By Madhvi Chopra, VIPS, GGSIPU, New Delhi.

A “juvenile” means a person who has not completed eighteen years of age. A boy or girl under eighteen years of age is a “juvenile” according to the Juvenile Justice Act (JJA), 2000.

Earlier, according to the JJA, 1986, the age of boys and girls were different, but however, the JJA 2000 which repealed the JJA, 1986, brought the age of male juveniles at par with the female juveniles. Another reason for increasing the age of male juveniles by the JJA 2000 is to bring the Indian juvenile legislation into conformity with the ‘United Nation’s Convention on the Rights of the Child (CRC)’. Article 1 of CRC states for the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Therefore, both the boys and girls below the age of eighteen years enjoy the protection of juvenile legislation.

The Juvenile Justice Act, 2000 now defines a juvenile as one who is alleged to have committed an offence and has not completed the eighteenth year of age as on the date of commission of such offence. Before its amendment in 2001, the age of juvenile was 16. But it was raised to 18 for two reasons. First, we wanted to abide by the UN Convention which defines child as a person below the age of 18. Second, we wanted to follow the law models of western

Countries like the USA, UK and France.

 Indian laws have created four categories of persons according to their age. The criminal liability of an accused depends upon the category in which that person falls. The first of these is a person below seven years of age. Section 82 of the Indian Penal Code states that nothing is an offence which is done by a child under seven years of age. The simple reason behind giving such exemption is the absence of ‘mens rea’ i.e. guilty mind or criminal intent. People who at the time of commission of the crime could not and did not know the right from the wrong should not be penalised.

The second category of persons is those who are between the age of seven and twelve years. Section 83 deals with them and lays down that if an offence is committed by such a person, it will first have to be ascertained whether the child has attained sufficient maturity of understanding due to which he can judge the nature of his alleged conduct and the consequences thereof.

The persons between the age of twelve and eighteen years fall into the third category and if an offence is committed by such a person, he shall be liable for such offence. However, he shall not be prosecuted and punished like adult offenders, but would be dealt with only in accordance with the provisions of the law relating to juvenile justice.

Lastly, a person above the age of eighteen years is criminally liable for an offence in accordance with the normal criminal laws of the country.

The law relating to juvenile justice in India is presently contained in the Juvenile Justice (Care and Protection of Children) Act, 2000. If a child commits an offence and does not come under any of the complete exemptions mentioned in the aforesaid four age-wise categories, then the provisions of this Act will be attracted. It is apt to note that Section 16 of the Juvenile Justice Act clearly lays down that the sentence of death penalty cannot be awarded to any juvenile, and likewise the sentence of imprisonment for any term cannot be awarded to a juvenile. Also, as per the provisions of Section 15 of the said Act, irrespective of the gravity of the offence committed by a juvenile, the maximum that can happen to the juvenile is that he can be sent to a special home for a maximum period of three years. These are rehabilitation centres for juveniles set up under Section 9 of the Act. In fact, for most offences committed by a juvenile, he may simply be let off by advice or admonition, or may be asked to perform community service, or asked to participate in group counselling, or released on probation of good conduct, or on fine in some cases. Moreover, proceedings against a juvenile are not to be conducted in the regular trial court. These are conducted by a Juvenile Justice Board that consists of three members, including a Metropolitan Magistrate (or Judicial Magistrate) and two Social Workers.

The need of hour is amendments to the JJA to deal with children who have attained the age of 16 and are involved in serious crime.  Minds of juveniles who have attained the age of 16 and commit serious crimes are well developed and they do not need care and protection of the society. Rather, the society needs care and protection against them.  If a juvenile is convicted for committing a serious crime the age of 16, the juvenile in question should remain in an institution meant for juveniles only till he is 18. After that, the juvenile should be treated like an ordinary criminal and subjected to the imprisonment meant for adults.   An exception should be made in cases in which the documentary evidence is non- conclusive or there is no documentary evidence at all to establish juvenility of the accused. The court should weigh the criminal conduct of accused and method of crime rather than relying on a bone test which is non- conclusive.

Increasing cases of crimes committed by children aged 16-18 years in recent years makes it evident that the current provisions and system under the Juvenile Justice Act of 2000 “are ill equipped to tackle child offenders in this age group,” and therefore parliament passed Juvenile Justice (Care and Protection of Children) Bill, 2014.

Juvenile Justice (Care and Protection of Children) Bill, 2014

The Juvenile Justice (Care and Protection of Children) Bill, 2014, is a comprehensive bill which proposes to repeal the law enacted in 2000 and provides for care and protection of children, their rehabilitation and offences committed against children, among other things.

The changes in the law have come against the backdrop of outrage over the lighter punishment of three years in a reform home given to a minor convicted in the December 16, 2012 Delhi gang rape case. Numerous changes were required in the existing law to address this, it said and proposed to repeal the 2000 Act and re-enact a comprehensive legislation, which would also provide general principles of care and protection of children.

The bill proposes to empower the Juvenile Justice Board to decide whether a juvenile above 16 years involved in heinous crimes such as rape is to be sent to an observation home or tried in a regular court.

However, according to the Bill, in no case the juvenile involved in a heinous crime would be sentenced to death or life imprisonment either when tried under the provisions of JJ Act or under the provisions of IPC. The Bill also lays down procedures in case of children in need of care and protection, their rehabilitation and social re-integration measures, adoption of orphans, abandoned and surrendered children and offences committed against them. It includes facilitating faster adoption of children and setting up foster care homes.