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White Black Legal – International Law Journal · ISSN 2581-8503
Juvenile delinquency and the juvenile justice system
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Abstract
JUVENILE DELINQUENCY AND THE JUVENILE JUSTICE SYSTEM
AUTHORED BY - SHUBHAM GOSWAMI
Amity University, Gurugram, Haryana
Submitted to: Harshita
Singh
ABSTRACT
Juvenile delinquency is one of the most persistent challenges for any society because it forces the law to balance two competing commitments:
accountability for wrongdoing and the protection and reformation of children.
This paper examines juvenile delinquency and the juvenile justice
system with particular emphasis on India. It begins
by explaining the meaning,
causes and theoretical explanations
of delinquency and traces the evolution
of Indian juvenile law from colonial-era reformatory statutes to the Juvenile
Justice (Care and Protection of Children) Act, 2015,
as amended in 2021. It then studies
the international framework, including the United Nations Convention on the Rights of the
Child, the Beijing Rules, the Riyadh Guidelines and the Havana Rules,
and compares the models followed in the United States,
the United Kingdom, Germany, New Zealand and South Africa. The paper
analyses leading judicial precedents, both Indian and foreign, on the age of
juvenility, determination of age, treatment of juveniles accused of heinous
offences, conditions of custody and rehabilitation. The study concludes that
while India has built a progressive statutory architecture, its effectiveness depends
on institutional capacity, uniform implementation, trained
personnel and a genuinely
rehabilitative outlook rather than punitive reaction to public outrage.
Keywords: juvenile delinquency; child in conflict
with law; Juvenile
Justice Act, 2015;
heinous offences; best interests of the child; reformation.
1. INTRODUCTION
1.1 Background and Significance
Every legal system recognises that children are not simply smaller
adults. Their capacity for judgment, impulse control and
moral reasoning is still developing, they are far more vulnerable to family, peer and economic
pressures, and they have a greater capacity
for change. Criminal law,
which is built on the idea of a mature person who freely chooses to do wrong,
therefore sits uneasily with the conduct of children. Juvenile justice systems
exist to resolve this tension. Their foundational idea is that a child who breaks
the law should be treated primarily as a person in need of guidance, care and
rehabilitation, and not as a criminal deserving retribution.1
The
subject has acquired renewed urgency in India. A country with one of the
largest child populations in the world,
rapid urbanisation, deep economic inequality and uneven access to education necessarily produces
a large number of children who come into conflict with the law. Official data
compiled by the National Crime Records Bureau (NCRB) show, year after year, that tens of thousands of cases are registered against
juveniles annually, that the majority of apprehended juveniles fall in the 16 to 18 age group, and that a large proportion come from poor families with little or no formal education.2 These figures show that delinquency is
as much a social problem as a legal one.
Public debate
about juvenile justice in India has often been driven by individual cases of
extreme violence. The most prominent was the gang rape and murder of a young
woman in Delhi on 16 December 2012, one of whose perpetrators was a few months
short of eighteen years of age. The Juvenile Justice Board could only direct
his stay in a special home for the maximum period of three years, and public
anger led to demands that juveniles accused of serious crimes be tried as
adults.3 Parliament responded with the
Juvenile Justice (Care and Protection of Children) Act, 2015, which for the first time since independence allowed children
between sixteen and eighteen who commit heinous
offences to be tried as adults. The 2015 Act
therefore marks a major
shift in the philosophy of Indian
juvenile law and is
a central concern of this paper.
1.2 Meaning of Juvenile
and Juvenile Delinquency
The word "juvenile" derives
from the Latin juvenis, meaning young. In law, a juvenile is a person who has not attained the age at which criminal
responsibility is fully
imposed. Juvenile delinquency
refers to the commission of an act that would be an offence if done by an
adult, by a person below the statutory age of majority. Sociologists use the
term more broadly to include status offences
such as truancy,
running away from home and incorrigibility, which are
not offences for adults. Indian
law does not use the word "delinquent" any longer. Section
2(13) of the Juvenile Justice (Care and Protection of Children) Act,
2015 ("the 2015 Act") uses the expression "child in conflict
with law", defined as a child who is alleged or found to have committed an
offence and who had not completed eighteen years of age on the date of
commission of the offence.4 The change of
vocabulary is deliberate, and Section 3 of the Act expressly lists
the use of child-friendly and non-stigmatising language
as one of its fundamental principles.
Under
the general criminal law, a child's capacity to commit a crime was historically
governed by the doctrine of doli incapax.
Sections 82 and 83 of the Indian Penal Code, 1860 provided that nothing is an offence
if done by a child under seven years of age, and that nothing is an offence if done by a child
above seven and under twelve who has not attained sufficient maturity of
understanding to judge the nature and consequences of the conduct. These
provisions have been carried forward in Sections 20 and 21 of the Bharatiya
Nyaya Sanhita, 2023.5 The age of seven
as the minimum age of criminal responsibility is very low by international
standards, a point to which this paper returns later.
1.3 Causes and Theoretical Explanations
Criminologists
have offered many explanations of why young people offend. The early biological
school associated with Cesare Lombroso argued that criminals are born with
identifiable physical characteristics, a view now discredited.6 Modern theories look to the social
environment. Edwin Sutherland's theory of differential association holds that
criminal behaviour is learnt through interaction with intimate groups,
so that a child surrounded by peers or family
members who approve of lawbreaking is more likely to offend.7 Robert Merton's strain theory explains
delinquency as a result of the gap between culturally approved goals, such as
material success, and the legitimate means available to achieve them, a gap
that is particularly wide for children from poor and marginalised families.8 Travis Hirschi's social control theory
takes the opposite approach and asks why most children do not offend, answering
that attachment to family, commitment to education, involvement in conventional
activities and belief in social norms bind children to law-abiding conduct, and
delinquency follows when these bonds weaken.9 The labelling perspective of Howard Becker adds that
the official response to a child's
first offence, by stigmatising the child as a "delinquent", can itself
push the child into a deviant identity.10
In
the Indian setting, research and official reports identify a cluster of
recurring factors: poverty and unemployment, broken or dysfunctional families,
parental neglect and abuse, school dropout, child labour, migration and life on
the street, peer pressure, substance abuse, exposure to violent media and easy
availability of weapons or drugs in certain settings. No single factor explains delinquency. The more useful insight, which underlies modern
juvenile justice, is that most of these risk factors are outside the child's
control and many can be addressed by social intervention. This is the
philosophical justification for a system that emphasises rehabilitation and
reintegration.
1.4 Historical Evolution of Juvenile Justice
in India
Before
the colonial period, juveniles in India were generally dealt with under
religious and customary norms that recognised reduced responsibility for the
young. The first statutory recognition of the special needs of young offenders
came under British rule. The Apprentices Act, 1850 allowed courts to bind out
destitute and convicted children as apprentices, and the Reformatory Schools
Act, 1897 empowered courts to send young offenders to reformatory schools
rather than prison. Provincial legislation followed in the early twentieth
century, notably the Madras Children Act, 1920, the Bengal Children Act, 1922
and the Bombay Children Act, 1924, which created juvenile courts and made a
distinction between delinquent and neglected children.
After independence, the Constitution gave the subject
a firm foundation. Article 15(3) permits special provisions for children, Article
21A guarantees free and compulsory education for children between six and fourteen, Article 24
prohibits employment of children in hazardous
work, Article 39(e) and (f) direct the State to ensure that children are not abused
and are given opportunities to develop in a healthy manner and in
conditions of freedom and dignity, and Article 45 and Article 47 speak of early
childhood care and the duty to raise the level of nutrition and public health.
Article 51A(k) places a fundamental duty on parents and guardians to provide
educational opportunities to their children. The Children Act, 1960 was the
first central enactment, but it applied only to Union Territories. The Juvenile
Justice Act, 1986 established a uniform national scheme, defining a juvenile as
a boy below sixteen and a girl below eighteen. This distinction between boys
and girls was criticised as discriminatory and as inconsistent with
international norms.
India
ratified the United Nations Convention on the Rights of the Child (CRC) in
December 1992, and the Juvenile Justice (Care and Protection of Children) Act,
2000 was enacted to bring domestic law in line with the Convention. It raised
the age of juvenility to eighteen for both boys and girls, created Juvenile
Justice Boards and Child Welfare Committees, and was amended in 2006 and 2010
to resolve practical difficulties. The 2015 Act, which received assent at the
end of 2015 and came into force in January 2016, repealed the 2000 Act. It was further
amended by the Juvenile Justice
(Care and Protection of Children)
Amendment Act, 2021, which, among other things,
clarified the category
of "serious offences", gave District Magistrates
wider powers in monitoring child care institutions and in adoption matters, and
designated Children's Courts to deal with offences under the Act.11
1.5 Salient Features of the Juvenile
Justice (Care and Protection of Children) Act, 2015
The 2015 Act is a comprehensive code that deals both with children in
conflict with law and with children in need of care and protection.
Its main features relevant to this study are as follows. First, it begins with a
statement of general principles in Section 3, including the presumption of innocence, dignity and worth, best interests of the child,
family responsibility, safety, positive measures, non-stigmatising semantics, privacy
and confidentiality, the right
to be heard, institutionalisation as a measure of last resort,
and the principle of a fresh
start under which the child's
past records are to be erased.
Second, the Act creates two sets of institutions. A Juvenile Justice
Board (JJB), consisting of a Metropolitan Magistrate
or Judicial Magistrate of First Class and two social workers, of whom at least
one must be a woman, is constituted in every district to deal with children in
conflict with law. Child Welfare
Committees deal with children in need of care and protection.
Every police station is to have a child welfare
police officer, and Special Juvenile
Police Units are to be set up
in each district. A child apprehended by the police must be placed under the
charge of the Special Juvenile Police Unit or child welfare police officer and
produced before the Board within
twenty-four hours, and must not be placed
in a police lockup or lodged in jail.
Third, Section
12 provides that a child alleged to be in conflict with law shall be released on bail with or without surety,
notwithstanding the bailable or non-bailable nature of the offence, unless
there are reasonable grounds for believing that release is likely to bring the
child into association with a known criminal, expose the child to moral,
physical or psychological danger, or defeat the ends of justice. Fourth,
the Act classifies offences into petty offences (maximum punishment up to
three years), serious offences (punishable with imprisonment of three to seven
years) and heinous offences (for which the minimum punishment is imprisonment
of seven years or more).12 The class of
offence determines the manner of inquiry and the time limits within which it
must be concluded.
Fifth,
and most controversially, Section 15 provides that where a child between
sixteen and eighteen years is alleged to have committed a heinous offence, the
Board must conduct a preliminary assessment of the child's mental and physical
capacity to commit the offence, ability to understand its consequences and the
circumstances in which it was committed, and may take the assistance of
experienced psychologists or psychosocial workers. On that assessment, the
Board may either itself conduct the inquiry as a child, or transfer the case to
the Children's Court, which decides under Section 19 whether the child should
be tried as an adult. Even where a child is tried as an adult, Section 21
prohibits the death penalty and life imprisonment without the possibility of release, and Section 19(3)
requires the Children's Court to hold periodic follow-up and, on the child attaining
twenty-one years, to decide whether the child should be released or sent to
jail. Where the child is not transferred, the Board may pass orders under Section 18, such as advice or admonition, group counselling, community
service, payment of fine,
release on probation or placement in a special
home, which in general cannot exceed three years. Sixth,
Section 74 prohibits disclosure of the name, address
or school or any other
particular that may lead to identification of a child in conflict with law in
any media report, and Section 94 lays
down the method
of determining the age of a
child, giving priority to school and matriculation certificates and birth
certificates, and resorting to ossification or other medical tests only in
their absence.
1.6 Objectives, Research Questions
and Methodology
This paper
has the following
objectives: to understand the concept and causes of juvenile
delinquency; to examine
the Indian juvenile
justice framework; to study international standards and the models
adopted in selected
jurisdictions; to analyse
the approach of courts in India and abroad; and to suggest reforms. The
central research question is whether the Indian juvenile justice system,
particularly after the 2015 and 2021 reforms, strikes an appropriate balance
between the protection of children and the interests of public safety, in light
of international child rights standards. The study is doctrinal. It relies on
statutes, international instruments, judicial
decisions, committee reports
and scholarly writing as primary and secondary sources.
2. INTERNATIONAL PERSPECTIVE
2.1 International Instruments and Standards
Modern
juvenile justice rests on a body of international instruments that together set
minimum standards for States. The most important is the United Nations
Convention on the Rights of the Child, 1989, the most widely ratified human
rights treaty in the world. Article 1 defines a child as every human being
below eighteen unless the national law fixes majority earlier. Article 3
requires that the best interests of the child be a primary consideration in all
actions concerning children. Article 37 prohibits torture and cruel, inhuman or
degrading treatment, bars capital punishment and life imprisonment without
possibility of release for offences committed by persons below eighteen, requires
that arrest, detention
or imprisonment be used only as a measure
of last resort
and for the shortest appropriate period, and guarantees separation from adult prisoners and prompt access
to legal assistance. Article 40 recognises the right of every child accused of infringing penal law to be
treated in a manner consistent with the child's sense of dignity and worth,
requires States to establish a minimum age of criminal responsibility, and
encourages measures for dealing with children without resort to judicial
proceedings, provided human rights and legal safeguards are fully respected.13
The United Nations
Standard Minimum Rules for the Administration of Juvenile Justice, known as the Beijing Rules
(1985), are the earliest comprehensive soft law instrument. They stress that the juvenile
justice system shall emphasise
the well-being of the juvenile
and ensure that any reaction to juvenile offenders is always in proportion to the circumstances of both the offender and the offence. They call
for the minimum age of criminal responsibility not to be fixed at too low a
level, encourage diversion from formal proceedings, restrict
institutionalisation to a last resort, and demand protection of privacy.14 The United Nations Guidelines for the Prevention of Juvenile Delinquency, the Riyadh Guidelines (1990), shift the focus to prevention through family,
school, community and media, and caution against labelling children as deviant.15 The United Nations Rules for the
Protection of Juveniles Deprived of their Liberty, the Havana Rules (1990),
regulate conditions in custody, including accommodation, education, health care
and the use of force, while the Tokyo Rules (1990) promote non-custodial
measures.16 The International Covenant on
Civil and Political Rights, 1966, to which
India is a party, also contains safeguards: Article 6(5) prohibits the death penalty for crimes committed below eighteen, Article 10 requires segregation of accused juveniles from adults, and Article 14(4) requires that procedure for juveniles take account of their age and the desirability of promoting
rehabilitation.17
The
Committee on the Rights of the Child, which monitors the Convention, has issued
General Comment No. 24 (2019) on children's rights in the child justice system,
replacing its earlier General Comment
No. 10 (2007). It recommends that States parties
raise the minimum age of criminal
responsibility to at least fourteen
years, commends States that have set it higher,
and states that children who commit offences before eighteen should be dealt
with under the child justice system
and not be tried as adults, including
in cases of serious offences.18 This last
recommendation is difficult to reconcile with the transfer mechanism of Section
15 of the Indian 2015 Act, and the Indian
system has accordingly been
questioned in international fora.
2.2 Minimum Age of Criminal Responsibility: A Comparative Snapshot
States
differ greatly in the age at which a child can be held criminally responsible.
In England and Wales
it is ten, after the Crime and Disorder Act, 1998 abolished the presumption of doli
incapax for children aged ten to thirteen.19 Scotland, which earlier had a minimum age of eight, raised it to
twelve by the Age of Criminal Responsibility (Scotland) Act 2019. Germany fixes
it at fourteen, Sweden at fifteen, and Japan at fourteen under its Juvenile
Act. South Africa raised it from ten to twelve through the Child Justice Act,
2008 as amended. India's minimum age of seven under the Bharatiya Nyaya
Sanhita, 2023, subject to a presumption of
immaturity until twelve, is one of
the lowest in the world and
falls well below the fourteen years recommended by
the Committee on the Rights of the Child.
2.3 The United States
The juvenile
court was born in the United States.
The Illinois Juvenile
Court Act of 1899
established the first juvenile court in Cook County, Chicago,
on the parens patriae
model, with informal, non-adversarial proceedings aimed at the child's
welfare. Over the twentieth century, concerns arose that children
received neither the care promised nor the procedural protection due to adults. In response, the Supreme Court transformed juvenile procedure through
a series of landmark
decisions, discussed in Part
3 below. A distinctive feature of American law is the
"transfer" or "waiver" of juveniles to adult courts,
whether by judicial decision, prosecutorial discretion or statutory exclusion for particular offences.
Research has questioned the deterrent value
of transfer, and found higher recidivism among transferred youth. The federal
Juvenile Justice and Delinquency Prevention Act, 1974 encourages States to
deinstitutionalise status offenders and to separate juveniles from adult
prisoners.
2.4 The United Kingdom
In England
and Wales, the Children and Young Persons
Act, 1933 required
courts to have regard to the welfare of the child,
but the system changed with the Crime and Disorder Act, 1998, which created the
Youth Justice Board and multi-agency Youth Offending Teams and introduced
measures such as reprimands, final warnings and referral orders under which a
young offender agrees a contract with a community panel. Youth justice thus
combines a welfare approach with an offence-focused approach. The jurisprudence of the European
Court of Human Rights
has influenced domestic
practice, most notably
in T v United Kingdom and
V v United Kingdom, which arose from the trial
of two ten-year-old boys for the murder
of a toddler in 1993. The Court held that the minimum age of criminal
responsibility of ten was not itself a violation of the Convention,
but that the boys' trial in a public adult Crown Court in a highly publicised
and intimidating atmosphere denied them a fair hearing under Article 6.20
2.5 Germany, New Zealand,
South Africa and Japan
Germany
follows an explicitly educational model under its Juvenile Court Act (Jugendgerichtsgesetz). The guiding
principle is that the response to a young offender should primarily be
educational, and criminal punishment is a last resort. The Act applies to
persons between fourteen and eighteen, and courts
may apply it to young
adults between eighteen and
twenty-one where their development is found to be still that of a juvenile. The
maximum juvenile sentence is generally five years and up
to ten years for the gravest offences,
far lower than adult maxima.
New
Zealand, under the Oranga Tamariki Act, 1989, pioneered the family group
conference, in which
the young person,
family, victim and professionals jointly
decide how the offender should make amends. Most
young offenders are dealt with outside the court, and the model is widely cited
as an example of restorative justice and diversion. South Africa's Child
Justice Act, 75 of 2008 sets up a dedicated system with a preliminary inquiry,
extensive diversion options, and a minimum age of responsibility of twelve.
Japan, which reduced the general age of majority to eighteen in 2022,
nevertheless retained juvenile procedures for eighteen and nineteen year olds,
treating them as "specified juveniles" with special rules for serious
offences. These examples show that many jurisdictions respond to concerns about
serious youth crime by adjusting the system without abandoning its
child-centred character.
2.6 India and International Standards: A Gap Analysis
Measured
against the international standards discussed above, the Indian framework shows both strong alignment and notable divergence. India is broadly
aligned in fixing
eighteen as the age of childhood for juvenile justice purposes, in
prohibiting the death penalty and life imprisonment without release for
offences by children, in providing for bail as a rule, in insisting on privacy, and in requiring separation of children
from adult prisoners. The statutory
preference for diversion, community service
and probation also reflects the spirit of the Beijing and Tokyo Rules.
The divergences are equally clear. The minimum age of criminal responsibility of
seven is far lower than the international benchmark. The transfer of sixteen to eighteen year olds to the adult system
under Section 15 conflicts with the recommendation of the Committee on the Rights of the
Child that all persons below eighteen be dealt with by the child justice
system. The reliance on subjective preliminary assessments, which vary in
quality from one Board to another, raises concerns of arbitrariness under
Article 14 of the Constitution. Finally, the gap between law and practice
is itself a divergence from the Havana Rules, since
overcrowded and poorly staffed
institutions cannot deliver
the education, health
care and individual attention that those
Rules require. Closing these gaps, and not merely enacting new provisions, is
the real challenge before Indian policy makers.
3. JUDICIAL PRECEDENTS RELATED TO
JUVENILES
Courts have played a central role in shaping
juvenile justice, both by interpreting statutory provisions and by enforcing constitutional and human rights
standards. This part first examines Indian decisions, grouped by
theme, and then turns to leading foreign decisions.
3.1 Indian Case Law
The Supreme
Court's early engagement with juvenile justice
came through public
interest litigation. In Sheela
Barse v Union of India, the petitioner, a journalist, drew the Court's
attention to children confined in jails along with adults. The Court emphasised
that children are a supremely important national asset, that their treatment is
a crucial test of a nation's humanity, and issued directions for speedy trial,
prohibition of detention of children in jails, and the establishment of
juvenile courts and observation homes under the Children Acts.21 In Sanjay Suri v Delhi
Administration, the Court
similarly took notice
of juveniles lodged in Tihar Jail and directed corrective
measures.22 In Gaurav Jain v Union of India, the Court dealt with the
rehabilitation of children of sex workers and stressed that such children must
be mainstreamed through education and care, and not segregated or stigmatised.23 These cases established that Article 21 and the directive principles impose positive obligations on the State towards children.
The reformative philosophy has deep roots in Indian
jurisprudence. In Mohd Giasuddin v State
of Andhra Pradesh, Justice V R Krishna
Iyer observed that the purpose of
punishment should be to reform the offender and that
criminals are often the product of social conditions for which society shares
responsibility, a sentiment
that applies with special force
to children.24 More
recently, in Sampurna Behrua
v Union of India, the Court monitored
the implementation of the
2015 Act across the country and found that many States had not constituted
Juvenile Justice Boards and Child Welfare
Committees, left posts
vacant, and failed
to provide for child-friendly institutions. The Court issued
directions on filling
vacancies, framing rules, setting up Special Juvenile Police Units and the
proper functioning of child care institutions.25
(b) Relevant date for determining juvenility
A
recurring question has been the date on which age is to be reckoned. In Arnit Das v State of Bihar, a two-judge bench held that the relevant
date was that on which
the accused was first produced before the court. This was overruled by a Constitution Bench in Pratap Singh
v State of Jharkhand, which held that the date of the offence is the
relevant date for deciding whether a person is a juvenile, because the
protective purpose of the legislation would be defeated if delays in investigation or trial could take
a child outside its benefit. The Court also dealt with the transition from the 1986 Act to the 2000 Act.26 In Hari Ram v State
of Rajasthan, the Court
held that following the 2000 Act as amended in 2006, every person who was below
eighteen on the date of the offence
is entitled to be treated
as a juvenile, even if the offence
was committed before the 2000 Act came into force and even though the 1986 Act had fixed a lower
age for boys.27
(c) Proof of age and
the plea of juvenility
The
Supreme Court has repeatedly held that a claim of juvenility can be raised at
any stage. In Abuzar Hossain v State of
West Bengal, the Court held that the plea may be raised before any court,
at any stage, even after final disposal of the case, but that the claim must be
supported by some prima facie material, and a bald assertion is not enough. The
court is then to conduct an inquiry and record a finding.28
In Jayendra Vishnu Thakur v State of
Maharashtra, the Court held that the juvenile law is a beneficial piece of
legislation which must be interpreted liberally in favour
of the child.29 In Ashwani Kumar Saxena v State of Madhya
Pradesh, the Court made clear that the Board or court must follow the
hierarchy of documents prescribed by law, giving
primacy to matriculation or school certificates, then birth
certificates issued by local authorities, and only in their absence
should a medical
(ossification) test be ordered. Courts should not conduct a roving
inquiry or insist on documents beyond those
prescribed, and where two views are possible on age, the one favouring the child should be preferred.30
The principle was reiterated in Mukarrab
v State of Uttar Pradesh, where the Court
gave effect to documentary proof of age and held that mere suspicion about authenticity
cannot displace statutory evidence.31
These decisions are now reflected in Section 94 of the 2015 Act.
(d) Constitutionality of the age of eighteen and the Nirbhaya
controversy
In the wake of the December
2012 incident, petitions were filed challenging the definition of
"juvenile" in the 2000 Act as arbitrary. In Salil Bali v Union of India, the Supreme Court upheld the age of
eighteen. It noted that the age was fixed in accordance with the CRC and
Beijing Rules and reflected a considered legislative policy, that science and
research on adolescent maturity did not support the argument that
sixteen-year-olds understand consequences like adults, and that there was no
empirical data to show that juveniles were disproportionately involved in heinous
crimes.32 In Dr Subramanian Swamy
v Raju, the Court again refused to read down the Act or to direct
that the juvenile
in the Delhi case be tried as an
adult. It held that the juvenile could not be denied the benefit of the Act,
and that whether juvenile law needs to be changed is a matter for Parliament.33 The Justice J S Verma Committee, which
reported in January
2013, similarly recommended against lowering the age,
and the Parliamentary Standing Committee examining the 2014 Bill expressed
serious reservations about trying sixteen to eighteen year olds as adults.34 Parliament nevertheless chose the path
of limited transfer in 2015.
(e) Classification of offences
under the 2015 Act
The 2015 Act has itself generated
litigation. In Shilpa Mittal v State of NCT of Delhi, the Supreme Court considered offences for which the law
prescribes a maximum punishment of more than seven years but does not provide any minimum punishment, or provides a minimum of less
than seven years. The Court held that such offences are not "heinous
offences" within Section 2(33), which covers only offences with a minimum
punishment of seven years or more,
and fall instead in the category of "serious offences". The preliminary assessment under Section 15 and the possibility of transfer to the Children's Court therefore does not apply to
them. The Court also noted the legislative gap and observed that Parliament
might consider the matter.35 Parliament later
took up the gap in the 2021 Amendment, which expressly provides that offences with a maximum
punishment of more than seven years but with no minimum, or with
a minimum of less than seven years,
are "serious offences". The decision is significant because it favours a strict, narrow
reading of provisions that expose children to adult trial.
3.2 Foreign Decisions
In the United States,
Kent v United States
(1966) was the first major
intervention. Holding that the
juvenile court's waiver of jurisdiction to the adult court without a hearing,
access to records or reasons
was invalid, the Supreme
Court remarked that the child
receives "the worst of both worlds", neither the
protection given to adults nor the solicitous care promised to children.36 In In
re Gault (1967), the Court held that juveniles facing commitment to an
institution are entitled
to notice of charges, the right to counsel, the right to confront and cross-examine
witnesses and the privilege against self-incrimination.37
In re Winship (1970) extended the
proof beyond reasonable doubt standard
to juvenile delinquency
adjudications.38 In McKeiver v Pennsylvania
(1971), however, the Court declined
to hold that juveniles have a
constitutional right to jury trial, in order to preserve the distinct character
of juvenile proceedings.39
The more recent line of cases is built on developmental science. Roper v Simmons
(2005) held that the execution of persons who were under eighteen at the time of the offence
violates the Eighth Amendment, identifying lack of maturity and an
underdeveloped sense of responsibility, vulnerability to negative influences
and the greater possibility of reform as the characteristic differences between juveniles and
adults.40
Graham v Florida (2010) prohibited life imprisonment without parole for juveniles
convicted of non-homicide offences, Miller
v Alabama (2012) held mandatory life without parole for juvenile
homicide offenders unconstitutional, and Montgomery v Louisiana (2016) made Miller retroactive.41
These decisions parallel Section 21 of the Indian Act, which bars the death
penalty and life imprisonment without release for children, even those tried as
adults, and they are consistent with Article 37(a) of the CRC. Together with
the European Court's judgment in T and V
v United Kingdom discussed above, they show a worldwide judicial trend:
courts insist on fair, age-appropriate procedure and recognise diminished
culpability of the young.
4. CONCLUSION AND SUGGESTIONS
Juvenile
delinquency is a symptom of failures of family, school, community and State,
and any serious response must begin with prevention. The juvenile justice
system, however, is the last line of response
when prevention has failed, and its task is to hold children
accountable in a manner that protects
society while preserving the child's chance
of becoming a productive
adult. India's law has travelled a long way from colonial reformatory schools to a rights-based
statute grounded in the Constitution and the CRC. The 2015 Act, with its
principles of best interests, diversion, bail as a rule, privacy, the right to
a fresh start and child-friendly institutions, is in many respects advanced.
Judicial decisions from Sheela Barse to
Salil Bali and Shilpa Mittal have strengthened that framework, treating juvenile
law as beneficial legislation and insisting that children not be placed beyond
its protection by technicalities.
At
the same time, the system faces serious problems. The Supreme Court's findings
in Sampurna Behrua show that
statutory institutions are often under-staffed or non-functional, and that observation homes and special
homes frequently lack adequate education, counselling and healthcare. Pendency of inquiries before Boards,
and delays in preliminary assessments, defeat the purpose of speedy and
sensitive resolution. The transfer provision in Section 15 depends on
assessments of a child's "mental capacity" by Boards and
psychologists that are often unevenly performed, and it runs contrary to the position
of the Committee on the
Rights of the Child and to the research consensus that adolescent brains
continue to develop into the early twenties. The low minimum
age of criminal responsibility in the Bharatiya Nyaya Sanhita and
the practical difficulty of proving age, particularly for children without
documents, continue to cause injustice.
Based
on the above analysis, the following suggestions are put forward. First, the
minimum age of criminal responsibility should be reviewed
and raised towards the fourteen years recommended internationally. Second, the transfer of children
to the adult system under Section 15
should be reconsidered, or at least confined to exceptional cases with uniform,
scientifically sound assessment protocols, mandatory reasoned orders and the
involvement of qualified child psychologists. Third, States must fill vacancies in Juvenile Justice
Boards, Child Welfare
Committees and Special Juvenile Police Units, ensure regular training of Board
members, police and probation officers in child psychology and law, and monitor
child care institutions through independent inspection. Fourth, the system
should prioritise diversion, community service, counselling, family-based care
and restorative approaches such as family group conferences, with institutionalisation as a genuine
last resort. Fifth,
education, vocational
training, and aftercare programmes for children leaving
institutions, as the 2015 Act envisages,
should be properly funded so that these children are not pushed back into
crime. Sixth, prevention through schools, community programmes, addressing
substance abuse and strengthening families should
receive attention in line with the Riyadh Guidelines, and reliable
disaggregated data should
be collected to support evidence-based policy rather than reaction to isolated cases.
In
the end, the measure of a juvenile justice system is not how harshly it responds to the worst case before it but how effectively it reduces the number of children who reach that stage
and
restores those who do. A system that is firmly rooted in the Constitution, in the international
standards India has accepted, and in the humane vision expressed by the
courts, can protect both children and society.
1This approach is rooted in the doctrine
of parens patriae, under which the State acts as the guardian of those who cannot protect themselves. See Ahmad
Siddique, Criminology, Penology and
Victimology (Eastern Book Company, 6th edn).
2National Crime Records Bureau, Crime in India (Ministry of Home
Affairs, annual reports), chapter on crimes by juveniles. Exact figures vary
every year and the latest edition should be consulted before citing numbers.
3The juvenile was held
guilty by the Juvenile Justice Board, Delhi on 31 August 2013 and sent to a special home
for
three years, the maximum then permissible under the Juvenile Justice (Care and Protection of Children) Act, 2000.
4Juvenile Justice
(Care and Protection of Children) Act, 2015, s 2(12) (definition of "child") and s 2(13) (definition
of "child in conflict with law").
7Edwin H Sutherland, Principles of Criminology (1939); Edwin H Sutherland and Donald R Cressey, Criminology
(J B Lippincott, 10th edn 1978).
11Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 (Act 23 of 2021).
12Juvenile Justice
(Care and Protection of Children) Act, 2015, s 2(33) (heinous
offences), s 2(45) (petty offences) and s 2(54) (serious offences),
as clarified by the 2021 amendment.
13Convention on the Rights
of the Child, adopted 20 November 1989, entered into force 2 September 1990, 1577
UNTS 3, arts 1, 3, 37 and 40. India ratified the Convention on 11 December
1992.
14United
Nations Standard Minimum Rules for the Administration of Juvenile Justice
(Beijing Rules), UNGA Res 40/33 (29 November 1985), rules 4, 5, 8, 11, 17 and
19.
15United
Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines), UNGA Res 45/112 (14 December 1990).
16United Nations Rules for the Protection of Juveniles Deprived
of their Liberty (Havana Rules), UNGA Res
45/113 (14 December 1990);
United Nations Standard
Minimum Rules for Non-custodial Measures
(Tokyo Rules), UNGA Res 45/110 (14 December 1990).
17International Covenant on Civil
and Political Rights 1966, 999 UNTS 171, arts
6(5), 10(2)(b), 10(3)
and 14(4).
18UN Committee on the Rights of the Child, General Comment No 24 (2019) on children's rights in the child justice system, CRC/C/GC/24 (18 September 2019), paras
22 and 29 to 31.
19Crime
and Disorder Act 1998 (UK),
s 34.
20T
v United Kingdom and V v United
Kingdom (1999) 30 EHRR 121 (Grand Chamber, 16 December 1999).
21Sheela Barse v Union of India (1986)
3 SCC 596. See also Sheela Barse v
Secretary, Children's Aid Society (1987) 3 SCC 50, in which the Court
examined conditions in remand homes and the need for trained staff and rehabilitation.
24Mohd Giasuddin v State
of Andhra Pradesh (1977) 3 SCC
287.
26Arnit Das
v State of Bihar (2000)
5 SCC 488, overruled in Pratap Singh v
State of Jharkhand (2005) 3 SCC 551 (Constitution Bench).
30Ashwani Kumar Saxena v State
of Madhya Pradesh (2012) 9 SCC
750.
34Committee on Amendments to Criminal Law (Chair: Justice J S
Verma), Report (January 2013);
Department-related Parliamentary Standing Committee on Human Resource
Development, Two Hundred and Sixty-fourth
Report on the Juvenile Justice (Care and Protection of Children) Bill, 2014 (Rajya
Sabha, 2015).
35Shilpa Mittal v State of NCT of Delhi (2020) 2 SCC 787.
41Graham v Florida 560 US 48 (2010); Miller v Alabama
567 US 460 (2012); Montgomery
v Louisiana 577 US
190
(2016).
How to Cite This Article
SHUBHAM GOSWAMI, Juvenile delinquency and the juvenile justice system., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. Volume 4, Issue VOLUME 4 ISSUE 2, October 2026, pp. 376-394. Available at: https://www.whiteblacklegal.co.in/details/juvenile-delinquency-and-the-juvenile-justice-system
Author & Publication Record
Authors: SHUBHAM GOSWAMI
Registration ID: 107147 | Published Paper ID: WBL7147
Year: Oct- 2026 | Volume: 4 | Issue: 2
Approved ISSN: 2581-8503 | Country: Delhi, India A
Page No.: 376-394
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