Consentia on Law - VOl - II

Juvenile Delinquent and the Justice System

Introduction

Children constitute the most vulnerable section of society and are the most important asset for the future and development of that society. It was rightly coined by Abraham Lincoln “A child is a person who is going to carry what you have started. He is going to sit where you are sitting, and when you are gone, attend to those things you think are important. You may adopt all the policies you please, but how they carried out depends on him. He is going to move in and take over your churches, schools, universities and corporations. The fate of humanity is in his hands”[i]. But, over the past few decades juvenile crime has grown twice as quickly as that of the adults. Childhood experiences play a very significant role in the development of criminality in a juvenile, generally this trait of criminality is not noticeable in the early life, but if they are acted upon future delinquency can be avoided. Juvenile delinquency is not a problem in just one corner of the earth, but it is a problem faced worldwide in every country. In order to tackle with problems like juvenile delinquency efforts are being made nationally and internationally to rehabilitate, protect and prevent juvenile delinquency.

Our country has from since quite sometime over the past few decades have been working and aiming at protecting children and the juveniles in conflict with the legal system by introducing various Acts and rules in order to do the same as mentioned above. The crime committed by juvenile has not been decreasing although various measures have been taken up by the government in our country. For the past few decades the crimes committed by a juvenile have been hiking up mostly around the age group of 16 – 18 years. In a recent case of the Nirbhaya rape case in Delhi in the year 2012, December the Supreme Court of India lowered the age of a juvenile from 18 to 16 years of age which is a person will be considered a minor below the age of 16 years.[ii] According to recent surveys conducted by the National Crime Records Bureau, crime reported to have committed by juveniles in the year 1990 was said to have been about 15,230 and then it tolled to 22,865 in the year 2007.

Juvenile delinquency has not only been a national concern, but also an international concern where the Unite Nation said every child has its human rights and they should not be denied to it by anybody.[iii] Hence, they said that there should be a law to protect the right of the children. Consequent to it, it was accepted that special attention should be given to the steps initiated to prevent delinquency among children and also to the homeless and street children and also to homeless and street children in the urban setting. The need for giving special attention to youth criminality was also given due importance and emphasis.

The Government of India taking into consideration the policies laid down by the United Nations took up the nodal importance in the development and protection of the children and juvenile in conflict with the legal system and to advance their legal rights. The government of India also introduced child-centred legislation, policies and programmes and began the work on the survival, protection and development of the children in a holistic manner. And also introducing facilities so that the children can access learning, nutrition, institutional and legislative support thus enabling them to grow and develop to their full potential.   

Juvenile Delinquency: An International Effort

International demand in the case of the juvenile offenders is to ensure minimum guarantees of their rights protection throughout the world. Juvenile Rights are defined variably by various International agencies therefore special attention must be given.

Some of the efforts taken all over the globe by various institutes[iv] are pointed out below –

  • Convention on the Rights of the Child (1989).
  • UN Standard Minimum Rules for the Administration of Juvenile Justice, Beijing Rules (1985).
  • UN Guidelines for the Prevention of Juvenile Delinquency, Rhiad Guidelines (1990).
  • UN Rules on the Protection of Juveniles in Custody (1990).
  • Guidelines for the Treatment of Juveniles within Juvenile Justice, Vienna Guidelines (1997).
  • UN Standard Minimum Rules for Non-custodial Measures – Tokyo Rules (1990).
  • International Covenant on Civil and Political Rights – ICCPR (1966).
  • European Convention for the Protection of Human Rights and Fundamental Freedoms (1953).
  • Council of Europe Social Reaction to Juvenile Delinquency, 1987.
  • European Rules on Social Sanctions and Measures (1992),
  • Council of Europe Social Reaction to Juvenile Delinquency of Juveniles from Migrant Families, 1989.

The details for the pains taken by various United Nations Institutes or Organizations are briefed below –

The Convention on the Rights of the Child (1989)[v]

The UN convention on the rights of child is a leading and comprehensive agreement defining the rights of the children’s. There are various provisions which deal with the rights of child and to protect their interest. It is a great effort of the UN for the protection of the rights of child. The general principles of the Convention on Rights of Child   include various principles such as:

 

  • Article 1 – Definition Of Child – Right s for all under 18years of age is covered by this Convention.
  • Article 2- Principle of Non-Discrimination-Convention applies to all, irrespective of their race, religion, abilities, even their family background.
  • Article 3- The Best Interests Of The Child – Considering best for each child should be the objective of every organization.
  • Article 6 – The Right To Life, Survival And Development – Full growth, development of a child to be mandatory provided by government is ensured in this article, with a right to live their full life.
  • Article 12 – The Right Of Children To Participate In All Matters Affecting Them – Opinions of child are to be considered and they should have a right to say and to think for the matters taken by adults concerning to them.

  • Article 27 – The Right Of Every Child To A Standard Of Living- Government should aid below poverty line families in bringing up their children. Child’s right is to have a physical, mental, spiritual, moral and social development and it should meet in a standard of living provided to these children.
  • Article 37 – Deprivation Of Liberty, Including Pre-Trial Detention And Post-Trial Incarceration – There should not be seclusion with families for the child in prison. Also the child should not be kept with adults in imprisonment without treating them cruelly.
  • Article 38 – War and Armed Conflict – With special protection in the war zones, government should ensure not to indulge children under 15 in the army/battlefield.
  • Article 39Rehabilitation of child victim Self –respect of each and every child, who has been tortured or abused, must be restored by treating or helping them in every manner considering as a special child.
  • Article 40 –Juvenile Justice – Only serious offenses should call for imprisonment. Children offended for crimes other than this should be provided with suitable and appropriate legal help.

 

Undoubtedly, all the provisions provided in CRC’s apply for all those children who are in prison, it even includes those who are under the prohibition of child labour and those under the rights to freedom of religion, play, protection against sexual exploitation, education, health care, etc. Other than these, CRC’s provisions provide a child right to maintain contact with parents. But considerable point here is the possibility of limitations connected directly to the locked up child’s right to privacy, etc. But due to this fact, State Party or Govt. should take more extra pain to guarantee all of their rights recognized in the CRC.

The United Nations Rules for the Protection of Juveniles Deprived of their liberty[vi]

In order to ensure the respect for the human rights of juveniles and to counteract the detrimental effects of deprivation of liberty, the 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules) was framed out. All those who were under 18, their deprivation of liberty can be regulated through this internationally accepted framework.

Following principles formed the basis of the Havana Rules –

  • Considering it as the last option, only exceptional cases should be deprived of liberty but that to for a minimum period.
  • The deprivation of a juvenile’s liberty should be in accordance with principles and the procedures of international law.
  • In order to prevent the additional negative effects of deprivations of liberty, small open facilities should be highly encouraged among individuals.
  • The upbringing of a juvenile in the establishments provided after their deprivation of liberty must ensure healthy and meaningful activities and programmes. In spite of all this, their skill development must be carried out in order to be a responsible and good member of the society.
  • Decentralised detention facilities should be there to provide them contact with their families and also allowing them to participate or involve with the community.
  • This social service, of taking care of juvenile is a noble cause and highly important.
  • All the care taken and purpose behind it should be explained to each and every juvenile. Moreover the entire liberty deprived juvenile’s must be assisted in understanding their obligations and rights.

Juvenile Delinquency: Present Scenario in India.

The crimes being committed by the juveniles are increasing day to day. Keeping in mind the present situation there is a need to keep a check in the crimes committed by the juveniles, as the crimes committed by them are of heinous nature, cause now the acts of rape and murder is being committed by the juveniles.  In India the numbers of cases against the juveniles have increased to a great extent. There is also an increase in the number children coming in conflict with the law in the 16-18 age groups.

In India the number of cases of juvenile delinquents has seen a rise from 16509 in 2001 to 25,125 in 2011, out of which number of rapes committed have increased from 399 in 2001 to 1149 in 2011. The figures state that 96% of rapes of union territories in 2011 took place in Delhi alone- that is, 47 of 49 rapes. Out of all the juveniles in conflict with the law 30-35% are psychopaths.[vii]  There are around 815 juvenile homes in the country which are not well equipped with professionals but overcrowded with delinquents.[viii]  To show the crimes committed in different states here is a picture illustration which will help to understand better the crimes committed

by juveniles:

 criminal-minds_enlarge_011213020615

 According to recent figures of 2013, around 43,506 crimes were registered against the juveniles. Out of which the juveniles above 16 year crime commitment rate was 28,830. There was an  rise by 13.6% and 2.5% respectively, as compared with 2012 in the number of juveniles in conflict with the law. There was a rise in crimes against women where the modesty of women outraged (132.3%) insult of modesty by word, gesture or act was (70.5%) and rape (60.3%) as stated by the National Crime Records Beareu.[ix]  The debate regarding the Age of Juveniles between 16 and 18 years started in 2012 after the Delhi gang rape in which the main accused was a minor, he was sent to a remand home for just three years whereas others were given a death sentence. Here is a picture to better understand the crime record in 2013:

1708_metro3_mumbai

“There are several factors for the rise in crime by juveniles. Even Prime Minister Narendra Modi rightly pointed out in his speech during Independence Day, that there is a need for parents to take account of their children,” said eminent lawyer Majeed Memon.[x] Taking into consideration the rise in crime rate by the minors between the age group 16-18 years, the union cabinet has approved to amend the existing age of juveniles from 18years to 16 years stating that the minors older than 16 years should be treated as adults if charged with serious crimes such as Rape. The decision was taken by the union cabinet, chaired by PM Modi.[xi]

There are various reasons which lead to male children commit crimes. Efforts should be taken to cope up with the root cause so as to reduce the crime rate among the juveniles. Some factors that lead to crimes are:

  • Lack of education
  • Lack of proper parenting and up bringing up by the parents
  • Lack of love, care and affection
  • Lack of home and shelter and the basic needs. Etc

Recent Reports on Juvenile Delinquency:

After looking into the facts and figures described in the reports of the National Crime Records Bureau (NCRB) it was revealed that there was a enormous rise of about 143 percent in the rape cases by juvenile from the year 2002 to the  year 2012. Moreover, sexual crimes committed by juvenile in 16 years of age group were 2.4 percent and 3.4 percent for all juvenile age groups of the total crime committed in the year 2013.  Looking into the NCRB report revelations, the then Women and Child Development Minister Maneka Gandhi recommended for involving 16 years age juvenile to be adults if they are found involved in heinous crimes..[xii]

If certain reasons are required to be sorted out for the pathetic condition of women in the country, then major will be treating a girl child as a burden, since girl childhood her life becomes a challenge to survive. Shockingly in a report submitted by UNICEF in the year 2012, 57 percent of Indian boys and 53 percent of Indian girls in the age group of 15 to 19 thoughts of wife beating as a valid act. As a matter of shame, Reuters Trust Law group even named India as one of the world worst countries for the women to live.

This has led to a serious cause of concern for the future generation girls to survive in this country and thus a serious debate is about regarding reducing juvenile age from 18 years to 16 years. But if such recommendations are incorporated, then India will not be following the global age standards prescribed by the United Nations Convention. At one point of time same was even incorporated, but according to the Juvenile Justice (Care and Protection of Children) Act same was replaced back to 18 years in order to comply with the United Nations Convention prescribed age standards mentioned in the Rights of the Child, 1989. Also lowering the age of male juvenile only (since female juvenile age was never changed from 18 years) from 18 years to 16 years was also not abiding by the recommendations of Justice JS Verma Committee in the formulation of anti-rape bill passed recently.[xiii]

Globally the perspectives on the juvenile age limit involved in heinous crimes and are considered as adult are different, if we look upon then countries like Singapore considers age much less at 12 years in this regard, whereas in China it is set as 25 years. European countries have an age of 21 in this regard. Although US has not ratified the UN Convention on Rights of the Child, many of its states like Indiana allow even young age of 10 years to be trialled in the courts.

 Even after creating a tremendous pressure on the Indian legal system by the society, the decision of retaining the age for juvenile delinquency was kept intact by the Justice JS Verma Committee after the Delhi gang rape incident. Such recommendation was after emphasizing on the brain development needs as mentioned in the Laurence Steinberg’s research paper, titled as ‘ A Social Neuroscience Perspective on Adolescent Risk-Taking ‘.[xiv] According to it, if a juvenile aged 16 years are being life-imprisonment then he/she will be released in mid-30s. There is a very less possibility of the convict to return into society as a reformed person. Although examples set for the inmates reformation by Ms. Kiran Bedi in Tihar Jail are exceptional , majority of Indian jails is lacking in huge terms in their reformation and rehabilitation policies. By depriving the juvenile convict from their parenting grooming and proper education, the reformed person to the society can never be expected. The Ground reality is that inmates are not even considered as inmates in the jails and the Juvenile Justice Act provisions are just reduced to words on paper, thereby in a broader sense we are breeding more criminals in jail. We are in view of serious amendments to be made in this connection and appointments of counsellors or mentors with a suitable therapy for the juveniles should be encouraged in spite of only magistrate being the presiding officer of the Juvenile Justice Board taking care of the situation. Otherwise, time will be near when the youth society will be divided into ‘I’ and ‘them’.[xv]

Legal provisions and policies: juvenile delinquency

Like every developing country, our country has also been facing problems too in various fields one of which is Juvenile delinquency. In order to tackle the problems with a juvenile in conflict with the law and a juvenile itself the government of India endowed many provisions in law.

Constitutional Provisions

After independence, the constitution provisions inspired the developments in the field of juvenile justice. Part III and Part IV9 which deals with Fundamental Rights and Directive Principles of State Policy respectively contain some special provisions with respect to children.

Article 15(3): It permits the state to make provision for children and women.[xvi]

Article 23: It prohibits the trafficking in human beings and forced labour. [xvii]

Article 24: It forbids the employment of children below the age of 14 years in factories, mines and other hazardous occupations.[xviii]

Article 39(e): It directs the state to safeguard the tender age of children from entering into jobs unsuited to their age and strength forced be economic. [xix]

Article 39(f): It directs the state to secure facilities for the healthy development of children and protect childhood and youth against exploitation and moral and material abandonment.[xx]

Article 45: It requires the state to provide free and compulsory education to all children up to age of 14 years.[xxi]

Article 47: It states it is the duty of the state to raise levels of nutrition and standard of living. Parliament has enacted the 86th Constitutional amendment in 2002 and made Right to Education a Fundamental right.[xxii]

The Juvenile Justice (Care and Protection of Children) Act, 2000

This Act lays down the provisions of a juvenile in conflict with the law and the procedures to be followed when the juvenile comes in contact to the law. This Act aims at protecting a juvenile and the procedures which have to be followed when a person claims to be a juvenile, it also states about the juvenile justice board aimed at protecting the juvenile and endowing fair judgement. This Act aims at rehabilitating a juvenile in conflict with law through the procedure of sending the juvenile to observatory homes and other special homes where the juveniles can reflect on themselves and help them out of such problems they had been facing. This Act does not aim at giving a stringent punishment to the child, but punishments under probations and sending them to the above mentioned rehabilitation centres. This Act also prohibits the publication of the names of the juvenile who is in conflict with the law in order to protect their future. This Act provides such provision of protection of a juvenile where punishment is awarded to a person found guilty of cruelty to a juvenile or a child and a penalty to a person who is found guilty of intoxicating liquor or narcotic drug or psychotropic substances to a juvenile or a child. This Act also aims at providing employment to children who are beggars. Thus, as a whole we can say that this Act as a whole lays down the various guidelines for protecting and preserving a child and a juvenile who is in conflict with law.[xxiii]

Other Provisions

  • State Rules on Juvenile Justice
  1. The Andhra Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2003
  2. The Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003
  • The Chhattisgarh Juvenile Justice (Care and Protection of Children) Rules, 2006
  1. The Delhi Juvenile Justice (Care and Protection of Children) Rules, 2009
  2. The Gujarat Juvenile Justice (Care and Protection of Children) Rules, 2003
  3. The Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003
  • The Karnataka Juvenile Justice (Care and Protection of Children) Rules, 2002
  • The Madhya Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2003
  1. The Maharashtra Juvenile Justice (Care and Protection of Children) Rules, 2002
  2. The Rajasthan Juvenile Justice (Care and Protection of Children) Rules, 2002
  3. The Tamil Nadu Juvenile Justice (Care and Protection of Children) Rules, 2001
  • The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004
  • The West Bengal Juvenile Justice (Care and Protection of Children) Rules, 2003
  • The National Charter for Children 2003
  • The National Policy for Children, 1974
  • The Commission for Protection of Child Rights Rules, 2006
  • The Children Act, 1960
  • The Reformatory Schools Act, 1897
  • The Protection of Human Rights Act, 1993

Conclusion

Juvenile delinquency has always been a problem since time immemorial. In ancient times in had not been recorded since there was no provision made for a child who commits a crime because in ancient time if anyone was caught for any crime they were directly being punished, they did not have any system of rehabilitation for such criminals. As time changed and the human minds grew and the nations awakened from a deep slumber of primitiveness importance was being given to the development of women and children.

In today’s world we can see that the importance of preserving and protecting the young children has been an important issue both at the national level as well as the international level. The United Nations have laid down in its very own charter about the protection of children so is it in the Constitution of our country which holds various provisions in regards to the interest of children. Various laws and policies had in the past few decades adopted by our country to protect children and to rehabilitate the juvenile who have come in contact with the legal system, it is also the same at international level where the United Nations in regards to children and juvenile delinquency adopted various policies to protect and to preserve the young children from crime and to rehabilitate the ones that have already crossed path with the law.

The recent increase in the amount of crime committed by young children has been a great problem faced not just by our country but worldwide. Considering the rise of crime amongst the juvenile worldwide and in our country, there has been a lot of questions in regards to punishment. A survey conducted shows that the majority of the people think that imposing severe punishment of the young children would only harden them and hardly rehabilitate them. And lowering of the age group from 18 years to 16 years would not help much in the reduction of crime amongst the juvenile since the maturity level varies from person to person. Hence is considered that lowering of the age won’t help much and is opposed to the United Nations.

In most society young children are mostly influenced by the family, the condition of the family, which could be poverty or less care and affection and next comes influence by the child’s surroundings the people the child interact with. There are various factors which play a role in influencing a child to committing a crime. And if proper education which is the moral education which starts in the house, then is given to a child right from the start, then the child tend to live a positive and a happy life and contrary to that where the child do not acquire proper education the child tends to living a life of a criminal not knowing the consequence of his life.

Hence, overall we can see that although efforts are being taken up by the government to protecting the children and the juvenile delinquency, it is not just sufficient, but that the protection of a child should be taken up individually as a responsible parent by protecting the children and educating them properly in a healthy environment. To indulge their children in healthy activities and broaden their thoughts for their very own benefit, protection and preservation. The policies and Acts laid down by the government of our country will just be a remedy and hope and a help in ways but it is very vital that the actions in protecting a child start right inside a family.

[i] David M ,  Shumaker &Robert V. Heckel, Kids of Character 201 (Greenwood Publishing Group 2007.

[ii] Nawaz Haque, Juvenile Justice System & Its Delinquency in India, Legal service India, Feb. 14, 2012. http://www.legalservicesindia.com/article/article/juvenile-justice-system-&-its-delinquency-in-india-1031-1.html   (last updated February, 13 2015).

[iii] James Vadackumchery, The Police and Delinquency in India 5 (APH Publishing, 1st ed. 1996).

[iv] Child protection, UNICEF (Bosnia and Herzegovina), http://www.unicef.org/bih/protection_26484.html . (last updated February, 13 2015).

[v] United Nations, COMMITTEE ON THE RIGHTS OF THE CHILD Forty-Fourth Session Geneva, 4–22 Apr. 25, 2007, www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf.

[vi] Stan Meuwese, Kids Behind Bars: A Study on Children in Conflict with the Law: Towards Investing in Prevention, Stopping Incarceration and Meeting International Standards 23 (Defense for Children International 2003).

[vii] Minor Scare (National Crime records Bureau). http://indiatoday.intoday.in/story_image.jsp?img=/images/stories/2013january/minor-scare_enlarge_011213020542.jpg&caption, (Last updated Feb 13, 2015).

[viii] Bhavna Vij-Aurora and Amitabh Srivastava, Young and Dangerous: Delhi Gangrape Sparks a Nationwide Debate on the Juvenile Justice System as Crimes by Minors Show an Alarming Rise. Is Reform Better Than Retribution?, indiatodayin, Jan. 12, 2013, http://indiatoday.intoday.in/story/delhi-gangrape-minor-acused-trial-review-juvenile-justice-system/1/242004.html, (last updated Feb 13, 2015).

[ix] Culprits of 66% Juvenile Crimes in India Last Year Were over 16, Hindustan Times, Mumbai, Aug. 17, 2014, http://www.hindustantimes.com/mumbai/culprits-of-66-juvenile-crimes-in-india-last-year-were-over-16/article1-1252914.aspx  (last updated February 13, 2015).

[x] Hindustantimes, supra note 9.

[xi] Modi Cabinet Approves Amendments to Juvenile Justice Act, Indiatoday, Aug. 6, 2014,. http://indiatoday.intoday.in/story/juvenile-justice-act-union-cabinet-minor-rape-december-16-gangrape/1/375857.html (last updated Feb 13, 2015).

[xii] Arushi Arun, JUVENILE JUSTICE ( CARE AND PROTECTION OF CHILDREN) BILL, 2014 PROLOGUE (Juvenile Justice Board 2014 Dec. 19, 2014), http://aarushiarun.blogspot.in/ (last updated Feb 13, 2015).

[xiii] Rashi Aditi Ghosh, 16 to 18 to 16: Time to Settle the Debate Once and for All!, Zee News, May 10, 2013, http://zeenews.india.com/exclusive/16-to-18-to-16-time-to-settle-the-debate-once-and-for-all_6319.html (last updated Feb 13, 2015).

[xiv] Tina Edwin, Why 16-Year-Old Juvenile Criminals Are A Rising Threat, Indiaspend, http://www.indiaspend.com/investigations/why-16-year-old-juvenile-criminals-are-a-rising-threat-67107  (last updated Feb 13, 2015).

[xv] Must We or Must We Not Reduce the Age of a Juvenile (in India) to 16 Years?, CHILDLINE India Foundation » DOCUMENTS & REPORTS » Cause Viewpoint » (Childline India Foundation), http://www.childlineindia.org.in/Must-we-or-must-we%20not-reduce-the-age-of-a-juvenile-in-India-to-16-years.htm (last updated February 13, 2015).

[xvi] The Constitution of India, art 15.

[xvii] id. art 23.

[xviii] id art 24.

[xix] id art 39.

[xx] Id.

[xxi] id art 45.

[xxii] id art 47.

[xxiii] Nalwa Suman and Kohli Hari Dev, Commentary on The Juvenile Justice Act (Universal Law Publishing Co. Pvt. Ltd. 2011).

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