Response to advertisement issued on behalf of the Group of Ministers set up by the Delhi Cabinet to invite views and suggestions on improving protection of women and girls in Delhi

Response to advertisement issued on behalf of the Group of Ministers set up
by the Delhi Cabinet to invite views and suggestions on improving protection
of women and girls in Delhi
Inputs from - HAQ: Centre for Child Rights
B-1/2 Malviya Nagar (GF)
New Delhi – 110017
Contact Person: Bharti Ali, Co-Director
Mobile: 09871849521
Email: bharti@haqcrc.org / info@haqcrc.org
Child rights activists and people working on the issue of juvenile justice have time and again voiced
the need to implement the existing laws in letter and spirit and assess the impact before changing
them.
The POCSO Act is a very well thought out law. The problem lies in its implementation and poor
investment by state governments in providing support to the victims, police and the courts in
fulfilling their obligations.
There is no doubt that the POCSO Act requires certain amendments wrt to certain procedures in
order to improve its implementation, these are areas requiring greater debate and discussion as
they involve detailed understanding of the principles of rule of law, jurisprudence and the
fundamental rights and freedoms guaranteed under the Constitution of India.
Similarly, as regards the issue of juveniles in conflict with the law, the emphasis has to be on
implementation of the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in
2006 and 2011 (JJ Act) and the 2009 Delhi JJ Rules made there under. There would be no need to
take a rushed decision to recast the above Act if the state governments had ensured that the
Juvenile Justice Boards and Child Welfare Committees are provided with adequate human, technical
and financial resources, they are manned by specialized trained Judges and Members, children in
need of care and protection found necessary support through the juvenile justice system, every
dispositional order was accompanied with an individual care plan, alternative measures of
disposition such as diversion, probation, mediation, counselling or community service had been tried
and tested adequately, stay in special homes became only as measure of last resort for the shortest
possible period of time with regular reviews, drugs and substance abuse among children and
children’s behavioural problems received serious attention (Delhi’s hospitals do not have de-
addiction treatment and rehabilitation initiatives exclusively for children. So what holds good for
adults also seems to hold good for children).
Inadequate investment in research and documentation too has hampered informed policy decisions.
HAQ: Centre for Child Rights would like to use this opportunity given by the Delhi Government to
help the government make a more informed decision in bringing any change to the existing policy or
laws dealing with child victims of sexual abuse and children in conflict with the law involved in
serious offending.

The attempt is to first respond to the questions posed by the government and provide a rationale to
the response, and then list out some measures that may be taken in future to in terms of changes
required in law, measures required to be taken for improved implementation of laws and ways to
ensure better protection to Delhi’s children.
1. Whether in Rape cases in which victims are minors, those found guilty of committing such
heinous crimes against minors should be given an enhanced punishment of life imprisonment or
death penalty.
Response:
NO.
Rationale:
1. Research to date generally indicates that increases in the certainty of punishment, as opposed to
the severity of punishment, are more likely to produce deterrent benefits1
. Victim-centric
approach and certainty of conviction are more important and require greater attention instead
of harsh sentencing.
2. The scheme of the provisions in the IPC dealing with rape clearly follow a gradation and law of
proportionality in terms of sentencing. Similarly, the POCSO Act too follows gradation in
sentencing. Therefore, most heinous forms of sexual offences, whether committed against
minors or adults, can be liable for punishment up to the rest of a person’s natural life or death.
Moreover, where the POCSO Act does not provide for death penalty, but IPC does, and the case
is tried both under the POCSO Act and the relevant IPC provisions, the convict will get
punishment which is greater in degree (as per Sec. 42 of the POCSO Act).
POCSO already takes care of cases where victims are below 12 years of age by treating their
cases under the category of “aggravated” form of penetrative and non-penetrative sexual
assault (Sections 5 (m) and 9 (m) of the POCSO Act, 2012 respectively) and laying down harsher
sentence for such aggravated forms of sexual assault (Sections 6 and 10 of the POCSO Act).
Punishment for “aggravated penetrative sexual assault” under section 6 is as follows:
Rigorous Imprisonment of 10 years to Life. As per the Criminal Law Amendment Act, 2013, life
imprisonment is now for the remainder of a convict’s natural life.
Punishment for “aggravated sexual assault” under section 10 is as follows:
Imprisonment of 5 to 7 years.
1
Valerie Wright, Ph.D., Research Analyst at The Sentencing Project. Deterrence in Criminal Justice Evaluating
Certainty vs. Severity of Punishment. November 2010. Pg. 1. Available at:
http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pdf

After the Criminal Law Amendment Act, 2013, the new Section 376 (2) in the IPC provides
enhanced punishment if the rape victim is under 16 years of age, ranging from Rigorous
Imprisonment of 10 years to Life.
The chart below shows a comparison between punishments laid down under POCSO for
different forms of sexual offences and the corresponding punishment in the IPC and the IT Act,
2008.
Offence Punishment in POCSO Punishment in IPC & Other Relevant Laws
Imprisonment Fine Imprisonment Fine
Penetrative
Sexual
Assault
Sec. 4: 7 years to life Mandatory Sec. 376 (1): RI - 7 years to
life
Mandatory
Aggravated
Penetrative
Sexual
Assault
Sec. 6: RI – 10 years
to life
This includes:
Penetrative Sexual
Assault by –
Police Officer/ Public
Servant/Member of
Armed Forces/
Owner, Management
or Staff of an
institution or place of
custody/
Management or Staff
of a hospital/parent
or guardian or
relative/ person
being in a position of
trust/ a person
previously convicted
for a sexual offence
Penetrative Sexual
Assault resulting in
the following:
Grievous hurt or
bodily harm and
injury to the sexual
Mandatory Sec. 376 (2): RI – 10 years
to rest of natural life
This includes:
Rape committed by –
Police Officer/ Public
Servant/Member of
Armed Forces/
Management or Staff
of an institution or
place of custody/
Management or Staff
of a hospital/person
being in a position of
dominance or control
over the victim
Rape committed in a
police station or
during communal
riots
Rape committed on –
• Pregnant woman
• Woman below the
age of 16 years
• Woman incapable
Mandatory

organ of the child/
Physical or mental
incapacitation or
disability/ Pregnancy/
STD or HIV or Other
life threatening
disease or infection/
Penetrative Sexual
Assault committed in
a police station or
during communal
riots
Penetrative Sexual
Assault using deadly
weapon, fire, heated
substance or
corrosive substance
Penetrative Sexual
Assault of a minor
below the age of 12
years/a pregnant
minor/a minor with
physical or mental
disability
Penetrative Sexual
Assault combined
with attempt to
murder/ making the
child to strip or
parade naked in
public
Repeated penetrative
sexual assault
of giving consent
• Woman suffering
from mental or
physical disability
Sec. 376 C: RI – 5 to 10 years
This includes:
Sexual intercourse
not amounting rape
by –
a person in authority/
a person in a fiduciary
relationship/public
servant/
superintendent or
manager of an
institution or place of
custody/
management or staff
of a hospital
Sec. 376 D – Gang Rape:
RI – 20 years to life
imprisonment for the rest
of natural life.
Sec. 376 A – Rape
resulting in death or
vegetative: RI – 20 years
to life imprisonment for
the rest of natural life, or
death penalty.
Sec. 376 E - Repeat
Offence: Life
imprisonment for the rest
of natural life, or Death.
Exceptions:
No fine can
be imposed
under Sec.
376 A and
376 E as the
punishment
in these
cases
extends to
death
penalty.
Sexual
Assault
Sec. 8: 3 to 5 years Mandatory Sec. 354 A (2) - Unwanted
physical contact and
advances: RI - Up to 3 years
Optional

Aggravated
Sexual
Assault
Sec. 10: 5 to 7 years Mandatory Sec. 354 B - Assault with
intent to disrobe: 3 to 7 years
Mandatory
Sexual
Harassment
Sec. 12: Up to 3 years Mandatory Sec. 354 A (2) - Demand for
sexual favours or showing
pornography: Up to 3 years
Optional
Sec. 354 A (3) - Making
sexually coloured remarks: Up
to 1 year
Optional
Sec. 354 C - Voyeurism:
First conviction – 1 to 3
years
Second & subsequent
conviction – 3 to 7 years
Mandatory
Sec. 354 D (2) - Stalking:
Fist Conviction – Up to
3 years
Second & Subsequent
conviction – Up to 5
years
Mandatory
Sec. 509 - Word, gesture, act to
outrage modesty: SI - Up to 3 years
Mandatory
Sec. 292 – Sale of obscene
objects to young person:
First conviction – 3 years
Second & subsequent
conviction – 7 years
Mandatory
First
conviction
– INR
2,000/-
Second &
subseque
nt
conviction
– INR
5,000/-
Using Child
for
Pornography
Sec. 14 (1) :
First Offence: Up to 5
years
Second & subsequent
MandatorySec. 354 C - Voyeurism:
First conviction – 1 to 3 years
Second & subsequent
conviction – 3 to 7 years
Mandatory

conviction – Up to 7
years
Sec. 67 B of IT Act:
First conviction - Up to 5
years
Second or subsequent
conviction - Up to 7 years
Mandatory
First
conviction
- Up to
INR 10
lakhs
Second &
subseque
nt
conviction
– INR 10
Lakhs
Using Child
for
Pornography
combined
with
penetrative
sexual
assault
Sec. 14 (2) : 10 years to
Life
Mandatory - -
Using Child
for
Pornography
combined
with
aggravated
penetrative
sexual
assault
Sec. 14 (3): RI – Life
Imprisonment
Mandatory - -
Using Child
for
Pornography
combined
with sexual
assault
Sec. 14 (4): 6 to 8 years Mandatory - -
Using Child
for
Pornography
combined
with
aggravated
sexual
Sec. 14 (5): 8 to 10 years Mandatory - -

3. “Mandatory minimums that increase imprisonment not only burden state budgets, but also fail
to enhance public safety. As a result, such policies are not justifiable based on their ability to
deter”.2
In recent times, there has been an increased trend of responding to failure of the system in
dealing with sexual crimes sensitively by taking away the discretionary powers vested in various
agencies. A lot of this has turned out to be detrimental to the victim’s interests. Therefore, while
introducing corrective measures to improve the system’s response, the repercussions of such
measures on the victims must always be borne in mind. Here are some examples for your
consideration:
As experience showed that the police would not register FIRs in cases involving sexual abuse and
exploitation of women, Section 166 A (c) was introduced in the IPC and non-registration of FIR
became a punishable offence. We have seen several cases where the victims do not wish to take
the legal course of action for various reasons, including lack of confidence in the system and lack
of adequate protections as well as community’s apathy. But by making FIR registration
mandatory, they are forced to go through intrusive medical examination and such other
procedures and victimisation at every stage, which in turn affects them physically, mentally and
economically, thereby increasing their trauma. Victims or their families are often not in a
position to leave their work and forgo a day’s wages to participate in the legal procedures
involved. There is added stigma and labelling that forces them to shift their residence as the
community seldom supports rape victims and their families. We have a live case where even
though the landlord did not directly ask the victim’s family to vacate the premises, he severed
the water connection to put pressure on them to relocate.
Besides, mandatory registration of FIRs in cases of sexual violence and trafficking has led to
increased corruption among the police as after registering the FIR they are in a more powerful
2
Valerie Wright, Ph.D., Research Analyst at The Sentencing Project. Deterrence in Criminal Justice Evaluating
Certainty vs. Severity of Punishment. November 2010. Pg. 9. Available at:
http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pdf
assault
Storage of
pornographi
c material
involving a
child for
commercial
purposes
Sec. 15: Up to 3 years Optional - -

position to seek increased amounts of money as bribes from both the accused and the victim.
For a victim who does not wish to pursue a legal case, the police puts pressure on them to cough
up some money if they want relief. At the same time, increased amount of money is taken from
the accused to get the other party to arrive at a compromise. The one who suffers in all this is
the victim or the girl who otherwise would not have filed a complaint in the first place. A close
scrutiny of number of cases ending up in acquittal due to the victim turning hostile, number of
cases where the police says that the victim did not consent to medical examination, number of
cases where the FIR has been cancelled and number of cases where the police has filed a closure
report resulting in acquittal of the accused would help the Delhi Government gain more insights
on police functioning as well as take a call as to whether and to what extent should the
discretion of the police be taken away from them.
Similarly, while mandatory reporting was introduced under the POCSO Act with a very valid
intention to improve reporting of sexual crimes, it has often proved detrimental in cases where
the victims do not wish to pursue the legal course of action. In fact, mental health experts have
time and again expressed a valid fear that victims will stop seeking psychological care and
treatment apprehending mandatory reporting. HAQ’s experience too shows that in incest cases
in particular, a mother may be willing to bring her child for counselling on condition of
confidentiality, but is not willing to pursue a legal case against her husband. But mandatory
reporting is bound to stop her from seeking any psychological assistance for her daughter.
Healing restores a person’s sense of justice, but if those opportunities are also taken away by
overzealous law making, ends of justice will be defeated every which way.
Using the same logic, one wonders how useful it will be to take away judicial discretion on
sentencing by prescribing a mandatory minimum, which is as harsh as life imprisonment or
death penalty. Experience and existing research across the world has shown that many cases of
heinous offences end in an acquittal if harsh sentences are prescribed for the offence.
On Death Penalty, we would like to express question the deterrent effect of death sentence
given the increase in brutal crimes despite a public outcry for death penalty for rape convicts
and a political affirmation and support in favour death penalty.
It is important to reiterate that the Justice Verma Committee consciously rejected the death
penalty for sexual offences in the following words:
“24. In our considered view, taking into account the views expressed on the subject by an
overwhelming majority of scholars, leaders of women’s’ organisations, and other stakeholders,
there is a strong submission that the seeking of death penalty would be a regressive step in the
field of sentencing and reformation. We, having bestowed considerable thought on the subject,
and having provided for enhanced sentences (short of death) in respect of the above-noted
aggravated forms of sexual assault, in the larger interests of society, and having regard to the
current thinking
in favour of abolition of the death penalty, and also to avoid the argument of any sentencing
arbitrariness, we are not inclined to recommend the death penalty.”
In the United States of America, which we tend to emulate, the Supreme Court's ruling in
Georgia v. Furman forced states to retool their death penalty statutes to make the penalty less
discriminatory and capricious. The Supreme Court took special note of rape in 1977, ruling that

death was a disproportionate penalty for the rape of an adult woman (Coker v. Georgia, 433 U.S.
584, 1977). In Louisiana v. Kennedy, 957 So.2d 757, 2007, the court had to examine whether
death penalty would be disproportionate even in cases involving child rape. In this case an 8-
year-old girl had been raped by two teens. Besides several psychological questions this case
raised questions as to whether African-Americans were more likely to receive the death penalty
for raping a child? Should children's testimony in rape cases be enough to convict and sentence
defendants to death, when research suggests that children are susceptible to memory errors?
In Kennedy, only jurors willing to execute for child rape were allowed on the jury. Do such jurors
hold biases against sex-crime defendants?3
In Louisiana vs. Keneddy, the US Supreme Court reached a finding that the death penalty for
rape of a minor was unconstitutional and violative of the 8th Amendment being in the nature of
“cruel and unusual punishment”. The Judge observed, “When the law punishes by death, it risks
its own dissent into brutality transgressing the constitutional commitment to decency and
restraint.”4
(Source: Justice Verma Committee Report, pp 249-250).
We would also like to share some critical excerpts from Second Shahid Azmi Memorial Lecture
delivered by Dr. Yug Mohit Chaudhry on 9th February 2013, titled Capital punishment An Agenda
for Abolition.
“Some years ago in Bombay, a man was convicted and sentenced for the rape and murder of a
child. The appeal was pending in the High Court, and while that appeal was pending, the police
officer investigating the case committed suicide, leaving behind a suicide note saying he had
falsely implicated this man. Now, the evidence on record did not merit an acquittal, the evidence
was very strong. But for the suicide note, which was not even part of the evidence, this man
would have gone to the gallows. The Bombay High Court, very unorthodox, took cognizance of
the suicide note that was not on record, and acquitted this man. What would have happened if
this officer’s conscience had not pricked him in this manner?...
One does not need to stress the point that in India we have a notoriously corrupt, dishonest, and
criminalized police force. The evidence that is presented in the court is the evidence that is
collected by this police. We are going to adjudicate whether somebody is guilty or not or
whether somebody should be sentenced to death or not, on the basis of such evidence, which is
collected by the Police force; which itself raises a huge question mark, on whether it is safe
actually to have people sentenced to death on the basis of evidence collected by the police force
we know to be corrupt…
In normal crimes, confessional evidence is considered unworthy of belief, because how can you
believe everything a Police officer says. That is the judicial principle on the basis of which
confessions are excluded from evidence. But, in serious crimes, confessions are admitted in
evidence. This is quite strange. If confessions are not admissible for normal crimes, why should
they be admissible for serious crimes where the burden of proof should be that much higher?...
Death sentences become more indefensible when a majority of such cases are assigned to 2 or 3
out of the 14 or so benches of the Supreme Court. This creates a lottery, where the mere
presence or absence of a particular judge gives the convict a significantly better or worse chance
3
Ryan J. Winter, PhD, Jonathan P. Vallano, Florida International University, Is rape a crime worthy of the death
penalty? Judicial Notebook, April 2008, Vol 39, No. 4, Print version: pg. 18. "Judicial Notebook" is a project of
American Psychological Association Div. 9 (Society for the Psychological Study of Social Issues).
4
Justice Verma Committee Report, pp 249-250

of survival statistically, regardless of the evidence. A comparison of 3 judges clarifies the
importance of a judge’s personal predilections in death penalty adjudication…
A death-sentence case had an almost equal chance of being heard by Justice Pasayat or Justice
Sinha’s bench, but the convict’s chances of living were almost 100% if his case was allotted to
the latter instead of the former. A prisoner’s chances of living were better by more than 50% if
his case was allotted to Justice Balakrishnan rather than Justice Pasayat’s bench. Would a death
sentence appellant not be justified in asking, “Am I to live or die on the basis of the constitution
of the bench and not the evidence in the case? Is that justice according to law?”…
The law of death penalty was laid down in India by Bacchan Singh, and subsequent judgments
are expected to be consistent with Bacchan Singh. Bacchan Singh held that the judges would
have to look at both, the circumstances pertaining to the crime, as well as at the circumstances
pertaining to the criminal…
A man called Ravji, murdered his family, because he suspected that his wife was unfaithful to
him and his children were illegitimate. Now, In this case, if they were to look merely at the
circumstances pertaining to the crime, of course they could hang him. But if they were to
consider the circumstances pertaining to the individual, or the criminal, then they would have
seen a human being with a mental problem, in which case perhaps they would have had leaned
towards clemency and commuted the death sentence. But the crime was so gruesome and
shocking – they wouldn’t allow themselves to do that. So they laid down a law that said that in
heinous cases, we need not look at the circumstances pertaining to the criminal, but only the
circumstances pertaining to the crime; and they sent Ravji to the gallows…
This new principle of law which ran directly from the principle laid down in Bacchan Singh, was
then invoked again within a few months, to send Surja Ram to the gallows. And then over the
next ten years, it was invoked to send another twelve people to the gallows. A total of about
fifteen people were sentenced to death on the basis of this erroneous principle. In 2009, the
Supreme Court detected this error and declared Ravji’s case, and the 7 other cases that followed
as being rendered per incuriam literally in error of, or in ignorance of law). Thereafter, two other
benches reiterated these findings. However, by then it was too late for Ravji and another
prisoner wrongly sentenced to death for they had already been executed. One of the prisoners
was subsequently declared a juvenile, and the death sentences of four others were commuted
by the government. Seven prisoners remain on death row despite the Supreme Court having
admitted in four different cases that their death sentence judgements were rendered in
ignorance.
Here, it is important to know difference between a mandatory death sentence and a
discretionary death sentence: in a discretionary death sentence the accused has the right to be
heard and place before the court the circumstances which have a personal significance to him,
and which may have
intended him to act the way he did. The court considers these while adjudicating on what should
be the appropriate sentences in the case, because remember, the Supreme Court has held that
circumstances of the crime and the criminal are both to be taken into account. So, this hearing
on the point of sentence becomes crucial.
In addition to being arbitrary, the death penalty is also discriminatory. Justice Krishna observed
in Rajendra Prasad that the death sentence has a class bias and a colour bar. Death-sentence
prisoners handicapped by poverty are doomed ab initio by a system that pays legal-aid lawyers a
pittance for their work.

The Constitution has promised citizens equality before the law and protection from
arbitrariness, which means that their cases will be treated like other cases before theirs,
regardless of their financial capacity. Courts are required to uphold this promise for it is the
bedrock of judicial
legitimacy. Since the death penalty cannot be awarded with consistency and fairness it must be
abolished, for without these prerequisites, judicially sanctioned killings are not meaningfully
different from vengeful murder…
Article 21 of the Constitution is inalienable and applies to every Article 21 says that ‘No person
shall be deprived of his life or personal liberty except according to procedure established by law.
And that procedure as per Supreme Court has to be fair, just and reasonable’.
Instead of persisting with the more difficult, drawn-out and complex work that is needed to
properly protect against future attacks and addresses the causes of crime, this simplistic gesture
of the death penalty pursued at great human cost is resorted to as an easy and cheap way of
mollifying the public urge that something be done. In fact the death penalty is a distraction, a
red herring, diverting attention from government inaction in the areas that matter most. It
exploits the public thirst for blood, feeding the belief that execution will secure closure. But as
we know, executing a human being does not secure closure or fix the underlying, persisting
problems – it rather conceals them. A state sanctioned execution has nothing to recommend it
except a very base blood lust that we encourage at our peril. Feeding this blood lust by
executions and introducing new types of state sanctioned violence like castration can only make
us a more violent society, not less. If we have to become a more humane and compassionate
society, and leave a better, less blood-thirsty world behind for our children, we have to curb our
instinct for bloody retribution.”
Qs.2. Whether those committing heinous crimes like rape and murder and are above 15 years of
age should be treated as adults and not Juveniles under the law for being tried in these
cases?
Response:
NO.
Rationale:
1. The question to be asked is whether the existing juvenile justice law is inadequate in dealing
with children alleged or found to have committed heinous offences or is it non-
implementation of the law that has resulted in a situation where no justice is met to children
needing care and protection or children in conflict with the law?
The JJ Rules, both the Central Model Rules of 2007 and Delhi JJ Rules of 2009 require individual
care plans to be part of the dispositional order made the by the Juvenile Justice Board.
The provision to Section 16 (1) of the Juvenile Justice (Care and Protection of Children) Act, 2000,
as amended in 2006 and 2011 has seldom been used despite the section allowing children
committing serious offences to be treated differently. It allows children who have attained the
age of 16 years and has committed an offence of such serious nature or has shown such conduct
or behaviour that it would not be in the interest of the juvenile or the interest of other juveniles
in the special home to be kept together, the Juvenile Justice Board may send the juvenile to a
place of safety. Section 16 (2) requires the state government to make such arrangement. What is

this place of safety, where and how is it created is also a question to be looked and understood,
as lack of state government’s attention to such provisions and investment in setting up a place of
safety with adequate infrastructure and manpower often keeps the Juvenile Justice Boards away
from sending children into a “place of safety”.
Rule 15(3) clearly requires every dispositional order of the Board to necessarily include an
individual care plan for the concerned juvenile in conflict with the law. These individual care
plans are rarely be found as there is no qualified and trained workforce to prepare these care
plans. Even where Probation Officers and Welfare Officers exist, they end up spending a
substantial part of their time in managing administrative matters.
Rule 17(3) further requires that the release of a juvenile in conflict with the law shall be as per
the pre-release and post-release component of the individual care plan, and post-release follow-
up is supposed to be part of this care plan. Even the format for individual care plan given in Form
XXI of the 2007 JJ Rules requires a report to be prepared of second and third follow-up with the
child after two months and six months respectively.
Rule 65 (3) further requires restoration of the child to be planned as part of the individual care
plan. Rule 65 (8) requires a follow-up plan to be prepared as part of the individual care plan to
assist in restoration of the child, and Rule 65 (9) requires the Welfare Officer/Probation Officer or
NGO involved in this to submit quarterly reports to the CWC/JJB as the case may be, for up to
two years, with a copy to be marked to the Superintendent of the institution from where the
child was released. Follow-up reports are also to be sent to the District Child Protection Unit
(DCPU) as per Rule 65 (12). These follow-up reports are supposed to clearly state the situation of
the juvenile post restoration and the needs of the juvenile that are to be met by the state
government.
In the event that the child does not have parents/guardians to whom he/she can be restored, the
law has built in provisions of after care, also to be provided by the state [Please Section 38 of the
JJ Act and Rule 17(8) of the 2007 JJ Rules (also found in the Delhi Rules)].
The problem is that none of these provisions are being implemented and we are debating on
how to deal with 15-18 year olds alleged to or found to have committed a heinous offence as if
we never had any solutions available!!!
2. There may be a child in conflict with the law who is found guilty of having committed a petty
offence, but requires greater inputs and time than a child who has committed a one-time
heinous offence like rape or murder. The current JJ Act provides flexibility to deal with both
these situations, with the goal of reformation and rehabilitation of children who come in
conflict with the law, based on their individual care plans. Do we want to take this flexibility
away?
3. Voices of children that cannot be ignored...

4. In India the Minimum Age of Criminal Responsibility (MACR) is 7 years, thereby implying that
nothing committed by a child below the age of 7 years will be treated as a crime. Thereafter
children do not enjoy any immunity in the eyes of law, which recognises them as persons
having the capacity to commit a crime. Hence, any debate or discussion that rests on a faulty
understanding that children have no capacity to commit crime or that our laws do not allow
children to be treated as offenders, is ill-informed and must be stopped immediately.
The next logical question is that if children are capable of committing crimes, then why not
treat them as any other adult criminal? The answer lies in the Constitution of India, India’s
ratification of the Convention on the Rights of the Child (CRC) and its National Policy for
Children, 2013 (NPC).

a) Article 15(3) allows the state to make special laws for women and children on the
grounds of various vulnerabilities, one of those being age. In other words the
Constitution recognises children as a distinct group requiring special attention and
special measures.
b) Article 1 of the CRC defines a child as a person below the age of 18 years, unless under
the law applicable to the child, majority is attained earlier. In India, the age of majority is
clearly laid out as 18 years in the Indian Majority Act, 1875.
c) The NPC, 2013 establishes the age of the child as a person below the age of 18 years and
requires in para 2.3 that “This Policy is to guide and inform all laws, policies, plans and
programmes affecting children. All actions and initiatives of the national, state and local
government in all sectors must respect and uphold the principles and provisions of this
policy”. In para 6.5 it further states that “The National Commission for Protection of
Child Rights and State Commissions for Protection of Child Rights will ensure that the
principles of this Policy are respected in all sectors at all levels in formulating laws,
policies and programmes affecting children”.
The Juvenile Justice Act is thus a result of India’s commitment to its children laid down in Article
15 (3) of the Constitution and the age definition a result of India’s ratification of the CRC as well
as the clear policy laid down in NPC, 2013.
5. Juvenile justice across the world has been about dealing with persons of a certain age group
who commit offences and come in conflict with the law in a manner conducive to their age
and circumstances. The law therefore has to be a law that is offender centric and not offence
centric as its basis lies in protection of child rights and not establishing procedures to deal
with criminal offences. The thrust of all international developments on juvenile justice has
never been the offence. In India too, foundations of juvenile justice were laid down in 1919-
1920, when the Indian Jail Committee clearly found prisons unsuitable for children, including
adolescents under the age of 18 years, thus focusing on the need for a separate justice system
for young offenders. The Report of the Indian Jails Committee 1919-20, under Chapter XV –
Section I – The Child Offender, states, “It is now generally recognised that the ordinary healthy
child criminal is mainly the product of unfavourable environment and that he is entitled to a
fresh chance under better surroundings. There is a general consensus of the opinion that as
youth is the time when habits have not become fixed, the prospects of reformation are then
most hopeful. From both points of view it has come to be agreed that the child offender should
be given different treatment from the adult *para 363, pg. 193+.” In Section II – The Adolescent
Criminal, the said Report observes that adolescence [above 16 years] is a critical period, and
giving reasons for the same [para 387] concludes in para 389 [pg. 205] that adolescent
“offenders should not be sent to ordinary jails. It also seems to follow from the fact above
noticed that special efforts should be made to bring them under reforming influences, and to
improve their minds by education, both general and special, as well as by religious and moral
teaching.”
[The Indian Jail Committee Report is available on
https://archive.org/stream/eastindiajailsco01indi#page/198/mode/1up ].
Historically, juvenile legislation in India has adopted the socio-legal approach to achieve the
object of rehabilitation and reformation, and not retribution and punishment. Juvenile
legislation therefore has never aimed at punishing a child according to the seriousness of the
offence committed, but treated the circumstances which resulted in the child offending. Any
change in this position to treat juveniles on the basis of their age and nature of offence alleged
to have been committed by them amounts to tampering with the history and philosophy of

juvenile justice legislation in India and questioning the wisdom and intellect of law makers in the
last 150 years.
A separate system, not being the criminal justice system, to deal with children who have
committed offences, without any exclusion, has been in existence since British India, and
thereafter has been adopted by independent India. Each of the previous acts governing children
in need of care and protection and children in conflict with law was governed by a specific
philosophy – that of promoting justice for children in difficult circumstances and ensuring their
protection. However, one fails to understand what is the philosophical underpinning of the
present proposed re-enactment?
The focus therefore should be the offender whose treatment comes into question on account
of his/her being a minor on the date of commission of an alleged offence along with the
question of how to make this young offender accountable for his/her action, keeping in mind
the circumstances of the offence as well as the offender and the best interests of the child as
primary consideration.
6. Any move by the Delhi Government to create a new juvenile justice law that defines a child or
a juvenile differently from the definition that would otherwise hold good in other parts of the
country would be discriminatory and a violation of Article 14 and 15 of the Constitution of
India.
Dating back to the 19th Century, juvenile justice systems evolved with the thinking that young
people are capable of reformation and must be given that chance. The story of special
legislations for children, which culminated in the present day Juvenile Justice system, began in
the 1920s when the Indian Jail Committee, 1919-20, for the first time, recommended a distinct
and comprehensive handling of child offenders, leading to the enactment of the Children’s Act in
several progressive provinces like Madras, West Bengal and Bombay, in 1920, 1922 and 1924
respectively.
After independence, the Parliament of India passed its first central Children Act in 1960
applicable to Union Territories only. It was followed by all other States who enacted their
Children’s Acts after 1960. The Children’s Act of 1960 gave protection to children and included
measures for reformation.
Over the years, as lack of a uniform law brought serious lapses in the administration of
juvenile justice and discrimination faced by juveniles in accessing their rights in different parts
of the country because of varying definitions of ‘juvenility’ in different state laws, a need was
felt to have one uniform law. This is how the Juvenile Justice Act of 1986 came into existence.
In Sheela Barse v. Union of India, AIR 1986 SC 1773, the Supreme Court noted that the
differences in the Children Acts of various States, specially the differential in cut off age defining
child was resulting in differential treatment to children in different States. For example, a child
of 17 years of age committing an offence in the Bombay was to be dealt with by the adult
criminal court as the cut off age defining child was 16 years under the Bombay Children Act 1924
but another child of the same age committing the same offence was to be dealt with by the
Children Court in West Bengal which applied to all children till the age of 18 years. The Supreme
Court suggested to the Union of India that it should pass a uniform legislation for children across
the territory of India to remove such inequality [Dr. Ved Kumari, Juvenile Justice – A historical
Perspective, Excerpt from a draft prepared for Juvenile Justice in Global Perspective edited by
Frank Zimring, Maximo Langer and David Tanenhaus to be published by NYU Press in 2015].

As the age definition of a juvenile in the 1986 law was 16 years for boys and 18 years for girls,
India received strong recommendations from the Committee on the Rights of the Child as
follows:
“In accordance with the principle of non-discrimination contained in article 2 of the Convention,
the Committee recommends article 2 (h) of the 1986 Juvenile Justice Act be amended to ensure
that boys under 18 years are covered by the definition of juvenile, as girls already are.”
[Concluding Observations dated 23 February 2000 - CRC/C/15/Add.115/para 79 and 81].
Accordingly the juvenile justice law was amended in the year 2000.
7. Any change in this position would therefore clearly be discriminatory. And if the age definition
of juvenility varies from one state/UT to another, some children will be more protected than
others, thereby again leading to discrimination, unequal treatment of law and a serious
violation of right to equality enshrined in the Constitution of India. All children must be
ensured uniform protection across the country in accordance with Article 15(3) of the Indian
Constitution and the state has to play the role of parens patriae for both children who are
victims of crime as well as children who are in conflict with the law.
8. In India, no person who is below the age of 18 years can enter into a legal contract due to lack
of legal capacity recognised in law. As a result, children cannot even hire a lawyer to defend
themselves. Clearly, the procedures for such children who lack the legal capacity will have to
be different from the procedures that would apply to others who the requisite legal capacity.
9. Even though there are different age definitions of a child under different laws in the country,
the principle that must guide such difference is the principle of best interest of the child and
children’s right to survival, development, protection and participation and not sheer
convenience. For example, the age of consent must be reduced to 16 years, so that young
people engaging in consensual sexual activity do not get criminalised. Similarly, the age of
definition of child labour must be such that all children under the age of 18 receive protection
from being economically exploited. Using the same logic of children’s best interest and ensuring
their right to survival, development, protection and participation in all situations and
circumstances, the age of juvenility must remain 18 years.
10. Lowering the age of juvenility or treating some juveniles in conflict with the law as adult
criminals would be a complete disregard for the UNCRC and the Concluding Observations
(COs) made on India by the Committee on the Rights of the Child (CRC Committee) in the year
2000, 2004 and 2014 [CRC/C/15/Add.115/Para 79, 81; CRC/C/15/Add. 228/Para 76, 77, 78, 79
and 80; and CRC/C/IND/CO/3-4/para 87 and 88].
It must be ensured India does not repeat the mistakes it has corrected by acting upon most of
these concluding observations/recommendations in the past and Delhi government should not
be furthering any such regressive move.
Whilst dealing with juvenile offenders, the UN Convention on the Rights of the Child has
stressed on treatment commensurate with "the child's age and the desirability of promoting
the child's reintegration and the child's assuming a constructive role in society [Article 40 (1)
of the CRC]." Both the 1986 and 2000 Act as one of their objectives speak of bringing the
Indian law in conformity with the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice 1985, and the latter Act also mentions the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty 1990. The first of these UN

Rules underlines that (i) juvenile offenders must be treated differently from adults in
respective legal systems, (ii) laws, rules and provisions must be made for juvenile offenders
and institutions and bodies entrusted with the administration of juvenile justice, (iii) the
emphasis must be on the well-being of the juvenile, (iv) the treatment of juveniles must be
based on their personal circumstances, e.g., family situation, (v) pending trial juveniles should
be kept away from adults by detaining them in a separate institution or in a separate part of
an institution housing adults, (vi) the placement of juveniles in institutions should always be
a disposition of last resort and for a minimum necessary period. [Source: Maharukh
Adenwalla, Beyond the Protection of Juvenile Legislation, Combat Law, Vol 3 Issue 1, April -
May 2004].
A clear understanding of Article 40 in the UNCRC dealing with children in conflict with the
law is laid down in General Comment No. 10, issued by the UN Committee on the Rights
of the Child in 2007, titled ‘Children’s rights on juvenile justice’.
Relevant parts of General Comment No. 10 that need to be borne in mind and followed
are:
Para 36 - The Committee recommends the applicability of juvenile justice system “for all
children who, at the time of commission of an offence [or act punishable under the
criminal law], have not yet reached the age of 18 years.”
Para 37 - “every person under the age of 18 years at the time of the alleged commission
of an offence must be treated in accordance with the rules of juvenile justice.”
Para 38 - “The Committee, therefore, recommends that those States parties which limit
the applicability of their juvenile justice rules to children under the age of 16 [or lower]
years, or which allow by way of exception that 16 or 17-year-old children are treated as
adult criminals, change their laws with a view to achieving a non-discriminatory full
application of their juvenile justice rules to all persons under the age of 18 years. The
Committee notes with appreciation that some States parties allow for the application of
the rules and regulations of juvenile justice to persons aged 18 and older, usually till the
age of 21, either as a general rule or by way of exception”.
Para 71 - According to the CRC, the primary consideration even in cases involving
serious offences by children should be the best interest of the child – “in cases of
severe offences by children, measures proportionate to the circumstances of the
offender and to the gravity of the offence may be considered, including
considerations of the need of public safety and sanctions. In the case of children,
such considerations must always be outweighed by the need to safeguard the well-
being and the best interests of the child and to promote his/her reintegration”.
The principle of best interest of the child must guide all law making.
Relevant parts of General Comment No. 14 on the Principle of Best Interest of the
Child that need to be borne in mind and followed are:
Para 28 - “In criminal cases, the best interests principle applies to children in conflict
(i.e. alleged, accused or recognized as having infringed) or in contact (as victims or

witnesses) with the law, as well as children affected by the situation of their parents
in conflict with the law. The Committee underlines that protecting the child's best
interests means that the traditional objectives of criminal justice, such as
repression or retribution, must give way to rehabilitation and restorative justice
objectives, when dealing with child offenders”.
Para 31 - “…The right of the child to have his or her best interests assessed and
taken as a primary consideration should be explicitly included in all relevant
legislation, not only in laws that specifically concern children….”
Para 32 – “…For individual decisions, the child's best interests must be assessed and
determined in light of the specific circumstances of the particular child. For
collective decisions – such as by the legislator –, the best interests of children in
general must be assessed and determined in light of the circumstances of the
particular group and/or children in general. In both cases, assessment and
determination should be carried out with full respect for the rights contained in
the Convention and its Optional Protocols”.
Para 33 – “The child's best interests shall be applied to all matters concerning the
child or children, and taken into account to resolve any possible conflicts among
the rights enshrined in the Convention or other human rights treaties. Attention
must be placed on identifying possible solutions which are in the child's best
interests”.
Para 39 – “… Potential conflicts between the best interests of a child, considered
individually, and those of a group of children or children in general have to be
resolved on a case-by-case basis, carefully balancing the interests of all parties and
finding a suitable compromise. The same must be done if the rights of other
persons are in conflict with the child’s best interests. If harmonization is not
possible, authorities and decision-makers will have to analyse and weigh the rights
of all those concerned, bearing in mind that the right of the child to have his or her
best interests taken as a primary consideration means that the child's interests
have high priority and not just one of several considerations. Therefore, a larger
weight must be attached to what serves the child best”.
The CRC Committee’s Concluding Observations on India clearly require India to ensure
that children are not subjected to the adult criminal justice system. The following
observations/recommendations of the CRC Committee need to be considered by the
Hon’ble Group of Ministers and the Delhi Government while proposing treatment of
children in conflict above the age of 15, 16 or 17 years alleged to have committee
‘heinous’ offences as adult criminals:
Concluding Observations dated 23 February 2000 - CRC/C/15/Add.115/para 79 and 81
“79. The Committee is concerned over the administration of juvenile justice in India and
its incompatibility with articles 37, 40 and 39 of the Convention and other relevant
international standards. The Committee is also concerned at the very young age of
criminal responsibility - 7 years - and the possibility of trying boys between 16 and 18
years of age as adults. Noting that the death penalty is de facto not applied to persons
under 18, the Committee is very concerned that de jure, this possibility exists. The
Committee is further concerned at the overcrowded and unsanitary conditions of

detention of children, including detention with adults; lack of application and
enforcement of existing juvenile justice legislation; lack of training for professionals,
including the judiciary, lawyers and law enforcement officers, in relation to the
Convention, other existing international standards and the 1986 Juvenile Justice Act; and
the lack of measures and enforcement thereof to prosecute officials who violate these
provisions.
81. The Committee recommends that the State party abolish by law the imposition of the
death penalty on persons under 18. The Committee also recommends that the State
party consider raising the age of criminal responsibility and ensure that persons under
18 years are not tried as adults. In accordance with the principle of non-discrimination
contained in article 2 of the Convention, the Committee recommends article 2 (h) of
the 1986 Juvenile Justice Act be amended to ensure that boys under 18 years are
covered by the definition of juvenile, as girls already are. The Committee recommends
that the 1986 Juvenile Justice Act be fully enforced and that the judiciary and lawyers be
trained and made aware of it. The Committee further recommends that measures be
taken to reduce overcrowding, to release those who cannot be given a speedy trial and
to improve prison facilities as quickly as possible. The Committee recommends that the
State party ensure regular, frequent and independent monitoring of institutions for
juvenile offenders”.
Concluding Observations dated 26 February 2004 - CRC/C/15/Add.228/para 76, 77, 78,
79 and 80
“76. The Committee welcomes the existence of the Integrated Programme for Street
Children but remains concerned at the growing number of street children in the State
party, due notably to the structural situation of the State party as well as to the lack of
proactive policies and programmes of prevention and for the support of the family.
77. The Committee recommends that the State party:
(a) Strengthen and extend its Integrated Programme for Street Children to address the
large and increasing number of street children, with the aim of protecting these children,
…
(c) Ensure that these child victims of physical, sexual and substance abuse are provided
with recovery and reintegration services, protection from arrest and maltreatment by
the police, and effective services for reconciliation with their families and community;
78. The Committee notes the enactment of the Juvenile Justice (Care and Protection of
Children) Act, 2000 but remains concerned that no minimum age of criminal
responsibility is fixed in the new Act and that the minimum age of 7 years found in the
Penal Code is still in force. … The Committee is further concerned that the mechanisms
to enforce the Act have not been set up in most states and that the Act does not apply to
the State of Jammu and Kashmir. In addition, the Committee expresses its concern at
the fact that deprivation of liberty is not used only as a measure of last resort. Finally,
the Committee is deeply concerned that the Prevention of Terrorism Act, 2002 allows
for the prosecution of children by special courts and that the procedure used in these
cases does not respect articles 37, 40 and 39 of the Convention.

79. The Committee recommends that the State party take all appropriate measures to
implement a juvenile justice system that is in conformity with the Convention, in
particular articles 37, 40 and 39, and with other United Nations standards in this field,
such as the United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile
Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of
Juveniles Deprived of Their Liberty, and the Vienna Guidelines for Action on Children in
the Criminal Justice System.
80. In addition, the Committee recommends that the State party:
(a) Amend the Juvenile Justice (Care and Protection of Children) Act, 2000 to set a
minimum age of criminal responsibility that shall be higher than that fixed in the Penal
Code and reflect internationally accepted norms, and consider this age as the age when
the offence was committed; …
(c) Amend the Prevention of Terrorism Act, 2002 so that it fully respects articles 37, 40
and 39 and other related provisions of the Convention when it is applied to children; …
(f) Strengthen rehabilitation and reintegration programmes;
(g) Use deprivation of liberty only as a measure of last resort; and
(h) …”.
Concluding observations on the consolidated third and fourth periodic reports of India,
dated 13 June 2014 -
CRC/C/IND/CO/3-4/para 87 and 88
“87. The Committee notes the efforts made to strengthen the juvenile justice system such
as the setting up of Juvenile Justice Boards (JJBs) in 608 out of 660 districts across the
territory of the State party, as well as the Juvenile Justice Rules of 2007 establishing the
minimum age of criminal responsibility at 18 years. However, it is seriously concerned
that in the Penal Code the minimum age of criminal responsibility is still set at 7 years,
which precludes the application of the Juvenile Justice Rules. It is also concerned at:
(a) Indications that the State party plans to lower the minimum age of criminal
responsibility set in the Juvenile Justice Rules of 2007; …
(d) The lack of age-appropriate separation of children in conflict with the law in
Observation Homes (meant for temporary reception and upon completion of an inquiry)
and Special Homes (for children who have been sentenced), as well as cases of children
in conflict with the law being housed together with children in need of protection;
88. The Committee urges the State party to bring its juvenile justice system fully into
line with the Convention, in particular articles 37, 39 and 40, and with other relevant
standards, and the Committee’s general comment No. 10 (CRC/C/GC/10, 2007). In
particular, the Committee urges the State party to:
(a) Give effect to the Juvenile Justice Rules of 2007 establishing the minimum age of
criminal responsibility at 18 and maintain it at an internationally acceptable level; …
(d) Promote alternative measures to detention, such as diversion, probation,
mediation, counselling, or community service, wherever necessary, and ensure that
detention is used as a last resort and for the shortest possible period of time and that it
is reviewed on a regular basis with a view to withdrawing it;

(e) In cases where detention is necessary, ensure age-appropriate separation of
children in Observation and Special Homes and that children in conflict with the law are
not detained together with children in need of protection or with adults and that
detention conditions are compliant with international standards, including with regard
to access to education and health services; and
(f) …”.
11. The Supreme Court of India has time and again reiterated the need for a uniform
definition of the child and uniform treatment of child offenders, and upheld the
Constitutional validity of the present JJ law and the need for a separate juvenile justice
system for juvenile offenders irrespective of the nature of offence. Compilation of case
laws by CCL-NLSIU Bangalore, Dr. Ved Kumari and HAQ: Centre for Child Rights highlight the
following judgments/orders that need to be considered by Delhi Government while
deciding on the question of juvenility and treatment of some juvenile offenders as adult
criminals.
In Sheela Barse v. Union of India, AIR 1986 SC 1773, the Supreme Court observed: “If a child
is a national asset, it is the duty of the State to look after the child with a view to ensuring
full development of its personality. That is why all the statutes dealing with children provide
that child shall not be kept in jail. Even apart from this statutory prescription, it is
elementary that a jail is hardly a place where a child should be kept. There can be no doubt
that incarceration in jail would have the effect of dwarfing the development of the child,
exposing him to baneful influences, coarsening his conscience and alienating him from the
society. … Even where children are accused of offences, they must not be kept in jails. It is
no answer on the part of the State to say that it has not got enough number of remand
homes or observation homes or other places where children can be kept and that is why
they are lodged in jails. It is also no answer on the part of the State to urge that the ward in
the jail where the children are kept in separate from the ward in which the other prisoners
are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind
of the child, estranging him from the society and breeding in him aversion bordering on
hatred against a system which keeps him in jail.”
Emphasizing on the need for State Governments to establish dedicated Juvenile Courts for
dealing with children, the Supreme Court stated: “Really speaking, the trial of children must
take place in the Juvenile Courts and not in the regular criminal courts. There are special
provisions enacted in various statutes relating to children providing for trial by Juvenile
Courts in accordance with a special procedure intended to safeguard the interest and
welfare of children, but, we find that in many of the States there are no Juvenile Courts
functioning at all and even where there are Juvenile Courts, they are nothing but a replica of
the ordinary criminal courts, only the label being changed. The same Magistrate who sits in
the ordinary criminal court goes and sits in the Juvenile Court and mechanically tries cases
against children. It is absolutely essential, and this is something which we wish to impress
upon the State Governments with all the earnestness at our command that they must set up
Juvenile Courts one in each district, and there must be special cadre of Magistrates who
must be suitably trained for dealing with cases against children.”

In Kakoo v. State of Himachal Pradesh, AIR 1976 SC 1991, the Supreme Court observed that
“In the case of child offenders, current penological trends command a more humanitarian
approach."
In Satto v. State of Uttar Pradesh, (1979) 2 SCC 628, Justice Krishna Iyer explained what the
approach of courts towards juveniles should be: “Correction informed by compassion, not
incarceration leading to degeneration, is the primary aim of this field of criminal justice.
Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and the pervasive
humanism which bespeaks the super parental concern of the State for its child-citizens
including juvenile delinquents. The penal pharmacopeia of India, in tune with the
reformatory strategy currently prevalent in civilised criminology, has to approach the child
offender not as a target of harsh punishment but of humane nourishment.”
The Supreme Court has also recognized and reinforced the legislative intention of treating
juveniles differently and under the juvenile justice system in several judgments [Sanjay Suri
v. Delhi Administration, AIR 1988 SC 414; Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720;
Gopinath Ghosh v. State of West Bengal, AIR 1984 SC 237; Umesh Singh v. State of Bihar,
AIR 2000 SC 2111, Pratap Singh v. State of Jharkhand]. The courts have also been critical of
the decision to refuse bail to juveniles based on the nature of the offence – Vijendra Kumar
Mali v. State of UP, 2003 CriLJ 4619 (Allahabad).
In Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, a constitution bench observed that,
“It is settled law that the interpretation of the Statute of beneficial legislation must be to
advance the cause of legislation to the benefit for whom it is made and not to frustrate the
intendment of the legislation.”
Two recent cases in this regard are Salil Bali vs. Union of India [Writ Petition (C) No. 10 of
2013] and Dr. Subramaniam Swamy and Ors. vs. Raju and Anr. [Criminal Appeal No. 695 of
2014]. In the latter, the Supreme Court examined juvenile justice legislation in other
countries, including Canada, United Kingdom and United States of America, and observed
that legislation of other countries “would hardly be of any consequence so far as our country
is concerned.” In fact, the Court went to the extent of saying that “If the legislature has
adopted the age of 18 as the dividing line between juveniles and adults and such a decision
is constitutionally permissible and the enquiry by the Courts must come to an end. Even
otherwise there is a considerable body of world opinion that all under 18 persons ought to
be treated as juveniles and separate treatment ought to be meted out to them so far as
offences committed by such persons are concerned. The avowed object is to ensure their
rehabilitation in society and to enable the young offenders to become useful members of
the society in later years. India has accepted the above position and legislative wisdom has
led to the enactment of the JJ Act in its present form. If the Act has treated all under 18 as a
separate category for the purposes of differential treatment so far as the commission of
offences are concerned, we do not see how the contentions advanced by the petitioners to
the contrary on the strength of the thinking and practices in other jurisdictions can have any
relevance”.
12. Even if popular understanding argues that children today are maturing faster and the law
must respond to a situation where they commit crimes knowing fully well the
consequences of their act and having every intention to commit such crime, evidence
from neurosciences and brain development research cannot be ignored as it shows that
the human brain develops fully only by early 20s, and hence people below that age tend
to be impulsive and show greater risk taking behaviour.

The gray matter isn’t
completely developed in early
20’s and it’s a little later for
boys than for girls.
The last part of the brain to develop is the frontal cortex, the frontal lobe, which is
responsible for executive decision-making and that is where adolescents are more
impulsive, they take more risk and they are unable to really determine the consequences of
their behaviour.
HAQ’s own experience of working with children in law shows that they seldom commit
sexual crimes all by themselves. Sexual crimes involving juveniles are most often done in a
group, under peer influence. And when that it not the case, the offender is usually much
younger age in age (between 9 and 13 years) involved in sexual experimentation or it is a
case of “love affair” and/or “elopement”, where the boy gets penalised despite engaging in
consexual sexual activity.
Recent scientific findings on the maturity of the adolescent brain has led to a shift even in
USA towards less punitive methods of dealing with juvenile crime – “since 2009, at least 20
states have closed or downsized youth facilities or reduced their reliance on incarceration. In
many places, the money saved is being redirected to programs that supervise and treat
youths in their communities. States that reduced juvenile confinement most dramatically
also saw the greatest decline in juvenile arrests for violent crimes.”*Giudi Weiss, The Fourth

Wave – Juvenile Justice Reforms for the Twenty-First Century, Winter 2013, p.4,
Commissioned by the National Campaign to Reform State Juvenile Justice Systems for the
Juvenile Justice Funders’ Collaborative. Available at: http://raisetheageny.com/wp-
content/uploads/ 2011/08/The-Fourth-Wave.pdf].
The Supreme Court too in Subramaniam Swami’s Case, while rejecting the plea for lowering
the age of juveniles in conflict with law, contains details of the neurological scientific findings
about the adolescent brain structure and its functioning which is different from children and
adults.
An overview of research findings in USA published in 2014 specifically focusing on child
sexual offenders analyses all the existing research in the USA on the impact of transfer of
juvenile sex offenders to adult criminal justice system and shows that existing research does
not prove that transfer of such children or sex registry is useful. On the other hand, it has
some negative results.
Significant rulings at the federal level also have helped reshape juvenile justice policies. In a
2005 case, Roper v. Simmons, the U.S. Supreme Court held the Eighth Amendment’s ban
against cruel and unusual punishment prohibits juveniles from being sentenced to death for
crimes they committed before they reached age 18. The court cited MacArthur Research
Network research as evidence that adolescents’ brains are not fully developed, which affects
mental abilities such as self-control and, thus, their ability to take responsibility for their
actions. The Court also held that there was a “consensus” in society that juveniles lack the
requisite “culpability” for their crimes, as demonstrated by the fact that 47 percent of state
legislatures had already outlawed execution of juveniles in the 1980s and 1990s.
13. Treating offending children as adults cannot address public safety concerns. On the
country, children exposed to the adult criminal justice system are harder to reform and
tend to reoffend more than others.
The independent Task Force on Community Preventive Services set up by the US Centre for
Disease Control concluded that: “….transfer policies have generally resulted in increased
arrest for subsequent crimes, including violent crime, among juveniles who were transferred
compared with those retained in the juvenile justice system. To the extent that transfer
policies are implemented to reduce violent or other criminal behavior, available evidence
indicates that they do more harm than good” *Effects on Violence of Laws and Policies
Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on
Recommendations of the Task Force on Community Preventive Services, Centre for Disease
Control and Prevention, MMWR 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/
rr5609a1.htm]. Studies have found that young people transferred to the adult criminal
justice system have approximately 34% more re-arrests for felony crimes than youth
retained in the youth justice system. Around 80% of youth released from adult prisons
reoffend often going on to commit more serious crimes.
In 2010, the US Supreme Court abolished the sentence of life without the possibility parole
for youth convicted of non-homicide crimes in Graham v. Florida, building on the reasoning
it applied in Roper. On June 25, 2012, the Court in Miller v. Alabama ruled that imposing
mandatory life sentences without the possibility of parole on juveniles also violates the
Eighth Amendment.
Twelve states—Alaska, Colorado, Kansas, Kentucky, Maine, Montana, New Jersey, New Mex-
ico, New York, Oregon, Vermont and West Virginia—and the District of Columbia currently

prohibit juvenile life without parole sentences or have no juvenile offenders who are serving
the sentence. In 2006, Colorado changed its mandatory sentence of life without parole to 40
years before the possibility of parole, and in 2011, in response to the Graham ruling, Nevada
ended the sentence of life without parole for juveniles for non-homicide crimes.
A major trend in juvenile justice policy in the past decade has been to expand the
jurisdiction of the juvenile court by increasing the upper age of jurisdiction. Today, 38 states
set the maximum age at 17, 10 states—Georgia, Illinois, Louisiana, Massachusetts, Michigan,
Missouri, New Hampshire, South Carolina, Texas and Wisconsin—set the age at 16, and two
states—North Carolina and New York—set it at 15; therefore, 16- and 17- year-olds
automatically are tried in the adult system.
In 2007, a Connecticut law raised the age of juvenile court jurisdiction from 16 to 18.
Connecticut previously had the largest number of inmates under age 18 in its adult system.
According to recent data, the proposed change in the age of juvenile jurisdiction moves
more than 10,000 new cases a year from the adult criminal justice system to the juvenile
justice system. Research also shows that moving 16- and 17-year-old youth out of the adult
system into the juvenile system will return about $3 in benefits for every $1 in cost.
Also in 2007, the Rhode Island General Assembly reversed the governor’s recommendation
to decrease the age of juvenile jurisdiction from 18 to 17 and restored the jurisdiction age to
18. The same year, Missouri expanded juvenile court jurisdiction to include status offenders
age 18 and younger. In 2009, an Illinois act raised the age of juvenile court jurisdiction from
17 to 18 for youth charged with misdemeanor offenses, while Colorado expanded eligibility
for sentencing for select youth ages 18 to 21 to the youthful offender system instead of to
the adult offender population.
In 2010, a Mississippi law allows juveniles charged with certain felonies— robbery, drug
offense and arson— to remain in the juvenile justice system. Previously, all 17-year-olds
charged with felonies were tried in adult court. The same year, an Oklahoma measure
provided that those up to six months into age 18 can be adjudicated in the juvenile system
for misdemeanors.
In December 2012, Office of Juvenile Justice and Delinquency Prevention, Office of Justice
Programs, U.S. Department of Justice came out with the Report of the Attorney General’s
National Task Force on Children Exposed to Violence, which recommended on page 23, point
6.9 that “No juvenile offender should be viewed or treated as an adult. Laws and regulations
prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing
them to harsh punishments that ignore and diminish their capacity to grow must be
replaced or abandoned.” [Source: http://www.justice.gov/defendingchildhood/cev-rpt-
full.pdf].
These actions are significant because extending the age limit in juvenile court affects the
lives of hundreds of thousands of youths.
Research from countries that have tried this model reinforces the failure of such models.
India should learn from experiences in other countries since the present attempt to treat
some juvenile offenders as adults has come under scrutiny by its own courts and is
witnessing a reversal in other juridisctions in the world. Most importantly, such a step would
go down in history as a blot on India and Delhi’s progressive and protective legislative
history of more than 150 years.

14. Statistics too do not support the proposal of transferring juveniles of certain age
apprehended for heinous offences to the adult criminal justice system.
The share of crimes committed by juveniles to the total IPC crimes committed has stood
steadily at around 1% in the last decade (ranging from 1 to 1.2 % in the last five years) and
does not show any alarming increase contradictory to the picture painted by the proponents
of the tough approach system.
Crimes By
Children
2006 2007 2008 2009 2010 2011 2012 2013 2014 %
change
over
2013
Percentage
of Juvenile
Crimes to
Total
cognizable
Crimes
1.12% 1.15% 1.17% 1.13% 1.02% 1.08% 1.17% 1.20% 1.18% Decline
by
0.02%
Violent Crimes by
Children aged 16-18
years
ALL INDIA
2012 2013 2014 Percentage
Change
(2012 to
2013)
Percentage
Change
(2013 to
2014)
Affecting
Life
Murder 990 1007 844 1.7 -16.2
Attempt to
commit
Murder
876 825 806 -5.8 -2.3
Culpable
homicide
not
amounting
to murder
48 71 47 47.9 -33.8
Kidnapping
&
abduction
789 1121 1635 42.1 45.9
Dowry
death
66 60 35 -9.1 -41.7
Affecting
Women
Rape 1175 1884 1488 60.3 -21.0
Affecting
Property
Dacoity 174 160 227 -8.0 41.9
Preparation
& assembly
to commit
dacoity
92 87 105 -5.4 20.7
Robbery 767 904 1055 17.9 16.7
Affecting
Public
Safety
Riots 1690 1486 1733 -12.1 16.6
Arson 80 69 60 -13.8 -13.0
TOTAL 6747 7674 8035 13.7 4.7

Despite much furore over increasing juvenile crimes in 2013 and a call for stringent
measures against offending children, the overall juvenile crime rate shows a decline in 2014
from 1.20% to 1.18%.
The increase in IPC crimes alleged to have been committed by juveniles was higher in 2012-
13 (13.56)% as compared to 2013-14 (5.65%).
Number of children in the 16-18 age category booked for violent crimes in 2012 was 6747. In
2013, it went up to 7674 i.e, an increase of 13.7%. In 2014, this figure was 8035, showing a
4.7% increase over 2013.
In 2014, a total number of 36,735 cases of rape were registered in the country as against
33,707 in 2013. Number of juveniles in the 16-18 age category apprehended for rape cases
in the year 2013 was 1388, while in 2014 the number is 1488. In 2003, the percentage of 16-
18 year old juveniles apprehended for rapes to total number of persons arrested for rape
was 1.5%. In 2013, the figure almost doubled to 3.3%. But in 2014, it has come down to
3.1%, showing slight decline in the involvement of juveniles in rape cases.
In 2013, juveniles between 16 and 18 years apprehended for murder and rape constituted
2.17% and 3.5% of all juveniles apprehended for IPC crimes. They also constituted a meager
1.30% and 3.29% of all persons arrested for murder and rape in 2013.
In 2014, juveniles in the 16-18 age category apprehended for murder went down by 16.2%
and those apprehended for rape went down by 21%. They constituted only 1.98% of all
persons arrested for murder and rape in 2014, thereby lending zero credence to the
statements that they are significantly responsible for heinous crimes.
Children constitute 40% of the country’s 1.2 billion population. Of these, 73,767,907 children
are in the 16-18 year age category. 1488 children in the 16-18 year age category
apprehended for rape in 2014 account for only 0.002% of all children in the country in this
age group. Even these figures need to be interrogated and analysed further.
We must not forget that all these figures are about alleged rapes and not confirmed rapes.
Young people the world over are easily impressionable and tend to follow what they see
around them and actions of adults around them. As a society we are only churning out more
violence and a lot of which is sexual violence. While this does not justify any crime, it does
certainly call for a different treatment for juveniles, keeping in mind the impressionable age,
exposure to sexually explicit material without any guidance, absence of adequate support
systems when needed and the fact that there is no data available on recidivism among
juveniles when it comes to sexual offences like rape.
As already stated, our experience of working with children in conflict with the law has shown
that very often when two young people in this age group have consensual sex or elope with
each other against their parent’s wishes, the parents of the girl file charges of kidnapping
and/or rape against the boy as they want to break it up. All these cases also add to the
inflated figures of ‘rape by juveniles’.

Share of Juveniles in Rape Cases – All India & Delhi
Experience of organisations working with children in conflict with law tells that children
caught for the offence of rape do not come back into the juvenile justice system as repeat
offenders.
Recidivism among juveniles
Recidivism among juveniles has come down over the last three years from 11.2% in 2012 to
5.4% in 2014.
Recidivism – All India Data
Year Juvenile apprehended
for a repeat offence
Total juveniles
apprehended
Recidivism
(in per cent)
2006 2545 32145 7.9
2007 2936 34527 8.5
2008 3574 34507 10.4
2009 3708 33642 11.0
2010 3674 30303 12.1
2011 3897 33887 11.5
2012 4476 39822 11.2
2013 4145 43506 9.5
2014 2609 48230 5.4
Average for 2001 to 2014 is 10.02%.
2013 2014
Total Rapes
cases
Rape cases
involving
Juveniles
Share of
Juveniles in
Rape Cases
Total
Rapes
cases
Rape cases
involving
Juveniles
Share of
Juveniles
in Rape
Cases
India 33707 1884 5.6 36735 1989 5.4
Delhi 1636 137 8.4 2096 120 5.7
DELHI – INVOLVEMENT OF JUVENILES IN RAPE CASES
Rape cases
alleged to be
committed by
Juveniles
2012 2013 2014
% Change 2012-
2013
% Change 2013-
2014
Juvenile Cases 57 137 120 + 140.35 - 12.41
Total Rape
Cases
706 1636 2096 + 131.73
+28.12
Percentage of
Rapes by
Juveniles to
Total Rape
cases
8.1% 8.4% 5.7%
Increase by 0.3
percentage
points
Decrease by 2.64
percentage points

Data Source:
Government of India Data Portal. Url: http://data.gov.in/dataset/all-india-and-state-
wise-distribution-juveniles-arrested-under-ipc-and-special-and-local-law
Ministry of Statistics and Programme Implementation 2013. Url: http://mospi.nic.in/
National crime Records Bureau, Crime in India Publications
Recidivism - Delhi
Year Juveniles
Apprehended under
IPC and SLL Crimes
New Delinquent Recidivists Recidivism
(%)
2001 858 835 23 2.68
2002 1192 1146 46 3.86
2003 802 737 65 8.10
2004 909 830 79 8.69
2005 1250 1208 42 3.36
2006 1513 1111 402 26.57
2007 970 811 159 16.39
2008 523 465 58 11.09
2009 586 518 68 11.60
2010 627 580 47 7.50
2011 942 737 205 21.76
2012 1572 1402 170 10.81
2013 2140 2000 140 6.54
2014 2547 2333 214 8.40
Average for 2001 to 2014 is 10.53%
Data Source:
Government of India Data Portal. Url: http://data.gov.in/dataset/all-india-and-state-wise-
distribution-juveniles-arrested-under-ipc-and-special-and-local-law
Ministry of Statistics and Programme Implementation 2013. Url: http://mospi.nic.in/
National crime Records Bureau, Crime in India Publications
Indeed the rate of repeat offending among juveniles has gone up in Delhi between 2013 and
2014. But officially there is no data to inform whether such repeat offending is with respect
to petty or non-serious offences or serious offences. Given the fact that involvement of
juveniles in rape cases has gone down in Delhi, repeat offending by juveniles in rape cases is
unlikely. Experience of working with children in conflict with the law too shows that children
often repeat offences like theft and robbery rather than “heinous” offences like rape.
When it comes to such repeat offending by juveniles, the question to be asked is what has
the government done to stop this? Where are the individual care plans mandated under the
juvenile justice law, which can help identify cases requiring specialised and additional input?
Where are the tools for behaviour assessment and trained and skilled staff to carry out such
assessments? Where are the probation officers, meant to supervise every case once the
child is released on probation? Are these probation officers equipped to fulfil this role?
These questions are serious and require immediate attention!

15. In the absence of any definition of “heinous offences” under the criminal law, how will it
be decided whether the offence alleged to have been committed by a child is “heinous”
or not? There has to be some rational basis besides emotional telling. The Union
Government of India has proposed in Section 2(33) of the JJ Bill of 2014 that “heinous
offences” would include “the offences for which the minimum punishment under the Indian
Penal Code or any other law for the time being in force is imprisonment for seven years or
more.”
If this definition is given effect, persons above 16 years will face severe punishments even
for offences that are not against the body, such as trading in certain drugs, attempts to
commit robbery armed with a weapon, etc. They can also be tried as adults under the
Protection of Children from Sexual Offences Act, 2012 and the Indian Penal Code for
engaging in consensual sex with persons below the age of 18 years. Not only that, a child
may be tried as adult under many other laws such as section 59 (IV) of the Foods Safety and
Standards Act, 2006, wherein many children who work in restaurants and dhabas can be
booked if “God forbid” they serve any “unsafe food where a contravention or failure results
in death of the person”.
The damaging effects of placing adolescents who are at a difficult transitional phase in their
lives along with adult criminals will only serve to place these young people at risk of being
physically, sexually and emotionally abused and what is worse – being further criminalized
by seasoned adult criminals in adult jails. This obviously regressive outcome is in stark
contradiction to the aims outlined in the Preamble of the Bill as well as the aspirations of the
wider public for a safer healthier society.
A list of various offences entailing punishment of more than seven years that would qualify
as “heinous” offences if the definition proposed by the Central Government is accepted, is as
follows:
OFFENCES WITH MORE THAN SEVEN YEARS IMPRISONMENT
Sl.
No.
Law Description Punishment
A. The Indian Penal Code 1860
1. s. 121 Waging or attempting or abetting to
wage war against Government of India
Death or Imprisonment for Life
2. s.195 IPC 195. Giving or fabricating false evidence
with intent to procure conviction of
offence with imprisonment for life or
imprisonment.
Punishment same as the person
convicted for that offence
would be liable to be punished –
min 7 years
3. s. 195A Threatening any person to give false
evidence – If any innocent person is
convicted and sentenced in consequence
of such false evidence with death or
imprisonment for more than seven years
Punishment same as the
sentence received by innocent
person
4. s. 302 Punishment for Murder Death or Imprisonment for Life
5. s. 303 Punishment for murder by life-convict Death

6. s. 304B Dowry Death Minimum 7 years and can
extend to life
7. s. 311 Punishment for thugs Imprisonment for Life
8. s. 326A Acid Attack causing permanent or partial
damage/deformity
Min 10 years and up to life
9. s. 370(2) Trafficking Min 7 years and upto 10 years
10. s. 370(3) Trafficking of more than one person Min 10 years upto life
11. s. 370(4) Trafficking of minor Min 10 years upto life
12. s. 370(5) Trafficking of more than one minor Min 14 years upto life
13. s. 370(6) Trafficking of minor on more than one
occasion
Imprisonment for life –
remainder of that persons’
natural life
14. s. 370(7) Trafficking by public servant or police
officer
Imprisonment for life –
remainder of that persons’
natural life
15. s. 376(1) Punishment for Rape Min 7 years up to life
16. s.376(2) Custodial Rape, rape on minor or
pregnant women, etc.
17. s.376A Rape resulting in death or permanent
vegetative state of women
Min 20 years or remainder of
persons’ natural life or death
18. s. 376D Gang Rape Min 20 years or remainder of
persons’ natural life
19. s. 376E Repeat of s.376, 376A or 376D Imprisonment for remainder of
persons’ natural life or death
20. s. 397 Robber, or dacoity, with attempt to
cause death or grievous hurt
Min 7 years
21. s. 398 Section 398. Attempt to commit robbery
or dacoity when armed with deadly
weapon
Min 7 years
B. The Commission of Sati (Prevention) Act, 1987
22. s.4(1) Abetment of Sati when sati committed Imprisonment for Life or death
23. s.4(2) Abetment of sati – when sati attempted Imprisonment for Life
C. The Narcotic Drugs and Psychotropic Substances Act, 1985
24. s.15(c) Punishment for contravention in relation
to poppy straw involving commercial
Min 10 years and up to 20 years

quantity
to prepared opium involving commercial
quantity
26. s.18(b) Punishment for contravention in relation
to opium poppy and opium involving
commercial quantity
27. s.19 Punishment for embezzlement of opium
by cultivator
28. s.20C Punishment for contravention in relation
to cannabis plant and cannabis involving
commercial quantity
to manufactured drugs and preparations
involving commercial quantity
to psychotropic substances involving
commercial quantity
31. s.23(c) Punishment for illegal import in to India,
export from India or transhipment of
narcotic drugs and psychotropic
substances involving commercial
quantity
32. s.24 Punishment for external dealings in
narcotic drugs and psychotropic
substances
33. s.25 Punishment for allowing premises, etc.,
to be used for commission of an offence
As much as the punishment for
that offence
34. s.27A Punishment for financing illicit traffic
and harbouring offenders
35. s.29 Punishment for abetment and criminal
conspiracy
As much as the punishment for
that offence

G. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
42. s.3(2)(i) Giving or fabricates false evidence intending
to lead to a conviction of any member of a
Scheduled Caste or a Scheduled Tribe to be
convicted of a capital offence
Imprisonment for Life
36. s.31A Repetition by persons convicted of
commission, attempt, abetment,
conspiracy of offences under s.19, 24,
27A and for offences involving
commercial quantity of any narcotic
drug or psychotropic substance who are
subsequently convicted of the
commission, attempt, abetment,
criminal conspiracy of an offence in
relation to certain ND&PS above a
specified quantity
Death
D. The Arms Act, 1959
37. s. 27(2) Use of any prohibited arms or prohibited
ammunition in contravention of section
7 (relating to ‘Prohibition of acquisition
or possession, or of manufacture or sale,
of prohibited arms or prohibited
ammunition’)
Minimum 7 years and up to life
38. s. 27(3) Use of any prohibited arms or prohibited
ammunition or does any act in
contravention of section 7 that results in
death
Death
E. The Unlawful Activities (Prevention) Act, 1967
39. s.
10(b)(i)
Penalty for being member of an unlawful
association, etc. who does any act that
results in death of any person
Death or imprisonment for life
40. s.
16(1)(a)
16. Punishment for terrorist act if such act
has resulted in the death of any person
Imprisonment for life or Death
F. The Food Safety and Standards Act, 2006
41. s. 59(iv) Punishment for unsafe food where a
contravention or failure results in death of a
person

If an innocent member of a Scheduled Caste
or a Scheduled Tribe be convicted and
executed in consequence of such false or
fabricated evidence
Death
43. s.3(2)(iv) Commission of Mischief by fire or explosive
substance intending to cause destruction of
a building used by a member of SC/ST
44. s.3(2)(v) Commission of any IPC offence with
imprisonment of more than 10 years against
the person or property of a member of
SC/ST
H. The Terrorist and Disruptive Activities (Prevention) Act, 1987
45. s.3(2)(i) Commission of a terrorist act which has
resulted in death of any person
Death or Imprisonment for Life
I. The Maharashtra Control of Organised Crime Act, 1999
46. s. 3(1)(i) Punishment for organised crime which has
resulted in death of a person
Death or Imprisonment for life
Laws prescribing death penalty in India
NDPS Act (Section 31A), SCST Prevention of Atrocities Act Section 3(2)(i)), Commission of Sati
(Prevention) Act, UAPA Act, MCOCA Act
16. Several women’s groups have come out against the proposed Bill to reiterate that
treating juvenile offenders as adults will not address the issue of women’s safety. The
largest women’s rights group in the country, All India Democratic Women’s Association
(AIDWA), in a Press Statement dated 16 July 2014 has opposed the tampering with the cut
off age of 18 years in the juvenile justice act and is of the view that “punishment cannot be
based on vindictiveness or revenge, and must entail the possibility of reform and correction.
This applies even more for young adolescents and throwing them into prisons with
hardcore criminals puts paid to any possibility of reform. To treat them at par with fully
formed adults, which is what putting the nature of crime ahead of age does, is to ascribe an
agency in decision making that does not really exist”. Another women’s rights group in
Delhi, Jagori, that works specifically on violence against women, joined several individuals
and organizations as a Respondent in the petition filed by Dr. Subramaniam Swami in the
Supreme Court of India to uphold the provisions of current juvenile justice law and
treatment of child offenders only under this law. As a result, the petitioners’ challenge to
the constitutionality of the Juvenile Justice Law and seeking adult treatment for juveniles
booked for heinous offences was not upheld by the apex body. Jagori too has been of the
view that justice is not about revenge and vindictiveness and strongly feels that young
offenders should not be subjected to the adult criminal justice system and harsher
sentencing.

Qs. 3. Steps to be taken for the possibility of completing investigations in time bound manner.
Qs. 4. Whether accountability of investigating teams or forensic experts could be fixed, if charges
are delayed.
Qs. 5. How cases could be disposed expeditiously by judiciary
Response:
Child Sexual Abuse – Crime Recording in Delhi Speaks Volumes
Rape of
Children
below the
age of 18
years
Incest Other rapes Total Rape Cases
(Incest + Other Rapes)
Percentage
Change in
Total
Rapes
between
2013 -14
2013 2014 2013 2014 2013 2014
Delhi 38 84 754 924 792 1008 +27.3
Total (All-
India)
393 433 12911 14102 13304 14535 +9.3
Source: Crime in India publications, NCRB
Indeed crime statistics as shown above, call for serious interventions on various aspects.
Even though the fact of sexual abuse is established in law, shoddy investigation, poor evidence, lack
of support to the victims and their families to feel protected and withstand the rigours of the justice
delivery system remain a concern requiring immediate measures.
While time bound investigation, speedy trials and disposal of cases is critical to serve the interests of
the victim, they often carry the risk of increased acquittals for lack of evidence or poor investigation.
Any decision on fast tracking therefore needs to be viewed in this backdrop.
The real answers lie in strengthening the systems response to sexual crimes by investing in existing
laws, be it the laws relating to sexual offences or juvenile justice. It is high time we invested in
genuinely supporting the victims along with restorative justice processes that can lead to a healthier
society and reduce violence against women and children in the long run.
Schemes such as the Delhi Victim Compensation Scheme and the Scheme for Children of Prisoners
need to be reviewed and revised to address the needs of child victims of sexual abuse and their
families, who receive no support from the society that wants death penalty for rapists on one hand
and does not shy one bit from shaming and labelling victims of rape! The Delhi Witness Protection
Scheme is the first of its kind in the country and a much needed move. But the scheme is yet to get
implemented.
Most people are not aware of their rights and that is the first step to be taken if implementation of
laws is to be ensured. Despite paraphernalia to help rape victims, none responsible for it ever share
with the victims and their families information pertaining to their case or about their legal rights.
As mentioned earlier, it is inevitably the poor implementation of existing laws that fails the victims
as well as the ends of justice laid down in these laws. Hence there are several areas requiring
improvement. At the same time, some of the concerns can only be addressed through amendments
to the POCSO Act as well as the criminal laws.

Some Suggestions that may be considered by the Delhi Government are as follows:
1. Improve investment in child protection.
HAQ’s Budget for Children (BfC) Analysis shows that out of every 100 rupees in the State
Budget, protection of children has received only forty five paisa...this when Delhi accounts
for more than one fourth of the total crimes against children in India and has seen an
increase of 5.6 per cent in 2011 over 2010.
In 2013-2014, Protection sector received 0.45 per cent share in total Delhi State Budget and
2.47 per cent in total BfC. However, even with an increase of 0.02 per cent over the previous
year, protection still remains the most under financed sector.
Indeed the allocation for the Integrated Child Protection Schemes (ICPS) saw an increase in
2013-14 due to an increase in the Government of India’s contribution to it of Rs. 11 Crore
(Grant-in-Aid to State Child Protection Society (SCPS). The State share however, was only
Rs. 0.5 Crore in the year 2013-14.
And some schemes or child protection budget heads have in fact witnessed a questionable
decline.
Major programmes/schemes with reduced allocation in 2013-2014
(In Rs. Thousand)
Programmes/Schemes
BE RE AE BE RE BE
2011-12 2011-12 2011-12 2012-13 2012-13 2013-14
Kasturba Niketan 6950 9040 7333 10501 7771 8900
Children's
Home/Observation
Home for Boys
62950 70613 68289 78816 75616 75380
Sanskar Ashrams for
Denotified Tribes and
SC Girls and Boys
5140 5514 5167 8770 5717 6380
Protective Home at
Nari Niketan, Tihar
15 0 0 15 0 0
Village Cottage Homes 11115 10411 9230 11526 9848 13170
DCPCR 15000 8768 7500 15000 9000 10000
Financial assistance to 1700 1350 881 2250 1076 1850

Non-Displaced
Destitute Men,
Women and Children
Rehabilitation of Child
Labour
15000 0 0 55000 5000 10000
Distinct Budget for Implementation of the POCSO Act
Currently, there is no separate or distinct budget for implementation of the POCSO
Act. ICPS, the flagship child protection scheme too does not have a budget for
translators, interpreters, support persons, counsellors, special educators, their training,
training of special public prosecutors etc., which is a non-negotiable for proper
implementation of the POCSO Act.
Need to invest in human resource
There is a dearth of Welfare Officers and Probation Officers and their competence too
is questionable.
A lot of the child protection staff is hired on contractual employment. Poor
remuneration and inordinate delays in payment of monthly remuneration, very little
amounts paid by way of travel reimbursement knowing that they are supposed to carry
out home visits and conduct follow-ups, etc., are some of the factors responsible for
poor implementation of child protection laws, particularly the JJ Act, which has a
preventive, protective and rehabilitative approach to child protection.
Training
Lack of regular training of child protection personnel is another area requiring
immediate investment. It is shocking to see that the child protection personnel in the
Delhi Government are no different from the Delhi Police when it comes to dealing with
children. Just as FIRs for a certain type of offence read alike, reports of Welfare Officers,
Probation Officers, Counsellors and Social Workers also read alike, as if there is formula
that applies to every child in the child protection system.
Another area of training requiring substantial investment is training of police in
investigation skills and training of people responsible for forensic tests. As more and
Should it not be a matter of concern that the salaries prescribed under the programme for
professionals responsible for implementation of the ICPS scheme is very low and in some cases
even below the minimum wages?
1 District Child Protection Officer (DCPO) @ Rs. 19,000/- per month
1 Protection Officers, Institutional Care @ Rs. 12,000/- per month
1 Protection Officer, Non-Institutional Care @ Rs. 12,000/- per month
1 Legal cum Probation Officer @ Rs. 12,000/- per month
1 Counsellors @ Rs. 8,000/- per month
2 Social Worker @ Rs. 8,000/- per month
1 Accountant @ Rs. 8,000/- per month
1 Data Analyst @ Rs. 8000/- per month
1 Assistant cum Data Entry Operator @ Rs. 5000/- per month

more women police officers are to get involved in handling POCSO cases and cases of
violence against women, their training in investigation skills becomes even more
imperative.
Gender sensitization trainings among both men and women in the police force must be
carried out at the police station level. Even today, it is shameful to see Women
Investigating Officers waiting for their male colleagues to return from the Court so that
they can consult them on how to proceed with a POCSO complaint. Many women police
officers do not go back home in their uniform as they are yet to feel empowered enough
to face the wrath of the patriarchal communities to which they belong, where anyways
there is little acceptance of women going out to work and to have them in the police
force is perceived as a sin. To expect women who are unable to fight their own battles
provide justice to others is asking for too much.
Selection of CWC and JJB members too requires investment of resources in terms of
investing in a proper selection process.
Recently, a CWC asked a child victim of sexual abuse to take off his clothing to prove
abuse. The CWC did nothing to get the FIR registered. The child continued to go to the
same school where he had faced sexual abuse at the hand of a teacher and the abuse
continued. It was only through NGO intervention that the FIR was registered and the
child received some attention. Another CWC initially refused to provide shelter to a child
on grounds of jurisdiction and once again, only through NGO intervention the child was
able to find a safe place. There are several examples of lack of basic sensitivity among
CWC Members, which can be avoided if there is a proper selection process in place. A
10-15 minute interview will not help. Without any performance appraisal, renewal of
tenure of CWCs members is also not a good practice. The draft advisory developed by a
Sub-Committee of the Juvenile Justice Committee of Delhi High Court for amendment to
the Delhi Government’s Juvenile Justice Rules may be considered to ensure both proper
selection as well as an oversight cum complaints mechanism that can look into the
functioning of individual members. The advisory is available on
http://www.wcddel.in/pdf/AdvisoryAmendments30092013.pdf
There is no budget for after care programmes for children to help in their smooth
transition from childhood to adulthood.
The need to invest in after care is as important if it is to be ensured that children do not
fall between the cracks and into the same situation of drudgery once they move out of
institutional care. In fact after care should also be extended to children who were not in
institutional care, but require such support to help them live with dignity.
The condition of after care is deplorable and its monitoring is poor.
There are several other areas that require urgent attention. These include high incidence
of drugs and substance abuse among children in Delhi, Domestic violence faced by
children, increased rate of depression and suicidal tendencies among school and college
students in the national capital, poor early childhood care arrangements such as lack of
crèches for children of women in the unorganised sector.
All of this requires increased investment of resources and their optimal utilisation.

Response to advertisement issued on behalf of the Group of Ministers set up by the Delhi Cabinet to invite views and suggestions on improving protection of women and girls in Delhi

Response to advertisement issued on behalf of the Group of Ministers set up by the Delhi Cabinet to invite views and suggestions on improving protection of women and girls in Delhi

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Response to advertisement issued on behalf of the Group of Ministers set up by the Delhi Cabinet to invite views and suggestions on improving protection of women and girls in Delhi