A

Dissertation Report on

The Juvenile Justice Act-2000 and The Juvenile Justice

(Care and Protection of Children) Act-2015
with reference to the Age of Criminality

Submitted to in the Partial Fulfillment of the requirements

for the award of Degree of the LL.M (IInd Year)

Supervisor : Submitted by:

Mr. Karun Kumar Kaushik Jully
Professor Roll No.: MUR1501450

MEWAR UNIVERSITY GANGRAR

CHITTORGARH
 CERTIFICATE

This is to certify that dissertation entitled The Juvenile Justice Act-2000 and The Juvenile

Justice (Care and Protection of Children) Act-2015 with reference to the Age of

Criminality Submitted to Mewar University in partial fulfillment of the degree of LL.M is

record of bonafide research carried out by Jully, Roll No. MUR1501450 under my

supervision and guidance.

The assistance and help received during the dissertation work and sources of literature have
been duly acknowledged to the best of my knowledge and belief. The study is based on the
research done by him.

I wish him all success in life.

Place:
Date:

Mr. Karun Kumar Kaushik

Professor

2
 DECLERATION

I, Jully, Roll No. MUR1501450 do hereby declare that the dissertation titled The
Juvenile Justice Act-2000 and The Juvenile Justice (Care and Protection of Children)
Act-2015 with reference to the Age of Criminality submitted by me in partial fulfillment
of the requirements for the award of degree LL.M to Mewar University, New Delhi is my
own work and the matter embodied in this dissertation has not been submitted earlier for
award of any degree or diploma.

Dated Jully

3
 ACKNOWLEDGMENT

I would like to give my sincere thanks to Prof. Karun Kumar Kaushik, for support and
guidance throughout, and his faith in me. I treat it as my cherished privilege to thanks him
who despite his hectic academic schedule spared his precious time to supervise this work and
made valuable suggestions which undoubtedly improve the quality of this paper.

I feel immensely pleasure to record my sincere gratitude to all my esteemed teachers

for their precious guidance and selection during my entire LL.M studies.

I am immensely grateful to our librarian of Mewar University and the library staff of Central
library, for providing me necessary reading and reference materials.

I am also indebted to my father who is source of inspiration and encouragement to me all the
time. I thanks to all my friends from the bottom of my heart for their timely help and support.

Jully

4
 Content
CHAPTER 1: INTRODUCTION
1. INTRODUCTION
2. WHAT IS JUVENILE DELINQUENCY
3. CLASSIFICATION OF JUVENILE DELINQUENCY
4. WHO IS JUVENILE?
4.1 Juvenile in need of care and protection
4.2 Juvenile in conflict with law
5. STATMENT OF PROBLEM
6. REVIEW OF LITERATURE
7. OBJECTIVES OF THE STUDY
8. HYPOTHESIS
9. METHODOLOGY
10. SCHEME OF CHAPTERIZATION
CHAPTER 2:- HISTORICAL BACKGROUND: INTERNATIONAL AND
INDIAN
1. INTRODUCTION
2. INTERNATIONAL PERSPECTIVE
2.1 The Third International Congress For The Welfare And Protection Of Children
(1902 )
2.2 The Convention of League of The Nation
2.3 Human Rights of Child under Geneva Declaration
2.4 U N Declaration of Human Rights
2.5 International Convention on Civil and Political Right
2.6 International Convention on Economics Social and Cultural Rights
2.7 The United Nations Standard Minimum Rules for The Administration of
Juvenile Justice, “The Beijing Rules
2.8 The U N Convention on Protection of Children Rights
2.9 The U N Rules For The Protection of The Juveniles Deprived of There Liberty
2.10 The U N Guidelines For Prevention of Juvenile Delinquency, Riyadh
Guideline
3. ORIGIN OF JUVENILE JUSTICE IN INDIA
3.1 Early Forms of Juvenile Justice

5
 4. DEVELOPMENT OF JUVENILE JUSTICE SYSTEM IN INDIA
4.1 Prior to 1773
4.2 1773-1850
4.3 1850-1918
4.4 1919-1950
4.5 Post-1950
5. NEED FOR THE AMENDMENT OF THE JJ ACT 2000

6. VARIOUS PLANS, POLICIES AND WELFARE BOARDS

6.1 National Policy for Children
6.2 Establishment of Central Social Welfare Board
CHAPTER 3 .JUVENILE JUSTICE ACT 2000: AN APPRAISAL
1. INTRODUCTION
2. DEVELOPMENT OF THE JUVENILE JUSTICE (CARE AND PROTECTION
OF CHILDREN) ACT, 2000
3. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN)
ACT, 2000: BASIC FEATURE
4. CRITICAL APPRAISAL OF JUVENILE JUSTICE ACT, 2000
5. INSTITUTIONAL ARRANGEMENT
5.1 First category institutions
5.1.1 Juvenile justice board
5.1.2 Child welfare committee
5.1.3 Advisory board
5.1.4 Special police units
5.2 Second category institutions
5.2.1 Observation homes
5.2.2 Special homes
5.2.3 Shelter homes
5.2.4 Children homes
6. OTHER PROVISIONS OF JUVENILE JUSTICE (CARE AND PROTECTION
OF CHILDREN) ACT 2000
CHAPTER 4: COMPARATIVE ANALYSIS OF JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN)ACT 2000 WITH JUVENILE JUSTICE(CARE AND
PROTECTION OF CHILDREN)ACT 2015

6
 1. INTRODUCTION
2. PROVISIONS RELATED TO JUVENILE UNDER VARIOUS ACTS
2.1 Constitution of India
2.1 Indian penal code, 1860
2.3 Criminal procedure code, 1973
2.4 Children Act, 1960
2.5 Protection of Children from Sexual Harassment Act , 2013
2.6 Juvenile Justice Act, 1986
2.7 Juvenile Justice (care and protection of children) Act, 2000
2.8 Juvenile Justice (care and protection of children) Act, 2015
3. DELHI GANG RAPE CASE
4. COMPARATIVE CHART OF THE JUVENILE JUSTICE ACT 2000 AND THE
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015
5. OTHER MISCELLANEOUS PROVISIONS
5.1 Procedure
6. SOME STATISTICS
7. DETAILED ANALYSIS OF THE JUVENILE JUSTICE (CARE AND
PROTECTION OF CHILDREN) ACT, 2015

CHAPTER 5: ROLE OF JUDICIARY IN DETERMINING THE

CONTROVERSIES RELATED TO AGE OF JUVENILE

CHAPTER 6: CONCLUSION AND SUGGESTIONS

1. CONCLUSION
2. SUGGESTION
BIBLIOGRAPHY

7
 Table of Cases:-

 Arnit Dass v. State of Bihar, AIR 2000 (SC) 2264

 Bhola Bhagat v. State of Bihar1998 Cri. L.J. 1990
 Bhoop Ram v. State of U.P. 1989. 3 SCC (AIR 1989 SC 1329
 Biradmal Singhvi v. Anand Purohit 1988 (Supp.) SCC 604
 Dharambir Vs. State (NCT of Delhi) & Anr 2010 (2) RCR (Criminal) 773
 Dharampal and others v. State of U.P., AIR 1975 (SC), 1917
 Dilip Saha v State of West Bengal1979 Cri LJ 88 (FB)
 Emperor v. Dharam Parkash AIR 1926 (Lahore) 611
 Emperor v. Wali Mohd. & another AIR 1936 (Sind) 185
 Girish v. State of Kerala2004(1) KLT 419
 Gobinda Chandra v State of West Bengal, 1977 Cri LJ 1499 (Cal) (DB)
 Gopinath Ghosh vs. State of West Bengal 1984 Cri. L.J. 168 (SC)
 Hariom v. State of UP1993 Crl. Law Journal 1383 (SC)
 Hawaldar Singh v. State of U.P., AIR 1985 (SC) 955
 Hemal Mian v. State of Jharkhand2004-(110)-CRLJ -1503Jha
 Jabar Singh Vs. Dinesh & Anr2010 (2) RCR (Criminal) 309
 Jai Kishan @ Jaiki Vs. State of Haryana2010 (4) RCR (Criminal) 783
 Jayendra v. State of U.P. AIR 1982 S.C. 685, 1982 Cri. L.J. 1000
 Kavi @ Stalin v. State2004-(110)-CRLJ-l652-DEL
 Krishan Bhagwan v. State of Bihar AIR 1989 PAT 217 (FB)
 Lal Mohd. v. State1l9 (2005) DLT 353
 Madan Prodhan v. State of West Bengal1976 (1) Cal 224
 Mahendra Singh v. Stare of Rajasthan2004-(l10)-CRLJ -1606 –RAJ
 Malda Dada v. State of Gujarat I.L.R. (1972) Gujarat 326
 Master Rajeev Shankar Lal Parmar & another vs. Officer-in- charge, Police Station, Malad
and Others2003-(109) CRLJ - 4522-BOM
 Mohan Mali & Anr. Vs. State of M.P2010 (2) RCR (Criminal) 839
 Moti Lal Hansda v. State of Bihar2004 (4) JCR 171 (bih
 Munshi Khan v. State of Rajasthan2004 (110) CRLJ 3465 –RAJ
 Nawab Dheru Gul v Emperor, AIR 1934 (Pesh) 29
 Ningappa Prabhu Sarwad v. State of Mysore, Mad. L J (Crl.) 705)

8
 Parameswarn v. State of Kerala2004(2) KLT 1140
 Parmod Kumar Sethi v. State of Orissa2004-(110)-CRLJ -1858 –ORI
 Poulush Pahan v. State of Jharkhand and Another (2006(1)JCR 146(Jhr)
 Pratap Singh v. State of Jharkhand and another JT 2005(2) SC 271
 Raisul v State of UP, AIR 1977 (SC) 1822
 Rajinder Chandra v. State of Chhattisgarh and anr AIR 2002 SC 748
 Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh & Anr2010(1)RCR (Criminal)
245
 Ramdeo Chauhan v. State of Assam(2001) 5 SC 714
 Ramdeo Chauhan v. State of Assam(2000) 7 SCC 455
 Ratan Lal @ Ram Ratan v. State of Rajasthan2004 Cr.L.J. (Raj) 734
 Ravinder Singh Garkhi v. State of U.P Supreme Court of India, Criminal Appeal No. 362 of
1999, Decided On: 12.05.2006
 Shantanu Mitra v. State of West Bengal AIR 1998 SC. W 4099, AIR 1999 SC 1587
 Sheela Barse v. Secy., Children 's Aid Society(1987) 3 SCC 50
 Smt. Prabhati v. Emperor AIR 1921 (Oudh) 190
 Sushil Kumar v. State of U.P AIR, 1984 SC 1232
 Umesh Chander v. State of Rajasthan, 1982 Cri.L.J.994
 Vikrant Kumar Alias Sonu v. State of U.P. and another2003 Cr. LJ 1094 (All)
 Vinod Kumar v. State of HP(1987) 2 SCC 623

9
 CHAPTER 1.
INTRODUCTION

To think of a crimeless society is a myth, as man by nature is a fighting animal. Over the
earth surface, there is no society without the existence of crime and criminals. Crime is an
inevitable and universal phenomenon. Like adult Criminal behavior, deviant behavior among
children and young person and juvenile delinquency have always existed and posed problems
everywhere in all corners of the world. The broken home, lack of discipline, bad
companionship, lack of organization of leisure time, economic factors etc. are linked with the
incidence of juvenile delinquency. Various socio-legal investigations have caused the shifting
of emphasis from the punishment of the offender to the examination of the social conditions
which have produced his antisocial personality.

2. WHAT IS JUVENILE DELINQUENCY

Delinquency is a kind of abnormality. When an individual deviates from the course of
normal social life his behavior is called 'Delinquent'. When a juvenile, below an age
specified under a statute exhibits behavior which may prove to be dangerous to society
and/or for him, he may be called a Juvenile delinquent. Juvenile delinquents are those
offenders including boys and girls who are under 18 years of age. A Juvenile delinquent is a
young person incorrigible or habitually disobedient.
Act of delinquency may include:
1. Running away from home without the permission of parents.
2. Habitual behavior beyond the control of parents.
3. Spending time idly beyond limits
4. Use of vulgar languages
5. Wandering about rail roads, streets market places
6. Visiting gambling centre
7. Committing sexual offences
8. Shop-lifting
9. Stealing etc.
Juveniles may do such activities singly or through a gang. There are other social or
environmental factors which lead them to be a delinquent. Some of them are mentioned
below:
(a) School dissatisfaction is a major cause of child delinquency. Some students get

10
 dissatisfied with school life. Parental irresponsibility, unmanageable student teacher
ratio, lack of entertainment and sports facilities in school, indifference of the
teachers may contribute to this. Such dissatisfied students become regular
absentees in schools and start wandering their own and become gamblers, eve-
teachers, pick pockets, drunkards, smokers and drug addicts.
(b) Films and pornographic literature have also added to the magnitude of
delinquency. Cinema, television and obscene literature may often provoke sexual
and other impulses in adolescents. Hence they may start their adventure in satisfying
them in the process of which they commit crimes.
(c) Deep slated inner desired couples with outside pressures; compulsion and
temptation also contribute to juvenile delinquency. For example, on hearing the
interesting narration of the illicit sex experiences or such other criminal experiences
from one other may be tempted to follow the same.
According to psycho-analytical view, the delinquent is an individual who is governed
by the pleasure principle. He wants to get immediate pleasure and immediate satisfaction
for his needs. So he becomes victim to his own impulses. Thus it may be said that juvenile
delinquency is also the result of environmental factors.
A grave problem such as juvenile delinquency can't he solved by means of legislation
and government efforts alone. As far as India is concerned in many of the states Children
Acts have not been effectively enforced. Some of these Acts themselves have defects.
Official machinery is not effectively used for controlling this problem. Government as well
as private agencies must work hand in hand with all sincerity and seriousness to find on
effective remedy for the problem of juvenile delinquency. The public attitude towards
Juvenile delinquents must also change. A juvenile delinquent is a product of
unwholesome environment congenial for the development of his faculties in
conformity with social expectations.

3. CLASSIFICATION OF JUVENILE DELINQUENCY

It is extremely difficult to assess precisely the extent of the problem in any part of the
country since accurate statistics are not available and are not indicator of the true extent.
This is because of the fact that a large number of such acts remain undetected or
unreported. Nevertheless, it has been observed that delinquency rates are highest in all
developed countries. It is in countries with the highest levels of technical and economic

11
advancement that social change occurs most rapidly, and traditional social roles and
institutional controls over child conduct tend to breakdown.
Different classifications of the juvenile delinquency and delinquents have been given by
various authors. A few important classifications are noted below.
 Hirsh1 delineated the following kinds of juvenile offences:
a) Incorrigibility, which includes keeping late hours, disobedience, and so on.
b) Truancy, which can be from home or school
c) Destruction of property, which includes both public and private property
d) Violence which is perpetrated against the community by using such means as
knives and guns.
e) Sex offenses which can range from homosexual activity to criminal assault and
rape.
 Eaton and Polk2 classified the delinquents by the following types of offences they
have been involved in:
a) Minor violations which include disorderly conduct and minor traffic violations
b) Property violations which include all property thefts except automobiles.
c) Major traffic violations which include automobile theft and drunk driving and
any other offence that would involve an automobile.
d) Human addiction which includes sex offenses as well as alcohol and drug
addiction.
e) Bodily harm which includes homicide offenses that involve sexual deviation;
such as rape, and generally, all other acts of violence against a person.
 Kvaraceus3classifies youngsters who become delinquent in relation to three major
variables:
a) The extent to which the individual engages in delinquent behavior.
b) The degree of demonstrable emotional pathology.
c) The individual’s social class.
 Trojanovicc4classified juvenile offenders in the following five categories:
a) Gang Organized and Collective Delinquency Youngsters classified in this category

1
Hirsh, N., Dynamic Causes of Juvenile Crime. Cambridge; Mass, Sci-Art Publisher, 1937,p.86-93
2
Eaton, J. W. and Polk, K., Measuring Delinquency. Pittsburg; university Pittsberg Press,1961,p.147-151
3
Kvaraceus, W. C. and Miller, W.B. Delinquent Behaviour; Cultuer and The Individual. Washingoton;
National Education Association,1959.p. 87-91
4
Trojannovicz, R.C.Juvenile Delinquency; Concept and Control. New Jersey; Prentice Hall Inc.1973,p. 57-
60

12
 would be those who perpetrate their illegal activities within a group. These children
usually come from economically and socially deprived areas of the city and often
seek excitement and express themselves through the gang. Much of their delinquent
motivation and activity is a result of the strain produced by the crowded conditions
of their environment in large inner cities where economic opportunities are lacking
and where upward mobility is difficult.
b) Unsocialized-Aggressive Boys classified in this category would have long police
records and would probably come from the homes where they were rejected and
where there was an early identification with a criminal parent or an anti-social
type of parent. Families of such type of children are prone to physical violence.
There is much hatred and aggression within the homes and this hatred is often
transmitted to the children. Their frustration and hatred is then vested on the
community where they become very aggressive. These youngsters, obviously, do not
learn how to sublimate their impulses in a socially acceptable manner.
c) Accidental Offender -A youngster classified in this category would be one who is
law-abiding most of the time but who has a lapse of judgment. He involves
himself in a delinquent activity. This type of youngster is not a problem and his
delinquent behaviour comes to an end when he realizes what he has done or when
he has been caught in the delinquent activity.
d) Occasional Delinquency-In general, the occasional delinquent is similar to the
accidental offender in that he also becomes involved in minor offenses but not on a
chronic or regular basis. There is no real pattern to his delinquency.
e) Professional Delinquency-A youngster classified in this category usually steals for
profit. Stealing is for economic gain to satisfy some desire.
According to Cessare Lombroso, a biologist with an outstanding contribution to the
science of criminology, “there exists a group of criminals born for evil, against whom all
social cures break as against a rock.” Criminality according to him is in-born. A typical
criminal, says Lombroso, has certain physical characteristics as low forehead, hairy body,
red eyes, ear deformation, receding chin, big and protruding jaws, and an extreme
sensitivity or non- sensitivity to pain. While serving in the army as a physician he
observed that troublesome soldiers had certain physical characteristics which were missing
in the others
Juvenile delinquency involves wrong doing by a child or a young person who is under an
age specified by the law of the land. To study the juvenile delinquent might be difficult but

13
not an impossible task, as rightly pointed out by Sir Cyril Burt in his book " the young
delinquent ", that the juvenile offender is easier to study and at the same time, he is easier to
reclaim.
Social conformity and social deviation are the inherent and unavoidable part in the
conceptual framework of modern Sociology. Both focus on social norms and social action.
Conformity is an action which is oriented to a social norm and falls within the band of
behavior permitted by the norm. Conformity does not just fall within the range of permitted
behavior because the relevant norms are the part of the actor's motivation, although he is not
necessarily conscious of them at all times and at any time. Because of the complexity in
modern legal systems, common man requires the specialists to explain his rights and
obligations. Even common man is not necessarily conscious at all times or at any time of
legal or other social norms that are in fact known to us.
Reciprocally, deviant behavior is not merely behavior that happens to violate a norm, it is
behavior that violates a norm to which the actor is oriented at that time; it is motivated
violation. Social control consists in the operation of all mechanisms that counteract deviant
tendencies, either by preventing outward deviation or by checking or reversing the elements
of motivation that tend to produce deviant behavior.
According to Criminal Law, a crime is conduct or an action that is defined and codified in
law as a crime. ('nullum crimen sine lege' - no crime exists unless it is so defined by the
law). Although crime and delinquency are basically similar concepts, they differ with respect
to the age of those who can be regarded as lawbreakers. As most crimes are also
delinquencies in that they are acts of which society disapproves, crime must be understood
before delinquency can be comprehended. Not every delinquency, however, is a crime. And
some crimes (say corruption of the morals of a minor) cannot be delinquencies.
The main distinction between the terms delinquency and criminality is largely
quantitative rather than qualitative. The term delinquency is used as a convenience to indicate
an extension of the concept of criminality and a group of individuals differentiated by age
from ordinarily criminals. Without an adjustment in the definition of criminality, the illegal
act committed by juveniles and adults would be considered equivalent. However the
delinquency concept permits a distinction between levels of responsibility viz. a murder
committed by 15 years boy may be regarded as a form of juvenile delinquency whereas the
same act done by a 45 years old man is defined as criminal act. Similarly, shoplifting, by a 45
years old man is defined as criminal conduct whereas the same activity by 15 years old boy is
called juvenile delinquent behavior. The two terms also involve radical distinctions in

14
preliminary investigation procedures, court proceedings and penal consequences. However,
murder, whether committed by juvenile or adult, still results in the death of another, but the
juvenile murderer may be sent to a foster home and the adult sentenced to life imprisonment
or death.
4. WHO IS A JUVENILE?
A juvenile is a person who is under the age of 18. The age limit below which it should
not be permitted to deprive a child of his or her liberty should be determined by law.
Juvenile can be defined as a child who has not attained a certain age at which he, like an
adult person under the law of the land, can be held liable for his criminal acts. The juvenile is
a child who is alleged to have committed /violated some law which declares the act or
omission on the part of the child as an offence. Juvenile and minor in legal terms are
used in different context. Juvenile is used when reference is made to a young criminal
offenders and minor relates to legal capacity or majority. 5
4.1 Juvenile in need of care and protection
There are other groups of children in our country facing especially difficult
circumstances. These children include: children involved in prostitution and children sex
workers; children who have been sexually or physically abused; children with substance
abuse problem; children affected with HIV; children with disabilities; and refugee children. The
presence and difficulties faced by all these groups of children are compounded by the
circumstances of poverty and many of these may also be street children.
The re-enacted Juvenile Justice law for children proposes to set the legal and popular meanings
and distinctions between the juvenile and the child clear for their appropriate treatment under
section 2(14) of the new Act which now redefines even the neglected child as a 'child in need
of care and protection' Such children may be those -
(i) who is found without any home or settled place of abode and without any
ostensible means of subsistence; or
(ii) who is found working in contravention of labour laws for the time being in
force or is found begging, or living on the street; or
(iii) who resides with a person (whether a guardian of the child or not) and such
person—
(a) has injured, exploited, abused or neglected the child or has violated
any other law for the time being in force meant for the protection of
child; or

5
See the Black Dictionary of Law.

15
 (b) has threatened to kill, injure, exploit or abuse the child and there is a
reasonable likelihood of the threat being carried out; or
(c) has killed, abused, neglected or exploited some other child or
children and there is a reasonable likelihood of the child in question
being killed, abused, exploited or neglected by that person; or
(iv) who is mentally ill or mentally or physically challenged or suffering from
terminal or incurable disease, having no one to support or look after or having
parents or guardians unfit to take care, if found so by the Board or the
Committee; or
(v) who has a parent or guardian and such parent or guardian is found to be
unfit or incapacitated, by the Committee or the Board, to care for and protect the
safety and well-being of the child; or
(vi) who does not have parents and no one is willing to take care of, or whose
parents have abandoned or surrendered him; or
(vii) who is missing or run away child, or whose parents cannot be found after
making reasonable inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be abused, tortured or exploited for
the purpose of sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be inducted into drug abuse or
trafficking; or
(x) who is being or is likely to be abused for unconscionable gains; or
(xi) who is victim of or affected by any armed conflict, civil unrest or
natural calamity; or
(xii) who is at imminent risk of marriage before attaining the age of marriage
and whose parents, family members, guardian and any other persons are
likely to be responsible for solemnization of such marriage;

4.2 Juvenile in conflict with law

A child or a juvenile becomes a 'juvenile delinquent' once he commits an offence;
otherwise, he is defined differently under much legislation for different purposes. The juvenile
delinquent is now redefined under section 2(l) of the re-enacted law as 'juvenile in
conflict with law' meaning a juvenile who is alleged to have committed an offence. The
meaning of offence would obviously be the same as given in the code of criminal procedure, the
Indian penal code or any other law in force (Section 2-e of (JJ, (C & P of Children) Act, 2000).

16
Unfortunately, in the Indian context, even global, the status of juvenile delinquency always
takes the precedence over the juvenile neglect . Such undue emphasis and inappropriate
preference also speaks of a historical mindset. Ever since the child, called juvenile (JJ, (C & P)
Act, 2015), became the subject matter of legal treatment, he was generally viewed to be an
offender and nothing more. It is only in the recent decades that some kind of legal protection
has been given to the juvenile or the child and it has been appreciated that child is the most
vulnerable segment, and also the most valuable asset of the society, who needs special care and
special treatment.

5. STATMENT OF PROBLEM
With the passage of time, the problem of child with conflict of law is increasing. As we
know children are not so mature that they can judge there acts. It is the responsibility of the
society, rule makers and other stakeholders to deal such problem in such manner so the rights
of children and their welfare cannot be jeopardizes. Though law had been enacted to deal
with children who are in conflict with law, the genesis of such law exist in our judicial
system, which follow the common law system as well as some features of Anglo-Saxon
system. The age bar, at which age the person will be deal with the law as well as in what
manner, defined under codes and laws. Under Indian penal code, the principle of Doli
incapaxis is lay down under the chapter of general exception. Doli incapaxis means that
deemed incapable of forming the intent to commit a crime or tort, especially by reason of age
or incapability of the children to do an criminal act in the eye of law. Basically, the means of
this provision is not that a child cannot commit the crime, certainly he can commit the crime
but the law is concern in what situations or conditions an act done by child will fall in
category of the crime. Such differentiation is because of the fact that a child is so immature or
incapable that he is not able to understand the nature as well as the consequence of the acts.
In the existing law there exist several controversies related to age as in the Indian penal
code the child under 7 year old completely exempted from criminal liability and more the 7
year but less then 12 year his act will be weighted with maturity of doer. However certain
other law like juvenile justice act says that person below the 18 year old will be treated as
juvenile even a new category of 16-18 year also created as an outcome of hue and cry after
Delhi Gang rape incident. The problem exist that one side we are find that IPC do not make
provision regarding to the how will the person above the age of 12 will be deal if he
committed the crime. Though to make it clear juvenile justice act and other act was enacted

17
time to time but there exist certainly some question related to violation of the provision of
such law by authorities which ultimately cause harm to the children.
However the criteria set by the enactments is sound but with growing time nature as well
as culprits of the crime is changing. Involvement of young offenders in several heinous crime
compel legislature to make desired change in laws dealing with juvenile. Not just by creating
an another category of age 16-18 year does not gives us desired results.

6. REVIEW OF LITERATURE
The variety of material in the form of books, journals, research articles is available in the
branch of juvenile delinquency in India and abroad too. Since long the topic of juvenile
delinquency is added in the form of single chapter in the law discipline under the heading of,
‘criminology and penology'. The following foreign and Indian authors have written on the
topic of juvenile delinquency in the book Criminology and Penology viz Taft and England,
Lenklin John (1947), Dressler David (1966), Deb, R (1968), Walter Reckless (1973) are
some foreign authors while Indians are Shah J.H. (1973), Siddiquee Ahmed (1977), Ram
Ahuja (2000), Paranjpe N. V. (2004), Quadris M.A. (2009) and many others. Another
literature on juvenile justice that I followed includes book Child Right’s and the Law written
by Prof. N P Khan, book Juvenile Justice system in India written by Prof. Ved Kumari and
other several articles. In the last sixty years, many foreign and Indian authors have written
valuable books on this topic. Besides books, research articles and research work for M.Phil
and Ph.D degrees have also been produced in the subject of law, sociology, psychology etc.

7. OBJECTIVES OF THE STUDY

The existing problem of juvenile justice is tried to overcome by several measure however
with changing time, the problem is enlarging and there is a need to encompass all such
problems within certain legislation. With this objective there were several Acts and rules lay
down. A comparative analysis of existing laws, like Juvenile Justice Act 2000 and 2015, on
juveniles will be prime objective. Here my concern of study is to inspect the ambit of
juvenile those are 'in conflict of law'. Also, objective of study the mutual effect of law,
including Juvenile Justice Acts and Indian Penal Code, dealing with juvenile to deal focusing
on AGE criteria.

8. HYPOTHESIS

18
 Law is a process which deal with crime to make society inhabitable as well as play
protective role for preservation of civilization. No matter what age of you are you are
bounded by the rule and regulations of the society. Society includes minor, major and older
all. There is a provisions to deal with particular group keeping their age in mind and there
metal conditions as well. There is strict principles that to be followed when we are dealing
with children. In India juvenile justice Act and Indian penal code deal with what age group of
children have to deal with what basic tenets. Though there exist sound laws to deal juvenile
with following international norms but there exist some lacunas which raise question mark on
the very implementation of the laws.

9. METHODOLOGY
While undertaking, the present study work all the current literature on topic available
in form of books, research papers, reports and decided court cases etc. has been consulted.
An attempt has been made to study and analysis of the writings that have a bearing on the
subject undertaken for study. Further, more emphasis has been laid on the case law that
has been decided by Supreme Court and High Courts of different states. In short, doctrinal
approach has been adopted. To the possible extent every aspect of the Juvenile Justice in
India and Legislative Judicial Approach has been analyzed.

10. SCHEME OF CHAPTERIZATION

The following shall be the tentative Chapterization of the study:
1. Introduction;
It will include basic idea regarding to general introduction to juvenile delinquency,
children need of care and protection as well as in conflict with law. This chapter include what
methodology was employed by me?, what is the objective of study?, what hypothesis as well
as scheme of chapterization.
2. Historical development: International and Indian developments;
This chapter will include history from where the movement of child rights and there
liability to act done by them to till now and development of laws related to juvenile to deal
juvenile who are in conflict with law. It also includes what international norm, conventions
protocols etc lay down for dealing the child who are in conflict with law.
3 .Juvenile justice act 2000: an appraisal;
In this chapter we will discuss the summery of Juvenile Justice Act 2000.

19
4. Comparative analysis of Juvenile Justice(care and protection of children)Act 2000 with
Juvenile Justice(care and protection of children)Act 2015;
In this chapter we will do a comparative analysis of the various law dealing with the
juvenile justice system including the Act, Act of 2000 and Act of 2015. It also include the
detailed analysis of JJ (c & P) Act,2015. Special focused will be on the age criteria means in
which Act what minimum age was prescribed and what procedure have to be followed by
authorities for the trial of juvenile.
5. Role of judiciary in determining the controversies related to age of juvenile;
This chapter will includes the classification of children in the eye of law and what is the
position and stand taken by the court of law in various judicial pronouncements. With the
help of judicial pronouncement we will try to examine what principles followed by judiciary
to determine the age and related controversies.
6. Conclusion and suggestions;
Bibliographies;

20
 CHAPTER 2
1. INTRODUCTION

Even though the juvenile justice system in various countries has taken a similar course
there have been two different rationales for separate system for juveniles. The first, treating
all offences as criminal and the second recognizing that offence by juvenile must not be seen
as a criminal activity. The choice of rationale determined the nature of juvenile courts and
procedures. The establishment of a separate juvenile court in England, for example, was the
consequence of the principle of segregation of juveniles from adult offenders. The
magistrates held separate sittings and tried children in the same manner as adults. The
prevailing idea was that the juvenile was essentially a wrong doer and the old procedures
of dealing with the adult offenders were thought to be appropriate for them in most
respects. Though courts were given wide range for disposition of cases and decisions were
governed by such considerations as seriousness of the offence and the interest of the
public. The move to establish special courts for juveniles using the second principle was
initiated, for the first time, in 1847, in the United States of America6. However, the first
'juvenile court' could be established, only in 1899, in Chicago under the Juvenile
Offenders Act. This court was neither a criminal court nor did it follow the criminal
procedure. The law was meant to regulate to treatment and control dependent, neglect and
delinquent children with separate treatment by special judge. The first probation law was
enacted in the state of Massachusetts, U.S.A, in 1878 and in England in 1887.

The first juvenile welfare boards were established in Norway by an act adopted in
1896, it was the establishment of the juvenile court in IlIinois, Chicago, in America, in
1898, which gave impetus to a juvenile court movement. It spread rapidly first in America
and then all over the world. The juvenile court in America, on the other hand, was neither a
criminal court nor did it follow a criminal procedure. It was based on the principle of
equity to mitigate the rigors of common law and to provide adequate remedies in deserving
cases. The king as parens patriae or as father of the country exercised his power of
guardianship where the family failed, which has been looked upon as responsible for the
child's upbringing in the first place. In the Scandinavian countries also the principles of
parens patriae formed the basis for the special provisions for the care and protection of

6
.Champion, 1992, Outlines juvenile justice system in the United States of America

21
children. These countries adopted juvenile welfare board system instead of the juvenile
court.

At the international level the concept of juvenile justice has often been discussed from
three perspectives:

(i) juvenile justice in the sense of social justice for all children and young persons;

(ii) children in conflict with law and in need of care and protection; and

(iii) Convicted juveniles.

Though the formal system of juvenile justice generally concentrates on action after the
onset of delinquency, a comprehensive strategy to forestall conditions and factors that
generate delinquency is equally imperative.

The current approaches towards juvenile justice are centered around;

(i) the "due process model" which protects the substantive and procedural rights of
the juveniles involved in the legal processes,

(ii) the "parens patriae" or "welfare model" which aims at providing justice to
juveniles primarily through state interventions and promote their well being as they
come within the purview of the legal system, and

(iii) the "participatory model" which emphasizes a constructive participation of the

community in the mainstreaming of the erring juveniles and the minimization of legal
intervention in their lives .

These models were however not adequate by themselves & needed integration.

The dilemma between the rights and needs and the conflict that arises due to the
gravity of the offence and the degree of conflict with the society vis-a-vis a juvenile, has
been resolved by the United Nations through its Standard Minimum Rules when the
Juvenile Justice System becomes an integral part of the holistic approach towards
protecting the rights of the child. Even the efficiency and effectiveness of the Juvenile
Justice depends on the measures undertaken to ensure the well being and welfare of the
juveniles in the society. This aspect has been forcefully brought out in the United Nations
Standard Minimum Rules for the Administration of the Juvenile Justice System (Beijing

22
Rules) adopted in 1985.The fundamental perspectives enunciated therein specify, inter alia,
that sufficient attention shall be given to positive measures to involve the full mobilisation
of all possible resources, including the family, volunteers and other community groups as
well as the schools and community institutions for the purpose of promoting the well-
being of the juvenile and reducing the need of intervention under the law, and to
effectively, fairly and humanely deal with the juveniles in conflict with law. The
formulation of the Beijing rules symbolizes the commitment of the international
community to provide for a separate legal system for juvenile justice. There is also a
candid awareness of the reality that no juvenile justice system on its own can undo the
aberration of the wider socio-economic system.

International perspective
2. INTERNATIONAL PERSPECTIVE:-

Under this we have to discus several UN conventions and rule regulations made in past
keeping in the mind the welfare, rehabilitation, reformation of children all over the world.

2.1 The Third International Congress for the Welfare and Protection of Children
(1902 ):

The Third International Congress for the Welfare and Protection of Children was held in
London from 15th to 18th July 1902, under the patronage of His Majesty King Edward VII.
The Congress considered the problems of neglected children and the probabilities of their
turning towards delinquency if due care of them was not taken.7 Thus, this is the point where
the Congress emphasized the linkage of neglected juveniles and juvenile delinquency.

2.2 The Convention on League of The Nation (1919):

Article 23 of the Covenant obliges the Members of the League to endeavor to secure and
maintain fair and humane conditions of labour for men, women, and children, both is their
own countries and in all countries to which their commercial and industrial relations extend.

7
Report of the Proceeding of Third International Congress, 1902, cited in Juvenile Delinquency: A Comparative
Study by A.D. Attar, Chap.II (Popular Prakashan, Bombay, 1964) p. 156-189

23
The Covenant also proposed that the Member of the League should establish necessary
international organizations for that purpose. Of course, this provision related to conditions of
labour for children, however, this led to development of today's children's rights.

2.3 Human Rights of Child under Geneva Declaration (1924):

The Declaration provided that the child that is hungry must be fed, the child that is sick must be
helped, the child that is backward must be helped and the delinquent child must be reclaimed.
The Declaration is important in the sense that it suggested in the year 1924 to the Members of
the League to adopt rehabilitative measures to reclaim the delinquent child. This provision
led to the development of the principle of rehabilitation and social reintegration of the child.

2.4 U N Declaration of Human Rights(1948):

The important Article in this Declaration is Article 16 which indirectly relates to

rehabilitation and social reintegration of juvenile delinquents. The Article says that the family
is the natural and fundamental group unit of society and is entitled to protection by society
and the State. If family is taken care of, the children will automatically be taken care of. If
children are taken care of and family is left in destitution, all child care programmes become
frustrated. Therefore, to protect the human rights of the children, the human rights of their
parents first must be protected.

2.5 International Convention on Civil and Political Rights (1966):

 Article 6 of the Covenant mandates the State Parties not to make legislations awarding
death sentence for the offence committed by juvenile offender who is below eighteen
years of age.
 Article 7 provides that the accused juvenile shall not be punished in an inhuman or
degrading manner. No torture or cruelty can be meted out during the custody or
detention.
 Article 10 provides that the accused juvenile persons shall be separated from adults
and brought as speedily as possible for adjudication. Juvenile offenders shall be
segregated from adults and be accorded treatment appropriate to their age and legal
status.

24
2.6 International Convention on Economic Social and Cultural Rights (1966):

 Article 10 of the Covenant provides that the State should afford widest possible
protection and assistance should be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its establishment and while it is
responsible for the care and education of dependent children.

This is the only provision which is ignored in all the jurisdictions at the international and
municipal level what is heard is human rights of the children and not the human rights of the
parents or guardian of the children. It is not understood how one can take care of children
without taking the care of their family. From this point of view, the whole discourse of
human rights appears to be mere academic discussion.

2.7 The United Nations Standard Minimum Rules for The Administration
of Juvenile Justice, “The Beijing Rules”8(1985):

Scope of the Rules nd Definitions used


Rule 2 provides that a juvenile is a child or young person who, under the respective
legal systems, may be dealt with for an offence in a manner which is different from an
adult. An offence is any behaviour (act or omission) that is punishable by law under
the respective legal systems. A juvenile offender is a child or young person who is
alleged to have committed or who has been found to have committed an offence.
Extension of the Rules

 Rule 3 provides that relevant provisions of the Rules shall be applied not only to
juvenile offenders but also to juveniles who may be proceeded against for any specific
behaviour that would not be punishable if committed by an adult. In other way of
saying that the juvenile offenders and status offenders (non-delinquent) both should
be processed together. Its justification in the modern legal system is highly doubted.
This is the weakness of the Rule 3.
Age of Criminal Responsibility

8
Adopted by UNO General Assembly Resolution 40/33, dated 29.11.1985 cited in Law Relating to Juvenile
rd
Justice in India by R.N. Choudhry, , Orient Publishing Company, 3 edn,2009 ,p. 1235- 1243

25
  Rule 4 says that the minimum age for criminal responsibility should not be fixed at
too low age level, bearing in mind the facts of emotional, mental and intellectual
maturity.
Aims of Juvenile Justice

 Rule 5 provides that the juvenile justice system shall emphasize the well-being of the
juvenile and shall ensure that any reaction to juvenile offenders shall always be in
proportion to the circumstances of both the offenders and the offence. This clearly
shows that the rule does not prohibit punishing juvenile offenders.
Scope of Discretion

 Rule 6 provides that the official exercising control over the juvenile offenders should
be made accountable at all stages.

Rights of Juveniles

 Rule 7 provides the principle of fair trial. It says that the basic procedural safeguards
such as the presumption of innocence, the right to be notified of the charges, the right
to remain silent, the right to counsel, the right to the presence of a parent or guardian,
the right to confront and cross-examine witnesses and the right to appeal to a higher
authority shall be guaranteed at all stages of proceedings.
Protection of Privacy

 Rule 8 provides for the protection of the juvenile's right to privacy at all stages in
order to avoid harm being caused to her or him by undue publicity or by the process
of labeling. In principle, no information that may lead to the identification of a
juvenile offender shall be published.
Initial Contact

 Rule 10 provides that 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 shortest possible time thereafter. A judge or other competent official or body shall,
without delay, consider the issue of release.
Diversion

26
  According to Rule 11, consideration shall be given, wherever appropriate, to
dealing with juvenile offenders without resorting to formal trial by the competent
authority. 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 subject to review by a competent authority,
upon application. In order to facilitate the discretionary disposition of juvenile cases,
efforts shall be made to provide for community programmes, such as temporary
supervision and guidance, restitution, and compensation of victims.
Specialization within the Police

 According to Rule 12, the police officers who frequently or exclusively deal with
juveniles or who are primarily engaged in the prevention of juvenile crime shall be
specially instructed and trained. In large cities, special police units should be
established for that purpose.
Detention Pending Trial

 Rule 13 provides that detention pending trial shall be used only as a measure of last
resort and for the shortest possible period of time. While in custody, juveniles shall
receive care, protection and all necessary individual assistance including social,
educational, vocational, psychological, medical and physical that they may require in
view of their age, sex and personality.
Competent Authority to Adjudicate

 Rule 14.1 provides that where the case of a juvenile offender has not been diverted,
she or he shall be dealt with by the competent authority (court, tribunal, board,
council, etc.) according to the principles of a fair and just trial.
 Rule 14(2) provides that the proceedings shall be conducive to the best interests of the
juvenile and shall be conducted in an atmosphere of understanding, which shall allow
the juvenile to participate therein and to express herself or himself freely.
Legal Counsel, Parents and Guardians

 Rule 15(1) provides that throughout the proceedings the juvenile shall have the right
to be represented by a legal adviser or to apply for free legal aid where there is
provision for such aid in the country.
Social Inquiry Reports

27
  Rule 16(1) says that In all cases except those involving minor offences, before the
competent authority renders a final disposition prior to sentencing, the background
and circumstances in which the juvenile is living or the conditions under which the
offence has been committed shall be properly investigated so as to facilitate judicious
adjudication of the case by the competent authority.
Guiding Principles in Adjudication and Disposition

 Rule 17(1)(a) provides that the reaction taken shall always be in proportion not only
to the circumstances and the gravity of the offence but also to the circumstances and
the needs of the juvenile as well as to the needs of the society. The rule postulates the
principle of individualization of punishment.
 Rule 17(1)(d) provides that the well-being of the juvenile shall be the guiding factor
in the consideration of her or his case.
 Rule 17(2) prohibits death sentence to juvenile offenders.
 Rule 17(3) prohibits corporal punishment to juveniles.
Various Disposition Measures

 Rule 18(1) lays down various alternatives or diversionary programmes in substitute to

institutional method of treatment and they are as follows
 Care, guidance and supervision orders;
 Probation;
 Community service orders;
 Financial penalties, compensation and restitution;
 Intermediate treatment and other treatment orders;
 Orders to participate in group counselling and similar activities;
 Orders concerning foster care, living communities or other educational settings;
 Other relevant orders.
Least possible use of institutionalization

 Rule 19(1) provides that the institutional method of treatment should be the last resort.
Avoidance of unnecessary delay

 Rule 20(1) provides for expeditious disposal of cases of juvenile offenders.

Records

28
  Rule 21(1) provides that the records of juvenile offenders shall be kept strictly
confidential and closed to third parties. Access to such records shall be limited to
persons directly concerned with the disposition of the case at hand or other duly
authorized persons.
 Rule 21(2) provides that the records of juvenile offenders shall not be used in adult
proceedings in subsequent cases involving the same offender.
Need for professionalism and training

 Rule 22(2) lays down that the Juvenile justice personnel shall reflect the diversity of
juveniles who come into contact with the juvenile justice system. Efforts shall be
made to ensure the fair representation of women and minorities in juvenile justice
agencies.
 Rule 23 provides for effective implementation of dispositional directions passed by
the competent adjudicatory authorities.
 Rule 23(1) provides that the suitable provisions shall be made for the implementation
of orders of the competent authority, as referred to in rule 14(1) above, by that
authority itself or by some other authority as circumstances may require.
 Rule 23(2) provides that provisions should also be made to include the power to
modify the orders as the competent authority may deem necessary from time to time,
provided that such modification shall be determined in accordance with the principles
contained in these Rules.
Provision of Needed Assistance

 Rule 24(1) obliges the States to make efforts to provide juveniles, at all stages of the
proceedings, with necessary assistance such as lodging, education or vocational
training, employment or any other assistance, helpful and practical, in order to
facilitate the rehabilitative process.
Mobilization of Volunteers and other Community Services

 Rule 25(1) provides for involvement of volunteers, voluntary organisations, local

institutions and other community resources to contribute effectively to the
rehabilitation of the juvenile in a community setting and, as far as possible, within the
family unit.
Objectives of institutional treatment

29
  Rule 26(1) lays down the objectives of training and treatment of juveniles placed in
institutions is to provide care, protection, education and vocational skills.
 Rule 26(2) provides that the juveniles in institutions shall receive care, protection and
all necessary assistance.
 Rule 26(3) provides that the juveniles in institutions shall be kept separate from adults
and shall be detained in a separate institution or in a separate part of an institution.
 Rule 26(5) lays down that in the interest and well-being of the institutionalized
juvenile, the parents or guardians shall have a right of access.
Application of the Standard Minimum Rules for the Treatment of Prisoners adopted by the
United Nations

 Rule 27(1) provides that the Standard Minimum Rules for the Treatment of Prisoners
and related recommendations shall be applicable as far as relevant to the treatment of
juvenile offenders in institutions, including those in detention pending adjudication.
 Rule 27(2) provides that efforts shall be made to implement the relevant principles
laid down in the Standard Minimum Rules for the Treatment of Prisoners to the
largest possible extent so as to meet the varying needs of juveniles specific to their
age, sex and personality.
Frequent and Early Recourse to Conditional Release

 Rule 28(1) provides that the conditional release from an institution shall be used by
the appropriate authority to the greatest possible extent, and shall be granted at the
earliest possible time.
 Rule 28(2) provides that the juveniles released conditionally from an institution shall
be assisted and supervised by an appropriate authority and shall receive full support
by the community.
Semi-institutional Arrangements

 Rule 29(1) provides that efforts shall be made to provide semi-institutional

arrangements,such as half-way houses, educational homes, day-timing training
centres and other such appropriate arrangements that may assist juveniles in their
proper reintegration into society.
Research Basis for Planning, Policy Formulation and Evaluation

 Rule 30(3) provides that efforts shall be made to establish a regular evaluative

30
 research mechanism built into the system of juvenile justice administration.
 Rule 30(4) provides that the delivery of services in juvenile justice administration
shall be systematically planned and implemented as an integral part of national
development efforts.

2.8 The U N Convention on Protection of Children Rights9 (1989):

 Article 1 provides the definition of a child. According to it, every human being below
the age of eighteen years is a child.
 Article 3(1) provides that in all actions, the best interests of the child shall be a
primary consideration.
 Article 3(2) provides that while ensuring protection and care to a child, the rights and
duties of his or her parents, legal guardians, or other individuals legally responsible
for him or her shall be taken into account by the State.
 Article 3(3) lays down that the States Parties shall ensure that the institutions, services
and facilities responsible for the care or protection of children shall conform with the
standards established by competent authorities, particularly in the areas of safety,
health, in the number and suitability of their staff, as well as competent supervision.
 Article 12(2) provides that the child shall in particular be provided the opportunity to
be heard in any judicial and administrative proceedings affecting the child, either
directly, or through a representative or an appropriate body, in a manner consistent
with the procedural rule of national law.
 Article 20 (1) states that a child temporarily or permanently deprived of his or her
family environment, or in whose own best interests cannot be allowed to remain in
that environment, shall be entitled to special protection and assistance provided by the
State.
 Article 20(2) provides that States Parties shall in accordance with their national laws
ensure alternative care for such a child. Such care could include, inter alia, foster
placement, kafalah of Islamic law, adoption or if necessary placement in suitable
institutions for the care of children. When considering solutions, due regard shall be
paid to the desirability of continuity in a child's upbringing and to the child's ethnic,

9
Ian Brownlie & Guy S. Goodwin-Gill, Basic Documents on Human Rights, Oxford University Press, 2nd edn.,
1981,p. 478-563

31
 religious, cultural and linguistic background.
 Article 37 provides that States Parties shall ensure that no child shall be subjected to
torture or other cruel, inhuman or degrading treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age.
 Article 37(b) states that no child shall be deprived of his or her liberty unlawfully or
arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and for the shortest
appropriate period of time.
 Article 37(c) states that 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 and shall have the right to maintain contact with his or her family
through correspondence and visits, save in exceptional circumstances.
 Article 37(d) provides that every child deprived of his or her liberty shall have the
right to prompt access to legal and other appropriate assistance, as well as the right to
challenge the legality of the deprivation of his or her liberty before a court or other
competent, independent and impartial authority, and to a prompt decision on any such
action.
 Article 39 provides that the States Parties shall take all appropriate measures to
promote physical and psychological recovery and social reintegration of a child who
is the victim of any form of neglect, exploitation, or abuse, torture or any other form
of cruel, inhuman or degrading treatment or punishment or armed conflicts. Such
recovery and reintegration shall take place in an environment which fosters the health,
self-respect and dignity of the child.
 Article 40 (1) provides that the 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 a society.
 Article 40(2)(a) provides that no child shall be alleged as, be accused of, or

32
 recognized as having infringed the penal law by reason of acts or omissions that were
not prohibited by national or international law at the time they were committed.
 It clearly shows that the child can be accused of or recognised of as having infringed
the penal law. One important question arises here what would be the designation of a
child who has been accused of or recognised as having infringed the penal law.
Certainly he will be called as an accused child. Therefore, the Convention does not
wipe out the stigma of as attached with the term juvenile. It is submitted that the
accusation itself is a stigma in terms of Convention.
 Article 40(2)(b)(i) lays down the principle of innocence.
 Article 40(2)(b)(ii) lays down the principle of reasonable opportunity to be heard. It
provides that the charges against him or her to be informed promptly and directly
through his or her parents or legal guardians, and be provided with legal or other
appropriate assistance in the preparation and presentation of his or her defence;
 Article 40(2)(b)(iii) provides that the accused child shall have a right to have the
matter determined without delay by a competent, independent and impartial authority
or judicial body in a fair hearing according to law, in the presence of legal or other
appropriate assistance and, unless it is considered not to be in the best interest of the
child, in particular, taking into account his or her age or situation, his or her parents or
legal guardians;
 Article 40(2)(b)(iv) prohibits testimonial compulsion. According to it, no accused
child shall be compelled to become a witness against himself or herself.
 Article 40(2)(b)(v) provides right to an convicted accused child to go for appeal or
revision against the order of the subordinate authority before the higher competent
authority.
 Article 40(2)(b)(vii) provides the child right to privacy at all stages of the
proceedings.
 Article 40(3) mandates the States Parties to seek to promote the establishment of laws,
procedures, authorities and institutions specifically applicable to children alleged as,
accused of, or recognised as having infringed the penal laws.
 Article 40(3)(a) mandates the State to fix the minimum age of criminal responsibility
below which children shall be presumed not to have the capacity to infringe the penal
law.
 Article 40(3)(b) provides that whenever appropriate and desirable, measures for

33
 dealing with such children without resorting to judicial proceedings, providing that
human rights and legal safeguards are fully respected.
 Article 40(4) provides that the variety of dispositions, such as care, guidance and
supervision orders, counselling, probation, foster care, education and vocational
training programmes and other alternatives to institutional care shall be available to
ensure that children are dealt with in a manner appropriate to their well-being and
proportionate both to their circumstances and the offence.
2.9 The U N Rules for The Protection of the Juveniles Deprived of there
Liberty (1990):

 Rule 1 provides that the imprisonment should be used as a last resort. In other words,
sentence of imprisonment can be awarded to the juvenile delinquent.
 Rule 2 provides that in depriving the liberty of juvenile delinquents, the rules as set
forth in these Rules and Beijing Rules should be followed.
 Rule 11(a) provides that a juvenile is a person who is under the age of 18. It provides
further that deprivation of liberty should be as per law.
 Rule 11(b) defines the deprivation of liberty. It means any form of detention or
imprisonment or the placement of a person in a public or private custodial setting,
from which this person is not permitted to leave at will, by order of any judicial,
administrative or other public authority.
 Rule 12 provides that juveniles detained in facilities should be guaranteed the benefit
of meaningful activities and programmes which would serve to promote and sustain
their health and self-respect, to foster their sense of responsibility and encourage those
attitudes and skills that will assist them in developing their potential as members of
society.
 Rule 14 provides that the juveniles should be provided right to challenge the legality
of the execution of the detention.
Juveniles under arrest or waiting trial

 Rule 17 lays down the principles of fair trial to an accused person. Itsays that the
juveniles who are detained under arrest or awaiting trial are presumed to be innocent
till their guilt is proved beyond reasonable doubt.
 Rule 18(a) also lays down the principle of fair trial. It provides that the juveniles
should have the right of legal counsel and be enabled to apply for free legal aid, where

34
 such aid is available, and to communicate regularly with their legal advisers. Privacy
and confidentiality shall be ensured for such communications.
The Management of Juvenile Facilities

 Rule 19 provides the provisions in the direction of removal of stigma attached with
juvenile delinquency. It says that the records of the juvenile delinquent should be
placed confidential and third party should be allowed to have access as per the
procedure made therein. After discharge of the juvenile delinquent from the
institutions, the record should be destroyed at the appropriate time.
It is submitted that this provision is against the aim and spirit of justice to juveniles. This
law has no scientific basis because a rapist child or murderer child will have the stigma even
if they are designated with some other terminology. Moreover, this law is not based on the
opinion of the juvenile delinquent. This is based on the adult opinion which is not justified on
the ground that it creates invisibility in the juvenile justice system resulting into lack of
transparency and arbitrariness in the administration of justice.

 Rule 21 provides for the method and manner of keeping and maintaining the records
of the juvenile in the institutions.
 Rule 22 provides that the parents, guardians or close relative of the juvenile should be
informed without delay about admission, place, transfer and release.
 Rule 23 provides that as soon as possible after reception, full reports and relevant
information on the personal situation and circumstances of each juvenile should be
prepared and reported to the administration.
This provision is similar to the provisions in the municipal law regarding information given
to the magistrate by the police after arrest of any person.

 Rule 30 provides for open detention facilities for juveniles.

Physical environment and accommodation

 Rule 31 provides that juveniles deprived of their liberty have the right to facilities and
services that meet all the requirements of health and human dignity.
 Rule 37 provides that every detention facility shall ensure that every juvenile receives
food that is suitably prepared and presented at normal meal times and of a quality and
quantity to satisfy the standards of dietetics, hygiene and health.
Education, vocational training and work

35
 Rule 38 provides that every juvenile of compulsory school age has the right to
education suited to his or her needs and abilities and designed to prepare him or her
for return to society.
 Rule 39 provides that the juveniles above compulsory school age who wish to
continue their education should be permitted and encouraged to do so, and every
effort should be made to provide them with access to appropriate educational
programmes.
 Rule 41 provides that every detention facility should provide access to a library that is
adequately stocked with both instructional and recreational books and periodicals
suitable for the juveniles, who should be encouraged and enabled to make full use of
it.
 Rule 42 provides that every juvenile should have the right to receive vocational
training in occupations likely to prepare him or her for future employment.
 Rule 44 provides that all protective national and international standards applicable to
child labour and young workers should apply to juveniles deprived of their liberty.
 Rule 46 provides that every juvenile who performs work should have the right to an
equitable remuneration.
 Rule 49 says that every juvenile shall receive adequate medical care, both preventive
and remedial, including dental, ophthalmological and mental health care, care, as well
as pharmaceutical products and special diets as medically indicated.
 Rule 50 gives every juvenile a right to be examined by a physician immediately upon
admission to a detention facility, for the purpose of recording any evidence of prior
ill-treatment and identifying any physical or mental condition requiring medical
attention.
 Rule 59 lays down the principles of social reintegration of juveniles into community
after his or her discharge from the detention centre. For that it provides that every
juvenile should have the opportunity of adequate communication with the outside
world, which is an integral part of the right to fair and humane treatment and is
essential to the preparation of juveniles for their return to society.
 Rule 60 provides provisions similar to parole and licence while undergoing
institutional treatment. It says that every juvenile should have the right to receive
regular and frequent visits, in principle once a week and not less than once a month, in
circumstances that respect the need of the juvenile for privacy, contact and

36
 unrestricted communication with the family and the defence counsel.
 Rule 61 lays down the provision that every juvenile should have the right to
communicate in writing or by telephone at least twice a week with the person of his or
her choice, unless legally restricted, and should be assisted as necessary in order
effectively to enjoy this right. Every juvenile should have the right to receive
correspondence.
 Rule 63 provides that recourse to instruments of restraint and to force for any purpose
should be prohibited.
 Rule 64 provides exception to the above Rule 63. It says that instruments of restraint
and force can only be used in exceptional cases, where all other control methods have
been exhausted and failed, and only as explicitly authorized and specified by law and
regulation.
Disciplinary Procedures

 Rule 67 prohibits cruel, inhuman or degrading treatment in disciplinary matter. It

prohibits corporal punishment, placement in a dark cell, closed or solitary
confinement or any other punishment that may compromise the physical or mental
health of the juvenile concerned.
 Rule 68 provides guidelines in the matter of legislation or regulations by the
competent administrative authority. It lays down that the authority should establish
norms taking full account of the fundamental characteristics, needs and rights of
juveniles.
 Rule 72 provides that the competent authority should appoint qualified inspectors not
belonging to the administration of the facility to conduct inspections on a regular
basis.
 Rule 75 provides right to every juvenile to have the opportunity of making requests or
complaints to the director of the detention facility and to his or her authorized
representative.
 Rule 76 provides right to every juvenile to make a request or complaint, without
censorship as to substance, to the central administration, the judicial authority or other
proper authorities through approved channels, and to be informed of the response
without delay.
 Rule 77 suggests for establishing an independent office (ombudsman) to receive and
investigate complaints made by juveniles deprived of their liberty and to assist in the

37
 achievement of equitable settlements.
 Rule 78 provides right to every juvenile to request assistance from family members,
legal counselors, humanitarian groups or others where possible, in order to make a
complaint.
 Rule 80 suggests that competent authorities should provide or ensure services to assist
juveniles in re-establishing themselves in society and to lessen prejudice against such
juveniles.
 Rule 81 provides that the personnel should be qualified and include a sufficient
number of specialists such as educators, vocational instructors, counselors, social
workers, psychiatrists and psychologists.
 Rule 82 provides that the administration should provide for the careful selection and
recruitment of every grade and type of personnel. since the proper management of
detention facilities depends on their integrity, humanity, ability and professional
capacity to deal with juveniles, as well as personal suitability for the work.
 Rule 87(b) suggests that all personnel should rigorously oppose and combat any act of
corruption, reporting it without delay to the competent authorities.

2.10 The U N Guidelines for Prevention of Juvenile Delinquency, Riyadh

Guideline10:

 Guideline 56 of the Riyadh Guidelines talks about status offences and status
offenders. It says that in order to prevent further stigmatization, victimization and
criminalization of young persons, legislation should be enacted to ensure that any
conduct not considered an offence or not penalized if committed by an adult is not
considered an offence and not penalized if committed by a young person.

10
Adopted by General Assembly Resolution 45/112, dated 14.12.1990 cited in Law Relating to Juvenile Justice
in India by R.N. Choudhry (Orient Publishing Company, 3rd edn.,2009) , p. 1225- 1234

38
 Indian perspective
3. ORIGIN OF JUVENILE JUSTICE IN INDIA:-

Until the middle of the nineteenth century, the sufferings of children drew little social
attention. This was mainly because there was no social recognition given to the person of
the child, apart from the family or the community to which s/he belonged. Under such a
dispensation children were expected to participate in all family activities such as trade,
business or vocation commensurate their physical and mental abilities. Children were not
exempt even from the harsh burden flowing from the kinship and caste bonds. For deviant
and mischievous children, repressive methods of control were often preferred. However,
despite such hardships and denial the child appeared to be better integrated within the
family and the society. That is why the incidents of child vagrancy and deviations were
less known. With the introduction of the capitalist mode of production leading to
i ndustrialization and urbanization, the situation changed significantly for the children. The
weakening of the family bonds let not only to the disintegration of the children but also to
the State intervention in matters of child upbringing. State intervention was both direct and
subtle. Direct intervention resulted from measures l ike the Apprentices Act, 1850 that
conferred power to the Courts to bind over poor and destitute children to work as
apprentices in industries and establishments in which voluntary child labour was not easily
forthcoming. The Act was in force in most of the States, especially in those States where
Children Acts were in operation. The Act has since been repealed by the Apprentices Act,
1961.

3.1 Early Forms of Juvenile Justice

The anomie, anonymity and over crowding of the newly established urban centres of the
nineteenth century must have provided real opportunities to a section of disintegrated to
indulge in vagrancy and other deviant activities. Since the early childhood criminal law
was harsh and permitted no exception from liability, for children above twelve years
(children below seven years and below twelve years were totally and partially exempted
from the liability under the Sections 82 and 83 of the Penal Code), the trials and
punishments of the child offenders must be abhorring to the newly emerging notions of
justice. That appears to be the main reason why the Indian Jail Committee, 1919-1920,
strongly advocated a different kind of dealing with the child offenders. Even before the

39
Jail Committee, West Bengal and United Provinces had constituted Special Magistrates
Courts for trying the cases of child offenders. Separate detention centres were also in
vogue in certain regions within the country in term of Reformatory Schools Act, 1876.
However, the idea of comprehensive exclusive system of justice for children gained
currency only after 1920. The Indian Jail Committee categorically stated that the child
offenders should be given an altogether a different treatment from the one that is being
given to an adult. It also held that the imprisonment of the child offenders should be
prohibited and recommended provision of Remand Homes and Juvenile Courts.

Thus the main focus of the early form of Juvenile Justice was the child in conflict
with law. With the introduction of the idea of Juvenile Justice, yet another kind of State
intervention emerged, which wider care and protection potential but had also led to great
stigmatization. It may be interesting to note here, that unlike America and some European
countries, Juvenile Justice intervention was initiated in India without child labour
exclusion, child abuse prohibition and child education measures. That is why, Juvenile
Justice or juvenile delinquency regime happens to be more dominant and stronger, in term
of legislative and administrative set-up (between 1920 and 1985, as many as 14-Children
Acts were enacted in various States and Union Territories), than in the child labour or
child education regimes. By 1986, all States except Nagaland, had enacted their Children
Acts, however, it was soon realized that there was a lack of uniformity in the provisions
thereof. No minimum standards for basic needs, working conditions, therapeutic services,
etc., were being maintained.

In this context, two Acts, namely the Central Children Act, 1960 (CCA) and the
Juvenile Justice Act, 1986(JJA), deserve special mention; the former because it enunciates
the basic philosophy of care, protection, maintenance, welfare, training, education and
rehabilitation of the neglected and delinquent children and the latter for bringing about
uniform Juvenile Justice System in the country by consolidating all related legislations in
the country. The Juvenile Justice Act should be proclaimed as the first all-India child
welfare enactment seeking to promote 'the best interests of child.

4. DEVELOPMENT OF JUVENILE JUSTICE SYSTEM IN INDIA:-

The History of the Juvenile Justice System in India has been divided here into five
periods by reference to legislative or other landmark developments, namely,

40
 4.1 Prior to 1773;

4.2 1773-1850;

4.3 1850-1918;

4.4 1919-50; and

4.5 Post—1950.

The year 1773 marked a historical break in the Indian legal system as the Regulating Act of
1773 granted to the East India Company the powers of making laws and enforcing them
on a very restricted scale.

4.1 Prior to 1773

At that time personal laws of Hindus and Muslims were followed rigorously. Religious
guiding principles had great impact on the life of the people. The law governing the children
were vague and there was hardly any special law for separate treatment to the juvenile which
largely depend on the ruler. However, personal laws of both the Hindus and Muslims had
provisions for the maintenance of children. The primary responsibility to bring up children
was that of parents and family.11 Charity for the care of poor and destitute has been noble
cause among the hindu and muslim laws and indirectly provided care of children in case of
failure of family to do so.12

Muslim law makes it compulsory for a person who finds an abandoned child to take its
charge, if he has reason to believe that he may otherwise perish. It is generally mentioned
that neither set of laws had any reference to juvenile delinquents.13However, a cursory
study of the 'Manusmriti' and 'The Hedaya' show differential punishment to children for
certain offences. For example, under the Hindu law, a child throwing filth on a public road

11
See, Mayne’s Treatise on Hindu Law and Usage, N. Chandrasekhara Aiyer (ed.), 11th ed., 1953, p. 285.
C. Hamiltan (tr.), The Hedaya, or Guide: A Commentary on the Mussulman Law, 2nd ed., 1870, p. 138, 146
12
The principle of Dharma under Hindu law made it incumbent on the king to provide to each one in the
society an opportunity to realize his ultimate goal of human existence. R. Lingat, The Classical Law of India,
translated from French with additions by I. D. M. Derrett, 1973, p. 39. Zakat, i.e., contribution of a portion of
property assigned to the use of the poor is compulsory under specified circumstances under Muslim Law. Id.,
The Hedaya
13
S. Keshwar, ‘Juvenile Injustice’, The Lawyers, June 1987, p. 4; S. K. Bhattacharya, ‘Juvenile
Delinquency—Problems and Perspective’, 61 Social Defence, 19 July 1980, p.18; A. D. Attar, Juvenile
Delinquency: A Comparative Study, 1964, p. 54; United Nations, Comparative Survey on juvenile
Delinquency, Part IV, Asia and the Far East; A Report on Juvenile Delinquency in India, Bureau of Delinquency
Statistics and Research, Children’s Aid Society, Bombay, 1956, p. 10.

41
was not liable for punishment but only to admonition and made to clean it, while an adult in
similar circumstances was to pay a fine and made to clean the filth. Hindu ethical codes
find mention as to the type of treatment which should be meted out to the children as under.

A parent should not administer any punishment for any offence to a child who is under
five years of age. Children of such tender age should be nursed and educated with love and
affection only. After the age of five, punishment may be given in some suitable form, such as
physical chastisement or rebuke by parents.

Towards the later half of childhood, however, punishment should be gradually

withdrawn and replaced by advice. From the age of sixteen upward, sons and daughters
should be treated as friends by parent.14 But this advice of the Hindu ethical code reflects
for the treatment of children in different age categories the concern only in ethics it did not
mean that they were actually treated in that way for their legal violations. Rather they were
treated as adults when brought before legal institution for adjudication on legal violations.
Under Muslim law a consented sex with a adult woman by a young boy was not
punishable.15 This was based on the principle of lesser culpably of children for their
criminal activity.

The purpose of punishment is correction ‘and disposition of men with respect of it are
different, some being sufficiently corrected by reprimands, whilst others more obstinate,
require confinement, and even blows. Under the Hindu law, the motive, the time and place
of offence, the ability of the criminal to suffer and the nature of crime, and its cause the
punishment to fall on those who deserve it. Under the Hindu law the King was under the
obligation, as was the case with the equity courts in England, to take care of a child’s
property till he came of age and became capable of taking care. This all indicates that
children were treated as separate entities from adults, who needed more care for their
survival. They were not fully responsible for their acts.

4.2 From 1773 to 1850

During this period of 1773 to 1850, East India Company emerged as a governing body
from a trading company. This period saw the introduction of the first legislation relating to

14
U.N. Comparative Survey on Juvenile Delinquency p.130
15
The Hedaya, p. 187.

42
children. This period also witnessed the change in prison concept as a place for keeping
convicts, from places for transporting convicts to places for keeping convicts.16

The report of the committee appointed by Lord William Bentinck, on the subject of jail
discipline, 17was submitted in 1839. It fearlessly exposed the evils of the jail management
existing then. 18 India, as a British colony, did not remain unaffected from ongoing
reformation movement in the West. The exploitation eased out the indigenous rural economy
and forced many class of people to live in slums in the suburbs. It also increased destitution
and delinquency among their children. 19 Issue of the welfare of children came to fore in
1787. Krishna Chandra Ghoshal and Iai Narain Ghoshal pleaded with Lord Cornwallis, the
then Governor-General in India, for establishing a “home’ for destitute children in the
vicinity of Calcutta. The first ‘ragged school’ for orphans and vagrant children in India was
established in 1843 in Bombay through the exertions of an Englishman, Dr Buist, which
is now known as the David Sasoon Industrial School. The school was established with
the objectives

(i) the reformation of juvenile offenders arrested by the police, and

(ii) the encouragement of apprenticeship amongst the working classes.

All these developments together prepared the ground for the introduction of thE
Apprentices Act 1850

. 4.3 From 1850 to 1919

This period saw many legislations being enacted covering a wide range of matters
concerning children. The Female Infanticide Act, 1870, and The Vaccination Act, 1880

16
Till 1818 references to prisons in the archival material related to either the expenses of transporting
convicts or for repairing the jails. Capt. Puton, executive officer, reported the state of the jail and several other
buildings attached to it and the estimates of repairing it. Cons. No. 2 and 3, date of letter 30 July 1803,
What bones No. 4 August 1803, Law Index 1801 -1810, p. 54; Report on Calcutta Iail, Cons. No. 2 and 3, 15
December 1809, Id., p. 167. For the recommendation for the erection of a prison for convicts, see, Marine
Board reply for conveyance of convicts, Law Proceedings, Cons. No. 3, 2 October 1818.
17
Legislative, Cons. No. 1, 21 December 1836 4/8. Later T. B. Macaulay was co-opted to be its member.
Legislative, Cons. No. 33 to 35, 28 December 1836 4/8.
18
Legislative, Cons. Nos 5, 6, 7, B. S., 29 January 1838 and Cons. Nos 43 and 46, 8 October 1838
19
G. Chatterjee, ‘The Reformation of Neglected and Delinquent Children in British Raj: An Historical Overview.l
p. 2, Material for National Workshop on ‘Neglected Children; by Prayas, Shramik Vidyapeeth, and Delhi School
of Social Work, Delhi, 19-20 June 1992 (hereafter Prayas Workshop)

43
sought to secure life and health of infants; The Guardianship and Wards Act, 1890 made
provisions for their continued care and protection. The Factory Act, 1881 took care of
child labour and the need for special provisions for them was recognized. This act was
enacted for better enabling children, and especially orphans and poor children brought up by
public charity to learn trade craft and employment by which when they come to full age, they
may gain livelihood20. The first legislation concerning came in 1850 when the Apprentices
Act was passed. This Act infact was not primarily concerned with the delinquent behaviour
of children but laid down, as the name of the Act itself implies, the provisions relating to the
relationship between employers and young persons learning a trade from them as
apprentices. 21 The Act provides that the father or the guardian could bind a child between the
ages of 10 and 18 years up to the age of 21 years. Magistrates were authorized to act as
guardian in respect of a destitute child or any child convicted of vagrancy or the
commission of a petty offence and could bind him as an apprentice to learn a trade, craft
or employment.22 This Act mooted the concept of neglected children for the first time for
legislative purposes and provided for a community alternative to imprisonment of delinquent
children for minor offences. The Apprentices Act 1850 was the harbinger of many other
legislations to follow, laying down special provisions in relation to children. The Indian
Penal Code,1860 (IPC) declared children below 7 years of age as doli incapax, while the
presumption of Mens rea could be rebutted in case of children in the 7 -12 age group.

The Reformatory Schools Act, 1897 is a landmark in juvenile legislation in India. The
considerations which lead to separate correctional institutions for young offenders in the
U.S.A. and England had their impact in India as well. The Act provided that young
offenders up to 15 years of age found guilty of offences punishable with imprisonment or
transportation were not to be sent to ordinary prisons but to reformative schools. The Act,
even today, acts as the basic law in those areas where no Children's Acts or any other
special laws dealing with juvenile offenders have been enacted.

Prison reports in the meanwhile23continued to point towards the need for change in
policy and administration. Since the refugees, reformatories and other correctional

20
Original Legislative Consultations (Manuscript) Legislative Nos 8, 9, 8 January 1848
21
The Act was repeated by Apprentice Act, 1961, which does not contain provision relating to destitute or
delinquent children. Children Acts passed in the meantime have taken care of these problems.
22
Ibid.
23
Bombay Governments Resolution on the Report on the Jails of that Presidency for 1861. Home
Department, Judl. Con. No. 7—9(a), 12 January 1863. See also, Report on Criminal justice in the

44
institutions concentrated by the 1850's institutionalization was considered as non fruitful.
Though only 10 percent of the total population was in the 15-20 age, they made up almost
a quarter of the criminal population. Those under 15 years made up 6.5 per cent of the
criminal population. Juvenile delinquency was progressing from petty delinquencies to more
and more heinous crimes. Prisons and other similar institutions failed to control crime and
the rapid increase in juvenile delinquency paved way for alternative measures for children.
Noticing the high rate of recommittals and the remarkable increase in the number of juvenile
offenders, the government asked for further explanation, as also the names of jails having
separate provisions for juveniles. The Whipping Act, 1864 followed as a consequence. It
was hoped that the Whipping Act would prove to be of eminent service in thinning the
juvenile population of the jails.

The Indian Jail Committee was constituted in 1864 immediately after the passing of the
Whipping Act. The Committee was to intimate that the Act was not to supersede the
necessity or the larger measures of prison reform.24 The Governor General, amending the
little progress made since the 1838 report towards either improvement in the conditions of
prisoners or the prevention of crime, said:

“The loss of life amongst all classes of those confined in jail continues, year
after year, to be very great, amounting at present to 7 per cent .... compared with the
mortality in the jails of England, which is less than one percent .... and it seems on
this ground alone that the inquiry is forced upon us, as to what steps should be taken
to reduce, the great mortality which far exceeds that amongst other classes of the
population”.

Juvenile delinquents and reformatories were such issues which required urgent
legislative action. Some members of the Indian Jail Committee opposed education through
reformatories in India, apprehending a great danger of unworthy parents urging their
children to commit crimes to obtain government education.25 At the same time the
Committee was clear that:

Bombay Presidency for 1857, Home Department, Judl. 7 (6 August 1858); Annual Report on Criminal and Civil
justice in the Central Provinces for 1863; Id., p. 8A, 1 November 1864; Report on Administration of Justice,
Oudh Provinces for 1863, ld., pp. 37-40 (A), 6 October 1864; Annual Report on jails for 1861-62 in N. W.
Province, Id., p.52(13) (25) July 1864).
24
Minute by the Governor General, p. 3, dated 3 March 1864.
25
Indian Jail Committee Report, 1864, p. 20

45
 “It is of highest importance that juvenile offenders should not be exposed to
contamination by association, within our Jails, with more hardened and practiced
culprits.... There are many reasons...for thinking that in absolute isolation from
adults, lies the only prospect of preserving the young from corruption during their
residence in jail. We are therefore unanimous in recommending that in every Jail
means should be provided for separating juvenile offenders from adults, and that it
is, moreover, highly desirable, wherever such an arrangement is practicable, that
separate sleeping accommodation should be provided for each juvenile prison
inmate.”26

The segregation of juveniles from adult offenders was secured within prisons by
modifications in the prison codes of Madras, Bombay, North Western Provinces, and
Bengal.27 The idea of a reformatory school for delinquent children was in the air for long in
view of the bad prison conditions and the felt need for segregating delinquent children
from adult offenders. The immediate impetus for enacting The Reformatory Schools Act,
1876 was provided by the Government of Bengal’s contemplation. In I874, Sir Richard
Temple, the then Lt. Governor of Bengal, had observed that imprisoned juvenile offenders
were actually growing up in vice and ignorance.28 It was felt desirable that they should be
subjected to reformatory and industrial training ‘instead of being brought in contact with
older offenders in jail or being left to beg or live in streets. The proposed Bill was
intended to apply to delinquent juveniles and other non-delinquent juveniles growing up
in vagrancy and prone to inculcating criminal habits.

The Code of Criminal Procedure of 1898 contained relevant provisions29 regarding the
jurisdiction of criminal courts and custody of juvenile offenders The present position
under the Code of Criminal Procedure, 1973 regarding jurisdiction is as follows:

“Any offence not punishable with death or imprisonment for life committed by any
person who at the date when he appears or is brought before the court is under the
age of 16 years, may be tried by the Court of Chief Judicial Magistrate, or by
any Court specially empowered under the Children Act, 1960 or any other law for

26
Indian Jail Committee 1919-20, 30 Cmnd 1303, 1921, p. 202
27
Report of the Indian Jail Committee 1889, April 1889, p. 20
28
Legislative Department, A Proceeding, March 1876, nos 23-4, quoted in G. Chatterjee, see, supra note 6 on
p. 5.
29
Sections 29B and 399

46
 the time being in force providing for the treatment, training and rehabilitation of
youthful offenders”30

There was initially some doubt and judicial controversy as to whether Section 27 of
the Code overrides the provisions in the Children Acts prohibiting the trial of juveniles in
any court except children's courts. The issue has been set to rest by the Supreme Court in
Raghbir v. State of Haryana 31where it was held that The Haryana Children Act, 1974 was
to prevail over Section 27 of the Code and even a child accused of an offence punishable
with death or life imprisonment could not be tried by ordinary criminal courts. Reformatory
Schools Act, 1876 was repealed by Reformatory Schools Act, 1897 empowered the local
government to effect the reformation in a more cohesive manner. Under this Act the
Courts were empowered to order the detention of a youthful offender under fifteen years of
age, found guilty of committing an offence punishable with transportation or
imprisonment, to Reformatory School instead of sentencing them.

The Code of Criminal Procedure 1898 which came a year later authorized magistrates to
send juvenile offenders to reformatories instead of prisons in the specified circumstances
along with provisions relating to grant of probation and trial of children by the juvenile
court. Children of members of criminal tribes were also given special attention under the
Criminal Tribes (Amendments) Act,1897. This Act provided for the establishment of
industrial, agricultural, and reformatory schools for children of members of the criminal
tribes who were in the age group of 4-18 years. The local governments were empowered by
this Act to remove such children from criminal tribal settlements and place them in a
reformatory.

The report of the Indian Jails Committee, 1889, reiterated the need for segregation
and classification of offenders according to their age and duration of sentence. While
emphasizing that younger juveniles should never be punished with curtailment of diet, it
recommended daily exercise and compulsory education for them. It also emphasized that
habitual juvenile offenders should not be sent to reformatories as they take with them
32
to the schools the worst traditions and practices of the convict prisons.

30
Criminal Procedure Code, 1973, Section 27.
31
(1981) 4 SCC 210.
32
Report of the Indian jail Committee, 1889, April 1889, p. 71

47
 In view of the expertise required of a magistrate to select appropriate cases for sending to
reformatory schools, certain modifications in judicial procedure were introduced by some
states in this period. The Government of the United Provinces passed a resolution for the
appointment, in every district, of a special magistrate to try children’s cases in order to
secure more intelligent treatment for them.33

The Bengal Government constituted a juvenile court though children charged jointly
with another person above 15 years of age were not to be dealt with by this court.
Reformatory Schools were established at many places in India- Madras, Burma, Bihar,
Orissa, the Central Provinces, Bombay, and Delhi, but most of them were not considered to
be appropriate.

4.4 From 1919-1950

One of the most significant developments in the history of the juvenile justice system
in India is the Report of Indian Jail Committee 1919-20. It undertook the most
comprehensive exercise for the overhauling of the entire prison system after visiting
numerous jails and reformatory schools in the country and abroad. Preparation for a Children
Act were underway in Madras since 1917 and it passed the legislation in June 1920.34

The Jail Committee 1919-20 noted that prison administration, since 1889, despite
advances in the matters of administration, health, food, labour, etc., little attention was paid
to the possibility of moral or intellectual improvement and reformation of prisoners. It
pointed out that ‘primary duty of keeping people out of prison, if it can possibly be done,
has to be recognized by all including courts.

Children with defective intellect should be sent to institutions specially provided for
them. For young offenders above the age of 15 years, it recommended Borstal Schools. The
committee emphasized the need for aftercare as well as maintenance of records. The
committee further recommended the constitution of children’s courts with procedures ‘as
informal and elastic as possible. Taking note of the practical difficulty in creating
children’s courts in view of the small number of children committing crimes and to make
33
Resolution No. 2985, dated 2 August 1913, cited in Report of the Indian Jail Committee, 1919—20, 30 Cmnd
1303, 1921, p. 197
34
For Statement of Objects and Reasons, see Fort St.-George Gazette. Part IV, 18 December 1917, p. 1156-8.
For Report of Select Committee, see ld., 26 December 1919, p. 1213-16. For proceedings in Council, see
ld.,23 December 1919, p. 1367, and Id., 8 June 1920, p. 690-704

48
magistrate realize that he was dealing with a special case requiring different view point. It
suggested that the regular magistrates should sit at special hours, and if possible, in a
separate room to hear charges against juvenile offenders. Madras (now Tamil Nadu) had
already passed the first Children Act on 20 June 1920. Its provisions relating to age limit of
childhood, prohibition against imprisonment of child offenders, remand homes, certified
schools, and non-criminal children in bad surroundings were recommended for adoption
by other states. Children Acts in Bengal and Bombay were enacted in quick succession in
l922 and 1924 respectively. Pursuant to the recommendations of the Indian Jail Committee,
1919-20, the Madras Children Act, 1920 was adopted in the Andhra area.

Pondicherry promulgated a decree in 1928 instituting special jurisdiction and the

probation system for the European infants and those assimilated in the French colonies
(other than Anlilles and la Reamion), in the protectorates, and mandated territories under
the ministry of colonies. 35 More states followed suit in the years to follow: namely, The
Delhi Children Act, 1941, The Mysore Children Act, 1943, The Travancore Children Act,
1945, The Cochin Children Act, 1946, and The East-Punjab Children Act, 1949.

4.5 Post-1950

Various official and non-official developments have contributed to the development of

juvenile justice since 1950. The following section highlights some processes, including
legal, which have contributed to the development of care and welfare measures for children
in this period.

The Central Children Act, 1960 was intended to act as a model legislation for the states.
The states of Assam, Rajasthan, Jammu and Kashmir, Haryana and Madhya Pradesh have
passed Children Acts which are modeled on the more or less same pattern as The central
Children Act, 1960 which was later amended in 1978 whereby the definition of 'Neglected
child' has been widened by including the cases where the parents are not able to exercise
proper care and control over the child and social workers were made available to the
Juvenile Courts under the amended Act.

35
Order No. 992, dated 30 November 1928

49
 In a later case Sheela Barse v. Union of India,36 the Supreme Court has emphasized
that a central act is needed for ensuring social, economic and psychological
rehabilitation of the children who are either accused of offences or are abandoned or
destitute or lost. It further stressed the need not only of having a legislation, but to enforce it
with all earnestness and each please like financial constraints would not serve our
purpose in building up of powerful human resources who are to take the reins of nation
in its forward march. The Supreme Court questioned the non enforcement of the Children
Acts, it directed the states to ensure that the Act is brought into force and implemented in
accordance with the provisions contained therein. In this context it is also important to
quote Article 30 of the Constitution as amended by the amendment Act of 197637 which
makes provision for state to direct its policy towards securing that the 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 moral and
material abandonment. The Children Acts, which have been enacted prior to this
amendment are to be considered for further improvement and for achieving this a central
legislation applicable to all the states need to be enacted.

The lacunae and shortcomings which came to be identified in the Act of 1960 were
sought to be cured by the Amendment in the Act so the Children Amendment Act, 1918
was passed which made some changes as under :

(a) The definition of the term 'neglected child' was widened by including the cases
where the parents are not able to exercise proper care and control over the child.
Previously the definition referred to those parents only who were unfit to exercise
care and control over the children. It must, however, be said that though the
provision is sound in theoretical terms, there may be practical difficulties in the
implementation of this policy having regard to the extreme poverty among large
sections of the country's population. Probably there may be millions of children who
may need the benefits of this provision.

(b) There were two kinds of authorities i.e. juvenile court and child welfare boards,
to deal with delinquent and neglected children respectively under the Act of 1960.

36
AIR 1986 S.C. 1175.
37
Article 38 (f), Constitution of India, 1950 provides “ that children are given opportunities and facilities to
develop in a healthy manner and in condition of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment,”.

50
 Now sometimes delinquency may be nothing but the consequence of parents'
negligence and a 'delinquent' child in such a case must be sent to the welfare board
rather than to the juvenile court. Such a course was not permissible under the Act of
1960. The Amending Act removed this difficulty. Now it was possible to achieve
some mobility between the two agencies. A child could now be sent from the juvenile
court to the welfare board and vice versa.

(c) During the pendency of any enquiry under the Act, the child was to be kept in
an observation home established under Section 11 of the Act, 1960. The problem
with these observation homes is that they are of an institutional kind i.e. quite
official and impersonal in their approach and environment. Beside the observation
home, a child could not be sent to any other place of safety which may be better in
terms of individual attention and personal warmth.

(d) The children's courts constituted under Section 5 of the Act of 1960 had only
magistrates without any social worker; a deficiency in view of the correctional
philosophy of the court. This was taken care of by the amending Act.

The other states which enacted their Children Acts following the Children Act, 1960
had provisions similar to it. The stage for bringing about uniformity in the law relating to
juvenile justice all over the country was set with the adoption by the UN General Assembly
of the Beijing Rules in 1985, recommendation for a uniform law in the 69 th Report of the
Committee on Subordinate Legislation tabled in Parliament on 12 May 1986 and the
Supreme Court’s suggestion in 1986 for initiation of parliamentary legislation on the subject

The Juvenile Justice Act, 1986 was passed and brought it into force on 2 October 1987
throughout the whole of India except the state of Jammu and Kashmir. It virtually brought
about a uniform system of juvenile justice in the whole country.38 In addition, the JJA
provided for prohibition of confinement of children in police lock-up or jail, separate
institutions for the processing, treatment, and rehabilitation of the neglected and delinquent
children, a wide range of disposition alternatives, to family/community-based placement,

38
The provisions of the Jammu and Kashmir Children Act 1970, in force in Jammu and Kashmir, were more
or less similar in approach to the JJA.

51
and a vigorous involvement of voluntary agencies at various stages of the juvenile justice
process.

A number of the states failed to set up the basic infrastructure consisting of juvenile welfare
boards, juvenile courts, observation homes, juvenile homes, special homes and after care
homes for the children who were in the centre stage of the Act. Despite mandatory
requirements, the minimum standards for institutional care in terms of accommodation,
maintenance, education, vocational training, or rehabilitation, were not spelt out in most of
the states. There was no definite policy towards the manpower development of juvenile
justice. One enactment has been followed by another with certain changes necessitated to
remove certain unavoidable problems faced in the Administration of Justice. Enactments
have not incorporated principles of law laid down by High Courts. The gap between
rhetoric and reality further widened with the ratification of the Convention on the Rights of
the Child.39 A number of national consultations were held concerning juvenile justice
administration during 1999-2000 to improve the existing unsatisfactory state of affairs. 40

The Juvenile Justice (Care and Protection of Children) Act, 2000 is designed for
the care, protection, treatment, development and rehabilitation of delinquent juvenile and
for the adjudication of certain matters relating to and disposition of delinquent juveniles.
The Juvenile Justice (Care and Protection of Children) Act, 2000 which replaced J. J. Act,
1986 provides for a uniform legal framework of justice across the country with a view to
ensure that no child in any circumstance is lodged in jail or lock up. This act covered
children upto 18 years. The Act took care for providing machinery and infrastructure
required for care protection development and rehabilitation of children. There is a fine
distinction between the two bodies to deal with the children. Juvenile Justice Boards deal
with juvenile in conflict with law and Child Welfare Committees are constituted for the
care and protection and treatment of child in need of care and protection. The J.J. Act of

39
‘Current Issues in Juvenile Justice Administration; paper presented at the National Consultation on
Juvenile Justice held at the National Law School of India University, Bangalore during 11—13 February 1999.
40
Namely, National Consultations Meet on the Juvenile Justice System and the Rights of Child held by
the National Institute of Public Cooperation and Child Development, Delhi, 20-1 January 1999;
National Consultations on Juvenile Justice, National Law School of India University, Bangalore on 11-
13 February 1999; National Seminar on juvenile Justice held by Butterflies, Delhi, 8-9 April 1999;
National Consultations on Juvenile Homes held by Prayas Institute for Juvenile Justice, Delhi, 29-30 July
1999. There were also regional consultations held in Madras, Hyderabad, and Patna.

52
2000 enables the competent authority a wide range of disposition alternative with preference
to family and community based placement.

In enacting this act the Parliament considered a progressive law in accordance

with international principles, such as United Nations Conventions on the Rights of the child
to which India became a signatory in 1992. The United Nations Rules provides for the
protection of the juveniles deprived of their liberty and all other relevant international
instruments. It is, however, widely believed that inspite of government's positive intention
to implement the Act there are considerable failures in the existing system.

The Juvenile Justice (Care and Protection of Children) Act, 200041is aimed at
achieving the following objects :-

(i) to lay down the basic principles for administering justice to a juvenile or the
child in the Bill;

(ii) to make the juvenile system meant for a juvenile or the child more appreciative
of the developmental needs in comparison to criminal justice system as applicable to
adults;

(iii) to bring the juvenile law in conformity with the United Convention on the
Rights of the Child;

(iv) to prescribe a uniform age of eighteen years for both boys and girls;

(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill
regarding juvenile or the child within a time limit of four months;

(vi) to spell out the role of the State as a facilitator rather than doer by involving
voluntary organizations and local bodies in the implementation of the proposed
legislation;

(vii) to create special justice police units with a humane approach through
sensitisation and training of police personnel ;

41
Statement of Objects and Reasons of J.J.(C & P), Act, 2000

53
 (viii) to enable increased accessibility to a juvenile or the child by
establishing Juvenile Justice Boards and Child Welfare Committees and Homes in
each district or group of districts;

(ix) to minimise the stigma and in keeping with the developmental needs of the
juvenile or the child, to separate the Bill into two parts- one for juveniles in conflict
with law and the other for the juvenile or the child in need of care and protection.

(x) to provide for effective provisions and various alternatives for rehabilitation
and social reintegration such as adoption, foster care, sponsorship and aftercare of
abandoned, destitute, neglected and delinquent juvenile and child.

Background The first proper intervention by the government of India in justice for children
was via the National Children’s Act, 1960. This act was replaced later with Juvenile Justice
Act, 1986. In 1992, India ratified the United Nations Convention on the Rights of the Child
(UNCRC). To adapt to the standards of the convention, the 1986 act was repealed and the JJ
Act, 2000 was passed. The JJ Act 2000 dealt with two categories of children viz. ‘child in
conflict with law’ and ‘child in need of care and protection’. As per JJ Act, 2000, a juvenile is
a person who is below 18 years of age. This act has a provision that a child in conflict with
law cannot be treated as an adult. If a child is convicted for any offence, he may spend a
maximum of three years in institutional care. This act empowered the Child Welfare
Committees (CWCs) to deal with child in need of care and protection. Juvenile Justice
Boards (JJB) were empowered to deal with child in conflict with law.

5. NEED FOR THE AMENDMENT OF THE JJ ACT 2000

The National Crime Records Bureau (NCRB) data shows that there has been an increase
of offences committed by juveniles, especially in the age group of 16-18. One of the
perpetrators in the Delhi gang rape of 2012 was few months short of 18 years age and he was
tried as juvenile. He was sent to reformation home for three years and was released in
December 2015. This had raised the public demand for lowering the age of juveniles under
the act. The 2000 act was also facing implementation issues particularly in cases of adoption.

54
  Salient Features of the Juvenile Justice Act 201542
The JJ Act 2015 also deals with both categories of children.

 Children in conflict with law

 It treats all the children below 18 years equally, except that those in the age group of
16-18 can be tried as adults if they commit a heinous crime.
 A child of 16-18 years age, who commits a lesser offence (a serious offence), may be
tried as an adult if he is apprehended after the age of 21 years.
 A heinous offence attracts a minimum seven years of imprisonment. A serious
offence attracts three to seven years of imprisonment and a petty offence is treated
with a three year imprisonment.
 No child can be awarded the death penalty or life imprisonment.
 It mandates setting up of Juvenile Justice Boards (JJBs) in each district with a
metropolitan magistrate and two social workers, including a woman. The JJBs will
conduct a preliminary inquiry of a crime committed by a child within a specified time
period and decides whether he should be sent to rehabilitation centre or sent to a
children’s court to be tried as an adult. The board can take the help of psychologists
and psycho-social workers and other experts to take the decision.
 A Children’s court is a special court set up under the Commissions for Protection of
Child Rights Act, 2005, or a special court under the Protection of Children from
Sexual Offences Act, 2012. In absence of such courts, a juvenile can be tried in a
sessions court that has jurisdiction to try offences under the Act.
 Children in need for care and protection
 Child Welfare Committees (CWCs) should be set up in each district with a
chairperson and four other members who have experience in dealing with children.
One of the four members must be a woman. The committee decides whether an
abandoned child should be sent to care home or put up for adoption or foster care.
 Other Salient Provisions
 The Central Adoption Resource Agency will frame rules and regulations for adoption
of orphaned children. Inter-country adoption is allowed when no Indian adoptive
parents are available within 30 days of child being declared free for adoption.

42
http://www.gktoday.in/blog/juvenile-justice-care-and-protection-of-children-act-2015/

55
  Adoptive parents should be financially and physically sound. A single or divorced
person may adopt a child. A single male may not adopt a girl child. Disabled children
will be given priority for adoption.
 Children in need of care and protection can allowed to be placed in foster care based
on the orders of the CWC. The selection of the foster family is based on the family’s
ability, intent, capacity and prior experience of taking care of children.
 Buying and selling of a child attracts imprisonment up to five years. Giving an
intoxicating or narcotic substance to a child attracts imprisonment up to seven years.
 Institutions for child-care must be registered. Corporal punishment of children in
child-care institutions is also punishable.
 Non-disclosure of identity of juvenile offenders by media.

6. VARIOUS PLANS, POLICIES AND WELFARE BOARDS:-

With the establishment of the Planning Commission in 1951, the Five Year Plans were
started and provisions for children were made under these Plans though implementation
of services and juvenile justice has not been a specific head of expenditure in the Five
Year Plans. Implementation of state as well as central Acts relating to neglected and
delinquent children has remained with the States.

The Eighth Plan recognized the ‘Girl Child’ as an important target group, demanding
attention of the government for her development and to fight against the prevailing gender
discrimination. The Ninth Plan took note of the persistent discrimination against the girl
child and aimed to eliminate all forms of discrimination and violation of the rights of
the girl child which include strict enforcement of laws against pre-natal sex selection and
the practice of female foeticide/female infanticide; child marriage; child abuse; child
labour; or child prostitution etc. It took cognizance of the increasing problems of social
maladjustments such as juvenile delinquency/vagrancy, abuse, crime, and exploitation.

6.1 National Policy for Children:-

In 1974, India declared its 'National Policy for Children' recognizing children as a
Nation’s supremely important asset and that their programmes must find a prominent place
in the national plans for the development of human resources. In 1975 a National
Children's Board under the chairmanship of the Prime Minister was constituted. The United

56
Nations declared 1 979 as the International Year of the Child (IYC). Its theme in India,
'Reaching the Deprived Child; was ‘deliberately chosen to emphasize the fact that if we are
to tackle the problems of children comprehensively in a vast country like ours with an
immense population, we should prioritize and first focus action on children of the
underprivileged and deprived sections of the society’.43

The momentum generated by the then SAARC Conference on Children in 1980

contributed to the convening of the World Summit for Children held in New York in
September 1990 declaring 1990 as the SAARC year of the Girl Child and 1991-2000 as the
decade of the Girl Child thereafter. A National Programme of Action on Children-India’
was approved by the union cabinet on 18 June 1992 as a follow-up of the World Declaration
on the Survival, Protection, and Development of Children, reaffirming India’s commitment
to achieving the goals detailed in the programme.

6.2 Establishment of Central Social Welfare Board:-

In 1953, the Central Social Welfare Board was established which was wholly
financed by government for Child care programmes and projects, such as rural Balwadis,
holiday homes, women’s homes, etc.

In 1985 the department of women and child development was set up in the ministry of
human resource development to ensure development of women and children. The Union
HRD minister had said that a National Commission for Children, consisting of seven
members with a retired Supreme Court Judge as its head, would be constituted to implement
the rights for children as enshrined in the Constitution.44However, that still continues to be in
the realm of promises

43
IYC in India, ministry of social welfare, Government of India, 1980
44
National Commission for children soon' The Hindu, 7 September 2001

57
 Chpater – 3
Juvenile Justice(care and protection of
children) Act,2000: An apprisal
1. INTRODUCTION:-
Constitution of India secured special status for children in the Indian community
since its adoption in 1950. Children figure in the chapter containing Fundamental Rights
and the Directive Principles of state policy. The Nehru Report45which contained the
principles of the Constitution of India also provided for free elementary education and
urged Parliament to make suitable laws for maintenance of health and fitness for work of
all citizens and welfare of children. The provisions are incorporated in the Constitution in
Articles 15 (3) 24, 39 (e) and (f), and 45. Article 15 (3) of the constitution permitted the state
to enact special legislation for women and children46.The constitution guaranteed the
children below 14 years of age against their employment to work in a factory or mine or
engaged in any other hazardous employment. In the light of Article 39 (e) and (f) and 45
of the Constitution an employment which interferes with the education of the child or
exposes him/her to exploitation is hazardous.47 Article 45 requires the State to endeavor to
provide for free and compulsory education for all children or to the age of 14 years.
Dr W C. Reckless, UN Expert on criminology and correctional administration
recommending progressive prison administration in India suggested giving top priority to
removal of juvenile delinquents from adult jails, adult courts and police lock-ups as well as
to the provision for juvenile courts, remand homes, probation, certified schools and after
care.48 In 1958 U.N declaration of the Rights of the Child further passed enactment of
special law for children. India passed its first central legislation, namely, the Children Act,
1960 applicable only to the Union Territories. This model was to be approved by the
states in the enactment of their respective Children Acts. Children Act, 1960 brought a
drastic change prohibiting imprisonment of children for the first time in India under any

45
Prepared by a committee with Motilal Nehru as its chairman, appointed . pursuant to the All Parties
Conference meeting in May 1928 in Bombay. See B. Shiva Bao (ed.), The Framing of Indiak Constitution
Select Documents, ` vol. I, 1966, p. 58-60
46
Anjali v State of West Bengal, AIR 1952 (SC) 825
47
See, ‘An Abstract of Professor Upendra Baxi’s Keynote Address delivered at the Seminar on Child
Labour in India, held at the Indian Social Institute, New Delhi, 14-16 November 1985.
48
Children Protection Bill 1949—53, Prevention of Juvenile Vagrancy and . Begging Bill 1952,
Children Bill 1953, Women and Children Institutions Licensing Bill 1953. Young Persons Harmful
Publication Act 1956, Children Bill 1959., See Chapter Three, Part 1.

58
circumstance. It also introduced a sex- discriminatory definition of child. It provided for two
separate bodies to deal with the delinquent and neglected children which were called
children court and child welfare board respectively. This act introduced the system of three-
tier institutions, namely, an observation home for receiving children during the pendency of
their proceedings, a children’s home for housing neglected children, and a special school for
delinquent children. All states which enacted their Children Acts following the Children Act,
1960 had provisions similar to it. Statement of Objects and Reasons, The Children
(Amendment) Bill 1978 struck down provision prohibiting a lawyer in juvenile court
proceedings. Due to certain difficulties faced over the years in the functioning of the
Children Courts, Children Amendment Act, 1978 was passed which permitted lawyers in a
children court and made provisions for inter-transfer of children between board and
children court except Nagaland, Orissa, Sikkim, and Tripura, all states enacted their
Children Acts and in the International Year of child. However, these acts were not in
conformity with the Central Act. Karnataka and Andhra Pradesh, however, amended the
definition of child on the lines of the Central Children Act for want of a uniformity in
the Children Acts. Children continued to be subjected to differential treatment originating
from the varying conceptions of child and childhood. The Constitutional guarantee of Equal
protection of the law became a casualty of the legislative autonomy of the states.
The age below which a person was considered to be a child differed at least in six
states. West Bengal and Gujarat had prescribed 18 years for both girls and boys. In
Maharashtra, Punjab, and Uttar Pradesh it was 16 years for both. Tamil Nadu described
persons below 14 years as children and those above 14 but below 18 as young persons, and
institutions for them were established on this basis. Difference in age led to differential
treatment being meted out to children of the same age group residing in different states. A
delinquent child of seventeen years was entitled to all the benefits of the Children Act in
Gujarat or West Bengal but if she belonged to Maharashtra or was transferred there, she
would have been treated as an adult offender and might have ended up in its jails. States like
Maharashtra and Gujarat were involving volunteers and public in the work of the Children
Act in good measure—thus keeping the child in the mainstream of society. In a majority of
the states this outlook itself was missing which not only adversely affected their
development and growth but also resulted in their alienation from the community. The
approach towards institutions also differed under the various Children Acts. Karnataka,
Kerala, Maharashtra, Punjab, and Uttar Pradesh had a single institution for both delinquent
and neglected children and that was contrary to the principle of segregation and

59
individualization. Imprisonment in exceptional circumstances was permissible under the
Children Acts of Madras, Punjab, and Uttar Pradesh while it was specifically barred under
the Children Act, 1960 and other Acts following it.
By 1984-8549the Children Acts, though enacted, were not enforced at all in Sikkim,
Tripura, Arunachal Pradesh, Chandigarh, and Lakshwadeep and were enforced partially in
Assam and Jammu and Kashmir. Even at places where the Acts were enforced the
specialized machinery had either not been constituted at all50 or not constituted in the
prescribed manner. The need for a uniform Children Act continued to be emphasized at
official and non-official for a,51 but the Central government showed its inability to enact
one on the ground that the subject matter of Children Act fell in the state list of the Seventh
Schedule of the Constitution.52 The judiciary, too, time and again emphasized the need for a
Children Act in every state.53
The stage for bringing about uniformity in the law relating to juvenile justice all
over the country was set with the adoption by the UN General Assembly of the Beijing Rules

in 1985, recommendation for a uniform law in the 69th Report of the Committee on
Subordinate Legislation tabled in Parliament on 12 May 1986 and the Supreme Court’s
suggestion in 1986 for initiation of parliamentary legislation on the subject.
Parliament enacted the Juvenile Justice Act, 1986 and brought it into force on 2
October 1987 in all the areas to which it was extended. Though the JJA extended to the
whole of India except the state of Jammu and Kashmir, it virtually brought about a uniform
system of juvenile justice in the whole country.54 In addition, the JJA provided for

49
‘Statistical Survey Children Homes/Fit Persons Institutions 1984-5' 96, Social Defence, 43 Table
1, April 1989, p. 44-5.
50
There were only 175 residential institutions established in the 401 districts in 1984-5
51
The issue was raised and discussed time and again in Parliament during the debates on the
Children Bills of 1953 and 1959. See Chapter Three. See Report of the Committee for the
Preparation of a Programme for Children, Ganga Sharan Sinha, Chairperson, 1968, pp. 209-
10. It was recommended by social scientists and experts in a Seminar organized by the
National Institute of Social Defence. The Times of India, 16 March 1980. Another National
Seminar on Child and Law organized by the National Institute for Public Co-operation and
Child Development also emphasized streamlining of machinery for effective
implementation of Children Acts, Indian Express, 4 December 1982. See also, S. Barse,
‘Towards a Uniform Justice System; Indian Express, 8 September 1985; Workshop on
National Children’s Act, New Delhi, 10 August 86, infra note 180; V. Kumari, ‘Uniform
Children Act-Its Feasibility under the Constitution Z 1987 SCC (Cri) (Jour)
52
Rajya Sabha Debates, col. 4446, 28 April 1954; ld., col. 759, 15 February 1960. See also,
Administrative Reforms Commission Report of the Study Team on Centre State
Relationships, vol. Ill, 1, 1967, p. 59; Towards Delinqency Control, NISD, 1979, p. 22.
53
For example, Sheela Barse v Union of India, AIR 1986 (SC) 1773; Nuruddin v State of HP 1984
Cri LJ 1712; Moti v State, 1981 Cri L] 45 (NOC).
54
The provisions of the Jammu and Kashmir Children Act 1970, in force in Jammu and Kashmir,

60
prohibition of confinement of children in police lock-up or jail, separate institutions for the
processing, treatment, and rehabilitation of the neglected and delinquent children, a wide
range of disposition alternatives, to family/community-based placement, and a vigorous
involvement of voluntary agencies at various stages of the juvenile justice process. Most of
the states had not set up the basic infrastructure consisting of juvenile welfare boards,
juvenile courts, observation homes, juvenile homes, special homes and after care homes.
Despite mandatory requirements, the minimum standards for institutional care in
terms of accommodation, maintenance, education, vocational training, or rehabilitation,
were not spelt out in most of the states. There was no definite policy towards the manpower
development of juvenile justice. The gap between rhetoric and reality further widened
with the ratification of the Convention on the Rights of the Child.55

2. DEVELOPMENT OF THE JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2000:-
A number of national consultations were held concerning juvenile justice
administration during 1999-2000 to improve the existing unsatisfactory state of affairs. It
was with this background that a committee was appointed under the chairmanship of
Justice Krishna Iyer to prepare a Children Code.56 This committee prepared the Children’s
Code Bill 2000 and presented it to the Prime Minister Atal Bihari Vajpayee on 14
November 2000. He assured that the Children’s Code Bill 2000 would be a valuable input:
The Juvenile Justice (Care and Protection of Children) Bill 2000 was introduced in the Lok
Sabha and Rajya Sabha without any mention of the Children’s Code Bill 2000. It
introduces a wider range of community placement options in terms of adoption, foster
homes, shelter homes, and sponsorship while imposing fine on the parents and providing
counseling to the family of a child in conflict with law. The Juvenile Justice (Care and
Protection of Children) Act, 2000 recognizes the family of the child as a unit to deal with
while dealing with children. The good intentions in bringing forth the new legislation have
been marred by loose and inconsistent drafting. The Juvenile Justice (Care and Protection of

were more or less similar in approach to the JJA.

55
‘Current Issues in Juvenile Justice Administration; paper presented at the National Consultation on
Juvenile Justice held at the National Law School of India University, Bangalore during 11—13 February 1999.
56
Namely, National Consultations Meet on the Juvenile Justice System and the Rights of Child
held by the National Institute of Public Cooperation and Child Development, Delhi,20-1 January
1999; National Consultations on Juvenile Justice, National Law School of India University, Bangalore
on 11-13 February 1999; National Seminar on juvenile Justice held by Butterflies, Delhi, 8-9 April
1999; National Consultations on Juvenile Homes held by Prayas Institute for Juvenile Justice, Delhi,
29-30 July 1999. There were also regional consultations held in Madras, Hyderabad, and Patna

61
Children) Act, 2000 is designed for the care, protection, treatment, development and
rehabilitation of delinquent juvenile and for the adjudication of certain matters relating to
and disposition of delinquent juveniles. The Juvenile Justice (Care and Protection of
Children) Act, 2000 which replaced J. J. Act, 1986 provides for a uniform legal framework
of justice across the country with a view to ensure that no child in any circumstance is
lodged in jail or lock up. This act covered children upto 18 years. The Act took care for
providing machinery and infrastructure required for care protection development and
rehabilitation of children. There is a fine distinction between the two bodies to deal with
the children. Juvenile Justice Boards deal with juvenile in conflict with law and Child
Welfare Committees are constituted for the care and protection and treatment of child in
need of care and protection. The Juvenile Justice (Care and Protection of Children) Act, of
2000 enables the competent authority a wide range of disposition alternative with preference
to family and community based placement.
In enacting this act the Parliament considered a progressive law in accordance with
international principles, such as United Nations Conventions on the Rights of the child to
which India became a signatory in 1992. The United Nations Rules provides for the
protection of the juveniles deprived of their liberty and all other relevant international
instruments. It is, however, widely believed that in spite of government's positive intention
to implement the Act there are considerable failures in the existing system.
3. THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT, 2000: BASIC FEATURE
The Juvenile Justice (Care and Protection of Children) Act, 200057is aimed at
achieving the following objects:-
(i) to lay down the basic principles for administering justice to a juvenile or the
child in the Bill;
(ii) to make the juvenile system meant for a juvenile or the child more appreciative
of the developmental needs in comparison to criminal justice system as applicable to
adults;
(iii) to bring the juvenile law in conformity with the United Convention on the Rights
of the Child;
(iv) to prescribe a uniform age of eighteen years for both boys and girls;
(v) to ensure speedy disposal of cases by the authorities envisaged under this Bill

57
Statement of Objects and Reasons of J.J.(C & P), Act, 2000

62
 regarding juvenile or the child within a time limit of four months;
(vi) to spell out the role of the State as a facilitator rather than doer by involving
voluntary organizations and local bodies in the implementation of the proposed
legislation;
(vii) to create special justice police units with a humane approach through
sensitization and training of police personnel ;
(viii) to enable increased accessibility to a juvenile or the child by
establishing Juvenile Justice Boards and Child Welfare Committees and Homes in
each district or group of districts;
(ix) to minimize the stigma and in keeping with the developmental needs of the
juvenile or the child, to separate the Bill into two parts- one for juveniles in conflict
with law and the other for the juvenile or the child in need of care and protection.
(x) to provide for effective provisions and various alternatives for rehabilitation
and social reintegration such as adoption, foster care, sponsorship and aftercare of
abandoned, destitute, neglected and delinquent juvenile and child.
The Juvenile Justice (Care and Protection of Children) Act, 2000, laid down a
primarily law not only for the care and protection of the children but also for the
adjudication and disposition of matter relating to children in conflict with law. The J.J.
System is limited in its application to children committed offence and when in need of
care and protection. A further understanding of Juvenile Justice (Care and Protection of
Children) Act, 2000 in accordance with the normative structure is being endeavoured, with
above elaboration about the definitions and institutional mechanisms. As has been stated
earlier, the Act creates a couple of mechanisms, both adjudicative and rehabilitative
institutions, to give expression to various provisions in course of its enforcement. Broadly,
two sets of institutions have been contemplated to deal separately with Children in Conflict
with Law and Children who need Care and Protection. Such a distinction is made in the
law as there was apparent criticism about the first uniform juvenile justice legislation of
1986 on the ground that the penal orientation of the Act treats both the categories of
children in same scale, thereby children who need care and protection are being seen as
criminals.58 It is pertinent to mention here that in 1986 Act, there was only a provision of

58
Savitri Goonesekere in Children, Law and Justice- A South Asian Perspective brings to our attention that
Experience in the South Asia region particularly in India suggest that it is important to de-link the law on
neglected children and "in care" proceeding from legal proceedings involving children in conflict with law.
This is necessary to prevent penal orientation of "in care' proceedings, even though it may be necessary in
many cases to use "in care" proceedings with regard to children in conflict with law.

63
Juvenile Justice Court which was conferred with power to deal with both juvenile delinquent
and neglected juvenile.
The following provisions have been conceptualised by the Act which is discussed
under two broad heads framed on the basis of the subjects of law being addressed under
the Act under two different separately constituted mechanism ; that is
 Children in conflict with Law.
 Children who Need Care and Protection
There was a growing feeling that greater attention was required for children in
conflict with law and those in need of care and protection. There is an urgent need for
creating adequate infrastructure necessary for implementation of the legislation with their
involvement of informal system specially the family, the volunteer organization and the
community. The Juvenile Justice (Care and Protection of Children) Act, 2000 raised the
age of juvenile and child to be covered under the Act to 18 years. Juvenile in conflict with
law is a child defined as a juvenile who is alleged to have committed an offence and has not
th
completed 18 years of age as on date of commission of such offence. The “child in need of
care and protection” means a child 59-
(i) who is found without any home or settled place or abode and without any
ostensible means of subsistence,
(ia) who is found begging, or who is either a street child or a working child,
(ii) who resides with a person (whether a guardian of the child or not) and such
person-
(a) has threatened to kill or injure the child and there is a reasonable
likelihood of the threat being carried out, or
(b) has killed, abused or neglected some other child or children and there is a
reasonable likelihood of the child in question being killed, abused or
neglected by that person,
(iii) who is mentally or physically challenged or ill children or children suffering
from terminal diseases or incurable diseases having no one to support or look after,
(iv) who has a parent or guardian and such parent or guardian is unfit or
incapacitated to exercise control over the child,
(v) who does not have parent and no one is willing to take care of or whose parents
have abandoned (or surrendered) him or who is missing and run away child and

59
Ins. By Act 33 of 2006, sec. 4 (w.e.f.22.8.2006).

64
 whose parents cannot be found after reasonable injury,
(vi) who is being or is likely to be grossly abused, tortured or exploited for the
purpose of sexual abuse or illegal acts,
(vii) who is found vulnerable and is likely to be inducted into drug abuse or
trafficking,
(viii) who is being or is likely to be abused for unconscionable gains,
(ix) who is victim of any armed conflict, civil commotion or natural calamity;
Juvenile Justice Board constituted to deal with the juvenile in conflict with law would
consist of a Metropolitan Magistrate or Judicial Magistrate Ist Class and two social
workers of whom at least one would be a woman. The Magistrate on Board shall be
designated as Principal Magistrate. The Magistrate is required to have special knowledge or
training in child psychology or child welfare. No social worker shall be appointed unless he
is actively involved in health education or welfare activity pertaining to children for at least
7 years. The Amendment Act of 2006 requires the State Governments within a period of
one year from the date of commencement of the juvenile justice (care and protection of
Children) Amendment Act, 2006 to constitutiontute for every district one or more juvenile
justice boards for exercising the power and discharging the duties conferred on such
boards in relation to juveniles in conflict with law. To keep the juvenile away from the
routine and regular courts filled with vicious atmosphere.

4. CRITICAL APPRAISAL OF JUVENILE JUSTICE ACT, 2000:-

Uniformity on the national level with regard to different treatment and other
procedures relating to juvenile is still lacking. Prescribed institutions for custody and
adjudication, trial and treatment of juveniles prescribed under the acts have not yet been
properly created which is a major set back to successful implementation of Juvenile Justice
Act, 2000. Lack of training in handling the force relating to the children on the part of the
officials is also a decisive factor in non-implementation of the Act to full swing. Lack of
coordination amongst various institutions involved in the process is also considered as failure
to implement the Act apart from financial crunch in the institutions which is a
discouraging factor in implementation of the beneficial legislation.
The Act has not prescribed minimum age below which the Act would not be applicable. The
Act fails to expressly lay down the age of innocence. The definition of juvenile
delinquency provides almost no scope for any acts to be dealt within the community.

65
1. The concept of parental responsibility encouraging child delinquency is also
missing in the Act. It has been noticed that many a times parents are responsible for
putting their children where they are exploited and abused.

2. The education, recreation and training of the children in observation homes has not
been properly provided for. The Act has also failed to consider basic or school
education. Besides this higher education and training of these children should also
be considered and included in the Act.
3. The Act has failed to provide for procedural guarantees like right to speedy trial.
Though the Act provides for time frame for conclusion of the trial but it is
observed that a number of a cases are still pending in the courts for years.
4. The Act of 2000 is silent on inter-country adoption. Linkage between Juvenile
Justice Act, 2000 and other legal provisions relating to child labour, primary
education, sexual abuse, adoption, disabilities, health etc. is missing.
5. The juvenile justice adjudicatory cadre is drawn from the cadre of Magistrates of
the state judiciary. The other implementing agencies and institutions like police are
also not separate. Lack of institutional infrastructure and trained manpower has
contributed a lot to blur the objective of the legislation.
6. No obligation has been cast on the part of the state in the Act on account of
which a right based perspective is missing in the Act. So whatever in the name of
protection is given to the child is not seen as a right but a charity or welfare. There
is no specific provision ensuring services for children relating to education, health,
legal and social. Even identification of the 'juvenile in need of care and protection'
is not done for want of proper mechanism.
7. Keeping the high level of sensitivity of the issue and alarming rate of
increasing number of juveniles a regular coordination amongst various government
agencies working in the area is needed. But this coordination is missing and the
Juvenile Justice Act, 2000 does not have any provision to ensure the continuous
supervision, monitoring and evaluation of the functioning of juvenile justice system
as a whole.
8. The coverage of the Act is quite limited and a large number is still away from its
purview. The children affected by drug abuse, HIV/AIDS, militancy, disaster etc.
do not have any redressal under the Act and the issues like marriage, female
foeticide, working children, street children is also not covered under it.

66
 9. The problem gets engraved due to lack of support services to venerable families
which are factories for turning their children into delinquency. There is no yardstick
to standardize the facilities and services in the institutions in different states. There is
no way to know the quality of performance of various institutions working in the
area of juvenile justice.
10. The police which has a direct and immediate contact with the juvenile
delinquents more than often violates the procedure for handling the juvenile and
police indifference in implementing the law is most disappointing. There are
instances to record a wrong age in the police record to avoid their fatigue in
taking the juvenile delinquent before the Juvenile Justice Board. The arrangement for
reintegrating the child into family and society for its proper rehabilitation and after
care service is almost non-existent.
11. The Supreme Court is of the view that whenever any law is enacted by the
government it should be ensured beforehand that the states are ready with the
infrastructure to implement it otherwise besides blunting the objective of law this
puts the whole machinery into unnecessary pressure and frustration. Our zeal to
bring the law is more pronounced than evolving the ways and means to enact the
same. The need to make a proper study and feasibility is imperative. At times the
goals of such laws are too ambitious and they do not relate well to the ground level
situation.
12. The problem of special care and needs of the disabled children have been
ignored by the Act. The standards of quality care have also not been laid.
13. The expansion of definition of 'child in need of care and protection' could lead
to undue influence in the lives of poor children and the families by the system.

5. INSTITUTIONAL ARRANGEMENT:-
Two category of institutions recognized by Juvenile Justice (Care and Protection of
Children) Act, 2000. First, who will decide the future of juvenile and deal with juvenile,
second, homes where the juvenile to be put whether s/he is in conflict with of law or child
need of care and protection.
5.1 First category institutions:
5.1.1 Juvenile justice board:
5.1.2 Child welfare committee:

67
 5.1.3 Advisory board :
5.1.4 Special police units:
5.2 Second category institutions
5.2.1 Observation homes,
5.2.2 Special homes
5.2.3 Shelter homes
5.2.4 Children homes
The Act seeks to establish a number of authority and institution, which can cater to the
needs of children and protect their best interest. Therefore, the Act provides for
establishment of institutions like Observation Home, Special Homes and After Care
Organisation by the State Government for temporary reception and rehabilitation and
follow-up of the child in conflict with law. For purposes of Children who need care and
protection another set of institutions have been conceived under act in the nomenclature of
Children's Home and Special Homes. Thus there are different kinds of Institutions for two
different kinds of children, which were not provided for in the Juvenile Justice Act, 1986.
Under the predecessor Act there was a common provision of institutions both for
delinquent and neglected juveniles.

5.1.1 Juvenile Justice Board:

As per the provision of Juvenile Justice Act 2000, the State Government may
constitutiontute three members Juvenile Justice Board comprising of a Metropolitan
Magistrate or Judicial Magistrate of First Class and 2-Social Workers of whom at least
one shall be a Woman for a District (Section-4(2)) or a group of Districts. Under Section
4(1) of Juvenile Justice Act, 2000 (as Amended in 2006), the respective State Government
of Indian Union is empowered to constitutiontute Juvenile Justice Board to deal with
Juvenile in Conflict with Law. The magistrate who is appointed must have special
knowledge or training in child psychology or child welfare and the social worker should
have minimum seven years of involvement in health, education or welfare of the children
[Sec.4(3)]. Thus the law requires the appointment of magistrates not only with knowledge of
laws but more importantly he must understand child psychology. Probably the provision of
having a female member is made with the belief that the child would feel comfortable in
interacting with a woman, who has been symbolized as a mother with love and affection in
Indian culture or woman can understand the psychology of child in an appropriate manner.

68
The Board is empowered to obtain social investigation reports on a juvenile from probation
officer or even through a recognized voluntary organization [Sec. 15(2)]. These three
members shall constitutiontute a bench and every such bench shall have the power conferred
by the Code of Criminal Procedure 1973 on a Judicial Magistrate of the First Class. The
Magistrate on the Board shall be designated as Principal Magistrate. The term of office
of members is to be prescribed by rules. However, a member of the Board may be terminated
who fails to attend to proceedings of the Board for consecutive three months without any
valid reason or if fails to attend less then three-fourth of the settings. A child in conflict with
law may be produce before an individual member when the Board is not sitting. Similarly a
Board may act notwithstanding the absence of any member. No order made by the Board
shall be invalid by reason only of the absence of any member during any stage of
proceeding. At the time of final disposal of case there shall be at least two members present
including the Principal Magistrate. In the event of difference of opinion among the
members of the Board in the interim or final disposition the opinion of majority shall
prevail. Where there is no such majority the opinion of the Principal Magistrate shall prevail.
The Board shall have the power to deal exclusively with all proceedings under the Juvenile
Justice Act 2000 relating to Juvenile in conflict with law.

5.1.2 Child Welfare Committee:

A child Welfare Committee under the Act is constituted under Section-29.
Section-29 empowers State Government to constitutiontute for every
district or group of districts one or more Child Welfare Committees for exercising the
powers and discharge the duties in relation to child in need of care and protection under the
Act. The Committee shall consist of a Chairperson and four other members, of whom at
least one shall be a woman and an expert on matters concerning children. The Committee
shall function as a Bench of Magistrates and shall have the powers conferred by the Code of
Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be,
a Judicial Magistrate of the first class [Section-29 (5)].
A child in need of care and protection may be produced before an individual member
for being placed in safe custody or otherwise when the Committee is not in session.
Decisions in the Committee shall be arrived at the time of interim decision on the
basis of majority. Where there is no majority the opinion of the Chairperson shall prevail.
The Committee shall have the final authority to dispose of cases for the care, protection,
treatment, development and rehabilitation of the children as well as to provide for their

69
basic needs and protection of human rights [Section 31 (1)].

5.1.3 Advisory Board:

Advisory Board means a Central or State Advisory Board or a Districts and City
Level Advisory Board to be constituted by Central Government or State Government in a
name of Central or State Advisory Board, as the case may be, constituted under Section-52 [2
(a)]. The Board shall advise the Govt. on matters relating to establishment and maintenance
of homes, mobilization of resources, provision of facilities for education, training and
rehabilitation of child in need of care and protection and juvenile in conflict with law and
co-ordination among the various official and non-official agencies [Section-52(1)].
The Central or State advisory board shall consist of such persons as the Central
Government or the State Government, as the case may be, may think fit and shall include
eminent social workers, representatives of voluntary organizations in the field of the child
welfare, corporate sector, academicians, medical professionals and the concerned
Department of the State Government (Sub-Section-1). The district or city level inspection
committee constituted under Section-35 of Juvenile Justice Act shall also function as the
district or city advisory board (Sub-Section-3).It is in this regard necessary to refer Section-3
which provides for provision relating to inspection. As per the provision State Government
may appoint inspection committees for the children's homes for the State, a District and
City as the case may be for such period and such purposes as may be prescribed. The
inspection committee of a State, District or of a City shall consist of such number of
representatives from the State Government, Local Authority, Committee, Voluntary
Organisation and such other Medical experts and Social worker as may be prescribed
(Section-35).

5.1.4 Special Juvenile Police Unit:

Special Juvenile Police Unit is a unit of the police force of a State designated for
handling of Juveniles or Children under Section-63[Section-2(w)]. Section 63 provides (1)
in order to enable the police officer, who frequently deal with juveniles or are primarily
engaged in the prevention of juvenile crime or handling of the juveniles or children under
this Act, to perform their function more effectively, they shall be specially instructed and
trained, (2) in every police station at least one officer with aptitude and appropriate training
and orientation may be designated as the "Juvenile or Child Welfare Officer" who will
handle the juvenile or the child in coordination with the police, (3) special juvenile police

70
unit, of which all police officer designated above, to handle juvenile or children will be
members, may be created in every district and city to co-ordinate upgrade the police
treatment of the juveniles and the children. As soon as a Juvenile in conflict with law is
apprehended by police, he shall be placed under the charge of the Special Juvenile Police
Unit or the designated police officer who shall immediately report the matter to the member
of the Juvenile Justice Board [Section-10(1)]. Any child in need of care and protection
may be produced before the Child Welfare Committee by any Police Officer or Special
Juvenile Police Unit or a designated police officer [Section -32 (i)]. In the Juvenile Justice
Act, 1986, only police was authorized to apprehend and produce the child before the
competent authority, which was found to be one of the serious drawbacks in the act. The
lacuna has been rectified in the Juvenile Justice Act, 2000 which speak of the creation of
special juvenile police unit for dealing with juvenile crimes.

5.2.1. Observation Home:

Observation Home means a home established by a State Government or by a
Voluntary Organisation and certified by that State Government under Section 8 for the
Juvenile in conflict with law. For the temporary reception of any juvenile in conflict with
law during the pendency of any inquiry, the respective State Govt. are required to
establish Observation Homes in every district or group of districts [Section 8(1 )]. Any
State Government may establish and maintain either by itself or under an agreement
with voluntary organisation, observation homes in every district or a group
of district, as may be required for the temporary reception of any juvenile in conflict with
law during the pendency of any inquiry regarding them under this Act (Sub-Section-1).
Where the State Government is of opinion that any institution other than a home
established or maintained under Sub-Section 1of Section 8 is fit for the temporary
reception of juvenile in conflict with law during the pendency of any inquiry regarding
them under this Act, it may certify such institution as an observation home (Sub Section-
2).The State Government may, by rules made under this Act, provide for the management
of observation homes, including the standards and various types of services to be provided by
them for rehabilitation and social integration of a juvenile, and the circumstances under
which, and the manner in which, the certification of an observation home may be granted or
withdrawn (Sub-Section-3). Every juvenile who is not placed under the charge of parent or
guardian and is sent to an observation home shall be initially kept in a reception unit of the

71
observation home for preliminary inquiries, care and classification for
juvenile according to his age group, such as seven to twelve years, twelve to sixteen years
and sixteen to eighteen years, giving due considerations to physical and mental status
and degree of the offence committed, for further induction into observation home (Sub-
Section-4).

5.2.2 Special Homes:

According to Section-2(v) special home means an institution established by a
State Government or by a Voluntary Organisation and certified by that Govt. under
Section 2-g. Any State Government may establish and maintain either by itself or under
an agreement with voluntary organisations, special homes in every district or a group of
districts, as may be required for reception and rehabilitation of juvenile in conflict with law
under this Act (Sub-Section-1). Where the State Government is of opinion that any
institution other than a home established or maintained under Sub-Section-1 of Section-9 is
fit for the reception of juvenile in conflict with law to be sent there under this Act, it
may certify such institution as a special home for the purposes of this Act (Sub-Section-2).
The State Government may, by rules made under this Act, provide for the management of
special homes, including the standards and various types of services to be provided by
them which are necessary for re-socialisation of a juvenile, and the circumstances under
which and the manner in which, the certification of a special home may be granted or
withdrawn (Sub-Section-3). The rules made under Sub-Section-3 may also provide for the
classification and separation of juvenile in conflict with law on the basis of age and the
nature of offences committed by them and his mental and physical status.

5.2.3 Shelter Homes:

An i nstitution to be named as Shelter Homes shall be established which shall be a drop-in-
centre for the children who need urgent support [Section-2(u)]. The State Government may
recognize reputed and capable voluntary organisations and provide them assistance to set up
and administer as many shelter homes for juveniles or children as may be required [Section-
37 (1)].

5.2.4 Children's Homes:

Children's Home is an institution established by a State Government or by

72
Voluntary Organisation and certified by the Govt. under Section-34. The State Government
may establish and maintain either by itself or in association with voluntary organisations,
children's homes, in every district or group of district, as the case may be, for the
reception of child in need of care and protection during the pendency of any inquiry and
subsequently for their care, treatment, education, training, development and
rehabilitation(Sub-Section-1). The State Government may, by rules made under this Act,
provide for the management of children's homes including the standards and the nature of
services to be provided by them, and the circumstances under which, and the manner in
which, the certification of a children's home or recognition to a voluntary organisation
may be granted or withdrawn (Sub-Section-2).

6. OTHER PROVISIONS OF JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT 2000
 Claim of Juvenility: The amendment of Juvenile Justice Act in 2006 has inserted a
new section after section 7 of the principal Act, which deals with procedure to be
followed when claim of juvenility is raised before any court of law. Section7A(1)
of the Act speaks "Whenever a claim of juvenility is raised before any court or a
court is of the opinion that an accused person was a juvenile on the date of
commission of offence, the court shall make inquiry, take such evidence as may be
necessary so as to determine by age of such person, and shall record a finding
whether the person is a juvenile or a child,
 Section 14 provides that a juvenile, having been charged with an offence is produced
before the Board, the Board is required to hold an inquiry which shall, except under
exceptional circumstances, be completed within four months from the date of
commencement of the inquiry (new provision introduced in this Act).
 Section 15 provides that The Board, if satisfied that the juvenile had committed an
offence shall make an order
 allowing the juvenile to go home after advice or admonition; or
 directing the juvenile to participate in group counseling and similar activities; or
 that the juvenile perform community service; or
 directing the parent of the juvenile or the juvenile to pay fine;or directing the
juvenile to be released on probation of good conduct and place him under the care
of parent, guardian or any fit institution for any period not exceeding 3 years; or

73
  directing the juvenile to be sent to a special home Direction to perform
community service and direction to participate in group counseling and similar
activities are an innovation under the new Act.

Like the repealed Act of 1986, the Act of 2000 also provides that a juvenile shall
not suffer any disqualification attaching to a conviction of an offence under law. The Act of
2000, in addition, requires the Board to make an order directing that the relevant records of
such conviction, after expiry of the period of appeal, shall be removed. Regarding the
provisions relating to child in need of care and protection (neglected juveniles of the Act of
1986), the Act empowered the State Government to constitutiontute Child Welfare
Committees (Juvenile Welfare Boards under the Act of 1986) which shall consist of a
chairperson and four members of whom one shall be a woman and another an expert on
matters concerning children. The Committee disposes of cases for the care, protection,
treatment, development and rehabilitation of children as well as provides their basic needs
and protection of human rights.

74
 Chapter-4
comparative analysis of The Juvenile Justice (Care
and Protection of Children) 2000 with Juvenile
Justice (Care and Protection of Children) 2015

1. INTRODUCTION:-

It can never be overemphasized that the implementation of law is the hallmark of the
commitment of its makers. An overview of literature on the operations under the Children
Acts reveals a wide gap between the theory and practice of juvenile justice in India. Non-
implementation, lack of resources, inappropriate personnel, substandard services, and other
problems, have been pointed out among the causes for the unsatisfactory implementation. It
is the fact that the main institutional mechanism for providing care and protection services to
both the categories of children namely, juvenile in conflict with law and children in need of
care and protection were present in all the successive legislations. For example, the
provisions of children homes, observation homes, remand homes, shelter homes, special
homes, after-care services, probation were contained in Provincial Children Acts, Central
Children Acts, Juvenile Justice Act 1986, and in the present Juvenile Justice (Care and
Protection of Children) Act 2000 as amended in 2006.
Though the Juvenile Justice (Care and Protection of Children) Act, 2000 has introduced
the principle of institutionalization as a last resort along with the principle of 'restoration', the
complete substitution of institutional method of treatment in juvenile justice system is not
possible.The observation made by Dr. M.S. Sabnis in the year 1954 shows that the effective
programmes for reduction of criminality were not present in the homes. He equated the
'homes' with gloomy thick-walled bastilles. Sinha Committee Report, 196860 recommended
for establishing one Remand home in each district with a minimum capacity of twenty-five
children, two Children's homes in each district, two Certified schools for a group of five
districts in each state. The number of juvenile courts in 1976 stood at ninety-five even after
16 years of passing of Children Act, 1960.61

60
Report of the Committee for the Preparation of a Programme for Children, Ganga Sharan Sinha, Chairman,
Department of Social Welfare, Government of India, 1968 cited in The Juvenile Justice System in India: From
Welfare to Rights by Ved Kumari, p.237, Oxford University Press, 2nd edn., 2010, p.137
61
'Juvenile/Children's Courts and Children Welfare Boards 1976, Statistical Survey', 64 Social Defence, 56

75
 In the year 1990, there was no juvenile court in 230 districts. In the same way, there
was no juvenile welfare board in 419 districts.62Children in homes are maltreated, ill-treated.
As a result, a delinquent often comes out of the Observation homes/Certified school as a
hardened criminal rather than a reformed individual.63
The official figures for 1985-86 mentioned 232 observation homes, 87 juvenile homes and
114 special homes. The figure was short by 1025 homes as per the Sinha Committee
recommendation.64No minimum standards for basic needs, living conditions or therapeutic
services existed to apply equally to both governmental and non-governmental correctional
institutions. In most of the states, neglected children are huddled together with juvenile
delinquents at various stages of institutional care.65
There are still many state governments and Union Territories, which are sleeping
over their obligation to create an adequate infrastructure of Child Welfare Boards, Juvenile
courts, Children homes, remand home, Observation homes, special/approved/certified
schools, and after-care organization in order to implement their Act in close conformity with
the provisions enclosed therein.66

2. PROVISIONS RELATED TO JUVENILE UNDER VARIOUS ACTS:-

2.1 Constitution of India

Article 326:
Article 326 of the CONSTITUTION OF INDIA prescribes the age 'Eighteen years' or more for registration as
electorate for elections to HOUSE OF THE PEOPLE and to the LEGISLATIVE ASSEMBLY of STATE . The
language used in the Article is as below :-
ART. 326 - ELECTIONS TO THE HOUSE OF THE PEOPLE AND TO THE
LEGISLATIVE ASSEMBLIES OF THE STATES TO BE ON THE BASIS OF
ADULT SUFFERANCE - The elections of the House of People and to the
Legislative Assemblies of every STATE shall be on the basis of adult sufferage that

(April 1981)
62
'Statistical Survey Juvenile Courts for the year 1985-6', Table 1, 101, Social Defence, 60 (July 1990)
63
Thomas Paul, 'Justice to Children: An Appraisal of the Administration', Journal of the Indian Law
Institute, Vol.28, No.2, 1986, New Delhi, p. 213
64
Ved Kumari, The Juvenile Justice System in India: From Welfare to Rights, 2nd edn., 2010, Oxford
University Press, New Delhi, p.237
65
The Hindustan Times, 2 October 1987, p.18, col.1, (DAVP 87/372), cited in The Juvenile Justice System
in India: From Welfare to Rights, Ved Kumari, p.228, Oxford University Press, New Delhi, 2nd edn., 2010
66
S.P. Srivastava, Juvenile Justice in India: Policy, Programme and Perspective (Ajanta Publications , 1st
edn., 1989) , p.83

76
 is to say every person who is a citizen of India and who is not less than eighteen
years of age on such date as may be fixed in that behalf by or under any law made
by the appropriate legislature and is not otherwise disqualified under the
CONSTITUTION or any law made by the appropriate legislature on the ground of
non -residence , unsoundness of mind , crime or Corrupt or Illegal practice shall be
entitled to be registered as a voter at any such election.67

2.2 Indian penal code, 1860:

Section 82: “Nothing is an offence which is done by a child under seven years of age.”
Section 83: “Nothing is an offence which is done by a child above seven years of age and
under twelve, who has not attained sufficient maturity of understanding to judge of the nature
and consequences of his conduct on that occasion”.
2.3 Criminal procedure code, 1973:
Section 27: “Any offence not punishable with death or imprisonment for life, committed by
any person who at the date when he appears or is brought before the court is under the age
of sixteen years, may be tried by the court of' a Chief- Judicial Magistrate, or by any court
specially empowered under the Children Act, 1960 (60 of 1960), or any other law for the time
being in force providing for the treatment, training and rehabilitation of youthful offenders”.
2.4 Childrens Act, 1960:
Section 2(e): "child means a boy who has not attained the age of sixteen years or a girl
who has not attained the age of eighteen years;”
2.5 Protection of Children from Sexual Harassment Act , 2013:
Section 2(d) "child means any person below the age of eighteen years”.
2.6 Juvenile Justice Act, 1986:
Section 2(h) “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;”
2.7 Juvenile Justice (care and protection of children) Act, 2000:
Section 2(I) “Juvenile in conflict with law is a child who is alleged to have committed an
offence and has not completed eighteen years of age as on date of commission of such
offence”.
2.8 Juvenile Justice (care and protection of children) Act, 2015:
Section 2(12) “child means a person who has not completed eighteen years of age;”

67
http://www.lawyersclubindia.com/articles/Juvenile-Justice-A-Controversial-aspect-3361.asp

77
 Section 2 (35) “juvenile means a child below the age of eighteen years;”
Before going to detail comparison of juvenile justice Act of 2000 and 2015 we
should take a first view on Delhi GangRape Case. In the juvenile justice system history it
was a very brutal case that shake the very foundation of juvenile justice system all over the
world. This was the case which question mark the age criteria fix to try juvenile who are in
conflict of law. This case compel the govt. to reconsider the The Juvenile Justice (care and
protection of Children) Act,2000.

3. DELHI GANG RAPE CASE:-

Timeline:-

 16 December, 2012: Paramedic student gangraped and brutally assaulted by six

persons in a private bus and thrown out of the moving vehicle along with her male
friend. They were admitted to Safdarjung Hospital.
 17 December: Widespread protests breakout demanding strict action against the
accused.
 17 December: Police identifies four accused -- bus driver Ram Singh, his brother
Mukesh, Vinay Sharma and Pawan Gupta.
 December 18: Ram Singh and three others are arrested.
 December 20: Victim’s friend testifies.
 December 21: Delinquent juvenile nabbed from Anand Vihar bus terminal in
Delhi. Victim’s friend identifies Mukesh as one of the culprits. Police conduct raids in
Haryana and Bihar to nab the sixth accused, Akshay Thakur.
 December 21-22: Thakur arrested in Aurangabad district of Bihar and brought to
Delhi. Victim records statement before the SDM in hospital.
 December 23: Protesters defy prohibitory orders, take to streets. Delhi Police
Constable Subhash Tomar, on duty to control protests, rushed to hospital with fatal
injuries.
 December 25: Girl’s condition declared critical. Constable Tomar succumbs to
injuries.
 December 26: Following a cardiac arrest, victim flown to Singapore’s Mount
Elizabeth Hospital by the government.

78
  December 29: Victim succumbs to injuries and other medical conditions at 2:15 am.
Police add murder charge in the FIR.
 January 2, 2013: The then Chief Justice of India Altamas Kabir inaugurates fast track
court (FTC) for speedy trial in sexual offence cases.
 January 3: Police files charge sheet against five adult accused for offences including
murder, gangrape, attempt to murder, kidnapping, unnatural offences and dacoity etc.
 January 5: Court takes cognisance of the charge sheet.
 January 7: Court orders in-camera proceedings.
 January 17: FTC starts proceedings against five adult accused.
 January 28: JJB says minority of juvenile accused is proved.
 February 2: FTC frames charges against five adult accused.
 February 28: JJB frames charges against the minor.
 March 11: Ram Singh commits suicide in Tihar jail.
 March 22: Delhi HC allows national media to report trial court’s proceedings.
 July 5: Inquiry (trial) in JJB against juvenile in gangrape-cum-murder case and
robbery matter concludes. JJB reserves verdict for July 11.
 July 8: FTC completes recording of testimonies of prosecution witnesses.
 July 11: JJB holds minor guilty of illegally confining and robbing a carpenter on
December 16 night before allegedly taking part in the gangrape.
 Delhi High Court allows three international news agencies to cover the trial of the
case.
 August 22: FTC begins hearing final arguments in trial against four adult accused.
 August 31, 2013: JJB convicts the minor for gang rape and murder and

awards three years term at a probation home.

The teenager accused is found guilty of rape and murder and is sentenced to three years in a
juvenile detention home, sparking debate over whether India is too soft on young offenders.
 September 3: FTC concludes trial. Reserves verdict.
 September 10: Court convicts Mukesh, Vinay, Akshay, Pawan, Mukesh of 13
offences including gangrape, unnatural offence and murder of the girl and attempt to
murder her male friend.
 September 11: Court fixes 13 September for pronouncing sentence after hearing
arguments on quantum of punishment to be awarded.

79
  September 13: Court awards death to all four convicts.
 September 23: Delhi High Court begins hearing the convicts` death sentence reference
sent to it by the trial court.
 September 24: High Court decides to hear the death sentence reference on a day-to-
day basis.
 October 7: Convicts Vinay Sharma and Akshay Thakur file appeal against conviction
and sentence.
 November 12: Supreme Court asks HC not to rush through with the December16
gangrape case.
 January 3, 2014: HC reserves verdict on convicts` appeals.
 March 13: HC upholds death penalty awarded to the four convicts.
The new twist came when the juvenile released after 3 year probation. There was hue and cry
because of his release that what is the benefit of this type of criminal justice system which
cannot serve the very purpose of it.
 December 20, 2015: date of release of juvenile.
The happening of the entire episode is the main reason which compel the govt. to amend the
existing law and make certain changes according to required circumstances. Out come of the
this episode is The Juvenile Justice (care and protection of Children) Act,2015.
4. COMPARATIVE CHART OF THE JUVENILE JUSTICE ACT 2000
AND THE JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT 2015:-

Serial The Juvenile Justice (care and The Juvenile Justice (care and
no. protection of children) Act-2000 protection of children) Act-2015
1  Juvenile Justice Board:
A Board shall consist of a Metropolitan A Board shall consist of a Metropolitan
Magistrate or a Judicial Magistrate of the Magistrate or a Judicial Magistrate of
first class, as the case may be, and two First Class not being Chief
social workers of whom at least one shall Metropolitan Magistrate or Chief
be a woman, forming a Bench and every Judicial Magistrate (hereinafter referred
such Bench shall have the powers to as Principal Magistrate) with at least
conferred by the Code of Criminal three years experience and two social
Procedure, 1973 (2 of 1974), on a workers(at least seven years or a

80
 Metropolitan Magistrate or, as the case practicing professional with a degree in
may be, a Judicial Magistrate of the first child psychology, psychiatry, sociology
class and the Magistrate on the Board shall or law.) selected in such manner as may
be designated as the principal Magistrate. be prescribed, of whom at least one
shall be a woman, forming a Bench and
every such Bench shall have the powers
conferred by the Code of Criminal
Procedure, 1973 on a Metropolitan
Magistrate or, as the case may be, a
Judicial Magistrate of First Class
 Child Welfare Board
The Committee shall consist of a The Committee shall consist of a
Chairperson and four other members as Chairperson, and four other members as
the State Government may think fit to the State Government may think fit to
appoint, of whom at least one shall be a appoint, of whom atleast one shall be a
woman and another, an expert on matters woman and another, an expert on the
concerning children. matters concerning children

 Child in Conflict with law A child who is alleged or found to

No definition is given under the Act. have committed an offence and who has
not completed eighteen years of age on
the date of commission of such offence;
 Children need care of protection
There exist a detailed provision. There exist a detailed provision.
2 Age :
"juvenile" or "child" means a person who “child” means a person who has not
has not completed eighteenth year of age; completed eighteen years of age; sec
sec. 2(k) 2(12)
“juvenile” means a child below the age
of eighteen years; sec. 2(35)
3  After care
Not defined under the Act, however “aftercare” means making provision of
direction made. support, financial or otherwise, to

81
 persons, who have completed the age of
eighteen years but have not completed
the age of twenty-one years, and have
left any institutional care to join the
mainstream of the society; sec.2(5)
4  Place of safety
Act do not describe any such concept. “place of safety” means any place or
institution, not being a police lockup or
jail, established separately or attached to
an observation home or a special home,
as the case may be, the person in-charge
of which is willing to receive and take
care of the children alleged or found to
be in conflict with law, by an order of
the Board or the Children’s Court, both
during inquiry and ongoing
rehabilitation after having been found
guilty for a period and purpose as
specified in the order; sec 2(46)
5.  Adoption
sec. 2(aa). "adoption" means the process “adoption” means the process through
through which the adopted child is which the adopted child is permanently
permanently separated from his biological separated from his biological parents
parents and become the legitimate child of and becomes the lawful child of his
his adoptive parents with all the rights, adoptive parents with all the rights,
privileges and responsibilities that are privileges and responsibilities that are
attached to the relationship. attached to a biological child;
Important feature: first time act make
detailed provision related to the
adoption. Act provides that ther will be
establish procedure for the adoption
whether it is inter-country or intra-
country.

82
6. Adoption authority
Under the Act there exist a provision However in case of new Act there is
which allowed that a child can be adopted extension of the provisions of adoption.
according to rule and regulation of Who can adopt?, how one can adopt?,
adoption. who will monitor the adoption, which
regulatory authority play active role in
adoption?, and what is the role of
govt.? answers to all such questions are
made in the form of enacted provisions
for the better protection of children
according to established principle of
international law on adoption.

7. Other offences against the children

No such provision subsist in juvenile There exist several provisions which
justice Act 2000 make certain Acts prohibited and
contravene of them punishable.
8. Procedure for the offender under the
16-18 year age group Act created a new category of age
No such category exist in the Act. group, 16-18 year, which can be tried
as an adult offender in certain category
of offences. However whether he or she
should be tried or not is leave on the
JJBoard. Act made an express
procedure which have to be followed
by JJBoard before recommending the
offender as an adult.

5. OTHER MISCELLANEOUS PROVISIONS:-

According to Act there exist a provision which allowed trial of juvenile who is less than 18
but more then 16 as a adult offender. Even the act classified the category of offence:

83
  Pitty offence; “petty offences” includes the offences for which the maximum
punishment under the Indian Penal Code or any other law for the time being in force is
imprisonment up to three years;68
 Serious offence; “serious offences” includes the offences for which the punishment
under the Indian Penal Code or any other law for the time being in force, is
imprisonment between three to seven years;69
 Heinous offence; “heinous offences” includes the offences for which the minimum
punishment under the Indian Penal Code or any other law for the time being in force is
imprisonment for seven years or more;70

5.1 Procedure:-
Act lay down what procedure to be followed in each category of offence.
In the case of petty offences the jj Act provides that the cases of petty offences, shall
be disposed of by the Board through summary proceedings, as per the procedure prescribed
under the Code of Criminal Procedure,1973;71
In case of serious offence the inquiry of serious offences shall be disposed of by the
Board, by following the procedure, for trial in summons cases under the Code of Criminal
Procedure, 1973.72
In case of heinous offences the following procedure will be followed:-
The main provision is section 14 subclause 5(f) as follow
Inquiry of heinous offences,—
(i) for child below the age of sixteen years as on the date of commission of an offence
shall be disposed of by the Board under clause (e) of section 14 sub-clause 5 ;
(ii) for child above the age of sixteen years as on the date of commission of an offence
shall be dealt with in the manner prescribed under section 15.
Under section 15 the procedure lay down
Section 15. (1) In case of a heinous offence alleged to have been committed by a
child, who has completed or is above the age of sixteen years, the Board shall conduct a
preliminary assessment with regard to his mental and physical capacity to commit such

68
Sec. 2(45)
69
Sec. 2(54)
70
Sec. 2(33)
71
Section 14(5(d))
72
Section 14(5(e))

84
 offence, ability to understand the consequences of the offence and the circumstances in
which he allegedly committed the offence, and may pass an order in accordance with the
provisions of sub- section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of
experienced psychologists or psycho-social workers or other experts.
Explanation.—For the purposes of this section, it is clarified that preliminary
assessment is not a trial, but is to assess the capacity of such child to commit and
understand the consequences of the alleged offence.
Under section 18 clause (3) Where the Board after preliminary assessment under section
15 pass an order that there is a need for trial of the said child as an adult, then the Board may
order transfer of the trial of the case to the Children’s Court having jurisdiction to try such
offences.
However it is clearly mention in the section 21 of juvenile justice Act that
“No child in conflict with law shall be sentenced to death or for life
imprisonment without the possibility of release, for any such offence, either under the
provisions of this Act or under the provisions of the Indian Penal Code or any other
law for the time being in force”.
Another protection under the section 20 of juvenile justice act is-
“When the child in conflict with the law attains the age of twenty-one years and is
yet to complete the term of stay, the Children´s Court shall provide for a follow up by the
probation officer or the District Child Protection Unit or a social worker or by itself, as
required, to evaluate if such child has undergone reformative changes and if the child
can be a contributing member of the society and for this purpose the progress records of
the child under sub-section (4) of section 19, along with evaluation of relevant experts
are to be taken into consideration.”
Under the section 19(4) The Children’s Court shall ensure that there is a periodic follow
up report every year by the probation officer or the District Child Protection Unit or a social
worker, as required, to evaluate the progress of the child in the place of safety and to ensure
that there is no ill-treatment to the child in any form
After the completion of the procedure specified under sub-section (1) of section 20, the
Children’s Court may—
(i) decide to release the child on such conditions as it deems fit which includes
appointment of a monitoring authority for the remainder of the prescribed term of stay;
(ii) decide that the child shall complete the remainder of his term in a jail: Provided

85
 that each State Government shall maintain a list of monitoring authorities and
monitoring procedures as may be prescribed. .

6. SOME STATISTICS:-

Before going detail analysis of The Juvenile Justice (Care and Protection of Children) Act,
2015 we should take an overview of reports of National Crime Record Bureau. Statistics are
vital before analysis of the Act.

Incidence of crime amongst children is highest in the 16-18 year age group73

70

60

50

40
2003
30 2013

20

10

0
7-12 year 12-16 year 16-18 year

Children in the 16-18 year age group account for a majority of children arrested for
crimes. Their share in total arrests increased from 56.4% in 2003 to 66.6% in 2013.

There has been a shift in number of arrests of children, according to level of education74
 Crimes committed by those who are at the matriculation level have increased from
22.8% in 2003 to 35.4% in 2013. A similar trend is seen for children with a higher
secondary degree or more.
 Illiterate children committing crimes decreased by about 10% in the last 10 years.

73
Crime in India, 2003-2013, National Crime Records Bureau, Ministry of Home Affairs
74
Ibid 14
 This coincides with the decline in the illiteracy rate of 7 to 18 year old children over
the 2001 to 2011 period, from 21.7% to 11.5%. The trends in education may be
because of an overall improvement in access to education and enrolment rates over
the years.

Children living with parents constitute majority of child arrests75

 Over the years, a majority of children who are arrested for crimes, live with parents.
This percentage has remained fairly constant over the years, increasing from 79% in
2003 to 81% in 2013.
 Data of overall number of children in India who live with parents, guardians, or are
homeless is not available. Therefore, we do not know whether the above finding
regarding child offenders is reflective of, or contrary to, overall child population
trends. Consequently, a generalisation about the link between the incidence of crime
amongst children and their family background cannot be made. There has been a
decrease in crimes committed by children with a family income below Rs 25,000 per
year.
 Crimes committed by children having family income over Rs 25,000 have been on the
rise. As with the trend in education seen above, the increase in the number of
children arrested across income groups may be attributed to a general rise in per
capita incomes over the past 10 years

7. DETAILED ANALYSIS OF THE JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015:-
 The Juvenile Justice (care and protection of children) Act, 2015 allows children
between 16 and 18 years alleged to have committed heinous offences to be tried and
sentenced as adults. While it does not expressly lower the age of a child in conflict
with law from 18 to 16 years, the effect is the same, as the Act said that children
above 16 years can be tried and treated as adults. It thus completely destroys the
rehabilitative foundation of the existing juvenile justice system in India by adopting a
retributive approach for heinous crimes committed by children in this age group. In its
Two Hundred Sixty-Fourth Report, the Department-Related Parliamentary Standing

75
Crime in India, 2003-2013, National Crime Records Bureau, Ministry of Home Affairs

87
Committee on Human Resource Development on The Juvenile Justice (Care and
Protection of Children) Bill, 2014 concluded in para 3.21 that “the existing juvenile
system is not only reformative and rehabilitative in nature but also recognizes the fact
that 16-18 years is an extremely sensitive and critical age requiring greater protection.
Hence, there is no need to subject them to different or adult judicial system as it will
go against Articles 14 and 15(3) of the Constitution.” This recommendation has been
entirely ignored.

88
 Chapter – 5 Role of Judiciary in Determining
the controversies related to Age of Juvenile

This chapter highlights role of the Supreme Court and various High Courts in
development of Juvenile Justice System in India. At primary stage, the cases of the juvenile
delinquent are dealt with by the lower courts but their judgments being not binding on the
other courts are not able to reflect on any policy. So the trends of the judicial approach
towards a juvenile in conflict with law, reflected by the judgments of Hon'ble Supreme
Court and various high courts are being examined. The courts juvenile justice board are
under statutory and Constitutional duty to deal with the juveniles in conflict with law who
are produced or brought before it. The competent authority in deciding the cases has to
make due enquiry and give full opportunity to the juveniles to put his case not only at the
time of enquiry regarding the commission of offence he/she is charged with but also at the
initial stage of the case when the question of determination of his/her age comes up before
the court or the Board concerned.
This fact has now been openly being accepted all over the world that problem of
child delinquency is a major problem faced by developing countries and the
developed country as well and it is increasing with a great pace. Even in small urban and
rural areas the problem is growing rapidly and this problem if not taken care of by
providing preventive and remedial measures would destroy 'the child' which is future of a
Nation. To tackle and deal with the problem the Governments have established many
courts and Boards for implementation of various laws enacted by the legislation. The
courts have contributed a lot in the fields of juvenile justice by interpreting various
legislative enactments enacted for the benefit of juvenile offenders. Though Children Acts,
Juvenile Justice Act, 1986 and Juvenile Justice (Care and Protection of Children), Act,
2000 are mainly concerned with juvenile justice system in India but the judiciary on
various occasions has expressed great concern relating to proper implementation of
beneficial provisions of law relating to children.
 Determination of Age of Juvenile
It is primary duty and responsibility of the court that before convicting a person it
must determine the age of such person whether he is juvenile or not. The courts have

89
held that very young children should not be sent to prison76 In Smt. Prabhati v.
Emperor77 it was held that as far as possible such young children should be released
under the supervision and care of their parents or guardians. The court must have clear
evidence of the age of a person before sending him/her to reformatory school. It was
clarified that a child could not be sent to a reformatory school unless an order of
institutionalization, that is, of imprisonment, was made.78
After recognizing the need for segregation of juveniles from the adult offenders not
only during trial but also at the investigation stage, the constant view of the beneficial
juvenile legislation and also the judiciary has been to protect the child from hardships of
adversarial trial and punishment system which mainly deals with the adult offenders. So
the important point which requires a determination at the very initial stage is the age of a
person charged with commission of an offence. A juvenile under Juvenile Justice Act, 1986
means a boy who has not completed the age of 16 years and a girl who has not completed
age of 18 years. In Juvenile Justice Act (C & P), 2000, the distinction of age of a male and
female child has been done away with and a uniform age pattern has been provided.
Section 2(k) of the Act defines a juvenile or a child as a person who has not completed 18
years of age. As per section 2 (l) of the Act juvenile in conflict with law means a juvenile
who is alleged to have committed an offence and has not completed 18 years of age as on
the date of commission of offence. So the primary duty and responsibility of the
court before convicting a person is to determine the age of such person and decide whether
he/she is a juvenile. The Children Act, Juvenile Justice Act, 1986 and Juvenile
Justice (Care & Protection of Children) Act, 2000 apply to children and defines who is a
child by reference to age. They provide for continuation of enquiry after the children ceases
to be a juvenile during its pendency what is the relevant date on which the child should be
below the specified age is a material question. However, the J.J. (C & P) Act, 2000 has
now finally set the controversy at rest by referring the child to a person who has not
completed the age of 18 years as on date of commission of offence. However, the issue of
the relevant time at which the child should be below the age of eighteen has been raised in
many decisions and has resulted in a controversy that is likely to continue in future too.79

76
Emperor v. Dharam Parkash AIR 1926 (Lahore) 611
77
AIR 1921 (Oudh) 190.
78
Nawab Dheru Gul v Emperor, AIR 1934 (Pesh) 29;
79
Arnit Dass v. State of Bihar, AIR 2000 (SC) 2264, Umesh Chander Vs. State of Rajasthan, 1982 Cri.L.J.994

90
 The protective philosophy underlying the special legal provision relating to children
has been reiterated by the judiciary on various occasions. Delinquent and neglected children
have enjoyed special protection under certain enactments like The Apprentices Act, 1850,
the Indian Penal Code, 1860, The Reformatory Schools Act, 1897, The Code of Criminal
Procedure1898, The Code of Criminal Procedure 1973 and Borstal Acts. In India the main
legislative Acts are The Children Acts, The Juvenile Justice Act, 1986, The Juvenile
Justice (C & P) Act, 2000 which are also influenced by the above mentioned Acts. For
example under Section 82 of IPC, a child below 7 years of age is absolved from any
criminal responsibility. Section 83 of IPC extends this exemption to children between 7 and
12 years of age if proved to be doli- incapax. The question under the IPC is limited to Mens
rea and the age of the child.
In Emperor v. Wali Mohd. & another80the Court held that throwing of stone at a
train by children of five and eight years would ordinarily be protected under Section
82 and 83 of the IPC and would not be punishable as offence. In 1977, the Supreme Court
held that the penalty of death should not be imposed on a person below the age of 1881 The
Children guilty of offences punishable with death or life imprisonment were the focus of
attention under Borstal Acts and Reformatory Schools Act. The judicial opinion differed on
the issue whether Reformatory Schools Act could be applied to such children. Under Borstal
Acts also the judicial response was equally divided. (See Gangaram Raghunath v State of
MP, Daljit Singh v. Emperor ; Ram Gopal V. State & Ningappa Prabhu Sarwad v. State of
Mysore)82..
The question again came up for decision in Dilip Saha v State of West Bengal83.
The full bench, in this case, gave elaborate reasons for holding that the age at the date
of commission of the offence was decisive of the applicability, taking into account
the protective nature of the Act. First, it pointed out that attainment of a particular age was
no bar to the trial of a child delinquent under the Act. Secondly, the Act had conferred on
the child certain rights not enjoyed by adults: release on bail in generally non-bailable
cases; prohibition against imposition of death penalty or imprisonment; ban on
preventive proceedings; removal of disqualifications: and so on. "These beneficial
provisions are rights vested in a juvenile delinquent on the day the offence is committed.

80
AIR 1936 (Sind) 185
81
Raisul v State of UP,AIR 1977 (SC) 1822.
82
AIR 1965 (MP) 122, AIR 1937 (Nag) to 74 (DB) 1968 Crl.L J. 1178,1961, Mad. L J (Crl.) 705)
83
1979 Cri LJ 88 (FB)

91
He cannot be denied of them by reason of the fact that at the time of actual trial he has
become an adult. Thirdly, the section providing for separate trial of child delinquent from
adult offender, did not say ‘that if a person was a child at the time of commission of the
offence but became an adult at the time of trial, he would be deprived of the benefits
conferred by the Act.
The fourth argument was the most forceful of all. The court pointed out that
sometimes delay in the trial of an accused may be caused by the investigating
officer. In such cases, denial of the benefits of the Act would defeat its whole object and
purpose. It will also be against the Constitutional principle. If we interpret Section 28 to
mean that it prohibits a joint trial of a child and an adult only when the child is a ‘child'
at the time of trial, that interpretation would go against the provisions of Article
20(1) of the Constitution which prescribes that no person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the act charged as an
offence, nor be subjected to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence. If therefore, at the time
of the commission of the offence a child cannot be sentenced to death or ordinarily
imprisoned, he cannot be subjected to a greater penalty at the time of his trial even if he
becomes an adult at the time of trial.
In Umesh Chandra v State of Rajasthan84 a full bench of the Supreme Court, too,
held that the date of commission of offence as the relevant date for applying the Children
Act. It observed:
“As regards the general applicability of the Act, we are clearly of the view that the
relevant date for the applicability of the Act is the date on which the offence takes
place. Children Act was enacted to protect young children from the consequences
of their criminal acts on the footing that their mind at that stage could not be said to
be mature for imputing Mens rea rea as in the case of an adult. This being the
intendment of the Act, a clear finding has to be recorded that the relevant date for
applicability of the Act is the date on which the offence takes place. It is quite
possible that by the time the case comes up for trial, growing in age being an
involuntary factor, the child may have ceased to be a child. Therefore, ss.
3and 26 become necessary. Both the sections clearly point in the direction of the
relevant date for the applicability of the Act as the date of occurrence. We are

84
l982 Cri LJ 994

92
 clearly of the view that the relevant date for the applicability of the Act so far as the
age of the accused who claims to be a child, is concerned, is the date of the
occurrence and not the date of the trial.”85
The controversy, however, did not end with the above decision of the Supreme
Court. The issue continued to be raised under the JJA, and at least two High Courts held
the age at the date of trial to be decisive of its applicability.86 These cases were
decided in apparent ignorance of the Supreme Court decision mentioned above, as also was
87
the decision in Arnit Das v. Stateof Bihar by a bench of the Supreme Court when it held
that the date of first appearance was the relevant date for applying the JJA. The bench
reasoned that the use of the word ‘is’ at two places read in conjunction with ‘a person
brought before it.’ Section 32 of the JJA clearly indicated for determination of age when the
accused was presented before the court. Disagreeing with Dilip Saha, it said that the right
under Article 20 of the Constitution would not be violated if the applicability of the Act
was determined by reference to the date of the commencement of the inquiry or trial. The
decision was per incurium and was subjected to severe criticism.88The division bench
apparently was not in agreement with the decision of the full bench in Umesh Chandra.
However, in the absence of a ruling on the issue from the Constitution bench, Umesh
Chandra continues to be the binding law on the issue. It is submitted that the date of
commission of the offence is decisive of the applicability of the Act as decided in Umesh
Chandra being a decision of the full bench of the Supreme Court, as also Dilip Sahu for the
reasons mentioned in these two cases.
In Malda Dada v. State of Gujarat89 it has been held by Gujarat High Court that
the word “attained” used in the J.J. Act of 1986 means ‘completed’. Therefore, a boy who
has not completed the age of sixteen years and a girl who has not completed the age of
eighteen years is a juvenile for the purpose of The Juvenile Justice Act, 1986. In Gopinath
Ghosh vs. State of West Bengal90the Supreme Court even after noticing that the
contention about age of a convict claiming the benefit of Children Act was being raised for
the first time in the Supreme Court allowed the plea of child status being raised before itself

85
However, this ruling of the court seems more an obiter than the dicta as it is not clear from the facts
of the case whether this point was an issue in the case
86
V. Luxminarayana, 1992 Cri LJ 334(AP)(Overruled in Bandella Alliah 1995 Cri LJ 1085 (AP) (FB);
Sheo Mangal Singh (1990 Cri LJ 1698) (Luck).
87
AIR 2000 (SC) 2264
88
Ved Kumari, ln Defence of Arnit Das v State of Bihar: A Rejoinder' (2002) 2 SCC (Jour) 15
89
I.L.R. (1972) Gujarat 326
90
1984 Cri. L.J. 168 (SC

93
in the interest of justice and referred the matter to the lower court for determination of the
age. It observed:
“ordinarily the Supreme Court would be reluctant to entertain a contention
based on factual averments raised for the first time before it. However, the
court is equally reluctant to ignore, overlook or nullify' the beneficial
provisions of a very socially progressive statute by taking shield behind the
technicality of the contention being raised for the first time in the Supreme Court.”
To avoid delay in determination of age, it directed that whenever a case is brought
before the magistrate and the accused appears to be aged 21 or below, before proceeding
with trail or under taking an inquiry must be made about the age of the accused at date of
the occurrence. The Supreme Court has permitted the plea of child status to be raised for
the first time before it on earlier91 as well as later occasions.92However this approach of
the Supreme Court has neither been incorporated in the statute nor followed consistently by
the Supreme Court itself.
In Hariom v. State of UP93 Supreme Court again summarily dismissed the plea of
being a child as no evidence was placed during trial or before the High Court, without
making any mention of its own cases holding that it was too late to produce a certificate
before Supreme Court.
The question before the Supreme Court in Arnit Das94 was whether a person is
juvenile and crucial date is the date when he is brought before the competent authority and
not the date of commission of offence. After considering all the trends and material in this
regard, the court held that as far as the present context is concerned the crucial date for
determining the question whether a person is Juvenile, is the date when he is brought
before the competent authority. So far as the finding regarding the age of the appellant is
concerned, it is based on appreciation of evidence arrived at after taking into
consideration of the material on record and valid reasons having been assigned for it.
In case of Shantanu Mitra v. State of West Bengal95Shantanu Mitra was arrested
under sec. 302 IPC and tried under same section. He raised the plea that he had not
attained the age on the date of commission of the offence i.e. 22-2-98 and was entitled to

91
Dharampal and others v. State of U.P.,AIR 1975 (SC), 1917.
92
Umesh Singh v. State of Bihar, 2000 (4) SCALE 511, Hawaldar Singh v. State of U.P., AIR 1985 (SC)
955
93
1993 Crl. Law Journal 1383 (SC)
94
AIR 2000, S C 2264 A
95
AIR 1998 SC. W 4099, AIR 1999 SC 1587.

94
protection under Juvenile Justice Act, 1986. The plea did not find favour with the lower
court. The High Court directed the Magistrate to hold inquiry under sec. 8(1) of Juvenile
Justice Act 1986. The Magistrate held inquiry and found that the appellant was born on 19-
11-72 and was over 16 years on date of incident. The court did not rely on birth entry in
Municipal record, LIC, Matriculation certificate and rejected the same. The High Court
also rejected the plea of appellant. However, the appeal was allowed by Supreme Court
holding that once an entry is made by an official, the same cannot be doubted on mere
argument that it was not confirmed with date of the suggested date of birth of appellant.
In Bhola Bhagat v. State of Bihar,96 it was held that where plea is raised by
accused in any court that he was a child at the time of commission of offence it is obligatory
for the court to examine the plea and hold enquiry if necessary to determine the age and
give a finding in that regard. The court cannot overlook beneficial provisions of Acts on
technical grounds. The Patna High Court in Krishna Bhagwan v State of Bihar97 in
complete disregard to the intendment of the JJA for keeping children away from adult
offenders even during trial, laid down that in case the plea of child status was taken up in
appeal. the appellate court should proceed as if the JJA did not apply, and record its
finding on the charge. Only if it found the accused guilty and prima- facie a child on the
date of commission of offence, then it should ask for a finding of age from the juvenile
court under Section 32 of the JJA.
In Bhoop Ram's Case98Supreme Court was confronted with the question whether the
appellant who had been convicted and sentenced along with adult accused should have
been treated as a child within the meaning of The U.P. Children Act and sent to the
approved school for the detention instead of being sentenced to undergo imprisonment in
Jail. The court after considering the material on record opined that appellant should have
been dealt with under the U.P. Children Act instead of being sentenced to imprisonment. The
Supreme Court ruled that since the appellant is now aged more than 28 years of age there
is no question of appellant now being sent to an approved school under the U.P. Children
Act for being detained there.
In Poulush Pahan v. State of Jharkhand and Another99 it was alleged in the FIR that
the petitioner had love affair with the married daughter of the informant and in course of
time she became pregnant which led to her illness. The petitioner is alleged to have given
96
1998 Cri. L.J. 1990
97
1991 Cri LJ 1283 (Pat) (FB).
98
Bhoop Ram v. State of U.P. 1989. 3 SCC (AIR 1989 SC 1329)
99
(2006(1)JCR 146(Jhr)

95
her some herbal medicine for abortion, which she took and due to which she died. The
case was committed to the Court of Session and petitioner was put on trial. On the basis of
medical report regarding the age of the petitioner, the matter was referred to the ACJM, for
inquiry under the provisions of Section 49 of the J.J. Act, 2000 for determining the age of
the petitioner. The petitioner was medically examined by three members Medical
Board on 8.12.2003. After physical and radiological examination the petitioner was found
to be 16 years. The ACJM gave much weight to the assessment of the age by the Magistrate
at the time of remand of the petitioner, whose age was assessed to be of 20 years and at
the time of recording the statement under section 313 of the Cr.P.C. to be 22 years. He
also on his own estimation held that the petitioner was not juvenile as he may be aged
20 years on 8.12.2003. The petitioner had challenged the order whereby the ACJM,
Khunti in exercise of powers under section 49 of Juvenile Justice (Care and Protection
of Children) Act, 2000, determined the age of the petitioner to be more than 18 years
and, thereby, held him to be not a juvenile.
Revision application was allowed and the order impugned of the ACJM, Khunti
was set aside. The Court observed that:
“It is a settled law that for declaring a person as juvenile under the J.J. Act 2000,
the age of the accused has to be considered on the date of occurrence when the
offence was alleged to have been committed and not on any other subsequent
date. In the present case, the petitioner was found to be aged about 16-17 years
on 8.12.2003 by the Medical Board consisting of three Doctors who examined the
petitioner physically as well as radiologically. In view of this finding of the
Medical board, the petitioner was aged 14-15 years on 12.2.2002 i.e. on the date of
alleged occurrence. In view o this position, the ACJM was held to have committed
grave error in not declaring the petitioner to be a juvenile. The ACJM ought to
have held the petitioner on the basis of the report of the three members Medical
Board.”
In Pratap Singh v. State of Jharkhand and another100first Information Report
was filed charging the appellant for causing the death of the deceased by poisoning. On the
basis of the FIR the appellant was arrested and produced before the Chief Judicial
Magistrate (CJM) Chas on 22.11.1999. On production, CJM assessed the age of the
appellant to be around 18 years old. On 28.2.2000, a petition was filed on behalf of the

100
JT 2005(2) SC 271

96
appellant claiming that he was a minor on the date of occurrence, whereupon the CJM
transmitted the case to the juvenile court. The juvenile court assessed the age of the
appellant by appearance to be between and 16 years and directed the Civil Surgeon to
constitute a Medical Board for the purpose of assessing the age of the appellant by
scientific examination and submit a report. No such Medical Board was constituted. The
parties were therefore asked to adduce evidence, and on examining the school
leaving certificate and marks-sheet of Central Board of Secondary Education, juvenile
court came to the finding that the appellant was below 16 years of age as on date of
occurrence of crime and he was then released on bail. Aggrieved thereby the informant
filed an appeal before the 1 st Additional Sessions Judge, who after referring to the
judgment Arnit Das v. State of Bihar disposed of the appeal holding that the juvenile
court had erred in not taking note of the fact that the date of production before the juvenile
court was the date relevant for deciding whether the appellant was juvenile or not for the
purpose of trial and directed a fresh inquiry to assess the age of the appellant. Aggrieved
thereby the appellant moved the High Court by filing Criminal Revision Petition. The
High Court while disposing of the Revision followed the decision rendered in Arnit Das
and held that reckoning date is the date of production of the accused before the Court and
not the date of the occurrence of the offence. The High Court also held that for
determining the age of juvenile, the provisions of 1986 Act would apply and not 2000 Act.
The High Court took the view that the date of birth, as recorded in the school and the
school certificate, should be the best evidence for fixing the age of the appellant and any
other evidence in proof of age would be of much inferior quality. Pending the inquiry, the
Supreme Court was called upon to decide on conflicting views given by it in Arnit Das v.
State of Bihar101and Umesh Chandra v. State of Rajasthan102 .
The Court referred the matter to the Constitution Bench. The questions which Bench
decided were:
(a) Whether the date of occurrence will be the reckoning date for determining the
age of the alleged offender as Juvenile offender or the date when he is produced in
the Court/competent authority.
(b) Whether the Act of 2000 will be applicable in the case a proceeding
initiated under 1986 Act and pending when the Act of 2000 was enforced with effect

101
AIR 2000, SC 2264A
102
1982 Cri. L.J. 994

97
 from 1.4.2001.
The Court overruled Arnit Das and restored the position taken in Umesh Chandra
case thereby holding that the reckoning date for the determination of the age of the juvenile
is the date of an offence and not the date when he is produced before the authority or in the
Court. The whole object of the Act is to provide for the care, protection, treatment
development and rehabilitation of neglected delinquent juveniles. It is a beneficial legislation
aimed at to make available the benefit of the Act to the neglected or delinquent juveniles.
It is settled law that the interpretation of the Statute of beneficial legislation must be to
advance the cause of legislation to the benefit for whom it is made and not to frustrate the
intendment of the legislation.

98
 Chapter – 6
Conclusion and Suggestions
We are guilty of many errors and many faults, But our worst crime is abandoning
the children, Neglecting the fountain of life. Many of the things we need can wait.
The child cannot wait. Right now is the time his bones are being formed, His
blood is being made, And his senses are being developed .To him we cannot
answer ‘tomorrow’ His name is ‘Today’

1. CONCLUSION:-

The approaches to the prevention of juvenile delinquency, administration of juvenile

justice system and protection of the children who are deprived of liberty have undergone a
progressive evolution of thought and action since 19th century. Under the aegis of the United
Nations in the 20th century many seemingly important initiatives have been attempted to
secure the best interest of the child. A major initiative in this regard was adoption of United
Nations Convention on the Rights of the Child (UNCRC) which recognizes the
responsibilities of parent, family, communities and the state towards children. The UNCRC
endows children with rights for their protection when they come into conflict with law. The
creation of these rights and imposition of duties suggests that law and administration shall
endeavour in such a manner that these rights are realised in real sense. It says every child
shall 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 which takes into account the child's age and desirability of promoting the
child's reintegration and the child's assuming a constructive role in society. Under the
Convention State Parties are required to ensure that no child is subjected to torture or other
cruel, inhuman or degrading treatment or punishment.
Similarly the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules) provides for promoting juvenile welfare and wellbeing
to minimize the necessity of intervention by the juvenile justice system. It desires the States
to ensure for the juvenile a meaningful life in the community which will foster a process of
personal development and education that is free from crime and delinquency.

99
 The United Nations Guidelines for the Prevention of Juvenile Delinquency (The
Riyadh Guidelines) emphasizes on preventive measures by engaging young person in lawful,
socially useful activities and adopting a humanistic orientation towards society an outlook
on life which can develop non-crirninoqenlc attitudes. To that end it advocates for
socialization.
The United Nations Rules for the Protection of Juveniles Deprived of their Liberty
1990 refers to a juvenile justice system that upholds the rights a nd safety and promotion of
the physical and mental wellbeing of juveniles instead of imprisonment.
In India before the enactment of the first ever central uniform legislation the approach
of reformation through rehabilitative measures had started in the late 19th century during the
colonial rule. With enactment of Juvenile Justice Act in 1986 it was believed that not only
uniform treatment can be offered all through the country to the children who have come in
conflict with law but also delinquency can also be prevented through measures like
rehabilitation and social reintegration. In this backdrop there is a need to understand the
context in which the legislative arrangement had been made. The Juvenile Justice Act
1986, the first uniform central legislation on the subject was enacted consequent upon the
observation of the Supreme Court that instead of each State having its own legislation
there shall be a uniform legislation for the entire country. Thus, the need for the uniform
legislation emerged for uniformity in treatment of children who come in conflict with law.
In that context a very few international standards were in place like the Beijing Rules which
laid down minimum standards for administration of juvenile justice. All other international
human right instruments were not child focused. The provision regarding juvenile was very
much an integral part of the broader framework of human rights. However, the Juvenile
Justice Act 2000 was enacted in a context when there are several international
framework and standards exist like the UN Convention on the Rights of the Child,
United Nations Standard Minimum Rules for Administration of Juvenile Justice,
United Nations Rules for the Protection of Juveniles Deprived of their Liberty 1990 and
the United Nations Guidelines for the Prevention of Juvenile Delinquency. Each of these
above frameworks encompass a variety of measures and services for protection of juveniles
and children in difficult circumstance or in a situation when they come in conflict with
law. In the present context the domestic law and legal system does not operate in isolation.
The performance and progress of the domestic law is subject to monitoring under these
above mentioned international instruments. The facilities and opportunities for children
along with various kinds of services envisaged under the law are no longer restricted to

100
welfare measures but these are rights for which the juveniles and children are entitled. The
performance of law thus bears significance as the violation of these legal rights would
amount to commission of legal wrong and omission legal duty.
In India scene for the children has changed a lot and their problems and related
issues have been given attention and are being discussed at various forums. The question of
providing proper protection and care to the children of such a big number is a big
challenge. A good number of our children on account of socio-economic reasons have
adding themselves in the list of delinquent child. Present day youth especially children are
under tremendous social pressure due to new changing social perceptions. A report of
UNICEF in 2005 on the state of world's children under the title “Child under Threat”,
speaking regarding India, mentioned that millions of Indian children are equally deprived
their right of survival, health, nutrition, education and safe drinking water. This is what
is happening to the most of the young children who if properly taken care of, would shine
the future of the country. The cache statements “Children are supremely important national
asset” and the greatest gift of humanity in the present scenario and on ground level realities
appear hollow.

101
2. SUGGESTION:-
A. Juvenile Justice Board
 As referred in section 4 of the Act, a special training programme must be prepared
and the officers of the Board including the Principal Magistrate should be given
training of child psychology and child welfare.
 Ambience of the place where the Board holds enquiry should be child friendly.
Wearing of black coats, using raised platforms or dias etc should be avoided.
Practice of making the juvenile stand in front of the Board should be stopped. The
child must be made comfortable and feel free from fear of any person. Sittings
can be held by the Board in the observation homes.
 Basic infrastructure like computer, typewriter, stenographer, furniture and buildings
should also be provided to the Board for smooth discharge of duties.
 There should be a proper maintenance of files and case records.
 Video linking of the homes should be provided for children to facilitate inspection
and supervision by the Board to keep a check on anything done against the best
interest of the child.
 At least one of the two social workers in a Board should be a person with a
minimum qualification of law degree.
 The Board should be provided with a list of experts in the field of psychology,
counseling, clinical psychiatrist, NGOs, panelists of advocates and fit institutions and
fit persons, observation homes, special homes and voluntary organizations who are
dedicated to the field of child welfare. The services of such persons may be utilized.
The officers manning the juvenile courts/Boards need to be sensitized to the
development need of the juvenile in which case, flexible enough to respond to
new discoveries in social sciences research and willing to invest in the experiment
with promising new interventions for offenders.
 For giving good services to the juvenile and the parents of the child, they should be
treated psychologically in consultation with a psychiatric. For the same, a
psychologist and one social worker, who has awareness of the relevant law, must
be appointed in the Juvenile Justice Board.
 Co-operation of NGOs and other social organizations may also be sought for by the J
J Board in addition to special juvenile police unit and probation officer. Probation
officer should be given the sufficient training that how they have to prepare the

102
 social investigation report which will help the JJB. Lady probation officer be
appointed instead of government probation officer for the preparation of social
investigation report.
 One government welfare official should be appointed by the government to work as a
liaison officer between the NGO and Juvenile Justice Board child welfare
committee. In this regard, the State Government Welfare Department may organize
seminar, sensitization and orientation programme inviting all the probable officials,
police personal who are responsible for better delivery of justice to the children

B. Treatment of Juvenile
 Juvenile should be brought before J J B within 24 hours.
 The age of the juvenile should be determined with reference to the date of
commission of the offence. A detailed scientific investigation for determination of
the age is not required.
 The juvenile has the same Constitutional safeguards like other adult offenders. The
statement of the juvenile under section 313 CrPC should be recorded and if
he/she wants to adduce evidence then that should also be allowed.
 In no case the juvenile shall be sentenced to death or committed to prison in
default of payment of fine or default of furnishing security.
 Whenever a juvenile is produced before a magistrate not empowered to exercise the
powers of the board under the J.J. Act such magistrate should without any delay
record such opinion as regards the juvenile and forward the records and the juvenile
to the Board and the board shall hold the enquiry as if the juvenile had originally been
brought before it.
 Judges in the juvenile courts should be trained to recognize the educational, social
and treatment needs of the children in crisis.
 Mere implementing the laws without there being proper infrastructure or its proper
implementation remains incomplete. This part should also be simultaneously dealt
with by all concerned government or non- governmental agencies.
 For proper implementation and giving relief to the juveniles determination of age is a
relevant factor. In India because of many reasons many children do not have birth
certificates so even in absence of age proof the beneficial provision of the Act
should be made applicable to the child in appropriate cases.

103
C. Procedure for Inquiry
 Principal Magistrate should not be entrusted with any other work of the criminal
court except the JJB as the Board is required to complete the enquiry within 4
months.
 Due to the variations in state rules from state to state, there is an ambiguity
regarding proper implementation of provisions of the Act. Therefore, common rules
should be followed throughout India in all JJ Boards.
 Stay in special home or observation home to be ordered only in exceptional cases and
for strong reasons which are to be recorded.
 The board should conduct independent and private inquiries with the juvenile to
ascertain whether he/she was abused, sexually or otherwise by anyone or is suffering
from any disease and if it so the juvenile be sent to government hospital for
checking and treatment.
 The Board should also ensure that the police officer who apprehends a juvenile
should inform the parent or guardian of the juvenile regarding such
apprehension.
 The Board shall not adjudicate the proceedings or affect the dispositions of the
enquiry without calling the report of probationary officer.
 Summary procedure should be adopted during enquiry instead of summons procedure
trial.
 No joint proceeding of a juvenile and an adult accused should be held.
 JJ B should conduct awareness programmes about offences against children in
every school situated in their jurisdiction through legal aid campaign. .

D. Rehabilitation/ Shelter Home/ Observation Home.

 There should be separate homes for juveniles and the destitute should not be mixed
with the juveniles. Homes should not be constructed like jails. The homes for
children should be video linked to facilitate inspection and supervision by the Board
so as to keep a check on anything done against the best interest of the child. Also,
surprise visits should be made at the special homes, juvenile homes and
observation homes. Senior citizens should be involved as community resource
person to look after the well being of the children in various homes with their
expertise in different fields.

104
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31. Sorabjee, S.J. (March 3, 2005), Juvenile and the Death Penalty, Sunday Express, New
Delhi.

Websites:-

1. http://www.lawctopus.com/
2. http://lawlex.org/
3. https://www.facebook.com/DeadlyLAW
4. http://www.lawintellectindia.com/
5. http://indialegalonline.com/
6. http://www.westlawindia.com/
7. http://www.advocatekhoj.com/
8. http://www.vakilno1.com/
9. http://www.legalserviceindia.com/
10. https://indiankanoon.org/
11. http://manupatra.com/
12. http://www.scconline.com/
13. http://judis.nic.in/
14. http://ipleaders.in/
15. http://studentatlaw.in/
16. http://vakilsearch.com/

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