Omkar Informatique

Constitution, function and powers of press council
The function of the council is governed under the Press Council Act, 1978. It is a statutory, quasi-judicial body. It acts as the watchdog of the press. It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.
The preamble of the Act runs as follows:
“An Act to establish a Press Council for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India.”
The purposes of the Act are:
1. to establish a Press Council
2. Such press council is to be established
(a) for the purpose of preserving the freedom of the Press and
(b) for the purpose of maintaining and improving the standards of newspapers and news agencies in India.
Essential features of the Act—
1. CHAPTER II deals with the procedure of establishment of the press council.
(a) Section 4(1) provides that the Central Government may appoint, there shall be established a council by the name of the Press Council of India.

(b) Section 4 (2) makes the Press Council of India as a body corporate having perpetual succession and a common seal and shall by the said name sue and be sued.

2. (a) Section 5 (1) provides that the Press Council of India shall consist of a Chairman and twenty-eight other members.

(b) Under Section 6 (2) the Chairman shall be a person nominated by a Committee. The Committee consists of
(i) the Chairman of the Council of States (Rajya Sabha),
(ii) the Speaker of the House of the People (Lok Sabha) and
(iii) a person elected by the members of the Council under sub-section (6) of Section 6. Section 6 (6) provides that the members of the Council notified under sub-section (5) shall elect from among themselves in accordance with such procedure as may be prescribed a person to be a member of the Committee referred to in sub-section (2) and a meeting of the members of the Council for the purpose of such election shall be presided over by a person chosen from among themselves.
(iv) There shall b other members-
(a) thirteen shall be nominated in accordance with such procedure as may be prescribed from among the working journalists of whom six shall be editors of newspapers and the remaining seven shall be working journalists other than editors, so, however, that the number of such editors and working journalists other than editors in relation to newspapers published in Indian languages shall be not less than three and four respectively;
(b) six shall be nominated in accordance with such procedure as may be prescribed from among persons who own or carry on the business of management of newspapers, so, however, that there shall be two representatives from each of the categories of big newspapers, medium newspapers and small newspapers;
(c) One shall be nominated in accordance with such procedure as may be prescribed from among persons who manage news agencies;
(d) three shall be persons having special knowledge or practical experience in respect of education and science, law and literature and culture of whom respectively one shall be nominated by the University Grants Commission, one by the Bar Council of India and one by the Sahitya Academy;
(e) five shall be members of Parliament of whom three shall be nominated by the Speaker from among the members of the House of the People (Lok Sabha) and two shall be nominated by the Chairman of the Council of States (Rajya Sabha) from among its members. No working journalist who owns, or carries on the business of management of, any newspaper shall be eligible for nomination under clause (a). The nomination under clause (a) and clause (b) shall be so made that the among the persons nominated there is not more than one person interested in any newspaper or group of newspapers under the same control of management..
3. The Chairman and other members shall hold office for a period of three years. The Chairman shall continue to hold such office until the Council is reconstituted in accordance with the provision of section 5 for a period of six months whichever is earlier.

4. A member shall be deemed to have vacated his seat if he is absent without excuse, sufficient in the opinion of the Council from three consecutive meetings of the Council.
5. Section 7 provides that the Chairman shall be a whole-time officer and shall be paid such salary as the Central Government may think fit; and the other members shall receive such allowances or fees for attending the meeting of the Council, as may be prescribed. The conditions of service of members shall be such as may be prescribed. The office of a member of the Council shall not disqualify its holder for being chosen, as, or for being, a member of either House of Parliament.

7. Section8 provides that the Council may constitute from among its members such Committees for general or special purposes as it may deem necessary and every Committee so constituted shall perform such functions as are assigned to it by the Council. The Council shall have the power to co-opt as members of any Committee constituted under subsection (1) such other number of persons, not being members of the Council, as it thinks fit. Any such member shall have the right to attend any meeting of the Committee on which he is so co-opted and to take part in the discussion thereat, but shall not have the right to vote and shall not be a member for any other purpose.

8. Section 9 provides that the Council or any Committee thereof shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be provided by regulations made under this Act. Section 12 provides that all orders and decisions of the Council shall be authenticated by the signature of the Chairman or any other member authorised by the Council in this behalf and other instruments issued by the Council shall be authenticated by the signature of the Secretary or any other officer of the Council authorised in like manner in this behalf.
FUNCTION OF THE COUNCIL—
Chapter iii deals with powers and functions of the council. Those are:
1. Section 13 (1) provides that the objects of the Council shall be:
(a) to preserve the freedom of the Press and
(b) to maintain and improve the standards of newspapers and news agencies in India.

2. Section 13 (2) provides that the Council mayperform the following functions, namely :

(a) to help newspapers and news agencies to maintain their independence;

(b) to build up a code of conduct for newspapers, news agencies and journalists in accordance with high professional standards;

(c) to ensure on the part of newspapers, news agencies and journalists, the maintenance of high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship;

(d) to encourage the growth of a sense of responsibility and public service among all those engaged in the profession of journalism;

(e) to keep under review any development likely to restrict the supply and dissemination of news of public interest and importance;

(f) to keep under review cases of assistance received by any newspaper or news agency in India from any foreign source including such cases as are referred to it by the Central Government or are brought to its notice by an individual, association of persons or any other organisation.

(g) to undertake studies of foreign newspapers, including those brought out by any embassy or other representative in India of a foreign State, their circulation and impact.

(h) To promote a proper functional relationship among all classes of persons engaged in the production or publication of newspapers or in news agencies.

(i) to concern itself with developments such as concentration of or other aspects of ownership of newspapers and news agencies which may affect the independence of the Press;

(j) to undertake such studies as may be entrusted to the Council and to express its opinion in regard to any matter referred to it by the Central Government;

(k) to do such other acts as may be incidental or conducive to the discharge of the above functions.

3. The Council has Power to Censure under Section 14 after following the procedure
(a) It can initiate proceeding on receipt of a complaint made to it or otherwise. The Council may not take cognizance of a complaint if in the opinion of the Chairman, there is no sufficient ground for holding an inquiry.
(b) It shall act after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard.
(c) The Council may hold an inquiry in such manner as may be provided by regulations made under this Act
(d) The Council can pass the following orders:
(i) warn the newspaper, the news agency, the editor or the journalist,
(ii)admonish the newspaper, the news agency, the editor or the journalist or
(iii)censure the newspaper, the news agency, the editor or the journalist or
(iv) disapprove the conduct of the editor or the journalist
(e) Such order must be made in writing
(f) Such order must be made after recording reasons.
(g) Such proceeding can be initiated if the council has reason to believe that a newspaper or news agency has
(i) offended against the standards of journalistic ethics or public taste or
(ii) an editor or working journalist has committed any professional misconduct.:

(h) The Council cannot hold an inquiry into any matter in respect of which any proceeding is pending in a court of law.

(i) The decision of the Council under sub-section ( I ), or sub-section (2), as the case be, shall be final and shall not be questioned in a court of law.

Section 15 (1) provides that for the purpose of performing its functions or holding any inquiry under this Act, the Council shall have the same powers throughout India as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the followings matters, namely:

(a) summoning and enforcing the attendance of persons and examining them on oath;

(b) requiring the discovery and inspection of documents;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing commissions for the examination of witnesses or documents; and

(f) any other matter, which may be prescribed
Section 15 (3) provides that every inquiry held by the Council shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code.

State the distinction between the provisions of Sections 18 and 19 of the Limitation Act, 1963
Section 18 provides effect of acknowledgement in writing. It provides the following principles: (1) An acknowledgment of liability in respect of property or right has been made in writing.
(2) Such acknowledgement is signed by the party against whom such property or right is claimed. or
(3) Such acknowledgement is signed by any person through whom he derived his title or liability
(4) Such acknowledgement is made before the expiration of the prescribed period for a suit or application in respect of property or right.
(5) In such a case a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
(6) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act,1872 ( 1 of 1872), oral evidence of its contents shall not be received.
(7) Explanation to Section 18 clarifies that for the purposes of section 18, -
(i) An acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or
(ii) An acknowledgment may be sufficient though it avers that the time for payment, delivery, performance or enjoyment has not yet come or
(iii) An acknowledgment may be sufficient though it is accompanied by refusal to pay, deliver, perform or permit to enjoy, or
(iv) An acknowledgment may be sufficient though it is coupled with a claim to set-off, or
(v) An acknowledgment may be sufficient though it is addressed to a person other than a person entitled to the property or right;
(vi) the word "signed" means signed personally or
(vii) the word "signed" means signed by an agent duly Authorized in this behalf ; and
(Viii) An application for the ex*****on of a decree or order shall not be deemed to be an application in respect of any property or right.
From Section 18 it is clear:
1. It is not necessary that an acknowledgment within Section 18 must contain a promise pay or should amount to a promise to pay as held in Subbarsadya v.Narashimha, AIR 1936 Mad.939.
2. The acknowledgement must be unqualified so as to create fresh cause of action.
3. The acknowledgement must be of existing liability.
4. It must be an acknowledgement of debt as such and must involve an admission of a subsisting relationship of debtor and creditor and
5. An intention to continue it until it is lawfully determined must also be evident.
6. The acknowledgement must be made before the expiry of the period of limitation. An acknowledgement of barred liability is not material. Where the debt has already become time-barred, acknowledgement cannot create fresh period of limitation.
7. An acknowledgement without signature is no acknowledgement. It will be sufficient if the acknowledgement is signed by the agent and not by the debtor. Acknowledgement should be by a person who has personal liability to pay.
8. Acknowledgement does not create a new debt. It only extends the period of limitation.
9. Acknowledgement must relate to a definite liability in respect of the right claimed.
10. Explanation (b) to S.18 has explained that the writing containing the acknowledgement need not be signed by the debtor himself. It would be sufficient if the signature is that of the agent. Agents authority may be by way of a power of attorney or it may be gathered from the surrounding circumstance of the case. An unregistered document, registration of which is compulsory, can be used for the collateral purpose of proving acknowledgement of liability for the purpose of extending time under S.18 of the Limitation Act.
11. Section 18 does not apply to ex*****on of decree. So, even in case of consent decree for specific performance of contract, the ex*****on has to be filed within 12 years of the date on which the decree becomes executable.
Section 19 provides the effect of payment on account of debt or of interest on legacy. The principles may be stated as follows:
1. There is a debt or interest on a legacy.
2. Payment is made on account of a debt or of interest on a legacy.
3. Such payment is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly Authorized in this behalf.
4. A fresh period of limitation shall be computed from the time when payment was made.
5. Such an acknowledgment of the payment appears in the hand-writing of the person making the payment, or
6. Such an acknowledgment of the payment appears in in a writing signed by the person making the payment duly Authorized in this behalf.

7. Explanation clarifies that for the purposes of the section 19, -
a. where mortgaged land is in the possession of the mortgagee, the receipt of the rent of produce of such land be deemed to be a payment;
b. "debt" does not include money payable under a decree or order of a court.
The distinction between Section 18 and 19 are that:
1. In Section 18 there must be an acknowledgment of liability in respect of property or right made in writing whereas under Section 19 a payment saves limitation if it is made by a person liable to pay it. A purchaser of equity of redemption is a person liable to pay the mortgage the debt. If under a mortgage decree of sale of the mortgaged property to which he is a party through exempted from person liability he pays interest as such, such payment gives a fresh period of limitation for ex*****on of the decree.
2. Under Section 18 there are different modes of acknowledgement whereas under Section 19 it is the payment which extends the limitation and such payment has to be proved in a particular way, namely, a written or signed acknowledgement. That is the only mode of proof of such payment.

Distinction between Article 358 and Article 359 of the Constitution—
Emergency provision is a unique feature of Indian Constitution. It allows the Centre to assume wide powers so as to handle special situations. In emergency, the Centre takes full legislative and executive control of any state. Emergency provision allows the Centre to curtail or suspend freedom of the citizens. Existence of emergency provision in the Constitution is a big reason why academicians are hesitant to call Indian Constitution as fully federal. The proclamation of emergency is a very serious matter. It disturbs the normal fabric of the Constitution. It adversely affects the rights of the people. Constitution provides for three different kinds of abnormal situations which call for a departure from the normal governmental machinery setup by the Constitution:
a. An emergency due to war, an external aggression or armed rebellion [Article 352]. It is also known as National Emergency.
b. Failure of constitutional machinery in states [Article 356]. It is known as Presidential Rule.
c. Financial Emergency [Article 360].
In explanation to Article 352 it is provided that for proclamation of emergency, it is not necessary that external aggression or armed rebellion has actually happened. It can be proclaimed even if there is a possibility of the happening of external aggression or armed rebellion. In the case of Minerva Mills Vrsus Union pf India, it is held that judicial review can be made in respect of emergency proclaimed by the President.
STATE EMERGENCY-
Under Article 356, the President may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a situation has arisen under which the Government of the State cannot be carried on smoothly. In such a situation, proclamation of emergency by the President is called ‘proclamation on account of the failure (or breakdown) of constitutional machinery.’ In popular language it is called the President’s Rule. Such an emergency can have the following effects:
a) the President can assume to himself all or any of the functions of the government of the state other than the High Court,

b) declare that the powers of the legislature of the state shall be exercisable by or under the authority of the Parliament, and
(c) make provisions necessary for giving effect to the objects of the proclamation.
The president is not authorised to assume the powers of the High Courts or to suspend any constitutional provisions pertaining to it.
Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19. Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order. Article 359 authorizes the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. Under Article 359, the Fundamental Rights as such are not suspended. Their enforcement is suspended.
There is similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. The executive action taken only under such a law is protected by both.
The differences between Articles 358 and 359 can be summarised as follows:
1. Article 358 is confined to Fundamental Rights under Article 19 only. Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article 359 operates in case of both External Emergency as well as Internal Emergency.
4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency. Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president. It may either be the entire duration of Emergency or a shorter period.
5. Article 358 extends to the entire country. Article 359 may extend to the entire country or a part of it.
6. Article 358 suspends Article 19 completely. Article 359 does not empower the suspension of the enforcement of Articles 20 and 21.
7. Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19. Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order.
There is similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. The executive action taken only under such a law is protected by both.

Customs overrides the written text of Hindu law-Explain
In primitive societies human conduct was regulated by practices. These rules grew up spontaneously. These were later adopted by the people. Law is and has been for centuries an instrument of social regulation and of social change. It operates fundamentally within society. Its targets are always individuals and groups of individuals in society. Individuals and groups of people in society over a period of time develop some form of rules and regulations on their own, even before any 'legal system' as such comes into being. These rules are often referred to as customs. Society pre-exists a formal legal system. Custom too exists prior to the advent of a legal system. The rules accepted by the generality of the people and embodied in their customs are deemed to be right. Custom has played an extremely significant role as a source of law till other sources of law like legislation and precedent acquire prominence. Customs have been the most potent force in molding the ancient law. Salmond pointed out two reasons for the recognition of customs as a source of law.
1. Custom is frequently the embodiment of those principles which have commanded themselves to the national conscience as principles of justice and public utility.
2. The existence of an established usage is the basis of a rational expectation of its continuance in the future.
Salmond said that justice demands that unless there is good reason to the contrary, men’s rational expectations shall be fulfilled rather than frustrated. Keeton observes that the main reason for the admission of custom as a source of law seems to be that before state organs undertook the task of framing laws for the community, this was done by the people themselves. The rules elaborated by habit were enforced in courts. According to Savigny, customs is in itself an authoritative source of law. In early time it was only customary rules which were the only kind of laws known to the people. Those had the people sanction. Austin points out that as far as English law is concerned the so-called English customary law is purely on invention of the English judges.
An understanding of Hindu law begins with the concept of Dharma. Dharma refers to one’s religious, legal, ethical, and social duties. The highest source of dharma is the śhruti in the Hindu Law, the literal translation of which is, ‘what is heard’. The Vedas are the most prominent of the srutis. It originated from divine law and act as revelatory sources. They are the oldest of the sacred texts in Hindu law. Their importance lies in the message itself and not in their origins. The Vedas consist of four books: Rig-Veda, Yajur-Veda, Sama-Veda, and Atharva-Veda. They were written in a poetic form as a collection of hymns. They are considered as the spirit of the law in Hinduism. It guides on the Hindu way of life, but not as positive law. Among others, the next in the order of religious texts is the smriti, which translates as ‘what is remembered’. They began with sutras, as the ideas and rules derived from the Vedas. The smritis were further developed by Hindu legal texts called Dharmasastras. These sastras, in the nature of law books, act as the supreme authority of laws in Hindu law. Because the sastras orginiate from the śruti, they are considered sacred, but not in the same sense as a sruti. The most important of the smritis is Manu’s code, a set of laws compiled by Manu, an ancient lawgiver. The Manu Code is divided into twelve chapters. Subjects include origins of the world, sources of law, marriage, the justice system, and penances. The Manu code of laws is considered to be the most authoritative of all the smrits and whenever an inconsistency arises, Manu’s code is set to prevail. The commentaries and digests are the third class of the four different classes of Hindu law texts. The commentaries and digests were written analyzing and interpreting the smriti texts. Commentaries, called bhasya, are "linguistic exegesis, hypothetical examples, and theoretical disquisitions on a single Dharmasastra text." The digests, or nibandha, are much like the commentaries but instead of analyzing a single dharmasastras text, they explore a single topic from a series of smriti texts. Custom forms part of the fourth class of Hindu Law. Local customs, family customs and class customs are the three main kinds of customs that have been recognized by the courts. The courts have laid down certain essential tests in order for a custom to be held as valid, as under,
1. The custom must be ancient-Custom passes on from generation to generation. The fact that a said custom has been passed down through generations means that the said custom has been reinforced over many years. This reinforcement occurs when a lot of time has passed between when the practice of a said custom started and its persistence. Custom which is basically a set of unwritten rules needs age for it to be accepted and approved.
2. The custom must be continuous-This is another important requirement of custom. Continuance implies that a custom has stood the test of time, i.e. it has not been conveniently adopted. A single instance of a breach of custom would not render the custom invalid.
3. Custom must be uniform - A uniform custom would imply that the said practice that was followed or being followed has not changed from the custom that had been originally conceived.
4. Certainty-A custom must be certain. It should not be a figment of imagination. Its practice has to be proved by facts and not by opinion, reason or analogy.
5. Reasonableness and Public Policy - A custom must be reasonable to the parties following the custom and should be in lines with the public policy. The latter takes into account the aspect of morality.
These are the main features of a valid custom. It should be noted that continuity, certainty and uniformity overlap considerably.
In this background, the validity of the statement “Customs overrides the written text of Hindu law” may be examined.
In Collector of Madura vs. Moottoo Ramalinga Sethupathy (Ramnad case) 12 M.I.A. 397 (1868), the facts were that the Zamindar of Ramnad died. He left without any son. After his death, his estate vested on her wife Rani Parvathavardhinini. After the death of her husband, Rani Parvathavardhinini adopted a son. In doing so she took the consent of her husband’s sapindas. There was no authorization of adoption from her husband. When the Collector of Madura came to know about the death of Ramand, he notified the Government about the death of the sonless Zamindar. Under British law, if any Zamindar died without heirs, after the death of his wife the Zamindari would be seized by the Government. On the death of Rani Parvathavardhini, the estate of Ramnad would have been seized by the Government. But after the death of Rani Parvathavardhini, her adopted son claimed as an adopted son and brought a suit for declaration of the validity of the adoption. The Issue was whether an adoption made by the widow was valid with the consent of the sapindas without the husband’s authority?. The Privy Council evaluated different Schools and sources of Hindu law while delivering its judgment in this case. After tracing the historical development of Hindu law, the Court held that clear proof of usage usage will outweigh the written text of the Hindu law. Hindu law should be administered from the viewpoint of usage of the written texts of law. Custom is one of the most important sources of Hindu Law. It is important to the point that, if any conflict arises between a custom and the text of the Smritis, which is a written source, such custom will override the text. The Privy Council based their decision on the Smriti Chandrika and Prasara Madhviya, which are the most authoritative source in Hindu law regarding adoption, and concluded that in the Dravida School, even in the absence of authority from husband, a widow is entitled to adopt a son with the assent of his sapindas or kindred. The Privy Council observed: “For under the Hindu system of Law, the clear proof of usage will outweigh the written text of the law.”

Juvenile law—
Causes of Juvenile Delinquency-- Every person has different behavioural patterns. This is in case with children also. The behaviour patterns develop in early childhood. As soon as child grows up the behaviour comes out to real world. Behaviour patterns changes from time to time. Many circumstances or situations may create the delinquent behavior in the mind of the child. Researches and Studies show that they are various causes of juvenile delinquency in India. Following are the some of the causes of Juvenile Delinquency.
1. Adolescence Instability: – The biological, psychological and sociological are one of the important factors in the behaviour pattern of an adolescent. At this stage the teenagers become more conscious about their appearances and fashions, enjoyment, food, play and etc. At this age they want freedom. They want to be independent. Sometimes chances and opportunities are not given by their parents, teachers and elders. This leads to development of anti–social behaviour in them. This anti–social behaviour, biological changes, psychological causes are the some of the reasons which is responsible for juvenile delinquency.
2. Disintegration of Family System: –Disintegration of family system and laxity in parental control is also the main cause of increasing rates of juvenile delinquency. In normal cases divorce of parents, lack of parental control, lack of love and affection are the major factors of juvenile delinquency.
3. Economic condition and Poverty: – Poverty and poor economic condition is also considered as major contributing factor of increasing juvenile crimes. As result of poverty, parents or guardian fails to fulfill the needs of the child. At the same time children want that their desires should be fulfilled by hook or by cook. When their desires are not met they start themselves indulging in stealing money from homes or any other parents. This develops habitual tendency of stealing which results into theft at large scale.
4. Migration:–Migration of deserted and destitute juveniles’ boys to slums areas brings them in contact with some anti–social elements of society that carries some illegal activities like prostitution, smuggling of drugs or narcotics etc. These sorts of activities attract the juvenile a lot. They may involve themselves in such activities.
5. S*x Indulgence:-The children those who have experienced s*x assault or any other kind of unwanted physical assault in their early childhood may develop any kind of repulsiveness in their behaviour and mind. In this age they may become more vagrants or may want to have s*x experience. Too much of s*x variance may lead the boys towards the crime of kidnapping and r**es etc.
6. Modern Life Style:–The rapidly changing society patterns and modern living style makes it very difficult for children and adolescents to adjust themselves to the new ways of lifestyle. They are confronted with problems of culture conflicts. They are unable to differentiate between right and wrong.
Juvenile offenders were being treated as same as other criminal offenders. A movement for the special treatment of juvenile offenders started throughout the world including many developed countries like U.K., U.S.A. This movement has been started around the 18th century.
England--For the first time in 1908 Juvenile Courts were established in England under the Children Act, 1908. The primary duty of these courts was to provide proper care and protection to child and young offenders and take all the necessary steps to remove all undesirable surroundings around the offenders and to ensure reformation of the offenders by providing education and training.
THE CHILDREN AND YOUNG OFFENDERS ACT, 1933 confers the civil powers on the Juvenile Courts in certain important cases to look into matter. The Act also provides that any child (A person under fourteen years of age) and young person (A person between the age group of fourteen and seventeen year) who have committed the crime should be tried in Juvenile Courts only. The Act also provides under Section 77 of the Act the establishment of Remand Homes. UK Legislation also came with the new Act that also deals with Rights of Juvenile Offenders. The Act is THE CRIMINAL JUSTICE ACT, 1948. The act provides certain class of security to young offenders by sending them to remand homes.
U.S.A.--The working of Juvenile Courts in U.S.A. is relatively less complex and easier as compared to the other nations. The courts of U.S.A. follow the informal way in the process of trial of offender. At the first stage , the police officer in the charge of the case has the full discretion power either to keep the juvenile offender in the child custody or to immediately release him or to admonish the offender or to do the both. In the second stage police officer have to contact the Juvenile Courts to make them aware about the case and to take the matters into their hands.
Juvenile Offenders after the trial in court is being sent to Certified Schools or to the Children Homes if the order is passed by the court. According to the Juvenile Justice System in U.S.A. a juvenile is tried as an adult only in those cases where the age of the juvenile is close to adulthood as per the statutory provisions or any juvenile offenders who is found to be involved in repeated offences and is proved danger to the society.
India—
Juvenile Justice and Constitution of India--
The Constitution of India provides rights and duties of citizens. It provides provision for the working of the government machineries. Constitution in Part III has provided Fundamental Rights. In its Part IV it has provided Directive Principles of State Policies (DPSP) which acts as general guidelines in framing government policies. Constitution has provided some basic rights and provisions especially for the welfare of children. Like: –
1. Right to free and compulsory elementary education for all the children under the age of 6 to 14 years.( Article 21A)
2. Right to be protected from any hazardous employment under the age of fourteen age.(Article 24)
3. Right to be protected from being abused in any form by an adult.(Article 39(e)).
4. Right to be protected from human trafficking and forced bonded labour system.( Article (Article 39)
5. Right to be provided with good nutrition and proper standard of living.(Article 47)
6. Article 15(3) of the Constitution of India provides special powers to State to make any special laws for the upliftment and the betterment of children and women.
The Children Act, 1960--
1. Section 2(e) of the Act states “ child” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years.
2. United Nations Convention:–The UN Convention on the Rights of Child, 1989 defines that “child” means a human being below the age of eighteen years unless the law declaration applicable to child , majority is attained earlier-Article 1 of the UN Convention on the Rights of Child, 1989.
A person under the age of full legal obligation and responsibility is a minor or a person who is below the legal age of eighteen years is minor. A child being accused of a crime is not tried as an adult and is sent to Child Care Centre whereas juvenile is a person between the age group of sixteen and eighteen years. A young person who is been accused of crime is a juvenile offender and is tried as adult in court proceedings. In general sense both the term has same meaning but however difference lies in context of implications in the eyes of law. Minor implies young and teen persons whereas juvenile either indicates immature person or young offenders.
3. The General Assembly of the United Nations adopted the Convention on the Rights of the Child on 20th November, 1989. It prescribes a set of standard to be adhered to by all the States parties in securing the best interest of the child. The International instruments and conventions have contributed considerably to the issue of child rights and prevention of child abuse. The International bodies like United Nations and UNICEF have always paid more emphasis on the development of Child.
Following are the International Instruments and Conventions that are signed by all the States of UN in order to protect the rights of Children:-
1. UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
2. UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines)
3. UN Rules for the Protection of Juvenile Deprived of their Liberty (Havana Conventions)
4. Guidelines for the Action on Children in Criminal Juvenile System (Vienna Guidelines)
The General Assembly of United Nations adopted a Convention on the Rights of Child on 20th November 1989. This convention seeks to protect the best interest of juvenile offenders. The Convention states that to protect the social–reintegration of juvenile, there shall be no judicial proceeding and court trials against them. The Convention leads the Indian Legislation to repeal the Juvenile Justice Act, 1986. The Juvenile Justice, 1986 repealed the CHILDREN ACT, 1960. It aimed at giving effect to the guidelines contained in the Standard Minimum Rules for the Administration of Juvenile Justice adopted by the U.N. countries in November 1985. Indian Legislation came up with The Juvenile Justice (Care and Protection of Children) Act, 2000.
The Act consisted of 63 Sections, 7 Chapters. It extended to whole India expect to the State of Jammu and Kashmir. The primary purpose of the Act was to provide care and protection, treatment, development and rehabilitation of the neglected juvenile delinquent. The main objectives of the Act were:-
1. The Act basically laid down uniform framework for the juvenile justice in country in such a way that it protects the right and interest of juvenile.
2. It talks about the machinery and infra – structure for the care, protection treatment, development and rehabilitation of the juvenile offenders.
3. It set out the basic provisions for the proper and fair administration of criminal justice in case of heinous crime done by juvenile offenders.
The Juvenile Justice Act, 2000 was enacted with aim and intent to provide protection for children. It was amended twice–first in the year of 2006 and later in year of 2011.The amendment was made to address the gap and loopholes in the implementation. In the last few decades, the crime rate by the children under the age of 16 years has increased. The reason of increasing crime rate may be due to the upbringing environment of the child, economic conditions, lack of education and the parental care. These are the some of the basic reasons. The most disappointing part is that, children (especially under the age group of 5 to 7 years) now a days are used as tool for committing the crime as at that this stage their mind is very innocent and can easily be manipulated. The frightful incident of “Nirbhaya Delhi Gang R**e Case” on December 16, 2012 shocked the whole nation. Many debates were started among legal fraternity. The main reason and issue of the debate was the involvement of accused who was just six months short to attain the age of 18 years. The involvement of the accused in such a heinous crime of r**e forced the Indian Legislation to introduce a new law and thus, Indian Parliament came up with a new law which is known as . The increasing number of cases of juvenile crimes in the last recent years and frightful incident of “Delhi Gang R**e Case” has forced the law makers to come up with a new law. The major drawback of the Act was that it contained ill equipped legal provisions. The malfunctioning juvenile system was also the major reason in preventing the juvenile crimes in India. The Act was replaced soon by THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015.
Juvenile Justice ( Care and Protection), 2015--The Introduction of the Act has replaced the existing juvenile laws and has introduced some remarkable changes. One of the remarkable changes is juvenile under the age group of 16 to 18 years should be tried as an adult. A “child” means a person who has not attained the age of 18 years. He is not mature to understand that what is right and wrong. In modern era, the penal laws of most countries have adopted the principle of ‘doli incapex’. In India Section 82 of IPC provides that a child below the age of seven years is DOLI INCAPEX.
‘Doli incapax’ means of not capable of knowing that act there are committing is a crime. The penal law states that only child between the ages of seven to twelve ages can be convicted provided that the act they have committed is a heinous crime and they have knowledge and has attained the sufficient knowledge to understand the consequences of their act.
Sub-section 12 of Section 2 of The Juvenile (Care and Protection) Act, 2015 defines a “child”. It means a person who has not completed eighteen years of age. The Act classifies the term “child” into two categories: –
“child in conflict with law” -Section 13 of The Juvenile Justice (Care and Protection of Children) Act,2015, and “child in need of care and protection”-Section 14 of The Juvenile Justice (Care and Protection of Children) Act,2015
The child who has committed an offence and he or she is under the age of 18 years on the date of commission of the offence is basically called as “child in conflict with law”. The second sub–category is “child in need of care and protection”. It means a child as defined under Section 14 of the Act.
India had made legal provisions that especially and specifically deal with the rights and protection of juvenile offenders. It seeks to tackle the problem of juvenile delinquency. The Juvenile Justice System in India is made on the basis of three main assumptions:-
1. Young offenders should not be tried in courts. They should be corrected in all the best possible ways,
2. They should not be punished by the courts. They should get a chance to reform
Trial for child in conflict with law is defined under Section 2 (13) of the Juvenile Justice (Care and Protection) Act, 2015. Such persons should be treated on non-penal treatment through the communities based upon the social control agencies for e.g. Observation Homes under Section 47 of the Act, 2015 and by Special Homes under Section 48 of the Act , 2015. The aims to consolidate the laws relating to children alleged and found to be in conflict with law and children in need of care and protection by catering and considering their basic needs through proper care& protection , development, treatment , social- integration , by adopting a child friendly approach in the adjudication and disposal of matters in the best interest of children. The act also focuses on rehabilitation of juvenile offenders through various child care houses and institutions.
The most important subjects of the Act are as follows:-
The claim of Juvenility is to be decided by Juvenile Justice Board. The Board has to decide the claim of juvenility before the court proceedings but the claim of juvenility can be raised before the court at any stage of proceedings and even after the disposal of the matter by the Board .The Board had to consider Rule 12 of the Juvenile Justice Rules, 2007 in order to determine the claim of juvenility as held in the case of KULAIIBRAHIM V. STATE OF COIMBATORE AIR 2014 SC 2726. It was observed by the Court that accused has right to raise the question of juvenility at any point of time during trial or even after the disposal of the case under the Section 9 of Juvenile Justice Act , 2015 in the case of DEOKI NANDAN DAYMA V. STATE OF UTTAR PRADESH1997-10- SCC 525. Again in the case of SATBIR SINGH& OTHERS V. STATE OF HARYANA AIR 2005 SC 3549, it is reiterated that for the purpose of determination whether accused is juvenile or not, the date of birth which is recorded in the school records shall be taken into consideration by Juvenile Justice Board.
In case of KRISHNA BHAGWAN V. STATE OF BIHAR AIR 1989, the court held that entry in the register of school mentioning the date of birth of student is admissible evidence in determining the age of juvenile or to show that whether the accused is juvenile or child. The court stated that for the purpose of trial under Juvenile Justice Board , the relevant date for the considering the age of juvenile should be on which the offence has been committed. In case of ARNIT DAS V. STATE OF BIHAR AIR 2000 SC 748, the Court overruled its previous decision and held that date to decide in claim of juvenility should be the date on which the accused is brought before the competent authority.
Juvenile Justice Board--Section 4 of Juvenile Justice (Care and Protection) Act , 2015 provides that there shall be a constitution of Board for the purpose of inquiry and hearing in the matters of juvenile in conflict with law. The Board shall consist of Principal Magistrate and two social workers, among whom one should be a women. Section 4(2) of Juvenile Justice (Care and Protection) Act , 2015 provides that under no circumstances the Board can regulate and operate from regular court premises. The decision taken by the Principal Magistrate shall be final-Section 5 of Juvenile Justice (Care and Protection) Act, 2015
Special Procedure of Juvenile Justice Board:- The Act has provided the procedure against the juvenile offender under Section 7(2). Following are the main special procedure –
1. The proceedings cannot be initiated on a complaint registered by the police or citizen
2. The hearing must be informal and should be strictly confidential.
3. The offenders should be kept under Observation Home after detention.
4. The trial of juvenile in conflict with law shall be conducted by Lady Magistrate.
5. A child in conflict with law may be produced before an individual member of the Board when Board is not sitting.
Chapter IV of the Act lays down the provisions for betterment of the juveniles and has focused on the Reformation and Rehabilitation of Juveniles in all the possible circumstances.
Juvenile Justice is a legal framework which defines justice for juvenile under the Indian Legal System. The system is giving a special treatment and protection to juvenile delinquency. Juvenile Delinquency means a crime committed by youth who is under the age of 18 years. There is an increasing rate of juvenile crimes. This increasing rate is creating a debatable issue of age determination. Age determination is considered as one of the most important factor to determine the maturity level of the accused. The increasing crime rate is raising a question that whether the juvenile can be tried as an adult or not? The Act is itself answer to the question that no juvenile offender who comes under the definition of “child with conflict with law” as defined under sub–section 13 of Section 2 of the Act shall not be tried as adult. He shall be sent to Child Care Centre or any Rehabilitation Centre till the offender attain the age of 21 years and then he or she may shifted to the jail or prison.
According to the Act, the maximum tenure of punishment which can be given to the juvenile offenders is three years. This punishment is valid for heinous crime. In case of an adult offender, the maximum punishment which can be given is 7 years or life imprisonment or death penalty. The Act in case of juvenile offenders believe on Reformation of juvenile as much as possible. The reformation type of punishment under the Act includes:
1. Sending juvenile to Rehabilitation Centers,
2. Sending juvenile to Juvenile Schools or
3. Sending juvenile to make them involved in various program headed by government or NGO’s.
There is no need to give such a minor kind of punishment for a heinous and harsh offence just because of Age determination or Age factor . R**e is R**e. One can’t walk way taking a plea of age factor or mental incapacity or mental unfitness. The existing law in the name of Age determination or Age Consent is not creating deterrent effect on the anti–social behavior of youth. Reformation is good but not always. If law is for reforming the juvenile offenders so that they can have a better life in future then law should also think about the rights of the victim .Justice must be given to the victim. The theory of reformation is helping juvenile to be reformed. It is not helping the victim at all. So the question arises is there any guarantee that if juvenile offenders will get reformed and will not show their anti–social behavior again. The government has laid various legislations and rules to stop the incidents of juvenile crimes. The present laws on juveniles are not creating a deterrent effect on the juveniles. The results are not fruitful. The legislative intent is not accomplished.