JUVENILE AND CRIMINAL RESPONSIBILITY: AN ANALYSIS OF JUVENILE JUSTICE (CARE & PROTECTION O

Posted by Panakaj Mahawar
October 18, 2017

Self-Published

JUVENILE AND CRIMINAL RESPONSIBILITY: AN ANALYSIS OF JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT 2015

 

SYNOPSIS

This essay is on the topic of Juvenile and Criminal Responsibility. This essay analyses about criminal responsibility, policy of state on  minimum age, constitutional guarantees and role of state towards child or juvenile and juvenile in conflict with law, fundamental principles and objectives of juvenile justice (Care & Protection of Children) Act, 2000, and top 10 risks factors in childhood for future offending or anti-social behavior.

This essay also discuss about the various reason behind juvenile crime or juvenile delinquency such as poverty, non-implementation of existing laws related to child, family, social factor, peer risk factors and violation of the provision of uniform civil code and law of equity. This essay says that how poverty indulge a child or juvenile to commit a crime, this essay says that laws related to child or juvenile or juvenile in conflict with law are in conflict in terms of defining the word child and these laws are violating the provision of Uniform Civil Code and Law of Equity. This essay discusses that how a good or positive environment of a family or a society decrease the risk factors of a child to commit an offence.

In this essay I have discussed that how we can prevent child or juvenile not to commit an offence and if a child or juvenile commit a crime then how we have to deal with them. I have also discussed to increase the period of maximum punishment from 03 to 07 years as per the provision of section 8(1) of Reformatory Schools Act 1897.

 

“Youth people should never be seen as a burden on any society, But as it’s most precious asset”

UN Secretary General[1]

  • Criminal Responsibility

In simple language, criminal responsibility means, the minimum ages at which children may be charged for a criminal offences, or we can say that criminal responsibility means, the age at which a child becomes criminally responsible for their actions and the consequences of their actions. The accurate definition of criminal responsibility varies from place to place. But in general, we can say to be responsible for a criminal act implies perpetrator must understand what they are doing and that it is wrong. It is clear that most young children are too immature to fully understand the difference between right and wrong. Most countries have fixed an age below that a child cannot be held criminally responsible for their actions. Commonly this is set at ten years although the age of criminal responsibility, may vary between 06 to 15 years.

The minimum age of criminal responsibility in India is 07 years (12 years in the case wherein he is unable to understand the consequences of his action on account of immaturity of understanding). ‘In Scotland, while the age of criminal responsibility is 08 years but a child below the age of 12 years cannot be prosecuted. In England, Wales and Northern Ireland this age is 10 years. In Netherlands and Canada it is 12 years. In Sweden, Finland and Norway the age of criminal responsibility is 15 years. In United States, the age of criminal responsibility varies between its states, but the age of criminal responsibility is normally not lower than 07 years.’[2]

  • State Policy on Minimum Age

In India, at present, the age of criminal responsibility is 07 years (12 years in the case wherein he is unable to understand the consequences of his action on account of immaturity of understanding), and the maximum age is 18 years to recognize a child as a juvenile[3]. In other language, the maximum age is 18 years to enjoy the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000 by a child. Before it, as per the provision of Juvenile Justice Act 1986, the maximum age was 16 years for a boy and 18 years for a girl to enjoy the benefit of Juvenile Justice Act 1986.

Nowadays, especially after “the Nirbhaya Case” or “Damini Case” which has taken place on 16th December 2012, a strong discussion has generated to reduce the maximum age from 18 to 16 years for fixing criminal responsibility for heinous serious criminal offences by Juveniles specially for male Juvenile. In this regard, parliamentary committee on empowerment of women advocates to reduce the age of male Juvenile from 18 to 16 years, because this committee has observed that 22,740 crimes which punishable under Indian Penal Code (IPC), 1860 has committed by Juveniles in the years 2010 and most of the crimes has committed by male juveniles of 16 to 18 years of age.[4]

Although, the another school of thought, which is by the pro-child rights and Juvenile Justice advocates says that the maximum age to enjoy the benefit of Juvenile Justice Act, 2000 must be 18 years and it is for the best interest of Juvenile or juvenile in conflict with law. In this regard the Justice Verma committee has opposed to reduce the age of Juvenile from 18 years to 16 years.

1.3.      Constitutional Guarantees and Role of State

1.3.1. Some important constitutional guarantees[5]:-

  • Article 21(A) of our constitution says that “the state shall provide free and compulsory education to all children of the age of 06 to 14 years in such manner as the state may, by law, determine.”
  • Article 24 of our Constitution says that “no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”
  • Article 39(e) of our Constitution says that “the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.”
  • Article 39(f) of our Constitution says 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.”

1.3.2. Some important roles of State:-

  • It is the role of the state to see that children of tender age are not forced to work as laborers.[6]
  • It is the role of the state to prevent juvenile or juvenile in conflict with law to become a hardcore criminal.
  • It is the role of the state to see and ensure that their basic human rights are fully protected.
  • It is the role of the state to provide speedy trial of offences against children or of violation of child rights.

1.4.      Fundamental Principles and Objectives of Juvenile Justice (Care & Protection) Act 2000

The object of the Juvenile Justice (Care and Protection of Children) Act, 2000 is to provide a juvenile justice system for juveniles in conflict with law and children in need of care and protection by adopting a child friendly approach in the adjudication and disposition of matters in the best interests of children and for their rehabilitation keeping in view the developmental needs of the children.[7]

  • Some important principles of Juvenile Justice Act, 2000[8]:-

1.4.1.1. Principle of presumption of innocence: – A juvenile or child is presumed to be innocent of any mollified or criminal intent up to the age of 07 years in all cases and up to twelve years in the case wherein he is unable to understand the consequences of his action on account of immaturity of understanding.

1.4.1.2. Principle of Best Interest: – This principle seeks to ensure physical, emotional, intellectual, social and moral development of juvenile or child, to make him a good citizen by ameliorating the impediments to healthy development.

1.4.1.3. Principle of family cushion: – The family biological, adoptive or foster, must be involved in the processes, preferred as placement cushion and strengthened as the said act (Juvenile Justice Act, 2000) unless the best interest measures or mandates dictate otherwise.

1.4.1.4. Principle of no harm, no maltreatment:- The Juvenile or child who is placed in any institution under the Juvenile Justice (Care & Protection) Act, 2000 or under any placement cushion, shall not be subjected to any harm, abuse, neglect, maltreatment, corporal punishment or solitary confinement.

1.4.1.5. Principle of non-stigmatizing semantics, decisions and actions: – The non-stigmatizing semantics of the Juvenile Justice (Care & Protection) Act, 2000 must be strictly adhered to, and the use of adversarial or accusatory words, such as, arrest remand, accused charge sheet, trial, prosecution, warrant, summons, conviction, inmate delinquent neglected, custody etc, is prohibited in the processes pertaining to the juvenile or child under the Juvenile Justice (Care & Protection) Act, 2000.

1.4.1.6. Principle of balancing: – This principle aims at striking a balance between the provisions of the Juvenile Justice (Care & Protection) Act, 2000 on one hand and constitutional safeguards and social methods on the other, in the dispensation of matters pertaining to juvenile or child.

1.4.1.7. Principle of non-waiver of rights: – No waiver of rights of the juvenile or child, whether by himself or the competent authority or anyone acting or claiming to act on behalf of the juvenile or child, is either permissible or valid.

1.4.1.8. Principle of equality:- Equality of access, equality of opportunity, equality under the Juvenile Justice (Care & Protection) Act, 2000, is guaranteed to the juvenile or child, and as such there shall be no discrimination on the basis of age, sex, place of birth, disability, race, ethnicity, status, caste, cultural practices, work, activity or behavior of the juvenile or child or that of his parents or guardians, or the civil and political status of the juvenile or child.

1.4.1.9. Principle of right to privacy and confidentially: – According to this principle the juvenile’s or child’s rights to privacy and confidentiality shall be protected by all mean and through all the stages of the proceedings.

1.4.1.10. Principle of fresh start: – The principle of fresh start promotes new beginning for the juvenile or child by ensuring erasure of his past records.

1.4.1.11. Principle of last resort: – Institutionalization of juvenile or child will be a step of the last resort after reasonable enquiry and that too, for the minimum possible duration.

1.4.1.12. Principle of repatriation: – Any juvenile or child, who is a foreign national and who has lost contact with his family, shall also be eligible for protection under the Juvenile Justice (Care & Protection) Act, 2000 and he shall be repatriated, at the earliest, to his country.

1.5.      Reasons behind Juvenile in conflict with law

All Juvenile in conflict with law are influenced not only by what goes on in the environment in which juveniles live, but also by what they observe from adults, what they listen to, learn from peer groups, parents, relatives and society at large. Juvenile delinquency is not an inherent human condition, but, rather is learned through association, imitation, observation, pressure, needs, wants, influence and desires. Some reasons are as follows:-

1.5.1. Poverty: – At present poverty is the most vulnerable reason behind doing a crime by a juvenile. Due to poverty they are not able to take basic education, they are not able to have proper and sufficient meal, and they are not able to live in their own home. If they are trying to get these facilities, they have only one option, which is “do crime” such as theft, begging etc.

Dr. Adam Graycar, Director of Australian Institute of Criminology said that “A growing body of research evidence drawn from studies of individual families suggests that economic and social stress exert their effects on crime by disrupting the parenting process.”[9]

1.5.2. Child Labour: – According to Labour Investigation Committee “Indulging Child in employment illegally is a black spot in Indian labour conditions”.[10] Working from childhood is good even in the eye of societary. It is also good for nation but the custom of child labour in those circumstances, in which child labour has customized, is rampant. There is a direct relation between labour and health. It dissolves the usual family life of child and decreases the social control upon the child. Due to this Juvenile Delinquency increases and child become a problem for the society.

1.5.3. Non implementation of existing laws related to child:- In our country many laws rules and guidelines are there for the welfare of child, juvenile and juvenile in conflict with law such as the Child Labor (Prohibition and Regulation) Act;1986; Child Labor (Prohibition and Regulation) Rules, 1988; Immoral Tariff (Prevention) Act, 1956; The Prohibition of Child Marriage Act, 2006; Children (Pledging of Labor) Act, 1933; The Right of Children to free and Compulsory Education Act, 2009; Integrated Plan of Action to Prevent and Combat Human Trafficking with Special Focus on Children and Women etc.. But if we analyze about the implementation of these laws, rules and guidelines, then we can found that we don’t take appropriate efforts which is necessary for the implementation and most important, most of our politicians are not serious for the implementation of these laws, rules and guidelines.

1.5.4. Family: – A family plays a big role in shaping a child towards a good citizen of a country. A positive environment of a family provides a strong base for the development of a child in adolescence stage. A positive environment of a family decreases the risk factor of a child to commit an offence; like that a negative environment of a family increases the risk factor of a child to commit an offence. In this regard, study shows that children who receive adequate parental supervision are less likely to engage in criminal activities.

‘In an investigation of high-delinquency areas in New-York City, Craig and Glick, found three factors related to increased likelihood of delinquency (a) careless or inadequate supervision by the mother or surrogate mother, (b) erratic or overly strict discipline and (c) lack of cohesiveness of the family unit.’[11]

1.5.5. Social Factor: – The causes of and conditions for juvenile crime are usually found at each level of the social structure, including society as a whole, social institutions, social groups and organizations, and interpersonal relations. For example, if we see the case of ‘Kayla Rolland (age 6), who was shot in the chest by another 6 year old classmate. It raises fears about parenting and concerns about the difficult life of a little boy. The boy who killed Kayla was full of hate. He spent much of his time watching violent movies. The boy did not seem to understand what he had done to his classmate. He was the product of an environment and family that was a broken home surrounded by gangs and drugs. The boy who did the killing had seen his uncle’s friend with a gun and he found the gun under a pile of blankets in the bedroom.’[12]

From the above example, we can say that raising a child is not easy. It is a full time job requiring a great deal of attention and offering no guarantee that the child will become a productive member of society as a mature adult. Children may have the ability to understand that lying, stealing, cheating and hurting others are wrong behaviors, but how old would a child have to be to know that these actions are morally wrong? The age at which a child reaches the stage of reasoning varies according to how the body develops, how he/she is raised and how those around the child act. Children sometimes learn to reason by observing the behavior of the people most important to them. So we can say that the society and the community have to work together with the family and the parents to make a child, a better and responsible citizen.

1.5.6. Peer risk factors or peer group: – Peer risk factors refer to the problems that may arise when a young person associates with a friend who is already engaged in offending or other anti-social behavior. These friendships can become a training ground for anti-social behavior. Studies have shown that association with anti-social peers increase, the possibility of offending. Some studies said, that puberty represents a maturity-gap for adolescents. Puberty produces a strong desire to be older peer who are committing offences appear to be more mature because the things they are doing resemble the independence and choices that come with adulthood such as drinking alcohol, or driving cars. In this way, exposure to the activities of anti-social peers can increase the possibility of offending.

1.5.7. Media: – Many researchers have concluded that the young people who are violent by nature, tend to behave more aggressively or violently, especially when provoked. This is mainly characteristic of 08 to 12 years old boys, who are more vulnerable to such influences. Movies that demonstrate violent acts excite spectators and the aggressive energy can then be transferred to everyday life, pushing an individual to engage in physical activity on the streets.[13]

1.5.8. Violation of the Provision Of Uniform Civil Code and Law of Equity:- Many laws of our country related to child are violating the provision of uniform Civil Code such as[14]:-

  • Immoral Tariff (Prevention) Act, 1956 says that:-
  • A “Child” means “a person who has not completed the age of 16 years.”
  • A “Minor” means “ a person who has completed the age of 16 years but has not completed the age of 18 years”
  • A “Major” means “a person who has completed the age of 18 years”
  • Children (Pledging of Labor) Act, 1933 says that:-
  • A “Child” means “ a person who is under the age of 15 years”
  • The Prohibition of Child Marriage Act, 2006 says that:-
  • A “Child” means “a person, who if a male, has not completed 21 years of age and if a female, has not completed 18 years of age.”
  • The Reformatory Schools Act, 1897 says that:-
  • “Youthful Offenders” means “any boy who has been convicted of any offence punishable with transportation or imprisonment and who, at the time of such conviction, was under the age of 15 years.”
  • The Right of Children to Free and Compulsory Education Act, 2009 says that:-
  • A “Child” means “a male or female child of the age of 06 to 14 years.”
  • Integrated Plan of Action to Prevent and Combat Human Trafficking with Special Focus on Children and Women says that:-
  • A “Child” shall means “any person under 18 years of age”

1.5.8.1. All these laws are in conflict in terms of defining the word child. The child labor (Prohibition and Regulation) Act, 1986 says that a person who has not completed the age of 14 years is a child and cannot earn or work in any place. According to this law, it means, a person who has completed his/her 14 years of age is a youth or adult and he/she can earn or work in any place. But the Juvenile Justice (Care and Protection of Children) Act, 2000, says that a person who is not completed the age of 18 years is a child. Now how a common man decide that who is a child or who is not a child. A common man think that (according to Labor Act 1986) if a person above 14 years is not a child and can do work and earn, then it means that he/she has the mental and moral ability to understand the difference between right and wrong. If we see in the purview of a common man regarding this, if a person above 14 years of age commit a crime then why he/she is not liable to trial as an adult. After every heinous serious crime like “Nirbhaya Case” and “Shakti Mill Gang Rape Case” (Which has taken place in Mumbai) common people always say to reduce the age of juvenile in conflict with law.

1.6. Causes of Juvenile Delinquency according to Government of India[15]

(Published in “Social Welfare” magazine on February 1959)

 

Top 10 risk factors in childhood for future offending or Anti-social behavior[16]

1.7.1. Risk factors for children under 13:-

  • History of anti-social behavior, behavior problems, conducts disorder during childhood (lying, stealing, bullying, non-compliance etc) including contact with the law and arrest before the age 12.
  • Use of tobacco, alcohol or other drugs either weekly or more frequently, before age 12.
  • Male gender
  • Low self-control, impulsive, poor ability to stop and think before acting during childhood.
  • Hyperactive, poor ability to pay attention during childhood.
  • Involved in fighting, aggression, acts of violence before age 12.
  • Low family income during childhood.
  • Neither parent had skilled work (that is, one or both are unemployed or in unskilled or semi-skilled jobs)
  • Neither parent left school with any qualifications.
  • One or both parents have a history of anti-social criminal behavior.

1.7.2. Risks factors for adolescents 13 and over:-

  • Contact with anti-social peers (those involved in law, breaking, drugs, violence, gangs etc.) (the more peers on contact, the higher the risk) from age 13 onwards.
  • General offences, number or prior offences (the more prior offences, the higher the risk before the current age).
  • Aggression, fighting, violent offences.
  • Low self-control, impulsive, poor ability to stop and think before acting.
  • Hyperactive, poor ability to pay attention.
  • Poor supervision by parents/care givers (knowing where young person is, who they are with, rules and consequences).
  • Low levels of warmth, affection and closeness between parent(s) and young person.
  • Tendency towards anxiety and stress.
  • Few friends and social or recreational activities.
  • Length of first incarceration (the longer the period, the greater the risk).

 1.10.    As far as I am concerned…..

1.10.1. Suggestions: – It is impossible to definitive about the causes of juvenile crimes. Juvenile crime is not caused by specific and easily identifiable list of factors or reasons. So instead of discussing the cause of juvenile crime, it is better to approach the issue by identifying the various risk factors of juvenile crime and talk about the interventions that can either reduce those risks or increase protective factors in a child’s life. To prevent child not to commit an offence we can do some of these things:-

  • Communities have to try hard to incorporate youth into community functions.
  • More positive role models should come forward whereby children or youths can inspire by them.
  • The police have to play an active role in communities, for example speaking at schools and participating in local functions.
  • Schools and parents have to discuss the elements of delinquency and crime.
  • Authorities and community groups must acquire a broader knowledge and understanding juvenile gangs.
  • More resources are to be allocated to the prevention of youthful drug and alcohol abuse.
  • Juvenile and the criminal justice system should make a joint effort to address the issues of concern to them.
  • Community must try that child or juvenile may take part in religious karyashala such as yoga, art of living etc.

Conclusion: – We all know about UN Convention on Rights of Child, 1989. This convention is binding by nature. According to this convention the maximum age of a juvenile must not be below 18 years. India acceded this convention on 11 December 1992. So the provision related to the age of a Juvenile is also binding on India.

The maximum age of a Juvenile which is 18 years in India is morally right and it is for the best interest of a child. But what we will do when a child or juvenile commit a crime?  This question becomes serious, when a child or juvenile commit a crime of a heinous serious nature.  Our Juvenile Justice (Care and Protection) Act, 2000 says that if a child or juvenile commits a crime of any nature, then he/she will be liable for ‘punishment’[17], that is maximum for 03 years. Now there are two things, which we have to think about, one is, if a person wants to become a good and responsible citizen of a country then it is not necessary for him/her to go to jail or any correction home. We can see this in various policies of government related to Naxalite.

[18]

Conclusion Contd…….

 And second is; if a person doesn’t want to become a good or responsible human being, then he/she will never become a good or responsible human being whether you kept him/her in jail even for 50 to 60 years. But the matter of a juvenile in conflict with law is slightly different not totally. In my opinion, first of all we have to increase the ‘punishment’[19] from 03 to 07 years as per section 8(1) of Reformatory Schools Act, 1897 for juvenile in conflict with law of 14 to 18 years of age. There should be a provision that if a child or juvenile of 14 to 18 years of age commit an offence then he/she will be liable for punishment for a period which shall be not less than 03 years or more than 07 years. The term of the punishment whether it will be 04 years or 05 years or 07 years, should depend on Board of Juvenile Justice. Except this we have to do, day to day counseling of all the juveniles in conflict with law, who punished by Juvenile Justice Board, we have to give them proper education which they want or capable to take, if they want vocational training, we have to provide them if they are capable to take vocational training. Now if a juvenile in conflict with law who completed his/her whole punishment will commit another offence of any nature then it should be the duty of judges or members of Juvenile Justice Board or any other court to give him/her maximum punishment according to law.

In this way we can prevent our child or juvenile to become a criminal and child or juvenile who are in conflict with law to become a hardcore criminal.

[1] Stated by UN Secretary General on the occasion of International Youth Day, 12 August 2003.

[2]at,en.m.wikipedia.org/wiki/the-juvenile-justice-(care_and_protection_of_children)-Act-2000(last accessed on 25th August 2013.

[3] A.K.Sinha, Jharkhand Juvenile Laws, Eastern Book Agency, Patna, 2007, pp. 45-46.

[4] at, www.ithought.in/catalyst_essay.html (Last accessed on 31 August 2013).

[5] P.M. Bakshi, The Constitution of India, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2009, pp. 57-88, ISBN:9788175347335

[6] M. Arora, Universal’s Legal GK, General Knowledge on Law, Universal Law Publishing Co. Pvt. Ltd., Delhi, 2008, p. 79, ISBN: 9788175346901.

[7] A. K. Sinha, Jharkhand Juvenile Laws, Eastern Book Agency, Patna, 2007, p. i

[8] A.  K.  Sinha, Jharkhand Juvenile Laws, Eastern Book Agency, Patna, 2007, at, 45-47.

 

[9] at www.aic.gov .au/media/1998/April/980424.html (last accessed 26 August 2013).

[10] Kunwar Singh Tilara, Industrial Sociology, Prakashan Kendra, Lucknow, 1982, pp. 173-174.

[11] Joseph A. Wickliffe,“Family factor that causes Juvenile delinquency”, Why Juveniles commit crimes, at www.yale.edu.ynhti/curriculum/units/2000/2/00.02.07.x.html (last accessed on 01 February 2014).

[12] Joseph A. Wickliffe, “Summary” Why Juveniles commit crimes,

at, www.yale.edu.ynhti/curriculum/units/2000/2/00.02.07.x.html ,  (last accessed on 01 February 2014).

 

[13] Mr. Alexander Salagaev, “Juvenile Delinquency”, Part 1, world youth report 2003, United Nations Publication, New York, 2003,  p. 196, available at, www.un.org/youth

[14] R. P. Kataria and Salah Uddin,  Commentary on Human Rights, Orient Publishing company, New Delhi, 2013, pp. 285-668.

[15] Dr. Kiran Baghel, Criminology and Social Disorganisation, Jay Prakash Nath and Company, Merruth, 1983, pp. 88-90.

[16] At,www.justice.govt.nz/courts/youth/publications-and-media/speeches/what-causes-youth-crime-and-what-can-we-do-about-it, (last accessed on 27 August 2013)

.

[17]  The Juvenile justice (Care and Protection of Children) Act, 2000,ss.15 and 15(f).

[18]  Awareness against Naxalite,  Hindustan, 26 September 2013, p.04.

[19] The Juvenile justice (Care and Protection of Children) Act, 2000, ss.15 and 15(f).

Youth Ki Awaaz is an open platform where anybody can publish. This post does not necessarily represent the platform's views and opinions.