The controversy on Juvenile Justice Act, 2000
The Juvenile Justice (Care and Protection of Children) Act, 2000 was passed to provide for the care, protection, treatment, development, rehabilitation and social integration of delinquent juveniles. The Act states that any person up to the age of 18, who commits an offence punishable under any law, are not subject to imprisonment in adult justice system, but will undergo reformatory programmes in remand homes not exceeding 3 years.
History of the Act:
Roots of Indian Juvenile Justice can be traced to 1920’s when the Indian Jail Committee (1919 - 1920) recommended a distinct & comprehensive handling of child offenders. This led to the enactment of Children Act in the provinces of Madras, Bombay & Bengal in 1920, 1922, and 1924 respectively.
Later, this unique justice system received fresh impetus with the passing of
· UN Rules for the Administration of Juvenile Justice 1985 (also called Beijing Rules)
· UN convention on the Rights of the Child (CRC) 1989
Both these rules were ratified by Government of India.
· Based on Beijing Rules, the first central law – The Juvenile Justice Act, 1986 – was passed.
· Based on CRC, which was ratified in 1992, the present Juvenile Justice Act, 2000, was passed.
Changes in JJ Act 2000:
The JJ Act 2000 differed from its 1986 counterpart in three important aspects.
· The juvenile court replace by three members Juvenile Justice Board (a magistrate & two social work members).
· Age of juvenility raised for male child from 16 to 18
· Maximum custodial sentence under Section 15 (1) (g) is three years.
In the light of the horrific Delhi rape case, the main offender is getting away with 3 years of custody as he was a few years short of attaining 18 years of age when the crime was committed. This led to public outcry to reduce the age of juveniles from 18 to 16 & increase the period of custody.
Arguments for reducing age of juvenility:
As per National Crime Records Bureau (NCRB) the percentage of crimes committed by juveniles to total crimes has not significantly increased from 2001 to 2012. However the violent crimes committed by juveniles have doubled in the past decade.
Petitioners also challenged the Act based on the following points:
· The JJ Act is violative of Articles 14 and 21 and thus ultra vires the Constitution
· Section 2(k) and (l) of the Act that defines ‘juvenile’ or ‘child’ as any person below the age of 18 years runs contrary to Sections 82, 83 of Penal Code that confers total exemption to children below seven years of age and partial exemption to those below 12 years only.
· Sections 19 and 21 that prohibit creating judicial records of juvenile proceedings and publication of juvenile names and identity are in conflict with the interests of the society.
Comparison with other countries:
1. USA :
Most states in the USA have enacted the juvenile code with main objective of rehabilitation and not punishment. However with the increase in violent crimes, states adopted a “Get Tough” approach in 1990s.
Under this approach, the jurisdiction of juvenile courts is automatically waived when a juvenile above a certain age, near 13 to 15 years, commits a violent crime; the case is automatically transferred to adult court. The adult court prosecutor has to convince the adult court that the case should be transferred. The juvenile is entitled to an attorney at the hearing and can present any evidence to prevent the transfer.
Ex: In Indiana, South Dakota, Vermont, children as young as 10 can be tried as adults.
2. UK :
In UK, persons under the age of 18 (i.e., from 10 -18) are tried by a “Youth Court”. The youth court can issue community programmes, rehabilitation etc for a maximum period of three years. However for serious crimes the case starts at youth court but is transferred to Crown Court (same as sessions court). If found guilty, the sentence is similar to that of an adult offender.
Rule 17 of Beijing Rules provides that reaction shall be in proportion to the circumstance & gravity of the offence, needs of the juvenile and society. Rule 2.3 provides that the states can set the minimum age which must be between 7 to 18 years of age.
Therefore India’s international obligations do not prohibit it from amending the JJ Act 2000.
Arguments against reduction of age of juvenility:
Indian juvenile justice makes no distinction between age group and violent & non-violent criminality of juveniles.
In the 1990s the US shifted towards Retributive Juvenile Justice Policy due to the rise in incidence of juvenile offences. This led to the “Get Tough” Approach. This re-criminalisation cannot be replicated in India because for the period 2001- 2011 juvenile delinquency rate ranged between 1.6 % to 2.1% of total crime (as against half of total crime rate in US) & of these only 5-8% were violent crimes like rape & murder ( as against a substantial percentage of violent crimes in US)
However this approach is abating now. In 2005, the Supreme Court of USA abolished juvenile death penalty; in 2010 it prohibited sentencing juveniles to life imprisonment without parole for crimes other than homicide.
This was under the influence Brain Science Research which shows that adolescent brain system & its deviant behavior is a function of two distinct sets of brain system.
a. Socio emotional system.
b. Cognitive control system.
Therefore competence related abilities mature by the age of 16 but capacity relevant to decisions about criminal culpability continues to mature till young adulthood. These findings of MacArthur Foundation, Washington are supported by many brain scientists and researchers.
Based on these scientific reports juveniles should be tried under JJ Act up to age of 18.
In response, the Supreme Court of India gave the following reasons for not amending the JJ Act
· Article 1 of the UNCRC requires the state parties to treat all persons below 18, irrespective of gender, as children, and
· There is adequate scientific data to indicate that brain growth continues till the age of 18.
The court also appeared to be giving a fair chance to the petitioner when it invited scientific data to prove the earlier onset of cognitivity. This way the court answered and dismissed all the petitions in a logical and a legal manner.
What needs to be done?
Both sides however agree that reforms are needed to improve the rehabilitation programmes. According to a study conducted by the India Today group, there are 815 remand homes in India with a capacity of 35,000 inmates, but there are 1.7 million juveniles accused. Remand homes are not conducive to reform or rehabilitate as envisioned by the International Law. This system of complete apathy may end up creating a new underclass which combines a sense of triumph over avoiding a prison term after committing heinous crimes with the psychological effects of staying under bleak, hope denying conditions. Segregation of juveniles on the basis of age should be done to ensure that younger juveniles with tender and impressionable minds are not mistreated and are kept away from elder juveniles. Improved infrastructure and manpower can aid in better rehabilitation programme.
The period of custody should be increased as three years is a short time for any lasting reform activity. Long periods of custody can act as a deterrent & ensure adequate rehabilitation.
Therefore instead of reducing the age, more attention should be given to improving the conditions of remand home, creating better constructive occupational training, reformatory activities etc that can help juveniles return to society as reformed individual instead of hardcore criminals.
As stated by Justice J S Verma in his report on Amendments to Criminal Law - “We cannot hold the child responsible for a crime before first providing to him/her the basic rights given to him by the Indian Constitution.’’
1. The Hindu January 24, 2013 – “ Juvenile Justice Act has failed”
2. Frontline February 8, 2013 – Forcing the issue
3. The Hindu August 23, 2013 – This is no child’s play – Opinion-B.B Pande
4. The Hindu September 6, 2013 – Justice and the juvenile – Editorial
5. The Hindu September 9, 2013 - Balancing the Juvenile Act – Opinion-Aparna Viswanath
6. The Hindu September 24, 2013 – Justice cannot follow a tough act – Opinion-B.B Pande
7. Beijing Rules - www.un.org/documents/ga/res/40/a40r033.htm
8. Juvenile Justice Act 2000 - wcd.nic.in/childprot/jjact2000.pdf