Transformation of Juvenile Sentencing: Key to a Nation’s Development

Arindam Neral[1]& Niharika Tirkey[2]

Introduction

The society recognizes the imperative role of youth and children in the building of nation and shall encourage and look after their material, moral, spiritual and intellectual wellbeing. It’s important for the society to consider that youth within juvenile justice system are most of the time, youths who merely haven’t had the right mentors and supporters around them because of the situation beyond their control.

The saddening acceleration of crime rate in the country connecting children is not a question of facts, in the daily news we are confronted with shocking reality where minor aretrapped red handed committing crimes of high degree and not being remorseful for what they have done. This actuation of the minor who seems not to be bothered by the penalty may be a clear manifestation that they are not aware of the possible consequences of their acts, this is explainable because,a human being, in his tender age, cannot be projected to assimilate the particulars of life in the society. Hence, they should not be placed in equal footing with the men of right age, who commit crimes without a drop of guilt and with the maximum form of depravity.

Regrettably, that is not the case, the downtrodden dilemma of these offspring, which should be alleviated and resolved with, is even exacerbated by keeping them in the same cell where the unsentimental convicts are placed. The command of the State to put the children in a reformatory is overpowered by their markedconfinement, because in that cell, they are not being reformed but being tough through the influence of the unsentimental convicts. This reality seems to escape the highest priority of the government, while the minor continues to fade away in jail and ruin their future; we seem also to have elapsed the State’s permission of affording highest priority to the children being the future influential of our country.

History of Juvenile Justice System in India

“There is no trust more sacred than the one the world holds with children. There is no duty more important than ensuring that their rights are respected, that their welfares is protected, that their lives are free from fear and wants and that they grow up in peace.”

-Kofi Annan

The term juvenile justice emerged from the word ‘Juvenis’ which in latin means ‘young’. So, in layman language Juvenile Justice is a justice system for the young. Historically the concept of juvenile justice was derived from a belief that the problems of juvenile delinquency in abnormal situations are not amenable to the resolution within the framework of traditional process of criminal law.[3] Over the time a need felt in ensuring that juvenile justice system beside catering the needs of young offenders only it also provide specialized and preventive treatment services like community support, harmonizing impersonal state intervention with the family, community and institutional interventions for the children and as a means of  prevention, rehabilitation and socialization through schools and religious bodies.[4]

Historical development of juvenile justice in India can be divided into six phases through reference of treatment of children, legislative developments, judicial Intervention and other government policies which are the period prior to 1773, 1773-1850, 1850-1950, 1950-2000, 2001-2010[5].It can majorly be divided in the following two era’s:

Pre Independence Era

India has an extended history of providing separate handling for juvenile offenders.During the colonial government, in 1843, the primary center for those children called, “Ragged School” was established by Lord Cornwallis. The period between 1850 and 1919 was noticeable by social and industrial upheavals. The Apprentices Act, 1850[6], chronologically the first regulation which isessential that children between the ages of 10-18 convicted in the courts, to be provided vocational guidance as part of their therapy process. The Act of Criminal Procedure, 1898[7] provided extraordinary dealing for juvenile offenders. The Code provided trial for good conduct to offenders up to the age of twenty one. Then Indian Children Act introduced from the Indian Jail Committee (1919-1920). These laws limited provisions for the organization of a particular mechanism for the management of juveniles.  

Post Independence Era

The Juvenile Justice (care and protection of children) Act 2000 was passed in December 2000 and came in force on April 1, 2001 and was amended in 2006 aiming to protect, care, rehabilitate and educate the juvenile and to provide them with vocational training opportunities. As the Preamble clearly states that the “object of the law relating to juveniles in conflict with law is providing 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 institutions established under this law”.The law underlines a benefit approach by addition of non-criminal justice language. Age of juvenile in clash with law made alike for both boys and girls as eighteen years after the country ratified United Nation convention on child rights which mandates the age of criminality as eighteen years.

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Laws and Legislations Regarding Juveniles               

The Indian Penal Code, 1860, Sec 82 and 83- Acts of Infants

Section 82 says nothing is an offence which is done by a child under seven years of age[8]and Section 83 says nothing is an offence which is done by a child above seven years of age and under twelve[9], who has not attained adequateadulthoodand maturity of understanding to judge of the nature and cost of his behavior on that occasion.A person of such age is completelyincompetent of distinguishing between right and wrong. He is absolutely doli incapax. Indian law on this position is the same. If a child is accused of an offence under the Code, evidence of the fact that he was at the time below 7 years of age is ipso facto an answer to the prosecution.But under this Code, if the accused is above seven years of age and under twelve, the inability to commit a wrong only arises when the child has not attained sufficient maturity of understanding and such non-attainment would have apparently, to be specially pleaded and pursued, like the inability of a being who at the time of doing an act charged as an offence, was supposed to have been of unsound mind whether the child in inquiry possesses ample maturity of understanding is a subject to be inferred by the Court from the facts and status of the case.

Cases

  1. Hiralal Mallick v. State of Bihar[10]– The Supreme Court in this case held that a child below 7 years is completely free of any criminal responsibility but a child between 7 to 12 years is qualified to avail the defence of doli incapax.
  2. Ulla Mahapatra v. The King[11]– In this case, the accused was 10 years old. Judging from her conduct before and after the incident, the court concluded that she was doli incapax, i.e., capable of understanding the nature and consequences of the act and hence was held guilty of murder.
  3. Donald P. Roper v. Christopher Simons[12]-In this case, the Supreme Court of U.S. held the imposition of capital punishment to be unconstitutional for crimes committed while under the age of 18.
  4. Thomas v. Oklahoma[13] -The Supreme Court of US held that a 15-year-old offender could not be given death punishment because to do so would be cruel and unusual.

[14]

The Case of Juvenile Delinquent of Delhi Gang Rape Status

After the dreadful Delhi Gang Rape of December 16, 2012 where a juvenile was involved with other adult offenders in raping and torturing due to which the victim died, the subject raised a matter on diminution of age of Juvenile in inconsistency with law as debated that juvenile offenders are escalating. Later a committee headed by JusticeVerma was established for amending the laws in criminal law to defend the rights of women but the board refused to trim down the age of juvenile and said that the time is not precise for reduction and one case cannot be the basis for altering the law.[15]Declining to concern any track to prolong the stay of the juvenile, who is now an adult, beyond December 20, a Division Bench of the High Court aimed at the Juvenile Justice Board of Delhi to interact with the boy, his parents and the Delhi government’s Women and Child Development Department officials about his post-release rehabilitation.

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

The Juvenile Justice (Care and Protection of Children) Act, 2000is the chief legal Framework for juvenile justice in India. The special approach provided by the act towards the deterrence and management of juvenile delinquency and provides an outline for the protection, dealing and rehabilitation of children and youths in the purview of the juvenile justice system. This regulation, brought in observance of the 1989 UN Convention on the Rights of the Child (UNCRC), repealed the earlier Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992. This act has been further amended in 2006 and 2010. In the wake of Delhi gang rape (16 Dec 2012), the rule suffered a nationwide condemnation owing to its defenselessness against crimes where juveniles get implicated in heinous crimes like rape and murder. In 2015, responding to the public attitude and outlook, both the houses of parliament in India auxiliary amended the bill that lowered the juvenile age to 16 and projected adult-like treatment for juveniles accused of heinous crimes. The lower house, i.e. Lok Sabha passed the bill on 7 May 2015 and the upper house i.e. Rajya Sabha on 22 December 2015. The bill was approved by President Pranab Mukherjee’s assent on 31 December 2015.[16]

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The Juvenile Justice (Care and Protection of Children) Act, 2015came into force and working on January 1, 2016 after the President of India gave his assent to the bill on December 31, 2015. The 2015 Act repeals and replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. It provides the indulgence of juveniles aged between 16 and 18 as adults if they are charged for commission of heinous and atrocious crimes, a new permissible position which has been criticized by the child rights activists. The Act[17] provides that the offense has been committed by a being in the age group of 16-18 years it will be examined by the Juvenile Justice Board to evaluate if the crime was committed as a ‘child’ or as an ‘adult’. Since this evaluation will take position by the Board which will have psychologists and social experts, it will ensure that the rights and privileges of the juvenile are duly sheltered if he has committed the crime as a child.The majoramendments consist of exclusion of Clause 7 that relates to testing of a person above the age of 21 years as an adult for committing offence when the being was between the ages of 16-18 years.

Emerging Responses Regarding Juvenile Interventions

Community/Family-based Programs

Multi-systemic Therapy MST is a home-based intervention scheme which targets continual and violent juvenile offenders and seeks to tackle specific factors the youth’s environment (including family, peer group, school and neighborhood) that contribute to antisocial behavior.  The objective of the intervention is to help parents deal effectively with their child’s behavior problems, including abnormal peers and poor school routine by mounting natural community-based support organizations.[18]

Family Functional Therapy

Family Function Therapy (FFT) is for the age of 11 to 18 year-olds who are having troubles with delinquency, substance abuse, or violence.  FFT focuses on civilizing family dynamics by employing entity therapists to work with families in the home.  The scheme targets to recover family crisis solving processes, affecting connections and parents’ abilities in providing arrangement, supervision and regulation for their children.  Participants also discover how to better make use of outside method resources in dealing with family issues.  The scheme is intended to be short term and effortlessly trainable.

Juvenile Justice System of Major Nations

Every nation has distinctive sociological, financial and political environment and so the juvenile laws subsequently fluctuate from nation to nation in a few aspects. The examination of juvenile laws in different countries underscores every nation’s way to deal with characterizing delinquency, and preparing the individuals who are marked authoritatively as delinquent.

USA

Police involvement is usually in counter to a specific objection against a child. Upon arrest, a juvenile may be transferred to a social agency for rehabilitation and may be released on fulfillment of certain conditions during a defined period to time like supervision, restitution, family counseling, improvement of school attendance and performance etc. The police officer may serve as a problem resolver in less serious offences between the complaining party and the juvenile and/or his parents. If the problem is resolved, disposition of the complaint is informal, but, the police will usually make a written report of the incident. In rare cases, the juvenile may be transferred to adult court. The judges adjudicate the cases in the “best interests of the child and the community.”  A child may be placed in a foster home or in a private institution if he is a recidivist or has committed any heinous crime or if his home is inappropriate for his upbringing. In most cases, the juvenile eventually returns to the community.

England

Great Britain enacted the Children and Young Persons’ Act in the year 1969.The act provided that juvenile offenders should be dealt with outside the courts, and it introduced a new form of civil proceedings known as “care” proceeding. The following options guide the decisions of the juvenile justice system in England: (1) if the child is under the age of ten, criminal proceedings cannot be brought, however, the police may initiate care proceedings if other evidence is available to show that the child is in need of care or control; (2) between the ages of ten and fourteen, criminal proceedings may be brought if there is evidence to “rebut doli in capas”; and (3) between the ages of fourteen and sixteen, there are no specific legal restraints which inhibit criminal proceedings. However, a child between the ages of 12 and 17 may be transferred to criminal court if the juvenile is jointly charged with an adult.

South Africa

Juvenile laws in South Africa are strict in nature and formal in character. Juveniles are charged under the criminal law same as adults and the maximum age of “criminal non-responsibility” is seven years. The police deal with the juvenile who has violated the criminal law in a manner similar to know they deal with adult criminalization. Juveniles may be arrested and detained, or brought before the juvenile court by means of a summons. A child has the right to counsel, and the right to cross examine witnesses. At least one parent or guardian is required to be present in criminal courts. Juveniles under the age of 18 who are convicted of a criminal offense may be sent to a reform school if they have not committed treason, murder, or rap. Thus, juvenile laws in South Africa do not relax the criminal liability of the delinquents greatly.[19]

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Preventive Schemes of Juvenile Delinquency

There are mainly three kinds of programs for preventing the juvenile delinquency-

Clinical programs: The purpose of this clinic is to supply aids through Psychiatrists Clinical Psychologists and Psychiatric Social workers to assist the Juveniles delinquents in understanding and accepting their personality problems.

  1. To join in discovery of pre delinquents.
  2. To examine cases preferred for study and management.
  3. To treat cases itself or to pass on cases to other agencies for treatment.

To interest other against in psychiatrically oriented types of conduct of behavioral disorders in children and off springs.

Mental Hygiene – This technique is also supportive in preclusion and treatment of Juvenile delinquency. To prevent the mental divergence and to convey about a proper mental modification in childhood and assessment of mental therapy in curing a mental disorder cannot be over-emphasized. The mission of life must be firm and energies must be bound towards the accomplishment of the high mission.

Parent Education – It is very significant for the Juvenile for preventing the commission of an offence. Guardians should give such, learning to their children so that they do not assign the crime in society or are away from such commission. Every society should make certain opportunities for parental learning, which will assistthem in making good homes, recover family relationship, and education and care of children. Some educationalprogramsnotify parents on how to raise healthy children.

It is extensively proved that early-phase interference represents the best approach to prevent juvenile delinquency. In order to avoid juvenile crimes we have to deal not only with maladjusted and unstable children whose difficulties bring them before law but alsowith those who while not violating laws are upsetting others in school and other places.[20]

Conclusion

Such serious crimes like rape and murders also go unpunished with the lawbreaker wearing the grip of juvenility. But juvenile crimes cannot be clogged only through the suitable implementation and amendments of Juvenile Justice Act. It is crucial to make conscious of civil society and culture about this disease that exists in our ailing society. Juveniles mixed up in crimes are not criminals, in fact, they are victims of society. Juvenile delinquency can be stopped up at an early point, provided extraordinary care is taken both at home and in school. Instead of tagging them as “criminals” or “delinquents”- steps are required to be taken to grant them a scope of rectification refinement that would be enhanced if the errors in their lives (concerning social and psychological) are brought to their notices.  The dilemma of child crime like many other social evils and tribulations is linked up with the imperfections and maladjustment in our social order. The ultimate is progressively gaining wider recognition that juvenile delinquent needs the sympathy and understanding of our society and not the heavy hand of the law.


[1] Student ,B.A.LL.B (Hons.) 5th YEAR, Hidayatullah National Law University, Raipur (C.G)

[2] Student ,B.A.LL.B (Hons.) 4th YEAR, Hidayatullah National Law University, Raipur (C.G)

[3]Vedkumari, The Juvenile Justice in India: From Welfare to Rights, (New Delhi OUP 1).

[4]Working paper on Juvenile Justice: before and after the onset of Juvenile Delinquency, The Secretariat of the Sixth United Nations Congress on Prevention of Crime and Treatment of Offenders, Caracas Venezuela, 25 to 29 August 1980. Agenda Item 4,1980,A/CONF.87/5/Rev.1, 62-63.

[5]KethineniSesha& Braithwaite Jeremy, Towards a Compliance Model: The Indian Supreme Court and the Attempted Revolution in Child Rights.

[6]The Apprentices Act, 1850.

[7]Code of Criminal Procedure Act,1898.

[8]The Indian Penal code, 1860, s. 82.

[9]The Indian Penal code, 1860, s. 83.

[10] Hiralal Mallick v. State of Bihar 1977 AIR 2236

[11]Ulla Mahapatra v. The King AIR 1950 Ori 26

[12] Donald P. Roper v. Christopher Simons 543 U.S. 551 (2005)

[13] Thomas v. Oklahoma 487 US 815 (1988)

[14] Why 16-Year-Old Juvenile Criminals Are A Rising Threat, India Spend, National Crimes Record Bureau (February 5, 2013).

[15] Juvenile convict in Delhi Gang Rape Case, The Hindu, (December19, 2015).

[16]Juvenile justice(Care and Protection of Children) Act, 2000.

[17]Juvenile Justice (Care and Protection of Children) Act, 2015.

[18] Minister for Juvenile Justice, Effective Practice in Juvenile Justice, Report for the Minister for Juvenile Justice, Noetic Solutions Pty Limited ABN 87 098 132 024 (January 2010).

[19] Galan M. Janeksela, Descriptive Analysis of Five Juvenile Justice Systems: United States, Scotland, England, India and South Africa, 21(1) International Review of Modern Sociology, 1-19 (Spring 1991).               

[20] Mousumi Dey, Juvenile Justice in India, 1(6) International Journal of Interdisciplinary and Multidisciplinary Studies (IJIMS), 64-70 (2014).