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India has approximately over 385 million children i.e. 42% of its population, the largest for any country in the world, placing an enormous responsibility on the state & nation to rear these, as responsible law abiding citizens. They are the representatives of the future of a nation. However, the dawn of industrialization, urbanization, mobilization, resulting in cultural variations, has eroded the existing protective structure making the juvenile more vulnerable to social maladjustment.[1] Juvenile delinquency is a gateway to adult crime. So every society ought to evolve a proper education, training & guidance, to get their mirth in the society.

The concept of Juvenile Justice as a phenomenon, developed in the 19 century. Earlier no concept of rights of children were adhered to & both the child & adult were treated at par. They were prosecuted in ordinary courts, subjected to same penalties ( death penalty & life imprisonment ) & served their sentence along with hardened, habitual criminals in the same prisons. This led to breeding of young criminals in the cells. However, in the middle of the 19 th century the sufferings of the children, drew the attention of the radical reformist, to bring about a change, for, what a child needs, is not, so much of a reformation as formation.[2] So, the emphasis shifted from protecting the society from a delinquent child, to protecting the child from a delinquent society. This led to the enactment of Children Act of 1960 which was subsequently re-enacted as Juvenile Justice Act, 1986. This act has been repealed by the Juveniles Justice (Care and Protection of Children) Act, 2000.

Purpose of the Act

This Act intends to consolidate and amend the law related to juveniles in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under this enactment.[3]

Indian Constitution under Article 15(3), Article 39 Cl. (e)&(f), Article 45 & 47, impose a primary responsibility of ensuring the needs of children and of protecting their basic Human Rights. The General Assembly of United Nations, adopted the Convention on Rights of the Child in November, 1989 and laid the standards to be followed by all member States in protecting the interest of the child. It also emphasized on social re-integration of child victims.[4] The new Act has been enacted to meet the international standards prescribed in the Convention on Rights of the Child, United Nations Standard Minimum Rules for the Administration of Juveniles Justice1985, United Nations Rules for Protection of Juveniles Deprived of the Liberty, 1990.[5]

Meaning of Juvenile/Child in Need of Care & Protection

Child in need of care and protection[6] under the Act means -

1) Who is found without any home or settled place or abode and without any ostensible means of subsistence,

2) Who resides with a person (whether a guardian of child or not) and such person -

a) Has threatened to killed or injure the child and there is a reasonable likelihood of the threat being carried out.

b) Has killed, abused or neglected some other child or children and there is a reasonable likelihood of the child in question being, abused or neglected by that person,

3) who is mentally or physically challenged or ill child or children suffering from terminal disease or incurable disease having no one to support or look after,

4) Who has parents or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child,

5) Who does not have parent and no one is willing to take care of or whose parent have abandoned him or who is missing and run away child whose parents cannot be found after reasonable injury,

6) Who is being or is to grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts,

7) Who is found vulnerable and is likely to be inducted into drug abuse or trafficking,

8) Who is being or is likely to be for unconscionable gains,

9) Who is victim of any armed conflict, civil commotion or natural calamity,

The Act has increased the age of a child to be governed by the Juvenile Act & has deleted the difference between the male & female child. All children who have not completed the age of 18 years will be given the benefit under the Act.

If an inquiry has been initiated against a Juvenile in conflict with the law or a child in need of care & protection & during the course of such inquiry, the Juvenile ceases to be so, than irrespective of the provision under the Act or any other law in force, the inquiry shall continue & orders will be issued in respect of such a person as if he continues to be a Juvenile or a child. Arnit Das v. State of Bihar, 2001 Cri. L.J.4238

Juveniles indulge in deviant behaviour despite the unbridled efforts of the penologists to curb & restrict the menace. It has emerged as a global phenomena & is being dubbed as a social disease by sociologists, psychologist, psychoanalyst, psychiatrists, criminologists & jurist etc. The factors contributing to increase in criminality among youth are -

1. Economics Factors : Background of the juvenile often betray a life of deprivation. They usually hail from low income groups or from socially backward communities. They are forced to break the law generally to survive & indulge in begging, engage in prostitution, shoplifting & other serious crimes. They often become vulnerable & are exploited by the bad elements of the society.

But however among the privileged lot, economic factors work to produce delinquency in a different manner. Rich parents are either too busy to spend time with there children or are so career oriented that they consider spending time with children as wastage. They are willing to buy anything & everything for the child so long he is out of the way or does not demand attention or time. Vested with enormous wealth, absence of parental control, care & affection & with inexperience they plunge into - the world of sin and crime. Neglected, lonely and depressed they find resort in excessive drinking, smoking and drug addiction. They experiment with sex and drugs - 'the good things in life' at such a young age. Youth no longer can be perceived as innocent far less angels. They endlessly look for thrills as boredom and loneliness frustrates them. "The thrill for stronger & stronger stimuli is almost like an addiction" which often leads to violence.

2. In a world confronted with cut throat competition, technological changes and cultural variations, juvenile prowl tirelessly for a better deal so as to liberate themselves from the economic strains that there parents were accustomed to. As images of realizing there cherished aspirations play constantly on there mind, failure to achieve makes them violent & aggressive. Further, lack of opportunities or denial of opportunities frustrate them and they do not hesitate to commit the most vulnerable crimes to achieve what they dream & want in life.

3. Disintegration of the joint family system has deprived the child of set values & behavioural codes to conduct himself in a society. They usually deviate & fall prey to mischief mongers who divulge them into delinquency. Juveniles coming from broken homes, polygamous set up & crowded homes usually acquire manipulating, intriguing & hostile tendencies which are usually destructive. Such juveniles usually look for role models outside the family to identify himself with. This hour of identity crisis may tilt the balance in favour of deviant behaviour.[8]

4. Increasing industrialization has resulted in amazing migration of the rural population to the urban areas in an urge to uplift their dwindling socio-economic status, by opting for gainful occupations. Passion to achieve something makes them prone to opt for residing in urban slums and unplanned congested localities.[9] These further make them vulnerable to crime.

The nature and extent of juvenile delinquency has shown a tremendous rise. Approximately 93% of all heinous crime were committed by young novices. A report of the National Crime Records Bureau states that young people in the age group of 14 to 20 years are responsible for 50 % of all crimes committed in the country. A total of 9,339 Indian Penal Code cases were Registered against juveniles during 1998 showing an increase of 18.1 % over 1997.[10] In Special & Local law, cases registered against juveniles went up by 36.2% during 1998 as compared to 1997.[11] Of the total juveniles involved in crime in 1998, 77.5 % were either illiterate or had education only up to primary level.[12] This makes them highly vulnerable to fall prey to temptations, inducement and mechanization by vested groups to embark on a path of criminality.

Juvenile Delinquency should be tackled on the basis of two fundamental assumptions :

(a) Young offenders should not be tried but they should rather be corrected.

(b) They should not be punished but reformed so they should be tried by Juvenile Courts and Neglected Delinquents by Child Welfare Boards.

The Indian Penal Code and the Criminal Procedure Code, 1973 contain special provisions relating to juvenile offenders, their treatment and procedure.

Section - 82 of The Indian Penal Code

It specifically states that a child below the age of seven is "doli incapex" that is incapable of committing a crime. 'Nothing is an offence which is done by a juvenile below the age of seven years.' He is presumed to be innocent in the eyes of law.

Section- 83 of The Indian Penal Code :

'Nothing is an offence which is done by a juvenile above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct at that occasion.'

Section-360 of Criminal Procedure Code :

It states that whenever an offence is committed by a person who at the time of its commission is below twenty one years of age and offence committed is other than the one punishable with death penalty & life imprisonment, then he should be awarded a lenient punishment depending on his past history, character, circumstances in which he committed the act labeled as an offence and whether he was capable of knowing what he was doing is right or wrong. Whether he was capable of knowing but incapable of appreciating his acts as he was intoxicated without his knowledge. A person can be released on probation for a period not exceeding three years on entering into a bond with or without sureties.

SECTION - 27 lays down a lenient treatment to Juveniles below sixteen years age if they commit an offence other than the one punishable with death or life imprisonment.

To protect and prevent stigmatization and embarrassment, the juvenile is not subjected to the ordinary law courts but are governed by the Control Act i.e. The Juvenile Justice (Care And Protection of Children) Act, 2000 which lays down a different procedure for trial, adjudication and punishment. The consensus is that as far as possible young adult offenders should be saved from the labeling process and the contaminating effect of criminal justice system.

The Juvenile Justice (Care & Protection Of Children) Act, 2000 :

The juvenile justice act 2000 provides for care protection, treatment, development and rehabilitation of Juveniles. The gradual breakdown of the traditional means of societal control particularly in the family and community, the expanding rural urban drift, rapid industrialization has generated a strong tendency for increasing centralization of the authority in the hands of the state to reform irregular behaviour of the juveniles. Every type of juvenile misbehaviour is not to be described as delinquency because it maybe an offshoot of the process of developing or a byproduct of the conditions over which a juvenile himself might have no control. The responsibility vests in state to rationalize policies governing the administration of juvenile justice, on the basis of progressive move towards decriminalization, depenalization, diversion and deinstitutionalization to the extent possible so as to be in consonance with the socio - cultural conditions of the country. The act is divided into Five chapters & seventy sections.

The Main Objectives of the Act are :

(1) To lay down a uniform legal framework for juvenile justice so as to ensure that a child under no circumstances is lodged in a jail or police lock up.

(2) To spell out the machinery and infrastructure required for the care, protection, treatment, development and rehabilitation of various categories of children coming within the preview of juvenile justice system.

(3) To establish norms and standards for the administration of justice in terms of investigation and prosecution, adjudication and disposition, care and protection.

(4) To develop appropriate linkages and co-ordination between the formal system of juvenile justice and voluntary agencies engaged in the welfare of neglected & socially maladjusted children.

(5) To constitute special offences in relation to juveniles and provision for punishment.

(6) To bring the juvenile justice system in the country in conformation with the United Nations Standard Minimum Rules for the administration of juvenile justice.

The juvenile justice act contemplates a vigorous use of the inherent potentials of the community for dealing with juveniles indulging in delinquent behaviour so as to bring them within the mainstream of social life. The Act authorizes the state government to constitute Juvenile Justice Board comprising of a judicial magistrate first class and two social workers of which at least one must be a female.[14] A Magistrate will be designated as the principal magistrate. Every magistrate so appointed must have a special knowledge of child psychology. Members must have been actively involved in health, education or welfare activities related to children for at least seven years.[15] Persons appointed as members can be removed by the state government if :-

(1) He has being found guilty of misuse of power.

(2) Has been Convicted of an offence in involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence,

(3) He fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to attend less than three fourth of the sittings in a years.[16]

There must be at least two members present including the principal magistrate at the time of final disposable of the case. In case of difference of opinion the majority decision shall prevail. The Juvenile Board exclusively has the power to deal with proceeding under the Act.[17]

The court will first determine the age of the juvenile to analyze whether he is to be governed by the Act or under the criminal law of the land. For ascertaining the age of the accused an inquiry has to be conducted by a competent authority by giving equal opportunities to the parties to adduce oral & documentary evidence.[18] Such an inquiry must be conducted within four months[19] unless extraordinary circumstances permit otherwise. This would culminate either in treating him as a juvenile and subject him to the provisions of Juvenile Justice Act 2000 or an adult offender. The court has to determine the fact that which is the material date, the date at the time of commission of the offence or at the time when the juvenile is brought to the court. The court held that the date he is brought before the court is relevant. Arnit Das v. State of Bihar, 2000 SC 2264. The Juvenile apprehended by the police shall be placed under the charge of special Juvenile police unit and then forwarded during the pendency of inquiry to the observation homes. The proof of age is ascertained from entry in the school register. If it is doubtful medical evidence would prevail over it. Sunil Kumar v. State of U.P., 2000 Cri.L.J. 4687. Proceeding pending on the date of the Act will be concluded under the old Act. Lallan Singh v. State of U.P. 2002 (4) All India Criminal Law Reporter 947.

The parents or guidance of the child if found must be present before the Board when the Juvenile is produced.[23] The Probation officer will inquire into the family background.[24] The juvenile can be brought before a competent authority not only by a police officer but by any other person or organization duly authorized. The proceedings of the Juvenile Board are informal, strictly confidential and in the nature of a conference between a judge, probation officer, social worker, child and the parents. The issue is why the child committed an offence and not whether he has done it or not. The act denies access to the press and even the right to counsel is not available unless special permission of the Juvenile Welfare Board is taken. The Board can dispense with the presence of Juvenile. The Juvenile Board is satisfied that an offence has been committed then it can :-

a) allow the Juvenile to go home after advice and admonition.

b) direct the Juvenile to participate in group counseling

c) order the Juvenile to perform community service.

d) order the parents of the Juvenile or the Juvenile himself pay a fine if he is above fourteen years age and earning.

e) direct the Juvenile to be released all probation of good conduct under care of parent or guardian on executing a bond with or without surety for a period not more than three years or make an order directing the Juvenile to be sent to special home if he is over seventeen years but less then eighteen for the period of two years or till he ceases to be a Juvenile. A person can be realized even early if the probation officer submits the report of his good behaviour and reformation.[25] No Juvenile can be sentenced to be death or life imprisonment or sent to a prison in default of payment of fine.[26] The Act forbids joint trials of Juvenile and adults offenders.[27] The powers vested in the Board may be exercised by the High Court and the Court of Session whenever the proceedings come before them in Appeal. Any person aggrieved by the decision of the Juvenile Court can file an appeal within 30 days against the order of conviction to the Court of Session.[28] Decision of the Court of Session is final and conclusive. No second appeal lies. High court can however call for the record to determine its legality.[29] No appeal lies against the order of acquittal passed by a Juvenile court.[30]

A juvenile accused of a bailable or nonbailable offence is arrested and brought before a juvenile court then irrespective of the provisions of Criminal Procedure Code, shall be released on bail with or without surety but shall not be released if there appears a reasonable ground for believing that -

(1) That it is likely to bring him into association with any known criminal or

(2) To expose him to moral danger or

(3) That his release would defeat the ends of justice.[31]

The Act Specifically Prohibits the publication of the name, address or identity of Juvenile.[32] Any Juvenile in conflict with the law if he escapes from the observation or special home then he shall be arrested an brought back to the home no proceeding instituting against him however information will be given to the Board.[33] Any form of cruelty, assault, exposure or willful neglect to a juvenile whether physical or mental is punishable with imprisonment for a term of six months or fine.[34]

Abetment of the offence punishable up to one year and fine.[35] A juvenile suffering from an infectious dangerous disease, in sane, leprosy or addicted to drugs, requiring prolonged medical treatment, maybe sent to an approved place to ensure proper treatment.[36] Whosoever, employs Juvenile for the purpose of begging shall be punished with imprisonment for an term up to three years and fine.[37]

Any one Intoxicate a child or subject him to drugs without the order of the medical practitioner shall be punished with imprisonment for a term of three years and fined.[38] Any one employing a child in hazardous works or keeps in bondage shall be punished with imprisonment for three years and fine.[39] Observation homes not only provides juvenile, facilities for accommodation, maintenance, medical examination and education but also provide vocational training for useful occupation. The state government can release a juvenile from juvenile home & grant him a written license permitting him to live with or under the supervision of any responsible person named in the license who is consenting to take charge of him to educate & train him. Failure would result in revocation or forfeiture of the license. Institutional care is resorted to as a last mode if restoration to parents or guardian, release on advice and admonition, placement on probation or discharge on fine is not considered appropriate. This positive liberal approach provides flexibility in the treatment of the juvenile ensuring behavioural development and responsiveness to therapeutic devices. It also attempts to protect the basic human rights. It is an obligation cast upon the state government and union territory administration to constitute advisory boards to advice on matters related to the establishment and mobilization of the resources and co-ordination among various agencies. This interaction enables the boards to make optimum use of various sectors of socio economic welfare in the development of the juvenile justice system.