THE BEIJING RULES: UNITED NATIONS CONVENTION ON STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE
Auhtor: Gunjan Maji
Co-Author: Shreya Saxena
ALLIANCE SCHOOL OF LAW, ALLIANCE UNIVERSITY
ISSN: 2582-3655
Abstract
The juvenile delinquency issue isn’t new. This issue occurs in both developed and deploying culture. That is, wherever and whenever an interaction takes place within a group or individual regardless of their age, disruption leading to conflicts and confrontation is bound to happen. Most of the problems have an insignificant start, just a Juvenile Delinquency. The issue of juvenile negligence and delinquency in a developing world like India is considerably small but is slowly growing according to the 2007 National Crime Record Bureau survey. The study suggests, after looking at the seriousness of the problem, that, depending on socio-economic and psychological causes, the number of triggers for failure and delinquency are mostly standard and interrelated. Poverty, fractured families, family conflicts, sexual violence, rural-urban displacement, the collapse of traditional norms and a typical family structure, crimes, and abuses by parents or guardians, inadequate school system, media control in addition to the unsafe living conditions of the slums and such other conditions explain the phenomena of juvenile delinquency. Their parents, families, culture, and nation’s lack of children produces adverse impacts on their physical, emotional, and developmental progress. Most of the causes that induce delinquency are in the Indian sense in abundance and any effort to avoid and regulate them can be beneficial to society. A conceptual involvement in the current International System for Juvenile Justice will allow the modern frameworks and discourses to consider various aspects of juvenile justice. It is critical in recognizing the essence and content of juvenile justice as it primarily operates throughout how the Indian State relates to minors in connection with criminal laws. Thus there is a clear need for a broad study of international guidelines on criminal justice to be made transparent. A specific attempt has been made in this study to map the structure of juvenile justice from the existing requirements recommended by one of the essential international treaty applicable on juvenile justice, called the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 — the Beijing Rules and its application on the Indian Legal System. Such tools are generally child-centered standards that govern criminal justice as the minimum universal standard.
Keywords
Juvenile Justice, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Beijing Rules, Juvenile Delinquency, universal standard.
1. INTRODUCTION
1.1 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985
The Standard Minimum Rules shall extend without distinction to all juvenile criminals irrespective of their race, ethnicity, language, religion, or caste. The purpose of criminal justice is to encourage proper up bring and protection child and also to guarantee that he is regarded not only concerning the degree or severity of the alleged offence but also concerning the situation of the crime. This also fosters the child’s best interest and avoidance as solutions to institutionalization. Therefore, denial of liberty is to be treated as a last resort, preferably for the shortest possible period. Throughout the juvenile justice system, the guidelines have established core terms such as juvenile punishment, crime, juvenile crime, age of criminal liability that has a critical impact on the laws of juvenile justice throughout India (UN 1985). [1]
The children’s rights very clearly set down in the laws have become the driving principles of criminal justice around the world like India. Such Laws are divided into six sections, (1) General Principles; (2) Investigation and Prosecution; (3) Adjudication and Disposition; (4) Non-Institutional Treatment; (5) Institutional Treatment; and (6) Research, Planning, Policy Formulation and Evaluation.[2] Each of the six components needs to adhere to their respective laws and guidelines. It stresses equal and compassionate criminal courts and emphasised the value of recovery through schooling, work, or shelter. The Guidelines have emphasised the need to partner with charitable agencies to expand the use of volunteers for civic recovery purposes. Diversion is advised at all levels of legal proceedings to facilitate early reintegration of the child into society.
The juvenile justice laws introduced in India were formulated in line with the governing principles of the Beijing Rules, and also the Convention on the Rights of the Child adopted many of its underlying theory and values from these Guidelines (UN 1985).[3] The aims of criminal justice, according to these Laws include fostering the well-being of the youth and assuring that each approach to juvenile delinquents must always be proportionate to the situation of both the child and the crime. They emphasise that detention can be used only as a last resort, and only then for the shortest possible amount of time (UN 1985).[4]That is, the Laws do not enforce lodging of children in detention centres. Nevertheless, some of the principles laid out in the Rules were contained in terms of the Convention relation to the Rights of a Child, a worldwide convention binding on all States Parties.[5]Such laws will be applicable to juveniles in custody awaiting adjudication and in prisons and enforced in a way that meets the particular interests of adolescents. It notes in particular that the Rules will also be understood and applied in the context of other current laws and human rights texts appearing, without exception to the provision of broader scope that could be found therein. Under the Eighth United Nations Congress on the Treatment of Offenders (Havana 1990) and Prevention of Crime, two new guidelines for the problem of Juvenile Delinquencywere created.[6] They are (1) Guidelines for the Prevention of Juvenile Delinquency and (2) Rules for the protection of Youngsters Deprived of their Liberty. These resolutions supplemented the Standard Minimum Rules for the Administration of Juvenile Justice (1985).[7]
2. Understanding of the Juvenile Justice System THROUGH Beijing rule
The United Nations held its Sixth Conference on Preventing Crime and Treating Offenders in September 1980. A proposal originated at this Conference, with the need for a bill of rights for juvenile criminals[8]. The US delegation supported the proposal. Most of the proposal was drafted at a conference in Beijing, China. It was initially introduced as a Bill of Rights for Young Offenders, which was subsequently renamed the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985.[9] At the Seventh Congress of the United Nations on the Prevention of Crime and Punishment of Criminals, the new draft was then debated at length. Accordingly, it was approved by the United Nations General Assembly on 29 November 1985.[10] It is important to note here that the United Nations has declared the year 1985 as the International Year of Youth. The General Assembly adopted the United Nations Uniform Basic Rules proposed by the Seventh Congress for the Implementation of Criminal Justice. wIt also accepted the Seventh Congress proposal that the Regulations be known as the ‘Beijing Rules’.[11]
The Beijing Rules helps them feel answerable for their acts and tries to cause a change in their conduct so that they can feel the impact of their actions on the life of the victim. ‘Juvenile Justice’ applies to all crimes committed by children and youth (under 18 years of age) are registered, brought before the adjudicating authority and convicted of them. It can also apply to cases where the crime is not found or put before the judiciary.[12] It also applies to directly applicable rules, norms and practices, policies, processes, structures and bodies for juvenile offenders.[13] According to Beijing Rules, juvenile justice is a crucial element of the country’s development mechanism aimed at protecting children in the jurisdiction of the legal system and maintaining peace and stability in society as a whole. Two key phrases support the purpose of criminal justice – ‘prevention’ and ‘rehabilitation’,[14] which stresses child offender protection and social reintegration. On a broader context, it is a matter of finding factors for children interfering with the law, focusing on preventive measures and even their successful recovery. In other nations, the juvenile justice system only treats minors in dispute with the law, but in India, it addresses both types of children, that is, children with a need for care and security and children in dispute with the law.[15] This is, thus, an adequate solution for the justice system for juveniles who have breached the law, separate from the traditional criminal system. They are convicted underparts of the Indian Penal Code and other state and county laws just like the manner in which cases were registered against adults, but the prosecution process varies from that of adults due to the absence of physical and mental development to recognise the offence.[16]
Many scholars believe that the system of previous existing juvenile justice not only arrests young people but can also arrest their growth.[17] They are deprived of the support networks that involve parents, supportive friends, schools and neighbourhoods that foster growth, and the youth justice system encourages negative influences several times.[18] This calls for a better compromise between redemption and punishment, based on helping the offender to reflect on the crime and its consequences.[19] The main reason that children are being prosecuted in a different court structure, such as the criminal justice system is due to their differing emotional conditions and abilities compared with those of adults.[20] Adolescence is a period in which their social, physical and mental ability is in the process of growth and defining their identity. This is why they have to go through a method of adjudication distinct from that of adults.[21] Beijing Rules allow this distinction to be made and applied universally.
Even the Indian government have an attempt to create a framework for resolving the problems of children in severe conditions. It addresses all types of children – children in need of care and security and youth in conflict with the law by considering the child’s best interests and thus is an essential part of the State’s efforts to protect and deter minors from neglect, violence and participation in delinquent behaviour.[22] Therefore, the United Nations framed laws act as a baseline norm for ensuring the protection of young people’s interests. Of course, it was known then that in terms of the requirements found in the rules, the national laws, procedures and activities need analysis and adjustment. While in view of the then-current financial, environmental, cultural, political and legal circumstances, these requirements seemed impossible to meet at the time, they were nonetheless meant to be attainable as a minimum strategy.[23]
That kind of statutory and institutional structure has a sort of uniformity. This contributed to the first standardized central law being passed by the Indian Parliament in 1986, after the implementation of the aforementioned guidelines.[24] In its 69th Article, the Committee on Subordinate Laws made a proposal for common regulation, the implementation of the Beijing Rules by the United Nations General Assembly. It was tabled in Parliament on 11 May 1986.[25] In its factual Statement, the Juvenile Justice Act, 2000, specifically referred to the Indian State’s responsibility under the Beijing Law.[26] Although this Act was replaced by the Juvenile Justice Act, 2015, all the main features which were present in the 2000’s Act taken from Beijing Rules are incorporated in it.[27]
2. 1 Provisions Under Beijing Rules :
The Beijing Rules demonstrate the importance of the positive social program for juveniles by ensuring that such a program would assist, inter alia, in reducing juvenile crime and delinquency. Juvenile justice to be an essential component of juvenile social justice.[28] Rule commands to take into account current requirements in the Member States and would automatically differentiate the manner in which such laws are applied from the method enforced in other States.[29] Furthermore, there is a need to continually enhance juvenile justice without slipping behind the advancement of comprehensive juvenile social policies in general and taking into account the need for continuous augmentation of employee resources.[30] The goal of these actions should be to improve the well-being of the juvenile and his / her families. Within a holistic system of social justice, juvenile justice is seen as an integral part of the nation’s growth cycle.[31] The need for relevant national laws to enforce these Standard Minimum Rules in an appropriate way, both theoretically and practically. Rule 3 expands the protection provided for by the Standard Minimum Rules for the Administration of Juvenile Justice in areas such as ‘status offences’ imposed in respective legal structures where the spectrum of activities deemed to be an offence is broader for minors than for adults, for example, running away from home, truancy, school, and home disobedience, as well as reported For those fields it gives necessary assurances.;[32] cases relating to juvenile justice and treatment.[33] It is considered a step towards fairer, more equal, and more compassionate treatment for all youth who are in trouble with the law.[34]; prosecutions involving young adult offenders, relying, of course, on every age limit in question.[35]
2.2 Age of Criminal Responsibility:
A juvenile is a minor or young person whose crimes should be dealt with in a way differing from that of an adult in the respective justice systems. A crime is any conduct that includes Act or action that within the respective legal frameworks is punishable by statute. There is no age limit for criminal liability laid out in the Beijing Rules.[36] It wants the beginning of the era of juvenile criminal liability not to be set at a very young age. Therefore, attempts should be taken in this respect to deciding on a relatively lowest age limit that is globally acceptable. Due to the history and tradition of various cultures and states the minimum age of criminal liability varies greatly. Criminal law claims that the majority of criminals make independent yet immoral decisions when committing offences. And whether the person whose making these decisions is deeply skewed by impaired abilities or mental disorder may lead them to be totally be excused from liability. Evidence from developmental psychology shows that adolescent choices can be based on impaired decision-making ability or influenced by intermittent developmental factors that are clearly considered by youngsters depending on their capability. The term ’juvenile’ and ‘offence’ as the components of the ‘juvenile offender’ concept.[37] The age limits shall be set by the respective legal structures. Therefore, it recognizes the significance of Member States’ financial, political, cultural, and legal structures. It resulted in a wide variety of ages coming under the category of juvenile, varying from 7 years to or over 18 years.[38]
2.3 Aim of Juvenile Justice :
The first goal is to foster the juvenile’s well-being. This is the primary concern of all justice frameworks in which family courts or regulatory bodies work with young criminals. For such judicial systems that follow the criminal justice model, the well-being of the child will also be emphasised, thereby leading to the removal of purely disciplinary penalties.[39]. The second goal is to enforce the ‘Proportionality principle’.[40] The theory is well known as a mechanism for curbing harsh penalties, often articulated in terms of simply rewards in comparison to the severity of the crime. The approach to juvenile offenders will be focused not only on understanding the severity of the crime but also on specific circumstances.[41] For example, the particular conditions of the perpetrator such as social status, family condition, damage done by the misconduct or other considerations impacting personal circumstances may influence the proportionality of the reactions by recognising, for example, the effort of the perpetrator to reimburse the victim for their well being.[42]
2.4 Discretionary Powers given to Juvenile Justice Administration :
This identifies the unique condition of juveniles, and promote legislation for efficient, equitable, and compassionate administration of criminal justice.[43] It provides flexibility for discretionary application at all rates of investigation, prosecution, adjudication, and follow-up of regulations. This also sets transparency and integrity requirements in matters of administrative use, though.[44] Here, however, specialist education and specialized preparation are illustrated as a critical way of ensuring that young offenders possess judicious discretion. Those frameworks are not listed here because they are not easy to integrate into international standards minimum rules and can not address all gaps in justice systems.[45]
2.5 Rights of Juvenile :
The rules illustrate those crucial points which are necessary ingredients for a fair and just trial. They are all recognised internationally as basic principles under the current international frameworks on human rights.[46] The Rules shall provide for fundamental legal protections such as the presumption of innocence, the right to be informed of the charges, the right to remain silent, the right to representation, the freedom to the involvement of a parent or guardian, the right to question and cross-examine witnesses and the right to appeal to a superior authority at all times of the trial. Juvenile criminals have a right to these fundamental freedoms.[47] As far as the protection of the accused is concerned right to equality before the law, the right to liberty and right to life and personal liberty are essential clauses of the Indian constitution.[48] The Indian Supreme Court has set rules on an accused’s right and how it should be enforced in D.K. Basu vs West Bengal State,[49] and at Joginder Kumar vs State of U[50] In the case of juvenile justice law in India, the above rights are granted both in the Juvenile Justice Act 1986 and the Juvenile Justice Act 2000 in the form of constitutional protections.[51] The 2015 Act stipulates that when a juvenile is charged, the Police Station Officer or the Special Juvenile Police Unit to which the juvenile is taken shall notify the parents or guardian of the juvenile as soon as possible after the arrest.[52] Nevertheless, the Act does not include a detailed description of the jury process and instead specifies that when a minor has been charged with the crime is placed before a court; the court is to perform an investigation in compliance with the rules of this Act.[53]
2.6 Protection of Privacy :
It is the right of the juvenile to privacy, and it shall be protected at all times to prevent harm done to him or her by unfair exposure or by the marking procedure.[54] In practice, no details which may lead to a young offender being detected shall be released (Rule 8.2).[55] Identity divulgation often has a negative effect. Young adults are more vulnerable to stigma. Criminological work into naming mechanisms has demonstrated the negative consequences of falsely marking young people as ‘delinquent’ or ‘illegal.’ Thus, it uses terms like “child in conflict with the law”[56] and “child in need of care and protection”.[57] The 2015 Juvenile Justice Act strongly reinforces this concept by ensuring that no article of any newspaper, magazine or graphic media shall publish the name, address or school or any other information determined to contribute to the identity of a child or a juvenile.[58]
2.7 Initial Contact :
There is need to reported instantly to her or his parents or guardian upon the arrest of a juvenile and, if such immediate notification is not practicable, shall be informed to the parents or guardian as soon as possible afterwards.[59] The Juvenile Justice Act 2015 stipulates that it is the duty of law enforcement officers to notify the parents after the child has been arrested promptly.[60] Further, a judge or other competent person or agency shall deem the question of release without hesitation.[61] This applies to any individual or organisation in the broadest sense of the word, including city councils or police agencies with the power to detain an accused person. In India, the 2015 Juvenile Justice Act states that any criminal who claims to be a juvenile while apprehended or imprisoned or claims or placed before a Board shall be released on bail with or without guarantee as to whether the charge is a bailable or non-bailable crime unless that bail poses a threat to the juvenile himself in some way.[62] Communications between law enforcement authorities and a juvenile offender shall be handled in a manner which protects the legal rights of the juvenile, ensures the well-being of the juvenile and prevents harm to him or her, taking proper consideration of the facts of the case.[63] The word “avoid harm” should be understood loosely as doing at first place as little damage as possible to the juvenile, as well as any potential or unnecessary harm.[64] This is especially important in the early interaction with law enforcement authorities, and may have a significant effect on the conduct of the juvenile towards the State and community. Similar values are enshrined in various clauses of the Juvenile Justice Act, 2015.[65]
2.8 Diversion :
Rules state that, where applicable, attention shall be extended when dealing with young offenders without the responsible authority requiring access to a substantive court.[66] In India, where the case of a juvenile offender has not been resolved, the responsible body such as Juvenile Justice Board of India shall deal with it.[67] Diversion is widely made in many court environments on a structured and informal basis, including exclusion from criminal justice proceedings and sometimes redirection to neighborhood health programs. This activity helps to hinder the negative impact of future trials on the administration of criminal justice. In certain situations, the safest response will be non-intervention. Thus, the best approach can be a diversion at the start, without referral to alternate (social) facilities.[68] This is especially the case where the crime is of a non-serious nature and where households, schools, or other informal social control bodies have responded or are likely to respond adequately and constructively. Police, lawyers or other organizations concerned with juvenile cases shall be empowered, at their discretion, to dispose of these cases without recourse to formal trials, in compliance with the requirements laid down in the relevant legal framework for that reason and also in compliance with the standards set out in these Rules.[69] Any transfer requiring referral to an appropriate group or other facilities shall involve the consent of the child or his or her parents or guardian, providing that any determination to refer a case is subject to review by a competent authority upon request.[70] To promote the discretionary handling of criminal cases, attempts are made to arrange for rehabilitation services, such as immediate oversight and instruction, restitution, and victim insurance.[71]
2.9 Specialisation within the Police:
Police officers who regularly or specifically interact with youth or who are predominantly active with the prevention of juvenile crime shall be duly advised and trained with an order to perform their duties in the best way possible.[72] In this end, special police divisions will be formed in major cities. The rule highlights the additional instruction for all law enforcement officers interested in conducting criminal justice. Seeing that Police are the first point of communication for the system of criminal justice, it is most critical that they behave in an educated and reasonable manner. In India, a provision has been made for the creation of a Special Juvenile Police Force that has been made in the Juvenile Justice Act 2015.[73]
2.10 Detention Pending Trial :
Detention awaiting prosecution shall only be used as a method of last resort and for the shortest amount of time possible.[74] Wherever practicable, alternate interventions, such as direct observation, intensive care, or placement with a relative or in an occupational environment or residence, shall be supplemented by the incarceration awaiting prosecution.[75] All freedoms and protections of the Basic Minimum Rules for the Treatment of Prisoners enacted by the United Nations shall extend to minors held awaiting trial.[76] Juveniles held awaiting prosecution shall be kept separate from adults and imprisoned in a different facility or in a separate section of a facility that also holds adults.[77] Once in detention, minors are to provide supervision, protection, and any appropriate human assistance — social, economic, occupational, psychiatric, medical, and physical — that they may need in terms of their age, sex and temperament.[78] There will be no risk of ‘criminal contamination’ of minors and in custody awaiting trial.[79] Therefore, the need for alternate approaches is important to emphasize.
2.11 Competent authority to Adjudicate :
Where a juvenile offender’s case is not being transferred,[80] the responsible body (court, jury, commission, council, etc.) shall proceed with her or him as per the standards of a fair and reasonable trial.[81] The trials shall be responsive to the best interests of the young child and shall be performed in an environment of comprehension, which shall allow the young person to engage and express himself or herself freely.[82] ‘Competent authority’ is designed to cover all who exercise control over courts or tribunals made up of a single judge or several judges, including qualified and lay magistrates.[83] Throughout India, the Juvenile Justice Board is the responsible body to deal with matters pertaining to minors throughout dispute with the rules.[84] In any case, the protocol for dealing with juvenile criminals meets the basic requirements virtually uniformly applicable to any convicted charged in the law known as the due process of law. A “free and fair trial” in compliance with due process requires such fundamental protections as the presumption of justice, the identification, and review of the evidence, specific legal defences, the privilege to remain silent, the privilege to get the final say in a hearing, the right to appeal, etc.[85]
2.12 Legal Counsel, Parents, and Guardians :
In the trial, the juvenile is entitled to be accompanied by a legal advisor or to apply for free legal aid if such help is paid for in the country.[86] The parents or guardians are allowed to engage in the hearings and may be compelled to appear in the interest of the child by the responsible official. Nevertheless, the responsible authority may refuse them inclusion if there are grounds to believe that such exclusion is appropriate in the juvenile’s interest.[87] Throughout India, children under the Legal Services Authority Act 1987 are eligible for legal assistance without a means check.[88]
2. 13 Social Inquiry Reports :
For all cases, except those concerning minor offences, the context and situations under which the child resides or the conditions under which the crime was perpetrated must be adequately examined until the competent authority determines a definitive decision until conviction, for the order to encourage the competent authority’s judicial adjudication of the case.[89] Criminal investigation records (private studies or pre-sentence records) are an important assist in most juvenile legal proceedings
2.14 Guiding Principles in Adjudication and Disposition :
As provided for in Rules the Responsible Authority’s attitude shall be directed by the following principles: (a) The response taken shall always be proportionate not only to the situations and the severity of the crime but also to the conditions and requirements of the juvenile as well as to the needs of the people; (b) limitations on the personal rights of the juvenile shall be enforced only after due disadvantage; (c) Loss of personal liberty must not be enforced until the juvenile is adjudicated as having committed a criminal crime involving aggression against another person or as having engaged in committing such serious ffences and there is no other reasonable response; (d) Ensuring the well-being driving force when assessing such situations.[90] Judicial punishment on all offences committed by minors shall not be enforced.[91] No corporal punishment shall be levied upon minors.[92] The responsible authority shall have the right to suspend the trial at any time, and it is not necessary to follow purely disciplinary strategies.[93] These rules promote, to the greatest degree possible, the use of alternatives to institutionalization, keeping in mind the need to respond to the unique needs of young people.[94]
2.15 Disposition measures :
Rule 18.1 suggests a diverse range of arrangement measures for disposition purposes. These steps, some of which can be mixed, include: (a) supervision, instruction and supervisory instructions; (b) detention orders; (c) Community service orders; (d) financial fines, reimbursement and rehabilitation orders; (e) transitional recovery orders and other recovery orders; (f) community therapy orders and related activities; (g) foster care orders, residential homes or other instructional order.[95] No minor shall be excluded from parental control, in full or in part, unless the conditions of her or his case necessitate this.[96] The rule doesn’t really mention personnel requirements due to possible scarcity of sufficient workers in some regions; initiatives requiring fewer workers could be attempted or implemented in certain regions. This rule stipulates that perhaps the alienation of minors from their guardians is the last resort measure.[97] Only where the facts of the situation specifically support this drastic action (for example child abuse) will it be recourse to. Appropriate arrangements shall be rendered for the enforcement with the competent authority’s instructions, by that authority itself or by any other authority as may be necessary by the circumstances.[98] These regulations shall provide the right to modify instructions, as may be considered appropriate by the competent authority from time to time, providing that any alteration is decided in compliance with the standards set out in these Rules.[99]
2.16 Least possible use of institutionalization:
The Beijing Rules put the juvenile in an institution as last resort disposition and for the bare minimum required period.[100] Progressive criminology promotes the use of non-correctional care over correctional. There was little or no difference in institutionalization performance relative to non-institutionalization. This rule attempts to limit institutionalization in two respects: quantity (“last resort”) and duration (“minimum amount necessary”)
2.17 Avoidance of unnecessary delay :
A recognised human right is a right to a jury trial or speedy trial. The Beijing Rules it reaffirms that each case must be dealt with without unnecessary delay from the outset.[101] For juvenile cases, speedy execution in standardized proceedings is of great importance.
2.18 Records :
Juvenile criminal records are to be kept exclusively private and inaccessible to third parties. The ability to access such documents shall be restricted to individuals personally involved with the handling of the case at hand or to other specially designated individuals.[102] In future cases involving the same defendant, reports of young offenders shall not be included in the adult trials.[103]
2.19 Need for professionalism and training :
Under Rules, it is a prerequisite that formal learning, in-service education, training courses, and other suitable forms of instruction be used to develop and retain the required professional expertise of all personnel concerned with juvenile cases.[104] Youth justice workers shall represent the diversity of youth coming into touch with the criminal justice system. Efforts are made to ensure that women and minorities are treated equally in criminal justice departments.[105] A basic background in law, history, psychology, criminology, and behavioural sciences will be required by any of those officials. That is deemed as essential as the qualified authority’s organisational competence and independence. This would not be possible for social workers and probation officers to need technical training as a requirement for performing any position associated with youth offenders.
2.20 Provision of needed assistance :
In all levels of the trial, arrangements shall be made to include supportive and practical support to offenders, such as housing, schooling or vocational training, jobs, or some other aid, in order to promote the recovery process.[106] Promoting the juvenile’s health is of utmost concern. Accordingly, Rule 24 stresses the importance of providing the requisite equipment, resources, and other assistance that can serve the best interests of the adolescent in the recovery.
2.21 Mobilisation of volunteers and other community services:
Volunteers, charitable organizations, government agencies, and other private services are called upon to contribute actively to the recovery of the offender in a residential environment and within the family unit as far as possible.[107] This law represents the need for all work involving young criminals to be rehabilitative focused.
2.22 Objectives of institutional treatment :
The aim of teaching and handling young people put in institutions is to offer treatment, security, employment, and practical training to assist them in playing socially positive and active positions in society.[108] Juvenile in facilities is required to be provided with proper care, security, and other appropriate facilities, like economic, occupational, financial, medical, and physical assistance keeping in mind their age, ethnicity, and personality. Rules reflect on the required necessities for juveniles[109] and on the differing conditions relevant to their age, sex, and appearance.[110] The purpose and substance of the law are thus interrelated with the applicable Standard Minimum Rules for the Treatment of Prisoners.
2.23 Frequent and early recourse to conditional release :
Conditional release from a facility shall be used to the fullest degree possible by the required authority, and given as soon as possible.[111] Juveniles discharged provisionally from a facility shall be supported and supervised by the appropriate authority and provide full community assistance.[112] The power to order conditional release that rest with the relevant authority or any other authority, as stated in Rule 14.1. In view of this, it is fitting to appeal to the ‘relevant’ authority here, rather than to the ‘competent’. Where conditions warrant, conditional parole is preferable to get a full term.
2.24 Semi-institutional arrangements :
Attempts shall be provided to include semi-institutional facilities, such as half-way houses, residential homes, day-time rehabilitation centers, and all such appropriate structures that assist offenders in their proper reintegration into society.[113] One does not neglect the value of treatment after a time of institutionalization. This rule emphasizes the need to build a system of semi-institutional structures. This legislation further stresses the need for a diverse variety of programs and resources intended to address the varied needs of juvenile criminals re-entering the community and to offer instruction and institutional assistance as a significant step towards positive reintegration into society.[114]
2.25 Research as a basis for planning, policy formulation and evaluation :
Efforts are made to coordinate and encourage the work needed as a basis for efficient planning and policy formulation.[115] Initiatives shall be taken to regularly examine and determine the rates, issues, and causes of juvenile delinquency and violence, as well as the different basic needs of minors in detention.[116] Efforts shall be made to create a routine evaluative analysis process integrated into the administration of the juvenile justice system and to gather and review applicable data and information for effective assessment and potential administration change and reform.[117] The provision of programs in the administration of criminal justice shall be consistently prepared and enforced as an integral part of community growth efforts.[118]
3. ISSUES AND CHALLENGES FAED BY THE INDIAN JUSTICE SYSTEM OF INDIA
Firstly, the Ministry of Welfare’s annual report lists various of the Juvenile Justice Act’s operating juvenile justice boards, juvenile courts, and different types of homes. However, the findings showing the standard of their operation are far from adequate and have not been motivating or supportive. Indifference, imperfection, and lawlessness are inherent in the service of every portion of the criminal justice system.[119] Secondly, there is a strong breach of the legislative mandate, the magistrates at the juvenile courts are named with no experience in child development and education. Relatively young and novice judges are selected who lack the competence and skill to cope with more serious and challenging offences.[120] Thirdly, the goal of the invisibility obtained by barring public access to juvenile court and homes under the Juvenile Justice Act, 2015 was to shield juveniles from stigmatization.[121] It really succeeds in protecting the lengthy list of very well-known day-to-day errors, faulty, and mismanagement that pervade the Juvenile Justice Act’s workings.[122] Fourthly, the specific ‘homes’ built and operated by state governments are sometimes referred to by both inside and beyond the Juvenile Justice Act-created youth justice system as ‘jails’.[123] Such homes, in truth, are more like jails in their creation and organization. Rather of care, safety, recovery, growth, and restoration, custody has been the principal concern. The ensuing brutality and growing apathy towards maladministration were embodied in incidents such as one prisoner being murdered by another at Lajpat Nagar’s house.[124] Fifthly, many Supreme Court and High Court rulings involving underage children have been unclear to the courts and lawyers concerned. Different issues are posed time and time again and are resolved accordingly without any regard for past decisions. In Pradeep Kumar v. State of Utter Pradesh,[125] A minor who was below the age of 16 years was accused of murder and sentenced by the sessions court to life imprisonment in violation of the UP Children Act under which he should have been admitted to an authorized school before the age of 15. Sixthly, under the current law, the broad definition of ignored juvenile under the juvenile Justice Act, 2015 renders much of India’s child population vulnerable to stale control without vesting any rights to state treatment and security in them.[126] Seventhly, the opening paragraph states that the juvenile Justice Act, 2015 was adopted to provide for the care, safety, recovery, growth, and redemption of abused and delinquent youth. It should be mentioned that incarceration or even ‘prosecution’ of delinquent children is not one of the aims of the Juvenile Justice Act, 2015.[127] The prescribes a comprehensive scheme for meeting its aims guaranteeing complete separation of young minors from adult criminals as well as the criminal justice system at all levels of her/him prosecutions.[128] Ninthly, the appeals scheme contained in the Act would result in lengthy gaps in the final disposition of cases involving children 16-18 years old suspected to have committed a criminal crime.[129] The Act did not require any appeal against the Juvenile Justice Boards’ decision the child had not committed an offence. Every individual aggrieved by the Boards’ order may only move the higher courts through pleas for clarification or for writing. In any of these cases, the high court or the Supreme Court had the option of denying admission itself at the initial level, without providing reasons in writing.[130] When the child’s court has concluded the matter, it must then reassess if the child will be prosecuted as an adult or as a minor, perform the investigation or jury as the case might be, decide whether or not the child has perpetrated the crime and then pass the final decision. The aggrieved party can each give rise to an appeal.[131] In this variety of lawsuits, reform and procedural redress with a special leave lawsuit, it won’t be shocking to find the first instance involving a 16-18-year-old child claimed to have perpetrated a crime take decades before actually being determined.[132] Tenthly, the Act demands that the Boards conclude the initial review to establish the adequacy of the 16-18-year-old child’s transition within three months. This timetable poses several concerns not just about the legality of the operation but also about the practicality of the pacing. That time period does not allow the examination to be carried out until the police file a preliminary report in the case stating that a case of criminal crime against the child has been made prima facie.[133] Age identification of a child on the grounds of a school certificate or a birth certificate from another jurisdiction takes a long time to receive and approve those records, and it may not be possible to carry out both age determination and original examination within the time limit.[134] Lastly, the Act specifically includes bone ossification testing to assess the age that may offer up to two years of a margin of error.[135] To move a minor to the adult program, the Board has to state explicitly that the offender was over the age of 16 but below the age of 18 on the day of execution of the offence.[136] Without written evidence, it would be difficult to assess the age group through comparison to the diagnostic assessments. This Act also does not have the clause as specified, which on the lower side in consideration of the boy, gives the benefit of the doubt for up to one year.[137] In the apparent lack of such a clause, the Supreme Court decision in Kajinder Chandra case,[138] allowing for the benefit of the child’s uncertainty would also bind the JJB when deciding the age. Consequently, if the medical examination specifies the child’s age to be about 17 years of age, the margin of error being two years, the age must be estimated on the lower side as 15 years. The same method for deciding the upper age limit has to be followed.[139]
4. CONCLUSION AND RECOMMENDATION
What is necessary is a simple conceptualization of the juvenile justice system to enact the current laws, to amend it and to formulate a new statute. The word juvenile justice was used in the sense of social welfare for youth in need of treatment and security, and in the sense of the initiation of delinquency through civil punishment because of this dichotomous nature, the latter is viewed as a branch of the juvenile justice system, resulting in a derogatory attitude to all minors under the authority of the law. Many clearly represent a pragmatic view of the provisions, affected by the approach of criminal justice. It is important to break away from this definition and to conceive about juvenile justice as a new and different framework for granting all children constitutional rights. A troubled child may not be taken to a police station or jail upon detention but may be held in an observation house, a place of protection, or a parent or guardian. As the name suggests, an observation home may have the characteristics of a family, and it is used to observe the behaviour and reactions of the minor. And if she/he is found to have committed a crime, the institutionalization order, if selected, would put her or him in a special house. A foster home would not only provide the child with treatment, security, and education but must-have services for the offending child’s reformation. A juvenile court, which is appointed not by any stipendiary magistrates, but rather by such stipendiary magistrates who have a particular knowledge of child development and health, is to conduct an inquiry into delinquent children—summons proceedings as ordered by the Cr. PC shall be pursued by the juvenile court as far as practicable, and according to the rules of the Act regardless of whether the crime perpetrated is minor or most serious. Except for the sake of the arrested juvenile, the distinction between reimbursable and non-reimbursable crimes has been eliminated, and the bail can only be denied in view of the restitution of the arrested juvenile. In the case of a juvenile court, the role rests not only in determining whether or not the child has performed the criminal crime but also in deciding the appropriate remedy aimed at ensuring the child’s care, security, recovery, growth, and redemption. The juvenile court’s duty is unique to it and is not held by either a criminal or a civil court. The juvenile justice system originated and established as a criminal justice system offshoot, but the Juvenile Justice Act’s structure simply indicates it has broken its relations from the criminal justice system entirely.
[1] Bhargava Aparajita, ‘Juvenile Justice in India’ (2019), International Journal of Legal Developments and Allied Issues, < http://thelawbrigade.com/criminal-law/juvenile-justice-in-india/#Principles_of_Juvenile_Justice_Act_2015 > accessed on 27 March 2020
[2] Bueren Van Geraldine and Tootell Anne-Marie, ‘United Nations Standard Minimum Rules for the Administration of Juvenile Justice – Beijing Rules: Defence for Children in International Law’ (2011)
[3] Supra Note 1
[4] ibid
[5] Supra Note 2
[6] Bueren Van Geraldine and Tootell Anne-Marie, ‘United Nations Standard Minimum Rules for the Administration of Juvenile Justice – Beijing Rules: Defence for Children in International Law’ (2011)
[7] ibid
[8] Ahuja Sahil, ‘Juvenile Justice and Legal Aid’ (2019), INROADS- An International Journal of Jaipur National University, < https://www.researchgate.net/publication/338612924_Juvenile_Justice_and_Legal_Aid > accessed on 20 March 2020
[9] ibid
[10] ibid
[11] ibid
[12] Narrain, Arvind, ‘The Juvenile Justice (Care and Protection of Children) Act 2000- A Critique.’ < www.dwcd.kar.nic.in/dwcd_english > accessed on 28 March 2020
[13] Kumari,V., ‘The Juvenile Justice System in India-From Welfare to Rights’ (2004), published by Oxford University Press, New Delhi.
[14] Supra Note 12
[15] Supra Note 13
[16] ibid
[17] Jaiswal, J., ‘Human Rights of Accused and Juveniles – Delinquent in Conflict with Law’( 2005), Kalpaz Publications, Delhi.
[18] ibid
[19] ibid
[20] ibid
[21] ibid
[22] Ahuja Sahil, ‘Juvenile Justice and Legal Aid’ (2019), INROADS- An International Journal of Jaipur National University, < https://www.researchgate.net/publication/338612924_Juvenile_Justice_and_Legal_Aid > accessed on 20 March 2020
[23] ibid
[24] Khirale, Dr.N .M., ‘Juvenile Justice: Issues and challenges’ (2020) International Journal of Multidisciplinary Research (IJMR), < https://www.researchgate.net/publication/338609989_JUVENILE_JUSTICE_ISSUES_AND_CHALLENGES > accessed on 29 March 2020
[25] ibid
[26] ibid
[27] Ali Bharati, ’Juvenile Justice in India: Understanding Non-Adversarial Nature of the System from Human Rights and Constitutional Perspectives’ (2018)
[28] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, Rule 1.4,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March 2020.
[29] ibid, Rule 1.5
[30] ibid, Rule 1.6
[31] Supra Note 28
[32] ibid, Rule 3.1 (a)
[33] ibid, Rule 3.1 (b)
[34] ibid, Rule 3.2
[35] ibid, Rule 3.3
[36] ibid, Rule 4
[37] ibid, Rule 2.2
[38] ibid
[39] ibid, Rule 5 and 14
[40] Khirale, Dr.N .M., ‘Juvenile Justice: Issues and challenges’ (2020) International Journal of Multidisciplinary Research (IJMR), < https://www.researchgate.net/publication/338609989_JUVENILE_JUSTICE_ISSUES_AND_CHALLENGES > accessed on 29 March 2020
[41] ibid
[42] ibid
[43] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, Rule 6.1,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March 2020
[44] ibid, Rule 6.2
[45] ibid, Rule 6.3
[46] ibid, Rule 7.1
[47] ibid
[48] The Indian Constitution, Articles 14, 19 and 21
[49] AIR 1997 614
[50]P (1994) 2SCJ 230 at p. 237
[51] ibid
[52] The Juvenile Justice Act, 2015, Section 13, < http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF > accessed on 1 April 2020
[53] ibid, Section 14
[54] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, Rule 8.1. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020.
[55] ibid, Rule 8.2
[56] Supra Note 52, Section 2 (13)
[57] ibid, Section 2 (14)
[58] ibid, Section 3
[59] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, Rule 10.1. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020.
[60] The Juvenile Justice Act, 2015, Section 13, < http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF > accessed on 1 April 2020
[61] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, Rule 10.2. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020.
[62] The Juvenile Justice Act, 2015, Section 12, < http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF > accessed on 1 April 2020
[63] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), 1985, Rule 10.3. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020.
[64] Khirale, Dr.N .M., ‘Juvenile Justice: Issues and challenges’ (2020) International Journal of Multidisciplinary Research (IJMR), < https://www.researchgate.net/publication/338609989_JUVENILE_JUSTICE_ISSUES_AND_CHALLENGES > accessed on 29 March 2020
[65] Ahuja Sahil, ‘Juvenile Justice and Legal Aid’ (2019), INROADS- An International Journal of Jaipur National University, < https://www.researchgate.net/publication/338612924_Juvenile_Justice_and_Legal_Aid > accessed on 20 March 2020
[66] United Nations Standard Minimum Rules for the Administration of Juvenile Justice-the Beijing Rules, 1985, Rule 11.1. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020
[67] The Juvenile Justice Act, 2015, Section 4, < http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF > accessed on 1 April 2020
[68] Supra note 66
[69] ibid, Rule 11.2
[70] ibid, Rule 11.3
[71] ibid, Rule 11.4
[72] ibid, Rule 12.1
[73] The Juvenile Justice Act, 2015, Section 10, < http://uphome.gov.in/writereaddata/Portal/Images/j-j-act.PDF > accessed on 1 April 2020
[74] United Nations Standard Minimum Rules for the Administration of Juvenile Justice-the Beijing Rules, 1985, Rule 13.1. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020
[75] ibid, Rule 13.2
[76] ibid, Rule 13.3
[77] ibid, Rule 13.4
[78] ibid, Rule 13.5
[79] ibid
[80] ibid, under Rule 11
[81] ibid, Rule 14.1
[82] ibid, Rule 14.2
[83] ibid
[84] Supra Note 67
[85] Supra Note 74, Rule 7.1
[86] Supra Note 74, Rule 15.1
[87] Supra Note, Rule 15.2
[88] Ahuja Sahil, ‘Juvenile Justice and Legal Aid’ (2019), INROADS- An International Journal of Jaipur National University, < https://www.researchgate.net/publication/338612924_Juvenile_Justice_and_Legal_Aid > accessed on 20 March 2020
[89] United Nations Standard Minimum Rules for the Administration of Juvenile Justice-the Beijing Rules, 1985, Rule 16.1. ,<20090707131227_ONUUnitedNationsStandardMinimumRulesfortheAdministrationofJuvenileJusticeTheBeijingRules.pdf > accessed on 29 March, 2020
[90] ibid, Rule 17.1
[91] ibid, Rule 17.2
[92] ibid, Rule 17.3
[93] ibid, Rule 17.4
[94] ibid, Rule 17.1(b)
[95] ibid, Rule 18.1
[96] ibid, Rule 18.2
[97] ibid
[98] ibid, Rule 23.1
[99] ibid, Rule 23.2
[100] ibid, Rule 19.1
[101] ibid, Rule 20.1
[102] ibid, Rule 21.1
[103] ibid, Rule 21.2
[104] ibid, Rule 22.1
[105] ibid, Rule 22.2
[106] ibid, Rule 24.1
[107] ibid, Rule 25.1
[108] ibid, Rule 26.1
[109] ibid, Rule 27.1
[110] ibid, Rule 27.2
[111] ibid, Rule 28.1
[112] ibid, Rule 28.2
[113] ibid, Rule 29.1
[114] ibid
[115] ibid, Rule 30.1
[116] ibid, Rule 30.2
[117] ibid, Rule 30.3
[118] ibid, Rule 30.4
[119] Bhattacharya, S.K. ‘Juvenile Justice System in India.’ Journal of the Indian Law Institute, vol. 23, no. 4, 1981, pp. 606–612. JSTOR,< www.jstor.org/stable/43950781 > Accessed 16 April. 2020.
[120] Kumari, Ved. ‘The Juvenile Justice Act, 2015-Critical Understanding.” Journal of the Indian Law Institute, vol. 58, no. 1, 2016, pp. 83–103. JSTOR, < www.jstor.org/stable/45163062 > Accessed 16 April, 2020.
[121] ibid
[122] ibid
[124] ibid
[125] AIR 1994 SC. 104
[126] Kumari, Ved. ‘Current Issues In Juvenile Justice In India.’ Journal of the Indian Law Institute, vol. 41, no. 3/4, 1999, pp. 392–404. JSTOR, < www.jstor.org/stable/43953338 > Accessed 16 April, 2020.
[127] ibid
[128] ibid
[129] ibid
[130] ibid
[131] ibid
[132] ibid
[133] Singh Hira, ‘Current Issues in Juvenile Justice Administration’ Paper presented at National Consultation on Juvenile Justice, National Law School of, Bangalore (1999).
[134] Sethi, T.D. ‘Precursors Of Juvenile Courts In India.’, Journal of the Indian Law Institute, vol. 25, no. 4, 1983, pp. < 502–510. JSTOR, www.jstor.org/stable/45148511 > Accessed 16 Apr. 2020.
[135] ibid
[136] ibid
[137] ibid
[138] Rajinder Chandra v. the State of Chhattisgarh (2002) 2 SCC 287.
[139] ibid
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