012 - Current Issues in Juvenile Justice in India (392-404)
012 - Current Issues in Juvenile Justice in India (392-404)
Ved Kumari**
THE JUVENILE Justice Act, 1986 (JJA) came into force more than twelve years
earlier on 2nd Oct., 1987 bringing about a uniform juvenile justice system in the
whole of India except the state of Jammu and Kashmir' . It also brought to
completion the process of geographical and differential dealing of delinquent
children which had begun with the passing of the Apprentices Act. 1850, furthered
by the Reformatory Schools Act, 1897 and strengthened by the series of Children
Acts since 1920. The twin doctrines of parens patriae and mens rea have provided
the basis and sustenance for this process. However, today voices are being heard
in some fora2 on the desirability of replacement of this legislation with a new
legislation. Large-scale dissatisfaction with the functioning of the JJA has led some
to demand exclusion of neglected children from its purview. Amendments to the
existing legislation or a new one is also demanded to incorporate the 'rights
approach' in view of the Convention on the Rights of Children lo which India is
also a party. This paper examines the trends, practices, judicial decisions and
perceptions about juvenile justice system in India, It argues that the
reconceptualisation of its nature and purpose is a precondition for changing its
functioning whether under the existing legislation or under a new legislation. Part
II of the paper presents the implementation scenario. Part III analyses recent judicial
decisions to highlight the injustice, which is occurring lo children under the
present juvenile justice system. Part IV discusses the possible options for change.
It concludes by offering a different conception of the nature of juvenile justice
system in India.
* Revised and updated version of the paper presented at National Seminar on Management
of Juvenile Maladjustment organised by Delhi Legal Aid Authority held in Delhi \\\ I 99o.
** Reader, Faculty of Law, University of Delhi.
1. Now (he Juvenile Justice Act. 1986 has been extended to the stale of .laininu And Kashmir
t o o.
2. Kg.. National Consultation on the Juvenile Justice Act. organised b\ the National Law
School in February 1999 in Bangalore and the National Seminar on Juvenile Justice, held by
Butterflies in Delhi in April, 1999.
the JJA.3 However, the reports indicating the quality of their functioning are far
from satisfactory and have not been heartening or complementary.
Apathy, irregularity and unawareness of the law are endemic in the functioning
of each of the component of the juvenile justice system. The magistrates to the
juvenile courts are appointed without any background in child psychology and
welfare in clear violation of the statutory direction. Relatively young and
inexperienced magistrates are appointed who lack sufficient maturity and skill to
handle more serious and complex offences.
During 1995-96 the author had the occasion to observe proceedings of the
juvenile court in Delhi for an average of two hours on more than fifteen days while
pursuing a complaint against two newspapers for publishing photograph of an
alleged delinquent juvenile. On most of the days, one of the two magistrates was
absent. Occasionally when both were sitting, they never functioned as ba bench oi
magistrates' as required by the Juvenile Justice Act 1986. Majority of the cases got
adjourned. Some witnesses spoke in English while others in Hindi but all statements
were recorded in English without any effort being made by anyone to acquaint the
child with what was being said or recorded or why the case had been adjourned.
Neither a case was ordinarily disposed off within three months nor any 'special
reasons' recorded for the delay as prescribed by Section 27 of the Juvenile Justice
Act 1986.
Invisibility secured by barring entry of public to juvenile court and homes
under the JJA was aimed at protecting juveniles against sligmatisation. It is really
resulting in shielding the long list of well-known day lo day irregularities,
malfunctioning and maladministration pervading the functioning of the JJA.
Various 'homes' established and maintained by the stale Governments are
often referred to as 'jails' by all within and outside the juvenile justice system
created by the JJA.4 In their conception and organisation those homes, in fact, arc
more like jails. The report of the Indian Jail Committee, as far back as 1919-20 had
observed5
3. In the year 1996-97. 271 Juvenile Welfare Boards. 189 Juvenile Courts. 280 Observation
Homes. 15\ Juvenile Homes, 36 Special Homes and 46 After-care Organisations were functioning
under the JJA in India.
4. Susan Mathews, A Report of the National Consultation on Juvenile Justice. 41 (1999).
Centre for Child and the Law. National Law School of India University. Bangalore, India.
5. Cmnd 1303. at 202-203 (1921).
6. See. Ved Kuniari. "Dealing with Delinquents'. 430 Seminar 26 (June 1993).
7. Daljit Singh v. State. 1992 Cri. L. J, 1051 (P&H): Santa v. State. 1990 Cri.. L..I. 35\
(Bom).
8. Sangita R Jain v. S.A.Dwivedi. 1996 Cri. L. .1. 24 (Bom).
9. Raghbir v. State of Haryana. 1981 Cri. L. J. 1497(56): Rohtas v. State o\f Han-ana. A.l.R.
1.979 S.C. 1839.
10 Umesh Chandra v. State of Rajasthan. 1982 Cri L. J. 994.
11. V. Lakshminaravafia v. State. 1992 Cri. L. J. 334 (AP),
12. Shea Mongol Singh v. State. 1990 Cri. L. J. 1698 (Luck bench).
13. Badella Altiah v. State of AP.1995 Cri. L. J. 1983 (AP) (KB).
14. 1995 Cri. L. J. 3899 (All).
the judges to law and philosophy relating to delinquent juveniles. A fifteen years
old child was found to have committed murder and was sentenced to life
imprisonment by the sessions judge on 24.7.80. The child remained in prison for
long fifteen years becoming 31 and a half years old. Then on 22.2.85 the High
Court setting him at liberty decided by reference to the Uttar Pradesh Children Act
that he could have been sent to prison but not beyond the time when he would have
attained the age of 15 years.
Similar were the facts in Pradeep Kumar v. State of UP.1" A child below 16
years of age was convicted for murder and sentenced to life imprisonment by the
sessions court despite the UP Children Act because of which he could have been
sent to an approved school till the age of 15 years. The Supreme Court too had
merely set at liberty the accused who was more than 30 years on the date of disposal.
Both these children spent long years in prison because the sessions judge acted
in a mechanical manner and in ignorance of the law. But no compensation has been
granted either by the High Court or the Supreme Court for the loss of liberty for
such a long period of time beyond what was authorised by law.
More recently in Abdul Mannan v. State of West Bengal16 the Supreme Court
rejected the appeal of the accused being tried by sessions court who were children
on the date of commission of the offence and required lo be dealt with by a juvenile
court under the West Bengal Children Act, (WBC Act).
The Supreme Court itself mentioned that the accused, though entitled, could
not be dealt by the Children Court as none was existing. Even now no juvenile
court has been established for that area under the JJA. The court further said that
in the absence of a juvenile court, the sessions judge was authorised to deal with
delinquent children and that the matter was with the sessions judge.
If the case was to be decided on this basis, the Supreme Court should have
explained that while dealing with delinquent juveniles the sessions court was to
function according to the powers and procedure of a juvenile court prescribed by
the WBC Act.17 The trial of delinquent juveniles is required by the WBC Act to
be separated from that of non-juveniles charged for the same offence.18 Summon
procedure is required to be followed while holding trial of juvenile delinquents.
With the coming into force of the JJA repealing the WBC Act. among others, the
sessions judge is authorised to continue with the trial of delinquent children
pending before it. |y But if the sessions court finds that the child had committed
the offence, it is required to transfer the matter to the juvenile court for orders
according to the provisions of the JJA. In the absence of a juvenile court, the
sessions court can pass orders but only in accordance with the Juvenile Justice Act
1986. Instead of doing this while dismissing the appeal, the Supreme Court 20 said:
...even though at the relevant time the appellants were juveniles, by passage
of time they no longer remained to be juvenile offenders. They are now
in mid-thirties.
The object of the Juvenile Justice Act is to reform and rehabilitate the
juvenile offenders as useful citizens in the society. In the facts and
circumstances of the case, the benefit of the Central Act was denied to them
due to their own act of keeping the trial pending by protecting litigation
kept the case pending trial and in the meanwhile the appellants had
crossed the age of juvenile offenders and became adults. We do not think
it is a proper case for our interference as no useful purpose under Central
Act would serve.
One fails to understand whether the criterion to apply the Children Act in a case
is the factum of the offender being below the specified age on the date of commission
of the offence or her/his conduct after the commission of the offence?
The Supreme Court itself in an earlier case 2 1 decided that it was the age of the
accused at the time of commission of the offence, which determined the applicability
of the Children Act. In this case it was established that the accused was a child on
the date of the offence. Hence, he should have been dealt with under the provisions
of the West Bengal Children Act. 2 2 Had the proceedings been initiated as required,
his attainment of the specified age during the proceedings did not bar continuation
of the proceedings or passing of an order under the said Act. It had not been
pleaded that he had ceased to be a child by ihe time proceedings were initiated
against him before the sessions court took cognisance of the offence or by the time
he was arrested for the offence. In earlier cases where the child had become 25-26
years of age by the time it decided the issue of age, it closed the proceedings in
one case 2 3 while referred the matter to the juvenile court for disposal in another
ease.
justice, Singh has suggested certain areas for particular attention.26 The assumption
underlying this standpoint is that the problems faced in the implementation is due
to some lacunae in the law and may be solved by such amendments. It also believes
that a new law will introduce more ambiguity and uncertainty till the new law again
becomes known and settled. The strength of this standpoint lies in the fact that after
so many years the JJA has now got to the stage when government and officials have
got to know about it. Bringing in wide amendments or a new law will introduce
ambiguity and again need the gestation period till the government will be ready
to deliver and implement the new law.
The question, however, is whether the unsatisfactory implementation is because
of problems inherent in its conception itself or due to unawareness of the law? That
there is large scale unawareness still about the JJA even among the judiciary, leave
apart the lawyers, police and the children, is beyond doubt. There have been at least
two cases in which the Bombay high court had to clarify that the Bombay Children
Act stood repealed since the implementation of the JJA. : 7 Despite such
clarifications, in another case the Bombay High Court itself prosecuted and convicted
a person for an offence against a child under the Bombay Children Act committed
after its abolition!2* The magistrate sending the 14 years old girl to central jail
in Delhi apparently did not know the law. If after so many years of its enforcement,
the implementation and awareness is so unsatisfactory, what justifies the confidence
or optimism of its believers that it can now be implemented in its letter and spirit?
It is not surprising, therefore, that the sceptics will have nothing to do with the
existing law and think that a completely new law is needed if any change is to be
envisioned in the juvenile justice system. The sceptics however are divided about
the need to have one holistic legislation for all children or to have iwo separate
ones for delinquent and neglected children. While the National Consultation on
the Juvenile Justice Act held in Delhi favoured a completely new holistic legislation
dealing with all aspects of survival, growth and development of all children.- 9
those held at Bangalore raised the question of two separate laws for neglected and
delinquent children which was vehemently opposed by others. 30
26. Applicability of the JJA to boys and girls up to the age of 18 years tor boih in accordance
with the UN Convention on Rights of the Child; re-examination of the definition of neglected
child to make it more precise and operational; special police units only to deal with children
under the JJA; further enlargement of community options for placement of children; provision
u{' adoption among the measures for dealing with children under the JJA; mandatory separation
of neglected from delinquent juveniles in (he observation homes; provision of basic norms of
institutional facilities, services and staff in ihe Act itself; review of provisions relating lo
uncontrollable children and cruelty to children to impose more responsibilities on parents and
msiiiuiions in view of the Convention on Rights of Children; submission of annual report by
stales for public discussion on progress achieved, identification of gaps and allocation of
necessary resources.
27. Alain Esteve. 1991 Cri. L.J. 445; Sarita. 1990 Cri. L..I. 351.
28. Umesh Chandra Pawar. 1994 Cri. L.J. 774.
29. N1PCC. "Main Observations and Recommendations" National Consultation Meet on the
Juvenile Justice System and The Rights of the Child, National Institute of Public Co-operalion
and Child Development, New Delhi (1999).
30. S. Mathews. A Report of the National Consultation on Juvenile Justice. Centre for Child
and the Law. National Law vSchool of India Universilv. Bangalore. India (1999).
The issue came to be focussed once again during the consultations held in
October 1999, to discuss two draft legislations prepared by Prof. L.N.Mitra, director,
National Law School, Bangalore, on the request of Ministry of Empowerment and
Social Justice. The participants did not accept the drafts and it was recommended
that the government should first draft a policy relating to juvenile justice.
On the direction of policy the participants were strongly divided on the questions
whether (a) children committing more serious offences should be excluded from the
purview of juvenile justice system, and (b) neglected children should be excluded
from the purview of any legislation. Both the demands were supported by reference
to practices in the west.
In recent years some countries in the west, notably the USA and the UK, have
taken a backward swing away from care and protection and towards harsh and cruel
punishments for increasing number of juveniles committing violent and more
serious offences. Should India also follow suit and divert juveniles committing
serious offences to the criminal justice system? The question has already arisen
before some High Courts in the context of children committing offences under
TADA Act,31 NDPS Act32 and Schedule Caste and Schedule Tribes (Prevention of
Atrocities) Act 33 and has been decided differently.34 Percentage of crimes by
juveniles to total crime in India is minimal.3? The official figures of juvenile
delinquency since 1988 show a consistent overall decrease.36 Even though in 1997
there is a considerable increase in crimes of sexual harassment, arson, culpable
homicide not amounting to murder, murder, dowry death and molestation, the
figures have fluctuated widely between 1987-1997.37 It is submitted, therefore,
that a shift away from the care and protection philosophy is not justified in the
Indian context. Section 22 of the JJA does take note of serious offences by children
above 14 years of age though leaves much to be clarified in terms of what alternatives
are available to the state government in the situation.38
In case of neglected children care proceedings for children in need are part
of welfare system and not juvenile justice system in the west. It is argued that
their inclusion within the legislation dealing with delinquent children results in
their stigmatisation and denial of care and protection to them. Hence, they should
be excluded from the purview of the JJA or the proposed legislation. 39 The
question of stigma was well debated in Parliament while discussing the Children
Bill, 1953, the Children Bill, 1959 and the Juvenile Justice Bill, 1986. Both
categories of children were included to ensure that no stigma should be attached
to the delinquent children. 40 Ironically, the reverse has happened. Crores of
neglected children41 as against a few thousand delinquent children are within the
purview of the JJA but instead of the disproportionately large number of neglected
children subsuming the meagre minority of delinquent children to ensure care and
protection to all, penalisation and stigmatisation of the former along with the latter
has occurred. I do not think that the problem of penalisation and neglect of the
neglected children by state will be solved by excluding neglected children from
the purview of the same legislation. The problem is more deep rooted in the
psychology of the privileged having negative attitudes towards the unprivileged
as potential troublemakers and burden on society.
Under the present system, the wide definition of neglected juvenile under the
JJA42 makes majority of India's child population43 subject to state power without
vesting in them any rights to state care and protection. The argument would have
had some merit if neglected children were to be excluded from any legislation and
were provided care only under the welfare schemes of the state. In such a case the
neglected children may avail of the state care if they found it suitable and will be
free to walk out from care institutions at will if they failed to provide environment
and facilities conducive to their growth and development. They will not be subject
to the unbridled power of the state whereby the state decides when, how many, and
in what circumstance, children may be taken in compulsory 'care' (read custody)
without any check on the quality of care offered. However the present move is not
in that direction. The current proposal is only to have two separate legislations for
the neglected and delinquent children. Such a move does not address the issue of
unequal power equation between children and state, making children vulnerable
to abuse and harassment by state agencies without any substantial benefit to them.
In my opinion such a move will not do anything for the neglected children but will
result in further penalisation and stigmatisation of delinquent children. Such a
situation will also create more problems for neglected children who are well known
to be falsely implicated in commission of offences.
40. Rajya Sablui Debates, 19-12-53: 19-4-54; 22-4-54; 24-4-54; 27-4-54: 28-4-54; 7-12-
60; 18-11-86.
41. There are no official statistics available on the number of neglected children in the
country. Even if one was to construe that figure by reference to the fact that 30% of India's
population lives below the poverty line and 39% of India's population is below the age of 16.
the number comes to about 12 crores.
42. S. 2 (I) of the JJA includes a child found begging; found without a place a permanent
abode and without any ostensible means of subsistence and a destitute; without parents or whose
parent are unfit or are incapacitated lo exercise control; lives in a brothel or associates with
prostitutes or other persons leading an immoral, drunken or depraved life: who is being or likely
to be abused for illegal or immoral purposes or unconscionable gain.
43. 39% of India's population is below the age of 16 years and 49% of India's rural
population and 38%- of urban population lives at/or below poverty level. Through migration
to urban areas. 37 million children live in urban poverty. Claire O'Kane and Kit a Panicker.
"Juvenile Justice System: A Situational Analyses of the Reality of the Children" paper presented
al- the National Consultation on Juvenile Justice. I l-M Fe.hninrv 19O0i
44. Children's Hearing system has been established since 1971 under the authority of Social
Work Act. 1968. Children's Reporters are a key element of the Child Hearing System to whom
all referrals of children who may be at risk, or who may have offended or been in some other
kind of trouble are made in the first instance.
45. Supra note 29 at \-2.
46. Ved Kuniari. "Plea for review of the Juvenile Justice Act 1986". Jr of Criminology and
Criminalistics, at 1 (April 1996).
care and protection approach of the social workers.47 The competent authority
should make use of the provisions relating to place of safety48 and fit person/fit
institution49 for temporary and long term residence of children in the locality
where the children usually live instead of sending them to observation/ juvenile/
special home situated far away. Visitors, as provided by section 54 should be
appointed for each home so that they can work as spokespersons for the inmates.
Advisory Boards under section 53, if activated, can minimise many problems
arising due to uncoordinated activities of various segments of the juvenile justice
system.
Selection and training of right kind of personnel is the key to solving most of
the problems. The recruitment qualifications, pay scales, classification, in service
and refresher training programmes need to be revised comprehensively. It is
unrealistic to expect that the least educated, lowest paid caretaker with army or
police background will act, without any training in child welfare, psychology or
the philosophy of juvenile justice, as the 'modeF to be emulated by the inmates
of the juvenile institutions. The policy of a departmental inquiry and routine
suspension of the caretakers in case of escape of a juvenile from the 'home' needs
to be changed if the care and protection approach is expected to be adopted by
them.
Training programmes are needed for each category of personnel dealing with
children at different stages of the processes under the JJA. While delivering
lectures on the JJA to judicial, police and correctional officers in the training
programmes organised by the National Institute of Criminology and Forensic
Science the author finds only rarely an officer or two who are actually functioning
under the JJA in the group of 30-35 trainees. It certainly does not amount to the
best utilisation of available resources. Despite the organiser's specific request for
deputation of officers from the concerned field, other officers get deputised because
either the department cannof afford to relieve the concerned officer or the concerned
officer has some personal preoccupation.
The training of juvenile justice personnel should,concentrate on two aspects.
The first is the law as laid down by the JJA and the judicial decisions. The second
and equally important aspect is the philosophy, origin and nature of juvenile
justice under the Juvenile Justice Act 1986.
59 Ibid.
60. Id. S.39.
61. Id. S. 5(2).
62. Id. S. 4(2).
63. Indian Penal Code, S.40.
64 Juvenile Justice Act, S.22 r/w S. 21.
65. The term non-child offender has been preferred over adult offenders as minor boy<
above the age of 16 but below 18 years are also triable by the criminal justice system.
66. Juvenile Justice Act, S.21(l) (e).
67. Id. S.22 ( I ) .
is not merely to judge whether the child has committed the alleged activity or not
but also to decide the best measure aimed at securing care, protection, treatment,
development and rehabilitation of the child. This obligation of the juvenile court
is peculiar to it and not shared either by a criminal or a civil court.
The juvenile justice system began and developed as an off shoot of criminal
justice system but the scheme of the JJA clearly shows that it has completely
severed its ties with the criminal justice system. Recognition of this independent
status to the juvenile justice system by all within and outside the system, is a
precondition for bringing about any change in formulation and implementation of
laws to ensure justice to juveniles.