International Journal of Law

International Journal of Law

ISSN: 2455-2194
Impact Factor: RJIF 5.12
www.lawjournals.org
Volume 4; Issue 6; November 2018; Page No. 108-117

Salient features of juvenile justice act 2015: Comparative study with UK

Sahil Ahuja
Assistant Professor, Seedling School of law and Governance, Jaipur National University, Jaipur, Rajasthan, India

Abstract
The Juvenile Delinquency problem involves millions of youth. The prevailing problem in modern societies is the deterioration of
moral character among the youth. It has been observed that the tendency among youth people to commit crime and indulge in anti-
social activities is increasing. Juvenile Delinquency involves wrong doing by a child or a young person who is under an age
specified by statute. Delinquency is simply the first step on the road to adult crimes or it is a gateway to adult criminality. In India,
the concept is confined to the violation of ordinary penal law of the country so far as the jurisdiction of the Juvenile Court is
concerned. Under Section 82, upto 7 years of age there is an absolute irrefutable presumption that the child is ‘Doli incapax’. This
immunity is granted to the children below 7 years on the pragmatic approach of the state that children below seven years are not
capable hence they donot have the capacity to have the requisite “mens-rea”.
Under Section 83, if the child doesnot attain maturity of mind the burden of proof lies with the child. To make themliable they
must attain maturity of mind and this is called “ mischevious discretion” under English law. The children of this age will have to
prove that there was no maturity of mind when the act committed and therefore, no mens-rea.
In UK, the first court set up in Chicago in 1899 to address the issue of juvenile cries and punishments. It peaked in 1994. In 2002,
2.3 million juveniles were arrested for committing crimes. The 1908 Children Act created a separate and distinct system of justice
board in the juvenile court. The 1993 Children and Young Persons Act formally required the court to take account of welfare
consideration in all cases involving child offenders and the 1969 Children and Young Persons Act advocated the phasing out of
criminal in favour of civil proceedings.
A child under the age of 10 years shouldnot be arrested according to Section 16 of Children and Young Person Act, if a juvenile
arrested and later he turns out to be below the age of 10 years he should be released immediately according to Section 34(2) of
Police and Criminal Evidence Act.
A Child may be only kept in police custody for 72 hour and as soon as possible the constable should make arrangements for the
investigations to take place.

Keywords: child in conflict with law, child care and protection, bail procedure, age ascertainment, adoption

Introduction 39(e) & (f) along with fundamental duties under Article 51A,
In the last few decades, the crime rate by the children under was the need of the society. The laws relating to the child was
the age of 16 years has increased. The reason of increasing also expedient to be enacted due to accession by the
crime rate is may be due to the upbringing environment of the Government of India to the Convention on the rights of the
child, economic conditions, lack of education and the parental child, 1992, the standards set in UN rules for the
care. These are the some of the basic reasons. And the most administration of justice, 1985, UN rules for protection of
disappointing part is that, children (especially under the age juveniles deprived of their liberty, 1990 and Hague
group of 5 to 7 years) now a days are used as tool for Convention on Adoption,1993.
committing the crime as at that this stage their mind is very And therefore, the law was enacted in the year 1986 in form of
innocent and can easily be manipulated. Contemporary World Juvenile Justice Act and the same was, as per the above said
has seen increase in the rate of crime committed by juveniles natural phenomenon of changes, changed time to time
which is a very serious problem especially in India as these accordingly Le. Juvenile Justice (Care and Protection) Act,
juveniles are the future of their respective countries. More and 2000 and Juvenile Justice Act, 2015.
more children are moving towards the pathway of crime to The frightful incident of “Nirbhaya Delhi Gang Rape Case”
[1]
lead their life. Various factors are responsible for this , on December 16, 2012 shocked the whole nation and many
approach of juveniles. debates were started among legal fraternity and socialists. The
Change is the natural phenomenon and this phenomenon main reason and issue of the debate was the involvement of
applies in every sphere of life so the law cannot be an accused, who was just six months short to attain the age of 18
exception to this. In the same way, the laws relating to child, years. The involvement of the accused in such a heinous crime
having its seeds right from enactment of the Constitution of of rape forced the Indian Legislation to introduce a new law
India in the form of fundamental rights under Article 15(3) and thus, Indian Parliament came up with a new law which is
read with Directive Principles of State Policy under Article known as “ Juvenile Justice (Care and Protection), 2015. In

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other words, the present Act is the result of post Nirbhaya's means a child ad defined under Section 14 of the Act.
incident development. In this backdrop, the present Act has to  Children Act, 1960: Section 2(e) of the Act states
be analysed and discussed. “child” means a boy who has not attained the age of
The present Act places its reliance on following principles sixteen years or a girl who has not attained the age of
which have also been enumerated in Act itself: principle of eighteen years [5].
presumption of innocence; principle of dignity and worth;  United Nations Convention: The UN Convention on the
principle of participation’ principle of best' principle of family Rights of Child, 1989 defines that “child” means a human
responsibility’ principle of safety’ Positive measures’ being below the age of eighteen years unless the law
Principle of non-stigmatising semantics’ Principle of non- declaration applicable to child, majority is attained earlier
waiver of rights’ Principle of equality and non-discrimination' [6]
.
Principle of right of privacy and confidentiality’. Principle of
institutionalisation as a measure of last resort' Principle of Difference between Juvenile and Child
non-stigmatising semantics’ Principle of repatriation and A person under the age of full legal obligation and
restoration’ Principle of fresh start’ Principle of diversion and responsibility is a minor or a person who is below the legal
Principle of natural justice. age of eighteen years is minor. A child being accused of a
The J.J. Act, 2015 provides provisions for both children in crime is not tried as an adult and is sent to Child Care Centre
need of care and protection and children in conflict with law. whereas juvenile is a person between the age group of sixteen
Some key provisions include: across the Act to remove the and eighteen years. A young person who is been accused of
negative connotation associated with the word “juvenile”; crime is a juvenile offender and is tried as adult in court
inclusion of several new definitions such as orphaned, proceedings.
abandoned and surrendered children’ and petty, serious and In general sense both the term has same meaning but however
heinous offences committed by children’ clarity in powers, difference lies in context of implications in the eyes of law.
function and responsibilities of Juvenile Justice Board (JJB) Minor implies young and teen persons whereas juvenile either
Child Welfare Committee (CWC): clear time lines for inquiry indicates immature person or young offenders.
by Juvenile Justice Board (JJB); special provisions for heinous
offences committed by children above the age of sixteen year: International concerns for juvenile
separate new chapter on “adoption” to streamline adoption of The General Assembly of the United Nations adopted the
orphan, abandoned and surrendered children; inclusion of new Convention on the Rights of the Child on 20th November,
offences committed against children; and mandatory 1989 which prescribe a set of standard to be adhered to by all
registration of Child Care Institutions. This article, mainly the States parties in securing the best interest of the child [7].
focus on the provisions related to Juvenile in conflict with The International instruments and conventions have
law. contributed considerably to the issue of child rights and
The Introduction of the Act has replaced the existing juvenile prevention of child abuse [8]. The International bodies like
laws and has introduced some remarkable changes. One of the United Nations and UNICEF have always paid more emphasis
remarkable changes is juvenile under the age group of 16 to on the development of Child.
18 years should be tried as an adult. Following are the International Instruments and Conventions
that are signed by all the States of UN in order to protect the
Definition of child and juvenile under the juvenile justice rights of Children
act, 2015 and other various laws 1. UN Standard Minimum Rules for the Administration of
Generally, a “child ”mean a person who has not attain the age Juvenile Justice (Beijing Rules)
of 18 years and is not mature to understand that what is right 2. UN Guidelines for the Prevention of Juvenile
and wrong. In modern era, the penal laws of most countries Delinquency (Riyadh Guidelines)
have adopted the principle of ‘doli incapex’[2], which means of 3. UN Rules for the Protection of Juvenile Deprived of their
knowing that act there are committing is a crime. The penal Liberty (Havana Conventions)
laws also states that Only child between the age of seven to 4. Guidelines for the Action on Children in Criminal
twelve age can be convicted, provided that, the act they have Juvenile System (Vienna Guidelines)
committed is a heinous crime and they have knowledge and
has attained the sufficient knowledge to understand the Juvenile Justice and Constitution of India
consequences of their act. The Constitution of India is consider as the fundamental
According to sub- section 12 of Section 2 of The Juvenile law of India. Constitution provides rights and duties of
(Care and Protection) Act, 2015 a “child” means a person who citizens. It also provides provision for the working of the
has not completed eighteen years of age. The Act classifies the government machineries. Constitution in Part III has provided
term “Child” into two categories: – Fundamental Rights for its citizens in the same manner in its
 “Child in conflict with law” [3], and Part IV it has provided Directive Principles of State Policies
 “Child in need of care and protection [4]. (DPSP) which acts as general guidelines in framing
government policies. Constitution has provided some basic
The child who has committed an offence and he or she is rights and provisions especially for the welfare of children.
under the age of 18 years on the date of commission of the Like.
offence is basically called as “child in conflict with law”. The 1. Right to free and compulsory elementary education for all
second sub – category is “child in need of care and protection” the children under the age of 6 to 14 years.( Article 21A)

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2. Right to be protected from any hazardous employment twice – first in the year of 2006 and later in year of 2011.The
under the age of fourteen age.(Article 24) amendment was made to address the gap and loopholes in the
3. Right to be protected from being abused in any form by implementation.
an adult. (Article 39(e)). Further, the increasing number of cases of juvenile crimes in
4. Right to be protected from human trafficking and forced the last recent years and frightful incident of “Delhi Gang
bonded labour system.( Article (Article 39) Rape Case” has forced the law makers to come up with the
5. Right to be provided with good nutrition and proper law. The major drawback of the Act was that it contains ill
standard of living.(Article 47) equipped legal provisions and malfunctioning juvenile system
6. Article 15(3) of the Constitution of India provides special was also the major reason in preventing the juvenile crimes in
powers to State to make any special laws for the India. The act was replaced soon by The Juvenile Justice
upliftment and the betterment of children and women. (Care and Protection) Act, 2015.

Therefore, the law makers while drafting the Juvenile Act, Present Juvenile Justice System in India
2015 has consider all the necessary provisions laid down by Like the other countries, India had also made legal provisions
the Constitution so that child’s rights are protected in all the that especially and specifically deals with the rights and
possible ways. protection of juvenile offenders which seeks to tackle the
This is for the same reason that Chapter IV of the Act lays problem of juvenile delinquency. The Juvenile Justice System
down the provisions for betterment of the juveniles and has in India is made on the basis of three main assumptions:-
focused on the Reformation and Rehabilitation of Juveniles in 1. Young offenders should not be tried in courts, rather they
all the possible circumstances. should be corrected in all the best possible ways,
2. They should not be punished by the courts, but they
History of juvenile justice system in India should get a chance to reform
In present era, a movement for the special treatment of 3. Trial for child in conflict with law [10] should be based on
juvenile offenders has started throughout the world including non-penal treatment through the communities based upon
many developed countries like U.K., U.S.A. This movement the social control agencies for e.g. Observation Homes [11]
has been started around the 18th century. Prior to this, juvenile and Special Homes [12].
offenders were treated as same as other criminal offenders.
And for the same reason, General Assembly of United Nations Juvenile Justice Act, 2015
has adopted a Convention on the Rights of Child on 20th The aims to consolidate the laws relating to children alleged
November 1989. This convention seeks to protect the best and found to be in conflict with law and children in need of
interest of juvenile offenders. The Convention states that to care and protection by catering and considering their basic
protect the social – reintegration of juvenile, there shall be no needs through proper care & protection, development,
judicial proceeding and court trials against them. The treatment, social- integration, by adopting a child friendly
Convention leads the Indian Legislation to repeal the Juvenile approach in the adjudication and disposal of matters in the
Justice Act, 1986 and to make a new law. Thus, Indian best interest of children. The act also focuses on rehabilitation
Legislation came up with a new act which was called as “The of juvenile offenders through various child care houses and
Juvenile Justice (Care and Protection of Children) Act, 2000. institutions.
The Juvenile Justice, 1986 which repealed the earlier Children
Act, 1960, aimed at giving effect to the guidelines contained The most important subjects of the Act are as follows
in the Standard Minimum Rules for the Administration of Claim of Juvenility
Juvenile Justice adopted by the U.N. countries in November The very first and most debatable question among the legal
1985 [9]. The above mentioned Act consisted of 63 Sections, 7 fraternity and socialists is the “claim of juvenility”. The claim
Chapters and is extended to whole India expect to the State of of Juvenility is to be decided by Juvenile Justice Board. The
Jammu and Kashmir. The primary purpose of the Act was to Board has to decide the claim of juvenility before the court
provide care and protection, treatment, development and proceedings but the claim of juvenility can be raised before
rehabilitation of the neglected juvenile delinquent. The main the court at any stage of proceedings and even after the
objectives of the Act were:- disposal of the matter by the Board.The Board had to consider
1. The act basically laid down uniform framework for the Rule 12 of the Juvenile Justice Rules, 2007 in order to
juvenile justice in country in such a way that it protects determine the claim of juvenility. In case of KulaiIbrahim v.
the right and interest of juvenile. State of Coimbatore [13] it was observed by the Court that
2. It talks about the machinery and infra – structure for the accused has right to raise the question of juvenility at any
care, protection treatment, development and rehabilitation point of time during trial or even after the disposal of the case
of the juvenile offenders. under the Section 9 of Juvenile Justice Act, 2015.
3. It set out the basic provisions for the proper and fair In case of Deoki Nandan Dayma v. State of Uttar Pradesh [14]
administration of criminal justice in case of heinous crime the court held that entry in the register of school mentioning
done by juvenile offenders. the date of birth of student is admissible evidence in
determining the age of juvenile or to show that whether the
Juvenile Justice Act, 2000 accused is juvenile or child.
The Act was enacted in year 2000 with aim and intent to Again in the case of Satbir Singh& others v. State of Haryana,
[15]
provide protection for children. The mentioned was amended Supreme Court again reiterated that for the purpose of

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determination whether accused is juvenile or not, the date of not be hyper technical.
birth which is recorded in the school records shall be taken It obliges the court only to make an inquiry, not an
into consideration by Juvenile Justice Board. investigation or a trial, an inquiry not under the Code of
In case of Krishna Bhagwan v. State of Bihar [16] the court Criminal Procedure, but under the J.J. Act. Criminal Courts, JJ
stated that for the purpose of trial under Juvenile Justice Board Board, Committees etc., we have noticed, proceed as if they
the relevant date for the considering the age of juvenile should are conducting a trial, inquiry, enquiry or investigation as per
be on which the offence has been committed. the Code.
But later in case of Arnit Das v. State of Bihar [17], the Section 9 & 94 has also used certain expressions which are
Supreme Court overruled its previous decision and held that also be borne in mind. It uses the expression "on the basis
date to decide in claim of juvenility should be the date on appearance. Further, the age determination inquiry has to be
which the accused is brought before the competent authority. completed and age be determined within fifteen days which is
also an indication of the manner in which the inquiry has to be
Child Ascertainment conducted and completed.
Issue of the Child is one of the most vexed and critical issue in "Age determination inquiry" contemplated under section 94 of
implementation of the Act. The crucial date for determining the Act enables the court to seek evidence and in that process,
the claim of child is the date of commission of the offence and the court can obtain the matriculation or equivalent
not the date or arrest or production of juvenile before the certificates, if available. Only in the absence of any
Juvenile Justice Board [18]. matriculation or equivalent certificates, the court need obtain
As per Section 9 of the New Act, the Magistrate who is not the date of birth certificate from the school first attended other
empowered to exercise the power of Juvenile Justice Board than a play school. Only in the absence of matriculation or
under this Section, is of the opinion that a person brought or equivalent certificate or the date of birth certificate from the
appearing before him with allegations of having committed school first attended, the court need obtain the birth certificate
any offence is a juvenile, then he shall without any delay, and given by a corporation or a municipal authority or a panchayat
without waiting for such person to raise claim of juvenility, (not an affidavit but certificates or documents). The question
ascertain the age of that person and record its opinion and of obtaining medical opinion from a duly constituted Medical
forward the juvenile along with record to the Juvenile Justice Board arises only if the above mentioned documents are
Board, having jurisdiction over the proceeding. unavailable. In case exact assessment of the age cannot be
In Hari Ram v. State of Rajasthan and Anr [19] Hon'ble done, then the court, for reasons to be recorded, may, if
Supreme Court of India took the view that the Constitution considered necessary, give the benefit to the child or juvenile
Bench judgment in Pratap Singh case was no longer relevant by considering his or her age on lower side within the margin
since it was rendered under the unamended Act. In Hari Ram of one year.
while examining the scope of Section 7A of the Act, it is held
that the claim of juvenility can be raised before any court at Bail grant to juvenile
any stage and such claim was required to be determined in In normal course, a juvenile is entitled to bail, notwithstanding
terms of the provisions contained in the 2000 Act and the gravity of the crime. His bail can be refused only when there
Rules framed there under, even if the juvenile had ceased to are reasonable grounds for believing that his release is likely
be so on or before the date of commencement of the Act [20]. to bring into association with any known criminal or ex- pose
Further, it was also held that on a conjoint reading of sections his moral, physical or psychological danger or that his re-
2(k), 2(l), 7A, 20 and 49 r/w Rules 12 and 98 [21] places lease would defeat the ends of justice.
beyond all doubt that all per- sons who were below the age of The language in Section 12 of the Act that “not- withstanding
18 years on the date of commission of the offence even prior anything contained in the Code of Criminal Procedure, 1973,
to 1.4.2001 would be treated as juveniles even if the claim of or any other law for the time being in force ” mandates that
juvenility was raised after they had at- tained the age of 18 this Section is having overriding effect and the juvenile
years on or before the date of commence- ment of the Act and accused shall be released.
were undergoing sentence upon being convicted. In Since the juvenile in conflict with law is entitled to be released
Dharambir v. State (NCT of Delhi) and Anr [22] The Appellant on bail, he is also entitled to get interim bail. It may be pointed
was not a juvenile within the meaning of 1986 Act, when the out that the Hon'ble Supreme Court has held in the case of
offences were committed but had not completed 18 years of Sukhwant Sing & ors. Vs. State of Punjab [24]. That when there
age on that date. is power to grant bail, there is inherent power to the court
Section 20 also enables the Court to consider and determine concerned to grant interim bail to the person, pending final
the juvenility of a person even after conviction by the regular disposal of the bail application and it is in the discretion of the
court and also empowers the Court, while maintaining the concerned Court to grant interim bail. The same is applicable
conviction to set aside the sentence imposed and forward the to the Juvenile Justice Board. When pending final disposal of
case to the J.J. Board concerned for passing sentence in the application, juvenile may be released on interim bail.
accordance with the pro- visions of the 2000 Act.
Juvenile Justice Board
Age Determination There shall be a constitution of Board for the purpose of
While determining the age, as observed by the Honourable inquiry and hearing in the matters of juvenile in conflict with
Apex Court in Rajinder Chandra Vs. State of Chhatisgarh [23], law [25].
the approach of the Courts or Juvenile Justice Board should The Board shall consist of Principal Magistrate and two social

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workers, among whom one should be a women [26]. The Act circumstances in which he allegedly committed an
provides that under no circumstances the Board can regulate offence.
and operate from regular court premises. The decision taken
by the Principal Magistrate shall be final [27]. The JJBs will conduct a preliminary inquiry of a crime
1. Special Procedure of Juvenile Justice Board: The Act has committed by a child within a specified time period and
provided the procedure against the juvenile decides whether he should be sent to rehabilitation center or
offender.Following are the main special procedure. sent to a children’s court to be tried as an adult. The board can
2. The proceedings cannot be initiated on a complaint take the help of psychologists and psycho-social workers and
registered by the police or citizen. other experts to take the decision.
3. The hearing must be informal and should be strictly Such an inquiry is to be completed within a period of four
confidential. months from the date of first production of the child before the
4. The offenders should be kept under Observation Home Board, unless the period is extended, for a maximum period of
after detention. two more months by the Board, having regard to the
5. The trial of juvenile in conflict with law shall be circumstances of the case and after recording the reasons in
conducted by lady Magistrate. writing for such extension. If inquiry by the Board for petty
6. A child in conflict with law may be produced before an offences remains inconclusive even after the extended period,
individual member of the Board, when Board is not the proceedings shall stand terminated. However that for
sitting [28]. serious or heinous offences, if the Board requires further
extension of time for completion of inquiry, the same is to be
Changes brought after Nirbhaya’s case obtained from the Chief Judicial Magistrate or, the Chief
New Act classifies offences. A 'heinous of- fence' is offence Metropolitan Magistrate, as the case may be.
with minimum punishment of seven years of imprisonment or
more. A 'serious offence' are offences with three to seven Procedure of Inquiry and Trial under Juvenile Justice
years of imprisonment and a 'petty offence' is with a less than (Care and Protection if Children) Act 2015
three year imprisonment. Section 14 (d)
It treats all the children below 18 years equally.  Cases of petty offences, shall be disposed of by the Board
through summary proceedings, as per the procedure
Procedure to be followed when claim of juvenility is raised prescribed under the Code of Criminal Procedure 1973;
before the court  Inquiry of serious offences shall be disposed of by the
(Sec 19 of new Act) The Children’s Court to Decide the Board, by following the procedure, for trial in summons
aspect as to whether the child is to be tried as an adult if:- cases under the Code of Criminal Procedure, 1973;
 Age group of child is 16-18  Inquiry of heinous offences,
 Committed heinous crime having minimum imprisonment 1. For child below the age of sixteen years as on the
of more than seven years date of commission of an offence shall be disposed of
 Or, who commits a serious offence, may be tried as an by the Board under clause;
adult if he is apprehended after the age of 21 years. 2. For child above the age of sixteen years as on the
 The Board on inquiry and assessment of child of his date of commission of an offence shall be dealt with
mental and physical capacity to commit such offence, in the manner prescribed under section 15.
ability to understand consequences of such offence and

Offences under JJ act

Table 1
Sr. Sec/ Offence. Penalty
Imprisonment for a term which may extend to six months or
1. 74. Prohibition on disclosure of identity of children. fine which may extend to two lakh rupees or both. (JJB or
CWC).
77
Giving a child any intoxicating liquor/narcotic drug/tobacco/psychotropic
2. & Imprisonment: upto seven years; Fine: upto one lakh rupees.
substances.
78.
3. 81. Selling or buying a child. Imprisonment: upto five years; fine: one lakh rupees.
4. 75. Subjecting a child to cruelty. Imprisonment: upto three years; fine: and/or one lakh rupees.
5. 76. Employing begging. A child for Imprisonment: upto five years; fine: one lakh rupees.
Engaging a child and keeps him in bondage for the purpose of employment Rigorous imprisonment for a term which may extent to five
6. 79.
or withholds his earnings or uses such earning for his own purposes. years and shall also be liable to fine of one lakh rupees.
Imprisonment of either description for a term which may
7. 80. Punitive measures for adoption without following prescribed procedures. extend upto three years, or with fine of one lakh rupees, or
with both

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Child Welfare Committees decided in the affirmative, would have a presupposition

Chapter 5 of the act provides for constitution of a Child that the child is guilty of having committed the offence.
Welfare Committee for exercising the powers and to dis- And also the question remains unanswered that on what
charge the duties conferred on such Committees in relation to grounds exactly is the board going to make these
children in need of care and protection under this Act and determinations within a one-month period and before the
ensure that induction training and sensitization of all members actual trial. Under this Act the juveniles between 16 to 18
of the commit- tee is provided within two months from the years of age, who are found guilty of committing heinous
date of notification. offences after going through a preliminary inquiry by the
Juvenile Justice Board, will be sent to a children’s court
New welfare institutions established that can pronounce the child guilty. Such juveniles can be
Sections 43 and 44 provide for the constitution of open detained in a ‘place of safety’ until they reach the age of
shelters and foster homes respectively by the State 21. Even then if they are not found to have been
Government for case and protection of the child. “reformed” by 21, they can be sent to jails housing adults.
Section 47 of the act enables the State Government to At present, most states do not have the ‘place of safety’,
establish such observation homes in every district as it deems also known as ‘borstals’.
fit for temporary reception, care and rehabilitation of any child  The new juvenile laws have extended its definition of
alleged to be in conflict with law, during the pendency of any heinous offences beyond rape and murder. Heinous
inquiry under this Act. offences include all offences that are punishable with 7
Several rehabilitation and social reintegration measures have years or more of imprisonment. Experts have analyzed
been provided for children in conflict with law and those in the law, and have enumerated various offences for which
need of care and protection. Under the institutional care, children can be tried as adults. These include offences
children are provided with various services including related to drugs, waging war, trafficking, abetment of
education, health, nutrition, de-addiction, treatment of crimes, allowing one’s premises to be used, and many
diseases, vocational training, skill development, life skill others.
education, counselling, etc to help them assume a constructive  As per the new Juvenile Justice Act there is a provision of
role in the society. The variety of non-institutional options availing experts in around 600 above districts in the
include: sponsorship and foster care including group foster country to provide their inputs to the JJBs Based on their
care for placing children in a family environment which is analysis it is to be decided whether or not a child
other than child’s biological family, which is to be selected, committing a crime is in a ‘child-like’ frame of mind or
qualified, approved and supervised for providing care to not. This idea may appear sound on paper, or in a
children. Section 48 of the act enables the State Government parliamentary debate, but in reality it is highly subjective.
to establish such safety homes in every district as deems fit for It places too much liability on the Juvenile Justice Board
rehabilitation of those children in conflict with law who are which may end up succumbing to the public outcry and
found to have committed an offence and who are placed there consequently would lead to the children being transferred
by an order of the Juvenile Justice Board to the adult criminal justice system.
 This law becomes contentious also because of the rising
Confidentiality phenomenon of teenagers eloping and consensual sex
Section 74 prohibits the disclosure of identity of children with among teenagers. The boys can now face trials for rape.
respect to their name, address, school or any other particular Under the Protection of Children from Sexual Offences
in newspapers or any other media. Act (POCSO), a child cannot con- sent to a sexual act
until the age of 18, so any act of sex, even consensual, is
Adoption considered to be rape.
Chapter 8 of the act deals with provisions with respect to
Eligibility of adoptive parents and the procedure for adoption. It reverses commitments to the UN, flowing from several
To streamline adoption procedures for orphan, abandoned and conventions and guidelines to which India is a signatory,
surrendered children, the existing Central Adoption Resource particularly recommendations 79 and 80 of the UN Committee
Authority (CARA) is given the status of a statutory body to on the Rights of the Child, which specifically desire India to
enable it to perform its function more effectively. Separate “ensure that persons under 18 are not tried as adults, in
chapter (VIII) on Adoption provides for detailed provisions accordance with the principle of non-discrimination contained
relating to adoption and punishments for not complying with in Article 2 of the Convention.
the laid down procedure. Processes have been streamlined
with timelines for both in-country and inter-country adoption Juvenile Justice System in U.K.
including declaring a child legally free for adoption. In United Kingdom there is Youth justice it comprises the
organs and processes that are used to prosecute, convict and
Some Shortcomings punish persons under 18 years of age who commit criminal
 In the new Act the sections 14(1) and (2) are major issues offences. For the first time in 1908 Juvenile Courts were
of concern. The first is the ground on which the Juvenile established in England under the Children Act, 1908. The
Justice Board will decide if a 16- or 17-year-old is to be primary duty of these courts was to provide proper care and
tried under the JJ Act or in a normal court. The most protection to child and young offenders and take all the
contentious aspect of these tests is that almost all, if necessary steps to remove all undesirable surroundings around

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the offenders and to ensure reformation of the offenders by in the form of a Youth Court, which hears cases of ten to
providing education and training. eighteen year olds [39]. This youth court was established to
1. The Children and Young Offenders Act, 1933 confers the prevent children and young people from entering into contact
civil powers on the Juvenile Courts in certain important or associating with adult suspects during any phase of a trial
[40]
cases to look into matter. The Act also provides that any . The public are excluded from these courts; further,
child [29] and young person [30] who have committed the reporting restrictions may be placed on what the media may
crime should be tried in Juvenile Courts only. The Act publish from these proceedings. There are also laws that
also provides the establishment of Remand Homes [31]. protect the anonymity of children appearing before the court
2. UK Legislation also came with the new Act that also [41]
. The Youth Court is a specialized magistrates’ court that is
deals with Rights of Juvenile Offenders. The Act came to comprised of justices of the peace, with three normally present
know as The Criminal Justice Act, 1948, the act provides for each case [42]. The court has a range of different sentences
certain class of security to young offenders by sending for young offenders [43]. for example, supervision orders [44]
them to remand homes. that can have a variety of conditions attached to them or an
Action Plan Order, an intensive, three month long community-
A number of Acts, dating back to 1933, provide for the system based programme. More serious custodial methods of
of juvenile justice in England and Wales and attempt to ensure punishment are detention and training orders. These orders are
that a fair trial and fair treatment is given to children accused normally given to children representing a “high level of risk
of crimes. The minimum age of criminal responsibility in [to the public], have a significant offending history or are
England and Wales is currently ten years old [32]. Those below persistent offenders and where no other sentence will manage
this age are considered doli incapax and thus incapable of their risks effectively [45]. They apply for a minimum period of
forming criminal intent [33]. four months to a maximum period of two years, with half of
Children arrested for crimes in England and Wales and held in the sentence being served in custody and the remainder in the
custody must be separated from the adult population of the community supervised by a “youth offending” team. Only
jail. Their guardians must be notified as soon as reasonably those offenders over the age of fifteen may be sentenced to
practicable and informed of the charges brought against the detention in a young offenders’ institution, although this latter
child and the child’s place of detention [34]. During any court restriction does not apply to children aged ten and over
proceedings involving the child under the age of sixteen the convicted of murder [46].
law requires the attendance of the child’s guardian during all For very serious offenses, children are prosecuted in the
proceedings, unless this is unreasonable in the circumstances Crown Court. A practice direction issued by the Lord Chief
of the case. The general principle for children charged with Justice of England and Wales in respect to Crown Court
crimes is that they should not be held in police custody but prosecutions of children requires that the “trial process should
instead taken care of by social services in Local Authority not itself expose the young defendant to avoidable
accommodations. The principle is considered to be of such intimidation, humiliation or distress. All possible steps should
importance that police custody officers have a statutory duty be taken to assist the young defendant to understand and
to release juveniles to local authority accommodations unless participate in the proceedings. The ordinary trial process
they can certify that specific circumstances make it should so far as necessary be adapted to meet those ends [47].
impracticable for this to occur, or for children aged twelve or The Children and Young Persons Act 1933 requires that the
over no secure accommodation is available, and no other local welfare of the defendant should be regarded during any
authority accommodation is adequate to protect the public criminal proceedings [48], and the practice direction requires
from the serious harm posed by the child [35]. that breaks be frequently taken, that the formal court attire of
The principal aim of the juvenile justice system is to “prevent robes and wigs not be worn, and that there be no recognizable
offending by children and young people [36]. To achieve this police presence in court without good cause. The Crown Court
aim, the juvenile justice system in England and Wales is the only court that is permitted to follow these rules for
progresses through a series of steps [37]. The first two, which sentencing children between ten and eighteen years old that
apply only to less serious crimes, aim at preventing the child have committed an offense that is punishable by fourteen or
from entering the juvenile justice system through a series of more years’ imprisonment for adult offenders, children that
behavioural contracts and other methods designed to correct have committed murder, or certain sexual offenses, may be
the child’s behaviour to prevent him or her from re-offending sentenced for up to the adult maximum for the same offense
[49]
or committing a serious offense. For example, a system of . The young offenders are not placed in prisons alongside
cautioning has been developed for young offenders through adults, but can be placed in secure training centres, secure
reprimands and warnings that are given to those who admit children’s homes, or young offenders’ institutions.
guilt to the police for their crimes and for whom there is
sufficient evidence that any prosecution for the offence would Comparative analysis between the Indian and British
be successful [38]. Upon receiving the reprimand or warning model
the young offender is then referred to the Youth Justice Board  The Indian law that governs Juvenile justice system is
who arranges for the youth’s participation in a rehabilitation The Juvenile Justice (Care and Protection of Children)
programme. Act, 2015.
For children to whom these preventive methods do not apply,  The United kingdom law which governs Juvenile justice
for example, due to the seriousness of the offense, or who system is Crime and Disorder Act 1998.
have exhausted them, the juvenile justice system then operates

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International Journal of Law

1. Criminal Responsibility India b. direct the child to participate in group counselling and
 Under the Juvenile Justice (Care & Protection of similar activities;
Children) Act, 2015 which provides the criminal c. order the child to perform community service under the
responsibility, the age of criminal majority starts from the supervision of an organisation or institution, or a
age of 16 to 18 years whosoever commits a serious specified person, persons or group of persons identified
offence. Thus, also attracts a minimum 7 years of by the Board;
imprisonment. Also, no child under the Juvenile Justice d. order the child or parents or the guardian of the child to
(Care & Protection of Children) Act, 2015 can be pay fine:
awarded a Death Penalty & Life Imprisonment e. Provided that, in case the child is working, it may be
 The law defines a “juvenile or child’” as a person who ensured that the provisions of any labour law for the time
has not completed their 18thyear of age. being in force are not violated;
f. direct the child to be released on probation of good
United Kingdom. conduct and placed under the care of any parent, guardian
 In England and Wales Now, children aged 10 and 17 are or fit person, on such parent, guardian or fit person
capable of committing offences and it is not possible for a executing a bond, with or without surety, as the Board
child to avoid liability by showing he does not know the may require, for the good behaviour and child’s well-
difference between right and wrong. being for any period not exceeding three years;
g. direct the child to be released on probation of good
2. Judicial Process India conduct and placed under the care and supervision of any
 Under this act children are not to be taken to a fit facility for ensuring the good behaviour and child’s
regular criminal court. well-being for any period not exceeding three years;
 The purpose of a separate court is that its purpose is h. direct the child to be sent to a special home, for such
socio-legal rehabilitation and reformation, not period, not exceeding three years, as it thinks fit, for
punishment. providing reformative services including education, skill
 The aim is to hold a child culpable for their criminal development, counselling, behaviour modification
activity, not through punishment, but counselling the therapy, and psychiatric support during the period of stay
child to understand their actions and persuade them away in the special home.
from criminal activities in the future.
 The JJB consists of a metropolitan magistrate or a judicial Provided that if the conduct and behaviour of the child has
magistrate of the first class and two social workers, at been such that, it would not be in the child’s interest, or in the
least one of whom should be a woman. interest of other children housed in a special home, the Board
 JJB are meant to resolve cases within a four month may send such child to the place of safety.
period.
2. If an order is passed under clauses (a) to (g) of sub-section
United Kingdom (1), the Board may, in addition pass orders to—
 When a young person is charged with an offence, they 1. Attend school, or
will appear before the youth court. 2. Attend a vocational training centre; or
 If a young person pleads not guilty, a date will be set for 3. Attend a therapeutic centre; or
the trial when the magistrates will hear all the evidence 4. Prohibit the child from visiting, frequenting or appearing
and decide whether or not the young person is guilty. at a specified place; or
 If the decision is guilty, they will then decide on the most 5. Undergo a de-addiction programme.
appropriate sentence.
 If the case is very serious, the youth court will send the 3. Where the Board after preliminary assessment under section
case to the Crown Court for trial and or sentence. 15 pass an order that there is a need for trial of the said child
as an adult, then the Board may order transfer of the trial of
3. Penalties And Restoration India the case to the Children’s Court having jurisdiction to try such
Orders regarding child found to be in conflict with law. offences.
Section 18
1. Where a Board is satisfied on inquiry that a child United Kingdom
irrespective of age has committed a petty offence, or a serious Juvenile courts have a wide range of sentencing options that
offence, or a child below the age of sixteen years has they can impose on juveniles or youth offenders.
committed a heinous offence, then, notwithstanding anything  Incarcerating Juvenile Delinquents
contrary contained in any other law for the time being in  After a child is held delinquent a JJ Court may order
force, and based on the nature of offence, specific need for incarceration as a penalty. But this incarceration is
supervision or intervention, circumstances as brought out in different from those used in adult criminal justice system.
the social investigation report and past conduct of the child, Some common ways that the judges can order
the Board may, if it so thinks fit,— confinement for a juvenile who has been found
a. allow the child to go home after advice or admonition by delinquent:
following appropriate inquiry and counselling to such  Home confinement: The judge can order the minor to
child and to his parents or the guardian; remain at home, with exceptions (attend school, work,

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International Journal of Law

counselling, and so on). effective implementation. Let us put the Juvenile Justice (Care
 Placement with someone other than a parent or and Protection of Children) Act to test, and make most of this
guardian: The judge can require that the minor live with provision to streamline its efficiency, keeping children centre-
a relative or in a group or. stage. The Juvenile Justice (Care and Protection of Children)
 Juvenile hall/juvenile detention facility: The judge can Act, 2015 lays down the primary law for not only the care and
send the minor to a juvenile detention facility. These protection of the children but also for the adjudication and
facilities are designed for short-term stays. disposition of matters relating to children in conflict with law.
 Secured juvenile facilities: These facilities are designed The Juvenile Justice (Care and Protection of Children) Act
for longer term stays. Juveniles can be sent to secured 2015,provides for strengthened provisions for both children in
facilities for months or years. need of care and protection and children in conflict with law.
 Juvenile and adult jail: In some jurisdictions, judges can Some of the key provisions include change in nomenclature
send delinquent juveniles to a juvenile facility, and then from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across
order transfer to an adult facility once the juvenile reaches the Act to remove the negative connotation associated with the
the age of majority. word “juvenile”
JJ Act, 2015, has brought the drastic change in the Juvenile
 Non-Incarceration Options for Juveniles Jus- tice Act, 2000, in the area of treatments of juvenile, the
 Verbal warning: The sentence for the juvenile can be as functioning of the Juvenile Justice Board, and Child Welfare
simple as a verbal reprimand. Committee, the forum of appeal against the order of Juvenile
 Fine: The minor may be required to pay a fine to the Justice Board and Child Welfare Committee, as well as in the
government or pay compensation to the victim. area of intercountry adoption and aftercare of the children.
 Counseling: Often, judges require juveniles to attend The Act is a beneficial piece of legislation and therefore, must
counseling as part of a disposition order. be interpreted and understood to advance the cause of
 Community service: Juveniles may be ordered to work a legislation and to confer the benefits of the provisions thereof
certain number of hours in service to the local to the categories of persons from whom the legislation has
community. been made.
 Electronic monitoring: Juveniles may be required to The Juvenile Justice System is limited in its application to the
wear a wrist or ankle bracelet that verifies their location at children committing offences and others in need of care and
all times. protection. The term youth justice encompasses all aspects of
the complex system involving the treatment of children and
 Probation young people who commit offences. The parallel strands of
 Probation is a program of supervision in which the the law relating to police investigation, diversion from
minor’s freedom is limited and activities restricted. prosecution, the pre-trial; process, bail, remands and the use of
 Probation is the most common disposition in juvenile secure accommodation, the youth court, the youth offending
cases that receive a juvenile court sanction. In an average teams, trials, sentences and post- sentence supervision all
year, about half of all minors judged to be delinquent come under the youth justice umbrella.
receive probation as the most restrictive sentence. The increasing rates of juvenile crime in India in very
concerning issue and need to be focused upon. Although
Conclusion government has laid various legislation and rules to stop the
Every child has a right to joyful, elated and jubilant childhood, incidents of juvenile crimes but the present laws on juveniles
the right to grow in a harmless and nurturing environment, the is not creating a deterrent effect on the juveniles and thus the
right to be free from the intricacies and convolutions of life results are not fruitful and legislative intent is not
etc. but there are some unlucky and doomed children who are accomplishing.
deprived of these things and they grow out to be children not
wanted for or to term it the other way juvenile delinquents. To References
deal with these juvenile offenders many legislations are made 1. 1998 SCC, Del 879 : (1999) 77 DLT 181
across the world. In India, The Juvenile Justice (Care and 2. Section 82 of IPC states that a child below the age of
Protection of Children) Act, 2015 is far from being a perfect seven years is doli incapex
legislation to protect and promote the rights of children. The 3. Section 13 of The Juvenile Justice (Care and Protection of
mistakes in the earlier law have been replicated in the present Children) Act,2015
enactment. It is still left to the discretion of the respective 4. Section 14 of The Juvenile Justice (Care and Protection of
State governments to set up the mechanism mentioned under Children) Act,2015
the Act, despite a demand that the full implementation of the 5. Bare Act, The Children Act, 1960, Universal Publication,
Act be made mandatory. The juvenile justice system is 12th Edition
presently in limbo. Let us hope that respective State 6. Article 1 of the UN Convention on the Rights of Child,
governments fill the lacunae by preparing comprehensive 1989.
rules in consultation with child rights experts and non- 7. Prof. N.V. Paranjape, Criminology, Penology with
governmental organizations. The Central government is Victimology, page no 662,Central Law Publications, 17th
empowered under Section 70 to remove, within two years of edition,2017
the Act having come into force, any difficulty that hampers its 8. http://shodhganga.inflibnet.ac.in/bitstream/10603/37610/9
/09_chapter%203.pdf

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International Journal of Law

9. Prof. N.V. Paranjape, Criminology, Penology with and Training Order, http://www.yjb.gov.uk/en-
Victimology, page no 673,Central Law Publications, 17th gb/yjs/SentencesOrdersandAgreements/DTO
edition,2017. 46. Powers of Criminal Courts (Sentencing) Act 2000, c. 6, §
10. Section 2 (13) of the Juvenile Justice ( Care and 90.
Protection) Act, 2015 47. Practice Direction, Trial of Children and Young Persons
11. Section 47 of the Juvenile Justice ( Care and Protection) in the Crown Court, Feb. 2000, 3, available at
Act, 2015 http://www.hmcourts-service.gov.uk/cms/926.htm
12. Section 48 of the Juvenile Justice ( Care and Protection) 48. Children and Young Persons Act 1933, 23 & 24 Geo. 5,
Act, 2015 c. 12, § 44
13. AIR 2014 SC 2726 49. Powers of Criminal Court (Sentencing) Act 2000, c. 6 §§
14. 1997 i0 SCC 525 90- 91.
15. AIR 2005 SC 3549
16. AIR 1989
17. AIR 2000 SC 748
18. Pratap Sing Vs. State of Jharkhand, AIR 2005 SC 2731
19. (2009) 13 SCC 211.
20. proviso to Sec 9 of New Act
21. proviso to Sec 9 of New JJ Act
22. (2010) 5 SCC 344
23. AIR 2002 SC 748,
24. (2009) 7 SCC 559
25. Section 4 of Juvenile Justice( Care and Protection) Act,
2015.
26. Section 4(2) of Juvenile Justice( Care and Protection)
Act, 2015.
27. Section 5 of Juvenile Justice( Care and Protection) Act,
2015
28. Section 7(2) 0f the Juvenile Justice( Care and Protection)
Act, 2015
29. A person under fourteen years of age.
30. A person between the age group of fourteen and
seventeen year.
31. Section 77 of the Act.
32. Children and Young Persons Act 1933, 23 & 24 Geo. 5,
c. 12, § 60.
33. Legal concepts of childhood, (Julia Fionda, ed., 2001) 85
34. Children and Young Persons Act 1933, 23 & 24 Geo. 5,
c. 12, § 34
35. Police and Criminal Evidence Act 1984, c. 60, § 38(6)
36. Crime and Disorder Act 1998, c. 37, § 37
37. An overview of these steps is available online at Youth
Justice Board for England and Wales, Youth Justice
System, http://www.yjb.gov.uk/en-gb/yjs/TheSystem
38. Crime and Disorder Act 1998, c. 54, § 65.
39. Criminal Justice Act 1991, c. 53, § 68.
40. Andrew Bainham, children – the modern LAW 494 (2nd
ed. 1998).
41. Children and Young Persons Act 1933, 23 & 24 Geo. 5,
c. 12, § 39 and the Youth Justice and Criminal Evidence
Act 1999, c. 23, § 44.
42. Andrew Bainham, children – the modern LAW 494 (2nd
ed. 1998).
43. A brief overview of all methods – both sentence based
and pre-court methods are summarized online at Youth
Justice Board for England and Wales, Sentences, Orders
and Agreements, http://www.yjb.gov.uk/en-
gb/yjs/SentencesOrdersandAgreements
44. Powers of Criminal Courts (Sentencing) Act 2000, c. 6,
§§ 64-67
45. Youth Justice Board for England and Wales, Detention

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