The authors of this blog are Sushmita Das, Assistant Professor of Law of NRI Group of Institutions (The Department of Law) and Shubhang Gomasta, Pursuing Masters in Law MATS Law School, LL.M in Corporate Laws.
“Juveniles of today are the youths of tomorrow”. Each and every child has the right to enjoy his childhood and live in a crime-free society. There are various legislations governing the rights of the juveniles at an International level as well as the National level. The Universal Declaration of Human Rights (UDHR) under Article 26 gives the Right to Education for every child which is free of cost in the basic stages of his life. Education which is elementary is compulsory made. On the basis of merit, technical education and professional education is compulsory and must access equally by the meritorious students.
The type of education given to their children shall be decided by the parents. When such freedom, rights, and duties were given to a child to access education in cost-free then why a child is grown in a criminal society where he is doing crime instead of accessing basic education. Even in the Constitution of India, “Right to Education”. Education is the best way of rehabilitation even when a child is caught as juvenile offender.
A child is given protection under the Constitution of India, 1950 for the prohibition of employment of children in factories. So the supreme law of the land, the Constitution of India gives the best opportunities for the children to access education and also protected from child labor which is also defined under International Labour Organization and under the Child Labour (Prohibition and Regulation) Act, 1986. The Motor Transport Workers Act, 1961 even The Beedi and Cigar worker (Condition of Employment) Act, 1966, etc. All these legislation do not entertain children below the age of fourteen years to work in the occupation.
According to the Father of Nation, Mahatma Gandhi “No one is born criminal” and the criminal liability is being responsible for a criminal act. An old principle of criminal law that no one should be convicted or held liable for a crime unless some measure of subjective fault can be attributed to him. Under the Indian Penal Code, 1860 for every kind of crime, there are five essentials of crime and one of those is guilty mind “Mensrea” that the intention of the criminal is taken into consideration and there are not all offenses which are punished under the general exceptions in Indian Penal Code, 1860 and even a child is protected under this legislation as well.
A Juvenile is also given protection under the Prohibition of Child Marriage Act, 2006 it is changed for the age of marriage of boys from eighteen to now twenty-one and girls from fourteen to eighteen. Child Marriage is also one of the most serious offenses done by a child marrying underage when he should be given proper fundamental education so that he can save his future rather than marrying when he is not supposed to. Another major legislation for Juvenile is Juvenile Justice (Care and Protection of Children) Act, 2000 in which many provisions were changed and parliament passed Juvenile Justice (Care and Protection of Children) Act, 2015 which states that a teenager child in the age group from sixteen to eighteen when involved in the serious crime than the child will be treated as Adult said by the Maneka Gandhi in Lok Sabha after the Nirbhaya Case.
Although, the Juvenile Justice Board established under the Act provides huge power like court to decide the matter related to a juvenile after the investigation by the special juvenile police unit who play a major role for investigation and recognized Non-Governmental organization like Childline India Foundation with the toll-free helpline number 1098 help to relocate the juvenile accused or any other details related to the juvenile but the juvenile is kept in the custody in special protection special juvenile police unit(SJPU) who take the juvenile offender to the Juvenile Justice Board without any police uniform so that the juvenile offender doesn’t understand the fact where he is taken and why interrogation can be done properly by the Juvenile Justice Board even the family members of the juvenile offenders are not allowed to be entertained in the juvenile justice board, then the board decides the matter that the juvenile offender needs to be kept in the observation homes under section 8, special homes under section 9 or shelter homes under section 37 when the child is having no family member then the child is kept here which is also provided under the Juvenile Justice Act, 2000. Under this Act there is the child welfare committee (CWC) which decides upon the child how many days or month child should be kept in special or observation home. The child welfare committee only those matters of the juvenile offender goes which are not heinous and others are sent to the juvenile justice board (JJB) and from there the case is finally disposed of.
Case Analysis of Nirbhaya
Life is so uncertain which is one of the evidentiary matters in the case of Nirbhaya. In the cold dark night of 16th December, 2012 as the 23-year-old physiotherapist intern and Awindra Pratap Pandey waited at Munirka in south Delhi looking for an auto-rickshaw to reach their home in Dwarka, an off-duty charter bus, with six male occupants, including the driver, stopped by and offered them a ride. The bus moved in a direction which was off the route. There were the men, who were drunk, began molesting Nirbhaya(the name given to the woman later by the media which means fearless). Nirbhaya's friend was knocked down with an iron rod. As Pandey lay half unconscious, the drunken men dragged Nirbhaya to the rear of the moving bus and took turns to rape her. As she fought back, one of the attackers - a juvenile - inserted a rusted, L-shaped rod used with a wheel jack - into her private parts, pulling and ripping her intestines apart.
Her medical reports later revealed that she had septic injuries on her abdomen and genital organs also. Mainly, the Juvenile accused was convicted by the Juvenile Justice Board and later on sent to the observation home. The juvenile was more brutal among the other six accused but later he was released after his correctional term and joined as a cook.
Similarly, in the case of Kathua rape case of an 8 year-old in Jammu and Kashmir. Thus, Gang Rape section 375-D of the Indian Penal Code, 1860 is stated. The parents of Nirbhaya welcomed the decision of Supreme Court as the Death Penalty was given to the adults.
Ways Forward to these heinous offenses and justice to the Juvenile system in India.
The powers given to the Juvenile Justice Board are huge but there is a lack of stringent laws for the Juvenile system in India that is why the juveniles can’t access to justice. Here the meaning of Justice should be referred as theory of distributive justice as well as theory of reformation in the jurisprudential point of view but there must be fear among other juveniles as the power of juvenile justice board is not having accurate laws for the juveniles.
There must be certain amendments like in the system of the United Kingdom; there are juvenile jails although in those jails the juvenile offenders are given education only. Even in the jails for the adults, the system of probation and parole with the help of probation officer and parole officer- the offenders are relieved from the jail in the Indian justice system.
So there must be juvenile jails which must be replaced by the observation homes so that the other juvenile offenders in the society think twice to commit such heinous crime in the future. A child must be tried when he reaches adulthood said in the Lok Sabha but the ways forward to it that a child must be kept in the juvenile jail and must be provided proper education, counseling, rehabilitation until he completed his graduation and attains the maturity level since that child takes time to develop and grow mentally to understand the depth of crime.
- Article 21 A of the Constitution of India, 1950
- Section 82,83,375 D of Indian Penal Code,1860
- Section 8,9,10 Juvenile is Juvenile Justice (Care and Protection of Children) Act, 2000
· An Analytical study of Juvenile system in India, ipleaders.in,
· Venudhar Routiya, A Critical Study of Children Under Juvenile Justice System in India, IOSR Journal of Electronics and Communication Engineering, ISSN: 2278-8735. Volume 11, Issue 4, Ver. III (Jul.-Aug,2016, PP 81-86
· A Study on Juvenile Justice System in India before and after Nirbhaya Case,
· Comparative Study of Juvenile Deliquency,
· Juvenile Justice System in India,
 It was added by the 86th Amendment in the year 2002 under Article 21-A and also became an Act in the name of Right to Children to free and compulsory Education Act, 2009
 Nirbhaya case 2012