by- Nihal Deo and Sannidhi Buch |
A juvenile, in a general sense, means a young person who is not yet old enough to be considered as an adult.[1] In relation to a crime or criminal law, a juvenile is used in the context of or relating to young people who have committed or are accused of committing a criminal offense.[2] The term juvenile is very different from the term minor since the former is used in reference to a young offender while the latter refers to the legal capacity of a person. The Juvenile Justice Act defines a juvenile as a person below the age of 18 years.[3]
People of young age, generally under 18 years of age, are considered immature and lack the level of understanding as an adult would possess and owing to this they are prone to commit mistakes without understanding the consequences of the act. A lot of those mistakes might be offences as per the law, whether petty or grave. This gives rise to the need for having a different system for administration of justice when it comes to juvenile offenders, as compared to the system of administration of justice that is in use for adults. Before going into the Juvenile Justice System, the age for consideration, the acceptability etc., it is important to understand the major factors that play an important role in the commission of an offence by a juvenile. The following are the prominent theories that try to explain the reasons behind Juvenile Delinquency:
1. Anomie Theory: The anomie theory was first written by Robert Merton where he stated the two major elements of social structure, one being defining the goals, purposes and interests and the second being the structure which defines, regulates and controls the acceptable modes of achieving these goals.[4] This theory can be helpful in understanding the underlying reasons behind heinous crimes committed by the juveniles. When juveniles do not have the means to make themselves happy, they can resort to any means and can commit crimes to any extent. For example, if they are unable to find a decent way to earn, they might resort to theft and if the victim tries to restrain them, they might kill him in order to get the money.
2. Social Disorganization Theory: In modern times, the style of living of people has changed which leads to new social classifications. An example of this can be low-income populations finding themselves together. For example, a person who grows up in an area where criminals reside where he sees the occurrence of crimes in his surrounding as the only way to achieve success, he shall adopt the same practices.[5] This theory can also be correlated with the differential opportunity theory and the subculture theory. The differential opportunity theory is the idea that people who come from low socioeconomic backgrounds, who have few opportunities for success, will use any means which they possibly can to achieve success. If a juvenile sees that it is easier to earn money by robbing people, he shall also practice theft and robbery since it is a way to get success in a short time.
3. Subculture Theory: It originates from the Chicago School of Criminology, and is also on the similar lines, stating that juveniles that do not meet the social standards seek validation from a subculture similar to them, which are other juveniles who also do not meet the social standards. It argues that lower-class youths who could not aspire to middle-class cultural goals got frustrated and they rejected them to create their own subcultural system of values. There are about three subcultures more or less. They are, “criminal subculture” - a type of gang which resorts to illegal means of securing income, “conflict subculture” - the gang where manipulation of violence is considered as winning status and “re-treatist subculture” – a gang which stresses on the consumption of drugs.[6] In other words, when they understand that it is difficult to get acceptability from the other people of the society, they resort to committing crimes just like the others in their group in order to get validation from them and to fit in that particular group. For example, a person, in order to belong to the re-treatist subculture, will start consuming drugs so that the others from the subculture shall give validation to him to be a part of their subculture.
4. Biogenic Theory: It is based upon the conception that the natural body structure of criminals is primitive and generally different from normal human beings. It is similar to the theory given by Cesare Lombroso and his Italian School of Criminological thought. He suggested that criminals were atavistic: essentially ‘evolutionary throwbacks’. In his opinion, born-criminals were of a distinct type who could not refrain from indulging in criminality and therefore considered these criminals as incorrigibles.[7] Certain traits of such a person have also been identified which include being hostile in nature, defiant, resentful, suspicious, stubborn adventurous, unconventional and non-submissive to the individuals and to the authority[8]. For example, as per this theory, a juvenile who is stubborn and non-submissive to his parents or other elders around him is more prone to become a criminal in future.
The age limit to consider a person as juvenile varies from country to country. Around the world, the maximum age to be considered as a juvenile generally varies from 10 years to 20 years. The following are the positions present in different jurisdictions[9]:
USA: As per Juvenile Justice and Delinquency Prevention Act, 1974, the minimum age for a person to be tried for an offence is 7 years (6 years in the State of North Carolina). However, for a juvenile to be tried as an adult, there is no specific age mentioned and it is on the discretion of the Juvenile Justice Court Judges to try the case of a non-adult as an adult in some of the serious crimes. However, there is a lot of difference in the approach of different states when it comes to trying a juvenile as an adult.
Canada: As per the Youth Criminal Justice Act, 2003, the minimum age of criminal responsibility is 12 years. Also, the youth who are aged 14 to 17 years can be tried and sentenced as an adult if the conditions given in the Act are satisfied.
England and Wales: As per the Children and Young Persons Act as amended in 1963, the minimum age for criminal responsibility is 10 years. The persons under the age of 18 are tried separately and detention is generally not done, especially if the offence is petty. Even if the detention is required, the juvenile who is detained is not kept with the adult accused persons. As far as punishment is concerned, it is different from that given to the adults for the same offence. However, for offences for which the punishment for adults prescribed is 14 years imprisonment or more, if the age of the offender is between 10 to 18 years, the prosecution will take place in Crown Court and if found guilty, they can be punished in the same way as an adult for the same offence.
France: Here, if the age of the offender is under 10 years then no penalty can be imposed on him/her. However, different reformative measures are provided for such offenders, e.g. supervision and education. For serious offences, if the age of the offender is between 16 to 18 years then Juvenile Assize Courts try the matter in accordance with the special procedure provided. If the offender has committed a serious offence two or more times then severe punishment can be given to them. For crimes that are not serious in nature, the punishment is very mild for young offenders and the focus of the justice system there is more on reformation rather than punishment.
Pakistan: Here, the Penal Code of the country sets the minimum age for criminal liability to be 7 years. It also provides different provisions for offenders between 7 to 12 years of age for most of the offences. In no condition can a person under the age of 15 years be arrested by the state. Also, if the trial in the court is for the offence committed by a person who is 15 or above but below 18 years of age and the nature of the offence is serious and grave, then detention without giving bail is allowed.
Sri Lanka: The minimum age of criminal responsibility is 8 years. Child offenders who are between 16 and 18 years of age are treated as adults by the criminal justice system of Sri Lanka.
Germany: The Juvenile Welfare Act is the law that governs Juvenile Offenders. The minimum age of criminal responsibility is 14 years. An offender whose age is more than 14 but less than 18 is allowed to be punished if it is found that the offender has reached the level of maturity to understand the consequences of the act. For serious offences committed by those whose age is more than 14 but less than 18, punishment up to 10 years of imprisonment is allowed to be given.
HISTORY OF JUVENILE JUSTICE IN INDIA:
India has a long history of juvenile legislation, most of which is derived from the British Pattern. In the Indian Law, the children under 7 years of age are completely exempted from criminal liability[10] and those between 7 to 12 years who have not attained the maturity to understand the nature and consequences of their actions.[11]
1. The Children Act, 1960
The first legislation to be enforced after independence concerning juveniles was the Children Act of 1960. This Act had its jurisdiction limited to the Union Territories, but it was a model which was to be followed by the States to draft their own Children Acts. The object of the Act was to provide the care, protection, welfare, education and rehabilitation of neglected and delinquent children. This was the first Act to strictly prohibit the detention of children in jail under any circumstances.
It provided for separate legal bodies to deal with delinquent children - the children court and a child welfare board. Apart from these bodies, it introduced a system of three-tier institutions: an observation home for children who stay during the pendency of their proceedings, children’s home for accommodating neglected children, and a special school for delinquent children. However, the Act laid down a discriminatory definition of a child. It read “Child in case of a boy is below sixteen years and in case of a girl is below eighteen years of age”[12]. A limitation was that the Acts consequently enforced by the States had similar provisions but the fundamental difference was the definition of ‘child’ in each State which led to differences in treatments of such children.
2. Juvenile Justice Act, 1986
The primary cause behind the enactment of this legislation was the need to enforce a uniform Act for the children. The provisions of this Act were made in accordance with relevant provisions of the Indian Constitution and the 1974 National Policy Resolution for Children and guidelines laid down internationally such as the United Nations Declaration of the Rights of the Child 1959 and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) 1985.
This Act also provided for the Juvenile Court and a Juvenile Welfare Board.[13] It recommended establishing various kinds of institutions for the care and protection of juveniles, such as a juvenile home for the treatment of neglected juveniles, a special home for delinquent juveniles and an observation home for the temporary reception of juveniles during the pendency of their trial, and an after-care home for the purpose of taking care of juveniles after discharge from an observation home or a special home. The main objective of this Act was to protect juveniles from criminalization, penalization and stigmatization by adopting a welfare approach.
The primary drawback of this Act was its implementation in all aspects. The States and the Union Territories formulating their regulations did not comply with the basic structure of Juvenile Welfare Boards, Observation Homes, Juvenile Courts and After-Care Homes. An absence for required measures for adherence of minimum standards for institutional care such as foster care, sponsorship, adoption, etc. was also noticed.
These lacunas came into the notice of the Government with the implementation of Convention on the Rights of the Child (CRC) 1989 which was ratified by the Government of India in 1992. The provisions of the CRC were further augmented in two other United Nations instruments, namely the United Nations Guidelines for the Administration of Juvenile Delinquency (Riyadh Guidelines) and United Nations Rules for the Protection of Juveniles Deprived of their Liberty (JDL Rules). The 1993 World Conference on Human Rights held in Vienna and the successive adoption of Vienna Declaration and Programme of Action which urged States to ratify and implement promptly the CRC which made the Government realize the lacunas created by the Act.
3. Juvenile Justice (Care & Protection of Children) Act, 2000
This Act was formulated in order to comply with the provisions laid down in Convention on the Rights of the Child. The object of this Act was to endorse justice and to determine ‘juveniles in conflict with law’ who were decided by the authority of Juvenile Justice Board and ‘juveniles in need of care and protection’ which fell under Child Welfare Committee.
It laid down a new definition of a child, stating that “child” means a person who has not completed eighteen years of age[14]. This Act also provided guidelines for parents whose child was in conflict with the law. This Act also, however, overlooked some substantial and procedural aspects.
4. Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006
The case of Arnit Das v. State of Bihar[15] led to this Amendment. In this case, Arnit was involved in a murder. On the day of the incident, he was 13 days short of 16 years so he was remanded to a juvenile home. This Amendment clarified that juvenility would be considered from the “date of commission of the offence”[16]. This amendment also clarified that a juvenile in conflict with law should not be kept in a police lock-up or jail.
5. Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2015
It included many important definitions such as orphaned[17], abandoned[18] and surrendered children[19] and petty, serious and heinous offences committed by children. It also provided clarity in powers, function and responsibilities of the Juvenile Justice Board and Child Welfare Committee. It laid down special provisions for serious offences committed by children above the age of sixteen years and also included a new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children and made the registration of Child Care Institutions mandatory. For heinous crimes, it also laid down for disposal of preliminary assessment in case of heinous offences under section 15 by the Board within a period of three months from the date of first production of the child before the Board.[20] For inquiry related to heinous crimes, it recommended the steps to be taken by the Board to ensure fair and speedy inquiry where for child below the age of sixteen years (as on the date of commission of an offence) it shall be disposed of by the Board under clause (e) and for child above the age of sixteen years (as on the date of commission of an offence) it shall be dealt with in the manner prescribed under section 15.[21] It also laid down the provision to conduct a preliminary assessment with respect to the mental and physical capacity of a child of sixteen years or above to commit the offence and permits the Board to take the assistance of experienced psychologists for the same[22]. This Act also -provides for the Board to pass an order to transfer the trial of the case to the Children’s Court if it feels that there is a need of the trial of the child as an adult.[23]
ANALYSIS:
The following table gives the number of different type of crimes committed by persons who were below the age of 18 years: the following years have been taken into account.
It can be clearly deduced that the number of crimes committed by juveniles is not reducing substantially, although it is not increasing as well. However, the major concern that can be drawn out of the data available is that the number of juveniles involved in heinous or grave offences such as murder or rape is substantially high. As per the records, 73.8% of the juveniles committing heinous crimes (where punishment prescribed for an adult is 7 or more years of imprisonment) were of the age group between 16 to 18 years.
The United Nations Convention on the Rights of the Child sets out various guidelines with respect to the Administration of Justice with respect to Juvenile offenders. India is also a signatory to the Convention. All persons below the age of 18 years are considered children.[27] There shall be arrest or detention of a child only on the condition that all the other resorts have been used.[28] There shall not be inhuman or cruel treatment or any such punishment to be given to the child.[29] Death Sentence or Life Imprisonment without the possibility of being released is prohibited.[30] The child accused shall also have access to apt legal assistance or any such assistance as it may be required.[31]
There exists a widespread debate on the question that should the juveniles be treated as an adult in cases of certain crimes. The ones who believe that juveniles should be tried as an adult and punished accordingly are those who believe in the deterrent theory of criminal justice. They contend that with the increase in a number of heinous crimes committed by juveniles, it is important that they are punished accordingly so that it deters others from committing the same offence or any other severe offence. Those believing in the deterrent theory are reluctant to accept the juvenile back into the mainstream after he has served his time at the juvenile home or is acquitted from the offence. They believe that even though he is a juvenile he is a criminal and that he must not be accepted again into the society in order to prevent others in the society from getting affected by them and committing crimes. To some, this acceptance is difficult as they believe that it can cast a shadow on the future of the others living in the society and might deviate them to the path of crime. For example, the society does not accept the subculture groups into the mainstream even after the rehabilitation, education or de-addiction of the juveniles as the people fear that they might resort to the older practices of theirs and might pull others also into the subculture with them, causing other children to deviate on the path of crime.
The view against this is primarily based upon the reformative theory of criminal justice. They believe that more than the child it is the fault or failure on the part of society at large. If the society, the government had taken proper care for the children, provided them with proper education then there would not have arisen any need to commit an offence. For example, if a child steals food from a shop then it is because he/she had to satisfy his/her hunger then it is the fault of society and government at large the situation was such where the child was left with no other option but to steal. Another reason for opposing this is the fact that UNCRC had declared that no person under the age of 18 years shall be punished as an adult. If a country that is a signatory to it passes a law which allows children under 18 years of age to be punished as an adult then there was no point of being a signatory to such a convention.[32] It is argued that punishing children in a harsh manner would amount to sending them to fight a war alone.
The second chance theory has been emphasized on by many whereby it is believed that a juvenile should be given a sort of warning on the commission of an offence rather than being punished at first instance. They should only be punished if they repeat the offence. Those believing in giving second chance to such offenders have a soft corner in allowing them to be integrated with the mainstream of the society as they believe that such a person also deserves a chance to live a normal life like the others and that his past should not cast a shadow on his future only because of the fact that he has been convicted of a crime or because he was involved in illegal activities due to lack of understanding or due to company of wrong people. But this is also opposed since this second chance may be seen as a license to the offender to commit the same offence again.
However, it is important to bring into light the very basis on which the entire Juvenile Justice System is formed and immunity to a certain extent is provided to the young offenders, it being the fact that they are not capable of understanding the consequences of the act or the fact that their mind is not developed enough. One cannot ignore the fact that some of the instances that keep on coming up whereby the facts clearly prove that the juvenile offender had behaved in such way as any other mature person would have behaved while carrying on an act. Let us take the example of the Pradyuman Case.[33] In that case, a student of XI Standard (16 years of age) in a school situated in Gurgaon had murdered another student named Pradyuman of that school. During the investigation, it was revealed that the murder was committed by the 16-year-old to postpone the examination and Parent-Teacher meet in school. It was also found that the 16-year-old accused had searched for different kinds of poison that can be dangerous and also had surfed on how to remove fingerprints from weapons such as a knife. These facts clearly prove that the brain of the 16 year old was mature enough whereby he planned the murder in a very mature and precise manner. Instances such as these create a question on the immunity that is given to the young offenders on the basis of the level of understanding not being developed. However, in a lot of the cases, the child is either forced or is used in committing heinous crimes. Thus, it becomes important to decide from case to case basis, based on the facts about how the juvenile had behaved and under what circumstances the act was done. The juvenile laws must be flexible enough rather than having strict rules for determining the method of trial and punishment to be given based on age only.
The USA Supreme Court took a very flexible view and opined that all juveniles should not be classified into a single class instead; juveniles should be given individual consideration and evaluated on the basis of their particular maturity level, intelligence, life experience and feelings of moral responsibility, background history.[34] Therefore giving due consideration to the idea of differential treatment of juveniles. This view is very relevant in the present context where things such as technology play a very vital role in the mental development of a child. The Supreme Court of India in Gaurav Kumar v. State of Haryana[35], believed that when it comes to heinous offences such as rape, dacoity, it is difficult to believe that the offender was not aware of the consequences of the act owing to his/her age being less than 18 years.
The Hon’ble Supreme Court has clearly stated in the case of Parag Bhati v. State of U.P.[36] that “the benefit of the principle of benevolent legislation attached to the JJ Act would apply only to such cases where the accused is held to be juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the accused who is involved in a grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of shield to dodge the arms or law, cannot be allowed to come to his rescue.”
CONCLUDING REMARKS:
Herbert Hoover, 31st President of the United States, said ‘Children are our most valuable resource’. It is, therefore, necessary to take care of them and prevent them from deviating to the path of crime. An attempt has been made here to deduce the causes behind such deviation of children and how these children are treated distinctly in different parts of the world. The various theories of Juvenile Delinquency throw some light on the external and behavioural factors which cause the juveniles to commit heinous crimes and to the extent to which such crimes are committed. To see each case of juvenile delinquency with one view which is based only upon age would not be appropriate. This is where we feel that the 2015 amendment to the Juvenile Justice Act has addressed this problem. It does not provide that all the juveniles between the age of 16 to 18 years should be tried as an adult in cases of heinous crimes, rather it provides aptly, that the Juvenile Justice Board, on consideration of various factors, has to determine that whether the juvenile is to be tried as an adult or not an then only the trial shall take place accordingly. Such flexibility was the need of the hour. However, this Act does not assure that the juveniles who are younger shall not try to take the defence of juvenility by using the defence of being completely exempted from criminal liability. It also took only the punitive aspects into consideration and did not take the aspect of rehabilitation which can be possible in many cases.
Another thing that has to be addressed is to fight with the factors that cause juveniles to commit crimes. Although there are a lot of factors and no uniformity in the pattern is observed, certain prominent factors such as poverty and lack of education have to be addressed. Also, a detailed study needs to be conducted regarding the psychology of the juveniles who are involved in crimes. Those who are frequent offenders must be given proper care and attention in the process of reformation. Only having harsh laws to deter the juveniles from committing crime won’t serve the purpose since a lot of times, children are used as a medium to commit a crime by various criminal groups. The government should be conducting seminars or workshops on how to provide proper care and attention to the children so that they do not get influenced by negative elements present in the society or how to bring those children back to their normal lives that have been influenced by such negative elements. The children who are vulnerable to commit crimes, such as those who might have suffered injustice at the hands of society or those who are not having anyone to look after them, must be given more care and attention. We all must understand that only laws are not the means to achieve any desired outcome in society. It is by collective efforts of society at large, along with the support of various institutions and government, the problem of crimes by juveniles could be addressed.
***
Authors are the students of Gujarat National Law University, Gandhinagar.
[1] JUVENILE | meaning in the Cambridge English Dictionary, available at https://dictionary.cambridge.org/dictionary/english/juvenile. [2] Juvenile | definition of juvenile by Merriam-Webster, available at https://www.merriam-webster.com/dictionary/juvenile. [3] The Juvenile Justice (Care and Protection) Act, 2015, §2(12), No. 2, Acts of Parliament, 2016 (India). [4] Robert K. Merton, Social Structure and Anomie, American Sociological Review, Vol. 3, No. 5. (1938). [5] Randy Seepersad, Review of the Roots of Youth Violence: Literature Review, Ontario (June 06, 2016, 01:33 PM), http://www.children.gov.on.ca/htdocs/English/professionals/oyap/roots/volume5/chapter04_social_disorganization.aspx#foot3. [6] Richard A. Cloward & Lloyd E. Ohlin, Delinquency And Opportunity: A Theory Of Delinquent Gangs (1960). [7] N. V. Paranjape, Criminology And Penology (14th Ed. 2009). [8] Glueck, Sheldon and Glueck Eleanor, Unraveling Juvenile delinquency 36 (1950). [9] Juvenile Justice in different countries, available at http://www.esocialsciences.org/Download/Download.aspx?qs=sO61F/RYd+YqfWs04so3MZBQKD9AIjydXawOffTEqOcFWmWzekTulgmBDaeNtthfeR/c0Duslmr+nLgOmXpAIFGB9C/yU9AX02mPvAv5Tle96MkxQhOs5Ide7xJwjsMtzDq8A6abfHyqgt1pqhXGxA. [10] The Indian Penal Code, 1860, §82, No. 45, Acts of Parliament,1860 (India). [11] The Indian Penal Code, 1860, §83, No. 45, Acts of Parliament,1860 (India). [12] The Children Act, 1960, §2(e), No. 60, Acts of Parliament,1960 (India). [13] The Juvenile Justice Act, 1986, § 4, No. 56, Acts of Parliament, 1986 (India). [14] The Juvenile Justice (Care & Protection of Children) Act, 2000, §2(k), No. 56, Acts of Parliament, 2000, (India). [15] Arnit Das v. State of Bihar, (2000) 5 SCC 488. [16] The Juvenile Justice (Care & Protection of Children) (Amendment) Act, 2006, Cl.4(4), No. 33, Acts of Parliament, 2006 (India). [17] The Juvenile Justice (Care & Protection of Children) Act, 2015, § 2(42), No. 2, Acts of Parliament, 2016, (India). [18] The Juvenile Justice (Care & Protection of Children) Act, 2015, § 2(1), No. 2, Acts of Parliament, 2016, (India). [19] The Juvenile Justice (Care & Protection of Children) Act, 2015, § 2(60), No. 2, Acts of Parliament, 2016, India). [20] The Juvenile Justice (Care & Protection of Children) Act, 2015, § 14(3), No. 2, Acts of Parliament, 2016, (India). [21] The Juvenile Justice (Care & Protection of Children) Act, 2015, §14(5)(f), No. 2, Acts of Parliament, 2016, (India). [22] The Juvenile Justice (Care & Protection of Children) Act, 2015, §15, No. 2, Acts of Parliament, 2016, (India). [23] The Juvenile Justice (Care & Protection of Children) Act, 2015, §18(3), No. 2, Acts of Parliament, 2016, (India). [24] Ministry of Home Affairs, National Crime Records Bureau, Juveniles in conflict with law under Different Crime Heads of Indian Penal Code, Crimes in India 2016. [25] Ministry of Home Affairs, National Cr7me Records Bureau, Juveniles in conflict with law under Different Crime Heads of Indian Penal Code, Crimes in India 2017. https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202017%20-%20Volume%201_0.pdf [26] Ministry of Home Affairs, National Crime Records Bureau, Juveniles in conflict with law under Different Crime Heads of Indian Penal Code, Crimes in India 2018. https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202018%20-%20Volume%201.pdf [27] Convention on the Rights of the Child, 2 September 1990, Treaty Series, vol. 1577, p. 3, art 1. [28] Convention on the Rights of the Child, 2 September 1990, Treaty Series, vol. 1577, p. 3, art 37. [29] Id. [30] Id. [31] Id. [32] Convention on the Rights of the Child, 2 September 1990, Treaty Series, vol. 1577, p. 3, art 37. [33] FP Staff, Gurugram school murder: CBI chargesheets 16-yr-old, says accused googled ways to remove bloodstains, fingerprints, June 8 2018, available at https://www.firstpost.com/india/ryan-school-case-cbi-files-5000-page-chargesheet-against-class-xi-student-for-pradyuman-thakurs-murder-4336373.html. [34] Roper v. Simmons, 2005 SCC OnLine US SC 12. [35] Gaurav Kumar v. State of Haryana, (2015) 16 SCC 310. [36] Parag Bhati v. State of U.P, (2016) 12 SCC 744.