Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

JUVENILES IN ADULT CRIMINAL SYSTEM- AN ANALYSIS

OF JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2015

Mrs. Harsimranvir Kaur, VMS College of Law

ABSTRACT

The future of the nation lies in the hands of the Children, who have been
recognized as the supremely assets of the nation but due to some reasons
these future stake holders are committing major crimes in their minor age.
Naughty ones become criminals in streets and schools in just a few days
because of their antisocial behaviour and depression due to unexpected
expectations from parents and society. In legal language they are called
Juvenile Delinquents. Juvenile Delinquency is an alarmingly increasing
problem. Juvenile offenders have attracted attention of many social activists
and researchers since many decades. It is a universal social problem. It may
be called as psycho-social problem. Psychological set up of their minds is
the prime thing to focus on this problem. Children being a nucleus of our
society as well as our rich culture in which they are supposed to obey their
parents and social norms. But in recent years incidents of juvenile
delinquency have tremendously increased in intensity and magnitude. Social
disorganization, poverty, illiteracy, violent nature of parents, criminal
background and influence of media by songs and T.V programmes of
criminal type which is the biggest problem in India, make young ones step
out of line. Importance of child is well recognized since ages. While, India
has become a signatory to UN Declaration on the Rights of the children, it
has failed to follow the guidelines recommended for the rehabilitation of
juveniles.

Keywords: juveniles, delinquency, criminal justice, adult, punishment.

Page: 1
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

1. Introduction

The Juvenile Justice (Care and Protection of Children) Act 2015, provides a comprehensive
mechanism to deal with children in conflict with law as well as children in need of care and
protection. Passed by Lok Sabha on 7 May, 2015, this new Act got a nod in the House of elder’s
i.e Rajya Sabha on 22 December, 2015. The Act incorporates the principles of Hague
Convention on protection of children and co-operation in respect of inter country adoption
(1993) which were absent in the previous Act.

This Act aims to replace existing Indian juvenile delinquency law i.e. Juvenile Justice (Care
and Protection of Children) Act 2000. It aims to try juveniles aged 16-18 involved in heinous
crimes as adults. But in no case a juvenile involved in heinous crimes will be sentenced to death
or life imprisonment under the provisions of any law. This Act is the result of intense public
anguish caused by the brutal gang rape and murder of a student in a bus on a winter night of
16 December in Delhi. Among the accused persons the most brutal was a boy and
unfortunately, he had not crossed the border line of age of criminal responsibility i.e. 18 years.
Only a couple of months short of attaining major it saved him and he escaped from his criminal
liability for his cruel, inhuman, uncivilised Act which was far from the core of our law makers
mind while making the Juvenile Justice Act, 2000.As old juvenile delinquency law exempts a
person below the age of 18 this boy was sent to Juvenile Justice Board.

After giving a decision of 3 year confinement he was sent to juvenile reformatory home. Not
only victim’s stricken parents, but the people from each corner of India got agonised by the
decision. They demanded to change this lenient law and punish such a person as an adult for
an adult crime. The old law was criticised in news channels, by legal experts, political leaders,
and social activists and even in streets of India. Public interest litigation was filed by a BJP
leader Subramaniam Swamy. To make this thing easy and to redress the grievances it became
necessary to make a law which can deter juveniles aged 16-18. In the heat of opposition by
child rights activists, the Bill was passed by parliament to make the juveniles liable in heinous
offences. It is expected to prevent juveniles to commit grave offences before any other like
incident occurs in our country.

1.1 Historical Background

The First legislation on Juvenile justice in India was introduced in 1850 in form of The
Apprentice Act which provided that children between the ages of 10-18 convicted in courts to

Page: 2
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

be provided vocational training as part of their rehabilitation process. Subsequently

Reformatory Schools Act, 1897 and The Children Act of 1960 came into force. The Juvenile
Justice Act, 1986 was the prior legal framework for Juvenile justice in India.1 The Act provided
for a special treatment towards the prevention and treatment of Juvenile delinquency. It also
provided a framework for the protection, treatment and rehabilitation of children in the special
context of juvenile justice system. The law replaced the Children Act 1960. This Act, the first
central legislation on juvenile Justice was passed in 1986, by the union parliament, thereby
providing a uniform law on juvenile justice for the entire country. Under this Act section 2(a)
defined the term juvenile as a “boy who has not attained the age of 16 years and a girl who has
not attained the age of 18 years.”

The Juvenile Justice Act, 1986 was more humanistic and treatment oriented. This Act was
considered a unique piece of social legislation intended to provide care, protection treatment,
development, and rehabilitation for neglected and delinquent juveniles as well as the
adjudication of matters relating to the disposition of delinquent juvenile. Juvenile Justice
Act,1986 was applied uniformly throughout India except state of Jammu and Kashmir .Prior to
this law each state had its own enactment on juvenile justice with there being difference in the
way juvenile were treated by different state legal systems. The first uniform law on juvenile
justice however did not result in any dramatic improvement in the treatment of juvenile.

The law continued to provoke concern in human rights circles pertaining particularly to the
way juvenile were treated in detention centres designated as special homes and juvenile homes.
Large scale dissatisfaction with the functioning and effectiveness of the juvenile justice act led
some to demand differential approach to delinquent juveniles and neglected juveniles.
Replacement of this Act pressurised legislature to creating a new law on Juvenile justice, the
final outcome of which was The Juvenile Justice (Care and Protection of the children)
Act,2000.

In a landmark step, the Government of India, by repealing the juvenile justice Act 1986, put on
table The Juvenile Justice (Care and Protection of Children) Act in 2000 and further amended
it in 2006. To make it more authentic in the emerging challenges in the juvenile justice system
it was collaborated with UNCRC standards.2 Further amended in 2006 section 7-A was inserted

1
Retrieved from https://www.journalcra.com/article/juvenile-justice-india-historical-outline visiteed on 2 june,
2023.
2
The juvenile Justice Act 2000, aims at consolidating and amending laws relating to juvenile in conflict with
laws, and children in need of care and protection by providing proper care, protection and treatment by catering

Page: 3
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

to make it clear that juvenility would be considered from the date of commission of offence.3

It removed the ambiguities raised in Arnit Das vs. State of Bihar4 in which it was laid down
that the relevant age for juvenile justice is the age on the date when offender is brought before
the court and confirmed the decision of Supreme court that the relevant date for determining
the age of the juvenile would be one on which the offence has been committed and not when
he is produced in court. Taking a cue from all these developments Minister of Woman and
Child development Maneka Gandhi introduced in the parliament a newly drafted bill on
juvenile justice on 12 august 20145. Supporting her contentions she said in Rajya Sabha that
the earlier legislation was a “nuanced” one and needed to act as a “deterrent”.

1.2 Meaning of Juvenile

The term ‘juvenile‘ refers to a child under prescribed age who has been alleged or found to
have committed an offence. In Black’s Law Dictionary, a juvenile is a person, who has not
attained the age in which one should be treated as an adult by the criminal justice system6. In
the National and International documents they have been given special status. In India for the
first time efforts were made to make the term ‘juvenile’ similar with the term ‘child’. It was to
remove the stigma attached with the term ‘juvenile’ in the Juvenile Justice (Care and
Protection) Act 2000. The term ‘juvenile’ refers to juvenile delinquent what now is called
‘juvenile in conflict with law’ and the term ‘neglected juveniles’ is called ‘children in need of
care and protection.

2. Development of juvenile law in India-Constitutional and Legislative mandates

Children are prone to ill habits of the society. They face exploitation and ill treatment easily
than adults. They can be into undesirable channels by anti social elements. The supreme
authority of India, our Constitution recognises various protective measures to children in the
form of Articles. Article 15(4) which provides, that state shall not be prevented from making
any special provision for woman and children considering the fact that India is a welfare state,
the founding fathers of the Constitution recognised the importance of the rights of the child in

to their developmental needs, by adopting child friendly approach in adjudication and disposition of the matters
in the best interest of children, and for their rehabilitation through various institutional mechanisms established.
As per this act a juvenile or a child means ‘a person who has not completed 18 years of age’.
3
Pratap Singh vs. State of Jharkhand(2005)3 SCC 551, Muntaz vs. state of U.P 2016(3), RCR(cr.)552(SC).
4
ArnitDass vs. State of Bihar (2000) 5 SCC 488.
5
The Indian Express, dated 12 August 2014.
6
BLACK’S LAW DICTIONARY, 7th ed., p.871.

Page: 4
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

a Nation’s development. Dr. Ambedkar was far ahead of his time and in his wisdom projected
these rights in the Directive Principles including children as beneficiaries. Their deprivation
has deleterious effect on the efficacy of democracy and rule of law7

Article 39 (e) of the Constitution enjoins that the state shall direct its policy towards securing
the health and strength of workers, men and women; and that children of tender age will not be
abused ;that citizens should not be forced by economic necessity to enter into avocations
unsuited to their age or strength . Article 39(f) enjoins that the state shall direct its policy
towards securing that children are given opportunity and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that children and youth are protected
against exploitation and moral and material abandonment. Article 45 mandates that “the state
shall endeavour to provide early childhood care and education for all children until they
complete the age of six years.” This has been necessitated as a result of making the right to
education of children up to the age of 14 a fundamental right.

Children in India, because of their sheer numbers, ought to have been the subject of prime focus
of development planning, research, and welfare in India. One principal role of the Juvenile
Justice system has been to provide specialized and preventive treatment services for children
and young person’s as means of ‘secondary prevention’, rehabilitation, and improved
socialization8.

2.1 Features of Juvenile Justice (Care and Protection of Children) Act, 2014

Juvenile justice (Care and Protection of Children)Act, 2014 aims to replace the existing Indian
juvenile delinquency law, Juvenile Justice (Care and Protection of Children)Act, 2000. So,
juveniles in conflict with law, in age group 16-18 involved in heinous offences, can be tried as
adults.

• The Act replaced the old Juvenile Justice (Care and Protection of Children) Act, 2000.
It specialises children in need of care and protection by fulfilling their developmental
requirements through proper care, protection and treatment. It adopts a child friendly
approach in the best interest of children and arranges their ultimate rehabilitation.

7
Mamta Rao, ‘Law relating to Women & Children’, EASTERN BOOK COMPANY, Lucknow p. 411.
8
VedKumari,‘The Juvenile Justice Sysment in India: From Welfare to Rights’,OXFORD UNIVERSITY
PRESS, New Delhi, p.1. (2004)

Page: 5
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

• The Act incorporates the principles of Hague Convention on protection of children and
cooperation in respect of intercountry adoption (1993). It was absent in the old Act in
cases of detention, prosecution, and penalty forms. Matters relating to apprehension,
production before court disposal orders and restoration procedures and decisions related
to adoption of children of and rehabilitation and reintegration of children who are in
conflict with law or as the case may be, in need of care and protection under other such
law are given importance. The new Act provides for a comprehensive approach towards
children in conflict with law as well as children who are in need of care and protection.
However, only a stringent implementation can provide a meaningful disposition to it a
true letter of law9.
• The word juvenile has been replaced with the word child and the expression juveniles
in conflict with law has been changed to child in conflict with law the more humanistic
approach is this. The draft bill identifies a child in conflict law to be one who has been
found by the juvenile justice board to have actually committed an offence. It also
defines an ‘abandoned child’ and his aftercare.
• The main feature of the Act which became reason to renew the law related with
juveniles is the age factor to be considered in punishing a juvenile. Act provided for the
penal provisions of a juvenile, aged between 16 -18, committed a crime categorised as
heinous. What is heinous is to be weighed in accordance with the gravity of offence.
Children above the age of 16 years and below 18 years will be considered as an adult if
he has committed a heinous offence. There is no stated legal definition of word heinous.
Offences for which 7 years or more punishment is provided are included in heinous
offences. But no child can be given life imprisonment without the possibility of release
and death penalty for any such offence under section 22.
• Chapter two is the most noteworthy characteristic of the Act, providing for fundamental
principles for care, protection, rehabilitation and justice for children and to guide central
government, state government, the board and other agencies to implement this act.
These are sixteen internationally accepted principles which include “principle of fresh
start” and “principles of natural justice”.
• Juvenile Justice Boards and child welfare committees will be constituted in each
district. The Juvenile Justice Board is empowered to conduct a preliminary inquiry to
determine whether a juvenile offender is to be sent for rehabilitation or be tried as an

9
Anil Malhotra, ‘towards a comprehensive juvenile justice law’, The Hindu, Chandigarh, July 18, 2014.

Page: 6
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

adult. The child welfare committees will determine institutional care for children in
need for care and protection. If a person is aged between 16-18 and has committed a
heinous offence shall be tried by Board to test his physical and mental capacity to
commit such offence, ability to understand the consequences of the offence and the
circumstances in which he committed the offence. Board may take assistance of
experienced psychologists, psycho-social workers and other experts as provided under
section 16. Juvenile will be given facility of consulting and engaging lawyers. the court
will decide whether he will be tried as an adult or a juvenile and thus child will get a
second chance.
• If convicted, the child will be sent to a safe place till he turns 21 and not to an adult jail.
Once the child turns 21, he will be considered for reformation. If unreformed, he will
be sent to an adult jail. He has right to appeal before high court and the Supreme Court.
• Act contains many other provisions including foster care and easing of adoption rules.
The Act aims simplify the norms of adoption so that uncared children can go to a
suitable home. As per the proposal, NRIs wanting to adopt a child will be treated at par
with resident Indians. Foster care would enable children to be placed with willing
families instead of children’s homes and the government would pay for this. It seeks to
make central adoption resource authority a statutory body, which means it will have
powers to regulate inter country adoptions, and related matters. Eligibility of adoptive
parents and the procedure for adoption have been included in the Act.
• Provisions are made to ascertain the reasons and to pass the orders by Board for the
child having run away from the place of safety or special home or an observation home
or from the care of a person or institution under whose authority the child is placed
under this Act.
• Mandatory registration of childcare institution has been provided. Observation homes,
shelter homes and special homes may be established by state governments.
• Penalties for certain offences such as cruelty against a child, offering a narcotic
substance to a child, and abduction or selling a child have been established.
• The Act also prohibits the media from disclosing the identity of children or propagating
any such provision which tends to identify his name. All reports are to be treated as
confidential. Act is strict towards juveniles than earlier laws but rehabilitative and
reformatory.

Page: 7
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

2.2 Key Issues

New Act raises profound and tangled ethical and legal issues in media, newspapers, and debates
and also in parliament. Some are in favour of the Act and some are against:

• Legal experts have different views on whether juveniles should be tried as adults. Some
argue that it is clear violation of constitutional as well as human rights. The UN
Convention on the rights of the child requires all signatory countries to treat every child
under the age of 18 years as equal. The provision of trying a juvenile as an adult is
against this principle. Rehabilitation not retribution should be the policy. Some opposed
this view that punishment should be measured in accordance with the gravity of the
offence not the age. Person, who is capable enough to commit a crime of grave nature,
should be considered old enough to be punished.
• Word ‘heinous offences’ is not defined in the new Act. Gravity of offence cannot be
measured in accordance with punishment period.
• Another issue is regarding status of juveniles. The pet argument of activists is that
juveniles come from socially and economically backward classes and they need care
and reformation. But neither illiteracy nor poverty can force some person to commit
heinous offences.
• Reformatory and retributive theory of punishment come again in contravention of each
other. Reformation cannot be a substitute to punishment. It should be done only after
punishment. We should not give another chance to juveniles.
• Principle of ‘fresh start’ provided under section 3(xiv) of the Act, gives immunity to
young offenders by erasing all past records of them under the juvenile justice system
except in special circumstances. This is very humanistic approach. To make the law
stricter than old ones, past record of adult criminals should be taken into consideration
at the time of punishing them for their crimes committed in their young age. The Act
does not contain provisions regarding second offenders. If a person commits some
grave offence again after attaining majority then punishment should be stricter than a
criminal who has committed a crime in his adulthood. Punishment should be more for
those who have not learnt anything from their childhood blunders. Criminal law should
also be amended to enhance the penalty for those adult criminals who had committed
some grave offences during the age of 16-18.
• Many child rights activists are of the view that deterrence have no effect upon juveniles

Page: 8
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

rather reformation is the only key to open their mind. Again this is an absurd issue if
deterrence has no effect on those having little minds then what about adult criminals.
They too cannot be deterred by punishment because a young can be deterred easily than
an adult. Deterrence and reformation are different matters but possible tasks.

3. Juveniles in adult criminal system

We know very well that children are no long cute, innocent and obedient. The advancement of
technology, influence of media, changing family structure, irresponsible parents and lack of
control are common causes of juvenile delinquency. But these all are not very new causes.
Problem is in our inadequate and anomalous legal procedure.

Feeble minded children sometimes get into difficulties. They may wander from home, expose
themselves in public without intent to offend anyone, or yield to violent emotions. They would
not be capable of the planning and cooperation needed to commit delinquencies. At the other
extreme, brilliant children sometimes become delinquent10. All are aware of the misusing of
internet facility by school goings. They often exchange porn videos in mobile phones. There is
no strict implementation of laws and rules to keep a ban on misusing of internet by non adults
.Without licence they hold vehicles and weapons. Media is also not behind to serve more and
more dirty, criminal and degrade material. Parents are themselves involved in concealing their
wrong doings. Police is not yet capable of dealing strictly with these non adults. Now two
pertinent questions arise. Whether creation of new Act was necessary to make the position
better? Or whether this new Act is a blunder by law makers because rate of juvenile’s crimes
is like salt in flour? First question is from penological point of view and second is from
sociological point of view and arises from the common views of the child rights activists. First
we came on the answer of second question. Human rights philosophy, a modern approach
towards protecting rights of children is the main supportive argument to go against the newly
made law. Justice Verma Committee also didn’t favour the demand for reducing age bar for
juvenile offenders by citing Convention on rights of children. Instead committee gave
recommendations to improve old law and to implement it in efficient manner11.

Ved Kumari, Chairperson, Delhi judicial Academy, a professor in the faculty of laws in Delhi
University, author of prominent books on juvenile justice and a child rights activist writes

10
R.S. Cavan and Theodore N. Ferdinand,‘ facts and fallacies about juvenile delinquency’, J.B. LIPPINCOTT
CO., NEWYORK, P.2(1962)
11
www.prsindia.org visited on 12 December, 2021.

Page: 9
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

“children aged between 16-18 can distinguish right from wrong but their ability to control risk
and pleasure seeking behaviour is very weak. Adolescent brain imaging and monitoring have
found that the part of the brain that promotes risk taking behaviour is much more developed
than the part that controls those instincts”12.

Another view against the newly made law is that when juveniles come out from the adult jails,
they will be hardened criminals, drug addicts and members of gangs that will have recruited
them while they were inside. They will have been raped and sodomised many times over. They
will then wreak vengeance on other young bodies in society13.

While India has become a signatory to several international treaties for the protection of child
rights, it has failed to follow the guidelines recommended for the rehabilitation of juveniles.
The integrated child protection scheme under the eleventh plan had allocated Rs. 2600 crore to
implement schemes like putting up district level child protection units, juvenile police units
and appointing district child welfare officers. Even half of the money was not utilised. The
units and officers are yet to be put in place. Then the number of remand homes is inadequate
for the 1.7 million juvenile accused14.

Now we dwell on the answer of first question. New act is being considered as retributive rather
than reformative or deterrent. The prime fact which became focus of criticism of this Act is
reducing age of criminal liability and to bring non adults in the circumference of punishment
for heinous offences. Purpose of punishment is prevention of crime and to protect the society
against criminals in whatever form is it. Hon’ble Gujrat HC held that the reaction to crimes has
been different at different stages of human civilization and even at a given time, they have been
different in various societies. It has been said that the attitude towards crimes and criminals at
a given time in a society manifest the basic features of the society. The attitude towards the
criminals has always been exalted by types of emotions displayed by the society15. A person
at the age 16 is no more a child in modern period of technology. All are aware of the children
committing crimes in society and today’s adult criminals are result of our ignorant and
sympathetic behaviour towards them because of their tender age. Should we still pamper those
brutal criminals? Should we still think about their illiteracy, poverty and negligence by parents
and society? Poverty, illiteracy, parent irresponsibility or lack of adequate law whatever may

12
VedKumari, ‘Not a grown up debate’, Indian Express, 24 july 2014.
13
PinkiVirani, ‘crime and commensurate punishment’, The Hindu, 22 july 2015, p.11.
14
The Tribune,16july 2014, p.10
15
State of Gujrat vs. Raghu, 2003 Cr.LR(Guj)393

Page: 10
Indian Journal of Law and Legal Research Volume V Issue III | ISSN: 2582-8878

be the reason we can’t left burden of this problem on the shoulders of others. How can we say
that reformation is the only form of punishment for juveniles? The main point of concern which
is overlooked by every person is that not only sexual offences but other offences are also
committed by juveniles which are not included in any data because law is in favour of juveniles
hence police often leave them by giving them just a warning. Some crimes are causing
accidents by rash driving, selling and consuming narcotics, love elopements which often results
into rape, murder and suicides, using weapons, doing flesh trades, teasing of girls by school
goings and sometimes harass them so much that they often commit suicides and organising
gangs. Rape is the final outcome of all these crimes. So why we should not control them before
they become beast. Retribution is not a bad idea of justice.

4. Conclusion

Last, but not least, Act is more comprehensive than old ones. But everything is not perfect in
this world. So, Act consists of some shortcomings also which should be removed to make the
law perfect. Endless debate is not a solution. We should change our mind and say sorry to
humanistic approach towards young offenders who commit grave offences. A prescribed
criteria in measurement of criminal liability and form of punishment is the one and only
solution. Nature of the crime and state of mind can be taken into consideration while measuring
punishment. ‘Heinous offences’ word should be defined in order to remove ambiguities.
Provision for strict punishment for second offenders should also be prescribed. Like US and
European countries life imprisonment should be allowed for proper implementation of Act.
Minor punishment for major crimes will make Act as an old book in new wrapper. Reformation
should not be a substitute of punishment. It should be done after punishment. Implementation
of Act should be in proper way. Media should be controlled strictly to not present obscene and
criminal type of programmes which affect young minds and they try to copy it. Moral education
must be provided not only in educational institutions but also in public places. Police can play
a leading role by not only making arrests but by making registration of cases of those young
ones, who are found doing minor crimes like consuming narcotics, gambling, teasing girls on
road, rash driving etc. H.L.A. Hart’s view that legal rules are manifestation of the moral
traditions of the people seems to be applied. Continuous demand by public to change the
existing law is evidence of changing morals of society.

Page: 11