Human Rights: Juvenile Justice in India

Mr. Shamsuddin, Amity University, Jaipur

Introduction
Human rights are rights inherent to all human beings. We cannot be discriminated on the basis
of nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or
any other status. We are all equally entitled to our human rights without discrimination. These
rights are all interdependent, interrelated and indivisible. Universal human rights are often
Abstract: All individuals are entitled to certain basic rights in every part of the world,
irrespective of the circumstances. The rights are of different types like political and civil
liberty rights. The violation of Human rights include child trafficking, dowry, sexual
harassment, early marriage, child labor, polygamy, genocide, slavery, medical
experimentation, war crimes and rape are common and the most fundamental right
available to a human being is of right to life and physical safety. Human rights are the
expression of the need for human dignity, fairness, acceptance, tolerance and mutual
respect. The idea of human rights coveys the scope of justice and morality. The Most
common and recognized rights are the right to life, equality, human dignity, freedom and
security of the person, freedom from slavery servitude and forced labour , privacy, freedom
of religion, belief and opinion, freedom of expression, freedom of association, political
rights, citizenship, freedom of movement and residence, labour relations, housing, health
care, food water and social security, education, access to information, language and
culture . In this article the human rights related to juveniles are being discussed when he is
in detention.
Key words: Juvenile, Human Rights, Detention, Convention, Damini Case,
Verma committee, intellectual maturity
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expressed and guaranteed by law, in the forms of treaties, customary international law, general
principles and other sources of international law. International human rights law lays down
obligations of Governments to act in certain ways or to refrain from certain acts, in order to
promote and protect human rights and fundamental freedoms of individuals or groups. The
principle of universality of human rights is the cornerstone of international human rights law.
This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has
been reiterated in numerous international human rights conventions, declarations, and
resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is
the duty of States to promote and protect all human rights and fundamental freedoms,
regardless of their political, economic and cultural systems. These human rights are
inalienable. They should not be taken away, except in specific situations and according to due
process. For example, the right to liberty may be restricted if a person is found guilty of a crime
by a court of law.
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Human Rights of Juveniles in detention
Children are to benefit from all the human rights guarantees available to adults
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. In addition,
the following rules shall be applied to children: Children who are detained shall be treated in a
manner which promotes their sense of dignity and worth, facilitates their reintegration into
society, reflects their best interests and takes their needs into account
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. Children shall not be
subjected to corporal punishment, capital punishment or life imprisonment without possibility
of release
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.Children who is detained shall be separated from adult prisoners. Accused juveniles
shall be separated from adults and brought for trial as speedily as possible
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.Special efforts shall
be made to allow detained children to receive visits from and correspond with family
members
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.The privacy of a detained child shall be respected, and complete and secure records
are to be maintained and kept confidential
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.Juveniles of compulsory school age have the right
to education and to vocational training
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.Weapons shall not be carried in institutions which hold
juveniles
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.Disciplinary procedures shall respect the childs dignity and be designed to instill in
the child a sense of justice, self-respect and respect for human rights
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.Parents are to be notified
of the admission, transfer, release, sickness, injury or death of a juvenile
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.
Damini Gange Rape Case vs Juvenile
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The trial of the juvenile, who was found to be involved in the gang rape and murder of a 23-
year-old woman in New Delhi in December, has brought the juvenile justice system in India
under the spotlight. The teenager was 17 at the time of his arrest. Trials of those aged under 18
fall into a special judicial area in India. They are handled by Juvenile Justice Boards, or
juvenile courts, which are supposed to provide care and guidance to the juvenile offenders
during their hearing and detention. The emphasis of juvenile detention is not supposed to be on
punishment but on rehabilitation. Under the Juvenile Justice (Care and Protection of
Children) Act 2000 the maximum sentence for a juvenile who has broken the law is three
years in a protective home, no matter how serious the crime. There is also provision for bail.
The custodial term usually begins from the date of the juvenile boards final order in a case.
But time spent awaiting a decision can be counted toward that term. The law defines a
juvenile or child as a person who has not completed their 18thyear of age.
The juvenile, who was 17 at the time of his arrest on charges of kidnapping, rape and murder.
He recently turned 18 but was tried as a juvenile because of his age when the crime took place.
He is the eldest of six children, three sisters and two brothers. His parents are agricultural
laborers and he left home 11-and-a-half years ago, moving from a village in the Badaun district
of Uttar Pradesh to New Delhi, according to The Indian Express newspaper, which interviewed
his mother after the juvenile was arrested. So he was only around 6 years old when he moved.
His family heard hed been working as a waiter in east Delhi but then lost touch with him, his
mother said. I thought he was dead, she told the newspaper. A police report following his
arrest said the juvenile was popular as a helper on buses because he was skillful at attracting
fares in a singsong way.
There was confusion about the exact age of the suspect following his arrest and uncertainty
about whether he should be tried in an adult court along with five other suspects, or as a
juvenile. Delhi police ordered that the juvenile suspect have a bone ossification test an
attempt to ascertain age through examination of bones to determine where he should be
tried. Although these tests cannot pinpoint age exactly, they are widely used in India where
many people dont know how old they are and where it is fairly easy to buy fake certificates.
However, the Juvenile Justice Board declared the suspect to be a minor based on his school
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enrolment records verified by his former school principal and a bone test was not carried out.
The juvenile pleaded not guilty to the charges against him during the Juvenile Justice Board
hearing. India raised its definition of a juvenile to 18 from 16 in 2000 under the Juvenile Justice
Act. Doing so was part of the nations obligations under the United Nations Convention on the
Rights of the Child, which it signed in 1992.
In 2000, India raised the juvenile age to 18 as part of its obligation under the United Nations
Convention on the Rights of the Child, which it signed in 1992. There were calls from some
in India to reduce the upper age limit for juveniles from 18 to 16, in light of the Delhi gang-
rape case in which a 17-year-old was accused of involvement. Campaigners for the reduction,
including many protestors who thronged the streets in the days following the Dec.16 incident,
argued that the maximum three-year sentence would be too lenient to fit the crimes in this case.
However child rights activist said that changing this section of the law in response to a public
outcry over a single case, would be a regressive step. A government-established committee
headed by Justice Verma a retired Supreme Court Justice, was asked to look at the issue in its
report recommending how to crack down on sexual assault and harassment and ensure victims
get speedy justice. It said that the juvenile age bracket should be maintained to comply with the
UN Convention.
In July, 2013 the Supreme Court dismissed eight petitions brought by the public asking them to
rule that crimes of rape and murder committed by juveniles should be tried and punished under
adult laws and that the upper age limit for juveniles be lowered to 16. The three-judge bench
said in its order that there are, of course, exceptions where a child in the age group of 16 to 18
may have developed criminal propensities, which would make it virtually impossible for him or
her to be reintegrated into mainstream society, but such examples are not of such proportions as
to warrant any change in thinking.But a subsequent petition currently being considered by
the top court submitted by politician Subramaniam Swamy, asks judges to consider the mental
and intellectual maturity of the defendant instead of his or her age in cases where a young
person is accused of involvement in a particularly serious crime. The Verma committee also
recommended in its report that all juvenile homes be placed under the legal guardianship of the
High Court and a panel of judges appointed to carry out spot inspections of the facilities to
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ensure children there are safe and well. It said that it was the duty of the state to provide free
education up to undergraduate level for all children in conflict with the law.
In March,2013 acting on the recommendations of the Verma report, the government passed
legislation strengthening sexual assault laws. The legislation included tougher punishments for
rape crimes and widened the definition of sexual assault to include offenses such as stalking
and voyeurism.
Analysis of the Court Verdict
The court in New Delhi has ruled that the juvenile accused in the gang rape and murder of a 23-
year-old woman on a moving bus in Delhi in mid-December, participated in the crime. The
Juvenile Justice Board in New Delhi handed down the verdict, the first in the gang rape case on
31 August 2013. The teenager was sentenced to three years in a special juvenile correction
facility.
The Juvenile Justice Act refers to juveniles with allegations proved against them as being in
conflict with the law rather than describing them as guilty. The four men accused in the case
and on trial in an adult court in South Delhi were sentenced with capital punishment on 13
Sep.2013. A fifth suspect, Ram Singh, was found dead in his cell at Tihar Jail in March.
International Perspective Regarding Age of Juvenile
In India, the criminal age of majority the age at which a person can be tried as an adult is 18
Year. But the brutality of the rape in December, just months before the teenager involved
turned 18, led to calls for the age limit for a juvenile to be lowered.
The Supreme Court has turned down eight petitions to this effect in recent months and is
considering an application from Subramanian Swamy, a politician, who asked judges to amend
the law so that mental and intellectual capability, rather than age, determines whether
someone should be tried as an adult. But people are demonstrating for brought down the age
limit up to 16. People think that if the age of a juvenile is lowered to 14, there would be nothing
wrong with that. There is need to review it. A committee formed by the government to
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recommend ways to improve laws to protect women advised against changing the upper age
limit for juveniles in India
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.
Gopal Subramanium, one of the members of that committee, told India Real Time that
juveniles may not always be completely responsible for their decisions. Mr. Subramanium said
If you were to follow the kind of schooling which you have in the Netherlands or in some of
the Scandinavian democracies, then you could bring the age limit down to 16 or 14, because
they are taught responsibility from a young age,. He added that the adult age in India has a
direct link to the Indian education system and with the social environment. The first special
legislation for juveniles in India was enacted in 1850 with the Apprentice Act; requiring
children aged 10 to 18 convicted in court to be given vocational training as part of their
rehabilitation.
The law relating to young people went through a number of changes until the first Juvenile
Justice Act, 1986, defined juveniles as under 16 for boys and under 18 for girls. This act was
criticized by human rights activists because it put children who had committed crime in
reformatories alongside those who were neglected and in need of care from the state.
In 2000, India raised its definition of a male juvenile to 18 from 16 under the Juvenile Justice
Act. Doing so was part of the nations obligations under the United Nations Convention on the
Rights of the Child, which it signed in 1992.
Other signatories, including the U.S. and the U.K., also fixed the upper age for minors at 18.
But, unlike India, criminal law in both countries provides room for minors to be tried as adults.
In the U.S., prosecutors can appeal to court requesting the case of a minor be moved from a
juvenile court to an adult one, according to a report by the U.S. Department of Justice. Judges
in a juvenile court also have the power to rule that a minor be tried as an adult. In cases where
the offense is grave, such as rape or murder, criminal courts where adults are tried can
independently call for jurisdiction over the matter.
In the U.K., those charged with crimes while aged between 10 and 17 are tried in juvenile
courts. Over 18s are treated as adults, but until they are 25 they serve their sentences in
facilities for 18-25 year olds, rather than full adult prisons. In cases where a crime is too serious
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to be dealt with in the juvenile justice system, or because the child is accused alongside adult
co-defendants, the trial can be transferred to adult courts in the U.K. Activists have also
criticized Indias juvenile laws for being too lenient. The maximum punishment under the law,
even for offenses such as rape and murder, is three years confinement in a reformatory. In
comparison, the maximum punishment for minors in the U.K. and the U.S. is life
imprisonment.
Until 2005, minors could also be sentenced to death in the U.S. According to Penal Reform
International, a London-based non-governmental organization seeking changes to the prison
system worldwide, research from the U.S. has suggested that transferring children to adult
courts results in high rates of pretrial detention, harsher sentences, placement of children in
adult facilities and overall increased rates of reoffending. In the Philippines, offenders up to the
age of 21 are given more lenient custodial sentences.
In Germany, those over 18 but under 21 can be transferred from adult to youth courts. In India,
offenders can remain in youth reformatories after they have reached adulthood. At the other
end of the scale, the minimum age of criminal responsibility in India, the age at which children
may be held criminally responsible for alleged crimes, is seven. This is one of the youngest
worldwide. According to PRIs 2013 report on justice for children, Jordan, Lebanon, and
Yemen also set criminal responsibility at seven. In Pakistan, the minimum age is 12. The Indian
Penal Code allows room for children up to 12 years old to be considered incapable of forming
the intent to commit a crime. Those younger than this must still be held responsible for their
actions, but in a non-punitive, welfare and education oriented manner, according to a Unicef
report in 2005.
The UNICEF report 2005 said that South Asia has the lowest regional average minimum age of
criminal responsibility in the world, at seven years old. In the Americas and the Caribbean, the
average age for children to be held criminally responsible for their actions is 11, while in
Western Europe it is 13 and in the Middle East and Northern Africa it is nine. UNICEF has
called for the minimum age to be 13 worldwide. It says the same age must apply regardless of
the seriousness of the offense.
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In the Delhi gang rape case the Supreme Court
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refused to reduce the age of juvenile from 18
to 16 years and dismissed a plea that minors involved in heinous crimes should not be protected
under the law. A bench headed by Chief Justice Altamas Kabir said that interference in
Juvenile Justice Act is not necessary and dismissed all the PILs which were filed in the
aftermath of the December 16 brutal gang rape and murder case in which a minor was also
allegedly involved. "We uphold the provisions of the Act... Interference in the law is not
necessary," the bench said while reading out operative part of its judgment. One PIL was filed
in the apex court had sought examination of the constitutional validity of the provision defining
juvenile in the Juvenile Justice (Care and Protection of Children) Act, 2000, which treats a
person as a minor till he attains the age of 18 years. The petition had contended that sections
2(k), 10 and 17 of the Act which deal with the issue were irrational and ultra-vires of the
Constitution. The petitions had also submitted that the Act needs amendment as it does not talk
about the physical or mental maturity of a juvenile. Another petition had sought appointment of
a criminal psychologist to determine through clinical and medical examination if the juvenile
accused in a case would be a threat to the society.
Conclusion
After the Delhi Gang rape case the age of the juvenile and their human rights came into light.
Several petitions were filed for reducing the age of juvenile but the Supreme Court did not pass
any order for this and uphold the age of juvenile as 18 Years. But the age of the juvenile
should be lowered because these days, young people grow up much faster. It is also consider
the mental and intellectual maturity of a defendant, instead of his or her age in the case of
young people involved in very serious crimes when the question arise related to rape and
heinous crimes. We should not take the excuse that if the age of juvenile is reduced than it will
be violation of the human rights of juveniles. We can adopt the same policy as U.K. and U.S.
has adopted in the case of Juveniles. Our government had passed legislation for strengthening
the sexual assault laws, on the recommendation of the Verma report. The legislation included
tougher punishments for rape crimes and widened the definition of sexual assault to include
offenses such as stalking and voyeurism but the age of juvenile is the same i.e. 18 year for male
it is required to be reformed.
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References

1
http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx
2
UDHR, article 1 and article 25, para. 2; CRC, preamble; ICCPR, preamble.
3
CRC, articles 3 and 37; United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules) [hereinafter Beijing Rules],
rules 1, 5 and 6; United Nations Rules for the Protection of Juveniles Deprived of their
Liberty [hereinafter Rules for Juveniles], rules 1, 4, 14, 31, 79 and 80.
4
CRC, article 37 (a); Beijing Rules, rule 27; Rules for Juveniles, rules 64, 66 and 67.
5
ICCPR, article 10, para. 2 (b); CRC, article 37 (c); Beijing Rules, rules 13.4 and 26.3;
Rules for Juveniles, rule 29.
6
CRC, articles 9, 10 and 37 (c); Beijing Rules, rules 13.3, 26.5 and 27.2; SMR, rule 37;
Rules for Juveniles, rule 59.
7
CRC, article 40, para. 2 (b) (vii); Beijing Rules, rule 21.1.
8
ICESCR, article 13; CRC, article 28; Rules for Juveniles, rules 38 and 42
9
Rules for Juveniles, rule 65.
10
Rules for Juveniles, rule 66.
11
CRC, article 37 (c) and article 40, para. 2 (b) (ii); Beijing Rules, rules 10.1 and 26.5;
SMR, rules 37 and 44; Rules for Juveniles, rules 56 and 57.
12
http://blogs.wsj.com/indiarealtime/2013/09/04/juvenile-justice-an-international-
perspective/
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http://indiatoday.intoday.in/story/delhi-gangrape-supreme-court-refuses-to-reduce-age-
of-juvenile-from-18-to-16-years/1/291721.html