Hurdles in the juvenile justice

Hurdles in the juvenile justice

Author: Mr. Harshal Sreen, Institute of Law, Nirma University.

Introduction

Each countries development largely depends upon the children and the youth of the county because these peoples are the future of the country. First of all, we need to know who is considered as a juvenile. Juvenile Justice Care and Protection Act, 2015 defines a “child” “means a person who has not completed 18 years of age.[1] In 1986 a statue came into force for the purpose of the protection of juveniles after that many other laws also came into force. In the last few decades, the crime rate by children under the age of 16 years has increased. The reason for increasing the crime rate is may be due to the upbringing environment of the child, economic conditions, lack of education and parental care.

The frightful and barbarous case “Nirbhaya Delhi Gang Rape Case” in 2012 shocked the whole nation which leads to a serious debate which was related to the involvement of the accused who was just six months short to attain the age of 18 years. This forced the Indian Legislation to introduce a new law and thus, the Indian Parliament came up with a new law which is known as “ Juvenile Justice ( Care and Protection), 2015.

Provisions in India governing juvenile law

1. Constitutional provision

State owes special care and protection towards them and therefore constitution of India has provided with several rights dealing with their liberty, development and care, non-discrimination, educational rights, etc. Indian constitution under article 15(3) provides a special power to the state to make special laws for women and children.[2] 42nd amendment act 1976 is considered as one of the most important amendments which developed and incorporate many important laws in the Indian constitution and laws. Article 39(f) was inserted in the Constitution of India by the 42nd Amendment Act, which provides that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and they must be protected against exploitation and against moral and material abandonment.[3] Article 47 imposes a duty on the State to raise the level of nutrition and the standard of living to improve public health.[4]

• Provisions under IPC and CrPC

There are various provisions under IPC and CrPC which deal with the protection of the children. According to Section 82 of the Indian Penal Code, it says “Nothing is an offence which is done by a child under seven years of age.[5] Section 83 says 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.[6]

Section 27 of CrPc, provides that any person who at the date of appearing before the court is under 16 years of age is not punishable with death or imprisonment for life.[7] According to Section 318 of CrPc where the accused does not understand the proceedings (though not of unsound mind) the court can have the inquiry or trial, in case of a court other than High Court if the proceedings result in conviction, the proceedings shall be forwarded to the High Court with the circumstances of the case and the High Court shall pass the order as it thinks fit.[8]

Judicial efforts –

The judiciary in India plays a very important role and has passed many significant judgments in favor of child rights.

In Sheela Barse v Union of India,[9] The Supreme Court issued directions to the state government to set up necessary observation homes where children accused of an offence could lodge, pending investigation and trial will be expedited by juvenile courts.

In Sheela Barse v. Secretary, children Aid Society,[10] The Supreme Court commented upon setting up dedicated juvenile courts and special juvenile court officials and the proper provision of care and protection of children in observation homes.

In Vishal Jeet v Union of India,[11] The Supreme Court issued appropriate directions on a PIL to the state Governments and all Union Territories for eradicating the evil of child prostitution and for evolving programs for the care, protection, treatment, development, and rehabilitation of the young fallen victims.

In M.C. Mehta v State of Tail Nadu,[12] Supreme Court pronounced upon the constitutional perspective of the abolition of Child labor and issued appropriate guidelines to the Government of India with respect to compulsory education, health, nutrition, etc of the child laborers.

In Sakshi v Union of India,[13] Supreme Court directed the government/ Law commission to conduct a study and submit a report on the means of curbing child abuse.

Hurdles

There are hurdles to justice in every system. Those present in juvenile justice can include lack of judicial resources and/or capacity, non-compliance with legislation governing children, corruption of officials involved in the process, legal illiteracy, physical distance from judicial facilities, mental and/or psycho-social impairments and the list could go on. There are several problems encountered in the effective administration of justice regarding juvenile delinquency.

According to the Justice Verma Committee report on “Amendments to Criminal Law” has noted that “the Juvenile Justice Act has failed miserably to protect the children in the country.[14] The report also state about the conditions of the children’s homes and found them lacking in basic infrastructural requirements, where they are forced to grow and become the prey of “sexual offences”. The juvenile homes are unable to provide the basic constitutional rights which are mentioned for the children under the Indian Constitution. The nutritional, emotional, mental requirements are so low that they often not be able to cope up and contribute to society.

• Most of the States are yet to constitute juvenile courts to cover all the districts as required under the Juvenile Justice Act, 2000. As a result, the powers of such courts are being exercised by other authorities who may not have special knowledge of child psychology and child welfare.
• The act does not deal with the physical and psychological maturity of a Juvenile.
• The approach of the agencies involved in the system is penal, not social and reformatory which is against the best interest of child theory.
• There is no logical or scientific reason which shows that total and complete rehabilitation can be achieved by a delinquent/ offender/ child in conflict with the law within a maximum period of three years.
• Provisions of the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 failed to reflect in the Act.

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[1] Juvenile Justice(Care & Protection of Children) Act,2015, No.2, Acts of Parliament. Section 2(12).

[2] INDIA CONST. art. 15 cl. 3.

[3] INDIA CONST. art.39 cl. f.

[4] INDIA CONST. art.47.

[5] The Indian Penal Code, 1860, Section 82.

[6] The Indian Penal Code, 1860, Section 83.

[7] Code of Criminal Procedure,1973, Section 27.

[8] Code of Criminal Procedure,1973, Section 318.

[9] A.I.R. 1986 S.C. 1733.

[10] A.I.R.1987 S.C.656.

[11] A.I.R. 1997 S.C. 699.

[12] (1999) 6 S.C.C. 591.

[13] A.I.R. 199 S.C. 1412.

[14] Bindu Shajan Perappadan, ‘Juvenile Justice Act has failed miserably, The Hindu, (July 20,2019, 4:13 p.m.), https://www.thehindu.com/news/national/juvenile-justice-act-has-failed-miserably/article4337040.ece