PROMOTION AND PROTECTION OF CHILD RIGHTS

(A Study With Reference to the Role of Child Welfare Committees in Andhra

Pradesh under theJuvenile Justice [Care &Protection of Children] Act, 2000)

THESIS SUBMITTED TO THE ACHARYA NAGARJUNA UNIVERSITY

FOR THE AWARD OF THE DEGREE OF
DOCTOR OF PHILOSOPHY
INLAW

NUTAKKISATEESH, LL.M.,
SOSaBl
RESEARCH DIRECTOR

Prof. A. SUBRAHMANYAM, M.L., PkD.

REGISTRAR,

A.P. UNIVERSITY OF LAW

ACHARYA NAGARJUNA UNIVERSITY

NAGARJUNA NAGAR-522510

ANDHRA PRADESH, INDIA

MAY, 2011
 CHAPTER-1

INTRODUCTION
 1.1 Introduction

Children in India, because of their sheer numbers, ought to have been the subject
of prime focus of development planning, research, and welfare in India but it has not
been so. Despite the constitution’s vision of a healthy and happy child—protected
against abuse and exploitation, and a National Policy for Children—the majority of
children in India continue to live without a childhood. The juvenile justice system
(hereafter referred to as JJS), as conceived by legislation, aims at providing care,
protection, treatment development, and rehabilitation of delinquent and neglected
juveniles. But the care and services provided to them have been criticized as being
insufficient and sub-standard.
The concept of juvenile justice was derived from a belief that the problems of
juvenile delinquency and youth in abnormal situations are not amenable to resolution
within the framework of the traditional processes of criminal law. The JJS, therefore,
is not designed to respond to the needs of young offenders only. One principal role of
the JJS has been to provide specialized and preventive treatment services for children
and young persons as means of ‘secondary prevention’, rehabilitation, and improved
socialization.1 During the Seventh UN Congress on the Prevention of Crime and the
Treatment of Offenders, three approaches to juvenile justice were identified,2 namely,
the due process model, the welfare or parens patriae model, and the participatory
model. The due process model places justice for juvenile in the protection of
substantive and procedural rights of young persons involved with legal processes. The
welfare or parens patriae model considers juvenile justice primarily in terms of
interventions that foster the economic and social well-being of young persons in
contact with the legal system. And the participatory model views juvenile justice as
requiring the active participation of the community in containing the harmful behavior
of young persons, the integration of marginalized youth or young offenders into the
mainstream of social life, and the minimization of formal legal intervention.

1.‘Juvenile Justice: Before and After the Onset of Delinquency’, working paper prepared by the Secretariat, Sixth
UN Congress on the Prevention of crime and the Treatment of Offenders, Caracas, Venezuela, p. 6 (25 August to 5
September 1980), ACONE.87/5,4 June 1980.
2. (‘Youth Crime and Justice’, working paper prepared by the Secretariat, Seventh Un Congress on the Prevention
of Crime and the Treatment of Offenders, Milan, Italy, 6 (26 August to 6 September 1985) A/CONF. 122/7, 17
April 1986,)

2
 Subsequent analyses have shown that juvenile justice models in different countries
have combined the characteristics of these models to evolve models to suit their own
needs. Winterdyk, after comparing the general features, key personnel, key agencies,
tasks, understanding of client behavior, purpose of intervention, and objectives of the
JJS of many countries, has draw the continuum of six juvenile justice models, namely,
participatory, welfare, corporatism, modified justice, justice, and crime control. Like
most of the other juvenile justice systems, the JJS in India too cannot be described
entirely in terms of one of these models but rather in terms of a combination of them,
with features from the welfare, modified justice, justice and crime control models. As
in the crime control and justice models, the law in relation to delinquent children in
India focuses on their criminal offences; and police, lawyers, and judges are the prime
actors. There is possibility of punishment also, even though only in exceptional
circumstances. For children in need of care, the law is closer to the welfare and
modified justice models, the law in relation to delinquent focuses on their criminal
offences; and police, lawyers, and judges are the prime actors. There is possibility of
punishment also, even though only in exceptional circumstances. For children in need
of care, the law is closer to the welfare and modified justice models, allowing
comparatively more but not complete informality in processes, doing away with
lawyers and judicial officers and involving childcare experts focusing on their
development, growth, and social reintegration.

It may be remembered that the JJS is one of the several measures taken by the
state to attain the vision of the Constitution of India relating to the care and welfare of
children. The Constitution recognizes the special status of children through Articles
15(3), 24,39(e) and (f), and 45. India’s National policy for Children, adopted in 1974,
also declares that children are a supremely important national asset. In pursuance of
the constitutional directions, various laws have been enacted which cover a wide
range of matters relating to children, for example, adoption, maintenance,
guardianship, legitimacy, labor education, anti-smoke, delinquency, neglect, flesh-
trade, and so on. Since the survey conducted in 1979 by the Indian law Institute,
counting more than 250 state and central enactments relating to children, some more
statutes have been passed, prominent among them being the Child Labor (Prohibition
and Regulation) Act 1985, the Juvenile Justice Act 1986 (hereafter referred to as JJA),
and the Juvenile Justice (Care and Protection) Act 2000 (hereafter referred to as JJ
3
 (C&P) Act). The latter has become the sole repository of juvenile justice in the whole
of India, except the state of Jammu and Kashmir, since its enforcement on 1 April
2001. The JJ (C&P) Act, brings a child found in conditions of economic and social
deprivation within its protective jurisdiction. The Act also makes provision for great
participation the community in the operations of the community in the operations of
the JJS.

The term ‘juvenile justice’ has been given different meanings in different contexts.
It has been variously used to refer top the juvenile court, the institutional linchpin of
the innovation, and to a stream of affiliated institutions that carry responsibilities for
control and rehabilitation of the young, including the police, the juvenile court itself,
prosecuting and defence attorneys, juvenile detention centres, and juvenile
correctional facilities.3In its wider perspective it includes provisions for the welfare
and well-being of all children in need of care and protection, while the formal system
ofjuvenile justice actually deals with those who are already in conflict with law or are
likely to be so, for various reasons. Its also implies fairness and justice towards
juveniles in the political, social, and economic spheres. In criminological literature,
juvenile justice connotes justice to the delinquent or near-delinquent child in various
stages of the formal process such as arrest and apprehension adjudication, sentencing,
custodial care and detention, and aftercare. The term ‘juvenile justice’ was sought to
be clarified for the sixth UN Congress on the Prevention of Crime and the Treatment
of Offenders in view of the different interpretations made of it during the preparatory
meetings. The working paper stated that:

Juvenile justice after the onset of delinquency referred to justice in its normal
juridical sense and that juvenile justice before the onset of delinquency referred of
social justice. Thus, the concept of social justices was to be seen as relevant to the
development of children and young persons generally and to endangered children
particularly, while the concept of juvenile justice applied to accused or adjudicated
young offenders. The two were closely related but could be separated for purposes of
discussion and training.

3.S.P. Srivastava, Juvenile Justice in India programme and Perspectives, 4 (1989)

4
 The term Juvenile Justice is, therefore, used to refer to social as well as juridical
justice. India seeks to provide social and juridical justice to neglected and delinquent
children through the use of code, constable, court, and residential institutions for both
categories of children, those committing an offence and others living in circumstances
likely to lead them into a life of crime. The legislation incorporating the JJS has been
making provisions for the care, protection, treatment, development, and rehabilitation
of neglected or delinquent juveniles, and for the adjudication of certain matters
relating to and disposition of delinquent juveniles. Their provisions govern the
relationship between children and the police, adjudicatory bodies, correctional homes,
probation services, community participation and after care programmes.
There is extensive literature on the various theories of causation of crime by children,4
but few on the state’s response in the handling, control, and rehabilitation of children
committing or likely to commit crimes unless cared for.5 The classical theory of free
will has long been discarded in favour of the deterministic approaches of the positive
school, which after its initial misadventures with biological determinism focused on
social and economic factors.6 Studies of juvenile justice systems show that children
committing crimes, as well as others taken charge of in order to prevent the
commission of crimes, are not being given the promised care. Special police units for
juvenile or special training to police for dealing with neglected and delinquent
juvenile are an exception. Juvenile courts and juvenile welfare boards have not been
constituted in each district and their powers are exercised by specified magistrates
without any special training in child psychology or child welfare. A majority of
children are unhappy in the institutions and the casework services are inadequate in

4. K.a. Shukla, ‘Juvenile Delinquency in India: Research Trends and Priorities’, mimeo 1983.
5.See, S.N. Reddy, Institutionalized Children, 1989; N.L. Mitra, Juvenile Delinquency and Indian Justice System,
1989; C. Sarkar, Juvenile Delinquency in India: An Etiologicval Analysis, 1987; S.V. Kaldate, Society Delinquent
and Juvenile Court, 1982; Ved Kumari, Rehabilitation process in Juvenile Correctional Institutions A Study in
Delhi, Unpublished LL. M. Deissertation, University of Delhi, 1981, M.S. Bedi, Socially Handicapped Children—
A Study of their Institutional Services. 1978; S.K. Mukherjee, Administration of Juvenile Correctional
Institutions—A Comparative Study in Delhi and Maharashtra, 1974; Impact of Institutions on Non-Delinquent
Children, Indian Council of Social Welfare, 1973; S.D. Gokhale (ed:), Impact of Institutions on Juvenile
Delinquents, 1969; Report of the Seminar on Role of Police in Juvenile Delinquency, 1965.
6. See, Meda Chesney-lind and Randall G. Sheldon, Girls, Delinquency and Juvenile Justice, 2nd ed., 1997;
Ahmad Siddique, Criminology Problems and perspectives, 3rd ed., 1993; Chris Cunnen et al., Juvenile Justice—

Juvenile Justice—An Australian Perspective, 1995.

5
terms of diagnosis, counseling, and planning of rehabilitation. Many institutions have
no vocational training programmes. Correctional institutions do not equip children
with the necessary skills to take care of themselves after discharge. The main
socialization agents, the caretakers, are the lowest paid, least qualified, and at times
even ill-informed about the needs of the institutionalized children. Coordination
among various departments exists primarily because of administrative necessities
rather than as a necessary element of efficient functioning. A majority of the juveniles
do not get a job in the particular trade in which they are trained during their
institutionalization—either due to inadequate training or because they are not
interested in that type of job owing to poor salaries. Due attention has not been given
to the development of preventive measures—like assistance to families in trouble—
which is one of the major contributory factors leading to delinquency and
maladjustment among children. Very few after-care services are available. Despite a
statutory provision to the contrary, children are not always released on bail, even in
case of bail able offences, by some juvenile courts.

An important contributory factor for the malfunctioning of the functionaries is the

lack of autonomy. The conditions of actual functioning of the components are
predetermined by legislative and executive policy along with historical developments
judicial decisions, and data research feedback relating to juveniles in difficult
circumstances. The present study focuses primarily on this critical aspect of decision­
making relating to the JJS in India.

A systemic approach to juvenile justice requires that each of its components has a
dear understanding of the objectives of the system and they all take coordinated
actions for achieving them. The care, protection, treatment, development, and
rehabilitation needs of children cannot be ensured by any one without support from
other components. The police is the prime, and usually the first, state agency to come
in contact with neglected and delinquent children. Its approach sets the course of the
children’s response to and trust in the other state instrumentalities. A penal reception
by the police does not augur well for creation of a mutual relationship of faith and.
warmth between the children and the state machinery claiming to be working for their
care and protection. At the same time, a relationship of trust created by the police may
be destroyed if an equally sympathetic and understanding judiciary does not reinforce
6
 it. The most efficient and committed adjudicatory bodies cannot protect the best
interests of the juveniles without adequate casework services, and institutional and
community care agencies. As the best interests of the juveniles cannot be secured
without adequate community support structures, their integration in the juvenile
justice operations becomes a precondition for success. The aim of rehabilitation
cannot be fulfilled, despite appropriate training programmes, unless coupled with
after-care backup. Similarly, an exhaustive after-care pragramme can achieve little if
the environment or training facilities in the institutions are not conductive for
children’s development and rehabilitation. Basic data relating to children in difficult
conditions and evaluative research feedback on the existing services are the pre­
conditions for a comprehensive policy and its evolution.

However, empirical evidence shows that the leading agents of the legal system
do not even have knowledge of the laws, let alone about awareness of the conditions
of children, their plight, or needs. Community participation is limited to rhetoric
rather than to being concerned about implementation. Substantive as well as statistical
information is lacking about the type, quality, and availability of services vis-a-vis the
demands of juvenile justice. Also, policy-making is not sufficiently influenced by the
existing information, limited though it is.

It is the basis premise of the present study that piecemeal and fragmented
measures taken for the care and welfare of delinquent and neglected juveniles are
bound to malfunction in the absence of a holistic approach to the problem of juvenile
social maladjustment. Do the various measures taken in the realm of juvenile justice
in India constitute a cohesive combination of inter related, inter-dependent elements
forming a collective entity? If not, what are the causes for this state of affairs? What
are the ways for transforming a conglomeration of various juvenile justice organs into
a JJS?

It is difficult to find answers to all these questions in a micro-level study of one or

the other agency involved in juvenile justice. Hence, this work attempts a macro-level
examination of the historical, legislative, executive, and judicial process relating to
juvenile justice in India to see if their contents can reveal the elements that set the
tenor and pace of its growth. Apparently, such a macro-level study excludes the vast
7
 variations situation specially in a country like India with vast variations in the social,
economic, and cultural scenario in different states. This study also does not aim to
focus on the causes of child criminality or destitution. This study takes off from the
given scenario of a majority of children in India being in a situation of want. It
examines the state’s response within the realm of law in depth though it does contain
references to other measures taken by the state to meet the challenges presented by
such children. The present study aims, in general, to identify the parameters and
constraints of the JJS in India and specifically to:
- bring to light the vision and commitment of the policy makers of the JJS,
- describe the nature, scope, and structure of the juvenile justice in India,
- analyse the strengths and weaknesses of the existing , legislation for evolving a
comprehensive and integrated JJS,
- examine the statistics relating to implementation of the legislation to find out
the direction, rate, and lacunae in the growth of the JJS, and
- identify the areas of fragmentation in the JJS.

1.2 Statement of the Problem and Need for the Study

Children are extraordinary important asset for any country more so in India. It has
been estimated that these about 42 per cent children in the total population in India for
various reasons children are neglected and have become vulnerable. Poverty, neglect,
ill-treatment, and family discord are forcing an increasing number of children to run
away from home and take shelter on the streets. The government of India has mentioned
the number of children living on the streets as 50 lakh in 1998. Earlier studies had put
the number of floating street children at 3.8 crore, others estimated it to be 5 crore.

No studies have been conducted on the forms of victimization of children or children

or their numbers. However there is enough evidence to show that children are subjected
to violence, abuse, and neglect by society, by employers, and even by their own parents.
According to Asha Das, joint secretary in the ministry of welfare, Government of India,
in 1990, at least one-third of the 27.2crore child population (1981 census) needed
critical intervention to prevent them from falling prey to various forms of delinquency,

7. The Times of India, 7 June 1990, Metro II, cols 2—3.

8
 abuse, and abandonment. A 1991 survey in six metropolitan cities of India indicated
that the population of women and child victims of commercial sexual exploitation
would be between 70,000 and one lakh. It also revealed that about 30 per cent of them
were below 18 years of age and nearly 40 per cent of them were inducted when they
less than 18 years of age.8

Like wise other problems relating to children include malnutrition and exploitation
of children in the term of child labour. India has the largest number of working children
in world. According to the 1981 censes, there were 1.45 crore child workers, that is, 5.5
per cent of the total population. The participation rate in the rural areas was 6.3 per cent
and 2.5 per cent in the urban areas. It was estimated that in rural areas children worked,
on an average, 211 days a year while men and women worked 277 and 156 days
respectively. Estimates of the number of child laborers vary, depending on what is
classified as child labour. The government of India furnished the following statistics to
the UN Committee on Rights of the Child.

Available data on employment of children indicated a shift from the organized to the
unarranged and self-employment sectors. They were mostly employed in small
plantations, way-side restaurants and small hotels, cotton ginning and weaving, carpet
weaving, match making, stone breaking, brick kilns, handy crafts, and automobile and
metal workshops.

The working conditions for child laborers are usually harsh. For example, it was
found that about 45,000 children between the ages of 3.5 and 15 years work almost
twelve hours a day in the match and fire works industries with hazardous chemicals in
cramped environments with inadequate ventilation. In the bidi (leaf cigarette) industry,
children, between 8 and 12 years, of age, and some times even those between 5 and 8
years, put in long hours and often contract chronic bronchitis and tuberculosis. This was
due, among other hazards, to the system of piece-rate compensation, making the
children work at a feverish pace to increase their earnings.9 Children from poor families

8. Report of the Committee on Prostitution, Child Prostitutes and Children of Prostitutes and plan of action to combat
trafficking and commercial sexual exploitation of women and Children, Department of Women and child
development, Ministry of Human Resource Development, Government of India, 1998, p.4
9. The Times of India, 16lh July 1992, Capital 1, cols 2—4.

9
 are compelled to join the labor force because of the need to supplement the family
income. About 30 per cent of India’s population lives below the poverty line. No
authentic data is available on the number of destitute children in the country. One
estimate had put the figure at 72.2 lakh and another at 11.51akh for destitute orphans. 10A
study carried out by the Child in Need Institute, of 700 destitute children living in the
sealdah station in West Bengal revealed that 90 per cent girls and 25 per cent boys were
sexually abused while all of them were physically assaulted by various ‘customers’ who
hung around the platforms on a regular basis. Drug addiction among the street and
working children is on the increase, which turns them in to compulsive criminals to pay
for their expensive vice. According to estimate, in 1988 Delhi had at least 1000 child
drug addicts who indulged in picking pockets and petty thefts.*11

Crimes by Children

The figures relating to crimes by children are more systematic than those relating to
children in other difficulty circumstances but the state of crime statistics, in general, is
problematic. There is only one source of information on the national crime rate, and by
the official publishing agency’s own admission, the data supplied to it by ‘most of the
states/Union Territories/Cities still fail to satisfy various consistency checks described
by us’. In addition, the publication gap of about 5 years, though now reduced to two
years, makes the data out dated for futuristic policy making. The latest crime figures
available relate to the yearl999. Crime in India published National crime Research
Bureau contains a chapter on juvenile delinquency but the data available therein are
limited in various respects. The official figures do not include the hidden figure of
crime and cannot depict the true picture of child delinquency in India. Further, though
the data notices the increasing or decreasing trends, it offers no possible explanations. It
may also be noted that these figures will not give a clear picture of the pattern of
offences by children up to the age of 18 who are now covered under the JJ (C&P) act
What is most important to notice is that though the figures given there are presented

10. M. Khandekar, ‘Residential Child Care: Some Conceptual Organizational Issues’, in Alfred de Souza
(ed.),Children in India: Critical Issues in Human Development, 1979, p. 183.
11. Sukhmani Singh, ‘Catching them young’, Indian Express, Express Weekend 23rd April 1988, p. 1, cols 1—8.

10
 under the heading ‘juvenile delinquency’, in fact these relate to children arrested and is
not reflective of the number of children found to have committed various offences.
Anyway, the official figures are the only ones available on an all-India basis and are
expected to be at least indicative of the pattern of child delinquency in India. The
following pages present patterns of child delinquency in India between 1989 and 1999
as given in crime in India 1999.

The total cognizable crimes committed by children show a consistent decline in the
period 1989-94 with a wave- like increase, decrease, and increase during the latter 5
years. There are no explanations available for the changes. A total of 8888 case were
registered against under the Indian Penal Code (IPC) juveniles during 1999, showing a
decline of 5 per cent of such cases over 1998. The crime heads showing significant
decline were: kidnapping and abduction (45.8 per cent), dowry deaths (32.5 per cent)
decline of 5 per cent of such cases over 1998. The crime heads showing significant
decline were: kidnapping and abduction (45.8 per cent), dowry deaths (32.5 per cent)
criminal breach of trust (31.6 per cent), dacoity (28.6 per cent), sexual harassment (27
per cent), and rape (20.1 per cent). On the other hand, considerable increase is
noticeable in case of arson (66.7 per cent) and robbery (30.8 per cent).

The per cent ofjuvenile delinquency (up to twenty-one year of age) to over all crime
was within the range of 3.2 per cent to 4.4 per cent during 1976-87. With the exclusion
of offences by boys above sixteen years and girls above 18 in the juvenile delinquency
figures in 1988, the percentage of delinquency contribution to total crime got reduced to
a mere 1.7 percent. The share children of offences committed by children to the total
IPC Crimes reported in the country as shown a declining trend ever since, not
withstanding the fact that there is an appreciable increase in the population of the
country from 1.2 per cent during 1989, the share of juvenile crimes steadily gone the
forest down. Recorded the lowest at 0.5 per cent during 1994 but increased marginally
to 0.6 per cent during 1995 and 1996. It again went down to 0.5 percent during 1997-9.
The rate of arrest of children in the last decade has been constantly going down from
2.5 per cent in 1989 to 0.9 in 1999.

Crime against property— that is dacoity, robbery, burglary, theft and criminal breach
of trust- accounts for more than 40 per cent of total cognizable offences by children
11
 under IPC theft(2172), hurt (1472) and burglary (1344) constituted 56.1per cent of total
arrests of children for IPC crimes.

A total of 5569 cases ofjuvenile delinquency were reported under special and local
laws (SLL) during 1999 as against 6007 cases in 1998, thereby registering a decline of
7.3 per cent in 1999 over 1998 .The cases registered under the following acts declined
drastically Immoral Traffic Prevention Act (67.0 percent) Gambling Act (59.2 percent),
Prohibition Act (44.2 per cent), and Excise Act (39.0 percent), Crime in India 1999
summarized that the cases registered under the Forest Act increased from five cases
reported in 1998 to seventy- three cases inl999, showing a 1360 per cent increase in
1999. Similar to the Forest Act, the cases registered under Indian Railways Act, during
1999, showed a phenomenal raise of 600 per cent. It is Important to keep track of the
actual numbers involve in each case as the percentages may mislead one to believe huge
valuations in terms of percentages while the actual numbers remain small. For
example, the increase in the case of the Forest Act was from 5 to 73 children and in case
of the Railways Act, was from 15 to 105.

1.3 Review of Literature and Research Studies

In view of growing number of crimes committed by children there is need for the
importance of Juvenile Justice Act in a perfect manner that the rights of children are
protected and promoted. Due to these complexities of Urbanization and Globalization
Juvenile Delinquency is increasing, it is highly necessary to see the juveniles as the
victims of Globalization and Urbanization and proper care of these children is taken. To
fulfill this objective it is necessary embark upon empirical research so that actual
working of Juvenile Justice Act can be evaluated. Review of literature has shown that
much of the studies are on National and International situation of the children and
analysis of legislation. The empirical studies on the actual working of Juvenile Justice
Act have not been done particularly in the state of Andhra Pradesh. Hence, it is felt that
there is a need to study the actual working of Child Welfare Committee in the state of
Andhra Pradesh, so that appropriate suggestions can be made to the government for the
betterment of Child Welfare Committees.

12
 1.4 Objectives of the Study
• To analyse the constitutional and legislative safeguards concerning juveniles.
• To evaluate the Juvenile Justice Act and its implementation.
• To study the judicial response towards juveniles.
• To study the functionary of Child Welfare Committees in the state of Andhra
Pradesh.
• To know the status and ascertain reasons for the current status of functioning of
Child Welfare Committees.
• To identify gaps and challenges in implementing JJS from the view points of
Child Welfare Committees and suggest possible solutions.
• To suggest recommendations for the strengthening of JJ System based on
findings and experiences of Child Welfare Committees and Non-Governmental
Organizations

1.5 Scope of the Study

The study is Doctrinnare and Non-doctrinnare. The study is confine to analysis of

National laws and Supreme Court decisions. On the empirical part of the study focuses
are the status and working of Child Welfare Committees only in the state of Andhra
Pradesh.

1.6 Operational Definitions

A survey of the various existing laws, laying down differential provisions for
children, specifies different ages. Table 1.1 shows the ages specified in various laws
dealing with children. The choice of the cut-off age seems to depend on the range of
law, polity, and administrative considerations and presupposes coincidence of physical
and mental maturity. For example, for labor practices physical growth in terms of body
strength and endurance for a specific kind of work should be the primary determinant.
For criminal law purposes, however, the mental ability of the person to understand the
nature and consequence of one’s activities is more important. In relation to the Child
Marriage Restraint Act, the cut-off age for marriage was 14 and 16 years for girls and
boys, respectively, ini929. It was increased to 15 and 18 years in 1949 and then to 18 to

13
 21 years in 1978 due to change in the policy. A working group appointed by the
department of social welfare, Government of India, in 1974, discussed the question of
standardization of the definition of child. It concluded that it was not possible to do so
for all purposes, though it might be possible to have uniformity of age in particulars
fields for certain specific purposes.

Table 1.1 shows that the cut-off ages do not take social environment, class, or caste
background in to account. They do, interestingly, take the gender dimension in to
account. The Children Act, 1960 introduced the sex-based definition of child in the
realm of juvenile justice in India for the first time. Sixteen years was considered to be
the right cut-off age for the purpose of the juvenile justice in the light of what had been
done in other countries the minister introducing the Children Act, 1960 justified the age
of 18 years for girls saying that ‘by our experience in Bombay and other places we have
found that though they attain puberty and maturity earlier, due to our social conditions
they require protection for a longer period.’ The statement was unsupported by any data
or research for presenting an intelligible criterion for differentiating 16 to 18 year old
girls from 16 to 18 year old boys. It gave no rational for selection of sixteen as the
appropriate cut-off age for boys. JJA adopted a similar sex-based definition of juvenile
without any further explanation. The existing data relating to children in India was in
sufficient to justify limiting the scope of the JJS to children below the age of sixteen
only, or for excluding boys of 16 to 18 years of age from its protective regime. In the
- absence of such data, the definition child under the JJA was unfavorable, non-benign,
sex-based discrimination and violative of the Constitutional principle prohibiting
discrimination on the basis of sex.

The Juvenile Justice System in India, as operationalized by the Juvenile Justice Act,
protected delinquent children in many ways. They could not be sentenced through
death, or imprisoned, even in case of default of payment of fine or furnishing surety.

S.No Legislation/Law Age Specified (in ye*

Arms Act 1959 16
Apprentices Act 1850 (Rep) 10-15
Constitution of India

14
 1. Articles 24,45 14
2. Articles 15,39(e) and (f), 350A not specified
Child Labour
1. Plantation Labour Act 1951 12
2. Employment of Children Act 1938 15
3. Factories Act 1948 14
Child Marriage
1. Child Marriage Restraint Act 1929 18 for girls, 21 for boys
2. Option of puberty under Muslim Law 15-18
Children Act 1960 16 for boys, 18 for girls
Guardianship
1. Guardians and Wards Act 1890 18/21
2. Hindu Minority and Guardianship Act 1956 18
3- Section 125, Code of Criminal Procedure 1973 18
4. Hindu Adoption and Maintenance Act 1956 15
Indian Contract Act 1872 18
Indian Majority Act 1875 18
Indian Penal Code 1860
1. Section 82 Below 7
2. Section 83 7-12
3. Section 361 16 for boys, 18 for girls
4. Section 363- A, 372, 373 18
5. Section 375— consent Under 16 girls
6. Exception to Section 375—Rape of wife Under 12 and 12—15
7. Immoral Traffic Prevention Act 1956 16 for girls
Juvenile Justice Act 1986 16 for boys, 18 for girls
Juvenile Justic (C&P) Act, 2000 18
Primaiy Education Acts 6-11
Reformatory Schools Act 1897 Below 15
Various state Children Act, (Repealed) 14-18

No information revealing the identity of the child was permitted unless it was
in their interest. It also provided for removal of disqualification attaching to conviction
15
 for an offence. The state governments were under obligation to provide for residential
and non-residential measures and facilities for their all-round growth development.
Delinquent children were subjected to protective treatment instead of being held
responsible for their physical and mental immaturity. The sex-based definition of
juvenile, however denied these measures to boys in the age group of 16 to 18. A child
was not presumed to be mature enough to take decisions till the age of 18 years
according to legislations such as the Indian Majority Act, and the Indian Contract Act.
Therefore, a cogent explanation based on scientific data was needed to support the
presumption that delinquent children attain sufficient maturity earlier (at the age of 16
years) as compared to non-delinquent boys of the same age, and ought to be held
responsible for their actions. The statement of the minister, quoted above, gave no
rationale for selection of 16 as the appropriate cut-age for boys. No data or research was
referred to provide an intelligible criteria for differentiating girls from boys in the same
age group of 16 to 18, or to differentiate boys below 16 years of age from those above
16 years of age.

Other legislations dealing with guardianship and maintenance of children had

provided the cut-off age for both boys and girls. No explanation was available for
exclusion for similar obligation under the juvenile justice legislation to boys of 16 to 18
years of age while retaining in the case of girls. The cut-off age for culpability under the
penal laws had been fixed much lower at 7 and 12 years and could not be said have
influenced the choice for juvenile justice purposes. One possible explanation for
choosing 16 years as the cut-off age in the Children Act 1960 may be historical—the
earlier Children Bill of 1953 defined children as persons below 16 years of age. The
Bombay Children Act 1948 prescribing sixteen year as the cut-off age might have
influenced the choice because it was considered to be the model legislation at that time.

Neither the statement of the minister nor the historical background of the choice of
16 years threw any light on the criteria for differentiating between boys below and
above sixteen years of age. The choice varied from the presupposition of coincidence of
physical and mental maturity at the age of 18 years in various other legislations. As this
choice denied the benefits of the Juvenile Justice System to boys between 16 and 18
years of age without any rational criteria for doing so, it resulted in discriminatory
treatment being meted out to the boys—contrary to the constitutional guarantee of equal
16
 protection of law. Cogent and scientific data was needed to support the proposition that
delinquent boys attained sufficient maturity at the age of 16 years to be held responsible
for their actions.

The definition extending the benefits of the JJS to girls for two more years was also
difficult to justify as a protective legislation for women in the case of neglected girls
between 16 and 18 years of age. The JJA was not a penal legislation in the sense of
imposing punishment on children for their actions. In its operation, however, the
promised care, protection, and opportunities for development and rehabilitation were
provided through institutionalization of children. It is well recognized that
institutionalization, even if for protective purposes, does result in curtailment of
freedom. The JJA definition of child allowed such curtailment of liberty of neglected
girls between 16 and 18 years of age while leaving free similarly situated boys of the
same age.

In the absence of separate data on boys and girls in the age group of 16 to 18 years,
there was little to distinguish them except their sex. Sex alone did not justify differential
treatment unless covered under Article 15(3) of the Constitution Institutionalization of
girls could hardly be describe as favourable to women and reflected only a patriarchal
approach by subjecting women to greater control and regulation.

The JJ (C&P) Act has now modified the age to 18 not because of such perceived
unconstitutionality in the definition but to bring it in accordance with the definition of
child in the UN Convention on the Rights of the Child.

1.6.1 Legal Definition of juvenile or child

According to the Juvenile Justice (Care and Protection of Children) Act, 2000 Section
2(k) defines that “juvenile” or “child” means a person who has not completed eighteen
year of age.

1.6.2 Juvenile in Conflict with Law

Juvenile Justice (Care and Protection of Children) Act, 2000 Section 2(1) defines that
“juvenile in conflict with law” means a juvenile who is alleged to have committed an
offence.
17
1.6.3 Juvenile Justice Board
According to the Juvenile Justice (Care and Protection) Act, 2000 Section 4 defines
Juvenile Justice Board—Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), the State Government may, by notification in the Official
Gazette, constitute for a district or a group of districts specified in the notification, one
or more Juvenile Justice Boards for exercising the powers and discharging the duties
conferred or imposed on such Boards in relation to juveniles in conflict with law under
this Act.

1.6.4 Observation home

Section 2(0) of Juvenile Justice (C&PC) Act, 2000 defines “Observation home” means
a home established by a Sate Government or by a voluntary organization and certified
by that State Government under section 8 as an observation home for the juvenile in
conflict with law.

1.6.5 Special home

According to the Section 2 (v) “Special home” means an institution established by a
State Government or by a voluntary organization and certified by that Government
under section 9;

1.6.6 Children in need of care and protection

Section 2 (d) of Juvenile Justice (C&PC) Act, 2000 defines “child in need of care and
protection” means a child,--
(i) who is found without any home or settled place or abode and without any
ostensible means of subsistence;
(ii) who resides with a person (whether a guardian of the child or not) and such
person--
(a) has threatened to kill or injure the child and there is a reasonable
likelihood of the threat being carried out; or

(b) has killed, abused or neglected some other child or children and there is a
reasonable likelihood of the child in question being killed abused or
neglected by that person:

18
 (iii) Who is mentally or physically challenged or ill children or children suffering
from terminal disease or incurable diseases having no one support or look
after;
(iv) who has a parent or guardian and such parent or guardian is unfit or
incapacitated to exercise control over the child;
(v) who does not have parent and no one is willing to take care of or whose
parents have abandoned him or who is missing and run away child and whose
parents cannot be found after reasonable inquiry;
(vi) who is being or is likely to be grossly abused, tortured or exploited for the
purpose of sexual abuse or illegal acts;
(vii) who is found vulnerable and is likely to be inducted into drug abuse or
trafficking;
(viii) who is being or is likely to be abused for unconscionable gains;
(ix) who is victim of any armed conflict, civil commotion or natural calamity.

1.6.7 ChUd Welfare Committee

According to the Juvenile Justice (C&PC) Act, 2000 Section 29 defines “Child
Welfare Committee” -The State Government may, by notification in Official Gazette,
constitute for every district or group of district, specified in the notification, one or
more Child Welfare Committees for exercising the powers and discharge the duties
conferred on such Committees in relation to child in need of care and protection
under this Act.

1.6.8 Children’s home

Section 34 of the Juvenile Justice (C&PC) Act, 2000 defines “children’s home”—
The State Government may establish and maintain either by itself or in association
with the voluntary organizations, children’s homes, in every district or group of
districts, as the case may be, for the reception of child in need of care and protection
during the pendency of any inquiry and subsequently for their care, treatment,
education, training, development and rehabilitation.

1.6.9 Shelter homes

According to the Juvenile Justice(C&PC) Act, 2000 Section 37 defines “Shelter
homes” -The State Government may recognize, reputed and capable voluntary
19
 organizations and provide them assistance to set up and administer as many shelter
homes for juveniles or children as may be required.

1.6.10 Adoption
Section 41of the Juvenile Justice(C&PC) Act, 2000 defines “Adoption” means —
The primary responsibility for providing care and protection to children shall be that
of his family.

1.7 Methodology
As far as Doctrinal part is concern the evaluation of the concept of Juvenile Justice
and its recognition by law has been treated in its historical evolution in the country in
the reference to the various laws, policies and action plans. Books, reports have been
consulted for the analysis. For the purpose of evaluating judicial response of important
decisions of the Supreme Court have been consulted and analyzed.

For the purpose of the empirical study of Child Welfare Committees the study has
been done in 4 selected districts in each of the 3 regions of AP. Child Welfare
Committees, one Children Rights Network/NGO network, two subject expert/state level
resource persons on Juvenile Justice System (JJS), two NGOs working closely with
DWD&CW (the Department of Women and Child Development) on CWCs/JJS and
representative from the officials of DWD&CW, and Labor department have been
interviewed as part of the study.

Mixed methodology approach has been chosen for the study. It has been carried out
using the frameworks of both qualitative and quantitative methodologies. Key data
sources for the study would be both primary and secondary. Primary data has been
gathered mainly through interviews, observations, focused group discussions, analysis
of files and records/documents, CWC member, CWC sitting process, official
representatives (Superintendents, Probation Officers/Child Welfare Officers etc.) of
Children Homes, the district and the state officials of DWD&CW, Child Line members,
NGO representatives, network representatives, subject experts and identified
practitioners and judiciary, who are involved or supportive in the implementation of
JJS.

20
1.8 Scheme of the Study

The entire study has been presented in seven chapters. While the introductory part
has been dealt in this chapter the second chapter traces the origin, historical background
and concept of juvenile justice internationally and in India. In the third chapter the
legislative frame work for the protection and promotion of the rights of the juveniles
has been preserved and critically examined. In this chapter the legislative frame work at
the International and National levels have been analyzed. In the fourth chapter the
administration of Juvenile Justice Act and the traditional policies and action plans as
well as the role of National Commission for child rights, National Human Rights
Commission and Non governmental Organizations have been thoroughly discussed. All
the important decisions of the Supreme Court concerning various aspects of juvenile
justice like adoption, age etc.., have been critically examined and presented in chapter
five. The empirical study of the working of Child Welfare Committees in the state of
Andhra Pradesh, the result and findings have been presented in chapter six while
conclusions, findings and recommendations of the study have been presented in chapter
seven.

21