Juvenile Justice (care and protection of children) Act 2015 Progressive or Populist

The Rajya Sabha has passed the Juvenile Justice (care and protection of children) Act 2015 thereafter called J.J. Act on Tuesday, 22 December 2015 which provides, that any person aged between 16 and 18 years and accused of a heinous offence- defined as a crime for which there is a sentence of seven years or more under the Indian Penal Code – may be tried under the IPC and not the J.J Act if, after a preliminary inquiry, the Juvenile Justice Board feels that the crime was committed with full knowledge and understanding of the consequences. The J.J. Act also lays down, adoption norms.

The Juvenile Justice bill was passed after the main opposition Congress changed its stance and backed the ruling BJP. Earlier two notices for sending the bill to the select committee had been submitted by Congress (Santa Ram Naik) M.P. and Derek O’Brien of Trinomool Congress. The important question arises whether the change in stance is due to a change of heart or is the result of the populist support of the same.

The J.J. act must also be examined in the light of the law relating to the Juvenile in other parts of the world. “In England and Wales, for several offences, children above the age of 10 are held to be criminally liable. In Australia, the prescribed age is 14-18 years for children to be responsible for their actions under criminal law. In the United States, many states have the age of 12 years for holding children responsible for criminal acts. In New York and Texas, the age is 17 years. In Bangladesh, it is 16 years and in Denmark, it is 15 years. And psychologists now feel that the children are grown-ups by the age of 14, responsible for their actions.

Before giving my opinion about the said J.J. Act, I would like to refer to opinion of some other eminent experts on the above subject:

Shri Kailash Satyarthi Nobel Peace laureate has hailed the passing of the act as a major legislative reform. Similarly senior advocate T S Tulsi, pointed out that jurisprudence the world over was moving towards a lowering of the age of juveniles. Shri G. Mohan Gopal former Director of National Judicial Academy and former Director of the National Law School of India, Bangalore has pointed out that the law blindly copies and applies to India the failed, and much criticized policy of the United States, which involves”, transferring”, children to the adult criminal justice system. The US has one of the worst systems of criminal justice in the world, with a high crime rate, high incidence of violence, massiv corruption and brutality in the prison system, and the harshest punishment, including the highest rate of imprisonment. The US is also the global laggard in juvenile justice, according to the former Director “ In England and Wales, for several offences, children above the age of 10 are held to be criminally liable. In Australia, the prescribed age is 14-18 years for children to be responsible for their actions under criminal law. IN the United States, many states have the age of 12 years for holding children responsible for criminal acts. In New York and Texas, the age is 17 years. In Bangladesh, it is 16 years and in Denmark, it is 15 years. And psychologists now feel that the children are grown-ups by the age of 14, responsible for their actions.”

Avintaka Ghosh, writer points out the inherent contradiction in the juvenile justice act and points out that the definition of a child is different according to the various acts applicable in this country. The protection of children from Sexual Offensive Act 2012 or POCSO defines as anyone less than 18 years of age as a child. The minimum age at which a man can marry is 21 years is in keeping with the recent neuro scientific evidence. The minimum age under the Excise law at which a person is allowed to drink is 18 years and no Indian can vote before he or she is 18 years of age. These are the contradictions pointed out by Ms. Ghosh. According to Aman Hingorani, practicing advocate the act has provided an arbitrary cut off date and it is mental capacity, not age which should determine if juveniles ought to be tried as adults. It is therefore clear that the views of the eminent experts differ in their view about the utility of the new act.

Before giving a considered opinion on the efficacy of Juvenile Justice (care and protection of children) Act 2015, it is necessary to examine the meaning of the word Juvenile. According to the chambers 20th Century dictionary , the word Juvenile means pertaining or suited to youth or young people: having or retaining characteristic of youth. According to the new Webster’s dictionary the word Juvenile means young: youthful; immature; pertaining or suited to youth.

According to the concise of Oxford Thesaurus Juvenile means young, junior, minor.

It would be also necessary to examine the earliest act viz the Juvenile Justice Act 1986, the word Juvenile means a boy who has not attained the age of 16 or a girl who has not attained the age of 18 years. This act also provides for Juvenile Welfare Boards, Juvenile Courts, special homes, observation home and care of neglected juvenile. According to Section 22 of the said act Notwithstanding anything to the contrary contained in any other law for the time being in force, no delinquent juvenile shall be sentenced to death or imprisonment, or committed to prison in default of payment of fine or in default of furnishing security:Further section 24 provides that there will be no joint trial or Juvenile and persons not a Juvenile. Further section 23 provides for the following circumstances to be taken into consideration in making order under the act: a) the age of the juvenile;

b) the state of physical and mental health of the juvenile;

c) the circumstances in which the juvenile was and is living;

d) the reports made by the probation officer;

e) the religious persuasion of the juvenile;

f) such other circumstances as may, in the opinion of the competent authority, require to be taken into consideration in the interest of the welfare of the juvenile.

Thus the juvenile justice act of 1986 was a comprehensive act and that act clearly define that juvenile means a boy, who has not attained the age of 16 years, or a girl who has not attained the age of 18 years. Thus the juvenile was a boy, who has not attained the age of 16 years.

However, the Juvenile Justice (Care and Protection of Children Act, 2000) provided that a juvenile or child means a person who has not completed 18 years of age. This was a big change from the earlier Juvenile Justice act of 1986. The statement of object and reasons clarifies the reason for this change. The said act was re-enacted in view of the standards prescribed in the convention on the rights of the child, the United Nations standard minimum rules for the administration of Juvenile Justice 1985 (the Beijing rules), the United Nations rules for the protection of Juvenile Deprived of their Liberty (1990). The act also provides for continuation of enquiry in respect of Juvenile who has ceased to be a juvenile. The said act also provides for creation of juvenile justice board and enquiry to be made by them. The act also provides for establishment for observation homes. The said act also provides for the child welfare committee and for rehabilitation and social re-integration of the children.

This act is also exhaustive, but for the purpose of this article the emphasis is only on the age when a child ceased to be Juvenile. This act made the age of a juvenile or child who has not completed 18 years of age.

Thereafter comes the Juvenile Justice (Care and Protection of Children Act 2015) which led to a prolonged debate in the Rajya Sabha and the particulars of the said debate have been discussed in the preceding paragraph.

In my considered opinion although it is correct that the act has been hastened on account of the out cry against the release of the juvenile convict in the Nirbhay Case, but the fact remains that the new act can not be called merely as the result of populist measure.

The facts and figures of the juvenile crime record also supports my view. The number of juvenile crimes went up from 35465 in 2012 to 42566 in 2014 under the IPC, although it still formed only 12 per cent of the overall crime rate over the last three years.

Every day the newspapers are reporting fresh news of the dastardly crimes and in human crime being committed by the juvenile in all the metropolitan towns of the country. Therefore, the new act is not a populist moment but it is an act needed by the in the present situation.

Mr. Keshav Dayal  Senior Advocate , Supreme Court Of India Patron :Dayal Legal Associates.

DEEPAK DAYAL (MBA, LLB) | Managing Partner, Dayal Legal Associates .India. Advocate, Supreme Court Of India. 

[email protected] https://www.dayallegal.in

M : +919560732244 O:   +919069113331