Professional Documents
Culture Documents
Submitted to:
Mr. Manoj Kumar
(Faculty In-charge of Criminal Justice System)
Submitted by:
Shubhankar Johari
Roll No.: 191
B.A. L.L.B. (HONS.)
Semester VIII
Section: C
I hereby declare that the project work entitled “An Analysis of juvenile justice System in
India” submitted to Hidayatullah National Law University, Raipur, is a record of an original
work done by me under the able guidance of Mr. Manoj Kumar, Faculty In-charge, Criminal
Justice System, Hidayatullah National Law University, Raipur.
Shubhankar Johari
Section: C
Semester: VIII
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ACKNOWLEDGEMENTS
I feel highly elated to work on the topic “An Analysis of juvenile justice System in India”.
This research venture has been made possible due to the generous co-operation of various
persons. To list them all is not practicable, even to repay them in words is beyond the domain
of my lexicon.
May I observe the protocol to show my deep gratitude to the venerated Mr. Manoj Kumar,
Faculty In-charge, for his kind gesture in allotting me such a wonderful and elucidating
research topic. His consistent supervision, constant inspiration and invaluable guidance have
been of immense help in understanding and carrying out the nuances of the project report.
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TABLE OF CONTENTS
DECLARATION 1
ACKNOWLEDGEMENTS 2
INTRODUCTION 4
SCOPE OF STUDY 5
OBJECTIVES 5
RESEARCH METHODOLOGY 5
CONCLUSION 14
REFERENCES 15
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INTRODUCTION
At one point of time, the 26/11 Mumbai terror attack accused, Ajmal Kasab, a Pakistani
terrorist, had claimed that he was a juvenile and therefore he should be given benefit of the
law relating to juvenile justice in India, notwithstanding the fact that he was involved in a
ghastly terror attack in which 164 persons were killed. However, his claim was found to be
false. The issue of juvenile justice again came upfront in the 16/12/2012 Delhi gang rape case
when one of the accused was found to be a juvenile. The law requires that this can be dealt
only under juvenile justice act and not under the normal criminal laws that apply to adults.
This implies that he cannot be sentenced to imprisonment and cannot be awarded death
penalty. Due to the strong demand from the society to consider this accused as an adult and
apply the normal criminal laws applicable to an adult, and thus award death penalty and
because of other similar cases cropping up regularly in the country, we need to take a deep
look into the laws to first understand the juvenile justice system of the country and second, to
see if we can treat juveniles at par with adults while granting punishment for committing such
heinous offences.
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SCOPE OF STUDY
The Scope of the project report is limited to the concept of juvenile system in India.
OBJECTIVES
● To study the concept of juvenile.
● To throw light on evolution of law in india.
● To discuss the juvenile laws in inida.
RESEARCH METHODOLOGY
This research is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information and data about the topic. Books and other reference
as guided by Faculty of law of Jurisprudence-II have been primarily helpful in giving this
project a firm structure. Websites, dictionaries and articles have also been referred. Footnotes
have been provided wherever needed, to acknowledge the source.
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‘JUVENILE’ AND ‘JUVENILE IN CONFLICT WITH LAW’
The first and foremost thing is to define a ‘juvenile’ and a ‘juvenile in conflict with law’.
Juvenile can be defined as a child who has not attained a certain age at which he, like an adult
person under the law of the land, can be held liable for his criminal acts. The juvenile is a
child who is alleged to have committed/ violated some law which declares the act or omission
on the part of the child as an offence. Juvenile and minor in legal terms are used in different
context. Juvenile is used when reference is made to a young criminal offender and minor
relates to legal capacity or majority.1 In India, until passing of Children Act, 1960 there was
no uniformity regarding age limitation of juvenile delinquent. Bombay Children Act, 1948
defined ‘child’ to mean a boy who has not attained the age of sixteen years or girl who has
not attained the age of eighteen years. 2
The U.P. Children Act defined “child” as a person
under the age of eighteen years.3 Under A.P. Children Act, 1920 “child” means a person less
than 14 years of age.4
The Saurashtra and West Bengal defines a “child” as a person who has not attained the age of
eighteen years.5 Juvenile Justice Act, 1986 defined a juvenile or child to be a person who in
case of a boy has not completed age of 16 years and in case of a girl 18 years of age. The JJA
Act, 1986 was repealed by 2000 Act and the distinction with regard to age between male and
female juveniles has been done way with by the Government of India in performance of its
obligation to the international obligations. Now age of juvenile in conflict with law for male
and female has been fixed at 18 years. A juvenile in conflict with law under the Juvenile
Justice (Care and Protection) of Children Amendment Act, 2006 is a juvenile who is alleged
to have committed an offence and has not completed his/ her 18th year of age as on the date
of commission of such offence.6
Indian laws have created four categories of persons according to their age. The criminal
liability of an accused depends upon the category in which that person falls. The first of these
is a person below seven years of age. Section 82 of the Indian Penal Code, 1860 states that
nothing is an offence which is done by a child under seven years of age. The simple reason
1
Black Dictionary of Law
2
The Bombay Children Act, 1948, Section 4
3
The Uttar Pradesh Children Act, 1951, Section 2(4)
4
The Andhra Pradesh Children Act, 1951, Section 2(d)
5
Saurashtra and West Bengal Children Act
6
Definition, Meaning, Causes and theories of Prevention of Juvenile Delinquency, available at
http://shodhganga.inflibnet.ac.in/bitstream/10603/7809/9/09_chapter%202.pdf
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behind giving such an exemption is the absence of ‘mens rea’ i.e. guilty mind or criminal
intent. People who at the time of commission of the crime could not and did not know the
right from the wrong should not be penalised. The second category of persons is those who
are between the age of seven and twelve years. Section 83 deals with them and lays down that
if an offence is committed by such a person, it will first have to be ascertained whether the
child has attained sufficient maturity of understanding due to which he can judge the nature
of his alleged conduct and the consequences thereof. The persons between the age of twelve
and eighteen years fall into the third category and if an offence is committed by such a
person, he shall be liable for such offence. However, he shall not be prosecuted and punished
like adult offenders, but would be dealt with only in accordance with the provisions of the
law relating to juvenile justice. Lastly, a person above the age of eighteen years is criminally
liable for an offence in accordance with the normal criminal laws of the country.
The period between 1850 and 1919 was a time where the country was faced by a rapid social
change, industrialization and increasing population. These changes brought about a new class
of delinquent, neglected and dependent children needing formal intervention. Thus the need
for new legislations dealing with children was felt. Some of the most important laws passed
between 1850 and 1919 were the Apprentice Act (1850), the Indian Penal Code (1860), the
Code of Criminal Procedure (1861), and the Reformatory Act (1876 and 1897). The
Apprentice Act (1850) dealt with young people between the ages of 10 and 18 who were
either destitute or petty offenders. Children who were convicted were made to serve out their
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sentences as apprentices for businessmen. The Code of Criminal Procedure of 1861 allowed
for separate trials of persons younger than age 15 as well as their confinement in
reformatories rather than prisons. It was the result of these enactments that penal philosophy
in India towards juveniles could be seen to be changing from that of penal to reformation.
The concept of a reformatory school for delinquent children came to fruition with the passage
of the Reformatory Schools Act of 1876. This policy of separate treatment of juveniles was
further bolstered by the Reformatory School Act of 1897, which dealt solely with the
treatment and rehabilitation of young offenders. It allowed boys younger than the age of 15 to
be placed in reformatory until 18 years of age. Boys younger than 14 years of age were
released on license, only on the grounds that they could obtain subsequent employment.7
The years following 1950 witnessed both official and non-governmental initiatives that
contributed to the development of a more pronounced juvenile justice system in India. To
address the increase in neglected and delinquent children as a result of partition of the
country into Pakistan and India, the Indian government passed a Central Children’s Act
(CCA in 1960). The CCA provided for the care, protection, and treatment of juveniles, and
made it applicable in the territories under direct central government rule. Further still in 1974,
India declared its National Policy for Children, recognizing children as the nation’s
supremely important asset and that their programmes must find a prominent place in the
national plan for the development of human resources. The policy included, among other
things, training and rehabilitation of delinquent, destitute, neglected and exploited children.
By 1986, almost all states had passed their own child legislations but these Acts lacked
consistency in terms of defining delinquency, court procedures, and institutionalization
practices. The Indian government thus felt the need for a children justice scheme that could
be applied throughout the country and this is how Juvenile Justice Act of 1986 substantiated.
The JJA was considered a unique piece of social legislation intended to provide care,
protection, treatment, development and rehabilitation for neglected and delinquent juveniles
as well as the adjudication of matters related to the disposition of delinquent juveniles. To
accomplish the goals of this legislation, special provisions were made for separate procedures
for handling offenders and non-offenders. Juvenile courts were created to deal with juvenile
7
Child Laws in India, www.wscpedia.org
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delinquents, and juvenile welfare boards were established to handle neglected juveniles.8
With the enactment of JJA 1986, though there continued to be a single law, two distinct
machineries were set up to deal with “neglected juveniles” and “delinquent juveniles”.
Pending their enquiries before their respective competent authorities, both these categories of
children were kept in the Observation Home. JJA 2000 for the first time provided for
“juveniles in conflict with law” and “children in need of care and protection” to be kept
separately pending their enquiries. This segregation aims to curtail the corruption of the
innocent child from the influence of the ‘criminal juvenile’.9
A revolutionary change introduced by the JJA 2000 is in the constitution of the children court
referred to as the Juvenile Justice Board (JJB). It is constituted as a bench consisting of one
Magistrate and two social workers. The decisions are to be made by majority and the
Magistrate has a casting vote in case of a tie. The JJB is required to determine age, decide the
question of bail, determine if the child has committed the alleged offence or not, as well as
pass appropriate orders in the matter. In deciding any of these matters, the two social workers
together may overrule the decision of the Magistrate. Realising the importance of special
treatment towards child offenders, the JJA 2000 has provided for appointment of special
police officer in each police station to deal with children under it. It continues to provide for
grant of bail to all children irrespective of the offence being bailable or non-bailable, except
when the release will expose the child to moral danger or bring the child in contact with
known criminals or will be against the interest of justice.10
8
Juvenile Justice in India- On a Path to Redemption, available at
http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=181
9
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
10
Main Features of the JJA 2000, Juvenile Justice: Securing the Rights of Children during 1998-2008, Dr. Ved
Kumari
11
Juvenile Justice and Juvenile Correction: Pride and Prudence, M.S. Sabnis (Somaiya Publications Pvt. Ltd.,
Bombay and New Delhi- 1996)
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not the regular criminal courts. The first Juvenile Court in India was established in Bombay
in 1927.12 Initially it was presided over by a Presidency Magistrate who used to sit for a few
hours on fixed days. Thereafter, since 1942, the Juvenile court was manned by a full-time
stipendiary Magistrate who was assisted by a team of experts, such as POs, psychologists.
Juvenile Welfare Boards were constituted under the 1986 Act to exclusively deal with cases
of neglected juveniles, and the Juvenile Court, to have sole jurisdiction over delinquent
juveniles.
The chief purpose for distinct handling of a juvenile’s case is that such case requires a socio-
legal approach as reformation and rehabilitation, and punishment is not the goal. Under JJA
2000, JJB is the ‘competent authority’ in relation to juveniles in conflict with law. The
constitution of the JJB reflects this objective of juvenile legislation. The JJB has to tread a
fine path; juveniles are culpable for their criminal acts, but they should not be penalised for
such action, instead the aim should be to persuade them away from the enticements of a life
of crime. The 2000 Act has given equal importance to the Magistrate and social workers; they
jointly constitute the competent authority to deal with juvenile cases. When the JJB is
satisfied that an offence has been committed, then the social workers play an important role
in deciding what should be done for the comprehensive rehabilitation of the juvenile, keeping
in view the circumstances in which the offence was committed. The law recognizing the
importance of speedy inquiry has mandated the JJB to complete an inquiry within four
months from the date of its commencement, and if the same is not possible due to the special
circumstances of a case, the JJB is required to extend the stipulated period for completion of
inquiry by a reasoned order.13 Certain JJBs, especially those functioning in metropolises,
have huge back-log of cases. A method for curbing this accumulation of cases is by
increasing the sittings of the JJB.
12
Child Protection and Juvenile Justice System for Juvenile in Conflict with Law, Ms. Maharukh Adenwalla,
http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
13
Section 14, Juvenile Justice (Care and protection of Children) Act, 2000
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time of the juvenile’s arrest and his admission to the Observation Home, and whether a parent
or guardian or person of juvenile’s choice and the PO has been informed about the juvenile’s
arrest. Moreover, the particulars so furnished by the police should be gotten confirmed from
the juvenile.
Bail is the release of an accused person pending investigation and/ or trial, while at the same
time ensuring his future attendance in court at the trial stage. The CrPC divided offences into
bailable and non-bailable offences. The position is quite different under juvenile
jurisprudence. Since the enactment of different Children Acts, the grant of bail has been
mandatory under juvenile legislation except in certain prescribed instances that could cause
harm to the child if so released.
14
Clause 46 of the United Nations Guidelines for the Prevention of Juvenile Delinquency
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rehabilitation of the juvenile.15 It is only in rare cases that a juvenile may be confined in a
place of safety instead of a Special Home. This rare case is a situation where the juvenile has
attained the age of 16 years and the offence committed is of a serious nature or the juvenile’s
conduct is improper.16 It must also be noted that not every juvenile who has committed
murder or rape is to be kept in a place of safety. Incarceration in a place of safety should be
ordered only if it would be dangerous to keep the juvenile with other juveniles because of the
peculiar nature of the offence committed or the behaviour of the juvenile.
Further, any order passed by the JJB may be challenged in appeal before the Sessions Court
within thirty days of the passing of the order.17
15
Section 2(h) of Juvenile Justice Act, 2000
16
Section 16 of Juvenile Justice Act, 2000
17
Section 52 of Juvenile Justice Act, 2000
18
1997 (2) ALD Cri 645
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responsibility of adjudging the age of the accused in case of any doubts as brought forth lies
with the Magistrate and the Court as dealing with the said matters.
The underlying principle in not awarding exemplary punishment to juvenile is the legal
philosophy that juveniles lack the mental and physical maturity to take responsibility for their
crimes, and because their character is not fully developed, they still have the possibility of
being rehabilitated. With the changing times, the interest in protection of juveniles has to be
19
Should the Juvenile Justice Act be amended, The Hindu, available at
http://www.thehindu.com/news/cities/Madurai/should-the-juvenile-justice-act-be-amended/article5095898.ece
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balanced with the interest of protecting particularly vulnerable members of the society from
violent crimes committed by persons less than 18 years of age and amending the law.
CONCLUSION
Before claiming an amendment, we must think of those unfortunate juveniles who may have
committed certain offences in compelling circumstances. Also, though an amendment is
sought, there is no defined parameter to treat an offence as heinous or grave. Those
demanding a change must first seek to define the particular offences for which such
amendment is sought. Therefore, either extreme is not desirable. A delicate balance must be
struck as per which most juveniles, as a general rule, are required to be treated in a more
humane manner, but in some rarest of the rare cases of heinous and grievous offences
deliberately committed by a juvenile, he may be subjected to prosecution and punishment
under the normal criminal laws of the country. The response to juvenile crime has to be fair,
age-appropriate and in keeping with development psychology. Any amendment to existing
law requires in-depth understanding of the jurisprudence, philosophy and impact of the
current law. Amending the law as a reaction to the countywide outrage against one juvenile
may not serve the purpose as it might affect those other hundreds who are rightfully entitled
to the juvenile justice system already prevailing in the country. Thus, what we require is a
balanced and thoughtful approach wherein the juveniles who have the mental capacity to
commit grave offences must be punished with exemplary punishments, while those others
committing petty offences and not possessing the mental capacity to do so must be brought
under the veil of juvenile justice system and efforts must be made to rehabilitate them.
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REFERENCES
BOOKS/ARTICLES REFERRED
●
●
●
WEBSITES
● http://www.wscpedia.org
● http://www.childlineindia.org.in/pdf/CP-JJ-JCL.pdf
● http://www.thehindu.com/news/cities/Madurai/should-the-juvenile-justice-act-be-
amended/article5095898.ece
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