-1920 [contd.]

Adolescence : above 16 years : critical age-(1) Increased freedom;(2) Weakening of home restraints;(3) Development of sexual instinct;(3) Development of sexual instinct;(4) Mind susceptible to impression;(5) Undesirable to bring into contact with

adult offenders;(6) Need for reforming influences.

UN Standard Minimum Rules for Administration of Juvenile Justice

that the young, owing to their early stage of human development, require particular care & assistance with regard to physical, mental & social regard to physical, mental & social development, and require legal protection in conditions of peace, freedom, dignity and security.

CONVENTION ON THE RIGHTS OF THE CHILD

• PREAMBLE : the child by reason of his physical & mental immaturity, needs special immaturity, needs special safeguards & care, including appropriate legal protection, before as well as after birth.

CONVENTION ON THE RIGHTS OF THE CHILD [contd.]

ARTICLE 37 : Every child deprived of liberty shall be treated with humanity & respect for the inherent dignity of the human person and in a manner which takes into person and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults…

CONVENTION ON THE RIGHTS OF THE CHILD [contd.]

ARTICLE 40 : • a child offender should be treated in a

manner commensurate with age;• promote child’s reintegration & assumption • promote child’s reintegration & assumption

of constructive role in society;• availability of variety of dispositions [care,

guidance & supervision; counselling; probation; education & vocational training; etc.].

GENERAL COMMENT NO.10

CLAUSE 10 : Children differ from adults in their physical & psychological development, & their emotional & educational needs. Such differences constitute the basis for the lesser constitute the basis for the lesser culpability of children in conflict with the law. These & other differences are the reasons for a separate juvenile justice system & require a different treatment for children.

GENERAL COMMENT NO. 10 [contd.]

Applicability of juvenile justice system : CLAUSE 10 : for all children who, at the time of their alleged commission of an offence [or act punishable under of an offence [or act punishable under the criminal law], have not yet reached the age of 18 years.

GENERAL COMMENT NO. 10 [contd.]

CLAUSE 37 : The Committee wishes to remind State parties that they have recognised the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in accordance with the provisions of be treated in accordance with the provisions of Art.40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice.

DR. LAURENCE STEINBERG

• Adolescence is a heightened period of vulnerability because of the gaps between the development of the emotional, cognitive & behavioural correlates of the cognitive & behavioural correlates of the growing brain & this has important implications for our understanding of normative & atypical psychological development.

LAURENCE STEINBERG [CONTD.]

• Adolescence is characterised by heightened risk-taking & decreased levels of self-regulatory competence.

DR. VED KUMARI

• The concept of juvenile justice was derived from a belief that the problems of juvenile delinquency & youth in abnormal situations are not amenable to resolution within the framework of the traditional processes of criminal law.of the traditional processes of criminal law.

• Two-fold reasons – (1) not as mature as adults to understand nature & consequences of act; (2) harmful effects of keeping child & adult offender together.

SALIL BALI’S JUDGMENT

• Persons below 18 years on the date of offence to be dealt with under Juvenile Justice [Care & Protection of Children] Act 2000 irrespective of Children] Act 2000 irrespective of offence committed.

• Judgment passed by Supreme Court on considering some of the abovementioned aspects.

JUSTIFICATION FOR JUVENILE JUSTICE SYSTEM

(1) Physical & mental immaturity – lesser culpability;

(2) Amenable to reform;(3) State failed in its duty towards children;(4) Susceptible to impressions & influences;(4) Susceptible to impressions & influences;(5) Lack of realisation & thoughtlessness;(6) Harmful effect if children co-mingle with adult

offenders;(7) Vulnerability of child results in offending;(8) Unable to cope with challenges – reacts

disproportionately & misappropriately.

TYPE OF OFFENCE IMMATERIAL

• Purpose of treating JCLs diversely are fundamental & innate.

• Traits specific during stage of development from child to adolescent.development from child to adolescent.

• Handling these peculiarities require special treatment within an appropriate environment / system.

• Child & not the offence is the focus.