JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT, 2015
By: Aayushi Devpura
"Special Student Columnist"
The Juvenile Justice (Care and Protection of Children) Act, 2015 has come into force on 1st January, 2016 after the President of India gave his assent to the bill on December 31, 2015. It repeals and replaces the Juvenile Justice (Care and Protection of Children) Act, 2000 as in December 2012 the Delhi gang rape case had enormous impact on public perception of the Act.
The Juvenile Justice Act (Care and Child Protection Act, 2015) is an act aimed at consolidating and amending the law on children alleged to be in conflict with the law and children in need of care and security by addressing their basic needs through adequate care, safety, growth, recovery, social reintegration, through implementing a child-friendly approach in adjudication and disposal of case in the best interest of child. The 2015 act allow a Juvenile Justice Board, which would include psychologists and sociologists, to decide whether a juvenile delinquent in the age group of 16–18 who have committed an heinous offence should be tried as an adult or not.
The provisions of the Constitution present powers and force obligations, under clause (3) of article 15, clauses (e) and (f) of article 39, article 45 and article 47, on the State to guarantee that all the requirements of children’s are met and that their essential human rights are completely ensured. The Government of India has agreed on the eleventh December, 1992 to the Convention on the Rights of the Child, embraced by the General Assembly of United Nations, which has recommended a lot of measures to be followed by all State parties in making sure about the wellbeing of the kid.
MEANING OF JUVENILE DELINQUENCY
Juvenile delinquency is that the criminal activity charged by someone who is under the age of 18 years. In recent period these criminal activities are increasing rapidly because of many reasons and circumstance. In most of the places juveniles charged with serious crimes, like robbery or murder which are transferred to criminal courts and tried as an adult.
WHO IS JUVENILE?
A juvenile is a person who is under the age of 18 according to section 2(35). The age limit below which depriving the child of his or her liberty should not be allowed should be laid down by law. Juvenile can be defined as the child who has not reached an age at which he can be held liable for his criminal activities, as an adult under the law. The juvenile is the person believed to have committed an act or omission on the part of the child considered a criminal offence. Juvenile and minor are used in a different way, in legal terms. When referring to young criminal offenders, the word Juvenile is used, and the word Minor refers to legal capacity or majority. It can be profitable to make the meaning clearer by making it to some other source. For convenience the concept of juvenile varies from state to state.
WHAT IS JUVENILE DELINQUENCY?
A juvenile delinquent is a person typically under the age of 18, who has committed an act that would otherwise have been charged and tried as an adult.
If an individual deviates from a normal social life course, his behavior is called 'Delinquent.' When a juvenile, below a statute-specified age, demonstrates conduct that may be dangerous to society and, or to him, may be considered a juvenile delinquent. Juvenile delinquents are such offenders including boys and girls under the age of 18. A juvenile delinquent is an incorrigible and usually disobedient young person.
CAUSES JUVENILE DELINQUENCY
The causes of juvenile crime are usually found at each level of the social structure, including all of society , social institutions , social groups and organizations, and interpersonal relationships. The choice of delinquency for juveniles is fostered by a wide range of factors, the most significant of which are described below.
✓ Individual Factors- Several contributing factors to juvenile delinquency are listed. A minor who has a lower intelligence and lacks proper education is more likely to become involved in delinquent behavior. Other risk factors include impulsive behaviour, uncontrolled aggression and delaying gratification. Multiple individual risk factors may in many cases be described as leading to the participation of adolescents in negative, disruptive and illegal activities.
✓ Cultural Conflicts- The urbanization and modernization resulted in people drifting which further led to the conflict between the immigrants and the residents. India also played as a victim of cultural conflict during the 1947 Indo-Pak partition, where the Sindh immigrants settled in India and resulted in a massive rise in crime rate.
✓ Family Background- Sutherland said that "the family background has greatest influence on offender or juvenile criminal behaviour. The Children turn to criminal behavior when they notice their parents or family members behaving similarly. A child growing up in a hostile atmosphere of aggressive parenting becomes an easy prey to criminality
✓ Socio-Economic Condition- Nowadays, money is a criterion for assessing the societal status of a individual. Everybody around is so busy with earning that the parents can't look after their children, which further leads a child to engage in illegal activities.
✓ Neighbourhood- One thing leads to another, as the parents/guardians are busy in their
own livinglihood, neighbors' bad influence also tends to destroy a child's genesis.
✓ Trend of Alcoholism- It's become a trend among young people to get a vodka shot. Generally speaking, it is the reason for a struggle between the husband and the wife that gives the child a bad impression. It is important to maintain a discipline in the home for proper education and create a pleasant environment for a child. The family should take care of the child otherwise they might be indulging in offense commission.
✓ Peers Pressure- An individual's behavior typically depends on peers. Gangs act as a contributing factor to committing a crime. If a kid stays with other criminals than he would be more vulnerable to the illegal behavior he couldn't think of on his own.
✓ Cinema and Social Media- Cinema and social media have an significant part to play in a person's overall growth. They always seek to do what they watch on the social media and television in their real life. Parents should pay attention to their children, not refrain from watching any material, but instead seek to inculcate certain moral values in the children.
✓ Significance of School- The school plays an important role in a child's upbringing, it is the school where the child has so long the closest relationship with other children. "School is usually thought of as a constructive agency but if it fails) it can become a major contributor to delinquency by virtue of its negligence to perform its designated functions.
✓ Mental Health Factors- There are also several mental health factors which contribute to juvenile delinquency. However, it is important to bear in mind that a diagnosis of certain types of conditions of mental health — primarily personality disorders — cannot be made with respect to children. However, there are precursors of these conditions that can be displayed in childhood, which tend to be displayed by delinquent behaviour. Conduct disorder is a common one. Disorder of behavior is characterized as & quot; a lack of empathy and disregard of social norms. & quote; (American Psychiatric Association, 2004, Diagnostic and Statistical Manual of Mental Disorders).
PREVENTION OF JUVENILE DELINQUENCY
For such children prevention is necessary. First, we should identify such juveniles and give him treatment afterwards. They will become a frequent offender unless they are stopped from committing the crime in good time. There is no question that the most effective means of reducing juvenile delinquency has been to support children and their families early on. Many state programs try to intervene early, and federal funding for community initiatives has enabled independent groups to tackle the problem in new ways. The most popular initiatives share key components below. There are so many lawyers and criminologists who have suggested many provisions for juvenile delinquency prevention. Delinquency Prevention is the broad term for all efforts to prevent youth from engaging in criminal activity, or other antisocial activity. Governments are gradually realizing the importance of allocating money to fighting crime. Prevention programs provide prevention and recovery initiatives such as drug abuse , family therapy, community mentoring, parental awareness, educational assistance and community shelter.
In the case of Gopinath Ghosh v. State of West Bengal the accused gave his age equal to that recommended for becoming a child over the cut-off age. In this case, however, the court not only allowed the claim of child status to be made for the first time but also referred the matter to the judge of sessions for a determination of the accused’s age.
Approving this approach, the Supreme Court in Rajinder Chandra v State of Chhattisgarh, It further stipulated that the criterion of proof for evaluating age is the degree of likelihood and not facts beyond reasonable doubt.
In Sanjay Suri v. Delhi Administration, the Supreme Court ordered the release of incarcerated juveniles. The judgment further emphasized that the juvenile’s age would not be recognized by the prison authorities unless and until the age is explicitly stated in the supporting detention documents.
In Jayendra v. State of UP, Where a High Court order was challenged before the Supreme Court to send a child to prison for committing an offence. The Supreme Court ordered the report from the medical person in charge of the jail to assess the child's age and it was found that the child's age at the time of the crime was 16 years and 4 months, and the penalty for imprisonment was quashed and the prisoner was released immediately.
In Munna v. State of UP, The apex court issued certain instructions concerning children in prisons. The Supreme Court held that he should not be mistreated even if a child is found guilty of an offence. When they reach jail they will not give up their human rights.
In the case of Kulai Ibrahim v. State of Coimbatore the court held that the juvenile has the right to raise the issue of juvenility at any time during the trial, even after the case has been disposed of under section 9 of the Juvenile Justice Act, 2015.
JUVENILE JUSTICE BOARD:
Pursuant to section 4(2) of the Juvenile Justice Act, 2015, a board shall consist of a Metropolitan Magistrate or a Chief Judicial Magistrate with at least three years ' experience and two appointed social workers in such a manner as to prescribe at least one of whom shall be women.
Eligibility of social worker: No social worker shall be named as a member of the Board unless he / she has been actively involved in children's wellbeing, education or welfare programs for at least seven years or has a degree in child psychology, psychiatry, sociology or law.
Any such Bench shall have the powers bestowed on a Metropolitan Magistrate by the Code of Criminal Procedure, 1973 or, as the case may be, a First Class Judicial Magistrate.
It was held by the Himachal Pradesh High Court in the case of State of Himachal Pradesh vs. Happy that Judgment passed by a single Juvenile Justice Board member is null and void ab initio. In this case, a single Magistrate passed the impugned order, without meeting the composition requirements needed for the Juvenile Justice Board to operate. Hence the order was rescinded.
ELIGIBILITY CRITERIA FOR SELECTION AS MEMBER OF JUVENILE JUSTICE BOARD
Pursuant to section 4(4) of the Act, the eligibility requirements for selection as a member of the Board have been specified in such a way that those who are not all eligible to become members are:
A. Has any past record of human rights abuses or of child rights violations;
B. Has been convicted of an crime involving moral turpitude and that conviction has not been overturned or issued full pardon for that offence;
C. Was removed or dismissed from the service of the Central Government or Government of the State or of an undertaking or corporation owned or controlled by the Central Government or Government of the State;
D. Has ever committed child abuse or child labor, or any other breach of labor
DISQUALIFICATION OF THE MEMBER OF JUVENILE JUSTICE BOARD
Section 4(3), JJ ACT, 2015 State of Himachal Pradesh vs. Happy
The appointment of any member of the Board, with the exception of the Principal Magistrate, may be terminated after the State Government has conducted an investigation, if he
A. Was found guilty of abuse of the powers granted by this Act; or
B. Does not participate in the Board’s proceedings for three months consecutively without any valid reason; or
C. Does not attend less than three-fourths of a year's sittings; or
D. becomes ineligible under sub-section (4) during his term as a member.
POWER OF JUVENILE JUSTICE BOARD
For every district, the Board appointed shall have the power to deal exclusively with the proceedings under the Act:
• In the area of Board jurisdiction,
• In children's matters in conflict with the law.
These powers can be exercised by the High Court or the Court of Children when proceedings pursuant to Section 19 are brought before them or in appeal, revision or otherwise. It was held in the case of Hasham Abbas Sayyad vs. Usman Abbas Sayyad7 that an order passed by a court outside its jurisdiction will be considered void ab initio. Where an alleged child is brought before the Board in conflict with the law, it shall exercise its power to conduct an inquiry under the provisions of this Act and may pass orders as it deems fit under Sections 17 and 18 of the JJ Act , 2015.
The Board is also empowered under section 15 of the Act to investigate heinous offences. Such preliminary evaluation must be disposed of before the Board within a span of 3 months from the date of the child's first production.
In the case of Puneet S. vs. State of Karnataka (2019 SCC OnLine Kar 1835), the Karnataka High Court held that only the Board of Juvenile Justice has the authority to determine whether or not an crime committed by a juvenile is heinous.
FUNCTIONS OF JUVENILE JUSTICE BOARD
Section 8(3) of the Act sets out Juvenile Justice Board functions as follows:
1. Ensure an active participation of the child and the parent or guardian in each phase of the process
2. Ensure that the right of the child is secured in the child's apprehension, investigation, aftercare and recovery process
3. Ensure the provision of child legal assistance through the social services agencies
4. wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees may be prescribed, to the child if he fails to understand the language used in proceedings
5. Directing a probation officer or, in the case of a probation officer, a child welfare officer or a social worker to investigate the case and submit a social investigation report to the Board within fifteen days of the date of first production to determine the circumstances in which the alleged offense was committed
6. Adjudicate and dispose of cases concerning children in conflict with the law in accordance with the inquiry process.
7. Transferring to the Committee matters relating to children suspected to be in conflict with the law, pretending to be in need of treatment and development at any point, thus recognizing that children in conflict with the law might also be in need of treatment at the same time and the Committee and the Board need both to be involved.
8. Disposal of the matter and issuing a final order containing an specific child recovery treatment plan with follow-up by the probation officer or district child protection unit.
9. Conducting inquiry to find fit persons in respect of child care in conflict with the law.
10. Carrying out at least one monthly review of residential facilities for children in conflict with the legislation, and recommending measures to improve the quality of care to the District Child Protection Unit and the State Government.
11. Order the police to register, for the time being, the first report of information concerning offenses committed against any child in conflict with the law, under that act or any other law, on a complaint made in that respect
12. Instruct the police to file the first report of information on crimes committed against any child in need of care and safety under this Act or any other law in effect at the time of receipt of a written complaint by a committee.
13. conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and tack immediate measures for transfer such child to the observation home.
Re Exploitation of Children In Orphanages In The State Of TamilNadu v. Union Of India & Ors9
India's Supreme Court observed that the Board of Juvenile Justice should not be a silent spectator. The Supreme Court bench comprising Justice Mr. Deepak Gupta and Justice Aniruddha Bose ruled that the police had no right to detain minors, in conflict with the law, in lock-up or prison, and that the Juvenile Justice Board or JJB will ensure that the bail is given to the child and taken to an observation home or a place of safety.
TREATMENT OF JUVENILES UNDER THE ACT
The new Act strengthens the protective approach to children in conflict with the law provided by the juvenile justice system, as well as to children in need of care and protection. In the Juvenile Justice Act 2015, the 'Juvenile' in conflict with the law was redefined as a 'child in conflict with the law' which means a child who is suspected or found to have committed an offense and who has not reached eighteen years of age on the date of commission of such offence. Offenses were classified as petty / serious / heinous offenses. After preliminary examination by the Juvenile Justice Board, children aged 16-18 years can be charged as adults in cases of heinous offences.
Section 2(48), of the Act sets out the place of safety. 'Safety place' means any location or institution, not a police lock-up or a jail, set up separately or connected to an assessment home or a special home, as the case may be, which is able to accommodate and care for children suspected or found to be in conflict with the law, by order of the Board or the Children's Court, both during the inquiry and during the ongoing rehabilitation process.
In compliance with the rules of the Act, a child in dispute with the law may be immediately sent to an Observation Home during an inquiry pendent. The child will be segregated by age , gender, physical and mental status and offence nature. A child found by the Juvenile Justice Board to have committed an offence will be placed in a Special Home.
A Place of Safety will be provided for children over 18 years of age or children aged 16-18 years of age who are suspected or convicted of a heinous offence. The Place of Safety will have different plans and services for children under trial and those convicted. The Juvenile Justice Board will conduct regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the Observation Home [Section 8 (3) (m)].
The preliminary assessment by the Juvenile Justice Board is to be conducted within three months before transferring the case to the Children‘s Court.10 The Act mandates that in case the child is tried as an adult by the Children‘s Court, it shall ensure that the final order includes an individual care plan11 for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker. The Court of Children shall ensure that the child is kept in place of safety until he reaches the age of twenty-one years. When he reaches maturity and the sentence is still pending, the Children's court will decide whether he has to be returned to prison or if he has undergone reformist improvements and should be spared imprisonment.
The Act imposes a full moratorium on capital punishment or life imprisonment without the promise of release by the juvenile justice department for the young criminals who come to be classified as adults. The Children's Court will take the decision whether the child should be released or sent to prison after he reaches the age of 21 years.
REHABILITATION OF CHILD AND HOW DOES IT WORKS?-
✓ The main motto of punishment is to make the prisoner realize and regret the grievous nature of the crime committed. Therefore, after the sentence is completed (in whole or in part), the convict must be prepared to return to society. The ex-convicts were always viewed by the general public with a suspicious mind. Therefore the ex-convicts should be mentally prepared and skill sets should be taught to improve their job ability.
✓ Special programs for the prevention of substance abuse , mental health improvement, continuing education for sexual offenders, women parolees and children in conflict with the law. Although the offenders held responsible for their violation of the law and holding for public safety in juvenile homes or other appropriate correctional facilities, the primary aim is to rehabilitate them. The recovery process involves psychological examination of the crime committed by the offender and the environment, causing it to happen, behavioral intervention, improvement of skills, engaging them in yoga and other activities that improve mind.
In the case of Sheela Barse v. Union of India,12 The Supreme Court opposed and prohibited the detention of children under 16 years of imprisonment as the environment of the imprisonment may have an injurious impact on the mind of the child who is strangling him from society.
In case of Ramdeo Chauhan v. State of Assam,13 it was held that whenever any delinquent juvenile accused of an offense is brought before the Magistrate or the Court and where it is notified or observed that the accused brought before it was under the age of 16 years, the accused shall refer the case to the Juvenile Courts if the Act is applicable in the State and the Courts have been established or refer the case to the Court of the Chief Judicial Magistrate who will deal with the matter in accordance with the provisions of law.
In the case of Sanjay Suri & Ors. v. Delhi Administration14, It was noted that no child should be sent to prison otherwise the entire object of protecting the child from the bad influence of life in prison would be defeated. The juvenile must be kept in a separate ward and should not be permitted to intermingle with adult inmates, as this would also expose them to bad influences that might prevent their proper rehab.
#divahsprik #divahspriklawnotes #lawnotes #juvenilejusticeact
#law #juveniledelinquency #juvenilecourts #caselaws