The author of this article, Divya Gautam, brings out the tussle
between the reformative and retributive approach in the development of the
Juvenile Justice System of India.
Introduction
In
the exposed modern era of 21st century, where access to anything is just a
click away, in the time when youth is much aware of their rights and duties and
much sensitive to what is right and what is not, the fact that maturity does
not come with age cannot be neglected and especially in the time of uproar over
the acquittal of child delinquents in cases likes of Nirbhaya case, Shakti
mill gang rape case, Hatigaon Rape Case, and the Mercedes Hit and Run Case(2016),
where the offenders fell short just a year or six months or mere one month of
the legal major age and thus, airing the outcry that age cannot be the sole
criteria in deciding the treatment to be given to the child, rather, other
factors of more relevance should be taken care of.
Dilemmatic Situation in
seeking Justice
It
is never an easy task to assimilate in one, the two dissenting thoughts and
bring out the best in the interests of both child delinquents and society. And,
here the two thoughts being whether to treat a child delinquent as a minor
notwithstanding any other fact than ‘age’ or to treat as an adult keeping in
view the 'gravity' of the crime. Makers have to follow the ‘madhyam marg’
between the two opposite poles of justice-seeking principles, those being
retributive and reformative justice
principles.
Those
believing in the ‘Reformative Justice’ system promote reformation &
rehabilitation of the offender back into the mainstream, after completing the
required punishment. They believe in bringing an end to the crime, not the
criminal himself as they believe that retributive punishment either finishes
the person or makes him the ‘vessel of revenge’ which at any cost is ready to
seek himself the justice by committing more such crimes.
But,
those criticizing it say that once the mind sets-up it never changes unless
some harsh punishment is given.
Those
favouring ‘Retributive Justice’ promote the principle of ‘Lex
Talionis’ which propounds that punishment should fit the crime. It goes
well with ‘Thine eye shall not pity, but life shall go for life, tooth for
tooth, foot for foot and hand for hand’, undermining the other principle of
‘An eye for an eye will make the whole world blind’. This very principle
of satisfying the public indignation against the offender thrives the natural
human nature of the convict to seek revenge and thus, fails the intended
purpose of punishment and, rather, becomes the core reason of aggravation of
crimes further.
But
these questions always remain answered unsatisfactorily from one or the other
person’s perspective and partially seem like a grave miscarriage of justice in
serving the intended purpose. And, with every new amendment, the answers to
these are tried to be given.
HISTORY OF JUVENILE
JUSTICE SYSTEM.
Since
the 18th century, there has been a tussle between contradicting thoughts;
before this, adults and juveniles were treated in the same manner. But, this
concept was repudiated with the pronouncement of new thought by Pope Clement in
1704 which opined “The correction and instruction of profligate youth in
institutional treatment”. Consequently, in Britain, the Reformation Schools
Act was made. However, the term ‘Juvenile Justice’ was for the first
time used by the legislature of the state of Illinois, USA in 1899, and the
first Juvenile Court was set up in 1905 in England.
The
history of the Indian Juvenile Justice System begins with the advent of British
Colonial rule. The development goes the following way:
· 1850: The Apprentices Act: (first legislation that laid the foundation of Indian Juvenile
Justice System). Law that mandated vocational training of trade and commerce to
child convicts between the age of 10 and
18.
· 1897: Reformatory School Act: Courts could detain child delinquents in reformatory schools for
two to seven years but not after the age of 18 years.
· 1920: Madras Children Act: The Juvenile Court philosophy was for the first time introduced.
Followed by, Bengal Children Act, 1922 and the Bombay Children Act, 1924 and
many other children act.
· 1960: The Children Act: This act came against the backdrop of UNGA’s meeting in November
1959 and India being a party to the ‘Declaration of the Rights of the Child’
moved the proposal in Indian parliament for the first Central Legislation on
the subject. Also, this was the time of rapid urbanization in India and the
majority of crime being committed by children was theft. Until then only a few
states had laws specifically dealing with child delinquents, so the Government
of India enacted this act, though the act was applicable to union territories
but acted as a model for states to develop their own children’s laws. For the
first time, any Act prohibited detention, death penalty and imprisonment of
children in any circumstances and focussed on their rehabilitation and
reformation. However, it introduced the sex discriminatory definition of a
child that is Boy below the age of 18 years and Girl below 16 years of age.
· 1986: Juvenile Justice Act: This act had emerged as a result of the assimilation of developing
International as well as National thoughts taking it from UN Standard
Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) in
1985 to the case in 1986 of Sheela Barse vs Union of India,
wherein the Supreme Court of India ordered for systemic juvenile laws in India.
Therefore, in the same year, the Juvenile Justice Act was passed for the whole
country except Jammu and Kashmir.
· 2000: Juvenile Justice(Care and Protection) Act: Ratification to the UN Convention on the
Rights of the Child, 1989, by India in 1992 triggered a new law that
focuses more on rehabilitation and avoids adversarial procedures. This act did
away with sex discrimination and determined the common adult age to be 18 years
and also replaced the archaic terms such as ‘Delinquent Juvenile’ and ‘Neglected
Juvenile’ to ‘Juvenile in conflict with the Law’ and ‘Child in
Need of Care and Protection’ respectively. Also, it constituted child welfare
committees and Juvenile Justice Boards.
Juvenile Justice(Care
and Protection of Children) Act,2015
This act came with the advent of realization among
the people that juvenility can no further be determined on the basis of age and
their heightening outcry for justice to the victim, and especially against the backdrop of Nirbhaya Case, 2012. The new act introduces:
1.
Children’s Court, the Right of Child to be heard, mandates all
districts to have juvenile justice boards in every district, Classification in
Heinous, serious and petty offenses and Enhancement of punishment for juveniles
and a lot more.
2.
Section 2(12):
States ‘Child’ as the person who has not completed the age of 18 years. And,
replaces the term ‘Juvenile’ of the JJ Act,2000.
3.
Section 15: It
specifies the newly added classification of children between the age of 16 and
18 (only for committing heinous offenses). Based on the mental and the physical condition of the child, the juvenile justice board decides whether to
send the trial case to the children’s court or not. That is whether s(he) can
be tried under IPC as an adult and not under the Juvenile Act.
Amid
criticism, as being against the rights of minors, the provision is neglected,
where child delinquents are to be kept in 'separate or safety house'
till the age of 21 years, only after which they would be sent to jail for the
remaining term and thus, protecting them from exploitation in their tender age
from adult criminals in jail.
Condemnation and Rebuttal.
This
Law appears:
·
As being violative of Article 14 of the Indian Constitution, as it
differentiates among children below 18 years. But up to my understanding
Article 14 works on the principle of ‘Intelligible Differentia’ and
here, the discrimination did contain its logic to be backed up by. And, the
logic being the protection of child offenders of petty crimes from those of
heinous crimes.
·
As being Regressive, since it has moved from the Reformative
justice principle to Retributive justice. The retributive system is considered
to be primitive and inhumane. But, there is no such data proving a decrease in
crime rates with the growth of reformatory systems, rather, it paved for more
crimes as children didn’t fear punishment.
·
As being violative of International obligations. But refuting this
thought, the arguments raised in favour are:
Also,
as laid down in Vishaka
v. State of Rajasthan, Treaties and obligations are enforceable in Indian courts, when
any Act has been laid down by the parliament in that regard.
Also,
Rule 17.2 of Beijing Rules and Article 37(3) of Convention on the Rights of the
Child states that a child below 18 years can’t be given Death Sentence and life
penalty, but does not prohibit less severe penalties than death penalty and
life imprisonment. Thereby, justifying the newly amended act. The Act, in
my view, will prove to be more deterrent than aggravating, despite, it has
moved away from the reformative principles (for 16-18yrs, in heinous crimes).
CONCLUSION
Learning
from mistakes and improving is the only key to growth. As well quoted by Henry
David ‘Any fool can make a rule, and any fool will mind it.’ And
thereby, validating the fact that law can never be flawless, all that it
requires is to meet the ‘just’ demands of the time and satisfy the interest of
the society and at the same time be proportional to the offence done by the
offender.
References
Divya Gautam
B.A. LL.B. (Hons.)
Batch 2024
Banaras Hindu University, Varanasi
Email Id- dixitdivya30@yahoo.com
Commendable work divya. Interpreted in a spanking way.
ReplyDeleteThanks...😊 your appreciation will help me do better...
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