NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

PROJECT Sociology of Law

Analysis of Juvenile Justice Act, 1997

Submitted By: Vatsal Joshi 2012 B.A.LL.B. (Hons)-69

TRIMESTER V

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Contents
Introduction ..................................................................................................................................... 3 Status of a Minor............................................................................................................................. 3 Situation of Child Abuse................................................................................................................. 4 The case of Fayaz Ahmed Bhat: ................................................................................................. 4 The case of Sheikh Akram: ......................................................................................................... 5 Criticism.......................................................................................................................................... 5 Status Quo ....................................................................................................................................... 6 Conclusion ...................................................................................................................................... 6 Bibliography: .................................................................................................................................. 7

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Introduction
The Websters dictionary defines a juvenile as reflecting psychological or intellectual immaturity: childish which means that a juvenile is a person who is a child who is incapable of distinguishing the nature of his act. This definition does not help us to distinguish between two people as to who is a juvenile and who is not; this tends to create a lot of subjectivity. The Convention on the Rights of the Children lays down a more specific and acceptable definition of the term juvenile under the name of Child in Article 11. Here the convention lays down the upper ceiling age (18) for a person to be categorized under a juvenile. In India the status of the juvenile delinquents is governed under the special statute2 which follows the above mentioned international convention but the state of Jammu and Kashmir due to its special status 3 has a different statute under which the juvenile delinquents are governed4. Primarily this has India to undergo great criticism in the international platform but the root result still remains untouched. This barbaric act had led to series of cases leading to child abuse and violation of the rights of juvenile delinquents.

Status of a Minor
Children in conflict with the law in India, and indeed in the rest of the world, are particularly vulnerable to abuse. Therefore, they are offered particular protections and these have been elaborated under the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency The Riyadh Guidelines) and the UN Convention on the Rights of the Child. Juveniles are unequal before the law & denied justice in custody, status of children in conflict with the law given widespread reports of violations of their rights. The ACHRs researcher visited Srinagar, Budgam, Shopian, Pulwama, Islamabad, Kulgam, Ganderbal and Jammu districts and met with juveniles and their relatives, senior police officials, Chief Judicial Magistrates, Prosecuting Officers, senior officials of the Department of Social Welfare of the State of Jammu and Kashmir, Superintendents of District Jails, Superintendent of the R S Pura Juvenile Home, Jammu and Secretary of the J&K State Human Commission. Juveniles should be arrested, detained and tried as juveniles. Yet juveniles in Jammu and Kashmir have been consistently arrested, detained and tried as adults in contravention of national and international human rights standards. Indias Juvenile Justice (Care and Protection of Children Act) of 2000 which replaced the flawed Juvenile Justice Act of 1986 has no jurisdiction in Jammu and Kashmir. Article 370 of the Indian Constitution provides that unless the J&K government Rights extends Indian law by an Act of the State Legislature, the law has no jurisdiction in J&K. While the Jammu and Kashmir State government extended all the laws considered draconian including the Armed Forces Special Powers Act, it failed to show the same
1 a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier. 2 Juvenile justice care and protection act 2000 3 Article 370 of the Constitution of India 4 Juvenile justice act 1997

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level of alacrity with regard to the juvenile justice.

Situation of Child Abuse

The case of Fayaz Ahmed Bhat:
Fayaz Ahmad Bhat (25 years old now), son of Ghulam Hassan Bhat, resident of Goori-pora, Palpora, Ganderbal, Srinagar was arrested and charged with offences under sections 302 of the Ranbir Penal Code (murder) and Sections 7 and 27 of the Indian Arms Act. The case was registered in 1995 (FIR no. 42/1995) at the Safakadal Police Station. Fayaz Ahmad Bhats lawyers repeatedly claim that Fayaz is a victim of mistaken identity. They also underlined that Fayaz Ahmad Bhat was a minor at the time of the offence. He spent closed to 3 years in the Central Jail, Srinagar and was then transferred to R S Pura, Jammu in 2009 where he remains till date. Fayaz was produced in the CJM court. In view of the fact that the offence under section 302 of the Ranbir Penal Code is exclusively triable by the Court of Sessions Judge, the CJM court directed that the case be transferred to the Court of Principal District and Sessions Judge, Srinagar. To prove that the delinquent was a juvenile on the date of commission of alleged offence, his counsel produced a copy of certificate of the delinquent issued by Shanti Public School in which the delinquents date of birth was recorded as 9 December 1984. The court of First Additional Sessions Judge, Srinagar noted that the delinquent was less than 18 years of age on the date of commission of the alleged offence. The prosecution contested the plea of the defence counsel contending that the delinquent was not a juvenile on the date of commission of offence. The Court of First Additional District and Session Judge declared that the delinquent was a juvenile on the date of commission of alleged offence and forwarded the case to the Court of CJM for further proceedings under the Juvenile Justice Act. It is pertinent to mention that Fayaz was just 9 years at the time of alleged offences for which he was charged with murder and acquisition or possession, or of manufacture or sale, of prohibited arms or prohibited ammunition. The CJM Court directed that the delinquent who was detained at Central Jail, Srinagar be shifted and lodged at Juvenile/Observation Home, R S Pura, Jammu. The Superintendent of Juvenile Observation Home, R S Pura Jammu refused to admit the delinquent to the Juvenile/Observation Home and returned him through the same police escort team with the remarks that the delinquent was above 16 years. The Superintendent stated that the date of birth of the delinquent was 1985 and as per appearance the delinquent was above 16 years of age and therefore, cannot be kept at the Home. Fayaz was admitted to the juvenile home but was not produced before the Court. The CJM court finally heard the bail applications of the delinquent. The Court rejected the bail applications. The court observed that the important aspect of the case is that no Special Observation Home or place of safety is established as required under the provisions of the Juvenile Justice Act in the State of Jammu and Kashmir. 4|Page

Fayaz is an adult of 25 years at present. His detention in the Juvenile Home has raised specific questions. However, when the FIR was filed 16 years ago in 1995, he was only 9 years old. His contention that he is not person being charged but a victim of mistaken identity has not been investigated even after the certificate issued by the Shanti Public School has been held as genuine by the Court and therefore, he was sent to the R S Pura Juvenile Home. No inquiry has been conducted as to whose certificate the police produced from the Government Boys High School, Dub Ganderbal to show that he was an adult. He is destined to stay in the R S Pura Juvenile Home as the State fails to ensure his expeditious trial of a case registered more than one and half decade ago.

The case of Sheikh Akram:

One of the persons arrested under the Jammu and Kashmir Public Safety Act, 1978 (which is an Act for preventive detention) for attending the funeral of Tufail Mattoo was Sheikh Akram, 15 years, son of Sheikh Zulfikar of Jogilanker Rainawari. Akram, a student Class 8th, was arrested on 17 June 2010 and was charged with stone pelting and hatching conspiracy against the State. He was given interim bail of 7 days by Principal District and Sessions Court which was extended subsequently. However, in order to prolong his detention, on 3 July 2010, District Magistrate of Srinagar Meraj Ahmad Kakroo booked him under Public Safety Act and sent him to Kote Bhalwal jail.

Criticism
The Juvenile Justice Act was enacted in India in 1986; it took more than a decade for the J&K legislature to enact the Jammu and Kashmir Juvenile Justice Act, 1997. It took another decade until 2007 to adopt the Rules accompanying the Act meaning that the Act remained unimplemented. Even through the rules were framed in 2007, the State government took no action to set up juvenile homes, observation homes and Juvenile Justice Boards as required by the Act. All successive governments failed to ensure respect for juvenile justice. In 2009 a Public Interest Litigation was filed before the J&K High Court to direct the State government to implement the 1997 J&K Juvenile Justice Act. In June 2010, the J&K High Court directed the state government to implement the Juvenile Justice Act in three months. The Court observed that even though the Act was passed in 1997, and its rules were framed in 2007, the provisions of the Act and the rules have not been implemented.. Little has been done to comply with the said order. In the rest of India, the weaknesses of the 1986 JJA had long been recognised. It clearly failed to conform to Indias commitments under the United Nations Convention on the Rights of the Child. In 2000, India enacted a new Juvenile Justice (Care and Protection of Children) Act to meet its international legal obligations. In 2009, Indias Ministry of Women and Child Development launched Integrated Child Protection Scheme (ICPS) with the aim of ensuring compliance with the United Nations Convention on the Rights of the Child with respect to the children in conflict with the law. In 5|Page

February 2010, Indias Ministry of Women and Child Development recommended the State of Jammu and Kashmir to amend the act.

Status Quo
On March 2013, the juvenile justice in the state after the government faced lot of criticism that the Juvenile Justice Act, 1997 was insufficient to deal with the juveniles. The Juvenile Justice Bill to consolidate and amend the law related to juveniles in conflict with law and children in need of care and protection was passed voice vote by the legislative assembly of the state after minor changes. According to the juvenile justice amendment bill 2013 Juvenile Justice Boards will be established in every district or a group of districts or each division of the state headed by judicial magistrate of first class for juveniles in conflict with law. Apart from judicial magistrate, two social workers with seven years of experience in filed will be also the members of the board, Special Juvenile Police Units will be created for apprehension of the juveniles in conflict with law and to produce them before the Board without placing them in police lock-up/lodging them in jail. Observation homes will be established and maintained by the government for reception of juveniles, in conflict with law who dont have parents/guardian for preliminary inquiries, care and classification of juveniles according to the age group such as seven to twelve years, twelve to sixteen years and sixteen to eighteen years, giving due considerations to physical and mental status and degree of the offence committed The Child Welfare Committees, consisting chairperson and four other members, will be constituted for care and protection of children.The committees will decide which home the juvenile against the law should be send

Conclusion
The series of exploitation and oppression which was suffered by the juvenile delinquents seems to have come to an end. Still at Jammu and Kashmir the implementation of such laws are not upto the mark and they are still held and convicted under Public Safety Act 1976. Even after the 2013 juvenile justice amendment act there has been no substantive development for the up keep of the juvenile delinquents. Still in the state there exist only one juvenile delinquents home. There are still cases being reported where the juveniles and innocent people are held under PSA, 1976 without trial and bail for 2years which ultimately lead them to become hardened criminals. The need of the hour is to amend all such laws which do not regard the Child Rights and the new laws should be drafted in consonance to the CRC and Beijing Rules.

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Bibliography:
http://www.greaterkashmir.com/news/2013/Mar/29/assembly-votes-to-raise-juvenile-age-to-18years-73.asp http://www.achrweb.org/reports/india/JJ-J&K-2011.pdf http://www.achrweb.org/press/2011/IND06-2011.html http://www.achrweb.org/reports/india/JJ-Nobodys_Children2013.pdf http://jklegislativecouncil.nic.in/Governor/BILLS%20TRANSMITTED/Bill%20No.8.pdf http://www.kashmirtimes.com/newsdet.aspx?q=14305 http://www.thekashmirwalla.com/2013/05/more-than-1000-minors-booked-under-psa-in-kashmir/ http://www.kashmirlife.net/juvenile-injustice/ http://lib.ohchr.org/HRBodies/UPR/Documents/session13/IN/CRIN_UPR_IND_S13_2012_ChildRi ghtsInformationNetwork_E.pdf http://kashmirreader.com/03292013-ND-assembly-passes-juvenile-justice-bill-13364.aspx http://www.thehindu.com/news/national/juvenile-homes-are-hellholes-says-report-on-childrape/article4637540.ece http://blogs.wsj.com/indiarealtime/2011/11/16/kashmir-youth-detained-illegally-report-says/ http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/frontpage.htm http://amnesty.org/en/library/asset/ASA20/032/2013/en/ca86e4e6-3cc3-43ab-ad5f0e57dee89f92/asa200322013en.html http://www.amnesty.org/en/protect-children-jammu-kashmir http://india.blogs.nytimes.com/2013/06/06/activists-hope-law-changes-the-way-kashmir-treatsjuveniles/?_r=0 http://www.kashmirlife.net/psa-violates-indias-international-human-rights-law-obligations-ai/ http://www.indianexpress.com/news/in-j-k-juvenile-age-is-16-yrs-but-minors-booked-under-psalso/1068604/

convention on the rights of children http://www.unicef.org/crc/files/Rights_overview.pdf http://childrenandyouthprogramme.info/pdfs/pdfs_uncrc/uncrc_summary_version.pdf

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