During the initial years of the ongoing decade, the public was under the conception that several heinous crimes were committed by juveniles and this lead to a wide uproar. The aftermath of which, lead to the formation of the Juvenile Justice(Care and Protection of Children) Act of 2015. The affirmative action taken by the government was considered to be vital for the betterment of juvenile justice in India as this would allow for 16-18 year old ‘children in conflict with the law’ to be tried as adults. In retrospect, one can opine that there are underlying issues that have either been created or have not been resolved by the enforcement of the Act. This article shall delve into the underlying issues of the Act by examining its background, legal framework and the inconsistencies created by the same.
Juvenile Justice, Juvenile Justice (Care and Protection of Children) Act, Justice in India, Criminal Law, Crimes, Adoption, Reformation, Amendments, Supreme Court, Constitution.
The concept of juvenile justice has been governed by several laws, some of which trace back to the 1850s. The Juvenile Justice Act, the most prominent law governing this area, has been discussed and amended over the last twenty years. Since its inception in 1986, the Act has been amended in 2000 and recently in 2015. To understand the reasoning behind the recent amendment of the Act, one must examine the prior state of affairs that presided over the country. In the year of 2012, the infamous gang rape in Delhi took the country aback and caused havoc as one of the accused was a 17 year old child. The lawmakers at the time were heavily pressurised by the public and petitions were filed in the Supreme Court to amend the laws to allow for children to be tried as adults or to change the definition of a child. Having initially dismissed these claims, the government gave in and introduced the Juvenile Justice Bill of 2014 which later became the Juvenile Justice Act of 2015 and brought about the changes demanded by the public. However, the repercussions of the same were not truly assessed and this created several issues for those being tried under the Act, children.
A Synopsis of the Legal Framework on Juvenile Justice in India:
The Juvenile Justice Act of 2015 continues to adapt a protective outlook with both, children in conflict with the law and children in need of care and protection and allows for the same by comprehensively defining the two. A highly regarded amendment was the removal of the term ‘juvenile’ in the Act and its replacement with the term ‘child’. Additionally, the Act allows for the assemblance of a Juvenile Justice Board and Child Welfare Committee in every district. A new chapter on adoption was introduced with the Central Adoption Resource Authority (CARA) deemed as the statutory body to ensure effective performance of the same. Several new offences against children were introduced, namely, illegal adoptions, use of a child by militant groups and offences against disabled children. Upon commencement of the Act, all Child Care Institutions were officially required to register as per its regulations. Lastly, the public pleaser was the inclusion of special provisions to try 16-18 year old children as adults.
Inconsistencies within the legal framework:
To begin with, the provisions pertaining to the trying of children as adults were constitutionally challenged time and again. Even before its enforcement, the initial bill was rejected on the grounds of it being unconstitutional due to the trying of children as adults. The Standing Committee of the Parliament at the time went so far as to state the following – “[T]he existing juvenile system is not only reformative and rehabilitative in nature but also recognises 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 showcases that the Act was accused of being unconstitutional even before its inception by some of the lawmakers of the country.
In Subramanian Swami v. Union of India, an argument against the classification of all children until 18 years of age was brought before the Supreme Court of India. However, the apex court upheld this classification and rejected the plea by opining that – “Classification or categorization need not be the outcome of mathematical or arithmetical precision in the similarities of the persons included in a class and there may be differences amongst the members included within a particular class. So long as the broad features of the categorization are identifiable and distinguishable and the categorization is reasonably connected with the object targets, Article 14 will not forbid such a course of action.”Thereby, the apex court upheld the initial classification of the Act before the amendment was introduced.
It is also imperative to note that the Juvenile Justice Act of 2000 raised the age of juvenility from 16 to 18 years of age in the case of boys and girls were already under the same purview. The current Act seems to have taken a step back by being fluid with the age based classification by allowing for 16-18 year old children to be tried as adults.
The Act failed to outline two different places of safety for children in conflict with the law and children in need of care and protection. According to the Act, a child of any age or offence can be sent to a place of safety which may or may not have children in conflict with the law. This clearly poses as a threat to the safety of the children in need of care and protection.
Addressing the concerns:
With the following concerns created above, one can only hope for a form of redemption. The redemption comes in the form of reconstituting the initial law or by reading down the law that instates the trying of children as adults. Additionally, if classifications are to be made, they should be done so in accordance with all committees being represented. A suggestion that may be widely accepted and would serve as progressive would be the definition of the term ‘adolescent’. Adolescents undergo hormonal changes and hence, differ from the rest defined as children. If the definition was to be introduced, several children could be protected better and several crimes could be furthered looked into from a new standpoint. This would prove to be fruitful in the current cases of consensual adolescents committing acts deemed as illegal under the law and would bring further changes with respect to consent.
While addressing the second issue, the solution is merely separating the two sects defined under the Act and providing them with specialised care as opposed to generalised care.
As is seen from the above mentioned statements, juvenile justice is currently under the influence of the public and while it still has a protective approach towards children, the amendments seem to largely fixate on the crimes committed by them. One can view the hasty nature of the enforcement of the Act as several groups and representatives were not consulted If reformation has to be brought about, there must be a more progressive approach by ensuring that the interests of the children are protected as opposed to that of the public. The lawmakers must frame the law to allow for the betterment of the child, be it a child in conflict with the law or a child in need of care and protection. The Juvenile Justice Act must always retain its protective nature if not, there will only be enhancement in the punishment of children and this would not ensure absolute justice to all.
Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
§ 15, Juvenile Justice Act, No. 2 of 2016, India Code (1993),Vol. 13.
Supra note 1.
Sahil Bali v. Union of India, (2013) 7 SCC 705 (India).
Supra note 1.
§ 2, Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
§ 4(1), Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
 Chapter VIII, Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
§ 68, Juvenile Justice (Care and Protection of Children) Act,No. 2 of 2016, India Code (1993),Vol. 13.
§ 83, Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
§ 85, Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
§ 15, Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, India Code (1993),Vol. 13.
Para. 32, Juvenile Justice (Care and Protection of Children) Bill Report, No. 264, (2014).
Subramanian Swami v. Raju through the Juvenile Justice Board, (2013) 10 SCC 465 (India).
Juvenile Justice (Care and Protection of Children) Act, No. 56 of 2000, India Code (1993),Vol. 13.