Juvenility Determines Juvenile Justice : A Comparative Analysis - India And USA
Gaurav Mohunta, Advocate,
Punjab & Haryana High Court, Chandigarh
Date : 18/03/2019
Juvenility Determines Juvenile Justice : A Comparative Analysis - India & USA
INTRODUCTION"Lets figure out ways of keeping our children out of the juvenile justice system and in the classroom so that they thrive. Because if you are in the juvenile justice system, the chances of going into the adult penal system are greatly increased."
...Valerie JarretChildren are the pillars of every progressive society and are considered to be the future builders of the modern world, henceforth are the supreme assets of any country and therefore every effort should be made to overcome the problem of juvenile delinquency generated with the advent of modernization and urbanization. Today crimes by children or in other words crimes by juveniles is not only unbridled but is exhibiting a very brutal color of mind set of these young offenders. The problem of juvenile delinquency is undoubtedly tragic to human interest as it is not only confined to our country but also cuts across national boundaries. Juvenile delinquency laws are inadequate to the extent of determining the age of juvenile when the offence is committed. The concept of juvenile delinquency to widen its limits has drawn adverse criticism on the ground that it is neither necessary nor desirable to use police and courts in private matters which can be well tackled by family themselves. All nations whether it be developed or under-developed desires their youth to refrain from any kind of criminal or anti-social or terrorist activities and therefore, these nations are constantly defining and re-defining their local laws which can ameliorate the future of juveniles. Juveniles are future of tomorrow and the need of the hour is to save our future generations from going astray. With change in time and nations on the road to development, there is a drastic change in the offences committed by juveniles, what to say, from theft to dacoity, murders, rapes, hacking, cyber-crimes, terrorism and many other un-imaginable activities. The purpose behind any juvenile law is not to punish a juvenile but is to safeguard him against the evils of crime society. Another aspect of Juvenile law is to reform and rehabilitate juveniles so as to evolve themselves as crime-free human beings. Also, through punitive measures, to act as a deterrent to habitual young offenders.
INDIAN JUVENILE JUSTICE SYSTEM HISTORICAL BACKGROUNDThe first legislation concerning juveniles was the Apprentice Act, 1850 which provided that children in the age group of 10- 18 years convicted by courts to be provided with some vocational training which might help in their rehabilitation and reformation. It was followed by Reformatory Schools Act, 1897. The Indian Jail Committee (1919-1920) brought forth the vital need for square trial and treatment of young offenders. Its recommendations prompted the enactment of the Children Act in Madras in 1920. This was followed by Bengal and Bombay Acts in 1922 and 1924 respectively. The three pioneer statutes (i.e. Acts concerning Madras, Bengal and Bombay) were extensively amended between 1948 and 1959. Thereafter, the Central enactment, The Children Act, 1960 was passed to cater to the needs of the Union Territories. To remove some inherent lacunas in the above mentioned Act, The Children (Amendment) Act was passed in 1978. But the need of a uniform legislation regarding juvenile justice for the whole country had been expressed in forums, including Parliament but it could not be enacted on the ground that the subject matter of such a legislation fell in the State List of the Indian Constitution. To bring the operations of the juvenile justice system in the country in conformity with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), Parliament seems to have exercised its power under Article 253 of the Constitution read with Entry 14 of the Union List to make laws for the whole of India to fulfill International obligations. On 22nd August, 1986, the Juvenile Justice Bill, 1986 was introduced in the Lok Sabha. Its objects and scope were straight and clear that a review of the working of the existing Children Acts would indicate that much greater attention is required to be given to children who are found in situations of social ill-treatment, destitution or neglect. The justice system available for adults was not considered appropriate to be applied to juveniles. It was felt that a uniform juvenile justice system should be adopted which could provide for adequate provisions in the changing social, cultural and economic scenario of the country. The provisions contained in the Juvenile Justice Act, 1986 replaced the corresponding laws on the subject such as Children Act, 1960 and other State enactments on the subject. As per The Juvenile Justice Act, 1986, the age for a female to be treated as juvenile was 18 years and that of a male was 16 years. Also, apart from the need for a uniform Act regarding children, the Juvenile Justice Act, 1986 was a result of Sheela Barse v. Union of India, 1986 (2) Scale 1. Though, The Juvenile Justice Act, 1986 came into existence but still there existed loopholes and lacunas and as expected the Act of 1986 could not pass the test of time and had to make way for a new Act that is The Juvenile Justice (Care and Protection of Children) Act, 2000. Under this Act the age was made uniform for both Male and Female. This Act provided for a special approach towards the prevention and treatment of juvenile delinquency and provided a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. This law was brought in compliance to the 1989 United Nations Convention on the Rights of the Child (UNCRC), repealing the earlier Juvenile Justice Act of 1986 after India signed and ratified the UNCRC in 1992. Since, there were few grey areas where this new Act was silent and not expressive in dealing with certain issues most importantly determining the age of a juvenile offender, the landmark judgment of the Hon'ble Supreme Court of India by a Constitutional Bench in the case titled as Partap Singh v. State of Jharkhand, 2005(3) SCC 551. was pronounced addressing this issue in detail and held that "reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he is produced before the authority or in the Court". Thus, in light of the above decision by the Hon'ble Apex Court, the law pertaining this issue was amended. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 came into force on 22nd August 2006. This amendment provided a hope to those juveniles who were more than 16 years of age when the alleged crime had taken place and the old Act i.e. The Juvenile Justice Act, 1986 was in operation. When, The Juvenile Justice (Care and Protection of Children) Act, 2000 came, the age was increased to 18 years from 16 years pending trial. Therefore, this anomaly was removed by way of insertion of a special explanation in Section 20 of the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006. However, this provision of law happened to be misused by juveniles in their favour and the country witnessed nation wide heinous crimes committed by juveniles. The offenders in a way understood the shield provided by the amended Act.
STATUS OF CHILDREN UNDER THE CONSTITUTION OF INDIA :The Constitution of India recognizes special status of children through Articles 15(3), 21A, 24, 39(e), 39(f) and 45.
CRITICAL ANALYSISThe unfortunate and barbaric gangrape incident of Delhi (Nirbhaya case of 16th December, 2012) which shook the entire nation brought forth the existing lacuna in the present juvenile law. It was due to this incident the existing juvenile law suffered a nationwide criticism owing to its helplessness against crimes where juveniles especially between the age group of 16-18 years, get involved in heinous crimes like rape and murder. Following the sequence of events due to Nirbhayas case, an urgent need for a change in the present law was felt where 16 years or 17 years old were intended to be tried as adults. In 2015, responding to the public sentiment, Juvenile Justice (Care and Protection of Children) Act, 2015 was passed by Parliament of India amidst intense controversy, debate and protest on many of its provisions by Child Rights fraternity. It replaced the Indian Juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed juveniles in conflict with law in the age group of 16-18 years, involved in heinous offences, to be tried as adults. Under the said law, the Juvenile Justice Boards comprising a metropolitan magistrate or a judicial magistrate and two social workers had the discretion to decide whether the offender should be tried by courts of law like adults or whether the offender should be tried as a juvenile. The new bill introduced concepts from The Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 which were missing in the previous acts. The bill also sought to make the adoption process of orphaned, abandoned and surrendered children more streamlined. The lower house, i.e. Lok Sabha passed the bill on May 7, 2015 and the upper house, i.e. Rajya Sabha on December 22, 2015. The bill was given assent on 31st December, 2015 by the President of India and came into force from 15th January, 2016. Thus, the new Act has been enacted to give effect to Indias international obligations arising from three international conventions to which India is a signatory namely, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules, 1985), UN Convention on the Rights of Child (CRC) & United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules, 1990).
AMERICAN JUVENILE JUSTICE SYSTEMThe American Juvenile Justice System is the system intended to regulate and address youths who are caught and convicted of crimes. The juvenile justice system intervenes in delinquent behavior through police, court and correctional involvement, and is largely punitive. Offending youths and their parents or guardians can face a variety of consequences including probation, community service, youth court, youth incarceration and alternative schooling. The juvenile justice system, similar to the adult system, operates from a belief that intervening early in delinquent behavior will deter adolescents from engaging in criminal behavior as adults. In the United States of America, the definition of juvenile varies from State to State. The juvenile system applies to anyone between the age of 6-10 years depending upon the State. However it is 18 years except for eleven States (Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, South Carolina, and Texas) where a juvenile is a person under the age of 17 years and for the States of New York and North Carolina it is under 16 years. So the criminal majority begins at 16, 17 or 18 years. The traditional age of majority is 18 years and nearly all states permit persons less than 18 years to be tried as Adults.
HISTORICAL BACKGROUNDThe history of law in the United States was heavily influenced by the common law of England, which governed the American colonies. William Blackstone was one of the most important English lawyers of that time and his Commentaries on the Laws of England, first published in the late 1760s, were widely read and admired by founder fathers of the United States. "Infants" and "Adults" at Common Law is one of his Commentaries, where he has identified people who were incapable of committing a crime. According to him, there were two things which required to hold someone accountable for a crime. Firstly, the person had to have a "vicious will" i.e., the intent to commit a crime and Secondly, the person had to commit an unlawful act. If either the will or the act was lacking, no crime was committed. The first group of people Blackstone identified as incapable of committing a crime were "infants". These were not infants in the modern sense of the word, but children too young to fully understand their actions. Blackstone and his contemporaries drew a line between "infant" and "adult" at the point where one could understand ones actions. Children under the age of seven were as a rule classified as infants who could not be guilty of a felony (a felony is a serious crime such as burglary, kidnapping, or murder). However, children over the age of 14 years were liable to suffer as adults, if found guilty of a crime. Between the ages of seven and fourteen was a grey zone. A child in this age range was presumed incapable of crime. If, however, it appeared that the child understood the difference between right and wrong, the child could be convicted and suffer the full consequences of the crime. These consequences could include death in a capital crime. (A capital crime is a crime for which one might be executed). During the nineteenth century, the treatment of juveniles in the United States started to change. Social reformers began to create special facilities for troubled juveniles, especially in large cities. In New York City, the Society for the Prevention of Juvenile Delinquency established the New York House of Refuge to house juvenile delinquents in 1825. The Chicago Reform School opened in 1855. The reformers who supported these institutions sought to protect juvenile offenders by separating them from adult offenders. They also focused on rehabilitation trying to help young offenders avoid a future life of crime. In 1899, the first juvenile court in the United States was established in Cook County, Illinois. The idea quickly caught on, and within twenty-five years, most states had set up juvenile court systems. The early juvenile courts shared with reform schools; the same desire to rehabilitate rather than to punish juvenile offenders. They were based on the legal doctrine of parens patriae. In line with their "parental" role, juvenile courts tried to focus on the "best interests of the child". They emphasized an informal, nonadversarial, and flexible approach to cases. There were few procedural rules that the courts were required to follow. Cases were treated as civil (non-criminal) actions and the ultimate goal was to guide a juvenile offender toward life as a responsible, law-abiding adult. The juvenile courts could, however, order that young offenders be removed from their homes and placed in juvenile reform institutions as part of their rehabilitation program. All the states adopted juvenile policies relating to decriminalization and deinstitutionalization during the 1970s and 1985. However such policies were not long lived and in the mid 1980s due to change in the nature of crime by young offenders, increase in violence etc criminalization of delinquents were revived. During the early 1990s, several states in US had called for special legislative session to deal with youth crime. Presently, in United States, slogan "adult crime adult time" is being adopted.
JUDICIAL INTERVENTIONBeginning in the 1960s, the United States Supreme Court heard a number of cases that profoundly changed the proceedings in the juvenile courts. The first of these cases was Kent v. United States. It was held that the Juvenile Court order waiving jurisdiction and remitting petitioner (Morris A. Kent Jr.) for trial in the District Court, was invalid.
JUVENILE AGE OF JURISDICTION IN THE USPresently in 45 states, the maximum age of juvenile court jurisdiction is of 17 years. Five states Georgia, Michigan, Missouri, Texas and Wisconsin now draw the juvenile/adult line at the age of 16 years. Missouri raised the age of juvenile court jurisdiction to the age of 17 years in 2018 and the law will be into effect from January 1, 2021.
CONCLUDING REMARKSOn a concluding note, I would like to quote some lines by Qorianka Kilcher who has beautifully summed up what I intend to express through this article. "I think its important for us as a society to remember that the youth within juvenile justice systems are, most of the time, youths who simply havent had the right mentors and supporters around them because of circumstances beyond their control." Todays juvenile justice system still maintains rehabilitation as its primary goal and distinguishes itself from the criminal justice system in important ways. In the United States, with a few exceptions, in most of the states juvenile delinquency is defined as the commission of a criminal act by a child who was under the age of 18 years at the time when the offence was committed. Most states also allow youth to remain under the supervision of the juvenile court until the age of 21 years. In all States, the legal status of a young person charged with an illegal act is largely determined by the persons age, but the exact definitions are governed by State law. Whatever age is specified by State law as the upper age limit of original juvenile jurisdiction, young people who commit offences after that age are automatically under the jurisdiction of the criminal (adult) court. Whatever happens to them as a result of being arrested is outside the purview of the juvenile justice system. States may also set a lower boundary for the age of original juvenile court jurisdiction. Children below the specified age do not fall within the jurisdiction of the juvenile courts when they commit delinquent acts. Such matters are referred to a child welfare or social services agency. India has the distinction of having the largest child population as against any country in the world, with approximately 450 million children under the age of 18 years as per the statistics of UNICEF-India. The Juvenile Justice (Care & Protection) Act, 2015 is considered to be extremely progressive legislation and the Model Rules, 2016 have further added to the effectiveness of this welfare legislation. However, the implementation is a very serious concern and thus the Supreme Court of India constantly reviewed and monitored the implementation of this law in the case titled as Sampurna Behrua v. Union of India, (2018) 4 SCC 433. and Bachpan Bachao Andolan v. Union of India, (2011) INSC 403. The Hon'ble Supreme Court vide its order dated 09.02.2018 passed in Writ Petition (Civil) No.473 of 2005, in the case of Sampurna Behrua (Supra), issued various directions to be complied with by the High Courts and other authorities. One of the direction was related to registration of proceedings on its own by the High Courts for the effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 so that road blocks if any, encountered by statutory authorities and the Juvenile Justice Committee of the High Court are meaningfully addressed after hearing the concerned governmental authorities. Accordingly, Hon'ble the Chief Justice of Punjab and Haryana High Court initiated suomotto proceedings in case Civil Writ Petition No.5315 of 2018 (Public Interest Litigation) vide order dated 01.03.2018. It is my privilege as an Advocate to have assisted the Hon'ble Bench and apprising it as to what measures regarding juvenile laws have been taken by the respective State Governments and what it intends to do in future. In addition to the Hon'ble Supreme Court, the Hon'ble High Courts of Bombay and Allahabad are also monitoring the implementation of the Juvenile Justice Act through judicial proceedings. In order to upgrade the Juvenile Justice Administration System, the Government of India launched the Integrated Child Protection Scheme (ICPS) in 2009-10 whereby financial allocations have been increased and various existing schemes have been merged under one scheme. Based on a resolution passed in 2006 and reiterated in 2009 in the Conference of Chief Justices of India, several High Courts have constituted "Juvenile Justice Committees" headed by sitting judges of High Courts. These committees supervise and monitor implementation of the Act in their jurisdiction. In this way, just like other nations the law makers in India are also striving to achieve a cordial balance between the juvenile and the juvenile laws. Thus, it is perceived that there is a constant need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of juveniles.  The Hague Convention on Protection of children and Co-operation in Respect of Inter-country Adoption (or Hague Adoption Convention) is an international convention dealing with international adoption, child laundering, and child trafficking in an effort to protect those involved from the corruption, abuses, and exploitation which sometimes accompanies international adoption. (Drafted on 29th May, 1993 and Effective from 1st May, 1995).
 https://www.americanbar.org/content/dam/aba/migated/publiced/features/DYJpart1.authcheckdam.pdf accessed on 17th February, 2019 at 12:33 PM.
 A latin term that means "parent of the country". The parens patriae doctrine gives the state the power to serve as the guardian (or parent) of those with legal disabilities, including juveniles.
 https://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf accessed on 17th February, 2019 at 12:41 PM..
 383 U.S. 541 (1966); Morris A. Kent Jr., a 16-yearold boy, was detained and interrogated by the police in connection with several incidents involving robbery and rape. After Kent admitted some involvement, the juvenile court waived its jurisdiction. This allowed Kent to be tried as an adult. Kent was indicted in district court. Kent moved to dismiss the indictment because the juvenile court did not conduct a "full investigation" before waiving jurisdiction, as required by the Juvenile Court Act. A jury found Kent guilty and sentenced him to serve 30-90 years in prison. The U.S. Court of Appeals for the District of Columbia Circuit affirmed.
 Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses more broadly, concluding that these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
 The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection all of which are contained in Section One. However, the Fourteenth Amendment contains four other sections. Section Two deals with the apportionment of representatives to Congress. Section Three forbids anyone who participates in "insurrection or rebellion" against the United States from holding federal office. Section Four addresses federal debt and repudiates debts accrued by the Confederacy. Section Five expressly authorizes Congress to enforce the Fourteenth Amendment "by appropriate legislation." The states ratified the Fourteenth Amendment in 1868 in the immediate aftermath of the American Civil War.
 Teigen Anne, "Juvenile Age of Jurisdiction and Transfer to Adult Court Laws", National Conference of State Legislatures (11th January, 2019), retrieved from <
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