Critical analysis of the Juvenile Justice (care and protection) Act, 2015

Introduction

Children are an important part of any society. It is imperative for them to have proper development opportunities as well as to have equal representation in all walks of life. Different countries have different definitions of a child.

In Western countries, a person above the age of sixteen may not be categorised as a child but rather as an adult. In India and the South- East Asian nations, any person on the attainment of eighteen years will no longer come under the category of a child and will be categorised as an adult.

Looking at this from a legal perspective the term ‘juvenile’ is used to describe a person who has not completed eighteen years. Throughout its glorious past, India has had a plethora of rules, laws and regulations on various day-to-day subjects.

In the past two decades, the parliament has also made and passed laws on provisions with regard to dealing with situations in which a person who is not a major has committed an offence punishable under law.

Historical background

The 21^st century has faced a lot of challenges. With technological advancements along with the breaching of new heights in almost all spheres of life, juvenile delinquency is one such challenge.

Nowadays, children are maturing at a faster rate than they were ten or twenty years ago. This means that they are getting more exposure to the outside world and also want to experiment more. The problem does persist in first-world countries but not at a large scale like it does in third-world nations.

Slowly and gradually, juveniles are also indulging in illicit activities and this is causing harm to society. In order to curb these illegal acts, the government enacted rules and regulations. A variety of factors can contribute to a juvenile indulging in such activities.

They are a culmination of social as well as economic factors. Some of them are lack of funds, improper education, unemployment, emotional tensions, familial problems, deficiency of moral values, substance abuse, etc.

The psychological viewpoint of children’s behaviour

Delinquent behaviour can also be looked at from a psychological point of view. Sigmund Freud and Albert Bandura are two of the most well-known psychologists and both of them founded two integral theories- the Psychodynamic Theory and the Social Learning Theory.

Freud’s psychodynamic theory revolves around the interaction of id, ego and superego. All three of them develop throughout the lifetime of a child. There is a special focus on the animal instincts of the child.

The ego and superego have to be given a certain direction during childhood so that these impulses become regulated. If this does not happen then the child may show frequent arrogant and destructive behaviour. On the other hand, Bandura’s Social Learning Theory focuses more on the slowly and gradually changing environment of the child during his younger days.

According to Bandura, parents play a significant role in a child’s life and their behaviour can influence the child’s behaviour. If the parents do not share a warm and cordial relationship with their child then that can lead to further consequences.

The government during the British rule as well as the past contemporary governments have made an attempt to formulate a proper law for juveniles. The Apprentice Act of 1850, the Reformatory Schools Act of 1897, the Children Act of 1960, the National Children’s Act of 1960, etc. are some of the legislations which were deliberated upon.

More recently, the Juvenile Justice Act of 1986, the Juvenile Justice Act of 2000 and the Juvenile Justice Act of 2015 have helped bring clarity to the procedures to be followed in case of a juvenile committing an offence. The United Nations Convention on Rights of the Child (UNCRC) is an international convention specifically for the rights of children.

India adopted it in 1992. Further, the Nirbhaya Case of 2012 raised questions about the purpose and the objective of the law which was in place during that time.

Salient features

For more than a decade the Juvenile Justice Act of 2000 was followed. There were certain lacunae in the act and hence changes had to be made. There were laws made with regard to adoption but due to the constant procedural delays the laws regarding adoption had to be amended.

From 2000 to 2014, there was a hike in the number of offences committed by juveniles, especially between the ages of sixteen to eighteen years. The evidence for the same was given by the National Crime Records Bureau.

Also, in the Juvenile Justice Act of 2000, there were no differences between those children who were in conflict with the law and those children who needed help with their lives. There was no provision regarding ‘lost’ or ‘abandoned children’.

The main purpose of the Juvenile Justice Act, 2015 was to ensure that juveniles are given a fair and equal opportunity to be heard and to administer justice in a friendly way by using various methods like rehabilitation. The interest of the children was to be given utmost importance.

There are many prominent features which can be evidently seen in the new act. Firstly, the act has made the definition of a child extremely clear. A child is a person who is below the age of eighteen years and has not attained majority. Apart from that there are two categories which are ‘child in conflict with law’, and ‘child in need of care and protection’.

Secondly, unlike the Juvenile Justice Act of 2000, there are clear distinctions with regard to the classification of offences by juveniles. The three categories are petty, serious and heinous. The punishments for the same have been specified. In the case of heinous crimes, a child aged sixteen and above may not be tried as a juvenile but as an adult provided that it is proved that he is mentally capable of committing that crime.

Thirdly, since this act comes under the Ministry of Women and Child Development, there was an expansion in the definition of ‘child in need of care and protection’. It is important to take into consideration the well–being of children.

Children who are found violating labour laws, children who are at risk of early marriage, children who reside with persons who are a threat to them and children whose guardians or parents are not fit to take care of them come under the category of ‘child in need of care and protection’.

Fourthly, the definition of ‘adoption’ which earlier had no clarity whatsoever is now a part of the Juvenile Justice Act, 2015. Further, a novel ‘Children’s Court’ has been introduced which has jurisdiction to decide cases with regard to juvenile cases and the Child Welfare Committee is not the final authority. There is an improved procedural system put in place for inquiries with regard to juveniles.

Challenges

The Juvenile Justice Act, 2015 is comparatively a new legislation with legislations such as the Indian Penal Code (1908), the Contracts Act (1872) and the other pre-independence laws. No law passed by the government is perfect and the same is the case with the act.

The intention and attempt were to make rules and regulations for those who got away after committing an offence by using the defence of a minority. The Juvenile Justice Act, 2015 has been effective in curbing the number of illicit acts.

Despite the best attempts of the government, there are certain loopholes with regard to the act. The decision of jurisdiction is to be made. Before a case can move forward, the Juvenile Justice Board which was established has to make a decision on whether the juvenile has to be tried in a regular court or a court established by the Juvenile Act, 2015.

The tests which determine this are extremely subjective in nature and the correct decision may not always be made. Going ahead with the test despite being sure that the child is guilty of the offence will lead to further complications.

When it comes to dealing with cases of heinous crimes those who are found guilty will first be questioned by the newly established board and then be shifted to a Children’s Court. They have to be in a place which is safe for them. With regard to heinous crimes, it is to be noted that the punishment is seven years or more in jail.

The Juvenile Justice Act of 2000 had no provisions with regard to classification of the offences of ‘rape’ and ‘murder’. In the 2015 act, both of them are categorised as heinous offences and have the highest possible punishment. Excluding ‘rape’ and ‘murder’, offences related to procuring or using drugs, aiding human trafficking, etc. and similar acts can be classified as heinous crimes.

The current act has to be implemented properly and without fail. If this act is not adhered to in a stringent manner, then it will not be effective. The competent authorities should make sure of it.

The cases which are meant to be adjudicated by the Children’s Court should not be sent to the proper courts (any level of the Indian Judicial System), as this will add to the burden of the already existing cases which have to be dealt with. The Juvenile Justice Board should collaborate with those agencies which work towards the betterment of children. These can include NGOs.

Conclusion

To conclude, the act does manage to bring some sort of clarity to the punishments which can be given to those juveniles who violate the legal system. The cases which are related to juvenile delinquency can now be dealt with in a better and more systematic manner. There are still a few loopholes which have to be rectified but for now, there is a balance.

Methods like rehabilitation have proved to be effective in dealing with delinquent and socially unacceptable behaviour. In a majority of the cases, the children do show some form of improvement. Public safety has to be ensured by the government and the necessary steps have to be taken.

At the same time, justice has to be rightfully administered. Throughout the world, there have been changes which have to be brought with regard to justice being delivered in juvenile cases.

References:

• The Juvenile Justice Act, 2000
• The Juvenile Justice Act, 2015
• The Constitution of India
• The Criminal Justice and Courts Act 2015 – Secure Colleges and the Legitimation of State Sponsored Violence (https://doi.org/10.1111/1468-2230.12168)
• The Juvenile Justice (Care and Protection of Children) Act 2015: an analysis (https://doi.org/10.1080/24730580.2018.1552233)
• Abrams, L. S., Jordan, S. P., & Montero, L. A. (2018). What Is a Juvenile? A Cross-National Comparison of Youth Justice Systems. Youth Justice, 18(2), 111–130. https://doi.org/10.1177/1473225418779850
• Kumari, Ved. “THE JUVENILE JUSTICE ACT 2015-CRITICAL UNDERSTANDING.” Journal of the Indian Law Institute, vol. 58, no. 1, 2016, pp. 83–103. JSTOR, http://www.jstor.org/stable/45163062. Accessed 4 Oct. 2022.
• Kumari Sweta, Juvenile Delinquency in India with Special Reference to the Juvenile Justice (Care and Protection of Children) Act, 2015, 24 Supremo Amicus [860] (2021).

This article has been submitted by Kartik Tripathi, a student at School of Law, Christ (Deemed to be University), Bangalore.