A person’s a person, no matter how small: An Introduction
“There can be no keener revelation of a society’s soul than the way in which it treats its children.”
- Nelson Mandela.
Recognition of the rightful place of the child in the societal fabric, a paradigm shift from a need-based approach to a right-based approach, aspiring development and mainstreaming of the child, was a high water mark of progressive democracies in the last century. Child-centric human rights jurisprudence has become pivotal in the law’s role in social engineering.
The word ‘juvenile’ originates in ‘juvenis’(Latin, young). Juvenile justice is the legal system that aspires to protect all children, bringing within its ambit the children in need of protection, besides those in conflict with law. However, the word has come to be used together and often interchangeably with ‘delinquency’ – which describes children who are in conflict with law, conjuring an image of violence.
The Juvenile Justice System in India, the ripple effect of the criminal justice system, has always been marked by the tussle between the protective approach of juvenile justice and the traditional approach of the latter. Despite the Constitutional guarantees and a plethora of child-centric legislations and civil rights, innumerable Indian children, face widespread discrimination and deprivation.
Diverse Justice Standards and Diversification of Liability: The Need
“Children need love, especially when they do not deserve it.”
- Harold S Hulbert, child psychiatrist
Prescribing different treatment for juvenile offenders is an offshoot of the new penology, which came to be applied with the realization that courts, procedures and prisons meant for adult offenders could hardly be expected to serve the interests of juvenile offenders. Erstwhile system exposed delinquents to contamination due to incarceration with other criminals. The nation’s future citizens deserve compassion and best care. A child is born innocent, and responsibility should be attributed to such environmental factors that have stirred his criminal tendencies, whose removal might mould him into a person of stature and excellence.
The child’s diminished legal capacities can be traced to the writings of thinkers like Locke. Since antiquity he was exempted from the demands of utilitarian principles, subjected to different standards of moral evaluation. John Stuart Mill extended the applicability of his doctrine only to humans in the maturity of their faculties, emphasizing that those in a state to require being taken care of by others, must be protected against their own actions and eternal injury. Fairness and justness to children demands that their liability be diminished, that expecting the same maturity and behaviour standards from the children as adults would be like treating “unequals as equals”, and also ordains- as opined by John Rawls- that they must be subject to protective and restorative measures as are most conducive to their societal re-integration.
A. International Law Regime
The erstwhile League of Nations (1924) and the United Nations (1959) had adopted Declarations on the Rights of Children- significant but non-binding. The seeds for the right-based approach were sown in the ICCPR 1966. The eloquent evolution of the juvenile justice system has culminated in the Convention on the Rights of the Child (CRC) 1989, a legally binding instrument. It brings those less than 18 years of age under the ambit of the term ‘children’. Articles 37 and 40 specifically and when read with the General Comment No.10, Children’s Rights in Juvenile Justice, lay down a comprehensive mechanism that States must comply with, taking note of the overall framework of the CRC and its main ‘umbrella rights’. The aforesaid provisions must be read with the following international guidelines:
- Beijing Rules 1985;
- Riyadh Guidelines 1990;
- JDL Rules 1990;
- Tokyo Rules 1990;
- Guidelines for
€ Action on Children in the Criminal Justice System, ECOSOC Resolution 1997;
€ Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC resolution 2005;
€ Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC resolution 2005.
Preventing juveniles from coming into conflict with law in the first place and complete rehabilitation by the time they leave the system is sought through alternative measures of ‘Diversion’ and ‘Restorative Justice’.
B. Indian Scenario
I. Tracing the Evolution of the Law
- Pre-Independence Era
Differential treatment for children can be traced as far back as the Code of Hammurabi in 1790BC, the responsibility for their supervision and maintenance being vested on the family. During the colonial regime the first center for destitute children called “Ragged School” was established in 1843 by Lord Cornwallis. The period between 1850 and 1919, marked by social and industrial upheavals, called for the enactment of the Apprentice Act (1850), the IPC (1860), the CrPC (1861), and the Reformatory Act (1876 and 1897), announcing the paradigm shift in the penal philosophy in India from punitive to reformative.
As the country moved towards independence, recommendation to establish a special children’s Act came from the Indian Jail Committee (1919–1920). Individual provincial governments chose to enact separate legislation for juveniles in their respective jurisdictions; provinces of Madras, Bengal and Bombay passed their own Children Acts in 1920, 1922 and 1924, respectively.
- Post-Independence Era
- The Constitutional Scheme on the Protection of Juveniles
Article 15(3) enables the State to make special provisions for children. Entitlement to free and compulsory education up to14 years has been read into Article 21. Articles 23&24 further enshrine fundamental protections and Article 45 is supplementary to Article 24. Article 24 in turn supplements the Article 39(e)&(f) thus ensuring distributive justice to children in the matter of education.
- India’s International Commitments and National moves on the issue
The second UN Congress on the Prevention of Crime and Treatment of Offenders at London resulted in the enactment of the Central Children Act, 1960, followed by a National Policy in 1974. India ratified the CRC in 1992; introduced a National Charter in 2003 and a National Plan of Action in 2005; and ratified in 2005 the CRC’s two optional Protocols besides signing the SAARC Conventions. The concern over the issue is reflected in the report of the Working Group on Development of Children for the Eleventh Plan (2007-12) of the Planning Commission.
The CCA was replaced by Juvenile Justice Act, 1986, in conformity with Beijing Rules, which was thereafter repealed by the Juvenile Justice (Care and Protection of Children) Act 2000, amended in 2006. It has established the Child Welfare Committee to address the needs of ‘children in need of care’ and the Juvenile Justice Board to deal with ‘children in conflict with the law’.
II. Poring over a Few Relevant Case law
Sanjay Suri v. Delhi Administration proposed a separate structure to keep juveniles. The issue of age of commission of offence has been elucidated under Sec.7A of JJAct, and discussed in the noteworthy cases of Bhoop Ram v UP, Gopinath Ghosh v West Bengal and Bhola Bhagat v Bihar. Age determination is of paramount importance to find out whether the accused falls under the purview of the JJA and accurate recording of the same is essential for deciding the duration of institutionalization. In Jaya Mala v. Home Secretary, Government of J&K, the apex court noted that the margin of error radiological ascertaining is about two years. Validity of medical evidence was discussed in Sunil Rathi v. U.P.
The issue of high pendency of cases was taken up in the case of Sanat Sinha v Bihar, and addressed by the insertion ofSec.14(2).Several directions were issued to the Governments in Vishal Jeet v. UOI for eradicating the child prostitution and for providing adequate rehabilitative homes.
A note of caution has been struck in regard to the apt interpretation of the beneficial legislation in Pratap Singh v. Jharkhand.
Implementation rhetoric: the Road Ahead
Despite the elucidation of comprehensive beneficial schemes for children, implementation is defective. Appropriate training is absent; there’s tussle in granting bail to the delinquents, serious accountability concerns, and overall apathy. There are unprecedented incidents of police brutality and abuse in the Observation Homes, along with incompetence and delay on the part of probation officers.
Attempts have been made to ensure enforcement by drafting Model Rules 2007 as an addendum to the Act and by creating an Integrated Child Protection Scheme. A ray of hope glimmers in the form of the Protection of Children from Sexual Offences Bill 2011, which not only aspires to curb the sexual atrocities against our children, but also to rein the media by prohibiting comments on child, either accused or victim of an offence, which may lower character or infringe privacy. It is high time now that the social workers take up the role of a friend, adviser, reformer and healer simultaneously, and NGOs come forward to seek charge of juveniles pending or on completion of inquiry.
 AIR 1988 SC 414
 (1989) 3 SCC 1
 AIR 1984 SC 237
 AIR 1998 SC 236
 AIR 1982 SC 1297
 2006 (9) SCC 603
 1991 (2) Crimes 241
 (1990) 3 SCC 318
 AIR 2005 SC 2731
Student, 3rd Year at Dr. Ram Manohar Lohiya National Law University, Lucknow,
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]