Juveniles, benefits and privileges of: India

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The evolution of Indian laws that deal with juvenile delinquents, 1960-2016; Graphic courtesy: The Times of India, Jun 05 2016

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Contents

Social background

The Times of India, May 13 2015

Some facts: Juveniles in conflict with law; Graphic courtesy: The Times of India, May 13 2015

Himanshi Dhawan

Most juveniles in conflict with law from poor families

With the Juvenile Justice (amendment) Bill expected to be taken up by Rajya Sabha, an independent study across observation homes and special homes in four states has traced the profile of a juvenile delinquent. Preliminary data collated by NGO Butterflies reveals a “juvenile caught in the country's legal system is a working child, from a disturbed family background who has been associated with petty crime. The children are overwhelmingly from economically and socially backward sections of society.

The socio-economic pro file is based on an ongoing study of 605 children from homes in Delhi, Odisha, Tamil Nadu and Kerala.

The study found that majority of the parents were labourers or from service oriented occupations like tailoring, construction, carpentry while 63.2% of the children were engaged in some work or the other. “The preliminary data suggests that it is only the children of low economic and social background get caught while those in the middle and high income group are able to settle outside the judicial process, Rita Panicker from Butterflies said.

About 16.8% children were deprived of any formal schooling while 50.8% studied up to primary level. Not surprisingly, nearly half the parents did not have formal schooling. In another significant revelation 33.4% of the children came from families where one or both parents had died or had step families, separated families, were abandoned or lived on the street.

Socially too the children were found to be disadvantaged. Out of the 442 children who knew their caste 90% belonged to backward classes underlying the vulnerability experiences by marginalized communities. Scheduled caste accounted for 20.4%, scheduled tribes for 4.6% while OBCs were 40.8% of the children studied.


Juveniles, determination of age

Don’t focus on age to define juveniles: HC

By Ajay Sura, TNN, 2013/03/30

The Times of India

Chandigarh:Against the backdrop of a raging debate on the age of juvenile offenders following the Nirbhaya rape, the Punjab and Haryana high court has held that benefits and privileges of juveniles should not be accorded to minors involved in monstrous crimes merely because of their biological age. Instead, it should be premised on the ability of offenders to understand the consequences of their actions.

“It is the advancement of the mental faculty of juvenile accused, which would suggest whether he is an adult or a juvenile,” the HC held.

It recommended a specialized examination of minors by experts who can evaluate their ability to segregate good and bad to show their maturity or immaturity to answer for the deeds.

Justice Mahesh Grover of the Punjab and Haryana high court passed this judgment while dismissing the bail petition of a minor, a Class VII student, who had allegedly raped two girls of Class IX and X of his own school.

The verdict came and a copy of the judgment was made available.

School records can’t be taken as certificate of a person’s age: HC

It and is factors maturity related psychological to growth - ly and socially, but not entirely biologically, that would give an insight as to whether a person is a child or an adult, Justice Mahesh Grover of the Punjab abd Haryana HC has ruled.

“The courts ought not automatically assume that the statutory definition would confer the halo of a juvenile and give him an undeserving protection and benefits,” the court observed.

“In a country like ours the age given in the school certificate or the records of the school would only speak of an age imaginatively conjured by the parents at the time of admission. Even though it may form a persuasive piece of material, but certainly no credence and outright acceptability should be afforded to it.”

In this case, the juvenile from Chuchakwas village in Jhajjar district in Haryana had kidnapped the two girls in October last year. Both the victims and accused remained untraced for 10 days, during which the accused had allegedly raped both the girls at different places. While dismissing the bail plea of the accused, HC has asked the Juvenile Justice Board to consider the case in view of the observations.

In heinous crimes, onus is on `juveniles' to prove they're under 18: SC

The Times of India, May 13, 2016  In an important ruling, the Supreme Court said a juvenile accused of heinous crime would be tried as an adult if the court found documents produced to support that heshe was below 18 years when the offence was committed turned out to be unreliable.

The ruling came from a bench of Justices A K Sikri and R K Agrawal, which sent Parag Bhati, accused of murdering a man in Greater Noida in 2011, to face trial as an adult. Bhati was found to have forged school documents to show that he was below 18 years at the time of the crime.

“When the accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of the common man in the institution,“ Justice Agrawal, writing the judgment for the bench, said. Justice Agrawal, writing the judgment for the bench, said if there were documents unambiguously showing that the accused was below the age of 18 years on the date of the crime, he would be entitled to special protection under the Juvenile Justice (Care and Protection of Children) Act, 2000.

Doubtful evidence about his age being below 18 years could not come to the rescue of a person involved in a grave and heinous offence committed and given effect to in a well-planned manner, reflecting his maturity of mind rather than innocence, and indicating that plea of juvenility was being used more as a shield to dodge or dupe the arms of the law, the court said.

The bench upheld the Juvenile Justice Board's decision to send Bhati to face trial for murder as an adult.

Radiological examination is useful, not conclusive: SC

AmitAnand Choudhary, Bone test not enough to fix age: SC, Dec 2, 2016: The Times of India


Holding that a medical test does not give an accurate finding regarding the age of a person, the Supreme Court has held that an accused cannot be declared a juvenile solely on the basis of ossification test result and allowed to evade a jail term.

A bench of Justices AK Sikri and R Banumathi said that a blind and mechanical view regarding the age of a person could not be adopted solely on the basis of medical opinion, and it refused to give credence to a report of AIIMS medical board according to which two murder convicts were minors at the time of committing a crime in 1994.

“Courts have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person, but the evidence is not of a conclusive and incontrovertible nature, and it is subject to a margin of error. Medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other circumstances,“ it said.

“It is a well-accepted fact that age determination us ing ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years, which is true in the present case,“ the court said.

The court was hearing a plea of two convicts who, along with four others, were convicted and sentenced to life imprisonment in a murder case. The two convicts never raised the defence of their juvenility during the hearing in trial court and high court.When the matter reached the Supreme Court in 2014, the two convicts told the court that they were minors at the time of committing the crime and could not be sent to jail.

Although the apex court agreed to examine the plea of the two convicts, it rejected the appeal of four other convicts and upheld their life imprisonment. As there was no documentary proof of their age, the court had asked AIIMS Delhi to conduct a medical test to ascertain their age.

The report said that their age was between 35-40 years in May 2016. As per the procedure to calculate the age at the time of incident, their age would have been around 15 years. But the bench refused to rely on the findings saying “Court should not take a hyper-technical approach while appre ciating evidence for determination of age of the accused.“

The court pointed out that the accused were involved in about two dozen criminal cases before they committed the murder and that they were produced in lower courts in many cases.It said that had they been minors then the lower court would have treated them accordingly and not as majors.

“Had it been so, the appellant would have been considered as children by their appearance. They would have been dealt with accordingly by juvenile court and the matters would not have been kept pending till this date.This in our view is yet another reason that opinion of medical board cannot be relied upon,“ the bench said.

Later lives of former delinquents

Juvenile case can’t stunt job prospect in adulthood

Dhananjay Mahapatra, HC: Stigma of juvenile case can’t stunt job prospect in adulthood, April 18, 2019: The Times of India


There is relief for thousands of children in conflict with law and facing discrimination in securing a job with a recent Allahabad high court judgment ruling that the stigma of facing a criminal case as a juvenile cannot stunt someone’s employment prospects in adulthood.

Rajiv Kumar, as a 10-year-old boy, had faced criminal prosecution in 1994 for various charges under IPC and SC/ ST (Prevention of Atrocities) Act. He was acquitted in 2002. In 2006, a 22-year-old Kumar was selected and appointed as constable in the provincial armed constabulary (PAC) in UP government. But a year later, his appointment was cancelled on the ground of non-declaration of the criminal case he faced as a child. Many years later, Justice Ajay Bhanot in a 90-page judgment undertook a detailed study of rights of children and referred to domestic as well as international laws while ruling in favour of Kumar.

The HC judge concluded Kumar be reinstated in service with full back-wages and consequential benefits like seniority and other financial benefits from August 26, 2006, when he was appointed as constable in PAC. Justice Bhanot said: “Details of past prosecution faced by the petitioner as a child were not valid criteria nor a lawful consideration to judge his suitability for appointment. Such criteria were arbitrary and illegal. The declaration (that no criminal case registered against him) made by the petitioner was not a relevant consideration in his appointment. Hence, even falsity of the declaration made by the petitioner could not invalidate his appointment.” Giving a general finding on preventing a bleak future in employment faced by children in conflict with law, the HC said, “In public employment, past prosecution of a child in a criminal case is often made a criteria for forming an opinion of the child’s criminal antecedents. Such criteria revives the taint of a past prosecution to blight the prospects of future employment... Consideration of a past prosecution of child in a criminal case for any purpose or in any discourse, will create a perpetual disability for the child,” the judge said.

Rights of juvenile delinquents

Rights of juveniles implicated in heinous crimes non-negotiable: HC

Jailed juvenile freed by HC after 9 years. Oct 14 2016 : The Times of India


Court Says Rights Of Minors Non-Negotiable

The high court has expressed displeasure and pain with the way a sessions court dealt with a murder case where a juvenile was forced to remain behind bars for nine years.

A bench of Justices Gita Mittal and P S Teji reminded everyone that rights of children are completely non-negotiable even if they are implicated in a heinous crime, and acquitted the juvenile, ordering his release if not wanted in any other case.

HC also took the case as an example to underline the need to train trial court judges on the law relating to juveniles, saying the sessions court had dealt with the matter while being “completely oblivious“ of the valuable rights of a minor under the Juvenile Justice (Care and Protection) Act.

The bench ordered the HC registry to send a copy of its order to director (Academics) of Delhi Judicial Academy for designing refresher course on juvenile justice and compiling the material for it.

“This design shall be sent to every district judge, who, if possible, would organise and implement the training at the district court complexes for expediency and to save the time of judges,“ the court directed. HC was pained to note that the minor was arrested on January 13, 2007 and since then was in incarceration.He underwent over nine years of imprisonment which was much more than the maximum sentence permissible under the JJ act.

“The SHO of the police station concerned, who having conducted the age inquiry , would have known about it. Yet, he also made no effort to inform the trial court about the same,“ the bench noted. “In any case, the appellant (minor) could not have been kept in the jail meant for adult prisoners but was required to be kept in the observation home, that too only for the maximum period of three years,“ it said.

HC's verdict came on the application of the juvenile who approached the court seeking to declare him a juvenile.

Never disclose juvenile’s identity: HC

January 1, 2018: The Times of India


Identity of a person, against whom a criminal case was lodged when he was a minor, should not be disclosed at any stage of life as it defeats the purpose of juvenile justice law, the high court has held.

The court said that object of the Juvenile Justice (Care and Protection of Children) Act is to ensure that no stigma is attached to a juvenile in conflict with lawand a minor is extended a protective umbrella under the enactment.

A bench of justices Hima Kohli and Rekha Palli made the observations in a case where a constable was removed from service in the Reserved Police Force (RPF) by the Railway Board on the ground that he had not disclosed pendency of a criminal case against him for an incident that took place when he was 12-years-old.

What after a juvenile criminal turns adult?

'3-Year Term Holds Even If Accused Turns Adult In A Year'--SC

Juvenile.png

SC had settled issue of ‘adult’ in juvenile home

Said 3-Yr Term Holds Even If Accused Turns Adult In A Year

Smriti Singh TNN

The Times of India 2013/09/01

New Delhi: With the Juvenile Justice Board (JJB) sending the Nirbhaya [rape] case [of 16 Dec 2012] juvenile accused—now an adult — to a reformatory home, the debate surrounding the fact that he cannot be kept in a reformatory home for minors as the JJ Act does not allow adults to be kept with juveniles has been put to rest.

Just a month before the JJB verdict, an order passed by Supreme Court helped in clearing the doubts surrounding the status of the juvenile before the law and where he could be kept once he attained majority. While deciding the writ petition which sought bringing down the age of the juvenile to 16 years, Supreme Court had also dealt with the issue of the provision to keep a person in a juvenile home after he attains majority during the pendency of his trial.

What happens to a juvenile found guilty of a heinous offence when he turns adult?

“One misunderstanding of the law relating to the sentencing of juveniles needs to be corrected. The general understanding of a sentence that can be awarded to a juvenile under Section 15 (1)(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, prior to its amendment in 2006, is that after attaining the age of 18 years, a juvenile who is found guilty of a heinous offence is allowed to go free…It was generally perceived that a juvenile was free to go, even if he had committed a heinous crime, when he ceased to be a juvenile,” observed the bench, which was presided over by the then Chief Justice of India, Altmas Kabir.

The bench said that the “understanding” of the situation needed to be clarified in the light of the 2006 amendment in the JJ Act. “The amendment now makes it clear that even if a juvenile attains the age of 18 years within a period of one year, he would still have to undergo a sentence of three years, which could spill beyond the period of one year when he attained majority,” the bench observed in its July 17 order.

This clarification by the apex court settles the debate as well as the law surrounding the juvenile delinquent, who attain majority during the pendency of the trial.

Earlier, if found involved in the crime after he turned 18, a juvenile could not be kept in the juvenile correction home or any other reformatory home for minors as the Juvenile Justice (JJ) Act did not allow adults to be kept with juveniles in correction homes. At the same time, the juvenile who had attained majority could not be transferred to Tihar Jail as the law did not allow such persons tried under the JJ Act to be kept in jail meant for adults.

2019/ Youth gets life term for crimes committed as minor

Srinath Vudali, June 28, 2019: The Times of India


In perhaps the first instance in the country, a 19-year-old youth from Hyderabad has been sentenced to life imprisonment for sodomising and murdering a 10-year-old boy when he was a minor. He was convicted by additional metropolitan sessions judge Kunchala Suneetha, who is also special judge for cases under the Protection of Children from Sexual Offences (POCSO) Act.

The convict was 17 when he had committed the crime in 2017 by luring the child to the top of a government school building on the pretext of playing with him. He then sodomised him and killed him by hitting him on the head with an iron rod.

Trying juvenile offenders as adults

Juvenile Justice Board: Try teenager as adult: 2016

The Times of India, Jun 05 2016

Sana Shakil

2016: Juvenile Justice Board’s decision to try murderous teenaged driver as adult; Graphic courtesy: The Times of India, Jun 05 2016

In probably the first case of its kind, the Juvenile Justice Board has said a teenager who allegedly ran over a 32-year-old marketing executive, Siddharth Sharma, in the city while driving his father's Mercedes can be tried as an adult. The board gave this decision, ruling that the offence allegedly committed by him was “heinous“.Transferring the case of the boy -who became an adult four days after the incident -to a city court, the board held that the circumstances show the teenager was “mature enough“ to understand the consequences of his act and to think of ways to escape from lawful punishment for the offence. The incident had happened in north Delhi's Civil Lines area on April 4.

The board rubbished the defence's claim that the alleged offence of 304 IPC (culpable homicide not amounting to murder) -which enta ils a maximum punishment of 10 years' imprisonment -is not made out against the boy . This is significant because according to section 2(33) of the new JJ Act, “heinous offences“ include the offences for which minimum punishment under IPC or any other law for the time being in force is imprisonment for seven years or more.

In a five-page order, the board observed that section 304 IPC has been “rightly invoked“ against the teenager. If tried as a minor, the maximum penalty the boy could get is three years at a reform home. This is, perhaps, the first case in the country in which a minor accused could be tried as an adult after the amended juvenile justice law was implemented in January this year. This means the boy will be tried by a sessions court which hears cases of serious crimes against adult accused. However, he could still get some relief from the court as the new JJ Act has a provision for the court to take a relook and decide whether the teenager is to be tried as an adult or not. If it decides against it, it will send the case back to the Juvenile Justice Board (JJB).

This JJB order can also be appealed against, and the boy's counsel said he would soon challenge it in a sessions court. While the boy's family expressed disappointment over the order, victim Sharma's family said it was satisifed, stressing that they were fighting to set a precedent so that the killing spree by kids would stop.

The JJB arrived at its decision after examining the boy's physical and mental ability and after hearing lengthy arguments on the police's plea, which was strongly opposed by the teenager's counsel, Rajiv Mohan, who had argued that the main purpose of JJ Act is to ensure a juvenile's welfare.The JJB also relied on a May 25 report of a clinical psychologist regarding the boy .The report said the boy was in no manner lacking the mental and physical capacity to commit the alleged offence.

Referring to the report in its order, the JJB said it indi cated the accused “has a mature mind although he has immature problem-solving skills.“ According to sources, the JJB also observed that the teenager gave “measured, inadequate and evasive replies“ to the psychologist.

The boy's past conduct of violating traffic regulations and the manner in which he allegedly chose not to help the victim after the accident also made the JJB recommend his trial as an adult.“Keeping in view the past conduct of traffic violations by the boy , high speed of his car and the fact that he pro duced his driver as the person driving the Mercedes when it was he who drove the car...clearly indicate that he is capable of understanding what he is doing,“ said sources, quoting the order.

The Board said the fact that the accused fled after the accident clearly shows that he understood the offence he is alleged to have committed. “On the date of the incident, he had the ability to understand the consequences of the offence. He drove very fast and dangerously , despite warnings by his friends, who were co-occupants of his car at the time of incident,“ the board said in its order. The circumstances collectively indicate that he was indifferent towards life and safety of other users of the road but mature enough to think of ways to escape from lawful punishment of the offence,“ the order read.

Welcoming the order, additional public prosecutor Atul Shrivastava said the case will become a milestone in criminal history . However, Mohan accused the police of wrongly invoking section 304 in the case “just to make it a heinous offence“ and said that the allegation would not stand trial as ingredients of 304 are clearly missing in this case.

Stating that he would challenge the order, Mohan said, “The JJ Act says that the past conduct of the minor cannot be treated as a stigma, but the JJB, in this case, has relied on the minor's past conduct. This is purely an accident case.304 IPC was invoked by police without any basis and just to make it a heinous offence.“

House Panel refuses to try juveniles as adults

The Times of India

Feb 26 2015

Himanshi Dhawan

A parliamentary panel has shot down the government’s move to try juveniles — between 16 and 18 years of age — who have committed heinous crimes as adults on grounds that it is discriminatory, in contravention of the UN Rights of Child and in violation of Article 14 that ensures all are equal in the eyes of law. The committee was unimpressed by the women and child development (WCD) ministry’s contention that there had been a rapid increase in juveniles, aged 16 to 18, committing crimes like rape, murder and acid attacks. It has asked the ministry to review the amendments and rename the law as the word “juvenile’’ has a negative connotation.

There had been a series of cases, including the Nirbhaya gang rape, Shakti Mills rape case and others, where juveniles were involved and got away with a maximum of three years in a reformatory home. The amendments to the Juvenile Justice Act were proposed by the then UPA government in view of the public outrage after the Nirbhaya gang rape in December 2012.

WCD ministry officials argued that National Crime Records Bureau (NCRB) data revealed that the number of children apprehended for heinous crimes, especially in the age group of 16-18 years, had gone up significantly in recent times. From 531 murders in 2002, the figure had gone up to 1,007 in 2013 while for rapes and assaults, crimes recorded were up from 485 to 1,884 during the same period.

The report tabled in Rajya Sabha on Wednesday said that juvenile crime ac counted for only 1.2% of a population of 472 million children in the country and that this percentage had remained constant over 2012 and 2013. The committee also noted that many of the juveniles were acquitted as they were not found guilty.

“The committee can only conclude that the existing juvenile system is not only reformative and rehabilitative but also recognizes the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the Constitution,’’ the report said.

Life in prison for teen's murder

Minors get life in prison for teen's murder, March 1, 2017: The Times of India

In a rare case of juveniles being tried as adults, two minors were sentenced on Tuesday to life imprisonment for stabbing a class X student to death in December 2016.

This is the first life term to minors in Madhya Pradesh under the amended Juvenile Justice (Care and Protection of Children) Act. Judge AA Khan of a sessions court in Jhabua also fined the duo -aged 17 and 16 -Rs 10,000 each.“No doubt, this is the first judgment under amended Juvenile Justice Act. This may well be the first case in the country where minors were awarded life term,“ Jhabua SP Mahesh Chandra Jain said.

SC upholds life term for juvenile in school murder

OK to give Ggn juvenile life term in school murder: SC, July 21, 2018: The Times of India


The Supreme Court rejected the bail plea of a 16-year-old boy, accused of killing a seven-yearold student in a private school in Gurgaon last September, saying the alleged crime fell under the category of “heinous offence” and a life sentence could be given with possibility of remission.

Earlier, a sessions court had held the juvenile would be tried as an adult in the murder case under a new law.

Advocate Gaurav Agarwal, appearing for the accused in the SC, said the possibility of remission meant the alleged crime didn’t fall under the category of “heinous offence” but “serious offence”. But Justices R F Nariman and Indu Malhotra junked the argument.

See also

Juveniles, benefits and privileges of

Juvenile delinquency in India

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