PRESTIGE INSTITUTE OF MANAGEMENT AND RESEARCH,

DEPARTMENT OF LAW

SESSION 2019-2020

Topic- Unit V

Subject: Offences against Child and Juvenile Offences

Submitted to: Submitted by-

Asst. Prof. Shaili Kailasia Gunjan Khatri

Arhum Khan

B.A.LL.B X Sem

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2
INTRODUCTION

Children in conflict with law have a place with one of the most helpless areas of youngsters in
India. Rule of law and access to equity are the essential prerequisites for a nation's advancement
and is as basic for the decrease of social contrasts as the arrangement of fundamental
administrations, for example, appropriate wellbeing and training frameworks. In any case, it has
been perceived that youngsters, when subject to a similar equity component as grown-ups may
wind up additionally exploited by the framework itself. It is this acknowledgment that has
prompted the improvement of a different child equity framework or adolescent equity framework
in numerous pieces of the world. In certain nations, in spite of acknowledgment of the need of a
different adolescent equity framework, youngsters in the higher age gathering might be treated
through the grown-up criminal equity framework for specific offenses and in numerous
discipline for egregious wrongdoings carried out by adolescents is stringent and at standard with
that endorsed for grown-ups. The horrible event of Nirbhaya Delhi Gang Rape Case 1, on
December 16, 2012 stunned the entire country and numerous discussions were begun among
legitimate clique and communists. The fundamental explanation and issue of the discussion was
the contribution of denounced, who was only a half year short to achieve the age of 18 years. The
inclusion of the blamed in such a deplorable wrongdoing for assault constrained the Indian
Legislation to present another law and therefore, Indian Parliament thought of another law which
is known as " Juvenile Justice ( Care and Protection), 2015.The Introduction of the Act has
supplanted the current adolescent laws and has presented some wonderful changes. One of the
noteworthy changes is adolescent under the age gathering of 16 to 18 years ought to be attempted
as a grown-up.

The phase of advancement of the getting, talk and even the law in the territory of adolescent
equity change starting with one district then onto the next, contingent upon the history and
culture of its residents, their way to deal with human rights, their legitimate and specialized
limits and their administration (HAQ, 2013)2. There are numerous parts of an adolescent equity
framework, the individuals who are engaged with it, the manner in which they act, the technique,
the physical and different offices. For instance, it is about the way wherein police capture or
cross examine childs, the demeanor of attorneys and investigators; the way that judges settle on
choices about blame or condemning; dealing with by jail staff, the living; instructive;
recreational and wellbeing conditions at places where childs are being kept and programs for
recovery and reintegration.

1
1998 SCC, Del 879 : (1999) 77 DLT 181
2
HAQ,2013-Health assessment questionnaire

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Three models or approaches have been distinguished in the Juvenile Justice System over the
world, the government assistance or the parens patrie model, the Due Process Model and the
Participatory Model. Numerous nations of the world have consolidated every one of these
models to advance their own. Indeed, even the comprehension of what comprise adolescent
equity varies. For instance, the adolescent equity framework in many nations manages childs in
struggle with law, while other social and state-explicit laws are utilized for youngsters needing
care and security

Definition of Child and Juvenile under the Juvenile Justice Act, 2015 and other various
laws

For the most part, a "child "means an individual who has not achieve the age of 18 years and isn't
experienced to comprehend that what is good and bad . In current period, the reformatory laws of
most nations have received the standard of 'doli incapex'3 which methods for realizing that
demonstration there are perpetrating is a wrongdoing. The punitive laws likewise expresses that
Only child between the age of seven to twelve age can be indicted, given that, the demonstration
they have carried out is an appalling wrongdoing and they have information and has achieved the
adequate information to comprehend the results of their demonstration.

As indicated by sub-segment 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 a
"youngster" signifies an individual who has not finished eighteen years old. The Act groups the
expression "youngster" into two classifications: –

1. “child in conflict with law” 4, and

2. “child in need of care and protection”5

The child who has submitted an offense and the individual in question is younger than 18 years
on the date of commission of the offense is fundamentally called as "child in strife with law".
The subsequent sub – class is "child needing care and security" signifies a child advertisement
characterized under Section 14 of the Act. Children Act, 1960 :- Section 2(e) of the Act states "
child" signifies a child who has not achieved the age of sixteen years or a young lady who has
not accomplished the age of eighteen years6.

United Nations Convention : – The UN Convention on the Rights of Child, 1989 characterizes
that "child" signifies an individual beneath the age of eighteen years except if the law revelation
pertinent to child , dominant part is achieved before.7

3
Section 82 of IPC states that a child below the age of seven years is
doli incapex ,
4
Section 13 of The Juvenile Justice (Care and Protection of Children) Act,2015
5
Section 14 of The Juvenile Justice (Care and Protection of Children) Act,2015
6
The Children Act , 1960 , Universal Publication , 12th Edition
7
Article 1 of the UN Convention on the Rights of Child, 1989
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Difference between Juvenile and Child

An individual under the period of full legitimate commitment and duty is a minor or an
individual who is beneath the lawful age of eighteen years is minor. A youngster being blamed
for a wrongdoing isn't attempted as a grown-up and is sent to Child Care Center though
adolescent is an individual between the age gathering of sixteen and eighteen years. A youngster
who is been blamed for wrongdoing is an adolescent guilty party and is investigated as grown-up
in court procedures.

When all is said in done detect both the term has same importance yet anyway distinction lies in
setting of suggestions according to law. Minor suggests youthful and adolescent people while
adolescent either demonstrates juvenile individual or youthful guilty parties.

International Concerns for Juvenile

The General Assembly of the United Nations received the Convention on the Rights of the Child
on twentieth November, 1989 which endorse a lot of standard to be clung to by all the States
parties in making sure about the wellbeing of the youngster.8 The International instruments and
shows have contributed extensively to the issue of child rights and counteraction of child abuse.
The International bodies like United Nations and UNICEF have constantly paid more
accentuation on the improvement of Child. Following are the International Instruments and
Conventions that are marked by all the States of UN so as to ensure the privileges of Children:-

UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)

UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)

UN Rules for the Protection of Juvenile Deprived of their Liberty (Havana Conventions)

Guidelines for the Action on Children in Criminal Juvenile System (Vienna Guidelines)

JUVENILE JUSTICE SYSTEM IN UK

Without precedent for 1908 Juvenile Courts were set up in England under the Children Act,
1908. The essential obligation of these courts was to give appropriate consideration and security
to youngster and youthful guilty parties and find a way to evacuate all unfortunate environmental
factors around the wrongdoers and to guarantee transformation of the wrongdoers by giving
instruction and preparing.

The Children and Young Offenders Act, 1933 presents the common powers on the Juvenile
Courts in certain significant cases to investigate matter. The Act likewise gives that any

8
Prof. N.V. Paranjape , Criminology , Penology with Victimology, page no 662 ,Central Law
Publications, 17th edition,2017
5
youngster9 and young person10 who have committed the crime should be tried in Juvenile Courts
only. The Act also provides the establishment of Remand Homes.11

UK Legislation likewise accompanied the new Act that additionally manages Rights of Juvenile
Offenders. The Act came to know as The Criminal Justice Act, 1948, the demonstration gives
certain class of security to youthful guilty parties by sending them to remand homes.

JUVENILE JUSTICE SYSTEM IN USA

The working of Juvenile Courts in U.S.A. is generally less unpredictable and simpler when
contrasted with different countries. The courts of U.S.A. follows the casual route during the time
spent preliminary of guilty party. At the primary stage , the cop in the charge of the case has the
full watchfulness power either to keep the adolescent guilty party in the youngster guardianship
or to promptly discharge him or to counsel the wrongdoer or to do the both. In the subsequent
stage cop need to contact the Juvenile Courts to make them mindful about the case and to bring
the issues into their hands.

Adolescent Offenders after the preliminary in court is being sent to Certified Schools or to the
Children Homes if the request is passed by the court. As per the Juvenile Justice System in
U.S.A. an adolescent is attempted as a grown-up just in those situations where the age of the
adolescent is near adulthood according to the statutory arrangements or any adolescent
wrongdoers who is seen as associated with rehashed offenses and is demonstrated risk to the
general public.

HISTORY OF JUVENILE JUSTICE SYSTEM IN INDIA

Right now, development for the uncommon treatment of juvenile wrongdoers has begun all
through the world including many created nations like U.K., U.S.A. This development has been
begun around the eighteenth century. Before this, adolescent wrongdoers were treated as same as
other criminal guilty parties. Furthermore, for a similar explanation, General Assembly of United
Nations has embraced a Convention on the Rights of Child on twentieth November 1989. This
show looks to secure the wellbeing of adolescent guilty parties. The Convention expresses that to
ensure the social – reintegration of adolescent, there will be no legal continuing and court
preliminaries against them. The Convention drives the Indian Legislation to cancel the Juvenile
Justice Act, 1986 and to make another law. Hence, Indian Legislation concocted another
demonstration which was called as "The Juvenile Justice (Care and Protection of Children) Act,
2000.

9
A person under fourteen years of age
10
A person between the age group of fourteen and seventeen year
11
Section 77 of the said act

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The Juvenile Justice, 1986 which canceled the previous Children Act, 1960, planned for offering
impact to the rules contained in the Standard Minimum Rules for the Administration of Juvenile
Justice embraced by the U.N. nations in November 1985 12. The above mentioned Act comprised
of 63 Sections, 7 Chapters and is reached out to entire India hope to the State of Jammu and
Kashmir. The main role of the Act was to give care and assurance, treatment, advancement and
restoration of the dismissed adolescent reprobate. The primary destinations of the Act were:-

The act fundamentally set down uniform system for the adolescent equity in nation so that it
secures the privilege and enthusiasm of adolescent.

It discusses the apparatus and infra – structure for the consideration, assurance treatment,
improvement and recovery of the adolescent wrongdoers.

It set out the fundamental arrangements for the best possible and reasonable organization of
criminal equity if there should arise an occurrence of shocking wrongdoing done by adolescent
guilty parties.

Juvenile Justice Act, 2000

The Act was enacted in year 2000 with point and aim to give insurance to children. The
referenced was revised twice – first in the time of 2006 and later in year of 2011 .The change
was made to address the hole and provisos in the execution.

Further, the expanding number of instances of adolescent violations in the last late years and
ghastly episode of "Delhi Gang Rape Case" has constrained the administrators to concoct the
law. The significant disadvantage of the Act was that it contains sick prepared legitimate
arrangements and failing adolescent framework was likewise the significant explanation in
forestalling the adolescent wrongdoings in India. The demonstration was supplanted soon by The
Juvenile Justice (Care and Protection) Act, 2015.

PRESENT JUVENILE JUSTICE SYSTEM IN INDIA

Like different nations , India had additionally made lawful arrangements that particularly and
explicitly manages the rights and security of adolescent guilty parties which tries to handle the
issue of adolescent misconduct. The Juvenile Justice System in India is made based on three
principle suspicions:-

young offenders ought not be attempted in courts , rather they ought to be amended in all the
most ideal ways,

they ought not be rebuffed by the courts , however they ought to get an opportunity to change

Prof. N.V. Paranjape , Criminology , Penology with Victimology, page no 673 ,Central Law
12

Publications, 17th edition,2017

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preliminary for child in strife with law 13 ought to be founded on non-reformatory treatment
through the networks dependent on the social control organizations for example Perception
Homes14 and Special Homes.15

Juvenile Justice Act, 2015

The intends to solidify the laws identifying with youngsters claimed and saw as in struggle with
law and childs needing care and insurance by providing food and considering their fundamental
needs through legitimate care& security , improvement, treatment , social-coordination , by
receiving a child well disposed methodology in the arbitration and removal of issues to the
greatest advantage of childs. The demonstration additionally centers around restoration of
adolescent guilty parties through different child care houses and foundations. The most
significant subjects of the Act are as per the following:-

 Claim of Juvenility

The absolute first and most far from being obviously true inquiry among the lawful society and
communists is the " claim of juvenility". The case of Juvenility is to be chosen by Juvenile
Justice Board. The Board needs to choose the case of adolescence under the watchful eye of the
court procedures however the case of immaturity can be raised under the steady gaze of the court
at any phase of procedures and significantly after the removal of the issue by the Board .The
Board needed to consider Rule 12 of the Juvenile JusticeRules, 2007 so as to decide the case of
adolescence. In the event of KulaiIbrahim v. State of Coimbatore16 it was seen by the Court that
blamed has option to bring up the issue of immaturity anytime of time during preliminary or
significantly after the removal of the case under the Section 9 of Juvenile Justice Act , 2015.

If there should be an occurrence of Deoki Nandan Dayma v. State of Uttar Pradesh17 the court
held that section in the register of school referencing the date of birth of understudy is acceptable
proof in deciding the time of adolescent or to show that whether the blamed is adolescent or
child. Again on account of Satbir Singh& others v. State of Haryana18 Supreme Court again
emphasized that with the end goal of assurance whether denounced is adolescent or not , the date
of birth which is recorded in the school records will be contemplated by Juvenile Justice Board.

13
Section 2 (13) of the Juvenile Justice ( Care and Protection) Act , 2015
14
Section 47 of the Juvenile Justice ( Care and Protection) Act , 2015
15
Section 48 of the Juvenile Justice ( Care and Protection) Act , 2015
16
AIR 2014 SC 2726
17
1997 i0 SCC 525
18
AIR 2005 SC 3549
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In case of Krishna Bhagwan v. State of Bihar19 the court expressed that with the end goal of
preliminary under Juvenile Justice Board , the important date for the considering the period of
adolescent ought to be on which the offense has been submitted.

In any case, later in case of Arnit Das v. State of Bihar20, the Supreme Court overruled its past
choice and held that date to choose in case of immaturity ought to be the date on which the
blamed is brought before the capable power.

Juvenile Justice Board

There will be a constitution of Board with the end goal of request and hearing in the issues of
adolescent in struggle with law.21 The Board will comprises of Principal Magistrate and two
social laborers, among whom one ought to be a women.22 The Act gives that by no means the
Board can control and work from customary court premises. The choice taken by the Principal
Magistrate will be final.23

Unique Procedure of Juvenile Justice Board :- The Act has given the system against the
adolescent guilty party .Following are the principle exceptional strategy –

 The procedures can't be started on a grumbling enrolled by the police or resident

 The meeting must be casual and ought to be carefully private.
 The guilty parties ought to be held under Observation Home after detainment.
 The preliminary of adolescent in strife with law will be led by woman Magistrate.

A youngster in struggle with law might be created before an individual from the Board , when
Board isn't sitting.24

Causes of Juvenile Delinquency

Investigates and Studies shows that they are different reasons for adolescent misconduct in India.
Each individual has distinctive standards of conduct so as on the off chance that with youngsters
moreover. The personal conduct standards create in youth and at beginning period it is
exceptionally hard to recognize any sort of conduct. In any case, when , child grows up turns out
to genuine world , personal conduct standards changes every now and then and numerous
conditions or circumstance may emerged the reprobate conduct in them . Following are the a
portion of the reasons for Juvenile Delinquency:-

19
AIR 1989
20
AIR 2000 SC 748
21
Section 4 of Juvenile Justice( Care and Protection) Act , 2015.
22
Section 4(2) of Juvenile Justice( Care and Protection) Act , 2015
23
Section 5 of Juvenile Justice( Care and Protection) Act , 2015,
24
Section 7(2) 0f the Juvenile Justice( Care and Protection) Act, 2015
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Adolescence Instability: – The natural, mental and sociological are one of the significant factors
in the personal conduct standard of pre-adult. At this stage, youngsters become increasingly
cognizant about their appearances and styles, delight, nourishment, play and so on. What's more,
at this age, they need opportunity and they needed to be free however once in a while they are
given any odds and oppournities by their folks, instructors and seniors this prompts improvement
of hostile to – social conduct in them. Hence, this enemy of – social conduct, natural changes,
mental causes are the portion of the reasons which is liable for juvenile misconduct.

Disintegration of Family System: – Disintegration of family framework and laxity in parental

control is additionally the primary driver of expanding paces of adolescent misconduct. In typical
cases separation of guardians, absence of parental control, absence of adoration and expressions
of love are the central point of adolescent wrongdoing.

Financial condition and Poverty: – Poverty and poor monetary condition is likewise consider
has major contributing component of expanding adolescent wrongdoings as consequence of
destitution, guardians or watchman neglects to satisfy the necessities of the youngster and
simultaneously kids needs that their wants ought to be satisfied by guardians by snare or by cook
and when their wants are met they start themselves enjoying taking cash from homes or some
other guardians. What's more, this create routine propensity of taking which results into burglary
everywhere scale.

Relocation: – Migration of left and down and out adolescents' young men to ghettos regions
acquires them contact with some enemy of – social components of society that conveys some
criminal operations like prostitution, sneaking of medications or opiates and so on. These sorts of
exercises pull in the adolescent a great deal and they may include themselves in such exercises.

Sex Indulgence:- The juvenile individuals who have encountered sex ambush or some other sort
of undesirable physical attack in their youth may build up any sort of ghastliness in their conduct
and psyche. Right now may turn out to be more transients or might need to engage in sexual
relations experience. A lot of sex indulgence may lead the juveniles towards the wrongdoing of
kidnaping and rapes etc.25

Present day Life Style: – The quickly changing society examples and current living style,
makes it extremely hard for youngsters and youths to alter themselves to the better approaches
for way of life. They are stood up to with issues of culture clashes and can't separate among right
and wrong.26

25
Dr. S.S. Srivastava, page no 319, Central Law Agency, third Edition, 2007

Prof. N.V. Paranjape, Criminology, Penology with Victimology, page no 665, Central Law
26

Publications, seventeenth version , 2017

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JUVENILE JUSTICE AND CONSTITUTION OF INDIA

The Indian constitution agrees rights to children as citizens of the nation, and with regards to
their exceptional status the State has even authorized unique laws. The Constitution, proclaimed
in 1950, envelops most rights remembered for the UN Convention on the Rights of the Child as
Fundamental Rights and Directive Principles of State Policy. Throughout the years, numerous
people and open intrigue bunches have moved toward the peak court for compensation of central
rights, including kid rights. The Directive Principles of State Policy articulate social and
financial rights that have been announced to be "essential in the administration of the nation and
… the obligation of the state to apply … in making laws" (Article 37). The legislature has the
adaptability to attempt fitting authoritative and managerial measures to guarantee kids'
privileges; no court can cause the administration to guarantee them, as these are basically
mandates. These mandates have empowered the legal executive to give some milestone decisions
advancing kids' privileges, prompting Constitutional Amendments as is on account of the 86th
Amendment to the Constitution that made Right to Education a Fundamental right.

Constitutional guarantees that are meant specifically for children

 Right to free and compulsory elementary education for all children in the 6-14 year age
group   (Article21 A)
 Right to be protected from any hazardous employment till the age of 14 years (Article 24)
 Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e))
 Right to equal opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and guaranteed protection of childhood and youth
against exploitation and against moral and material abandonment (Article 39 (f))
 Right to early childhood care and education to all children until they complete the age of
six years(Article 45) 27

Additionally, Children likewise have rights as equivalent citizens of India, similarly as some
other grown-up male or female:

 Right to equality (Article 14)

 Right against discrimination (Article 15)
 Right to personal liberty and due process of law (Article 21)
 Right to being protected from being trafficked and forced into bonded labour (Article 23)
 Right of minorities for protection of their interests (Article 29)
 Right of weaker sections of the people to be protected from social injustice and all forms
of exploitation(Article 46)

27
The Constitution Of India

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  Right to nutrition and standard of living and improved public health (Article 47)28

Right to Education

Article 21 of the constitution expresses that "right to education- the state will give free and
necessary education to all children of the age of six to fourteen years in such a way as the state
may, by law decide."

The Supreme Court in its liberal understanding of life and liberty as under Article 21 held that
the term liberty incorporates liberty as well as incorporates livelihood yet in addition the
privilege of people to live with respect and that additionally incorporates the privilege to
education, and along these lines, right to education is a principal directly under the constitution.
The case of Mohini Jain came to be sustained by the preeminent courts consequent constitution
seat of Unnikrishnan's case, which held that privilege to instruction can be confined to essential
instructive level and not to higher optional level.

Article 45 Provision for early childhood care and education to children below the age of six

years-

The State will attempt to give youth care and education for all youngsters until they complete the
age of six years.

This article has been subbed by the Constitution (86th amendment) act, 2002 which got consent
of the President on Dec. 12 2002. By this correction another Article 21-An accommodating right
to instruction has additionally been embedded. This is with regards to the expectation
communicated in the Supreme Court in Unnikrishnan[27] Unni Krishnan v. territory of A.P.,
(1993) 1 SCC 645 and Mohini Jain[28] Mohini Jain v. Province of Karnataka, (!992) 3 SCC
666that transformation of the State's commitment under Article 45 into an essential right would
help accomplish the objective at a quicker speed. This is currently likewise a crucial obligation
of guardians and watchmen to teach such kids as gave in proviso (k) of Article 51-A.

 Article 45 states the “provision totally free and compulsory schooling for youngsters- the
state shall endeavor to offer, within a duration of ten years from the graduation of the
constitution, without cost and obligatory education for all youngsters until they entire the age of
fourteen years”. However this aim has not been done even after fifty years of the graduation of
the charter. It changed into held that there was not anything to save you the nation from
discharging that solemn duty via the government and aided the faculties, and article 45 does now
not require the duty to be discharged on the expense of minority communities.29 it was held
within the case of mohini jain v. state of karnataka and others30

28
The Constitution of India
29
kerala education bill, re, 1957, air 1958 sc 956:1959 scr 995
30
air1992 sc 1858
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The directive principles which can be essential in the governance of the country can not be
remoted from the essential rights assured under chapter iii. These principles, have to be examine
into the essential rights. Both are supplementary to each different. The kingdom is beneath the
constitutional mandate to create situations in which the fundamental rights guaranteed to the
individuals under chapter iii can be enjoyed via all. Without making “proper to education”
underneath art. 41 of the constitution a fact the essential rights under bankruptcy shall continue
to be past the attain of huge majority that's illiterate.

“right to life” is the compendious expression for all those rights which the courts need to
implement due to the fact they are basic to the dignified leisure of existence. It extends to the
whole variety of behavior which the person is loose to pursue. The proper to schooling flows
directly from right to existence. Unnikrishnan, j. P and other v. State of andhra pradesh and
others31

“the first question is whether or not the proper to existence assured through article 21 does no
longer take within the proper to or no longer. It is then that the second one query arises whether
or not the kingdom is eliminating the proper as at gift does no longer imply that proper to
schooling isn't protected in proper to existence. The content of proper of life isn't to be
determined on the basis of existence or absence of risk of deprivation. The right to education
further approach that a citizen has a proper to call upon the country to provide instructional
facilities to him within the limits of its monetary capacity and development. By means of saying
so it does now not mean the moving article forty one from chapter iv to chapter iii. The judges
said that they had been simply depending upon article 41 to illustrate the content of the proper to
schooling with the right to life. The judges in addition said that it is mistaken to accept as true
with that the country would now not offer schooling to its humans even in the limits of its
financial capability and development. Consequently the court inside the case of unnikrishnan
overruled the judgment of mohini jain on the basis that right to schooling covers best the number
one stage training and not the secondary degree.

Rights against exploitation

Article 23 states that “prohibition of traffic in human beings and forced labour.-

(1) traffic in human beings and beggar and other comparable forms of pressured labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance
with regulation.

(2) nothing in this newsletter shall prevent the country from implementing compulsory carrier for
public purposes, and in implementing such service the nation shall no longer make any
discrimination on grounds most effective of faith, race, caste or elegance or any of them. Visitors
31
air 1993 s. C. 2178
13
in humans manner to deal in ladies and men like goods, along with or to promote or permit or in
any other case dispose them of. It would consist of site visitors in ladies and children for immoral
or different purposes32. The immoral traffic (prevention) act, 1956 is a regulation made by
parliament under article 35 of the constitution for the reason of punishing acts which result in
traffic in humans. In pursuance of article 23 the bonded labour machine has additionally been
abolished and declared illegal through the bonded labour device (abolition) act, 1976. To invite a
person to work towards his will and now not offer him remuneration may be a breach below
article 23 of the constitution. In no circumstances can a man be required to paintings against his
will33. Article 24-“prohibition of employment of youngsters in factories,and so forth- no baby
beneath the age of fourteen years shall be hired to work in any factory or mine or be engaged in
any hazardous employment”

The court in m. C. Mehta v. Kingdom of t. N 34 noted that risk of toddler labour was extensive.
Therefore, it issued extensive ranging guidelines in the context of employment and exploitation
of youngsters in sivakasi prohibiting employment of kids beneath the age of 14 and making
preparations for their education by using growing a fund and offering employment to the parents
or abled bodied adults in the family. These guidelines had been reiterated in bandhua mukti
morcha v. Union of india,35 regarding the employment of youngsters in carpet weaving enterprise
in india. The apex court took observe of the sociological angle and feasible resistance from
mother and father and society to the full removal of infant labour and in fact, allowed the
continuance of child labour within the case of salal hydro undertaking v. state of j&k. That is
why article 24 limits the prohibition to simplest factories, mines and other dangerous
employment. The courtroom had honestly lost an opportunity of deciphering article 24 as a
constitution for general elimination of baby labour, and making it compulsory for children to be
found in faculty upto number one. But even after 10 years after the child labour ( prohibition and
abolition acts, 1986, the act over again continues allowing infant labour in which it isn't always
prohibited. The apex courtroom aren't however inclined to rethink its choice and endured to offer
sops to employers so that in some way or the other infant labour is allowed even in industries
which might be unsafe to the health of the children. Inside the case of m. C. Mehta, justice m. M.
Punchi expressed his mind on baby labour. He said that “I see on this scheme (child labour)
various type of advantages accruing depending upon the social strata wherein such schemes are
delivered. It'd be a really perfect transition to maturity; it will offer a sense of duty and instill
confidence and pride inside the paintings of the child; very importedly the kid will understand
the concept of dignity and labour, it will be an exceptionally constructive use of time with the aid
of the child, and it will additionally be a welcome source of profits within the circle of relative.”
The decide became additionally quoted pronouncing that the removal of baby labour altogether
would be harsh.

32
raj bahadur v. Legal remembrancer, air 1953 cal 522
33
shama bai v. State of u. P., air 1959 all fifty seven
34
(1996) 6 scc 756
35
air 1997 scc 2218
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 THE CHILD AND CRIMINAL LAW

Justice and child is awesome jurisprudential criminological department of socio-criminal

speciality which is still in its infant repute in india and plenty of other countries. Multi-
side safety has been given to baby below our criminal regulation. It is nicely regular by
using all sociologist and criminologist of the sector that children are the most vital
country wide asset, the future properly being and prosperity of the nation depends as to
how they develop and broaden. Consequently, special safety is essential is vital in view in
their tender age, physical weak role and mental colleges. So first and primary attention
and motive of penal law must usually be the child's welfare, reformation and
rehabilitation and no longer punishment. The principle duty to uphold this philosophy lies
at the justice of the peace who can make or mar the system set up by means of unique
regulation for children. The penal complex and rehabilitatory method of crook justice,
specifically for juvenile is resulted from failure of punitive strategies. Regardless of
advanced detective system and strategies, skilled and organized big police gadget and
different enforcement businesses the variety of minor delinquents is increasing. The best
crime dedicated via juveniles is theft and housebreaking.

INDIAN PENAL CODE 1860

1. OFFENCES COMMITTED BY CHILDREN

Apart from preferred offences, offences may be devoted via children and can be
committed in relation to a toddler. Segment 82, 83 deals with the offences dedicated by
way of children. We are able to say that phase eighty two gives absolutely the immunity
whereas phase eighty three gives qualified immunity. The age institution up to seven
years is ruled by means of phase eighty two of the ipc. Baby underneath this age
organization is granted absolute immunity from each criminal legal responsibility beneath
ipc or another law. Toddler of this age is considered simply doli incapex. Mens-rea
critical for crime is not attributed to an act of such toddler because he's not able to
entertain an evil layout. So the truth that toddler at the time of committing an offence
become underneath seven years of age is ipso-facto a solution to the prosecution. This
age of absolute immunity became included in ipc extra than one hundred twenty years
lower back. Considering that there are modern adjustments in the criminology and
penology it'd be unjust to grasp to this age old rule to impose criminal responsibility at
the age of seven years. It's miles pertinent to say here that the english regulation from 185
in which we followed this rule has raised this age to ten years in 1963 and youngsters and
young character act 1969 further supposed to elevate it up to 14 years. It's miles nowhere
below thirteen years in continental nations.36 It is ironical that international locations
having important conditions for intellectual improvement which includes wholesome

36
encyclopedia of social sciences 307
15
 surroundings, protein meals, first-rate health centers and schooling have constant better
age for absolute immunity. Alternatively in India wherein majority of the children are
living in an bad environment and without health centers, minimum bare bread and simple
education and so on., the age of absolute immunity is stored handiest as much as seven
years. So it is submitted that it need to raised to at the least ten years. Section eighty three
says that, nothing is an offence which is done with the aid of a toddler above seven and
beneath twelve years of age, who has not attained sufficient majority of understanding to
decide the nature and consequences of his conduct on that occasions. This phase covers
the child of age group of 7 to twelve years. Immunity from criminal liability in this age
group is known as qualified immunity inside the experience that toddler in the age
institution is immune from criminal legal responsibility most effective if he proves that
the has no longer attained the enough adulthood of expertise the nature and results of his
act. The burden lies upon the accused to plead and set up the immaturity. But
presumption of the adulthood of understanding the outcome of this act at this sort of soft
age is quite unreasonable and appears to disclaim the protection under current corrective
and rehabilitative approach of crook justice. It's also an technique of punitive and
contradiction in our criminal law policy" on the only hand we apprehend the need of a
infant below 18 years underneath juvenile justice act,2000, for safety in opposition to the
heavy hands of crook regulation and severities of the penal device, and then again we
presume a child underneath the age of 12 years to be sufficiently mature to shoulder
crook duty. It's miles respectfully submitted that to be near to the protections granted to
children in the evolved nations like U. K., U. S. And many others, the minimum age of
criminal legal responsibility must be ten years. The load to show the maturity must be on
the prosecution and to obtain the quit segment 105 of proof act ought to be amended
accordingly. Further under ipc after the age of immaturity infant is absolutely answerable
for his criminal acts. But as much as upper age restrict infant has some procedural and
sentencing privileges under special legal guidelines along with criminal method code,
probation and offenders act and juvenile justice act. Under those laws child is protected
from everyday process of criminal courts and heavy punishments which include dearth
imprisonment. What is top age of baby? It isn't always uniform in india and varies from
sixteen to 16 years. It's far submitted that top age restriction need to be prolonged upto l8
years uniformly.

2. Offences committed against the children

Now we take up another issue , offences committed by others in relation to children.

Explanation 3 of Section 299 of Indian Penal Code,1860 says that the causing of the death of
child in the mother's womb is not homicide. But, it may amount to culpable homicide to cause
the death of living child, if any part of that child has been brought forth though the child may not
have breathed or been completely bom. The explanation only says that the causing of the death
of a child in the mother's womb is not homicide. It also states when the causing of death of child

16
amounts to homicide. It may be noted that the causing of a death of a child in the mother's womb
is a punishable offence under section 315 of the Indian Penal Code. The causing ofthe death of a
child in the mother's womb is not homicide for the simple reason that foetus is not considered in
the category of a human being. The life of a child while it remains within its mother's womb is a
part of the mother’s body. For this purpose, it does not have separate existence. But, as soon 187
as any part of the child has been brought forth from the mother's womb, it is regarded as a living
human being. If the foetus dies in the mother's womb, it is not a culpable homicide. It may
amount to an offence under section 312 or under section 314 or under section 315 of I.P.C.
according to the facts of a case. As per this explanation, it is homicide to cause the death of a
living child, if any part of that child has been brought forth though the child may not have
breathed or been completely bom. The MTP Act heavily protects the woman but not the 'child'.
If the pregnancy is unwanted and is the failure of contraceptive, the woman suffers a grave injury
to her mental health but if the pregnancy is terminated the child loses his or her life. The mental
health of a woman can be restored later on but can the child who lost its life be restored by any
means? It is very strange to note that the killing of the child in the womb is not even considered
as homicide. For this sole reason, the prosecution is compelled to file cases of this nature in
Section 312 of the IPC for causing a woman to miscarry and the culprit rewards only a minor
punishment of a term not beyond three years or a fine or both. And if act is done with intent to
prevent child from being born alive, or cause it to die after birth, the guilty can be booked under
Section 315 IPC but the punishment is comparatively less than killing of human being. Even
when the act amounts to culpable homicide of a child unborn the Section 316 provides lesser
punishment. Only when the woman is "quick with child" the offence rewards imprisonment,
which may not extend to seven years and of course shall also be liable to fine. Clearly while law
makes provision for the woman, the child in the womb is ignored. Under the comment on the
Section 299 some definitions are given. 'Causes death' is one of them. Here 'death' means the
death of a human being as defined under Section 46 of the IPC. But this word does not include
the death of an unborn child. 188 Under English law, the child should have completely emerged
from its mother's womb, while under the Indian law (as per this explanation) any part of the child
may come out of its mother's womb). According to Section 361 of BPC, Whoever takes or
entices any minor under sixteen years of age if a male, or under eighteen .years of age if a
female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of such guardian is said to kidnap such minor or
person from lawful guardianship. The words "lawful guardian" in this section includes any
person lawfully entrusted with the care or custody of such minor or other person. But this section
does not extend to the act of any person who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of
such child, unless such act is committed for an immoral or unlawful purpose. Further Section
363A of Indian Penal Code, 1860 enumerates; 1) Whoever kidnaps any. minor or, not being the
lawful guardian of a minor, obtains the custody of the minor, in order, that such minor may be
employed or used for the purpose of egging, shall be punishable with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine. 2) Whoever
17
maims any minor in order that such minor may be employed or used for the purposes of begging
shall be punishable with imprisonments for life, and shall also be liable to fine. 3) Where any
person, not being the lawful guardian of a minor, employs or uses such minor for the purpose of
begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise
obtained the custody of that minor in order to use him for the purpose of begging. 4) In this
section, 189 (a) "begging" means i. soliciting or receiving alms in a public place, whether under
the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise
: ii. entering on any private premises for the purpose of soliciting or receiving alms; iii. exposing
or exhibiting, with the object of obtaining or extorting also, any sore, wound, injury, deformity or
disease, whether of himself or of any other person or an animal; iv. using a minor as an exhibit
for the purpose of soliciting or receiving alms; (b) "minor" means i, in the case of a male, a
person under sixteen years of age: and ii, in the case of female, a person under eighteen years of
age. This section was inserted in the years 1959. In the statement of Objects and Reasons it is
stated that the aim of this amendment is "to put down effectively the evil of kidnapping of
children for exploiting them for begging, the provisions existing in the Penal Code are not quite
adequate. There is also no special provision for deterrent punishment for the greater evil of
exploiting children so as to make them object of pity." In me case37 it has been held that there are
case wherein minors are kidnapped and they are castrated with a view to make them eunuchs
who could be useful as professional beggars. "It may be noted that the definition given of a
minor, under the Indian Majority Act, is different from the definition given in this section.
Punishment provided for offence under section 363A(1) is 10 years imprisonment and fine, and
for offence under section 363A(2) is imprisonment for life and fine. 190 Section 372, talks about
Selling minor for purpose of prostitution etc According to this section, Whoever sells, lets to hire
or otherwise disposes of any person under the age of eighteen years with intent that such person
shall at any age be employed or used for the purpose of prostitution or elicit intercourse with any
person or for any unlawful and immoral purpose or knowing it to be likely that such person will
at any age be employed or used for any such purpose,-shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to fine. When
a female under the age of eighteen years is sold, let for hire: or otherwise disposed of to a
prostitute or to any person who keeps or manages a brothel, the person so disposing of such
female shall, unless the contrary is proved, be presumed to have disposed of her with intent that
she shall be used for the purpose of prostitution. This section speaks of an offence committed by
a person who sells, lets to hire or otherwise disposes of the person with requisite intent or
knowledge. It strikes at the seller whoever, he may be, and the purchaser who profits out of such
transactions. This section applies to all persons under eighteen years, whether male or female.
Under this section it is necessary to prove that the accused intended that the person shall be
employed for an immoral purpose. Prostitution is the surrender of a girl's chastity for money. In
one case38 it has been held that it is the offering of a person for promiscuous sexual intercourse
with men. The Devdasi system is a variety of the offence of prostitution wherein girls under
37
1983 Cr. L.R. (Guj. & Mah.) 412
38
AIR 1929 Bom. 266

18
eighteen years are dedicated to the service of temples as basis. In one case39it has been held that
this amounts, disposal of such minors, knowing it to be likely that they will be used for the
purpose of prostitution within the meaning of this section. In one case40. Weir 359 (EB.) it has
been held that the penal law 191 overrides any private law or usage or religious practice of
turning girls into Devdasis meant for prostitution. Punishment for an offence under this section is
imprisonment up to 10 years and fine. It is cognizable, non-bailable compoundable and triable by
a Court of Sessions. Section 373, deals with Buying minor for purposes of prostitution etc. It
says that whoever buys, hires or otherwise obtains possession of any person under the age of
eighteen years with intent that such person shall be at any age be employed or used for the
purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral
purpose or knowing it to be likely that such person will at any age be employed or used for any
such purpose, shall be punished with, imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine. Any prostitute or any person keeping or
managing a brothel who buys, hires or otherwise obtains possession of a female under the age of
eighteen years shall, until the contrary is proved be presumed to have obtained possession of
such female with the intent that she will be sued for the purpose of prostitution. This section
speaks of an offence committed by person who buys, hires, or otherwise obtains possession of
the person with requisite intention or knowledge, Explanation I to this section explain that when
a girl under the age of 18 years is disposed off or obtained procession off, by a prostitute or a
brothel keeper, the person disposing off or obtaining possession of such girl shall be presumed to
have disposed off her or obtained possession of the girl for prostitution. A Brothel is a variety of
disorderly house, a place resorted to by persons of one or both sexes for heterosexual or
homosexual practices, particularly for reward. 192 Section 376of EPC has two parts and three
explanations, Part one punishes a rapist, who does not fall under part two, with (i) minimum
punishment of imprisonment which shall not be less than 7 years but which may be for life or (ii)
for a term which may extend to 10 years and also fine (iii) if the person raped is his own wife
and is under 12 years of age, he shall be punished with imprisonment up to 2 years or fine or
with both. If sentence for less than 7 years is to be imposed the Court has to state the reasons
thereof. 'Part two of the section has seven clauses: Clauses (a) to (g). These clauses enumerate
the cases of custodial rape, rape on pregnant woman, rape on a girl under 12 years of age and
gang rape. Punishment for these types of rapes is a minimum imprisonment of 10 years which
may in suitable cases extend to life imprisonment and fine. For imposing less than 10 years
imprisonment punishment the Court is required to state reasons as per proviso to part two.

THE CRIMINAL PROCEDURE CODE, 1973

39
1892 16, Bom. 737
40
(1881) 1

19
Under the Reformatory Schools Act and CrPC some of the provisions relating to the nature of
the sentence to be awarded to young offenders were provided which was very similar to ordinary
Criminal court. It was only after the recommendation of Jail Committee (119-20). States like
Madras(1920) and Bengal(1922) enacted Children Acts providing separate courts with easy
procedure for children. To achieve uniformity section 29B was inserted in Cri.P.C in 1923 which
is redrafted as section 27 of the present CrPC with some changes. Section 27 is read as "Any
offence not punishable with death or imprisonment for life, committed by any person who at the
date when he appears or is brought before the court is under the age of sixteen years, may be
tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the
Children Act, 1960 or any other law for the time being in force providing for the treatment,
training and rehabilitations of youthful offenders". This section provides for jurisdiction in
respect of an offence, when the two conditions are fulfilled ,viz; 1. Offence is committed by a
child, under the age of 16 years. 2. Offence should not be punishable with death or imprisonment
for life. Thus it is clear that section 27 applies only to offences punishable other than death or life
imprisonment and even in that sphere it is permissive which is obvious from words"may be
tried". It means child under lbyears accused of any offence punishable other than death or life
imprisonment may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially
empowered under the Children Act, 1960 or any other law for the time being in force providing
for the treatment, training and rehabilitations of youthful offenders But now we are having
juvenile justice Act which has repealed children Act, 1960, according to juvenile Justice Act,
2000, Juvenile should be dealt with by the Juvenile Court and in absence of a Juvenile Court by
the concerned first class magistrate’s Juvenile Court. In Ram Prasad v. State of Bihar41one of
the accused was 16 years old and he was convicted undergo 5 months imprisonment. There was
no overt act alleged against him. The Supreme Court directed his discharge from jail
immediately and criticized the joint trial of child accused with adults in the absence of Children
Act in the State of Bihar and detention of children in regular prison. According to Section 125 of
Cr.P.C. the father is under the statutory obligation to maintain his minor child, irrespective of the
fact that such a child is legitimate, illegitimate , married or unmarried. This liability continues till
the minority of children and the minor is unable to earn for himself. If any child becomes able to
maintain himself then fathers liability to maintain children ceases. This provision applies equally
to Muslim and Hindu child. 194 If the child is with mother and mother refuses to live with her
husband, the child is entitled to maintenance. A divorced woman having the custody of child, can
claim maintenance for herself and for her minor child. Even an unchaste woman can also claim
maintenance for a minor child from the father. Sub clauses (b)&(c) of Sub Section (1) of Section
125 of criminal Procedure Code lays down that "if any person having sufficiently means,
neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or
unmarried, but unable to maintain itself, And legitimate or illegitimate child who has attained the
majority (not being married daughter) but because of physical or mental injury is unable to
support itself. Then magistrate of first class may make a monthly allowance for maintenance".

41
1990Cr.L.J.351 (Bom.)
20
The matrimonial court has power to pass interim orders in these matters during the pendency of
the proceedings. On passing of a decree the court can pass permanent orders also. Any such
allowances for the maintenance or interim maintenance and expenses for proceeding shall be
payable from the date of the order or, from the date of application for maintenance or interim
maintenance and expenses of proceedings, as the case may be. Section 126 talks about the
procedure to be followed while making an application under Section 125, and Section 127& 128
provides for alteration in allowance and enforcement of order of maintenance respectively.

PROVISION RELATING TO JUVENILE UNDER THE INDIAN CONTRACT ACT,

1872

A person ceases to be child on attainment of age of eighteen years for all civil purposes except
when there is guardian appointed by the court, for certain puiposes, his age is extended to 21
years. 42 A person below 18 years is not liable for his acts in all civil matters, though for certain
torts he may be liable. He is also liable to taxes. The age of majority of a person is to be
determined "according to the law to which he is subject Under the Indian Contract Act, A minor
i.e. a person below the age of 18 years has no capacity to contract, as Section 10 requires that the
parties to a contract must be competent and therefore according to Section 11 a minor is not
competent. The minor, though not competent to contract, is found having commercial
interactions in number of cases. This event gives rise to the legal complications and therefore
requires the law to protect the interest of minor.

 An agreement with or by a minor is void– An agreement with a minor is void ab

initio. In the case of Mohori Bibi v. Dharmo das ghose , the minor borrowed money
from mohori by executing a mortgage of his property in favour of mohori. Subsequently
dharmo sued for setting aside the mortgage. The privy council held that section 10 and
11 of indian contract act make the minor’s agreement void and therefore the mortgage
was not valid. Mohori prayed for refund of money. It was held that the money advanced
to minor can’t be recovered because minor’s agreement was void.
 Competency to contract (section 11)-
Every person is competent to a contract who has attained the age of majority and who is
of sound mind and the person who is not disqualified by the law.
The following persons are not competent to a contract -
a) Minors
b) Persons of unsound mind
c) Persons Disqualified by the law
The effects of an agreement entered into by a minor -
a) There can be no estoppel against a minor

42
Indian Majority Act, 1875 Section 3
21
 b) There is no liability arising out of contract or in a tort arising out of contract.
c) The doctrine of restitution.
 Doctrine of Restitution
The minor has been forced to restore the property of goods which he gets
misrepresenting his age that it is traceable in the possession of the minor. If it is not
traced or it has been sold or converted to his own use by the minor and he was not be
held liable to repay the value of it because it would amount to the enforcement of an void
agreement. In Leslie Ltd vs. Sheil , A minor was fraudulently represented that he was a
major and they tell him the plantiff to lend $ 200 each. The action to recover the money
was failed. The court of the appeal was held that the cause of action was ex contract and
the defendant was under no equitable liability to the plantiff. The plea of infancy was a
good answer. The plantiffs was relied upon the doctrine of restitution that the infant was
bound by the equity to restore the ill-gotten gains. It was held that a minor was not able
to force to restore $400 as the contact was void and the doctrine of restitution was not
applicable.
The doctrine of restitution was not apply where the money was given with the
knowledge of infancy in this case justice was not required that the money should not be
returned.

 No estoppel against a minor –  There can be no estoppel against a minor where a minor

has entered into a contract by misrepresenting his age, he cannot be made liable on the
contract. But court may direct the minor to restore the property to the other party as
“minors can have no privilege to cheat men”.

 Minor not Liable For Tort Arising Out of Contract -

In Johnson vs. Pye “ A minor cannot be sued in a tort for deceit when a minor was
obtained a load by misrepresenting his age as well as all the infants were ruined . A
contract with minor cannot be converted into a tort by suing a minor. The view of the
Indian court was also the same. The tort is not directly connected with the contract but it
is independent. The minor is liable for the damages in tort. A minor borrowed a mere for
riding and a minor was given a mere to his friend who jumped and killed her and was
held liable by the house of lords, a minor was held liable in a tort when he could not
retain certain ornaments because he had given the ornaments to his friend.

 No ratification on attaining the age of majority – An agreement with minor is void ab

initio, therefore, it cannot be made valid by subsequent ratification on attaining the age
of majority.
 Minor can be beneficiary– A Minor can be a beneficiary. Any agreement which
provides some benefit to the minor and under which he is required to bear no obligation,
is valid. As per the law, the minor is not incompetent for accepting a benefit. For
example, where a minor has sold goods, he is entitled to recover the price from the
buyer.

22
  No insolvency – A minor cannot be declared insolvent.
 No specific performance except in certain cases– The court will never direct ‘specific
performance’ of an agreement by minor. But a contract entered into by the guardian or
manager on minor’s behalf can be specifically enforced if it is within the authority and it
is for the benefit of the minor.

CONCLUSION

The increasing rates of juvenile crime in India in very concerning issue and need to be focused
upon. Although government has laid various legislation and rules to stop the incidents of
juvenile crimes but the present laws on juveniles is not creating a deterrent effect on the
juveniles and thus the results are not fruitful and legislative intent is not accomplishing .

SUGGESTION

The onus to ensure that children do not stray is with adults. At home and at educational
institutions, they need to monitor the behaviour of children and behave like role models for
youngsters. one solution (to avoid juvenile crime) is for parents to be held legally responsible
when their teenaged children break the law. Early detection and counselling for those with
criminal tendencies is important so that they do not end up as offenders, and also so that they
don’t influence others to do the same. This is possible only when parents are cognisant of what is
wrong in the child’s behaviour and alert to correcting him/her. Prevention of juvenile crime is
also an important part of the juvenile justice system. But the Indian state has completely
neglected this aspect. There is little involvement of psychological counselling during the reform
procedure. Without getting into the debate of punishment and the age of criminality, it is
important to instil respect for the law. By and large in India, we do not have rule of law and
youngsters are finding out that it is easy to get away with breaking the law.

23