Critical Analysis of the Juvenile Justice Act, 2015

Submitted By
Ubaid Mir

Enrolment No.
1807Cukmr59

School of Legal Studies

Department of Law

Under the Guidance of

Dr. Anil Kumar

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 TABLE OF CONTENTS

Abstract ...................................................................................................................................... 3

Aim of the study......................................................................................................................... 3

Research Methodology .............................................................................................................. 4

Introduction ................................................................................................................................ 4

Historical Background of the Juvenile Justice System in India ................................................. 5

Who is a Child? .......................................................................................................................... 7

International Perspective ............................................................................................................ 8

Mechanism in Place Under the Juvenile Justice Act to Protect the Children ............................ 9

Differential Treatment under Juvenile Justice Act .................................................................. 12

Conclusion ............................................................................................................................... 14

Bibliography ............................................................................................................................ 15

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 ABSTRACT
The Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by the Parliament
of India in December of 2015 and received the President’s assent on 31st December 2015. The
act was published in the Official Gazette in January of the year 2016 and subsequently came
into effect from 15 January, 2016. The act replaced the old Juvenile Justice (Care and
Protection of Children) Act of 2000 amidst a lot of controversy and debate that were part of
the Indian legal and political sphere after the Delhi Gang Rape Case of 2012 which saw a
primary accused and perpetrator escape the strict punishment sought by the prosecution as well
as thousands and millions of protestors because he fell under the ambit of Juvenile Justice Act.
The JJ Act, 2015 includes several new offences against children which were, so far, not
adequately covered under other laws, such as:
1. Sale and procurement of children for any purpose including illegal adoption.
2. Corporal punishment in institutions.
3. Use of child by militant and other adult groups.
4. Offences against disabled children.
5. Kidnapping and abduction.
6. Using a child for vending, peddling, carrying, supplying or smuggling intoxicating
liquor, narcotic drug or psychotropic substance.

With the implementation of this act, the juvenile justice system of India saw a sea change and
many new provisions were added to this act as well as the old provisions of the former act were
modified so as to bring it up to pace with the rapid developments of the changing society. The
act saw a change in the nomenclature to be used in case of wrongful acts committed by juvenile
delinquents so as to remove the negative connotations. The word child came to be used more
prominently in the act so as to remove the negative connotation associated with the word
juvenile. Moreover, the new act saw the inclusion of several new definitions such as orphaned,
abandoned and surrendered children, setting timelines for an inquiry by the Juvenile Justice
Board, streamlining procedures for adoption, the inclusion of new offences committed against
children and the provisions regarding the registration of Child Care Institutions. However,
some of the most controversial provisions in this new act were provisions of transferring
children between 16 and 18 years accused of heinous offences to the adult criminal justice
system.

AIM OF THE STUDY

The aim of this study is be to understand the background in which the act was passed and the
intention behind the legislature to pass this act replacing the old law governing juvenile justice
in India. To study the purpose behind the passing of this act and whether that purpose is actually
being served by the implementation of the act of not. In addition to this, the aim of this study
is to understand the internationally accepted norms when it comes to juvenile delinquency and
whether this act adopted by the Indian parliament fulfils India’s international duty to uphold

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child rights or not. Whether the Juvenile Justice Act of 2015 contains provisions which are
aimed at preventing juvenile delinquency or is it just a rehabilitative in nature.

RESEARCH METHODOLOGY
The research methodology adopted for this paper is doctrinal form of research and the author
of this paper has referred secondary sources in doing research analysis.

INTRODUCTION

“A child is a person who is going to carry on 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 are 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”. –
Abraham Lincoln.

These are the words of the great American President Abraham Lincoln and these words cannot
be truer even after so many decades when these were uttered by him. Children inherently are
guileless creatures and have historically been deemed to be of pure character but due to certain
social, economic and psychological pressures, they are pushed towards a more deviant
behaviour. Some of the reasons that these children develop this deviant behaviour are poverty,
insufficient education, family tensions, emotional abuse, substance abuse, rural-urban
migration, deterioration of social and moral fabric. Atrocities and abuses by parents or
guardians, degraded educational system, the influence of media, are other factors which explain
the phenomena of juvenile delinquency.

The Problem of Juvenile delinquency is not just a product of the modern world of 21st century.
As shown by historical evidence, it has occurred in all societies across the globe with a sharp
increase in the 19th and 20th century. These centuries saw a change in the social fabric of the
society and with this change, came the problem of juvenile delinquency which exists to this
day and has shown an increasing trend ever since.
Juvenile delinquency is one of the banes of the modern times. Wherever a human relationship
is affected between a group of individuals leading to conflicts, there exists these problems of
juvenile delinquency. It is one of the most challenging problem faced by societies across the
globe. Juvenile delinquency denotes criminal acts committed by children who are below the
age of 18 years. This problem is faced by all the countries in the world whether they are

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developed, developing or underdeveloped. Like other countries in the world, the problem of
juvenile delinquency is very serious in the case of India as well.
With reference to India, the share of Indian Penal Code crimes committed by juveniles to total
IPC crimes reported in the country during 2003-2005 remained static at 1.0% which marginally
increased to 1.1% in 2006 and remained static in 2007. This share marginally increased to 1.2%
in 2008 thereafter decreased to 1.1% in 2011 and 1.2% in 2012 and remained static at 1.2% in
2013. However, the juvenile crime rate has shown a mixed trend during 2003-2013 which
proves that the shares of the crime committed by juveniles to total crimes reported in the
country have also increased in the previous decade. The analysis of NCRB data from the year
2006- 2016 collected from the States and Union Territory of India exhibits that juvenile crime
is rising at an alarming rate.

HISTORICAL BACKGROUND OF THE JUVENILE JUSTICE SYSTEM IN

INDIA
In the pre-independence era, there was also a string support for the rehabilitation of children
below the age of 18 who were showing deviant behaviour or were convicted for crimes. The
Apprentice Act of 1850 was one of the first laws laid down which said that the children who
were between the ages of 10-18 and were convicted for crimes in courts of law be provided
with training and guidance as part of their process of rehabilitation.1 This is the first evidence
of care of juvenile in the pre independence era where a child convicted could be placed under
the guardianship of the Magistrate and be placed under an apprenticeship for training as part
of his or her rehabilitation.
The Indian Penal Code of 1860 exempts children under the age of seven years from any
criminal responsibility.2 The code also exempts children between the age of seven years and
twelve years from any criminal responsibility because they have not attained sufficient maturity
of understanding the consequences of their acts.3 These two provisions of the Penal Code of
India provide protection to children and juvenile delinquents from any and all criminal
responsibility as they are seen as immature children who know not of the consequences of their
acts.

In the year 1897, a landmark legislation was passed by the government which dealt with the
problem of juvenile delinquency in India which was called the Reformatory Schools Act of
1897. This act empowered the courts to detain juvenile delinquents in reformatory schools
determined or appointed for that very purpose, for a period of three to seven years but after

1
Section 3, The Apprentices Act, 1950: “Any Magistrate may act with all the powers of a guardian under the
Act, on behalf of any orphan, or poor child abandoned by its parents, or of any child convicted before him or any
other Magistrate of vagrancy, or the commission of any petty offence.”
2
Section 82, Indian Penal Code, 1860
3
Id. Section 83

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they had attained the age of 18 years, they could not be kept in those reformatory schools any
longer as per the law.4
In the post-independence era of India, the Juvenile Justice system of India has been structured
around the constitutional mandate which provides for special laws to be made for the welfare
of children. This mandate manifests itself in the form of Articles 15 (3), 24, 39 (e), 39 (f) and
Article 45 of the Indian Constitution.5 Another important article in the constitution of India
with regard to upliftment of the rights of children is Article 21 which talks about the right to
life and in the subsequent years since the Constitution came to be adopted, this article has been
expanded to include many other rights that a person would need to live a satisfying life. 6
Apart from the constitutional provisions, India is also party to International Conventions that
deal with the rights of child such as the UN Convention on the Rights of the Child7 also known
as CRC and the UN Standard Minimum Rules for Administration of Juvenile Justice8 also
known as Beijing Rules and India is obligated to form its juvenile justice system in conformity
to these covenants.

Prior to the new Juvenile Justice Acts, there existed the Children’s Act of 1960 that aimed at
protecting the interests and rights of a children especially those who were delinquents. The act
provided for the care, treatment, rehabilitation and development of a child. But with the
developments in the international community, especially with the formation of the Beijing
Rules and CRC, Indian lawmakers had to come up with a new legislation to keep pace with the
international response to the issue of juvenile justice and they came up with a new and
progressive piece of legislation. Subsequently in the year 1986, the Juvenile Justice Act was
passed which was replaced by the Juvenile Justice Act, 2000. Recently, the Parliament passed
the Juvenile Justice Act, 2015 which replaced the prior legislation of the year 2000.
This change in the law governing juvenile justice system came in the backdrop of the frightful
incident of Nirbhaya Delhi Gang Rape Case which sparked a lot of controversy and debate
with the legal fraternity and social groups. The main point of the controversy was that one of

4
Section 8, The Reformatory Schools Act. 1897: “(1) Whenever any youthful offender is sentenced to
transportation or imprisonment, and is, in the judgment of the Court by which he is Sentenced, a proper person
to be an inmate of a Reformatory School, the Court may……”
5
Article 15 (3), Indian Constitution: “Nothing in this article shall prevent the State from making any special
provision for women and children”
Article 24, Indian Constitution: “No child below the age of fourteen years shall be employed to work in any factory
or mine or engaged in any other hazardous employment.”
Article 39 (e), Indian Constitution: “The State shall, in particular, direct its policy towards securing that the
health and strength of workers, men and women, and the tender age of children are not abused and that citizens
are not forced by economic necessity to enter avocations unsuited to their age or strength”
Article 39 (f), Indian Constitution: “The State shall, in particular, direct its policy towards securing that children
are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and
that childhood and youth are protected against exploitation and against moral and material abandonment”
Article 45, Indian Constitution: “The State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until they complete the
age of fourteen years.”
6
Article 21, Indian Constitution: “No person shall be deprived of his life or personal liberty except according to
procedures established by law.”
7
General Assembly resolution 44/25 of 20 November 1989.
8
Id., 40/33 of 29 November 1985.

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the accused in the case was just six months short of attaining the age of majority, i.e., 18 years.
The involvement of that accused in such a heinous crime which shook the social backbone of
the entire country prompted the Indian lawmakers to formulate a new legislation to deal with
such cases. Thus, the Indian Parliament in the year 2015 passed a new act known as Juvenile
Justice (Care and Protection of Children) Act, 2015 which is the law governing juveniles to
date. One of the changes made in this act of 2015 is that if a child between the age of 16 and
18 commits a heinous offence, then he may be tried as an adult.9

WHO IS A CHILD?
In general terms, a child may be regarded as a person who has yet to attain the age of majority.
This age of majority depends on the society and the laws that govern the society. However, the
most commonly accepted age of majority is taken to be 18 years of age. Therefore, a child may
be regarded as a person who has yet to attain the age of 18 years.

The old Children Act of 1960 had a gender-based definition of the word child and it included
a boy who had not attained the age of 16 years and a girl who had not yet attained the age of
18 years.10 This definition was later on found to be inadequate and wrong as the gender-based
distinction was not the correct approach while dealing with the concept of child. Moreover,
this definition was not at par with the internationally accepted definitions and concepts of what
a child is. So, when India became a party to the international conventions which deal with
children’s rights and ratified them, it was seen to be a necessity to change this definition. Taking
this into view, the JJ Act of 2000 changed the definition of child and removed this gender-
based distinction.11

In penal terms, a child is a person who has not attained the age of 18 years and is not mature
enough to understand whether an act is right or wrong. In modern era legal systems, especially
common law system, the principle of doli incapax has been adopted when dealing with these
types of situations. Doli incapax refers to the presumption that a person, especially a child is
incapable of forming the criminal intent necessary for the commission of a crime.
The JJ Act of 2015 defines a child as “a person who has not yet completed eighteen years of
age”.12 This definition is in conformity with the internationally accepted definition of a child
as laid down in the United Nations Convention on the Rights of the Child which states that a

9
Section 15, “In case of a heinous offence alleged to have been committed by a child, who has completed or is
above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and
physical capacity to commit such offence………”
Section 18 (3), Juvenile Justice Act, 2015: “Where the Board after preliminary assessment under section 15 pass
an order that there is a need for trial of the said child…….”
10
Section 2 (e), Children Act, 1960: “child means a boy who has not attained the age of sixteen years or a girl
who has not attained the age of eighteen years”
11
Id., Section 2 (k) “juvenile" or "child" means a person who has not completed eighteenth year of age”
12
Section 2 (15), Juvenile Justice Act, 2015.

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child means “every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier”.13
The Juvenile Justice Act, 2015 classifies a child into two categories – Child in conflict with
law and Child in need of care and protection. A child in conflict with law is a child below the
age of eighteen years who has or is alleged to have committed an offence.14. A child in need of
care and protection as given under the act is a very comprehensively defined person. The
second category of child as defined in the Juvenile Justice Act is one of the most important
problems that the present juvenile system of India is facing. This category includes a homeless
child, child labourer or beggar, a child who lives with an abusive person, mentally or physically
challenged child, orphaned child, a runaway child sexually exploited or trafficked children, a
child who is found to be indulging or is likely to indulge in a drug habit, a child who is
vulnerable to armed conflict, civil unrest or a natural calamity, children who are forced into
marriage before attaining the age of majority by their parents, family members or guardians. 15
The children in need of care and protection and extremely vulnerable to face the evils of the
society and are left to face the abuse and exploitation without any adequate social or moral
support. These are the children who need to be protected so that they do not turn to a life of
crime and turn into the children in conflict with law. The act provides for the mechanism to
safeguard their rights as well as those of the children in conflict with law.

INTERNATIONAL PERSPECTIVE
Children’s rights and the state’s obligation to uphold them have found a place in international
law as well and the United Nations has formulated a bunch of rule, norms and standards that
the member states are expected to follow in terms of Child Rights and the things associated
with these rights which are required for their upliftment.
The four UN standards and norms generally mentioned when speaking about juvenile justice
are:
1. United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(Beijing Rules).16 The Beijing Rules is a set of comprehensive rules which lay down
the norms and guidelines for the administration of the juvenile justice and the minimum
standards that a state member has to follow to ensure the well-being of children.
2. United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh
Guidelines).17 The Riyadh guidelines provide for the prevention of juvenile
delinquency.

13
Article 1, UN Convention on The Right of the Child.
14
Supra 12, Section 2 (13)
15
Id., Section 2 (14).
16
Supra, 8.
17
General Assembly resolution 45/112 of 14 December 1990.

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 3. United Nations Rules for the Protection of Juveniles Deprived of Liberty (Havana
Rules).18 The Havana rules lay down the standard for the management of the juvenile
justice system.
4. Guidelines for Action on Children in the Criminal Justice System (The Vienna
Guidelines).19 The Vienna guidelines were adopted for the protection of children and it
was addressed not only to the states, but also NGO's and media.
These standards are norms are generally known as soft law provisions which only lay down
the expected behaviour of the states and provide guidelines to them but are not legally binding
upon member states. There are however certain hard law provisions relating to the juvenile
justice systems which make a member state duty bound to uphold the child rights and not
violate any of them. The United Nations Convention on the Rights of the Child20 is one of the
conventions laid down specifically for the protection of children. Another such covenant that
may be used to define child rights in an international perspective is the International Covenant
on Civil and Political Rights21. International Convention on Civil and Political Rights prohibits
the imposition of death penalty for crimes committed upon persons below the age of eighteen
years.22 The CRC forms the basis of the international law governing the treatment of states
towards children which includes juvenile delinquents as well.

All these documents together form the comprehensive law on the rights of children and the
duty imposed upon states as far as the problem of handling and adjudicating juvenile
delinquency is concerned.

MECHANISM IN PLACE UNDER THE JUVENILE JUSTICE ACT TO

PROTECT THE CHILDREN
As has been already discussed, the JJ Act, 2015 deals with two categories of children, those
who are in conflict with the law (CICL) and those who need care and protection (CNCP). It
also addresses in detail the rights and process for children who are to be put up for adoption as
they are also children who need care and protection. The Act lays down processes and
structures for each of these categories of children. The act provides for the formation of two
bodies with govern the two categories of children separately.

Chapter III of the JJ Act, 2015 deals with the constitution of Juvenile Justice Board with shall
exercise the powers and discharge its functions in relation to children in conflict with law. 23
The Board under this Act has been empowered to deal exclusively with all the proceedings

18
Id., 45/113 of 14 December 1990.
19
Economic and Social Council resolution 1997/30 of 21 July 1997.
20
Supra 7.
21
General Assembly resolution 2200A (XXI) of 16 December 1966.
22
Article 6(5), International Convention on Civil and Political Rights, 1966.
23
Section 4 (1), Juvenile Justice Act, 2015: “Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, the State Government shall……”

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under this Act, relating to children in conflict with law. The only bar to such proceedings in
the limitation of the jurisdiction of such Board.24
The Act lays down the functions and responsibilities of the Juvenile Justice Board which
include but are not necessarily limited to ensuring that the process is transparent and informing
the child and parent or guardian through every step of the process; ensuring that the rights of
the child are protected throughout the process; directing any actor in in the field of child
welfare be it the Probation Officer, Child Welfare Officer or a social worker to conduct social
investigation into the case and submit a report before the boards within a period of fifteen days;
adjudicate and dispose of cases of children in conflict with law in accordance with the process
of inquiry; disposing of the matter and passing a final order regarding the case that includes an
individual care plan for the child’s rehabilitation; conducting inquiry for declaring fit persons
regarding care of children in conflict with law. Apart from these, other functions of the Juvenile
Justice Board include providing a interpreter or translator to the child in case he fails to
understand the language used in the proceedings; conducting at least one inspection visit every
month of residential facilities for children in conflict with law and recommend any
improvements to be made in terms of quality of services; order the police for registration of
first information report for offences committed against any child in conflict with law; order the
police for registration of first information report for offences committed against any child in
need of care and protection; conducting regular inspection of jails meant for adults to check if
any child is lodged in such jails and if it found to be the case, then it is the responsibility of the
Board to take immediate measures for transfer of such a child to the observation home. 25
The also specifies transferring any matter concerning child alleged to be in conflict with law
who is also stated to be in need of care and protection. This amounts to the recognition that a
child in conflict with law can also be a child in need of care simultaneously.26
Chapter V of the JJ Act, 2015 deals with the constitution of a Child Welfare Committee which
shall exercise the powers and discharge its functions in relation to children in need of care and
protection.27 The committee has been authorised with powers under the JJ Act, 2015 to dispose
of case for the care, protection, treatment, development and rehabilitation of children in need
of care and protection. The committee has also been given the power to deal exclusively with
all proceedings under this Act relating to children in need of care and protection.28
The Act also lays down the functions and responsibilities of the Child Welfare Committee
which include but are not necessarily limited to conducting inquiry on all issues relating to and
affecting the safety and wellbeing of the children; directing the actors in the field of child
welfare to conduct social investigations; conducting inquiry for declaring fit persons for care
of children in need of care and protection; directing placement of a child in foster care; ensuring

24
Id., Section 8 (1)
25
Id., Section 8 (3)
26
Id., Section 8 (3) (g)
27
Section 27 (1), Juvenile Justice Act, 2015: “The State Government shall by notification in the Official Gazette
constitute for every district, one or more Child Welfare Committees ….”
28
Id., Section 29. “(1) The Committee shall have the authority to dispose of cases for the care, protection,
treatment, development and rehabilitation of children in need of care and protection, as well as to provide for
their basic needs and protection…...”

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care, protection, appropriate rehabilitation or restoration of children in need of care and
protection; selecting appropriate registered institution for placement of each child requiring
institutional support; ensuring that all efforts are made for restoration of abandoned or lost
children to their families following due process; declaration of orphan, abandoned and
surrendered child as legally free for adoption; taking suo motu cognizance of cases and
reaching out to children in need of care and protection; taking action for rehabilitation of
sexually abused children who are reported as children in need of care and protection; co-
ordinate with the police, labour department and other agencies involved in the care and
protection of children. Apart from these, other functions of the Child Welfare Committee
include ensuring care, protection, appropriate rehabilitation or restoration of children in need
of care and protection and passing necessary directions to parents or guardians or fit persons
or children’s homes or fit facility in this regard; conducting at least two inspection visits per
month of residential facilities for children in need of care and protection and recommending
any actions to be taken in order to improve the quality of service in such institutions; certifying
the execution of surrender deeds by parents and also ensuring that they are given a chance to
reconsider their decision and make all possible efforts to keep families together. In case of
complaint against any child care institute regarding abuse of child, it is the responsibility of the
committee conduct an inquiry and give directions to the police or the District Child Protection
Unit or labour department or ChildLine services. It is also the responsibility of the Child
Welfare Committee to provide appropriate legal service to children.29
The Juvenile Justice Act provides for creation of a Special Juvenile Police Unit (SJPU) by State
Governments and Union Territory Administrations for every district and city to coordinate and
upgrade the treatment by police of children.30 Further, the Act also mandates that at least one
officer with aptitude and appropriate training and orientation, may be designated as the juvenile
or child welfare officer, to handle the juvenile or child in coordination with the police. In
addition, the Central Model Rules framed under the JJ Act, 2015 also provide for appointment
of Child Welfare Officer of the rank of police inspector and two social workers by State
Governments/UT Administrations, of which one shall be a woman, having experience of
working in the field of child welfare. The two social workers are to be provided by the District
Child Protection Unit (DCPU).31
The Ministry of Women and Child Development is providing financial assistance to State
Governments/UT Administrations under Integrated Child Protection Scheme (ICPS) for
appointment of two social workers under the District Child Protection Units. ICPS is a centrally
sponsored programme for child protection, being implemented across the country from 2009-
10. The ICPS provides financial resources to States/UT Administrations for the effective
implementation of the JJ Act, 2015, bringing together hitherto piecemeal initiatives on child
protection of the Ministry under one comprehensive umbrella, and integrating additional

29
Id., Section 30
30
Rules 86, Juvenile Justice (Care and Protection of Children) Model Rules, 2016.
31
Section 106, Juvenile Justice Act, 2015: “Every State Government shall constitute a Child Protection Society
for the State and Child Protection Unit for every District, consisting of such officers and other employees as may
be appointed by that Government, to take up matters relating to children with a view to ensure the implementation
of this Act….”

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interventions for protecting children and preventing them from harm. In order to ensure
effective service delivery ICPS is to be implemented by setting up of various agencies and
committees at different level. The State Child Protection Society (SCPS) and DCPUs (DCPUs)
are the fundamental units for implementation at State and District level respectively. The SCPS
are registered under the Societies Registration Act, 1860 and function under the overall
supervision and control of the department looking after child welfare/protection in the
State/UT.32
The social workers are responsible for providing assistance to SJPU in discharging their duties.
The Child Welfare Officer of the SJPU and social workers are responsible for dealing with all
matters related to children produced before Child Welfare Committees or Juvenile Justice
Boards under the Act as per directions provided to them by these statutory bodies.

DIFFERENTIAL TREATMENT UNDER JUVENILE JUSTICE ACT

Initially the Apprentices Act of 1850, provided that those children who were found to be
committing petty offences below the age of 15 years must come within adjudication of
differential treatment and considered them as apprentices instead of sending them to prison.
There was a Reformatory Schools Act which provided reformatory action for those who were
found violating and committing offences. The recommendations of All India Jail Committee
were adopted wherein the segregation of children was done by adjudicating them in a different
court which was called Children Court. The aforementioned Acts adopted the framework of
sending the children to remand homes and in certain exceptional cases they were even sent to
criminal jail. Therefore, the concept of Differential treatment of these children was
propounded.
Article 14 of the Constitution guarantees “equality before the law or the equal protection of
the laws within the territory of India” to all persons including children. It has been well
established that this provision does not permit class legislation but it does permit reasonable
classification applying the nexus test. Any classification is reasonable if the criterion for
classification has a nexus with the object of the Act. In order to pass this test, it needs to be
establish that the criteria for providing for differential treatment of children by reference to
their age and the nature of offence have a direct nexus with the objects of the JJ Act, 2015. The
first para of the Preamble to the JJ Act, 2015 laying down the aims of the Act reads as follows:

“An Act to consolidate and amend the law relating to children alleged and found to be in
conflict with law and children in need of care and protection by catering to their basic needs
through proper care, protection, development, treatment, social re-integration, by adopting a
child-friendly approach in the adjudication and disposal of matters in the best interest of
children and for their rehabilitation through processes provided, and institutions and bodies
established, herein under and for matters connected therewith or incidental thereto.” 33

32
National Gender Centre: “Juvenile Justice Act 2015: A Handbook for Field Administrators” pp. 26-27.
33
Preamble, Juvenile Justice (Care and Protection) Act, 2015

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The current Act stipulates the removal as well as disqualification which relates to conviction
of any type of offence under various provisions of Act, however, there pertains an exception
for the children ageing between 16-18 years of age wherein when they are transferred to the
Children’s Court they are well off as adults.34 The records pertaining to the same kept by the
police must be destroyed however, the records of the those ranging between 16-18 years of age
must be kept with the children’s court. The exclusion of the same is guaranteed when it is
followed by a heinous crime wherein the essence of the Act must be struck down for violating
the fundamental rights envisaged under Art. 14 of the Indian Constitution. The differential
treatment of 16–18 years old children found to have committed a heinous offence exposing
them to life-long stigma is against the stated purposes of care, protection, treatment,
development and social reintegration of the Act.

An integral lacuna of such classifications allowing differential treatment of some children

opens the door to the demands for further lowering the cut off age and expansion of the list of
offences thereby increasing the number of children to be excluded from the protective umbrella
of juvenile justice. In the recent case of death caused by a speeding car which was driven by a
child just a few days less than 18 years had led to agitations seeking the trial of the child as an
adult even though the alleged offence falls within the definition of petty offence as defined in
the JJ Act, 2015.35 It was reported that the police were planning to write to the Board to request
that the child be tried as an adult in this case.36 Later he was additionally charged with culpable
homicide not amounting to murder under section 304 of the IPC and transferred to the
Children’s Court by the JJB to be tried as an adult.37
It is even more questionable as the Act does conceive that children who are reformed by the
age of 21 years and can become contributing members of society should be released under the
supervision of a monitoring authority for the remainder of their period of stay. However, in the
absence of removal of disqualifications and maintenance of their records, it will be impossible
for them to re-integrate in society and start their life with a clean slate. The blanket exclusion
of 16–18 years old children tried as adults by the Children’s Court from the protection against
stigmatization is against the best interest principle too and must be struck down for being
contrary to the fundamental principle of the Act as well as for being contrary to the protection
against discriminatory treatment.
Moreover, the act of treating 16-18 year old children as adults also goes against India’s
international obligations and has also been a point of criticism from the international
community. UNICEF in a news has raised its concern about the implementation of JJ Act, 2015

34
Section 24. Removal of disqualification on the findings of an offence-
(1) “Notwithstanding anything contained in any other law for the time being in force, a child who has
committed an offence and has been dealt with under the provisions of this Act shall not suffer
disqualification, if any, attached to a conviction of an offence under such law….”
35
N. Kumar. “Juvenile in Delhi Mercedes hit-and-run case to be tried as adult”. The Hindu. (Sept 14, 2016),
https://www.thehindu.com/news/cities/Delhi/Juvenile-in-Delhi-Mercedes-hit-and-run-case-to-be-tried-as-
adult/article14384607.ece
36
Id.
37
Id.

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and its differential treatment of 16-18 year old children.38 UNICEF has raised the conern
regarding the Union Cabinet’s approval of Juvenile Justice Act Amendment which empowers
the Juvenile Justice Board to decide whether a juvenile above the age of 16 years involved in
a heinous crime is to be treated as an adult in regular manner.39 It has also noted that the
amendment goes against international obligations such as the Convention on the Rights of the
Child and rules of international standard on juvenile justice such as Riyadh Guidelines, Beijing
Rules, etc. which suggest the establishment of special rules of procedure for children. 40

CONCLUSION
The main objective of the JJ Act id to ensure that the rights of children are protected. Therefore,
the same strives to be protective rather then detrimental in nature. Assessment of the rights of
children above 16 years of age as adults do not benefit them as well as the rights bestowed
upon them through the Act. After the unfortunate Nirbhaya Case questions the integrity of the
actions committed by the 17-year-old. To diffuse the public wrath, the Parliament passed the
2015 Act. The new Act which is deemed considerate and appropriate, whereby S. 15 and 18
especially talks about the assessment which needs to be made of 16-18 year olds by sending
them sessions or trial court is not considered proper both in law and practice. It violates the
fundamental right of equality and the concept of fair trial where as it also contradicts the
essence of the Juvenile Act which majorly talks about the adjudication of conviction of children
below 18 years of age must be done in a separate court.41
Therefore, the categorisation and the procedure of this particular assessment and transferring
the juveniles in a different court such as a sessions court or a trial court is unreasonable
classification. It is also arbitrary in nature as it is in violation of fair trial which makes it
unconstitutional in nature. It is also not in consonance of the International Conventions and
Treaties and additionally the Supreme Court opined that the Act id constitutionally void and
there is a need for amendment which is to fix an age for the adult criminal liability which should
be same for every person.
The purpose of the Juvenile Justice Act gets diluted when this differential treatment is provided
within the Act itself. It goes against the rights that are conferred to the children and plays into
the hand of the social stigmatisation of children who are at a very vulnerable age in their life.
So, in conclusion, the act which was founded on the basis of protecting the interests of the child
fails to do so when looked at in the bigger perspective. The act also falls short of the
international obligations that have to be fulfilled by India.

38
“UNICEF concerned about amendment to India’s Juvenile Justice Act”, UNICEF Press Centre. (11 August
2014). https://www.unicef.org/media/media_74742.html
39
Id.
40
Id.
41
Salil Bali v. Union of India, (2013) 7 SCC 705.

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 BIBLIOGRAPHY
Statutes
1. Juvenile Justice (Care and Protection), Act 2015
2. Indian Penal Code, 1860
3. Apprentices Act of 1850
4. The Reformatory Schools Act. 1897
5. The Constitution of India, 1950
Articles and Books
1. A Benjamin, A Kamath. “Juvenile Injustice: A critique on the Constitutionality of
deeming 16-18 year old Juveniles as Adults”. CNLU J (8), (2018).
2. S. Manohar. “Human Rights of the Child – Implementing the Juvenile Justice Justice
Act 2000”
3. Ved Kumari: “The Juvenile Justice (Care and Protection) Act 2015: Critical Analysis”,
1st ed.
4. Suman Nalwa, Hari Dev Kohli: “Commentary on the Juvenile Justice Act”, 2nd ed.
5. National Gender Centre: “Juvenile Justice Act 2015: A Handbook for Field
Administrators”

International Conventions and Rules

1. UN Convention on The Right of the Child.
2. General Assembly resolution 45/112 of 14 December 1990.
3. General Assembly resolution 45/113 of 14 December 1990.
4. Economic and Social Council resolution 1997/30 of 21 July 1997.
5. General Assembly resolution 2200A (XXI) of 16 December 1966.
6. International Convention on Civil and Political Rights, 1966
7. General Assembly resolution 44/25 of 20 November 1989.
8. General Assembly resolution 40/33 of 29 November 1985

Internet Sources
1. N. Kumar. “Juvenile in Delhi Mercedes hit-and-run case to be tried as adult”. The
Hindu. (Sept 14, 2016), https://www.thehindu.com/news/cities/Delhi/Juvenile-in-
Delhi-Mercedes-hit-and-run-case-to-be-tried-as-adult/article14384607.ece
2. “UNICEF concerned about amendment to India’s Juvenile Justice Act”, UNICEF Press
Centre. (11 August 2014). https://www.unicef.org/media/media_74742.html
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