Pattern and problem in implementation of Juvenile Justice Act and other legislation related to children offenders

Pattern and problem in implementation of Juvenile Justice Act and other legislation related to children offenders

 

Challenges to Juvenile Justice (Care & Protection) Act, 2000

According to Article 37(a) of the Convention on the Rights of the Child, No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment[30]. This provision has not been mentioned under the JJA, 2000 and keeping in mind, the sad and uncomfortable reality of child abuse, this provision has to be incorporated.

Article 40 of the CRC mandates the state to incorporate certain basic guidelines for a child in conflict with law, but the same has not been incorporated in the JJA, 2000. Though CrPc and Constitution of India provide laws for the protection of children but according to JJA, 2000 the laws must be made by the state, thus leaving space for the state to do unjust and exploit the rights of the child.

According to Article 40(3)(b) of the Convention, Human Rights and Legal safeguards are fully respected while dealing with such children. The appointment of JJB consists of one magistrate and two social workers, which in majority can even overrule the judgment of magistrate, it is not in compliance with the legal safeguards in India by giving such powers to the social workers (who may not have the legal knowledge).

According to Section 29[31] of the Act, the Government “may” form Child Welfare Committee for the exercise of the powers. The use of the word “may” is a big mistake because unless the making of rules is made compulsory, the execution of the act will remain uncertain.

According to Section 14[32] of the Act, the inquiry needs to be completed within 4 months from the date of the onset unless it is extended because of some special cases. Here, the Act fails to justify the “special cases”, thus leaving the scope of arbitrariness in the hands of Juvenile Justice Board (JJB).

Section 23[33] of the Act defines for the punishment of cruelty done to the child. As the punishment prescribed is not deterrent in nature. The potential of fine and punishment needs to be increased so that it instills fear on the minds of the people.

Section 63 of the Act provides for the Special Police Unit for the juveniles. But this is nothing but a mere lip service because there is no guidelines mentioned regarding the training of the police.

Juvenile Justice (Care & Protection) Act, 2014

In the case of Mukesh & ors. V. State of Delhi, popularly known as “Delhi Gang Rape” case, a juvenile, who was few months less to 18 years have been sentenced to 3 years custodial sentence, however, it was said that he was the active member in the rape case. It outraged the spark amongst the people and it was contended that there is a need to amend the Juvenile Justice (Care & Protection) Act, 2000. According to the data collected by the National Crime Record Bureau cases registered for juveniles under the age of 16-18 year are mentioned as: There were a total of 36,138 cases registered in 2014. Of these cases, the highest pertained to riots (1,733 cases), kidnapping at rank two (1,635 cases) and cases of rape stood third (1,488 cases)[34].

 

Other crime heads under which juveniles between the age group of 16-18 years were reported, were, assault on women to outrage her modesty (1,392 cases); murder (844 cases); and attempt to murder (806 cases)[35].

 

As a result of amendment, on 8th August, 2014, Juvenile Justice (Care & Protection) Act, 2014 where the age of the juvenile was reduced from 18 years to 16 years, that is, any child who have alleged for the heinous crime under the age of 16 to 18 years shall be tried as an adult. The power is constituted with the Juvenile Justice Board (JJB) to decide whether the juvenile is to be sent to rehabilitation home or tried as an adult.

 

Challenges to Juvenile Justice laws in India

Section 4(2)(viii) provides child in need of care and protection for those who have been tortured, abused and exploited for the purpose of sexual abuse. The section provides protection for children but ignores the one who have faced the sexual abuse in the past. It grossly affects the mind of the child which leads to social stigma.

According to Section 2(5) defines the word “aftercare” to provide them financial support to persons who have completed the age of 18 years but are less than 21 years of age. But the following problems could have enumerated against the proper results of after-care institutions:

·       Lack of finances.

·       Stigma in institualization.

·       Unconsciousness of society towards the after care programme.

·       Non compliance of parents in the after care plan.

·       A little inter-relationship between the juveniles and the after-care workers.

According to Section 21 of the Act, after attaining the age of 21, the Children’s Court may decide if the child has undergone the reformative changes and needs to be released or he should be transferred to a jail. This provision is in violation of article 20(1)[37] of the Indian Constitution and also by keeping a 21 year old adult with hardened criminals will make a child like them and this will not serve the purpose of Reformative Theory.

According to Section 16 of the Act, the heinous offence committed by a child who has completed the age of 16 years, the Juvenile Justice Board shall conduct the inquiry about the physical and mental state of the child and then only the Board will decide whether to dispose off the case or to start a trial. The foremost flaw with the section is it implies an assumption that the child is guilty of an offence and a clear infringement of Article 14 and 21 as prescribed under Part III of the Indian Constitution, as the procedure is arbitrary and irrational.

 

Justice Verma Committee Report on Juvenile Justice Laws in India

According to Justice Verma Committee report on “Amendments to Criminal Law” has noted that “the Juvenile Justice Act has failed miserably to protect the children in the country[52]. We cannot hold the child responsible for a crime before providing to him/her the basic rights given to them by the Indian Constitution.’’ the report looked extensively on the children homes and found them lacking in basic infrastructural requirements, where they are forced to grow and becomes the prey of “sexual offences”. The juvenile homes are unable to provide the basic constitutional rights which are mentioned for the children under the Indian Constitution. The nutritional, emotional, mental requirements are so low that they often not be able to cope up and contribute to the society.

Recommendations

With all due respect to the existing law, the following recommendations are made:

·       The court should approach reformative approach towards the child delinquency rather than the punitive one. The state should try to create such an environment so as to re-integrate the delinquent with the mainstream of the society.

·       State should not be given so much power so as to make the law regarding the Juvenile Justice Act, rather more power should be given to the International Conventions and CrPc, so that the purpose of the JJA should be attained.

·       The Juvenile Justice board is of great importance and hence a special training programme in child psychology should be conducted for the members of the JJB including the Magistrate.

·       The Magistrate should not be engaged in any other work except for juvenile cases so as to complete the inquiry within 4 months.

·       Children Homes are meant for both “child in conflict with law” as well as “child in need for care and affection”. It is important to separate homes for both the categories of children not only on papers but also on the ground level.

·       The homes for children should be under the CCTV surveillance so as to facilitate the inspection process by the board along with the surprise visits.