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A critique of juvenile justice law in India: an international perspective

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Indian Journal of International Law

Abstract

The paper traces in detail juvenile justice law from the perspective of international law as applicable in India. There is a growing need to understand the evolution of norms and procedure as regards juvenile justice in the realm of internal law. Such norms are traceable to a host of Conventions and Rules that seek to lay down body of normative standards to protect the rights of the juvenile. Understanding of juvenile justice jurisprudence would remain incomplete if it is not preceded by an in-depth analysis of normative framework under international law. Law relating to juvenile justice in India owes to a great degree to such normative standards as is reflected in judicial pronouncements of the Supreme Court and legislative enactments.

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Notes

  1. See, E Rickard, Paying Lip Service to the Silenced: Juvenile Justice in India, 21 Harvard Human Rights J (2008) 155ff.

  2. 543 U.S. 551 (2005).

  3. BJ Safra, Juvenile Justice Policy From the Perspective of International Human Rights, Cardozo L Rev De Novo (2012) 304ff.

  4. Preamble, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (hereinafter “Beijing Rules”), UNGA Resolution 40/33 (adopted on 29 November 1985).

  5. Commentary to Rule 5.1, Beijing Rules, 1985, <http://www.dpjju.com/images/stories/international_law/The_Beijing_Rules.pdf?phpMyAdmin=531f807a0fcebd2f7e6ca6d45d38ab069> ‘In essence, rule 5 calls for no less and no more than a fair reaction in any given case of juvenile delinquency and crime. The issues combined in the rule may help to stimulate development in both regards: new and innovative types of reactions are as desirable as precautions against any undue widening of the net of formal social control over juveniles.’

  6. supra note 4 Rule 6.1.

  7. supra note 4 Rule 6.2.

  8. supra note 4 Rule 6.3.

  9. Ibid; Commentary to Rule 8, Beijing Rules, 1985, <http://www.dpjju.com/images/stories/international_law/The_Beijing_Rules.pdf?phpMyAdmin=531f807a0fcebd2f7e6ca6d45d38ab06>.

  10. UNICEF, Child Rights and International Legal Framework, <https://www.unicef.org/tdad/index_56373.html>.

  11. The need to extend particular care to the child has been stated in the Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural Rights (in particular in article 10) and in the statutes and relevant instruments of specialized agencies and international organizations concerned with the welfare of children. See, Preamble to Convention on the Rights of the Child, 1989.

  12. Subramanian Swamy v. Raju, (2014) 8 SCC 390 at 406.

  13. Ibid. See, Article 40(3)(a), UN Convention on the Rights of the Child (hereinafter CRC), 1577 UNTS (1989) 3. Indian Penal Code recognises the principle of doli incapax.

  14. Ibid Article 2 (1).

  15. Ibid Article 2(2).

  16. Ibid Article 19(1)(2).

  17. Ibid Article 30.

  18. Ibid Article 37.

  19. supra note 6 406.

  20. Rule 31, United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”), A/RES/45/113. (adopted on 14th December 1990).

  21. supra note Rule 35.

  22. United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), A/RES/45/112, (adopted on 14 December 1990) <http://www.un.org/documents/ga/res/45/a45r112.htm>.

  23. See, Ved Kumari, Juvenile Justice: Securing the Rights of Children During 1998-2008, 2 NUJS L Rev 557 (2009).

  24. Preamble, Juvenile Justice Act, 1986.

  25. Ibid Section 9.

  26. Ibid Section 10.

  27. Ibid Section 11.

  28. The statement of Objects and Reasons of the Juvenile Justice Act, 2000 replacing the 1986 enactment read thus: ‘A review of the working of the Juvenile Act, 1986 (53 of 1986) would indicate that much greater attention is required to be given to children in conflict with law or those in need of care and protection. The justice system as available for adults is not considered suitable for being applied to a juvenile or the child. It is also necessary that the Juvenile justice system must be easily accessible to a juvenile or the child or any one on their behalf including the police, voluntary organisations, social workers, or parents and guardians, throughout the country. There is also an urgent need for creating adequate infrastructure necessary for the implementation of the proposed legislation with a larger involvement of informal systems specially the family, the voluntary organisations and the community.’

  29. However, in Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, Justice Sinha observed that ‘We, however, do not agree that the Model Rules have been framed in terms of the provisions of the Act so as to attract the principles that rules validly framed are to be treated as part of the Act. It is one thing that the rules validly framed are to be treated as part of the Act as has been held in Chief Forest Conservator (Wildlife) v. Nisar Khan (2003) 4 SCC 595 and National Insurance Co. Ltd. v. Swaran Singh (2004) 3 SCC 297 but the said principle has no application herein as in terms of the provisions of the said Act, the Central Government does not have any authority to make any rules. In the absence of any rule-making power it cannot refer to the omnibus clause of power to remove difficulty inasmuch as it has not been stated that framing of any model rule is permissible if a difficulty arises in giving effect to the provision of the Act. The Central Government is a statutory functionary. Its functions are circumscribed by Section 70 of the Act only. It has not been authorised to make any rule. Such rule-making power has been entrusted only to the State.’ Ibid 589. Also see, section 68, J J Act, 2000, as amended in 2006 which reads thus: ‘The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

    Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of the matter is made by the State Government and while making any such rules, so far as is practicable, they conform to such model rules.’ (emphasis added).

  30. (2009) 13 SCC 211.

  31. Ibid 214.

  32. See, supra note 24 Section 4.

  33. See, supra note 24 Section 29(2).

  34. (2014) 8 SCC 390.

  35. Subramanian Swamy v. Raju, (2014) 8 SCC 390 at 421. Also see, Murthy Match Works v. CCE [Murthy Match Works v. CCE, (1974) 4 SCC 428: 1974 SCC (Tax) 278, Roop Chand Adlakha v. DDA, 1989 Supp (1) SCC 116: 1989 SCC (L&S) 235: (1989) 9 ATC 639, Kartar Singh v. State of Punjab, (1994) 3 SCC 569: 1994 SCC (Cri) 899, Basheer v. State of Kerala [(2004) 3 SCC 609: 2004 SCC (Cri) 1107, B. Manmad Reddy v. Chandra Prakash Reddy, (2010) 3 SCC 314: (2010) 1 SCC (L&S) 1169 and Transport and Dock Workers Union v. Mumbai Port Trust, (2011) 2 SCC 575: (2011) 1 SCC (L&S) 566.

  36. supra note 24.

  37. Salil Bali v Union of India, (2013) 7 SCC 705: (2013) 3 SCC (Cri) 686.

  38. supra note 1.

  39. Ibid 578.

  40. ‘The State shall endeavour to provide, within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.’ Also see, The Right of Children to Free and Compulsory Education Act, 2009.

  41. ‘The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.’

  42. supra note 24.

  43. (2014) 3 SCC 547.

  44. Ibid 551.

  45. Section 2(13) of Juvenile Justice Act, 2016 defines ‘child in conflict with law’ thus: ““child in conflict with law” means a child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such offence”.

  46. Section 2(14) of the Act defines ‘child in need of care and protection’ thus: “child in need of care and protection” means a child—

    1. (i)

      who is found without any home or settled place of abode and without any ostensible means of subsistence; or

    2. (ii)

      who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street; or

    3. (iii)

      who resides with a person (whether a guardian of the child or not) and such person—

      1. (a)

        has injured, exploited, abused or neglected the child or has violated any other law for the time being in force meant for the protection of child; or

      2. (b)

        has threatened to kill, injure, exploit or abuse the child and there is a reasonable likelihood of the threat being carried out; or

      3. (c)

        has killed, abused, neglected or exploited some other child or children and there is a reasonable likelihood of the child in question being killed, abused, exploited or neglected by that person; or

    4. (iv)

      who is mentally ill or mentally or physically challenged or suffering from terminal or incurable disease, having no one to support or look after or having parents or guardians unfit to take care, if found so by the Board or the Committee; or

    5. (v)

      who has a parent or guardian and such parent or guardian is found to be unfit or incapacitated, by the Committee or the Board, to care for and protect the safety and well-being of the child; or

    6. (vi)

      who does not have parents and no one is willing to take care of, or whose parents have abandoned or surrendered him; or

    7. (vii)

      who is missing or run away child, or whose parents cannot be found after making reasonable inquiry in such manner as may be prescribed; or

    8. (viii)

      who has been or is being or is likely to be abused, tortured or exploited for the purpose of sexual abuse or illegal acts; or

    9. (ix)

      who is found vulnerable and is likely to be inducted into drug abuse or trafficking; or

    10. (x)

      who is being or is likely to be abused for unconscionable gains; or

    11. (xi)

      who is victim of or affected by any armed conflict, civil unrest or natural calamity; or

    12. (xii)

      who is at imminent risk of marriage before attaining the age of marriage and whose parents, family members, guardian and any other persons are likely to be responsible for solemnisation of such marriage.

  47. Section 2(12), Juvenile Justice Act, 2016. Section 2(35) of the Act defines “juvenile” as a child below the age of 18 years.

  48. Section 2(45) defines petty offences thus: “petty offences” includes the offences for which the maximum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment up to 3 years.

  49. “serious offences” includes the offences for which the punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force, is imprisonment between 3 and 7 years. See, section 2(54), Juvenile Justice Act, 2015.

  50. “heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for 7 years or more. See, section 2(33), Juvenile Justice Act, 2015.

  51. “Children’s Court” means a court established under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court under the Protection of Children from Sexual Offences Act, 2012 (32 of 2012), wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act.

  52. Section 21 of the Act provides that ‘No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law for the time being in force.’

  53. Emphasis added.

  54. (2013) 9 SCC 705.

  55. Ibid 714. Emphasis added.

  56. 2017 SCC OnLine SC 534.

  57. Ibid para. 14.

  58. Ibid para17.

  59. Ibid para18.

  60. Ibid para. 64.

  61. Mukesh & Anr. v. State for NCT of Delhi & Ors, 2017 SCC OnLine SC 533. Also see, Bhagwan Swarup v. State of U.P. (1971) 3 SCC 759; Deepak Rai v. State of Bihar (2013) 10 SCC 421.

  62. B B Pande observes that’It is perfectly legitimate for the government of the day to legislate and make any law, particularly the kind of law that the people are clamouring for. But in doing so, at least, three things need to be kept in mind…First, the feasibility aspect of the law, that will include its scientific tenability and social implementability…Second, the normative fidelity aspect of the proposed law, that will include its consonance or dissonance with the international and national norms of juvenile justice. The most important source of international norms are the U.N. Conventions and Rules ratified by the Government of India. The Constitutional Rights, Directive Principles and Fundamental Duties relating to children would constitute the fundamental national norms. Third, the social rootedness aspect of the proposed law, that concerns India’s ancient heterogenous traditions and culture.’ (Emphasis added). B B Pande, In the Name of Delhi Gang Rape: The Proposed Tough Juvenile Justice Law Reform Initiative, J of National L Univ (2014) 166. ‘…choosing the midpoint of 18 years has been preferred by the UNCRC and the majority of the countries throughout the world, which is described as the “presumptive age of majority”.’ Ibid 153.

  63. BB Pande, Child Rights, Annual Survey of Indian L (2014) 111.

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  1. National University of Study and Research in Law, Ranchi, India

    B. C. Nirmal

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Correspondence to B. C. Nirmal.

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Vice-Chancellor at National University of Study and Research in Law; Vice-President at Indian Society of International Law; Member at Governing Body, Indian Law Institute.

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Nirmal, B.C. A critique of juvenile justice law in India: an international perspective. Indian Journal of International Law 56, 405–425 (2016). https://doi.org/10.1007/s40901-017-0061-8

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