Central India Law Quarterly: Juvenile Justice System in India

12/20/13
Juvenile Justice System In India
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AdidasAdidas ShoesShop Now!Rs. 1,999 Juvenile Justice System In India JUVENILE JUSTICE SYSTEM IN INDIA SHRlNlWAS GUPTA * At Madurai, recently, a 15-year-old boy, suspect in a theft case, was produced before a judicial magistrate as an 18-year-old and remanded to custody in violation of the Juvenile Juslice Act, 1986. The Madras High Court on April 10, 1991 directed the TN Government to pay rupees 25,000 as compensation to the boy, Murugan, who was before the remand, detained for nearly a month in a police station and according to the boy's testimony, tortured, made to consume arrack, ganja and human waste diluted in water. Is it not a shameful and shocking instance of unwanted treatment by the police to the juvenile delinquents ? It is in this reference that a detailed study of the problem of juvenile delinquency and the juvenile justice system in our country follows. 2. The juvende delinquency has been existing in all times the world over. Six thousand years ago an Egyptian priest is known to have felt sad the latter day generation of the world, as evidenced by children no longer obeying their parents. Socrates was also critical of the young people of his age who were bad mannered, disrespected elders and contempted for authority. About one and half century ago juvenile delinquents were known as 'Naughty boys'. They were abandoned in the dense forests for even small offences and the girls were made over to the custody of prostitutes. The child convicts were flogged and branded or condemned to the dark cells. In the words of a jailor, 'these boys grow adult criminals and in turn breed juvenile offenders'. A Lahore Court had also passed death sentence on two teenagers. DEFINITION: 3. The Second United Nations Congress, on the Prevention of Crime
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and Treatment of Offenders held in London in August 1950 defined the term 'juvenile delinquency' as all violations of criminal law and maladjusted behaviours of minors which society disapproved. According to Robinson, 'Delinquency is simply the first step on the road to adult crime or it is a gateway to adult criminality. It concerns us because it is a 'sign post of danger'. Whereas Dr. Cyril Burt says that the juvenile delinquency occurs in a child or young person, when her/his anti-social tendencies appear so grave that he or she become or ought to become the subject of official action. The delinquency includes not only those acts which would be crime if committed by an adult but also a range of offences such as truancy, vagrancy, uncontrollibality, drinking or driving * \ Lecturer, Dayanand College of Law, Kanpur (U.P.) 490 CENTRAL INDIA LAW QUARYERLY
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under age etc. (Phillipson 1971). The National Advisory Commission on criminal Justice Standards and Goals (1973) gave top priority to the prevention of juvenile delinquency while setting a strategy to reduce serious crimes because half of the violent crimes of USA in 1971 was found to be the work of juveniles. Veeder pleads that juvenile deliquency is not a disease but it is a term which refers to a social and anti-social behaviour and denotes a child who has been officially adjudicated as delinquent by a court.' statistical Panorama: 4. What we find today is a great change in the qualitative and quantitative dimensions of the problem. The qualitative change is reflected in violent trends, absence of a striving for excellence and concern for the social welfare. Whereas the quantitative change is reflected in the rapidly increasing number of cases of such delinquency. Th~s increase has no proportion with increase in population. The problem of juvenile delinquency in lndia was till recently confined to big cities only but now it has spread and menacing that whole country. According to the National Institute of Social Defence, one out of every five persons imprisoned is below 21 years Crimes Committed by the juveniles rose almost three times during the 1956-69 period and four times thereafter. 5. It is a matter of satisfaction that the problem of juvenile delinquency in lndia as compared to other States the world over specially developed countries of Europe and America is much less. In lndia the juvenile offences found only 4.4 per cent of the total crimes under Penal
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Code in 1982 and its volume was only 8.4 per lac population but due to . various contributory factors the extent of the juvenile offences is on the constant increase which is manifested from the fact that the total number of arrests of juveniles in 1972 was 1,28,181 which became 1,68,337 in 1982. Thus showing an increase of 31.3 per cent in 1982 over 1972. The juvenile crimes by the girls are very much less in number than those committed by the boys as it formed only 6.3 per cenr of the total juvenile crimes committed under IPC and other local. and special laws. Another important fact that has come to light is that the number of juvenile offences committed by the girls is rapidly increasing than those committed by the boys. The percentage increase among girls was 47.7 per cent in 1982 over 1972 against an increase of 30 4 per cent for boys.
1. Veeder C.B., Juvenile offenders, p.10. 1 91 .91 6. JCWENILE JUSTICE SYSTEM IN INDIA 491
Most of the juveniles who have been arrested [ t i the last years
belonged to age group of 16-21years. In 1982 those belonging to this age group were 86 per cent while in 1976 this was 67.3per cent. If we make an analysis of the total number of juveniles and youthful offenders which was 1,68,337 1967 we find that 1,57,664 in were boys and 10,673girls. Those apprehended under IPC were 77, 127 as against 91,210 apprehended under local and special laws. 7,288boys and 984 girls were from 7 to 12 years of age; 14,134boys and 1,084girls were from 12 to 16 years of age; 23,887boys a?d 1,731girls were from 16 to 18 years of age and 1,12,355boys and 6,874girls belonged to age group of 18 to 21 years. It is to be noted that out of 77,127juvenile and yo~rthfuloffenders both girls and boys arrested for offences under IPC in 1982,1,721 were arrested for committing the offence of murder, 511 for rape, 751 for abduction and kidnapping, 1 ,I 57 for dacoity, 1,250for robbery, 7,344for burglary, 16,582 thefts, 17,441for riots, 234 for criminal breach of trust, for 365 for cheating ana 02 for counterfeiting. 7. Further the rate of juvenile crimes in urban areas 1 much higher s than in the rural areas which is revealed in noting that a large section of
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the juvenile crimes occurs in the States of Maharashtra, Madhya Pradesh, Gujarat, Assam where 32.5per cent, 16.6per cent, 12.9w r cent and 7.3 per cent respectively of the total juvenile crimes were cor~imittedin 1982. This statistics leads us to the fact that more than 20 per cent of the total juvenile crimcs committed in India in 1982 were commtted in 14 cities and metropolitan town in the country. There has been an increase in the number of children who ran away from their homes in Delh: during the last three years, as informed by Ram Vilas Paswan, then Min~ster Labour for and Welfare, in Rajya Sabha on August 24, 1990. Whde 1759 children including 426 girls ran away from homes in 1989-90, the number of children was 1666 ~ncluding345 girls in 1988-89as disclosed by Kapil Verma, in a written reply. He said 1604 children includ~rig290 girls ran away in 1987-88.Poverty, neglet, destitution, deprivation et cetra were among the main reasons for children to run away from homes, he said. Responsible Factors: 8. According to Dr. Rajesh Parikh, a psychiatrist at Jaslok Hospital and at the Student Counselling Centre at St. Xavier's Coilege Bombay, economic security does not necessarily guarantee emotional security and parents often end up ,meeting a child's wants but not needs and that the parents may be present in the home but not available to tile children. On the other hand, in a broken home, a woman as a single parent may be as effective as both parents. What matters is how much the parent cares. The same may be true of the working mothers as against non-working 492 CENTRAL INDIA LAW QUARYERLY [Vol. 4:4 mothers. Ms. Shehaz Elavia, Director of above referred Xavier Centre says, 'Sometimes parents may be available to the children- but only to impart knowledge rather than give the child of themselves, their values and their beliefs'. While Dr. Sailesh Kapadia, a psycho analyst, emphasises the importance of the relationship between the parents. Where a good relationship exists between the parents, the child can ride out the stress of adolescence. There is nothing like the emotional security of a stable home. Another criminologist MS Pawar, lecturer in the criminology department of Tata lnstitute of Social Studies said, 'If the family as controlling factor is lacking, children are more likely to violate society's norms'. 9. According to Mrs Sanober Shekhar, reader in the department of criminology and correctional administration, Tata Institute of Social Studies at Bombay, adults are just not fulfilling the mediatory role between
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childhood and adulthood that they are supposed to pay. 'Schools have become so commercialised that the perspective has changed from personality development to academic performance Those who do not perform or cheat become social rejects. Parents on their part, are too busy in making money or socialising. The children find their own emotional comforts among gangs of delinquent', says Dr. Pritam Phatnani, a forensic expert at Bombay. 10. Clyde B Veeder says that the 'delinguency is attributed to bad companions, adolescent instability, mental conflicts, extreme social suggestability, early sex experience, love of adventure, obscenity and violence in pictures, school problems, poor recreations, excessive street life, vocational dissatisfaction, poor physical structure, sudden impulses, bad habits, obsessive education, ill health or pre-mature puberty'.2 'Democratisation, too much of it, in fact, within too short a span of time has had the effect of inducing an exaggerated consciousness of the rights of citizens, without a corresponding awareness of citizenship duties. Secularisation has had the unintended effect of pushing ethical and moral values to the backseat. Influence of mass media has also had a marked effect on juvenile delinquency trends for increase The net result is widespread prevalence of permissiveness', says Prof S.M. Diaz. Who Is A Juvenile ? 11. A young person ranging somewhere from 7 to 17 years of age is said to be a juvenile but law in this regard is not very much strict and so 2, lbid 1 9911
JUVENILE JUSTICE SYSTEM IN INDIA
493
covers the marginal group 18 to 21 years. The word 'dehnquency' means all acts that would be crimes if committed by an adult The stage at which a person is considered a juvenile delinquent is controversial. Dr. Cyril Burt says that a young person is considered a delinquent when his anti social tendencies appear so grave that he becomes or ought to become the subject of official action'. Section 2 (e) of the Juvenile Justice Act, 1986 defines 'delinquent juvenile' as a juvenile who has been found to have committed an offence. The word 'offence' under Section 2 (n) means an offence punishable under any law for the time being in force. Section 40 of Penal Code, 1860 defines the word 'offence' as 'Except in the Chapters and Sections ment~oned Clauses (2) and (3) of this Section, the word in 'offence' denotes a thing made punishable by this Code'. Whereas
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according to Sect~on2 (b) of the Juvenile Justice Act 1986, the word 'juvenile' means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen year Juvenile Justice System: 12. The justice system as available for the adults was not considered suitable for being applied to juveniles. Besides, a uniform juvenile justice system was felt a necessity which should be available throughout the country and make adequate provisions for dealing with all aspects in the changing social, cultural and economic situations in the country. Need was also felt for larger involvement of informal systems and community based welfare agencies in the care, protection, development, treatment and rehabilitation of iuveniles. Keeping these objects and reasons in view the juvenile justice Act, 1986 has been enacted by the parliament which provides for laying down a uniform legal frame work for juvenile justice in the country so as to ensure that no child under any circumstances is lodged in jail or police lock- up. For this purpose provisions have been made for establishing juvenile Welfare Boards and juvenile courts. 13. The Act also provides for a specialised approach towards the prevention and treatment of juvenile delinquency in its full range in keeping with the developmental needs of the child found in any situation of social maladjustment and then to spell out the machinery and . infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the purview of the juvenile justice system. Provisions have been made to achieve this of establishing homes, juvenile homes for neglected juveniles and special homes for delinquent juveniles. A provision has also been made to establish norms and standards for the administration of juvenile 494 CENTRAL INDIA LAW QUARYERiY [Vol. 4:4 justice in terms of investigation and prosecution adjudication and disposition and care treatment and rehabilitation. 14. Further the Act also provides to develop ap~ropriate linkage and co-ordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected or socially maladjusted children and to specifically define the areas of their responsibilities and roles. The law under this Act further provides for constituting special offences in relat~on juvenile and for punishments therefore. Under this to Act an attempt has been made to bring the operation of the juvenile justice system i r i the country in conformity with the United Nations
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Standard Minimuin Rules for the Administration of juvenile justice adopted by the Seventh United Nations Congress on the Pre~ention Crimes and of Treatment of Offwders which was held in 1985 The Children Act, 1960 and other State enactments on the subject have been repealed with this law coming into force in various parts of the country Important Provisions of the Law: 15. The law under the Juvenile Justice Act, 1986 which has come into force on October 2, 1987 has superseded 25 dtterent Children Acts in different State and Union Territories alongwith Central Children Act, 1960 An important feature of the new law is that delinquent juveniles can under no circumstances be lodged in jails with other prisoners. The errant children have now to be kept in Children Homes or Observation Homes. Further the neglected and delinquent children are kept separately and the children instead of being given deterrent punishment are now provided a suitable environment to correct themselves and develop their personalities on the right lines. The Act provides a differential approach in dealing with the 'neglected juvenile' as opposed to the 'delinquent juvenile. The 'neglected juveniles' include juveniles who are likely to be abused, exploited and inducted into criminogenic life and are in need of legal support to be weared away from such situations. Whereas the delinquent juven~lesare to be dealt with by Juvenile Courts, the neglected juveniles are to be produced before the juvenile welfare board. The special homes are required t o b e set up to offer facilities for accommodation maintenance, and rehabilitation as well as for character building and reformative training. The Act also provides for the creation of a fund to be exclusively utilised for the welfare arid rehabilitation of juveniles and requires the State governments to constitute advisory boards to advise on matters relating to establishment and maintenance of homes, mobilisatlon of resources, provision of facd~tiesfor education, training and rehabilitation of neglected and delinquent juveniles. 1 9911 JUVENILE JUSTICE SYSTEM IN INDIA 495
Juvenile Delinquency And Police : 16. As a complex social problem the juvenile delinquency is emerging a major issue in all developing and the developed countries of the world. The juvenile delinquency is unlawful behaviour of youth under a specific age which is usually 18 years as described in State Statutes establishing the jurisdiction of the juvenile courts. The unlawful behaviour represents violation of State law or municipal ordinance or conduct so
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seriously antisocial as to interfere with rights of others as to menace the welfare of the delinquent himself or of the community. Mrs katherine B Gettinger, Chief of the Children's Bureau in the US said that it appeared that delinquency could not be proved as resulting from poverty, poor house, or even lack of recreational facilities. Delinquency IS more likely to increase in a time of prosperity than in a time of depression, added she. 17. The police role with juveniles can be divided into two stages the control and prevention According to RS Tripathi, a senior police officer at Kanpur, the work done by the police in combating juvenile delinguency in India is far from bemg adequate. It is only in metrop~l~tan cities that foundation of police work with juveniles have been laid Most of other States are content with organising police boys clubs and the like. In Bombay, a Juvenile Act Police unit was set up in 1952 which dealt with cases of pre- delinquents, delinquents, socially handicapped juveniles and victimised children. While interrogating the juvenile offender the police must adopt a helpful and humanitarian attitude of sympathy and understanding rather than one of confrontation. A fatherly and friendly tone should be used to create self confidence in them. Judicial Attitude on Juveniles Prisoners : 18. Justice PN Bhagwati and Justice RS Pathak highlighted the miserable plight of juvenile prisoners in the case of Munna versus State of UP as under, namely : Juvenile delinquency is, by and large, a product of social and economic maladjustment. Even if it is found that these juveniles have committed any offences, they cannot be allowed to be maltreated. They do not shed their fundamental rights when they enter the jail Moreover, the object of the punishment being reformation, we fail to see what social objective can be gained by sending to jails where they could come into contact with hard CENTRAL INDIA LAW QUARYERLY [Vol. 4:4 criminals and lose whatever sensitivity they may have to finer and nobler sentiments.
19. Further the Supreme Court condemned and discouraged the detention of children below 16 years in jails in a very important decision in the case of Sheela Barse Versus Union of India when it observed : It is a matter of regret that despite statutory provisions and frequent exhortations by social scientists. there are still a large number of children in different jails in the country-it is the atmosphere of the jail which has a highly injurious effect on the mind of the child estranging him from the society and breeding in
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him aversion bordering on hatred against a system which kept him in jail .....On no account should the children be kept in jail and if a State Government has not got sufficient accommodation in its remand homes, the children should be released on bail instead of being subjected to incarceration in jail. 20. Then in Sanjai Suri versus Dalhi Administration, Delhi the Supreme Court laid down some directions as follows : We d~rect that due care shall be taken to ensure that the juvenile delinquents are not assigned work in the same area where regular prisoners are made to work. Care should be taken to ensure that there is no scope for their meeting and havmg contacts. We direct that steps should be taken to shift the warders at the end of every three years.....such transfer will instead be helpful in resorting discipline in the jail. The visitors' Board should consist of cross sections of society, people with good background, social activists, people having contacts with the news media, lady social workers, jurists, retired public officers from the judiciary as also the executive. The session judge should be given an acknowledged position as a visitor and his visits should not be routine ones. Full care should be taken by him to have a real picture of the defects in the administration qua the resident prisoners and under trials. Over crowding in jails is a regular feature. As against a sanctioned capacity of 2023 on the average 4,000 prisoners are 4. AIR 1986 SC 177 5. AIR 1988 SC 414 1 9911 JUVENILE JUSTICE SYSTEM IN INDIA 497
lodged in the Tihar Jail. We hope and trust that this aspect will be kept in view, though from a practical point over crowding may to a reasonable extent have to be tolerated. The court in the same case observed, 'Whatever may have been the philosophy of punishment in the past, the prison house is looked upon as a reformatory and the years spent in jail, should be with a view to providing rehabilitation to the prisoners after the sentence is over. That would not be possible overnight, and therefore, cannot be deferred to materialise on the date of release....The prison house, in case the true purpose is t o be achieved, has to provide the proper atmosphere, leadership, environment, situations and cireumstances for the
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regeneration'. 21. In the case of Kakoo versus State of AP a boy of only 13 years of age had committed rape on a small child of two years. He was convicted and was sentenced to four years rigorous imprisonment. When the case reached the Supreme Court it adopted humanitarian approach and reduced the sentence to only one year rigorous imprisonment and a fine of rupees two thousend, in default of the fine, six months further rigorous imprisonment. In this case Justice Sarkaria observed that an inordinate long imprisonment term is sure to turn a juvenile delinquent into abdurate criminal and laid an emphasis that in case of child offenders, current penological trends command a more humanitarian approach. Similarly in Hiralal Malik versus State of 6ihar7 in relation to the sentencing policy towards the juvenile delinquents Justice Krishna lyer observed that the family tie of the juvenile in jail must be kept alive and with this idea in view he referred to the need for parol in such cases. He directed that the appellant who was quite a young boy when the offence was committed, shall not be forced to wear convict costume provided his guardians supply-him normal dress. Then the learned justice in Phul Singh versus State of ~ a r ~ a n a ' that sentencing efficacy in held cases of lust breeded criminality cannot be simplistically assumed by award of long incarceration, for often that remedy aggravates the malady..... one major rnethod in securing this goal is to keep the family tie of the person in prison so that he may not deteriorate into a non-person.
6. AIR 1976 SC 1991 7. AIR 1977 SC 276 8. AIR 1980 SC 249 498 CENTRAL INDIA LAW QUARYERLY
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22. Relat~ngto juvenile justice system and various duties of the government tile apex court in the case of Sheele Barse versus Union of lndia obsewmg that 'a child is a national asset' held that it was a duty upon the Stare to look after the child with a blew to ensuring full development of ~ t s personality and that every State government must take necessary steps so as to setting up adequate number of courts, appointing requisite number of judges and provid~ng them for necessary
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facilities. It was also stressed by the Court that the State government must set up necessary remand homes and observation homes where children accused of an offence may be lodged pending investigation and trials. It is no answer on the part of the State to say that it has not got enough number of Raemand Homes or observation homes or other places where children can b@kept and that is why they are lodged in jails. 23. As regards the duties of a Magistrate or Judge before whom the trial of juvenile delinquent is being held, the Supreme Court in the same case observed that in deciding whether the juvenile has to be deprived of liberty or released in the parental custody or to a third party and what conditions shouid apply the judge must follow due process followed by the legal pres~~mption favouring release. Accord~rigto the court, we should abandon the notion that to secure detention IS good for the child and so legaliiy of preventive detention in juvenile courts needs to be tested. Another point emphasised by the court was that the Magistrates must be extremely careful to see that no person apparently under the age of 16 years is sent to jail but he must be detained in a children's home or other place of safety. 24. The s3Dreme Court, represented by Justxe Mishra, Justice Punchhi and Justice Agrawal, in the case of Laxmi Kant Pandey versus Union of lndia passed a far-reaching order on July 12,1990. The court in the order said, 'the reference made in the main judgment to the Children's Act in regard to production of neglec?ed juveniles and the procedure adopted to be followed in regard to suitable custody now vest in the Board. The main judgment shall, therefore, be deemed to have been modified by operation of the law and reference made to juvenile courts for such purposes shall be taken to be the Board under Juvenile Justice Act, 1986. We would like to clarify the position that as a result of the change in the law juvenile courts under the Children's Act would no 9. Supra note 4 1 9911 JUVENILE JUSTICE SYSTEM IN INDIA longer deal with these matters and the Board constihted under the juvenile Justice Act . shall be approriate authority for such purposes'. This order has gsven due recognition to the new Juvenile Justice system by modifying the judgment t o the effect that boards, instead of juvenile courts under the old Act would hanceforth deal with the cases of neglected juveniles. Indeed this order is a good example of wiseful judicial activism in the sense that it has executed the new
499
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philosophy of juvenile Justice. Demerits : 25. According to the provision of Section 21 (1) (e) vthere a juvenile court is satisfied on mquiry that a juvenile has committed an offence then notwithstanding anything to the contrary contained in arly other law for the time being inforrie, the juvenile court may, if it so thlrlks fit, order the juvenile to pay a fiw: if he is over fourteen years of age ar3dearn money This provision is l i i contradiction of the objective of the Act, since imposition of fine 1 no treatment. This would in no hay correct the s juvenile instead i n d x e himlher to commit more crimes so as to make up the loss. 26. A serious flaw comes to surface when under Stct~on 15 and 11, 21 any competent dgency raids on immoral dens but fdlis to challenge one violating the statute under the Act the juvenile justiw boards, courts, Probation Officers and also police are governed b} d~fferentoffic~al agencies with separate rules of service which are found contradictory to each other many a tmes There is, of course, no coordl~:--ltion among all these agencies m13rking for a common goal Cotistitution of an independent adminz%trative up for the whole and inteqrated operation set under the Act may nere be suggested. 27. Regarding trie role of police it is submitted that that has not been specially highlighted i~nder Act, we do not find any provision requiring the for the recruitment ~i people to be called as 'juvenile police' which can the be trained specially t c v dealing with juveniles The role cl voluntary social welfare organisatlons is also not given due corlstderation. The government must a l w organise suitable orientation traimng programmes to make the related officers aware of the intent and pro tiions of this law.
Conclusion and Suggestions : 28. The rising number of juvenile delinquency conf!inis the fact that the problem is more social and economic rather that> legal. So the CENTRAL INDIA LAW QUARYERLY
problem needs to be viewed in a larger perspective and something such

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must be done as to correct conditions of childhood and families. Law alone can not be supposed to eradicate the problem The legislation shall only strengthen the judiciary but cannot bring change in the sociarand economic fronts Besides, there is an urgent need to amend the present laws governing the administration of juvenile justice Orientation training should be imparted t o those associated with implementation of various statutory provisions. Adequate infra-structure for achieving the goal of rehabilitation of delinquent and neglected ch~ldrenis necessary. Community education for rehabilitation and acceptance of the rehabilitated is also very important necessity. Above all determined political will and people's participation are must to cope up the problem of juvenile delinquency. It is a matter of regret that our politicians do not seem very much interested in the cause of children and their problems as they are not the voters. It is a bitter truth that in our country most of the welfare plannings and schemes revolve around the 'vote catching' and 'vote securing' so children are mostly a neglected lot. The problem of juvenile delinquency is inversely proportional to the health and progress of the society in which they live. It must always be kept in mind by all concerned
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12/20/13

Juvenile Justice System In India

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