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[DETERMINATION OF AGE IN JUVENILE JUSTICE ACT] November 24, 2017

DETERMINATION OF AGE IN JUVENILE JUSTICE ACT


KAPIL CHAUDHARY

SEMESTER VII, ROLL NO. 274

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

Abstract

The brutal assault and rape incidence of 16th December 2012 in Delhi in which one of the
accused was alleged to be juvenile raised a fresh debate on reducing the age of juvenile in India.
Although 2000 Amendments in the Juvenile Justice (care and Protection of Children) Act after
debate in Parliament and in compliance to International obligations raised age of juvenile form
16 for male to 18 years. Issue reached the Apex Court of India in the form of bunch of writ
petitions asking for complete struck off the Act of 2000 to changes in various provisions to
enhanced punishment to juvenile in conflict with law.

This paper deals with differet arguments relating to the various amendments done form time to
time, human rights aspects of children recommendations for decreasing the crime and its impact
on the society.

Key Words: Juvenile in conflict with law, Beijing Rule, Juvenile Justice Delivery System, Rights
of Child, Protection, Treatment, Development, Rehabilitation, Mens Rea.

Introduction

Brutal assault and rape incidence of 16th December 2012 in Delhi in which one of the accused
was alleged to be juvenile raised a fresh debate on reducing the age of juvenile in India.
Although 2000 Amendments in the Juvenile Justice care and Protection of Children (JJCPC) Act
after debate in Parliament and in compliance to International obligations raised age of juvenile
form 16 for male to 18 years. There is yet another consideration which appears to have weighed
with the worldwide community, including India, to retain eighteen as the upper limit to which
persons could be treated as children. In the Bill brought in Parliament for enactment of the
JJCPCA 2000, it has been indicated that the same was being introduced to provide for the care,
protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for
the adjudication of certain matters relating to and disposition of delinquent juveniles. The
essence of the JJCPCA 2000, and the Rules framed there under in 2007, is restorative and not
retributive, providing for rehabilitation and re-integration of children in conflict with law into
mainstream society.
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The age of eighteen has been fixed on account of the understanding of experts in child
psychology and behavioural patterns that till such an age the children in conflict with law could
still be redeemed and restored to mainstream society, instead of becoming hardened criminals in
future. There are, of course, exceptions where a child in the age group of sixteen to eighteen may
have developed criminal propensities, which would make it virtually impossible for him/her to
be re-integrated into mainstream society, but such examples are not of such proportions as to
warrant any change in thinking, since it is probably better to try and reintegrate children with
criminal propensities into mainstream society, rather than to allow them to develop into hardened
criminals, which does not augur well for the future

Arguments In Favour Of Reducing The Age Of Juvenile In India

That it was necessary for the provisions of Section 2(k), 2(l) and 15 of the JJCPCA, 2000,
to be reconsidered in the light of the spurt in criminal offences being committed by
persons within the range of 16 to 18 years, such as the gang rape of a young woman
inside a moving vehicle on 16th December, 2012, wherein along with others, a juvenile,
who had attained the age of 17 years, was being tried separately under the provisions of
the JJCPCA, 2000.
That in view of the provisions of Sections 15 and 16 of the JJCPCA, 2000, children, as
defined in the above Act, were not only taking advantage of the same, but were also
being used by criminals for their own ends.
That after being awarded a maximum sentence of three years, a juvenile convicted of
heinous offences, was almost likely to become a monster in society and pose a great
danger to others, in view of his criminal propensities.
That, under Article 21 of the Constitution, every citizen has a fundamental right to live in
dignity and peace, without being subjected to violence by other members of society and
that by shielding juveniles, who were fully capable of understanding the consequences of
their actions, from the sentences, as could be awarded under the Indian Penal Code, as far
as adults are concerned, the State was creating a class of citizens who were not only
prone to criminal activity, but in whose cases restoration or rehabilitation was not
possible.
That the provisions of Sections 15 and 16 of the JJCPCA, 2000, violated the rights
guaranteed to a citizen under Article 21 of the Constitution and were, therefore, liable to
be struck down.
That the provisions of Section 19 of the Act, which provided for removal of
disqualification attaching to conviction, were also illogical and were liable to be struck
down.
That in order to prevent repeated offences by an individual, it was necessary to maintain
the records of the inquiry conducted by the Juvenile Justice Board, in relation to juveniles
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so that such records would enable the authorities concerned to assess the criminal
propensity of an individual, which would call for a different approach to be taken at the
time of inquiry.
That the Supreme Court to give a direction to the effect that the Juvenile Justice Board or
courts or other high public authorities would have the discretion to direct that in a
particular case, the provisions of the general law would apply to a juvenile and not those
of the Act.
That the Juvenile Justice Board should be vested with the discretion to impose
punishment beyond three years, as limited by Section 15 of the JJCPCA, 2000, in cases
where a child, having full knowledge of the consequences of his/her actions, commits a
heinous offence punishable either with life imprisonment or death.
That such a child did not deserve to be treated as a child and be allowed to re-mingle in
society, particularly when the identity of the child is to be kept a secret under Sections 19
and 21 of the JJCPCA, 2000.
That without disturbing the other beneficent provisions of the JJCPCA, 2000, some of the
gray areas pointed out could be addressed in such a manner as would make the JJCPCA,
2000, more effective and prevent the misuse thereof.

Arguments Against Reducing The Age Of Juvenile In India

Appearing for the Union of India, the Additional Solicitor General (ASG) strongly
opposed the submissions made on behalf of the Petitioners to either declare the entire
JJCPCA, 2000, as ultra vires the Constitution or parts thereof, such as Sections 2(k), 2(l),
15, 16, 17, 19 and 21.
That Parliament consciously fixed eighteen years as the upper age limit for treating
persons as juveniles and children, taking into consideration the general trend of
legislation, not only internationally, but within the country as well.
That the JJCPCA, 2000, was enacted after years of deliberation and in conformity with
international standards as laid down in the U.N. Convention on the Rights of the Child,
1989, the Beijing Rules, 1985, the Havana Rules and other international instruments for
securing the best interests of the child with the primary object of social reintegration of
child victims and children in conflict with law, without resorting to conventional judicial
proceedings which existed for adult criminals.
He submitted a chart of the various Indian statutes and the manner in which children
have been excluded from liability under the said Acts up to the age of 18 years. In most
of the said enactments, a juvenile/child has been referred to a person who is below 18
years of age.
It was urged that the fixing of the age when a child ceases to be a child at 18 years is a
matter of policy which could not be questioned in a court of law, unless the same could
be shown to have violated any of the fundamental rights, and in particular Articles 14
and 21 of the Constitution.
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Problems

One of the greatest problems facing the court in determining the ages of juveniles is the non
availability original birth certificates for most of the accused juveniles facing trials before the
court. Accused juveniles have often failed to tender their birth certificate to the court when it is
requested. What is usually produce instead, is a sworn affidavit whose validity is sometimes
questioned by the court as it is normally acquired after the crime is committed. the stipulated
minimum age of criminal responsibility pursuant to Section 70 of the Child Rights Act 2007.
Even though a birth certificate was presented by the defence counsel before the court to drum up
support for his application, the prosecution had to challenge it on the grounds that the birth
certificate was acquired only after the crime was committed, and demanded an administration of
a medical test by a practitioner or the Registrar of birth and deaths be summoned to validate the
age. The process has however proven to be slow, and has consequently led to the adjournment of
matter severally. The age of this accused person is yet to be determined up to the time of writing.

Whereas some juvenile offenders have purported a missing birth certificate before the court,
others have in some occasions claimed to have been born in the provinces where their birth
registers can only be traced. In such cases, since the juvenile cannot produce evidence
confirming his or her age, the Registrar has sometimes demanded the provision of logistics
including transportation fare, cost of accommodation, and per diem to facilitate his travel to the
provinces for a retrieval of the birth registration certificate or to confirm the age of the accused.
In another matter involving a juvenile charged with murder, the prosecutor challenged the age of
the accused which was 16 even though her birth certificate presented before the court indicated
same.

Impact

The slow process of determining the ages of juveniles has had lots of negative impact on the
adjudication of matters before the juvenile court in the country, and hence on the juveniles fair
trial. In the first place, it undermines the very aim which underpins every juvenile justice system
which is the reformation and rehabilitation of the juvenile on one hand and the desirability of
promoting their reintegration and their assumption of a constructive role in their society on the
other. Besides the negative impact the lengthy detention of juveniles together with adult
prisoners would have on the juveniles, delays as a result of age determination has also had wider
ramifications on the fair trial of the accused juvenile. It has often led to prolonged trials of
juveniles thus undermining the principle of expeditious trial enshrined in both domestic and
international human rights laws governing the trial proceedings involving not only children but
adults as well.

It is a general consensus internationally that for an accused juvenile, the time between the
commission of the offence and the final response to the act should be as short as possible. This is
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because the longer the period, the more likely it will be that the response will lose it desired
pedagogical impact and the more likely the child will be stigmatized. Unfortunately, the juvenile
court and its administrators in Freetown loses sight of this, as there are several matters involving
juvenile with contentious age, that has been adjourned with an undisturbed frequency, and which
takes months before the actual commencement of trials, for merely waiting for ages of such
juveniles to be determined.

There are instances in which the delays in these proceedings can be squarely imputed to the court
officials including the presiding magistrate who accords the prosecution an unfettered
opportunity to drag the matter further even when the age of the juvenile has been ascertained by
legally assigned medical personnel in the person of the police doctor. This begs the question as
to whether court seeks to adequately protect the fair trial rights of the child in conflict with the
law. A glaring example of this is a case involving a boy who was accused of wounding with
intent. In spite of the presentation of medical report after a long delay from the police doctor, as
requested through an application from the prosecution; which indicated that the accused was
between the age of 16 and 17, and therefore eligible to be tried in the juvenile court, the
prosecution requested for a second medical report ascertaining the age of same. This again took a
long time and when it was clear to the magistrate that the report was not forth coming, he ruled
that the accused was eligible for trial at the juvenile court.

The presiding magistrate granting of another application from the prosecutor to have the age of
the juvenile determined for the second time, even when the first one has been done by a legally
assigned personnel clearly justifies any assertion that the juveniles right to a speedy trial is
sacrificed in this occasion for merely an unwarranted procedural consideration. It is worse even
when one considers Cap 44s provision regarding the process; which clearly accords discretion
to the court to make an inquiry into the child or young persons age if it considers [it]
necessary. In essence, the presiding magistrate had the discretion to have even ruled at the
instant that the accused juvenile was eligible to be tried in the juvenile court without resorting to
an age determination process. Therefore, allowing another age determination exercise after a
presentation of the first medical report is not only superfluous, but also abrogates the childs best
interest principle as the juvenile continued pre-trial detention and attendance of court
proceedings would have had a deleterious effect on his wellbeing.

Child rights activists have also maintained that delay in the adjudication and disposition
processes impact negatively more on juveniles than their adult counterparts because of their
unique developmental characteristics.

Children and young persons have different sense of time from that of adults and also they have a
more reduced ability to foresee the future and cope with delays than adult. Hence they have the
propensity to easily miss the connection between a crime and the sanction as time between the
two elapses. Therefore any punishment they may receive after a lengthy delay in the trial process
would not have any meaningful changes in their behaviour for the better
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Additionally, the fact that juveniles awaiting results of their age determination are detained in the
maximum prison where there hardly exist educational or treatment programme for them, such
children, if they are school going children, risks losing very valuable time from their formal
education which in itself is a violation of the crucial rights of education, survival and
development.

Recommendation And Suggestions

Various measures to deal with juveniles in conflict with law have been suggested, which
requires serious thought and avoidance of knee jerk reactions to situations which could
set a dangerous trend and affect millions of children in need of care and protection.
It was submitted that any change in the law, as it now stands, resulting in the reduction
of age to define a juvenile, will not only prove to be regressive, but would also adversely
affect Indias image as a champion of human rights.
Having regard to the serious nature of the issues raised before the SC, Court had given
serious thought to the submissions advanced and had also considered the relevant extracts
from the Report of Late Justice J.S. Verma Committee on Amendments to the Criminal
Law, 2013 and are convinced that the JJCPCA, 2000, as amended in 2006, and the
JJCPC Rules, 2007, are based on sound principles recognized internationally and
contained in the provisions of the Indian Constitution and there is a definite thought
process, which went into its enactment.
SC further added that it cannot be questioned that children are amongst the most
vulnerable sections in any society. They represent almost one-third of the worlds
population, and unless they are provided with proper opportunities, the opportunity of
making them grow into responsible citizens of tomorrow will slip out of the hands of the
present generation.
International community has been alive to the problem for a long time.Added to this are
the factors of poor education and poor economic set up that are jointly the main attributes
of a juvenile in conflict with law, making it difficult for him to negotiate the legal
procedures.
Studies conducted by NCRB, Ministry of Home Affairs, reveal that poor education and
poor economic set up are generally the main attributes of juvenile delinquents.
Further, 56.7% of the total juveniles arrested fell into the lowest income category. SC
observed that such being the position, it is difficult to expect a juvenile in conflict with
law to know his rights upon apprehension by a police officer and if the precautions that
have been suggested are taken, the best interests of the child and thereby of society will
be duly served.
Therefore, it may be presumed, by way of a benefit of doubt that because of his status, a
juvenile may not be able to raise a claim for juvenility in the first instance and that is why
it becomes the duty and responsibility of the Magistrate to look into this aspect at the
earliest point of time in the proceedings before him. SC observed that we are of the view
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that this maybe a satisfactory way of avoiding the recurrence of a situation such as the
one dealt with.

Reference

1. Sharma R.N., Criminology and Penology, Surjeet Publications, New Delhi, 80 (2008)

2. Witerdyk A. John., Juvenile Justice System: International Perspectives, 266, (2004)

3. Government of India, The Juvenile Justice Act, 1986 and The juvenile Justice (Care and
protection) Act, 2000 Publication Division, New Delhi (2000)

4. Government of India (The Apprentices) Act, 1850 Publication division, New Delhi (1850)

5. Government of India, The Indian Penal code (1860) Publication division New Delhi, section
82, 83, (1860)

6. Government of India, The Reformatory School Act, Publication division New Delhi (1876)

7. Madras Children Act, (1920), Bengal Children Act, (1922) Bombay Children Act (1924)

8. Government of India, The Children Act, (1960) Publication division New Delhi (1960)

9. Andenwalla, Mahrukh, Child and Protection and Juvenile Justice System: for Juvenile in
conflict with Law, Children India Foundation (2006)

10. Government of India, The Juvenile Justice (care and Protection of children) Act, Publication
division, New Delhi (2000)