Child In Conflict With Law

Author: Drishti Banerjee Student, Amity Law School, Kolkata

Introduction

Theories of Criminology have evolved through the ages. The Classical School under Bentham and Bacceria favored a humanitarian form of punishment, aiming for greater societal good. The biggest flaw of that School was, however, attributing the same punishment (according to the crime) to all criminals, irrespective of their age and social or psychological conditions.

The Positivist School moved away from this flaw and advocated for three factors behind making one a criminal—

  1. Biological,

  2. Social

  3. Psychological.

The concept of special care to be taken of children in conflict with law emerged due to this change in outlook. The first juvenile court was established in Illinois in 1899.

It is a belief that children are born innocent. Various external factors make them commit crimes. Labelling such children as “criminals” or making them associate with adult criminal minds while in detention does not bear desirable results. Rather, an approach for their retribution and reintegration into the society reduces chances of the child re-offending or becoming a habitual criminal. This upholds the moral code of humanity.

The “Standard Minimum Rules for the Administration of Juvenile Justice” or the Beijing Rules, 1985 were adopted by the UN General Assembly recommending treatment to be given to juvenile-offenders under the broader goal of child rights protection. Eventually, a separate judicial system for delinquents started evolving worldwide.

Other international instruments that influenced the development of the Indian juvenile justice system include the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (1990), The Hague Convention on Protection of youngsters and Co-operation in Respect of Inter-country Adoption (1993), etc.

According to the Juvenile Justice (Care and Protection of Children) Act, 2015, a juvenile is a child below eighteen who has committed a crime. Juvenile delinquency has emerged as a serious issue in India.

Types of crime

Types of crimes under the Act of 2015—

  1. Petty Offences- The maximum punishment for petty offences is three years. They include theft, forgery, assault, etc.

  2. Serious Offences- These offences are graver in nature, like causing grievous hurt, attempt to commit culpable homicide, etc. The punishment is imprisonment for 3-7 years.

  3. Heinous Offences- They are utterly atrocious crimes like rape, murder, dacoity, etc.

Howard Becker (1966) categorized juvenile delinquency into four types—

  1. Individual Delinquency- Offences committed by juveniles individually fall under this category. Psychologists put forth that it mostly develops from pathological patterns of family interaction.

  2. Group-supported Delinquency- They are largely socio-cultural in origin. Juveniles commit such offences in companionship with others. These originate not because of individual psychology but due to learnt behaviours from associates.

  3. Organized Delinquency- These offences are more serious in nature because they are committed by organized groups bound by group norms. Complex centralized enterprises conduct such illegal activities like fraud, robbery, etc.

  4. Situational Delinquency- Causes for such delinquency are not psychologically deep-rooted, but result from lack of impulse control.

2750 juveniles got arrested on charges of rape, assault on women or attempts to such offences in 2019[1]. According to another survey, crimes under IPC committed by children have not exceeded 1.2% of the total crimes committed in India ever. The numbers are still under check considering the total criminal-population, though not satisfactory.

Causes of Juvenile Delinquency

1. Socio-economic

Societal and financial conditions like broken family, poverty, hunger, school drop-out and forced child-labour, etc. may lead to juvenile delinquency. Delinquents often come from crime dominated areas, prone to being influenced by the environment.

2. Psychological Theories

Delinquency can be psychological. In that case there is a greater prospect of reforming the criminal youth through counselling. Psycho-analytics have used different terminologies to describe deviant behaviour— ‘neurotic character’, ‘perverse character’, ‘impulsive character’, ‘sociopath’, ‘psychopath’, etc. They relate the juvenile’s instinctual energy with genetics, emotional instability or ego system. Socio-economic causes mentioned above impact the child’s mental set-up.

Restorative Justice

Restorative justice aims to repair the harm caused to the society. Retributive justice punishes the offender. The former system is more applicable in cases of juvenile delinquency. It tries to make offenders understand how their actions hurt others and take responsibility for the harm they caused.

For example, an urchin steals bread from a shop. Being caught, he is not sent to jail. Rather, he is made to work for the shopkeeper for a week to make-up for the harm caused by his theft. This would not only help the shopkeeper get assistance, but also perhaps help the boy get a means to earn an honest living so that he would not have to steal anymore.

Instead of throwing juveniles into prisons, it aims to reform and rehabilitate them. The Preamble of the Juvenile Justice Act of 2015 therefore talks about proper care, protection, development, treatment, and social re-integration of children.

Legal Measures

The Juvenile Justice system works conjointly with the Criminal law system.

Although states may have different rules for Juvenile Delinquents, there are three major Central Acts—

  1. The Juvenile Justice Act, 1986 that replaced the earlier Children Act, 1960.

  2. The Juvenile Justice (Care and Protection of Children) Act, 2000 ushered in a perspective-change and established the Juvenile Police Units in states.

  3. The Juvenile Justice (Care and Protection of Children) Act, 2015 replaced the word “juvenile” with “child”. Its need was felt when heinous offences committed by children started increasing.

Juvenile Justice Boards

Juvenile delinquents are not taken to regular criminal courts. They are tried before Juvenile Justice Boards. 701 such Boards in India function presently under the Integrated Child Protection Scheme (ICPS) of the Ministry of Women and Child Development.

They consist of a Metropolitan Magistrate or a Judicial Magistrate of the First Class along with two social workers, at least one of whom is a woman. The Board has knowledge and experience in child psychology and welfare.

The premises are child-friendly, situated near an Observational Home. The Board does not sit on a raised platform. The infrastructure is well-thought-of keeping the child’s best interest in mind.

Rights of children in conflict with law

Every juvenile has the right to bail unless the apprehended results of release are more severe than detention. They have a right not to be “arrested”.

If the police detain a child-suspect, he is not kept in custody with adult criminals. The child is handed over to a Child Welfare Police Officer or taken under the care of the Juvenile Police Unit. He is not even handcuffed. The parents are informed immediately.

Unless the child commits a heinous offence or any offence in association with adults, the police record the complaint in the General Diary and do not register FIRs[2].

To prevent stigmatization of the juvenile, his identity is protected. The 2015 Act prevents disqualification of children involved with crime from availing of future opportunities.

The State Governments are expected to provide aftercare to juveniles in financial or other matters after they turn eighteen and generally up to the age of twenty-one.

Special Provisions for Heinous Offenders

Heinous offenders face a different treatment according to the 2015 Act. The usual procedure is followed for children below sixteen. However, for delinquents of sixteen to eighteen years of age, the Procedure of Preliminary Assessment is adopted.

Experts test whether the child was mature enough to understand the implications of his acts. Upon positive results, the juvenile is tried as an adult. The case is brought to the Children’s Court.[3] The Court makes a final decision regarding the child’s maturity. If found guilty, he is kept in a Place of Safety until he turns twenty-one, after which he is sent to jail.[4]

Role of District Administration

Section 26 of the Juvenile Justice Act holds the officer in-charge responsible for runaway juveniles. Other provisions deal with the establishment of a Child Welfare Committee by the State Government.

Even during mass-outrages demanding harsher measures on the child, the Executive should protect his right. The principles of innocence, dignity, equality, non-discrimination, non-stigmatizing semantics, privacy, confidentiality, a fresh start, positive measures, restoration, etc. must be considered.

Case Laws

  1. The Delhi gang-rape case of 2012 shook the foundation of juvenile laws in India and abroad. A minor was involved in brutally raping a 23-year-old woman. Subsequently, the Juvenile Justice Act of 2015 was passed that reformed the previous laws.

  2. The Jabua Murder Case, 2017 is an example of a case of minors being tried as adults. It was perhaps the first case under the amended Act of 2015. Two teenagers, being found physically and mentally fit and aware of the consequences of their offence, were sentenced to life imprisonment by a Sessions Court in Madhya Pradesh for murdering a sixteen-year- old for a meager sum.

  3. In National Commission for Protection of Child Rights v. Rajesh Kumar, 2020, the child care institute of Jalpaiguri, West Bengal, was involved with the heinous crime of child trafficking. The National Commission and the State Commission were ignorant of the protection of child rights. The apex court directed the two commissions to cooperate in all inquiries regarding the matter.

Conclusion

It is the graveness of the offence committed and not the physical age that defines a criminal’s maturity. “When students are occupied, they are not juvenile delinquents. I believe education is a capital investment” [Arlen Specter]. The State must consider this while dealing with underprivileged children who could potentially turn delinquents in lack of proper care.

References—

  1. http://jjb.bih.nic.in/pdf/JJActHandbookAdministrators.pdf

  2. https://thefactfactor.com/facts/law/legal_concepts/criminology/juvenile-justice-board/12087/

  3. https://satyarthi.org.in/wp-content/uploads/2020/02/faq-on-jjb.pdf

  4. https://www.yourarticlelibrary.com/essay/juvenile-delinquency/types-of-delinquency-refereed-by-howard-becker/43996

  5. http://oaji.net/articles/2017/1201-1546069187.pdf

[1] NCRB data

[2] Juvenile Justice (Care and Protection of Children) Model Rules, (JJMR) 2016

[3] Section 18 of the JJ Act, 2015

[4] Section 20 of JJ Act, 2015

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