Guidelines For Socio-Legal Research Pape
Guidelines For Socio-Legal Research Pape
Guidelines For Socio-Legal Research Pape
Socio-Legal Research
(Paper - III)
Topic:-THE INADEQUACIES OF
IMPLEMENTING JUVENILE
JUSTICE ACT: A SocioLegal Perspective
BY:-
Sanjit Kumar Naskar
B.A.LL.B. 5 Years Xth Sem
G.H. Raisoni Law School.
Date: / / 2014
CERTIFICATE
This is to certify that Mr. Sanjit Kumar Naskar has attended and completed his
Socio-Legal Research work as required in partial fulfilment of B.A.LL.B. 5
Years Xth Semester (New) course during academic session 2014 under my
supervision and guidance.
ACKNOWLEDGEMENT
2
LIST OF CASE LAWS
3
LIST OF CASE STUDIES
CCA - Cent
4
LIST OF TABLES
CCA - Cent
5
LIST OF MAPS
CCA - Cent
6
ABBREVIATIONS
CONTENTS
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CHAPTER IV Major Findings, Conclusions and
Suggestion
BIBLIOGRAPHY
ANNEXURES
CHAPTER I
THEORETICAL BACKGROUND
The concept of juvenile justice in India is very old in origin. The Children’s
actions, both criminal and non criminal, were governed by the existing Hindu
and Muslim laws.
Similarly; under the Muslim law, a young boy was not punished for having sex
with consenting adult woman.
[1773 -1850] :
8
During the Colonial Regime, the first centre for destitute children called
“Ragged School,” was established in 1843 by Lord Cornwallis. The
Ragged Schools were charitable schools, dedicated to providing free
education of destitute children.
I. Apprentice Act (1850), which dealt with young people between the ages
of 10 and 18; who were either destitute or petty offenders.
The children who were convicted, were made to serve out their sentences
as apprentices for businessmen.
This Act allowed for separate trials of persons younger than the age of 15
as well as their confinement in reformatories rather than prisons.
[1919–1950] :
The Madras Children Act (1920) made provision for the custody, trial,
and punishment of juvenile offenders and provided for the protection of
children and young persons.
[Post 1950] :
The Parliament had passed a Central Children’s Act (CCA) in 1960. The
CCA provided for the care, protection, and treatment of juveniles. The
states with existing laws were free to enforce their own laws.
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CHAPTER II
RESEARCH METHODOLOGY
The researcher has conducted this socio-legal research study with the help of
Empirical or Non–Doctrinal Research Design.
This Research Design is used in order to find out the impact of the inadequacies
in implementing the Juvenile Justice Act and the effect of Judicial decisions on
the people and the society at large.
I. The Juvenile Justice Act does not have specific provisions for
juveniles relating to education, health, legal and social. In the absence of
any adequate system of identification of juvenile in need of care and
protection, the scope and implementation of this law becomes
restricted.
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II. This Act failed to provide for procedural guarantees like right to counsel
and right to speedy trial.
III. The resources and infrastructure required for the
effective implementation of this law is hardly proportionate to the
population and geographical regions covered under it.
IV. Children caught in the system are often helpless with little redressal.
The children who are being kept in Observation Homes or Special Homes are
effected by the problems like sexual abuse, drug abuse etc.
V. The lack of institutional infrastructure and trained manpower in the states
has defeated the whole objective of this legislation. The requirement of
constitution of Child Welfare Committees and Juvenile Justice board is
largely remain unfulfilled resulting in the delay of disposal of cases.
VI. There is no index of performance measurement of the institutions in the
area of juvenile justice. Therefore, there is no way of knowing the quality
of performance of these institutions of juvenile justice.
VII. There are number of incidences violating the procedure of handling of
juveniles by the police. It is due to their insufficient training in handling
of Juveniles in conflict with law.
VIII. The basic idea of juvenile justice was to reintegrate the child into family
and society. This needs a proper network of rehabilitation and after care
services. Unfortunately, this arrangement is almost nonexisting in
Juvenile Justice System.
Structural and Procedural Gaps within the Juvenile Justice System (JJS),
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Despite the changes brought about the JJ (C&P) there are certain specific
principles as envisaged under the (CRC) and the Constitution of India
These include:
1. Firstly and most importantly, the JJ (C&P) has over looked certain
crucial legal issues that have been raised for interpretation time and again
before the Supreme Court and the High Courts. These questions were not
clarified by the preceding JJA and the same has not been done in the
current Act and can be enunciated as follows-
• The relevant date for the application of the Act. The Act in no way has
categorically mentioned whether the act is to apply to a juvenile from the
day of the commission of the alleged offence or from the date the juvenile
is produced before the magistrate. • Whose responsibility is it to prove
that the accused is a child? • The relationship between JJ(C&P) and other
legislations containing an overriding clause. By doing so, the JJ(C&P)
had created lacunae where such important issues are left to the vagaries of
judicial interpretation, which in a country like India can prove to be very
detrimental in the long run as the free rein of judicial interpretation can in
most cases lead to rights being flouted rather than being upheld. Further
the JJ(C&P) has potential for severe penalization of children. The
exclusion of imprisonment from section 16(1) is most subtle and has been
attained ironically by the addition of the word ‘life’. It is important to
note that there was no policy change proposed in the Parliament at the
time of the passing of the Bill, but yet by introducing the word life before
imprisonment it has made possible through judicial construction of the
same to impose imprisonment on children. This change has so far gone
unnoticed and could be a result of an over zealous drafting procedure
aimed at excluding all punishments for children. The failure to exclude
imprisonment with the exception of life imprisonment from this section is
in complete contradiction with the rest of the legislation and the
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commitment India has made by signing various international instruments.
Judges and others, like the judge who imposed life imprisonment
Chanchu despite the ban under the JJA, will pounce on this change and
gleefully send children committing serious offences to prison. This is
contrary to the commitment of providing for proper care, protection, and
treatment by catering to the children’s developmental needs and adopting
a child friendly approach in the adjudication and disposition of matters in
the best interest of children. 2. The police remain the primary agency for
bringing children specially those in conflict with the law within the
purview of the act. The provision enabling constitution of the board and
the committee for a group of districts coupled with the various omissions
such as production of children before a magistrate within 24 hours,
prohibition against keeping them in police stations and presence of a
lawyer leave the children under complete control of police. There is no
obligation per se to produce a child before the board or the committee.
The problem is further compounded as the act provides that children not
released on bail by the police officer maybe kept only in an observation
home. An observation home, too, maybe established for a district or a
group of districts. It can be pointed out that in the state
ofMaharashtra (Marathwada Region) there is only one observation home
for girls. What this entails is that more children (girls in this particular
case) will remain in police stations or be sent to an observation home
which in most likelihood will be far away from their place of residence.
3. The JJ (C&P) fails to provide for procedural guarantees like rights to
counsel and speedy trial. 4. Surprisingly there is no linkage between the
JJ (C&P) and the other related legal provisions for children, such as child
labour, primary education, sexual abuse, disabilities and health. 5. Section
16 of the JJ (C&P) provides for segregation of a juvenile who has
attained the age of 16 years and has committed a serious crime from other
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juveniles within the same observation home. This provision in all aspects
not only defeats the best interest principle but is also a violation of the
right to development of the child. 6. Punishment for cruelty towards a
juvenile or child or exploitation of juvenile employed as provided in
Sections 23-26 is imprisonment for a term up to 6 months or fine or both.
This being a serious offence, the punishment as prescribed under this
section should be enhanced and a provision for compensation of the
victim should be provided. 7. Section 8 of the JJ (C&P) provides for a
time limit within which the preliminary inquiries are completed (four
months). However in reality and as observed by a large number of NGO’s
this is rarely done which entails that a large number of children remain in
observation homes for a period amounting to more than 4 months. 8. The
Observation homes set up under this JJ (C&P) are temporary reception
centres for children awaiting inquiry, bail or trial, thus no provisions for
education are provided. This being the case a large number of children
who are confined for long periods are denied their inherent constitutional
right to education. 9. Finally many states have still not complied with the
provisions of the 2000 JJ (C&P), One of the many examples in this regard
is the case where a Juvenile Justice Board in the state of Punjab was only
set up on the 15th of September 2006, i.e. 6 years after the JJ (C&P) came
into force .
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Misconception# 1: Juvenile crime rate is very high and our society is at
risk. Juvenile crime constitutes a miniscule fraction of the total crimes
being committed in India. As per the National Crime Records Bureau’s
annual reports on Crime in India, the percentage of crimes under Indian
Penal Code (IPC) reportedly committed by juveniles to total IPC crimes
reported in the country has ranged from 1.0% to 1.2% in the last three
years. Approximately 65% of juveniles were apprehended for property-
related offences such as theft and burglary. As opposed to this, only 5%-
8% were apprehended for crimes such as rape and murder. While media
reportage of juvenile crime has increased in the recent past, evidence on
the ground does not support the view that juvenile crime has assumed
massive proportions in India. The fear that Indian society is “under
threat” from its children is grossly exaggerated.
Misconception#2: Juveniles who commit “adult crimes” are fit to be
tried as adults. Numerous studies in developmental psychology have
found that, contrary to perceptions of early maturation, adolescence is a
period of tremendous physiological, hormonal, emotional as well as
structural changes in the human brain and therefore it is a time of great
vulnerability. Biologically, humans are making a transition into
adulthood through these changes.. With the advent of brain-imaging
technology, researchers from the University of Alberta have now found
that structural changes continue well into the early 20s. Jay Giedd of the
U.S. National Institute of Mental Health who has studied the
development of the adolescent brain for over two decades, even pegs it at
25 years.
The act of engaging in “adult” crimes such as murder and rape does not
imply maturity. On the contrary, it is direct evidence of vulnerability of
juveniles to reckless behaviour. Research indicates that the likelihood of
adolescents committing crimes in groups is higher than that of adults.
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Studies by psychologists and neuroscientists show that adolescents are
more prone to peer pressure, negative influence, are less likely to focus
on future outcomes, are less risk-averse than adults, and evaluate risks
and benefits differently.
According to the American Psychological Association, American
Psychiatric Association, and the American National Association of Social
Workers, older adolescents “lack the adult capacities to exercise self-
restraint, to weigh risk and reward appropriately, and to envision the
future that are just as critical to mature judgment, especially in
emotionally charged settings”. Further, the brain system develops at
different times throughout adolescence. Psychologists have found that the
vulnerability to indulge in risky or reckless behaviour is greater in middle
adolescence (14-17 years). This is borne out by the Crime in India data
over five years, which reveals that majority of juveniles apprehended fall
in the age group of 16-18 years. This is a time when they need the most
support and attention in order to enable them to complete their passage
into adulthood in a responsible and safe manner.
Misconception# 3: Treating juveniles who commit serious crimes as
adults will serve as a deterrent against juvenile crime and therefore
promote public safety. There is no evidence available to support the claim
that subjecting juveniles who commit serious crimes as adults will deter
crime. There is however, a lot of evidence that the exact opposite is true.
In comparative studies by Jeffrey Fagan, Associate Professor, School of
Criminal Justice, Rutgers, involving adolescents before the adult criminal
court in New York and those before the juvenile court, what emerged was
“that the New York kids treated as adult criminals were rearrested faster,
more often, and for more serious crimes, and more often were returned to
prison.”
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Banishing juveniles to adult prisons will expose them to hardened
criminals who will feed on their vulnerability and initiate them into
serious crime. This will put society at a higher risk and increase the
supply to organized crime. Instead, according to Arlene Manoharan, the
head of a multi-disciplinary team which works with juveniles and their
families at the Centre for Child and the Law, National Law School,
Bangalore, “the wider community can play a crucial role to ensure that
quality reformatory/rehabilitation services are made available to this
group of adolescents, many of who ache to get the help they need to get
out of the vicious cycle of violent crime and start life afresh.” Evidence
on the ground supports the science-based assertion that a caring
environment can undo the damage done by a lack of it in the past. In
Bangalore, the ECHO Center for Juvenile Justice has imparted training to
135 juveniles since 2002 to enable them to serve as Traffic Police
Assistants, transforming them from “law breakers” to “law enforcers”
thus demonstrating the power of a reform-oriented approach.
Misconception# 4: Heinous crimes are different and juveniles involved
in it are truly sadistic. They are an exception and must be treated
differently. Due to the sensational nature of heinous crimes, it is easy to
believe that those involved in them are just born evil. Besides, the same
apparatus that helps each one of us to accept more responsibility and
mature when guided to do so by the adults around us, goes dangerously
against us when the adults exhort us in a different direction. Nowhere has
this been more apparent than in Africa, where children have been
recruited as soldiers in many conflicts, particularly in the Democratic
Republic of Congo and Sierra Leone.
They have engaged in what we would consider heinous crimes. World-
over, children from impoverished backgrounds fall prey to gangs that
initiate them into violence. John Hubner, author of “Last Chance in
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Texas,” spent nine months at a Texas State School listening to young
violent offenders tell their life and crime stories. He notes, “A common
theme for gang kids was their initiation, which in most gangs, is a drive
by. One girl told how her gang-affiliated brother helped her hold the
pistol because she was 7 years old. Another boy met a Latin Kings gang
leader when he was a pre-teen. When he did his drive-by (shooting), the
gang leader helped him hold the pistol, too, because he was just a little
guy. So yes, it happens all the time because violence is a rite of passage
in gang culture.”
Rites of passage are as old as the emergence of tribes, and are seen in all
walks of life, such as ragging in India. Adults today might remember the
humiliation they experienced and the humiliation they may have heaped
on their juniors during ragging experiences, which take place in even
prestigious academic institutions, a tradition that has helped keep this rite
of passage alive in spite of the best efforts of society. Some ragging
experiences do turn heinous, and an honest reflection might reveal that
there isn’t much other than good luck that has protected some of us from
crossing the line to harm others irreparably.
Instead of condemning juveniles, Geeta Sajjanashetty, a Bangalore-based
advocate believes that “Just as a juvenile can be influenced to commit
crime, given the opportunity, care and protection, he can also be
transformed into a law abiding citizen.” Acclaimed novelist C.S. Lewis
once said, “When I was ten, I read fairy tales in secret and would have
been ashamed if I had been found doing so. Now that I am fifty, I read
them openly. When I became a man I put away childish things, including
the fear of childishness and the desire to be very grown up.” Indeed, our
children exhibit the zeal to be all grown up but what it means to be
grown-up is largely influenced by the grown-ups around them. There is
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perhaps little as heartbreaking as adults taking advantage of a child’s
innate desire to “grow up” and egg them on to harm others grievously.
Juvenile justice has been given some shape with Juvenile Justice (Care and
Protection Of Children) Act 2000. Persons dealing with children need to
sensitize themselves with this Act. One needs to know the provisions made, to
understand whether it is being properly implemented.
Only on observing it being implemented, can one get insight into the problems
inherent in it, and if one knows the problems, one can suggest improvements in
the Act.
Even if the law gives adequate guidelines, institutions are still needed to look
after the children in distress or children in conflict with law.
4] REVIEW OF LITERATURE:
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has given some fresh thinking on juvenile courts. Shukla K. S. (1981) has
thrown the light on role of the police in juvenile justice, while Sikka K. D.
(1980) has seriously suggested to reexamined the juvenile justice system.
5] RESEARCH DESIGN:
A} Nature/Type of Study
B} Universe
Population
Sampling Method
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6] CHAPTERISATION:
The entire study is organised into seven chapters. The first chapter
"Introduction", includes the concept of juvenile delinquency, review of
previous work done, choice of topic and region, objectives, hypothesis,
data sources and entire methodology of the study. Chapter two "Juvenile
delinquency in India" includes nature, characteristics, social factors in
general in India. Juvenile delinquency as observed in different states of
India is also studied. The status and position of Maharashtra in the context
of India is comparatively studied and analysed in detail. Out of the next
two core chapters, the chapter three entitled "Juvenile delinquency in
Maharashtra (Part-I)", deals with spatial patterning on the basis of
percentages, rates, age and sex variation and correlation criterian police
rural range and City Commissioner range wise. Chapter IV entitled "Juvenile
delinquency in Maharashtra (Part-II)", deals with the spatio temporal
variations offence wise with choropleth technique, ranking of offences,
forecating the trend of juvenile delinquency offence wise and the future of
juvenile delinquecy system on the basis of trend line analysis. Chapter five
"Trends of juvenile delinquency in Kolhapur" deals with study of juvenile
delinquents arrested in Kolhapur district. The later part of this chapter, gives
the analysis of case studies. Chapter six entitled "Legal controls and judicial
responses" gives the account of Juvenile Justice System functioning in India
and in Maharashtra in particular. The decision given by High courts and
Apex court of India are also discussed. The last chapter i.e. chapter seven
includes conclusion and suggestions of the research work.
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7] OBJECTIVES OF THE STUDY:
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8] HYPOTHESIS:
The wide gap exists between the theory and practice of juvenile justice
in Maharashtra. The ground realitions regarding juvenile justice are much
at variance with the idealism projected through the legislation. There is a
heavy workload all round in courts, police and probation services.
Due to the heavy load, the functioning of the whole system expected
by the legislation is not effectively working. The wide gap be minimised.
The idealism projected through the legislation be perfectly reflected and be
inconsistent with the day to day working of all the services.
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2) Child labour is prevalent predominantly among under-privileged, backward
communities of the society.
4) Administrative apathy is one of the factors responsible for the failure of laws
in effectively controlling child labour.
5) NGOs play a vital role in the eradication of the practice of Child labour.
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This research is used to answer my question: Does the change in family
structure have an effect on juvenile delinquency? My dependent variable is
juvenile delinquency, and my independent variable is change in family
structure. I propose that changes in the family structure like divorce, increase in
female-headed households, and working mothers increase juvenile delinquency.
I collected data from 1980 to 2006 from several existing services with ―year‖
as the unit of analysis. I constructed a data set consisting of the following
variables: juvenile violent crime rates, divorce rates, rate of working mothers
with children under age 18, percent female-headed households, percent of
population aged 15-25, unemployment rate, incarceration rates, drug rates, rates
of gun ownership, police employment, percent of those with weekly religious
service attendance, percent of persons who have a ―great deal‖ of confidence in
the Executive branch of the United States, and percent of people who say they
can trust others. The data represents the 27
28
entire U.S. and will accurately illustrate the link between family structure and
delinquency eliminating most threats to external validity. My dependent
variable in this study is juvenile delinquency rates. Juvenile delinquency is the
amount of criminal or deviant behavior engaged in by an individual under age
18. Specifically, in this paper, the type of delinquency I include in my analysis
is juvenile violent crime. Therefore, juvenile delinquency is measured by the
juvenile violent crime index that includes offenses such as murder and non-
negligent manslaughter, forcible rape, robbery, and aggravated assault. The
juvenile violent crime index is the rate of juvenile arrests per 100,000
population between persons age 10 and 17. The juvenile violent crime data are
from the National Center for Juvenile Justice from the Office of Juvenile Justice
and Delinquency Prevention website (http://www.ojjdp.ncjrs.gov/).
My independent variable, change in family structure, is the extent to which the
structure of families in the U.S. depart from the traditional nuclear family of
father, mother and children. To measure change in the family structure, I
include three variables: divorce, female-headed households, and mothers in the
workforce. I explored if these factors co-varied sufficiently to allow combining
them into a composite measure, but they did not. Therefore, they are analyzed
separately. Divorce rates from the years 1980 to 2006 are gathered from the
U.S. Census Bureau in ―Statistical Abstract of the United States: 2009.‖
Divorces are measured by rate per 1,000 population. To measure percent of
female-headed households, I use the U.S. Census Bureau‘s Current Population
Survey data which includes family households where females are the head of
the household. The percent of female-headed households was obtained by
dividing the number of female households by total number of households. To
measure percent of families with 28
29
working mothers, data was taken from the U.S. Department of Labor Statistics.
This variable is measured by percentage of women with own children under age
18 who are employed.
A. Control Variables
31
the total number of state and local sworn police full-time equivalent
employment. Police employment is measured in raw numbers of police
employed each year. For the missing data in years 1996 and 2001, I extrapolate
the data for 1996 police employment using this formula: (Data for 1997-Data
for 1995)/2 + Data for 1995 = Data for 1996. The General Social Survey is
conducted by face-to-face interviews each year starting in 1972 (excluding
years where funding was limited). Whenever face-to-face interviews could not
be conducted, alternative methods were used such as telephone interviews and
computer-assisted personal interviewing. For gun ownership, the data were
collected from the General Social Survey (GSS) Online
(http://www.norc.org/GSS+Website/). The variable I use from the GSS is
―have gun in home.‖ Gun ownership is defined as the percentage of persons
that responded ―yes‖ to having a gun in their home. For the missing data in
years 1981, 1983, 1986, 1992, 1995, 1997, 1999, 2001, 2003 and 2005, I
extrapolate the data using the same formula as for the police employment
missing data. For drug rates, I use data from Monitoring the Future Survey.
Drug rates are measured as the percentage of 12th graders who have used drugs
in the last 12 months. These rates included all illicit drugs. For incarceration
rates, I use data from the U.S. Census Bureau‘s Bureau of Justice Statistics.
Incarceration rates are defined as adults in prison and represent the total number
of adults in prison in the United States. The data for years 1980-2003 were
collected from Sourcebook of Criminal Justice Statistics, 2003. The data for
years 2004-2006 were collected from Statistical Abstract of the United States
(2010).
To measure changes in the economy, I use unemployment data from the U.S.
Department of Labor‘s Bureau of Labor Statistics. The unemployment rate is
the number of persons 30
32
unemployed per 1,000 population. The rates were presented monthly for every
year between 1980 and 2006. To get the annual unemployment rate for each
year, I added all monthly rates together for each year and divided by 12.
Religion, political system, and community data were collected from the General
Social Survey (GSS). I measured religion by the variable ―how often r attends
religious services‖ in the GSS. The data represents those who attend religious
services every week. For the missing data for years 1981, 1992, 1995, 1997,
1999, 2001, 2003 and 2005, I extrapolate the data as I did before with police
employment and gun ownership. The political system variable, which refers to
the political legitimacy of the government, is defined as the amount of
confidence a person has in the Executive Branch of the U.S. government. This
variable, reported in the GSS, is the percentage of those who responded that
they had a ―great deal of confidence‖ in the government. For the missing years
1981, 1985, 1992, 1995, 1997, 1999, 2001, 2003 and 2005, I extrapolate the
data using the same equation as for missing data in Religion. Lastly, the
community variable refers to the collective efficacy in a community.
Community is specifically defined as the amount of social trust that a person
feels toward others. The GSS asks respondents, ―can people be trusted.‖ I
measure collective efficacy by the percentage of people who responded they can
trust people. For the missing data years 1981, 1982, 1985, 1992, 1995, 1997,
1999, 2001, 2003 and 2005, I extrapolate the data using the same equation as
previous missing data.
Using this data set, I conducted a time series analysis to examine the changes
from 1980-2006. My variables are continuous and are measured at the ratio
level. Time series uses multiple regression techniques with ―year‖ as the case
to show relationships between variables. This technique allowed me to separate
the effects on the dependent variable so it is possible to 31
33
examine each variable‘s effect on juvenile delinquency (Allison, 1999). To do
this, I uploaded my data set to SPSS. Many of the control variables discussed by
Conklin are not included in the analysis. Multicollinearity is often a problem
when analyzing aggregated data using regression-based techniques (see, for
example, Land, McCall and Cohen 1990). To render this, I checked for
problems of multicollinearity in the models, and eliminated any variables that
did not significantly contribute to the model or show problems with
multicollinearity. I began by investigating the bivariate correlations between all
of my control variables and my dependent variable. I also investigated the
partial correlations among my control variables, my independent variables, and
my dependent variable.
When addressing reliability in this study, the variables that are included in this
study are common variables used on family and delinquency research. The
conceptualization of these variables have been based on data from reliable
sources such as the U.S. Census Bureau and the General Social Survey. The
GSS questionnaire has been given nationally and consistently since 1972. In
addition, many of my variables contain multiple indicators. My independent
variable has three indicators: divorce, female-headed households, and working
mothers. This allowed me to measure this variable from a wider range of
content within my definition of ―family structure.‖ When addressing validity,
according to my conceptual definitions for my variables, the measures are
appropriate and fitting. My definition of my independent variable, change in the
family structure, is defined as the extent to which the structure of families in the
U.S. depart from the traditional nuclear family of father, mother and children
(see above). My measures for ―change in the family structure‖ like divorce,
female-headed households and working mothers all demonstrate a deviation
from this traditional image. My dependent variable, juvenile 32
34
delinquency, is measured by the juvenile violent crime index. Violent crime is a
type of juvenile delinquency, and measuring this confirms its concurrent
validity due to data collected nationally on arrest rates for violent crime each
year.
35
that a high degree of consistency exists between drug use reported in interviews
and the detection of drug use in urinalysis (Milner et al. 2004), and that
detainees with higher socio-economic status were most likely to underreport
drug use (McGregor & Makkai 2003). However, findings are more erratic in
regards to juveniles. Comparing self-reported substance use with urinalysis in
Canadian adolescents, Williams and Nowatzki (2005) found that a quarter of
juveniles underreported substance abuse. Strangely, one third overreported –
that is, they self-report using substances but their urinalysis was negative.
Williams and Nowatzki (2005: 299) concluded that self-reported substance use
amongst juvenile samples appears to have only ‘fair validity’.
These findings suggest that the potential limitations of sel-report studies listed
in the adult DUCO reports (Makkai & Payne 2003; Johnson 2004) may be of
greater importance to the present study. The potential limitations referred to in
the adult DUCO studies related to accuracy of memory recall, willingness to
report sensitive or private experiences, and anticipated benefits of participation
in terms of early release or other privilages.
There are other issues that need to be recognised that are germane in the
juvenile setting. Commentators have pointed to the deficiencies that young
people in the justice system may have with oral communication, such as
formulating a ‘coherent account of events’ relating to their own offending
(Snow & Powell 2004: 224). A related issue is the temptation to exaggerate
substance use or criminal behaviour, apparently to impress or to shock
interviewers, or perhaps with the general hope of standing out as special.
Interviewers in DUCO noted that youths occasionally stressed their own
excesses with pride (see further Ogilvie & Lynch 2001). Finally, it is true that
juveniles have the benefit of recalling events that have generally occurred
recently compared with the events recalled by adult offenders. On the other
hand, commentators have underscored some of the difficulties caused by
immature cognitive, moral and social development when young people analyse
36
their own criminal behaviour (Prichard & Burton-Smith 2004). This may mean
juveniles’ constructs of, for example, assault may not be in accordance with
legal definitions of that crime, causing over-estimation in some cases and under-
estimation in others.
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12] POSSIBLE CONTRIBUTION OF THE STUDY:
CHAPTER III
ANALYSIS AND INTERPRETATION OF DATA
38
CHAPTER IV
MAJOR FINDINGS, CONCLUSIONS AND SUGGESTION
Uniformity on the national level with regard to different treatment and other
procedures relating to juvenile is still lacking. Prescribed institutions for
custody and adjudication, trial and treatment of juveniles prescribed under the
acts have not yet been properly created which is a major set back to successful
implementation of Juvenile Justice Act, 2000. Lack of training in handling the
force relating to the children on the part of the officials is also a decisive factor
in non-implementation of the Act to full swing. Lack of coordination amongst
various institutions involved in the process is also considered as failure to
implement the Act apart from financial crunch in the institutions which is a
discouraging factor in implementation of the beneficial legislation.
The Act has not prescribed minimum age below which the Act would not be
applicable. The Act fails to expressly lay down the age of innocence. The
definition of juvenile delinquency provides almost no scope for any acts to be
dealt within the community.
3. The Act has failed to provide for procedural guarantees like right to speedy
trial. Though the Act provides for time frame for conclusion of the trial but it is
observed that a number of a cases are still pending in the courts for years.
6. No obligation has been cast on the part of the state in the Act on account of
which a right based perspective is missing in the Act. So whatever in the name
of protection is given to the child is not seen as a right but a charity or welfare.
There is no specific provision ensuring services for children relating to
education, health, legal and social. Even identification of the 'juvenile in need of
care and protection' is not done for want of proper mechanism.
7. Keeping the high level of sensitivity of the issue and alarming rate of
increasing number of juveniles a regular coordination amongst various
40
government agencies working in the area is needed. But this coordination is
missing and the Juvenile Justice Act, 2000 does not have any provision to
ensure the continuous supervision, monitoring and evaluation of the functioning
of juvenile justice system as a whole.
8. The coverage of the Act is quite limited and a large number is still away from
its purview. The children affected by drug abuse, HIV/AIDS, militancy, disaster
etc. do not have any redressal under the Act and the issues like marriage, female
foeticide, working children, street children is also not covered under it.
10. The police which has a direct and immediate contact with the juvenile
delinquents more than often violates the procedure for handling the juvenile and
police indifference in implementing the law is most disappointing. There are
instances to record a wrong age in the police record to avoid their fatigue in
taking the juvenile delinquent before the Juvenile Justice Board. The
arrangement for reintegrating the child into family and society for its proper
rehabilitation and after care service is almost non-existent.
11. The Supreme Court is of the view that whenever any law is enacted by the
government it should be ensured beforehand that the states are ready with the
infrastructure to implement it otherwise besides blunting the objective of law
this puts the whole machinery into unnecessary pressure and frustration. Our
zeal to bring the law is more pronounced than evolving the ways and means to
41
enact the same. The need to make a proper study and feasibility is imperative.
At times the goals of such laws are too ambitious and they do not relate well to
the ground level situation.
12. The problem of special care and needs of the disabled children have been
ignored by the Act. The standards of quality care have also not been laid.
13. The expansion of definition of 'child in need of care and protection' could
lead to undue influence in the lives of poor children and the families by the
system.
On the Basis of the Critical Study the Following Suggestions are Given:
A. Juvenile Justice Board
1. As referred in section 4 of the Act, a special training programme must be
prepared and the officers of the Board including the Principal Magistrate should
be given training of child psychology and child welfare.
2. Ambience of the place where the Board holds enquiry should be child
friendly. Wearing of black coats, using raised platforms or dias etc should be
avoided. Practice of making the juvenile stand in front of the Board should be
stopped. The child must be made comfortable and feel free from fear of any
person. Sittings can be held by the Board in the observation homes.
3. Basic infrastructure like computer, typewriter, stenographer, furniture and
buildings should also be provided to the Board for smooth discharge of duties.
4. There should be a proper maintenance of files and case records.
5. Video linking of the homes should be provided for children to facilitate
inspection and supervision by the Board to keep a check on anything done
against the best interest of the child.
6. At least one of the two social workers in a Board should be a person with a
minimum qualification of law degree.
42
7. The Board should be provided with a list of experts in the field of
psychology, counseling, clinical psychiatrist, NGOs, panelists of advocates and
fit institutions and fit persons, observation homes, special homes and voluntary
organizations who are dedicated to the field of child welfare. The services of
such persons may be utilized. The officers manning the juvenile courts/Boards
need to be sensitized to the development need of the juvenile in which case,
flexible enough to respond to new discoveries in social sciences research and
willing to invest in the experiment with promising new interventions for
offenders.
8. For giving good services to the juvenile and the parents of the child, they
should be treated psychologically in consultation with a psychiatric. For the
same, a psychologist and one social worker, who has awareness of the relevant
law, must be appointed in the Juvenile Justice Board.
9. Co-operation of NGOs and other social organizations may also be sought for
by the J J Board in addition to special juvenile police unit and probation officer.
Probation officer should be given the sufficient training that how they have to
prepare the social investigation report which will help the JJB. Lady probation
officer be appointed instead of government probation officer for the preparation
of social investigation report.
10. One government welfare official should be appointed by the government to
work as a liaison officer between the NGO and Juvenile Justice Board child
welfare committee. In this regard, the State Government Welfare Department
may organize seminar, sensitization and orientation programme inviting all the
probable officials, police personal who are responsible for better delivery of
justice to the children
B. Treatment of Juvenile
1. Juvenile should be brought before J J B within 24 hours.
43
2. The age of the juvenile should be determined with reference to the date of
commission of the offence. A detailed scientific investigation for determination
of the age is not required.
3. The Board should ensure that privacy rights of the juvenile are not violated
and section 21 of J J Act is strictly complied in letter and spirit.
4. The juvenile has the same Constitutional safeguards like other adult
offenders. The statement of the juvenile under section 313 Cr PC should be
recorded and if he/she wants to adduce evidence then that should also be
allowed.
5. In no case the juvenile shall be sentenced to death or committed to prison in
default of payment of fine or default of furnishing security.
6. Whenever a juvenile is produced before a magistrate not empowered to
exercise the powers of the board under the J. J. Act such magistrate should
without any delay record such opinion as regards the juvenile and forward the
records and the juvenile to the Board and the board shall hold the enquiry as if
the juvenile had originally been brought before it.
7. Judges in the juvenile courts should be trained to recognize the educational,
social and treatment needs of the children in crisis.
8. Mere implementing the laws without there being proper infrastructure or its
proper implementation remains incomplete. This part should also be
simultaneously dealt with by all concerned government or non-governmental
agencies.
9. There is religion based adoption system in India. It needs to be under uniform
law not based on religion and a comprehensive inter-country adoption law is
also required.
10. For proper implementation and giving relief to the juveniles determination
of age is a relevant factor. In India because of many reasons many children do
not have birth certificates so even in absence of age proof the beneficial
provision of the Act should be made applicable to the child in appropriate cases.
44
C. Procedure for Inquiry
l. Principal Magistrate should not be entrusted with any other work of the
criminal court except the JJB as the Board is required to complete the enquiry
within 4 months.
2. Due to the variations in state rules from state to state, there is an ambiguity
regarding proper implementation of provisions of the Act. Therefore, common
rules should be followed throughout India in all JJ Boards.
3. Stay in special home or observation home to be ordered only in exceptional
cases and for strong reasons which are to be recorded.
4. The board should conduct independent and private inquiries with the juvenile
to ascertain whether he/she was abused, sexually or otherwise by anyone or is
suffering from any disease and if it so the juvenile be sent to government
hospital for checking and treatment.
5. The Board should also ensure that the police officer who apprehends a
juvenile should inform the parent or guardian of the juvenile regarding such
apprehension.
6. The Board shall not adjudicate the proceedings or affect the dispositions of
the enquiry without calling the report of probationary officer.
7. Summary procedure should be adopted during enquiry instead of summons
procedure trial.
8. No joint proceeding of a juvenile and an adult accused should be held.
9. Monthly group meeting should be organized of all departments which are
engaged in the welfare of the child i.e. District Judge, members of J.J.Board,
welfare officer and superintendent of the observation home etc for discussing
the programme for welfare and betterment of children.
10. JJ B should conduct awareness programmes about offences against children
in every school situated in their jurisdiction through legal aid campaign.
11. The Board may also be complainant and lodge the case in any regular court
when it is found that provisions of section 21,23,25,26 have been violated and
45
offence is committed against the juvenile by any person who has been given
actual control or control of the juvenile.
D. Rehabilitation/ Shelter Home/ Observation Home.
1. There should be separate homes for juveniles and the destitute should not be
mixed with the juveniles. Homes should not be constructed like jails. The
homes for children should be video linked to facilitate inspection and
supervision by the Board so as to keep a check on anything done against the
best interest of the child. Also, surprise visits should be made at the special
homes, juvenile homes and observation homes. Senior citizens should be
involved as community resource person to look after the well being of the
children in various homes with their expertise in different fields.
2. Schooling of the children in the homes up to the age of 14 should be made
compulsory. They should he given the best of the facilities and opportunities
like any Boarding school (hostel) making a course of moral science and civics
compulsory for those who are in homes. For the welfare of juvenile, he must be
allowed to go on leave and released on license during examination so that he
can continue with his studies. Sponsorships should be provided for education of
juveniles in good institutions. Personality enhancement courses should be
organized. There is no provision of providing legal aid under JJ Act. There is no
assistance provided by the lawyer to a juvenile facing a criminal charge before
the Board. This is a serious loop hole in the Act, which requires immediate
attention.
3. For better welfare of juvenile games, sports and other functional programmes
may be organized in observation home and institution and encourage the
juvenile to participate in these programme so they connect themselves with
society. During festival seasons some cultural programmes should be organized
in the homes for the inmates with the assistance of voluntarily organizations.
4. Adoption used in section 41 should be defined to avoid conflict.
46
5. The property right of the juvenile on adoption be incorporated in the Act in
clear terms.
E. Police
l. The state governments should be directed to establish a special juvenile police
unit in every district and the unit must be specially instructed and trained in
child psychology and child welfare. The public prosecutors handling the cases
should be sensitised and given training with the juvenile police.
2. As soon as a juvenile 'in conflict with law' is apprehended by the police
he/she should be placed under the charge of the special juvenile police unit or
the designated police officer. Police should be given sufficient direction that
summons or warrant of the juvenile be served/executed in time so that the JJB
can complete the enquiry within four months as per the mandate of the J J A.
3. A time limit should be fixed for investigation. Juvenile police officers who
investigate the case, must submit the final form within 60 days or 90 days
depending upon the nature of the offence from the date of complaint.
4. A social worker may be associated in the investigation made by the police
officer. In the child cell at least one lady police officer should be
posted/appointed.
5. The police department also plays a very important role in ensuring child
protection. But, practically police officials are not aware about provisions of the
JJ Act. Hence, awareness programmes should be conducted at the police station
level wherein Principal Magistrate and members of J JB, members of child
welfare committees and NGOs should also be involved.
F. Miscellaneous
l. The High Court should take initiative to create and establish more and
exclusive Juvenile Justice Boards in order to dispose Juvenile cases within
specified period as intended in J. J. Act, of 2000.
2. The Juvenile Justice Board should be made functional on all working days
and the proceedings be held on all working days.
47
3. The Act should be amended to enable the JJB to directly entertain complaints
of child for offence against them instead of being through police so that the
child can give his complaint without any fear.
4. The J J Act, 2000 does not make any difference between a male and a female
child. Such scheme of the J J Act however fails to take a note of the fact that the
female juvenile being highly vulnerable is likely to be more comfortably and
conveniently exploited and even abused adversely. Such a female juvenile
needs special protection even at an observation home or at a place of safety,
notwithstanding the fact that voluntary social organizations may come forward
to provide a place of safety. An inbuilt safety mechanism is required to be
provided to such a female juvenile in the Act itself.
5. Provision should be made to divert at least 25% of the fine amount collected
by the criminal courts at each place towards creation of a juvenile welfare and
rehabilitation fund, at the disposal of the J J Board of the particular place/area to
be utilized by it in day to day rehabilitation need of the juvenile or child
concerned.
6. Section 16(1) of the Act should be amended and expression “life
imprisonment", be substituted by expression "any imprisonment”. This shall be
in consonance with the Legislative intent in section l6(2) of the Act.
7. The Act is silent as to whether a juvenile involved in a TADA/POTA/NDPS
Act case can be bailed out under section l2. To avoid any confusion and give
immediate relief to the juveniles the Act should specifically provide for bail
even in cases of abovesaid catagories.
8. The Juvenile Justice Act is silent about doing justice to the victims who have
been victimized in the hands of juveniles. Necessary provisions/amendments
should be made in this regard.
9. 'Protective custody' should be defined in Juvenile Justice Act to avoid any
confusion.
48
10. The Act should make it clear as to when enquiry commences. Section 14
being silent about it may create confusion.
11. Voluntary social organisation with necessary government supervision and
assistance should be allowed to run after care programmes to build a meaningful
and constructive after care programme in order to rehabilitate the inmates by
helping them to secure jobs in various government and private undertakings.
12. Until special police units are constituted investigation of cases of juveniles
should be done by the specially trained police officers for which a training
should be imparted to them.
13. Orientation courses, seminars and awareness programmes should be
organized by government on juvenile justice on regular intervals to enable the
functionaries imbibe the message discussed and conveyed to them.
14. It is not enough to make good legislation unless it is honestly, strictly and
scrupulously enforced without fear and favour. The Juvenile Justice Act has
been enacted for the purpose of providing care and protection to the child. So
the functionaries of the JJS should enforce the Act honestly, strictly and without
any fear and favour.
15. The primary purpose of JJS being protection of the child, it is required to
adopt measures for keeping the child integrated with the family and within the
mainstream of the society. The Advisory Board should be established at the
central, state, district and city level for integration of the children with the
family. The Advisory Boards should be provided infrastructure and facility so
that desired qualitative output can rendered by them.
16. The community participation should be maximised.
17. NGOs working on the street and with children should be increasingly
involved. For children without family, every efforts should be made to find out
an alternative family placement, failing which institutionalization may be
resorted to.
49
18. The pattern of the SOS children’s villages which stood recommended as far
back as 1920 by the Indian Jail Committee 1919-20 should be followed by the
homes established or recognized for placing children. Community services for
education, vocational training and recreation alongwith other children in the
society may be used by these homes to ensure that the institutionalized juveniles
are not marginalised and that the standard of programmes for the
institutionalized children is at par with those for other children.
19. The community based programmes should be under close supervision to
ensure fulfillment of obligation by the child and the person in whose care
juvenile is placed under the placement order. For this purpose the number of
probation officers/social workers and case workers be also increased to the
standardized ratio between such workers and children.
20. The National Commission for Protection of Child Rights (NCPCR) was set
up in March 2007 under the Commission for Protection of Child Rights Act,
2005, an act passed by Parliament in December 2005. The Commission's
Mandate is to ensure that all Laws, Policies, Programmes, and Administrative
Mechanisms are in consonance with the Child Rights perspective as enshrined
in the Constitution of India and also the UN Convention on the Rights of the
Child. The Commission should focus and evolve programmes for all categories
of children co-ordinating various programmes, undertaking follow-up of its
recommendation with various other bodies and departments to create a database
for policy formulation and review.
21. The states should establish a clear relationship between JJA and other
legislations that affect the life of the children covered under its scope.
22. There is need to evolve alternative ways of dealing with children. Merely
renaming the existing structures as by done the JJA serves no purpose. The state
should start experimental projects with alternative ways for dealing with
children and after successful evaluation they should be made part of the
enforceable law.
50
23. Probation and other community based programmes, apart from being cost
effective should be preferred for their potential for ensuring better care and
rehabilitation of juveniles.
Conclusion:
In brief, it can be said that juvenile justice system in India has gained
momentum. Attitude and perception towards Child Rights needs a change. On
the legislative side a lot of work has been done in India but implementation part
still requires improvement. The laws enacted requires to be effectively
implemented to achieve the desired goal of welfare of the children. The society
must encourage children's participation in matters effecting their rights as
services to the children are no longer a charity. The judiciary has played an
appreciable role and contributed a lot in proper and beneficial implementation
of the juvenile justice legislation by interpreting the provisions of Juvenile
Justice Acts so as to provide maximum benefit and relief to the maximum
number of the juveniles covered under the beneficial and favourable legislation.
A good intended legislation, properly and sincerely implemented and visionary
interpreted, can significantly reverse the crime trends in the juveniles.
51
BIBLIOGRAPHY:
52
ANNEXURES:
53
54
55
QUESTIONNAIRES:
Are the various Child Acts sufficient to tackle the problem of juvenile
delinquency in India?
► Are the law executing agencies properly executing the law in favour of the
juvenile delinquents?
56
► Is it dangerous to club the juvenile delinquent with the hardcore criminal, if
separated what physiological, mental changes are likely to flow?
► Is the concept of rehabilitation and reformative measures a reality or a
hypothecation?
► Whether the Supreme Court has to a considerable point succeeded to make
the real objectives of the various Acts in reforming the juvenile delinquent in
India?
► Whether there is an inflow of juvenile delinquent in India?
► Whether the society is a hub of the production of juvenile delinquent in
India?
► Whether the reformative rehabilitation institutions provided by the
Government of India are sufficient to reform the criminal mind of the juvenile
delinquent in India?
In the present research study, an attempt has been made to examine and answer
all the above expected questions. The various issues of this multifaceted
problem have been examined thoroughly in the light of statutory provisions and
judicial decisions.
NGO/government partnership
Section 1: Regarding form of relationship
1. What type of relationship does your NGO have with the government?
2. In your opinion, how does the government define its relationship with your
NGO (say
in legal terms, written documents etc.)?
3. At what stage of the organisation was the government involved (e.g.:
program
identification, design, implementation, expansion or appraisal)?
4. Did your NGO start out as a partner or as a project of the government?
57
5. Who initiated the partnership (GovernmentINGO/International agency/any
other)?
6. If initiated by the NGO, why did it choose to partner with the government?
7. Have these objectives changed since the initiation of partnership? What is it
now?
8. What strategies did the NGO use to involve the government?
9. Why did you decide to work with the government? Was there any other
option?
Section 2: Organisational aspect of the partnership
1. What is the form of government control over your organisation (government
represented in the board or in advisory capacity)? Has it undergone any
changes?
2. Did the NGO have a say in defining the form of relationship and the level of
government participation?
3. What are the advantages of working with the government? What are the
advantages
towards your NGO? And what are the advantages towards your programmes?
4. Did the partnership help in initiating new projects?
5. What percentage of your funding is dependent on the government? What are
your
other sources of funds?
6. What according to you are the limitations of working with the government?
7. What strategies do you employ to maintain government relations (example:
resources
utilized in paperwork, in terms of person hours)?
58
involvement?
2. What are the various activities of the NGO? Which activities reqUIre a
working
relationship with the government?
3. Has the NGO been able to influence any related national/state policies? Can
you give
an example?
4. Has the NGO influenced changes within the government structures (for
example,
greater participation, sharing information)?
5. What were the reasons for the government to work with your organisation?
6. Have you advocated for the replication of the partnership model outside
Mumbai?
59
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
State of Punjab
.....Respondent
referred to as ‘the J.J. Act’). The trigger point was the two news items,
one dated 18.6.2009 and the other dated 19.6.2009 depicting
appalling conditions of the Children Homes run by the Department of
Women and Children and the Observation Homes run by the
Department of Social Security. Taking cognizance of these two news
items the Vacation Judge passed orders dated June 20, 2009 directing
the Sessions Judge of the area where these Children Homes and
Observation Homes are run, to conduct a surprise visit forthwith and
report about the running of those institutions, particularly, in respect of
following:
1 The quality of food served to the inmates;
2 The medical facilities for the inmates;
3 The health status of the inmates
The reports were received on which orders dated July 09, 2009 were
62
passed directing the Secretary, Punjab State Legal Services Authority
to scrutinize these reports and put up a note indicating, in a tabulated
form, the deficiencies that need to be removed by these institutions.
Afterwards, the Juvenile Justice Committee of this Court in its meeting
held on August 11, 2009, took note of the pitiable state of affairs at the
Observation Home at Sonepat. The sordid state of the said Observation
Home depicted that Observation Home at Sonepat had two barracks
and a front side courtyard with high walls. The entry gate was similar
to jail gate. The Home was having no source of recreation facilities or
playground for the juveniles housed therein. The courtyard was filled
with stagnated water due to blockage of drainage system and there
was hardly any place for going out of barrack for using courtyard.
Enquiry revealed that there was no arrangement for potable water.
The bathrooms and kitchen were also in deplorable condition. The
Observation Home was managed by a single teacher who, besides
performing job of a teacher, was also looking after the overall
administration of the Home. In this manner, no meaningful education
was being imparted to the children. The Observation Home was found
to be worse than a prison. Observation Home at Hoshiarpur (Punjab)
was found to be no better with almost similar dilapidated conditions. It
was also noted that the juveniles were detained in both the
Observation Homes for very long periods, in some cases for 20-22
months which was against the letter and spirit of Section 2 of the J.J.
Act. As that provision entitles the juveniles to appeal as a matter of
right, the Committee, thus, felt that a lot of steps were required to put
the various provisions of the juvenile justice system on track. Some of
the violations of the J.J. Act, which were found, were:
(i) There was no nomination of Judicial Magistrate Ist Class to head
the Juvenile Justice Board so as to assign supervisory powers to
63
the Chief Judicial Magistrate to oversee and review the working
of the Juvenile Justice Board.
(ii) The requirement of establishment of Observation Homes and
Special Homes in every district was not carried out;
(iii) There was a need to sensitize not only the Juvenile Justice
Boards but also the State functionaries in regard to the
requirements of the J.J. Act.
(iv) Child Welfare Committees for every district or for group of
districts, as required under Section 9 of the J.J. Act, were not
constituted in every district.
(v) The State Governments had not fulfilled their obligation to
establish and maintain children homes either by themselves or in
association with any voluntary organizations.
vi) The State Governments were found wanting in carrying out
another statutory requirement, namely, to appoint Inspection
Committee for Children Homes for the State or a district or a
city, as the case may be.
vii) Special Juvenile Police Units were not constituted to fulfil the
requirement of Section 10 of the J.J. Act, namely, as soon as a
juvenile in conflict with law is apprehended by police, he is to be
placed under the charge of the said Special Juvenile Police or the
designated Police Officer.
ix) There was hardly any implementation of the various provisions
for process of rehabilitation and social reintegration, which
include adoption, after-care, sponsorship, etc.
10. Pursuant to the aforesaid orders, all the parties have given
their suggestions. Counsel for the parties were also heard in detail on
those suggestions.
13. We, thus, hold that there shall be total ban on the
employment of children up to the age of 14 years, be it hazardous or
non-hazardous industries. This would, however, be subject to the
exception that child should only be allowed to work with the family in
only those trades/occupations notified by the Child Labour Technical
Advisory Committee as constituted under Section 5 of the Act of 1986
and for the sole purpose of learning a new trade/craftsmanship or
vocation. This exemption too can only be permitted if the same is not
89
in violation of Article 21-A and provisions of Article 51A(k) of the
Constitution of India, i.e., where the child is attending regular school to
get education. In case the child is not studying in a school, this
exemption cannot be claimed even by the family as it affects rights of
the child as protected by the Constitution of India especially those
under Article 21 of the Constitution.
14. The thorny issue, however, is about the “child labour” in case
of children who are above 14 years of age. It is argued by Mr.Goswami
that though the Child Labour Abolition Act, 1986 imposed no bar on
the employment of such a child as labour, non-grant of protection to
the children between 14-18 years of age creates certain contradictions,
namely:
(i) Till the attainment of age of majority, no child can
consent to any contract, even an employment
contract.
ii) All employment contracts, whether verbally or in
writing or implied would be void ab initio if entered
with any person under the age of 18 years. The will
of the person below 18 years of age can be said to
be missing.
(iii) Any employment of labour which is without the will
of the person employed attracts provisions of
Section 374 of the Indian Penal Code, which reads, -
“Section 374: whoever unlawfully compels any
person to labour against the will of that person,
shall be punished with imprisonment of either
description for a term which may extend to one
year, or with both.”
90
(iv) Our nation has signed and ratified (on 11th
December, 1992) the “Convention on the Rights of
the Child”. Article 1 thereof says, - “Article 1: for
the purposes of the present Convention, a child
means every human being below the age of
eighteen years unless under the law applicable to
the child, majority is attained earlier.” Thus, as per
international commitment also, the Union
Government agrees to accept a person up to the
age of 18 years as ‘child’.
(v) As per J.J. Act, 2000 which was enacted after the
ratification of the “Convention on the Rights of the
Child” by our Union Government, the child under the
legislation is defined as, “Section 2(k): “juvenile” or
“child” means a person who has not completed
eighteenth year of age.
Highlighting the aforesaid contradictions, it is argued by Mr. Hemant
Goswami, who appeared in person, that employment of any person
under 18 years of age should be treated as “prohibited and forced
labour” attracting the provisions of Section 374 of the Indian Penal
Code, as by that time such a person has not attained majority and is
incapable of giving any consent.
15. We are of the opinion that whenever a child above the age
of 14 years is forced to work, it has to be trearted as an offence under
Section 374 IPC and it is to be dealt with sternly. The problem,
however, may arise when a child between 14–18 years of age is
committed to labour by the parents willingly and with their consent. It
may be difficult to prohibit the same. Having regard to the age of the
91
child fixed under the Child Labour Abolition Act, we are of the opinion
that in such circumstances, the case can still be brought before the
State Commission formed under the CPCR Act, 2005 which has the
jurisdiction to look into the matters of violation of child rights. The task
of this Commission is akin to that of Human Rights Commission with
the only difference that the State Commissions, established under the
CPCR Act, would be dealing with the human rights of children. We,
thus, hold that as and when any matter is brought to the notice of the
State Commission (or for that matter suo motu cognizance taken by
the State Commission) involving violation of child rights even where a
child above the age of 14 year is employed, the State Commission
under the CPCR Act will have the jurisdiction to deal with the same and
pass necessary directions.
16. The next area which needs attention in this case is to deal
with the violators firmly so that it acts as deterrent. The violators have
to be dealt with effectively and in a speedy manner. Therefore,
wherever violations are found, cases under the provisions of Part-IV of
the Child Labour Prohibition Act have to be registered without delay in
each and every case. In such cases, the enforcement agencies shall
also always keep in mind the provisions of Section 374 IPC and,
wherever required, this provision would be added in all cases of such
violations. The trial Courts dealing with such offences would keep in
mind the provisions of Section 374-A IPC while awarding compensation
to the victims. Whenever a victim is convicted by the trial Court and he
files appeal there-against, ordinarily, the appeal be admitted only if
penalty/compensation is deposited by the convict in the Court so that
even if it is felt that the amount of compensation is not to be realised
immediately, interest on such deposits, at least, is paid to the
92
account/victimised child. Wherever the officers fail or neglect to take
effective action immediately, apart from taking necessary disciplinary
action, action can also be taken, in appropriate cases, under Section
166 IPC against such officers.
109
25. We find from the replies filed by the States of Punjab and
Haryana as well as U.T., Chandigarh that Committees under the
aforesaid provisions have already been constituted and working in
these States/Union Territory. Apart from constitution of these
Committees, the petitioner has given the following two suggestions:-
“vii. The Inspection Committee must ensure that all
accounts of all privately run homes/institutions are
regularly compulsorily audited by a firm of Chartered
Accountants who should also ensure that proper account
books are regularly maintained of all financial transactions
and all payments are made or received through
cheques/bank drafts with minimal cash payments. The
regularly audited account statement must be sent to the
inspection committee by all privately run
homes/institutions. It is also suggested that SCPCR may
maintain a panel of approved Chartered Accountants at
various district levels through whom these audits of
accounts should be got done for all privately run
institutions/children homes.
vii. The Inspection Committee must ensure that in
accordance with the provisions of Section 3 of the Right
of Children to Free and Compulsory Education Actr, 2009
(RTE Act), every child of the age of 6 to 14 years shall
have a right to free and compulsory education in a
neighbourhood school till completion of elementary
education as also ensure that no form of child labour of
employment of children in any vocation, trade, business
or employment is permitted in any form whatsoever. Any
children home or institution found violating this condition
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should be reported to the SCPCR by the inspection
committee for prosecution and legal action.”
( A.K. SIKRI )
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CHIEF JUSTICE
April 09, 2013 (RAKESH KUMAR JAIN)
pc JUDGE
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