An Analysis of Juvenile Justice in India

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, withall 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 given 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 coming 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 and foremost 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/ violated 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

1
Black Dictionary of Law
2
The Bombay Children Act, 1948, Section 4
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. 6

Emergence of Juvenile Justice System in India In India

The cause of the destitute has been championed by two stalwarts namely Krishna Chandra Ghoshal
and Jai Narain Ghoshal. In 1787 they beseeched to Lord Cornwallis, the then Governor General
of India, to establish a ‘home’ in the vicinity of Calcutta Fort for the protection of the destitute of
Calcutta who happened to be beggars, widows and orphans. They appealed to the Governor
General that steps should be taken immediately to help these sections of Calcutta. They also
suggested some concrete steps to be taken to meet this end. Firstly, shelters for 500 destitute to be
built near Calcutta and provided with wells and gardens. Secondly, an Orphan Committee to be
set up for the protection of destitute and orphan children. Apart from these suggestions, Krishna
Chandra Ghoshal and Jai Narain Ghoshal recommended that destitute and orphans should undergo
compulsory schooling. This was the first effort on the part of the two Indians who were moved by
the pitiable condition of destitute and delinquents of Calcutta and ventured to ameliorate the lot of
the delinquents who were otherwise growing up in vagrancy and fall prey to crime. At Bombay, a
nucleus for juvenile reformatories was established in 1843, with the conscientious efforts of an
Englishman, Dr. Buist who has been instrumental in establishing a ragged school at Sewari to

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
6
Definition, Meaning, Causes and theories of Prevention of Juvenile Delinquency, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/7809/9/09_chapter%202.pdf
serve as an asylum for the orphans and the vagrant. This institution later came to be known as the
David Sasson Industrial School. (Chatterjee, 1997). Before stepping of common law, laws relating
to juvenile justice used to be governed by personal laws i.e. Hindu and Muslim Laws. In India, the
first legislation dealing with the issues of juvenile justice came in the form of the Apprentice Act,
1850, and later on finds place in Indian Penal Code, 1860, in the form of section 82 and 83 (Malik,
2012). The Apprentice Act of 1850 which was promulgated by Lord Dalhousie proved to be a
significant step in the direction of juvenile legislation in British India. The Act proclaimed that the
binding of apprentices was for better enabling children and especially orphan and poor children
brought up by public charity, to learn trade, crafts and employments, by which they come to full
age, they may gain a livelihood. This Act was applicable to boys and girls in the age group of 10
to 18 years. Under this very Act, a child could be bound as apprentice by his/her father or guardian
to learn any trade or craft for a period not exceeding seven years. In addition, the Act empowered
any Magistrate or justice of the Peace “to act with all the power of a guardian under this Act, on
behalf of any orphan, or poor child abandoned by its parents, or of any child convicted before
him/her or before any other Magistrate for vagrancy, or the commission of any petty offence.”
This legislation enabled many a young orphan, destitute and petty offender, to earn a honest
livelihood. The overall control of the apprentice was vested in the government so that the Act was
not misused. This Act paved further legislative measures culminating in the enactment of the
Indian Penal Code and Criminal Procedure Code which changed the course of British India’s
legislative history (Chatterjee, 1997).

Juvenile Justice (Care and Protection of Children) Act, 2000 Dr. Hira Singh voiced the general
concern that in the JJA, 1986 there was a wide gap between the cherished principles and the actual
practices. Most of the states had not setup the basic infrastructure consisting of juvenile welfare
boards, juvenile courts, observation homes, juvenile homes, special homes and aftercare homes.
For want of adequate measures for non-institutional care such as foster care, sponsorship, non-
institutional probation etc., institutionalisation continued to be used, with all its effects. Despite
mandatory requirements, the minimum standards for institutional care in terms of accommodation,
maintenance, education, vocational training or rehabilitation were not spelt out in most of the
states. There was no definite policy towards the man power development of juvenile justice. A
number of national consultations were held concerning juvenile justice administration during
1999-2000 to improve the existing unsatisfactory state of affairs (Kumari, 2004). The combination
of a growing focus on the issue of juvenile justice as well as the pressure faced by the government
to submit a Country Report to the Committee on the Rights of the Child, outlining concrete
achievements, apparently inspired the Ministry for Social Justice and Empowerment to draft a new
law, the final outcome of which was the Juvenile Justice (Care and Protection of Children) Act,
2000. The 2000 Act made the age limit of 18 years uniform for both boys and girls in consonance
with the CRC and sort to facilitate speedy disposal of disputes. It also made state intervention
essential in the case of a Child in Need of Care and Protection (CNCP), under the 1986 Act, such
a child was called a ‘neglected juvenile’ as well as the Child in Conflict with Law (CICL), earlier
called the ‘juvenile delinquent’. As the name suggests, the JJ (C&P ) Act 2000 was enacted to
consolidate and amend the law relating to juveniles in conflict with law and children in need of
care and protection, by providing for proper care, protection and treatment by catering to their
development needs and by adopting a child-friendly approach in the adjudication and disposition
of matters in the best interest of children and for their ultimate rehabilitation through various
institutions established under this very enactment.

The Nirbhaya case (16th December, 2012) had a profound impact on public perception of the Act
because one of the convicts was a juvenile and few months shorter than 18 years of age. Due to
which he was sentenced to three years in a reformatory home. Several writ petitions were filed
against the legislation’s “soft” treatment to juvenile offenders even in heinous crimes but Supreme
Court of India hold the Act to be constitutional. Public debates have been started about should the
age of juvenility be reduced to 16 years as more and more children of this age group committing
crimes. Of the 1163 murders by juveniles in 2014, 844 were committed by those in the 16-18 years
age group as per data released by NCRB. Director of an NGO Childline was of the view that
children are getting exposure of that kind of which they are unable to think about the consequences
of their actions. Thus, when they commit serious crimes, they must be dealt with accordingly as it
would send a right message in the society and will discourage organised gangs that are using
juveniles for heinous crimes (Hindustan Times, 2015, December 23).

The Way Out

The onus to ensure that children do not stray is with adults. At home and at educational institutions,
they need to monitor the behaviour of children and behave like role models for youngsters.
Paediatrician and Mumbai president of the Indian Academy of Paediatrics Dr Samir Dalwai feels
that “one solution (to avoid juvenile crime) is for parents to be held legally responsible when their
teenaged children break the law.” Early detection and counselling for those with criminal
tendencies is important so that they do not end up as offenders, and also so that they don’t influence
others to do the same. This is possible only when parents are cognisant of what is wrong in the
child’s behaviour and alert to correcting him/her. “Prevention of juvenile crime is also an
important part of the juvenile justice system. But the Indian state has completely neglected this
aspect,” says Mumbai-based advocate Maharukh Adenwalla. There is little involvement of
psychological counselling during the reform procedure, says Dr Rajat Mitra, a clinical
psychologist with experience in criminal psychology. Without getting into the debate of
punishment and the age of criminality, it is important to instil respect for the law. Dr. Mitra says
“By and large in India, we do not have rule of law and youngsters are finding out that it is easy to
get away with breaking the law,” (Banerjee & Raza, 2016).