Children are the paragon of development and future of a nation. So a safe and healthy environment must be provided for utmost nurture of their character. Also India, is a home to the largest child population. But in recent time we witnessed , a high rate of juvenile offences in India, which is a major concern.
A child is born innocent , and he must be bestowed with a holistic physical, mental ,moral and spiritual development to make them one of the duty bound citizen of this largest democracy. But subsequently children due to several factors, whatsoever it may be, turns them into juvenile delequent. Which means transforming an innocent child to a juvenile offender.
Thus our criminal jurisprudence, regarding juvenile offenders says that , prevention is better than cure regarding juveniles and they must be protected from going in a wrong path, and that is the cause why our Indian judicial system gives emphasis on Reformatory form of punishment to a juvenile offender. Also our constitution provides for a separate treatment for children.
The word juvenile originated from a latin word juvenis, which means young . And legally the definition of juvenile has been provided under section 2(k) of, The Juvenile Justice ( care and protection of children) Act,2000. Which provides that juvenile or child means a person who has not completed eighteenth year of age.
Legislation For Juvenile Justice
A separate justice system is provided for dealing with the juveniles in India. It is concerned that when the juveniles are left upon on the same judicial mechanism or procedure like as of the adult offenders , then the juvenile may themselves gets victimise by the system itself. It is based on the principal of Doli Incapax( child cannot procure criminal intention )Thus it had developed a different kind of justice system, both in respect of its procedure and facilities, like manner of interrogation of children by police, attitude of the lawyers , perception of judges regarding decision of guilt , handling by prison staff, living, educational, recreational conditions, safety purposes also program of rehabilitation and reintegration.
The nation introduced a separate legislation for dealing with the juvenile offenders .The first enactment was done was Juvenile Justice Act,1986. Which mainly deals with both neglected juveniles and delequent juveniles. Neglected juveniles are those who are found begging, homeless, destitute, living in brothel, exploited for illegal and immoral purpose, and delequent juveniles are the one who are in conflict with law or have committed an offence.
The board shall consist of a magistrate and two social worker out of which one must be a women,having special knowledge on child psychology and child welfare. Another amendment came was Juvenile Justice(care and protection of children) amendment Act,2006, with an aim to widen the juvenile justice and care framework in consistent with child centric and family type rehabiliation.
Procedure Of Juvenile Justice , Trial And Detention
The constitution of India also provides some protection of the child for their holistic development. Like Right to free and compulsory education to child between 6-14 years of age ( art 21A) , Right to protection from hazardous employment under years of age ( art 24) , Right of proper standard of living and good nutrition ( art 47) etcetera.
Also the major criminal laws, Indian penal code 1860, Code of criminal procedure 1973 intends to try the juvenile offenders separately from the adult one. Section 82 of IPC says Nothing is an offence which is done by a child under seven years of age .Section 83 of IPC enlist Nothing is an offence which is done by a child above seven years and under 12 years of age , who has not attained the sufficient maturity of understanding in order tojudge the nature and consequence of his act on that particular occasion. Section 27 of CRPC says that Any offence which is not punishable with death or life imprisonment , which is committed by a person below the age of 16 years , may be tried by a court which is specially empowered under the children Act to decide on such matters. Or it can be dealt with by any other law for time being in force which is providing for treatment , training , rehabiliatation of young offenders . Section 437 of CRPC lays down that ,a juvenile in conflict with law can apply for anticipatory bail.
Subsequently for a better catering of justice for juvenile a special legislation was legislated, Juvenile Justice (care and protection of children)Act to provide justice specially to the juvenile in a child friendly procedure. If it is believed that any child have comiitted a crime ,they can be arrested by the police mainly by child welfare police officer ( section 10 of JJ Act,2015), provided that if they arrest is done by any regular police officer, then the child must be immediately placed before Juvenile police unit.
Some procedure like no handcuffing by the police, no exertion of force is allowed during arrest. And the parents of the child must be immediately informed. The child cannot be kept in a regular jail, rather must be kept in observation home before production to the Juvenile Justice Board within 24 hours of arrest. The police officer also must prepare a Social Investigation Report containing the details about the family background of the child , which the help the JJB to take decision.
Juvenile justice procedure have categorized the offence into 3 types, petty , serious and heinous. JJB must complete the inquiry within 4 months . for petty and serious offence the police are not supposed to register FIR, they can only record in the general diary along with Social Background Report . only in heinous offence the police can register FIR.
If any child above 16 but below 18 years of age, have committed any heinous offence will be tried in adult procedure not child friendly procedure of JJACT. And he will be send to the children’s court ( section 18 of JJ Act). And maximum punishment for heinous crime ,can pass a sentence of more than 3 years but not death penalty or life imprisonement.
And if any child below 16 years of age committed any crime, will be tried by the Juvenile Justice Board , in a child friendly procedure (informal procedure and strict confidentiality ), and maximum sentence can be imposed upto 3 years , and can only be detained in observation home for reformative purpose.
All proceedings , the JJB or Children’s Court must ensure child friendly environment , and must also ensure that the child is sent to place of safety during proceeding , if detained. And for committing heinous crime , he must be kept at place of safety , till he becomes 21 years of age, after he can be sent to jail ( section 20 JJAct, 2015). The child shall also have access to all reformative service( education, schooling, skill development ).
Juvenile court which is also recognise as children’s court situated to handling problems of delinquent, neglected, or abused children. It is sine qua non,to accomplish the proceeding of the court informally and paternally,so that the juvenile can be treated in a cozy and child accustomed way. Under this Juvenile Justice law and provisions of the Criminal Code Procedure, childrens are not to be taken to a regular criminal courts, the purpose of a separate court is socio-legal rehabilitation and reformation instead of punishment. Two types of cases are processed by a juvenile court: civil matters, usually concerning care of an abandoned child or one whose parents cannot support him; and criminal matters arising from antisocial behaviour by the child.
Now regarding the courts where the juvenile are tried, if the juveniles are found to be below the age of 16 years , he will be tried by the Juvenile Justice Board. JJB consist of a , Metropolitan Magistrate or Judicial Magistrate First Class but , not being Chief Metropolitan Magistrate or Chief Judicial Magistrate. And two social workers (one being a woman ) with experience of 7 years in health, education or welfare activities pertaining to children or, a practising professional with a degree in child psychology, psychiatry, sociology or law. And maximum of 3 years of sentence can be passed.
Secondly if the juvenile is between the age of 16-18, and have committed a heinous crime as mentioned under Juvenile Justice Act,2015, he will be tried by the Children’s court as an adult .The children’s court may be an existing court of session , that is dealing with child specific laws, or special court which is set up for the purpose of dealing with crimes under JJ Act. And can pass sentence more than 3 years but not death penalty and life imprisonment . If the child is found guilty of heinous offence, he will be sent the observatory home till 21 years of age, after he will be sent to jail.
The children who are not born criminal , are being transformed due to diabolical social environment and a non deterrent law. So a different justice procedure is provided by JJ Act. And it can be efficacious from the root only if the observatory home are being administered with uttermost care and affection ,where the maximum part of reformation of the child is done.
But is most of the observatory home , it has been witnessed that , most of the juveniles are being drug addicted, living in filthy environment, no effective educational classes are conducted, which will not suffice the puropose of juvenile justice. Beside a good law , a strong implementation is also the need of the hour.
Prashant Tyagi (Intern)
LEXIS & COMPANY