Sub Theme: - Juvenile Justice (Care and Protection of Children) Bill, 2015 & Comparative

Outlook of Juvenile Laws of Different Countries.

Juvenile In Conflict With Law: Indian and International Perspective With Regard
To The New Bill Introduced In 2015

Dated: November 26’2015

Dear Madam/ Sir,

I Himani Agarwal (2nd Year Learner) and Vivek Singh (5th Year Learner) ICFAI Law School,
THE ICFAI University Dehradun, wish to showcase our analysis & learning on the above
mentioned theme in the upcoming seminar & dialogue engagement initiated by ICFAI Law
School, THE ICFAI University Dehradun.

We wish to submit our Research analysis on the topic & humbly ask for an opportunity to
present the same in the upcoming event at THE ICFAI University Dehradun. The research paper
is not under any consideration, nor has it been published or used in any form whatsoever.

We look forward to an intellectual stimulating & meaningful contribution. Please find the
abstract attached below.

Details:-

1. Himani Agarwal – Indian, +91 9559155554, +91 7060471925,

[email protected]
2. Vivek Singh – Indian, +91 9557412331, [email protected]

Postal Address: Central Hope Town, THE ICFAI University Dehradun,

Selaqui, Dehradun 248001 – Uttrakhand.

Your’s sincerely
Himani Agarwal
2nd Year Learner, Faculty of Law
The ICFAI University Dehradun.
Juvenile In Conflict With Law: Indian and International Perspective With Regard To The
New Bill Introduced In 2015.
BY - Himani Agarwal1

Vivek Singh2

Abstract

The 21st century seems witnessing not only monumental technological advancements and its
ideas, but also the unanticipated evolution of mind and its functioning, while forming the “mens
rea” for any criminal offence. In this fast moving world, where the technological boon exposes
children to large information and also makes its acquisition very easy, a huge question awaits its
answer, that, whether the time has come to adjudge children’s maturity differently and amend the
existing laws and provisions accordingly?

The approach of proposed bill, 2015 is sound. The juvenile justice bill, 2015, has taken an
intriguing position, i.e. the juveniles between the 16 to 18 years of age, committing serious or
heinous offence are to be tried as adults with no death penalty or life imprisonment pitted against
him. Currently, the juvenile aged 16 years or above, accused of heinous offence, is tried by
juvenile justice board, if convicted, is sent to a juvenile home for a period of three years. If we
adopt this logic in “Nirbhaya Case”, accused should be kept in the juvenile home for a period of
three year and then should released with legal presumption that he has reformed. This, with due
respect is illogical and bad in law.

This paper also deals with National and International aspects of juveniles in conflict with law
and emphasizing on Conventions on Children and comparison with the Juvenile Laws of other
Countries.

This paper concludes that, the Juvenile Justice (Care and Protection of children) bill, 2015 is
inadequate and has failed to achieve the desire goal, and henceforth needs reconsideration.

Keywords:- The Juvenile Justice (Care and Protection of children ) Bill 2015, Juvenile Justice

1 nd
2 year learner ICFAI University Dehradun
2
5th year learner ICFAI University Dehradun
 Introduction

Recalling the phrase “Children are the building blocks of a Nation”, Dr. Kalam rightly observed
in his biography -“Your children are not your children. They are the sons and daughters of Life's
longing for itself. They come through you but not from you. You may give them your love but
not your thoughts, for they have their own thoughts.”3 While quoting the same he would have
never dreamt of, that these infantile thoughts would reach to such tier, where instead of acting as
a catalyst for their Nation, they would serve as venom. The above iterated sentence is the
outcome of listening and visualizing the delinquent acts done by children these days, which the
National Crime Record affirms. According to the National Crime Record Bureau, the juveniles
in conflict with law (IPC crimes) in 2013 have increased by 13.6% over 2012 as 27,936 IPC
crimes by juveniles were registered during 2012 which increased to 31,725 cases in 20134, and
this has been the reason that the traditional view of reforming the child delinquents seems losing
its very essence and also failing in accomplishing the real objective behind its establishment. The
question of how lawmakers should respond to developmental differences between adolescents
and adults in formulating juvenile crime policy has been the subject of debate for a generation. A
theme of the punitive law reforms that dismantled the traditional juvenile justice system in the
1980s and 1990s was that adolescents were not different from adults in any way that was
relevant to criminal punishment– or at least that any differences were trumped by the demands of
public safety.5 But this view has been challenged in recent years; scholars and courts have
recognized that adolescents, due to their developmental immaturity, are less culpable than are
adults and that the principle of proportionality requires that teens be punished less severely for
their criminal offenses. But again this view seems strangled with different ropes of arguments,
affirming the presence of requisite maturity in adolescents too.

The problem of Juvenile Delinquency seems progressively increasing and getting transformed
into its hideous form in the dawn of industrialization and urbanization where the wide world of
information preoccupies its eminent place. As a result of various scientific and technological

3
Wings of Fire - By. Dr. A.P.J. Abdul Kalam.
4
Crime In India Compendium 2013, http://ncrb.gov.in.
5
Matthew Wagman, Innocence Lost in the Wake of Green: The Trend is Clear n If You Are Old Enough to Do the
Crime, You Are Old Enough to Do the Time, 49 Catholic University Law Review 49 (2000): 643–677, 643
advances during the present century, the structure and functions of our society have undergone a
change with disorganization and maladjustment. The rapid increase in the growth of cities,
nuclear and heterogeneous families, and unprecedented variation in culture tends to affect the
juveniles in an unusual way.6

Juvenile delinquency can be defined as the criminal acts performed by juveniles (that is,
individuals below the age qua which ordinarily, criminal prosecution is not possible). There is no
exact definition of ‘juvenile delinquency’ and has been a debatable issue, more so when any
unacceptable behaviour vis-à-vis juveniles can be brought under the broad-head of
‘delinquency.’7 The Supreme Court of India in the case of Raghbir v. State of Haryana8 took
occasion to define the term ‘delinquent child’ as follows: “a child, who has been found to have
committed an offence”. P. Ramanatha Aiyar’s Concise Law Dictionary, defines the term
‘delinquent child’ as follows- “a legal infant who has either violated criminal laws or is engaged
in disobedient or indecent conduct, and is in need of treatment, rehabilitation, or supervision”.9

P.N. Bhagwati and R.S. Pathak, JJ. - In the case of Munna v. State of U.P.10 observed as
follows:

“Juvenile delinquency is by and large the product of social and economic maladjustment. Even if
it is found that these juveniles have committed any offence, they cannot be allowed to be
maltreated. They do not shed their fundamental rights when they enter the jail. Moreover, the
objective of the punishment being reformative, we fail to see what social objective can be gained
by sending them to jail where they come in contact with hardened criminals and lose whatever
sensitivity they may have to finer and nobler sentiments.”

6
Juvenile Justice System An Appraisal – by T.M. Khan, M.A. LL.M Sr. Lecturer P.G. Department of Law,
Behrampur University.
7
Juvenile Delinquency: A status in a juvenile characterised by anti-social behaviour, waywardness, incorrigibility;
an offence committed by a person who is under 16 years of age. See: P. Ramanatha Aiyar’s Concise Law
Dictionary, Lexis Nexis, Fifth Edition (2014), p.341, 712.
8
AIR 1981 SC 2037.
9
Ibid 6.
10
(1982) 1 SCC 546.
Juvenile delinquency is by and large the product of social and economic maladjustment even if it
is found that these juvenile have committed any offence, they cannot be allowed to be
maltreated. They do not shed their fundamental rights when they enter the jail. Moreover, the
objective of the punishment being reformative, we fail to see what social objective can be gained
by sending them to jail where they come in contact with hardened criminals and lose whatever
sensitivity they may have to finer and nobler sentiments.

Juvenile justice is based on the two philosophical concepts:

 Parens patriae
 Individualized treatment

Doctrine of parens patriae allows the court to conduct the proceedings principally to
determination of criminal guilty and rendering of punitive sentences.

Doctrine of individualized treatment vies the disposition of decision primarily for rehabilitation
of delinquent juveniles. It seeks to prescribe a treatment qua juvenile delinquents that, fits the
needs, personality, psychological development and social circumstances of juveniles in conflict
with law.

The Need of the Hour – The time seems approaching when this question that “whether child
delinquents should be tried as adults?” should be answered, and therefore it is the need of the
hour to decide the maturity of child delinquents and amend the existing provisions of law
accordingly that lay their blind faith in reformation, undermining the role of “mens rea” in any
criminal liability. The philosophy that the juveniles should not be treated as adults is to accord
and favour the argument that child offenders should be kept away from the hardened criminals so
that they may not imbibe in them the technicalities of crime commission. In order to prevent
them from being labeled as criminals, a special provision of their trial is being mentioned in the
act, where they are not to be levied with harsh punishments rather to be treated as helpless
children who are in need of care and protection and therefore should be rehabilitated and
reformed in order to bring them back as law-abiding citizens of the country.11 But it is very
strange that at a time when the government is trying to curb the menace of cruelty with juveniles,

11
Ibid 4.
the punishment that they have prescribed is in no way going to act as a deterrent to such erring
individuals. The punishment needs to be increased and also the fine amount needs to be specified
so that it may discourage the potential law breakers in this area. 12

According to U.N. Convention on the Rights of the Child every individual below the age of 18
years as a ‘child13’ and all signatory countries are required to abide by this international
convention. The provision qua the trying of a juvenile as an adult is in contravention of the
Convention. The U.N. Rules for the Protection of Juveniles Deprived of their Liberty, 1990,
by virtue of Rule 11 states that, individuals below the age of 18 years are to be regarded as
‘juveniles’.14 Indian Juvenile’s Justice act, 2000 define a juvenile or child means a person who
has not completed eighteenth year of age.15 It is interesting to note, the Supreme Court of India
in Umesh Chandra v. State of Rajasthan16, held that the ‘relevant -date’ for determining the age
of the accused who claims to be a ‘child’ is the date of occurrence and not the date of trial. But, a
two-judge bench of the Supreme Court in Arnit Das v. State of Bihar17, laid down the law that,
the relevant date for the said purpose would be the date of production of the accused before the
Court and not the date of the occurrence. Due to conflict in views, the matter qua the issue was
referred to the Constitution Bench in Pratap Singh v. State of Jharkhand18, where it was held
that- ‘the reckoning date for the determination of the age of the juvenile is the date qua the
offence and not the date when he is produced before the relevant authority or in the Court’.

The horrifiying “Nirbhaya Case” too raised a question on the criminal liability of these child
delinquents. To bring neuroscience as a defence qua the age criteria of 18 years is not only
waggish but also capricious. It can be said candidly (backing on scientific research) that, children

12
THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2000- A CRITIQUE By: Ankita Gupta, Student,
4th year B.A., LL.B. (Hons.), NALSAR University of Law, Hyderabad.
13
The U.N. Convention on the Rights of the Child, by virtue of Article 1 (Definition of the Child) declares,
‘everyone under the age of 18 has all the rights in the Convention’.

14
The U.N. Convention on the Rights of the Child- makes clear the principal aim of youth justice, that is, to act in
the ‘best interests of the child’. ‘Child’ defined for the purpose of the Convention is an individual under the age of
18 years.

15
Sec. 2(k) of JJA 2000.
16
(1982) 2 SCC 202.
17
(2000) 5 SCC 488.
18
(2005) 3 SCC 551.
cultivate 85 percent of their personality, intellect and skills by the age of 5 years.19 Pleading
innocence for having committed an offence at the age of 17 (plea of juvenility), and being open
to legal scrutiny under the penal code if the offence is committed at the age of 18 years, is
farcical. The true test of juvenility is not the age but the level of mental maturity of the offender.

19
See: David Edie & Deborah Schmid, Brain Development & Early Learning: Research on Brain Development,
Wisconsin Council on Children & Families, Winter 2007, Volume 1,
https://larrycuban.files.wordpress.com/2013/04/brain_dev_and_early_learning.pdf,
International Law: Children in Conflict with Law

1. The United Nations Standard Minimum Rules for Administration of Juvenile

Justice, 198520(The Beijing Rules):

‘Beijing Rules’, list standards for the administration of ‘Child Justice’ in a comprehensive
manner. These Rules were adopted by the United Nations in 1985 in Beijing, China. Rule 2
defines “juvenile” as a child or young person who, under the respective legal system, may be
dealt with for an offence in a manner which is different from the one meted out to an adult.

Rule 4 urges States not to fix the age of ‘criminal responsibility’ at too low an age level, bearing
in mind the facts of emotional, mental and intellectual maturity. Rule 7.1 provides for the rights
of the juveniles qua the basic procedural safeguards such as the presumption of innocence; the
right to be notified of the charges; the right to remain silent; the right to counsel; the right to the
presence of a parent or guardian; the right to confront and cross-examine witnesses; and right to
appeal to a higher authority at all stages of the proceedings.

2. The United Nations Convention on the Rights of the Child, 198921, adumbrates the
following rights qua a ‘child’:
1. Article 37 (Detention): No child shall be tortured or suffer other cruel treatment or
punishment. A child shall only, if ever be arrested, or put in prison it should be as a
matter of last resort and for the shortest possible time. Children must not be put in prison
with adults and they must be able to keep in contact with their family.
2. Article 40 (Juvenile Justice): A child accused or guilty of breaking the law must be
treated with dignity and respect. They have the right to seek help of a lawyer and, fair
trial that takes account of their age or situation. The privacy of a child must be respected
at all times.

20
See: The United Nations Standard Minimum Rules for Administration of Juvenile Justice, 1985,
https://www.ncjrs.gov/pdffiles1/Digitization/145271NCJRS.pdf.
21
See: The United Nations Convention on the Rights of the Child, https://www.unicef.org.au/Discover/What- we-
do/Convention-on-the-Rights-of-the-Child/childfriendlycrc.aspx.
 3. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty,
199022 (Havana Rules).

The Havana Rules observe as follows-

a. Juvenile Justice System should uphold the rights and safety, as well as, physical and mental
well-being of juveniles. Imprisonment should be used as a last resort.

b. Juveniles detained (under arrest) or awaiting trial (untried juveniles), are to be presumed
innocent and should be treated as such. Detention before trial should be avoided to the maximum
extent possible, and the same should be limited to only exceptional circumstances. When
preventive detention is used, Juvenile Courts and other investigative bodies should give highest
priority to the most expeditious processing of such cases to ensure the shortest possible duration
of detention. Untried detainees should be separated from convicted juveniles.

c. All reports (legal records, medical records and records of disciplinary proceedings) qua a
juvenile being tried for an offence must be kept in a confidential individual file by the juvenile
justice detention facilities. The records must be kept up-to-date and accessible only to the
authorised persons.

4. The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990 23

(Riyadh Guidelines):

These Guidelines were adopted in 1990 (one year after the Convention on the Rights of the
Child). These Guidelines stress on a need for a multi-disciplinary approach and proper
recruitment and training of personnel who work with children.

22
See: The United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990; Adopted by
General Assembly Resolution 45/113 of 14 December 1990;
http://www.ohchr.org/Documents/ProfessionalInterest/res45_113.pdf.
23
See: The United Nations Guidelines for the Prevention of Juvenile Delinquency, 1990,
https://www.crin.org/docs/resources/publications/hrbap/IHCRC/UnitedNationsGuidelinesforthePreventionofJuv
enileDelinquency.pdf.
It is indicated in the 1990 text, that the Riyadh Guidelines should be interpreted and implemented
within the broad framework of the Universal Declaration of Human Rights; the International
Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and
Political Rights; the Declaration of the Rights of the Child; and the Convention on the Rights of
the Child; and in the context of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules), as well as other instruments and norms
relating to the rights, interests and well-being of all children and young persons.

These Guidelines aim at the following: a. Spreading awareness qua the fact that predominant
opinion of experts- labelling a young individual as ‘deviant’, ‘pre-delinquent’ or ‘delinquent’,
often contributes to the development of a consistent pattern of undesirable behaviour in them.
Member States must ensure that there are necessary legislative safeguards to protect children and
other young individuals from drug abuse, sexual exploitation, other abuses and exploitation.
Juvenile Justice (Care and Protection of Children) - Global Analysis24

A. United Kingdom25:
 The general policy of law in the U.K. is that: (a) Juveniles under 18 years of age
(especially under 15 years of age) are to be tried, as far as possible, by the Youth Court,
reserving trial in the Crown Court for cases involving serious offences; (b) First time
offenders aged 12 to 14 years and all offenders under 12 years of age, are not to be
detained in custody.
 Minimum age at which a juvenile can be charged for an offence: 10 years.
 Age at which a juvenile can be tried as an adult: The age is 17 years in England, Wales
and North Ireland and 16 years in Scotland (can be lower in exceptional cases).
 Offences qua which a juvenile can be tried as an adult: Offences in the nature of murder;
rape; causing explosion likely to endanger life or property.
 Penalty imposed for offences committed by juveniles for which, they can be tried as
adults: Punishment similar to the one which is rendered to adult offenders. Life
imprisonment is allowed but not death penalty.

B. United States of America:26

 Minimum age at which a juvenile can be charged for an offence: It ranges between 6
years to 10 years; however, needless to say, it varies across different States. Age at which
a juvenile can be tried as an adult:
 The age is 13 years as per the federal law; however, this may vary across different States.
 Offences qua which a juvenile can be tried as an adult: Offences in the nature of assault;
murder; robbery; aggravated sexual abuse; offences involving firearms; drug offences.

24
See: The Juvenile Justice (Care and Protection of Children) Bill, 2014, Legislative Brief, PRS Legislative
Research,
http://www.prsindia.org/uploads/media/Juvenile%20Justice/Legislative%20Brief%20Juvenile%20Justice%20Bi
ll.pdf.
25
The Children and Young Persons Act, 1933, http://www.legislation.gov.uk/ukpga/Geo5/23-24/12.
26
See: United States Code Chapter 403- Juvenile Delinquency,
http://uscode.house.gov/view.xhtml?path=/prelim@title18/part4/chapter403&edition=prelim.
  Penalty imposed for offences committed by juveniles for which, they can be tried as
adults: Punishment similar to the one which is rendered to adult offenders, but no life
imprisonment or death penalty can be imposed.
 The U.N. Convention on the Rights of the Child, 1989, has been ratified by all countries
except for Somalia, South Sudan and the United States27. Although the traditional age
qua the gaining of majority in U.S. is 18 years of age; but nearly all States permit
individuals below the age of 18 years to be tried as adults for crimes committed heinous
and diabolic28. Decisions of the United States Supreme Court that made juvenile courts
more like criminal courts, but with some important differences. 29-

Kent v. United States30: It was ruled that, Courts must provide the “essentials of due process” in
transferring juveniles to the adult system.

In re Gault31: It was ruled that, in hearings that could result in commitment to an institution,
juveniles have the right to notice and counsel, to question witnesses, and to protection against
self incrimination. The Court did not rule on a juvenile’s right to appellate review or transcripts
but encouraged the States to provide those rights. The Court explicitly rejected the doctrine of
parens patriae as the founding principle of juvenile justice, terming the concept as ‘murky’ and
of ‘dubious historical relevance’.

Roper v. Simmons32: Minimum age for death penalty was set at 18 years. The U.S. Supreme
Court held that, imposition of death penalty on any juvenile under the age of 18 years, is to be
construed as harsh, cruel and unjust, thereby violating the constitutional mandate qua the Eighth
Amendment, which in turn prohibits rendering of cruel and unusual punishment. The Court cited
factors such as: lack of maturity; underdeveloped sense of responsibility; juvenile’s susceptibility
27
See: Justice Leila Seth, Talking of Justice, Children’s Rights, Aleph Book Company, 2014, p.91.
28
See: Para 32, Dr. Subramanian Swamy v. Raju through Member Juvenile Justice Board, Criminal Appeal No. 695
of 2014 (Arising out of SLP (Criminal) No. 1953 of 2013), Supreme Court of India,
http://ncpcr.gov.in/show_img.php?fid=519.
29
0 See: Juvenile Offenders and Victims: 2014 National Report, Chapter 4: Juvenile Justice System Structure and
Process, http://www.ojjdp.gov/ojstatbb/nr2014/downloads/chapter4.pdf.
30
383 U.S. 541, 86 S. Ct. 1045 (1966).
31
387 U.S. 1, 87 S. Ct. 1428 (1967).
32
543 U.S. 551, 125 S. Ct. 1183 (2005).
to peer pressure; and personality traits of juveniles as not the same qua the adults; as a reason for
setting the minimum age at 18 years, post which death penalty can be given to an accused for
crimes, heinous and serious.

C. Germany33:
 Minimum age at which a juvenile can be charged for an offence: 14 years.
 Age at which a juvenile can be tried as an adult: The age is 14 years.
 Offences qua which a juvenile can be tried as an adult: Offences in the nature of sexual
abuse; child abuse leading to death; abuse of persons who are incapable of resistance.
 Penalty imposed for offences committed by juveniles for which, they can be tried as
adults: Imprisonment for 10 years. Juveniles cannot be given life imprisonment or death
penalty.
D. China:34
 According to Article 2 of the Law of the People’s Republic of China on the Protection of
Minors, 2006, the legal age of majority in China is 18 years.35
 The Criminal Code of 199736 (China), by virtue of Article 17 states that: “A person
who has reached the age of eighteen, who commits a crime shall bear criminal
responsibility. A person who has reached the age of fourteen but not the age of eighteen
who commits the crimes of intentionally killing another or intentionally injuring another,
even causing serious injury or death, and the crimes of rape, robbery, drug trafficking,
arson, explosion, and poisoning shall bear criminal responsibility. A person who has
reached the age of fourteen but not the age of eighteen who commits a crime shall be
given a lesser punishment or a mitigated punishment. When a person is not criminally
punished because he has not reached the age of eighteen, the head of his family, or

33
The Youth Courts Law, 1974, http://www.gesetze-im-internet.de/englisch_jgg/englisch_jgg.html.
34
See: Law Library of Congress, China, Children’s Rights (Executive Summary),
http://www.loc.gov/law/help/child-rights/pdfs/Children's%20Rights-China.pdf.
35
See: The Law of the People's Republic of China on the Protection of Minors, 2006,
http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1383869.htm.
36
See: The Criminal Code of 1997 (China),
http://www.fmprc.gov.cn/ce/cgvienna/eng/dbtyw/jdwt/crimelaw/t209043.htm.
 guardian is to be ordered to subject him to discipline. When necessary, he may also be
given shelter and rehabilitation by the government.”
 Further, by virtue of Article 49, the Code states that: “The death penalty is not to be
applied to persons who have not reached the age of eighteen at the time the crime is
committed or to women who are pregnant at the time of adjudication”.
 The Juvenile Delinquency Prevention Law, 1999, by virtue of Article 6 states that:
“Juveniles shall be educated in ideals, morality, rule of law, as well as in patriotism,
collectivism and socialism.”37
 The Criminal Procedure Code, 2012 qua juveniles, vide Article 266 stipulates that
juvenile offenders are to be treated with dignity; their reformation and rehabilitation is to
be given priority. The guiding principle shall be ‘education first and punishment second’.

37
See: The Juvenile Delinquency Prevention Law, 1999, http://www.npc.gov.cn/englishnpc/Law/2007-
12/11/content_1383561.htm.
Supporting the 2014 Bill: Juveniles in the Age Category of 16-18 years to be tried as
Adults, for Crimes committed, Serious and Heinous.

1. Ordering a convict of heinous crimes such as a rape and murder to spend just three
years in special home is not going to deter others from committing crimes against
women

The basic purpose of law in any country is the smooth functioning of country without any chaos
and disturbance etc. but the juveniles act in our country seems to be defeated by this very basic
and prime purpose of law. Giving an only three year imprisonment and a special home
atmosphere to juveniles for heinous and grievous acts, such as of rape and murder, no where
seems to meet the ends of the justice or the purpose for which this law was enacted.

2. Juveniles justice act needs amendment as it does not talk about the physical or
mental maturity of a juvenile
There are two components of any crime in law is

 Actus rea
 Mens rea
and when both the components are proved in the court of law, then only an individual is
convicted. Now, in the case of a juvenile, the actus rea part of his offence is protected under the
juvenile law and the mens rea part is never taken into consideration, as there are no parameters to
judge the same. Section 83 of the Indian Penal Code clearly specifies that “nothing is an
offence which is done by a child above seven year of age and under twelve, who has not attained
sufficient maturity of understanding to judge of the nature and consequence of his conduct on
that occasion.”
Having no parameters about the physical or mental maturity of a juvenile, it has like given a
licence to all matured, cruel type of persons under the age of 18 years to live with full impunity
and commit any crime of any level and walk scot free only on the basis of their age being less
than 18 and being covered under Juveniles Justice Act.
The mental maturity of the juvenile is to be judged on the fact if he was fully aware and
conscious during the execution of the crime. If not then an adult of the age of 30 who has
committed a crime unintentionally should be tried at the juvenile court for the reason that he was
not mentally alert. The researcher would vow that age is no reason to exempt somebody who has
brutally raped and been the reason for the death of a future Indian when he was completely
aware and conscious of what he was doing. A hard step now can be a warning to the many young
minds that grow up today and design their perspectives for tomorrow considering the handling of
law in their hands just for fun.
 3. JUVENILS JUSTICE ACT was unconstitutional and that it violate the right to life
by shielding criminals.

The prime purpose of any law in a country is to provide justice to the victim and punish the
accused for its wrongdoing. But our JJ Act seems to be defeating this purpose, as it is in a way
providing shield to the criminals, as what max. they can be awarded is a tiny punishment of
imprisonment for a period of 3 years, even for the most heinous and grievous crimes, such as of
murder and rape, on the basis of hollow reasoning that he just few months and at times days
lesser than completing his 18. But, what about the physical, mental and reputation harm that has
been caused to the victim, due to his heinous act. The heinous crimes such as rape, murder etc
are crimes which totally destroys the moral of the victim's family and if it's a rape then it's a
lifelong stigma for the girl and her family member. Especially in the rape cases, most of the time
victims are shunned from the society and are left unmarried just because that she was not
physically strong enough in order to fight for her freedom from the clutches of the person or
persons. Many offenders of these crimes walk free after serving a minimal period of sentence
after being proven juvenile as per the so called records.

Since, in the situation as in which the JJ Act as of now stands, seems to be defeating the very
purpose of law in any country, its constitutionality can be challenged on the same

4. Laws should be dynamic in nature and should change with the changing society.

It is a famous saying that whatever will not change with the changing time, will ultimately result
in failure and so stands for the law as well. Society is not static, it is dynamic. Its needs change
with time to survive. It is correct to reform and rehabilitate a child in conflict with law, however
we should not send a signal in society that a person below 18 years of age can commit any kind
of heinous acts and still get away with a minor penalty. So, need is to take into account mental
maturity age of person and not just chronological age while deciding the case. Facilities at
reformation centre should be improved so that real rehabilitation happens rather than just lip
service

Today, with breakdown of joint family system, rise of nuclear family, increasing influence of
social media children are exposed to a number of threats -psychological, physical, sexual. In our
country inspite of political equality, inequalities like socio-economical, regional, are wide
spread. Need of the hour is to build character of our future generation. Society should evolve a
procedure (Mentoring, etc) to supervise and guide children during adolescent age so that they
learn to respect fellow citizens, RTE act should be strengthen to include children up to 18 years
of age into education system, since education has a transformative effect on a person, training to
deal with different crisis in life and most important patriarchal attitude of society towards
females should change.
 5. Juvenile justice act should be declared unconstitutional on the ground that it is
providing a blanket immune to the juvenile offenders and devoiding court of its
discretion under sec. 83 of the ipc on the term sufficient maturity

Many of the protestors following the “Nirbhaya Rape” case are of the view that the JJ Act should
as a whole be declared unconstitutional since it standing against a very sole pillar of our judicial
system i.e. court’s discretion. It seems to devoid our courts of the discretion provided to it under
Sec. 83 of the IPC, as the JJ Act is acting as blanket immune for the juvenile offenders and the
courts are left with no discretion in their hands.
 CONCLUSION

Keeping in mind the present state of affairs of the country, it can be said that the number of the
crimes committed by juveniles needs to be relooked. If we look at the NCRB data we will find
that the crime committed by juveniles in increasing tremendously day by day.

Sec 300 of I.P.C. 1860 defines murder & Sec 302 of I.P.C. provides for punishment in case of
murder. Similarly Sec 375 defines the Rape and Sec 376 A and 376 of I.P.C. has been inserted in
the year 2013 and imposes death penalty of those who are convicted for Rape. In Contrast to this
Sec 15 of Juvenile Justice (Care and Protection of Children), Act 2000, imposes only a sentence
of 3 years. The period of 3 years is laid down without any reference to the nature of the crime
committed.

According to the author, age must not be the sole criteria to award a lenient punishment to the
offender. If we co-jointly read the Sec.82 and 83 and the Sections defining the crime such as
300,302, 376 A & 376, it is clear that, individual committing rape or murder, if is above 12 years
of age, the conviction under IPC can be levied against him.
It is the need of the hour to distinguish “Minor Delinquents” from Hard-Core criminals. Country
should not afford the misuse of the legislation at the hands of the offenders. It is not only unfair
to the victims but also creates an unsafe, chaotic environment.

If we type the example of horrific Nirbhaya Case, it seems rather unreasonable to impose the
same punishment to the juvenile in conflict with law, irrespective of the gravity of the offence
committed by them. We cannot compare petty offences like theft with that of rape leaving behind
the victim into a vegetative state.

Therefore, in the light of the present laws, there is indeed a need of new JJ (Care of Protection of
Children) Act, for heinous crimes committed by Juveniles between the age of 16-18 years and
should be tried as adults.