The juvenile justice system reaffirms its positive faith in fundamental human rights and dignity of the individual. Therefore, for the first time a comprehensive and uniform legislation on justice and rights of the child came into force on October 2, 1987, the birthday of Mahatma Gandhi.
However, the Juvenile Justice Act, 1986 was not sufficient to cater to the developmental needs of children in the best possible manner. Parliament repealed this Act, and basing on the UN Convention on the Rights of the Child, a Juvenile Justice (Care and Protection of Children) Act-2000 (in short, JJ Act) was enforced.
Article-39(f) of the Constitution provides, “The State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.”
The Preamble of the JJ Act also speaks in unequivocal terms the law relating to juveniles in conflict with the law and children in need of care and protection by adopting a child-friendly approach to the adjudication and disposition of matters.
“Juvenile” means a person who has not completed 18th years of age as per the Act. There are two types of juveniles, one who comes in conflict with the law of land and a “neglected juvenile” which means beggar child, destitute child, abused child and alienated child.
The cases of neglected juveniles are looked after by the Child Welfare Committee. The cases of juveniles who come in conflict with law are inquired into by the Juvenile Justice Board. When the juveniles below 18 years commit heinous offences like rape and murder, opinion was sharply divided on this question and there was a national debate to lower the age from 18 to 16. It so happened that in December 2012, there was gangrape of Nirbhaya at night in a moving bus in Delhi by five to six persons out of whom there was a boy below 18 years. After trial, it was ascertained that the child offender was guilty of raping the 23-year-old paramedical student a number of times that day in a most brutal way.
Shortly later, a young lady photojournalist of Mumbai was also gangraped in her boyfriend’s presence by about five persons, out of whom there was a teenager below 18 years. The matter is now pending before the Supreme Court whether to bring down the age of juveniles involved in serious offences from 18 to 16 years. The court has directed the Union Ministry of Child Development to submit its views on the issue.
In this context, it would be profitable to highlight the attitude of the US Supreme Court towards delinquent children under 18 years committing crimes leading to imposition of death penalty which was referred in an article written by Soli J Sorabjee in 2005. The US Supreme Court by a majority ruled, “Imposition of death penalty on offenders who were under the age of 18 when the crimes were committed is unconstitutional.” The court reasoned that the susceptibility of juveniles to immature behaviour indicates that “their irresponsible conduct is not as morally reprehensible as that of an adult” and there is a greater possibility that a minor’s character deficiencies will be reformed.
A line was drawn at the age of 18 because that is the age where society draws the line for many purposes between childhood and adulthood, and therefore, “it is the age at which the line for death eligibility ought to rest.”
The question is that children by reason of their physical and mental immaturity need special safeguards and appropriate legal protection because in most of the cases they are victims of criminalisation, penalisation and stigmatisation.
So, it was felt by the legislature that the children’s deviant behaviour can be checked through care, protection, treatment and rehabilitation. The statute enjoins that the JJ Board should function in a child-friendly atmosphere and there should not be rigid legal norms because nourishment of the child and development of his personality is the principal object of the legislation.
The UN convention on the rights of the child is an elaboration of human rights standards in respect of the child based on Article-24 of the international covenant on civil and political rights.
It is necessary that “right to childhood” must be protected. There is also another statutory requirement that jail is hardly a place for a child which defeats the avowed of object of the legislation. In the leading case of Sheela Barse versus Union of India, to ensure juvenile justice the Supreme Court directed that no child can be detained in jail excepting breastfeeding child.
The court held that delinquent and neglected juveniles cannot be mixed up. So, there is an urgent need of a change of outlook and sensitisation of the police and magistracy dealing with juveniles. Their attitude should be reformative rather than punitive.
There are numbers of enactments to safeguard children against labour and social exploitation. Children misbehave because perhaps the society and the elders have behaved worse. Society is becoming increasingly inhospitable to children by ignoring the non-custodial alternatives prescribed by law and exposing the delinquent child to the trauma of custodial cruelty, thereby running the serious risk of sending the child to the criminal clan again.
So, it may be mentioned that even the Indian Penal Code in the general exception chapter, has recognised the concept of doli incapax, ie, nothing in an offence which is done by a child below seven years. Similarly, nothing is an offence which is done by a child above seven years and below 12 who has not attained sufficient maturity to judge the nature and consequence of his acts.
Another vital aspect of juvenile justice is child labour impedes the progress and personal development of the child. Poverty and illiteracy are the cause of child exploitation by the rich and dominant classes. Therefore, the problem of child exploitation is the mankind’s belated recognition. One-third of the population constitutes children. So, the nation’s prosperity lies in the development of child.
Very recently; the Supreme Court came down heavily on the attitude of the Union Government and State Governments for not implementing the provisions of the JJ Act and directed the State for strict implementation of the Act to prevent children from being banded together with adult criminals in jail.
The court asked the National Commission for Protection of Child Rights (NCPCR) to act as the nodal agency with NGOs to monitor implementation of the Act. The court observed, “You rescue children and put them in reform homes. Why is a child sent by a family to work in a hazardous industry despite knowing that school is the place where he should be.
That’s because the child gets some money that sustains the family. As long as the government does not compensate the family for the loss of income resulting from removal of the child from labour, all well meaning rehabilitation policy will be meaningless.”
lastly, although we have declared rights of the children, passed legislations like the JJ Act, Child labour (Prohibition and Regulation) Act-1986 and Protection of Children from Sexual Offence Act-2012 and formulated a national policy on children and established a national commission for children, truth remains life of the child both in the family and society has not improved.
Particularly, quality of life of the children in rural areas and in slums is miserable. The State, civil society and every citizen must rise to the occasion for nurture of children and to protect their rights so that India will have its rightful place in the comity of nations as a signatory to the UN Convention on the rights of the child.
(The writer is a former Special Judge, CBI, Bhubaneswar and Prof of law, lal Bahadur Shastri National Academy of Administration, Mussoorie)