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WHO IS A CHILD IN CONFLICT WITH LAW?

"A child who is alleged or found to have committed an offence and who has not completed 18 years of age on the date of commission of such offence."

WHY ARE CHILDREN IN CONFLICT WITH LAW TRIED DIFFERENTLY FROM ADULTS?

A child's developing physiology, limited knowledge and inexperience makes him/her immature, incapable of logical reasoning and proper judgement. This further makes a child vulnerable and dependent on adults for nurture, care and protection. 

A child's unlawful behaviour is always the child's response to a violation of the his/her own rights. Stakeholders like parents, guardians, the school and the state are the custodians of child rights. These stakeholders have certain duties and responsibilities towards the child. A compromise or violation of these duties like discrimination, neglect, exploitation or even deprivation of the child's basic needs like food, water, shelter, security, education and rest could lead delinquent behaviour. These are the most common triggers for unlawful acts by children. Unlike adults, the child is dependent on others for his/her rights to be realised. A child cannot earn money to satisfy his hunger. The parent or the state needs to provide appropriate nutrition, healthcare and education to the child. If they default, the child will resort to other means to take care of him/herself. Can we hold the child completely responsible then for stealing money or food? Similarly, for an underage driver or social drinker, unlike an adult committing the same offence, the child is in the care and custody of adults who are responsible for the child's wellbeing. Giving a child access to rights, goods and services they are not yet eligible for is negligence and unlawful on part of the parents and not the child. Thus when the child is in conflict with law, the source of this behaviour will always be traced to one or more stakeholders in the child's ecosystem and will not start with the child himself. The child's behaviour is only the response to the conditioning/stimulus he/she has received from these stakeholders. Thus, it would be unfair for us to punish children like we would deal with adults. It is for this reason that the system focuses more on the child's intent behind the act rather the act itself. 

Given the maturity of children at different ages, the Indian Penal System tackles action against children in conflict with law differently. The approach towards children in conflict with law is more restorative than punitive. The intent is to rehabilitate the child and integrate him/her back into society rather than punish the child for the unlawful act. 


 

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WHEN CAN A CHILD IN CONFLICT WITH LAW BE TRIED AS AN ADULT?

  1. The child must be between 16 and 18 years of age. 

  2. The child is alleged to have committed a heinous crime as recognised by the Bharatiya Naya Sanhita (BNS) 2023, which has replaced the Indian Penal Code from July 1, 2024.

  3. Post a preliminary assessment conducted by the JJB that will determine:

  • the minor’s mental and physical capability to commit such offence 

  • ability to understand the consequences of the offence and 

  • the circumstances in which he allegedly committed the offence

HOW DOES ONE REPORT A CHILD IN CONFLICT WITH LAW? 

Delinquent behaviour is unacceptable and those engaging in it must be penalised. However, society needs to be more compassionate towards children in conflict with law. We often jump to the conclusion that if a child can commit an offence, he/she can definitely be punished. If he/she was naive like other children, he/she wouldn't engage in the act in the first place. Please refer to the section above for triggers for delinquent behaviour. Therefore, before judging the child or jumping to conclusions about the act committed by the child, it would be advisable for a citizen act lawfully: 
 

  1. Involve the Child Welfare Officer (CWO) from the closest police station or the Special Juvenile Police Unit. No child alleged to be in conflict with law can be placed in a police lockup or lodged in a jail. 

  2. Please ensure there is no physical contact with the child in order to present yourself from being accused of a child rights violation yourself. 

  3. Involving witnesses would help but ensure you do not defame or threaten the child and respect the privacy of the child.

  4. On taking custody of the child, the CWO will have to present the child before the Juvenile Justice Board within 24 hours. The Board will initiate and inquiry and pass interim orders regarding the temporary custody of the child. In the case of heinous crimes, post a preliminary assessment, the Board may pass an order for children between 16 and 18 years to be tried as an adult and transfer the case to a Children's/Special court. 

  5. Any individual aggrieved by the order passed by the Juvenile Justice Board may within 30 days from the date of such order, appeal to the Children's Court/Court of Sessions for reconsideration. The resolution passed by the Children's court too can be challenged in the High Court.
     

PRINCIPLES OF JUVENILE JUSTICE IN INDIA

As signatories of the UNCRC our constitutional provisions regarding judicial action against children in conflict with law are aligned with the principles and provisions of the UNCRC. Following are some of the principles that lay the foundation for Juvenile Justice in India.

 

  • Presumption of innocence: Any child shall be presumed to be innocent of any crime or intent of crime upto 18 years.

  • Best Interest of the Child: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential.

  • Right to Privacy: Every child shall have the right to protection of his privacy and confidentiality throughout the judicial process.

  • Principal of Repatriation and Restoration: Every child in the juvenile system shall have the right to be reunited with his family at the earliest and to be restored to the same socio-economic and cultural status that he was in, before coming under the perview of the Act, unless it is not in his best interest.

  • Principle of Diversion: Measures for dealing with children in conflict with law without resorting to judicial proceedings shall be promoted unless it is in the best interest of the child or the society as a whole. 

WHAT ROLE DOES COMMUNITY PLAY IN JUVENILE JUSTICE?

Justice is not only for victims. Without 'justice for offenders', our penal system would would signify 'an eye for an eye and a tooth for a tooth". Like someone wisely said, an eye for an eye would make the whole world blind. Therefore, when we take into account justice for a child in conflict with law, as per the principles of Child Rights, we must offer the child an opportunity to rehabilitate and reintegrate into society in such manner that the individual (as a child or an adult) is not prompted to or doesn’t find the need to engage in unlawful behaviour in the future.

 

The community plays the most important role in achieving this: 

  1. Know your rights and those of the child. Be compassionate and let justice take its course. The cause of the deliquescent behaviour is often hidden to the naked eye and we must give the child the benefit of doubt under the presumption of innocence. However, do not ignore the offensive act and take the appropriate action. Seek help from The Child Welfare Police Officer at the closest police station or call Childline at 1098.

  2. Follow the case and ensure the victim as well as the offender are guaranteed justice. 

  3. Reintegration into society is critical when it comes to children in conflict with law. If society fails to accept them (in childhood or when they are adults) on the account of their juvenile delinquency, they will lose hope and faith in the system. Not only will it be a violation of their child/human rights but chances are that the delinquent behaviour could reoccur. It is important we accept them and provide the support system they would require to live respectable and crime free lives. 

  4. Help them in getting integrated into their family and society by providing access to education, livelihood, housing, employment etc. 

ACTION BEGINS WITH AWARENESS

The following diagram will help us understand the state machinery for Children in Conflict with Law under the Act. 

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Like every child matters, every citizen can make a difference.

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You may also email me at pallavi@societyforthechild.com

© 2024 by SOCIETY FOR THE CHILD, Mumbai, India

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