India

Background

From the early 20th century, different Indian States enacted their respective Children Acts, covering two categories of children: (i) youthful offenders, and (ii) destitute and neglected children. The Government of India passed The Employment of Children Act, 1960, which provided for care, protection, welfare, education and rehabilitation of neglected and delinquent children.

Pursuant to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the Indian Parliament, on 22nd August 1986, passed the first central legislation called Juvenile Justice Act, 1986 for care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and disposition of matters relating to delinquency.

After India signed and ratified the United Nations Convention on the Rights of the Child, 1989 in 1992, this Act was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 which incorporated the international standards in the Indian domestic laws. The 2000 Act suffered from many shortfalls, including a rigid sentencing procedure which awarded the maximum amount of sentence served by a delinquent committing a non-serious offence, putting non-serious and serious juvenile offenders in the same category; and non-compliance with certain clauses of the Convention on the Rights of Child. In 2015, this legislation was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015. The 2015 Act is now the primary juvenile justice legislation in India.

Categorisation under the 2015 Act.

The 2015 Act recognises “children in conflict with law” and “children in need of care and protection”. A child is any person who has not finished the age of 18 years. A child in conflict with law is one who has been accused of or convicted of an offence. Child in need of care is one who is vulnerable and needs state care.

The Indian legislations create four age-based categories for imputing criminal liability:

1. 7 years: According to the Indian Penal Code, any child under the age of 7 cannot be criminally liable for any offence.

2. 12 years: Any child from 7-12 years old cannot be criminally liable if they have not attained sufficient maturity to understand the consequences of their actions.

3. 12-18 years: Children from 12-18 years age can be held criminally liable, however they are not tried as adults but rather as children in conflict with law.

4. 18 years: Persons above 18 years are treated as adults.

Important Principles of the 2015 Act

1. Principles of natural justice (Sec 3(xv))

Basic procedural standards of fairness shall be adhered to, including the right to a fair hearing, rule against bias and the right to review, by all persons or bodies, acting in a judicial capacity under this Act.

2. Principle of diversion (Sec 3(xv))

Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or society.

3. Principle of fresh start (Sec 3(xiv))

All the past record of the Juvenile is erased except in special circumstances.

4. Principle of repatriation and restoration (Sec 3(xiii))

Every child has the right to be re united and to be restored to the same socio-economic conditions as he was before unless the restoration and reparation is against the best interest of the child.

5. Principle of institutionalization as a measure of last resort (Sec 3(xii))

A child shall be placed at the institutional home as a last resort after reasonable inquiry.

6. Principle of right to privacy and confidentiality (Sec 3(xi))

Every child’s privacy and confidentiality shall be protected throughout the judicial process.

7. Principle of equality and non-discrimination (Sec 3(x))

There shall be no discrimination against a child on any grounds including sex, caste, ethnicity, place of birth, disability and equality of access, opportunity and treatment shall be provided to every child.

8. Principle of non-waiver of rights (Sec 3(ix))

Waiver of right by any child or any person or a board or a committee on behalf is invalid and impermissible and moreover non-exercise of the fundamental rights shall not amount to waiver.

9. Principle of non-stigmatising semantics (Sec 3(viii))

Adversarial or accusatory words are not to be used in the processes pertaining to a child.

10. Positive measures (Sec 3(vii))

All resources are to be mobilized including those of family and community, for promoting the well-being, facilitating development of the child and to reduce vulnerabilities of children.

11. Principle of safety (Sec 3(vi))

All measure shall be taken for ensuring the safety of the child during care and protection system and thereafter.

12. Principle of family responsibility (Sec 3(v))

The primary responsibility of care, nurture and protection of the child shall be vested with the biological parents or adoptive parents.

13. Principle of best interest (Sec 3(iv))

All the decisions shall be based on the primary consideration that they are in the best interest of the child.

14. Principle of participation (Sec 3(iii))

Every child has the right to freely express his views in accordance with the age and maturity of the child, be heard and to participate in every process which affects his interest.

15. Principle of dignity and worth (Sec 3(ii))

All human beings shall be treated with equal dignity and rights. It includes non-humiliation of personal identity and respected and not stigmatized or labeled in the society.

16. Principle of presumption of innocence (Sec 3(i))

A Child under this principle is presumed to be innocent of any mala fide or criminal intent up to the age of eighteen years. It constitutes three major components: Age of innocence, Procedural protection of innocence and Provisions of legal and guardian.

201602.juvenile2015pdf.pdf

Rate of children in detention per 100,000: 29 (2022) https://data.unicef.org/resources/dataset/children-in-detention/