Geometrical Construction of Juvenile Act: A Democratic Triumph or A Dangerous Precedent?

Must Read

Should the Exorbitant Amounts Charged for RT-PCR Tests be Refunded?

Introduction A plea has been filed in the Honourable Supreme Court of India seeking a refund of exorbitant amounts charged...

Should CCTV’s be Installed in the Police Station?

Introduction In a recent judgment, the bench led by Justice Nariman issued directions to both the state and Union Territory...

A Legal Analysis of the West Bengal Political Crisis on IPS Deputation

The Ministry of Home Affairs (MHA) has recently summoned three IPS officers of West Bengal (WB). The decision was...

Explained: Postal Ballot for NRIs

At the end of November 2020, Election Commission sent a proposal to the law ministry to amend the Representation...

Explained: Constitutional Provisions and Legislations With Regards to a Person with Disabilities

The world celebrates December 3 as International Day of Persons with Disabilities (IDPD). This day is also called World...

“Pro-Enforcement Bias” Towards Foreign Arbitral Awards Domestically, in light of Vijay Karia and Ors. V. Prysmian Cavi E Sistemi S.R.L and Ors.

International Arbitration faces challenges domestically due to unharmonized local laws for enforcement. Often it may occur that an award...

Follow us

The recently concluded winter session of the Parliament might have been whitewashed due to theatrics of political blame game. However, the lawmakers did not leave the temple of democracy without ringing certain loud bells. One such bell resonated with the popular aspiration of reviewing and amending the very controversial, The Juvenile Justice (Care and Protection of Children) Act, 2015.

With the release of the juvenile perpetrator associated with the Nirbhaya Rape case setting tables for public debate, the national media along with the victim’s parents and an army of anguished populace turned up the heat for the upper house of the Parliament to sail a pragmatic legislation through the rising levels of emotional waves.

As the public pressure cracked upon the legislative rationale, Rajya Sabha finally passed the much anticipated Juvenile Justice (Care and Protection of Children) Bill. Despite it being a popular legislation, it was the combination of emotional speeches in the House of elders along with the staunch opposition from the human rights activists that made experts across the academic spectrum closely scrutinise the bill.

  • Sparks that fuelled the fire

It’s true that the issue of criminal liability of juveniles under the Juvenile Justice Act of 2000 soared across the public conscience due to the context which was set by the release of the juvenile offender, however, the ‘Golden Age’ criteria of 18 to analyse a juvenile’s psychological maturity to understand the consequences of a crime so commissioned has been a subject matter of public debate throughout the past decade.

The post Nirbhaya India understood the magnitude of power a united public opinion possesses in order to pressurize the government to update regressive laws and make them toe the lines of contemporary milieu of the society. However, on the given issue, the popular opinion has often faced frictional response from a large lobby of Human Rights Activists which has long defended the Golden Age rule as a parameter which is backed by a good number of psychological and scientific research studies. However, the rising rate of crimes committed by juveniles along with the growing concern for ensuring women security forced the current government to table the new bill on the floor of Lok Sabha on August 12, 2014.

Due to easily available and accessible adulterous content which invades a child’s conscience from a very early age, it would be very ignorant of us to not hold a person accountable for a heinous criminal offence just because at the time of the commission of such an act, he was below the age of 18. Maneka Gandhi, the Union Minister for Women and Child Development, highlighted during her address on the floor of the upper house that many police incidents and reports have shown that the juveniles falling within the bracket of 16-18 years misuse the protection provided under the Juvenile Act by simply asking police to send them to the Juvenile Board when they are caught committing serious crimes. She also mentioned, by citing certain incidents, that the intricacy and brutality expressed by the juveniles while committing heinous crimes such as murder or gang rape are circumstantially evident of their mental maturity.

  • Shifting focus of Criminal Justice Jurisprudence

The life of Juvenile Justice Law in India has seen the shifting bastions of lawmakers while considering theories of criminal jurisprudence. In 2000, when the earlier Act was passed, the Indian approach towards criminal liability was highly influenced by Reformist or Protectionist Theory of Criminal Law. This theory has a more humane approach towards offenders and tends to reawaken the inherent humanness through counselling, training and other reformatory measures. Under the context of the UN Convention on the Rights of the Child, Reformist theory seemed both legally and morally justified to be applied on crimes committed by juveniles for their tender age is not mature enough to comprehend the consequences of their act.

However, after the recent rise in the rate of juvenile crimes and growing public outcry for reinterpreting the rationality of the Juvenile Act, both the government as well as the national media oscillated between more stringent theories of criminal law to be applied. While the government, maintaining the rational character of legislation, argued for moving towards Deterrence theory, the voices from the ground demanded Retributive Theory to be invoked.

After the tussle for finding a common ground, the new Juvenile Justice Act is intended to be the jurisprudential outcome of the Deterrence Theory of Criminal Law. This theory seeks to find a middle ground which is slightly tilted towards the retributive principle. It aims to deter the juveniles, especially the ones falling in the category of 16-18, to feel deterred and hence cease from committing the crime.

While legislating national laws, or at least for analysing them, it becomes important to see what the prevailing trend in other countries is. Similarly, while analysing the amendment to the Juvenile Act, we shall also look at the criteria adopted by different countries for the similar issue.

The minimum age at which a juvenile can be charged for an offence is 7 in India, which is lesser than the number 10 as followed in UK and South Africa and 14 as followed in Germany.

The age at which the juvenile can be charged as an adult is 13 in United States of America, 14 in Germany, 16 in South Africa and France and 17 in England. In India, as per the earlier Act, juvenile could not be charged as an adult at all. However, in the new Act, the age for charging juvenile as an adult for a criminal offence is set at 16.

  • Salient Features

The salient provisions of the new Juvenile Justice Act are as follows:

  1. The juveniles between the ages 16-18 can be tried as adults for heinous crimes. It would also apply for a commission of a crime with a lesser outcome or a serious crime if the juvenile is apprehended after the age of 21 years.
  2. Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) will be constituted in each district. The role of the JJB is to determine whether the juvenile shall be tried as an adult or not while the CWC will determine institutional care for children in need of care and protection.
  3. Punishments for cruelty against a child such as offering a narcotic substance to a child, and abduction or selling a child have been also prescribed.
  4. Juvenile Justice Boards (JJBs) will be established in each district to deal with children in conflict with law or juvenile offenders. The membership will consist of a Metropolitan or Judicial Magistrate and two social workers, including a woman.
  5. Offences committed by juveniles are categorized as: (i) heinous offences (those with minimum punishment of 7 years of imprisonment under IPC or any other law), (ii) serious offences (3 -7 years of imprisonment), and (iii) petty offences (below three years of imprisonment). A juvenile cannot be given life imprisonment without the possibility of release or death penalty.
  6. If a heinous offence is committed and a juvenile is apprehended before 21 years of age the JJB will conduct a preliminary inquiry. This will determine his mental/physical capacity to commit an offence and an understanding of its consequences. The JJB will then pass an order that recommends: (i) interventions like counselling or community service; (ii) staying at an observation home for a temporary or long-term period; or (iii) refer the juvenile to a Children’s Court to determine whether to try him as an adult
  7. A child who is evaluated to be in need of care and protection shall be brought before a CWC within 24 hours. Subsequently, a Social Investigation Report is required to be prepared within 15 days. After evaluating the report, the CWC may recommend that the child be sent to a children’s home or another facility for long term or temporary care, or declare the child as free for adoption or foster care.
  8. The offence of assaulting, abandoning, abusing, or willfully neglecting a child will lead to a punishment of up to 3 years of imprisonment and/or a fine of one lakh rupees. The punishment for employing a child for the purpose of begging will attract an imprisonment of up to 5 years and a fine of one lakh rupees. A person who gives a child an intoxicating or narcotic substance will be liable for imprisonment up to 7years and a fine extending up to one lakh rupees. The penalty for selling or buying a child for any purpose will be imprisonment up to five years and a fine of one lakh rupees.

  • Conclusion: Is Geometrical Construction justified?

There’s no denying the fact that geometrically structuring a parameter for accurately analysing someone’s psychological and emotional maturity is unjustified. However, that is not something that shall discourage the legislature to enact laws dealing with certain issues. Yes the harm would be caused, but would the harm be minimised as compared to other alternatives, that is something which drives legislative intent.

Many jurists have challenged the law by calling some of its features as unconstitutional. They say that the classification made between the same classes, i.e. juveniles, on the basis of date of apprehension is not reasonable and there is no reasonable nexus between the provision and the intent of curbing the rate of juvenile crimes. Therefore, it violates Article 14 of the Indian Constitution. It can also be argued that the new law also violates India’s obligation towards UN Convention on Rights of Child, to which it is a signatory, for the Convention supports the age of 18 as a criteria to evaluate maturity of a juvenile. Moreover, the Supreme Court in Pratap Singh v. State of Jharkhand said that for determining the penalty of a juvenile, the date of commission and not the date of apprehension should be taken into consideration. Since, the new law has infringed upon the Right to Life of juveniles by establishing a law which is not just, reasonable and pursuant to the due process of law, it violates Article 21 of the Constitution.

Apart for the legal point of view, many people have criticised the law for lacking scientific justification. They have invoked scientific studies that prove development of adolescent brain to argue that fixing of culpability below the age of 18 violates not only scientific reasoning but also principles of natural law.

People taking moderate positioning have questioned the Act not on content but on principle. They argued that reducing the age will not solve the problem as the criteria have been again focused on a number to determine someone’s maturity. It’s not about affixing culpability at 18, 16 or 25 years of age, but it’s about reducing the dynamism of emotional and psychological maturity of a human being through numerical convenience and then subjecting that person to a matter of life and death.

Whatever is the rationality behind the new Act, we shall not forget that this legislation has served the popular aspirations. In a democracy, the legislation shall reflect the spectrum of sociological processes and structures. However, the state being a higher institution, is also expected to posses the superior rationality regarding statecraft and governance that shall not be swayed by emotions.

Latest News

Petition Filed in Delhi High Court Challenging the New Privacy Policy of WhatsApp

A petition has been raised before the Delhi High Court challenging the updated privacy policy of the instant messaging app, WhatsApp. It is accused of looking into the virtual activities of the users,

Bombay High Court Says Pleas Against the Rejection of Nomination Before the Polls Is Not Maintainable

Bombay High Court on Wednesday held that a candidate cannot challenge his nomination by filing a writ petition before a court prior to the polls after his nominations have already been rejected by the Returning Officer (RO) for the Panchayat elections of January 15.

Bombay HC: It Will Be Difficult if Civic Bodies Don’t Take Action on Illegal Constructions

The Bombay High Court said on Wednesday that if the Municipal Corporations do not take action on the illegal constructions, things will become very difficult. This observation was made by a bench comprising Chief Justice Dipankar Dutta and Justice Girish Kulkarni while hearing a PIL after the Bhiwandi building collapse on September 21st, 2020 which led to the death of 39 lives. Mumbai Thane, Ulhasnagar, Kalyan-Dombivli, Vasai-Virar, Navi Mumbai, and Bhiwandi-Nizampur corporations were filed as respondents.

Uttarakhand High Court Directed State Authorities To Frame SOP Regarding Kumbh Mela 2021

Noticing the commencement date of Kumbh Mela 2021 amid pandemic from 27 February 2021, the Uttarakhand High Court on Monday expressed concern with regard to organizing and conducting of the Mela and directed State Authorities to discuss and resolve the logistical problems which can come in organizing the Mela during the pandemic time.

Writ Petition Not Maintainable Against Mahindra Finance, Being a Purely Private Body: Allahabad High Court

The Allahabad High Court reiterated that Writ Petition against the purely private body is not maintainable and dismissed the petition which was filed against Mahindra Finance Bank as Arif Khan v. Branch Manager Mahindra Finance Sultanpur & Another.

Publication of Notices for Inter-Faith Marriages No Longer Mandatory: Allahabad High Court

The Allahabad High Court has passed a landmark judgment that likely brings relief to inter-faith marriage. The Court on Wednesday said that the mandatory publication of Notices of Inter-Faith marriages will now be optional to protect the Privacy and Liberty of the Couple. The Court observed that the publication of the notice would “invade the fundamental rights of liberty and privacy”. Therefore, it has made it optional for the couple, they can now request in form of writing to a marriage officer to publish or not to publish a notice regarding the marriage.

Bombay High Court to NIA: Consider Health and Age of Varavara Rao Before Opposing His Bail Plea

The Bombay HC on Wednesday observed that ‘we are all humans’ and asked the National Investigation Agency and the Maharashtra Government to consider the health and age of the Telugu poet-activist Varavara Rao before making submissions in response to his bail plea application on medical grounds.

Supreme Court Agrees To Examine Centre’s Plea To Keep Adultery a Crime in Armed Forces

The Centre appealed to the Supreme court on Wednesday, pleading that the 2018 judgment of decriminalizing adultery under IPC must not apply to the armed forces. The Supreme Court in a path-breaking verdict in 2018 decriminalized adultery and declared all its provisions unconstitutional as it diminishes the value of women, but maintained that it continues to be a ground for divorce.

Supreme Court Examines the Pollution in Yamuna River for the Second Time

The Supreme Court on Wednesday made a second attempt to clean the Yamuna river by taking a Suo Moto Cognizance of significantly high levels of ammonia water discharged from neighbouring states like Haryana into Delhi.

Fetus Suffering From Anencephaly, Woman’s Plea To Terminate 28-Weeks Pregnancy Allowed by Delhi HC

Based on the report of the medical board constituted by AIIMS, the Delhi High Court on Monday allowed a petition filed by a woman seeking the termination of her 28-weeks pregnancy. They said in its report that the fetus suffered from anencephaly, a disorder where the skull bone is not developed and was thus incompatible with life, therefore her fetus can be aborted.

More Articles Like This

- Advertisement -