The Collision Of Juvenile Justice Act And The UNCRC – Can A Child In Conflict With Law Be Treated As An Adult
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Category: Criminal Law
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THE COLLISION OF JUVENILE JUSTICE ACT AND THE
UNCRC – CAN A CHILD IN CONFLICT WITH LAW BE
TREATED AS AN ADULT?
Lily Sangeetha Nakka, School of Law, CHRIST (Deemed to be University), Hosur Main Road, Bhavani Nagar, Post, Bengaluru, Karnataka, India
ABSTRACT
The juvenile justice system in India has undergone significant changes which depicts the growth and development of the law. It started from the Children’s Act of 1920 which was replaced by the Juvenile Justice Act 1986 (JJ Act). When India joined the UNCRC (United Nations Convention on the Rights of the Child) on 11th December 1992, the same was amended in 2000 to align with the principles of the UNCRC. According to the UNCRC the definition of a child is any human being below the age of 18 years and the Juvenile Justice Act 2000 followed the same definition. In the 2015 Nirbhaya case there were 6 individuals (1 deceased, 4 adults and 1 minor) who committed the offense out of which the accused no. 1 was a minor (17. 5 years old) and according to the law at that time only a sentence of 3 years was given to him.
After the Nirbhaya case occurred there was a demand raised by the society to amend the said provision and significant changes were made to the Juvenile Justice Act, the 2000 Act was repealed and the Juvenile Justice Act 2015 was introduced. According to the Juvenile Justice Act 2015, the definition of a child was unchanged but in case of a child in conflict with law being in between the ages of 16-18, has committed a heinous offense and it was held that he/she could be tried as an adult after clearance of psychological evaluation. The issue for consideration here is that by India being a part of the UNCRC, not amending the definition of a child without any wiggle room under Juvenile Justice Act 2015, but subjecting a child to adult treatment (for committing heinous crime), isn’t India violating the UNCRC and its own constitution under Article 253 of the Constitution of India?
Keywords: United Nations Convention on the Rights of a Child (UNCRC); Child in conflict with the law; Juvenile Justice Act (JJ Act); Article 253; Article 51(c); Nirbhaya case
INTRODUCTION
From the beginning of time many justice systems for the young i.e. a person below the age of
18 years of age, were under the belief that the young lack a sense of maturity, inability to have
full control over their acts and emotions, failure to understand the seriousness of their offenses and foresee the consequences accordingly. 1Juvenile Justice is a term that emerged from the Latin term ‘juvenis’ which translates to young and implies that there exists a justice system for young aged individuals. As a child it’s easy to get influenced by the things you see and hear around you and the environment one inhabits also plays a crucial role in one’s development. The whole concept of Juvenile Justice surfaced because it was believed that the problem of Juvenile Delinquency was an uncommon phenomenon and not amenable in the aspect of criminal law.
Under the British rule, to address juvenile delinquency there were certain laws that were brought into force such as Whipping Act 1864, The Indian Penal Code Act 1860, Criminal Procedure Code 1861, Reformatory Schools Act etc to deter them from committing an unlawful act. Since the early 20th century various states of India had their own legislation to deal with children of a delinquent nature. The first Act to come up was The Madras Children Act 1920 which was followed by Bengal in 1922 and Bombay in 1924. Even though the Bombay Children Act was passed four years later it was the first to be enforced. In 1960, the Indian Government passed the Children Act to “provide care, protection, maintenance, welfare, training, education and rehabilitation of neglected or delinquent children and for the trial of delinquent children in Union Territories”.
As per this Act a boy is considered to be a child if he is below the age of 16 and a girl is considered to be a child if she is below the age of 18. Succeeding the 1960s Act was the Juvenile and Justice Act of 1986. In 1985, 29th November the United Nations (UN) adopted “Standard Minimum Rules for the Administration of Juvenile Justice” also known as the “Beijing Rules” and this was one of the first instances where the term ‘Juvenile’ was used in international law and stemming from that was the term ‘Juvenile Justice’. The usage of this term can be seen in India for the first time in the Juvenile and Justice Act of 1986. 1 SCRIBD, History of juvenile justice in India, https://www. scribd. com/document/336874228/History-of- Juvenile-Justice-in-India.
THE GROWTH & DEVELOPMENT OF THE JUVENILE JUSTICE ACT THROUGH
TIME:
2From its nascent stage of development in 1920 we saw the Act develop to The Children’s Act
1960. This Act was brought into force to ensure that there was a legislation in place to prevent
delinquent children from engaging and committing various acts that were unlawful in nature as there was a rise in such cases. A children’s court and a Child Welfare Board were set up to address the same. Additionally, a three-tier system was brought in to place consisting of the following: i) Observation home (to accommodate children during the time of their proceedings) ii) Children’s Home (to accommodate neglected children) iii) Special School (to accommodate delinquent children) Further in 1986 As we saw in the introduction the definition for a child differs between a boy and a girl. This came across to be discriminatory but was not easy to address and different states at that time had different legislations mentioning the age of a child to be different and subsequently had differential treatment for such offenders.
In 2000 the Juvenile Justice Act (care and protection of children) was passed and was brought into effect on April 1st, 2001 mentioning a juvenile or child as a person who has not completed 18 years of age. This was amended further again in 2006 with the aim of providing more services to children for their development and betterment.
RECALLING A MAJOR AMENDMENT:
Post December 16th, 2012 after the heinous case of a gang rape in Delhi, which came to be known as the3 Nirbhaya case led to the Juvenile Justice Act being amended again. The case was about two friends- a guy and a girl, who were returning after watching a movie. They boarded a bus which has six other men including a driver and the bus started going off the normal route so the friend (male) questioned the driver and the remaining people in the bus 2 Convention on the rights of the child, Preamble, https://www.ohchr.org/en/instrumentsmechanisms/instruments/convention-rights-child
3 Mukesh & Anr vs State for NCT Of Delhi & Ors (2017) 6 SCC 1
who were also drunk at that moment. They then proceeded to hit him with an iron rod and started molesting the girl. They further dragged her to the back of the bus and raped her and when she started fighting back, they inserted the iron rod into her which cause severe damage to her intestines and the six of them left the two of them by the side of the road where a passerby took them to them hospital and later the girl succumbed to her injuries. In the statement made by her to the police she said that she wanted justice against the six who were accused and this brought about strong reactions by the public claiming for the same. The case doesn’t use the original name of the victim for protecting her identity but it is called ‘Nirbhaya’ as it translates to ‘fearless’.
This case had a major impact on the amendment of the Juvenile Justice Act as the case involved a minor who was found to be the most brutal amongst the others. The major debate was whether to reduce the age of who is called a juvenile who is in conflict with the law as the government felt that the number of young offenders were increasing. After a lot of thought and deliberation a bill in 2014 was put forth which was called Juvenile Justice (care and protection) Bill,2014 which was the result of the public’s anger and rage which made the government to take some action on it. The laws at that time were of such nature where if a juvenile who falls between the ages of 16-
18 years commits any heinous offense cannot be subjected to the same treatment of what an
adult offender of the same offense would be granted. For instance, the adult can be given a death penalty whereas the juvenile cannot be given such punishment as he would still be a child under the law and he would be sent to a rehabilitation center where he would stay for a few months and then he would be free in society. Post the Nirbhaya case the amendment brought in was to change that situation as the public were constantly behind the government not to leave this issue so the government amended the Juvenile Justice Act enabling a juvenile offender as an adult if he is found to have committed a heinous offense. 4Thus, the Juvenile Justice (care and protection) Act 2015 was introduced with the amendment in place.
5Again, in 2021 the Juvenile Justice Act was amended and 4 Child protection and juvenile justice system, Child Protection and Juvenile Justice System for Juvenile conflict with the law (2006), https://www. childlineindia. org/pdf/CP-Juvenile Justice-JCL. pdf. 5 Krishna Aruna Sharma, Juvenile Justice Amendment Act-2021- A critical view iProbono (2022), https://iprobono. com/articles/juvenile-justice-amendment-act-2021-a-critical-view/
included changes which dealt with legislations regarding adoption, categorizing offenses into different types (petty, serious and heinous offenses).
ROLE OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF A CHILD
(UNCRC):
The United Nations convention on the rights of the child was adopted in 1989 and later came into force in 1990. India was a signatory to this convention and ratified the same in 1992. 6 Article 253 of the Indian Constitution provides for the implementation of international treaties or conventions in the Indian territory. In addition, 7Article 51 (c) of the Indian Constitution also talks about fostering respect for the international treaty obligations. This convention is internationally recognized and binding, it included 54 articles relating to a child. Currently there are 196 states that have ratified the convention except for one of the major countries being the United State of America. Under 8Article 1 of the convention of the rights of a child it defines who is considered to be a child.
It states that any human being who is below the age of 18 years unless otherwise stated by law is considered to be a child. It focuses on children being granted fundamental rights to ensure that they are able to develop to their full potential, providing them protection from any kind of abuse, violence and neglect, allowing them to express themselves etc. There are four core principles of this convention, they are as follows:
1. Non discrimination
2. Right to life, survival and development
3. Best interest of the child
4. Respecting the views of the child
In 1992, India ratified the agreement, approving all of its provisions except for a few that had specific areas relating to child labor. While it is against the law for minors under the age of 18 6Article 253, Indian Constitution http://www.scconline.com/DocumentLink/BQ00wa9M 7Article 51(c), Indian Constitution http://www.scconline.com/DocumentLink/Uei3bEDC
8 Article 1, Convention of the Rights of a Child
to work in India, child labor is nonetheless allowed in most sectors of the economy with the exception of those that are considered dangerous. In addition to this India had adopted the National Policy for children on April 26th 2013 where it reaffirmed that it recognized every person who is below the age of 18 years as a child.
THE POINT OF COLLISION:
9After understanding the definition of a child and knowing that India is a signatory to the UNCRC, the point of collision between the two arises when India made the amendment to the Juvenile Justice (care and protection) Act 2015 where it included that if a juvenile offender committed a heinous crime and falls between the ages of 16-18 years can be tried as an adult and receive the same punishment an adult would be awarded. This amendment was done with or without realizing that as a signatory to the UNCRC the definition of a child is someone who is below the age of 18 years. The amendment made to the Juvenile Justice Act clearly was in violation of Article 1 of the Convention of the Rights of a Child. And India being a signatory should have ensured that it did not violate any other provisions.
India should have acted in such a manner that either they change the amendment or discontinue from being a member of the UNCRC.
WHY IS THE USA REFUSING TO RATIFY THE UNCRC TILL DATE?
10Under Bill Clinton, the United States signed the treaty in 1995, effectively agreeing to the ideas outlined in the document. However, ratification of any treaty in the US needs a two-thirds majority vote in the Senate, and certain Republican senators have continuously opposed ratification on the grounds that they believe it will violate US sovereignty. 11The World Policy Analysis Center at UCLA's Fielding School of Public Health, in celebration of the treaty's 25th anniversary, launched an online resource bank with data detailing how far all the U.N. member nations have come in safeguarding children's rights on matters like child 9 Ajoy Ashirwad Mahaprashasta, Amendment in the Juvenile Justice Act “Shields Perpetrators”. Child Rights Bodies of 4 states the Wire News India, (2022), https://thewire.in/rights/juvenile-justice-act-amendment-childrights.
10 Karen Attiah, Why won’t the US ratify the UN’s Child Rights Treaty? (2014),
https://www.washingtonpost.com/blogs/post-partisan/wp/2014/11/21/why-wont-the-u-s-ratify-the-u-n-s-childrights-treaty/.
11 UCLA Health, A global report card: Are children better off than they were 25 years ago?
https://www.uclahealth.org/news/release/a-global-report-card-are-children-better-off-than-they-were-25-yearsago
labor, parental leave, the minimum wage, and education over the course of the last 25 years. Do kids now have it better than they had 25 years ago? The center's founding director, Dr. Jody Heymann, made a statement saying, "We've halved the mortality rate in recent decades”. The number of kids enrolled in elementary school has grown. There have been gains in attendance in the ninety percent of the nations who have committed to making elementary education free and mandatory. Child marriage is still a problem on a global scale, and expensive secondary school tuition continues to prevent many impoverished children and girls from attending. The US Criminal Justice system- In accordance with the Convention, the United States is the only nation in the world to sentence criminals under the age of 18 years to life imprisonment without the possibility of release. Dr.
Jody Heymann stated "We were concerned that this would have implications toward showing support for children around the world when the United States initially refused to sign on to the Convention on the Rights of the Child". However, it didn't stop the fact that almost every other nation signed on and that there has been a strong worldwide commitment. International law is not as beneficial to American families and children as constitutional democracy is. The group is afraid that if the treaty is ratified, children will be allowed to choose their own religion, they will have a legally binding right to leisure, countries will be forced to prioritize children's welfare over national defense, and any decision a parent makes that a child disagrees with may be subject to a government review.
If one looks at it in the best interests of the children, it’s high time that US takes steps towards signing the UNCRC and being a part of the convention.
CONCLUSION
After understanding the definition of a child under the Juvenile Justice Act and under the convention of rights of a child–Article 1, we come to the conclusion that in an international forum you can accept something and ratify it and you have to ensure that your country follows it. If your country is unable to keep up to what was ratified and goes and frames its own laws or amends existing laws which are in return violating the international conventions, then one has to make the choice whether to make changes to those laws in their country to be valid or
else leave their post from being a part of the convention. When India went through the Nirbhaya case, the USA criticized India for not being able to hold the minor offender accountable for the heinous offense he committed against the victim and that had serious impact along with the public outrage to hold the minor accountable. So, in conclusion I would like to end my paper on the note that there is a major collision between the UNCRC and the Juvenile Justice (care and protection) Act 2021 and the government should make an effort to correct this issue working in the best interest of the child, instead of acting like there is no issue at all before it becomes bigger.