Tag: #JuvenileJustice

Juvenile Justice Act, 2015: Unconstitutionality of the Amendment

The unconstitutional amendment of Juvenile Justice Act, 2015 begins its contradictions from the initial provisions itself. The section 2(12) of the main Act states that a juvenile means a person who has not completed the age of 18 years and on the other side this amended version contradicts its own law as it states that children from 16-18 years of age can be tried as adult criminals. It also reflects how arbitrary it is on testified along with the tests under Art. 14.

The test of Intelligible differentia, another test under Art. 14, is found unreasonable too due to the logic and the reasons behind the Act. Firstly, it replaces the word juvenile with child in conflict with law which was supposedly more humane. But this very child in conflict with law is meant to be tried for adult offences and this inhumane idea is conceived by the Government. Furthermore, the terms child alleged to be in conflict with law and child found to be in conflict with the law are not defined clearly and are used interchangeably in the Act. It stands as a great flaw due to the general understanding of the evident difference between alleged to be and found to be.

In the second test, the nexus between the classification and the object is absent as the authorities have acted without following the procedure to unequal treatment. The object or the purpose of the Juvenile Justice Act is to provide care, protection and child friendly approach but the approach suddenly disappears towards the child between the ages of 16-18 years. The objective of Juvenile Justice Act is not being fulfilled as Juveniles are being treated as adult criminals and sent to the prison where they would be influenced to be more hardened criminals since the purpose of the Act is to protect the juvenile from committing further crimes and evidently not fulfilled with the amendment. Instead the government through this specific provision is giving a hand in converting the juveniles into hardened criminals unlikely of the main idea which stands to reform the juveniles so that they could be accepted into the society.

There is also a violation of fundamental right under Art. 21 as the rights of opportunity to be heard and right of fair trial are infringed. The right of the juvenile to be tried infront of the Children’s Court gets him infront of the Session court with the other hardened criminals and consequently, the degree of punishment is harsher.

Section 15 of the Act seeks to repeal and replace the existing Juvenile Justice Act, 2002 with a draconian and unconstitutional amendment which instead of providing care and protection to the children deems them as an adult in cases where the alleged commission of crime by them is heinous in nature. It seeks to punish the child in conflict with the law for the failure of the society at large in providing the child with adequate care and protection. Juveniles in conflict with the law are more capable of change given the fact that their brains are still learning. Honest efforts made towards rehabilitation — including visits by a mental health professional three-four times a month — will have a significant positive impact on them. Unfortunately, there is no psychiatric screening in Indian prisons. No mental health professional would meet the juvenile convicted in any case and would lead to its worser development, totally against the objective of the Act. Every child develops in different background factors and considering to bring most of them into a similar set would be unethical since their mental faculty would not be equal.

The provision does not necessarily decide on the child in respect to his psychological or social factors but only governs on his mental faculty while committing the crime. It is totally undermined by the government that the mental faculty actually develops through these factors. More often than not the children who are put into rehabilitation centres come through as a changed human being. Under the existing law of a child in conflict with law between the age of 16-18 years who were found to have committed an offence by Juvenile Justice Board, there was an arrangement of rehabilitation supposition that could be passed by the Board. This rehabilitation disposition includes admonition community service, imposition of fine, probation group counselling and an extreme measure of deprivation of liberty by way of placement of the child in the special home for three years. The same facilities however could take a drastic turn in for cases when they are handed over the sessions court.

There are many further circumstances under the Indian law a person under the age is not allowed to vote, is considered minor for entering into a contract, a girl of age less than eighteen years cannot give consent for sexual relationships, a child of age less than eighteen years cannot marry. Yet by the amended Act that child can be tried as an adult after a preliminary assessment, the child shall be presumed to have the knowledge and understanding of the alleged crime that he has committed. Such a scenario would be travesty of justice. The idea behind treating a certain age group as children is to protect the most vulnerable section of the society where the government would have analysed in such matters that they are not mature enough to deal with these things. It is unjust and against the well-established principle lex iniusta non est lex that states that unjust law is not a law.

 Section 15 of Juvenile Justice Act, 2015 is hence against natural conscience, unjustified and unconstitutional to which we hope, no child falls as prey.

Juvenile Justice

In order to achieve the objectives of the United Nations Convention on the Rights of the Child as ratified by India on 11 December 1992, the Juvenile Justice Act has been promulgated. The procedural guarantees applicable to children in conflict with the law are specified in this law. The current law addresses the problems of the existing law, such as delays in adoption processes, the high number of pending cases, the accountability of institutions, and so on.
The law also addresses the growing number of crimes committed by children aged 16 to 18 in recent years and by children in conflict with the law. Since January 15, 2016, the Juvenile Justice (Care and Protection of Children) Act, 2015 has come into force. It repeals the Juvenile Justice (Care and Protection of Children) Act, 2000.


Who is a juvenile as recognised by law?


In the Indian context, a juvenile or child is any person who is below the age of 18 years. However, the Indian Penal Code specifies that a child cannot be charged for any crime until he has attained seven years of age.


The Historical Evolution of Juvenile Justice Act in India


The United Nations Minimum Rules for Administration of Juvenile Justice of 1985 ratified by the United Nations Member States in Beijing in 1985, also known as the Beijing Rules, set out the rules, general principles and rules governing investigation and prosecution, adjudication, delivery, noninstitutional treatment and institutional treatment. Two essential concepts are explained in these principles. They are-

  1. Diversion– If children are treated in the criminal justice system, stigmatizing criminality increases the authority of the child, whose authority has been established from Rule 11 of the Criminal Code. Therefore, these principles aim at minimizing the contact of minors with the criminal justice system. To divert the child from the system, the second part of the rule legitimizes police officers, prosecutors and other authorities. This is why juvenile court judges do not wear the black coat and other judicial officials also try not to be as formal and put the child or minor at ease.
  2. Detention– A deliberate sentence imposed on minors but imposed for the shortest possible period and called “detention as a last resort”.

Juvenile Justice Act, 1986


Following the adoption of the United Nations Minimum Rules for Administration of Juvenile Justice of 1985, the term “minor” used in international law was coined for the first time. With the adoption of the Juvenile Justice Act of 1986, this change in terminology had a considerable effect on domestic law.


Before 1979, while Lakshadweep, Arunachal Pradesh, Tripura, Chandigarh and Sikkim had the Children’s Act but they did not apply it. In the case of Assam and Himachal Pradesh, although the laws have been enforced, no institution has been created to deal with the same thing and Nagaland does not even have a separate law for children. The Children’s Acts have been applied in 236 of the 334 districts in the case of other Indian states. In the mid-1980s, out of 444 districts, the number of children’s laws was increased to four hundred and forty-two.


As from October 2, 1987, the Juvenile Justice Act 1986 was applied by notification in all areas where it was extended. The need is for uniform laws over time for juvenile justice throughout the country and for the need to implement uniform laws that are fulfilled by the Juvenile Justice Act of 1986. In addition, there are States with no law in the area of justice of the sixteen, as well as uniformity at the national level. The Juvenile Justice Act, 1987 is nothing more than a full copy of the Children’s Act, 1960 which makes only minor and valueless changes here and there.


Juvenile Justice Act of 2000


The Indian legislator made a sincere effort in adopting the 2000 Act to inculcate the principles set out in the UN Conventions, such as the CRC, the Beijing Rules and the 1990 Rules. minors were promulgated to deal with offences committed by minors in a manner supposed to be different from the law applicable to adults according to the Supreme Court of India. The rehabilitation of the minor is the main concern of the Juvenile Justice Act, 2000 and not the adversarial procedure to which the courts are generally accustomed. A complete change in the mentality of those with the power to do so is necessary for its implementation, without which it will be almost impossible to achieve its goals.

Juvenile Justice Act of 2015


The increase in the number of crimes (including rapes) committed by juveniles (aged 16 to 18) was the main reason to introduce the new legislation. More retributive than reforming, the new law raised several questions. The new law is considered retributive because it contains provisions for teenagers who commit a heinous crime (punishable by 7 years or more) must be tried as adults but in the juvenile court. The child found guilty of the heinous crime is sent to a safe place until the age of 21, after which he is transferred to prison. The children’s court ensures it. This means that the benefit of a child is not granted to the minor when found guilty of committing a heinous crime.
Many protesters criticized the new law on minors for being unconstitutional. The Court noted that in Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, in the case of Pratap Singh v. the State of Jharkhand, one had to give all its importance to the moral and psychological elements even when responsible for a crime.
Many activists have raised another problem, namely that the 2015 law violates the spirit of article 21 (A), which states that a person can not be sentenced to a harsher sentence than that which would have been applied to him or her. by the law of the country. Under the new law, if a sentenced minor reaches the age of 21 but has not completed his entire sentence, he can be sent to prison if deemed appropriate. This new law undermines the spirit of Article 20(1).

What is the Institutional Care provided for the juveniles?

Rule 3 of the Juvenile Justice (Care and Protection of Children) Rules of 2007 states that “the institutionalization of a juvenile must be a measure of last resort after a reasonable inquiry and this also for the minimum possible duration.”


Observation Homes


Section 8 of the Juvenile Justice Act of 2000provides that the state government may establish and operate observation houses in each district or group of districts. A minor is temporarily received in these homes. For the duration of any investigation into them under the Juvenile Justice (Care and Protection of Children) Act 2000, minors are detained in observation houses. Minors are kept for a few weeks in the observation houses for the social study of minors.


Special Homes


Section 9 of the Juvenile Justice Act of 2000, states the state government may establish and maintain special homes in each district or group of districts. When the offence committed by a minor is proven and condemned by the competent authority, it is placed in the special home established by the state governments. In the special home, minors are treated for a long time or until their age ceases. Children’s Home
Section 34 of the Juvenile Justice Act of 2000 states “The state government may establish and maintain children’s homes in each district or group of districts.” The children’s home is a home where children in need of care and protection are placed on the order of a competent authority.


Shelter Homes


According to Section 37 of the Juvenile Justice Act of 2000, Shelters Homes as for children in need of urgent support. Shelter homes provide children with space where they can play and engage in creative activities. Children are engaged in music, dance, theatre, yoga and meditation, computers, indoor and outdoor games, etc, to spend their time productively. These creative activities are designed to encourage meaningful participation and interaction among peer groups.


What is the Non-Institutional Care provided for the juveniles?

Section 40 in The Juvenile Justice (Care and Protection of Children) Act, 2000 talks about the process of rehabilitation and social reintegration. The rehabilitation and social reintegration of a child must begin during his stay in a children’s home or special home monitoring organization.


Foster Care


Foster care is one of the non-institutional measures used for the temporary placement of children in accordance with Section 42 of the Juvenile Justice Act of 2000. Homeless, abandoned, neglected and deprived children benefit from a foster family. He replaces parents with others to provide care outside their own home. The child is placed in foster care when natural parents are faced with problems such as sentencing, life-threatening illnesses and being abroad.
The actual parents pay the corresponding price.


Adoption


Restoring family care for children deprived of their real family life Adoption is another non-institutional measure. Section 2(2) of the Juvenile Justice Act of 2015 defines adoption as the process by which the adopted child is permanently separated from his biological parents and becomes the legal child of his adoptive parents with all rights, privileges and responsibilities that are attached to a biological child.


Sponsorship


Another type of non-institutional measure called the Sponsorship Program provides additional assistance to families, children’s homes and special homes to meet the medical, nutritional, educational and other needs of children. Sponsorship is given to improve their quality of life. There are many types of sponsorship programs for children, such as individual-to-individual sponsorship, group sponsorship or community sponsorship.


After-care Organisations


The juveniles are taken care of in the organization of the aftercare, which is a transition home, after leaving the special homes and the children’s home. Minors in conflict with the law and children in need of care and protection, both categories are placed in aftercare organizations. Monitoring organizations allow minors to lead an honest and industrious life. Follow-up agencies are committed to the primary goal of enabling children and youth to adapt to society. In child care agencies, children and adolescents are motivated to stay in the wider society of their lives in institutional homes.

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.