A child should be leader of them all, and to be led by that kind of
innocence. Didn’t Jesus say bring on the children? Be like the children. Not
childish, but child-like. That kind of innocence.
The beautiful lines from Bible show the element of innocence ingrained in every
child. A child is source of innocence and hence is completely unaware of the
actions it performs. And that’s why the child is exempted from both civil as
well as criminal liability.
This exemption of liability will be given to the child under the title of minor
person . The law prescribes certain criteria to call a person as minor. In India
law prescribes that a person below the age of 18 years be considered as
An act of a child under seven years is no offence. An infant is,
by presumption of law, doli incapax i.e. not endowed with any discretion so as
to distinguish right from wrong, thus, the question of criminal intention does
not arise. Acts done by children above seven and below 12 will be protected if
it is shown that the child in question has not attained sufficient maturity of
understanding to judge the nature and consequences of his conduct on that
There are some instances where children knowingly or unknowingly come into
conflict with law. In order to protect the welfare of children of such children
Juvenile Justice (care and protection) Act, 2000 has been enacted. Now that law
has been replaced by Juvenile Justice (care and protection) Act, 2015 which
makes provision for treating a child above the age of 16 and below the age of 18
as an adult for imposing criminal liability. And how far such legislation
ensures welfare of the child whether the said legislation is a swing towards
retributive theory of punishment as opposed to reformative theory, which has
been the crux of Juvenile Justice System. Let us try to address the above
The Ministry of Women and Child Development began contemplating several desired
amendments in 2011 and a process of consultation with various stake holders was
initiated. The Delhi gang rape case in December 2012 had tremendous impact on
public perception of the Act.
One of the accused in the 2012 Delhi gang rape was
a few months younger than 18 years of age. He was tried in a juvenile court. One
of the convicts was found to be juvenile and sentenced to 3 years in a reform
home. Eight writ petitions alleging the Act and its several provisions to be
unconstitutional were heard by the Supreme Court of India in the second week of
July 2013 and were dismissed, holding the Act to be constitutional. Demands for
a reduction of the age of juveniles from 18 to 16 years were also turned down by
the Supreme Court, when the Union of India stated that there is no proposal to
reduce the age of a juvenile.
On 31 July 2013, Subramanian Swamy, a BJP politician filed a Public Interest
Litigation in the Supreme Court of India seeking that the boy be tried as an
adult in a court. The Court asked the juvenile court to delay its verdict. After
the Supreme Court allowed the juvenile court to give its verdict, the boy was
sentenced to 3 years in a reform home on 31 August 2013. The victim's mother
criticized the verdict and said that by not punishing the juvenile the court was
encouraging other teenagers to commit similar crimes.
In July 2014, Minister of Women and Child Development, Maneka Gandhi said that
they were preparing a new law which will allow 16-year-olds to be tried as
adult. She said that 50% of juvenile crimes were committed by teens
who thought that they get away with it. She added that changing the law, which
will allow them to be tried for murder and rape as adults, would scare them. The
bill was introduced in the Parliament by Maneka Gandhi on 12 August 2014. On 22
April 2015, the Cabinet cleared the final version after some changes.
A revamped Juvenile Justice Bill was passed in the Lok Sabha on 7 May 2015. The
new bill will allow minors in the age group of 16-18 to be tried as adults if
they commit heinous crimes. The crime will be examined by the Juvenile Justice
Board to ascertain if the crime was committed as a 'child' or an 'adult'.
3. Functioning of the act.
The controversial Inclusion of sending children between 16-18 years to prison in
JJAct is applicable to Children in Need of Care and Protection and Children in
Conflict with Law.
The first Section of the Act defines the terminologies which will be used
throughout the Act, a few relevant ones have been compiled below:
(i) Child – a person who hasn’t completed 18 years of age
(ii) Children in conflict with Law – child who is alleged or found to have
committed offense and not completed 18yrs of age
(iii) Children in need to care and protection – This Act retained clauses from
JJA 2000 but with additions, deletions, and modification.
(iv) Best Interest of child – This term was not defined under JJA 2000. However,
it was defined as a part of Model Rules 2007 and included in 2015. The term
means the basis for any decision taken regarding the child, to ensure fulfilment
of his basic rights and needs, identify social well being and physical,
emotional, intellectual development.
(vi) Child friendly- any behaviour, conduct, practice, process, attitude,
environment or treatment that is humane, considerate and in the best interest of
(vii) Classification of offenses – Petty, serious and heinous
(viii) Residential Care Options – They are defined as Children Home, Open
Shelter, Observation Home, Special Home, Place of Safety, Specialised Adoption
Agency and Fit facility.
(ix) Officers for Children – This crucial term was not defined until JJAct 2015.
Though included, these definitions are technical in nature and do no value
addition about the nature of their responsibilities.
(x) Adoption – We see a difference in definition from 2000 to 2015. In the
present definition – child as the lawful child
(xi) Inquiry – Remains undefined despite its vast use. For the current scenario,
it is as defined by the CPC
Ironically, this Bill primarily affects the most marginalised and poor sections
of our society. More than 50% of the children in conflict with law come from
illiterate families and extremely poor homes. This law has the potential for
misuse by framing false cases against most vulnerable children, especially where
they are involved in elopement/consensual sex. Children living in conflict areas
would be the worst affected.
Adult prisons increase re offending
As ShashiTharoor pointed out in a debate in the LokSabha in May 2015,
reoffending increases by 80% according to studies done in US. In a stark irony,
even though we have not put adequate resources in our JJ system reoffending has
come down. According to data from the NCRB, the number of juveniles apprehended
for reoffending came down from 9.5% in 2013 to 5.4% in 2014. We cannot send
children to adult prisons which are nothing but "crime kipaathshala."
Twenty-three states in the US passed laws to de-link juveniles from adult
justice systems. And, yet we here in India are putting in place the same failed
Punitive measures are not as effective as reformative measures. This is the
reason that the JJ Act is not based on the principle of retributive justice.
The Parliamentary Standing Committee in February 2015 held extensive
consultations and strongly recommended against it. Honourable members have
passed an act in apparent haste and under undue pressure from a charged group of
citizens. For us who work for child rights it is a sad occurrence, just as it is
a setback for child rights and women's rights.
Reducing the age of juvenility will violate guarantees made under the
Constitution, the United Nation Convention of Rights of the Child and 'Beijing
Rules'. In September 2015 at UNGA, India shared its vision of SDGs to make the
world safer and a better place for global population. This move could send wrong
signals about India's commitment towards international treaties and may have
repercussions for the nation.
Save the Children India has maintained that the lawmakers need to rely on expert
opinions and evidence rather than emotional popular sentiment before drafting
such an important piece of legislation. Ultimately, any legislature cannot hope
to find a solution by making ad hoc amendments to the Act, when there is a need
to reform the justice system.
 Majority Act of 1875.
 Sec.82 of IPC.
 Sec.83 of IPC.
 http://www.wcd.nic.in/acts/juvenile-justice-care-and-protection-children-act-2015 Accessed
 Dr. Subramanian Swamy And Ors vs Raju Thr.Member Juvenile Justice,
 "Juveniles who commit rape should be tried as adults: Maneka Gandhi". IBNLive.
14 July 2014. Retrieved 10 May 2015.
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