The propensity to crime is at its maximum at the age when strength and passions
have reached their height ; yet when reason has not acquired sufficient control
to master their combined influence -Adolphe Quetelet, eminent Belgian social
This quotation lucidly harbingers the alarming rise of criminal activities, by juveniles in the last two decades. Now the question which strikes us is what does the term Delinquency mean? Etymologically, it has been derived from the Latin word Delinquer which means to omit. To imagine a crimeless society is to live in utopia. Crime has been a baffling problem ever since the dawn of human civilization and man’s effort to tussle with this obstacle have only partially succeeded. Individuals from all age groups are committing offences unflinchingly or under serious threat or coercion.
Doli incapax is unfortunately committing transgressions of serious nature. This varied transgressions by children and adolescents which the society staunchly disapproves and for which some kinds of punitive measures or reformative steps are justified in the public interest at large, is referred to as Juvenile Delinquency.
Sociologists have observed that neglected children and juveniles fall and easy prey to criminal acts which may be attributed to their brazen nature, lack of self-control, tendency to flout norms and rules, desire for the hidden, over-flowing emotions or physical strength and endurance. The globe has witnessed a massive transition from the age of simplicity to the age of complexity with a marked increase in the degree of offences, from the belief of live and let live to the diabolical desires of live and let die.
The exact definition of delinquency has always remained a debatable issue, criminologists contradict their views arguing that the statutes dealing with various juvenile offences were ambiguous in terms of their contents because they are contrary to the fundamental principle of criminal law, as expressed through the Latin maxim ‘nullum crimen sine lege’ which implies an act cannot be a crime unless it is so defined under the existing decree.
Juvenile Delinquency in a wider sense refers to the antisocial behavior of a child but various acts are included within the umbrella of juvenile delinquency, which are otherwise not criminal in nature, like : smoking, drinking, wandering outside home in late night. These are not exactly in accordance with the confined and precise definition of crime but are still conducts which are treated as juvenile acts because they are reformative in nature, created not to punish the juveniles but to prohibit them from such lascivious and intractable conduct.
Renowned American baseball pitcher Bob Feller says “My father kept me busy from dawn to dust when I was a kid. When I wasn’t pitching hay, hauling corn or running a tractor, I was heaving a baseball into his mitt behind the barn…. If all parents in the country followed his rule, juvenile delinquency would be cut in half in a year’s time”. This depicts how the surroundings of a child play a vital role in his grooming into a perfect human being.
Every home ideally should be Child Care Home, a safer haven for the young ones where they should learn the morals, ethics, socializing, the ability to judge the right and the wrong, their early experiences, the bonds they form with their parents and these in-turn deeply affect their future physical, cognitive, emotional, social development.
But the ground realities are different. Noxious surroundings, neglect of basic needs, bad company and other abuses and temptations would spoil the child and likely turn him delinquent. “Materialism has adversely affected familial relationship… homes are breaking and indifference has settled in community behavior” – Supreme Court.
“Juvenile crime does happen and we have to deal with it. Our goal is not to investigate nine year olds, but we cannot turn a blind eye towards it”- Keith Kameg.
Juvenile Delinquency is a topic that has been debated and discussed for centuries as to why children commit crimes. What factors influenced them to take the delinquent path? What were the reasons behind them not being able to distinguish between the moral and legal right and wrong? It is also interesting to know whether they were aware of the consequences they will have to face for their actions, did they have the maturity to comprehend of what they were doing.
These questions have been asked frequently while exploring the cause behind juvenile delinquency. There are various reasons like Economic Factors, Psychological Factors, Sociological Factors and Influence of Media which can sway an innocent mind to take the immoral path.
Economic factors can be summed up to one problem, paucity of money.
Arrests made in recent years in India has shown that a large group of juveniles approximately 50.2 percent belonged to the low income families. Their annual income was around twenty-five thousand rupees. Such parents usually leave their children without a company due to their work, leaving no one to guide the moral compass of the young child whose mind is still developing.
The children in absence of their parents is on a ship in the harsh seas without the captain guiding them. With constant crunch of money and absence of a moral compass, it is very common for children to take up odd jobs. Their main focus is to earn money and for them the means to earn does not matter. They are easy targets for criminals who often exploit them. From minor crimes like pickpocketing, stealing to heinous crime like dacoity and murder, all of them have in most cases a common object money.
A child who has seen his or her parents struggle to make money and make their ends meet, usually tries to do whatever he or she can to contribute to the family.
We must also factor in the psychology of a delinquent mind, as to what is his mental health. It is often seen that youngsters involved in crimes have a disturbed mind.
They have emotional problems of jealousy, inferiority, lack of attention and are often mocked by their peers. Healy and Bronner in their study of 143 delinquents found that 92% of them were facing some form of mental illness or emotional problem. Apart from emotional problems, it has been observed that a good number of delinquents are mentally deficient.
Where an average intelligence of a normal group of children was found to be 100, Burt in his study in London has observed in his report that the average intelligent quotient of delinquents children is 8-5. On similar studies it was found that the average intelligence of the juvenile delinquents was much lower than the average intelligence of a normal group of children of the same age. Such children who cannot distinguish between right and wrong are used by the more intelligent child or adult for criminal purposes.
Thus from psychology point of view delinquents are governed by the ‘pleasure principle’. They are in the search for instant and immediate pleasure and satisfaction of their needs. Unfortunately they become the victim of their own impulses due to their inability to control their impulses nor to think properly the consequences of their actions. A point worth mentioning is some delinquents with maladjusted emotions purposely becomes a delinquent as to gain their parents attention or as a protest against their treatment.
Sociological factors such as the environment around the children have an immense influence on their behavior and minds. Juveniles often develop a delinquent sub culture due to the cultural deprivation and frustration that they go through. Peer pressure also compels them to take the delinquent path. In their rebellious stage, juveniles often go against the morals and principles upheld by the society.
Juveniles according to Cloward and Ohlin develop delinquent tendencies depending upon what opportunities are available to them in their surroundings. The youth may become criminals if they have opportunities to learn illegal activities. They may indulge in acts of street brawls of hooliganism. Poverty struck environment and the lack of proper education are also responsible for juvenile delinquency.
The family plays a crucial role in the development of a child. Hence if he or she has been brought up in a toxic and abusive family, they may also acquire those traits. The neighborhood where a child is brought up also play an important role in the character building. Juvenile delinquents are more often seen in poorer neighborhood where the juveniles feels that committing crimes is necessary for them to prosper. Crimes committed by them is out of necessity and not by evil intentions. For them it is an act of survival, where there is no right and wrong.
Media is a powerful tool with enormous power to influence people of all ages. With its wide spectrum, it has often been criticized for juvenile delinquency. Lawlessness is more prevalent among young people associated with media.
With free and unrestricted access to media it is bound to affect the young minds who cannot differentiate between the real and unreal. Media has played both positive and negative role for young minds who are exploring the world, trying to find their place in the society. From showing the endless possibilities and opportunities one can find and achieve in this vast world to showing outright filth and unethical practices and activities that take place around the globe. With a developing mind who cannot understand the right and wrong, real and unreal many youngsters deviate to the latter part.
Mass shootings in USA, the unprecedented rise of rape crime among teenagers in India are few examples of how easy is it to influence the young children. Another thing to note is the influence of video games on the young fallible minds. Games like PUBG mobile whose main player base is twelve to seventeen year olds have seen an unprecedented rise of crimes committed by youngest for trivial matters. Crimes ranging from committing suicide to murder of family members, it is bone chilling to see how a game that is filled with violence can do to these children.
A recent a teenager in Florida was arrested by police for making a statement while playing a video game where he said I vow to bring my father’s M15 to school and kill seven people. USA which has seen several school mass shootings recently treats such crimes as acts of terror and arrests any person making such statements. Another example is a case in India, in which a fifteen year old kills his elder brother for scolding him over playing PUBG. It is horrifying to see that kids have such heinous thoughts in their minds.
Crime rate in the last few decades has unprecedently shot up by the children around sixteen years. The more alarming part is that children (especially under the age group of five to seven years) nowadays are used rather misused as tools for committing crimes, because at this point their mental faculty is in the primary developing stage and they can easily be manipulated.
The horrific incident of Nirbhaya Delhi gang rape case on December 16th 2012, shook the whole nation and series of debates succeeded among legal fraternity and socialists. The main reason and issue of the debate was the involvement of one of the accused who was just six months short of attaining the age of majority, eighteen years.
The involvement of the accused in such a heinous crime like rape forced the Indian legislation to repeal the old law, as the Indian parliament came up with Juvenile Justice (Care and Protection of Children) Act, 2015.
Arguments were brought forward that the blanket immunity from criminal prosecution to juvenile below eighteen years need to be withdrawn in cases of involvement of juveniles in heinous offences like murder, gang rape, acid attacks. The recent amendment reduced the age of juvenile offenders who can be tried as adults to sixteen years.
On this the Supreme Court noted Parliamentary decisions should not be carried out just in emotion and anger. Will the political class reconsider and legislate a better Juvenile Act ?.
There are fifteen year old teens also who are accused of grievous offences like rape, fourteen years olds are committing murders. Punishment should be reformative not retributed especially in the purview of juveniles in conflict with law. Except in case of rare offences democracies in general make laws which give punishment to the guilty not as means of exacting revenge but in order to make the guilty pass through a correctional phases. In our opinion criminality is much more important criterion than age of offender, thus the amendment should be in terms of non-applicability of the juvenility condition in cases like rape, murder, waging war against the State and so on and so forth. There are certain flaws in the bill, provision that if children are engaged in militant activities, their punishment would be maximum seven years. It sends a shiver down the spine to imagine notorious terrorists who unflinchingly committing genocide can be set free if they are not majors! Another aspect which comes to minds is how important and effective the age criteria introspect further? For example, if a family plots revenge against another family or against their distant kin with whom they bear deep rooted antipathy, they might decide to make their fifteen year old the perpetrator of the crime, cunningly being well aware that he or she will be released before eighteen. Thus, to conclude law has loopholes and justice is not served in all cases.
Putting aside the scepticism and controversies, we would like to bring forth the decisions regarding determination of the age of juvenile in conflict with law by citing some landmark judgements which in span of over three decades were overruled and modified until the Juvenile Justice (Care and Protection of Children) Act 2015 came into existence.
In the case of Krishna Bhagwan v. State of Bihar, the full bench of Patna High Court observed that to determine the age of juvenile for the purpose of this trail under the Juvenile Justice Act, the relevant date should be the date on which the offence is committed and not the date on which the juvenile in conflict with law is brought before court.
Thus when the juvenile accused is within the age limit prescribed by the act, he or she should be tried in a Juvenile Court (now Juvenile Justice Board under Juvenile Justice Act 2015) despite the fact that he exceeds that age limit at the time when he was brought before the competent court for trial.
The Supreme Court reiterated the similar view in Bhola Bhagat v. State of Bihar and further explicitly specified that it is immaterial if the juvenile exceeds the prescribed age on the day.
But this decision was later overruled by the Supreme Court in Arnit Das v. State of Bihar, in which it held that the crucial date to decide the issue whether a person is juvenile or not is the date when he or she is brought before the competent authority and not the date of commission of the offence.
Presently around forty two percent of the Indian population is below eighteen years. The recent times have witnessed some of the most brutal and heinous crimes being perpetrated by the children.
The Madhya Pradesh High Court in its decision in Sunit and Anr. v. State of ???? clarified that the court cannot leave determination of the age of juvenile entirely on the evidence of juveniles but it is required to make an inquiry suo motu.
Apart from age of adulthood, heinousness is also vital component in juvenile delinquency. Heinous crime is defined as a crime that carries punishment of seven years of imprisonment or more. Serious white collar crimes liable to long term imprisonment like forgery, sedition though not violent (not against the person) are also considered adult heinous offences.
The Juvenile Justice (Care and Protection of Children) Act 2015 vests the Juvenile Justice Board with the power to make a preliminary assessment of the maturity of a child above the age of sixteen years who has committed a heinous offence and the Children’s Court will infer whether he or she is to be tried like an adult. Scientific research strongly indicate ‘maturity’ measured through risk assessment abilities is linked to the growth of the brain which in turn depends upon the age of the individual. Hence the debate is whether the legislators should go by the gravity of the heinous crime or do we let our emotions rule our practical thinking.
It is pertinent to note that between 2007 and 2012 the number of heinous crimes such as rape and murder accounted for only eight percent of the total crime committed by minors. Seventy-two percent of the crimes was linked to theft, burglary and causing hurt. Though there is not a rise in heinous crimes by juveniles as such, there has been an increase in the gravity of the heinous crimes committed by them.
An overwhelming thirty-three thousand juveniles in the age group of sixteen to eighteen years were arrested in 2018 alone, on serious charges like rape and murder, according to a research study conducted by Sibnath Dey in his Child Safety, Welfare and Well Being: Issues and Challenges. Of course the numbers continue to rise at an unprecedented rate, which is why we need to seriously address the question - whether juveniles should be punished like adults for committing heinous crimes?
However, according to the new amended act, no juvenile would be imprisoned immediately, they will be sent to Borstals – correctional institutions for the long term treatment of juvenile offenders. It is a halfway house, as it is intended to prepare a person for imprisonment after completion of twenty-three years of age in a regular jail, after which there will be a review of punishment.
Lowering the age of juveniles is said to be a measure founded on the rights of victims, which is as important as the rights of juvenile delinquents. This is a flaw in the amendment, discriminating sixteen to eighteen years olds, as cases of crimes like rape and murder have been on a steady rise by juveniles below sixteen years also. It is not uncommon in India to escape from conviction by displaying false certificates and reducing age, thereby capitalising on the loopholes of law.
Recently false, exaggerated facts have been fabricated by the media, trying to portray the juvenile offenders as demonic perpetrators and the general notion, that punishment for an offender is justice to the victim in any criminal cases, has become an important argument for harsh punishments by advocates of the victims. This differential treatment sparked criticism and was contested that this provision leads to violation of Article 14 of the Indian Constitution, that is Right to Equality.
Awarding punishments has other socially relevant intentions like reform, rehabilitation of the criminals, establishment of the rule of law and protection of the citizens. Social legislations are made to deal with issues and problems of the society as a whole. A singular, horrific incident may provoke action but cannot determine details of legislation. The judicial system needs to look beyond the views of the victims of concerned case and decide on basis of legal positions and social consequences. What is necessary is that there must be a nexus between the basis of classification and the object of the act under consideration.
According to the Juvenile Justice (Care and Protection of Children) Act 2015 juvenile is defined under section 2 (35) as child below the age of eighteen. The Act provides for uniform age for both boys and girls. This Act provides remedies and caters justice to two categories of children, ‘child in conflict with law’ under section 2 (12), where a child has committed a crime and has not attained eighteen years of age and child in need of care and protection under section 2 (13). We are going to discuss the first category where a juvenile has committed crime and what is the procedure laid by the legislature for them.
The law has laid down for the State to establish and constitute Juvenile Justice Board to treat child in conflict with law in every district. This Board should consists of a Judicial magistrate of first class or Metropolitan Magistrate and will be designated as the Principle Magistrate accompanied with two social workers, one of whom should be a woman. Such social workers appointed must have been actively involved in social activities such as education, health and welfare for a minimum period of seven years. The Board is constituted under section 4 of the Act. The powers of the Juvenile Justice Board are provided under section 8.
The child in conflict with law may be produced in front of a member of the Board if the Board is not sitting. The Board may also act in absence of some of the members and no order passed shall be term invalid due to absence of some of its member. The final disposal of the case must be made in front of at least two members of the Board along with the Principle Magistrate. In absence of a majority opinion, the opinion of the Principle Magistrate shall prevail.
According to the Act, for the trial of juvenile in conflict with law a specific course of action must be followed. A child when apprehended by police, is to be handed over to the special police officer or the unit designated to keep the child in custody. An immediate report is to be made and sent to the member of the board. The Act allows the State Government to make rules consistent with the Act in regards for persons or registered voluntary organization through which the child is to be produced in front of the Board along with the manner in which such child may be sent to an observation home or place of safety.
The Act has provided a time limit for the inquiry, that is within a period of four months from the date of first production of the child in front of the Board, though the time limit is flexible and can be extended by the Board after citing the reason in writing. If the offence committed by the child is of petty nature the board through summary proceedings shall dispose the case as per the procedure prescribed under the Code of Criminal Procedure, 1973.
If the offence is of heinous nature, committed by a child who has completed or is above the age of sixteen years then the board shall conduct a preliminary assessment with regards to the child mental and physical health to commit such crime and his ability to understand the consequences of the offence.
When satisfied that the child had the ability to commit such crime, the Board will pass an order for a trial of the said child as an adult and may order to transfer this case to the Children’s Court.
Bail is also obtainable under section 12 of the Act and under section 438 and 439 of Criminal Procedure Code, though the merit or nature has no relevancy. It is interesting to note that the law has provided that no child in conflict with law shall be sentenced to death or life imprisonment without the possibility of release for any such offence. The law also prohibits joint trials with adults where one party is child and the other is an adult. An appeal against both conviction as well as acquittal of an adult offence can be made in any ordinary law courts.
Child found in conflict with law are dealt with according to the degree of the crime committed. For lighter crimes, the delinquent may be released after admonition, while more heinous crimes calls for the custody of the delinquent in special schools. Some situations calls for probation by the parents of the delinquent or any other person seem fit for it. Section 18 of the Juvenile Justice (Care and Protection of Children) Act 2015, lays down several orders that can be passed by a Board for the delinquent child.
1. Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit:
India being a signatory to this convention had a legal and moral obligation to
enact the laws conforming to the international norms. In pursuance of this, it
enacted the Juvenile Justice Act 1986. It was later repealed and replaced by
Juvenile Justice (Care and Protection of Children) Act 2000, which was also
replaced by Juvenile Justice (Care and Protection of Children) Act 2015.
Despite these systematic efforts to tackle juvenile delinquency, it still remains a menace worldwide. The problem is even consistent in developed countries, being more severe in the United States compared to European countries.
In the United States of America, each states has their own Juvenile Court, which acts as a specialised unit in the State Judicial System. The working of a Juvenile Court there is relatively simple and informal. The police at first takes custody of the juvenile delinquent and it has lot of discretionary power regarding the release and custody of the offender. The police contacts the juvenile court and a person appointed by the court takes custody of the juvenile.
Then the police interrogates the offender and takes his fingerprints or photographs. After the trial, if he is released under probation, he is placed under the care of probation officer who is responsible for finding a home, school or employment for the delinquent. If he violates the conditions for probation he is sent to Children Home by an order of the court. Sometimes waiver of a juvenile leads to his trail by an adult court. The age limit to determine juvenility varies from state to state. In most of the states the maximum age limit is seventeen years.
While the minimum age varies, anyone above thirteen years can be tried as an adult if he or she has a record of breaking the law or commits a serious crime. Children between fifteen to sixteen years can also be tried as adults for certain offences including murder, sexual assault, armed robbery with firearm. Previously many juvenile offenders have been executed under capital punishment, but in 2005 Supreme Court of the United States in Roper v. Simmons held it is unconstitutional to impose capital punishment for crimes committed while under the age of eighteen years.
In Graham v. Florida, the Supreme Court held that a state is not required to guarantee individual freedom to a juvenile offender convicted of a non-homicide crime.What states must do, however, is to give defendants some meaningful opportunity to obtain release based on demonstration of maturity and rehabilitation.
Unlike India, which deals with juvenile delinquency under the constriction of the Indian Penal Code, the English Criminal Justice deals with such cases outside the framework of the criminal law. Children between ten to eighteen years are considered criminally responsible for their actions and a separate youth court tries them. They may be tried as adults for a limited number of serious offences such as child sex offences, sexual assault and prohibited firearms offences.
If the juvenile is jointly charged with an adult, both will be tried in the adult court. They can also be tried in a crown court, if found to be necessary in the interest of justice. If found guilty of murder, the juvenile offender will be sentenced to detention at her majesty’s pleasure.
The Youth Criminal Justice Act provides for criminal justice to young persons aged between twelve to eighteen years in Canada. Custody sentences are reserved for violent and serious crimes but cannot exceed the maximum punishment that can be awarded to adults for the same offence. This implies that for serious offence, juveniles can be tried as adults. In Germany, children between fourteen and eighteen years are tried in special youth courts.
It is considered that children in this age bracket understand the actions committed and their consequences. A juvenile offender cannot be imprisoned for a period more than ten years or less than six months, although exception lies if the youth is considered a very dangerous criminal and a threat to public safety. Then he can be imprisoned indefinitely.
Unlike the United States, France does not have the system of transfer of juvenile delinquents to adult courts, but French Judges can award harsher punishment depending on the severity of crime committed. Young offenders aged sixteen to twenty-two in Netherlands can be tried as either adults or juveniles under the adolescent criminal law.
In Norway, the Municipal Juvenile Welfare Committee deals with criminal cases of young offenders between fourteen and eighteen years of age. Under the Child Welfare Act 1953, a delinquent child is allowed to stay at home. The Child Welfare Committee visits the youth’s home from time to time and ensures that the delinquent stays away from crime. In recent years there has been a greater emphasis on medico-psychological method of treatment of juveniles.
Written By: Shishank Shaw, Jishnutosh Majumdar & Nilanjan Bose
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