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Juvenile law—
Causes of Juvenile Delinquency-- Every person has different behavioural patterns. This is in case with children also. The behaviour patterns develop in early childhood. As soon as child grows up the behaviour comes out to real world. Behaviour patterns changes from time to time. Many circumstances or situations may create the delinquent behavior in the mind of the child. Researches and Studies show that they are various causes of juvenile delinquency in India. Following are the some of the causes of Juvenile Delinquency.
1. Adolescence Instability: – The biological, psychological and sociological are one of the important factors in the behaviour pattern of an adolescent. At this stage the teenagers become more conscious about their appearances and fashions, enjoyment, food, play and etc. At this age they want freedom. They want to be independent. Sometimes chances and opportunities are not given by their parents, teachers and elders. This leads to development of anti–social behaviour in them. This anti–social behaviour, biological changes, psychological causes are the some of the reasons which is responsible for juvenile delinquency.
2. Disintegration of Family System: –Disintegration of family system and laxity in parental control is also the main cause of increasing rates of juvenile delinquency. In normal cases divorce of parents, lack of parental control, lack of love and affection are the major factors of juvenile delinquency.
3. Economic condition and Poverty: – Poverty and poor economic condition is also considered as major contributing factor of increasing juvenile crimes. As result of poverty, parents or guardian fails to fulfill the needs of the child. At the same time children want that their desires should be fulfilled by hook or by cook. When their desires are not met they start themselves indulging in stealing money from homes or any other parents. This develops habitual tendency of stealing which results into theft at large scale.
4. Migration:–Migration of deserted and destitute juveniles’ boys to slums areas brings them in contact with some anti–social elements of society that carries some illegal activities like prostitution, smuggling of drugs or narcotics etc. These sorts of activities attract the juvenile a lot. They may involve themselves in such activities.
5. S*x Indulgence:-The children those who have experienced s*x assault or any other kind of unwanted physical assault in their early childhood may develop any kind of repulsiveness in their behaviour and mind. In this age they may become more vagrants or may want to have s*x experience. Too much of s*x variance may lead the boys towards the crime of kidnapping and r**es etc.
6. Modern Life Style:–The rapidly changing society patterns and modern living style makes it very difficult for children and adolescents to adjust themselves to the new ways of lifestyle. They are confronted with problems of culture conflicts. They are unable to differentiate between right and wrong.
Juvenile offenders were being treated as same as other criminal offenders. A movement for the special treatment of juvenile offenders started throughout the world including many developed countries like U.K., U.S.A. This movement has been started around the 18th century.
England--For the first time in 1908 Juvenile Courts were established in England under the Children Act, 1908. The primary duty of these courts was to provide proper care and protection to child and young offenders and take all the necessary steps to remove all undesirable surroundings around the offenders and to ensure reformation of the offenders by providing education and training.
THE CHILDREN AND YOUNG OFFENDERS ACT, 1933 confers the civil powers on the Juvenile Courts in certain important cases to look into matter. The Act also provides that any child (A person under fourteen years of age) and young person (A person between the age group of fourteen and seventeen year) who have committed the crime should be tried in Juvenile Courts only. The Act also provides under Section 77 of the Act the establishment of Remand Homes. UK Legislation also came with the new Act that also deals with Rights of Juvenile Offenders. The Act is THE CRIMINAL JUSTICE ACT, 1948. The act provides certain class of security to young offenders by sending them to remand homes.
U.S.A.--The working of Juvenile Courts in U.S.A. is relatively less complex and easier as compared to the other nations. The courts of U.S.A. follow the informal way in the process of trial of offender. At the first stage , the police officer in the charge of the case has the full discretion power either to keep the juvenile offender in the child custody or to immediately release him or to admonish the offender or to do the both. In the second stage police officer have to contact the Juvenile Courts to make them aware about the case and to take the matters into their hands.
Juvenile Offenders after the trial in court is being sent to Certified Schools or to the Children Homes if the order is passed by the court. According to the Juvenile Justice System in U.S.A. a juvenile is tried as an adult only in those cases where the age of the juvenile is close to adulthood as per the statutory provisions or any juvenile offenders who is found to be involved in repeated offences and is proved danger to the society.
India—
Juvenile Justice and Constitution of India--
The Constitution of India provides rights and duties of citizens. It provides provision for the working of the government machineries. Constitution in Part III has provided Fundamental Rights. In its Part IV it has provided Directive Principles of State Policies (DPSP) which acts as general guidelines in framing government policies. Constitution has provided some basic rights and provisions especially for the welfare of children. Like: –
1. Right to free and compulsory elementary education for all the children under the age of 6 to 14 years.( Article 21A)
2. Right to be protected from any hazardous employment under the age of fourteen age.(Article 24)
3. Right to be protected from being abused in any form by an adult.(Article 39(e)).
4. Right to be protected from human trafficking and forced bonded labour system.( Article (Article 39)
5. Right to be provided with good nutrition and proper standard of living.(Article 47)
6. Article 15(3) of the Constitution of India provides special powers to State to make any special laws for the upliftment and the betterment of children and women.
The Children Act, 1960--
1. Section 2(e) of the Act states “ 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.
2. United Nations Convention:–The UN Convention on the Rights of Child, 1989 defines that “child” means a human being below the age of eighteen years unless the law declaration applicable to child , majority is attained earlier-Article 1 of the UN Convention on the Rights of Child, 1989.
A person under the age of full legal obligation and responsibility is a minor or a person who is below the legal age of eighteen years is minor. A child being accused of a crime is not tried as an adult and is sent to Child Care Centre whereas juvenile is a person between the age group of sixteen and eighteen years. A young person who is been accused of crime is a juvenile offender and is tried as adult in court proceedings. In general sense both the term has same meaning but however difference lies in context of implications in the eyes of law. Minor implies young and teen persons whereas juvenile either indicates immature person or young offenders.
3. The General Assembly of the United Nations adopted the Convention on the Rights of the Child on 20th November, 1989. It prescribes a set of standard to be adhered to by all the States parties in securing the best interest of the child. The International instruments and conventions have contributed considerably to the issue of child rights and prevention of child abuse. The International bodies like United Nations and UNICEF have always paid more emphasis on the development of Child.
Following are the International Instruments and Conventions that are signed by all the States of UN in order to protect the rights of Children:-
1. UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
2. UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)
3. UN Rules for the Protection of Juvenile Deprived of their Liberty (Havana Conventions)
4. Guidelines for the Action on Children in Criminal Juvenile System (Vienna Guidelines)
The General Assembly of United Nations adopted a Convention on the Rights of Child on 20th November 1989. This convention seeks to protect the best interest of juvenile offenders. The Convention states that to protect the social–reintegration of juvenile, there shall be no judicial proceeding and court trials against them. The Convention leads the Indian Legislation to repeal the Juvenile Justice Act, 1986. The Juvenile Justice, 1986 repealed the CHILDREN ACT, 1960. It aimed at giving effect to the guidelines contained in the Standard Minimum Rules for the Administration of Juvenile Justice adopted by the U.N. countries in November 1985. Indian Legislation came up with The Juvenile Justice (Care and Protection of Children) Act, 2000.
The Act consisted of 63 Sections, 7 Chapters. It extended to whole India expect to the State of Jammu and Kashmir. The primary purpose of the Act was to provide care and protection, treatment, development and rehabilitation of the neglected juvenile delinquent. The main objectives of the Act were:-
1. The Act basically laid down uniform framework for the juvenile justice in country in such a way that it protects the right and interest of juvenile.
2. It talks about the machinery and infra – structure for the care, protection treatment, development and rehabilitation of the juvenile offenders.
3. It set out the basic provisions for the proper and fair administration of criminal justice in case of heinous crime done by juvenile offenders.
The Juvenile Justice Act, 2000 was enacted with aim and intent to provide protection for children. It was amended twice–first in the year of 2006 and later in year of 2011.The amendment was made to address the gap and loopholes in the implementation. In the last few decades, the crime rate by the children under the age of 16 years has increased. The reason of increasing crime rate may be due to the upbringing environment of the child, economic conditions, lack of education and the parental care. These are the some of the basic reasons. The most disappointing part is that, children (especially under the age group of 5 to 7 years) now a days are used as tool for committing the crime as at that this stage their mind is very innocent and can easily be manipulated. The frightful incident of “Nirbhaya Delhi Gang R**e Case” on December 16, 2012 shocked the whole nation. Many debates were started among legal fraternity. The main reason and issue of the debate was the involvement of accused who was just six months short to attain the age of 18 years. The involvement of the accused in such a heinous crime of r**e forced the Indian Legislation to introduce a new law and thus, Indian Parliament came up with a new law which is known as . The increasing number of cases of juvenile crimes in the last recent years and frightful incident of “Delhi Gang R**e Case” has forced the law makers to come up with a new law. The major drawback of the Act was that it contained ill equipped legal provisions. The malfunctioning juvenile system was also the major reason in preventing the juvenile crimes in India. The Act was replaced soon by THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015.
Juvenile Justice ( Care and Protection), 2015--The Introduction of the Act has replaced the existing juvenile laws and has introduced some remarkable changes. One of the remarkable changes is juvenile under the age group of 16 to 18 years should be tried as an adult. A “child” means a person who has not attained the age of 18 years. He is not mature to understand that what is right and wrong. In modern era, the penal laws of most countries have adopted the principle of ‘doli incapex’. In India Section 82 of IPC provides that a child below the age of seven years is DOLI INCAPEX.
‘Doli incapax’ means of not capable of knowing that act there are committing is a crime. The penal law states that only child between the ages of seven to twelve ages can be convicted provided that the act they have committed is a heinous crime and they have knowledge and has attained the sufficient knowledge to understand the consequences of their act.
Sub-section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 defines a “child”. It means a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories: –
“child in conflict with law” -Section 13 of The Juvenile Justice (Care and Protection of Children) Act,2015, and “child in need of care and protection”-Section 14 of The Juvenile Justice (Care and Protection of Children) Act,2015The child who has committed an offence and he or she is under the age of 18 years on the date of commission of the offence is basically called as “child in conflict with law”. The second sub–category is “child in need of care and protection”. It means a child as defined under Section 14 of the Act.
India had made legal provisions that especially and specifically deal with the rights and protection of juvenile offenders. It seeks to tackle the problem of juvenile delinquency. The Juvenile Justice System in India is made on the basis of three main assumptions:-
1. Young offenders should not be tried in courts. They should be corrected in all the best possible ways,
2. They should not be punished by the courts. They should get a chance to reform
Trial for child in conflict with law is defined under Section 2 (13) of the Juvenile Justice (Care and Protection) Act, 2015. Such persons should be treated on non-penal treatment through the communities based upon the social control agencies for e.g. Observation Homes under Section 47 of the Act, 2015 and by Special Homes under Section 48 of the Act , 2015. The aims to consolidate the laws relating to children alleged and found to be in conflict with law and children in need of care and protection by catering and considering their basic needs through proper care& protection , development, treatment , social- integration , by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children. The act also focuses on rehabilitation of juvenile offenders through various child care houses and institutions.
The most important subjects of the Act are as follows:-
The claim of Juvenility is to be decided by Juvenile Justice Board. The Board has to decide the claim of juvenility before the court proceedings but the claim of juvenility can be raised before the court at any stage of proceedings and even after the disposal of the matter by the Board .The Board had to consider Rule 12 of the Juvenile Justice Rules, 2007 in order to determine the claim of juvenility as held in the case of KULAIIBRAHIM V. STATE OF COIMBATORE AIR 2014 SC 2726. It was observed by the Court that accused has right to raise the question of juvenility at any point of time during trial or even after the disposal of the case under the Section 9 of Juvenile Justice Act , 2015 in the case of DEOKI NANDAN DAYMA V. STATE OF UTTAR PRADESH1997-10- SCC 525. Again in the case of SATBIR SINGH& OTHERS V. STATE OF HARYANA AIR 2005 SC 3549, it is reiterated that for the purpose of determination whether accused is juvenile or not, the date of birth which is recorded in the school records shall be taken into consideration by Juvenile Justice Board.
In case of KRISHNA BHAGWAN V. STATE OF BIHAR AIR 1989, the court held that entry in the register of school mentioning the date of birth of student is admissible evidence in determining the age of juvenile or to show that whether the accused is juvenile or child. The court stated that for the purpose of trial under Juvenile Justice Board , the relevant date for the considering the age of juvenile should be on which the offence has been committed. In case of ARNIT DAS V. STATE OF BIHAR AIR 2000 SC 748, the Court overruled its previous decision and held that date to decide in claim of juvenility should be the date on which the accused is brought before the competent authority.
Juvenile Justice Board--Section 4 of Juvenile Justice (Care and Protection) Act , 2015 provides that there shall be a constitution of Board for the purpose of inquiry and hearing in the matters of juvenile in conflict with law. The Board shall consist of Principal Magistrate and two social workers, among whom one should be a women. Section 4(2) of Juvenile Justice (Care and Protection) Act , 2015 provides that under no circumstances the Board can regulate and operate from regular court premises. The decision taken by the Principal Magistrate shall be final-Section 5 of Juvenile Justice (Care and Protection) Act, 2015
Special Procedure of Juvenile Justice Board:- The Act has provided the procedure against the juvenile offender under Section 7(2). Following are the main special procedure –
1. The proceedings cannot be initiated on a complaint registered by the police or citizen
2. The hearing must be informal and should be strictly confidential.
3. The offenders should be kept under Observation Home after detention.
4. The trial of juvenile in conflict with law shall be conducted by Lady Magistrate.
5. A child in conflict with law may be produced before an individual member of the Board when Board is not sitting.
Chapter IV of the Act lays down the provisions for betterment of the juveniles and has focused on the Reformation and Rehabilitation of Juveniles in all the possible circumstances.
Juvenile Justice is a legal framework which defines justice for juvenile under the Indian Legal System. The system is giving a special treatment and protection to juvenile delinquency. Juvenile Delinquency means a crime committed by youth who is under the age of 18 years. There is an increasing rate of juvenile crimes. This increasing rate is creating a debatable issue of age determination. Age determination is considered as one of the most important factor to determine the maturity level of the accused. The increasing crime rate is raising a question that whether the juvenile can be tried as an adult or not? The Act is itself answer to the question that no juvenile offender who comes under the definition of “child with conflict with law” as defined under sub–section 13 of Section 2 of the Act shall not be tried as adult. He shall be sent to Child Care Centre or any Rehabilitation Centre till the offender attain the age of 21 years and then he or she may shifted to the jail or prison.
According to the Act, the maximum tenure of punishment which can be given to the juvenile offenders is three years. This punishment is valid for heinous crime. In case of an adult offender, the maximum punishment which can be given is 7 years or life imprisonment or death penalty. The Act in case of juvenile offenders believe on Reformation of juvenile as much as possible. The reformation type of punishment under the Act includes:
1. Sending juvenile to Rehabilitation Centers,
2. Sending juvenile to Juvenile Schools or
3. Sending juvenile to make them involved in various program headed by government or NGO’s.
There is no need to give such a minor kind of punishment for a heinous and harsh offence just because of Age determination or Age factor . R**e is R**e. One can’t walk way taking a plea of age factor or mental incapacity or mental unfitness. The existing law in the name of Age determination or Age Consent is not creating deterrent effect on the anti–social behavior of youth. Reformation is good but not always. If law is for reforming the juvenile offenders so that they can have a better life in future then law should also think about the rights of the victim .Justice must be given to the victim. The theory of reformation is helping juvenile to be reformed. It is not helping the victim at all. So the question arises is there any guarantee that if juvenile offenders will get reformed and will not show their anti–social behavior again. The government has laid various legislations and rules to stop the incidents of juvenile crimes. The present laws on juveniles are not creating a deterrent effect on the juveniles. The results are not fruitful. The legislative intent is not accomplished.