Child in conflict with law

From Justice Definitions Project

What is child in conflict with law

"Children in Conflict with Law" refers to individuals under the age of eighteen who become involved in the legal system due to their alleged involvement in criminal activities. This term encompasses a wide range of offenses, from minor violations such as vagrancy, begging, or alcohol consumption, to more severe crimes like murder or sexual assault. Often, children are manipulated by adults into committing crimes, exploiting the fact that juveniles typically receive more lenient punishment.

Official definition

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 Section 2 (13) defines “child in conflict with law” as  a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence. The act, which came into effect on January 15, 2016, repealed the 2000 Act and the term "juvenile" was replaced with "child in conflict with the law" throughout the Act to remove the negative connotations associated with the former term. It aims to address the apprehension, detention, prosecution, punishment, rehabilitation, and social reintegration of children in conflict with the law.

Section 74 - 89 of Chapter IX of the Act provides offenses against the children in a detailed format.It includes crimes like disclosing information about a child who is a victim of a crime, in need of care, or in conflict with the law[1], assault, abandonment, abuse, and neglect likely to cause mental or physical suffering[2]. Other offenses include employing a child for begging[3], giving intoxicating substances such as alcohol or drugs without a doctor's order[4], and using children to sell or smuggle such substances[5]. Additionally, engaging children in bondage for employment, withholding their earnings, or using them for one's benefit[6] is considered an offense. Illegal adoption procedures[7], the sale or purchase of children[8], corporal punishment in child care institutions[9], and the recruitment of children by militant groups[10] are also criminalized. Kidnapping, abduction [11]and crimes committed against disabled children[12] are recognized as severe offenses. If a child commits any of these offenses, they will be considered a child in conflict with the law under the Juvenile Justice Act[13].

The rights of juvenile offenders are defined by a wide range of international instruments, which indicates that there is a need to devote special attention to these juveniles and ensure minimum guarantees of the protection of their rights[14]:

Unlike legally binding treaties such as the UN Convention on the Rights of the Child, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights, rules and guidelines fall under "soft law." Though not enforceable, soft law offers valuable direction for states in shaping their juvenile justice systems.

Juvenile Justice Board

Juvenile Justice Board is the concerned authority with a primary motive to deal with Children in conflict with Law[15]. It acts as a separate court for juveniles accused of petty, serious, or heinous crimes as they cannot be taken to a regular criminal court. The main responsibility of the board is to provide care, treatment, protection, developmental needs, inquiry, and final order for the ultimate rehabilitation of juveniles in conflict with the law. JJB consists of a Chief Judicial Magistrate or Metropolitan Magistrate (experience of at least 3 -years) and two social workers, provided that at least one of them should be a woman[16]. A child in conflict with law may be produced before an individual member of the Board, when the Board is not in sitting[17].

The Board ensures to keep the accused juvenile’s parents or guardians informed at every step of the process[18]. Also, they ensure that all the rights of the child are protected as well as legal aid via legal service institutions should be made available for juveniles[19].The Board should provide an interpreter or translator for the child if they are unable to understand the language used during the proceedings[20]. It may request the submission of a social investigation report by the officers within fifteen days of the child's production before the court to determine the circumstances of the case[21]. The Board should also collaborate with the Child Welfare Committee when a Child in Conflict with the Law (CCL) is identified as a Child in Need of Care and Protection (CNCP)[22]. The final order should emphasize rehabilitation, with continued support and follow-up by a Probation Officer, the District Child Protection Unit, or a member of a non-governmental organization, as required[23].

Procedures in relation to CCL (S 10 - 26)

The offenses committed by children are classified  into three categories:

Petty Offenses

Defined under Section 2(45) as offenses for which the maximum punishment under the Indian Penal Code or any other law is up to three years of imprisonment. Such cases are resolved by the Board through summary proceedings as per the Code of Criminal Procedure, 1973.

Serious Offenses

Defined under Section 2(54) as offenses punishable with imprisonment between three to seven years. These cases are handled by the Board following strategic procedures for preliminary trials in summons cases under the Code of Criminal Procedure, 1973.

Heinous Offenses

Defined under Section 2(33) as offenses for which the minimum punishment under the Indian Penal Code or any other law is imprisonment for seven years or more.

Apprehension

If a child alleged to be in conflict with the law is apprehended by the police, the child will be placed under the charge of the special juvenile police unit or designated child welfare police officer, and the child will be produced in court within 24 hours of apprehension. The child cannot be placed in a lockup or lodged in jail[24].The person in charge of the child assumes responsibility for their welfare, and the child remains with them for the time specified by the Board, unless released by appropriate legal proceedings[25]. Where a child alleging to be in CCl is apprehended, the designated officer should inform the parent or guardian to be present before the court, and a social investigation report should be submitted within 2 weeks by the child welfare officer. They should be informed about the status of bail for the child[26].

Bail

A child alleged to be in conflict with law should be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person. If there is any reasonable ground to believe that the release is likely to bring that person into association with any known criminal or expose the child to moral, physical, or psychological danger, or if the person’s release would defeat the ends of justice, the bail can be denied and can be kept at the observation home. When a child in conflict with the law is unable to fulfil the conditions of the bail order within seven days of the bail order, such child shall be produced before the Board for modification of the conditions of bail[27].

Inquiry

Inquiry should be completed within 4 months from the first production and unless extended to max 2 more months. A preliminary assessment in case of heinous offences shall be disposed of by the Board within a period of three months, provided that extension can be asked in serious or heinous crimes. If the inquiry for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated[28]. If the child is found not to have committed an offence, they are released, and if in need of care and protection, they may be referred to the Child Welfare Committee[29].

Assessment

In cases of heinous offences allegedly committed by a child aged 16 or older, the Juvenile Justice Board must conduct a preliminary assessment of the child's mental and physical capacity to commit the crime. This includes evaluating the child's ability to understand the consequences of the offence and the circumstances surrounding the incident. Based on this assessment, the Board may issue an order under Section 18(3). To assist with the assessment, the board can seek help from experienced psychologists, psychosocial workers, or other relevant experts[30]. For petty or serious offences, or heinous offences committed by children under 16, the Board can issue orders based on the offence's nature, the child's need for supervision or intervention, and the social investigation report. These orders include allowing the child to return home after counselling, directing participation in group counseling or community service, imposing fines, probation under supervision, or sending the child to a special home for reformative services for up to three years[31]. After receiving a preliminary assessment, the court can decide if there is a need for trial as an adult or not. It should ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of the child, including follow-up by the officer. The court will ensure that the child will be sent to a place of safety till 21 and the remaining term in jail after 21 and reformative services including educational services, skill development, alternative therapy such as counseling, behaviour modification therapy, and psychiatric support will also be provided. A periodic follow-up is conducted and sent to the children's court[32].

Other provisions

A child cannot be sentenced to death or life imprisonment without the possibility of release[33]. A child in conflict with the law will be tried separately from adults[34], and no proceedings under preventive detention laws shall be initiated against them[35]. There is no disqualification for a child who has committed an offence under this Act, and relevant records will be destroyed after a reasonable time[36]. If a child escapes from a special home, observation home, place of safety, or from the care of a person or institution, they may be taken back into custody and produced before the Board within 24 hours for appropriate measures to be determined[37].

Claim of juvenility

A claim of juvenility may be raised at any stage of a criminal proceeding, even after final disposal, either before a Court or a JJ Board. An abstract formula for age determination is neither feasible nor desirable, and a hyper-technical approach should be avoided. If two interpretations are possible based on the same evidence, the Court should lean toward holding the accused as a juvenile in borderline cases.

The age determination process is provided under Section 94 of the Juvenile Justice Act of 2015.The Committee or Board may observe the individual to assess their age[38]. In cases where there are reasonable doubts regarding the age, the Committee or Board may seek evidence under by collecting[39]:

  • the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination board,
  • the birth certificate issued by a corporation, municipal authority, or panchayat,
  • in the absence of both of the above, the age shall be determined through an ossification test or any other latest medical age determination test ordered by the Committee or Board.

These tests should be completed within 15 days from the order of the authorities, and the age thus recorded will be deemed the true age of the person for the purposes of this Act

Numerous case laws delve into the nuances and technicalities of the age determination process and the claim of juvenility. In Ranjeet Goswami v. State of Jharkhand and Others[40], the Supreme Court ruled that if a School Leaving Certificate is available, there is no need for a medical examination by a medical board. It was also noted that medical professionals generally provide an age range rather than a precise age due to the limitations of medical science. When such a range is given, the lower end of the spectrum should be presumed to be the age, aligning with the principle of the “best interest of the child”[41].

In Om Parkash v. State of Rajasthan[42], however, the Supreme Court adopted a slightly different stance, emphasizing the necessity for courts to exercise extreme caution when scrutinizing claims of juvenility in cases involving heinous crimes. This measure ensures that claims of juvenility are not used to evade punishment. Where age records in school documents are questionable, a medical opinion should take precedence. The Court clarified that while medical evidence, such as an ossification or radiological examination, is not definitive proof, it is regarded as significant corroborative evidence in age determination.

Similarly, in Parag Bhati v. State of UP[43], the Supreme Court expressed caution regarding the benefit of doubt in cases where the age of the accused is uncertain, especially when the accused is involved in severe crimes executed with premeditation, indicating maturity rather than juvenile innocence. The Court held that if documents or certificates appear fabricated or manipulated, then the Juvenile Justice Board (JJB) or Child Welfare Committee (CWC) may rely on medical age assessment reports. However, if the documents are genuine, they serve as conclusive proof of age.

In Bhoop Ram v. State of UP[44], the Court determined that in cases of conflict between documentary evidence and a medical report, documentary evidence should be given precedence. This implies that documentary proof alone may be sufficient to establish juvenility. However, in practice, documentary evidence can sometimes be easily obtained through means that may not accurately reflect an individual’s age. Although medical examinations offer additional support, they too are not entirely conclusive, as even medical experts recognize limitations in the accuracy of these tests.

Finally, in Pratap Singh v. State of Jharkhand[45], the Supreme Court ruled that the relevant date for determining a juvenile's age is the date of the offense, not the date of production before the authority or the court.

Institutional measures for CCL

Chapter 7 of the Act explains the rehabilitation and social reintegration of CCL,defining institutional facilities and other provisions. Rehabilitation can be undertaken in observation homes, special homes, places of safety, or any other suitable facility according to the situation[46]. All institutions housing CNCP and CCL, whether government-run, voluntary, or NGO-run, must be registered under the Act, regardless of whether they are receiving grants from the Centre/State, in the prescribed manner[47]. Violation of this requirement can attract a penalty of imprisonment for up to one year, a fine of not less than one lakh rupees, or both[48].The three types of stay for children in conflict with law at child care institutions include: protective custody during the pendency of the inquiry; overnight protective stay, which provides shelter to the child and prevents them from being kept overnight at a police station or any unsuitable place (such stays may only be between 20:00 hrs at night and 14:00 hrs the following day); and rehabilitation stay, where the child may be sent to a children’s home, special home, or place of safety.

The institutional facilities under the JJ Act includes :

Observation Homes

The State Government must establish and maintain observation homes, directly or through NGOs, for the temporary care and rehabilitation of children alleged to be in conflict with the law during inquiries. These homes must be registered, and if other institutions are deemed suitable, they may also be registered as observation homes. Rules will guide the management, standards, and services provided, with children segregated based on age, gender, and offense severity[49].

Special Homes

Special homes may be set up for CCL who are found to have committed an offense under the order of the Juvenile Justice Board. These homes focus on rehabilitation and social reintegration, with management and monitoring standards regulated by government rules. Segregation will be based on age, gender, offense type, and the child's mental and physical condition[50].

Place of Safety

“Place of safety” means any place or institution, not being a police lockup or jail, established separately or attached to an observation home or a special home, as the case may be, to receive and take care of the children alleged or found to be in conflict with law, by an order of the Board or the Children’s Court, both during inquiry and ongoing rehabilitation after having been found guilty for a period and purpose as specified in the order[51].

Aftercare

Support provided to children leaving child care institutions after turning eighteen, helping them reintegrate into society with financial assistance[52].

The child is transferred to their home district's Committee or Board after inquiry and consultation, considering the best interest of the child, if they are from outside the jurisdiction. The transfer of a CCL occurs only after the inquiry, and inter-state transfers involve coordination between the child’s home district Committee and Board. An escort, including a female officer for girl children, will accompany the child within 15 days, with travel allowances provided. The receiving Board or Committee will then focus on the child's restoration, rehabilitation, or social reintegration[53]. A child in a Children's Home or special home can be released to live with a parent, guardian, or authorized person for rehabilitation based on a report from a probation officer or social worker. If the child or guardian fails to meet the release conditions, the child may be returned to the institution. Temporary release periods are counted towards the child's overall stay, but failure to fulfill conditions may lead to an extended stay equivalent to the lapse[54]. A child placed in an institution may be granted leave for special occasions or emergencies for up to seven days under supervision. This time away is counted as part of the child's stay in the home. If a child in conflict with the law fails to return to the special home after the leave period is exhausted, or if permission is revoked or forfeited, the Board may extend the child’s stay for a period equivalent to the time lapsed due to such failure[55].

Juvenile Justice (Care and Protection of Children) Rules

The Juvenile Justice (Care and Protection of Children) Rules, 2016, are a set of guidelines established to govern the treatment and rehabilitation of children in conflict with the law in India. These rules were developed under the Juvenile Justice (Care and Protection of Children) Act, 2015, which replaced the previous Juvenile Justice Act of 2000.

The rules explain community service rendered by CCL above age of 14 years[56] and the importance of social background report by Child Welfare Police Officer[57]. The rules also give importance to the fact that sittings of the boards should be only held either at an observation home, near its location, or at an appropriate facility within a Child Care Institution designated for children in conflict with the law under the Act. Under no circumstances is the Board allowed to function within courtrooms or jail premises[58]. The Act also provides institutions like The District Child Protection Unit and Special Juvenile Police Unit which play crucial roles in safeguarding children's rights. The District Child Protection Unit maintains reports on children in conflict with law[59] and provides follow-up care for those who committed heinous offenses[60]. The Special Juvenile Police Unit coordinates police functions related to children[61], ensures no contact between accused and victim, and handles cases of juveniles in conflict with law[62]. Additionally, pending cases are addressed with priority, ensuring all children receive benefits under the Act regardless of age during inquiry or trial, and time spent in custody counts towards sentence or detention period. These measures aim to protect vulnerable children and provide support for those in need[63].

Appearances in official data base

The National Crime Records Bureau Crime in India 2022 report provides various data on juveniles in conflict with the law under IPC and SLL offenses in metropolitan areas. It includes the disposal of juveniles apprehended under different crime heads, along with state-wise and city-wise lists, and statistics on crimes against children[64].

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Research that engages with CCL

The paper titled Challenges faced by children in conflict with law and scope for social work interventions explores the issues faced by juvenile offenders in India and identifies factors for criminal behavior. The paper highlights that these children encounter stigmatization, disrupted education, and systemic barriers and how social work interventions, such as career guidance, family counseling, and stakeholder sensitization, aids in rehabilitation and reintegration[65].

The paper Study on Rehabilitation of children in conflict with law in India emphasizes the importance of vocational training and psychological intervention for juveniles within the juvenile justice system in India. It highlights that vocational training should be aligned with the interests of juveniles to enhance their employability and foster a sense of responsibility. The need for psychological treatment is also addressed, as many juveniles come from dysfunctional backgrounds requiring support for their emotional and mental health challenges[66].

Reference list

  1. ↑ S 74 JJ Act 2015
  2. ↑ S 75 JJ Act 2015
  3. ↑ S 76 JJ Act 2015
  4. ↑ S 77 JJ Act 2015
  5. ↑ S 78 JJ Act 2015
  6. ↑ S 79 JJ Act 2015
  7. ↑ S 80 JJ Act 2015
  8. ↑ S 81 JJ Act 2015
  9. ↑ S 82 JJ Act 2015
  10. ↑ S 83 JJ Act 2015
  11. ↑ S 84 JJ Act 2015
  12. ↑ S 85 JJ Act 2015
  13. ↑ S 89 JJ Act 2015
  14. ↑ Juvenile Justice Reform Commission, THE RIGHTS OF CHILDREN IN CONFLICT WITH THE LAW (2007), https://www.unicef.org/montenegro/media/7931/file/MNE-media-MNEpublication391.pdf
  15. ↑ S 4(1) JJ Act 2015
  16. ↑ S 4 (2) JJ Act 2015
  17. ↑ S 7 (2) JJ Act 2015
  18. ↑ S 8 (2) (a) JJ Act 2015
  19. ↑ S 8 (2) (c) JJ Act 2015
  20. ↑ S 8 (2) (d) JJ Act 2015
  21. ↑ S 8 (2) (e) JJ Act 2015
  22. ↑ S 8 (2) (g) JJ Act 2015
  23. ↑ S 8 (2) (g) JJ Act 2015
  24. ↑ S 10 JJ Act 2015
  25. ↑ S 11  JJ Act 2015
  26. ↑ S 13  JJ Act 2015
  27. ↑ S 12  JJ Act 2015
  28. ↑ S 14  JJ Act 2015
  29. ↑ S 17  JJ Act 2015
  30. ↑ S 17  JJ Act 2015
  31. ↑ S 18 JJ Act 2015
  32. ↑ S 19  JJ Act 2015
  33. ↑ S 21  JJ Act 2015
  34. ↑ S 23  JJ Act 2015
  35. ↑ S 22  JJ Act 2015
  36. ↑ S 24  JJ Act 2015
  37. ↑ S 26  JJ Act 2015
  38. ↑ S 94(1) JJ Act 2015
  39. ↑ S 94(2) JJ Act 2015
  40. ↑ Ranjeet Goswami v. State of Jharkhand and Others 2014 (1) SCC 588
  41. ↑ Dr. Malvika Singh, CLAIM OF JUVENILITY: A SECURITY FOR EVER, 2 The Haryana Police Information (2019), https://haryanapolice.gov.in/policejournal/pdf/CLAIM_JUVENILITY.pdf.
  42. ↑ Om Parkash v. State of Rajasthan 1998 SCC(CRI) 696
  43. ↑ Parag Bhati v. State of UP (2016) 12 SCC 744
  44. ↑ Bhoop Ram v. State of UP (AIR 1989 SC 1329)
  45. ↑ Pratap Singh v. State of Jharkhand (AIR 2005 SC 2731)
  46. ↑ S 39(2)  JJ Act 2015
  47. ↑ S 41(1)  JJ Act 2015
  48. ↑ S 42  JJ Act 2015
  49. ↑ S 42  JJ Act 2015
  50. ↑ S 42  JJ Act 2015
  51. ↑ S (46) of JJ Act 2015
  52. ↑ S 46  JJ Act 2015
  53. ↑ S 95  JJ Act 2015
  54. ↑ S 97  JJ Act 2015
  55. ↑ S 98  JJ Act 2015
  56. ↑ S 2(vi) JJ rules 2016
  57. ↑ S 2 (xvi) JJ rules 2016
  58. ↑ S 6(1) JJ rules 2016
  59. ↑ S 85 (1)(i)  JJ Rules 2016
  60. ↑ S 85 (1)(iii)  JJ Rules 2016
  61. ↑ S 86 (1)  JJ Rules 2016
  62. ↑ S 86 (9)  JJ Rules 2016
  63. ↑ S 90  JJ Rules  2016
  64. ↑ National Crime Records Bureau, Crime in India 2022 Vol 1, https://www.ncrb.gov.in/uploads/nationalcrimerecordsbureau/custom/1701607577CrimeinIndia2022Book1.pdf
  65. ↑ Rachel.S & Gunavathy J.S, Challenges Faced by Children in Conflict with Law and Scope for Social Work Interventions, 18 EBJSW 37 (2022).
  66. ↑ Panduranga B & Dr. Pavitra R Alur, Study on Rehabilitation of Children in Conflict with Law in India, 6 JETIR (2019), https://www.jetir.org/papers/JETIR1904C10.pdf
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