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REFORMING THE JUVENILE JUSTICE SYSTEM

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INTRODUCTION

“Old enough to do the crime, old enough to do the time”. This phrase is very common among people who have the view that juvenile offenders should be treated as adults. The juvenile justice system in India is explained in the Latin maxim “nil Novi spectrum” which suggests that nothing is new on the earth. Since the ancient period, there was a system that deals juveniles leniently because there exists a notion of thought that says young people have a propensity to react in a serious and delayed frustration which goes with aggressive approaches.

Crimes are not done only by adults in fact in the last few years several heinous offenses have been committed by juveniles. The intensity or psychology behind the commitment of a juvenile offense is determined by early life experience, cultural conditions, Socioeconomic conditions, lack of education, etc. Thus, evidently, we can say that the many factors prompting delinquent conduct in some way on another, affect the psychology of the child.

HISTORICAL BACKGROUND OF JUVENILE SYSTEM IN INDIA

The word juvenile has been derived from the Latin term ‘Juveni’ which means Youth. The movement for the special treatment of juvenile offenders has been started around the 18th century throughout the world including many developed countries like the United Kingdom, United State of America. Earlier juvenile offenders were treated as same as other adult criminal offenders. Pope Clement XI was the one who first introduced the idea of the “ instruction of profligate youth in institutional treatment”. The effort to have special courts for juvenile offenders was started for the first time in 1847, in the United State of America. And the juvenile court was established for the first time in 1899 by the state of Illinios of the United State of America.

INDIA SCENARIO-PRE INDEPENDENCE

In India, different treatment for juvenile offenders can be traced from the code of Hammurabi in 1790, BC the obligation regarding their supervision and maintenance being vested on the family. When the British were ruling in India the first center for those children called “Ragged school” was established by lord Cornwallis in 1843. Chronologically the Apprentices Act 1850 was the first law which deals with the children between the ages of 10-18 convicted in courts.

The next landmark legislation was enacted in 1876 i.e Reformatory School Act later modified in 1897 to deal with juvenile delinquents. The Act state that the sentencing court could detain boys in such institution for a period of two seven years but after attaining 18 years they would not be kept in reformatory school. The juvenile offenders were given special treatment under the act of criminal procedure, 1898. In(1919-1920) the Indian Jail Committee had made the Indian Children Act. Under this Act, each provincial government had a right to enact separate legislation for juveniles in their respective jurisdiction.

POST-INDEPENDENCE

In India, till 1960 almost every state had its separate laws for juveniles in which they had their own definitions, procedural requirements and so much their implementation also varied. After so many years of independence, the Central government enacts the Children Act, 1960, which was directly administered by the Union government and applied to every state and union territory. In Sheela Barse V. Union of India (1) in its judgment, stated that children in jails are entitled to special treatment and recommended that parliament enact uniform law which is applicable throughout the country. The juvenile justice 1986 was the result of this judgment only. In this Act, 1986 the age of males to be treated as juveniles was 16 years and that of females was 18 years. The main motive of the Juvenile Justice Act was to bring the domestic law in conformity with the United Nation standard 1985. Though, there existed loopholes and lacunas which necessitate the formulation and passage of new law.

The most important post-independence legislature for a juvenile i.e. The Juvenile Justice (care and protection of children) Act, 2000. The Act, 2000 was passed in December 2000 and came into force in April 2001. The age for both males and females was made uniform under this act. There were few grey areas on which this Act was silent and not expressive. In the landmark judgment of Partap Singh Vs. State of Jharkhand (2) the Hon’ble Supreme Court by a constitutional bench touched that issue in detail and held that “reckoning date for the determination of the age of the juvenile is the date of an offence and not the date when he produced before the authority of the court”. Thus in the light of the above judgment of the Hon’ble Supreme Court, the Act, 2000 was amended for the first time in 2006. The Act,2000, was again amended for the 2nd time in 2011.

JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,2015

According to the report of the National Crime Record Bureau (NCRB), the crime rate of juveniles increased by 1% to 1.2% from 2002-2013. There was a rise of 30% in crime by juveniles in the years 2012- 2014 and most of the juveniles accused were between 16 to 18 years old. The need for a new juvenile justice system was more in demand especially after the Mukesh and others vs. State of NCT of Delhi & others (3) (famously known as Nirbhaya case), a 23-year girl was gang-raped and brutally assaulted in a moving bus in south Delhi by six people and one of them was juvenile. Then in 2015, the Indian government replaced the Juvenile Justice (care and protection of children) Act, 2000 with the Juvenile Justice Act of 2015. The Act, 2015 came into force on the 1st January 2016. In this Act, there should be a deal with these children i.e. Juvenile Justice Boards (JJB) and Child Welfare Committees (CWCS). These bodies should be set up in each district.

FEATURES OF JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT,2015

a. The Juvenile Justice (care and protection) Act 2015 defines a child as a person who has not completed the age of 18 i.e. he/she is below 18 years. The Act has given a classification regarding the term ‘child’ namely Child in need of care and protection under section 2(12) of the Act, 2015. And under section 2(13) of this Act talks about ‘Child in conflict with law’.

b. In this Act, 2015 there has been a clear distinction made regarding the aspect of offences. It had been categorically defined as-

i. Heinous Offence- an offence that has a minimum penalty of 7 years imprisonment.

ii. Serious Offences- an offence that attracts imprisonment between 3 to 7 years.

iii. Petty Offences- an offenece that attracts imprisonment up to 3 years.

There have been specifications made regarding the juveniles, who are between the age of 16 to 18 years under section- 15 of the Act, any child who fall under the given age category and commits heinous offences may be tried as an adult. But to determine this, a ‘ preliminary assessment’ to assess the child’s mental, physical capacity, is he/ she is mature enough to understand the consequences of the offence, etc should be conducted by Juvenile Justice Board.

c. There should be a Juvenile Justice Board in each district which consists of a metropolitan magistrate and 2 social workers including a woman.

d. Every state should have Juvenile Courts in each district that will be trying the juvenile offences only.

e. The 2015 act, under section-44, introduced foster care for the first time in India. Any family can register with the respective government and volunteer to foster the children in need of care and protection, or children conflict with the law.

CLAIM OF JUVENILITY

The absolute first and most debatable question among the lawmakers and socialists was the “ claim of juvenility”. Juvenility claims to be solved by Juvenile Justice Board (JJB). The Board needs to choose the case of Juvenility under the watchful eye of court procedures. The claim of juvenility can be raised in any phase of proceeding before the court and surprisingly after the removal of the matter by the board. In the case of Kulaibrahim Vs. State of Coimbatore(4) the court observed that the accused has the right to claim the juvenility at any stage of time during the trial or after the disposal of the case under section 9 of the Act,2015.

(i). In the matter of Deoki Nandan Dayam Vs. State of Uttar Pradesh(5) the Court state that entry in the register of school mentioning the date of birth of student is admissible evidence in determining the age of the juvenile.

(ii). In the matter of Satbir Singh & Ors. Vs. State of Haryana(6) the Upper Court held that to determine whether the accused is juvenile or not the date of birth which is recorded in the school records shall be taken into consideration by Juvenile Justice Board.

(iii). In the case of Krishna Bhagwan Vs. State of Bihar(7) the court stated that for trial under Juvenile Justice Board the relevant date for the considering the age of Juvenile should be on which the offence has been committed.

SUGGESTION TO IMPROVE THE JUVENILE ACCUSED IN INDIA

i. There should be a standard curriculum for the person dealing with the juvenile accused. They should have knowledge about the child psychological and biological needs of children in need of care and protection of children in conflict with the Law.

ii. Children institutions should ensure proper functioning, availability of qualified staff mental health professionals, and conformity with the provision of the law in force should be done. The childcare Institution and its authority should be made accountable and answerable for any loss thereof.

iii. There should be a trained judge in the Juvenile Court who can recognize the educational, social, and treatment needs of the children in crisis.

iv. Training and Counselling sessions should be imported to the children So that they can develop their interests and skill by which they can seek jobs and livelihood.

v. Orientation courses, seminars, and awareness programs should be organized about psychological and socio-cultural determinants and the relation between delinquent behavior and mental health issues.

CONCLUSION

It be worthy to quote “Qorianka Kilcher”, “ I think its important for us as a society to remember that the youth within the juvenile justice system are, most of the time, youths who simply haven’t had the right mentors and supporters around them because of circumstance beyond their control”. Although the increasing rates in crimes of the juvenile are a very concerning issue, there is a huge difference between when children perform any crime their mental state and when an adult commits any crime. As in every act which was enacted by the Indian government, their main motive is to create the opportunity for the juvenile, to proceed ahead to create an egalitarian society of higher order, etc. The bill passed by the Lok Sabha namely the juvenile justice (care and protection of children) bill, 2015 is considered to be extremely progressive legislation and the perfect implementation of this law will further add the effectiveness of the law. Although, In this law, the implementation is a very serious concern, In the case of Sampurna Behrua Vs. Union of India (8), the Hon’ble court issued a direction to be complied with by the High Courts and other authorities. In that various direction was related to registration of proceeding on its own by the High Courts for the effective implementation of the juvenile justice (care and protection of children) bill, 2015.

However every nation has Juvenile Justice Act, and they likewise had amended it to make it more specific and modern yet they should have properly implemented it. Society must also support the government to decrease juvenile crime.

There have been specifications made regarding the juveniles, who are between the age of 16 to 18 years under Section- 15 of the Act, any child who comes under the given age category and commits heinous offences may be tried as an adult. But to determine this, a ‘ preliminary assessment’ to assess the child’s mental, physical capacity, is he/ she is mature enough to understand the consequences of the offence, etc should be conducted by Juvenile Justice Board.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand

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Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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Legally Speaking

VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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Legally Speaking

CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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