Faculty of Law

JAMIA MILLIA ISLAMIA

Criminology, Penalogy , Victimology

Topic:
Juvenile Justice System in India

NAME: GUFRAN KHAN

ROLL NO : 17
SEMSETER: 5th
YEAR: 3rd
 GUIDED BY: CA RASHEED SIR

ACKNOWLEDGEMENT

First and foremost, I would like to thank our subject teacher CA Rasheed Sir, for the valuable
guidance and advice. He inspired us greatly to work on this interesting assignment. His
willingness to motivate us contributed tremendously to our assignment. I also would like to
thank him for showing us some sample assignments on how to go about the research assignment.
Besides, I would like to thank the Faculty staff for providing us with a good environment and
facilities for completing this assignment. In addition, I would also like to thank my seniors who
provided me with the valuable information acting as a source of guidance in making the
assignment. Finally, an honorable mention goes to my family and friends for their
understandings and supports in completing this assignment. Without the help of the particulars
mentioned above, making of this assignment would not have been possible.
 CONTENTS

Juvenile Justice System In India

1. Introduction
2. Juvenile and Juvenile in conflict with laws
3. Evolution of Juvenile law in India
4. Juvenile Justice Board in India and other determinations
5. Conclusion
Introduction

At one point of time, the 26/11 Mumbai terror attack accused, Ajmal Kasab, a Pakistani terrorist,
had claimed that he was a juvenile and therefore he should be given benefit of the law relating to
juvenile justice in India, notwithstanding the fact that he was involved in a ghastly terror attack
in which 164 persons were killed. However, his claim was found to be false. The issue of
juvenile justice again came upfront in the 16/12/2012 Delhi gang rape case when one of the
accused was found to be a juvenile. The law requires that this can be dealt only under juvenile
justice act and not under the normal criminal laws that apply to adults. This implies that he
cannot be sentenced to imprisonment and cannot be awarded death penalty. Due to the strong
demand from the society to consider this accused as an adult and apply the normal criminal laws
applicable to an adult, and thus award death penalty and because of other similar cases cropping
up regularly in the country, we need to take a deep look into the laws to first understand the
juvenile justice system of the country and second, to see if we can treat juveniles at par with
adults while granting punishment for committing such heinous offences.
‘Juvenile’ and ‘Juvenile in Conflict with Law’

The first thing is to define a ‘juvenile’ and a ‘juvenile in conflict with law’. Juvenile can be
defined as a child who has not attained a certain age at which he, like an adult person under the
law of the land, can be held liable for his criminal acts. The juvenile is a child who is alleged to
have committed some law which declares the act or omission on the part of the child as an
offence. Juvenile and minor in legal terms are used in different context. Juvenile is used when
reference is made to a young criminal offender and minor relates to legal capacity or majority. 1
In India, until passing of Children Act, 1960 there was no uniformity regarding age limitation of
juvenile delinquent. Bombay Children Act, 1948 defined ‘child’ to mean a boy who has not
attained the age of sixteen years or girl who has not attained the age of eighteen years. 2 The U.P.
Children Act defined “child” as a person under the age of eighteen years.3 Under A.P. Children
Act, 1920 “child” means a person less than 14 years of age. 4 The Saurashtra and West Bengal
defines a “child” as a person who has not attained the age of eighteen years. 5 Juvenile Justice
Act, 1986 defined a juvenile or child to be a person who in case of a boy has not completed age
of 16 years and in case of a girl 18 years of age. The JJA Act, 1986 was repealed by 2000 Act
and the distinction with regard to age between male and female juveniles has been done way
with by the Government of India in performance of its obligation to the international obligations.
Now age of juvenile in conflict with law for male and female has been fixed at 18 years. A
juvenile in conflict with law under the Juvenile Justice (Care and Protection) of Children
Amendment Act, 2006 is a juvenile who is alleged to have committed an offence and has not
completed his/ her 18th year of age as on the date of commission of such offence.

Indian laws have created four categories of persons according to their age. The criminal liability
of an accused depends upon the category in which that person falls. The first of these is a person
below seven years of age. Section 82 of the Indian Penal Code, 1860 states that nothing is an

1
Black Dictionary of Law
2
The Bombay Children Act, 1948, Section 4
3
The Uttar Pradesh Children Act, 1951, Section 2(4)
4
The Andhra Pradesh Children Act, 1951, Section 2(d)
5
Saurashtra and West Bengal Children Act
offence which is done by a child under seven years of age. The simple reason behind giving such
an exemption is the absence of ‘mens rea’ i.e. guilty mind or criminal intent. People who at the
time of commission of the crime could not and did not know the right from the wrong should not
be penalised. The second category of persons is those who are between the age of seven and
twelve years. Section 83 deals with them and lays down that if an offence is committed by such a
person, it will first have to be ascertained whether the child has attained sufficient maturity of
understanding due to which he can judge the nature of his alleged conduct and the consequences
thereof. The persons between the age of twelve and eighteen years fall into the third category and
if an offence is committed by such a person, he shall be liable for such offence. However, he
shall not be prosecuted and punished like adult offenders, but would be dealt with only in
accordance with the provisions of the law relating to juvenile justice. Lastly, a person above the
age of eighteen years is criminally liable for an offence in accordance with the normal criminal
laws of the country.
Evolution of the Juvenile Law in India

The history of juvenile justice in India can be traced back to the 18 th century. Prior to 1773, like
other countries the concept of juvenile justice in India was far from developed. Children’s
actions, both criminal and non-criminal, were governed by the existing personal laws of Hindu
and Muslim wherein it was the primary responsibility of the families to monitor their children’s
actions. Although these laws had no specific reference to juvenile delinquents.

The period between 1850 and 1919 was a time where the country was facing a rapid social
change, industrialization and growth in population. These changes brought a new class of
delinquent, neglected and dependent children needing formal intervention. Thus the need for new
legislations dealing with children was felt. Some of the most important laws passed between
1850 and 1919 were the Apprentice Act (1850), the Indian Penal Code (1860), the Code of
Criminal Procedure (1861), and the Reformatory Act (1876 and 1897). The Apprentice Act
(1850) dealt with young people between the ages of 10 and 18 who were either destitute or petty
offenders. Children who were convicted were made to serve out their sentences as apprentices
for businessmen. The Code of Criminal Procedure of 1861 allowed for separate trials of persons
younger than age 15 as well as their confinement in reformatories rather than prisons. It was the
result of these enactments that penal philosophy in India towards juveniles could be seen to be
changing from that of penal to reformation. The concept of a reformatory school for delinquent
children came to fruition with the passage of the Reformatory Schools Act of 1876. This policy
of separate treatment of juveniles was further bolstered by the Reformatory School Act of 1897,
which dealt solely with the treatment and rehabilitation of young offenders. It allowed boys
younger than the age of 15 to be placed in reformatory until 18 years of age. Boys younger than
14 years of age were released on license, only on the grounds that they could obtain subsequent
employment.6

6
Child Laws in India, www.wscpedia.org
The years following 1950 witnessed both official and non-governmental initiatives that
contributed to the development of a more pronounced juvenile justice system in India. To
address the increase in neglected and delinquent children as a result of partition of the country
into Pakistan and India, the Indian government passed a Central Children’s Act (CCA in 1960).
The CCA provided for the care, protection, and treatment of juveniles, and made it applicable in
the territories under direct central government rule. Further still in 1974, India declared its
National Policy for Children, recognizing children as the nation’s supremely important asset and
that their programmes must find a prominent place in the national plan for the development of
human resources. The policy included, among other things, training and rehabilitation of
delinquent, destitute, neglected and exploited children.

By 1986, almost all states had passed their own child legislations but these Acts lacked
consistency in terms of defining delinquency, court procedures, and institutionalization practices.
The Indian government thus felt the need for a children justice scheme that could be applied
throughout the country and this is how Juvenile Justice Act of 1986 substantiated. The JJA was
considered a unique piece of social legislation intended to provide care, protection, treatment,
development and rehabilitation for neglected and delinquent juveniles as well as the adjudication
of matters related to the disposition of delinquent juveniles. To accomplish the goals of this
legislation, special provisions were made for separate procedures for handling offenders and
non-offenders. Juvenile courts were created to deal with juvenile delinquents, and juvenile
welfare boards were established to handle neglected juveniles. With the enactment of JJA 1986,
though there continued to be a single law, two distinct machineries were set up to deal with
“neglected juveniles” and “delinquent juveniles”. Pending their enquiries before their respective
competent authorities, both these categories of children were kept in the Observation Home. JJA
2000 for the first time provided for “juveniles in conflict with law” and “children in need of care
and protection” to be kept separately pending their enquiries. This segregation aims to curtail the
corruption of the innocent child from the influence of the ‘criminal juvenile’.
A revolutionary change introduced by the JJA 2000 is in the constitution of the
children court referred to as the Juvenile Justice Board (JJB). It is constituted as a bench
consisting of one Magistrate and two social workers. The decisions are to be made by majority
and the Magistrate has a casting vote in case of a tie. The JJB is required to determine age,
decide the question of bail, determine if the child has committed the alleged offence or not, as
well as pass appropriate orders in the matter. In deciding any of these matters, the two social
workers together may overrule the decision of the Magistrate. Realising the importance of
special treatment towards child offenders, the JJA 2000 has provided for appointment of special
police officer in each police station to deal with children under it. It continues to provide for
grant of bail to all children irrespective of the offence being bailable or non-bailable, except
when the release will expose the child to moral danger or bring the child in contact with known
criminals or will be against the interest of justice.7

Juvenile Justice Board

The centre of interest in the juvenile court is always the juvenile and his welfare, and not the act
or its consequences which might have resulted in his (or her) being brought before the court. 8
Criminal cases of a juvenile in conflict with law are to be dealt with by the JJB, and not the
regular criminal courts. The first Juvenile Court in India was established in Bombay in 1927. 9
Initially it was presided over by a Presidency Magistrate who used to sit for a few hours on fixed
days. Thereafter, since 1942, the Juvenile court was manned by a full-time stipendiary
Magistrate who was assisted by a team of experts, such as POs, psychologists. Juvenile Welfare
Boards were constituted under the 1986 Act to exclusively deal with cases of neglected
juveniles, and the Juvenile Court, to have sole jurisdiction over delinquent juveniles.

The chief purpose for distinct handling of a juvenile’s case is that such case requires a socio-
legal approach as reformation and rehabilitation, and punishment is not the goal. Under JJA
2000, JJB is the ‘competent authority’ in relation to juveniles in conflict with law. The
constitution of the JJB reflects this objective of juvenile legislation. The JJB has to tread a fine
path; juveniles are culpable for their criminal acts, but they should not be penalised for such
action, instead the aim should be to persuade them away from the enticements of a life of crime.
The 2000 Act has given equal importance to the Magistrate and social workers; they jointly
constitute the competent authority to deal with juvenile cases. When the JJB is satisfied that an
offence has been committed, then the social workers play an important role in deciding what

7
Main Features of the JJA 2000, Juvenile Justice: Securing the Rights of Children during 1998-2008, Dr. Ved
Kumari
8
Juvenile Justice and Juvenile Correction: Pride and Prudence, M.S. Sabnis (Somaiya Publications Pvt. Ltd.,
Bombay and New Delhi- 1996)
9
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
should be done for the comprehensive rehabilitation of the juvenile, keeping in view the
circumstances in which the offence was committed. The law recognizing the importance of
speedy inquiry has mandated the JJB to complete an inquiry within four months from the date of
its commencement, and if the same is not possible due to the special circumstances of a case, the
JJB is required to extend the stipulated period for completion of inquiry by a reasoned order. 10
Certain JJBs, especially those functioning in metropolises, have huge back-log of cases. A
method for curbing this accumulation of cases is by increasing the sittings of the JJB.

Apprehension and Bail

Under Juvenile Legislation, the word “apprehension” replaces the word “arrest”. The precautions
and safeguards contained in the Constitution of India and Supreme Court judgments with regards
to the rights of an accused on arrest also apply to juveniles in conflict with law. The JJB on first
production should seek a police report with regards to the date and time of the juvenile’s arrest
and his admission to the Observation Home, and whether a parent or guardian or person of
juvenile’s choice and the PO has been informed about the juvenile’s arrest. Moreover, the
particulars so furnished by the police should be gotten confirmed from the juvenile.

Bail is the release of an accused person pending investigation and/ or trial, while at the same time
ensuring his future attendance in court at the trial stage. The CrPC divided offences into bailable
and non-bailable offences. The position is quite different under juvenile jurisprudence. Since the
enactment of different Children Acts, the grant of bail has been mandatory under juvenile
legislation except in certain prescribed instances that could cause harm to the child if so released.

Special Treatment of Juveniles

Juveniles in conflict with law are subject to the same substantive law as are adult criminals, but
their treatment is different. The juvenile justice system focuses on future welfare of the juvenile
rather than stressing on punishment for past misdemeanours. As reformation and rehabilitation is
the basic intent of the juvenile justice system, on being satisfied, after inquiry, that a juvenile in
conflict with law has committed an offence, the JJB is required to pass orders that adhere to the
10
Section 14, Juvenile Justice (Care and protection of Children) Act, 2000
spirit of juvenile legislation. Majority of the juveniles adjudged delinquent by JJBs are released
on probation to the care of a parent or guardian. Release of a juvenile on probation of good
conduct allows him to serve his sentence in family setting, sometimes under the supervision of
the P.O.

It has been internationally documented that incarceration of a juvenile in a detention facility

should be resorted to only in exceptional cases and for a minimal period. It is only in the absence
of parents or guardian, or when the parent or guardian are not found fit to be given the care of the
juvenile, or when non-institutional modes of disposition could cause physical or psychological
danger to the juvenile, that the juvenile should be institutionalized. 11 Any organization that has a
suitable programme and is willing to take responsibility of the juvenile may be given the charge
of a juvenile if the JJB believes that such programme will aid in the rehabilitation of the
juvenile.12 It is only in rare cases that a juvenile may be confined in a place of safety instead of a
Special Home. This rare case is a situation where the juvenile has attained the age of 16 years
and the offence committed is of a serious nature or the juvenile’s conduct is improper. 13 It must
also be noted that not every juvenile who has committed murder or rape is to be kept in a place
of safety. Incarceration in a place of safety should be ordered only if it would be dangerous to
keep the juvenile with other juveniles because of the peculiar nature of the offence committed or
the behaviour of the juvenile.

Further, any order passed by the JJB may be challenged in appeal before the Sessions Court
within thirty days of the passing of the order.14

Sentencing juvenile offenders to death is prohibited by international law. Article 37 of the

Convention on the Rights of the Child states that “State parties shall ensure that: Neither capital
punishment nor life imprisonment without possibility of release shall be imposed for offences
committed by persons below the age of eighteen years of age.” I would like to raise a question
here that are those juvenile who commit heinous offences of murder and rape are also not to be
treated equal to adults and thus no grave punishment has to be granted to them? Is it the physical
age that matters in determining the punishment and not the mental age of an individual?

11
Clause 46 of the United Nations Guidelines for the Prevention of Juvenile Delinquency
12
Section 2(h) of Juvenile Justice Act, 2000
13
Section 16 of Juvenile Justice Act, 2000
14
Section 52 of Juvenile Justice Act, 2000
Determination of Age of the Child

Determination of the age of a child under the JJA is essential for two specific reasons. Firstly
such age determination is of paramount importance to find out whether or not the person so
accused falls under the purview of the JJA and secondly, recording of the same as nearly and
accurately as possible is essential for deciding the duration of institutionalization. This is
however not an easy task especially in borderline cases, the reason being, children usually do not
have any documentary evidence and medical examinations. The second question that is raised in
relation to determination of age is that of burden of proof. The Supreme Court has in the case of
Gopinath Ghosh and Bhola Bhagath v State of Bihar 15 categorically stated that the responsibility
of adjudging the age of the accused in case of any doubts as brought forth lies with the
Magistrate and the Court as dealing with the said matters.

Not Kids Anymore: A Need for Deterrence in the Juvenile Justice System

With increasing number of juvenile committing horrendous offences requiring severe

punishment, a question that is raised by every individual in the country today is why they are not
being treated as equivalent to adult offenders and awarded grave punishment. While the public is
of the view that ordering a rape convict or a murderer to spend just three years in a correctional

15
1997 (2) ALD Cri 645
home is not going to deter others from committing crimes against women, the Child Welfare
Committee is of the view that juvenile offenders undergo severe mental trauma owing to their
upbringing in crime-prone localities; constant exposure to criminal activities turns them into
criminals; providing psychological counselling, and not punishing them, will help in their
transformation. Mr. S. Syed Ahmed, former Chairman of Child Welfare Committee has also
pointed out that there is no concrete data to prove that stiff punishment resulted in the lowering
of the crime rate anywhere in the world. He said that crimes occur even in nations such as Saudi
Arabia which follow the policy of an eye-for-an-eye and tooth-for-a-tooth; therefore what is
required is a change in our outlook and not stringent punishment. 16 I would like to know from
Mr. Ahmed and all others holding the same view that what outlook are they striving to change?
Is it the one which makes a mother pray for death penalty to the criminal of her daughter or is it
the one which makes the public come out in large numbers and hold protests and demonstrations
asking the law makers to treat and punish juveniles according to their mental and not physical
age? Saying that stringent punishment is not required to deter crime in the country is too oblique
a perspective. That way, even adult offenders should not be punished stringently; why should
they be, when such punishment does not serve the purpose of deterring the crime rate of the
nation?

The underlying principle in not awarding exemplary punishment to juvenile is the legal
philosophy that juveniles lack the mental and physical maturity to take responsibility for their
crimes, and because their character is not fully developed, they still have the possibility of being
rehabilitated. With the changing times, the interest in protection of juveniles has to be balanced
with the interest of protecting particularly vulnerable members of the society from violent crimes
committed by persons less than 18 years of age and amending the law.

Conclusion

Before claiming an amendment, we must think of those unfortunate juveniles who may have
committed certain offences in compelling circumstances. Also, though an amendment is sought,
there is no defined parameter to treat an offence as heinous or grave. Those demanding a change
must first seek to define the particular offences for which such amendment is sought. Therefore,
either extreme is not desirable. A delicate balance must be struck as per which most juveniles, as
16
Should the Juvenile Justice Act be amended, The Hindu, available at
http://www.thehindu.com/news/cities/Madurai/should-the-juvenile-justice-act-be-amended/article5095898.ece
a general rule, are required to be treated in a more humane manner, but in some rarest of the rare
cases of heinous and grievous offences deliberately committed by a juvenile, he may be
subjected to prosecution and punishment under the normal criminal laws of the country. The
response to juvenile crime has to be fair, age-appropriate and in keeping with development
psychology. Any amendment to existing law requires in-depth understanding of the
jurisprudence, philosophy and impact of the current law. Amending the law as a reaction to the
countywide outrage against one juvenile may not serve the purpose as it might affect those other
hundreds who are rightfully entitled to the juvenile justice system already prevailing in the
country. Thus, what we require is a balanced and thoughtful approach wherein the juveniles who
have the mental capacity to commit grave offences must be punished with exemplary
punishments, while those others committing petty offences and not possessing the mental
capacity to do so must be brought under the veil of juvenile justice system and efforts must be
made to rehabilitate them.

BIBLIOGRAPHY

1. N.V Paranjape, criminology, Penalogy, vivtimology.

2. Ahmed siddiqui criminology.