India

Background by Ananya Jha

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/

Juvenile Justice Act 2015: Reflections on Implementation

by Yukti Saumya

One of the key legal instruments presently shaping youth justice in India is the Juvenile Justice (Care and Protection of Children) Act of 2015. A controversial replacement of the Juvenile Justice Act of 2000, it made provisions to treat children between the ages of 16 to 18 as adults in certain criminal cases. This has marked a significant departure from previous child protection frameworks, altering the Indian youth justice system’s philosophy from a restorative to a punitive one. This submission to the Youth Justice Gateway, written after detailed consultations with child rights specialists affiliated with the juvenile justice system, discusses some aspects of the implementation of this act that have been criticised for sidelining the wellbeing of children and contradicting core tenets of international standards for child protection.

Background:

Amendment to the Juvenile Justice Act Public outrage and widespread civil advocacy in the aftermath of a gang-rape case in Delhi in 2012 paved the path for several legal reforms addressing violence against women. The Juvenile Justice Act was one such example, responding to outrage over the fact that one of the perpetrators of the gang-rape was a minor. Since his case fell under the juvenile justice system, he received three years detention in a special home, the maximum punishment prescribed in the Juvenile Justice Act 2000.

Media coverage of the case contributed to negative and sensationalised portrayals of adolescents involved in crimes, falsely reporting that the juvenile involved in the case was ‘the most brutal,’ reiterating misconceptions about children in conflict with the law, and misrepresenting the purposes of the juvenile justice system (Raha, 2019). Coupled with the brutality of the case and larger systematic failures to address violence against women in the country, this led to an outcry for tougher accountability measures even in cases of juvenile offenders. The conditions of an exceptional situation were generalised and codified in the law, ensuring continued adverse outcomes for many children even when their situations share no similarity to the 2012 case.

The Juvenile Justice Act 2015 utilises a categorical offense system, in which crimes are classified as either petty, serious, or heinous. The classification is based on the length of prescribed imprisonment for the same crimes in the adult criminal legal system. Petty offenses are those for which the minimum punishment would be for a term of less than 3 years. Serious offenses are those which would, in the adult system, be punishable by a minimum sentence of 3 to 7 years, or those wherein the maximum sentence may exceed 7 years but there is no minimum imprisonment or the minimum imprisonment of less than 7 years. Crimes for which the punishment in the adult system would be imprisonment for a minimum of 7 years are classified as heinous. Children involved in heinous crimes undergo a preliminary assessment to determine whether they should be tried as adults.

Subjective Preliminary Assessments

As per Section 15 (1), a preliminary assessment is conducted to evaluate the juvenile's mental and physical capacity to commit the crime and ability to understand the consequences of the crime. It also evaluates the circumstances under which the offense was allegedly committed. Then, it is used to determine whether the child accused of a heinous crime should be tried as an adult. The intention behind this is to ensure that children are only tried as adults in exceptional cases, wherein it is demonstrated that they showcased an adult-like capacity for understanding the consequences of their actions, and reformation is considered to be non-viable. However, not only is this based on a faulty premise but also the process of this assessment remains largely arbitrary, resulting in an acute absence of a higher threshold of proof to treat a child as an adult.

It is not possible to clinically determine the maturity of a child (Kabra & Panigrahi, 73). However, it is fair to assume that most children, irrespective of the appearance of their external behaviour, cannot actually function like adults. The prefrontal cortex, which controls one’s decision-making, risk assessment, and foresight abilities, undergoes significant changes between the ages of 16 to 18, continuing to develop in our 20s. The impossibility of distinguishing between one’s propensity towards premeditation and one’s transient immaturity is the reason why the American Psychiatric Association restricts the diagnosis of certain psychiatric disorders to individuals aged eighteen and older (Scott & Steinberg, 2008). Therefore, there is no scientific framework governing the preliminary assessment.

In light of this, the assessment can only gauge the subjective opinions of board members and mental health professionals. Additionally, a mental health clinic working with children in conflict with the law reported that out of 77 adolescents, 90.9 % reported Adverse Childhood Experiences (ACEs), 58.4 % had school-related difficulties, 68.9 % reported child labour experiences, 64.9 % had deviant peer associations, and 40 % experimented with substance use (Manohar et al., 2024). Studies show that adverse or traumatic events in a child’s immediate environment can further impact the child’s mental, social, and psychological development, thereby making them even less likely to be able to process events or understand the consequences of their actions like a healthy adult (Webster, 2022). This further advances the argument against treating these children as adults. The presence of psychosocial vulnerabilities, which require society’s utmost attention and care, contradicts the idea posited by popular media of juveniles as inherently unreformable and premeditative.

Mental health professionals involved in the process of a preliminary assessment are forced to violate the core principle of client confidentiality. They also may not necessarily understand the legal consequences of the opinion being provided by them. This severely harms children both emotionally and legally. Children who may be encountering a mental health practitioner for the first time in their lives, who may confide in them about their circumstances, are generally doing so without the knowledge that this can have adverse legal consequences for them. To that end, it also violates their right against self-incrimination. Far from reintegration, the experience of such a process can lead to an even greater disconnect from social systems that are meant to protect and safeguard the emotional wellbeing of children.

Ambiguity in the Classification of Heinous Crimes

It is significant to note that at present, a separate debate is ongoing regarding the criminalisation of adolescent relationships in India under the Protection of Children from Sexual Offences (POCSO) Act. This is related to the finding that nearly a quarter of the cases reported in three states over a four year period under POCSO pertained to romantic or consensual adolescent relationships (Enfold Proactive Health Trust, 2022). Consensual adolescent relationships were overwhelmingly reported by the parents or relatives of the girl with 82% of girls in such cases refusing to testify against the accused (Shruthi and Raha 2022). Testimonies showed that these were often cases where the accused belonged to a different caste or religion. Since POCSO does not make an exception for consensual sexual activity by adolescents, these cases attract statutory rape charges, especially in cases of elopement or pregnancy.

This, in light of rape being a heinous crime under the Juvenile Justice Act, may lead to adolescent boys in consensual relationships being tried as adults. This points to further problems with over the classification of heinous crimes. It also counters the claim that the amendment ensures that children are only tried as adults in cases where they have caused significant harm to society. Although ‘romantic cases’ under POCSO overwhelmingly lead to acquittals, this does not prevent innocent adolescents from being exposed to the adult criminal system, which by itself can cause grave harm.

Hindering Rehabilitation

Studies indicate that children in conflict with the law who come in contact with the criminal legal system or other harsh environments in the course of their justice proceedings are much less likely to be able to reform or be reintegrated with society (Fagan et al., 2003). Practitioners also report that a larger proportion of children are redirected to the adult system in cases of ‘heinous crimes’ than necessary, simply because the justice system is underresourced and overburdened. Once they are in the adult system, it becomes an uphill battle to lower the chance of recidivism since incarceration comes with immense stigma and pushes children further away from systems of community care. Therefore, far from reducing crime, the implementation of this Act may lead to its increase (Kabra & Panigrahi, 2020).

Far from addressing the gaps in juvenile justice, the amendment detracts from the severe underresourcing and development gaps that already exist in the system. Observational homes where juveniles reside while their cases are investigated or tried are meant to be child-friendly institutions. However, practitioners working in these facilities report that they resemble prisons. Due to the problem of overcrowding, children do not get the attention and care that they require and are instead subjected to constant punitive action. The children also overwhelmingly report that they do not feel safe in these institutions and often face abuse and human rights violations (Vesvikar & Sharma, 2016). Rehabilitative options including educational programs or skill development training are limited or outdated, adding another layer of difficulty for children to reintegrate into society. Instead of pushing children deeper into the criminal legal system, crime reduction requires that these problems are addressed.

Conclusion: India’s Obligations Under International Law

The United Nations Convention on the Rights of the Child, which India has ratified, implicitly prohibits trying children as adults, emphasizing that "penal law should treat children in a manner appropriate to their age and potential for rehabilitation.” To that end, the Juvenile Justice Act 2015 raises questions with India's international human rights obligations. Additionally, its implementation also raises concerns regarding protection of children's dignity and worth, particularly through processes like the preliminary assessment, which requires children to undergo arbitrary and subjective psychological evaluations that are not trauma-informed and violate their right against self-incrimination. . Reorienting India’s approach towards a rights-compliant system is just the start; it is imperative for the law to make sufficient room for rehabilitation. Clear protocols to divert children from the juvenile justice system, better resourcing for observation homes, community-based solutions, and a strengthened mandate for rehabilitation plans can offer pathways to restoration.

Sources

Fagan, J., Kupchik, A., & Liberman, A. (2003). Be careful what you wish for: The comparative impacts of juvenile versus criminal court sanctions on recidivism among adolescent felony offenders. Columbia Law School: Public Law and Legal Theory Working Paper Group, 3-61.

Kabra, A., & Panigrahi, P. (2020). Crimes by Children in Conflict with the Law - Heinousness, Acceptability, and Age of Adulthood: A Comprehensive Critique of the Present Juvenile Justice System. National Law School of India Review, 32, 69.

Manoharan, A., & Raha, S. (n.d.). The Juvenile Justice System in India and Children who commit serious offences – Reflections on the Way Forward. 1-20.

Manohar, H., Asokan, K., Madegowda, R. K., Kommu, J. V. S., & Seshadri, S. (2024). Children’s vulnerabilities and pathways to conflict with the law: Insights from Swatantra Clinic, a specialised mental health service at a tertiary care centre in India. Asian Journal of Psychiatry, 96, 104048. https://doi.org/10.1016/j.ajp.2024.104048

Raha, S. (2019). Treatment of Children as Adults under India’s Juvenile Justice (Care and Protection of Children) Act, 2015: A Retreat from International Human Rights Law. The International Journal of Children’s Rights, 27(4), 757–795. https://doi.org/10.1163/15718182-02704004

Ramakrishnan, S., Raha, S., & Puri, S. (2024). The Verdict and Beyond: Judicial trends and Survivor narratives in child sexual abuse cases (pp. 1–223). Enfold Proactive Health Trust. https://enfoldindia.org/wp-content/uploads/2024/11/The-Verdict-and-Beyond-Digital.pdf

Ramakrishnan, S., & Raha, S. (2022). “Romantic” Cases under the POCSO Act: An Analysis of Judgments of Special Courts in Assam, Maharashtra & West Bengal. Enfold Proactive Health Trust. https://enfoldindia.org/wp-content/uploads/2025/01/Romantic-cases-under-the-POCSO-Act.pdf

Scott, E. S., & Steinberg, L. (2008). Adolescent development and the regulation of youth crime. The Future of Children, 18(2), 15–33. https://doi.org/10.1353/foc.0.0011

Vesvikar, M., & Sharma, R. (2016). The Juvenile Justice System in India: Observation Homes and Current Debates. In E. Arnull & D. Fox (Eds.), Cultural Perspectives on Youth Justice (pp. 185–207). Palgrave Macmillan UK. https://doi.org/10.1057/978-1-137-43397-8_8

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