1

MODULE 2:
EVOLUTION OF JUVENILE JUSTICE SYSTEM IN INDIA – PART 2

Component I(A) - Personal Details:

Role Name Affiliation
Principal Investigator Prof. (Dr.) G.S.Bajpai Registrar,
National Law University,
Delhi
Paper Coordinator Dr. K.P. Asha Mukundan Assistant Professor,
Centre for Criminology and
Justice,
School of Social Work,
Tata Institute of Social
Sciences
Content Writer / Author Ms. Saumya Uma Assistant Professor - Law,
Maharashtra National Law
University (MNLU)
Mumbai
Content Reviewer

Component I(B) - Description of Module:

Subject Law
Paper Criminology

Module title Evolution of Juvenile Justice System in India

– Part 2
Module ID ???
Pre-requisites Basic knowledge of what is juvenile justice
and how is it different from the justice system
for adults
Learning Objectives  To understand and appreciate guiding
and foundational principles related to
juvenile justice administration
 To obtain insights into Indian
legislations and legislative
amendments on juvenile justice
 To critically analyse the same in the
light of established principles

Key words Juvenile, conflict, law, care, protection

Structure
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A. Juvenile Justice Act 1986

B. The Juvenile Justice (Care and Protection of Children) Act 2000
C. The Juvenile Justice Amendment Act 2006
D. The Juvenile Justice Act 2015
E. Conclusion

Sources for Further Reading

Books and Articles

Abstract

This module continues the discussion on Indian legal framework and standards on
juvenile justice. It discusses the law enacted in 1986, 2000, the amendment to the law
made in 2006 and the 2015 law. It highlights the points of paradigm shift that have taken
place, in an effort to conform to international standards on juvenile justice.

Details of Author:

Ms. SAUMYA UMA

Asst. Professor – Law
Maharashtra National Law University (MNLU) Mumbai
G5/401-402, New Brahmand Annex
Phase 8, Azad Nagar
Ghodbunder Road
Thane (West) – 400607
Maharashtra
Ph: 98201-14120
Email: [email protected] / [email protected]
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A. JUVENILE JUSTICE ACT 1986

The Juvenile Justice Act 1986 was the first formal attempt by the Indian government at

streamlining and formulating a specific law for juveniles in India. The following are the

important provisions of the 1986 Act:

a. It defined a juvenile as a child up to 16 years of age for boys and 18 years of age for

girls;

b. Children were classified under two categories: juvenile delinquents (children under

the prescribed age who committed an offence) and neglected juveniles, who needed

care and protection from the State and state institutions;

c. The Act provided for both the categories of children to be kept in an Observation

Home together during the pendency of the inquiry / proceedings;

d. The Act prohibited an arrested child from being detained in police custody or in jail

under any circumstances;

e. The law had provisions relating to bail for an arrested juvenile – bail was to be

granted as a matter of right, except in situations where there were reasonable grounds

for believing that if the juvenile was released, he / she would come into contact with

any known criminal or expose the juvenile to a moral danger or if the release would

result in defeat of the ends of justice;

f. The institutional mechanisms established to address the two categories of children

were different – the Juvenile Welfare Board for addressing the needs of neglected

juveniles and the Juvenile Court for dealing with and adjudicating upon juvenile

delinquents;
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g. Every Juvenile Court was to consist of a prescribed number of Metropolitan

Magistrates or Judicial Magistrates of First Class (JMFC) and were to be assisted by

two honorary social workers;

h. Every Juvenile Welfare Board was to be constituted by the concerned state

government, of which not less than one member was to be a woman;

i. Once the proceedings were completed, the neglected juveniles were sent to Juvenile

Homes while juvenile delinquents were kept in Special Homes, for a prescribed

period of time.

j. The Juvenile Courts could pass the following orders: allow the juvenile to return

home after advice or admonition; release on probation of good conduct to parent /

guardian / institution for not more than three years; send the juvenile to a Special

Home; impose a fine on the juvenile if he / she is above 14 years of age and earning.

B. THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT

2000

The 2000 Act marks a paradigm shift in the manner in which law perceives and treats

juveniles. Since India had ratified the UN Convention on the Rights of the Child in 1992,

there was a need to bring the domestic law in conformity with the newly evolved and

developed international standards that India had agreed to be bound by. Hence years of effort

were focused on revamping the law, which adopted a new philosophy, structure and

institutions.

Salient Features of the 2000 Act:

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a. A „child‟ in this Act is defined as a person who has not completed the eighteenth year

of age.1 The gender imbalance in the definition of child / juvenile in the 1986 Act

was rectified;

b. Under the law, „children in conflict with law‟ means a juvenile who is alleged to have

committed an offence,2 while children in need of care and protection include those

who are being or is likely to be grossly abandoned, abused, tortured or exploited for

the purpose of sexual abuse or illegal act.3

c. The law provides for a separate treatment of children in conflict with the law and

children in need of care and protection; even during the pendency of inquiries, unlike

under the provisions of the 1986 Act, the two categories of children would not be kept

in a designated institution together;

d. The law provided for the establishment of separate homes for different age groups in

order to separate younger offenders from mature juveniles. This was in conformity

with the Beijing Rules on Administration of Juvenile Justice (discussed in subsequent

modules).

e. The Act contemplates remand homes, Juvenile Justice Boards and Child Welfare

Committees in every district, and provides for four types of homes for juveniles –

observation homes, special homes, children‟s homes and shelter homes, and in

addition, after-care organisations.4 Please see Matrix 1 below for further details.

f. The Act incorporates the international standard and includes a provision stating the

child‟s right to participation in proceedings pertaining to him / her (S. 12);

g. This Act also clearly recognizes that civil society needs to be involved significantly if

true justice is to be provided to all children and hence provides ample scope for

1
See S. 2(k)
2
See S. 2 (l)
3
S. 2(d) (vi)
4
JJA provides for Observation Homes (Section 8); Special Homes (Section 9); Childrens Homes (Section 34);
Shelter Homes (Section 37); and After-care Organisations (Section 44).
 6

involvement of citizens either through voluntary organizations or individuals who are

„public spirited citizens‟.

h. The Juvenile Justice (Care and Protection of Children) Rules, 2007 forms a model of

the rules based on which each state is to prepare its own rules that are necessary to

further detail the way the Act would be implemented.

Provisions Specific to Children in Conflict with the Law

a. In all cases of children in conflict with the law, the adjudicating authority would be

the Juvenile Justice Board (and not the Juvenile Court as was designated under the

1986 Act);

b. The Act prescribes for establishment of a Child Welfare Committee in each district,

by the state government, to focus on issues related to juveniles in need of care and

protection.

c. The bail provisions for both bailable and non-bailable offences are more liberal and

broad, as compared to those for adults under the Code of Criminal Procedure. As a

matter of right, the juvenile is to be released on bail with or without surety (S. 12).

The juvenile can be detained in an institution only if there is reasonable ground for

believing that the release is likely to bring him into association with any known

criminal or expose him / her to moral, physical or psychological danger or that his /

her release would defeat the ends of justice. These grounds have been retained from

the 1986 Act. Even in such circumstances, the juvenile can be detained only in an

Observation Home, not a police lock up or in prison.

d. The orders that may be passed by the Juvenile Justice Board include sending home the

child after admonition or advice, performance of community service, release on

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probation based on good conduct. (S. 15). The only controversial part of the power of

the Board is the power to send the child to a special home for a minimum period of

two years for a child who is over seventeen and less than eighteen and in case of any

other juvenile till he ceases to be a juvenile. A proviso authorizes the JJB to reduce

the period of stay “having regard to the nature of offence and circumstances of the

case.” This appears to be an arbitrary power as there are no indications as to how this

discretion by the JJB were to be used.

e. As in the 1986 Act, there is an express prohibition from awarding death sentence or

life imprisonment to a child, or taking the child into custody for non-payment of fine

or failure to furnish security. (S. 16)

f. The law has a stipulation that prohibits joint trial of a juvenile with an adult. (S. 18)

g. The Act aims at protecting the privacy of the juvenile by prohibiting the media from

disclosing the name, address, school or other particulars of the juvenile, by which his /

her identity maybe revealed; (S. 21)

h. The law also provides for Special Juvenile Police Unit (SJPU) to be established to

effectively handle juveniles, and for every police station to have a Juvenile or Child

Welfare Officer, who is supposed to be trained and oriented to treating juveniles with

care.

Provisions Specific to Children in Need of Care and Protection

a. The category of children in need of care and protection has been expanded from the

1986 Act, and it includes child victims of armed conflict, natural calamity, civil

commotion, child who is found vulnerable and likely to be inducted into drug abuse

etc. While this may be desirable in itself, this provision has come under criticism as
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the system remains largely custodial in nature, hence how beneficial would it be for a

wider gamut of children to be brought under the law.

b. The framework of the law remains within the criminal justice system as the police still

have power to contact a child and produce him / her before the Child Welfare

Committee. In fact, contrary to the need to de-criminalize the process, the powers of

the police have been surprisingly expanded as under the 2000 Act the police have also

been empowered to hold an inquiry regarding the child in the prescribed manner. A

child maybe sent to a Juvenile Home, reiterating the custodial nature of child care

institutions.

c. Restoration as an option – the concept and option of restoration of the child to parents

/ adopted parents / foster parents was included for the first time under this Act, as an

alternative to institutionalization. (S. 39) This provision is intended to minimize or

avoid the stay of the child in a juvenile home or a special home, in appropriate cases.

d. Keeping the child as the centre of focus, four options are provided to children in need

of care and protection – custody in juvenile homes and special homes where they may

be adopted, kept in foster care, sponsored or provided after care. Each state has the

power to make rules under the Act to carve out finer details of adoption and foster

care.
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Observation homes
Special homes
for the temporary reception of
for the reception and rehabilitation
juveniles in conflict with the law
of juveniles in conflict with the law
pending enquiry under the Act (S.
(S. 9(1) )
8(1) )

Children’s homes Shelter homes

for reception of juveniles in need function as drop-in centres for
of care and protection, and for
their care, treatment, education, children in need of urgent support
development and rehabilitation. (S. 37)

After care organizations

for taking care of juveniles after they
leave special homes and children's
homes, to enable them to lead an
honest, industrious and useful life (S. 44)

Matrix 1: Institutions under the Juvenile Justice Act 2000

Points of Concern and Criticism of the 2000 Act:5

Authors and experts have highlighted various points of concern and criticism with regard to

the provisions of the 2000 Act. These include the following:

1. The 2000 Act is still weighed heavily in favour of custody in institutions;

2. By expanding the powers of the police, the law facilitates re-criminalization rather

than de-criminalization;

5
Summarized from the following articles: Narrain, Arvind. The Juvenile Justice Act 2000: A Critique, available
at http://www.altlawforum.org/PUBLICATIONS/The%20%20JJ%20Act%202002, accessed 12 April 2017;
Vats, Somnath. „Paying Lip Service to the Silenced: Juvenile Justice in India‟, Harvard Human Rights Journal
Vol. 21, 2008, pp. 155-166; Ghosh, Gitanjali (2015), „Stocktaking of the Juvenile Justice Mechanism in India: A
Long Overdue Need‟ in NLUA Law & Policy Review, Vol. 1, No. II, pp. 97-112
 10

3. The Act is violative of existing human rights standards, which have been evolved by

states at the international level, even though its Preamble indicates that the law

attempts to be in conformity with the same and incorporate the international standards

into domestic law;

4. The „best interest‟ principle incorporated in the 2000 Act endorses a protectionist

approach, where authorities under the Act determine and decide upon the best

interests of the child using their own value framework and belief system. Such a

framework / belief system may enjoy the support of the community, but may not be in

tandem with the evolving perspective on child rights. For example, corporal

punishment to children and child labour maybe considered legitimate in a culture or

by a community;

5. The „best interest‟ principle contradicts with the „right to participation‟ principle

which is also incorporated in the Act, leading to a confusion as to whether or not a

child‟s opinion on his / her best interests can override adult imposition of the same

through the law;

6. The „right to participation‟ provision is incorporated in a nominal way, without any

concerted effort at creating a space for the child to participate in and express his / her

views freely at every point of engagement between the child and the juvenile justice

system, such as the point of arrest, the point of adjudication before the JJB and

placement in institutions. Unless authorities are trained, they are not likely to hear the

child‟s opinion, as well as give due consideration to the same in accordance with the

age and maturity of the child;

7. Crucial rights in international legal standards, such as the child‟s right to life, right to

equality and non-discrimination, right to humane treatment and dignity, and right

against torture, cruel, inhuman or degrading treatment or punishment have not been
 11

incorporated into the 2000 Act. Given the fact that many children face abuse and

exploitation in child care institutions, these provisions are an imperative;

8. International standards on juvenile justice, such as the right to maintain contact with

his / her family members through correspondence and visits, and the right to privacy

have been violated through the state rules formed under the JJA;6

9. It has been pointed out that the Act also does not cast any obligation on the part of the

state, and that a rights-based perspective, is a missing dimension in this law – making

juvenile justice more of charity than a commitment.7

10. Police brutality towards juveniles, the abuse of juveniles in state-run institutions,

corrupt practices of state-appointed officials, and abuse of power of officials which

exist in the juvenile justice system defeat the purpose of the 2000 Act and weaken its

implementation.8

11. Inadequate infrastructural facilities, failure of many privately-run children‟s

institutions to register under the law, abuse (including sexual abuse) in government-

run and privately-run institutions and the poor implementation of monitoring

mechanisms such as surprise visits to child care institutions, have further undermined

the effectiveness of the law.9

C. JUVENILE JUSTICE AMENDMENT ACT 2006

6
Arvind Narrain points out that the Karnataka Rules restrict access of the family to meet the juvenile to once a
month, and gives power to the superintendent to peruse and destroy letters that he / she finds objectionable.
Through such provisions, „exceptional circumstances‟ provided for in the Convention are converted into a rule
applicable in all circumstances. Narrain, Arvind. The Juvenile Justice Act 2000: A Critique
7
Ibid
8
For more details, see Vats, Somnath., „Paying Lip Service to the Silenced: Juvenile Justice in India‟, Harvard
Human Rights Journal Vol. 21, 2008, pp. 155-166 at 161-162
9
For further details, see Uma, Saumya. Rights of Adolescent Girls in India: A Critical Look at Laws and
Policies, Mumbai: Vacha Publication, pp. 261-294 at pp. 279-286
 12

In 2006, the law enacted in 2000 was amended, aiming to lay down a legal structure for the

juvenile justice system in the country. The amendment Act also aimed at providing a special

approach to the protection and treatment of juveniles, to outline the machinery and

infrastructure required for the same, to establish norms and standards for the administration

of juvenile justice, and to establish linkages and coordination between the formal system of

juvenile justice and voluntary efforts in the welfare of juveniles.

It provides for the establishment of various kinds of institutions such as

 Children‟s Homes for the reception of children in need of care and protection;

 Special Homes for reception of children in conflict with the law;

 After-care organizations which would take care of the juveniles after their discharge

from Children‟s Homes or Special Homes; and

 Observation Homes which are meant for the temporary reception of children during

the pendency of any inquiry.

The 2006 amendment also introduced important provisions pertaining to adoption in the JJ

Act. It provides for the court to allow giving a child in adoption to another, irrespective of

that person‟s marital status, irrespective of whether or not the adopting parents already have a

child of the same sex as the child to be adopted, to childless couples as well as those who

had biological children. In other words, the 2006 amendment broadened the provisions on

adoption of children in need of care and protection; for the first time, a secular law was

available governing adoptions of non-Hindus as well as Hindus. (Prior to 2006, adoption by

Hindus is governed by Hindu Adoption and Maintenance Act and it continues to be governed

by the said Act; no other religious community had legal provisions related to adoption).
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D. THE JUVENILE JUSTICE ACT 2015

In 2015, a new law was enacted, which replaced the 2000 Act. The Juvenile Justice Act of

2015 was necessitated partly due to a mass hysteria created after the Delhi gang rape of 2012,

as one of the members of the group that raped the woman in a moving bus was a juvenile

who was aged a few months short of 18 years, and he was tried as a juvenile and sent to a

reformation home for three years and released in December 2015, while other accused who

were adults were awarded death penalty. Without understanding the philosophy behind the

juvenile justice system, public outcry led to the demand for lowering the age of juveniles

under the Act, particularly when they committed heinous offences, so that such juveniles can

be prosecuted and sentenced in adult courts.

Salient Features of the 2015 Act:

1. While a juvenile was defined as a child below the age of 18 years, children in the age

group of 16-18 can be prosecuted as adults if they commit a heinous crime;

2. Further, a child of 16-18 years who commits a less serious offence, may be prosecuted

as an adult if he / she is apprehended after the age of 21 years;

3. Offences perpetrated by juveniles are classified into three categories - A heinous

crime is any offence which prescribes a minimum of seven years imprisonment; .a

serious offence attracts 3-7 years of imprisonment, and a petty offence prescribes

three or less years of imprisonment.

4. The law provides for establishment of Juvenile Justice Boards (JJBs) in each district

with a metropolitan magistrate and two social workers, including a woman. The JJBs

will conduct a preliminary inquiry of an offence committed by a juvenile within a

specified time period and determine if the juvenile should be sent to the rehabilitation
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centre or to a children‟s court to be tried as an adult. The Board can take the help of

psychologists and psycho-social workers and other experts to take the decision.

5. The law also mandates establishment of Child Welfare Committees (CWCs) in each

district with a chairperson and four other members who have experience in dealing

with children. One of the four members must be a woman. The committee decides

whether an abandoned child should be sent to an institution or put up for adoption or

foster care.

6. The 2015 Act has further attempted to streamline the adoption process of orphaned,

abandoned and surrendered children, by empowering Central Adoption Resource

Agency (CARA) to frame rules and regulations for the adoption of children in need of

care and protection, both within the country as well as from outside.

7. While there is no bar to single, divorced, widow or spinster men and women adopting

a child, a single man is prohibited from adopting a girl child.

8. The 2015 Act introduced foster care in India for the first time through S. 44. Families

could register with the government and volunteer to foster children in need of care

and protection, or children in conflict with the law. Such families will receive aid

from the concerned government.

As highlighted above, the 2015 Act incorporates many laudable provisions. However, public

discourse and discussion has ensued on the desirability of treating 16-18 years olds who

commit heinous offences as adults and prosecuting such juveniles in adult courts.

Should 16-18 Year Olds Who Commit Heinous Offences Be Treated as Adults?

Before the passage of the Act, the Bill was considered by the Parliamentary Standing

Committee on Human Resource Development. In its 246th report, the Committee observed as

follows:
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“the existing juvenile system is not only reformative and rehabilitative in nature but also

recognises the fact that 16-18 years is an extremely sensitive and critical age requiring

greater protection. Hence, there is no need to subject them to different or adult judicial

system as it will go against Articles 14 and 15(3) of the Constitution”.

However, since the recommendations of the Committee are not binding on the Parliament,

the Parliament decided to ignore the recommendations and enact the provision as a law.

The Supreme Court of India, in judgements delivered in July 2013 and March 2014,

supported the position that all children accused of crimes must be tried under juvenile justice

laws. In the Salil Bali case, the Court stated, “the age of 18 has been fixed on account of the

understanding of experts in child psychology and behavioural patterns that till such an age

the children in conflict with law could still be redeemed and restored to mainstream

society.”10 In Subramanian Swamy and Others vs. Raju, the Supreme Court observed as

follows: 11

“…there is a considerable body of world opinion that all under 18 persons ought

to be treated as juveniles and separate treatment ought to be meted out to them so

far as offences committed by such persons are concerned. The avowed object is to

ensure their rehabilitation in society and to enable the young offenders to become

useful members of the society in later years.”

10
Salil Bali vs. Union of India (2013) 7 SCC 705 at para 48
11
Dr. Subramanian Swamy and Others vs. Raju Thr. Member of Juvenile Justice Board and Another, (2014) 8
SCC 390, at para 46
 16

Human rights and child rights activists have raised serious concerns over the provision.12

The arguments given against treating 16-18 year olds as adults when they commit heinous

offences include the following:

 The provision is grossly violative of the Indian Constitution and international

standards on juvenile justice which India has an obligation to comply with;

 The provision is regressive in nature as it moves towards retribution and

incarceration, rather than reformation, rehabilitation and mainstreaming of the

juvenile in society;

 Since it presumes that adolescents who have committed a heinous offence are beyond

redemption and should be condemned to a jail sentence, it precludes the possibility of

rehabilitation, reformation and reintegration;

 The provision fails to take into consideration the manner in which the society and the

State has failed to protect and guide the juvenile during his / her growing years, which

often contributes to the juvenile‟s commission of a heinous offence;

 Neuro-biologically, juveniles in the age of 16-18 are different from adults, as their

prefrontal cortex (part of the brain responsible for impulse control and reasoning) is

not fully developed among adolescents, leading to emotional, impulsive and risky

behavior; at the same time, the elasticity of their brains make them receptive to

rehabilitative measures;

 The procedure by which authorities are to assess if the adolescent‟s mental capacity to

determine if he / she should be transferred to an adult court is fraught with errors and

arbitrariness, and will be influenced by inherent biases that the authorities may carry;

and

12
See for example, „Experts Disappointed Over Trying Juveniles as Adults‟, The Hindu, September 22, 2015;
Swagata Raha and Arlene Manoharan , „Juvenile Justice Amendment: Adolescents are not Grown Ups‟, The
Economic Times, May 9, 2015
 17

 The transfer of an adolescent from the Juvenile Justice Board to a court would violate

the presumption of innocence of all juveniles, which is a foundational principle in

juvenile justice, as it would be assumed that the juvenile has committed the heinous

offence; this in turn would adversely impact the fairness of the trial.

E. CONCLUSION

The status of juvenile justice in India has been aptly summarized by the National

Commission for Protection of Child Rights in the following words:13

“In principle, our country has one of the most advanced juvenile justice systems

in the world today, with a strong child-centric focus and a clear separation

between adult and child jurisdictions… However, there is a long way to go in the

implementation and realization of this system… Children ended up worse than

what they were before they entered the Juvenile Justice System, with abuse and

lack of access to basic entitlements of education and health prevalent across

custodial institutions. Backlogs of pending cases of children in conflict with law

before the JJBs have been reported, in some States. Long-term institutionalisation

with uncertainty and deprivation of education, health and other entitlements

continue to be the bane of the system. Although there has been a total paradigm

shift in the language of the JJ Act, which looked at restoring the self- worth and

dignity of the child through counselling and appropriate rehabilitation, this spirit

is not reflected on the ground.”

13
www.ncpcr.gov.in/issues.htm