JUVENILE JUSTICE AND INTERNATIONAL

CONCERN: INDIA AND U.S.A

ABSTRACT
“Treat the Cause and Not the Symptom. Government of India needs to wake up to this idea when it
comes to dealing with juvenile delinquents”. Juvenile delinquency problem has been in existence since time
immemorial. It is an important feature of all societies, be it simple or complex. This paper will mainly focus
on the juvenile delinquency, causes of juvenile trajectories and evolution of juvenile justice system in India. .
Further an attempt would also be made to answer certain core questions viz; what is the difference between a
minor and a juvenile, what is Juvenile Delinquency, legislation in India in this regard and the juvenile justice
system in U.S.A and also a comparative analysis between the two countries. Thus, this paper deals with
comparative issues in the definition, nature, and extent of juvenile delinquency, juvenile law, juvenile justice
with special reference to India and the United States and what can be done to sort out this most menacing,
most reprehensible and most appalling problem.

INTRODUCTION
Children are the foundation on which the dynamic and vibrant future of a nation shall be built. They
are a nation’s greatest asset. The delicate mind of a child can easily be molded and subjected to an inclination
towards criminal activities. This has now turned out to be the most debatable issue for the society. Delinquency
and Juvenile both these terms constitute to form the most important subject matter of criminology. A criminal
activity committed by adult which is in violation of law is considered as a crime and is punishable in law but
if the same activity is committed by a child below a particular age, it is not considered a crime and is referred
as juvenile delinquency no matter that a child with full understanding has committed a very serious, grave,
grim and a heinous crime. Every child has a right to joyful, elated and jubilant childhood, the right to grow in
a harmless and nurturing environment, the right to be free from the intricacies and convolutions of life etc. but
there are some unlucky and doomed children who are deprived of these things and they grow out to be children
not wanted for or to term it other way juvenile delinquents.
Generally the term ‘jvenile’ means a person who is very young’ teenager’ adolescent, or underage. In
other words, juvenile means children who have not yet reached the age of adults in sense that they are still
childish or immature. Sometimes the word child is also interchangeably used for the term ‘juvenile’.
Juvenile delinquency in a layman’s language is crimes by children. No precise definition can be provided due
to difference in approach of sociologists and persons with legal acumen. Sociologists maintain that legal
definitions won’t be of any use because they vary from time to time and place to place. Another problem is
laws defining crimes relating to juveniles are very vague and uncertain. Due to this ambiguity nothing can be
said with certainty whether a particular act by a juvenile is a crime or not.
The word “Juvenile is derived from Latin term “juvenis” which means “young” and the word
‘delinquency’ has been derived from the Latin word ‘delinquer’ which means to omit. In the year 1484 William
Coxton used the word delinquent to describe a person who was found guilty. Juvenile delinquency refers to
the involvement by the teenagers in an unlawful behavior who are usually under the age of 18 years and
commit an act which would be considered as a crime.1
A person under the age of full legal obligation and responsibility is a minor or a person who is below the
legal age of eighteen years is minor. A child being accused of a crime is not tried as an adult and is sent to
Child Care Centre whereas juvenile is a person between the age group of sixteen and eighteen years. In general

1
Dr. S.K Chatterjee, Offences Against Children and Juvenile Offence 388(Central Law Publication, 2 nd edn ., 2016)
1
sense both the term child and juvenile has same meaning but however difference lies in context of implications
in the eyes of law. Minor implies young and teen persons whereas juvenile either indicates immature person
or young offenders.
A child is known as delinquent when he/ she commits a mistake which is against the law and which is
not accepted by the society. A delinquent child is considered as a “wayward, irredeemable, inveterate,
incorrigible, unable to rectify or habitually disobedient child. Juvenile delinquency basically can be meant as
such an irresponsible and disapproved behaviour of children which is not approved by society and in the
interest of the public some kind of reproachment, admonishment, punishment or corrective measures is given
to the child or adolescent to rectify them. These juveniles are not mature enough to realize the consequences
and outcome of the crime they have committed and in law such persons are considered as doli incapax meaning
thereby incapable of committing crime.
Juvenile delinquency, also known as "juvenile offending", is the act of participating in unlawful
behavior as minors (juveniles, i.e. individuals younger than the statutory age of majority). Most legal systems
prescribe specific procedures for dealing with juveniles, such as juvenile detention centers and courts. A
juvenile delinquent in the United States is a person who is typically below 18 (17 in Georgia, New York,
Michigan, Missouri, North Carolina, New Hampshire, Texas, and Wisconsin) years of age and commits an act
that otherwise would have been charged as a crime if they were an adult. Depending on the type and severity
of the offense committed, it is possible for people under 18 to be charged and treated as adults.2 While as per
Juvenile Justice (Care and Protection of Children) Act, 2015, “juvenile” means a child below the age of
eighteen years and allows for juveniles in conflict with Law in the age group of 16–18, involved in Heinous
Offences, to be tried as adults.
Thus, Juvenile justice is the area of criminal law applicable to persons not old enough to be held
responsible for criminal acts. In most states, the age for criminal culpability is set at 18 years. Juvenile law is
mainly governed by state law and most states have enacted a juvenile code.

HISTORICAL BACKGROUND
The penologist in early years did not differentiate between adult offenders and young offenders and
hence they were all kept together in the same prison. This further worsened the condition of the young
offenders who were not only abused and tortured by the adult offenders but also incarcerated by the adult
offenders.
It was only in the mid-eighteenth century that penologists and criminologists turned their attention
towards the young offenders and their need for special provision. In fact the movement for young offenders
or juvenile offenders gained momentum in the later part of the eighteenth century and it was in 1772 that for
the first time that certain special concessions were made for such offenders. Initially, some special concessions
were granted to the juvenile offenders in civil matters, for instances matters of gift, will etc. but since 1772
demands were made, to extend such grants in civil matter.
It was at this point of time that special rehabilitation homes or institutional homes were being
established in USA and UK for the young offenders. The International Congress for Treatment and Protection
of young offenders were held in Paris for the first time in 1895. It was held that the harshness towards young
offenders should be minimized and extensive discretionary powers must be given to the court in dealing such
young offenders.
The increasing incidence of juvenile offences and offenders throughout the world drew attention of the
United nations and in the UN Congress for Treatment and Protection of young offenders held in 1928 provided
for certain standard rules in respect of young offenders. It stated that young offenders must be referred to as

2
Juvenile Justice (Care and Protection of Children) Act, 2015, available at:
https://en.wikipedia.org/wiki/Juvenile_Justice_(Care_and_Protection_of_Children)_Act,_2015 (visited on November 30, 2018)
2
offenders in conflict with law, they should not be sentenced to imprisonment and they should not be logged
together with adult offenders that all member states must make necessary legislations to comply with the
recommendation of the convention.
History of Juvenile Justice System in India - India being the member of the United Nations readily
accepted the conventions and has always made all endeavors to comply with the recommendations and
suggestions of the United Nations. As such the first Act related to juvenile offenders came in the form of the
Children’s Act 1960. Later on in the year 1986the Government of India passed the Juvenile Justice Act. A
movement for the special treatment of juvenile offenders has started throughout the world including many
developed countries like U.K., U.S.A. This movement has been started around the 18th century. Prior to this,
juvenile offenders were treated as same as other criminal offenders. And for the same reason, General
Assembly of United Nations has adopted a Convention on the Rights of Child on 20th November 1989. This
convention seeks to protect the best interest of juvenile offenders. The Convention states that to protect the
social – reintegration of juvenile, there shall be no judicial proceeding and court trials against them. The
Convention leads the Indian Legislation to repeal the Juvenile Justice Act, 1986 and to make a new law. Thus,
Indian Legislation came up with a new act which was called as “The Juvenile Justice (Care and Protection of
Children) Act, 2000. Recently, Juvenile Justice (Care and Protection of Children) Act, 2015 has been passed
by Parliament of India amidst intense controversy, debate and protest on many of its provisions by Child
Rights fraternity which replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of
Children) Act, 2000.
History of Juvenile Delinquency in USA - The history of juvenile crime policy over the course of the
twentieth century is a narrative about the transformation of the law’s conception of young offenders. At the
dawn of the juvenile court era in the late 19thcentury, most youths were tried and punished as adults. Much
had changed by 1909 when Judge Julian Mack famously proposed in a Harvard Law Review article that a
juvenile offender should be treated “as a wise and merciful father handles his own child.” Like the other
progressive reformers who worked to establish the juvenile court, Judge Mark viewed youths involved in
crime first and foremost as children; indeed, by his account, they were no different from children who were
subject to parental abuse and neglect. The rehabilitative model of juvenile justice seemingly thrived during the
first half of the 20thcentury, but it began to unravel during the 1960s. Youth advocates challenged the
constitutionality of informal delinquency proceedings and, in 1967, the Supreme Court agreed, holding, in re
Gaul, that youths in Juvenile Court have a right to an attorney and other protections that Criminal defendants
receive. But the sharpest attacks on the Juvenile Court came from another direction. As youth crime rates rose
during the 1980s, conservative politicians ridiculed the juvenile system and pointed to high recidivism rates
as evidence that rehabilitation was a failure. According to some observers, the juvenile court may have met
the needs of a simpler time when juveniles got into school yard fights, but it was not up to the task of dealing
with savvy young criminals who use guns to commit serious crimes. Although in truth, the juvenile justice
system had evolved considerably since the early days, its paternalistic rhetoric persisted, obscuring the
changes; even to a sympathetic ear, descriptions of youth criminals as wayward children who would respond
to the caring treatment of the juvenile court seemed to bear little relation to the reality of youth crime during
the late 20thcentury. In the 1990s, juvenile crime – especially violent crime – decreased, although policies
remained the same. Schools and politicians adopted zero tolerance policies with regard to crime, and argued
that rehabilitative approaches were less effective than strict punishment. The increased ease in trying juveniles
as adults became a defining feature of "tough-on-crime" policies in the 1990s. However, the broad goal of U.S.
juvenile courts is to provide a remedial or rehabilitative alternative to the adult criminal justice system.
Although not always met, the ideal is to put a juvenile offender on the correct path to be a law-abiding adult.3

3
Comparative Study of Juvenile Delinquency in India, U.K. and U.S.A; The Role of International Agencies in Juvenile
Delinquency, available at: http://www.legalservicesindia.com/article/2006/Juvenile-Delinquency-in-India,-U.K.-and-U.S.A.html
(visited on November 30, 2018)
3
 INTERNATIONAL SCENARIO
Violence against children endangers their fundamental human rights. It is therefore imperative to
convince individuals and institutions to commit the time, money, expertise and other resources needed to
address this global problem. A number of United Nations instrument reflect a preference for social rather than
judicial approaches to controlling Juvenile Delinquency. The General Assembly of the United Nations adopted
the Convention on the Rights of the Child on 20th November, 1989 which prescribe a set of standard to be
adhered to by all the States parties in securing the best interest of the child. The International instruments and
conventions have contributed considerably to the issue of child rights and prevention of child abuse. The
International bodies like United Nations and UNICEF have always paid more emphasis on the development
of Child.
Following are the International Instruments and Conventions that are signed by all the States of UN in
order to protect the rights of Children:-
 UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
 UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)
 UN Rules for the Protection of Juvenile Deprived of their Liberty (Havana Conventions)
 Guidelines for the Action on Children in Criminal Juvenile System (Vienna Guidelines)
 Universal Declaration of Human Rights (1948)4
In international level, there have been several developments in the administration of juvenile justice.
Until the international Covenant on Civil and Political Rights, 1966, there was no specific provisions
regulating the administration of juvenile justice in a global treaty. The provisions enshrined in the International
Covenant, in this regard, are very specific. For example, Article 10(2) (b) provides for the separation of
accused juveniles from adults and for their speedy adjudication. In due course of time, when different states
began to develop their separate juvenile systems, a complete framework in this regard became necessary, by
which all the states could utilize it in establishing and operating their own national juvenile justice system. In
1985, the general assembly adopted the United Nations Standard Minimum Rules for the administration of
juvenile justice, known as Beijing Rules, which provide a complete framework within which a national
juvenile justice system could operate. These Rules also provides a model, for the states, of a fair and humane
response to juveniles who may find themselves in conflict with law5.
Again for the prevention of juvenile delinquency, the United Nations Guidelines were adopted in the
year 1990, which is known as Riyadh Guidelines, and it focus on early protection and preventive intervention
paying particular attention in situations of “social risk”. Recreation and youth development activities are
directly encouraged in the Riyadh Guidelines: “A wide range of recreational facilities and services of particular
interest to young persons should be established and made easily accessible to them”. In a number of towns in
the United States the establishment of basketball programs for adolescents led to a 60% decrease in crime
rates.
The International Juvenile Justice Observatory (IJJO):-
IJJO is an organizations that provides information, communication, debates, analysis and proposal
concerning juvenile justice as well as children or young people who have social difficulties, behavioral
problems or are in conflict with the law. The mission of the International Juvenile Justice Observatory is to
“contribute the international and inter – disciplinary vision of juvenile justice in order to create a future for
minors and young people all over the world who are in situations of exclusion as a result of infringements of
the law”. The IJJO aims at promoting international development strategies to create necessary policies,

4
Comparative Study of Juvenile Delinquency in India, U.K. and U.S.A; The Role of International Agencies in Juvenile
Delinquency, available at: http://www.legalservicesindia.com/article/2006/Juvenile-Delinquency-in-India,-U.K.-and-U.S.A.html
(visited on November 30, 2018)
5
Dr. S.K Chatterjee, Offences Against Children and Juvenile Offence 507(Central Law Publication, 2nd edn ., 2016)
4
legislations and intervention methods with regard to global juvenile justice that is universally applicable in the
world. The IJJO promotes and works towards the provisions of major international conventions and laws
regarding juvenile justice such as UNCRC and UN Rules for the protection of Juvenile.

The IJJO has specific objectives:-

 To develop an international forum for discussion of research, interventions, and legislation in order to
address the problem of juvenile delinquency.
 To promote international relations regarding different ways to of addressing the problem: legal,
psychological, criminological, social educational, cultural, police, medical, etc.
 To promote analysis at all level, globally, nationally and locally, of issues concerning young people in
conflict with law.
 To create alternate and changing solutions to problems in the field of juvenile justice.
 To contribute to the improvement of legislation, education, justice, police, health care and social issues.
 To create a knowledge space which is universally applicable and hence reach other to professionals,
institutes and organizations by means of databases, conferences, workshops and seminars.
 To provide support and information to developing countries so that they may create a healthy juvenile
justice system.
 To promote the formation of a worldwide network of juvenile justice observers.
 To create awareness about commitment to solving issues relating to young offenders.
 To promote and organize international gatherings which seeks to sharing and widening the base of
knowledge regarding juvenile justice.6
From the forgoing discussion, it is clear that at international level various attempt have been made for
administration of juvenile justice. Particularly United Nation’s efforts on elimination of juvenile delinquency
are really good steps. But, after introspecting the present scenario of the juvenile delinquency, it is felt that
“the development of a sound public policy regarding all aspects of delinquency prevention and control requires
both planning and evaluation by rigorous research methods. This requires coordination between the
government agencies, universities, police, judiciary and social workers”.

NATIONAL SCENARIO
Juvenile delinquency is a matter of serious consideration which really requires contemplation and
pond ration as it is mounting up not only in developing or underdeveloped nations but this has plagued and
has trapped even developed nations. Of late it is seen that these juveniles are not only committing mild and
serene crimes but are also indulged in ferocious, heinous and wicked crimes. Juvenile delinquency, also
known as "juvenile offending", is the act of participating in unlawful behavior as minors (juveniles, i.e.
individuals younger than the statutory age of majority).
A child is born innocent, but due to the unhealthy environment, negligence of the basic necessities and
wrong company, a child may turn into a delinquent. Usually, somebody has to have intent to break the law in
order to commit a crime, but that is not always the case. A person can be charged with a crime if that person
is not aware of the law.
No conduct constitutes a crime unless it is declared as criminal in the laws of the country. Delinquent
and criminal behaviour may brim among young people as they negotiate the transition from childhood to

6
Comparative Study of Juvenile Delinquency in India, U.K. and U.S.A; The Role of International Agencies in Juvenile
Delinquency, available at: http://www.legalservicesindia.com/article/2006/Juvenile-Delinquency-in-India,-U.K.-and-U.S.A.html
(visited on November 30, 2018)
5
adulthood in an increasingly complex and confusing world[8].Young people who are at the risk of becoming
delinquent usually lives in difficult circumstances
Understanding the causes of juvenile delinquency is an integral part of preventing a young person
from involvement in inappropriate, harmful and illegal conduct. Four primary risk factors can identify young
people inclined to delinquent activities: individual, family, mental health and substance abuse.
As mentioned, the paper would be focusses on Juvenile justice systems prevalent in United States
and India, what are the lacuna, should age factor of a person play an important role in determining his
culpability and what can be done . To begin with, here it will not be out of place to first discuss the juvenile
justice system prevalent in United States of America.

Position in United States:-

Since, America has been ruled by England for number of years, the laws in America are highly
influenced by the Common law of England. Blackstone in his commentaries had talked about people who
were incapable of committing crime. In order to commit a crime mens rea and actue reus are the two
essential elements. For the want of any of these, a man cannot be held liable.
According to Blackstone, children could be divided into two categories. Children below the age of
seven years are doli incapax i.e. incapable of committing crime and children above the age of fourteen
years . If they commit crime, they would be liable in the same manner as an adult i.e. no distinction between
a child above fourteen years committing a crime and an adult guilty of crime as both of them would be
treated at par.
Now the question is about the child committing a crime aged between seven and fourteen years. In
normal circumstances, children between such ages would be considered as incapable of committing a crime.
However if they understood the nature of crime, then of course they are liable and would suffer the
consequences of crime
Nineteenth century witnessed a drastic change as far as treatment of Juveniles in United States was
concerned. Big cities like New York and Chicago opened New York House of Refuge in 1825 and Chicago
Reform School in the year 1855 respectively for juveniles to separate them from adult hardened criminals.
Not only this, opportunity of rehabilitation was provided to deter them from committing future and prospect
crime.
The first juvenile Court in United States (US) came into existence in the year 1899 in Cook County,
Illinois. After this within a span of 25 years most states in US had established juvenile court system. As far
as these early juvenile court systems were concerned their main aim was to rehabilitate and reform the
offender rather than impose punitive and penal measures on them. In the rehabilitative model of juvenile
system, the immaturity of young offenders played an important role.
The Juveniles require different treatment to rectify them and therefore their correctional methods
should also be different from adults. Both of these cannot be treated at par. The protagonist of this also
believed that the criminal acts committed by young offenders reflect their immaturity and thus similar
procedure and punishment should not be meted out to the juveniles as is inflicted on the adults.
Not only this, some people also believed that juveniles should be less accountable because sometimes
due to impulsiveness or malleability of youth a crime may be committed. Impulsiveness presumably
contributes to incapacity because it impedes the ability to weigh the consequences of behaviour, while
malleability might make juveniles vulnerable to bad influences, particularly from peers

6
 During the 1970’s and 1985, all the states adopted juvenile policies relating to decriminalization and
deinstitutionalization. However such policies were not long lived and in the mid-1980s due to change in the
nature of crime by young offenders, increase in violence etc. criminalization of delinquents were revived.
During the early 1990s several states in US had called for special legislative session to deal with youth
crime.
In the United States where the age of majority is set by the individual States, minor usually refers to
someone under the age of 18, but can be used in certain areas to define someone under the age of 21. The
terms" infant”, “child”, “adolescent”, “teen”, “youth”, “juvenile” and “young person” are also used, although
some jurisdictions make a legal distinction between these terms. Minor statutes carries with it special
restrictions, penalties and protections that do not apply to adults. The United Nation defined “child” as an
"individual below twenty – one years of age." Juvenile Delinquency then deals with children, minor or youth
below 21 years of age who break laws or fails to do what law requires. The child and Youth Welfare Code,
Presidential decree No. 603defines youthful offender as" one who is over 9 years but under 21 years of age
at the time of the commission of the offence." A child 9 years of age or under at the time of the offence shall
be exempt from criminal liability and shall be committed to the care of his/her father or mother, or nearest
relative or family friend in the discretion of the court and subject to its supervision. All member states of the
United Nations except the United States and Somalia have ratified the United Nations Convention on the
Rights of the Child, 1989. According to the Convention, a child means every human being below the age of
18 years unless under the law applicable to the child, majority is attained earlier.7
Presently, in United States, slogan “adult crime adult time “is being adopted. In 38 states of US, upper
age of juveniles is seventeen years while in other three states it is fifteen years.
There is unanimity in almost all US States on the point of trying juveniles at par with adults on
juvenile attaining the age of fourteen years in certain circumstances barring states like Vermont, Indiana, and
South Dakota where a child of even ten years can be tried as adult. As far as punishment part is concerned
there are various forms of penalties that are given to the juveniles. In heinous crimes even life imprisonment
can be granted to child aged twelve years which is considered to be the maximum punishment. Juveniles
who have the potential to try serious offences are detained in secured and tenable environment and are made
to take part in rehabilitative programme. All this is done to control young juveniles. Additionally rigorous
punishments relating to drugs and gang related offences, stringent treatment such as boot camps and blended
sentence have also been introduced to put them right. As far as the jurisdiction part is concerned if a child
usually 13 or 15 commits a grave and grim crime then their case is automatically shifted to adult court.
Jurisdiction of juvenile courts is automatically waived in such cases.

Position in India:-
As far as position of Juveniles in India is concerned, since ages there has been a trend of providing
different treatment for juvenile offenders. In the year 1843, i.e. during colonial regime, Lord Cornwalis
established Ragged School for such children. The Apprentice Act, which talked about juvenile legislation
came in the year 1850. After a decade, Indian Penal Code was enacted. Though the Code doesn’t specifically
talked about Juvenile offenders nevertheless there are certain provisions in the Code which deals with
underage criminals12. According to section 82, IPC, children who are less than seven years of age are doli
incapax i.e. they are incapable of committing crime. They do not have mens rea or intent to commit a crime.
Section 83 basically talks about children between seven to twelve years of age.
These children while committing crime if they can understand the nature of crime, they are
punishable. Additionally sections 27 and 360 of Code of criminal procedure, 1973 also talk about young
offenders. Then came in the reformatory School Act of 1876. After this, the reformatory school Act of 1876

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An Analytic Study of Juvenile Justice System in India, available at: https://blog.ipleaders.in/juvenile-justice-system-india/
(visited on November 30, 2018)
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and 1897 were the next milestones for treatment of juveniles in India and with it there was a shift of penal
philosophy from punitive to reformatory measures i.e. now the main aim was to reform the juveniles rather
than imposing punitive measures on them.
The present juvenile justice system is governed according to several International Covenants. For
example: UN Conventions on the Rights of the Child(CRC), UN Standard Minimum Rules for
administration of Justice (Beijing Rules) .Also in India Article 15(3) of the Constitution talks special
provisions for children. This article has been specifically framed in the constitution for protection of
children.
Furthermore, the Constitution of India which is consider as the fundamental law of India provides for
rights and duties of citizens. It also provides provision for the working of the government machineries.
Constitution in Part III has provided Fundamental Rights for its citizens in the same manner in its Part IV it
has provided Directive Principles of State Policies (DPSP) which acts as general guidelines in framing
government policies. Constitution has provided some basic rights and provisions especially for the welfare
of children. Like: –
 Right to free and compulsory elementary education for all the children under the age of 6 to 14
years.( Article 21A)
 Right to be protected from any hazardous employment under the age of fourteen age.(Article 24)
 Right to be protected from being abused in any form by an adult. (Article 39(e)).
 Right to be protected from human trafficking and forced bonded labour system.( Article (Article 39)
 Right to be provided with good nutrition and proper standard of living. (Article 47)
 Article 15(3) of the Constitution of India provides special powers to State to make any special laws
for the upliftment and the betterment of children and women8.
Therefore, the law makers while drafting the Juvenile Act, 2015 has consider all the necessary provisions
laid down by the Constitution so that child’s rights are protected in all the possible ways.
This is for the same reason that Chapter IV of the Act lays down the provisions for betterment of the
juveniles and has focused on the Reformation and Rehabilitation of Juveniles in all the possible
circumstances.
Age determination has been a tricky and controversial issue in Juvenile Justice. A number of cases
have been decided by the court in this regard. In the context of juvenile legislation in India, a juvenile is a
person who has not completed eighteen years of age. Only children below seven to twelve years of age who
are sufficiently mature to understand the repercussions if their act and children between twelve to eighteen
years of age can be tried under Juvenile Justice Act as children below seven years of age have been granted
blanket immunity, as mentioned above, by the Indian Penal Code. The objective is not to treat such children
as adults for their criminal behavior but to reform and rehabilitate them. The issue of age determination is
controversial because there is no clarity on the point. Even in the case of Indian Penal Code, Section 82 & 83
talk about children below and above seven years of age but it is silent about seven year old children. Who is
to determine the age bracket they fall in? Section 49 (1) of the Juvenile Justice Act, 2000 confers the power
on competent authority to determine whether the person brought it is a juvenile, if he/she appears to be so.
But the procedure to determine juvenility of a person cannot be relied on. The two ways to determine age of
the accused are documentary evidence and medical evidence.
Also National Policy for Children which talked about training and rehabilitation, destitution,
neglected and exploited children came in the year 1974. A comprehensive legislation on juvenile known as
Juvenile justice Act was passed in the year 1986. In the year 2000, the Juvenile Justice (Care and Protection

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An Analytic Study of Juvenile Justice System in India, available at: https://blog.ipleaders.in/juvenile-justice-system-india/
(visited on November 30, 2018)
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of Children) Act was enacted. The Act provides that a child who has not completed the age of 18 years is a
juvenile. This 2000 Act has been amended several times in the years 2006, 2010 and 2011 i.e. in the years
2006, 2010 and 2011 amendments have been made. The 2006 Amendment Act included 26 amendments.
The Act provides for legal system for care, protection, treatment and rehabilitation of both the categories of
children i.e. children in conflict with law and children in need of care and protection. Presently also the Govt
of India is further contemplating for various amendments and a draft bill is pending before ministry of Law
and Justice for scrutiny.
There is no doubt about a fact that India hails in a comprehensive legislations and in spite of the fact
that a detailed, comprehensive and several times amended legislation is prevalent in India, the crimes
committed by juveniles are swelling and mounting up every day. Isn’t the liberal and open minded approach
on juveniles one of the reasons why such crimes are elevating and escalating every day. The total number of
crimes in different years committed by juveniles clearly endorse this view. How can one forget ever burning
case of Nirbhaya. In the said case, a 23 years old woman was gang raped by six men, one of whom was a
minor, in the moving bus. The woman was dragged to the rear of bus and was beaten with rod and
simultaneously raped in the moving bus. According to medical reports she suffered serious injuries in her
abdomen, intestines and genitals. The doctors stated that some blunt object (may be iron rod) was used for
penetration. According to the International Bureau Times, a police spokesman said, the minor in the said
case was the nastiest, brutal, fierce attacker and had sexually abused his victim twice and had ripped out her
intestines with bare hands. The woman struggled for so many days to beat death but unfortunately she
succumbed to injuries on 29th December, 2012 after suffering from brain damage, pneumonia, abdominal
infection etc.9
Nirbhaya is one of those cases where innocent people are tormented, anguished and persecuted by
juveniles for no fault of theirs. In the said case minor was described as the most vicious, unruly and fierce
attacker who was actively involved in the crime. He was the one who had sexually abused woman twice and
had ripped out her intestines with bare hands. Now the question is doesn’t he know the nature of crime and
what act he is committing? The answer is probably “Yes” he knows everything. Is he really innocent?
Perhaps - No. Nirbhaya is not the only case. There are catena of cases where innocent people are agonized
and pestered by juveniles without any fault on their part. These juveniles are involved into heinous and
odious crimes like murder, rape, theft, robbery etc and the worst part is they are taking the protection of the
Act accorded to them.
But then again the Juvenile Justice Act, 2015 was enacted to replace the existing Indian Juvenile
Delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, so that juveniles in conflict
with law in the age group of 16-18 years, involved in heinous offences can be tried as adults.
In our country, it was the high time to bring some reform in the Juvenile laws as there has been a steep
rise in serious crimes involving youth of 16 – 18 years of age and they very well know that below 18 years is
the ‘getaway pass’ for them from the criminal prosecution. The punishment has to be made a bit deterrent in
order to inject the feelings of fear in the mind of the criminal. The recent “Nirbhaya rape case” has caused
utter dismay, concern and outrage amongst the people. The gruesome act of brutalizing her with an iron rod
was done by none other but a juvenile and he has been sentenced for a period of 3 years as per Section 15 of
JJ Act, 2000 as per our law for juveniles. The principal ought to have been followed for trying juvenile
offenders is that Juvenility should be decided as per the state of mind and not just the state of body. In the
recent Nirbhaya rape case all the other co- accused are awarded death sentence but the person who committed
the most brutal part of the case has been awarded a mere 3 years of remand as per JJ Act, 2000.
In the light of above incident, the bill was introduced in the parliament by Maneka Gandhi on 12th
August 2014. The bill adopts several new features which were missing in the earlier act like it adopts the

9
Juvenile Justice Systems in United States and India: Modern Scenario and Much Needed Modifications, available at:
http://jlcjnet.com/journals/jlcj/Vol_2_No_2_December_2014/14. (visited on November 30, 2018)
9
concept of Hague convention and cooperation in respect of Inter-country Adoption, 1993. The bill also seeks
to make adoption process of orphaned, abandoned and surrendered children more streamlined. One of the most
criticized step in the new juvenile justice bill 2015 is introduction of “judicial waiver system” which will allow
treatment of juveniles in certain conditions, in the adult criminal justice system and to punish them as adults.
Juvenile Justice Boards (JJB) and Child will be constituted in each district. The role of JJB would be to
conduct a preliminary in each district. The role of JJB would be to conduct a preliminary inquiry to determine
whether a juvenile offender is to be sent for rehabilitation or be tried as an adult. The CWC will determine
institutional care for children in need of care and protection. It is for the first time in India that such provisions
have been applied.
This act totally deals with punishing children involved in crimes which are sort of well-planned crimes,
which creates a sense that the person committing the crime clearly know about what he is doing and still
committing it, the crimes which are heinous in nature like rape and murder, dacoit or kidnapping.10
This new act is considered as the biggest legal reform by the Indian judiciary and should be welcomed
and implemented fairly and considered as a move towards stopping crimes by the teenagers of country by
creating a sense of fear of punishment in the minds of teenagers by introduction of such type of laws.
To meet out justice is a grave and critical responsibility and it becomes graver when the person in
question is a juvenile. Keeping this in mind, U.S.A and India has taken various steps to deal with the problems
of juveniles.

JUDICIAL APPROACH
The effectiveness of the law and the respect that people have for the law and the government which enacts it
is dependent upon the judiciary's independence to mete out fair decisions. The judiciary also plays a role in
law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws
passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these
interpretations which really define the laws. Moreover, ‘the judgments delivered by the higher courts, which
are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the
basis of the decisions made by the higher courts. Judicial decisions constitute a source of law.

Role of judiciary in U.S.A:-

The American juvenile justice system is the primary system used to handle youth who are convicted of
criminal offenses. The system is composed of a federal and many separate state, territorial, and local
jurisdictions, with states and the federal government sharing sovereign police power under the common
authority of the United States Constitution. The juvenile justice system intervenes in delinquent behavior
through police, court, and correctional involvement, with the goal of rehabilitation. Youth and their guardians
can face a variety of consequences including probation, community service, youth court, youth incarceration
and alternative schooling. The juvenile justice system, similar to the adult system, operates from a belief that
intervening early in delinquent behavior will deter adolescents from engaging in criminal behavior as adults.
The question of how to treat children in the justice system has long been an issue of examination and
reexamination by the U.S. Supreme Court. The Court has consistently held that children are entitled to many
of the same due process rights as adults. With that understood, however, the Court has also consistently held
that, from a developmental standpoint, youth are different from adults, which greatly impacts how courts
should treat them in a whole host of areas, such as waiver of rights, culpability, and punishment. The following
case summaries describe the United States Supreme Court’s major jurisprudence in the arena of juvenile
justice:-

10
Juvenile delinquency in India: A critical analysis, available at : read:http://www.lex-warrier.in/2017/09/juvenile-delinquency-
india-critical-analysis/ (visited on November 30,2018)
10
  In re Gault, 387 U.S. 1 (1967), this decision was the turning point for the rights of juveniles in U.S.
Courts. It was the first time that the Supreme Court held that children facing delinquency prosecution
have many of the same legal rights as adults in criminal court, including the right to an attorney, the right
to remain silent, the right to notice of the charges, and the right to a full hearing on the merits of the case.
 Kent v. United States, 383 U.S. 541 (1966), A juvenile court does not have unlimited parens
patriae power. It is not entitled to act with “procedural arbitrariness.” The decision to waive a juvenile to
adult court requires first providing the young person with basic due process: a hearing, effective
assistance of counsel, and a “statement of reasons” for the decision.
 Roper v Simmons, 543 U.S. 551 (2005), the imposition of the death penalty for crimes committed by
juveniles is cruel and unusual punishment within the meaning of the 8th Amendment. Justice Kennedy,
writing for the majority, noted that the Court consistently limited the death penalty to the very worst of
offenders. Citing to the most recent social and neuroscience, he discussed three general characteristics
separated children from adults, simultaneously serving to remove juveniles from the category of the very
worst of offenders. First, juveniles lack maturity and have an underdeveloped sense of responsibility,
resulting in impetuous and ill-considered actions and decisions. Second, juveniles are more vulnerable
and susceptible to negative influences and outside pressures, including peer pressure. Third, the character
of a juvenile is not as well formed as that of an adult. Thus, they possess far more potential for
rehabilitation.
 Graham v. Florida, 130 S.Ct. 2011 (2010), Expanding upon the analysis in and logic of Roper, the
Supreme Court held that it was unconstitutional to impose the penalty of life imprisonment without the
possibility of parole on juveniles. The opinion also noted that young people have difficulty participating
in their own representation. While “a state need not guarantee the offender eventual release…it must
provide…some realistic opportunity to obtain release before the end of that term.” The holding in Graham
left unanswered what the Court meant by a “realistic opportunity to obtain release.”
 Miller v. Alabama, 567 U.S.(2012) The Court continued the Roper–Graham line of cases, and held that
juveniles cannot be sentenced to life without the possibility of parole for homicide crimes, where such a
sentence is the only option. Mitigating factors must be taken into account before a juvenile can be
sentenced to life without the possibility of parole.11

Role of judiciary in India:-

Supreme Court and various High Courts in India play a very important role in the development of
Juvenile Justice System in India. In the initial stage, the cases related with juvenile delinquent are dealt by
the lower courts but the trends of the judicial approach towards a juvenile in conflict with the law, reflected
by the judgments of Hon’ble Supreme Court and various high courts. The courts/ juvenile justice board are
under the statutory and Constitutional duty to deal with the juveniles in conflict with the law. The competent
authority is required to make due inquiry and give full opportunity to the juveniles to put his case before the
court or board concerned. Child delinquency is accepted as a major problem faced by both developing and
developed countries. To overcome this obstacle, the governments have established many courts for
implementation of various law enacted and in this way contributed a lot in the fields of juvenile justice for
the benefit of juvenile offenders. Judiciary on various occasions has expressed great concern relating to the
proper implementation of beneficial provisions of law relating to children.
 In Sheela Barse v Union of India12, the Supreme Court issued directions to the state government to set
up necessary observation homes where children accused of an offense could lodge, pending
investigation and trial will be expedited by juvenile courts.

11
United States Supreme Court Juvenile Justice Jurisprudence, available at: http://njdc.info/practice-policy-resources/united-states-
supreme-court-juvenile-justice-jurisprudence/ (visited on November 30, 2018)
12
(1993) 4 SCC204
11
  In Sheela Barse v. Secretary, Children Aid Society13, the Supreme Court commented upon setting up
dedicated juvenile courts and special juvenile court officials and the proper provision of care and
protection of children in observation Homes.
 In M.C. Mehta v State of Tamil Nadu14, the Supreme Court pronounced upon the constitutional
perspective of the abolition of Child labor and issued appropriate guidelines to the Government of India
with respect to compulsory education, health, nutrition, etc of the child laborers.
 In Sakshi v Union of India15, the Supreme Court directed the government/ Law commission to conduct
a study and submit a report on the means of curbing child abuse.
 In case of Arnit Das v. State of Bihar16, the Supreme Court overruled its previous decision and held that
date to decide in claim of juvenility should be the date on which the accused is brought before the
competent authority.
 How can one forget ever burning case of Nirbhaya. In this case it was found that all the other co-
accused are awarded death sentence but the person who committed the most brutal part of the case has
been awarded a mere 3 years of remand as per JJ Act, 2000. The verdict was criticized by many stating
that by not punishing the juvenile the court is encouraging other teenagers as they know that they will
get away due to the lacuna in the Act.
Thus for the best interest of the juveniles or child, a number of legislative provisions have been developed
from time to time and judiciary has played an important role in achieving the objectives of the legislation.

DRAWBACKS AND SUGGESTIONS

Effectiveness of the Juvenile Justice System:-
U.S.A - The American juvenile justice system was designed over 100 years ago to reform kids who were
found guilty of minor crimes such as petty theft and truancy. Today, the system is becoming overwhelmed
by crimes of violence. Stealing and skipping school have been replaced by rape and murder. The juvenile
justice system was never meant to deal with these kinds of problems. Juvenile delinquency describes the
antisocial behavior of many different types of youth who are in trouble, or who are on the brink of trouble
with the law. In general terms juvenile delinquency means different things to different people.
The working of Juvenile Courts in U.S.A. is relatively less complex and easier as compared to the other
nations. The courts of U.S.A. follows the informal way in the process of trial of offender. At the first stage ,
the police officer in the charge of the case has the full discretion power either to keep the juvenile offender in
the child custody or to immediately release him or to admonish the offender or to do the both. In the second
stage police officer have to contact the Juvenile Courts to make them aware about the case and to take the
matters into their hands.
Juvenile Offenders after the trial in court is being sent to Certified Schools or to the Children Homes if the
order is passed by the court. According to the Juvenile Justice System in U.S.A. a juvenile is tried as an adult
only in those cases where the age of the juvenile is close to adulthood as per the statutory provisions or any
juvenile offenders who is found to be involved in repeated offences and is proved danger to the society.
In every country the juvenile justice system exists at a point of collision between competing principles.
Everywhere, mature adults are treated as moral beings that make choices. These choices may often be ill-
informed and may emerge from an impoverished social context, yet western legal traditions insist on treating
most individuals in most circumstances as free moral agents, and pin responsibility for their actions onto
them. To do otherwise would be patronizing and authoritarian: it would be a denial ofthe individual’s
essential humanity. Children, on the other hand, are regarded as a force of nature, and not as independent

13
(1987) 3 SCC 50
14
(1999) 6 SCC 591
15
AIR 1999 SC 1412
16
AIR 2000 SC 748
12
moral agents. They are restrained, supervised, trained and prepared to assume that status when they reach
maturity. Even after the flattening of hierarchies that has continued since the 1960s, few parents or teachers
have qualms about making choices for young children, especially if they can explain and justify their choices
as being in the best interests of the child.
The current debate on juvenile justice reform in the United States focuses on the root of racial and economic
discrepancies in the incarcerated youth population. The school to prison pipeline has been described as one
mechanism that targets young people in schools and funnels them into the juvenile justice system. Zero
tolerance policies in schools have increased the numbers of young people facing detention. Low-income
youth, youth of color and youth with learning and cognitive disabilities are over-represented in the justice
system and disproportionately targeted by zero tolerance policies.
Much of the criticism about the American juvenile justice system revolves around its effectiveness in
rehabilitating juvenile delinquents. Currently the juvenile system has failed to ensure that all youth in the
system with learning disabilities or mental health issues, and from lower-class individuals and racial
minorities are provided with the benefits for a productive life once out of the system. In 2013 30% of youth
in system have a learning disability and nearly 50% test below grade level. They argue that the juvenile
justice system should be restructured to more effectively lower the chances of future crime among youth,
and advocate for increased educational programs for incarcerated youth as the most important method to
reduce recidivism. 17
INDIA:- Like the other countries , India had also made legal provisions that especially and specifically deals
with the rights and protection of juvenile offenders which seeks to tackle the problem of juvenile
delinquency. The Juvenile Justice System in India is made on the basis of three main assumptions:-
 young offenders should not be tried in courts , rather they should be corrected in all the best possible
ways,
 they should not be punished by the courts , but they should get a chance to reform
 Trial for child in conflict with law should be based on non-penal treatment through the communities
based upon the social control agencies for e.g. Observation Homes and Special Homes.
The increasing rates of juvenile crime in India in very concerning issue and need to be focused upon.
Although government has laid various legislation and rules to stop the incidents of juvenile crimes but the
present laws on juveniles is not creating a deterrent effect on the juveniles and thus the results are not
fruitful and legislative intent is not accomplishing .
When United States and other developed nations can change their approach from liberalism to tough
and sturdy practice seeing the nature of the crime, atrocities, mental level etc, why can’t India adopt the
same approach and policy. It is high time now that we should not run after the age of person rather should
focus on the severity of the crime, mens rea, level of understanding etc. otherwise innocent people will
continue to suffer in the hands of these not so naive and not so guiltless persons. The worst part is that these
persons will continue to take advantage of the lacuna (three years punishment) which the present juvenile
Justice Act is bestowed with as it is not carrying any deterrent impact on the minds of these young offenders.
They very well know that even after committing such heinous crimes, they are let loose after a period of
three years. This is a staid and somber issue which requires attention, deliberation and definitely a change is
required for the betterment of the society as a whole.
Suggestions and Recommendations:-

17
American juvenile justice system, available at: https://en.wikipedia.org/wiki/American_juvenile_justice_system (visited on
November 30, 2018)
13
In order to make full use of the legal provisions available for juvenile, the State may initiate the following
steps:
 Early intervention - It is widely believed that early phase intervention represent the best approach to
preventing juvenile delinquency. Prevention requires individual, group and organizational efforts
aimed at keeping adolescents from breaking the law
 Education - Governments are under an obligation to make public, education accessible to all young
persons. Education systems should seek to work together with parents, community organizations and
agencies concerned with the activities of young person. Supply adolescents and young people with
increased economic opportunities, professional training and education, new workplaces and
assistance in organizing business can help prevent youth involvement in delinquent activities.
Educational programmes can help prevent youth involvement in delinquent activities. Educational
programmes are helping young people learn how to engage in positive self – appraisal, deal with
conflict, and control aggression.
 Socialization Process - Every society should place a high priority on the needs and well – being of
the families and of all its members. Since the families is the central unit responsible for the primary
socialization of children, governmental and social efforts to preserve the integrity of the family,
including the extended family, should be pursued. The society has a responsibility to assist the family
in providing care and protection and in ensuring the physical and mental well – being of children.
Adequate arrangements including day – care should be provided. Governments should establish
policies that are conducive to the bringing up of children in stable and settled family environments.
Families in need of assistance in the resolution of conditions of instability or conflict should be
provided with requisite services. Government should take measures to promote families cohesion and
harmony and to discourage the separation of children from their parents, unless circumstances
affecting the welfare and future of the child leaves no viable alternative.
 Mass Media - The mass media should be encouraged to ensure that young persons have access to
information and material from a diversity of national and international sources. The mass media
should be encouraged to portray the positive contribution of young persons to society. The mass
media should be encouraged to disseminate information on the existence of services, facilities and
opportunities for young persons in society.
 Legislation and Juvenile Justice Administration - Governments should enact and enforce specific
laws and procedures to promote and protect the rights and well – being of all young persons.
Legislation preventing the victimization, abuse, exploitation and the use for criminal activities of
children and young persons should be enacted and enforced. No child or young person should be
subjected to harsh or degrading correction or punishment measures at, in schools or in any other
institutions. Legislation and enforcement aimed at restricting and controlling accessibility of
weapons of any sort to children and young persons should be pursued. Legislation should be enacted
and strictly enforced to protect children and young persons from drug abuse and drug traffickers.
In this context special attention must be given to street children and to children and adolescents who
have lost their families (or their ties to them) during armed conflicts and have thus had no appropriate family
surveillance. The majority of programmes serving street children are remedial in nature, as they operate on
an adhoc basis, providing food, clothing and occasionally shelter and health services. These initiatives,
which provide symptomatic treatment, have to be complemented by programmes that also address the cause
of “streetism”. Special programmes are needed to tackle problem of unaccompanied and homeless children,
including rehabilitation schemes that take children off the streets.18

18
Juvenile delinquency in India: A critical analysis, available at : read:http://www.lex-warrier.in/2017/09/juvenile-delinquency-
india-critical-analysis/ (visited on November 30,2018)
14
 However, change cannot be brought by the government alone, it requires coordination between the
government agencies, judiciary, police and social workers.

CONCLUSION
Nobody is born criminal from the womb of mother but due to certain circumstances, misfortune and
adversity as already mentioned some children or adolescents are distracted and side tracked. In order to set
those right most countries had adopted reformatory approach but of late it is seen that this approach is not
working well with these incorrigible and inveterate young offenders. In order to sort and unravel this, the
laws and policies in United States (US) have changed as the time progressed. The practice of liberal
approach in US has presently shifted to tough reforms in some cases seeing the nature of crime committed
by juveniles. What are we waiting in India for? When so called juveniles can commit heinous, nasty,
ferocious crimes as already mentioned can they be seriously called as juveniles who are innocent? If we talk
about Nirbhaya case, the question which keeps on haunting us and every time raises our eyebrows is can the
so called juvenile be really called innocent when it is a known fact that he was actively involved in such
ferocious, nasty and brutal act.
Undoubtedly the number of serious, monstrous and odious crimes committed by juveniles are
mounting up every day as these young offenders very well know that they can easily get free even after
committing such ferocious, heart piercing acts. The question here which really requires pond ration is can
these persons be seriously called as innocent, blameless and naive persons? The answer is perhaps “No”.
When these persons can hatch a plot, churn their ideas to commit sinister, ominous offences like rape,
murder, dacoity etc they can no more be called as innocent, guiltless persons and this rehabilitation model
which has been till ages followed in so many countries should no more be applicable on such juveniles no
matter what their age.
When United States and other developed nations can change their approach from liberalism to tough
and sturdy practice seeing the nature of the crime, atrocities, mental level etc. why can’t India adopt the
same approach and policy. It is high time now that we should not run after the age of person rather should
focus on the severity of the crime, mens rea, level of understanding etc. otherwise innocent people will
continue to suffer in the hands of these not so naive and not so guiltless persons. The worst part is that these
persons will continue to take advantage of the lacuna (three years punishment) which the present juvenile
Justice Act is bestowed with as it is not carrying any deterrent impact on the minds of these young offenders.
They very well know that even after committing such heinous crimes, they are let loose after a period of
three years. This is a staid and somber issue which requires attention, deliberation and definitely a change is
required for the betterment of the society as a whole.
Presently, in India it is seen that much importance is given to age factor of accused and when the
person is below 18 years of age howsoever he might be guilty, he is sent to reformatory school for a period
of three years and is let free, courtesy, Juvenile Justice (Care and Protection ) Act, 2006.It doesn’t make any
difference that he had with full knowledge and acquaintance actively played a part in the crime, it doesn’t
make any difference that his co-accused are getting life imprisonment or maybe they are hanged. However
Juvenile Justice (Care and Protection of Children) Act, 2015, replaced the Indian juvenile delinquency law,
Juvenile Justice (Care and Protection of Children) Act, 2000, and allows for juveniles in conflict with Law in
the age group of 16–18, involved in Heinous Offences, to be tried as adults.
Unlike in the U.S., juveniles in India do not have certain Constitutional due process rights, such as
the right to an attorney, yet the children courts in India serve as criminal courts and the Indian act provides
for greater procedural safeguards. No doubt in United States also reformatory schools were established and
are till date serving these off the track gone children but seeing the demand of the time United States has in
some cases changed its policy and are heading towards tough reforms for the interest of the public. In India,
as far as juveniles are concerned we bank upon Juvenile justice System which talks about care, protection

15
and reformation of such children. United States have changed its policy seeing the types of crimes
committed by these so called juveniles. India is still clinging on reformatory part.
We may conclude that we have to take a serious view of the changing trends of behavior among our
children which has virtually made age as too superfluous and irrelevant factor determining who actually is a
Juvenile in real sense and who is not and tailor out a socio-legal plan to govern their conduct in such a way
that they get full opportunity to develop their faculties without losing the bliss of their childhood such as
innocence, naughtiness, playfulness, which are the basic attributes of childhood and ultimately turnout to be
good human beings. The aim of juvenile justice should be that any reaction to juvenile offenders should
always be in proportion to the circumstances of both the offender and offence. Then only we could proudly
say our children are assets of our nation on whom we can stake our bright future otherwise they would
become a liability to not only the parents but to the whole society.

16