Key concerns about the Juvenile Justice

(Care and Protection) Bill, 2014

Centre for Child and the Law,

NLSIU Bangalore
 One Step Forward: Giant Leap Back

1850 – 1920 1920 – 1986

- Apprentices Act, 1850
- Various Children Acts 1986 – present
(state laws) - JJ Act 1986
- Reformatory Schools Act,
- Central Children Act, - JJ Act 2000
1897
1960

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JJ BILL 2014
 Indian Jail Committee Report,
1919 - 1920
“the ordinary healthy child criminal is mainly the product of
unfavorable environment and that he is entitled to a fresh
chance under better surroundings. There is a general consensus

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of the opinion that as youth is the times when habits have not
become fixed, the prospects of reformation are then most
hopeful. From both points of view it has come to be agreed that
the child offender should be given different treatment from the
adult.”
Objectives
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

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of matters in the best interest of children and for their
rehabilitation through processes provided, and institutions and
bodies established.
Place of Safety

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 Is the foundation for this regressive
policy change sound?
• Statement of Objects and Reasons: “…increasing cases
of crimes committed by children in the age group of
16-18 years in recent years makes it evident that the
current provisions and system under the Juvenile
Justice (Care and Protection of Children) Act, 2000,
are ill equipped to tackle child offenders in this age

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group. The data collected by the National Crime Records
Bureau establishes that crimes by children in the age group
of 16-18 years have increased especially in certain
categories of heinous offences.”.
 2000
• CRC Committee criticized • CRC Committee urged India to
discriminatory definition of amend POTA to ensure juveniles
juvenile in JJ Act, 1986 are dealt with as per UNCRC
• JJ Act enacted
• Recommended India to clarify
• Juvenile = all persons below 18 that the date on which offence
years
was committed and not when the
juvenile was appreheneded is
relevevnt.
2000 2004
2006
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• Committee expressed concern
about the proposed amendment
and urged India to ensure that
• JJ Act amended to clarify that the Age of criminal resp in the Rules
date of reckoning will be the date
is respected and that children are
on which offence was committed not detained with adults.
and that the JJ Act will override
all other laws.
2014
 International Standards on
Juvenile Justice & Serious Offences
2000 Concluding Observations of the “…ensure that persons under 18 years are not tried as
Committee on Rights of the adults.”; “ensure that boys under 18 years are covered by
Child: India the definition of juvenile, as girls already are.”
2004 Concluding Observations of the “…deeply concerned that the POTA allows for the
Committee on Rights of the prosecution of children by special courts and that the
Child: India procedure used in these cases does not respect articles 37,
40 and 39 of the Convention.”
2007 General Comment No. 10 on “States parties which limit the applicability of their juvenile

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Children’s rights is juvenile justice rules to children under the age of 16 (or lower) years,
justice. or which allow by way of exception that 16 or 17-year-
old children are treated as adult criminals, change their
laws with a view to achieving a non-discriminatory full
application of their juvenile justice rules to all persons under
the age of 18 years.”
2014 Concluding Observations of the Give effect to the Juvenile Justice Rules of 2007 establishing
Committee on Rights of the the minimum age of criminal responsibility at 18 and
Child: India maintain it at an internationally acceptable level” and “In
cases where detention is necessary, ensure age-appropriate
separation of children in Observation and Special
Homes and that children in conflict with the law are
not detained together with children in need of
protection or with adults and that detention conditions are
 Important Recommendations
• Committee on the Rights of the Child has made recommendations to:
• 30 State Parties to abolish life imprisonment for child offenders.
• 50 State Parties to stop treating juveniles as adults and to amend
their laws to ensure that all children are dealt with under the
juvenile justice system.
• 106 State Parties to ensure the separation of juveniles from adults
during detention

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• The UN Human Rights Council has also called on States to ensure that
legislation and practices do not permit life imprisonment for offences
committed by persons under 18 years of age in two separate resolutions
and the UN General Assembly has encouraged States to consider repealing
all forms of life imprisonment including life imprisonment “with the
possibility of release for offences committed by persons under 18”.
• In January 2013, concern was expressed about the continued detention of
child soldiers by the US in detention facilities in Iraq & Afghanistan. US
was urged to ensure that “all children under the age of 18 be handled by
the juvenile justice system in all circumstances and presume young persons
to be children if in doubt regarding their age.”
Culpability Gravity of Offence

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Proportionality
Adolescents are neuro-biologically
distinct from adults
The pre-frontal cortex, which is responsible for important
functions such as planning, reasoning, judgment, and
impulse control, is the slowest to mature, a process that
completes at the age of 25. Our present science
establishes that younger people engage in risky behavior
precisely because of an underdeveloped brain.

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Juveniles are more susceptible to negative influences and
peer pressure, are less likely to focus on future
outcomes, are less risk-averse than adults, have poor
impulse control, and evaluate risks and benefits
differently all of which pre-dispose them to make poor
decisions.

Adolescence is a transient phase and “most young

people grow out of delinquency on their own as their
brains mature – if they are spared the trauma and lasting
stigma of juvenile incarceration.”
Heinous Offences (HO)
• HO = Offences for which the minimum punishment under the
IPC or any other law is imprisonment ≥ 7 years.
• The Bill has enlarged the net and increased the possibility of a
greater number of young people being dealt with as adults.
• Persons above 16 years can now face severe punishments even
for offences that are not against the body, such as trading in

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certain drugs, attempts to commit robbery armed with a weapon,
etc. They can also be tried as adults under the Protection of
Children from Sexual Offences Act, 2012 and the Indian Penal
Code for engaging in consensual sex with persons below the age
of 18 years.
 Percentage of Juvenile Crimes to
Total Crimes, 2013
1.2%
Juvenile Crimes Crime in India

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98.8%

• From 2003-2013, the percentage of juvenile crimes to total crimes has marginally
increased from 1.0% to 1.2%.
• The percentage of juvenile crimes to total crimes remained constant at 1.2% in 2013.
Juveniles between 16-18 years apprehended for
murder and rape in 2013
Juveniles
between 16
1.30% and 18 3.29% Juveniles
years between 16-
apprehende 18
apprehende

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d for
murder d for rape
Others Others
98.69%
arrested for 96.71% arrested for
murder rape
Children between 16-18 years apprehended for
‘heinous offences’ in 2013

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Consider:
• A significant number of cases of rape and kidnapping include
‘love’ cases and consensual elopement. A recent analysis by The
Hindu of 600 cases of sexual assault before the Delhi District
Courts revealed that “Of the cases fully tried, over 40% dealt
with consensual sex, usually involving the elopement of a young
couple and the girl’s parents subsequently charging the boy with

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rape. Another 25% dealt with “breach of promise to marry”.”
• Children will be seen as status offenders under POCSO Act.
• Data on juveniles apprehended for consensual sex under POCSO
Act and IPC is not yet available.
• Numerous instances of children being falsely apprehended by
the police cannot be ignored.
Implication of preliminary inquiry on rights
of juveniles
• JJB has to assess whether a child has the physical and mental
capability to commit the offence, along with the ‘circumstances in
which he has committed the offence’ which implies an assumption that
the child has already committed the alleged offence.
• JJB has to arbitrarily inquire into the culpability prior to even a

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prima facie establishment of guilt.
• Assessment of ‘mental capacity’ is highly complex and will
inevitably lead to arbitrary transfers. It cannot be done
accurately by the JJB even with the help of experienced
psychologists.
 Implications of being tried as an adult
• Transfer of children above 16 years alleged to have committed a
heinous offence will deprive them of the right to equality and rights
under the JJ system.
• It will violate the principles of best interest and institutionalization to be
the last resort.
• Are those between 16 and 18 years competent to stand trial as adults? -
Placing juveniles into an adult criminal justice system requires them to

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make adult decisions for which they are not equipped to understand the
risks and consequences. In addition, because of their cognitive deficits
juveniles have a reduced ability to assist counsel and receive a fair trial if
they choose one. (US example)
• Children’s Courts were designated to try offences against children. They
were NOT designed to try offences by children.
Arbitrariness inherent in any assessment of reformation

• Whether or not a person has “undergone reformative changes” or

“can be a contributing member of the society” is highly
subjective and prone to arbitrariness, particularly when the quality
of rehabilitative services that the State is duty bound to provide
under this Bill to the child in question is not put to the same test.
• It will inevitably result in the targeting of marginalized
communities in India. Data already shows that more than half

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the children apprehended for offences come from families with
an annual income of less than Rs. 25,000 while only 0.55% of the
children apprehended come from families with an annual income
of more than Rs. 3,00,000.
• There is no doubt the provisions of the current Bill will result in
class, caste and religion-based targeting of children under the garb
of assessing their potential contribution to society and extent of
reformation.
 JJ Bill contravenes the Indian Constitution and UNCRC
Violative Provisions Indian Constitution UN Convention on the
Rights of the Child
Transfer system: Sections Articles 14, 15(3), 19 and 21 Articles 2, 3, 6, 37, and 40
15(3), 16(1), 19(3), 20(1) and
20(3)

Section 16(1): Preliminary Violation of the prohibition Violation of the presumption

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inquiry by JJB on arbitrary procedures of innocence under Article
under Article 14 and the 40(2)(b)(i)
presumption of innocence

Section 19(1): Exclusion of Violation of the right to Violation of the principle of

children between 16 and 18 equality under Article 14 and deprivation of liberty to be a
years found to have the right to life under Article measure of last resort under
committed a heinous offence 21. Article 37(b) and requirement
from rehabilitative of alternative dispositions
dispositions that can be under Article 40(4)
passed by JJB.
Violative Provisions
Section 19(3): Transfer by a
JJB of a child in conflict with equality under Article 14
law to the Children’s Court
Section 20(1): Trial by a
Children’s Court
Section 21(1): Evaluation by
Children’s Court whether
child has undergone
reformation and can make
meaningful contributions to
society.
Section 21(2): Transfer of
child to jail based on
determination by the
Children’s Court.
Indian Constitution
Violation of the right to
Violation of the prohibition
on procedural arbitrariness
under Articles 14 and 21.
Violation of the right to
equality under Article 14
UN Convention on the
Rights of the Child
Violation of the principles of
non-discrimination under
Article 2 and best interest
under Article 3.
Violation of the prohibition
on arbitrary deprivation of
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liberty under Article 37(b)
Violation of the principles of
non-discrimination under
Article 2 and best interest
under Article 3 and the
separation of juveniles from
adults under Article 37(c).
Arbitrariness inherent in any assessment of
reformation
• Whether or not a person has “undergone reformative changes”
or “can be a contributing member of the society” is highly
subjective and prone to arbitrariness, particularly when the
quality of rehabilitative services that the State is duty bound to
provide under this Bill to the child in question is not put to the
same test.

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• It will inevitably result in the targeting of marginalized
communities in India. Data already shows that more than half
the children apprehended for offences come from families with
an annual income of less than Rs. 25,000 while only 0.55% of
the children apprehended come from families with an annual
income of more than Rs. 3,00,000.
• There is no doubt the provisions of the current Bill will result in
class, caste and religion-based targeting of children under the
garb of assessing their potential contribution to society and
extent of reformation.
Violative Provisions
Section 22: Imposition of
imprisonment and life
imprisonment with the
possibility of parole
Section 25(3): preservation
of records of juvenile sent to
jail by the Children’s Court
Section 7: Trial as adults of
children apprehended after
completion of 21 years for
committing serious or
heinous offences.
Indian Constitution
Violation of the right to
equality under Article 14 and
the right to life under Article
21
Violation of Article 20(1) of
the Constitution and Article
21.
UN Convention on the
Rights of the Child
Violation of the right to life
under Article 6 and the
prohibition on any form of
life imprisonment articulated
by the CRC, Human Rights
Council and General
Assembly.
Violation of the right to
privacy under Articles 16 and
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40(2)(b)(vii)
Violation of the prohibition
on no retroactive juvenile
justice under Article 40(2)(a)
 Educational Profile of Juveniles Apprehended in 2013
Illiterate Primary Above primary below matriculation Matriculation and above

13%
19%

36%
32%

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Economic Profile of Juveniles Apprehended in 2013

50.24%

27.31%

14.92%

5.27%
1.43% 0.55%

Upto Rs 25000 Rs 25001-50000 Rs 50001-Rs 100000 Rs 100001-Rs 200000 Rs 200001-Rs 300000 Above Rs 300001
Place of Safety
• Persons between 18-21 years apprehended for committing an
offence when she/he was below 18 years and denied bail.
• Children below 16 years whose behaviour and conduct is such
that it is not in their interest or in the interest of other children
that they be housed in a Special Home.

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• Persons between 16-21 years alleged to have and found to have
committed a heinous offence. (Segregation stipulated)
• Person in respect of whom a Magistrate or court is conducting
an age inquiry.
• State Government to set up at least one place of safety in the
State.
Transfer system is a failed western
model of retributive justice
• Increased arrest for subsequent
crimes, including violent crime,
among juveniles who were transferred
compared with those retained in the
juvenile justice system.
• More harm than good

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• 80% of youth released from adult
prisons reoffend often going on to
commit more serious crimes
• Longer stays in juvenile institutions
do not reduce recidivism.
Evidence shows that “programs offering
counseling and treatment typically
reduce recidivism, while those focused
on coercion and control tend to
produce negative or null effects.”
Community-based supervision as a
component of aftercare is effective for
youth who have committed serious
Section 7 violates constitutional
rights
• The proposed provision seeks to turn back the legislative clock
and undermine the constitutional prohibition by enabling
children to be tried and sentenced as adults for offences they
committed as children.
• This provision violates the right to equality under Article 14 as it

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creates an artificial differentiation between children apprehended
before 21 years and those apprehended after 21 years of age.
This categorization has no rationale.
• It also violates Article 15(1), ICCPR - a non-derogable right.
• It also enlarges the scope of the transfer provisions in the Bill to
include persons committing not only heinous offences, but also
‘serious offences’ within the mandate of compulsorily trying
them as adults.
 Approaches to Justice
RETRIBUTIV REHABILITATIVE RESTORATIVE
E APPROACH APPROACH
APPROACH
Focus Offence Offender Relationship

Reaction Punishment Treatment Reparation

Objective Deterrence Conformism Restoration

 Approaches to Justice

RETRIBUTIVE REHABILITATIV RESTORATIVE

APPROACH E APPROACH
APPROACH
Victim’s Secondary Secondary Central
position

Social Authoritarian Welfare Democratic

Context

Child’s Anger Dependency Responsibility

reaction
 Two Different Views
Criminal Justice Restorative Justice
Crime is a violation of the law and the state. Crime is a violation of people and
obligations.
Violations create guilt. Violations create obligations.
Justice requires the state to determine blame Justice involves victims, offenders and
(guilt) and impose pain (punishment) community members in an effort to put
things right.
Central focus: offenders getting what they Central focus: victim needs and offender
deserve. responsibility for repairing harm.
THREE DIFFERENT QUESTIONS
What laws have been broken? Who has been hurt?
Who did it? What are their needs?
What do they deserve? Whose obligations are these?
Source: Howard Zehr & Ali Gohar, The Little Book on Restorative Justice, 2003, pp. 19-20
 Our Submission
• The proposed policy change will result in higher costs related to
incarceration, and subsequent financial and social costs that will be
incurred as an outcome from the rage, bitterness and alienation in
young persons released from prison after journeying through the adult
criminal justice system.
• There is a need to ensure that there is substantive deliberation based on
scientific evidence and on restorative justice based solutions that will

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meet the ends that we all seek:
a) increased public safety – immediate and long term,
b) accountability not impunity,
c) reduction of recidivism, and
d) healing of broken spirits – juveniles, victims, and the wider community.
• “We learn everything from adults. From people who take drugs, we
learn to take drugs, from people who make bombs we learn to
make bombs. And that is what we will learn when you send us
to jail. So if you send us to jail, we will become like them.”
• “Pinna kalathana maadi jailige hoguthivi, chinna kalathana madakke

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kalakondu barthivi.” (We may go in for stealing only a pin, but
when we come out, we would have learnt to steal gold)
• When I look at so many leaders in our country, I feel and know that
many of them have made many mistakes – big and small in their lives.
Yet, have they not turned their lives around and become leaders and
are they not doing great things for our country? Please give young
people a chance and we will also show you what good we can do for
this country. Please do not kill our spirit and hopes by sending us
to jail. Help us, guide us, advise us, support us and show us the
right path – don’t condemn us to a life in jail.
 We care…

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