We Must Stop Juvenile (In) Justice

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WE MUST STOP JUVENILE (IN) JUSTICE
The December 16, 2012 gang rape was a watershed moment for women in India. It brought attention
from all quarters to the safety of women and a number of progressive actions were taken swiftly. But, it
was also a watershed moment for children—unfortunately for children it was regressive!
One of the accused in the horrific
incident was a young person under 18
years of age who was branded as the
monster and the worst perpetrator.
Overnight people woke up to the
concept of Juvenile Justice and thus
began a huge media and public outcry
for criminalizing young people who
commit heinous offences, by putting
them into adult prisons for life. Adult
time for adult crime was the call.
Suddenly everyone was an expert on
‘juveniles and their propensity to
commit offences and get away with it’.
Change the law was the public demand
based on inadequate and false
information on the juvenile justice law.
This is what led to the present change
in the law - the new Juvenile Justice Bill
2014 that is before the Parliament.
We present to you some facts to help you make up your mind.
What is Juvenile Justice?
The term juvenile justice emanates
from the word juvenis, which in Latin
means young and hence it’s a justice
system for the young. If we go back
in history, we find that the concept
of juvenile justice was derived from
the belief that the problems of
juvenile delinquency and youth in
abnormal situations are not
amenable to resolution within the
traditional processes of criminal law.
Unfortunately, over time the word
‘juvenile’ has been imbued with
meaning, leading to its association as a
Just so you know….
Investigating Officer Anil Sharma went on record to state
that police investigation found nothing to conclude that
the juvenile accused in the Nirbhaya case was the most
brutal. The fallacy, of him being the most brutal, was
perpetuated by the media (the same media that then
reported his not being the most brutal) and lapped up by
the public.
He was acquitted by the Juvenile Justice Board for a
number of offences that he was accused of.
But the deed was done-public opinion created and the law
change initiated….
http://timesofindia.indiatimes.com/city/delhi/Nirbhaya-case-
juvenile-wasnt-most-brutal/articleshow/23426346.cms
Juvenile justice is a framework and a system that protects,
reforms and rehabilitates young. The concept of Juvenile
Justice is derived from the belief that both problems of
delinquency as well as that of children and youth in
abnormal circumstances cannot be resolved by the
traditional processes of criminal law.
Hence, the system is not designed to deal with young
offenders alone. Its role is to provide specialized and
preventive treatment services for children and young
persons as a means of ‘secondary prevention,
rehabilitation and socialization.

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term for ‘a bad young person who needs to be punished’. But this was not what it is meant to be.
Recognising the need for special
treatment for children, over the years
several international standards of juvenile
justice have been adopted which lay down
how children who have offended are to be
treated - the UN Standard Minimum Rules
for the Administration of Juvenile Justice
(Beijing Rules) adopted by General
Assembly on 29 November 1985, the UN
Guidelines for the Prevention of Juvenile
Delinquency (The Riyadh Guidelines),
adopted by General Assembly on 14
December 1990 and many others, which
are important but not legally binding
international legal instruments. The most
important binding obligation is set by the
UN Convention on the Rights of the Child
or what is popularly referred to as the
UNCRC. It is a legally binding international
law on India since it ratified the CRC in
1992. An elaborate interpretation of the
provisions of this Convention relating to
juvenile justice is given by the UN
Committee on the Rights of the Child in what is known as the General Comment No. 10.
Juvenile Justice in India
India has a progressive legacy on juvenile justice. Historically, 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 1850 with the
Apprentices Act, which required that children
below the age of 15 years found by the courts to
have committed a petty offence be provided
vocational training as part of their rehabilitation
process instead of being sent to prison.
This was followed by the Reformatory Schools
Act, 1897 and and various Children Acts passed
by various States since 1920 all of which gave
Indian Jail Committee Report, 1919-1920:
stated, “the ordinary healthy child criminal is
mainly the product of unfavorable
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.”
CRC General Comment No. 10, Child Rights in Juvenile
Justice (Excerpts)
37. The Committee wishes to remind States parties that
they have recognized the right of every child alleged as,
accused of, or recognized as having infringed the penal
law to be treated in accordance with the provisions of
article 40 of CRC. This means that 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.
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.

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protection to children who were neglected or committed an offence and included measures for
their reformation and rehabilitation. The first Central Children Act 1960 completely prohibited
keeping of children in police stations or jails at any stage for any offence. In 1986, India
introduced its first uniform Juvenile Justice law (Juvenile Justice Act 1986), providing measures
for protection, rehabilitation and reformation of juveniles who broke the law and for those who
were neglected and in need of care. In 2000, the Government of India enacted the Juvenile
Justice (Care and Protection of Children) Act, 2000 (JJA 2000). The JJA 2000, defines a child
uniformly, as an individual who has not completed the age of 18 years. This definition of child is
compliant with the United Nations Convention on the Rights of the Child (UNCRC) as also the
Indian Majority Act, 1875. This law is based on the best interests of children and aims at
protection, restoration and reformation of all children.
The law is based on both a preventive and protective approach. It deals with children who are
neglected and in difficult circumstances (Children in need of Care and Protection or CNCP) and
can therefore become vulnerable to offending, and those who have offended (Juveniles or
Children in Conflict with Law – C/JCIL) This is to ensure that the juvenile justice system is designed
not only to respond to the needs of young offenders only but also provide specialised and preventive
treatment services for children and young persons as a means of ‘secondary prevention, rehabilitation
and improved socialisation’.
The issues before us today
We are being told that the law must change because children today mature faster and hence,
must be held responsible for the actions they commit. We are also told that 50% of the crimes
are committed by ‘juveniles’ aged 16-18 years. It is in this context that the law is being changed
to bring them out of the protective JJ system.
Before we make up our minds let us examine the following:
‘Are children maturing faster and hence must be treated as adults?’:
An often heard comment is that children are
maturing much faster in today’s modern
world. Yes - children today have much greater
access to information. They are much more
exposed to consumerism, to violence that the
media and technology beams to them. They
are subjects of information over load and
consumerist aspirations beamed to them day
in and day out. But that does not make them
more mature or informed. It is their lack of
capacity to process information and use
discretion that results in deviant behavior. Are
we going to penalize them for their lack of
capacity to exercise discretion? What then should our role as a society be?

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1.30%
98.69%
Juveniles
between 16
and 18
years
apprehende
d for
murder
3.29%
96.71%
Juveniles
between
16-18
apprehende
d for rape
The gray matter isn’t completely developed in early 20’s and it’s a little later for boys than for girls.
The fact that children are in
reality not fully mature is
supported by studies in brain
science. Studies across the globe
suggest that the brain system
develops at different times
throughout adolescence.
Psychologically, researchers have
clearly found that older
adolescents (14-17) are actually
more prone to reckless
behaviour. In fact, the act of
engaging in such high-risk crimes
only points towards a lack of
maturity, rather than an excess of
it.
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 risks and
they are unable to really determine the consequences of their behaviour.
Data on juvenile crime is grossly misrepresented:
 From 2003-2013, the percentage of juvenile crimes to total crimes has marginally increased
from 1.0% to 1.2%.1
 The percentage of juvenile crimes to total crimes remained constant at 1.2% in 2013.
 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.2
They also constituted a meager
1.30% (845) and 3.29% (1388) of all persons arrested for murder (64813) and rape (42115) in
20133
thereby lending zero credence to the statements that they are significantly
responsible for violent crimes.
1 Table 10.1, Incidence and Rate of Juveniles in conflict with law under IPC (2003-2013), Crime in India, 2013.
2 Table 10.9, Juveniles apprehended under different IPC Crimes during 2013 (State & U-T wise), Crime in India, 2013.
3 Table 12.8, Persons Arrested Under IPC And SLL Crimes By Age Groups And Sex During 2013 and Table 10.8,
Juveniles Apprehended Under IPC And SLL Crimes By Age Groups & Sex During 2013, Crime in India, 2013.

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The data also tells us that almost 80% of juveniles apprehended for murder and rape come from socially
and economically backward families.
19%
32%36%
13%
Educational Profile of
Juveniles Apprehended in
2013
Illiterate
Primary
Above primary below matriculation
Matriculation and above
Ramesh, a 16-year-old boy worked as a domestic help for an elderly couple in an affluent South Delhi
home. He worked 14-hours a day cooking and cleaning. He was given two small meals a day. The lady
of the house nagged him constantly and followed him around. One day, at around 11pm he asked for
dinner. She would not give him a break, and was standing behind him reprimanding him as he
washed the dishes. The next thing he knew he had hit her with the heavy vessel he was washing. She
fell dead. Her husband came to see what the noise was about. A panicked Ramesh ended up killing
him too. Later in the Observation Home for juvenile offenders a hugely repentant Ramesh said he
could not believe what he did. In later conversations, he spoke to counsellors about the pangs of
hunger he felt that day. It was found out that he had no history of violent behaviour and his
behaviour in the observation home was exemplary. Today, Ramesh has settled back home in his
village, has a job and supports his family.
Shyam was 17 when he raped his neighbor, seven-year-old Savita. She lived in the room next door
and would often come to his home to watch television. The incident happened one day when he
found himself alone at home with her. He said he was unable to control the urge. He deeply
regretted his actions and never fathomed he could do such a thing. In counselling, he said that from
the age of eleven he joined older boys in the neighborhood as they watched pornography. It was the
leisure-time thing to do for boys in the area where he lived. Conversations among boys in his school
were mostly about sexual fantasies. He spent time in the Special Home for child offenders and was
restored back to his family. He now is back in school studying in Class XII. He finished his counselling
sessions, but remains in contact with the NGO periodically.

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Do children in the Juvenile Justice system ‘walk free’ and hence remain unrepentant?
Juvenile justice does not mean the offending child
must walk free as it is being projected by society
and media. It means that the child must be held
responsible and accountable for the offence
he/she has committed – except that it is in a
separate justice system so that the children have a
second chance to reform and re-integrate into
society.
Experience both in India and
across the world has shown
that with the right psycho-
social assessment and
support, care-plans, training
and other support, children
who have committed
offences can be re-
integrated into society as
responsible citizens.
Will locking up young offenders enhance the safety of women and girls?
This is based on the fallacious assumption that extreme punitive punishments act as deterrent.
Has capital punishments awarded for rape by adults decreased the incidences of rape? It must
also be known that frequently quoted examples of incarceration of children especially from the USA, are
failed examples. USA Government research has shown that putting children through adult criminal
justice system backfired. It has not had any positive impact on public safety. In fact it has shown that
young people who go through the adult system are at a higher risk of re-offending than those who go
through a reformative juvenile justice programme. Several States in USA are now reversing their policies
to ensure that children are retained within the juvenile justice system.
Do organized gangs use children to commit murders and rapes because they know the law is
not stringent and children will remain protected?
Organized gangs do not use children for committing rapes. In fact reports suggest that even where the
police is in the know of operation of organised gangs training and using children for committing thefts
and robbery, the master minds seldom get booked.
Most importantly, if children are being used by organized gangs or adults to commit heinous offences,
are they not victims themselves? Instead of treating them as victims, we want to punish them for their
acts done at the behest of adults, who manage to escape the law enforcement and criminal justice
system.
“Positive youth justice, is a term coined by
Jeffrey A. Butts, Gordon Bazemore and
Aundra Saa Meroe to describe a juvenile
justice system that’s based on using what
we know about adolescent development
to build youth’s assets, rather than merely
fixing their deficits.”
http://jjie.org/the-skinny-on-evidence-based-practices/
http://jjie.org/the-skinny-on-evidence-
based-practices/Another important consideration is 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.
AIDWA, Press release. Linking crime to applicability of juvenile act an ill-conceived
and dangerous path. 16July 2014

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What more does the new JJ Law Propose?
Murder and rape are not the only crimes for which juveniles can be tried for as adults in the JJ
Bill 2014: Children, between 16-18 years of age can be tried as adults for heinous offences under any
law in force in the country for which there is a minimum sentence of seven years imprisonment but
there are no guidelines for determining who to transfer to be tried as adult. Under the new law such
children can receive life imprisonment. Additionally, a child committing an offence punishable with
more than 3 years of imprisonment will be tried as adult if arrested after attaining the age of 21 years in
complete violation of Article 20(1) of the Constitution which prohibits imposition of punishment more
than that was applicable on the date of offence.
Children could be tried as adults for consensual sex or sexual exploration: Consensual sex and
sexual exploration among adolescents are universal phenomenon cutting across all classes. However,
since the Protection of Children from Sexual Offences Act, 2012 the age of consent for sex has been set
at 18 years, and consequently, consensual sex between teenagers tantamounts to rape. If the proposed
amendment comes into effect, teenagers who indulge in exploratory sex could be tried as adults for
committing rape. Many of them also get married at a young age, and a child marriage is a valid marriage.
However, despite being in a valid marriage, a husband can be booked for penetrative sexual assault
under the POCSO Act, since it is a statutory offence. In child marriage cases, the courts have in fact in
many cases given custody of under-age brides to their adult lawful husband, but the proposed JJ Bill will
only punish the juvenile for early marriage and subject him to unnecessary exposure to the criminal
justice system and harsh treatment?
This JJ Bill 2014 will affect all children-our children: We believe that the new law will not affect our
children. It’s always someone else’s child who does things that are wrong. It would be foolish to ignore
the reality that in fact that young people are prone to experiment with drugs and other thrill-seeking
behavior, and many of them are in consensual sexual relationships well before the age of 18. These as
discussed above are now offences which will fetch adult punishments. Children may now have to pay a
very heavy price for this experimentation, which is intrinsic to adolescent years. While the poor are
always worse affected by such measures, the middle class should not be guided by misguided rage and a
false sense of immunity. When the new law is implemented our children will be at risk of incarceration
too.
Many children in residential care institutions would continue to receive sub-standard
services: A large number of destitute children in the country reside in child care institutions and
SUPREME COURT ON THE JJ LAW - CAN WE AFFORD TO IGNORE IT?
In recent times, on two separate occasions, the Supreme Court of India upheld the constitutionality
of the present cut-off age of 18 years in the Juvenile Justice Act, and the need for a separate juvenile
justice system for juvenile offenders irrespective of the nature of offence in Salil Bali vs. Union of
India and then again in Dr. Subramaniam Swamy and Ors. vs. Raju and Anr. [CRIMINAL APPEAL NO.
695 OF 2014].

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are the responsibility of the State. After several incidences where in the inhuman and degrading
conditions of these institutions came to light, the registration of all institutions housing children
was made mandatory under the JJ Act, 2000, where they would be subject to monitoring and
would have to maintain standards of care as outlined in the JJ Act, 2000 and its Rules of
implementation. Despite this, many institutions evade registration on the pretext that they are
already regulated by the provisions of the Women and Children’s Institutions (Licensing) Act
(WCIL Act) or the Orphanages and Charitable Homes Act (OCH Act). The proposed JJ Bill 2014
does not explicitly repeal the WCIL Act and OCH Act, thereby allowing for a loophole which
many institutions would take advantage of to stay out of the juvenile justice system. As a result,
many poor, orphaned, destitute and vulnerable children languishing in such institutions would
remain out of the protective juvenile justice system,. The existence would be almost invisible.
The proposed JJ Bill 2014 makes it much easier for parents to surrender their children for
adoption: De-institutionalisation and measures of alternative family based care need to be
promoted when families do not have the capacity to care for their children. We therefore
welcome the move to regulate adoption procedures and open up the possibility for adoption
across communities. However, there are concerns which require serious attention. For
example, the definition of “orphans” makes it possible for parents to give up their children if
they are not willing or capable to provide for them. This allows easy abdication of parental
responsibilities, instead of strengthening families to take care of their children. Experience in
the past points to how such legal anomalies have become a means to procure children for the
adoption market. Subsequent provisions in the bill relating to adoption also promote such
fears.
Voice of a young adult on the proposed legislative move
G was 16 years when she was found guilty of kidnapping a 12 year old girl and selling her into
commercial sex work. A victim of trafficking herself, she journeyed through the juvenile justice system
with support from the Juvenile Justice team at CCL and DCAP-NIMHANS, and government functionaries.
Today she is a confident 20 year old looking forward to love and life in the community and here is her
message for policy makers:
I made a horrible mistake of taking a young girl who was my friend to a bad person like S Aunty. I really
didn’t know what I was doing then, I was so caught up in my own problems and miseries in life that I did
not think that her life would be spoilt by my foolish act. I felt really sorry for what I had done and even
asked Sunita (the girl she trafficked) for forgiveness when she came to the Juvenile Justice Board. I often
pray that Sunita should be healthy and happy wherever she is, I feel like telling her that I want to help
you if you are ever in any trouble, but I don’t know how I can do it.
I strongly believe that this new law should never be passed. If every young girl who has committed an
offence like the one I had committed also gets the kind of support I have got, gets good advice and
guidance from good people, I believe 100% that they will surely become a good person. I am not a bad

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person; I did a bad thing, because I didn’t understand that my action can cause bad things to happen to
Sunita. Please give me a chance to live a better life than what my family and society have given me,
please give me a chance to do something for other ‘Sunitas’ by becoming a good mother, a good teacher
and a good woman. My own family and village had no place for me and did not want me back, so where
would I have gone other than back to the brothel from where the police caught me? If you had sent
me to jail, I would have become a criminal seeing only the bad things of bad people around me. I
would have probably become another S Aunty. By sending me to the reception centre, JJB, the NGO -
‘X’, and this hostel and by giving me a chance to meet so many good people and learn so many good
things from them, I have today become a good person and not a criminal.
Please give young people a chance and we will also show you what good we can do for this country.
Please do not kill our spirit and hopes by sending us to jail. Help us, guide us, advise us, support us and
show us the right path – don’t condemn us to a life in jail.
Do think…
Until now, at least the rhetoric the nation had in terms of child protection laws was in place. If we
cannot claim to have all the resources in place for proper rehabilitation, must we not work towards
building that? Isn’t locking them up in prisons a quick fix solution that deeply endangers all children and
society in the long run? What does it say about us as a society?
Join our voices against the Juvenile Justice (Care and Protection of
Children) Bill, 2014.
Prepared by: The ProChild Coalition

We Must Stop Juvenile (In) Justice

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We Must Stop Juvenile (In) Justice