Chapter 1: Introduction

Chapter 1: Introduction

Chapter 1 INTRODUCTION Children are the greatest gift to humanity and supreme assets of the nation. More than a century ago, Abraham Lincoln said: “A child is a person who is going to carry on what you have started. He is going to where you are sitting, and when you are gone, attend to those things you think are important. You may adopt all the policies you please, but how they are carried out depends on him. The fate of humanity is in his hands. Children are a human resource, invaluable but vulnerable, yet developing with potentiality to bloom with joy in an atmosphere of caring society. They are great promise of tomorrow, the dawn of humanity and bud of social development. A child of today can not develop to be a responsible and productive member of tomorrow’s unless an environment which is conducive to his social and physical health is assured to him. A humanist approach towards children is embedded in Indian culture. Ancient Indian jurisprudence emphasized that there could be no real gift or sale of one’s child. This meant that any unjustified parting with the child is unlawful. Kautilya prescribed that it is the duty of village elders to ensure proper development of the infants. Children are vulnerable and due to lack of proper care and attention they are taking law in there hands. In a developing country like India the problem of juvenile neglect and delinquency is considerably low but gradually increasing at good rate. Considering the magnitude of the problem and issues involved, analysis indicates that the number of factors for neglect and delinquency are mostly common and interrelated, based on socio-economic and psychological reasons. Poverty, broken homes, family tension , emotional abuse, rural – urban migration, break down of social values, atrocities and abuse by parents or guardian, faulty education and such other conditions explain the phenomena of juvenile delinquency. The neglect of child by 1

Chapter 1: Introduction

their parents, family, society create detrimental effect on their physical, mental growth and over all development. Needless to say that most of the factors causing delinquency are in plenty in Indian context and any attempt to prevent and control them can be fruitful for society. After all, children represent nation and coming future of country. Children do not belong in prison. Children should go to school. They should play and enjoy themselves. But at least one million children and youngsters – and maybe far more, nobody knows – are locked up in closed institutions, booth camps, detention centres, prisons and other facilities. Because... yes, because of what? Because they are in trouble, because they caused trouble, because they are living on the streets, because they are illegally in another country, because they are in conflict with the law (or is the law in conflict with them?), because their parents cannot take care of them, or because their parents do not want to take care of them. These children, these minors and youngsters, are forgotten, out of sight, unwanted. Forgotten, sometimes by their parents, in many cases by their communities, and often even by the authorities who put them behind bars.1

1

Stan Meuwese(ed.) Kids Behind Bars p 3(Stenco, Amsterdam, 2003)

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Chapter 2: Who is a Juvenile?

Chapter 2 WHO IS A JUVENILE? The legislative prescription of age for someone to be treated as a juvenile varies from place to place and purpose to purpose. In the United States it ranges 16 to 21 but 18 is the most common. In England, a child below 10 cannot be committed of any criminal offense because of an irrefutable presumption of innocence and absence of mens rea. Between the age of 10 and 14 they are in a 'twilight zone' - in which they are morally responsible not as a class but as individuals, when they know their act to be wrong. In France and Poland the age limit is 13, in Australia, Germany, Norway it is 14 and in Denmark and Sweden it is 15 whereas it is 09 years in Israel, 10 years in Great Britain and 12 years in Greece.

The legal definition of a child varies depending upon the purpose : whether it is for imposing legal disabilities, for spelling out duties and obligations or for affording protection for establishing eligibility to receive benefits or special service. Underlying these alternative definitions are also very deterrent conceptions of child. These include viewing children as a burden which invoke rights to maintenance and support, regarding children as undergoing temporary disabilities making for rights to special treatment and special discrimination, treating children as especially vulnerable for ensuring rights of protection and recognizing children as sources for the countries development giving rise to right of nurturing and advancement. Thus we see that under different economic and sociocultural circumstances, the child has also been regarded as commodity, as an insurance, as a source of labour and as a social burden.

So is the case in our country, Here too, the definition of a child varies with the purpose. Generally a person below 14 years of age is treated as 'child.' The Census of lndia treats persons below the age of fourteen as 'children.' It is to be noted that social scientists, while making use of standard demographic data, include females in the age group of 15 to 19 years under the category of the 'girl child.' A “Juvenile” or “Child” means a person who has not completed eighteen years of age.

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Chapter 2: Who is a Juvenile?

According to International Law, a ‘Child’ means every human being below the age of 18 years. Today this is a universally accepted definition of a child which comes from the United Nations Convention on the Rights of the Child (UNCRC). Under the Indian Laws, Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act,2000 defines “juvenile” or “Child” as a person who has not completed eighteenth year of age. Definitions of Juvenile/Child under various national legislations: Child Labor (Prohibition and Regulation) Act, 1986. Section 2 (ii), “Child” means a person who has not completed the age of 14 years. Child Marriage Restraint Act, 1929. Section 2 (a), “Child” means a person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age. Immoral Traffic (Prevention) Act, 1956. Section 2 (a), “Child” means a person who has not completed the age of sixteen years.

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Chapter 3: Child in Conflict with Law

Chapter 3 CHILD IN CONFLICT WITH LAW

The term ‘children in conflict with the law’ refers to anyone under 18 who comes into contact with the justice system as a result of being suspected or accused of committing an offence. Most children in conflict with the law have committed petty crimes or such minor offences as vagrancy, truancy, begging or alcohol use. Some of these are known as ‘status offences’ and are not considered criminal when committed by adults. In addition, some children who engage in criminal behaviour have been used or coerced by adults. Too often, prejudice related to race, ethnicity or social and economic status may bring a child into conflict with the law even when no crime has been committed, or result in harsh treatment by law enforcement officials. In India the number of cases of child in conflict with laws has increased from 17,203 in 1994 to 30,943 in 2004. The crimes committed by juveniles have also seen an increase in the same period from 8,561 to 19,229. Some of the increase can be attributed to the definition of juveniles being changed to include ages 16-18, but none the less more and more children are coming into conflict with law in the 16-18 age group. Juvenile delinquency has a two dimensional basis, Firstly, the violation of any code of conduct whether for adults or for young persons, is inevitable. Secondly, the definition of juvenile delinquency as deviant child behaviour itself depends upon the norms laid down by the society, in other words by elders, the clash of values due to generation gap is bound to occur. Constitutionally no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. However, various legislative enactments provide for a different definition of a child. In criminal law nothing is an offense which is done by a child under seven years of age. Further nothing is an offense which is done by a child above seven years of age but under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion. Whereas under juvenile law 'juvenile' is a boy who has not attained the age of sixteen years and girl who has not attained the age of eighteen years.

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Chapter 3: Child in Conflict with Law

There are various reasons why children end up committing crimes. About 64% of cases in 2004 were children who had no education or only education up to primary level. Children living with parents/guardians accounted for 76.6% of the total juveniles arrested. The number of homeless children arrested for various crimes was only 7.5%. Juveniles usually come from poor families earning less than Rs. 25,000 a year (72.3%). Often children are victims of crime as they are used for begging, drug peddling, and prostitution. A major area of concern is the rise of juvenile crimes in the overall crimes committed in the country. In 1994 juvenile crimes amounted to 0.5% of all crimes committed. In 2004 that number has doubled to 1%. The Juvenile Justice system has gives rise to many child rights concerns as children are often denied bail for petty crimes, the responsible stakeholders do not carry out proper social investigations, the conditions in the homes is often unsafe and inhumane, and juvenile justice boards are not child friendly and functions like an adult court. Thus under family law 'child' means a person who, if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age." Under labour laws, a person : shall not be qualified to be engaged as an apprentice unless he is not less than fourteen years of age. Again no child who has not completed his fourteenth year small be required or allowed to work in any factory. And no person below eighteen years of age shall be allowed to work in any mine, or part thereof. As regards the child labour prohibition and regulation law 'child' means a person who has pot completed his fourteenth year of age. With an increasing crime rate in the country as well as increasing number of people being imprisoned either as part of their sentence or waiting trial there is need to consider the needs of children whose parents have been imprisoned. Judicial proceedings or police arrests need to take into account the larger unintended consequences of penal sanctioning. The detainment of parents severely reduces families and communities economic and social abilities to successfully raise children. It also leaves the child in long periods of uncertainty and instability. This is especially seen with illegal immigrant families whose children spend months sometimes years in children's homes awaiting the release of their parents.

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Chapter 4: Juvenile Delinquency

Chapter 4 JUVENILE DELINQUENCY It is very difficult to give any precise definition of juvenile delinquency. The sociologists argue that any legal definition does not help to understand true nature of delinquency and in concluding as to who are child in conflict with laws because the arrest or conviction of a child may depend upon various casual factors. Besides, such a definition differs from place to place and from time to time and hence cannot be taken as a sound base for scientific studies. Whereas the advocates of legal definition contend that a legal definition gives a basic premise in which the pitfalls resulting due to individual or group opinions avoided to give, as for as possible, a scientific and precise character to crimino1ogy. The juvenile delinquency may be defined as an act prohibited by a law for children upto a prescribed age limit and, therefore, a child found to have committed an act of juvenile delinquency by a court of law is a child in conflict with law. Further we often find vagueness in the terms of the contents of statutes defending various delinquent acts. This thing goes against the basic principle of criminal law. The law defining crimes must be certain and clear. The Illinois law defines a delinquent who is unmanageable or who is growing up in idleness, one who wanders about the streets in night time without being on any lawful business, or one who is guilty 'of indecent or lascivious conduct. Laws in some other States are still more vague. The word juvenile delinquent is not used anymore. The word “juvenile delinquents” has been replaced by “child in conflict with law”. Similarly the children are not ‘arrested’ but ‘apprehended’. 4.1 THE ISSUE OF AGE DETERMINATION Age determination has been a tricky and controversial issue in juvenile justice. A number of cases have been decided by the courts in this regard. In the context of juvenile legislation in India, a juvenile is a person who has not completed eighteen years of age 2. Only children below seven to twelve years of age who are sufficiently mature to understand the repercussions if their act and children between twelve to eighteen years of age can be tried under Juvenile Justice Act as children below seven years of age have been granted blanket 2

Section 2 (k) of JJ Act, 2000

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Chapter 4: Juvenile Delinquency

immunity, as mentioned above, by the Indian penal Code. The objective is not to treat such children as adults for their criminal behaviour but to reform and rehabilitate them. I call the issue of age determination controversial because there is no clarity on the point. Even in the case of Indian Penal Code, sections 82 and 83 talk about children below and above seven years of age but it is silent about seven year old children. Who is to determine the age bracket they fall in? Section 49 (1)3 of the Juvenile Justice Act, 2000 confers the power on competent authority to determine whether the person brought before it is a juvenile, if he/she appears to be so. But the procedure to determine juvenility of a person cannot be relied on. The two ways to determine age of the accused are documentary evidence and medical evidence. In Jaya Mala v. Home Secretary, Government of J&K4 the apex court held that the age as ascertained by medical examination is not conclusive proof of age. It is mere opinion of the doctor and a margin of 2 years could be on either side. By the Allahabad high court’s own admission, a doctor is not always truthful. In Smt. Kamlesh and anr. v. State of UP5, the court maintained that a professional witness is prone to side with a party that engages his/her services. Thus, a doctor is not always truthful. Now, if age cannot be determined conclusively by using either documentary evidence or medical evidence, what is to be done? The Supreme Court in Shah Nawaz v. State of Uttar Pradesh & Anr., has examined the meaning and mode of determination of age of a delinquent 'Juvenile' under the Juvenile Justice (Care and Protection of Children) Rules, 2007. The relevant excerpts from the judgment are reproduced hereunder; Before considering the merits of the claim of the appellant and the stand of the State, let us consider Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as `the Rules') which reads as under:"12. Procedure to be followed in determination of Age. (1.) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall

3

Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. 4 AIR 1982 SC 1297 5 2002 CriLJ 3680

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Chapter 4: Juvenile Delinquency

determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2.) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3.) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4.) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

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Chapter 4: Juvenile Delinquency

(5.) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6.) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." In the light of the above procedure to be followed in determining the age of the child or juvenile, let us consider various decisions of this Court.

In Raju and Anr. vs. State of Haryana6, this Court had admitted "mark sheet" as one of the proof in determining the age of the accused person. In that case, the appellants therein Raju and Mangli along with Anil alias Balli and Sucha Singh were sent up for trial for allegedly having committed an offence punishable under Section 302 read with Section 34 of the IPC. Accused Sucha Singh was found to be a juvenile and his case was separated for separate trial under the Act. Others were convicted under Section 302 read with Section 34 of the IPC and were sentenced to imprisonment for life and to pay a fine of Rs. 5,000/-. Apart from contending on the merits of the prosecution case, insofar as appellant No. 1, Raju, is concerned, the counsel appearing for him submitted that on the date of the incident that is on (31.03.1994), he was a juvenile and as per his mark sheet, wherein his date of birth was recorded as 1977, he was less than 17 years of age on the date of the incident. Learned counsel submitted that having regard to the recent decision of this Court in Hari Ram vs. State of Rajasthan & Anr.,7 , appellant No. 1 must be held to have been a minor on the date of the incident and the provisions of the Act would apply in his case. Learned counsel further contended that the appellant No. 1 would have to be dealt with under the provisions of the said Act in keeping with the decision in the aforesaid case. On merits, while accepting the claim of the learned counsel for accused-appellant, this Court altered the conviction and sentence and convicted under Section 304 Part I read with Section 34 IPC instead of Section 6 7

(2010) 3 SCC 235 (2009) 13 SCC 211

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Chapter 4: Juvenile Delinquency

302 read with Section 34 IPC. As far as appellant No. 1, namely, Raju was concerned, while accepting the entry relating to date of birth in the mark sheet referred his case to the Board in terms of Section 20 of the Act to be dealt under the provisions of the said Act in keeping with the provision of Section 15 thereof. It is clear from the said decision that this Court has accepted mark sheet as one of the proof for determining the age of an accused person.

Similarly, this Court has treated the date of birth in School Leaving Certificate as valid proof in determining the age of an accused person. In Bhoop Ram vs. State of U.P.8, this Court considered whether the appellant therein is entitled lesser imprisonment than imprisonment for life and should have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act, 1951 (1 of 1952). The following conclusion in para 7 is relevant which reads as under:"7.....The first is that the appellant has produced a school certificate which carries the date 246-1960 against the column "date of birth". There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars.... " It is clear from the above decision that this Court relied on the entry made in the column "date of birth" in the School Leaving Certificate. In Rajinder Chandra vs. State of Chhattisgarh and Anr9, this Court once again considered the entry relating to date of birth in the mark sheet and concluded as under: "5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case. 8 9

(1989) 3 SCC 1 . (2002) 2 SCC 287

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Chapter 4: Juvenile Delinquency

In Arnit Das vs. State of Bihar10 this Court held that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be juvenile in borderline cases. In Ravinder Singh Gorkhi vs. State of U.P.11 with regard to the entries made in School Leaving Certificate, this Court has observed as under:"17. The school-leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 1-8-1967 and his name was struck off from the roll of the institution on 6-5- 1972. The said school-leaving certificate was not issued in the ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school-leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced." In Pradeep Kumar vs. State of U.P.12, this Court considered the commission of offence by persons below 16 years of age. The question before a three- Judge Bench was whether each of the appellants in those appeals was a child within the meaning of Section 2(4) of the U.P. Children Act, 1951 and as such on conviction under Section 302 read with Section 34 IPC should have been sent to an approved school for detention till the age of 18 years. At the time of granting special leave, appellant, by name, Jagdish produced High School Certificate, according to which he was about 15 years of age at the time of occurrence. Appellant - Krishan Kant produced horoscope which showed that he was 13 10

, (2000) 5 SCC 488, (2006) 5 SCC 584 12 1995 Supp (4) SCC 419 11

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Chapter 4: Juvenile Delinquency

years of age at the time of occurrence. So far as appellant - Pradeep was concerned, a medical report was called for by this Court which disclosed that his date of birth as 07.01.1959 was acceptable on the basis of various tests conducted by the medical authorities. In the above factual scenario/details, this Court concluded as under:"3. It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act" After saying so and after finding that the appellants were aged more than 30 years, this Court directed not to send them to an approved school under the U.P. Children Act for detention, while sustaining the conviction of the appellants under all the charges framed against them, quashed the sentences awarded to them and ordered their release forthwith. The applicability of the Act and the Rules in respect of "Juvenile" and "Juvenile in conflict with law" have been elaborately considered by this Court in Hari Ram13 After analyzing the Scheme of the Act and various Rules including Rule 12 and earlier decisions of this Court laid down various principles to be followed. After applying those principles and finding that the appellant therein was 16 years of age on the date of the commission of the alleged offence and had not been completed 18 years of age, remitted the matter to the Board for disposal in accordance with law. But On August 31, 2013, the Juvenile Justice Board (JJB) ordered that the boy who raped Nirbhaya, brutalised her with an iron rod, pulled out her intestines and then cleaned up the bus and made tea would go virtually free by sentencing him to only 28 months in a remand home as eight months of the total 36 months’ sentence had already been served. This order is subject to review by the JJB based on the behaviour of the juvenile and the police are required to expunge this crime from his record in order to ensure complete rehabilitation. Despite the unprecedented street protests following the Nirbhaya rape, there has been little substantive debate on the adequacy of the Juvenile Justice Act to deal with such heinous crimes.14

13

supra Balancing the juvenile act available at http://www.thehindu.com/opinion/lead/balancing-the-juvenileact/article5107620.ece(Visited on 2nd oct 2013) 14

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Chapter 5: Juvenile Justice System

Chapter 5 JUVENILE JUSTICE SYSTEM The juvenile justice system in India contemplates the legal response with respect to two categories of children, namely those who are 'in conflict with law' (an individual under the age of 18 years who is accused of committing an offence); and those 'in need of care and protection' (children from deprived and marginalized sections of society as well as those with different needs and vulnerabilities). The juvenile justice policy in India is structured around the Constitutional mandate prescribed in the language of Articles 15(3), 39 (e) & (f), 45 and 47, as well as several international covenants, such as the UN Convention on the Rights of the Child (CRC) and the UN Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules). 5.1 HISTORY OF JUVENILE JUSTICE Ancient India though governed by a number of laws hardly had any law specially dealing with juvenile delinquency. As the problem of neglected children and juvenile delinquency grew with times, a need for legislation to that effect was felt. India, a British colony then took inspiration from England, which by then had already passed its own juvenile legislation.15 The Apprentices Act was passed in 1850 as the first juvenile legislation to deal with children in India.16 As per the provisions of this act, children between ten to eighteen years of age found indulging in crime were placed in apprenticeship in a trade. The Indian Penal Code came after another ten years had passed. Though it is not a specific legislation dealing with juvenile justice, nevertheless it has some provisions when it comes to underage criminals. Section 8217 of the IPC grants blanket immunity to a child below seven years of age imbibing the principle of doli incapax. The Latin term literally means ‘incapable of crime’. IPC assumes that a child less than seven years of age does not have the capacity to 15

Juvenile Offenders Act, 1847 as cited in Shore, Heather, The Idea of Juvenile Crime in 19th Century England, History Today, Issue: 50 (6) available online athttp://www.orange.k12.oh.us/teachers/ohs/tshreve/apwebpage/readings/juvcrime19cbr.html 16 Edited by Witerdyk, A. John, Juvenile justice Systems: International Perspectives, 266, Canadian Scholars Press Inc. Edition: 2, 2002 available online at http://books.google.co.in/books?id=uvGI134Q_tcC&pg=PA266&lpg=PA266&dq=1st juvenile justice legislation in India&source=bl&ots=RjIc37SSui&sig=zOuMDCtN_HLr7Ib19JLc_N2ks4&hl=en&ei=d9ixSrmqEI_gMbSd_ckL&sa=X&oi=book_result&ct=result&resnum=5#v =onepage&q=&f=false 17 Nothing is an offence which is done by a child under seven years of age

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Chapter 5: Juvenile Justice System

form a mental intent to commit a crime knowingly. Section 8318 of the IPC is an extension of section 82 with a rider attached. It grants qualified immunity to a child aged between seven to twelve years. The next milestone in the history of development of juvenile justice in India was The Reformatory School Act of 1876 which had a provision to empower the government to establish reformatory schools and to keep young criminals there till they found employment. Thereafter, a jail committee was appointed in 1919 following the recommendations of which separate legislations dealing with juvenile delinquency were enacted in different provinces, the first ones being in Madras19, Bengal20 and Bombay21. Since then, as Professor B.B. Pande of Delhi University puts it, “the twin concepts of "juvenile delinquency" and "juvenile justice" have gone through a constant process of evolution and refinement.”

22

After we gained independence, in 1960 a new act focussing on

children was passed. This was the Children Act, 1960 to “provide for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in the Union Territories.”23 Even after this, the juvenile justice system faced different problems; the most important of them being the fact that different states had different acts to deal with juvenile delinquency which led to children in equal situation being judged differently in accordance with different provisions in different acts. The Supreme Court in Sheela Barse v. Union of India 24 observed “we would suggest that instead of each State having its own Children's Act in other States it would be desirable if the Central Government initiates Parliamentary Legislation on the subject, so that there is complete uniformity in regard to the various provisions relating to children in the entire territory of the country. The Children's Act which may be enacted by Parliament should contain not only provisions for investigation and trial of offences against children below the age of 16 years but should also contain mandatory provisions for ensuring social, economic and psychological rehabilitation of the children who are either accused of offences or are abandoned or destitute or lost. Moreover, it is not enough merely to have legislation on the subject, but it is equally, if not more, important to ensure that such legislation is 18

Nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion 19 Madras Children Act, 1920 20 Bengal Children Act, 1922 21 Bombay Children Act, 1924 22 Pande, B.B., Rethinking Juvenile Justice: Arnit Das Style, (2000) 6 SCC (Jour) 1 23 Adenwalla, Maharukh, Child Protection and Juvenile Justice Sysyem: for Juvenile in Conflict with Law, 13, Childline India Foundation, December 2006 24 (1986) 3 SCC 632

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Chapter 5: Juvenile Justice System

implemented in all earnestness and mere lip sympathy is not paid to such legislation and justification for non-implementation is not pleaded on ground of lack of finances on the part of the State. The greatest recompense which the State can get for expenditure on children is the building up of a powerful human resource ready to take its place in the forward march of the nation.” This led to the passing of Juvenile Justice Act, 1986 for the care, protection and rehabilitation of juvenile delinquents and neglected children. This act was soon replaced by Juvenile Justice (Care and Protection of Children) Act, 2000; the reason for the replacement being deficiency in the old Juvenile Justice Act of 1986 that it did not provide for the differential approach to delinquent juveniles and neglected juveniles. “The aim of J.J.A. 2000 is to consolidate and amend the law relating to juveniles in conflict with law and children in need of care and protection, by providing for proper care. Protection and treatment by catering to their development needs, and by adopting a, child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.”25

5.2 PRESENT DAY SCENARIO Prior to the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 the policy was based on the Juvenile Justice Act, 1986 and various State legislations dealing with the rights and welfare of children. However, a review of the working of the said legislations indicated that much greater attention was required and a distinction had to be drawn between the

treatment of ‘children in conflict with the law’ and those ‘in need of care and

protection’. In this regard, one of the key objectives of the Juvenile Justice Act, 2000 was to create a separate system of justice-dispensation for instances where children are accused of committing offences, distinct from the criminal justice system for adults. The Act also contemplates the effective involvement of informal social arrangements at the level of the family, voluntary organisations and the community. It was widely perceived that even the 2000 Act did not achieved what it set out to do and that the justice-delivery system for juveniles continues to suffer from neglect and apathy. For instance, empirical studies indicated that there were extensive delays in the disposal of 25

Preamble to Juvenile Justice (Care and Protection of Children Act), 2000.

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Chapter 5: Juvenile Justice System

cases on the account of the omission to constitute Juvenile Justice Boards in many districts. Furthermore, monitoring by voluntary sector organisations regularly indicated that the infrastructure in many of the government-run homes where the children are kept does not meet the minimum standard required for a humane living. Such reports prompted the Parliament to intervene again and an amendment was made to the Act in 2006, with the primary intent of speeding up the administration of justice for juveniles. Due emphasis was also placed on the integration of children from deprived sections into the social mainstream. The amendment also reflected the legislature’s concern that the various duties and responsibilities cast on State Governments by the 2000 Act were not being met and many States had not framed the requisite rules under the same. This concern was addressed by inserting a proviso to Section 68, wherein the ‘Model Rules’ that were to be framed by the Central Government were made applicable to the States until such point of time that the State Governments made rules which were to be in conformity with the Central Model Rules. Subsequently the Model Rules were framed by the Central Government in 2007. They prescribe and restate the fundamental principles involved in the administration of Juvenile Justice and the protection of Children – such as the ‘presumption of innocence’, ‘principle of dignity and worth’, deference to the ‘best interests of the child’, principle of ‘family responsibility, positive measures, principle of repatriation and restoration, and the idea of ‘fresh start’ among others. These principles are to be borne in mind by all the concerned stakeholders while discharging their duties under the Act. At international level, on 20th November, 1989 The United Nation General assembly has adopted the convention on the right of the child. This convention does not put emphasis on judicial proceedings but prescribes a set of standard to be followed by all the member nations. In insist on social integration of child victims and on the part of state parties to secure best interest of child. On the 11th December, 1992 government of India ratified said convention, and it was felt necessary to enact the law relating to juvenile justice in view of the provision laid down in the convention and consequently the above Act was the outcome of the effort of parliament. Under J.J. Act child below the age of 18 is treated as juvenile, and any juvenile in conflict with law is prosecuted according to the provisions of said Act, with the recent thinking and the emerging need of treatment and handing of juveniles. The objective of this

17

Chapter 5: Juvenile Justice System

legislation is to insure the care, protection and development needs of the children who are either neglected or have come into conflict with law constituting delinquency. Hon’ble Supreme Court observed in Hari Ram v. State of Rajasthan26 that offence committed by juveniles is to be dealt different from law applicable to adults. Very scheme of Act is rehabilitation in nature and not adversial which the court generally uses to. Its implementation thus requires a complete change in the mind set of those who are vested with authority of enforcing the same without which it will be almost impossible to achieve its objects. The juvenile justice system in India is an offshoot of the criminal justice system. 5.3 FEATURES OF JUVENILE JUSTICE ACT,2000

•

Juvenile cannot be kept in police lock-up or jail.

•

Juveniles cannot be treated or sentenced in the same manner as the adult criminals.

•

Cases involving juveniles are tried by juvenile Justice board and not by regular courts.

•

Juvenile Justice board consists of magistrate and two social workers.

•

The case is decided by majority.

•

If a Juvenile criminal is convicted, at maximum he gets three years in a reform facility

•

Thereafter he must be released on probation.

•

Juvenile can only be kept at the special home till he attains 18 years of age.

•

Capital punishment (hanging) or life imprisonment cannot be imposed on a Juvenile offender, irrespective of the gravity of the crime.

26

(2009) 13 SCC 211; MANU/SC/0744/2009

18

Chapter 6: Protection of Child in conflict with Law

Chapter 6 PROTECTION OF CHILD IN CONFLICT WITH LAW Juveniles accused of a crime or detained for a crime are brought before the JJB under the Juvenile Justice (Care and Protection of Children) Act 2000 (amended in 2006). Under this act and provisions of the Criminal Code Procedure children are not to be taken to a regular criminal court. The purpose of a separate court is that its purpose is socio-legal rehabilitation and reformation not punishment. The aim is to hold a child culpable for their criminal activity, not through punishment, but counselling the child to understand their actions and persuade them away from criminal activities in the future. Chief Justice of India Altamas Kabir stressed the need to focus on childcare and rehabilitation in the Juvenile justice system, saying people should be sensitised to do something for such children who have been marginalised. "We need to focus on this section. These children need our prime attention. We need to sensitise ourselves to see that we do something for this part of society which has been marginalised," he said. The CJI, who is also patron in chief of National Legal Services Authority (NALSA), said it is high time society took up their responsibility and corrects what is going on. He suggested that such children also be adopted and provided homes. He was speaking at a workshop after inaugurating the Additional District and Sessions court for trial of cases relating to sexual violence towards women and children here. The CJI said he had requested Chief Justices of various High Courts to set up a court in every district where these kind of cases can be taken up, so the child can get a home and adopted parents would get a child. It works two ways, he said. There is need to create in them a mindset that they are part of society and have a responsible role as well, he said, adding they also need to be brought to the mainstream.

Chief Minister Oommen Chandy said government had decided to introduce the 'Kerala Privacy and dignity of women bill 2013' to protect the dignity of women. This would be tabled in the coming session of the assembly, he informed. Admitting that conditions and facilities in juvenile homes and correction centres were not satisfactory, he said steps would 19

Chapter 6: Protection of Child in conflict with Law

be taken for their improvement. The country had seen lot of public protest after the Delhi gang rape incident. "We must realise that we cannot sit idle till women and children feel secure", he said. "Kerala has a positive female population and we want the state to be known as a model state where women and children are safe", he said. Steps are also being taken to rehabilitate victims of such cases, he said. Minister for Social Welfare Department M K Muneer said government had plans to revamp the juvenile homes in the state within a year. There were also plans to set up a child rights commission for protection of children. Government was also going to lay down the framework for caretakers and NGOs, he added. The JJB consists of a metropolitan magistrate or a judicial magistrate of the first class and two social workers, at least one of whom should be a woman. All three people form a bench that are to function as a unit. Though they have different roles they are required to coordinate for the best interest of the child. When a child has been found guilty of a crime the social workers are vital to deciding the best course of action for the rehabilitation of that child. JJB are meant to resolve cases within a four month period. Backlog of cases can be addressed with an increased number of sittings as was the case in the Mumbai JJB. A child is usually brought before the JJB be a police officer or person from the Special Juvenile Police Unit (SJPU). Any organisation or person who brings a child before the court should inform their local police units first. The police have 24 hours to produce a child before the court once he is arrested. The person or police officer who brings the child before the JJB is required to complete a report of the arrest/detainment. Once the child has been brought before the JJB he/she is registered into the closest Observation Home. Most circumstances the juvenile can be released on bail by the JJB. If the police wish to interrogate the child or conduct a test identification parade the JJB has to give an order allowing so and it can only be conducted in the presence of the superintendent of the home. The home probation officer (P.O.) in charge will also submit a report on the child.

With the police report and P.O. report the JJB calls for the child's plea. If the child pleas guilty the JJB will pass appropriate orders for the child. To prevent coercion, the JJB can dismiss the child's guilty plea if it feels it was forced. If the juvenile pleads not guilty the JJB must further investigate by calling witnessing and accusers to testify before the court. The juvenile is given then opportunity to address the evidence brought before the court and also bring witnesses to the court. According to the evidence the JJB will then pass an order 20

Chapter 6: Protection of Child in conflict with Law

disposing of the case as it sees fit. The JJB is a child-friendly space that should not be intimidating or overwhelming for the child. The very Nature of the Act is curative not punitive. Delinquent juvenile due to their immature understanding or unfavourable environment use to commit offence, but they have a long road to go and hence it’s a moral duty on court and society to provide them with a chance to live healthy live and to bring them in main stream of development. There are very efficient and effective measures of rehabilitation for child in conflict with law. 6.1 OBSERVATION HOMES: The state govt. may establish and maintain either by itself or in association with voluntary organizations children’s homes, in every district or group of district. Children’s homes are constructed for the reception of child in need of care and protection during the pendency of an inquiry and subsequently for their care, treatment, education, training, development and rehabilitation. 6.2 SHELTER HOMES: Shelter is a registered, voluntary welfare organization for children and teenagers who have been abandoned, neglected, orphaned or abused. Guided by the vision to give children at risk a childhood and future by protecting, guiding and healing them, and by building strong communities and loving families, Shelter’s services and initiatives are aimed at providing care or children at risk through our residential homes, counseling, therapy and other services. Proactively raising public awareness on child abuse, child protection, parenting and youth issues, and equipping individuals with relevant skills to detect signs of abuse and to take action. Prayas is one of India’s largest Non Profit Organisation dedicated to child rehabilitation. 6.3

REHABILITATION

OF

JUVENILE

AFTER

BEING

RELEASED

OR

ACQUITTED: When any child in conflict with law is released or acquitted and in the opinion of child welfare committee, he is in need of rehabilitation and social integration to come in the main stream of the society as an alternative by:

6.3.1Adoption: It is the primary responsibility of the family for providing care and protection to the child. The child shall be adopted for the purpose of rehabilitation of such children as are orphaned, abandoned, neglected or abused by means of institutional or non-institutional method. Children’s and the state govt. owned institution shall be recognized as adoption agencies and these agencies are subjected to scrutiny and placement for adoption. 21

Chapter 6: Protection of Child in conflict with Law

6.3.2 Foster Care: Is the term used for a system in which a minor who has been made a ward is place in the private homes of a state certified caregiver. The state by the family court and child protection agency stand in loco parents to the minor, making all legal decisions while the foster parents are responsible for day to day care of said minor. Foster care is intended to be a short term situation until permanent placement can be made.

6.3.3 Setting up After Care Organisation: The state govt. is under statutory obligation to lay down the scheme and guidelines for setting up care organization, when the juvenile leaves special homes. The provision is incorporated by the legislature with a view of enabling the juveniles to lead an honest , industrious and useful life.

6.4 CRITICAL EXAMINATION: The administration of justice for the children should be in juvenile courts. They are expected to have judges who have a special knowledge of the psychology of children. In the absence of these courts justice is as punitive as for the hardened criminals. But in the world's 'biggest democracy' 12 States and five out of 9 union territories have no juvenile courts for children. They include among others, Bihar, Tamil Nadu, Orissa and chandigarh. U. P. with 70 districts has 31, Madhya Pradesh 23. But Punjab with 17 districts has only 2 and Himachal Pradesh with 12 districts has only one. Without juvenile courts the children are generally at the mercy of the police and the public prosecutors who are generally hostile to all whether adults or children. News of sexual harassment at Care homes or Foster care are very often. The juvenile delinquency in the country has been increasing. The children inside the Jails get training in so many evils. When they are out, many of them become drug addicts too. Different groups of hard core criminals and offenders train these children in all types of crimes. In a way a big army of future criminals is being raised in the country, the soldiers of which can murder any one on the behest of their leaders. Neither the Government nor any voluntary organization has any solid scheme of rehabilitation of these little—crushed flowers of the nation. Let us awake to the graveness of 22

Chapter 6: Protection of Child in conflict with Law

the situation before these poor souls turn total devils. Let us have a planning not simply for the children of elite families but for those of the poor too to which belong 75 % of the children of the nation. A good legislation will be of no use if it is not implemented and monitored in effective way. The urgency with which child policy be implemented is highlighted by Gabrial Mistral, the noble Laureate, who said “we are guilty of many errors and faults, but our worst crime is abandoning the children, neglecting the foundation of life .Many of the things we need can wait. The child cannot. Right now is the time his bones are being formed, his blood being made

23

Chapter 7: Juvenile Justice Board

Chapter 7 JUVENILE JUSTICE BOARD Chapter III of Juvenile Justice (Care and Protection of Children) Rules, 2007 deals with the child in conflict with law and also the juvenile justice board. The sections are as follows: 7.1 Section 4. Juvenile Justice Boards.― There shall be one or more Juvenile Justice Boards in every district, which shall be constituted by the State Government as per section 4 of the Act.

7.2 Section 5. Composition of the Juvenile Justice Board.― (1)

The Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, and two social workers of whom at least one shall be a woman, forming a bench: Provided that the Principal Magistrate of the Board shall review the pendency of cases before the Board and take such steps, as may be necessary in the expeditious disposal of the cases.

(2)

Every such bench shall have the powers conferred by the Code of Criminal Procedure 1973 (2 of 1974).

(3)

(i) A Magistrate with special knowledge or training in child psychology or child welfare shall be designated as the Principal Magistrate of the Board. (ii) In case the Principal Magistrate with such special knowledge or training is not available, then, the State Government shall provide for such short-term training in child psychology or child welfare as it considers necessary.

24

Chapter 7: Juvenile Justice Board

(4)

The two social workers, of whom at least one shall be a woman, shall be appointed by the State Government on the recommendation of the Selection Committee set up under rule 91 of these rules.

(5)

The State Government shall provide for such training and orientation in child psychology, child welfare, child rights, national and international standards for juvenile justice to all members of the Board as it considers necessary, in accordance with the Integrated Child Protection Scheme of the Central Government.

7.3 Section 10. Functions of the Board.― The Board shall perform the following functions to achieve the objectives of the Act, namely:(a) adjudicate and dispose cases of juveniles in conflict with law; (b) take cognizance of crimes committed under section 23 to 28 of the Act; (c) monitoring institutions for juveniles in conflict with law and seeking compliance from them in cases of any noticeable lapses and improvement based on suggestions of the Board; (d) deal with non-compliance on the part of concerned government functionaries or functionaries of voluntary organizations, as the case may be, in accordance with due process of law; (e) pass necessary direction to the district authority and police to create or provide necessary infrastructure or facilities so that minimum standards of justice and treatment are maintained in the spirit of the Act; (f) maintain liaison with the Committee in respect of cases needing care and protection; (g) liaison with Boards in other districts to facilitate speedy inquiry and disposal of cases through due process of law; (h) take suitable action for dealing with unforeseen situations that may arise in the implementation of the Act and remove such difficulties in the best interest of the juvenile; (i) send quarterly information about juveniles in conflict with law produced before them, to the District, State Child Protection Unit, the State Government and also to the Chief Judicial Magistrate or Chief Metropolitan Magistrate for review under sub-section (2) of section 14 of the Act;

25

Chapter 7: Juvenile Justice Board

(j) any other function assigned by the State Government from time to time relating with juveniles in conflict with law.

7.4 Section 16. Institutions for juveniles in conflict with law.― (1.) The State Government or the voluntary organisation recognised by that State Government shall set up separate observation homes or special homes for boys and girls. (2.) The observation homes or special homes shall set up separate residential facilities for boys and girls up to 12 years, 13-15 years and 16 years and above. (3.) Every institution shall keep a copy of the Act, the rules made by the Central Government and the State rules if any, for use by both staff, juveniles and children residing therein. (4.) The State Governments in collaboration with civil society shall develop and make available simplified and child friendly versions of the Act and the rules in regional languages. (5.) All facilities and services for juveniles in conflict with law shall be made available and maintained as per the provisions of the Act and the State rules. In case the State rules have not been notified, the provisions of these rules shall apply.

7.5 Section 6. Powers of Juvenile Justice Board. Of Juvenile Justice Act,2000— (1) Where a Board has been constituted for any district27[***], such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law. (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

27

The words “or a group of districts” omitted by Act 33 of 2006, sec. 7 (w.e.f. 22-8-2006).

26

Chapter 8: Special Juvenile Police unit

Chapter 8 SPECIAL JUVENILE POLICE UNIT •

JJ Act has provision for setting up such unit in every police station.

•

Police office of ASI or above rank shall work as Child Welfare Officer

•

He shall be assisted by two local NGOs.

•

These units are supposed to identify the children who are vulnerable to engaging in criminal behaviour and extend help to them

•

But in the most of the districts in India, such police units are either not formed or are not functional.

8.1 Functions of the Special Juvenile Police Unit: The Special Juvenile Police Unit shall perform the following functions:a) The Special Juvenile Police Unit and Child Welfare Officer at the police station will handle cases of both juveniles in conflict with law and children in need of care of protection and the social worker at the Special Juvenile Police Unit shall be the first line of intervention in all cases, as far as possible b) The Special Juvenile Police Unit shall coordinate and function as a watch-dog for providing legal protection against all kinds of cruelty, abuse and exploitation of children and report instances of non-compliance for further legal action. c) The Special Juvenile Police Unit shall take serious cognizance of adult perpetrators of crimes against children and ensure that they are apprehended immediately and booked under the appropriate provisions of the law. d) The Special Juvenile Police Unit shall ensure the registering, linking and monitoring of information regarding missing children received at the police station, and shall investigate immediately. e) The Special Juvenile Police Units shall work with voluntary organisations, local governing bodies, community based organisations in identifying juveniles in conflict with law as well as reporting cases of violence against children, child neglect, child abuse and exploitation

27

Chapter 8: Special Juvenile Police unit

f) The Special Juvenile Police Unit shall maintain a list of NGOs/voluntary organisations in their respective jurisdiction, and shall monitor the activities to prevent all crimes against children specifically trafficking, illegal adoption and detention of children. g) The Special Juvenile Police Unit to establish & maintain contacts with experts from various fields with the right credentials for their assistance/cooperation in child related matters, as and when required.

8.2 Procedures at Special Juvenile Police Unit 1. As soon as a juvenile alleged to be in conflict with law is received by the police, the concerned police officer shall inform i. the designated Child Juvenile Welfare Officer in the jurisdictional police station to take charge ii. the parents or legal guardian of the child or juvenile and their presence shall be ensured during further enquiries, and during any further questioning of the juvenile or child, shall try to ensure the presence of the parent or guardian iii. the Probation Officer concerned, to enable him/her to fill in the Social Investigation Report Forms a. The juvenile or child shall be treated with decency and dignity during investigation, enquiry,

search, etc.

b. The right to confidentially and privacy of the juvenile/child shall be upheld. c. Police officers and social workers shall ensure that no child/juvenile is tortured or harassed in order to extract information and he or she is not compelled to confess or give testimony. d. The Child Welfare Officer or the social worker shall ensure that the juvenile or child is provided with immediate medical attention, basic needs and create a child-friendly atmosphere at the time of first contact. e. The Special Juvenile Police Unit shall explain to the child/juvenile the charges against him/her in a simple language and manner that he/she understands clearly.

28

Chapter 8: Special Juvenile Police unit

2. A quick assessment shall be made by the Child Welfare Officer at the place of contact and the details shall be recorded in the register/form concerned. 3. The Child/Juvenile Welfare Officer from the jurisdiction police station shall exercise the power of apprehending the child/juvenile only in cases of his alleged involvement in serious offences (entailing a punishment of more than seven years of imprisonment for adults). 4. In cases of non-serious offences where apprehension apparently seems to be in the interest of the child/juvenile, the Child/Juvenile Welfare Officer shall rather treat the juvenile as a child in need of care and protection and bring him/her before the Board, clearly explaining the juvenile’s need for care and protection in his/her report and seek appropriate orders from the Board under the rules. 5. For all other cases involving offences of non-serious nature (entailing a punishment of less than 7 years imprisonment for adults) and cases where apprehension is not necessary in the interest of the juvenile, the Child/Juvenile Welfare Officer shall intimate the parents or guardian of the juvenile about forwarding all information to the Board, which shall have the power to call the juvenile for subsequent hearings. 6. The District Child/Juvenile Welfare Officer at the Special Juvenile Police Unit or the Child Welfare Officer at the Police Station shall ensure immediate registration of a first Information Report in case of juvenile in conflict with law where the offence alleged to have been committed by the juvenile is of a serious nature such as rape, murder or when such offence is alleged to have been committed jointly with adults and age verification done. 7. After taking charge of the juvenile or child, the Child/Juvenile Welfare Officer shall conduct the preliminary inquiry and arrange to present the child before the Committee in case of a child in need of care and protection or in the case of juvenile in conflict with the law before the Board under intimation to the Special Juvenile Police Unit. 8. The FIR shall not contain any self incriminating language which can be held against the child or juvenile. 9. The police apprehending a juvenile in conflict with law shall in no case place the juvenile in lock-up or delay handing over the juvenile to the Child/Juvenile Welfare Officer. The police shall handle the juveniles or children in civil clothes except while on duty at the time of taking charge of the juvenile. The Child/Juvenile Welfare Officer shall ensure that the police shall not use handcuffs, leading chain or bands

29

Chapter 8: Special Juvenile Police unit

while taking the child to the Board, Committee or JJ Homes. In case of girl child or juvenile, she should be accompanied by a woman police. 10. The Child/Juvenile Welfare Officer shall ensure that no photograph or the identity of the juvenile or child is revealed to the media, no Dossiers/Search Slip etc. shall be opened by the police station and no biometrics/finger prints of the child is obtained 11. The Child/Juvenile Welfare Officer shall ensure that the police do not, under normal circumstances, take charge of a juvenile or child between sunset and sunrise except in unusual circumstances. 12. Whenever a juvenile is brought before the Board, the police shall furnish the following details: a. Date and time of taking charge of a juvenile, address of the juvenile, offence said to have been committed and the place where the juvenile was kept stating reasons for delay, if any, till the juvenile was brought before the Board b. Copy of the intimation letter sent to the Probation Officer or parent/guardian of the juvenile c.

Details of the property or articles taken from the juvenile at the time of taking charge

d. Copy of the First Information Report (FIR), if any. 13. Juvenile who have committed petty offences may be released after admonition or reconciliation from Special Juvenile Police Unit or Police Station itself, ratified by at least one member of the Board. If not, the juvenile shall be transferred or retained in the Observation Home/place of safety/Fit Institution and brought before the Board. 14. When a juvenile/child is taken into custody for allegedly committing serious offence, then he/she and his/her parents/guardians shall be informed about their right to representation and an opportunity provided to meet their Legal Aid before the meeting with the Board. 15. In case the Board is not sitting on the day the child is received, the juvenile shall be brought before a single members of the Board, as per the provisions laid down under the Act, and an order obtained. Such an order shall be ratified by the Board at its next sitting. 16. The Government shall recognize only such voluntary organisations that are in a position to provide the services of voluntary probation, counselling, case work, a safe place and also associate with the police or the Child Welfare Officer from the Special Juvenile Police Unit, and have the capacity, facilities and expertise to assist the Police 30

Chapter 8: Special Juvenile Police unit

at the time of apprehension, in preparation of the Social Investigation Report, in taking charge of the juvenile until he/she is brought before the Board, and in actual presentation of the juvenile before the Board within twenty-four hours. 17. The police shall ensure that the provisions of the Convention on the Rights of the Child are strictly adhered to and all actions are initiated in the best interest of the juvenile or child. 18. The Special Juvenile Police Unit shall send a monthly status report to the State nodal office.

31

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

Chapter 9 ANALYSIS OF PRATAP SINGH v. STATE OF JHARKHAND28

The appellant Pratap Singh had abducted and murdered by poisoning, in conspiracy with others, the deceased on 31-12-1998. He was arrested and produced before the CJM on 22-11-1999. In response to a petition that on the date of occurrence he was a juvenile in terms of the 1986 Act, the case was transferred to the Juvenile Court. On satisfaction about the age of juvenility on the basis of school certificate the ACJM released the appellant on bail. Aggrieved by the release the informant filed an appeal before the Additional Sessions Judge. The ASJ relied upon Arnit Das v. State ofBihar29 and ordered a fresh enquiry on the issue of age. The appellant preferred a criminal revision before the High Court that again relied upon Arnit Das and dismissed the revision. The issue was finally agitated before the Supreme Court, which in view of conflicting rulings in Umesh Chandra v. State of Rajasthan30 and Arnit Das referred the matter to a Constitution Bench of five Judges. The Bench identified the following two questions that awaited an authoritative ruling: a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced before the court/competent authority. b) Whether the Act of 2000 will be applicable to the case where the proceeding is initiated under the 1986 Act and pending when the 2000 Act was enforced with effect from 1-4-2001. The Constitution Bench of the Supreme Court has elaborately addressed the aforesaid questions in its two separate but concurring judgments of Justice H.K. Sema and Justice S.B. Sinha. Though both the judgments more or less concurred in their conclusions, but their range of arguments and basic thrust varied considerably. Upholding the Umesh Chandra ruling The first question formulated by the Constitution Bench in effect relates to choosing between the traditional line of juvenile justice underscored in Umesh Chandra and the new and restricted line of juvenile justice propagated by Arnit Das. The traditional line is premised on 28

(2005) 3 SCC 551 (2000) 5 SCC 488 30 (1982) 2 SCC 202 29

32

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

a neo-classical assumption about the differential mental and maturity levels of juveniles that requires that criminal behaviour of juveniles ought to be assessed in terms of their diminished capacities and that the diminished capacities must be shown to be at the time of the commission of deviant behaviour, neither before nor after it. As against this, the new line does accept the fact of diminished capacities of juveniles, but on policy grounds takes that into account only at the stage of their production before the adjudicatory authorities, which is recognised as the key institution for giving effect to the aims of securing juvenile justice. This difference in approach between the traditional line and the proposed new line influences the outcomes vitally, namely: the first, relates juvenile justice to its inception, right from the time of its first manifestation but, the second, relates it to the later point of time when the juvenile is brought before the competent authority. Before adverting to the Supreme Court's reasoning in Pratap Singh it may be worthwhile to examine in some detail why the Arnit Das ruling evoked a welcome response, though of a limited section of the judiciary31 and academics32 in the short span of five years of its existence.33 There are two prominent reasons for the appeal of Arnit Das. First, a growing apprehension that unscrupulous and manipulating parties are taking undue advantage of the juvenile justice jurisdiction benefits.34 Second, the increasing involvement of youth in violent delinquencies, creating a pressure for treating juvenile delinquents on a par with ordinary criminals.35 The Court identified the over-wide conceptualisation of juvenile justice as the main cause for both the ills and saw a narrow and strict conceptualisation a way out of the impasse in these words:

31

Dr. Chandrashekharan Pillai in his editorial comment in (2001) 2 SCC J-9 at pp. 9-10; and Mr R.D. Jain "In Defence of Arnit Das", (2001) 2 SCC J-9 at pp. 11 to 17. 32 However, the opposition to Arnit Das was equally strong, if not more. See Professor B.B. Pande's "Rethinking Juvenile Justice: Arnit Das style", (2000) 6 SCC J-1 and Dr. Ved Kumari "Relevant Date for Applying the Juvenile Justice Act", (2000) 6 SCC J-6 and "In Defence of Arnit Das v. State of Bihar : A Rejoinder" (2002) 2 SCC J-15. These commentscritiqued Arnit Das on several counts and were responsible for impassioned academic debates in Delhi Law Faculty and elsewhere. It is significant that some of the lines of arguments taken in the aforesaid critiques have influenced the Constitution Bench, with due respect. One realises that there is not a word of acknowledgement in the two judgments either about the comments or the associated academic debates. 33 The apprehension was actually raised by R.C. Lahoti, J. (as he then was) in these words: "What happens if a boy or a girl of just less than 16 or 18 years of age commits an offence and then leaves the country or for any reasons neither appears nor is brought before the competent authority until he or she attains the age of say 50 years?" Arnit Das at p. 497, para 17. 34 In an earlier comment on Arnit Das in this context it was observed: "In India too there is a growing thinking amongst law enforcers and policy planners that there is a need to take a tough approach to serious kinds of delinquencies", B.B. Pande op.cit. at p. 7. 35 Arnit Das at pp. 496-97, para 16.

33

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

"16. The term 'juvenile justice' before the onset of delinquency may refer to social justice; after the onset of delinquency, it refers to justice in its normal juridical sense. ... The Juvenile Justice Act provides for justice after the onset of delinquency. The societal factors leading to the birth of delinquency and the preventive measures which would check juvenile delinquency legitimately fall within the scope of social justice. ... the field sought to be covered by the Act is not the one which had led to juvenile delinquency but the field when a juvenile having committed a delinquency is placed for being taken care of postdelinquency."36 The strict and narrow conceptualisation of juvenile justice appears to have appealed to Dr. Chandrashekharan Pillai who in the same vein observes: "The Act aims at welfare of those who are found to be delinquents and not to all juveniles. ... It seems to have been the general impression shared even by the Supreme Court that age of applicability was to be determined at the stage of commission of delinquent act. The present Bench of the Supreme Court has pried open this impression and argues that this impression has no foundation." The majority judgment of Justice H.K. Sema has mainly relied upon the three-Judge Bench decision in Umesh Chandra which has resolved the relevant date issue in these words: "Therefore, Sections 3 and 26 became necessary. Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence. We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial."37 (emphasis supplied) The Court further added: "20. As already noticed the decision rendered by a three-Judge Bench of this Court in Umesh Chandra was not noticed by a two-Judge Bench of this Court in Arnit Das. We are clearly of the view that the law laid down in Umesh Chandra is the correct law and that the decision rendered by a two-Judge Bench of this Court in Arnit Das cannot be said to have laid down a good law." The majority judgment did not go into the factors that made the Umesh Chandra ruling as the "correct law". With respect, is it "correct", merely because it is a three-Judge ruling, which was not noticed by the two-Judge Bench or because it is more in consonance with liability jurisprudence? Liability and accountability whether for deviations by the adults or juveniles

36 37

(2001) 2 SCC J-9 at pp. 9-10. As quoted in Pratap Singh at p. 567, para 19.

34

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

is related to the guilty mind and the actus reus at the time of the commission of delinquent conduct. Justice S.B. Sinha's separate but concurring judgment in Pratap Singh does provide a much wider range of arguments for overruling Arnit Das and upholding Umesh Chandra. His wellarticulated judgment provides answers to the two questions confronting the Court in the light of crucial themes such as objects of juvenile justice legislations, relevance of the UN Standard Minimum Rules and the relationship between the international juvenile justice laws and the municipal laws. The judgment begins with an overview of the UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985 and the evolution of the standards set by the UN along with their impact on the Acts of 1986 and 2000, followed by a brief account of the salient features of these Acts. Adverting specifically to question (a), relating to the reckoning date in determining the age of the offender, Justice Sinha has observed: "It must also be borne in mind that the moral and psychological components of criminal responsibility were also one of the factors in defining a juvenile. The first objective, therefore, is the promotion of well-being of the juvenile and the second objective is to bring about the principle of proportionality whereby and whereunder the proportionality of the reaction to the circumstances of both the offender and the offence including the victim should be safeguarded." Emphasising the need for definiteness the Court lays down: "The term 'juvenile' must be given a definite connotation. A person cannot be juvenile for one purpose and an adult for other purpose. It was, having regard to the constitutional and statutory scheme, not necessary for Parliament to specifically state that the age of the juvenile must be determined as on the date of commission of the offence. The same is inbuilt in the statutory scheme." Finally, the issue is clinched by the following observation: "86. The field covered by the Act includes a situation leading to juvenile delinquency vis-...vis commission of an offence. In such an event he is to be provided the post-delinquency care and for the said purpose the date when delinquency took place would be the relevant date. It must, therefore, be held that the relevant date for determining the age of the juvenile would be one on which the offence has been committed and not when he is produced in court."

Extending the applicability of the Act of 2000 to proceedings initiated under the Act of 1986

35

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

The Juvenile Justice (Care and Protection of Children) Act, 2000 is considered to be more beneficial to the juveniles/children mainly for reasons such as (i) it provides a wider and more inclusive definition of juveniles or children by including within its ambit all persons below the age of 18, thereby, enhancing in case of male juveniles/children the age from 16 to 18 years, (ii) it adds many new classes of vulnerable children to the "child in need of care and protection" category, thereby, bringing much larger section of the child population under the net of the Act, and (iii) it provides for new and specialised dispositional alternatives that are supposed to take better care of the developmental and correctional needs of the juveniles/children. Some of the provisions like Section 20, Section 64 and Sections 3 and 69(2) expressly incorporate these beneficial measures in the Act of 2000.

The most usual cases in which the applicability of the Act of 2000 is sought are those where on the date of the incident the appellant happens to be beyond 16 years, the juvenile age in terms of the Act of 1986, but he is below the age of 18 years before 1-4-2001, thereby, qualifying to be a juvenile in terms of the Act of 2000.16 In this respect the Act of 2000 confers a distinct benefit to the male juveniles of 16 to 18 year age group. The rationale for such a beneficial expansion of the juvenile justice jurisdiction lies in the provision of higher age-limit for both the sexes in the Convention on the Rights of the Child, 1989, which was ratified by the Indian Government in November 1992. The beneficial applicability has been legislatively worked out in the Act of 2000, it can arise in two ways: First, by letting any court other than the Juvenile Court to continue the trial and record conviction, but send the case to the appropriate Juvenile Justice Board for the purpose of sentence in terms of Section 20. Second, in case of 16 to 18 year age group juvenile undergoing any sentence of imprisonment, at the commencement of the Act of 2000 be sent to a special home or a fit institution as required under the new Act, in terms of Section 64. On the issue of applicability of the Act of 2000 the judgment of Justice Sema has again relied upon earlier authorities such as Bhola Bhagat38, Gopinath Ghosh39, Bhoop Ram40, Pradeep Kumar41 and a recent two-Judge Bench ruling in Upendra Kumar42 In this context the majority judgment simply pointed out the similarities between the Act of 1986 and the Act of 2000 and described: 38

Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 Gopinath Ghosh v. State of W.B., 1984 Supp SCC 228 40 Bhoop Ram v. State of U.P., (1989) 3 SCC 1 41 Pradeep Kumar v. State of U.P., 1995 Supp (4) SCC 419 42 (2005) 3 SCC 592 39

36

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

"Object of the Acts is to provide for the care, protection, treatment, development and rehabilitation of juveniles. The Acts being benevolent legislations, an interpretation must be given which would advance the cause of the legislation i.e. to give benefit to the juveniles."43 Specifically on the issue of applicability to earlier cases the judgment holds that: "The provisions of the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1-4-2001." However, question (b) is accorded a different kind of resolution by Justice Sinha. According to him Section 20 creates a legal fiction in these words: "92. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose." The Court appeared to favour only a limited and strict extension of the 2000 Act in these words: "By reason of the provisions of the said Act of 2000, the protection granted to a juvenile has only been extended but such extension is not absolute but only a limited one. It would apply strictly when the conditions precedent therefore as contained in Section 20 or Section 64 are fulfilled. ... although it would apply to a person who is still a juvenile having not attained the age of 18 years but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence but has since ceased to be a juvenile." The judgment underscores the two essential conditions for attracting the applicability of Section 20 as: (i) on the date of the coming into force the proceedings against the juvenile were pending before any court, and (ii) on 1-4-2001 the juvenile was below 18 years of age. The Court, with respect, did not elaborate the import of "pending proceedings". Would a proceeding completed in the Juvenile Court, but appealed against on the issue of sentence constitute "pending proceedings" for the purposes of benefits under Section 20? A wider and extended interpretation would benefit a larger number of juveniles, who would otherwise be excluded from the benefits of the Act of 2000. The case of Sudershan Hansda alias Chenchu, one of the juveniles involved in Graham Stains murder, whose appeal against life imprisonment passed by the Juvenile Court four years back can be resolved by

43

(2001) 2 SCC J-9 at pp. 9-10.

37

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

applying Sections 20 and 64, treating the appeal proceeding as "pending proceeding". On this issue the Delhi High Court ruling in Charanjeet Singh that was decided over a year before Pratap Singh has been more categorical. Justice D.K. Jain (Justice Arjun Sikri concurring) observed in this context as follows: "It is also axiomatic that the proceedings contemplated in Section 20 mean proceedings either at the stage of trial or appeal and pending in any court, either at the stage of trial or in the court of appeal. Therefore, the intention behind the said provisions is not only to avoid de novo trial of the juvenile but also to cover him under the Juvenile Justice Act even after his conviction and during the period he is undergoing sentence." Bringing the Juvenile Justice law in consonance with the Human Rights Standards and the UN Conventional laws The Pratap Singh rulings would be remembered for a long time not for the neat resolution of the two questions underscored by the Court but for its creativity in visualising and drawing linkages between the international Human Rights law, UN Conventional laws and standards and the national laws like the Constitution and the statutory Juvenile Justice laws. Particularly the judgment of Justice S.B. Sinha that has expounded the live linkage between the international and the national juvenile justice regimes admirably well will be much appreciated. Therefore, Justice Sinha's ruling has special significance for a juvenile justice judge, lawyer, social activist and academicians equally. Justice Sinha has prefaced his judgment with an elaborate exposition of the UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985. Underscoring the cruciality of the SMR the Court has observed: "39. The Juvenile Justice Act in its present form has been enacted in discharge of the obligation of our country to follow the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985...." Again in the matter of construction of legislations pertaining to children in a broader frame the Court observed as follows: "63. The legislation relating to juvenile justice should be construed as a step for resolution of the problem of juvenile justice which was one of tragic human interest which cuts across national boundaries. The said Act has not only to be read in terms of the Rules but also the Universal Declaration of Human Rights and the United Nations Standard Minimum Rules for the Protection of Juveniles." In the same vein Justice Sinha's ruling provides a dynamic relationship between the rules of international law and the constitutional law in these words:

38

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

"Constitution is a source of, and not an exercise of, legislative power. The principles of international law whenever applicable operate as a statutory implication but the legislature in the instant case held itself bound thereby and, thus, did not legislate in disregard of the constitutional provisions or the international law as also in the context of Articles 20 and 21 of the Constitution. The law has to be understood, therefore, in accordance with the international law. Part III of our Constitution protects substantive as well as procedural rights. Implications which arise therefrom must effectively be protected by the judiciary." Adverting further to the growing internationalisation of the constitutional interpretation the Court observes: "67. Now, the Constitution speaks not only 'to the people of India who made it and accepted it for their governance but also to the international community as the basic law of the Indian nation which is a member of that community'. Inevitably, its meaning is influenced by the legal context in which it must operate." Justice Sinha's initiatives would certainly go a long way in conveying a message that the Indian juvenile justice system must comply with the universally recognised and international standards. That in matters of administering juvenile justice the nation States are not at liberty to conjure its own and archaic juvenile justice system, merely on grounds of their peculiar needs and aspirations. Children's right perspective still remains underemphasised Despite Justice Sinha's significant initiative in bringing home the international and the UN perspectives in the Indian Juvenile Justice law, with great respect, it may be pointed out that the judgment has more or less ignored the Convention on the Rights of the Child, 1989, which not only constituted the driving force for the enactment of the Act of 2000, but also is known as the sheet anchor for children's rights. The two big contributions of the international trends and the UN are in the field of standardising juvenile justice and of perceiving juvenile justice in terms of the children's rights.

Standardising juvenile justice is independent of the rights of child development that came in vogue in the 1990s. It is true that by standardising juvenile justice the matters may improve considerably. But in spite of more resources and better training the attitude of the juvenile justice functionaries remain more or less the same. The best example of this could be found in Lakshmi v. Sub-Inspector of Police44, where Murugan, a boy of 15 years was

44

1991 CriLJ 2269

39

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

picked up by the police in a theft case and detained in police lock-up and tortured in every possible way in connivance with the Magistracy. The Madras High Court in response to the habeas corpus petition of the mother underscored the value of due process rights of the juvenile. Apart from the Constitution the Convention on the Rights of the Child, 1989 constitutes the source of the wide range of four basic categories of rights, namely (a) right to survival, (b) right to protection, (c) right to development, and (d) right to participation.

Thus, it is assumed that once the juvenile justice functionaries, including the judiciary is disciplined to think in terms of the rights of the child we would have little occasion for cases like Lakshmi or the recent case involving brutal beating of a juvenile by seven Delhi policemen in the course of investigation of a theft case.33 The Supreme Court in Pratap Singh missed an opportunity in building an edifice for children's right perspective. It may be useful in this context to refer to a recent House of Lords ruling in R. v. G. and R.34 that related to construction of "recklessness" on the part of 11 and 12 year old boys and comparing their blameworthiness not with the normal reasonable adult but with the normal reasonable children of the same age. Also in question was the earlier House of Lords ruling in R. v. Caldwell45 that favoured assessing the "reckless" state of mind even of juveniles on the basis of adult objective standards. The House of Lords particularly referred to the implications of the United Kingdom ratifying the Convention on the Rights of the Child, in 1990. Lord Steyn in this context referred particularly to Article 40.1 CRC in these words: "This provision imposes both procedural and substantive obligations on State parties to protect the special position of children in the criminal justice system. For example, it would be plainly contrary to Article 40.1 for a State to set the age of criminal responsibility of children of, say, five years. Similarly, it is contrary to Article 40.1 to ignore in a crime punishable by life imprisonment or detention during Her Majesty's pleasure, the age of a child in judging whether the mental element has been satisfied. It is true that the Convention became binding on the United Kingdom after Caldwell was decided. The House cannot

45

[1982] AC 341

40

Chapter 9: Analysis of Pratap Singh v. State of Jharkhand

ignore the norm created by the Convention. The factor on its own justified a reappraisal of Caldwell." (emphasis supplied)

To conclude, Pratap Singh has not only set at rest the controversy raised by Arnit Das, or laid the limits of beneficial extension of the Act of 2000, but also created a philosophical basis for the juvenile justice system. It has suggested a world vision that is in consonance with giving a better and fairer deal to the children.

41

Chapter 10: Delhi gang Rape Case-Analysis

Chapter 10 DELHI GANG RAPE CASE-ANALYSIS FACTS: The victims, a 23-year-old woman and a male friend, were on their way home on the night of 16 December 2012 after watching the film Life of Pi in Saket, South Delhi. They boarded an off-duty charter bus at Munirka for Dwarka at about 9:30 pm. There were only six others in the bus, including the driver. One of the men, a minor, had called for passengers telling them that the bus was going towards their destination. The woman's friend became suspicious when the bus deviated from its normal route and its doors were shut. When he objected, the group of six men already on board, including the driver, taunted the couple, asking what they were doing alone at such a late hour. When the woman's friend tried to intervene, he was beaten, gagged and knocked unconscious with an iron rod. The men then dragged the woman to the rear of the bus, beating her with the rod and raping her while the bus driver continued to drive. Medical reports later said that the woman suffered serious injuries to her abdomen, intestines and genitals due to the assault, and doctors said that the damage indicated that a blunt object (suspected to be the iron rod) may have been used for penetration. That rod was later described by police as being a rusted, L-shaped implement of the type used as a wheel jack handle. According to police reports the woman attempted to fight off her assailants, biting three of the attackers and leaving bite marks on the accused men. After the beatings and rape ended, the attackers threw both victims from the moving bus. Then the bus driver allegedly tried to drive the bus over the woman, but she was pulled aside by her male friend. One of the perpetrators later cleaned the vehicle to remove evidence. Police impounded it the next day.

The partially clothed victims were found on the road by a passerby at around 11 pm. The passerby phoned the Delhi Police, who took the couple to Safdarjung Hospital, where the female victim was given emergency treatment and placed on mechanical ventilation. She was found with injury marks, including numerous bite marks, all over her body. According to reports, one of the accused men admitted to having seen a rope-like object, assumed to be her intestines, being pulled out of the woman by the other assailants on the bus. Two bloodstained metal rods were retrieved from the bus and medical staff confirmed that "it was penetration by this that caused massive damage to her genitals, uterus and intestines"

42

Chapter 10: Delhi gang Rape Case-Analysis

On 19 December 2012, the woman underwent her fifth surgery, removing most of her remaining intestine. Doctors reported that she was in "stable but critical" condition. On 21 December, the government appointed a committee of physicians to ensure she received the best medical care. By 25 December, she remained intubated, on life support and in critical condition. It was reported that she was "stable, conscious and meaningfully communicative". At a cabinet meeting chaired by Manmohan Singh on 26 December, the decision was made to fly her to Mount Elizabeth Hospital in Singapore for further care. Mount Elizabeth is a multi-organ transplant speciality hospital. Some doctors criticised the decision as political, questioning the need to transfer an intensive care unit (ICU) patient for organ transplants that were not scheduled for weeks or even months later. Government sources indicate that the Chief Minister of Delhi, Sheila Dikshit, was personally behind the decision. Hours earlier, Union Minister P. Chidambaram had stated that the woman was not in a condition to move. An anonymous source quoted by The Sunday Guardian stated that the decision to move her was taken "when it was already clear that she would not survive the next 48 hours". During the six-hour flight by air-ambulance to Singapore on 27 December, the woman suddenly went into a "near collapse", which a later report described as a cardiac arrest. The doctors on the flight created an arterial line to stabilise her, but she had been without pulse and blood pressure for nearly three minutes and never regained consciousness in Singapore. On 28 December 2012, at 11 am , her condition was "extremely critical". The chief executive officer of the Mount Elizabeth Hospital said that the woman suffered brain damage, pneumonia, and abdominal infection, and that she was "fighting for her life." Her condition continued to deteriorate, and she died at 4:45 am on 29 December, Singapore Standard Time. Her body was cremated on 30 December in Delhi under high police security. TRIAL: In this project I’ll be focussing on the trial of the juvenile. In the 33-page charge sheet, the Delhi Police described the juvenile as the most brutal of the six accused. The accused was declared as 17 years and six months old on the day of the crime by the Juvenile Justice Board (JJB), which relied on his birth certificate and school documents. The JJB rejected a police request for a bone ossification (age determination) test for a positive documentation of his age. The prosecution called the minor accused, as the "most brutal of the six" accused. On 28 January, the juvenile was declared to be a juvenile by the JJB. A petition moved by Janata Party president Subramanian Swamy seeking the prosecution of the minor as an 43

Chapter 10: Delhi gang Rape Case-Analysis

adult because of the ghastly nature of his alleged crime was rejected by the JJB. The minor was tried separately in a juvenile court. A verdict in the case was scheduled to be announced on 25 July 2013, but was deferred until 5 August and then deferred again to 19 August. On 31 August, the juvenile was convicted of rape and murder under the Juvenile Justice Act and given the maximum sentence of three years' imprisonment in a reform facility, inclusive of the eight months he spent in remand during the trial.

The fury over the three-year sentence given to the unnamed young man who was one of the rapists in the December case in New Delhi is understandable. But the verdict is hardly surprising. Once it was accepted that he is a juvenile, the system had no choice but to judge the case as per the rules, and the rules leave no room for doubt: he had to be sent to a remand home for up to three years—even though he is now an adult, assuming his school-leaving certificate, on the basis of which his age has been determined, is a valid one. The Supreme Court decided to examine the constitutional validity of the definition of 'juvenile' in the Juvenile Justice Act which treats a person as a minor till he is 18 years of age.46 The issue assumes significance in the wake of the brutal gangrape and assault of a 23-yearold in Delhi on December 16. Attorney General G E Vahanvati was asked by the apex court to assist on the issue raised in a petition which seeks to strike down the definition of juvenile from the Juvenile Justice (Care and Protection of Children) Act. A bench comprising justices K S Radhakrishnan and Dipak Misra decided to hear the matter from April 3, and asked the Attorney General to file counter affidavits and relevant reports relating to the issue. The petition, filed by two advocates – Kamal Kumar Pandey and Sukumar – contended that sections 2(k), 10 and 17 of the JJ Act which deals with the issue were irrational and ultravires of the Constitution. The counsel, appearing for the petitioners, submitted that the constitutional validity of the definition of juvenile in the Act is in conflict with the law.

“SC to examine definition of juvenile justice act” available at http://www.indianexpress.com/news/delhigangrape-sc-to-examine-definition-of-juvenile-in-justice-act/1069082/ visited on 3rd Oct 2013. 46

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Chapter 10: Delhi gang Rape Case-Analysis

The counsel said that the definition of juvenile under section 8247 and 8348 of the IPC is a much better classification. 10.1 Reaction to the verdict on juvenile 

Mr. Najeeb Jung, Delhi's Lieutenant Governor said "The verdict left me dissatisfied. I'm personally not happy. I felt this man got away very lightly. The whole idea of having laws is to deliver justice. I don't think justice has been done in this case thus far," He further added "The juvenile age should be lowered to 16 at least. These days young people grow up much faster. Even if juvenile age is lowered to 14, there would be nothing wrong with that,"49



Nirbhaya’s mother “We are not satisfied with the verdict." She added "If minors do such things and get away so easily, how will the law work? It cannot be done like this. Law needs to be changed. We will move the higher court against the judgment,"



Nirbhaya’s Father "Our daughter has died and now after listening to this verdict we also have virtually died. This will only encourage crime,"



Pihu Sharma, an undergraduate student of Delhi University, “If a minor can rape or has the courage to rape then why give a different punishment to him? He was not a kid when he was raping the girl; he knew what he was doing. So why light punishment for him? We want justice for the girl and three years of (special home stay) is not justice."

47

Section 82 provides that nothing is an offence which is done by a child under seven years of age. Section 83 says nothing is an offence which is done by a child above seven years of age and under twelve and who has not attained the maturity to understand or judge the nature and consequences of his conduct. 49 “Delhi gang rape: Juvenile verdict not correct says lieutenant governor Najeeb Jung” available at http://www.ndtv.com/article/india/delhi-gang-rape-juvenile-verdict-not-correct-says-lieutenant-governornajeeb-jung-413406 visited on 3rd Oct 2013 48

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Chapter 10: Delhi gang Rape Case-Analysis

10. 2 Reaction on the verdict on other four accused 

Sushma Swaraj, BJP leader: All the 4 accused should be given death penalty and this will help in controlling the rape menace. All the five were accused but the fifth has been given lesser punishment which saddened us. Now these should be given death sentence.



Kiran Bedi, former IPS officer: The deserve death penalty. I demand the severest punishment. This is a beastly crime. The punishment should be proportionate to the crime. It is a crime against society. It is a crime against humanity. The police did an excellent job. This is a case study. This is how investigations cab be effectively done. The last thing is the severity of the punishment.



Brinda Karat, CPM leader: This is was an open and shut case. The court has taken a long time. One of the accused took his own life in jail. The case need not have taken so long. We would like to make it very clear that the justice should be done quickly.



Ambica Soni, National General Secretary of Congress: Such cases shld be fast tracked and I am glad that all have been found guilty. Punishment must be exemplary so that message goes strongly that women needs to be respected.50

“Delhi gangrape:Reactions to the verdict” available at http://ibnlive.in.com/news/delhi-gangrape-reactions-tothe-verdict/420809-3.html?utm_source=ref_article visited on 2nd oct 2013. 50

46

Chapter 11: Recommendations made by The Justice Verma Committee

Chapter 11 RECOMMENDATIONS MADE BY THE JUSTICE VERMA COMMITTEE Assuming that a person at the age of 16 is sent to life imprisonment, he would be released sometimes in the mid-30s. There is little assurance that the convict would emerge a reformed person, who will not commit the same crime that he was imprisoned for (or, for that matter, any other crime). The attempt made by Ms. Kiran Bedi to reform Tihar Jail inmates was, and continues to be, a successful experiment. But we are afraid that that is only a flash in the pan. Our jails do not have reformatory and rehabilitation policies. We do not engage with inmates as human beings. We do not bring about transformation. We, therefore, breed more criminals including juveniles) in our prison and reformatory system by ghettoing them in juvenile homes and protective homes where they are told that the State will protect and provide for them, but which promise is a fruitless one.

Children, who have been deprived of parental guidance and education, have very little chances of mainstreaming and rehabilitations, with the provisions of the Juvenile Justice Act being reduced to words on paper.

We are of the view that the 3 year period (for which delinquent children are kept in the custody of special home) is cause for correction with respect to the damage done to the personality of the child. We are completely dissatisfied with the operation of children's' institutions and it is only the magistrate (as presiding officer of the Juvenile Justice Board) who seems to be taking an interest in the situation. The sheer lack of counselors and therapy has divided the younger society into 'I 'and 'them'.

It is time that the State invested in reformation for juvenile offenders and destitute juveniles. There are numerous jurisdictions like the United Kingdom, Thailand, and South Africa where children are corrected and rehabilitated; restorative justice is done and abuse is prevented. We think this is possible in India but it requires a determination of a higher order.

47

Chapter 12: Conclusions and Suggestions

Chapter 12 CONCLUSIONS AND SUGGESTIONS This project and the research has made me think about the age of determination of the juvenile. It is true that a child should be handled softly but yet again in a case like that of ‘Nirbhaya’ or the Delhi Gang Rape the mens rea of the so called juvenile was clear and such gravity of offence should be kept in mind. The maturity of age or amount of punishment should depend on the graveness of the offence more than the age of the offender. A child who is just a few months short to becoming an adult is no less than an adult. Yet for other offenders who really never had mens rea in commission of a crime the focus should be on the following 4 goals: 1. Put no children under 15 in prison; 2. Use alternatives for imprisonment; 3. Focus on prevention; 4. Improve the conditions of children in closed institutions. Amnesty should be given to first time offenders and not a habitual offender. Also there are other conclusions The current situation with regard to juvenile crime and delinquency can be characterized by the following basic facts and trends: 

There has been an observed increase in violent and aggravated crimes among youth.



The number of drug-related crimes is growing



The process of globalization and the greater mobility of large population groups have led to an increase in criminal activity associated with intolerance towards members of other cultures.

It is widely believed that early-phase intervention represents the best approach to preventing juvenile delinquency. Prevention requires individual, group and organizational efforts aimed at keeping adolescents from breaking the law. Various countries use different methods to discourage delinquent and criminal behaviour. Some focus on punitive prevention intended to frighten potential offenders by making sure they understand the possibility of severe punishment, or action may be taken to prevent recurrent crime, which includes explaining the negative aspects of an offence to a delinquent and attempting to reconcile offenders and their victims. 48

Chapter 13: Bibliography

Chapter 13 BIBLIOGRAPHY

Legislations 

Constitution of India



Juvenile Justice (Care and Protection of Children) Act,2000



Child Labor (Prohibition and Regulation) Act, 1986



Child Marriage Restraint Act, 1929.



Immoral Traffic (Prevention) Act, 1956.

Books 

NATIONAL

HUMAN

RIGHTS

COMMISSION,

NEW

DELHI:

Conference on Juvenile Justice System in India. (National Human

National Rights

Commission, New Delhi, 2007) (NHRC) 

SINGH, R K: Juvenile delinquency in India. (The Universal Publishing Ltd., India, Lucknow, 1948)



Ved Kumari: Juvenile justice system in India. (Oxford Univ. Press, New Delhi, 2004) (NHRC)

Websites 

Juvenile Justice Care, Protection and rehabilitation available on http://www.preservearticles.com/2012061633037/juvenile-justice-care-protectionand-rehabilitation-in-india.html (Visited on 29th Sept 2013)

49

Chapter 13: Bibliography



Balancing the juvenile act available at http://www.thehindu.com/opinion/lead/balancing-the-juvenileact/article5107620.ece(Visited on 2nd oct 2013)



Delhi gangrape:Reactions to the verdict available at http://ibnlive.in.com/news/delhigangrape-reactions-to-the-verdict/420809-3.html?utm_source=ref_article (visited on 2nd oct 2013)



Delhi gang rape: Juvenile verdict not correct says lieutenant governor Najeeb Jung available at http://www.ndtv.com/article/india/delhi-gang-rape-juvenile-verdict-notcorrect-says-lieutenant-governor-najeeb-jung-413406 (visited on 3rd Oct 2013)

Reports 

Report of Justice Verma Committee on Amendments to Criminal Law, January 23rd 2013

50