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Updated: Jan 21, 2023

Guest article

Image Credits - Hindustan Times


While considering the quantum of punishment, the mind of the criminal and the criminal motivations behind the act must be taken into account. The criminal justice system, which exists since time immemorial, has evolved and the goals of the ancient criminal justice system have changed. Reformation and rehabilitation of a criminal are among the primary motivations of the modern criminal justice system. Through this article, the author argues how the Juvenile Justice Act of 2015 is against the basic principles of criminal justice and uses arbitrary distinctions which are detrimental to the modern goals of the criminal justice system.


Crimes have been committed from time immemorial, but is it possible to get a fixed definition of crime or the activities that should be termed as criminal activity? An activity that is a criminal act today may not be one tomorrow or vice versa. A definition of crime, therefore, has to be behavioral-oriented, that is, it should be following the rules and theories of behavioral sciences which will take into consideration the reasons for the causation. This is where criminology as a discipline becomes so essential. The attitude of society toward crimes also varies with time and, with that, changes the way how criminals are dealt with, but one thing which has stayed constant from the beginning of time is that criminals are to be avenged. In earlier times, religion and culture were intermingled, and criminal activities were seen as an insult to divine beings. The idea of punishment as a means of retribution was defended on the grounds of the conciliation of God for the insult received. The present object of punishment is, however, rehabilitation and not retribution. The human rights of prisoners have been recognized, and punishment is seen as a way of reformation. Making reformation the primary goal of punishment has faced a lot of criticism, with the critics alleging that the rights of the victims are being ignored and forgotten.

The best example of a reformatory criminal justice system should be the Juvenile Justice system. This blog shall analyze the historical evolution of the Juvenile Justice System in India and argue that the Juvenile Justice (care and protection of children) Act, 2015 is a regressive step that is against the object of reformation and will ultimately lead to the churning out of criminals rather than preventing it.


Various theories have been proposed that tried to find a plausible explanation or develop a model which can satisfactorily explain the reasons or the contexts in which criminals ended up committing the act they have committed. However, no single theory or model could explain the same, and the best approach is probably to follow a mix of all the theories.

One of the most debated theories is the genetic theory of crime which says that criminal tendencies are inherited from a child’s parents, and his social accommodations or environment have little effect on his overall behavior. While several studies have confirmed that genetics do play a role in determining criminal tendencies, it is a bit too over-simplistic and overgeneralized. Further, scientific research in the field has failed to gauge the exact influence of genes or identify the specific genes which are associated with criminal tendencies.

In contrast, the social learning theory proposes that a child is a blank slate and is not born criminal; it is the social groups or the people they mingle with, especially during the initial stages of life, which decide what they grow up to be. This theory can be supported by the fact that most of the inmates in India did not come from educated backgrounds. The theory, therefore, supports the goal of reformation as they were victims of society before they committed the offense and victimized society. So, with proper education and rehabilitation, these people can be returned to society, and any kind of retributive measure will only lead to further injustice.

Another theory that talks about a completely different reason is the Rational Choice Theory which states that individuals measure the benefits and expected losses associated with a particular offense. Therefore, crimes can be prevented by increasing the expected loss, either by increasing the probability of getting caught or by increasing the punishment to such an extent that will completely nullify the benefits of such a criminal act.

The above discussion makes it clear that no one-stop solution or one size fits all solution can be framed for all criminal activities or while dealing with all types of criminals. Therefore, while deciding the quantum punishment, the severity of the offense should not be the sole determining factor, and several aggravating and mitigating factors need to be considered on a case-to-case basis.

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The goal of reformation can best be highlighted by looking into the juvenile justice systems in various jurisdictions. The first legislation in India which called for differentiating convicts who were minors at the time of the commission of the offense from the majors was the Apprentices Act of 1850. The first uniform legislation on this subject was the Juvenile Justice Act of 1986, which was coded mainly based on the Children Act of 1960, which was a model legislation for the states and only applied to the Union territories. The Act banned the use of police stations or jails for people covered under this act. The act also provides for punishment for a much lower degree than the once prescribed under the IPC such as directing the child to undergo counseling or community service in place of incarceration. All girls under the age of 18 and all boys under the age of 16 came under the definition of ‘juvenile’ under this act. The difference was removed by the Juvenile Justice (Care and Protection) Act, of 2000, which made the cut-off age uniform for all genders to 18 years. The differential treatment is justified on the ground that juveniles are inherently different from adults, and there is a greater potential for reformation and a lesser degree of responsibility and understanding of the consequences of their acts.

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Attaching a lower degree of responsibility and hence a lower degree of punishment raises the question of whether the victim is being deprived of justice. The problem was brought into the limelight by the involvement of a 17-year-old in the gruesome gangrape of a Delhi girl, Nirbhaya, in 2012. Reports of the juvenile being the most brutal of the lot started making headlines. The 17-year-old was released after serving just 3 years in the correction home and was resettled in an unknown location while the others were all sentenced to death. The Criminal Law Amendment Act 2013 brought more stringent provisions and punishments for crimes against women. With the act's passage, women were presumed to be protected except for juveniles. Against this backdrop, the Juvenile Justice Act 2015 was passed.


The Juvenile Justice Act of 2015 divided crimes into three types, namely, petty offenses, serious offenses, and heinous offenses. Under the act, the juvenile justice board must dispose of all cases where a juvenile has been accused of petty or serious offenses. The main difference between the Juvenile Justice Act of 2015 and the Juvenile Justice Act of 1986 is in treating juveniles accused of heinous offenses and falling in the age group of 16-18years old. The Juvenile Justice Act 2015 requires the Juvenile Justice Board to conduct a preliminary assessment of the accused’s mental and physical capacity to commit and understand the nature and consequences of the crime. After the assessment, the Juvenile Justice Board can hear the case or send it to the Children’s Court where the children’s court shall have the discretion to decide if the accused should be tried as an adult or as a child. This provision is in direct conflict with the provisions of the United Nations Convention on the Rights of the Child, to which India is a signatory, which defines ‘child’ as any person who has not attained the age of 18 years unless the age of majority is lower in that jurisdiction. The parliamentary standing committee had rejected the Juvenile Justice (Care and Protection) Bill, 2014 as unconstitutional and unwarranted as, in the opinion of the committee, 16-18years is a very critical age which requires greater protection, prosecuting the accused who are falling under the said age group as adults will defeat the goal of reformation which is deeply embedded in the previous Juvenile Justice Act. The reformatory nature of the act is further jeopardized by prosecuting a minor as an adult and can be held as a step backward toward retribution. The failure of the retributive approach can be found in various studies conducted in the USA and UK, which concluded that the children who were tried as adults were found to commit more offenses later in their life than those who were tried under the juvenile justice system.


Treating someone as a child when he/she is just a few months away from adulthood and hence handing over the punishment of a much lesser degree might seem unfair, but the present goal of the criminal justice system of reformation has to be taken into consideration, and one lousy case should not be the basis of legislation which will lead to further injustices and might lead to the churning of criminals who, otherwise, could have been rehabilitated.


By Srinjoy Debnath (Guest Writer)

My name is Srinjoy Debnath. I am a first-year undergraduate student pursuing B.A.LLB (Hons.) from National Law School of India University, Bangalore. I am deeply interested in reading and researching in the field of public policy, social justice and economics and law.

Mobile: 8478902690



1. Eugene McLaughlin and Tim Newburn, The Sage Handbook of Criminological Theory (Sage Publication Ltd. 2010)

2. Parameshwar P. Srivastava, “Correctional Penology: A study in ethics” 22 Journal of Indian Law Institute (1980)

3. Prerna Deep, “Criminology: The Pillar of Criminal Law” 9 Supremo Amicus (2019)

4. Jacques Barzun, “In favour of capital punishment”, 31 The American Scholar (1962)

5. S.K.Bhattacharya, “Juvenile Justice System in India” 23 Journal of Indian Law Institute (1981)

6. 264 Report on the Juvenile Justice (Care and Protection of Children) Bill 2014 of the Department-Related Parliamentary Standing Committee on Human Resource Development presented to Rajya Sabha on Feb.25, 2015, and laid on the table in Lok Sabha on Feb. 25, 2015.

7. Ved Kumari, “The Juvenile Justice Act 2015- Critical Understanding” 58 Journal of Indian Law Institute (2016)

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