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AGE OF CRIMINAL RESPONSIBILITY
The Indian Penal Code (IPC) sets the age of criminality at 7 years and considers children between 8 and 12 years as not criminally responsible if the juvenile has not attained sufficient maturity to understand the nature and consequences of her or his conduct. There is no such immunity for children above age 12. The JJA, on the other hand, sets the juvenile court jurisdiction differently for boys and girls—18 for girls and 16 for boys. The assumption was that girls in India needed extended protection due to differences in the socialization of boys and girls; boys are given more freedom and opportunities to venture into the real world, whereas similar opportunities are limited for girls (Bhattacharya and Bhattacharya 2015). The age disparity has been rectified in later legislation.
THE STATUS OF CHILDREN IN CONFLICT WITH LAW IN INDIA IN THE CONTEXT OF CRC
In 1923, the Declaration of the Rights of the Child was adopted by the Save the Children International Union and was endorsed by the League of Nations General Assembly in 1924 as the World Child Welfare Charter. The Declaration established the rights of children to the means for material, mental, social, moral, and spiritual development. The Declaration also recognized the right to adequate nutrition, housing, recreation, and medical care; free education at least at the elementary school level; freedom from all forms of exploitation; and an upbringing that instills a sense of social responsibility (UNICEF 2004).
In 1948, the United Nations (UN), which had replaced the League of Nations, adopted the Universal Declaration of Human Rights (UDHR). In the Declaration, the nations of the world acknowledged that children were entitled to special care and assistance. After 1948, the UN took other initiatives to protect the rights of children, such as the 1959 Declaration of the Rights of the Child and the UN Educational, Scientific, and Cultural Organization’s (UNESCO) proclamation of 1979 as International Year of the Child. The goal of the declaration was to draw attention to the problem of children throughout the world as well as prevent malnutrition and improve access to education (UNICEF 1979). These efforts resulted in the CRC in 1989. The following year, the UN World Summit for Children convened to consider how to guarantee children a better life. The CRC was ratified by the required quorum of 20 countries. As of 2015, the United States is the only country that has not ratified CRC.
Other guidelines that work in close conjunction with the CRC in the area of juvenile justice are (1) the UN Standard Minimum Rules for the Administration of Juvenile Justice (i.e., the Beijing Rules) of 1985, (2) the UN Rules for the Protection of Juveniles Deprived of Their Liberty (i.e., the JDL Rules) of 1990 (Office of the United Nations High Commissioner for Human Rights 1990), and (3) the UN Guidelines for the Prevention of Juvenile Delinquency (i.e., the Riyadh Guidelines) of 1990. The Beijing Rules provide a framework for operations of national juvenile justice systems and offer states guidelines for the investigation and prosecution of juveniles, the adjudication and disposition of juveniles, and the treatment of juveniles in both institutional and noninstitutional settings (Office of the United Nations High Commissioner for Human Rights 1985; Van Bueren and Tootell 2007). The Rules operate within the framework of the Riyadh Guidelines and the UN Rules for the Protection of Juveniles Deprived of their Liberty (i.e., the JDL Rules; Office of the United Nations High Commissioner for Human Rights 1990). These three sets of rules provide guidelines for juvenile justice processes. First, the Riyadh Guidelines recommend states to develop proactive policies to prevent and protect young people from offending. Second, the Beijing Rules provide guidelines for establishing a separate and specialized juvenile justice system. Third, the JDL rules establish measures for the social reintegration of young people deprived of their liberty, whether in prison or other institutions (Van Bueren and Tootell 2007; UNICEF 2011b).
For all practical purposes, the criminal justice personnel should first look to the CRC and then to the Riyadh Guidelines for preventing children from coming into conflict with the law. Second, they should look to the CRC and the Beijing Rules when dealing with the kids accused of having come into conflict with the law. Third, the personnel of the criminal justice system should look to the CRC and the JDL Rules for dealing with children found to be in breach of criminal law (Srinivasan 2010).
Many of the rights provided in the CRC had already existed, in a different form, in the Constitutional Law of India that came into force on January 26, 1950. For example, Article 14 guarantees equal protection before the law. Article 15 prohibits discrimination of any citizen and allows states to develop special protections for women and children. Article 23 prohibits trafficking in human beings and beggar and other forms of forced labor. Article 24 prohibits employment of children under 14 in hazardous occupations.
The right to participation accords children the freedom of thought and expression, conscience, and religion and the right to participate in decision-making. States that are party to the CRC are obliged to develop and undertake all necessary actions and policies to promote the best interests of children (Bullis 1991). India ratified the CRC in 1992, along with 193 other countries (United Nations Treaty Collection 2011). By ratifying the CRC, India is obligated both morally and legally to uphold the principles enumerated in the CRC. The participatory rights of children are discussed below.
The participatory rights of children are defined in the CRC’s Article 5 (parental accountability), Article 9 (nonseparation of children from families), Article 12 (participation in judicial or administrative proceedings), Article 13 (freedom of expression), Article 14 (freedom of conscience, thought, and religion), Article 15 (freedom of association), Article 16 (right to privacy), Article 17 (right to information), and Article 29 (right to education). Though all the above articles spell out the participatory rights of children, Article 12 deals specifically with the right to be heard in any judicial and administrative proceedings relating to children violating criminal laws, children as victims of crime, and children as witnesses in criminal offenses committed by adults/juveniles (Office of the United Nations High Commissioner for Human Rights 2011; Srinivasan 2010).
The lack of enforcement of many of the provisions of the JJA, coupled with the government of India’s ratification of the CRC, prompted India to enact the JJCPA in 2000 (Kethineni and Braithwaite 2014). The Act was intended to provide proper care, protection, and treatment by catering to children’s development needs as well as adopting a child-friendly approach in the adjudication and disposition of juveniles (Srinivasan 2010). Some of the provisions of the JJCPA were challenged in the High Court of Delhi through public-interest litigation. The Court proposed amendments to the Act. Although the initial bill with these changes lapsed, a revised amendment (i.e., the Juvenile Justice (Care and Protection of Children) Amendment Act 2006) was passed.
A 2010 study of the participatory rights of juveniles revealed that a significant percentage of the police said that when they apprehended children, they did not inform them of the reasons for the arrest (Srinivasan 2010). Also, they did not tell the children of the offense for which they were apprehended. In this context, it is worth mentioning certain provisions of the CRC. Article 40[a][ii], one of the essential rights of children, states that children have the right to be informed promptly and directly of the charges against her or him. However, in reality, a majority of law enforcement personnel, particularly the police, have not fulfilled this right. Plausible explanations include ignorance on the part of the police or the police’s apathetic attitude toward children in conflict with the law. The findings also revealed that a considerable percentage of police officers admitted that children in conflict with the law were kept at the police station after their apprehension. This practice was in contravention of Section 10(1) of JJA (2000): When the police apprehend a juvenile, the officer-in-charge of the special juvenile police unit or the designated police officer should produce the juvenile before the Juvenile Justice Board (JJB) without any loss of time. It was also noted that in no case should a juvenile be placed in police lockup. Thus, the practice of keeping juveniles in police stations should be viewed seriously (Srinivasan 2010).
According to Article 18(a) of UN Rules for the Protection of Juveniles Deprived of their Liberty (i.e., the JDL Rules), children in conflict with the law should have the right to legal counsel and be able to apply for free legal aid. Such a provision also appears in Article 40(2)(a)(ii) of the CRC. The findings of the 2010 study by Srinivasan show that a vast majority of respondents reported that if children were not in a position to engage their legal counsel, the Board arranged for legal counsel. The findings also revealed that children were allowed to speak with their legal counsel confidentially. This practice followed Article 16 of the CRC and Article 18(a) of the JDL Rules. It should also be noted that, as reported by members and chairpersons of Juvenile Justice Boards, children were given the opportunity to express their opinion. Also, children were allowed to cross-examine their witness/witnesses. Although it appeared right that the children were released on bail, the time it took to release them on bail was a matter of concern, because the period of detention for a child should be for the shortest period. This rule was clearly enunciated in the CRC (Article 37[b]).
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