Petitioner(craf)

TEAM ‘C’

SMT. VELAGAPUDI DURGAMBA SIDDHARTHA LAW COLLEGE 1STALL INDIA MOOT COURT COMPETITION 2015

IN THE HON’BLE SUPREME COURT OF HINDUSTAN

THE WRIT PETITION FILED UNDER ARTICLE 32 OF CONSTITUTION OF HINDUSTAN

WRIT PETITION NO: ____/ 2015 CASE CONCERNING THE AGE OF JUVENILE DELINQUENTS CHILD RIGHTS ADVOCACY FOUNDATION PETITIONER v.

THE REPUBLIC OF HINDUSTAN RESPONDENT ON SUBMISSION TO THE HONORABLE SUPREME COURT OF HINDUSTAN

MEMORIAL for the PETITIONER CHILD RIGHTS ADVOCACY FOUNDATION

TABLE OF CONTENTS TABLE OF CONTENTS………………………………………………………………………………………………….II LIST OF ABBREVIATIONS………………………………………………………………………………………….III INDEX OF AUTHORITIES…………………………………………………………………………………………….V STATEMENT OF JURISDICTION…………………………………………………………………………………X STATEMENT OF FACTS………………………………………………………………………………………………XI STATEMENT OF ISSUES………………………………………………………………………………………….XIII SUMMARY OF ARGUMENTS……………………………………………………………………………………XIV ARGUMENTS ADVANCED………………………………………………………………………………………….1 SUBMISSION TO THE HON’BLE COURT………………………………………………………………..XVI

II

~MEMORIAL for the PETITIONER~

LIST OF ABBREVIATIONS

All India Report And Another Article

AIR & Anr. Art.

Corporation Et Cetera Fundamental Rights

Corp. Etc FRs

Honorable Indian Law Institute Integrated Child Protection Scheme Juvenile Justice (Care and Protection) Act,2000 Limited Madhya Pradesh

Hon’ble ILI ICPS JJCPA ltd M.PG.

Maximum

Max.

Minimum

Min.

National Crime Rate Bureau

NCRB

National Human Rights Commission Number Others Page Public Interest Litigation Section

NHRC No. Ors Pg. PIL Sec.

Supreme Court Supreme Court Cases Supreme Court Judges Library

SC SCC SCJL

Through

Thr.

Union of India United Nations

UOI UN III

~MEMORIAL for the PETITIONER~

United States Uttar Pradesh Versus

U.S. U.P v.

Volume West Bengal

Vol. W.B.

IV

~MEMORIAL for the PETITIONER~

INDEX OF AUTHORITIES

U.N CONVENTIONS United Nations Declaration of the Rights of Child, 1959 International Covenant on Civil and Political Rights, 1966 Entered into force on March 23, 1976 United Nations Standard Minimum Rules for Administration of Juvenile Justice, 1985 (Beijing Rules) Convention on the Rights of Child, 1989, Entered into force on 2.9.1990 United Nations Guidelines for Prevention of Juvenile delinquency (Riyadh Guidelines), 1990 United Nations Rules for the Protection of Juvenile deprived of their liberty, 1990 The Hague Convention On Protection Of Children And Corporation In Respect Of Country Adoption, 1993 Guidelines for Action on Children and Criminal Justice System, Vienna, 1997 United Nations Committee On The Rights Of The Child- General Comments On Children’s Rights In Juvenile Justice, 2000 STATUTES Constitution of India Indian Penal Code,1860 Civil Procedure Code,1908 Juvenile Justice (Care and Protection) Act,2000 Juvenile Justice(Care and Protection) Rules,2007 JUDICIAL PRONOUNCEMENTS CASE

CITATION

Art. L. Kalra V. P & E Corp. Of India Ltd. Abdul Rehman Antulay v. R.S. Naik , Abuzar Hossain v. State Of W.B. Ajahar Ali v. State Of West Bengal Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union Of India Arvindar Singh Bagga v. State Of U.P Ashok Kumar Thakur v. Union of India Bachan Singh v. State of Punjab Bandhua Mukti Morcha etc. v. UOI & Ors Bandhua Mukti Morcha v. Union of India

AIR 1987 SC 1361, 1367 AIR 1992 SC 1701 AIR 2013 SC 1020 AIR 2013 SC (Supp) 18 ART.I.R 1981 SC 298

FOOTNOTE NO. 74 29 91 91 14

AIR 1995 SC 117 (2008) 6 SCC 1 AIR 1982 SC 1325 AIR 1997 SC 2218 (1984) 3 SCC 161

31 24 74 82 16, 78 V

~MEMORIAL for the PETITIONER~

Bellotti v. Baird Bodhisattwa Gautam v. Subhra Chakraborty Childline India Foundation & Anr. V. Allan John Waters & Ors Consumer Education & Research Centre V. Union Of India Corp Francis Coralie v. Union Territory Of Delhi; Dr. Subramanian Swamy And Ors v. Raju Thr. Member Juvenile Justice D.S. Nakara v. Union of India Delhi Transport Corporation v. DTC Mazdoor Congress E.P. Royappa v. State Of Tamil Nadu Fertilizer Corporation Kamgar Union V. Union Of India Fracis Coralie v. Delhi, Githa Hariharan & Anr. v. Reserve Bank Of India & Anr. Gopi Nath Ghosh v. State Of West Bengal

443 U.S. at 634 AIR 1996 SC 922: (2011) 6 SCC 261.

87 20 80

AIR 1995 SC 922

20

AIR 1981 SC 746:

20

(2014) 8 SCC 390

110

AIR 1983 SC 130 AIR 1991 SC 101

73 74

AIR 1974 SC 555 ART.I.R 1981 SC 344

74 10

AIR 1981 SC 746 AIR 1999 SC 1149

77 69

Govind v. State Of M.P

AIR 1984 SC 237 AIR 1975 SC 1378

91 27

Hari Ram v. State Of Rajasthan, Hussainara Khatoon v. State Of Bihar

(2009) 13 SCC 211 AIR 1979 SC 1369,1373

84 28

Janata Dal v. H.S. Chowdharv

AI.R 1993 SC 892

11

Kartar Singh v. State Of Punjab Kharak Singh v. State Of U.P Lakshmi Kanth Pandey V. Union Of India M.G. Badappanavar v. State Of Karnataka Mahesh Chandra V. Regional Manager, U.P. Financial Corp. Maneka Gandhi v. Union Of India May V. Anderson

(1994) 3 SCC 569 AIR 1963 SC 1295 AIR 1984 SC 469 AIR 2001 SC 260 AIR 1993 SC 935

29 20, 27 70 72 74

AIR 1978 SC 597 345 U.S. 528, 536, 73 S.Ct. 840, 844, 97 L.Ed. 1221 (1953) AIR 1980 SC 1789, 1806. ART.I.R 1976 SC 1455 94 U.S. 113 (1877) AIR 1986 SC 180 442 U.S. 584, 603, 99 S.Ct. 2493, 2505, 61 L.Ed.2d 101 (1979)

77 54

Minerva Mills Ltd V. Union Of India Mumbai Kamgar Sabha V. Abdul Bhai Munn V. Illinois Olga Tellis v. Bombay Municipal Parham v. J.R

38 9 77 20, 23 85

VI

~MEMORIAL for the PETITIONER~

People’s Union for Democratic Rights v. Union ART.I.R 1982 SC of India Prem Shankar v. Delhi Administration AIR 1980 SC 1535 Roper V. Simmons 543 U.S. 551 (2005) S.P. Gupta v. Union Of India 1981 Supp SCC 87 Salil Bali v. Union Of India And Anr. AIR 2013 SC 3743 Satto V. State Of U.P AIR 1979 SC 1519 Schall v. Martin 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984) State Of M.P. V. Kedia Leather & Liquor Ltd. AIR 2003 SC 727 State Of Madras v. Champakam Dorairajan AIR 1951 SC 226 Sunil Batra v. Delhi Administration, ART.I.R 1978 SC 1675: Thompson V. Oklahoma 487 U.S. 815 (1988) Vincent V. Union Of India, (1987) 2 SCC 165 Visakha v. State Of Rajasthan AIR 1997 SC 3011

15 30 88 13 56 83 55

25 35 12 89 22 20

BOOKS BAKSHI P.M., The Constitution of India, 10th Edition,2012, Universal Law Publishing Co BASU DD, Commentary on the Constitution of India, Vol.-10,8th Edition, 2012, LexisNexis, ButterworthsWadhwa JAIN M.P., Indian Constitutional Law, 6th Edition, 2010, LexisNexis, ButterworthsWadhwa PANDEY J.N., The Constitutional Law of India, 48th Edition, 2013 ,Central Law Agency SHUKLA V.N., ‘Constitution of India’, 11th Edition,2012 Eastern Book Co SIDDIQUE, Ahmad ,Criminology problems and perspectives. 3rd edition, 1993, Eastern Book Company SINGH, R K, Juvenile delinquency in India, The Universal Publishing Ltd.,1998 TANENHAUS, David S., Juvenile justice, Oxford Uni. Press, New York, 2004 RANI, KUMKUM, Commentaries on the juvenile justice act, 1986,Alia Law Agency, 2001 BRANDT, DAVID, Delinquency, development, and social policy, Yale University Press, London, 2006 CHOUDHARY, R .N., Law relating of juvenile justice in India, Orient Publishing Company, Allahabad, 2005 RICHARD E.REDDING, Juvenile Deliquency, Oxford Uni. press, New York,2005 ARTICLES BALAKRISHNA, P , Juvenile Justice Act 1986 certain ambiguities in implementation – a critical study, Vol. 104, Criminal Law Journal,p.174, Nov. 1998 BALLAV DAS, Hrudaya, Changing concept to rights of child & juvenile justice, Human Rights Year Book, p 141,2009 VII

~MEMORIAL for the PETITIONER~

BEDI, M S ,Coordination among juvenile justice functionaries, Vol. 16, Journal of Indian Law Institute, p 8-14, Jan- Jun 1995 BURROW, John, Reverse waiver and the effects of legal, statutory and secondary legal factors on sentencing outcomes for juvenile offenders ,Vol54,Crime & Delinquency, NHRC Journal, p 34, Jan 2008 BUTTS, Jeffrey A & BUCK, Janeen, Sudden popularity of teen courts, Vol. 41,N Supreme Court Judges Journal, p 29, Winter, 2002o CHOUDHARY, D P, Promoting co-ordination within the implementation of juvenile justice act: Problems and remedies, Vol. 110,Part 1256,Criminal Law Journal, p 225, August 2004 DAM, Shubanker,Juvenile at eighty, Journal of Indian Law Institute, Vol. 48, No. 2, April – June 2006, p 232) (ILI) DAVIS, Carle P, At-risk girls and delinquency: Career pathwary, Vol. 53,No.3Crime & Delinquency, NHRC Journal, p 408, July 2007 DILLON, Rank R, Exploring the roles of parental monitoring of peers on relationship between family functioning and delinquency in the lives of African, American and Hispanic adolescent. Vol. 54,No.1,Crime & Delinquency, NHRC Journal, p 65, Jan 2008 DUCAN, Martha Grace ,So young and so untended: Remorseless children and the expectations of the law, Vol. 102,Columbia Law Review, p 1469, Oct 2002 GUBA, R K, Juvenile justice – certain inadequacies in law and enforcement, Vol. 100,Criminal Law Journal, , p 46, June 1994 HARRISON, Paige & MAUPIN, James R, Teen court: An examination of processes and outcomes, Vol. 47, Crime & Delinquency, NHRC Journal, p 243, April 2001 JAAMDAR, S, Bringing justice to juveniles: Extension of poverty alleviation programmes, Vol. 30,Economic & Political Weekly, p 1833 JADHAV, Mary Clubwala, Legislation for juvenile delinquency in India, Vol. 5,CBI Bulletin, p 23,1997 JAYARAM, C, Juvenile delinquency and law, Vol. 75 Social Defence, p 22,1984 KADRI, H A, Juvenile justice: Care and protection of children act-2000: An overview Vol. 110,Criminal Law Journal, p 225, July 2004 KHURSHID, Hasan, Juvenile delinquency Vol. 2 ,Nyaya Kiran, , p 50, Oct – Dec 2008 LEIBER, Michael J & JOHNSON, Joseph D, Being young and black: What are their effects on juvenile justice decision making Vol. 54,Crime & Delinquency, NHRC Journal, p 277,oct 2008 MALHOTRA, Saurabh, Juvenile justice system, Vol. 107,Criminal Law Journal, p 2-7, Jan 2001 OMAJI, P , Custodial sentencing in Australia’s juvenile justice system, Vol. 37,Journal of Indian Law Institute, p 483, October – December 1995 PANDA, B P, Rights of child juvenile delinquency and administration of justice, Vol 1 Supreme Court Journal, p 31, Feb 1996 PANDE, B .B., Implications of the linkages between juvenile destitution labour and delinquency for juvenile justice in the contemporary Indian society, Vol. 14,Delhi Law Review, p 61,1992 PAVAL, K C, Juvenile justice: Victim of system, Vol. 44,Gujarat Law Reporter, ,p 157, November 2003 PULLMANN, Michel D, Juvenile offenders with mental health needs: Reducing recidivism using wraparound, Vol.52,Crime & Delinquency, NHRC Journal, p 375,january 2006 VIII

~MEMORIAL for the PETITIONER~

RAHA, SWAGATA,Exploring community as a resource in the treatment of delinquency, Vol. 32, Indian Socio-Legal Journal, p 133,2006 RAHA, SWAGATA, Treatment of juveniles in conflict with law: Legal framework and the judicial response, Vol. 110, Criminal Law Journal, p J152, May 2004, RAI, Ram Bhajan, World inquiry in the juvenile justice act 1986 a source of confusion and misapplication, Vol. 105 ,Criminal Law Journal, p 49, April 1999 RATHI, B K, Juvenile justice. (Care and protection of children) act 2000: Does it require a fresh look, Vol. 109,Criminal Law Journal, , p 229, Aug 2003 RAZDAN, U, Apex court towards humanizing the administration of juvenile justice,Vol 33,Journal of Indian Law Institute, p 366, July- September 1991 REDDY, C Sheela, Dimensions of juvenile crime: An Indian perspective, Vol. 7,South Asia Politics, p 29-35, Aug 2008 REDDY, S SRINIVAS, Juvenile justice: Not a child’s play, Vol. 6,Andhra Law Times, p 2832,2008 RICKARD, Erika, Paying lip service to the silenced: Juvenile justice in India, Vol. 21,Harvard Human Rights Journal, p 155, Winter 2008 SANGHI, G L, Children and the law, Law & Justice, NHRC Journal, p 71,2001 SARAN, KARTIKEYA, Juvenile justice : Protecting the “Child in need of care and protection,Vol. 114,Criminal Law Journal, p 277- 83, October 2008 SAXENA, Shobha ,Legal changes to curb youth criminality Vol. 3,Supreme Court Journal, p 35, November 1999 SINGH, P K, Juvenile justice (Care and protection of children) act, 2000: An enlightened step for tackling the child prostitution ,Vol. 31, Indian Bar Review, p 407-12, July-Dec 2004 TIBATEMWA-EKIRIKUBINZA, Lillian Juvenile justice and the law in Uganda: Towards restorative justice, Human Rights in Development Yearbook, p 291,2003 VED KUMARI, Current issues in juvenile justice in India, Vol. 41, Journal of Indian Law Institute, p 392, July- Dec 1999 VED KUMARI, Quagmire of age issues under the juvenile justice act: From inclusion to exclusion,Vol. 51,Journal of the Indian Law Institute, p 163, April – June 2009 VED KUMARI: Relevant date for applicability of the juvenile justice act., Vol. 6,Supreme Court Cases (Journal),p 9,2009 DYNAMIC LINKS www.scconline .com www.westlaw.com www.manupatra.com www.judis.nic.in www.jstor.org

IX

~MEMORIAL for the PETITIONER~

STATEMENT OF JURISDICTION

CASE CONCERNING THE AGE OF JUVENILE DELIQUENTS

CHILD RIGHTS ADVOCACY FOUNDATION

…..Petitioner

v.

THE REPUBLIC OF HINDUSTAN

…..Respondent

The counsel for petitioner has invoked the epistolary jurisdiction of the Hon’ble Supreme Court of Hindustan by the way of public interest litigation under Art. 321 of constitution. The petitioner most humbly submit themselves to the jurisdiction of Hon’ble court & shall bound by all orders, directions that this Hon’ble court may pass in exercise of the power conferred in its entirety & good faith. All of which is most respectfully submitted.

1

Art. 32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

X

~MEMORIAL for the PETITIONER~

STATEMENT OF FACTS Background facts: The Republic of Hindustan is a country which is almost similar in population, geographical area, historical heritage, crime rate and culture as that of the Republic of India. Similarly, the Constitution of Hindustan and other prevailing domestic laws are in parimateria with the Republic of India, except in regard to the reduction of the age of juveniles. The Constitution of Hindustan contained various beneficial provisions for promoting and protecting the rights and interests of children. The Parliament of Hindustan enacted and put in place a law by name “The Juvenile Justice (Care and Protection of Children) Act, 2000” with the laudable object of engendering welfare and wellbeing of juveniles. The print and electronic media in the Republic of Hindustan had blown out of proportion the incidents of offences of rape, murder, kidnapping, and similar such offences committed by juveniles against the girl child & women delineated a juvenile as a person not attaining the age of his/her 18th year of age. The survey shockingly and stupendously disclosed that a considerable number of such offences are committed against women by juveniles. Amendment in JJCPA, 2000: Consequently, the said Amendment was successfully made to the Juvenile Justice Act, 2000. The said Amendment clearly provided that any juvenile in between the age of 16 to 18 years commits any offence of rape, murder, kidnapping, abduction and offences of such analogous nature then such offender shall be treated as an adult offender only. The said Amendment was challenged by the petitioner spearheading the cause of child rights and welfare in the Republic of Hindustan before the Supreme Court seeking declaration that it is invalid, void and unconstitutional on various grounds. Amendment was against the very spirit of the International Covenants, was in flagrant flouting of the constitutional provisions & core principles of juvenile justice, also it was contrary to the established judicial precedents. If the amendment founded on the skewed survey which was far from the reality at ground level etc., is implemented it would make juveniles into hardened and habitual criminals as well as would dehumanize the criminal administration of justice. Petitioner filed a Writ Petition under Art. 32 of the Constitution in the Supreme Court of the Republic of Hindustan challenging the Amendments made to the Juvenile Justice (Care & Protection) Act, 2000. XI

~MEMORIAL for the PETITIONER~

STATEMENT OF ISSUES

1. WHETHER THE PETITIONER HAS LOCUS-STANDI TO FILE THE PRESENT PETITION? 1.1 Whether PIL under the said petition is maintainable? 2. WHETHER THE CONTENTION ADVANCED BY THE PETITIONER THAT THE IMPUGNED AMENDMENT IS AGAINST THE INTERNATIONAL COVENANTS,

CONSTITUTIONAL

IDEALS,

CORE

PRINCIPLES

OF

JUVENILE JUSTICE AND ESTABLISHED JUDICIAL PRECEDENTS IS LEGALLY TENABLE? 2.1 Whether the said amendment violates the international covenants and other obligation? 2.2 Whether the said amendment violates the constitutional ideals? 2.3 Whether the said amendment violates the core principle of juvenile justice and established precedents? 3. WHETHER THE CONTENTION ADVANCED BY THE RESPONDENT THAT LOWERING OF THE AGE OF JUVENILES IN THE LIGHT OF SURVEY FINDINGS & EARLY PRECOCITY OF CHILD IS LEGALLY SUSTAINABLE? 3.1 Whether the said amendment is made taking into consideration the scientific studies and psychological aspects? 3.2 Whether the amendment violates the rights and fundamental principles enshrine in the act itself? 4. WHETHER

THE

IMPUGNED

AMENDMENT

DEHUMANIZES

THE

CRIMINAL ADMINISTRATION OF JUSTICE AS CONTENDED BY THE PETITIONER? 4.1 Whether under the amendment it is friendly to make children criminals?

XII

~MEMORIAL for the PETITIONER~

SUMMARY OF ARGUMENTS 1. WHETHER THE PETITIONER HAS LOCUS-STANDI TO FILE THE PRESENT PETITION? a. PIL under the said petition is maintainable The petitioner has the locus standi to file the present petition under the head of PIL, which is maintainable because there is a gross violation of rights of the children which are bestowed upon them by the various international conventions, constitutional principles and ideals of juvenile justice act itself. Petitioner acting bonafide in good faith filed the present petition for the cause of rights of children who cannot lobby themselves for their rights. 2. WHETHER THE CONTENTION ADVANCED BY THE PETITIONER THAT THE IMPUGNED AMENDMENT IS AGAINST THE INTERNATIONAL COVENANTS,

CONSTITUTIONAL

IDEALS,

CORE

PRINCIPLES

OF

JUVENILE JUSTICE AND ESTABLISHED JUDICIAL PRECEDENTS IS LEGALLY TENABLE? a. Amendment violates the international covenants and other obligations Childhood is a significant phrase of development as it holds the potential to the future development of society, state must play its part as protector of rights of children. For this purpose our country has ratified many international covenants in which it is explicitly mentioned that every person under the age of eighteen are to be considered as a child who needs protection and care under the law of the land. Thus the said amendment violates the very principle of international obligations. b. Amendment violates the constitutional ideals The impugned amendment violates constitutional ideals guaranteed under Art.14, Art.15(3), Art.21A, Art.21, Art.24, Art.39(e), Art.39(f), Art.45, Art.47, reducing the age of juveniles and treating them as a separate class is contrary to doctrine of reasonable classification.

XIII

c. Amendment violates the core principle of juvenile justice and established precedents The main objective of the juvenile justice act is to save the young offenders from getting sucked into the criminal justice system so early on in life and to allow them to reform. However, the impugned amendment would not only defeat the very aim but also labelize the innocent offender as a hardened criminal leaving their future in the dark. 3. WHETHER THE CONTENTION ADVANCED BY THE RESPONDENT THAT LOWERING OF THE AGE OF JUVENILES IN THE LIGHT OF SURVEY FINDINGS & EARLY PRECOCITY OF CHILD IS LEGALLY SUSTAINABLE? a. Amendment is made taking into consideration the scientific studies

and

psychological aspects The said amendment is based merely on the outrage and skewed surveys by media. It failed to take into the consideration the scientific aspect of juvenile delinquency. Neuroscientist conform that the pre frontal cortex which is responsible for functions like planning, judgment and impulse control, is the slowest to mature and requires the age of 25 to mature fully. b. Amendment violates the rights and fundamental principles enshrine in the act itself The objective of the impugned amendment in regard with the existing act is to cater to the developmental needs of the children creating a sub class within a class itself and treating them as par with the adult offender is against the interest of the juvenile and nor it is child friendly. 4. WHETHER

THE

IMPUGNED

AMENDMENT

DEHUMANIZES

THE

CRIMINAL ADMINISTRATION OF JUSTICE AS CONTENDED BY THE PETITIONER? a. Under the amendment it is friendly to make children criminals Criminalizing children encourages them to spiral down into more and more violent offending. Maintain primarily punitive, retributive system for children in conflict with the law prevents societies moving on ; it upholds believes in original sins and need to beat the devil out of children. The basic assertion is that we must disregard retribution all together and focus exclusively on rehabilitation. XIV

~MEMORIAL for the PETITIONER~

ARGUMENTS ADVANCED 1. WHETHER THE PETITIONER HAS LOCUS-STANDI TO FILE THE PRESENT PETITION OR NOT? It is humbly submitted that the petitioner has locus-standi to file the present petition under article 322of constitution of India. As the petition is filed by the petitioner against the rights of children which has been infringed by the said amendment in, The Juvenile Justice (Care and protection of children) Act, 2000. Children and childhood across the world, have broadly been construed in terms of a ‘golden age’ that is synonymous with innocence, freedom, joy, play and the like. It is the time when, spared the rigours of adult life, one hardly shoulders any kind of responsibility or obligations. Country’s children are country’s future as the strength of nation lies in a healthy, protected, educated and well-developed child population that will grown up to the productive citizen of the country3. But, then, it is also true that children are vulnerable, especially when very young. Whether or not, the premise underlying this is correct or not, the childhood ‘reality’ on the whole is questionable, demanding critical evaluation4. Accordingly, idealistic notions and representations associated with children and childhood have been challenged, especially in relation to poverty, disease, exploitation and abuse rife across the globe. It is about the time that we recognize this and take remedial measures for their protection. Lack of empirical evidence and qualitative information on the dimensions of child delinquency and neglect makes it difficult to address the issue in a comprehensive manner.

2

32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

3

Ved Kumari: Reflection of human rights in probation and children acts-a pragmatic approach. (Crimnal law journal, Vol. 1, 1984, p 897) 4 THAKER, Avani G: Juvenile delinquency: Is our legal system a panacea or epicenter of its perpetuation. (Gujarat Law Journal, Vol. 1, No. 3, March 2008, p 19-23)

1

To adduce upon the issue of infringement of rights of children, petitioner have filed the petition by the way of public interest litigation under the jurisprudence of article 325 of constitution of Hindustan under which “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part6 is guaranteed”. 1.1 Maintainability of public interest litigation The Constitution of Hindustan emphasizes on the equal justice to all persons. The Public Interest Litigation in Hindustan is comparatively a recent innovation of the judiciary, initiated primarily to provide access to justice and equal justice to the disadvantaged Sections of the society who are not possessed of adequate means or sufficient awareness to enforce their fundamental rights guaranteed under the constitution. Republic of Hindustan which is parimateria with republic of India every manner have congruence development of concept of PIL as till 1960 and seventies, the concept of litigation in India was still in rudimentary form and was seen as a private pursuit for the vindication of private vested interest. Litigation in early 1960 consisted mainly of some action initiated and continued by certain individuals, usually, addressing their own grievances or problems. Thus, the initiation and continuance of litigation was the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the resources available with those individuals. There were very little organized efforts or attempts to take up wider issues that affected classes of consumers or the general public at large. PIL emerged as an exceptional weapon under the jurisprudence of Indian constitution paving the way for liberalized locus –standi, enable a social activist, individual or group of persons to bring to the Supreme Court any issue of public interest wherein violation of any fundamental right is alleged, for its protection by resort to constitutional remedy under article 327 of the constitution. This is the underlying principle in Article 39A8of the constitution. The procedure for PIL is extension of the principle on Order 1 Rule 8 of Civil Procedure Code, 1908 for representative action.

5

Ibid note 1 Part III of Constitution of Hindustan 7 Ibid note 1 8 39 A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. 6

2

~MEMORIAL for the PETITIONER~

Public Interest Litigation popularly known as PIL and can be broadly defined as litigation in the interest of that nebulous entity: the public in general. The concept of public interest litigation had its origin in the American legal system during the period of 1960’s. The Council for Public Interest Law set up by the Ford Foundation in the United States of America stated that Public Interest Law is the name, which was able to provide legal representation to previously unrepresented groups The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer in 1976 in Mumbai Kamgar Sabha v. Abdul Bhai9

further, the celebrated case of Fertilizer

Corporation Kamgar Union v. Union of India10, the terminology “Public Interest Litigation” was used by Justice Iyer. In this particular judgment he used the expression ‘Epistolary Jurisdiction’. The Hon’ble Supreme Court held that the procedure had to be relaxed to meet the ends of justice. During the last three decades the our judiciary has been playing a very creative role in the administration of justice, which is the departure from the ‘committed judiciary’ of the past to the activist judiciary of today under the principle of public interest litigation that was innovated by the Apex Court through judicial activism. With the advent of public interest litigation this traditional strict rule of standing has been broadened and liberalized. As a result of this any person acting bona fide having no personal gain or political motive can move the Court alone for the enforcement of constitutional or legal rights of socially or economically disadvantaged Sections of the immunity11. The cause of justice cannot be allowed to overlook on the technical ground of Locus Standi or absence of personal loss or injury.12 The most important pronouncement of the Supreme Court in the field of public interest litigation involving the question of Locus Standi is S. P. Gupta v. Union of India13, popularly known as ‘Judges Transfer Case’.

9

AIR 1976 SC 1455 AIR 1981 SC 344 11 Janata Dal v. H.S. Chowdharv, AIR 1993 SC 892 12 Sunil Batra v. Delhi Administration, AIR 1978 SC 1675 13 AIR 1982 SC 149 10

3

~MEMORIAL for the PETITIONER~

In this case the Locus Standi of the petitioners was challenged. Delivering the judgment the Court held that, “any member of the public acting bona fide and having sufficient interest in the matter can maintain an application for appropriate directions or orders.” The decision of this case had made a far-reaching impact on the question of Locus Standi. Similarly, the Supreme Court gave historic judgments’ in Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union of India14, People’s Union for Democratic Rights v. Union of India15 and Bandhua Mukti Morcha v. Union of India16conferring standing to the petitioners. The court justified such extension of standing in order to enforce rule of law and provide justice to disadvantaged Sections of society17. Furthermore, the Supreme Court observed that the term ‘appropriate proceedings’’ in Art.32 of the Constitution18does not refer to the form but to the purpose of proceeding: so long as the purpose of the proceeding is to enforce a FR, any form will do19. This was achieved by both interpreting existing FRs widely and by creating new FRs. Article 21— ‘‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’’—proved to be the most fertile provision to mean more than mere physical existence20; it ‘‘includes right to live with human dignity and all that goes along with it’’.21Everwidening horizon of Art.21 is illustrated by the fact that the Court has read into it, inter alia, the right to health22, livelihood23, free and compulsory education up to the age of 14 years24, unpolluted environment25, shelter26, clean drinking water, privacy27, legal aid28, speedy trial29,

14

AIR 1981 SC 298 AIR 1982 SC 1473 16 AIR 1984 SC 802 15

17

Aharon Barak, ‘‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’’ (2002) 116 Harvard Law Review 16, 107–108. 18 Ibid note 3 (clause 1) 19 Shukla V.N.,Constitution of India, 11th Edition, Eastern Book Co pp.278–279. 20 Kharak Singh v State of U.P., AIR 1963 SC 1295 ; Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180:; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Consumer Education & Research Centre v Union of India, AIR 1995 SC 922; Bodhisattwa Gautam v Subhra Chakraborty, AIR 1996 SC 922; Visakha v State of Rajasthan AIR 1997 SC 3011 21 Ibid 22 Vincent v. Union of India, AIR 1887 SC 990 23 Olga Tellis v. Bombay Muncipal Corp. AIR 1986 SC 180 24 Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 25 State of M.P. V.kedia Leather& Liquor Ltd., AIR 2003 SC 727 26 Supra 19 27 Kharak Singh v. State of U.P., AIR 1963 SC 1295; Govind v. State of M.P., AIR 1975 SC 1378

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~MEMORIAL for the PETITIONER~

and various rights of under-trials30, convicts and prisoners31. It is important to note that in a majority of cases the judiciary relied upon DPs for such extension. After 2 years 11 months and 18 Days of assiduous deliberation and incessant debate, the framers of the Constitution created the sacrosanct Constitution of Hindustan. With an impermeable and perpetual desire to serve the nation with the hope to establish a ‘‘sovereign socialist secular32 democratic republic’. Among others, the Constitution aims to secure to all its citizens justice (social, economic and political), liberty (of thought, expression, belief, faith and worship) and equality (of status and of opportunity)33. The main tools employed to achieve such social change were the provisions on fundamental rights (FRs) and the directive principles of state policy (DPs), which Austin described as the ‘‘conscience of the Constitution’’34. After initial deviation,35 the Supreme Court accepted that FRs are not superior to DPs on account of the latter being non-justifiable: rather FRs and DPs are complementary and the former are a means to achieve the goals indicated in the latter36.The issue was put beyond any controversy in Minerva Mills Ltd v. Union of India37 where the Court held that the, ‘‘harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution’’38 Since then the judiciary has employed DPs to derive the contents of various FRs.39 Petitioner’s is a dedicated foundation working persistently for the rights of children, acting bona fide as a social action group filing petition under episolatary jurisdiction challenging the 28

Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369,1373 Kartar Singh v. State of Punjab, (1994) 3 SCC 569 ; Abdul Rehman Antulay v. R.S. Naik, AIR 1992 SC 1701 30 Prem Shankar v. Delhi Administration, AIR 1980 SC 1535 31 Arvindar Singh Bagga v. State of U.P., AIR 1995 SC 117 32 The terms ‘‘socialist’’ and ‘‘secular’’ were inserted by the 42nd amendment in 1976. 33 These values are expressly declared in the Preamble and form the essence of the Indian Constitution, the Indian Legal System and the Indian Polity. 34 Granville Austin, Indian Constitution: Cornerstone of a Nation, p.50 35 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226. 36 CB Boarding & Lodging v. State of Mysore, AIR 1970 SC 2042; Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461; Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789; Unni Krishnan v. State of AP, (1993) 1 S.C.C. 645. Rajiv Dhavan, ‘‘Republic of India: The Constitution as the Situs of Struggle: India’s Constitution Forty Years On’’ in Lawrence W. Beer (ed.), Constitutional Systems in Late Twentieth Century Asia (Seattle: University of Washington Press, 1992), pp.373, 382–383, 405 and 413–416. 37 Supra note 34 38 Minerva Mills Ltd v Union of India , AIR 1980 SC 1789, 1806. 39 Jain M.P., ‘‘The Supreme Court and Fundamental Rights’’ in Verma and Kusum 6th edition, Fifty Years of the Supreme Court of India, pp.65–76. 29

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impugned amendment passed by our distinguished lawmakers but the said amendment encroaches upon the fundamental rights of children which is apprehend below (1.2) :1.2 Encroachment upon basic human rights and constitutional ideals The said amendment in JJCPA Act,2000 encroached upon the rights of children endowed upon them by the constitution which are fundamental human rights guaranteed under article 1440 by making a unreasonable class classification of children under the age-group of 16 to 18 years indulge in delinquent activities, which have no nexus sought to be achieved, further article 15(3)41 obligates states to make special provisions for women and children, with the said amendment state is making anti-provisions against the human rights of child treating him at par with adult offender. Article 2142which empowers every human with fundamental right of life and liberty with the core principle of natural justice is hampering rights of children, further the constitutional ideals engraved under article 39(e)43, 39(f) 44and 4545are infringed by the state by virtue of said amendment. article 51(c)46 and article 25347which is vital for state in smooth relations with world bodies, friendly relations with the state is hindered by said amendment as it infringes the rights of children enshrined under international covenants of united nation convention on the rights of 40

Art. 14. Equality before law.-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 41 Art. 15(3). Nothing in this article shall prevent the State from making any special provision for women and children. 42 Art. 21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law. 43

Art. 39(e). That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 44 Art. 39(f). That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment 45 Art. 45. Provision for free and compulsory education for children.-The State shall endeavor to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. 46 Art. 51(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and encourage settlement of international disputes by arbitration. 47 Art. 253. Legislation for giving effect to international agreements.-Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

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~MEMORIAL for the PETITIONER~

children48article (40)(1)49 and United Nations Standard Minimum Rules for the Administration of Juvenile Justice(Beijing rules)50 article 1051,1152,1353 which particularly deals that a child delinquent must get minimum punishment and punishment must be last resort. Our country has ratified all the U.N guidelines in this regard and by making impugned amendment is infringing all the established ideals. Petitioner acting bona fide and ardent protector of rights of children. Children’s justice is to be ensured by adults because they cannot lobby for themselves. The establishment of juvenile justice system was a great achievement of the nineteen century to bring juvenile delinquents out of the purview of criminal courts and safeguard then from the technicalities of criminal

48

Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 49 States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society. 50 adopted on 29 November 1985 by the United Nations General Assembly 51 Art. 10. Initial contact- 10.1 upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the short- est. possible time thereafter. 10.2 A judge or other competent official or body shall, without delay, con- side the issue of release. 10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the wellbeing of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case. 52 Art. 11. Diversion- 11.1 Consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority, referred to in rule 14.1 below. 11.2 The police, the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such case at their discretion, without in course to formal hearings, in accordance with the criteria laid down for that purpose in the respective legal system and also in accordance with the principles contained in these Rules. 11.3 Any diversion involving referral to appropriate community or other services shall require the consent of the juvenile, or her or his parents or guardian, provided that such decision to refer a case shall be sub ject to review by a competent authority, upon application. 11.4 In order to facilitate the discretion ary disposition of juvenile cases, efforts shall be made to provide for community programmes, such as temporary supervision and guidance, restitution, and compensation of victims. 53 Art. 13. Detention pending trial- 13.1 Detention pending trial shall be used only as a measure of last Resort and for the shortest possible period of time. 13.2 Whenever possible, detention pending trial shall be replaced alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. 13.3 Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nation 13.4 Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults. 13.5 While in custody, juveniles shall receive care, protection and all necessary individual assistance - social, educational, vocational, psychological, medical and physical - that they may require in view of their age, sex and personality.

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procedure. It emerged as a measure of social defence towards juvenile .the petitioner acknowledges this effort. But the said amendment is based on government desperation to change the law on frivolous and popular sentiments and not on facts, it usurping several rights arguendo.thus the petitioner have locus-standi to maintain the present petition. 2. WHETHER THE CONTENTION ADVANCED BY THE PETITIONER THAT THE IMPUGNED AMENDMENT IS AGAINST THE INTERNATIONAL COVENANTS, CONSTITUTIONAL IDEALS, CORE PRINCIPLES OF JUVENILE JUSTICE AND ESTABLISHED JUDICIAL PRECEDENTS IS LEGALLY TENABLE? The greatest gift to humanity is the Children and Childhood is a significant and impressionable phase of human development as it holds the potential to the future development of any society. Children who are nurtured in an environment, which is conducive to their intellectual, physical and social health, grow up to be responsible and productive members of society. Every nation links its future with the present status of its children. It was wisely contended by Frankfurter, J. in the case of May v. Anderson54 that, “Children have a very special place in life which law should reflect”. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae”.55 The way in which children, who are victims of the conditions in which they are living and children who have violated the law are approached, treated, rehabilitated, disciplined and punished, is essentially a reflection of that society’s culture and value system. Keeping in view the inevitable part of society our country has made various special laws pertaining to the delinquency of juveniles. The essence of the Juvenile Justice (Care & Protection of Children) Act 2000, and the Rules framed there under in 2007, is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society. The age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioral patterns that

54 55

345 U.S. 528, 536, 73 S.Ct. 840, 844, 97 L.Ed. 1221 (1953) Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 2410, 81 L.Ed.2d 207 (1984)

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~MEMORIAL for the PETITIONER~

till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future.56 The petitioner humbly submits before the Hon’ble court that the impugned amendment is against the international covenants, constitutional ideals, core principles of juvenile justice and established judicial precedents. 2.1 It violates the international covenants The counsel humbly submits before this Hon’ble court that the amendment for lowering down the age of juveniles from 18 years to 16 years in the heinous cases is against the various international covenants for child rights that are being laid down to put forward various guidelines for securing and promoting the interests and rights of the children. The preamble of the United Nations Declaration of the Rights of the Child, 195957 points out: “..the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, and that “mankind owes to the child the best it has to give.” Our country has been signatory to and ratified many of the International Conventions relating to child rights. Hence, it is union’s international obligation to incorporate the mandatory principles embodied therein, in our domestic/municipal law. The important international instruments which proved a landmark in the development of Juvenile justice system in the country are as follows:  The United Nations Declaration of the Rights of the Child, 1959.58  The UN Convention on the rights of the Child (UNCRC), 1989.59  The United Nations Standard Minimum rules for the Administration of Juvenile Justice (The Beijing rules) 1989,60 56

Salil Bali v Union of India and Anr., AIR 2013 SC 3743 Adopted by UN general assembly on 20 Nov 1959 58 Proclaimed by General Assembly Resolution 1386(XIV) of 20 November 1959. 59 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance with article 49 57

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~MEMORIAL for the PETITIONER~

 The United Nations rules for the protection of Juveniles Deprived of their Liberty, 1990.61  The United Nations Guidelines for the prevention of Juvenile Delinquency (The Riyadh guidelines), 1990.62  The Hague Convention on Protection of Children and Cooperation in respect of intercountry Adoption, 1993.63  The United Nations guidelines for Action on Children in the Criminal justice System, 1997.64  The United Nations committee on the Rights of the Child; general comments on Children’s Rights in Juvenile Justice, 2007.65 The following sets of Rules intended that social policies should be evolved and applied to prevent juvenile delinquency, to establish a Juvenile Justice System for juveniles in conflict with law, to protect and safeguard fundamental rights and to establish methods for social reintegration of young people who had suffered incarceration in prison or other corrective institutions. Article 37 (c) of the UN Convention on Rights of the Child (CRC), 198966 says – ‘Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so…’ General Comment No. 10, issued by the UN Committee on the Rights of the Child in 200767, titled ‘Children’s rights on juvenile justice’ recommends the applicability of juvenile justice 60

Often referred to as the Beijing Rules, is a resolution of the United Nations General Assembly regarding the treatment of juvenile prisoners and offenders in member nations, was adopted on 29 November 1985 by the United Nations General Assembly 61 Adopted by General Assembly resolution 45/113 of 14 December 1990 62 Adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990 63 Concluded on May 29, 1993 in The Hague, the Netherlands 64 Recommended by Economic and Social Council resolution 1997/30 of 21 July 1997 65 Supra 66 66 The UN General Assembly adopted the Convention and opened it for signature on 20 November 1989. It came into force on 2 September 1990, after it was ratified by the required number of nations 67 U.N COMMITTEE ON THE RIGHTS OF THE CHILD ,Forty-fourth session Geneva, 15 January-2 February 2007

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system “for all children who, at the time of commission of an offence [or act punishable under the criminal law], have not yet reached the age of 18 years”(Para 36). It further recommends that those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 [or lower] years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a nondiscriminatory full application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with appreciation that some States Parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception” (Para 38). Article 3 (1) of the CRC68 says, – ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. The Apex court in the case of Githa Hariharan & Anor v. Reserve Bank of India & Another69 has contended that domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them. Therefore, the impugned amendment is clearly against the international covenants which were crafted in order to preserve the dignity and reformation of the juveniles. 2.2 It violates constitutional ideals Bhagwati, CJ, has rightly observed in the case of Lakshmi Kanth Pandey v. Union of India70: “The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of the nation. Now obviously children need special protection because of their tender age and physique mental immaturity and incapacity to look after themselves. That is why there is a growing realization in every part of the globe that children must be brought up in 68 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 69 AIR 1999 SC 1149 70 AIR 1984 SC 469

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~MEMORIAL for the PETITIONER~

an atmosphere of love and affection….In India this consciousness is reflected in the provisions enacted in the Constitution.” Our Constitution recognizes that children are very precious for the nation as well as its rapid growth. The fact that the welfare of country’s children was an important object in the minds of the framers of the Constitution is reflected in its provisions. Part III is considered the core of the Constitution as it encompasses the Fundamental rights which are granted to the individuals in order to protect and promote the rights and interests of an individual. Accordingly, part III confers various special rights pertaining to the children. Article 1471 is a basic feature of Constitution and any treatment of equals unequally will be violation of basic structure of the Constitution of Hindustan.72 Under the impugned amendment the children with conflict in law are treated unequally by creating a sub-class classification under the already existing reasonable classification. By the way of this impugned amendment no reasonable nexus is sought to be achieved by the lawmakers.73 A very fascinating aspect of Art. 14 which the courts have developed over a time are that it embodies “a guarantee against arbitrariness” on the part of executive and legislature. As the Supreme Court has observed in Royappa:74 “from a positivistic point of view, equality is antithetic to arbitrariness”. The said impugned amendment is totally based on the whims and wishes of the legislature without taking into consideration the other aspects of society. Art. 15(3)75 of the Constitution enables the government to make special provisions for the protection of women and children. The JJ Act 2000 which was enacted by the legislature was also in congruence with the provisions of Art. 15(3) and the petitioner applauds this very effort but the impugned amendment is clearly violative of the rights of the children. Article 2176 of the Constitution grants inalienable right of life and personal liberty and the courts subsequently have given a wider interpretation to this article. “By the term life as here used,

71

Equality Before Law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 72 M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260 73 D.S. Nakara v. Union of India, AIR 1983 SC 130 74 E.P. Royappa v State of Tamil Nadu, AIR 1974 SC 555; Bachan Singh V State of Punjab, AIR 1982 SC 1325;; A. L. Kalra v. P & E Corp. Of India ltd. , AIR 1987 SC 1361, 1367; Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101; Mahesh Chandra v, Regional Manager, U.P. Financial Corp., AIR 1993 SC 935 75 Nothing in this article shall prevent the State from making any special provision for women and children. 76 Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.

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something more is meant than mere animal existence”.77 Therefore, accordingly the dignity of juveniles should also be considered in the light of the above mentioned Article as it was reiterated in the landmark judgment, Bandhua Mukti Morcha v. Union of India,78 “The right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles and particularly clauses (e) & (f) of Article 39 and Articles 41 and 42 respectively”. Article 21A79 of the Constitution mentions the State’s duty to provide free and compulsory education to the children upto the age of 14 years. The hon’ble apex court has observed that, “The word “life” in the context of article 21 of the Constitution has been found to include “education” and accordingly this Court has implied that “right to education” is in fact a fundamental right”.80 Article 2381 does not specifically mentions the children, yet it is applied to them and is more relevant in their context because children are the most vulnerable sections of the society. It is a known fact that many children are exploited because of their poverty. They are deprived of education, made to do all sorts of work injurious to their health and personality in order to make their both ends meet. Art. 24 expressly provides that no child below the age of 14 years shall be made to do work in any factory or mine or engaged in any hazardous employment. The Supreme Court in 1997, while considering the plight of bonded and child labour in the judgment of Bandhua Mukti Morcha etc. v. UOI & Ors82 observed that, “If children are deprived of their childhood - socially, economically, physically and mentally-the nation gets deprived of the potential human resources for social progress, economic empowerment and peace and order, the social stability and good citizenry. The founding fathers of the constitution, therefore, have emphasized the importance of the role of the child in its best for development. Dr. Bhim Rao Ambedkar, who was far ahead of his time in his wisdom projected these rights in the Directive Principles including the children as beneficiaries. Their deprivation has deleterious effect on the efficacy of the democracy and the role of law.” Provisions of Art. 39(e), 39(f), 45 & 47 also specify the various special provisions in lieu of the children. In Satto v. State of U.P.,83 77

Maneka Gandhi v. Union of India, AIR 1978 SC 597; Munn v. Illinois, 94 U.S. 113 (1877); Fracis Coralie v. Delhi, AIR 1981 SC 746 78 AIR 1984 SC 802 79 Ins. By the Constitution(Eighty-sixth amendment) Act, 2002, sec 2(w.e.f 1-4-2010) 80 Childline India Foundation & Anr. V. Allan John Waters & Ors, (2011) 6 SCC 261. 81 Prohibition of traffic in human beings and forced labour 82 AIR 1997 SC 2218 83 AIR 1979 SC 1519

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Justice V R Krishna Iyer, observed: “Juvenile justice has constitutional roots in Arts. 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental concern of the State for its child citizens including juvenile delinquents.” Therefore in the light of the above stated provisions it can be observed that the impugned amendment is infringing upon the Constitutional ideals laid down for the children.

2.3 It violates core principles of juvenile justice and established precedents The main objective of the Juvenile Justice Act is to save young offenders from getting sucked into the criminal justice system so early on in life and to allow them to reform. However, such amendment would not only defeat the very aim but also not allow the offender to recover from the punishment leaving his future in the dark. Juvenile offenders are allowed some leeway on account of the fact that they may be immature and not fully capable of understanding the consequences of their actions. “The very scheme of the aforesaid Act is rehabilitatory in nature and not adversarial which the courts are generally used to”.84 In a leading case of U.S it has been observed that, “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions”.85 “Juveniles are less responsible for their acts than adults because they “are less mature in their ability to make sound judgments” and “less mature in terms of their moral development . . .” and “are less able to control their conduct and to recognize the consequences of their acts than are adults”.86 There are three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the particular vulnerability of children, their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.87

84

Hari Ram v State of Rajasthan, (2009) 13 SCC 211 Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct.2493, 2505, 61 L.Ed.2d 101 (1979) 86 Helene B. Greenwald, Capital Punishment for Minors: An Eight Amendment Analysis, 74 J. Crim. L. & Criminology 1471 (1983) 87 Bellotti v. Baird, 443 U.S. at 634; 85

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In a well laid down judgment of the U.S. Supreme Court in the case of Roper v. Simmons88, the Supreme Court expanded Thompson89, and held that the Eighth Amendment90 prohibits sentencing any juvenile younger than 18 years old at the time of the offense to death. The court reasoned that the differences between juveniles and adults “render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult.” Similarly, in a No. of cases the Supreme Court has successfully entertained the plea of juvenility91 and given the decision abiding by the provisions of the JJ Act, 2000. The shift away from rehabilitation diminishes the juvenile justice system's ability to enable juvenile offenders to take responsibility for them and to protect them as victims of an imperfect society.

3. WHETHER THE CONTENTION ADVANCED BY THE RESPONDENT THAT LOWERING OF THE AGE OF JUVENILES IN THE LIGHT OF SURVEY FINDINGS AND EARLY PRECOCITY OF CHILD IS LEGALLY SUSTAINABLE? The petitioner humbly submits that lowering the age of juveniles under the impugned amendment is regressive and incompatible with the rehabilitative foundation of juvenile justice and violates the right to equality. We urge the lawmakers to “get smart” and not “get tough” on juveniles in conflict with law, as a retributive approach to juvenile crime is internationally recognized as being counterproductive. In fact, in jurisdictions where this has been done, juveniles have been exposed to hardened criminals and have ended up graduating as repeat offenders themselves, thereby producing the exact opposite outcome from what was envisaged. We strongly believe that the JJ system needs 88

543 U.S. 551 (2005) Thompson v Oklahoma, 487 U.S. 815 (1988) 90 Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted 91 Abuzar Hossain v. State of W.B., AIR 2013 SC 1020; Ajahar Ali v State of W. B., AIR 2013 SC (Supp) 18; Gopi Nath Ghosh v State of W. B., AIR 1984 SC 237 89

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to balance the need for accountability to the victim and community, and the need to ensure public safety with the need to ensure that the system addresses the developmental needs of the juvenile to heal and mature into responsible contributing individuals.

Dealing with children is prefaced by Nelson Mandela’s quote - "There can be no keener revelation of a society's soul than the way in which it treats its children". Treating children alleged to have committed ‘serious’ crimes as irredeemable criminals, and transferring them to the adult system contradicts the

stated commitment of our policymakers to “Lay special

emphasis on vulnerable children and especially those belonging to the vulnerable communities like SCs, STs, OBCs, migrants, slum dwellers, street dwellers and those with disabilities” as nearly 53% of juveniles in conflict with law come from families with an annual income of less than Rs 25,000 and illiterate children and those with education up to primary level constitute 51.9% of the juvenile population92.Juveniles alleged or found to have committed a crime, (whether ‘serious’ or not) are vulnerable and not only deserve to be treated in a manner that should make this nation proud, they are entitled to be dealt with in accordance with the vision of the Preamble of the JJ Act 2000- i.e., ‘proper care, protection and treatment by catering to their developmental 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’. The aforementioned provisions should therefore not be retained in the said impugned amendment for the following reasons:

3.1 Scientific studies on the adolescent brain and psychology contradict public assumptions of maturity The proposed provisions assume that juveniles who have engaged in crimes such as rape and murder are more mature. This assumption is prevalent in the public and is totally contradicted by science. Neuroscientists now confirm that the pre-frontal cortex, which is responsible for important functions such as planning, reasoning, judgment, and impulse control, is the slowest to mature, a process that completes at the age of 25. Our present science establishes that younger

92

National Crime Records Bureau, Crime in India, 2013, Chapter 10, p.138.

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people engage in risky behavior precisely because of an underdeveloped brain. By that yardstick, making the argument of maturity based on the nature of crime does not stand scrutiny. 93 Findings in neuroscience and adolescent psychology confirm that juveniles are more susceptible to negative influences and peer pressure, are less likely to focus on future outcomes, are less riskaverse than adults, have poor impulse control, and evaluate risks and benefits differently all of which pre-dispose them to make poor decisions.94 The part of the brain that helps in organizing, planning and strategizing is not developed in teen years and therefore it is “unfair to expect them to have adult levels of organizational skills or decision making before their brain is finished being built…”95 These studies also confirm that adolescence is a transient phase and that “most young people grow out of delinquency on their own as their brains mature – if they are spared the trauma and lasting stigma of juvenile incarceration.”96

Our clinical experience shows that, ‘offending’ in juveniles is more likely to happen in a context of absence of positive adult supervision - particularly the absence of ‘care and protection’, circumstances of neglect, exploitation and abuse, and the child having been socialized in a way where his/her decision making goes awry, rather than in a context of premeditation and criminality. The State’s response to juvenile crime has to take into account the complex psychosocial circumstances of the child, as it interacts in a significant way with the immature adolescent ‘neurobiology’ and behavior.

Further, the discretion if accorded to JJB’s is problematic because according to scientific studies, a precise determination of a juvenile’s psychosocial maturity is not possible, as “practitioners lack diagnostic tools to evaluate psychosocial maturity and identity formation on an

93

Elizabeth Cauffman and Laurence Steinberg, “(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults,”Behav. Sci. Law 18: 741 at742-743 (2000) 94 Elizabeth S. Scott and Laurence Steinberg, “Adolescent Development and the Regulation of Youth Crime”, The Future of Children, VOL. 18 NO. 2, FALL 2008, p.15 at 20-21 95 PBS Frontline, Inside the Teenage Brain, Interview with Jay Giedd. Available at http://www.pbs.org/wgbh/pages/frontline/shows/teenbrain/interviews/giedd.html last accessed on 30/01/2015 96 NELL BERNSTEIN, BURNING DOWN THE HOUSE: THE END OF JUVENILE PRISON, 2014, p. 207.

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individualized basis” and because “evaluating antisocial traits and conduct in adolescence is just too uncertain.”97

The assumptions in the Bill relating to transfer, are therefore untenable, as adolescence is in itself considered a mitigating factor, such that all persons below the age of 18 years in this developmental stage must be treated as juveniles without exception.

3.2 The proposed provisions violate the constitutional right to equality and right to life India’s constitutional right to equality is about ensuring fairness. We have already established that juvenile’s brains are still developing and their culpability is reduced. To penalize juveniles as adults would violate the fundamental principle of equality, as juveniles do not neurobiologically possess the capacity for decision making and impulse control as adults, and are therefore not on an equal footing when treated as adults.

The adversarial adult criminal justice system is very inappropriate for juveniles in conflict with law as they lack the capacity to participate in trials like adults.

98

The findings of a juvenile

competence study undertaken by the MacArthur Foundation, USA reveals that: “adolescents are more likely than young adults to make choices that reflect a propensity to comply with authority figures, such as confessing to the police rather than remaining silent or accepting a prosecutor's offer of a plea agreement. In addition, they are less likely to recognize the risks inherent in the various choices they face or to consider the long-term, and not merely the immediate, consequences of their legal decisions.99” Transfer of some juveniles to the adult system will severely undermine procedural fairness and offend their constitutional right to life and personal liberty. A study in the US revealed that, “compared to those held in juvenile detention centers,

97

Elizabeth S. Scott and Laurence Steinberg, “Adolescent Development and the Regulation of Youth Crime”, The Future of Children, VOL. 18 NO. 2, FALL 2008, p.15 at 24-25 98 Prosecuting Juveniles in Adult Court An Assessment of Trends and Consequences Malcolm C. Young and Jenni Gainsborough, p.7, http://www.prisonpolicy.org/scans/sp/juvenile.pdf last accessed on 4/02/2015 99 Mac Arthur Foundation Research Network on Adolescent Development & Juvenile Justice, “MacArthur Juvenile Competence Study Results”, http://www.adjj.org/content/related_resources.php?cat_id=2&page_id=2 This study was conducted between mid-2001 and March 2002 where 1412 subjects ranging from the age of 11 years to 24 years were considered as sample space.

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youth held in adult jails are: 7.7 times more likely to commit suicide, 5 times more likely to be sexually assaulted, twice as likely to be beaten by staff, 50% more likely to be attacked with a weapon”100 The constitutional obligation of protection of all children from abuse and exploitation will also be frustrated if our country replicates the failed US model.

3.3 The proposed provisions in impugned amendment violate the rights and fundamental principles enshrined in the act itself The objective of the impugned amendment in regard with the existing act is to cater to the “developmental needs” of children in conflict with law through “proper care, protection and treatment” and by “adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their ultimate rehabilitation”. Creating a subclass within class itself as if age group of child between 16-18 years committing heinous crime will treat as par with adult offender, the said is definitely not in the best interest of a juvenile and nor is it child-friendly. Worse, it will result in the denial of treatment and developmentally appropriate care and protection and actually propel their ultimate banishment from the community. Transfer of juveniles to the adult system will also deprive them of the right to privacy as well as the right to bail and offend the principles of presumption of innocence, fresh start, dignity and worth, safety, positive measures, non-waiver of rights, non-stigmatizing semantics, equality and non-discrimination, and institutionalization as a measure of last resort, all of which are “fundamental” to the understanding, interpretation, implementation, and application of the said amendment. 3.4 The transfer system has failed to prevent recidivism or promote public safety The transfer system in impugned amendment has been in existence in the US for over two decades. Multiple studies in the US conclude that it has in fact been ineffective in addressing juvenile crime rate, public safety, and recidivism. The independent Task Force on Community Preventive Services set up by the US Centre for Disease Control reviewed published scientific evidence on the effectiveness of waiver laws to ascertain whether this prevented or reduced violence among those transferred, and among juveniles on the whole. 100

Prosecuting Juveniles in Adult Court An Assessment of Trends and Consequences Malcolm C. Young and Jenni Gainsborough, p. 6, http://www.prisonpolicy.org/scans/sp/juvenile.pdf last accessed on 8/02/2015

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Based on a review of nine studies on the specific and general deterrence effect of transfer laws, the Task Force concluded that: “….transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system. To the extent that transfer policies are implemented to reduce violent or other criminal behavior, available evidence indicates that they do more harm than good.”101 “Studies have found that young people transferred to the adult criminal justice system have approximately 34% more re-arrests for felony crimes than youth retained in the youth justice system.”102 “Around 80% of youth released from adult prisons reoffend often going on to commit more serious crimes.”103

Recent scientific findings on the maturity of the adolescent brain has led to a shift even in USA towards less punitive methods of dealing with juvenile crime – “since 2009, at least 20 states have closed or downsized youth facilities or reduced their reliance on incarceration. In many places, the money saved is being redirected to programs that supervise and treat youths in their communities. States that reduced juvenile confinement most dramatically also saw the greatest decline in juvenile arrests for violent crimes.”104 In December 2012, the Attorney General’s National Task Force on Children Exposed to Violence, December 2012 recommended that “No juvenile offender should be viewed or treated as an adult. Laws and regulations prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore and diminish their capacity to grow must be replaced or abandoned.”

101

Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services, Centre for Disease Control and Prevention, MMWR 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm 102 Raise the Age NY, ‘Get the facts’ (2013): http://raisetheageny.com/get-the-facts; Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: Report on Recommendations of the Task Force on Community Preventive Services, Centers for Disease Control and Prevention, January 30, 2015, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm 103 Raise the Age NY, ‘Get the facts’ (2013): http://raisetheageny.com/get-the-facts, National Campaign to Reform State Juvenile Justice Systems. The Fourth Wave: Juvenile Justice Reforms for the Twenty-First Century; p. 20. http://www.publicinterestprojects.org/wp-content/uploads/2012/11/JJ-Whitepaper- Design-Full-Final.pdf. 104 Giudi Weiss, The Fourth Wave – Juvenile Justice Reforms for the Twenty-First Century, Winter 2013, p.4, Commissioned by the National Campaign to Reform State Juvenile Justice Systems for the Juvenile Justice Funders’ Collaborative. Available at: http://raisetheageny.com/wp-content/uploads/2011/08/The-Fourth-Wave.pdf

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Evidence on the failure of the transfer system is compelling and there is no reason why Hindustan should replicate a failed system that has been more deleterious than progressive. In Hindustan, juveniles in conflict with law alleged to have commit ‘serious’ offences constitute a miniscule105 but very vulnerable population that requires to be handled with much more specialized care and caution so as to prevent recidivism, and in order to engineer reform and reintegration. The impugned amendment represents a failed western experiment of retributive justice. “We need to modernize, not westernize.” Our current model of juvenile justice has failed us because it does not go the distance in healing broken spirits. The victim has little or no say in the adult criminal justice system and the proposed provisions do not advance their interests. . The JJ system has the potential to provide an enabling framework to promote healing for the victim and the juvenile through restorative justice programs. Restorative justice processes have been in vogue in New Zealand, Australia, South Africa, Canada, USA, and several European countries. Experts who have studied various models of restorative justice have recommended that it be adopted to address “the more serious offences. It is here that the impact of the offending on victims is greatest and that victims are most in need of closure...” and consider it “most appropriate for repeat offenders.”106 Evidence shows that “programs offering counseling and treatment typically reduce recidivism, while those focused on coercion and control tend to produce negative or null effects. Programs tend to succeed when they address specific risk factors known to influence delinquent and criminal behavior. These risk factors include anger and anti-social feelings, lack of self-control, lack of affection or weak supervision from parents, lack of role models, and poor academic skills.”107 The most important conclusion of the Pathways to Desistance Study was that “ even adolescents who have committed serious offenses are not necessarily on track for adult criminal careers.” Our clinical experience also endorses this. We therefore believe that 105

National Crime Records Bureau, Crime in India, 2013, Chapter 10. Allison Morris & Gabrielle Maxwell, “Implementing Restorative Justice: What Works?” in MORRIS & MAXWELL, ED., RESTORATIVE JUSTICE FOR JUVENILES CONFERENCING, MEDIATION AND CIRCLES, 2001, p.268. 107 Richard A. Mendel, “No Place for Kids: The Case for Reducing Juvenile Incarceration”, Annie E. Casey Foundation, 2011, p.16, available http://www.aecf.org/OurWork/JuvenileJustice/~/media/Pubs/Topics/Juvenile%20Justice/Detention%20Reform/NoP laceForKids/JJ_NoPlaceForKids_Full.pdf.last accessed on 08/02/2015 106

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offending behavior in juveniles cannot be attributed to ‘unchanging personality traits’ so as to justify certain juveniles as being incapable of reform. 4. WHETHER THE IMPUGNED AMENDMENT DEHUMANIZES THE CRIMINAL ADMINISTRATION OF JUSTICE AS CONTENDED BY THE PETITIONER? “The State cannot take away childhood, before it creates a protective environment for its children.” “Responsibility” is not a negative concept and it has to be investigated and acknowledged. Petitioner believes that the concepts of ‘responsibility’ and of ‘criminalization’ need to be separated. The Convention on the Rights of the Child (CRC) proposes a separate, distinct system of juvenile justice; it requires that this must be focused on respect for all the rights of the child and on the aims of rehabilitation and reintegration. This focus and these aims are not compatible with ‘criminalizing’ child offenders. We do believe that children should be held ‘responsible’ for their actions in line with the concept of evolving capacities and our strong advocacy for respect for children’s views in all aspects of their lives. It is essential to establish responsibility for crimes. Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the rights of the alleged offender. But this process does not have to lead to criminalizing children108. 4.1 Its not friendly to make children criminals Criminalizing children encourages them to spiral down into more and more violent offending: there is plenty of evidence of that, but it certainly needs collecting together and disseminating ever more effectively. Maintaining primarily punitive, retributive systems for children in conflict with the law prevents societies moving on; it upholds beliefs in original sin and the need to beat the devil out of children. And it reflects another primitive emotion – fear and hatred of the next generation, holding them absurdly to blame for current ills109. The basic assertion: that we must 108

Ved Kumari : Quagmire of age issues under the juvenile justice act: From inclusion to exclusion. (Journal of the Indian Law Institute, Vol. 51, No. 2, April – June 2009, p 163) 109 SARAN, KARTIKEYA: Juvenile justice : Protecting the “Child in need of care and protection”(Criminal Law Journal, Vol. 114, October 2008, p 277- 83)

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separate “responsibility” from “criminalization”, discard retribution altogether and focus exclusively on rehabilitation has attracted strong and authoritative support110.Even the petition submitted by Subramanian Swamy111 to consider the mental and intellectual maturity of juveniles rather than the age when they are involved in various heinous crime were dismissed. To understand the extent of mitigating circumstances it is mandatory that the child is evaluated from a psychosocial standpoint with an aim towards reformation and rehabilitation within the existing JJ system instead of retribution112. There are identified risk factors for development of delinquency, which are identified at individual, social and community levels. These risk factors include aggression, either modeled or inherent due to psychiatric morbidity (already established to be prevalent and not attended to in the juvenile population), poor parental supervision and parental conflict with harsh disciplining, crime ridden environments, and so on113. 4.2 Need of Patriarchy for Juveniles: Before putting in force the impugned amendment, our lawmakers must take into consideration the following prudent facts. According to the National Crime Records Bureau, in 2012114, only 1.2 per cent of all Indian Penal Code crimes were committed by juveniles. Only 4.2 per cent of all crimes committed by juveniles were rape — and only 3.5 per cent of all rapes were committed by juveniles. Despite ART. 39 of the Constitution directing that children should be given opportunities and facilities to develop in a healthy manner in conditions of freedom and dignity, and that childhood and youth be protected against exploitation, and moral and material abandonment, India’s children are subject to great violence. In a national study on child abuse in 2007115, the Ministry of Women and Child Development found that two out of every three children had been physically abused and most children did not report the matter to anyone; 53.22 per cent of children reported having faced one or more forms of sexual abuse; 50 per cent of cases of abuse are by persons known to the child or in a position of trust and responsibility. 110

REDDY, S SRINIVAS: Juvenile justice: Not a child’s play. (Andhra Law Times, Vol. 6, No. 156, 2008, p 28-32) Dr. Subramaniam Swamy and ors. v. Raju,through Member Juvenile Justice Board and Another (2014) 8 SCC 390: 2014 Indlaw SC 246 112 REDDY, S SRINIVAS: Juvenile justice: Not a child’s play. (Andhra Law Times, Vol. 6, No. 156, 2008, p 28-32) 113 PANDA, B P : Rights of child juvenile delinquency and administration of justice. (Supreme Court Journal, Vol. 1, Part 2, Feb 1996, p 31) 114 NCRB ,Report On Crime, Chapter 10,2013 115 Study on Child Abuse: INDIA 2007, Ministry of Women and Child Development 111

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4.2.1 Juvenile homes have problems: The systems to safeguard children in Hindustan are still severely lacking. It has been three years since the government enacted ICPS, which aims to set in place child protection services in every district of the country. Preliminary feedback indicates that the scheme is hugely under-resourced, and already lagging in its implementation. An example of this is the shaky condition of juvenile justice homes (funded under the ICPS) whose primary task it is to work on reforming young minds. Most juvenile homes today are fraught with problems which include poor infrastructure, unskilled personnel, and a lack of specialized professionals like psychiatrists, psychologists, therapists and counselors116 4.2.2 Impact of mitigating economic and social factors Research on risk factors for ‘delinquency’ has revealed that there are ‘buffers’ between these risk factors and the development of delinquency. These buffers act as ‘protective factors’ and include some ‘changeable’ factors like warm supportive relationships, monitoring, recognition for involvement in conventional activities, friends who engage in conventional positive behavior and so on117. It is, therefore, imperative that the State comes up with a legislative framework that includes a care plan which is in tandem with the ‘normative’ tasks of adolescent development with opportunities for self-reflection, self-development, behavior modification, healthy socialization, vocational development to name a few, while ensuring a robust intervention along with monitoring, review and subsequent care plans instead of deeming juveniles as ‘recalcitrant’ and incarcerating them into adult jails. Sending juveniles who allegedly commit ‘serious’ crime to jail is not in the interest of children, families or the wider community as a whole. Such a policy change will result in higher costs related to incarceration, and deferred costs that will incur as an outcome from the rage and bitterness that comes from life in the adult criminal justice system118. The State needs to first 116

CHOUDHARY, D P : Promoting co-ordination within the implementation of juvenile justice act: Problems and remedies. (Criminal Law Journal, Vol. 110, Part 1256, August 2004, p J225) (SCJL) 117 BURROW, John: Reverse waiver and the effects of legal, statutory and secondary legal factors on sentencing outcomes for juvenile offenders. (Crime & Delinquency, Vol. 54, No. 1, Jan 2008, p 34) (NHRC) 118 Peter Newell, Global Initiative to End All Corporal Punishment of Children, A panel discussion organized by the Child Rights International Network at the World Congress on Juvenile Justice, Geneva, January 28,2015

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own its responsibility for the failure of the JJ system, particularly absence of

functional

assessment, probation and counseling services for juveniles, and the lack of anything special or scientific about the ‘Special Homes’ mandated to provide special correctional services in order to achieve the rehabilitative goals of the law, and prevent recidivism.

The JJ Bill needs to make it mandatory for states to develop and implement empirically validated correctional programmes designed to effectively address the developmental needs of children in conflict with law - programmes that consistently demonstrate the fact that even children who commit ‘serious’ crime can be reformed. Customized, scientifically designed developmental, therapeutic, skill-building and employment oriented educational programs, life skills focused, restorative justice approaches (not merely restricted to compensation and reparation to victims), community service, and effective mentoring and probation services are more effective in promoting accountability and reducing recidivism. Thus, the progressive features of the JJ system should therefore not be replaced by regressive positions adopted in the West, particularly given the absence of empirical evidence to prove that such a policy change is warranted or that it will even work. We also strongly urge the government to embrace restorative justice, strengthen the existing system and invest in correctional programs that have demonstrated effectiveness.

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~MEMORIAL for the PETITIONER~

SUBMISSION TO THE HON’BLE COURT Wherefore in the light of arguments advanced and authorities cited, the Petitioner humbly submits that the Hon’ble Court may be pleased to adjudge and declare that: TO HOLD

1. That the petition is maintainable. 2. That the said amendment in JJ (Care and Protection) Act, 2000 is impugned

and unconstitutional as it violates the very spirit of international covenants, Constitutional ideals and other established precedents . MISCELLANEOUS 1. Any other order as it deems fit in the interest of justice, equity and good

conscience .

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/(Counsel for the petitioner)

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