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JUVENILE JUSTICE ACT AND THE CRIMINAL JUSTICE SYSTEM IN INDIA

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arshiya ghose

on 9 January 2016

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Transcript of JUVENILE JUSTICE ACT AND THE CRIMINAL JUSTICE SYSTEM IN INDIA

JUVENILE
JUSTICE

CRIMINAL JUSTICE SYSTEM
INTRODUCTION
A Juvenile is a person
less than 18
years
of age. Under
s.82
of the
Indian Penal Code
, the
minimim age
at which any person can be
charged
for a crime is
seven years
.
OBJECT
The Act was brought in to adhere to the United Nations Convention on the Rights of Child (
UNCRC
) which was ratified by India in 1992.
As per 2011 census date, juveniles between the ages of 7-18 years constitute
25%
of the total population.
The percentage of juvenile crimes as a proportion of total crimes has increased from
1%
to
1.2%
from 2003-2013. During the same period, 16-18 year old's increased from
54%
to
66%.
Juvenile Justice (Care and Protection of Children) Bill, 2014
It was introduced in the
Lok Sabha
to address crimes committed by juveniles, children in need of
protection
, their
rehabilitation
and
adoption processes
, etc.
Objectives of the Bill
procedural safeguards
for children in conflict with law
addressing challenges
in the 1897 Act such as delays, accountability of institutions, pendancy of cases etc.
address children in the
16-18 age group
, as increased incidence of crime committed by them
HISTORY AND DEVELOPMENT OF JUVENILE LAWS IN INDIA
*NCRB Report (2013)
Code of Hammurabi
in 2270 B.C. makes the first mention of special treatment for child offenders.
Indian Penal Code
which, 1860 made
provisions for special consideration of delinquents
of immature understanding.
The
CrPC restricted jurisdiction
of ordinary courts in trial of any person under the age of
15 years
.
Reformatory Schools Act
1876 (modified later in 1897).
Juvenile Justice Act
, 1896. It was an accumulation of the previous enactments, and the first blueprint for a qualitative improvement in childcare services
GERMANY
CANADA
Youth Criminal Justice Act
(2003)
POLICE INVESTIGATION
Youth Courts
Residential confinement for 3 months
Supervision for following 6 months
Community service; fines; restitution; admonition
Children, Young Persons and Their Families Act (1989)
Arrests as last resort
Least restrictive placement
Incarceration prohibited (unless he/she is likely to abscond, reoffend, or interfere with their case)
Custodial sentences decreased more than 50% in the decade following the Act
In 2000 Youth Courts ordered custody for 3.5% of youth offenders suggesting their preference for community based sentences
3 CATEGORIES OF JUVENILES:
Below 14 years - culpable
14-17 years - responsibility of Welfare Department
18 years - 'adolescents'; criminally liable
Juvenile Justice Act (1990)
Least Restrictive Intervention
Diversion
Imprisonment: 6 months - 5 years; 10 years for serious offenses
Prohibition from transferring juveniles to adult court
60% of young adults tried as juveniles
Main goal: crime prevention and rehabilitation
Incarceration and Restrictive intervention for serious offenses
Community Sanctions
From 2003-08 no. of youth property offenders sentenced to custody dropped 50%
YCJA also reduced Youth Court case loads
JUDICIAL EFFORTS
Vishal Jeet v Union of India
The Supreme Court issued a PIL
Eradication of child prostitution
Evolving programmes for the care, protection, treatment, development and rehabilitation of victims
Sheela Barse v. Union of India

The Supreme Court issued directions to set up necessary observation homes
Pending investigation and trial will be expedited by juvenile courts
Sheela Barse v. Secretary, children
Aid Society
The Supreme Court commented upon setting up dedicated juvenile courts and special juvenile court officials
Proper provision of care and protection of children in observation Homes.
M.C. Mehta v State of Tail Nadu
Supreme Court pronounced upon the constitutional perspective of abolition of Child labour
Issued appropriate guide lines with respect to compulsory education, health, nutrition, etc of the child laborers.


Sakshi v Union of India,
Supreme Court directed the government/ Law commission to conduct a study and submit a report on the means of curbing child abuse
JUSTICE VERMA COMMITEE
RECOMENDATIONS
Punishment for Rape:
No death penalty
for rapists. RI
7 years- Life
; Causing death or a "persistent vegetative state" not be less than
20 years;
Gang rape-
20 years- Life.

Punishment for other sexual offences: Voyeurism-
7 years
; Stalking-
3 years
. Acid attacks-
7 years- Life
; Trafficking - RI for
7 - 10 years

Registering complaints and medical examination
Marriages to be registered
Amendments to the Code of Criminal Procedure
Bill of Rights for women
Review of the Armed Forces Special Powers Act

Pratap Singh vs. State of Jharkhand
The Supreme Court held that: "The said Act is not only a beneficial legislation, but also a remedial one...The
modern approach
is to consider whether a child can live up to the moral and psychological components of criminal responsibility, that is whether a child, by virtue of his or her individual discernment and understanding can be held responsible for antisocial behaviour"
Dr. Subramanian Swamy & Ors. Vs. Raju & Anr
The Apex Court upheld the treating of all persons “
under 18 as a separate category
for the purposes of differential treatment so far as commission of offences are concerned” under the Juvenile Justice Act 2000.
CRITICISM OF THE 2014 BILL
• If a child
less than 18 years
is subjected to a
normal trial
and a normal jail, there remains
no chance of rehabilitation
; they often turn into hardened criminals, repeat offenders.
• Moreover, the child’s brain at that age is still in its formative stage, they are
not fully mature yet to understand the full implications
of their action.
• It also goes against the United Nations Convention on Child Rights which mandates that 18 years is the cut-off age for children.
• It is very difficult to determine the maturity of the juveniles. Such
psychological tests are highly subjective and arbitrary
.
• This system is imported from U.S. where it is shown in many states that it
does not serve as an effective deterrence
. In fact, U.S. is closing down prisons and is looking for some other ways like community-based treatment programmes for prisoners.
• A flaw in the amended bill is that the d
iscretionary powers will be given to Juvenile Justice Board
to transfer such juveniles to criminal court for trial and punishment.

1. The bill allows for
juveniles 16 years or older to be tried as adults
for heinous offences like rape and murder.
2. The bill mandates setting up
Juvenile Justice Boards and Child Welfare Committees
in every district. Both must have at least one woman member each.
3. Once the bill becomes law, the decision to try a
juvenile 16 years or older as an adult
will be taken by the Juvenile Justice Board which will have the
discretion
to do so.
4. The proposed law also aims at adjudicating and disposing cases dealing with juveniles keeping in mind "
the best interest of the children and their rehabilitation
."
5. India is a signatory to the
UN Convention on the Rights of the Child
which mandates that all children under the age of 18 years be treated equal. The pending bill has been criticised for violation of the Convention.
6. The bill also deals with adoption of children and lays down the eligibility criteria for adoptive parents.
CHANGES BROUGHT BY THE 2014 BILL
7.Adds a
preliminary inquiry
, conducted in certain cases by JJB to determine whether a child is placed in a home or sent to Children’s Court to be tried as an adult.
8.Functions are same as in the Act;
training of members
to be done within two months of Bill becoming law; Committee to
meet at least 20 days in a month
.
9.
Appeal
JJB/CWC order
within 30 days
to Children’s Court, further High Court (District Magistrate for foster care, etc).
10.Inter-country adoption allowed if adoption cannot take place within the country, within 30 days of child being
11.Juveniles may be declared legally free for
adoption
;Adds new provision for
monthly checks on foster family
by the CWC.

TRIAL
ENQUIRY
NEED FOR REFORM
1979 the National Police Commission (NPC) was set up to report on policing and give recommendations for reform.
1998, the Court set up the Ribeiro Committee which handed in its reports in 1999.
Padmanabhaiah Committee report in 2000 and eventually the Police Act Drafting Committee (PADC or oli Sorabjee Committee) that drafted a new model police bill to replace the colonial 1861 Police Act.
Prakash Singh (2006) case, where the Supreme Court ordered that reform must take place.


The Court gave seven directives which provide practical mechanisms to kick-start reform.
Those seven directives are:
1. Constitute a State Security Commission (SSC)
2. DGP be appointed through merit based transparent process and secure a minimum tenure of two years.
3. Other police officers also provided a minimum tenure of two years.
4. Separate the investigation and law and order functions of the police.
5. Set up a Police Establishment Board (PEB)
6. Set up a Police Complaints Authority (PCA)
7.Set up a National Security Commission (NSC)

Prakash Singh v. U.O.I. and Ors
INTRODUCTION
The Police system in India is considered to be one of the least trusted systems in India. Reason behind this is the practice and conduct of the police system in its functioning. The trust on police system is very well reflected by
Section 25 and Section 26 of the Indian Evidence Act
, which says that confession made to a police officer or confession made in police custody is completely inadmissible. The continuous ill practices of the police system has led to degradation of the criminal justice system in India as it forms one of the vital part of the Criminal Justice system in India.

CAUSES OF DELAY IN INVESTIGATION
* Law Commission Report (2012), No. 239
DELAY
Police handicapped in undertaking investigation for want of gadgets such as cameras.
Dearth of forensic and cyber experts in police departments of various States.
Absence of sufficient care and effort for examining and recording the statements of witnesses.
Statements/FIRs/reports recorded are not fed to the computer immediately because of no computer network or absence of trainees.
Sufficient care and time is not bestowed in drafting the final reports/charge- sheets.
Photographs of accused are not affixed to the charge-sheets/arrest Memos etc. nor are even the identification marks noted.

Apathy and inaction on the part of the police in registering the FIRs.
Police are either hesitant to proceed with the investigation against important/influential persons or they are under pressure not to act swiftly especially if the person accused is in power or an active member of the ruling party.
Corruption at Police Station level is affecting the timely and qualitative investigation.
No internal mechanism to check the delay in registering FIR.
No periodical exercise to upgrade the skills of investigation.

PROGRESS IN TRIAL COURTS
PRE TRIAL DELAY
INVESTIGATION AND DOCUMENTATION
Absence of some or all the accused or non-production of under trial prisoners at the stage of framing of charges and during trial.
Earnest efforts are not being made by the Police in apprehending and producing the absconding accused.
Police fail to ensure that prosecution witnesses turn up in time and quite often, even I.Os are defaulters.
Lack of proper witness protection measures and the Court failing to act promptly in cases of complaints of harassment/inducement of witnesses.





REINVESTIGATION ( CASE LAWS)
Sonalal Soni v. State of Chhatisgarh and Others
The petitioner has preferred this writ petition under Arts. 226/227 of the Constitution of India being dissatisfied and aggrieved by unfair investigation conducted by respondent No. 5 in respect of murder of his son namely Somesh Kumar Soni. It has been prayed that entire record be called for and it be directed that investigation may be handed over to an independent agency like CID or CBI on the alternative the police may be directed to collect the entire evidence available on the record. Petition was allowed by the Court.

State of Punjab v. Central bureau of Investigation & Ors.
In a case where charge sheet has been filed, s. 173(8) cannot limit or affect the inherent powers of the High Court to pass an order u/s.482 for fresh investigation or re-investigation if the High Court is satisfied that such fresh investigation or re-investigation is necessary to secure the ends of justice. As regards investigation by CBI, the High Court held that investigation of the case by the investigating officer, even of the rank of DSP would not be fair and truthful because senior functionaries of the State police and political leaders were involved, and justice would not be done if local police investigated. Thus, direction of High Court for investigation by CBI was justified.

DSP Murder case
DSP Zia-ul-Haq was murdered by unknown miscreants in March 2013 in Kunda area of Pratapgarh district in Uttar Pradesh. His family had accused the then state food and civil supplies minister in SP-led government, Raghuraj Pratap Singh, alias Raja Bhaiya, of killing him. The court ordered CBI to reinvestigate the case following the petition filed by late DSP’s wife Praveen Azad.
Mass Rape case
A Kupwara court has ordered police to reinvestigate the alleged rape of 31 women by army jawans in Kunanposhpora village in February 1991 to find out who perpetuated the crime. The court ordered the investigation to be conducted by an officer not below the rank of senior superintendent of police.

New Zealand
INTERNATIONAL POSITION
USA
In response to significant overcrowding of youth correctional facilities, many states sought to reduce the use of custody and expand community correction interventions.

· The result is that juvenile detention admissions have decreased by 38 per cent since 1992. However, community-based alternatives to custody are often viewed as an appropriate response to minor offending but not more serious or violent crime.

· There is unanimity in almost all US States on the point of trying juveniles at par with adults on juvenile attaining the age of fourteen years in certain circumstances barring states like Vermont, Indiana, South Dakota where a child of even ten years can be tried as adult.

· As far as punishment part is concerned there are various forms of penalties that are given to the juveniles. In heinous crimes even life imprisonment can be granted to child aged twelve years which is considered to be the maximum punishment.

· Juveniles who have the potential to try serious offences are detained in secured and tenable environment and are made to take part in rehabilitative programme. All this is done to control young juveniles.

· Additionally rigorous punishments relating to drugs and gang related offences, stringent treatment such as boot camps and blended sentence have also been introduced to put them right.

· As far as the jurisdiction part is concerned if a child usually 13 or 15 commits a grave and grim crime then their case is automatically shifted to adult court. Jurisdiction of juvenile courts is automatically waived in such cases.
UNITED KINGDON
Youth imprisonment has decreased over last 30 years, but the proportion of youth placed under judicial control has increased since 1960's
Many prison fascilities have demonstrated minimum ability to effectively rehabilitate the youth
Approximately 80% of juveniles released from Youth Prisons are later reconvicted
Prior to 1998, a child aged between 10 and 13 was presumed under doli incapax to be incapable of committing an offence unless the prosecution were able to prove that the child knew the difference between right and wrong,

· Now, children aged between 10 and 17 are capable of committing offences and it is not possible for a child to avoid liability by showing that they do not know the difference between right and wrong.

· In addition to age, youth and adult courts are distinguished by the types of cases they handle, with youth courts hearing a much wider variety of offenses.

· Nearly all offenses committed by children are tried in youth courts,

· extremely serious offenses such as robbery or rape. On such charges, a young person will nearly always be tried as an adult.

· The maximum custodial sentence that a youth court may impose is a detention and training order of up to 24 months.

· The maximum available sentence varies depending on age, so there will be times when an increase in the age of an offender will result in the maximum sentence on the date of conviction being greater than that available on the date on which the offence was committed.


CRITIQUE
Backlog of cases - By mid-2012 there were 61,876 cases pending in the Supreme Court. Of these, the number of unresolved cases older than one year has increased to 40,658 from 35,909.
Delay in Adjudication
High Litigation Cost
Low Conviction Rate
Lowered Detterence Value
As suggested by the Supreme Court, present ratio of about 13 judges per million people should be raised to at least 50 judges per million people in a phased manner.
FALSE F.I.R. AND MISUSE OF CRIMINAL JUSTICE SYSTEM
State Vs. Virender Singh
-Trial court has acquitted a man of charges of raping a woman, with whom he was in a live-in relationship, after the girl retracted from her statement and said that she had lodged the compliant due to some misunderstanding because she thought that the accused was going to marry someone else.

State Vs. Sunil Kumar Singh
- The court acquitted the accused and observed that based upon the evidence led by the parties, it is manifest that the prosecutrix has lodged a false complaint of rape against the accused at the behest of somebody else, who wanted to settle scores with the accused and used prosecutrix as a pawn."The judge observed that, "Time has come when the courts should deal firmly with the women filing false complaints of rape. These women, who turn out to be tormentors and not the victims, should be punished under the appropriate provisions of law,"

THANK YOU
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