— Jennifer Peirce, John Jay College of Criminal Justice
For the first part of the 20th century, the Indian government dealt with juveniles in conflict with the law under various state-level Children’s Acts. The purpose of these laws was to protect vulnerable minors, and they included separate trial processes for juveniles, the first of which was the Bombay Juvenile Court, established in 1927. However, there were not always separate detention facilities. The Children’s Act of 1960 explicitly separated the protection of delinquent children, and defined juveniles as boys under 16 and girls under 18. This Act maintained two institutions that worked in tandem: the Welfare Board and the Children’s Court. During this period, states retained autonomous systems, which led to considerable differences across Indian states (Adenwalla 2006).
The Juvenile Justice Act of 1986 marked a shift from a welfare model to a justice model, and attempted to consolidate legislation nationally and to align it with the UN Minimum Rules on the Detention of Juveniles (Beijing Rules 1985). The Act calls for the rehabilitation, development, and protection of minor offending juveniles and adjudication for more serious offending juveniles (Hartjen and Kethineni 1996). However, both juvenile offenders and neglected minors under state protection were held in the same detention centers. The Indian juvenile justice system appears to be relatively non-punitive. In 1988, youth courts issued dispositions for 23,228 juveniles and sent just over 900 juveniles to a Special Home, which is an out-of-home placement for juveniles with delinquent or special needs. Placement in a Special Home typically lasts for a minimum of three years, but judges can shorten or lengthen these sentences. Youth courts acquitted, fined, or released the majority of the remaining juvenile cases (Hartjen and Kethineni 1996). The juvenile population in India in the late 1980s was over 200 million so it would appear that juvenile crime is proportionally non-existent in India. However, part of the reason for the low number of juvenile arrests is that Indian citizens mistrust the police. Also, families exercise informal control over their children to ensure their compliance because youth deviance stigmatizes the entire family (Hartjen and Kethineni 1996).
India ratified the UN Convention on the Rights of the Child (CRC) in 1992, and this required further protection measures within the Indian juvenile justice system. This resulted in the Juvenile Justice (Care and Protection) Act (2000), which is considered one of the most progressive juvenile justice frameworks in Asia (PRI 2014). The JJA addresses both minors who are in conflict with the law and those who are vulnerable due to neglect or poverty, and mandates separate treatment for the two groups. Juveniles in the first group go through a trial-type process managed by a Juvenile Justice Board, which is composed of a magistrate and two social workers and promotes a “socio-legal” perspective that prioritizes rehabilitation. The maximum sentence for a juvenile is three years, served in a “Special Home” or “Observation Home.” Other sentence options include community service and probation. Minors who are vulnerable or neglected but not accused of a crime are the responsibility of the Juvenile Welfare Board, which can place them in a Juvenile home.
The Juvenile Justice Act clarified that all people who are under 18 years old at the time of the alleged offence are juveniles. The minimum age of criminal responsibility in India is 7 years old, although minors between 7-12 years old are treated differently than those who are 12-18 years old. Given that the previous law had set the age for being charged as an adult at 16 years old for boys, after the Juvenile Justice Act was in place, the number of boys in the juvenile system increased substantially and suddenly (Adenwalla 2006). Despite this, the infrastructure for the juvenile justice system was not expanded, and both the Boards and the detention centers continue to face capacity constraints.
A criticism of the JJA is that it provides more protection to neglected minors than to those accused of crimes, many of whom are also neglected and vulnerable (Adenwalla 2006). Conversely, critics also contend that it criminalizes neglected youth who have no criminal activity, as it requires them to live in a confined center for protection and rehabilitation aims. Furthermore, the juvenile justice system, though relatively progressive on paper, is implemented unevenly (and sometimes not at all) across India (Ferrara and Ferrara 2005), and with insufficient resources. Although the maximum time for case disposition is supposed to be seven months, the Juvenile Justice Boards typically have significant backlogs and delays. Since there are minimal programs and services in the “Observation Homes,” the youth often become restless and aggressive, and escapes occur (Adenwalla 2006). Critics claim that police often exaggerate the age of youth they arrest, as processing them through the juvenile system is more onerous. Despite a 1984 ruling that requires a court to verify the age of any defendant appearing to be under 21 years old, this does not always occur, especially in areas with lower birth registration rates (Adenwalla 2006).
Youth custody in India appears to have fluctuated since the enactment of the Juvenile Justice (Care and Protection) Act. However, the different placement facilities for juveniles obscure the relative constancy of youths in custody in recent years. Between 2005 and 2009, youth courts placed 692 fewer juveniles in a fit institution (1,933 down to 1,241 juveniles). During this time, youth courts placed 997 more juveniles in a Special Home (4,423 up to 5,420 juveniles) (National Crime Records Bureau 2005; National Crime Records Bureau 2009). In 2013, there were 1,489 (4%) were sent to fit institutions, while 9,549 (22%) were sent to Special Homes. One form of custody was substituted for another. While the Indian government has attempted to reduce imprisonment and provide rehabilitation for juvenile delinquents and neglected youths, the legislation has had minimal effect on overall youth custody. In addition, 27.8% of youth apprehended in 2013 had their case disposal pending at the end of the year; some of these youth are in pre-trial detention. Three states reported 100% case disposal for 2013, which suggests that other states had very low disposal rates (National Crime Records Bureau 2013).
In 2013, the Indian authorities apprehended (the term used for arresting a minor) 43,506 minors, 95 percent of whom were boys. Two-thirds of these minors were ages 16-18 years old, and 31 percent were 12-16 years old. About half (51%) had less than primary-level education, and 81 percent resided with their parents. The total number of Indian Penal Code crimes committed by juveniles rose by 13 percent from 2012-2013, although as a proportion of total crimes in India, there was little change: 1.3 pecent in 2013, compared to 1.0 percent in 2003. (The majority of apprehensions of youth are for IPC crimes – 89% – with the remainder of apprehensions for Special and Local Law violations, such as gambling or pornography.) The most significant increases occurred in crimes against women (132% increase in assault on women, 71% increase in insult to women’s modesty, and 60% increase in rape) – although these rates could also be influenced by the growing willingness to report this type of incident (National Crime Records Bureau 2013).
In the past few years, there is growing debate in India about whether the juvenile justice system is too lenient. The perception of lenience is sparked mostly by high-profile cases of very serious crimes committed by juveniles, for which the maximum sentence remains three years in a detention facility. The most influential case was the 2013 gang-rape of a student on a bus in Delhi; one of the perpetrators was a juvenile. Given this context, the Minister of Women and Child Development proposed a bill in 2014 that would allow people 16-18 years old who are accused of serious crimes to be treated as adults, with the possibility of sentences above 3 years – but excluding the possibility of a life sentence or the death penalty. Child protection and human rights advocates oppose this bill, as it does not ensure other protections for minors during the trial (e.g. role of guardian, anonymity), and it goes against the principles of the CRC. Nevertheless, there is broad public and political support for this measure.
Adenwalla, M. (2006). Child Protection and Juvenile Justice System for Juveniles in Conflict with the Law. Mumbai: Childline India Foundation.
Ferrara, Frederico and Valentina Ferrara (2005). The Children’s Prison: Street Children and India’s Juvenile Justice System. Care Share India.
Hartjen, C., and S. Kethineni (1996). Comparative delinquency: India and the United States. New York: Garland Publishing
Kumar, S. (2014, 13 August). How Should India Try its Juvenile Criminals? The Diplomat.
National Crime Records Bureau (2013). Crime in India 2013. Ministry of Home Affairs.
National Crime Records Bureau (2009). Crime in India 2009. Ministry of Home Affairs.
National Crime Records Bureau (2005). Crime in India 2005. Ministry of Home Affairs.
Penal Reform International (2014). When the crime overshadows the child: International standards and national practice in reconciling serious crime and childhood. Penal Reform International and UNICEF.