INTRODUCTION
There is a saying prevalent among the Indians, especially in the northern India that is if you return home in the evening, then it is not called forgotten. This adage can be said to form the basis of the current juvenile justice system of India. There is also existed a presumption among the people all around the globe since the ancient times that the juveniles should be tackled with very leniency and softly due to a system of thought which presumes youth to be habitual of responding in heavy and unending frustration even sometimes accompanied by the aggressive approaches due to their age.
The major debate and discussion around the juvenile justice system started after the dreadful incident of Nirbhaya Gang Rape Case when an accused just being short of six months of attaining the age of 18, the age of becoming major, forced the Indian legal system to convict him as a juvenile instead of a full-fledged offender. The involvement of any juvenile in a such form of heinous crime led the Parliament to came up with a new legislation called “Juvenile Justice (Care and Protection) Act, 2015” but before understanding the nitty-gritties of the said act and other provisions present in the Indian legal system for juveniles, let us first understand who can be termed as juvenile and how are they different from “child” in Indian context.
DIFFERENCE BETWEEN A JUVENILE AND A CHILD
As per the section 2(e) of the Children Act, 1960; during being in force till 1986 stated, “child” as any boy who has not yet attained the age of sixteen years or any girl who has not yet attained the age of eighteen years.
The sub-section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 a “child” means any that person who hasn’t yet completed eighteen years of his age. The Act divides the term “child” into the two groups: –
– a child who is in conflict with law
– a child who is in need of care and protection
A child who has committed any offence and was under the age of eighteen years at the time of commission of offence then he/she basically termed as “a child who is in conflict with law” while the second category is “a child who is in need of care and protection”, it means any child as defined under Section 14 of the Act itself not having any charges on its head.
Child and juvenile are almost same but have some different implications and contexts which separates them. Child is considered simply as an innocent person but juvenile has something negative legal dimension attached to it. Child implies being young and naïve while juvenile indicates either immaturity or a young criminal. In lame words it can be said that child is itself called a juvenile if he is accused of any crime.
ACCOUNT OF JUVENILE JUSTICE SYSTEM OF INDIA
Prior to the eighteenth century juvenile offenders were treated in the same way as any other criminal offenders were being treated. The movement for special treatment of juvenile offenders started from somewhat around the 18th century. In the pursuance of the UNGA has also adopted a Convention on the Rights of Child on 20th November 1989 which states the provisions to protect the interests of the juvenile offenders. The convention also provides to protect the social disintegration of juveniles and also states that there shall be no judicial proceedings or any kind of court trials against them. This convention led Indian Parliament to annul the Juvenile Justice Act of 1986 and instead to make a new reformed and comparatively better law termed as, The Juvenile Justice (Care and Protection of Children) Act, 2000.
The Juvenile Justice Act, 1986 also came into force by repealing the earlier Children Act, 1960 to ratify Standard Minimum Rules for the Administration of Juvenile Justice, which are adopted by the UNGA in November 1985. The act barring Jammu & Kashmir fundamentally laid down uniform framework in the entire nation for the protection of rights and interests of juveniles. It even set forth some basic provisions for fair administration of justice and course of action to be taken in case of serious crimes being done by the juvenile offenders.
The Juvenile Justice Act, 2000 was enacted to ratify UNGA’s 1989 convention on the protection of rights of child but proved to be ill implemented and ill equipped. It was amended twice in 2006 and 2011 to remove the gaps and loopholes present but went in vain. Then to prevent the increasing juvenile crimes in India the act was also revoked and replaced by The Juvenile Justice (Care and Protection) Act, 2015 which is currently the main legislation governing the juvenile justice system of India.
CLAIM OF JUVENILITY
As being somewhat understood by the clause itself, claim of juvenility refers to decide who can the claim the rights of a juvenile or who can be considered as a juvenile. In India, The claim of juvenility is to be decided by the Juvenile Justice Board keeping in consideration the Rule 12 of the Juvenile Justice Rules, 2007. It is imperative upon the board to decide the claim of juvenility before the proceedings of court start but the claim can also be raised at any other point of time, even after the disposal of the matter.
In the case of Kulai Ibrahim v. State of Coimbatore[1], Court observed that according to the Section 9 of Juvenile Justice Act, 2015 accused has the right to raise the claim of juvenility at any required point of time either during the ongoing trial or even after the adjudication of the case. In the case of Deoki Nandan Dayma v. State of Uttar Pradesh[2], SC stated that for the determination of any person to be considered as juvenile, the date of birth of student present in the records of school is an admissible evidence for determining the age of juvenile.
WHICH THEORY TO BE CONSIDERED IN CASE OF JUVENILES – REFORMATIVE THEORY OR PUNITIVE THEORY?
There are majorly four theories prevalent in the legal system of any country regarding the punishment to be given to a convict. Those are – retributive theory, punitive theory, reformative theory and deterrent theory. Let’s understand about punitive and reformative theories which are of our concern now. Punitive theory is the most prevalent and widely practiced system of thought even from the ancient period. This theory states that the convicts should be while reformative theory refers to the system of thought which mentions that convicts instead of being punished should be given chance and opportunity to reform themselves and be an asset to the society.
In India, we also majorly follows punitive theory’s stance but in the case of a juvenile offender we shift to the reformative theory without any concrete stand to do so. It is argued from the State’s side that juveniles being the future of the nation should be allowed to reform instead of being living his life in prison for any uncertain period. But is the reasoning completely unflawed?
In my opinion, the rule should be same for one and all no matter who commits a crime. A rape is a rape, it doesn’t matter if the perpetrator is below 18 or above 18. Juvenile cannot be said that he/she doesn’t have mens rea while committing an offence. If the law is talking about reforming the juvenile offenders to have a better life then law should also talk about the rights of the victim. Adopting the reformative theory of punishment by law, juveniles are getting the undue advantage to commit crime without facing any serious consequences of their act.
The present juvenile justice system gives paramount significance to the age of a person while considering one as juvenile which should somewhat be changed. The system should also focus upon the conditions in which the crime took place and its causes which can help in knowing more about the mental state of a juvenile.
CONCLUSION
The rate of crimes done by juveniles are increasing day by day at a greater pace which is very concerning issue for our society. There are many cases reported of juvenile delinquency from various parts of nation. Juvenile Delinquency refers to a crime committed by any youth who is younger than 18 years. Although the government is trying to check the incidents of juvenile crimes by enacting various legislations, these aren’t enough. The present laws aren’t able to create a deterrent in the mind of the juveniles which led to unfruitful results. There should be intent from the authorities’ side and burn inside the society to reform the juveniles itself instead of reforming the juvenile justice system.
Author’s Name: Naman Aggarwal (Dr. Ram Manohar Lohia National Law University, Lucknow)
[1] Kulai Ibrahim v. State of Coimbatore AIR 2014 SC 2726.
[2] Deoki Nandan Dayma v. State of Uttar Pradesh (1997) 10 SCC 525.
