Juvenile Delinquency

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Educere-BCM Journal of Social Work 45

Vol. 15, Issue-1, June-2019

Deviation from Traditional Approach of


Juvenile Justice Law: Does it Reduce the
Juvenile Delinquency?

Muhammed Saheeret1 and Sachin Menon2

Abstract:
For more than six decades the Indian juvenile administration followed a
reformative and rehabilitative form of punishment for juvenile delinquent
and accepted the fact that 16 to 18 years is the most crucial and sensitive age
requiring greater protection. But the unfortunate, Nirbhaya incident reversed
the existing reformative oriented juvenile justice administration. Juvenile Jus-
tice Act, 2015 started a new era for juvenile justice administration in India by
introducing provision for transfer of 16 to 18 years old juvenile delinquent
alleged to have committed heinous offence to an adult criminal court. The
provision for transfer of the juvenile to adult criminal court to trail as the
adult and to punish like the adult is, directly and indirectly, inconsistent with
the basic objectives of juvenile justice system in India and CRC. The paper
focused on the various changes in traditional approach of juvenile justice law
and its effect in juvenile administration.

Introduction
Children are considered as the future asset of every nation, and it is the
moral obligation of every nation to ensure protection and healthy develop-
ment of the children. Juveniles should be permitted and provided opportu-

1. Adv.Muhammed Saheer E T, Advocate, Calicut District court, LLM (Cochin Universi-


ty), email: saheer.amu@gmail.com
2. Adv. Sachin Menon, Assistant Professor, Co-operative School of Law, Thodupuzha
email: menon225@gmail.com

June 2019
46 Muhammed Saheeret and Sachin Menon

nities to develop as good, law abiding citizens. In societies all over the world,
children are considered as the most vulnerable group, and most communities
keep children under the protection of their parents. Most often they are under
the circumscribing limit of their parent or any adult or any other authority.
Today’s children are tomorrow’s citizens. Therefore, the children who involve
in criminal or anti-social activity cause harm not only to him but also the
society as a whole.
Juvenile delinquents have always got a treatment and punishment separate
from adult offenders in most of the countries. This has resulted in a diver-
gence in response in case of violation of law by the children and immature
citizen. The reason for that is young people do not possess sufficient maturity
to understand the consequence of their acts, and it would be unjust to deal
them in the same manner as those who don’t have the similar disability.
Juvenile delinquency is one of the important parts of criminology. The
term delinquency is derived from the Latin word “delinquent” which means
to leave or abandon and the term “delinquent” originally indicated the chil-
dren who were neglected or abandoned by their parents. In the present sys-
tem, the term using to indicate the children involved in harmful, anti-social
or criminal activity. The term juvenile delinquent is defined as the child who
is alleged to have committed any offence which is punishable by the law of the
land and who has not attained the age in which an adult person is liable under
the law.
The Juvenile Justice (Care and Protection of Children) Act, 2015 (‘the Act’,
hereinafter) is a beneficial legislation. The legislation is aimed at catering to
the children’s basic needs through providing the basic care, protection, de-
velopment, treatment and social reintegration by adopting a child-friendly
approach in the adjudication and the disposal of matter keeping in mind the
best interest of the children and for the rehabilitation through the process
provided and institution and bodies established. Before the establishment of

SidiqueAhemmed, criminology problem, and perspective,172 (1st ed.,1983).

Educere-BCM Journal of Social Work


Deviation from Traditional Approach of Juvenile Justice Law: 47
Does it Reduce the Juvenile Delinquency?
the separate system, the alleged juvenile delinquent was arrested and inves-
tigated by the police officers, put on trial before the magistrate and sent to
the jail along with the adult offenders or the habitual offenders. There was no
separate treatment or any kind of leniency toward the children who commit-
ted the offence. The process of arrest, trial, and detention of child without any
leniency causes the destruction of childhood of the juvenile offender and also
the possibility of rehabilitation or reintegration of the juvenile offender into
the community. The modern juvenile law established a separate system for
the treatment of the juvenile offenders, and it included the treatment of both
children in conflict with law and children in need of care and protection.

History and Development of Juvenile Justice Law


The classical Hindu law is a pointer in this regard. Even though it is very
difficult to find out much about the subject in the Vedic literature, Smritis
have taken up the issue at different stages. It is very difficult to find out the
subject in some historic chronological order because we are not certain about
the date of the different Smritis. The classical proponents are unanimous on
the problem that the children should be given special treatment for they are
incapable of understanding things but there was no uniformity in the exposi-
tion of the law in the issue. Sankha prescribed the complete exclusion of the
juvenile delinquent up to five years. Kautilya prescribed the complete exoner-
ation up to the age of twelve for the female and sixteen for the male but on the
other hand, Manu approved corrective and corporal punishment for the juve-
nile delinquent. Mahabharata prescribed complete exclusion of juvenile up to
the age fourteen, and that was followed in a different part of India with some
variations. Matsyapurana, Narada, Brihaspathi and Yajnavalkya mentioned
the male up to the age of eight as ‘sisu’ (like embryo) and ‘bala’ or ‘poganda’
after that up to sixteen years. This shows that during the early period of Indian
history there existed a different kind of treatment of the juvenile delinquent
and indicates the possibility of a double standard.

Preamble,Juvenile Justice (Care and Protection of Children) Act, 2015.

June 2019
48 Muhammed Saheeret and Sachin Menon

Ancient India did not have a single organized system of prison. India was
ruled by the Muslim and Hindu rulers. During these periods the manner and
quality of administration was different. This divergence in the quality of ad-
ministration was clearly reflected in the administration and treatment of pris-
oners. Kingdoms ruled by the autocrat rulers were generally not concerned
about the welfare and protection of their subjects. The law breakers were im-
prisoned and punished for offences. They got harsh punishment even for petty
offences. During this period there was no segregation between the juvenile
offender and the adult one.
A milestone in the development of juvenile justice was the report of the
Committee on Prison Discipline published in 1834. The report demanded the
classification of prisoners according to antecedents and character. It further
recommended that classification among offenders should be applied to those
under trial. The first separate institution for the better treatment of juvenile
delinquents was established in 1838. The main objective of the institution was
the reformation of juvenile delinquent arrested by the police or any other au-
thority as well as the encouragement of the apprenticeship among the working
class. One of the important initiations on the part of British East India Com-
pany was the establishment of the reformatory school for the protection of
delinquent children. In 1843, due to the irrefutable demand from part of In-
dian people, Lord Cornwallis established a reformatory school at Bombay for
children who were orphan and neglected. The prime objective of the school
was giving a shelter to orphans as well as destitute children. It also aimed at
reformation, rehabilitation, and reintegration of juveniles who engaged in an-
ti-social activity and committed crimes.
Another important landmark in the development of juvenile justice sys-
tem in India was the recommendations of the Indian Jail Committee in 1889
and 1919. The 1889 report investigated all aspects of Indian prisons, espe-
cially its administration. Some of the important recommendations given for
the improvement of Indian prison administration were: (a) establishment
of borstal schools in some parts of India for the reformation and correction

Educere-BCM Journal of Social Work


Deviation from Traditional Approach of Juvenile Justice Law: 49
Does it Reduce the Juvenile Delinquency?
of juvenile delinquents (b) improving facilities for the vocational training (c)
establishment of advisory board to look into and revise the terms of adminis-
tration, if necessary (d) provision of religious instruction (e) improving the
physical atmosphere and layout of the prison by means of a guardian (f) pro-
vision for giving instruction to the female prisoners in home industries etc.
On the basis of the jail committee report, the government took some steps
to separate adult habitual offenders from casual ones, female offenders from
male offenders, and juvenile delinquents from adult offenders. Special prisons
were established for the prisoners suffering from tuberculosis or leprosy.
The measure taken to improve the condition of delinquent children in
India has been considered as charity rather than social reformative policies.
During the mid-1880s, the British East India Company enacted different leg-
islations for the protection of juveniles- it was not absolutely for the treatment
of juveniles in conflict with the law. The legislations enacted for the protection
and welfare of the children were Vaccinations Act, 1880, Guardianship And
Ward Act, 1890 and Factories Act, 1881.These are not exclusively dealing with
juvenile delinquent but also included provision for the welfare and well-being
of children, just like the Apprentice Act, 1850.
The Apprentice Act, 1850 was the first pan-India legislation for the treat-
ment of juveniles. It dealt with the relation between the employee and em-
ployer. There is provision for the welfare and protection of children, especially
poor and orphan children. It gives priority to the reformation and rehabili-
tation rather than institutionalized punishment of juveniles between the age
of 10 and 18. Under this Act, both girls and boys who are convicted for petty
offences or found destitute upon trial before a magistrate were bound to be an
apprentice.
The Apprentice Act, 1850 was replaced by the Reformatory School Act,
1879, which was subsequently amended as the Reformatory School Act, 1897.
The 1897 statute was enacted with objectives of reformation and rehabilitation
of juvenile in need of care and protection. It gives power to the appropriate

June 2019
50 Muhammed Saheeret and Sachin Menon

government to establish a reformatory school for the protection and rehabil-


itation of children in need care and protection, and further, it prescribed the
basic requirement of establishing the reformatory schools and child-friendly
court. Under this Act, no boys over 18 years of age were to be detained in the
reformatory school and such boys are to be released on the license if suitable
employment is found for them. It did not make any indications on dealing
with girls, even though the earlier Act made provisions for the treatment of
girls.
The Second Jail Committee Report (1919) recommendations led to tre-
mendous changes in the juvenile justice system in India. The Committee re-
port reiterated that the object of punishment of juvenile delinquent should
be reformation and reintegration of juvenile delinquent into society, and that
the system should be focused on the moral and intellectual development of
the juvenile delinquent. The Committee further recommended establishment
of borstal schools for juvenile offenders aged below 15 years and reiterat-
ed that the government should ensure the functioning and effectiveness of
child-friendly courts and separation of juvenile delinquents from the adult
prisoners.
The 1919 Report investigated all aspects of the administration of prisons
and recommended the separation and classification of prisoners, discipline,
punishment, reformatory influences among prisoners, aiding prisoners’ re-
lease on probation, borstal treatment and measures to prevent imprisonment
for children and the young. The result of this Report was increased public as
well as government attention for the welfare and better treatment of insti-
tutionalized offender, especially the juvenile offender. The Report points out
that juvenile delinquency is the product of the circumstance and environment
of children and that they are entitled to get good conditions for their growth
and development. The Report also emphasizes that juvenile offenders are
amenable to re-education and treatment because their attitude is not fixed. It
can be changed giving good education and other positive treatments.

Educere-BCM Journal of Social Work


Deviation from Traditional Approach of Juvenile Justice Law: 51
Does it Reduce the Juvenile Delinquency?
Beginning of the Era of Modern Juvenile Protective Legislation
The beginning of all development of prisons in India can be traced back
to the recommendations of the Jail Committee, which made several propos-
als for the development of prisons in India. Till the said recommendations,
the reformation and treatment of juvenile delinquents had not received much
consideration from the government. In India, before the Jail Committee
recommendations, juvenile delinquents had to undergo imprisonment in
jail along with the adult offenders. The Bombay Jail Administration Report
called the attention of government and the public to five cases of juvenile de-
linquency which were rather harshly dealt with by the magistrate. The Report
stated many incidents in which minor girls and boys aged below 10 years were
sentenced to rigorous imprisonment for six months or above under the crim-
inal procedure code even for petty offences.
As the result Jail Committee recommendations, some states enacted leg-
islations to give effect to the recommendations. After 1920 different states
started enacting separate state laws for the protection of juvenile offenders.
Tamil Nadu was the first state to enact a law, the Madras Children Act 1920,

3
The Bombay Jail Administration Report(1915-16 ), Bombay Prison Authority,1916,Gov-
ernment of India press minto Road, New Delhi
4
S.3 (1), Madras Children Act 1920.Child means a person under the age fourteen year age
and when used in reference to child sent to a certified school applied to that child during
whole period of detention notwithstanding that child attained the age fourteen years the
expirations of that period.
id. S.3 (2).Youth person means person who is fourteen years old or upward and under the
age sixteen year.
Id. S .3(3).The youth offender means any person whom has been convicted any offence
punishable with transportation or imprisonment and who at the time of such conviction
was under the age of sixteen.
Delhi Children Act, 1943.
Mysore Children Act, 1943.
The Travancore Children Act,1945.
The Cochin Children Act, 1946.
The Bombay Children Act, 1948.
A.P. Children Act,1920.
The Uttar Pradesh Children Act, 1951.
The Bengal Children Act, 1922.

June 2019
52 Muhammed Saheeret and Sachin Menon

to deal the juvenile delinquent. It proposed separate treatment, custody, trial


and punishment for the youthful offender and the protection of children and
youth. Sections 3(1) , 3(2) and 3(3) define child, youth person and youthful
offender respectively.
The Madras Children Act, 1920 included provision for establishment cer-
tified schools such as the senior certified school for the training of youthful
offender, and the junior certified school for the training of children. Further, it
is to be noted that the senior certified school was designed to give protection
and training to the youthful offender, who were below 16 years of age; and the
junior certified school, who were designed to give care and protection for chil-
dren, who were below 14 years of age. After the Madras Children Act, 1920
different states enacted state laws to deal with the juvenile offender. Some
states were Delhi, Mysore, Travancore, Cochin, Bombay, Andhra Pradesh,
Uttar Pradesh and West Bengal. All these legislations proceeded in the same
manner which gives importance to the reformative and rehabilitative measure
of punishment for the child and youth offender.
After independence, there were many developments in Indian juvenile
justice administration consistent with the international human rights law
framework. Both the central government and state governments introduced
different laws, policies, and programs for the development and welfare of the
juvenile in conflict with law and children in need of care and protection. For
treatment of the juvenile delinquent, the Children Act, 1960 is the first central
legislation after independence. This Act was extended to all union territo-
ries and was designed as a model to all states. The Children Act, 1960 was a
purely beneficial legislation which established child-friendly courts and had
a friendly procedure for the welfare, well-being, and rehabilitation of the ju-
venile offender. It consists of seven chapters and sixteen Sections. Sections
13 to 17 deal with neglected children. In 1978, it was amended for removing
some lacunae in it. Also, the amendment widened the definition of neglected
children to include children on whom parents are not able to exercise power
Also known as Beijing rule
Educere-BCM Journal of Social Work
Deviation from Traditional Approach of Juvenile Justice Law: 53
Does it Reduce the Juvenile Delinquency?
within the definition provided in the statute.
The Juvenile Justice Act, 1986 was the first pan-India legislation for the
treatment of juvenile delinquents. The government of India enacted the leg-
islation for the reformation and rehabilitation of juvenile delinquents as ex-
isting laws were found inadequate in providing care, protection and healthy
development of juveniles in conflict with law and children in need care and
protection. It is first in the history of India where a single legislation was en-
acted for the separate treatment of juveniles including the investigation and
trial of the juvenile offender. The prime objective of the statute was the imple-
mentation of the provision related to the United Nations Minimum Standards
Rule 1985 and it implemented the rule into domestic law without losing its
spirit and object.
The Juvenile Justice Act, 1986 was enacted with the objective of providing
a uniform way of administration of juvenile delinquents all over India along
with providing a humanitarian approach to the treatment of juvenile offend-
ers and it ensures that the no juvenile delinquent under any circumstances is
treated under the ordinary criminal procedure. This Act gave a gender-based
definition for child, according to which ‘child’ means a boy who has not at-
tained the age of sixteen years or a girl who has not attained the age of eighteen
years. This gender-based definition of the juvenile has been controversial.
The preamble of the 1986, Act is states that it is “An act to provide for
the care protection, treatment, development and rehabilitation of neglected
or delinquent juvenile and for the adjudication of certain matters related to
the juvenile delinquent.” The incorporation of words like ‘development’ and
‘treatment’ widened the scope and importance of the preamble, and the word
‘development’ has indicated a humanizing aspect in the treatment of juveniles.
Juvenile Welfare Board, Juvenile Court and different other authorities were
constituted under the 1986 Act for creating juvenile-friendly proceedings and
treatment. It gave direction to the appropriate state governments to constitute
a Juvenile Welfare Board and Juvenile Court in each state; all the reforma-

June 2019
54 Muhammed Saheeret and Sachin Menon

tions are the part of the creation of child-friendly system. The child brought
before the board is entitled to get bail in both bailable and nonbailable offenc-
es; a board can only in exceptional circumstance refuse bail.
So it was the first uniform legislation for the treatment of juvenile delin-
quents. It faced a lot of criticisms from different parts of society. Firstly, it was
criticized as a mere replacement of the central Children Act, 1960 by exclud-
ing some terms, thereby containing nothing new. Some other criticisms relat-
ed to the definition of ‘juvenile’ and ‘neglected child’. The first problem related
to the age differentiation between boys and girls for application of the statute;
the next critique was that the definition of ‘neglected child’ was very narrow.
The need and demand for care and protection of juvenile delinquents, and a
separate body for dealing with them remained unanswered.

Convention on the rights of the Child and its effect on Indian


Juvenile Administration
The Convention on the Rights of the Child (‘CRC’, hereinafter) is the in-
ternational human rights convention which enumerates and emphasizes the
basic human rights of children worldwide, and further, it elaborates the stan-
dard of human right with respect to the child. CRC was adopted by UN Gen-
eral Assembly on November 20, 1989, and it entered into force on September
2, 1990. It is one of the most widely accepted treaties in the world and more
than 190 countries have ratified the treaty. Unfortunately, the United States
of America did not ratify CRC along with South Sudan and Somalia but at
same time the convention quickly become the world’s most recognized treaty,
a recognition which is considered as a victory for the global child rights move-
ment. The rights enshrined in the CRC are available to all children without
any discrimination or unreasonable limitations. The CRC is considered as a
milestone in the history of human rights protection. It includes several provi-
S. 2 (h),Juvenile Justice Act 1986.
id. Preamble.
id. S.4.
id. S. 5.
Educere-BCM Journal of Social Work
Deviation from Traditional Approach of Juvenile Justice Law: 55
Does it Reduce the Juvenile Delinquency?
sions for the welfare of children such as the right to education, name and na-
tionality, right to identity, right of access to information, right to healthcare.
Further it gives protection from arbitrary arrest and treatment, separate con-
viction from adults, prohibition of death penalty, right against exploitation,
torture, and inhuman punishment, etc.
A prime object of the CRC was to give a binding effect the rights enshrined
in the United Nations Standard of Minimum Rule for the Administration of
Justice System, especially the rights related to the juvenile in conflict with the
law. Articles 37, 38 and 40 are dealing with the delinquent child and the trial
and punishment of such children. Article 37 is one of the important provi-
sions which gives a basic standard for the treatment of juvenile delinquents
and it places a binding obligation on nations to not give any kind of punish-
ment for the children in a manner that causes cruel, torture or inhuman and
degrading punishment and neither capital punishment or life imprisonment
without possibility of release. The Article further provides a child the right to
be not deprived of the right to liberty unlawfully and arbitrarily. Arrest and
detention is considered a last resort; if the circumstances do not allow the
avoidance of arrest and detention it should be done in accordance the law, and
the arrested child should be treated with humanity considering the age and
vulnerability of the child.
CRC provides that the juvenile offender should be treated separately and
shall have the right to maintain contact with family and relatives. It enunci-
ates that children who are deprived of their liberty have the right to get legal
and other assistance; the right to challenge the legality of the deprivation of
their liberty and to be heard at any administrative or judicial proceeding di-
rectly or through a representative or any appropriate body in a manner con-
sistent with the law of land.

Art.7,Unite Nations Convention on the Right of Child 1989.


id. Art.8.
id. Art.29.
id. Art. 37(1) (a).
id.Art.37 (1) (b).

June 2019
56 Muhammed Saheeret and Sachin Menon

Article 40 deals with juvenile delinquents or children accused of commit-


ting an offence or violating the penal law of land. This provision establishes a
basic standard for the arrest, investigation, trial and punishment of children
and for the treatment of juvenile delinquents who have been accused or al-
leged to have committed an offence. The Article advocates that states parties
must give importance to the rehabilitative measure rather than the punitive
form of punishment and gives direction to states parties to give priority to a
variety of dispositions such as care, guidance and supervision orders, coun-
seling, probation, foster care, education, vocational training and other insti-
tutional care to ensure that children are dealt with in a manner appropriate to
their well-being, protection, circumstance and the alleged offence.
Another important factor of CRC is that it creates an international moni-
toring committee known as Committee on the Rights of the Child. It is a body
created under the convention to monitor how the parties fulfill their obliga-
tion under it. The committee is composed of ten independent experts elected
by states parties and makes its assessment through the five-year reports sub-
mitted by the concerned government. The report includes facts and difficul-
ties, if any, faced by parties for implementing rights and duties enshrined in
the CRC. The report would be in such manner that the committee can under-
stand all the difficulties and problems faced by countries for implementing
the provisions of the convention. Using the report, the committee takes ap-
propriate proceedings which will help countries to implement the provisions
in a better and easier way.
So it is clear that the main objectives of CRC are to establish and admin-
ister a child-friendly juvenile administration system which is acceptable to
all communities and ensure all kinds of care and protection from both gov-
ernmental and non-governmental organizations. CRC gives a moral and le-
gal obligation to states parties and parents of children. All actions taken by

id. Art. 37 (1) ( c).


ibid
ibid
Art. 40,The United Nations Convention on the Right of the Child 1989.
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Deviation from Traditional Approach of Juvenile Justice Law: 57
Does it Reduce the Juvenile Delinquency?
parents and states parties should be in the best interest of the child. It further
states that state parties must ensure that the institutions, services and facili-
ties responsible for the care and protection of children are consistent with the
standards prescribed by the competent authority.
After the formulation of CRC, there was irrefutable demand in different
parts of India for the replacement or amendment of existing domestic juve-
nile justice legislation to bring in the principles and obligations under CRC,
which India also had recognized. The Juvenile Justice (Care and Protection
of Children) Act, 2000 was enacted with an objective to give care, protection,
good and effective treatment to those who need care and protection, and to
rehabilitate and reintegrate children in conflict with the law, as well as to pro-
vide speedy adjudication and disposal of matters related to children for their
well-being and in their best interests. The statute applies to children in need
of care and protection and juveniles in conflict with the law. One of the main
critiques against the 1986 Act was that there is no uniformity in age between
boys and girls under it. The 2000 Act brought uniformity in the definition of
‘juvenile’. According to it, ‘juvenile’ means the child who has not completed
the age of eighteen years. It means that boys and girls who have not complet-
ed eighteen years of age come within the preview of juvenile law. ‘Juvenile in
conflict with the law’ means juvenile alleged to have committed the offence
and has not completed eighteen years of age as on the date of commission of
offence . Further, it created a statutory body for dealing with the juvenile in
conflict with the law. The Board shall consist of a magistrate and two social
workers; one member shall be a woman. The Principal Magistrate should
have special knowledge or training in child psychology and child welfare and
the social workers are required to have actively involved in health education
or welfare activity pertaining to children for at least 7 years and should have
postgraduate degree in social work, health education, psychology, child devel-

id. Art. 3 (3).


S. 2 (k),Juvenile Justice (Care and Protection of Children) Act 2000.
id. Sec. 2 (I).
id. S. 4 (2).

June 2019
58 Muhammed Saheeret and Sachin Menon

opment or any other social science discipline.


If any child is alleged to have committed any offence, it is the duty of an
officer to bring that juvenile to the Juvenile Justice Board, and the Board can
order for further inquiry in the matter. Inquiry is done by a special juvenile
police unit. They have to finish the inquiry within the stipulated time and
during the pendency of proceeding they may send the child to the concerned
parent or guardian or in some circumstances they may send the child to the
observation home. In case the children do not have any parent or guardian
they may be permitted to remain in the juvenile home. If the child is found
guilty of any offence, imprisonment is considered a last resort. There are many
other options in front of the Board like providing group counseling, advice,
admonition, etc

Adult Punishment for the Juvenile Offenders:


Does it reduce Juvenile Delinquency
The punishment approach is functionally based on the different attitude
of the society, including the emotional attitude of the crime caused. Indian
juvenile system is traditionally based on reformatory and punitive approach.
Ahemmed Sidique has successfully summarized the two basic theories of the
punishment approach. According to him, the rationalization of punishment
may be classified into two classes to be based on the utilitarian and retribu-
tive theories. While the retributionist’s emphasis that the implementation of
punishment can be justified in itself since the offender should be given their
deserts. The utilitarian’s regard punishment as an evil which should be used
only if it serves some real purpose. There were many theories justifying the
retributive punishment from the different points of view. Henrich Oppen-
heimer has explained that “theological ground which is satiating the pun-

id. S. 4 (3).
Id. S.2 (w).”Juvenile Police Unite” means unite of police unites of police for handling of
juvenile or children under the section 63.
SidiqueAhemmed, criminology problem and perspective,44 (1st ed.,1990).
HenrichOppenhiemer, The rational and punishment,(1st ed.,1930),

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Deviation from Traditional Approach of Juvenile Justice Law: 59
Does it Reduce the Juvenile Delinquency?
ishment should be such as to flush away the guilt of the offender.” Walter C.
Reckless demanded for punitive retribution which still lurks in the mind of
the individual. Although it takes in the form of a rationalization or sentiment
something that ought to be done or an action that justly and rightly need to
be made and streamlining and feeling are carried forward as a social concept
of justifying the necessary punitive measures on the part of the state, the de-
terrent form of punishment is intended to teach a lesson to the offender and
create a fear in the eyes of others that it will happen to them if they violate the
law or norm of the community.
The concept of punishment under the juvenile administration is incom-
patible with the other criminal system. Juvenile Justice Acts or Children Acts
were the beneficial legislation which was enacted to the protection of children
and not punishing the child. The ostensible object of the juvenile administra-
tion is to create a separate system of administration for the development, wel-
fare, rehabilitation, and reintegration of juvenile delinquents into the society.
Therefore, all the activities and initiation-related to juvenile administration
is to achieve the object and the punishment under the juvenile which is also
considered as one of the means of making this object.

Concept of Concept of Punishment under Indian and


International Law
Under the leadership of the United Nation Organization, world communi-
ty initiated different declarations and conventions for the protection of chil-
dren from the cruel and adult-centric punishment system; it is considered as
one of the important function of the United Nations to establish an interna-
tional standard for the protection of children from adult-centric punishment
and create a separate form of juvenile administration.

Punishment under Convention on the Right of Child


All the international documents which were enacted for the protection of
right of juvenile in conflict with law did not the favor giving punishment to ju-

June 2019
60 Muhammed Saheeret and Sachin Menon

venile delinquent and international documents advocated that imprisonment


should be a last resort in case of the juvenile in conflict with law and forbid
death sentence as well as cruel or inhuman punishment for the child who
violates the law. Article 37, 39 and 40 of the CRC specifically dealing with the
punishment aspect of the juvenile in conflict with the law, article 37 (a) of con-
vention states that, “No child shall be subjected to the torture or other cruel,
inhuman or degrading treatment or punishment. Neither the capital punish-
ment nor the life imprisonment without possibility of release shall be imposed
for the offences committed by the persons below eighteen years of age.”
Article 37 (a) reiterating one of the established principles of the Interna-
tional Convention on civil and political right 1966 states that the no person
shall be subject to cruel or inhuman and degrading treatment or punishment
and the term person includes a child, also further the convention gives an
obligation to the world community to abolish the death penalty and not to
give the death penalty to the person below 18-year-old. Child is entitled to
get benefit of all basic human right as adults are entitled to get as well as some
other subset of right which is not to the adult persons, the convention further
offers some special right to child offenders like Article 10 (3) demanding seg-
regation of the juvenile offender from the adult offender and Article 14 (4)

Art. 7, International Convention on Civil and Political Right 1966.


id. Art. 65. Sentence of death shall not be imposed for the crimes committed by the per-
sons below the eighteen years of age and shall not be carried out on pregnant women.

id. Art.10(3) 3. The penitentiary system shall comprise treatment of prisoners the essen-
tial aim of which shall be their social reintegration and reformation. Juvenile delinquent
shall be separated from adult offenders and be accorded treatment appropriate to their
age, and legal status.
id. Art.14(4) 4. In the case of the juvenile persons, the procedure shall be such as will take
account of their age and desirability of promoting their rehabilitation.
Art.37(a).UN Convention on the Rights of the Child, 1989.Which is excludes child of-
fenders from the death penalty (B) International Covenant on Civil and Political Rights,
1966 Article 6 (5), (C) African Charter on the Rights and Welfare of the Child (D) Amer-
ican Convention on Human Rights.No state party whose laws currently provide for the
death penalty against child offenders has entered a reservation to the relevant provision
of that treaty.

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Deviation from Traditional Approach of Juvenile Justice Law: 61
Does it Reduce the Juvenile Delinquency?
demanding the procedure against juvenile should consider the age of juvenile
delinquent as well as with the intention of rehabilitating the juvenile offender
into community and the International Convention on Economic Social and
Cultural right 1966 also emphasized that the punishment for the juvenile of-
fender should be reform the juvenile offender.
Article 37 of CRC deals about the obligation of the world community to
prohibit the cruel and inhuman punishment against the juvenile offender and
forbid death penalty for a juvenile offender. There are several international
and regional convention and declaration which ostensibly forbid the death
penalty for children who had broken the existing law. About 194 states have
now ratified the regional or international convention which prohibits the
death penalty for a juvenile offender and most of the country incorporated
and implemented the provision into the domestic law except united state of
America. USA is one of the few nations which has reserved the provision of
prohibiting of death penalty stating that the USA reserves the right, accord-
ing to its Constitutional constraints, to impose death penalty on any person
(other than a pregnant woman) duly imprisoned under existing or future laws
permitting the imposition of death penalty, including such punishment for
crimes committed by persons below eighteen years of age and most of the
State law of United States enacted in such way that there is no difficulties in
treating a child offender as the adult. Article 19 (1) CRC gives obligation to
parties that the parties shall take all the appropriate legislative, administra-
tive, social and educational measures to protect the children from all kinds of
mental or physical violence, abuse or injury, neglected or negligent treatment,
exploitation or maltreatment, including the sexual abuse, while in the care of

In the USA since 1995, two states, Indiana and Montana, have raised the minimum
age for the imposition of the death penalty to 18 at the time of the offence. Of the 38 US
states whose laws currently provide for the death penalty, 16 exclude its use against child
offenders, as doe’s federal law. No US state has lowered the minimum age since executions
resumed in the country in 1977.
Amnesty International Report, (2003).
Art.38 (b), United Nation Convention on Right of Child, 1986.
Rule 17 (3), Beijing Rule, 1985.

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62 Muhammed Saheeret and Sachin Menon

the parent(s), legal guardian(s) or any person who has the care of the children.
Article 39 of the Convention recognized the responsibility of the state to take
measures to promote the physical and psychological recovery and social rein-
tegration of the juvenile victim from any form of the neglect, exploitation, or
abuse; torture or any other form of cruel, inhuman or degrading treatment or
punishment or armed conflicts.
Under the international law imprisonment of a juvenile is considered as
the last resort, CRC states that the no children shall be deprived of his or
her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of
children shall be in conformity with the law and shall be used only as a last
measure of the resort, and it should be for the shortest appropriate period.
There should be no corporal and degrading punishment and the imprison-
ment of the juvenile offender without the possibility of release is considered
as the violation of the basic human right of the juvenile delinquent. The ba-
sic standard of treatment of juvenile offender now has become part of the
customary international human right law, and the Committee on the Right
of Child expressed its concern about the nations which did not prohibit the
death penalty and corporal punishment of the juvenile offender.
CRC emphasizes that all proceeding initiated against the children should
be for the best interest of juvenile offender. Article 3 (1) of CRC in all actions
related or affecting children, whether undertaken by the public or private so-
cial welfare institutions, the courts of law, legislative bodies, or administrative
authorities, the best interests of the juvenile shall be a primary consideration,
and it gave some kind of binding obligation upon the parties to that all the
proceeding related to juvenile delinquent should be for giving care and pro-
tection or development or rehabilitation and reintegration of the juvenile de-
linquent, not for punishing the juvenile delinquent. Beijing Rule gave special
importance to protect the interest of the juvenile delinquent offender, Rule 5
(1) The juvenile justice system shall emphasize the well-being of the children
and shall ensure that any reaction to child offenders shall always be in propor-
tion to the circumstances of both the offenders and offence and Beijing Rule

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Deviation from Traditional Approach of Juvenile Justice Law: 63
Does it Reduce the Juvenile Delinquency?
ensuring and protecting the basic human right of juvenile offender during
proceeding against the juvenile. According to Beijing Rule all the States are
obliged to ensure the Basic procedural safeguard such as right to be notified
of the charges, right to counsel, the right to remain silent, the right to the
presence of a parent or guardian, the right to confront and cross-examine
witnesses the presumption of innocence, and the right to appeal to a higher
Court or authority shall be guaranteed at all stages of proceedings.
So clearly the CRC or any other international document enacted for the
protection and welfare of the juvenile delinquent, the international human
right law not only advocated the adult-centric punishment but also gave a
binding obligation to the state to prohibit the adult-centric punishment of
juvenile delinquent. Article 37 of CRC only prohibits death sentence or life
imprisonment without parole or release and further convention put a giv-
ing obligation to respective state that the imprisonment of juvenile offender
should be recognized as the last resort of punishment, meaning that giving or
recognizing imprisonment as one of the means of punishment is not contra-
dictory with the any article of convention on right of child.
Introducing separate punishment for the juvenile delinquent who had
committed the heinous offence is inconsistent with the basic objective of the
CRC. Even though the CRC is not absolutely prohibiting the imprisonment
of the juvenile offender but the convention emphasized the imprisonment of
juvenile delinquent should be the last resort of treatment, and it should be for
the best interest of juvenile offender.

Punishment under Indian Law


During the early period of the Colonial rule, there was no legislation deal-
ing with the liability of juvenile offender or welfare of juvenile delinquent;
there was no separate punishment for the juvenile offender, they were tried
and punished like the adult offender. The Apprentices Act, 1850 was the first
legislation which renders a separate form of punishment for the juvenile of-
fender. The Apprentice Act made an attempt to keep away juvenile delinquent

June 2019
64 Muhammed Saheeret and Sachin Menon

between the age of 10 to 18 from the imprisonment and segregated juvenile


offender from the adult offender, included provision for vocational training
for the juvenile offender. In Reformatory School Act, 1876 gives a duty to the
government to establish a reformatory school for juvenile delinquent aged
below 15 years and sending them to the reformatory school instead of sending
them to jail with the adult offenders.
Imprisonment as the method of punishment does not have any ultimate
objective expecting to have a retributive or deterrent value; it is inconsistent
with the objective of the juvenile justice system. Naturally, it is always advis-
able that under any circumstance child offender should not be sent to prison
because ones he is sent to prison he is almost certainly a lost case for the soci-
ety. In prison, he develops an arrogant attitude, disregard for the society, and
ultimately he converts himself as a hardened offender criminal in which he is
assisted by his colleague in prison.

Juvenile - Centred Punishment Approach


The concept of punishment was not compatible with the object of the ju-
venile justice system in India, before the enactment of state Children Acts by
the different statute. The Indian Penal Code, 1860 and Code of Criminal Pro-
cedure, 1973 were the only enactment which deals with the juvenile delin-
quent all over India. Indian law, In general prescribe five types of punishment,
namely death, imprisonment for life, imprisonment of either description,
simple or rigorous forfeiture of property or fine but Children Act of different
state included correspondent punishment under Act and emphasized that the
no juvenile shall not be sentenced to death or sentenced to imprisonment or
committed to prison for default of payment of fine or default of furnishing

The Andhra Pradesh Children Act, 1951.The Bombay Children Act, 1948.The Haryana
Children Act, 1974. The Uttar Pradesh Children Act, 1951.andSaurashtra& West Bengal
Children Act,1922.etc.
Ss. 82 and 83,Indian Penal Code1860.
Ss. 29(8), 29 (B), 309,399and 572, Criminal Procedure Code1973.
Ss. 53, Indian Penal Code, 1860.

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Deviation from Traditional Approach of Juvenile Justice Law: 65
Does it Reduce the Juvenile Delinquency?
security. Children acts provide the following types of punishment for the ju-
venile delinquent:
(a) Order the delinquent to be sent to the reformatory institution or
Borstal. If the offense committed is serious in nature or the delinquent of un-
ruly character to be sent to the reformatory institution
(b) Order the delinquent to pay fine. If he is lawfully employed and above
the particular age, may order to pay the fine
(c) Order the guardian or parent of juvenile delinquent to pay the fine
(d) Discharge after admonition
(e) Release on probation of good conduct and placed under the care of
parent, guardian or any such fit person executing bond with or without sure-
ties
There is a clear difference between the punishment for the children acts
and punishment under other criminal law system in India; Children Acts did
not consider imprisonment or sending the juvenile to the reformatory institu-
tion as the method of punishment in any case. Sending a juvenile delinquent
to reformatory institution provides a safe custody in such place and such a
manner may be prescribed by the court or report in case of the administra-
tor, on receipt of the report of the court the administrator may make such
arrangement in respect of child as he deem fit and may order to such juvenile
delinquent detained at such place and in such condition deemed fit, custody
under children act not only mean the protective custody but it shall also mean
the reformative custody, it is an attempt to transcend the custody as treatment
to juvenile delinquent for reform and reintegration into society .
The important punishment given under the state’s children acts was im-
The Andhra Pradesh Children Act, 1951The Bombay Children Act, 1948The Haryana
Children Act, 1974 The Uttar Pradesh Children Act,1951 and Saurashtra& West Bengal
Children Act, 1922, etc.
Saurashtra& West Bengal Children Act, 1922.
Dr. N.L Mithra , Juvenile Delinquent, and Indian Juvenile System, 249 (2second ed.,1988)

June 2019
66 Muhammed Saheeret and Sachin Menon

posing the fine upon the juvenile offender or guardian or parent of the ju-
venile offender. Fine is considered under the Act as a means of punishment,
even though fine has been universally applied as means of punishment in all
most all system but to some extent in juvenile administration, imposing fine is
the process of discrimination amongst the accused by personal wealth. In ju-
venile justice system especially in Madras Children Act, 1920, Bombay Chil-
dren Act,1948 and West Bengal Children Act,1922 fines were an important
tool for the punishment, there is condition is to be satisfied by the court that
the juvenile delinquent must above age of 14 and he must have been gainfully
employed and this is very rare that the parent or guardian of juvenile delin-
quent may find if they have been found not to have exercised due control over
the juvenile delinquent.
Whereas the juvenile delinquent is bound to be scarred psychologically,
the punitive measure of the precautionary consideration is minimal at the age
of the juvenile. The juvenile is least concerned about the fine. Of course, fine
imposed upon the guardian on account of juvenile delinquent belonging to a
family shall have the deterrent aspect and compel the guardian or parent to
take proper care of their children and fine also provides an opportunity to
release a juvenile delinquent who is belong to a middle-class family.
For First time offenders for small and minor offence, juvenile delinquent
should be treated with leniency, so that children are not unnecessarily accost-
ed with the unusual life of the correctional institution that is prevalent in our
country, and it also needs to be considered that the delinquent propensity of
person is minimum the family environment, therefore his family life should
not be disturbed unless essentially required. If the parents are warned, and
juvenile delinquents are admonished in such situation that itself would have
a retarding and controlling effect in the case of the first offender. Releasing
of juvenile delinquents on admonition is also to be read along with releasing
after imposing the fine, it is apparently true that the all the juveniles accused
brought before the police authorities were not produced in the children court
or any other appropriate judicial body, in such case police after warning the

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Deviation from Traditional Approach of Juvenile Justice Law: 67
Does it Reduce the Juvenile Delinquency?
parents admonish the juvenile offender even though the police did not have
the power to do so, but countries like UK and USA gave the power to police
after warning and admonition.
There is a notable difference between the provisions of punishment under
the state’s children act like the Orissa Children Act, 1981, West Bengal Chil-
dren Act 1959 and Madras Children Act, 1920 and punishment provision of
Children Act, 1960. In section 22(1) of Children Act, 1960 indicate that the
where a child who has completed the age of fourteen years old has committed
an offence, and the children’s court found out that the offence committed is
so serious in nature or that his behavior and conduct have been such that it
would not be in his or her interest or in the interest of other children in the
special school to send him to such a special school. The Children’s Court may
order the juvenile delinquent to be kept in safe custody in such manner and
place as it thinks fit and shall report the case for the orders of the Administra-
tor. On receipt of such report from a children’s court under sub-section (1),
the Administrator may make such an arrangement in respect of the juvenile
as he deems proper and may order such delinquent child to be detained at
such place and on such conditions as he thinks fit, provided that period of de-
tention so ordered shall not exceed the maximum period of imprisonment to
which the juvenile could have been convicted of the offence committed. Pro-
vision of the section 24 (2) of the West Bengal Children Act, 1959 indicate that
where the Court finds out that the offence committed by the juvenile offender
is of such a serious nature or that he is so unruly depraved then he is not a
right person to be sent to a reformatory or portal school. The court may con-
vict him to imprisonment for a period not exceeding the maximum period of
imprisonment to which he could have been sentenced. West Bengal Children
Act,1959 recognized and accepted imprisonment as a method of punishment,
but at same time Children Act,1960 did not differ the objective of the act, the
act did not recognize the concept of imprisonment as method of punishment,
custody of juvenile means the reformation of juvenile delinquent.

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68 Muhammed Saheeret and Sachin Menon

New Approach of Punishment


Before the Juvenile Justice (Care and Protection of Children), 2015 Act
was enacted, juvenile system was purely child oriented, and the system did
not give much importance to the victim of the offence and system was based
on the reformation and reintegration of the juvenile offender into society. The
juvenile system of administration established a separate system of correction-
al institutional treatment of juvenile delinquent with the object reform and
rehabilitated the juvenile offender , Justice Bagawathi pointed out that “It is an
elementary requirement of any civilized society, and it had been provided that
in different statutes related to the children that juvenile delinquent should not
be confined to prison because incarceration in jail has a dehumanizing effect
and it is harmful to the development and growth of children”.
In the case the Public Prosecutor V. ShaikValli and Ors, the court stated
that the concept of detention in certified or reformatory schools is not to be
conceived as or equated to punishment in the sense in which the word is used
in Section 53 of the Indian Penal Code, 1860 of course it is punishment in a
narrow sense because there is a deprivation of personal liberty. The object of
detention in certified schools is to reclaim erring young person’s lost or likely
to be lost to society because of the circumstance or bad upbringing or togeth-
erness and to make good citizens of them. A certified school is a reformative
institution and not considered as a prison. Institutional treatment plays an
import role in the correctional method of the juvenile justice system and in
different cases Supreme Court and the various high court stated that there is
provision under the juvenile justice act for sentencing the juvenile offender,
in the case Kakoo V. In Himachal Pradesh, Kakoo, aged 13 years, was con-
victed of commission of rape on a child of two years and was convicted to
four years’ rigorous imprisonment. His sentencing has been maintained by
the High Court of Himachal Pradesh, and in appeal Supreme Court reduced

id. p 247
Children Act 1960, Sec. 22 (2).

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Deviation from Traditional Approach of Juvenile Justice Law: 69
Does it Reduce the Juvenile Delinquency?
the sentence observing that
“The sordid characteristics of the case, including the sadistic way in which
the offence was committed by their instinctive reaction to tend to steal the heart
of law for a sterner sentence, we cannot overlook the stark fact that during the
time of commission of the heinous offence, the appellant was hardly 13 years of
old. An inordinately long prison term is sure to turn him into a hard criminal.
In the case of juvenile offenders, current penological trends command a more
humanitarian approach.”
More than sixteen years, Indian juvenile administration followed the
reformative form of punishment, but the Nirbaya incident led to change the
concept of punishment under the juvenile administration. In Darga Ram @
Gunga v. State of Rajasthan Justice T S Thakur observed that no matter how
serious in nature the crime was committed by juvenile the safeguards avail-
able to him under the Act must be provided, the appellant may have deserved
the hard punishment allowed under law. The fact that the appellant has been
in jail for more than 14 years is the only cold comfort for us to let out of prison
one who has been found committed rape and murder of an innocent young
child in Gaurav Kumar v. State of Haryana Emphasized about the need to
rethink about the punishment aspect of the child who committed an offence
like murder, rape etc. Dipak Misra J and Prafulla C. Pant, JJ observed that the
“When we state that we thought that there should be a rethinking by the Leg-
islature, it is appropriate to note here that the there can be a circumstance where
the commission of an offence may be entirely inoffensive or emerging situation.
Where a young boy is not aware of the consequences, but in cases of rape, daco-
ity, murder which are heinous crimes, it istough to conceive that the Juvenile was
not conscious of the consequences.”
In above two cases courts gave relief to the juvenile offender but the same
court tried to establish a new treatment for juvenile offender by the gravity
SheelaBarse v. The Union of India, A I R 1986 SC 1773.
1971 Cri L J 1229.
A I R 1976 S C 1991.
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70 Muhammed Saheeret and Sachin Menon

of the offence committed and not on the sole basis of relying upon the age
of the juvenile offender. Juvenile Justice Act, 2015, implemented remarkable
changes in the juvenile justice administration especially treating the children
in conflict with the law. For the purpose of treating and disposal of case-relat-
ed the Juvenile in conflict with the law, Juvenile Justice Act 2015 categorized
offenses into three (1) petty offence (2) Serious offence (3) heinous offence
and juvenile justice board has the power to try and punish all the juvenile de-
linquent below 16 years of age who has committed any offence, also they have
the power to try and punish juveniles for serious or petty offence between 16
and 18 years. In the case of a juvenile who had committed a heinous offence,
he or she shall be treated as an adult offender. It is an obligation of the juvenile
justice board after the preliminary inquiry to transfer such children into the
children court having jurisdiction to try the case and in case of juveniles who
has been found to have committed heinous offence, he is not entitled to get
the benefit of Juvenile Justice Act, and he may be send to place of safety till he
2015(1) M L J 224. The appellant-year-old was tried and convicted for offences punish-
able under Sections 376 and 302 Indian Penal Code. For the offence of rape punishable
under Section 376, he was sentenced to undergo imprisonment for ten years besides a fine
of Rs.1000/- and default sentence of one month with rigorous imprisonment. By matter
come for the final appeal appellant had served 14 years of his sentence. in final appeal
appellant raised the claim of juvenility on date of commission of offence.
A I R 2015 S C287.

S. 2 (45), Juvenile Justice (Care and Protection of Children) Act 2015. “petty offences”
includes the offences for which the maximum punishment under the IPC or any other law
for the time being in force is imprisonment up to three years
id. S. 2 (54). “serious offences” includes the offences for which the punishment under the
IndianPenal Code or any other law for the time being in force, is imprisonment between
three to seven years;
id. S. 2 (33). “heinous offences” includes the offences for which the minimum punishment
under the IPC or any other law for the time being in force is imprisonment for seven years
or more
id. S. 18 (3).“Where the Board after the preliminary assessment under the section 15 pass
an order that there is a need for the trial of the said juvenile as an adult; then the Board
may order the transfer of the trial of the case to the Children’s Court having jurisdiction
to try such offences”
id. S. 19 (3).“The Children’s Court shall ensure that the child who is found to be in conflict
withthe law is sent to a place of safety till he or she attains the age of twenty-one years and
after that, the person shall be transferred to a jail”

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Deviation from Traditional Approach of Juvenile Justice Law: 71
Does it Reduce the Juvenile Delinquency?
attained the age of 21 and thereafter he may be transferred to the jail.
Sending a juvenile offender after a long and arduous process to children’s
court with only an assumption that the juvenile offender can be tried and
punished just like an adult offender, is inconsistent with the basic object of the
juvenile justice system as well as the international convention. This diverts the
concept of juvenile protection from a child-friendly and protective approach
of juvenile justice system. It is the apparent object of the Juvenile Justice Act
that the children not subject to any kind of punishment should only be given
care and protection. The transfer of juvenile delinquents who has committed
a heinous offence by considering the circumstance of commission offence, the
gravity of the offence and age of children but their state of mind is not lead
toward achieving these objectives but to punish them by providing long-term
incarceration which will lead them to spend time in a prison too. These chil-
dren are also subject to lifelong disqualification attached to the imprisonment
for the offence even if they are reformed and released from the place of safety
on attaining the age of 21 years old.

Punishment of Juvenile Offender in other Asian Countries


The sentencing policy of the juvenile offender is different from one coun-
try to another country in the Asian region; each country follows different pro-
cedures, different versions and different processes for the punishment of ju-
venile offenders. Most of the Asian countries have ratified the United Nation
Convention on the right of the child and other international document which
are enacted for the protection and welfare of the juvenile delinquent.

Pakistan
A juvenile delinquent in Pakistan is lawfully subject to degrading and in-
human treatment, in most of the provinces of Pakistan juvenile delinquents
are legally subject to death Penalty, life imprisonment without parole and cor-
poral punishment. Pakistan is one of the country in Asia ratified the CRC.
Although Pakistan enacted different legislations and introduced different pol-

June 2019
72 Muhammed Saheeret and Sachin Menon

icies for changing existing treatment of juvenile offenders but unfortunate-


ly the laws and policies enacted for the protection of juvenile offender from
corporal and inhuman, degrading punishment are not properly implement-
ed across all parts of the country. There is an existing legislation in Pakistan
which explicitly provides for punishment to the juvenile offender.
Juveniles in conflict with the law in Pakistan is governed by the Juvenile
Justice System Ordinance (JJSO) 2000, before the ordinance Pakistan did not
have any central legislation for exclusively dealing with the juvenile delin-
quent and there existed only a criminal procedure code at the federal level for
treatment of the juvenile offender. Farooq Ahmed V. Federation of Pakistan
In this case, constitutionality of the Justice System Ordinance (JJSO) 2000,
came for question before the Lahore High Court and Court declared the or-
dinance is unconstitutional and struck down the ordinance stating that the
abolition of death penalty of juvenile offender led to increase in the offences
involving children and enhance the chance for juveniles being used by adults
for committing heinous offence but in appeal the Supreme Court overruled
the decision indicating the importance of protection of right of juvenile de-
linquent. There are several enactments in Pakistan having an overriding effect
of Juvenile Justice Ordinance, 2000. The Hudood Ordinances 1979, is enacted
for specifically dealing with heinous offence like rape, armed robbery, and
adultery, etc., the ordinance fixed stringent punishment like stoning to death
for the offender. Child means under the ordinance that the person who has
not attained the concept puberty, there is fixation particular age for the deter-
mine juvenile.
Section 14 of the ordinance prohibits death sentence to the juvenile of-
fender stating “not withstanding anything to the contrary contained in any law

Ved kauri, “Juvenile Justice Act,2015 a Critical Understanding”, Journal of Indian Law
Institute’, vol 58(1), 98 (2016).
Control of Narcotic Substances Act, 1997, The Abolition of the Punishment of Whipping
Act, 1996, The Railways Act, 1890 the Criminal Procedure Code, 1898, the Pakistan Penal
Code,1860, the Anti-Terrorism Act 1997, the Reformatory Schools Act 1897, the Hudood
Ordinances 1979, and the Sindh Children Act 1955etc

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Deviation from Traditional Approach of Juvenile Justice Law: 73
Does it Reduce the Juvenile Delinquency?

for the time being in force no child shall be- (a) awarded punishment of death, or
ordered to labour during the time spent in any borstal or such other institution”
means that the act clearly prohibits death sentence to the person aged below
18 years, but at same time many cases are reported from the different provinc-
es of Pakistan giving death sentence and other corporal punishment to juve-
nile delinquents under other different law like Control of Narcotic Substances
Act, Anti-Terrorism Act, for giving death sentence to juvenile offender , after
the promulgation of the 2000 ordinance many juvenile offenders were tried
and sentenced to death under the both act. Amnesty International Report,
2015 reported an incident that the of the juvenile offender sentenced death
and hugged in 2015 alleging that the 16-year-old child was engaged in waging
war against the Pakistan government.
The Juvenile Justice Ordinance, 2000 recognized imprisonment as the
method of punishment, sentence of Life Imprisonment is also provided for
Juvenile Offenders. According to section 11 (b) of the ordinance that make an
order directing the juvenile offender to be sent to a borstal and reformatory
institution until he completes the age of eighteen years or for the period of im-
prisonment whichever is earlier. Further, the ordinance introduces alternative
measures for the protection of juvenile delinquents from imprisonment and
other corporal punishment. In case juveniles are found to have committed
an alleged offence the court may direct the juvenile delinquent to be released
on probation for good conduct and place such children under the care and
protection of guardian or any other person executing a bond with or without
surety as the court may demand, for the good behavior and well-being of the
child for any period not exceeding the period of imprisonment awarded to
such child.
Pakistan ratified both the International Convention on the civil and politi-
cal right, 1966 and CRC but at the same time, Pakistan reserved many provi-
2005 (15) P.L.D. Lahore 15
Amnesty International Report2015, Available at: https://www.amnesty.org/en/latest/
news/2015/03/12-prisonershanged-in-pakistan,(Accessed on 10 /03/ 2017)

June 2019
74 Muhammed Saheeret and Sachin Menon

sion of both the conventions, stating that the provision were inconsistent with
Sharia law and Pakistan Constitution. The Committee on Rights of Child ex-
pressed its concern about the inhuman and degrading punishment of juvenile
offenders in Pakistan and recommended to “take all necessary measures to
prevent juvenile from being subjected to torture or any other cruel, degrading
or inhuman treatment or punishment in all the circumstances” and ensure
that the sentences “constituting torture or cruel, inhuman or degrading treat-
ment by the parallel judicial authorities and that access to an appeal procedure
under statutory law are available for all the juvenile through the country” are
not imposed on children.

Sri Lanka
Sri Lanka adopted a separate system of juvenile administration for the pro-
tection and welfare of the juvenile delinquent. There are several acts in Sri
Lanka which deals with the trial and punishment of the child offender like
Youthful Offenders (Training Schools) Ordinance, 1939, Probation of Offend-
ers Ordinance, 1944, Sri Lankan Penal Code Act, 1885 and Code of Criminal
Procedure Act, 1979. The Sri Lankan Penal Code, 1885 is an important code
which prescribes the punishment for the offence and the penal code states
that death sentence shall not be pronounced on or recorded against any per-
son who, in the opinion of the court is under the age of sixteen years, but, in
lieu of that punishment, the court shall sentence such person to be detained
during the president’s pleasure, means that section 53 of the code partially
prohibiting the death sentence to children age below sixteen but ultimate de-
cision left to the will of the president, there is no any particular guideline for
the president taking the decision on the matter, all the left to the whims and
fancies of the president.
Children and young person’s ordinance is the prime law for the punishment
of the juvenile delinquent, the ordinance is intended to follow the institutional

S. 11 (a).Juvenile Justice Ordinance 2000.


Report of Committee on the right of the child2009, Available at http://www.ohchr.org/
EN/HRBodies/CRC/Pages/CRCIndex.aspx, ( accessed on 21/4/2017)
Educere-BCM Journal of Social Work
Deviation from Traditional Approach of Juvenile Justice Law: 75
Does it Reduce the Juvenile Delinquency?
correctional method for the juvenile delinquent rather than giving imprison-
ment to the juvenile offender, but unfortunately the ordinance not implement
all part of country therefore juvenile delinquent lawfully subject adult-centric
punishment in some part of the country. Part three of the children and young
person ordinance specifically deals with the punishment of the juvenile of-
fender, ordinance gives importance to the institutional treatment of juvenile
delinquents rather than giving hard punishment, even though the ordinance
gives important to the rehabilitative and reformative method of punishment
but at same time imprisonment of juvenile offender is recognized as a last
resort of punishment. The ordinance states that a young person shall not be
ordered to be imprisoned for any offence, or be committed to prison in default
of payment of a fine, unless the court certifies that he is of so unruly a charac-
ter that he cannot be detained in a remand home or certified school or that he
is of so depraved a character that he is not an apt person to be so detained and
section 24 (2) also states that in the case of another method of punishments
which are not suitable for the juvenile offender can be sentenced to impris-
onment. Where such a sentence is passed, the court shall remand the child or

S. 53. Sri Lankan Penal Code 1885.


S. 23 (2).Children and Young Person Ordinance,1939.
id. S. 24 (2).
S.53, Sri Lankan Penal Code 1885. “Sentence of death shall not be pronounced on or
recorded against any person who, in the opinion of the court is under the age of sixteen
years, but, in lieu of that punishment, the court shall sentence such person to be detained
during the president’s pleasure”

S. 24(1).Children and Young Person Ordinance 1939.


2006, S.C. Spl. (LA) No. 182/99.1
S. 29 (1). Children and Young Person Ordinance 1939, “Where a child or young person
who is a male is found guilty by any court of any offence, the court may, if it is for any
reason of opinion that the case is one in which hard and corporal punishment should
be imposed, make order that the child or juvenile person shall receive not more than six
strokes with a light cane or rattan,- such strokes to be inflicted in the presence of the court
and, if the parent of the child or young person desires to be present, in his presence”
S. 29 (1). Sri Lankan Penal Code 1882. “Nothing, which is done in good faith for the ben-
efit of a person under twelve years of age, or, of unsound mind, by or by consent, either
express or implied, of the guardian or other person having lawful charge of that person, is
an offence by reason of any harm which it may cause/or be intended by the doer to cause,
or be known by the doer be likely to cause, to that person”

June 2019
76 Muhammed Saheeret and Sachin Menon

young person to a remand home pending his detention under the directions
of the Minister.
Most unfortunate part of the ordinance is that the ordinance was enacted
for giving care and protection and rehabilitation of juvenile offender, but at
same time Section 53 of Sri Lankan Penal Code have an overriding effect on
the ordinance, further the ordinance that where in lieu of sentence of death, a
sentence of detention during the President’s pleasure has, under section 53 of
the Penal Code, been passed by any court in respect of a person who, in the
opinion of the court is under the age of eighteen years, the court may order
that person to be detained in a remand home until the pleasure of the Presi-
dent is made known.
Sri Lanka is one of the countries which ratified the CRC and therefore the
country obliged to implement the provision of the convention to the domestic
legislation in Sri Lanka. The Sri Lankan Supreme Court in NallaratnamSing-
arasa v. The Attorney General, Reiterated the importance of implementing
the International Convention into the domestic legislation for protecting the
right of the juvenile delinquent. The punishment imposed on the Children
and Young Person Act and Penal Code and other laws on juvenile offender
changed the system from reformative to punitive approach. CRC and ICCPR
are part of international customary law; Sri Lanka had ratified both the con-
vention. Both the convention have prohibited giving inhuman, degrading and
corporal punishment to the juvenile offender but Section 29 of the ordinance
imposing corporal punishment upon the juvenile delinquent, it in consistent
with the international human right law and further more Section 82 Penal
Code accepting corporal treatment of juvenile.
One of the important failures of juvenile administration in Sri Lanka is
the inability to establish a unique definition of child, the definition of child is
different from one act to another act in Sri Lanka. Due to lack of clarity in the
definition of child, many juveniles are subject to the adult-centric punishment
under different Act. Sri Lanka ratified the CRC therefore is legally bound to
implement the provisions of the convention and prevented the juvenile of-
Educere-BCM Journal of Social Work
Deviation from Traditional Approach of Juvenile Justice Law: 77
Does it Reduce the Juvenile Delinquency?
fender from an adult-centric punishment, the Committee on the right of the
child repeatedly recommended preventing corporal punishment on juvenile
offender.

Bangladesh
Children Act, 1974 was repealed by Children Act, 2013, Bangladesh Penal
Code, 1860; whipping Act, 1909, The Bengal Jail Code and Prisons Act, 1894
and the Criminal Procedure Code, 1898 are the important legislations which
are dealing with juvenile in conflict with the law in Bangladesh. Section 29 B
of the Criminal Procedure Code, 1898 provides trial and procedure for the
juvenile delinquents in children’s Court, further section 82 of the Bangladesh
Penal Code,1860 gives protection to the child aged between 7 to 9 from any
criminal act and Section 83 of the Bangladesh Penal Code provides for con-
victing the juvenile offender aged below 12 must prove that the juvenile has
sufficient maturity to understand the consequence of his or her act. Prisons
Act, 1894 demanding the segregation of the child in conflict with a law from
the adult offender.
Children’s Act, 1974 was one of the most important legislation enacted
for the protection and welfare of the juvenile offender and furthermore pro-
tection of juvenile delinquent from the adult-centric punishment. This act
doesn’t recognize imprisonment as a regular method of punishment to the
juvenile delinquent and Act only accepted the sentencing of a child offender
as a last resort of punishment, Section 51 (1) of the Act preventing giving
punishment to juvenile offender
“Not withstanding anything to the contrary contained in any law, no child
shall be sentenced to death, transportation or imprisonment: Provided that
when a child is found to have committed an offence of so serious a nature that

S. 82,Penal Code,1860 “Nothing is an offense which is done by a child under nine years
of age”
id. S. 83. “Nothing is an offence which is done by a child above nine years of age and under
twelve, who has not attained sufficient maturity of understanding to judge of the nature
and consequence of his conduct on that occasion.”

June 2019
78 Muhammed Saheeret and Sachin Menon

the Court is of opinion that no punishment, which under the provisions of this
Act it is authorized to inflict, is sufficient or when the Court is satisfied that the
child is of so unruly or of so depraved character that he cannot be committed to
a certified institute and that none of the other methods in which the case may le-
gally be dealt with is suitable, the Court may sentence the child to imprisonment
or order him to be detained in such place and on such conditions as it thinks fit:
Provided further that no period of detention so ordered shall exceed the max-
imum period of punishment for which the child could have been sentenced for
the offence committed”
“Provided further that at any time during the period of such detention the
Court may if it thinks fit, direct that instead of such detention the youthful of-
fender is kept in a certified institute until he has attained the age of eighteen
years.”
Section 51 of the act prohibits death sentence to the juvenile offender and
stating that the no person shall impose death sentence or life imprisonment
or any such kind of adult-centric punishment to juvenile offender and further
Section 51 recognized imprisonment as a method of punishment, giving ex-
ception to the general rule by stating that the when the Court is satisfied that
the child is of so unruly or of so depraved character that he cannot be com-
mitted to a certified institute and that none of the other methods in which the
case may legally be dealt with is suitable, the Court may sentence the child to
imprisonment and further emphasizing the segregation of juvenile offender
from the adult offender.
Section 52 of Children Act 1974 is dealing with detaining of juvenile in
conflict with law, Offences which are punishable with death or life imprison-
ment etc, section also states the sentencing of juvenile delinquent in certified
institution, not less than 2 years and not more than 10 years or he may be
detained, still if he has attained the age of 18, in case of children also who
are convicted of an offence punishable with death sentence, transportation
or life imprisonment. Section 53 of the act gives an alternative method for
the sentencing or sending to the certified institution juvenile delinquent, fur-
Educere-BCM Journal of Social Work
Deviation from Traditional Approach of Juvenile Justice Law: 79
Does it Reduce the Juvenile Delinquency?
ther section providing that if the court thinks fit that instead of sending to
certified institution juvenile offenders should be discharged on admonition,
or released on probation for good conduct or to be send with parent or any
guardian after execution a bond.
Children Act, 1974 is repealed by the children act 2013 with the object of
incorporating the international standard of protecting juvenile delinquent to
the domestic legislation. Act gives importance to the correctional method of
punishment rather than sentencing the juvenile offender. Section 33 of the
Act prohibit the death penalty and life imprisonment of the juvenile offender
and act further stating that imprisonment is to be considered as a last resort
of punishment, only in the case of child offenders who are of an unruly nature
or such juveniles who cannot be sent to the certified institution or juvenile de-
linquent has committed an offense which is of a serious nature, only then such
extreme circumstance can resort to the imprisonment of the juvenile offender.
In the case of the juvenile offender found guilty of the offence punishable
with life imprisonment or death sentence, he may be sent to protective insti-
tution for three years. Juvenile delinquents not charged with serious offenses
like murder, rape, dacoity, etc. and has changed positively in such juvenile
delinquency may be released on after attaining 18 years old upon the rec-
ommendation of the probation officer . In a case of a juvenile delinquent not
changing positively or a juvenile charged with a serious offence he may be sent
to the jail with permission of the children court such juvenile offender may be
S.52, Children Act 1974.”Where a child is convicted of an with the child, order him to be
committed to a certified institute for detention for a period ,which shall be not less than
two and not more than ten years, but not in any case extending beyond the time when the
child will attain the age of eighteen years”
S. 33 (1), Children Act 2013, “No child shall be sentenced to death, imprisonment for
life or offence punishable with death, transportation or imprisonment, the Court may, if
it considers expedient so to deal with the child, order him to be committed to a certified
institute for detention for a period ,which shall be not less than two and not more than ten
years, but not in any case extending beyond the time when the child will attain the age of
eighteen years”
S. 33 (1).Children Act,2013. “No child shall be sentenced to death, imprisonment for life
or imprisonment”
S. 34, Children Act, 2013.

June 2019
80 Muhammed Saheeret and Sachin Menon
segregated from the adult offender and the Act maintained the provision for
discharge after admonition or release on parole or release under the respon-
sibility of parent or guardian or any other adult member of the family and
include the provision for compensation to the victim of children.
Children Act, 2013 was enacted with the objective of incorporating the
provisions of the United Nation Convention on right of the child into the
domestic legislation, preamble of the Act itself stating that the act is enacted
to implementing the provision of the CRC. But unfortunately the Act failed to
comply with the provisions of the CRC, especially in the sentencing policy of
the juvenile delinquent.

Conclusion
Juvenile justice administration in India has analyzed in this article and
understood that there are many defects in the existing juvenile justice sys-
tem some of the defects are incorrect and incomplete legal perception, prob-
lem-related to treatment of juvenile offender in case of 16 – 18 old children
alleged to have committed heinous offence, sentencing policy of Children’s
Court, problem-related to the institutional treatment of juvenile delinquent
and some other problems are related to the structural pattern and procedure
of juvenile administration .
The problem related to the juvenile justice administration is, no doubt, one
of the tragic interests of the human being. More than six decades the Indian
juvenile administration was followed the reformative and rehabilitative form
of punishment for the juvenile offender, but the unfortunate Nirbhaya inci-
dent reversed existing form treatment of juvenile delinquent. Juvenile Justice
Act, 2015 has diverted the traditional way of blanket protection of juvenile
delinquent and introduced a new way of administration juvenile justice sys-
tem in India. Juvenile Justice Act 2015 deviated from the protective system of
approach juvenile in conflict with the law and traditionally understood the
liberal form of juvenile law. The act introduced provision for transfer of 16

id. S. 34 (1). id. S. 34 (5). id. S. 34 (4). id. S. 39.


Educere-BCM Journal of Social Work
Deviation from Traditional Approach of Juvenile Justice Law: 81
Does it Reduce the Juvenile Delinquency?
– 18-year juvenile delinquent alleged to have committed the heinous offence
to adult court. The objective of juvenile justice system is not give punishment
juvenile delinquent and provide the care, protection, reformation and reinte-
gration of child offender into society as law-abiding citizen, so it is clear that
transfer of such juvenile delinquent without considering the state of mind of-
fender and circumstance of commission of offence, which will lead to creating
negative impact on children. The transfer of the juvenile offender to adult
court is against the best interest principle of juvenile law.
The Act changed the basic juvenile principles of law, introduced the pro-
vision for adult punishment of 16- 18 old children alleged to have committed
the heinous offence. The provision for transfer of the juvenile to adult criminal
court to trail as the adult and to punish like the adult is, directly and indirectly,
inconsistent with the provision of juvenile justice act and CRC. India is the
country ratified the CRC, it was considered essential to adopt and implement
the reformative form of punishment for the treatment of juvenile delinquent.
The committee of the right of the child emphasized the ban on the use of
police station, police lockup or jail and any adult-centric punishment at any
stage of the proceeding and under any circumstance for children below the
age 18 years found committed the offence. The provision for transfer child
to adult criminal court is the violation of the basic principles enshrined in
section three of the Act.

June 2019

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