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INTRODUCTION

There can be no keener revelation of a societys soul than the way in which it treats its
children.
- Nelson Mandela.
Recognition of the rightful place of the child in the societal fabric, a paradigm shift from a needbased approach to a right-based approach, aspiring development and mainstreaming of the child,
was a high water mark of progressive democracies in the last century. Child-centric human
rights jurisprudence has become pivotal in the laws role in social engineering.
The word juvenile originates in juvenis(Latin, young). Juvenile justice is the legal system that
aspires to protect all children, bringing within its ambit the children in need of protection,
besides those in conflict with law. However, the word has come to be used together and often
interchangeably with delinquency which describes children who are in conflict with law,
conjuring an image of violence.
The Juvenile Justice System in India, the ripple effect of the criminal justice system, has always
been marked by the tussle between the protective approach of juvenile justice and the traditional
approach of the latter. Despite the Constitutional guarantees and a plethora of child-centric
legislations and civil rights, innumerable Indian children, face widespread discrimination and
deprivation.

HISTORY
Development of Juvenile Justice System in India

Independence ushered in a new era for children in the country. The Constitution of India took
care of survival, development and protection needs of children by making relevant provisions in
Fundamental Rights and Directive Principles of State Policy.

Children Act 1960

The special status accorded to children in the Constitution and the fact that there was a
substantial growth in the number of destitute, neglected and delinquent children in the wake of
partition, saw some special programmes being taken up to meet the needs of this group of
children during the First Five-Year Plan. Industrialization coupled with urbanization further
brought forth its own set of problems for children. One of them was increase in cases of juvenile
delinquency in large cities, the most common offence being theft. As legislation for dealing with
delinquent children existed only in few states, the Government of India enacted the Children Act
1960. The Act, however, was applicable only to the Union Territories as it was a model to be
followed by the states in the enactment of their respective Children Acts.

The 1960 Children Act, provided for the care, protection, maintenance, welfare, training,
education and rehabilitation of neglected and delinquent children. For the first time in India, the
Children Act prohibited the imprisonment of children under any circumstance. It provided for
separate adjudicatory bodies a children court and a child welfare board - to deal with
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delinquent and neglected children. The Act also introduced a system of three-tier institutions,
namely, an observation home for receiving children during the pendency of their proceedings, a
childrens home for accommodating neglected children, and a special school for delinquent
children. It, however, introduced a sex discriminatory definition of child.Child in case of a boy
was one who was below 16 years and in case of a girl below 18 years of age . All states
subsequently enacted similar, but not exactly the same Children Acts. The definition of the term
child differed from state to state. As a result, delinquent and neglected children were subjected to
differential treatment emanating from the diverse conceptions of child and childhood.

Juvenile Justice Act 1986

The need for a uniform Children Act across the country paved the way for the enactment of the
1986 Juvenile Justice Act (JJA). It promoted the best interest of the juveniles by incorporating
into its fold not only the major provisions and clauses of the Indian Constitution and the 1974
National Policy Resolution for Children but also the universally agreed principles and standards
for the protection of juveniles such as the 1959 United Nations Declaration of the Rights of the
Child and the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (Beijing Rules). The JJA overruled imprisonment of juveniles in police lock-up or jail.
Other than this, it stipulated two main authorities a juvenile welfare board and a juvenile court
to deal with neglected and delinquent juveniles. It also stipulated establishment of various
kinds of institutions for the care of juveniles a juvenile home for the reception of neglected
juveniles, a special home for the reception of delinquent juveniles, an observation home for the
temporary reception of juveniles during the pendency of any inquiry regarding them, and an

after-care home for the purpose of taking care of juveniles after they were discharged from a
juvenile home or a special home. It further guaranteed a wide range of dispositional alternatives
with preference for family or community-based placement, and a vigorous involvement of
voluntary agencies at various stages of the juvenile justice process. The basic ideology for
adopting this differential approach was to save children from devastating ill-effects of
criminalization, penalization and stigmatization. With the enactment of the JJA, the welfare
approach gave way to the justice paradigm (Maharukh Adenwalla: 2006).
But the implementation of the JJA had many loopholes in terms of age determination, separate
trials, court proceedings, notification of charges to parents or guardians, filing of reports by
probation officers, reasons for and length of confinement, rehabilitation and after care of
juveniles. The juveniles were often not provided with a copy of the rules governing their
detention and the written description of their rights. Many juveniles housed in institutions run by
the government did not know the purpose of their stay and the future of their institutionalization.
Like the 1960 Children Act, the JJA too promoted a sex discriminatory definition of a juvenile.
Moreover, most of the states and union territories who had formulated their Rules for the
implementation of the JJA were devoid of the basic infrastructure consisting of juvenile welfare
boards, juvenile courts, observation homes, juvenile homes, special homes and after care homes.
They had also not taken up the required measures for observance of minimum standards for
institutional care or for the advancement of non-institutional care, such as foster care,
sponsorship, adoption, etc. The chasm between reality and the application of the law was felt all
the more with the adoption of the 1989 Convention on the Rights of the Child (CRC) and its
ratification by the Government of India in 1992. The provisions of the CRC with regard to
children in conflict with law were amplified in two other United Nations instruments - the United

Nations Guidelines for the Administration of Juvenile Delinquency (Riyadh Guidelines) and the
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules). Both
provide detailed directions about the processes to be followed by the juvenile justice system in
dealing with persons below the age of 18. The 1993 World Conference on Human Rights in
Vienna and the successive adoption of Vienna Declaration and Programme of Action which
urged States to ratify and implement promptly the CRC too made a definitive impact on all those
concerned with the plight of these children in India including the government.

Juvenile Justice (Care & Protection of Children) Act 2000

Taking a cue from all these developments, the government recast the JJA so that it could be in
consonance with the CRC and brought in a new Act, the 2000 Juvenile Justice (Care &
Protection of Children) Act. The passing of this Act endorsed the justice as well as the rights
approach towards children and moreover made use of a better terminology by providing for
juveniles in conflict with law and children in need of care and protection. It calls for keeping
both the categories separate pending their inquiries. This segregation aims to curb the bad
influence on the child who is in need of care and protection from the one who is in conflict with
law. The JJA 2000 brings about standardization in the definition of a juvenile or a child across
the country except for Jammu and Kashmir. A juvenile or child is a person who has not
completed eighteenth year of age. Juveniles in conflict with law include all those children
alleged to or found to have committed an offence. They are to be handled by the juvenile justice
board. Children in need of care and protection cover a range of at risk children to be dealt by
child welfare committee. While dealing with juveniles and children, it gave importance to their

respective families for tendering of advice and counselling. It furthermore introduced a wide
range of community placement options for juveniles and children. The 2000 Act, though passed
with good intentions, overlooked the inclusion of certain substantive and procedural due process
rights.

Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006

JJA 2000 was further amended in 2006 to make it clear that juvenility would be reckoned from
the date of commission of offence who have not completed eighteenth year of age thus clarifying
ambiguities raised inArnit Das vs State of Bihar [(2000] 5 SCC 488]. The amendment also made
it clear that under no circumstances, a juvenile in conflict with law is to be kept in a police lockup or lodged in a jail. In addition, it stipulated that the Chief Judicial Magistrate or the Chief
Metropolitan Magistrate is to review the pendency of cases of the Board at every six months, and
child protection units should be set up in states and districts to see to the implementation of the
Act.
National Human Rights Commission and Measures for Juvenile Justice System

The National Human Rights Commission (NHRC) is an embodiment of Indias concern for the
promotion and protection of human rights. Ever since the NHRC came into existence, it has been
concerned about the plight of juveniles who come in conflict with law and children who are in
need of care and protection. While the Law Division of the NHRC has been dealing with
complaints; the Policy Research, Projects and Programmes Division of the NHRC has been
monitoring the implementation of the related Act at the national level as well as studying and

recommending effective application of those international instruments that intend to improve the
overall functioning of the juvenile justice system in the country. Some instances of NHRC
intervention in this regard are given below.

Deaths and Rapes in Homes set up under JJA 1986

In September 1996, the NHRC called for information with regard to incidents of deaths and
rapes in Homes set-up under the JJA 1986 within 24 hours of its occurrence by writing to the
Chief Secretaries/Administrators of all the States/Union Territories. Later, in February 2002, the
NHRC modified its existing instructions on the subject directing that an inquest by a Magistrate
be conducted immediately in all cases of deaths in Homes and the report including comments
on possible medical negligence to be sent to the NHRC. In case of any allegation of
rape/unnatural offence on any inmate of the Home, a criminal case should be registered
immediately against the offending staff member/officer and a copy of the FIR and the
supervision note should invariably be sent to the NHRC. If any foul play is suspected in the
magisterial inquest, the post-mortem examination should invariably be done and the post-mortem
report sent to the NHRC. In all cases of death of an inmate where the initial inquest by a
Magistrate indicates some foul-play, magisterial inquiry should be made mandatory.

Escape of Inmates from Juvenile Homes

Under this broad head, the NHRC dealt with 87 cases, where its attention was drawn to the
escape of several inmates from the Beggars Homes/Juvenile Homes/Remand Homes situated in

different parts of Maharashtra. The Commission pointed out that it was the state governments
duty to take appropriate measures for the safe custody of the inmates. The escape of such a large
number of inmates was indicative of the fact that there were either serious infrastructural
deficiencies or that security arrangements were faulty.

The Commission directed that the state chief secretary should review the functioning of these
homes with a view to ensuring better care and avoiding the recurrence of circumstances leading
to such incidents (NHRC: Annual Report 1998-1999).
Illegal Detention of a Three-year-old Child for Ten Years
A former Member of Parliament drew the attention of the NHRC to the plight of a young girl
who had witnessed a murder, and was thereafter, detained in police custody for about ten years.
The NHRC immediately took note of the letter and called for a report from the Director General
of Police, West Bengal. The report of the Director General of Police stated that on 30 March
1990, the learned Magistrate, Nadia had ordered that one child, who was an eyewitness in a case
in which her father had allegedly murdered her mother, should be lodged at Liluaha Home and
produced in the court, as and when required. She was last produced in the court on 20 September
1996, wherein she failed to identify the accused. In 1992, she was shifted from Liluaha Home to
a Child Care Home (run by an NGO) on the orders of an IAS Officer who was also the ex-officio
Director of Social Welfare Department, West Bengal, for proper upkeep, schooling, protection,
care and further rehabilitation of the concerned child. However, when the said NGO approached
the learned court for approval of transfer, the learned Sessions Judge termed the act as highly
irregular and asked for an explanation from the Director of Social Welfare for having transferred
the child without prior approval and intimation to the court. Subsequently, she was again sent

back to Liluaha Home. Through its memo dated 1 September 1997, the Social Welfare
Department once more directed transfer of the child to a government approved/recognized NGO
Child Care Home for her education, care and rehabilitation. The report stated that the court had
not passed any order so far.
The Commission expressed its shock at the inhuman and apathetic manner in which the case was
handled by the police and other authorities. It found the very idea of retaining a girl child, who
was only three years old at the time of the incident, and considering her competent to be a
witness in a court of law, and keeping her waiting for the commencement of the trial for ten long
years, as shocking. The appalling lack of interest shown by the authorities in the welfare of the
innocent child resulted in depriving her of her normal childhood which could never be regained.
No amount of compensation, the Commission felt, would be adequate for the loss she had
suffered. However, it recommended to the Government of West Bengal to ensure that the child is
suitably rehabilitated and educated in an SOS Childrens Home or sent to a reputable institute
run by an NGO in or around the city of Calcutta, till she became a major. The Commission also
recommended that a sum of Rs.50,000/- be deposited in her name through a court guardian, the
interest of which would be paid to the institute looking after her, and the principal amount to be
released to her on her becoming a major to enable her to settle in life. Thereafter, a compliance
report from the Government of West Bengal was received in the matter (NHRC: Annual Report
1999-2000).
Other Measures
In October 2005, when the Registrar General of the High Court of Patna informed the NHRC
that the implementation of the JJA 2000 was extremely poor in Bihar, the NHRC once again
directed that the matter of juvenile justice be reviewed expeditiously in each state and union

territory. Prior to this, the NHRC in collaboration with an NGO (Socio-Legal Information
Centre, New Delhi) had undertaken a study concerning the implementation of the JJA 2000 in 16
states. Its findings revealed that the implementation of the JJA 2000 was poor in all its aspects
and needed to be strengthened.

The NHRC organized a two-day National Conference on Juvenile Justice System in India on 3
and

February

2007

in

New

Delhi.

The

Conference

made

number

of

recommendations/suggestions to improve the functioning of the juvenile justice system in the


country. It laid stress on the implementation of the JJA 2006 in both letter and spirit, urging the
states/union territories to establish the required infrastructure under the juvenile justice system to
ensure that there is zero pendency and that the inquiry is completed within the stipulated period.
It also emphasized on providing requisite care to ensure protection, growth and development of
children, both in conflict with law and in need of care and protection.

JUSTICE AND THE JUVENILE

Calls to dilute the Juvenile Justice Act in light of what is perceived as lenient punishment to the
juvenile offender in the Delhi gang rape case are understandable but misplaced. The crime shook
the countrys conscience, brought forth an unprecedented outpouring of anger and triggered
collective introspection on the safety of women and girls. But even though there is a view that
the young perpetrator has been able to get away lightly, this is not reason enough to question or
do away with the principles underlying juvenile justice. Separate legislation has existed in many
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countries around the world since the early 20th century for the care and protection of children,
including child offenders. The present system in India was introduced by a 1986 Act and
improved upon in 2000. The JJ Act, 2000, a progressive legislation, replaced the regular judicial
process with a reformatory regime, favouring supervised probation or stay in an observation
home over imprisonment. The law tries to reform a young offenders conduct rather than confine
him for decades in a prison with adult criminals, which only works to fan recidivist tendencies.
While refusing to allow the Delhi gang rape juvenile offender to be tried as an adult, the
Supreme Court pointed out in its order that underage crime still forms only a tiny percentage of
the large body of crime in the country. However, merely going through a differential process for
juvenile offenders is not enough. It is obvious that the social contract underlying a lenient regime
requires equal attention to be paid to the design and implementation of a proper rehabilitation
process. Society will only countenance shielding young offenders guilty of great brutality from
the rigours of adult justice if it is confident that they will indeed benefit from the rehabilitative
approach to juvenile justice. In India, we need to guard against the complacent belief that a stint
in a remand home is enough for their rehabilitation. The atmosphere in many such facilities is not
conducive for reformation, and in fact may toughen or entrench criminal propensities. The
system should not end up creating a new underclass that combines a sense of triumph over
avoiding a prison term after committing heinous crimes, with the psychological effects of staying
under bleak, hope-denying conditions. Making juvenile correctional facilities more humane is
one part of the answer. But to address the need for proportionality not so much in punishment
as in the necessity of socio-psychological repair when a young offender commits truly
heinous crimes, a longer period of sustained counselling and rehabilitation ought to be an
essential part of the juvenile justice process even after the maximum period of remand is over.
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DIVERSE JUSTICE STANDARDS AND DIVERSIFICATION OF LIABILITY: THE


NEED
Children need love, especially when they do not deserve it.
-

Harold S Hulbert, child psychiatrist

Prescribing different treatment for juvenile offenders is an offshoot of the new penology, which
came to be applied with the realization that courts, procedures and prisons meant for adult
offenders could hardly be expected to serve the interests of juvenile offenders. Erstwhile system
exposed delinquents to contamination due to incarceration with other criminals. The nations
future citizens deserve compassion and best care. A child is born innocent, and responsibility
should be attributed to such environmental factors that have stirred his criminal tendencies,
whose removal might mould him into a person of stature and excellence.
The childs diminished legal capacities can be traced to the writings of thinkers like Locke. Since
antiquity he was exempted from the demands of utilitarian principles, subjected to different
standards of moral evaluation. John Stuart Mill extended the applicability of his doctrine only to
humans in the maturity of their faculties, emphasizing that those in a state to require being taken
care of by others, must be protected against their own actions and eternal injury. Fairness and
justness to children demands that their liability be diminished, that expecting the same maturity
and behaviour standards from the children as adults would be like treating unequals as equals,
and also ordains- as opined by John Rawls- that they must be subject to protective and restorative
measures as are most conducive to their societal re-integration.
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INTERNATIONAL LAW REGIME


The erstwhile League of Nations (1924) and the United Nations (1959) had adopted Declarations
on the Rights of Children- significant but non-binding. The seeds for the right-based approach
were sown in the ICCPR 1966. The eloquent evolution of the juvenile justice system has
culminated in the Convention on the Rights of the Child (CRC) 1989, a legally binding
instrument. It brings those less than 18 years of age under the ambit of the term children.
Articles 37 and 40 specifically and when read with the General Comment No.10, Childrens
Rights in Juvenile Justice, lay down a comprehensive mechanism that States must comply with,
taking note of the overall framework of the CRC and its main umbrella rights. The aforesaid
provisions must be read with the following international guidelines:
Beijing Rules 1985;
Riyadh Guidelines 1990;
JDL Rules 1990;
Tokyo Rules 1990;
Guidelines for
Action on Children in the Criminal Justice System, ECOSOC Resolution 1997;
Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC
resolution 2005;
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Justice in Matters involving Child Victims and Witnesses of Crime, ECOSOC


resolution 2005.
Preventing juveniles from coming into conflict with law in the first place and complete
rehabilitation by the time they leave the system is sought through alternative measures of
Diversion and Restorative Justice.
INDIAN SCENARIO
Tracing the Evolution of the Law
Pre-Independence Era
Differential treatment for children can be traced as far back as the Code of Hammurabi in
1790BC, the responsibility for their supervision and maintenance being vested on the
family. During the colonial regime the first center for destitute children called Ragged
School was established in 1843 by Lord Cornwallis. The period between 1850 and 1919,
marked by social and industrial upheavals, called for the enactment of the Apprentice Act
(1850), the IPC (1860), the CrPC (1861), and the Reformatory Act (1876 and 1897),
announcing the paradigm shift in the penal philosophy in India from punitive to
reformative.
As the country moved towards independence, recommendation to establish a special childrens
Act came from the Indian Jail Committee (19191920). Individual provincial governments chose
to enact separate legislation for juveniles in their respective jurisdictions; provinces of Madras,
Bengal and Bombay passed their own Children Acts in 1920, 1922 and 1924, respectively.

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Post-Independence Era
The Constitutional Scheme on the Protection of Juveniles
Article 15(3) enables the State to make special provisions for children. Entitlement to free
and compulsory education up to14 years has been read into Article 21. Articles 23&24
further enshrine fundamental protections and Article 45 is supplementary to Article 24.
Article 24 in turn supplements the Article 39(e)&(f) thus ensuring distributive justice to
children in the matter of education.
Indias International Commitments and National moves on the issue
The second UN Congress on the Prevention of Crime and Treatment of Offenders at
London resulted in the enactment of the Central Children Act, 1960, followed by a
National Policy in 1974. India ratified the CRC in 1992; introduced a National Charter in
2003 and a National Plan of Action in 2005; and ratified in 2005 the CRCs two optional
Protocols besides signing the SAARC Conventions. The concern over the issue is
reflected in the report of the Working Group on Development of Children for the
Eleventh Plan (2007-12) of the Planning Commission.
The CCA was replaced by Juvenile Justice Act, 1986, in conformity with Beijing Rules,
which was thereafter repealed by the Juvenile Justice (Care and Protection of Children)
Act 2000, amended in 2006. It has established the Child Welfare Committee to address
the needs of children in need of care and the Juvenile Justice Board to deal with
children in conflict with the law.

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PORING OVER A FEW RELEVANT CASE LAW/AGE OF JUVENILES


Sanjay Suri v. Delhi Administration1 proposed a separate structure to keep juveniles. The
issue of age of commission of offence has been elucidated under Sec.7A of JJAct, and
discussed in the noteworthy cases of Bhoop Ram v UP 2, Gopinath Ghosh v West
Bengal3 and Bhola Bhagat v Bihar4. Age determination is of paramount importance to
find out whether the accused falls under the purview of the JJA and accurate recording of
the same is essential for deciding the duration of institutionalization. In Jaya Mala v.
Home Secretary, Government of J&K5, the apex court noted that the margin of error
radiological ascertaining is about two years. Validity of medical evidence was discussed
in Sunil Rathi v. U.P.6The issue of high pendency of cases was taken up in the case of

1 AIR 1988 SC 414


2 (1989) 3 SCC 1
3 AIR 1984 SC 237
4 AIR 1998 SC 236
5 AIR 1982 SC 1297
6 2006 (9) SCC 603
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Sanat Sinha v Bihar7, and addressed by the insertion of Sec.14(2).Several directions were
issued to the Governments in Vishal Jeet v. UOI8 for eradicating the child prostitution and
for providing adequate rehabilitative homes.
A note of caution has been struck in regard to the apt interpretation of the beneficial legislation in
Pratap Singh v. Jharkhand9
IMPLEMENTATION RHETORIC: THE ROAD AHEAD
Despite the elucidation of comprehensive beneficial schemes for children, implementation is
defective. Appropriate training is absent; theres tussle in granting bail to the delinquents, serious
accountability concerns, and overall apathy. There are unprecedented incidents of police brutality
and abuse in the Observation Homes, along with incompetence and delay on the part of
probation officers.
Attempts have been made to ensure enforcement by drafting Model Rules 2007 as an addendum
to the Act and by creating an Integrated Child Protection Scheme. A ray of hope glimmers in the
form of the Protection of Children from Sexual Offences Bill 2011, which not only aspires to
curb the sexual atrocities against our children, but also to rein the media by prohibiting
comments on child, either accused or victim of an offence, which may lower character or
infringe privacy. It is high time now that the social workers take up the role of a friend, adviser,

7 1991 (2) Crimes 241


8 (1990) 3 SCC 318
9 AIR 2005 SC 2731
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reformer and healer simultaneously, and NGOs come forward to seek charge of juveniles
pending or on completion of inquiry.
CURRENT SCENARIO IN OUR NATION
In our country the time has come in order to bring some reform in the Juvenile laws as there is a
steep rise in serious crimes involving youth of 16 18 years of age and they very well know that
below 18 years is the 'getaway pass' for them from the criminal prosecution. The punishment
should be made a bit deterrent in order to inject the feeling of fear in the mind of the criminal.
The recent rape case of "Nirbhaya" has caused utter dismay, concern and outrage amongst the
people. The gruesome act of brutalizing her with an iron rod was done none other but by a
juvenile and he has been sentenced for a period of 3 years as per Section 15 of JJ Act, 2000 as
per our law for juveniles. The principal ought to have been followed for trying juvenile offenders
is that Juvenility should be decided as per the state of mind and not just the state of body.
In our country it's a general trend to get our age reduced by 2-3 years at the time of matriculation
so even if the offender is above 18 years but on record he is a juvenile as per his birth certificate
then he would be treated as a juvenile. In the recent Nirbhaya's rape case all the other coaccused are awarded death sentence but the person who committed the most brutal part of the
case has been awarded a mere 3 years of remand as per JJ Act, 2000.
JUVENILE JUSTICE ACT 2000
The Juvenile Justice (Care and Protection of Children) Act, 2000 is the primary legal framework
for juvenile justice in India. The Act provides for a special approach towards the prevention and
treatment of juvenile delinquency and provides a framework for the protection, treatment and
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rehabilitation of children in the purview of the juvenile justice system. This law, brought in
compliance of Child Rights Convention 1989, repealed the earlier Juvenile Justice Act of 1986
after India signed and ratified Child Rights Convention 1989 in year 1992. This Act has been
further amended in year 2006 and 2010. Government of India is once again contemplating
bringing further amendments and a review committee has been constituted by Ministry of
Women and Child Development which is reviewing the existing legislation. Recent 16 December
2012 Gang rape incident in Delhi has raised a popular demand for amending this law to allow
harsher punishments to children involved in serious offences.
JJ Act is considered to be an extremely progressive legislation and Model Rules 2007 have
further added to the effectiveness of this welfare legislation. However the implementation is a
very serious concern even in year 2013 and Supreme Court of India is constantly looking into the
implementation of this law in Sampurna Behrua Versus Union of India and Bachpan Bachao
Andolan Versus Union of India. In addition to Supreme Court, various High Courts in India,
specifically Bombay High Court and Allahabad High Courts are also monitoring implementation
of JJ Act in judicial proceedings. In order to upgrade the Juvenile Justice Administration System,
Government of India launched Integrated Child Protection Scheme (ICPS) in year 2009-10
whereby financial allocations have been increased and various existing schemes have been
merged under one scheme.
A separate petition titled Deepika Thusso Versus State of Jammu and Kashmir is also pending
consideration before Supreme Court on implementation of Juvenile Justice Act, 1997 which is
applicable in the State of Jammu & Kashmir.

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Based on a resolution passed in year 2006 and reiterated again in 2009 in the Conference of
Chief Justices of India, several High Courts have constituted "Juvenile Justice Committees"
which are monitoring committees headed by sitting Judges of High Courts. These Committees
supervise and monitor implementation of Juvenile Justice Act in their Jurisdiction and have been
very effective in improving state of implementation. Juvenile Justice Committee of Delhi High
Court is considered a model in this regard.
JUVENILE JUSTICE AMENDMENT ACT 2006
In this act a child or juvenile is defined as a person who has not completed his/her 18th year of
age. It outlines two target groups: Children in need of care and protection and Juveniles in
conflict with law. This act protects not only the rights of children, but a person's rights when
he/she was a child. Meaning that if a crime or an incident took place while the person was a
child, and then during the proceeding the juvenile ceased to be of age the case would continue as
if the juvenile has not turned eighteen yet.

The second chapter of the Act addresses Juveniles in Conflict with Law (JCLs). This section
calls for the establishment of Juvenile Justice Boards (JJBs) where the State Government sees fit.
JJBs must contain a Metropolitan or Judicial magistrate and two social workers where one of the
workers must be a woman. The magistrate is required to have a background in child psychology
or child welfare. JCL cases can only be heard in the JJB and not by another court. The powers of
the JJB can be exercised in a High court or Court of Session when an appeal has been made as
part of the act, the state is required to set up a number of institutions where the needs and

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protection of juveniles may be fulfilled. For the reception and rehabilitation of JCLs the state
must set up Observation Homes and Special Homes in ever district or group of districts. The
state may directly set up these homes or contract a voluntary organisation to do so. Observation
homes are for institutions for juveniles while their proceedings are underway. After the
proceedings of a particular case are complete, the JJB may decide that the rehabilitation of the
child is not complete and hence place them in a Special home for no longer than three years.
Juvenile Justice (Care and Protection of Children) Act 2000

When a police officer comes in contact with a juvenile he must place the child with the Special
Juvenile Police Unit (SJPU) who must report the child to the board without delay. Bail is
available to juveniles in all cases as long as the Board find the release of this child will not place
him in any danger or in the influence of criminals. If the child is not released on bail he is only to
be placed into the custody of an Observation Home. The SJPU are responsible for informing the
juvenile's parents of the arrest, as well as inform the Probation Officer who will make the
necessary enquires about the child.

The JJB must make an inquiry into the case and if they determine the child is guilty of the crime
then they may release the child after advice and counselling. The child can be released either to
his parents/guardians or into an institution, with or without a bond. The Board may also make the
child pay a fine (if he is above fourteen and earns) or complete hours of community service. A
social investigation report from the probation officer is required for the child to be discharged.

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The probation officers may be required to continue a follow up of the child even after discharge.
A child can not be charged with the death penalty, imprisonment which can extend to life
imprisonment or committed to prison for inability to pay a fine or providing a security for the
bond.

Under this act juvenile cases can not be processed with non-juvenile cases. A juvenile can not be
rendered unfit or 'disqualified". Juveniles are not exposed to the media as magazines, news
papers and visual media are not permitted to release the information about the juvenile. Juveniles
who run away from the Observation or Special homes can be brought back without a warrant and
without punishment. Cruelty (such as assault or neglect) towards juveniles in the home or by any
person in charge of him/her is a punishable offence. This act also has provisions to penalize
people who exploit children for a crime. A person, who employs a child in a hazardous industry,
employs him/her for begging or provides a child with drugs or alcohol is liable to serve prison
time and pay fines.

Chapter III address Children in Need of Care and Protection (CNCP). In place of a JJB, CNCP
cases are heard by the Child Welfare Committee (CWC). The committee is meant to have a
chairperson and four other members of whom at least one should be a woman and at least one
expert in children's issues. The purpose of the CWC is to provide for the care, treatment,
protection, rehabilitation and development of the child and in doing so uphold the rights of the
child. The child may be brought in front of the CWC by a police office, public servant, social

22

worker, CHILDLINE, the child or anyone public citizen. The committee may commit a child to
the Children's home or a Shelter home if the child has no immediately available family or
support system.

Like in the case of JCL, CNCP are provided with Children's Homes and Shelter Homes. The
state may directly set up these homes or contract a voluntary organisation to do so. Shelter homes
are for children whose family can not be located or whose case has been completed. Children
who come from a different area or state are meant to be transferred to an institution and CWC
that is closest to his/her residence. The main aim of this system is to restore the child to his
family or family environment after determining the safety of the environment.

The fourth chapter discusses the importance of rehabilitation and social integration as the
purpose of this act. This section discusses certain non-institutional solutions such as adoption,
foster care, and sponsorship. Orphaned and abandoned children are eligible for adoption. The
CWC may declare a child fit for adoption and refer him/her to an adoption agency (set up by the
government) for placement. Foster care in this act is only for looking after infants before
adoption takes place. Sponsorship programmes are to help provide supplementary educational,
nutritional, medical and other services to families, guardians, and homes. After-care
organisations are also to be set up to take care of children after they leave the homes. Juvenile
Justice (Care and Protection of Children) Act 2000

23

The last chapter of the act contains many miscellaneous provisions. Some of the notable
provisions are as follows. The act allows for children with special needs such as a mental or
physical disease to be given the necessary attention at an approved institution that specialises in
the form of care. Under this act the government can set up advisory boards at different levels to
advise them about various implementation aspects of the act. The JJB and CWC have the
authority to release a child to his/her parents or give the child leave because of a death in the
family, a wedding, a school examination, etc. For the carrying out of this act, the state shall
create a Child Protection Unit, whose officers are responsible to ensure that the act is properly
implemented. Rules for this act are to be made by each State Government.

JUVENILE IN CONFLICT OF LAW(PROVISIONS IN DIFFERENT LAW)


The term 'children in conflict with the law' refers any person below the age of 18 who has come
in contact with the justice system as a result of committing a crime or being suspected of
committing a crime. Most children in conflict with the law have committed petty crimes such as
vagrancy, truancy, begging or alcohol use. Children in Conflict with LawSome have committed
more serious offenses. Some children are coerced into crime by adults who use them as they
know they cannot be tried as adults. Often prejudice, stereotyping and discrimination brings
children into conflict with law without a crime being committed. More than 1 million children
worldwide are detained by law officials. In institutions children are often died access to medical
care and education which are part of their rights. In 2002, 136,000 children in the Central and

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Eastern Europe and the Commonwealth of Independent States were found guilty of criminal
offenses, compared to 117,000 in 1990. Russia accounted for 65% of these cases.

In India the number of cases of juvenile delinquents has increased from 17,203 in 1994 to 30,943
in 2004. The crimes committed by juveniles have also seen an increase in the same period from
8,561 to 19,229. Some of the increase can be attributed to the definition of juveniles being
changed to include ages 16-18, but none the less more and more children are coming into
conflict with law in the 16-18 age group.

There are various reasons why children end up committing crimes. About 64% of cases in 2004
were children who had no education or only education up to primary level. Children living with
parents/guardians accounted for 76.6% of the total juveniles arrested. The number of homeless
children arrested for various crimes was only 7.5%. Juveniles usually come from poor families
earning less than Rs. 25,000 a year (72.3%). Often children are victims of crime as they are used
for begging, drug peddling, and prostitution.

A major area of concern is the rise of juvenile crimes in the overall crimes committed in the
country. In 1994 juvenile crimes amounted to 0.5% of all crimes committed. In 2004 that number
has doubled to 1%. The Juvenile Justice system has gives rise to many child rights concerns as
children are often denied bail for petty crimes, the responsible stakeholders do not carry out

25

proper social investigations, the conditions in the homes is often unsafe and inhumane, and
juvenile justice boards are not child friendly and functions like an adult court.

With an increasing crime rate in the country as well as increasing number of people being
imprisoned either as part of their sentence or waiting trial there is need to consider the needs of
children whose parents have been imprisoned. Judicial proceedings or police arrests need to take
into account the larger unintended consequences of penal sanctioning. The detainment of parents
severely reduces families and communities economic and social abilities to successfully raise
children. It also leaves the child in long periods of uncertainty and instability. This is especially
seen with illegal immigrant families whose children spend months sometimes years in children's
homes awaiting the release of their parents. Children in Conflict with Law

According to HAQ: Centre for child rights there has been a 7.9% increase in crimes committed
by children between 2003 and 2004. In 2005 there was an 11.3% increase in crimes by children.
There has been an increase especially in certain kinds of crimes which is a grave concern such as
rape (by 11.9%), death due to negligence (150.8%), robbery (39.6%), attempt to murder (30.7%),
preparation and assembly for dacoit activities (27.6%), auto theft (18.6%) and murder (15.9%) is
a matter of concern. Surprising is the increase in number of cases of girls being charged with
rape. As most crimes are committed by juveniles from poor families they should also fall under
the children in need of care and protection category and should be treated as such. The main
legislation that deals with juveniles is the Juvenile Justice Act, 2000.

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GAPS IN TRANSLATING LEGISLATION INTO PRACTICE

The condition of children entering the Juvenile Justice system throughout India is one of a
marked disconnect between ideal and reality. The Government of India is committed to the
values and principles of the UNCRC. However, the existing legislation is incompatible with the
childrens rights framework established by the UNCRC. CWC has carried out a detailed
comparative analysis between the provisions in the UNCRC and the JJ Act 2006. This analysis
indicates several gaps a the level of the legislation itself in terms of upholding childrens rights.

On the ground, police brutality against children, abuse in Government Homes and unjustifiable
periods of detention of children typify a system unable to effectively secure childrens basic
human rights. In addition, a lack of training and accountability has led to poor implementation of
childrens rights at all levels. Case backlog, untrained staff, and inadequate facilities are the
hallmarks of a juvenile justice system that is detaining children for extended periods of time
without regard to the costs of institutionalisation and the overall preference for diversion.
Children report abuse by police and staff at each step in the process, as well as high incidence
levels of corruption and bribery. Staff of Government, Observation and Special Homes lack any
codes of conduct and do not have to abide by any explicit child protection guidelines. The
deplorable conditions in the Childrens Homes have led children to even attempt suicide.

27

Further, there are limited ways of enforcing accountability of decisions made by the Child
Welfare Committees and Juvenile Justice Boards. The lack of mens rea for children has also
meant the lack of a determination of innocence or guilt, leaving children in extensive legal
proceedings without any way to combat their incarceration. Overall, there is a complete absence
of childrens voice in the entire procedures followed under the JJ Act. CWC has analysed the JJ
Act and the Model Rules released by the central government from the point of view of childrens
participation.

ACTIVISM AND ADVOCACY

CWC has maintained presence at the Government Boys and Girls Homes in Bangalore city and
the Government Childrens Home in Udupi over the past several years. As a former member of
the Child Welfare Committee in the Udupi Childrens Home, CWCs Executive Director
Damodar Acharya was able to bring about major changes in the way the Home is run, while
introducing processes to ensure childrens voice in decisions concerning their lives.

28

At Bangalore, CWC has exposed the severe irregularities of the entire JJ system, right from the
police force to staff at Government Homes and members of Child Welfare Committees. A few
major interventions are detailed in the documents below where CWC has played the role of
watch-dog, intervened in rehabilitation efforts and provided recommendations for systemic
change.

Case study on repatriation of a Bangladeshi boy and related recommendations


Complaint lodged with Department of Women and Child Development and Karnataka State
Commission for Protection of Child Rights against sexual abuse of resident girls by Balakrishna
Masali, a member of Child Welfare Committe in Bangalore Girls Government Home.
Complaint lodged with Child Welfare Committee, Department of Women and Child
Development and Karnataka State Commission for Protection of Child Rights against extensive
rights violations in the rescue of 15 girls from Andhra Pradesh in February 2010.
Further, CWC is represented on a national level committee on amending the Juvenile Justice Act
2006 and submitted detailed recommendations. This is a significant space for CWC to contribute
recommendations and directly influence legislation.
LEGAL INTERVENTIONS

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A Public Interest Litigation (PIL) was filed in the Karnataka High Court calling for action
against extensive child rights violations in the Bangalore Observation Home in early 2012. CWC
petitioned to be heard as an impleading party in this PIL based our experience with the Juvenile
Justice system. Our overall plea was to expand the scope of the initial PIL to include all aspects
of the Juvenile Justice system in Karnataka and prioritise them as short-term and long-term goals
for change. Ashraya was another NGO heard in proceedings of this case. CWC was heard by the
Honourable Chief Justice along with the other petitioners over the course of three hearings and
made the following submissions to the High Court:
SPECIFIC PLEAS MADE BY CWC
The Court passed a final order to set up a High Court Committee to look into aspects of the
Juvenile Justice system in Karnataka state in a consistent and ongoing manner. CWC is one of
the three NGO members on the Committee chaired by four sitting High Court judges. Our
advocacy for systemic changes in JJ continues through our active participation in this
Committee.
REFORMING THE JUVENILE (HOMES) FIRST
The whole country is outraged at the recent judgment by the juvenile court in the Delhi rape
case. The teenage criminal has been awarded the maximum punishment under the present laws.
He has been sent to a reform home for juveniles for three years. Now that he is already serving
the sentence, let us look at the reality of these reformation homes. What do these reformation
homes do to truly reform juveniles in conflict with the law?

30

As a researcher working primarily on child protection policies, I have often found that while
most policies are well intentioned and intricate in their design, they face severe implementation
deficits. Juvenile reformation homes or "observation homes" in India suffer from multiple
shortfalls. While on paper, they are ideal spaces meant to reform juveniles and rehabilitate them
into the society; their reality is rather sordid. Characterised by crumbling infrastructure, these
places display decrepit standards of hygiene. The food and clothing provided is sub-standard.
Basic facilities such as bathroom and bathing facilities are abysmal. Many face a shortage of
staff.

All this, however, pales in comparison to the fundamental problem with these reform homes. A
terrible understanding of detention among the staff, which translates into treating those inside
as criminals without investing in their education, reformation or ensuring that they understand
the nature of their crime, means that the environment required to reform a person is absent.
These homes rarely possess adequate trained staff, counselors and psychiatrists, who can
clinically attempt to help reform the juvenile. Bullying and in-fighting dominate these
observation homes. Juvenile criminals usually participate more frequently in petty crime within
the confines of these homes than undergo reform. A recent study by the Asian Centre for Human
Rights labels juvenile homes as Indias hell holes because of the predominance of child sexual
abuse that takes place within their confines. In almost all the cases recorded on the report, a
member of the staff of the home carried out the sexual abuse, be it security guards, managers,
cooks, wardens or others. On interaction with the inmates of the homes, I found that none of
them are usually aware of the nature of their crime and are blankly living within the confines,

31

serving their sentence and waiting to leave it after completion of their sentence. Frankly, these
observation homes as they exist today are the last place that can reform juveniles.

A colossal problem in India, when it comes to child protection and juvenile justice, is the
dichotomy between our laws and policies on paper and their implementation. The main policy
for child protection in India is the Integrated Child Protection Scheme (ICPS). This policy covers
every aspect of child protection and rehabilitation in the country and looks at children in need of
care and protection along with juvenile in conflict with the law. Though well intentioned, its
implementation faces many problems that can be easily solved if adequate attention is paid to
these areas. Administrative problems, such as lack of updated data and regular reporting, choke
the system. Instead of augmenting the budget allocations to create a robust system of child
protection, the ICPS faced a reduction by 100 crores-- 25 percent of its total budget this year. The
300 crore allocated at present is not enough to adequately cover the policy let alone create a
scope for reforms. Moreover, there are multiple stakeholders involved in child protectionthe
Department of Woman and Child Development, the Child Welfare Committees, the Juvenile
Justice Boards, the various government departments (Labour, Health and Education), the police
and the NGOs dealing with children. Each of these operates in its own silo, resulting in a lack of
collective understanding of child protection. All this adds to a fragmented perceptions and
consequently poor implementation.

The verdict the Delhi rape case demonstrates all that is wrong with our juvenile justice system.
Given the current juvenile justice system, one cannot pick a flaw with the verdict in itself, the
criminal has been handed over the harshest punishment possible within the confines of this
32

system. Therefore the problem is not with this verdict per se, as much as it is with the system. We
can't ask for the change in the sentence for this one case alone. We need to divert our attention
and energy in demanding a complete reform of the juvenile justice and child protection system.
Many suggestions have been made to prevent a repeat of the judgment in the Delhi rape case.
Perhaps, in dealing with a heinous crime, the spirit of the law needs to take precedence over the
strict letter of the law. But such a decision would not pass muster with India's higher courts.
Others have suggested bringing the age of child for criminal acts back to 16, which it was before
2000 when India changed it to 18 in accordance with the United Nations Convention on the
Rights of a Child.

My personal suggestion is that our laws need to re-define children as individuals below the age
group of 16, and define those within the ages of 16 and 18 as adolescents. 64 percent of all
juvenile criminals fall under the age group of 16-18 years. A classification of adolescent would
not automatically mean handing out harsher sentences for juvenile offenders between the ages of
16 and 18, or abandoning those in genuine need of care and protection. It would mean
recognising that this segment of the population is neither child nor is it at par with adults. It
should therefore be treated legally on a case-by-case basis.

The arguments opposing the lowering the age of a child or creating a category for adolescents are
particularly misplaced. The real issue that needs our attention is not the legal age of the juvenile.
The issue that needs our urgent attention is the state of these reform homes. Whatever be the age
of the juvenile, do these reform homes today truly help in reforming juveniles in conflict with the

33

law? Are juveniles being given a fair chance to reform? Are the correctional facilities adequate to
ensure that its inhabitants don't turn into adult criminals once they leave its confines?

Reforming the juvenile observation homes is the first step in reforming the system of child
protection and juvenile justice. These homes have to be created as holistic spaces, where
juveniles in conflict with the law find themselves converted into responsible adult citizens. Mass
outrage can be a good thing, especially in a country like ours. But we cannot allow outrage to
blind our rationality. Our outrage must move beyond one particular case and one particular
judgment. It must work towards totally reforming the present structures of dealing with juveniles
in conflict with the law.

CHILD RIGHTS
The National Commission for Protection of Child Rights (NCPCR) was set up in March 2007
under the Commission for Protection of Child Rights Act, 2005, an Act of Parliament (December
2005). The Commissions Mandate is to ensure that all Laws, Policies, Programmes, and

34

Administrative Mechanisms are in consonance with the Child Rights perspective as enshrined in
the Constitution of India and also the UN Convention on the Rights of the Child.
WHO IS A CHILD
According to international law, a child means every human being below the age of 18 years. This
is a universally accepted definition of a child and comes from the United Nations Convention on
the Rights of the Child (UNCRC), an international legal instrument accepted and ratified by most
countries.India has always recognised the category of persons below the age of 18 years as
distinct legal entity. That is precisely why people can vote or get a driving license or enter into
legal contracts only when they attain the age of 18 years. Marriage of a girl below the age of 18
years and a boy below 21 years is restrained under the Child Marriage Restraint Act 1929.
Moreover, after ratifying the UNCRC in 1992, India changed its law on juvenilejustice to ensure
that every person below the age of 18 years, who is in need of care and protection, is entitled to
receive it from the State.
What makes a person a child is the persons age. Even if a person under the age of 18 years is
married and has children of her/his own, she/he is recognised as a child according to
international standards.
While all children need protection, because of their social, economic, or even geographical
location, some children are more vulnerable than others and need special attention. These
children are:
# Homeless children (pavement dwellers, displaced/evicted, refugees etc.)

35

# Migrant children.
# Street and runaway children.
# Orphaned or abandoned children.
# Working children.
# Child beggars.
# Children of prostitutes.
# Trafficked children.
# Children in jails/prisons.
# Children affected by conflict.
# Children affected by natural disasters.
# Children affected by HIV/AIDS.
# Children suffering from terminal diseases.
# Disabled children.
# Children belonging to the Scheduled Castes & Scheduled Tribes.
WHAT ARE CHILD RIGHTS?

36

All people under the age of 18 are entitled to the standards and rights guaranteed by the laws that
govern our country and the international legal instruments we have accepted by ratifying them.
THE CONSTITUTION OF INDIA:
The Constitution of India guarantees all children certain rights, which have been specially
included for them. These include:
# Right to free and compulsory elementary education for all children in the 6-14 year age
group (Article 21 A).
# Right to be protected from any hazardous employment till the age of 14 years (Article
24).
# Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e)).
# Right to equal opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and guaranteed protection of childhood and youth
against exploitation and against moral and material abandonment (Article 39 (f)).
Besides these they also have rights as equal citizens of India, just as any other adult male or
female:
# Right to equality (Article 14).
# Right against discrimination (Article 15).

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# Right to personal liberty and due process of law (Article 21).


# Right to being protected from being trafficked and forced into bonded labour (Article
23).
# Right of weaker sections of the people to be protected from social injustice and all
forms of exploitation (Article 46).
Research, documentation and interventions by government and the civil society groups in the
past have clearly brought forth some of the following child protection issues and categories of
children that deserve special protection:
# Gender Discrimination.
# Caste discrimination.
# Disability.
# Female foeticide.
# Infanticide.
# Domestic violence.
# Child sexual abuse.
# Child marriage.
# Child labour.

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# Child prostitution.
# Child trafficking.
# Child sacrifice.
# Corporal Punishment in schools.
# Examination Pressure and Student Suicides.
# Natural disasters.
# War and conflict.
# HIV/AIDS.
In the efforts to improve the implementation of the Juvenile Justice System in the country
UNICEF is also supporting the government with the development of training materials for the
Judiciary and various other functionaries of the system like the child welfare committee
members, police and care-takers in the various institutions under the Act.

39

CONCLUSION
The JJ Act was passed in 2000 with the purpose of incorporating into domestic law Indias
obligations under international law as a signatory of the U.N. Convention on the Rights of the
Child of 1989, the U.N. Standard Minimum Rules for Administration of Juvenile Justice (1985)
(known as the Beijing Rules) and the U.N. Rules for the Protection of Juveniles Deprived of
their Liberty (1990). Underlying these international texts is the legal philosophy that juveniles
lack the physical and mental maturity to take responsibility for their crimes, and because their
character is not fully developed, they still have the possibility of being rehabilitated. This basic
principle underlies the juvenile justice systems in many countries, including the United States
and the U.K.

The JJA creates a juvenile justice system in which persons up to the age of 18 who commit an
offence punishable under any law are not subject to imprisonment in the adult justice system but
instead will be subject to advice/admonition, counselling, community service, payment of a fine
or, at the most, be sent to a remand home for three years.

However, the interest in protection of juveniles has to be balanced with the interest of protecting
particularly vulnerable members of society from violent crimes committed by persons under 18
years of age and amending the law when societal conditions radically change over time. As per

40

the reports of the National Crime Records Bureau (NCRB) entitled Crime in India 2011 and
Crime in India 2012, the percentage of crimes committed by juveniles as compared to total
crimes has not significantly increased from 2001-2012. According to the NCRB statistics, India
is not in the throes of a general crime wave by juveniles. However, the NCRB statistics relating
to violent crimes by juveniles against women are very troubling. Crime in India 2011 suggests
the number of rapes committed by juveniles has more than doubled over the past decade from
399 rapes in 2001 to 858 rapes in 2010. Crime in India 2012 records that the total number of
rapes committed by juveniles more than doubled from 485 in 2002 to 1149 in 2011.

As the data suggests, between 2011 and 2012 alone, there was a massive increase in instances of
rape by juveniles by nearly 300, which is almost as much as the increase in such cases over the
entire previous decade. This increase alone makes amendment of the JJA imperative.

Get tough approach

Several other countries such as the U.S. and the U.K., which are both signatories to the U.N.
Convention, have also faced an increase in violent crimes by juveniles but, unlike India, they
have taken action to amend their laws. Most States in the U.S. have enacted a juvenile code of
which the main objective is rehabilitation and not punishment. Juveniles appear in juvenile court
and not in adult court. Juvenile courts do not have the power to impose punishment and can

41

impose only rehabilitative measures or assistance by government programmes. However, since


the increase in violent crimes committed by juveniles in the 1990s, U.S. States have adopted a
get tough approach in response.

In most U.S. States, the jurisdiction of juvenile courts is automatically waived when a juvenile
above a certain age, usually 13 or 15, commits a violent or other serious crime, and the case is
automatically transferred to adult court. A certification hearing takes place and an adult court
prosecutor is required to convince the adult court that the case should be transferred. The
juvenile is entitled to an attorney at the hearing and to present any evidence which mitigates
against the transfer. For example, in Indiana, South Dakota and Vermont, children as young as 10
can be tried as adults. Californias Proposition 21 which was passed in 2000 allows prosecutors
to automatically try juveniles who commit felonies as adults. Under Michigans Juvenile Waiver
Law passed in 1997, juveniles can automatically be tried as adults.

Youth Court

Similarly, in the U.K., persons under 18 are tried by a Youth Court which is a special type of
magistrates court for those aged 10-18 years. The Youth Court can issue community sentences,
behavioural programmes, reparation orders, youth detention and rehabilitation programmes
which last three years. However, for serious crimes like murder or rape, the case starts in Youth

42

Court but is transferred to a Crown Court which is the same as a Sessions Court. The Crown
Court can sentence the child for offences of murder committed when the offender was a youth as
well as for grave crimes including sexual assault and sentence the child to indeterminate
detention for public protection.

The Crown Court can also give extended sentence to a minor. If a youth is jointly charged with
an adult, the charge is heard and tried by a regular court. If the youth is found guilty, the Crown
Court can impose a sentence which does not exceed the maximum sentence applicable to an
offender who is 21 years or older. Therefore, in both the U.S. and the U.K., juveniles who
commit violent crimes such as rape are prosecuted in the same manner as adults.

Even the U.N. Convention and the Beijing Rules do not prohibit subjecting children/juveniles to
the regular criminal justice system under certain circumstances. Article 40 of the U.N.
Convention provides that a child who has been accused of having violated the penal law shall
have the following guarantees: to be presumed innocent until proven guilty according to law, to
be informed promptly of the charges against him and to have legal or other appropriate assistance
in the preparation of his defence, to have the matter determined without delay by a competent
and impartial authority or judicial body, not to be compelled to confess guilty, and to examine
witnesses. Moreover, the state can establish a minimum age below which children shall be
presumed not to have the capacity to infringe the penal law. Therefore, in accordance with the
U.N. Convention, the JJ Act could have established an age limit, such as 14 or 16, below which a

43

person could not be deemed to have the capacity to commit an offence. In short, the U.N.
Convention does not prohibit prosecuting a child under 18 who has committed an offence under
the regular penal laws.
Unfortunately, the current system serves neither the purpose of rehabilitation nor deterrence
against future crime. As reported by India Today, there are 815 remand homes in India with a
capacity of 35,000. However, there are 1.7 million juvenile accused in India. Remand homes in
India are not conducive to the reform and rehabilitation of juveniles as envisioned by the
principles enshrined in international law. While rehabilitation is certainly an important legal and
societal objective, this interest surely has to be balanced with creating a legal deterrent to protect
women and girls from the increasing incidence of rapes by juveniles. Particularly in view of the
significant increase in rapes committed by juveniles since the JJ Act was passed, India should
consider amendment of the Act to transfer certain violent crimes such as murder and rape
committed by juveniles above a particular age to the adult criminal system.

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