By Zoma Itrat Khan ~ Integral University, Lucknow

Introduction

Nil Novi Spectrum, a Latin maxim that suits best for the Juvenile Justice system in India. It can be defined as ‘nothing is new’. This has been in existence since ancient India as a presumption in the whole, that the Juveniles should be dealt leniently because there exists a system of thought that they have a habit to respond in thoughtfully and anxiously which is incorporated with aggressive approaches.

In the last few decades, it has been observed that the crimes committed by children under the age of 15-16 have proliferated. The cause of general inclination or the psychology behind the wrongdoing in the crime can be formative year’s experiences, dominant virility, upbringing, economic deprivation, backwardness, etc. The children under the age of 6-10 are a tranquil tool for executing unlawful or illegal activities. It is a matter of ignominy. Since the minds of the kids possess an innocent and manipulative character, they can be lured at the least cost.

Present Covenant

Before the Juvenile Justice Act of 2015[1], 2000[2] and 1986[3] the Act of 1960 exists which focuses on consequently giving international responses regarding the matter of Juvenile Justice through which they furnish a uniform policy. This protected the right and interest of a Juvenile and gazed at care, treatment, rehabilitation, and development of a child per se. Recent developments in the international body and involvement of Juveniles in wrongdoing, the lawmakers are compelled to come forward with new, progressive laws for the perturbed Juvenile system in the country. Consequently, the Juvenile Justice Act of 1986, followed by the Juvenile Justice Act of 2000 and the Juvenile Justice Act of 2015 was passed by legislation.

The former Chief Justice of India, Justice V.K. Krishna Iyer once stated that we need penal code because the child is the sire of a man and if we fail to provide the development in children, then we would be guilty of many faults related to abandoning our children.

The gruesome incident of “Nirbhaya Delhi Gang Rape Case”[4]on December 16, 2012, left the whole nation petrified and many contemplations took place among the legal fraternity and socialists. The main issue of the debate was the participation of the accused, who was just six months young to attain the age of majority.

The introduction of this Act has replaced the prior laws and has introduced some significant changes. One of them is that the juvenile between the ages of 16 to 18 years should be treated as an adult if committing a heinous crime. Generally, a “child” can be defined as a person who has not attained the age of 18 years and is not mature to understand what is right and wrong. In the present covenant, the penal laws of most countries have adopted the principle of ‘doli incapax’[5]which means knowing the nature of the act they are committing is a crime. The penal laws also state that only children between the ages of 7-12 cannot be convicted.

Definition of Child under Juvenile Justice Act

Child: The term means a person who has not attained the age of 18 years and is not matured enough to understand what is right and wrong.

Section 2 (12) of The Juvenile Justice (Care and Protection of Children) Act 2015 states that a child is a person who has not completed the age of eighteen years of age. This act classifies child under two heads as:-

  1. Child in conflict with the law: The child who has committed an offense and he or she are under the age of eighteen years of age on the commission of such offense are – a child in conflict with law defined under section 14 of the act.
  2. Child in need of care and protection: can be defined as under any sub-heads—
  3. who is found without any home, settled, place or;
  4. who is found working in contravention of labor laws or;
  5. who resides with a person whether a guardian or not and such person injured, exploited, abused or neglected the child or has violated any other law or (b) has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of apprehension or (c) has killed, abused, neglected or exploited some other child or;
  6. who is mentally ill or mentally or physically challenged or having no one to support or look after or having parents or guardians or;
  7. parent or guardian has left them or, such parent or guardian is found to be unfit or incapacitated or;
  8. who has no parents and nobody is willing to take care of them, or has surrendered him or abandoned him.
  9. who is missing or has run-away, or:
  10. who has, been, being or is likely to be abused, tortured, exploited for the motive of sexual abuse or illegal acts or;
  11. who is found vulnerable and is likely to indulge in drug abuse, trafficking or;
  12. who is being or is likely to be abused for unconscionable gains or;
  13. who is victim, affected by any armed conflict, civil unrest or natural calamity or;
  14. who is at impending risk of marriage before attaining the age of marriage and whose parents, family members or guardian, or any other persons are likely to be responsible for solemnization of such marriage.

According to the Indian Majority Act, 1875[6]: section 3: “Aforesaid, every person who attains the majority when he shall have completed his age of eighteen years not before”.

Chronicle of Juvenile Justice Act in India

India had made legal provisions that specifically and primarily deals with the rights, interest, and protection of juvenile offenders. This aims to tackle the difficulties of juvenile delinquency. The very basis of the Juvenile Justice System in India can be categories as under three chief assumptions: –

  1. Delinquency should not be tried in courts; however, they should be the correctional way in all the best possible ways,
  2. They should not be penalized by the courts; reformative reforms should be given.
  3. Non-penal treatment should be given to a child in conflict with the law while in trail[7] should be based on the communities’ social control agencies e.g. Observation Homes[8]  and Special Homes.[9]

Juvenile Justice Act, 2015

Juvenile Justice Act, 2000 was replaced by the Juvenile Justice (care and protection of children) Act, 2015, because there was a need for a sturdier and effective justice system that concentrates on reformative as well as 7 approaches. The approach as regards Juveniles should be different from adults, there was disagreement in parliament that Juveniles should be given more space for transformation or reformation or improvement and that is only possible when there’s a special justice system. Thus, it focuses on a Juvenile favourable approach of mediate and disposition of matters.

Salient features of Juvenile Justice Act, 2015

On December 22, 2015, Rajya Sabha passed the juvenile justice bill within the following changes:

  1. Section 2 (12) of the Juvenile Justice (care and protection of children) Act, 2015 defines the Child, a child is a person who hasn’t completed the age of 18. The Act further provides classification regarding the term “Child in need of care and protection” and Section 2 (13) defines “Child in conflict with law”.
  2. There is a clear distinction made regarding the facets of offenses, that categories as- heinous, serious, and petty. There have been specifications made regarding the Juveniles who are between the age of 16-18, they can be tried as an adult in a heinous crime[a1] .
  3. Establishment of Juvenile courts, i.e., that special courts were to be established that will be trying the Juvenile offenses only.
  4. The scope of the definition widened ‘Child in need of care & protection’ was enhanced as mentioned in Section 2 (14) of the Juvenile Justice (care and protection of children) Act, 2015.
  5. Further examination by the juvenile justice board to know if the crime was committed by that person as an adult or a child.
  6. The juvenile justice board is required to consist of a team of psychologists and this is made to ensure that the rights of a juvenile are protected if the crime committed by him as a child.
  7. Every district in the country must have juvenile justice board and additionally a child welfare committee, which comes into play as a consequence of the passage of the bill.[10]

The United States of America 

The United States of America follows a relatively less complex and easy way. Courts follow an informal way in the process of trial of offenders. At the very initial stage, the police officer-in-charge of the case has the full discretionary power whether to keep the juvenile offender in the child custody to immediately release him, or to admonish the offender, or to do them both. Secondly, police officers should be aware of the case and further take matters into their own hands.

After the trial, the juvenile offender is being sent to a certified school or the children’s homes if the court passes the order. A juvenile is tried as an adult only in those cases where there is possible proximity of age of adulthood as per the statutory provision or any juvenile offenders who are found to be involved in the repeated offence and is proved as dangerous to the society.

Delinquency: As a problem

Juvenile delinquency is a serious plight in modern society. This issue requires major attention, as in the composition of the population, the youth in demography form all about in the age group of 15-19 comprise of 100,215,890 individuals and 9.7 in percentage and age group[11], which is equal to ¼ of the total population of India. It just does not affect the generations but the whole family and the whole of the neighbourhood.

Delinquent is the person who suffers the most for his / her action; they can lose their freedom due to incarnation or probation while losing the academic grounds as well. The trauma of having a family member involved in delinquent behaviour can create the family to deal with an ethical issue such as creating more responsibility of the parents but also to deal with economic hardship. Drug abuse, gang involvement, and vandalism correlate with delinquency, therefore leaving the neighbourhood unsafe and costing the city at large amounts to protect. Estimating the cost of delinquency is challenging as the accumulating the total amount of all direct and indirect crime of a hundred billions of dollars.

What is the doctrine of ‘Doli Incapax’?

The vital principle of Criminal Jurisprudence is the doctrine of ‘Doli Incapax’, which defines the criminal liability of the Juvenile. When this doctrine is interpreted with regards to the Indian Laws, the result is that no Juvenile under the age of 7 years can be prosecuted for the commission of the crime. Section 82 and 83 of the Indian Penal Code, 1860 enumerates the same.

The doctrine of ‘Doli Incapax’ literally means the incapability of constituting a crime. The very basis of this is the Article 40 (3) (a) of the United Nations Convention on Rights of Child, which provides that every country must mention the minimum age for the children who should be exempted from any criminal liability because of their inability to decipher the nature and consequences of the act.

The main aims of this doctrine can be understood in the following points:

  • A child should be protected from the intensity of punishment inflicted upon him for his actions. A reformative approach should be taken into consideration for the child to overcome his paranoia.
  • A child which belongs to the age group of below 7 years, he doesn’t possess the mental capacity to analyse the consequences of his acts, they may lack the knowledge and the intention (men’s rea) to commit a crime (actus reus), and merely actus reus cannot constitute a crime.

Juvenile Justice- A reformative or Punitive Approach?

Juvenile Justice is a legal framework and legal system which defines justice for the juvenile.  The system provides special treatment and protection to juvenile delinquency. Juvenile Delinquent means a crime committed by a minor who is under the age of 18 years. At present, there is a proliferation of juvenile crimes, and this is creating a contemplating issue of age determination. Age determination is the paramount factor to determine the maturity level of the offender. The question which arises here is whether the juvenile can be tried as an adult or not? The act itself answer to the question- that no juvenile offender who comes under the definition of” child with conflict with law” as under subsection 13 of Section 2 of the Act shall not be tried as an adult (till the offender attains the age of 21 years and then he or she may be shifted to the jail or prison) until then they shall be sent to Child Care Centre or any Rehabilitation Centre.

The maximum time of punishment which is specified to the juvenile offenders is three years, and this punishment is valid for heinous crime as well. However, this Act applies in the case of juvenile offenders believe in the reformation approach as much as possible. The reformation approach of punishment under the Act incorporates: – Sending juveniles to Rehabilitation Centres, Juvenile Schools, or indulging them involved in a various program headed by the government or NGO’s. Moreover, the maximum punishment specified for an adult is 7 years or life imprisonment or the death penalty. By adopting the reformative theory of punishment, it gives an undue advantage to juvenile to preserve their ability to commit a crime without facing any defined result. If the law is speaking about reforming juvenile offenders, so we can have a better life in the future, then the law should also talk about the rights of the victims. Justice should be served to the victims too.

Therefore, the author believes that the theory of reformation is helping juveniles to reform, but it is not helping the victims at all.

The present Act is created to believe that juvenile offenders can be reformed and rehabilitated. Sending them to bars or prisons will be going to reaffirm their status and identity as “criminals”. Now the question arises is that there is any assurance that juvenile offenders will get reformed and will not show their anti-social behaviour a new.

The main object of the Act is on the reformation approach rather than a punitive approach. Penalization will create a deterrent effect on the juvenile, and the proliferation rate of crime by a juvenile will slow down.

Conclusion

As we are approaching more advanced times, the notion of crime is changing too. The conceptualization of juvenile crime is relatively new and often debated. India is adherent to many theories when adapting to awarding punishment. Juveniles should be treated under the mixture of the retributive theory of punishment and the utilitarian theory of punishment. The retributive theory believed that it seeks to punish offenders because they deserve to be punished. Whereas, utilitarian theory seeks to discourage or to deter offenders from future wrongdoing. It is often consequentialist. It is recognized as that punishment which leaves an impact on both: society and the offender. The author believes that the measure should be taken into consideration as the offender should be penalized if he/she has the understanding and knowledge of the crime that they might commit as well as their consequence when they can distinguish between what is wrong and what is not. In today’s given circumstances, there is no need to give a minor a reformative kind of punishment for a heinous and gruesome offence just because of Age determination. Rape is Rape; one cannot take a plea of age factor or mental incapacity or mental unfitness. The proliferation of juvenile crime in India is a very concerning issue and need to be focused upon. Legislation has laid various rules and regulations to stop the occurrence of juvenile crimes. Still, the prescribed laws on juveniles are not creating a deterrent effect on the juveniles, and thus the results are not fulfilled, and the intention of the government is not accomplishing.


Citations

[1] The juvenile justice (care and protection) Act, 2015, Legislative Department, Retrieved from http://legislative.gov.in/actsofparliamentfromtheyear/juvenile-justice-care-and-protection-children-act-2015.

[2] The juvenile justice care and protection of the children Act, 2002, retrieved from http://www.legalservicesindia.com/article/2482/The-Juvenile-Justice-Care-and-Protection-of-Children-Act,-2000-and-The-Juvenile-Justice-Care-and-Protection-of-Children-Act,-2015.html.

[3] The juvenile justice Act, 1989, retrieved from https://thefactfactor.com/facts/law/legal_concepts/criminology/the-juvenile-justice-act/12079/.

[4] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.

[5] Section 82 of IPC states that a child below the age of seven years is doli incapax.

[6] Indian Majority Act, 1875.

[7] Section 2 (13) of the Juvenile Justice (Care and Protection) Act, 2015.

[8] Section 47 of the Juvenile Justice (Care and Protection) Act, 2015.

[9] Section 48 of the Juvenile Justice (Care and Protection) Act, 2015.

[10] Juvenile justice (care and protection of children) Act, 2015, the bright law house Delhi, 2017.

[11]Office of the Registrar General & Census Commissioner, India, Retrieved from: https://censusindia.gov.in/.



Juvenile Justice: A Corrective Measure

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