The Indian legislations The emergence of the concept of Juvenile Justice in India owes much to the developments that have taken place in western countries, especially in the perception of children and human rights Jurisprudence in Europeans America. The Apprentices Act, 1850 was the first legislation that laid the foundation of Juvenile justice system in the country.
The concept consequently gained momentum with the enactment of the Indian Penal Code (1860), Reformatory Schools Act (1897), Code of Criminal Procedure (1898) and recommendations made by the Indian Jail Committee 1919-1920), which categorically mentioned that the child offender should be treated differently from an adult offender. It also held that imprisonment of child offenders should be prohibited and recommended for provision of reformatory schools and constitution of children’s courts with procedures ‘as informal and elastic as possible’.
The Committee also drew attention to the desirability of making provisions and special enactment for children who had not committed crime so far, but could do so in the near future on account of living in criminal or inhuman surroundings or those thou proper guardians or homes. The Madras Children Act 1920 was the first Children Act to be enacted, closely followed by Bengal and Bombay in 1922 and 1924, respectively.
Later, many more states enacted their own Children Acts, covering within their sphere two categories of children, biz. , (I) delinquent children, and (ii) destitute and neglected children. Both these categories of children were to be handled by the Juvenile courts. They were to be kept in remand homes and certified schools or released on probation, with a possibility of imprisonment when the nature of offence was serious and the hearted of the offender so depraved as to Justify imprisonment (Veda Kumar’: 2004).
During this period, by and large, the “welfare”approach was adopted for children – whether delinquent, destitute or neglected. Development of Juvenile Justice System in India Independence ushered in a new era for children in the country. The Constitution of India took care of survival, development and protection needs of children by making relevant provisions in ‘Fundamental Rights’ and ‘Directive Principles of State Policy. Development of Juvenile Justice System in India By straightaway
The special status accorded to children in the Constitution and the fact that there was a substantial growth in the number of destitute, neglected and delinquent children in the wake of partition, saw some special programmer being taken up to meet the needs of this group of children during the First Five-Year Plan. Industrialization coupled with arbitration further brought forth its own set of problems for children. One of them was increase in cases of Juvenile delinquency in large cities, the most common offence being theft.
As legislation for dealing with delinquent children existed only in few states, the Government of India enacted the Children Act 1960. The Act, however, was applicable only to the Union Territories as it was a model to be followed by the states in the enactment of their respective Children Acts. The 1960 Children Act, provided for the care, protection, maintenance, welfare, training, education and rehabilitation of neglected and delinquent children. For the first time in India, the Children Act prohibited the imprisonment of children under any circumstance.
It provided for separate adjudicatory bodies – a children court and a child welfare board – to deal with delinquent and neglected children. The Act also introduced a system of three-tier institutions, namely, an observations for receiving children during the pungency of their proceedings, a children’s home for accommodating neglected children, and a special school for delinquent children. It, however, introduced a sex discriminatory definition of child.
Child in case of a boy was one who was below 16 years and in case of a girl below 18 years of age. All states subsequently enacted similar, but not exactly the same Children Acts. The definition of the term child differed from state to state. As a result, delinquent and neglected hillier were subjected to differential treatment emanating from the diverse conceptions of child and childhood. Juvenile Justice Act 1986 The need for a uniform Children Act across the country paved the way for the enactment of the 1986 Juvenile Justice Act WA).
It promoted the best interest of the juveniles’ by incorporating into its fold not only the major provisions and clauses of the Indian Constitution and the 1974 National Policy Resolution for Children but also as the 1959 United Nations Declaration of the Rights of the Child and the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules). The AJAX overruled imprisonment of Juveniles in police lock-up or Jail.
Other than this, it stipulated two main authorities – a Juvenile welfare board and a Juvenile court – to deal with neglected and delinquent Juveniles. It also stipulated establishment of various kinds of institutions for the care of Juveniles – a Juvenile home for the reception of neglected Juveniles, a special home for the reception of delinquent Juveniles, an observation home for the temporary reception of Juveniles during the pungency of any inquiry regarding them, and an after-care home for the repose of taking care of Juveniles after they were discharged from a Juvenile home or a special home.
It further guaranteed a wide range of dispositional alternatives with preference for family or community-based placement, and a vigorous involvement of voluntary agencies at various stages of the Juvenile Justice process. The basic ideology for adopting this differential approach was to save children from devastating ill-effects of crystallization, finalization and standardization. With the enactment of the AJAX, the “welfare” approach gave way to the “Justice” paradigm
But the implementation of the AJAX had many loopholes in terms of age determination, separate trials, court proceedings, notification of charges to parents or guardians, filing of reports by probation officers, reasons for and length of confinement, rehabilitation and after care of Juveniles. The Juveniles were often not provided with a copy of the rules governing their detention and the written description of their rights. Many Juveniles housed in institutions run by the government did not know the purpose of their stay and the future of their institutionalizing.
Like the 1960 Children Act, the AJAX too promoted a sex discriminatory definition of a Juvenile. Moreover, most of the states and union territories who had formulated their Rules for the implementation of the AJAX were devoid of the basic infrastructure consisting of Juvenile welfare boards, Juvenile courts, observation homes, Juvenile homes, special homes and after care homes. They had also not taken up the required measures for observance of minimum standards for institutional care or for the advancement of non-institutional care, such as foster care, sponsorship, adoption, etc.
The chasm between reality and the application of the law was felt all the more with the adoption of the 1989 Convention on the Rights of the Child (CRY) and its ratification by the Government of India in 1992. The provisions of the CRY with regard to children in conflict with law were amplified in two other United Nations instruments – the United Nations Guidelines for the Administration of Juvenile Delinquency (Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty ODL Rules).
Both provide detailed directions about the processes to be followed by the Juvenile Justice system in dealing with persons below the age of 18. The 1993 World Conference on Programmer of Action which urged States to ratify and implement promptly the CRY too made a definitive impact on all those concerned with the plight of these children in India including the government.
Juvenile Justice (Care & Protection of Children) Act 2000 Taking a cue from all these developments, the government recast the AJAX so that it could be in consonance with the CRY and brought in a new Act, the 2000 Juvenile Justice (Care & Protection of Children) Act. The passing of this Act endorsed the “Justice” as well as the “rights” approach towards children and moreover made use of better terminology by providing for “Juveniles in conflict with law’ and “children in need of care and protection”. It calls for keeping both the categories separate pending their inquiries.
This segregation aims to curb the bad influence on the child who is in need of care and protection from the one who is in conflict with law. The AJAX 2000 brings about standardization in the definition of a ‘Juvenile’ or a ‘child’ across the country except for Jam and Kashmir. A ‘Juvenile’ or ‘child’ is a person who has not completed eighteenth year of age. Juveniles in conflict with law include all those children alleged o or found to have committed an offence. They are to be handled by the Juvenile justice board.
Children in need of care and protection cover a range of ‘at risk children to be dealt by child welfare committee. While dealing with Juveniles and children, it gave importance to their respective families for tendering of advice and counseling. It furthermore introduced a wide range of community placement options for Juveniles and children. The 2000 Act, though passed with good intentions, overlooked the inclusion of certain substantive and procedural due process rights. Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006
CIA 2000 was further amended in 2006 to make it clear that Juvenile would be reckoned from the date of commission of offence who have not completed eighteenth year of age thus clarifying ambiguities raised narration Ads vs. State of Briar [(2000] 5 SC 488]. The amendment also made it clear that under no circumstances, a Juvenile in conflict with law is to be kept in a police lock-up or lodged in a Jail. In addition, it review the pungency of cases of the Board at every six months, and child protection units should be set up in states and districts to see to the implementation of the Act.