Juvenile Justice System in India

Juvenile Justice System in India

The state guarantees special treatment to them through statutory law. However, in practice, they often get victimized by legal and procedural entanglements

The emergence of the concept of juvenile justice in India owes much to the developments that have taken place in western countries, especially in the perception of children and human rights jurisprudence in Europe and America. The Apprentices Act, 1850 was the first legislation that laid the foundation of juvenile justice system in the country. The concept consequently gained momentum with the enactment of the Indian Penal Code (1860), Reformatory Schools Act (1897), Code of Criminal Procedure (1898) and recommendations made by the Indian Jail Committee (1919-1920), which categorically mentioned that the child offender should be treated differently from an adult offender. It also held that imprisonment of child offenders should be prohibited and recommended for provision of reformatory schools and constitution of children’s courts with procedures ‘as informal and elastic as possible’. The Committee also drew attention to the desirability of making provisions and special enactment for children who had not committed crime so far, but could do so in the near future on account of living in criminal or inhuman surroundings or those without proper guardians or homes.

The Madras Children Act 1920 was the first Children Act to be enacted, closely followed by Bengal and Bombay in 1922 and 1924, respectively. Later, many more states enacted their own Children Acts, covering within their sphere two categories of children, viz., (i) delinquent children, and (ii) destitute and neglected children. Both these categories of children were to be handled by the juvenile courts. They were to be kept in remand homes and certified schools or released on probation, with a possibility of imprisonment when the nature of offence was serious and the character of the offender so depraved as to justify imprisonment (Ved Kumari: 2004). During this period, by and large, the “welfare” approach was adopted for children – whether delinquent, destitute or neglected.

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 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 children’s 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 in Arnit 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 lock-up 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 India’s 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 government’s 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 Children’s 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 4 February 2007 in New Delhi. The Conference made a 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.

Conclusion

Undoubtedly, juveniles in conflict with law and children in need of care and protection are defenceless and they need special protection. The state guarantees special treatment to them through statutory law. However, in practice, they often get victimized by legal and procedural entanglements. They are more prone to human rights violations at the hands of state agencies, their own family and community in the form of arbitrary detention, cruel punishments, torture and abuse. In recent years, the problems of children in need of care and protection and those in conflict with law has been receiving considerable attention both of the government, NHRC, social activists as well as the civil society at large. But, the problems encountered by them are of gigantic nature and all that is being done is not sufficient. If the problems faced by them are not taken into account, we as a society would be failing in our duties. It is therefore of paramount importance that as a society we must devote full attention to ensure that they are properly cared for so that they have their rightful place in the society. For this to happen, there is need to spread awareness on the problems faced by them as well as build-up the capacities of all those dealing with them.

The Integrated Child Protection Scheme (ICPS) of the Ministry of Women and Child Development, Government of India that was launched during the on-going Eleventh Five Year Plan (2007-2012) is a welcome step in this direction. The ICPS encompasses the existing schemes of (i) Integrated Programme for Street Children, (ii) Shishu Greha Scheme, (iii) Programme for Juvenile Justice, etc. The focus of the ICPS is on child protection and is the shared responsibility of the government, family, community and civil society.

By: Savita Bhakhry, A Senior Research Officer in the National Human Rights Commission of India

(E-mail: sro-nhrc@nic.in)