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Children and the criminal justice system

By Ved Kumari

The Juvenile Justice Act 2000 lays down a non-penal protective juvenile justice system for children alleged to have committed an offence. While the legislation itself is well-intentioned, there are many stumbling blocks in its implementation, chief among them the difficulty of establishing whether an offender is a child or not, in a country where millions do not have birth certificates or other records

The Criminal Justice System (CJS) consists of the legal provisions defining offences, providing punishment for those offences, procedures for investigation of those offences, prosecution and trial leading to conviction or acquittal of accused persons. Initially, CJS dealt with all persons committing offences. However, since 1920, special laws have been made for children committing offences and presently it is the Juvenile Justice (Care and Protection) Act, 2000 that prescribes different procedures for investigation and trial of cases where children are alleged to have committed an offence.

JJA 2000 is applicable to the whole of India, except the state of Jammu and Kashmir, and lays down a non-penal protective juvenile justice system for them. JJA 2000 applies to all children who have not completed the age of 18 years who may have committed an offence or may be in need of care and protection. This legislation was passed to bring the law in conformity with international legal provisions contained in the UN Convention on the Rights of the Child, the Beijing Rules for Administration of Juvenile Justice System, Riyadh Guidelines and the Rules Relating to Children Deprived of Liberty.

While the Indian Penal Code (IPC), the primary penal law in India, contains two special provisions in relation to children, and declares that nothing done by a child below the age of 7 is an offence and that all children above the age of 7 but below the age of 12 are presumed to have the mental capacity that makes a person liable for commission of an offence, JJA 2000 provides for no punishment but only corrective measures for all children found to have committed an offence. There are a few crucial aspects about the operation of this Act that need to be understood clearly.

The most important among them is to prove that the person in question was below the age of 18 on the date of the event. While there are many judgments declaring that in the absence of a birth certificate, the age as is recorded in the school registers before the occurrence should be taken as the true age of the person, there are problems where different ages are recorded in different schools or if the child has never been to school. In the absence of documentary proof, a court may send the accused for a medical examination to determine the age. The problem with medical examination is that it can at best provide only an approximate age within the range of 6 months, give or take a few days. In the case of Rajinder Chandra v State of Chhattisgarh, ([2002] 2 SCC 287) , the Supreme Court held that in case of doubt about the accused being a child or not on the date of offence, the benefit of doubt should be given to the accused child. It is crucial therefore that advocacy for children emphasise the importance of birth certificates that are important for so many other purposes too.

Another important question relating to children committing offences has been which legislation will apply in case of children committing serious offences. Long ago, in the cases of Rohtas (AIR 1979 SC 2037 ) and Raghubir (AIR 1981 SC 2037 ), the Supreme Court held that the juvenile courts alone would have jurisdiction to deal with cases of children committing offences punishable with death penalty or life imprisonment. Subsequently, similar questions arose in view of special legislations like the Narcotics Drugs and Psychotropic Substances (NDPS) Act or the Prevention Of Terrorism Act (POTA) which provide for special courts to deal with offences under these legislations.

While different high courts had taken different positions on the applicability of JJA 2000 to cases where the accused is a child, the Supreme Court has clearly held that JJA 2000 will apply to children alleged to have committed offences under those special penal legislations too (Madan Singh v State of Rajasthan, SC DOJ 2.4.05; Raj Singh v State of Haryana, [2000] 6 SCC 759).

Children arrested for any offence must be released on bail, unless the release will bring the child into contact with known criminals, expose the child to moral danger, or the release is against the interests of justice. It is also necessary to separate the cases of children from adults, in the event that they are charged with the offence together. The child’s case is to be dealt with by the Juvenile Justice Board (JJB), which consists of a magistrate and two social workers and decides the case by majority. Members of the JJB exercise the powers of a magistrate but are empowered to deal with all offences committed by children, including those triable only by a sessions judge.

In case the JJB finds that the child has committed an offence, it may pass any of the following orders: release after due admonition and counselling to him/her and the family; keep the child under the supervision of parents/guardian/probation officer/fit person/fit institution; impose a fine; send for community service; order group counselling; send to a special home. No child may be sent to death or imprisonment under any circumstance, or to prison in default of payment of fine or producing sureties. In case the child is above 16 years of age and commits a very serious offence, he/she may be ordered to be kept in safe custody. A child dealt with by the JJB does not suffer any disqualification attached to conviction for an offence.   JJA 2000 establishes another body, namely the Children Welfare Committee (CWC), to deal with children in need of care and protection. Members of the CWC also exercise the powers of a magistrate, while all of them are non-judicial persons. The CWC gives the appropriate orders for care, protection and rehabilitation of children in need of care and protection. There are numerous categories of children in need of care and protection, including children without parents, or without sufficient means of livelihood or a permanent place to live, the terminally ill, victims of natural disasters, war or civil strife, etc. The CWC may send such children to a children’s home, or place them with a fit person/institution.

JJA 2000 also prescribes that each police station should have a special police officer to deal with children -- whether arrested for committing an offence or in need of care and protection. These police officers should have special training to deal with children in a friendly manner.

JJA 2000 contains provisions for sponsorship of children to promote their care within family and institutional structures. It also makes provisions for the adoption and foster care of children covered under it, to ensure family care to children. Provisions for adoption of children under JJA 2000 are much wider than those under the Hindu Adoption and Maintenance Act. Under JJA 2000, any person can adopt any child irrespective of religion and the number or sex of natural-born children the adoptive parent may already have. Adoption under JJA 2000 was implemented as a measure to provide for the welfare and care of children and not as a religious act. The JJA also provides for shelter homes for temporary reception of children in need of urgent care.

The CRC has laid down the basic principles of decision-making to promote the best interests of children, and all decisions relating to children need to be guided by this consideration. The Beijing Rules direct that institutions should be used only as a last resort and only until community measures become available for children. As JJA 2000 was specifically made to implement India’s obligations under these and other international instruments, it is incumbent upon the authorities implementing this legislation to ensure protection and promotion of these principles.

While the legislation has been made with the best intentions, it has been criticised for its unprofessional and tardy drafting. Its implementation, also, has been piecemeal. The biggest problem faced in implementation is the absence of all-India data relating to the status of children in India. While Unicef provides some figures about the number of children below 18 years of age in India, such information is missing from the Census of India. There certainly are no figures available on the number of children in need of care and protection as defined under JJA 2000. In the absence of basic data relating to children, proper planning is not possible.

The largest number of cases that come before the high courts and the Supreme Court under this legislation and its predecessors has been for determination of age. In the absence of a birth certificate, a child may easily be excluded from the operation of the JJA and denied its care and protection. In 1990, Delhi police conducted a raid in the red-light area and took custody of around 111 children. They claimed that they were child prostitutes, children of prostitutes or children working in brothels. The next day, under pressure from NGOs working for the welfare of prostitutes, and opposition from the personnel of observation homes, the Child Welfare Board released all but seven of the children by determining their age through ‘facial examination’.  Ameena, the minor girl from Hyderabad married to a 60-year-old Arab, rescued by airhostess Amrita Ahluwalia, remained in the observation home in Delhi for over seven months before being sent back to Hyderabad. But her age was never properly determined and different courts kept referring to her as 10, 11 or 12 years old. In the case of Ramdeo Chauhan ([2001] 5 SCC 714 &2000 II AD [Cr] SC 801 ), the Supreme Court refused to determine the age of the accused on the basis of entries in the school register or medical evidence, both of which indicated him to be a child on the date of the offence, and confirmed the death penalty for the offence of murder even though one judge expressed a doubt as to whether the boy was a child on the date of commission of offence. The governor later commuted his sentence to life imprisonment on the recommendation of the National Human Rights Commission.

India is a young nation, with about 40% or more of its 1 billion people being children. Way back in 1974, the National Policy for Children declared that the nation’s children were its most important asset. We need to lobby for the allocation of necessary resources to develop this national asset to its full potential.

(Ved Kumari is Professor of Law, Faculty of Law, University of Delhi)

InfoChange News & Features, June 2007