Article 39(f) of the Directive Principles of State Policy[1] particularly introduces prohibition of exploitation of children against moral and material abandonment. The juvenile justice system aims to provide an environment where children are safe and utilises the theory of retribution. The juvenile justice system is founded on the idea that children and young people are not inherently cruel or violent. There is a strong notion that if given the chance to develop instead of being assumed to be irredeemable and isolated from their communities, youth can and will lead healthy and productive lives. However, the number of juvenile crimes have been at an unprecedented high. The issue was brought in the forefront by the “Nirbhaya Rape Case”[2] wherein one of the convicts was a minor. There are various factors such as parenting, state policies, and economic issues contributing to the above mentioned issue. In addition to preserving public safety, the fundamental objectives of the juvenile justice system include the successful reintegration of adolescents into society and the development of skills, habitation, and rehabilitation. Children are used as a medium by many people to commit very crimes. Children have readily influenced minds, which many people exploit. This paper will be elaborating on the current Juvenile Justice System of India and the different school of thoughts behind it. Before diving into the legal system, it is necessary to differentiate between a minor and a juvenile.

DIFFERENCE BETWEEN CHILD AND JUVENILE

As per section(e) of the Children Act 1960[3], the definition of a ‘child’ is as follows-

“ A boy or a girl who has not yet reached the age of sixteen or eighteen years.”

In the section 12 of the Juvenile Justice ( Care and Protection Act) 2015[4], a the definition of ‘child’ is segregated in two categories-“

1. A child who conflicts with law
2. A child in need of protection and care”

The word ‘juvenile’ in our society tends to have a negative connotation to it. The supreme court of India in Ragbhir v state of Haryana has taken the time to define the term “delinquent child”, “a child who has been found to have committed an offence”.[5] So in uncomplicated terms, a child is anyone below the ages of sixteen or eighteen whereas a juvenile is a child who has done some legal wrongdoing.

HISTORY OF JUVENILE JUSTICE SYSTEM

Before Independence, all juveniles were treated the same way as adult criminal offenders. Later, the need of a different treatment of juvenile offenders started to come to the forefront. After independence of India, the government of India passed by the Children Act 1960. This Act provided protection against all imprisonments for minors in any circumstances and provided them care and protection. Nonetheless, only union territories are covered by this law.

To introduce juvenile justice in India, Juvenile Justice Act of 1986 was brought about. This law gave the 1960 Children Act consistency and uniformity. It was based on the 1959 United Nations declaration of child.[6] Even though this act was enforced all over India, it suffered from numerous conflicts and thus was repealed by the Government of India.

A new act- Juvenile Justice (care and protection) Act was introduced instead. It gave clearer definition of juvenile and introduces much better terminology.

The following amendments were made in the Juvenile Justice (care and protection) Act

• 2006 amendment[7]: it specified that the age of juvenile will be considered from the date the crime was committed. It also introduced that under no circumstances a juvenile could be kept in a lockup or jail.
•  2015 amendment[8]: several changes were introduced under this amendment.  One of the most significant reforms suggested was to have juveniles between the ages of 16 and 18 who committed heinous crimes tried as adults. The Act defines orphaned, abandoned, and relinquished children clearly and offers a structured system for them. Describe the heinous, petty and serious offences committed by children. The juvenile justice board and child welfare committee now have increased authority and responsibilities according to the Act. This amendment was brought about after the heinous Delhi gang rape case- Mukesh V state[9] where a minor was also involved in the gang rape.
• 2021 amendment: This recent amendment was passed to reinforce and solidify the rules governing adoption and child protection. Prior to this amendment, the civil court’s adoption order was final and the child could be adopted. After this amendment, the district magistrate also has the power and authority to issue such adoption orders.

CURRENT JUVENILE JUSTICE SYSTEM

After the country’s rapid industrialization and urbanisation, the issue of juvenile delinquency is increasingly making an appearance. The term “juvenile delinquent” refers to a young person who has committed an actual crime, violated societal norms, or whose behaviour is beyond the scope of parental supervision and may be subject to the watchful eye of a juvenile court. We will look into the current act- Juvenile Justice( Care and Protection) Act 2021 to examine the situation of the current system :

The Rajya Sabha approved the juvenile justice amendment bill on July 28, 2021.According to a report released by the National Crime Reports Bureau (NCRB) in 2019, the percentage of juvenile crimes has increased when compared to preceding years separately.[10] Additionally, the NCRB investigations revealed that despite the Act’s 2015 Amendment, child care facilities were still not performing as intended. The following changes were made in this amendment-

1. Serious offences[11]: serious offences has been classified into two categories – heinous offences and serious offences.
2. Heinous Offences- crimes which required at least seven years of discipline or more under section 2(33) of Indian Penal Code 1860.
3. Serious Offences-  Serious offences include those for which Section 2(54) of the Indian Penal Code recommends a minimum detention of three years and a maximum of seven years. This removes any ambiguity and has been implemented to provide the juvenile with the highest level of assurance that they will be kept out of the adult court system.
4. Adoption[12] : Adoption before this amendment could only be issued by courts. However, district magistrates and Dumpty District Magistrates have the power to issue the sanctions for adoptions now.
5. Appeal[13]:  A party that feels wronged by the adoption order may appeal the decision by going to the divisional official to have the matter heard there. The appeal must be filed within 30 days of the District Magistrate and Additional District Magistrate’s approval of the request, though. In order to speed up the ADOPTION instrument, these offers should be rejected within a month of recording.
6. Designated Courts[14]: Assigned courts, also known as Children’s Courts, are special courts that were established specifically to hear all of the offences brought forth by juveniles. Prior to the Amendment becoming a part of the Act, offences that had a potential sentence of seven years or more of incarceration were tried in the Children’s Court, whereas offences that carried a potential sentence of less than seven years of incarceration were tried by Judicial Magistrates. The measure corrects this by stating that the Children’s Court will be used to try any offences related to the rally.
7. Child Welfare Committee[15] : No person will be designated as an individual from CWC unless they have been actively involved with any record of human rights or child rights, have been indicted for a crime including moral turpitude, have been fired from or excused from administrations of the central government, any state government, or any administration undertaking, and if they are a part of the management of a child care facility in a location.
8. Termination of members[16]: If a member of the board of trustees fails to attend the Child Welfare Committee processes for three months without good cause, or if they miss less than three-fourths of the scheduled meetings in a year, their appointment will be terminated by the state government upon request. The measure also places direct management under the control of CCIs because surveys have shown that these institutions don’t need to keep kids for rehabilitation; instead, they keep them for the money, which furthers defilement.

Now that we have looked at the changes introduced by the recent amendment. Let us analyse the issues in it.

The main concern regarding the Juvenile Justice (Care and Protection) Act 2021 was Section 86 [17]of the Act. As per this section, the crimes that qualified for the special law’s three- to seven-year prison sentences have been reclassified as non-cognisable.

So what are non-cognisable and cognisable offences?

1. Cognisable offences[18] : Specified in S.2. (c) (Cr.P.C.) A cognizable case is one in which a police officer may make an arrest without a warrant in line with the First Schedule or any other law that is currently in effect. A cognizable offence is an offence for which this is the case.
2. Non cognisable offences:[19] Specified in S.2.(1) (Cr.P.C.) Unrecognized offence refers to a crime for which and In a non-cognizable case, a police officer is not permitted to make an arrest without a warrant. Offenses that are not cognizable are not as serious as those that are.

By making these offences as non-cognisable, it would be more challenging to report an offence to the police if these offences, along with a number of other significant crimes.

The power dynamic in such cases is already usually out of proportion. Children rarely have any autonomy and by this change being introduced, it will snatch more power from the hands of the minors. The majority of these crimes are reported to the police by either parents or child rights organisations and Child Welfare Committees, as the victims themselves are unable to directly report them due to the imbalance in power (CWC).

The majority of the parents of these children are day labourers who are either unable or unwilling to report the crimes to the authorities. They do not want to participate in the legal procedure because doing so would require them to miss work and cost them money.

Child Welfare Committees (CWC): In the majority of situations, CWCs will “discuss and come at a settlement” before calling the police.

Hence, the current juvenile justice system can be termed progressive. However, there are numerous gaps that still exist and work needs to be done.

CONCLUSION The State is the parent of the entire nation. It is their duty to protect and provide care to all especially children. The main role of juvenile justice system is to ensure that children are provided the required care and they are not tried as adults. India adopted this law that addresses the rights, interests, and safety of juvenile offenders. This is an effort to deal with the problem related to juvenile delinquency. The concept of juvenile and reformation is still new and is highly controversial due to different school of thoughts. Attempts are being made by the state and society to lower the rates of such crimes committed by juveniles. Furthermore, the loopholes in the Act needs to be resolved. The crimes that are being committed can be used as parameters to determine what punishments would bring about significant change. With keeping everything in mind, The real driving forces and motivation behind the “Juvenile Justice System” are developing the young offender’s capacity to enable him or her to become an important member of society, holding the offender accountable and promoting self-change while avoiding the negative effects of institutionalisation, giving voice to the victim’s suffering, and re-coordinating the adolescent in the public and gaining public recognition.

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[1] Directive Principles of State Policy, 1978, §39(f).

[2] Mukesh & Anr vs State For Nct Of Delhi & Or, (2017) 6 SCC (India).

[3] S.K. Bhattacharyya, Juvenile justice System in India, 23, Journal of the Indian Law Institute, 606, 606-612 (1981).

[4] The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 12, Acts of Parliament, 2015 (India).

[5] Goel, Shivam. “Children in conflict with law: Indian and international perspective.” SSRN Electronic Journal, 2015, pp 1-47.

[6] S.K. Bhattacharyya, Juvenile justice System in India, 23, Journal of the Indian Law Institute, 606, 606-612 (1981).

[7] Ved Kumari, Current Issues in Juvenile Justice in India, 41, Journal of the Indian Law Institute, 392, 392-404 (1999).

[8] Ved Kumari, Current Issues in Juvenile Justice in India, 41, Journal of the Indian Law Institute, 392, 392-404 (1999).

[9] Mukesh & Anr vs State For Nct Of Delhi & Or, (2017) 6 SCC (India).

[10] NCRB, Government of India, National Crime Records Bureau (Oct. 25, 2022), https://ncrb.gov.in/en.

[11] The Juvenile Justice (Care and Protection of Children) Act, 2021, Acts of Parliament, 1996 (India).

[12] The Juvenile Justice (Care and Protection of Children) Act, 2021, Acts of Parliament, 1996 (India).

[13] The Juvenile Justice (Care and Protection of Children) Act, 2021, Acts of Parliament, 1996 (India).

[14] The Juvenile Justice (Care and Protection of Children) Act, 2021, Acts of Parliament, 1996 (India).

[15] The Juvenile Justice (Care and Protection of Children) Act, 2021, Acts of Parliament, 1996 (India).

[16] The Juvenile Justice (Care and Protection of Children) Act, 2021, Acts of Parliament, 1996 (India).

[17] The Juvenile Justice (Care and Protection of Children) Act, 2021, No. 86, Acts of Parliament, 1996 (India).

[18] Goa police, Cognizable Offence (Oct. 25, 2022), https://citizen.goapolice.gov.in/web/guest/cognizable-offence.

[19] Goa police, Cognizable Offence (Oct. 25, 2022), https://citizen.goapolice.gov.in/web/guest/cognizable-offence.

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Author: Arushi Singh

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