The term Juvenile justice as usually narrowly to refers to the term
adjudication, reformation and rehabilitation process after a juvenile has
committed an act which is against the law. In its wider sense, it includes
preventive measures before the advent of delinquency.
In India that Juvenile Justice Act of 2000 was the wider field of prevention
of Delinquency by bringing in children in need of care and protection within
its ambit as well as making provisions for dealing with children who are
alleged or found to have committed an offence. This particular area however
examines the theory and practice of the laws relating to the juveniles who
have committed offence and makes only contextual references to the
provisions dealing with the juveniles in need of care and protection.
Children who commit offences in India have long been recognised as different
from adults who commit offences even after the advent of British laws.
Separate punishments were prescribed for children who commit offences under
the Hindu law as well as the Muslim law. The modern history of Juvenile
Justice in India begins from the year of 1850 when the first law was enacted
dealing with children under the age of 15 years who committed Petty offences
or were found vagrant.
It began modesty by providing for binding such children's over as
apprentices to learn some trade but some expanded by establishing separate
residential facilities for reforming children. Children courts followed not
long after the separation of children from adult offenders during
adjudication. These courts came into their own view and perspective with the
criminal justice system with the passing out the first uniform legislation
for the whole of India to provide for care protection reformation and
rehabilitation of delinquent and neglected children and to prohibit the
sending of children's to prison or the use of jail and police station under
History Of The Death Penalty
The concept of or the history of death penalty for juvenile offender was
basically started in the year 1642, Thomas Granger who was 16 years of age
who was hanged in Plymouth Colony, Massachusetts, for having sexual
interaction with a mare, a cow and some goats. Where this incident stands as
a first documented execution of a child offender and the debut for the death
penalty of a juvenile. Where this practice would end 363 years later after
the deaths of at least 366 child offenders people under the age of 18 at the
time of their act or the crime is taken place.
Where in the year of 1786 the youngest girl to be executed was 12 years old
Hannah Ocuish, a Native American Child who was hanged in Connecticut for
murdering a 6 year old white girl. James Arcene, a Cherokee who was the
youngest ever to be condemned. He was hanged in Arkansas in the year 1885
for a murder - robbery he helped commit when he was 1- years old. The
execution came 13 years later. Abolitionists asserted tht the penalty was
meted out to a fractional number of teens who for reasons of discrimination,
caprice, fear, rage , tough on crime politics or some inchoate loathing were
punished far more than scores of other offenders who committed equally
horrific or worse crimes.
By 1972, the U.S Supreme Court ruling in Furman v. Georgia largely agreed.
Death sentences for all age group were imposed so arbitrarily so wantonly
and freakishly as Justice Potter Stewart put in that they violated the
Eighteen Amendment, the court held. The ruling in effect struck down all
death penalty statutes as they then existed, but it allowed the estates an
opportunity to craft new, less discriminatory laws. More than 30 states
enacted statutes that would pass judicial muster. The modern era of the
death penalty began. By 1974, teenagers once again arrived on the death row.
The Simmons ruling spread the lives of 72 Juvenile Offenders still on death
row at the the time. There are few decisions which came later in
implementation of this also.
Problems In Junvenile Deliquency
The Problem of juvenile delinquency is not new. It occurs in all the
societies simple as well as complex i.e wherever a relationship us affected
between a group of individuals leading to maladjustments and conflicts. As
India is a developing country the problem of juvenile neglect and
delinquency is considerably low but gradually increasing according to the
NCRB in the recent report. But when we take a report on whole the crimes
committed by juveniles to total crimes reported in the country has increased
in last few years.
Considering the magnitude of the problem and issues involved, analysis
indicates that the number of factors for neglect and delinquency are mostly
common in nature, based on socio - economic and psychological reasons.
Poverty, broken families, family tensions, emotional, breakdown of social
values and joint family system, the influence of media besides the
unhealthy living conditions of slums and such other conditions explain the
phenomena of juvenile delinquency. The neglect of children by their parents,
family, society and the nation create detrimental effect on their physical,
mental growth and over all developments.
- Whether a particular punishment
is cruel or unsual how does the court verify?
- Is this a subjective judgment based on the judge's personal beliefs,
or are there objective factors to be considered?
While taking any act into consideration or in account of
question any act is cruel or unusual where we need observe the involvement
of a juvenile in cases. Where the National Crime Records Bureau (NCRB) data
clearly states the involvement of the juveniles in committing heinous crimes
such as Murder has increased by over 86 percent between the year 2008 to
2014 and while the incidents of rape by juveniles had increased by 142
percentage during the same time.
In all, juveniles are responsible for only
about 1.2 percentage of the total crime committed in the country last
year. Where in act where the first thing which we need observe is that the
‘AGE'. Determining the age of the person it will be considered whether the
person is a juvenile or not, where this stands a as an initial process. So,
to have an efficient process in place of determining the age who has the
ultimate power is it the Juvenile Justice Board or the Court. Where in
regard to this juvenile delinquency the Karnataka High Court has said that:
Where in referring to the case of Sri Puneet v/s State of Karnataka
The Sessions Court has to enquire into the claim regarding the age of the
accused as to whether the matter is triable by the Juvenile Justice Board or
by this Court in view of Section 14, 15 and 18 of the Juvenile Justice Act.
In the said order, the learned Sessions Judge has in fact considered the age
of the boy, under the provision of Section 34 of the Juvenile Justice Act
and after perusal of the Aadhaar Card and also the Birth Certificate. Both
shows that the date of birth of the accused as 28.04.1999. Therefore, the
trial Court has come to the conclusion that, the accused has completed the
age of 16 years and he was below the age of 18 years and he was a minor as
on the date of the alleged incident.
Though the Sessions Judge has come to the conclusion that the accused was
above the age of 16 years and below the age of 18 years, but without
referring to the provisions of Sections 15 and 18 of the Juvenile Justice
Act, he himself has simply stated that the accused has committed the heinous
offence and it is purely conferred on the Special Court to decide the age
under section 34 of the Juvenile Justice Act, and therefore, the Sessions
Court has got jurisdiction to proceed with the trial of the case.
The question arises that whether this court to have the meticulous look at
Sections 15 and 18 of the Juvenile Justice Act to consider whether the
Sessions Judge has got any power to pass such an order holding that the
offence is heinous in nature and that the accused can be tried by the
Sessions Court itself. Sessions Judge has got any power to pass such an
order holding that the offence is heinous in nature and that's the stands as
the only ground to try the matter in Sessions Court.
For the purpose of analysing and coming to a conclusion to pass order under
section 15 of the Juvenile Justice Act, the Board has got ample power to
take the assistance of an experienced psychologists or Psycho-social workers
or other experts. It is also made clear that, if the Board is satisfied on
the preliminary assessment and arrived at a conclusion that the Board itself
can dispose of the case by following the procedure to try the accused before
the Board itself as contemplated under the provisions of the Code of
Criminal Procedure (Cr.PC). and the Juvenile Justice Act. In such on
eventuality, the Board shall not send the Juvenile to the Sessions Court for
trial. Therefore, it is crystal clear that such power is exclusively vested
with the Board to pass such an order.
So, in this case the HC has clearly stated so it clear that there is no any
judgments or consideration of the acts by judge's person views or beliefs
Only the Juvenile Justice Board has the power to decide whether an offence
committed by a juvenile is heinous.
Whether Juvenile Courts has the power to provide Capital Punishments to the
Juveniles and whether Death Penalty is the only punishment should be given
in case of heinous crimes?
Children are not capable of adults for their action. In references of the
Death Penalty context, that principal has caused many different views in
which the AGE plays a major role as what age is too young for someone to
be subject to execution. International Human Rights law has long prohibited
the use of the death penalty against people who were younger than age 18 at
the time of the offense.
While just considering the International Laws into consideration where the
U.S Court states that that proper cutoff should be at age of 16, but the
states gradually applied more stringent standards to avoid conflict with
other areas of the law where children were treated differently. By 2005,
almost 30 states had either abolished the death penalty of all offenders or
at least for those under the age of 18 years.
Where the question arises before us is that whether even the age of 18 is
too young to assume full adult accountability for a serious/heinous crime.
Some have suggested that 21 years would be more appropriate age when it
comes the matter of both because of the rights and responsibility conferred
by the society at that age and because new brain science shows that critical
areas of the brain relating to judgement, major decisions, and consequential
thinking do not mature until the mid-twenties. The Court's ruling or the
Courts interpretation on the application of the death penalty to juveniles
has spurred other decisions regarding the use of life without parole for
this same group.
Initially, juvenile courts had enjoyed broad discretion in deciding when to
waive cases to criminal court. However, waiver decisions were not
consistent across States, and legislatures began to reform the process by
standardizing judicial decision making. As we have already discussed that
JJB has the whole authority to decide on a particular act and where that
juveniles were entitled to a hearing, representation by counsel, access to
information upon which the waiver decision was based, and a statement of
reasons justifying the waiver decision. The court also laid out a number of
factors for the Juvenile Judge need to make a note of it while taking the
decisions on punishments
- The seriousness and type of offense and the manner in which it was
committed plays a major role and where this should be taken to
- The sophistication and maturity of the juvenile as determined by
consideration of his or her homelife, environmental situation, emotional
attitude, and pattern of living.
- The juvenile's record and history.
- The prospects for protecting the public and rehabilitating the
Juveniles were thus guaranteed certain rights, but they still potentially
faced the same punishments, including capital punishment, as adults in the
criminal justice system.
Subsequently, The Indian Parliament has took a good move in passing a bill
in which it clearly states juveniles between Age 16 and 18 years of age to
be tried as adults for heinous crimes like rape or murder. At present, those
under 18 can be sentenced to a maximum of three years in a reform facility.
The above bill was passed as there was the necessity of the Amendment. The
move to change the law gathered momentum after the youngest convict in the
notorious 2012 Delhi gang rape was released from detention. There was a
unique contribution by the parents of the victim to change the law.
Jyoti Singh, a 23-year-old physiotherapy student, died after being brutally
raped by 5 men and one minor in a bus in the year of 2012.The attack sparked
a huge public outcry in India and forced the authorities to introduce tough
new laws and to make amendments to deal with crimes against women.
Four adult convicts in the case are appealing against death sentences. A
fifth died in prison. But the youngest of her attackers, who was 17 at the
time of the crime, was sentenced to three years and was released.
During his trial in a juvenile court, there were calls to try him as an
adult and protests were held over the weekend against his release. Since his
release, the rapist has been housed with a charity because of fears over his
safety. Where an appeal was being filed in the Supreme Court in regard to
The Supreme Court dismissed an appeal to stop his release, saying it
shared the concern of most citizens but its hands were tied by the law.
The new law will not apply to the youngest 2012 rapist, but it will be used
in future cases involving juvenile offenders above 16 years. Authorities
said that the number of juvenile crimes has been increasing last year,
38,065 cases were registered, including many cases of rapes, murders and
acid attacks which falls to the category of heinous crimes.
Where on the other hand we have the critics say that India is a signatory to
the UN Convention on the Rights of the Child which mandates that all
children under the age of 18 be treated equally, and say the new law will
violate the convention.
Hon'ble Supreme Court Justice Madan B Lokur, who was serving as a Chairman
of the Supreme Court Juvenile Justice Committee, he said that juvenile
convicts cannot be handed down capital punishment in every case pertaining
to heinous crimes such as rape and murder.
He said judgement in such cases had to be delivered on the basis of
evidence. It is not that for every murder, for every rape, the only
penalty is death penalty. I mean, we are not savages in this country, the
So, to taking a note of above stated consideration where we can take
decisions as Capital Punishments in case of Juvenile Offender only based the
person happens to be 17 years old or close to 18 years old, commits a
heinous crime - therefore he must get the death penalty, it cannot be like
that. Where it is a note that we need to still work on the basis of evidence
and come to some conclusion,.
Overall, we can draw a conclusion that to take decisions for Capital
Punishment is difficult and where this is not the only answer for all the
heinous crimes. We can adapt the theory of Deterrence and Retribution for
the Young Offenders in more effective manner.
Juvenile crimes are a harsh reality, and to reduce them, the Act must be
effectively implemented, along with that awareness must be created. The
approach and the thinking of the essential players in the system, like the
police needs to change from punishing to reforming the juveniles in conflict
There are psychological, biological, physiological and personal
factors which are responsible for juvenile delinquency, along with other
factors such as peer pressure, physical disability, dissatisfaction with
school. Family is the one of the oldest and most important units of society,
it is responsible for the socialization of the child. A child learns from
his family the difference between good and bad, right and wrong, appropriate
Many experts and activists viewed prior to 2012 case and responses as
creation of media sensationalisation of the issue, and cautioned against any
regressive move to disturb the momentum of juvenile justice system. However,
some section in the society felt that in view of terrorism and other serious
offences, JJ Act should tighten up the laws include punitive approaches in
the existing Juvenile Justice Law, which so far is purely rehabilitative and
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Publications, Delhi, 1999, chap. The Juvenile Court and Delinquency , p.
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Regency Publications, p.144-145.
- Burt, Cyril(1925): The Young Delinquent, London, The University of
London Press, p.viii.
- S. K. Bhattacharya, 'Juvenile Delinquency – Problems and
Perspective, Social Defence, Volume 16, Issue 61, Dated (July 1980)
- Adenwalla, Ms. Maharukh : Child Protection and Juvenile Justice
System for Juvenile in Conflict with Law, Childline India Foundation,
December 2006, p.79.
- Agarwal, Justice B.D., Guwahati High Court, NGOs – Legislative
Governance Needed, AIR June 2008 – Journal 84.
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Delinquency : A Comparative Study, 1964, p.54.
- BBC World Service, Saturday 24th Feb., 2001.
- Dutta Shaswata, Theories of punishment – A Socio-Legal View, Legal
Service India.Com, available at http://www.legalserviceindia.com/articles/pun_theo.htm.
- The Times of India, Juvenile News, 25th September 2011, available at
- Juvenile Crime gets uglier, Sakaal Times, Sunday April 22, 2012,
available at http://www.sakaaltimes.com/20120422/5443066693418512474.htm
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Juveniles and Age (status) offences http:// criminal.findlaw.com/crimes/juvenile-justice/juveniles-and-ageoffences.html.