Crew and Captain

Students with Sri. John Sir, on a leisure time 

Jurisdictional Challenges in Online Transactions

Jurisdictional Challenges in Online Transactions

The advancement in technology has brought with it a new wave of advanced communication, and transactions through virtual mediums have replaced face to face transactions. Today, e- commerce plays a vital role in nearly every sphere of life- with simply just a click of the mouse we can pay our electricity/telephone bills, do online shopping, transfer money to persons in different parts of the globe, conduct business deals etc. An online transaction may be explained as a way of conducting business by utilizing computer and telecommunication technology to exchange data or conduct business. However, this boom in internet transactions has brought a host of issues regarding jurisdiction of such transactions to the forefront. The primary question that needs to be addressed is “when a transaction takes place online, where is the contract concluded?” Justice S. Muralidhar has stated that the traditional approach to jurisdiction invites a court to ask whether it has the territorial, pecuniary, or subject matter jurisdiction to entertain the case brought before it. With the internet, the question of ‘territorial’ jurisdiction gets complicated largely on account of the fact that the internet is borderless.

U.S. Courts follow the “minimum contract rule” for determining territorial jurisdiction of online transactions as laid down in the leading judgment of International Shoe Co v. Washington. It is a requirement that must be satisfied before a defendant can be sued in a particular state. In order for the suit to go forward in the chosen state, the defendant must have some connections with that state. For example, advertising or having business offices within a state may provide minimum contacts between a company and the state. This test allows for jurisdiction over a non resident when such contract exists between the defendant and the forum state so long as maintenance of the suit does not offend the traditional; notions of fair play and substantial justice.

The Indian position theoretically matches with the US rule of minimum contracts. For civil matters, the Code of Civil Procedure, 1908 governs the jurisdiction aspect. Section 19 of the Act states that where a suit is instituted for compensation on account of wrong done, if such a wrong was committed within the local limits of the jurisdiction on one court and the defendant resides in or carries on business, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the courts.  Thus, for instance, if Mr. X residing in Bangalore publishes on his website in Chennai defamatory statements against Mr. Y. Mr. Y may sue Mr. X either in Bangalore or Chennai.

Section 20 of the CPC further provides that the suit shall be instituted within the local limits of whose jurisdiction the defendant resides or the cause of action arises. For example, A is a tradesman in Calcutta. B carries on business in Delhi. B buys goods of A online and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business.

Further, Section 13 of CPC provides that a foreign judgment is to be conclusive as to any matter which has been directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except under certain specified conditions. Talking about the presumption as to foreign judgments the provisions of the Act states that the Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

For instance: A is a tradesman who maintains his website from USA; B is a resident of India. B buys goods of A, online and requests A to deliver them to his address in India. A, fails to deliver the goods on time, B suffers a heavy loss. B sued A in an American Court, court decided in favor of B orders A to compensate B for the same. B filed a petition in Delhi HC for the enforcement of the same. The Delhi HC will consider the American Judgment as a conclusive as to any matter thereby.

In the case of Casio India Co. Ltd. vs Ashita Tele Systems Pvt. Ltd. [2003 (3) RAJ 506] there was a passing-off action where the Defendant was carrying on business from Bombay. The Defendant had managed to get a registration of domain name www.casioindia.com and Defendant no. 2 was the Registrar with whom the domain name had been registered. The Plaintiff, on the other hand, claimed to be a 100% subsidiary of Casio Computer Ltd., Japan (Casio Japan) which was the registered owner of the trade mark Casio in India used for a large number of electronic and other products. He had also obtained the registration of large number of domain names in India like CasioIndia Company.com, CasioIndia.org, CasioIndia.net as well as Casio India.info, CasioIndia.Biz. Defendant no. 1 had managed to get the registration of the these domain names during the time when it held a distributorship agreement with the Plaintiff. The H’ble Delhi High Court has observed that once access to the Defendants website could be had from anywhere else, jurisdiction could not be confined to the territorial limits of the place where the Defendant resided and the fact that the Defendants website could be accessed from Delhi was sufficient to invoke the territorial jurisdiction of a court in Delhi.


Another leading judgment is of (India TV) Independent News vs India Broadcast Live (2007 (35) PTC 177 Del). Here the Delhi High Court differed with its earlier judgment in Casio India. The Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state but yet held that if the Defendants website is interactive, permitting browsers not only to access the contents thereof but also to subscribe to the services provided by the owners/operators, then courts jurisdiction at the place where the website is accessed from is permissible. The High Court of Delhi ruled that it did not have jurisdiction over the domain name www.indiatvlive.com, because the defendant was based in Arizona. The court relied on the US circuit case Compuserve Inc. v. Patterson, which referred to a three-part test for deciding jurisdiction:
# The defendant must purposefully avail itself of acting in the forum state or causing a consequence in the forum state
# The cause of action must arise from the defendant’s activities there
# The acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make exercise of jurisdiction over the defendant reasonable.

In Banyan Tree Holding (P) Ltd v. A. Murali Krishna Reddy and Anr, the Delhi High Court stated that in order to establish the jurisdiction in forum court, even when a long arm statute exits, the Plaintiff would have to show that the Defendant purposefully availed of the jurisdiction of the forum state by specifically targeting customers within the forum state. A mere hosting of an interactive website without any commercial activity being shown as having been conducted within the forum state would not enable the forum court to have jurisdiction. The law as laid down in the case may be summarised as follows:
# Some commercial transaction must have taken place as a result of the site
# The defendant must have specifically targeted the forum state
# Some injury must have resulted to the plaintiff due to the actions of the defendant
# The plaintiff must have a presence in the forum state, and not merely the possibility of a presence

A mere hosting of a website accessible in the forum state, or a posting of an advertisement or a passive website that does not result in a commercial transaction with a viewer in the forum state, cannot give rise to a cause of action and therefore the court does not have jurisdiction.

In India's first case of cyber defamation, SMC Pneumatics (India) Private Limited v. Jogesh Kwatra, a Court of Delhi assumed jurisdiction over a matter where a corporate reputation was being defamed through emails and passed an injunction which restrained the employee from sending, publishing and transmitting emails which are defamatory or derogatory to the plaintiffs.

Another important legislation to be considered for online transactions is the Information Technology Act, 2000. This legislation was enacted to change outdated laws and deal with cyber crimes. A section which becomes relevant from the IT Act in terms of online transactions is Section 13 (3) which provides that:
 “Save as otherwise agreed between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.” To understand this let us take an illustration-if an air ticket is booked by a Complainant over the internet which is also sent by an Airline Company to the Complainant  through email, then these would be dispatches of electronic records. The request for booking of the air ticket would be an offer and the emailing of the ticket to the consumer would be the acceptance. In terms of Sec. 13 (3) of the I.T. Act, the ticket or, in other words, the acceptance of the offer for its purchase, would be deemed to have been received at the Complainant's place of business. Resultantly, the contract for purchase of the air ticket would be taken to have been made at the Complainant’s place of business. Acceptance of the contract would also be deemed to have been communicated there. Section 11 (2) of the Consumer Protection Act, 1986 and Section 13 (3) of the IT Act read together shows us that where online transactions are entered into, then, for the purposes of Consumer complaints, part of the cause of action arises inter alia at the Complainant’s place of business if acceptance of the contract is communicated to him through the internet, including the medium of email. Further, irrespective of the fact whether or not the contract is one made over the Internet, cause of action would also continue to arise at any of the places:
(a) Where the contract is performed or is to be performed or
(b) Where money under the contract is either payable or paid or
(c) Where repudiation of the contract is received, if any.

Territorial jurisdiction over a consumer complaint would lie with the Consumer Forum situated at any place where any of the above causes of action arises. A consumer would be legally entitled to pursue his remedy within the territorial jurisdiction of the Consumer Forum having appropriate pecuniary powers at any of the aforementioned places. This is in addition to the other places where a consumer may choose to file a complaint in accordance with the other provisions of Section 11 (2) of the C.P. Act.

Recently, the Delhi High Court in World Wrestling Entertainment, Inc. v. M/S Reshma Collection decided conclusively that jurisdiction in e-commerce cases involving trademark and copyright disputes would be determined by the buyer’s place of residence. The essential issue which the Court sought to address in this case was “When a transaction takes place over the internet, where is the contract concluded?” The Court specifically interpreted the meaning of the phrase “carries on business” as set out in Section 134(2) of the Trademarks Act,1999 and Section 62(2) of the Copyright Act, 1957; both these sections deal with the institution of suits in case of violation of any provision of the aforementioned Acts. The Sections state that as suit for infringement under the said Acts is to be instituted in a District Court having jurisdiction to try the suit. Further, the Courts specify that “District Court having jurisdiction” would “include a District Court within the local limits of whose jurisdiction the person instituting the suit or proceeding carries on business or personally works for gain.”
The Division Bench of the HC examined the principles laid down in M/S. Dhodha House vs S.K. Maingi where the SC laid down a 3-pronged test to determine whether the plaintiff could be said to “carry on business”:
 (i) The agent must be a special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not as a general agent who does business for any one that pays him;
(ii) the person acting as agent, must be an agent in the strict sense of the term and a manager of a Joint Hindu Family cannot be regarded as an ―agent within the meaning of this condition; and
(iii) To constitute ―carrying on business at a certain place, the essential part of the business must be performed at that place.

Since the plaintiff had no agent in Delhi, the Court proceeded to examine whether the 3rd condition was fulfilled in the instant case, i.e., ‘Was an essential part of the plaintiff’s business being performed at Delhi?’ To determine this issue, the Court was invariably led to the issue, ‘When a transaction takes place over the internet, where is the contract concluded?’

The Court then referred to the case of Bhagwan Goverdhandas Kedia v. Girdharilal Parshottamdas & Co. [AIR 1966 SC 543] and stated: “The general rule is that the contract is complete when the offeror receives intimation that the offeree has accepted his offer. An exception to this has been carved out in respect of contracts negotiated by postal communications or telegrams. The exception being that the bargain in such cases (post or telegram) would be struck and the contract would be complete when the acceptance of the offeree is put into a course of transmission by him by posting a letter or dispatching a telegram.”

The Delhi HC observed that just as in the case of telephonic conversation, there is instantaneous communication where transactions take place online and applying the rule in Bhagwan Goverdhandas Kedia, the Court held that in case of e-commerce, “contracts would be completed at the place where the acceptance is communicated.”

The Court noted, “The website of the appellant/ plaintiff refers to various goods and services. It is not an offer but an invitation to an offer, just as a menu in a restaurant. The invitation, if accepted by a customer in Delhi, becomes an offer made by the customer in Delhi for purchasing the goods ―advertised on the website of the plaintiff. When, through the mode of the software and the browser, the transaction is confirmed and payment is made to the appellant/ plaintiff through its website, the plaintiff accepts the offer of the customer at Delhi. Since the transaction between the two takes place instantaneously, the acceptance by the appellant/ plaintiff is instantaneously communicated to its customer through the internet at Delhi. If the contracts and/ or transactions entered into between the plaintiff on the one hand and its customers are being concluded in Delhi, can it not be said that the essential part of the business of the appellant/ plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place in Delhi? The offers are made by customers at Delhi. The offers are subject to confirmation/ acceptance of the appellant/ plaintiff through its website. The money would emanate or be paid from Delhi. Can it not then be considered that the plaintiff is, to a certain extent, carrying on business at Delhi?”

Conclusion:
At present although e- transactions are at the helm, we must realize that the laws governing these transactions are yet to emerge and develop. Although we have the IT Act in place, it is not sufficient to deal with online transactions in India. It is a step in the right direction as it lays down admissibility of electronic records, penalties for cyber-crimes etc. However, in the case of online transactions it can be regarded as an enabling statute which must be read in consonance with the Contract Act, 1872 in order to determine whether the online transaction does indeed constitute a valid contract. There is a dire need for a specific legislation to be enacted to determine issues involving jurisdiction for e-commerce disputes.

Published : March 03, 2017 | Author : Adv. Anish AK ,

Source : http://www.legalservicesindia.com/article/article/jurisdictional-challenges-in-online-transactions-2268-1.html

Contrasting Conflict: Lowering the Age of Juvenile Justice

Dhruva Sareen comments on the contrasting conflict that could arise by lowering the age of juvenile justice.

I. BACKGROUND

In a time when the common idiom ‘kids not acting their age’ has a different connotation altogether, the laws regarding delinquency have suddenly been pushed to the spotlight. On the ghastly night of the 22nd of December, 2013, a young paramedic was gang-raped and mutilated. The most brutal perpetrator amongst the demons was a minor at the time of the commission; making him in the eyes of law, not mature enough to reason his actions and thus be let off easily and triggering the nation’s woes and expressions into one of despondent sacrilege. The incident has not received satisfactory scrutiny by the rule of law as the verdict in State v Ram Singh & Ors has relieved the one juvenile in the group of the six perpetrators.In the beam of law where one side propounds the lenience on minors as a mandate for a civilized society, the other categorically demands a retributive reformation equating to the misdeed perpetrated. For those juveniles who commit even the most barbaric of crimes, Indian law cushions the punishment by making the maximum sentence to be of only three years, that too, in a reform facility. Nirbhaya was just the tipping point; there have been hundreds of incidents when children in the eyes of law have committed acts unworthy of even being limned.

The sacred rights of mankind are not to be rummaged for, amongst old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the

1. State v Ram Singh & Ors, SC: 114/2013 [Here in after NIRBHAYA CASE] 2. See Section 15(1), Juvenile Justice (Care and Prohibition of Children) Act, 2000. 3. NIRBHAYA CASE, supra note 1. 4. See Special Correspondent, 5 Juveniles held for Gang Rape in Guwahati, THE HINDU, September 18, 2013 as available onhttp://www.thehindu.com/news/national/other-states/5-juveniles-held-for-gang-rape-in-guwahati/article5137332.ece (Last visited on 5/2/14); Vaidyanathan, Rajni,Mumbai Photojournalist gang raped on assignment, BBC, August 23, 2013 as available on http://www.bbc.co.uk/news/world-asia-india-23806871 (Last visited on 5/2/14)

hand of divinity itself; and can never be erased or obscured by mortal power. With a similarly instilled ideology, the paper aims to posturize the juxtaposition that the lawmakers have intrinsically found themselves to be burdened with; much recently with the vigilant media gaze and public furore. The Juvenile Justice Act, 2000 has indubitably been a saviour for the rights of the children; however sometimes, the conflict of law with juveniles is there to stay, which is when inequity is doled out by the black quill on dull scrolls. Law without justice, after all, is nothing but a tarnished flesh-wound gaping at the dishonour it brings.

On 17th July, 2013, the Supreme Court of India dismissed pleas to reduce the age for juveniles from 18 to 16. The plea was a combination of seven writ petitions heard together which challenged the constitutionality of the Juvenile Justice Act, 2000 in response to which, the court refused to hold the act as ultra vires the constitution. Even though, this decision of the court was widely appreciated by one segment of the society due the virtue of it being an equitable safeguard of public morality and children’s rights, the counter-offensive believed that this judgment is detrimental to holistic justice.

With the recent legal skirmish between the Apex Court and the people propounding equitable relief to all, focus has been shifted on either the lowering of the age of the juvenile or the categorical exemption of the children in the age bracket of 16 to 18 being exempted from the jurisdiction of the Juvenile Justice Act.

II. INDIAN JUVENILE JUSTICE: JUSTIFIED?

A juvenileor a child is a person who has not completed 18 year of age while a juvenile inconflict with law means a juvenile who is alleged to have committed an offence. The Juvenile Justice Act is built upon a model which addresses both children who need care and those who are in conflict with law. The definition of a child is governed by several rules and conventions that India is a signatory to. The United Nations Convention on Rights of child

5. Hamilton, Alexander, The Farmer Refuted, THE WORKS OF ALEXANDER HAMILTON, ed. John C. Hamilton, vol. 2, (1850), p. 80. 6. Salil Bali v Union of India, (2013) 7 SCC 705 [Hereinafter SALIL BALI CASE]. 7. Section 2(k), Juvenile Justice (Care and Prohibition of Children) Act, 2000 8. Section 2(i), Juvenile Justice (Care and Prohibition of Children) Act, 2000 9. 26, Bachpan Bachao Andolan v. Union Of India & Ors, AIR 2011 SC 3361 [Hereinafter BACHPAN BACHAO ANDOLAN CASE]

was ratified by India in December, 1992, thus binding India to define a juvenile to be under the age of 18.

The Standard Minimum Rules are deliberately formulated so as to be applicable within different legal systems and, at the same time, to set some minimum standards for the handling of juvenile offenders under any definition of a juvenile and under any system of dealing with juvenile offenders. The Rules are always to be applied impartially and without distinction of any kind. However, when this is read in conjunction with Rule 4, gives a specific interpretation. The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially anti-social behaviour. In India, the quantum of variance between the conditions of all the juveniles is very high by the virtue of a huge gap between the socio-economic dimensions.

The Supreme Court held has said that

There are incidents where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.

The Supreme Court itself seems to be treading on rather rocky grounds flailing flimsy arguments able to corrupt its own logic. There have been incidents when one-man classifications have been denoted by the same court so that the fundamental rights of even one

10. Art. 1, Convention on the Rights of the Child, United Nations, 1989, as available on http://www.unesco.org/education/pdf/CHILD_E.PDF [Hereinafter CRC] ; See ¶ 37, GENERAL COMMENT No.10 (2007), Convention on the Rights of the Child, April 25, 2007, United Nations, CRC/C/GC/10; See also R. 11, The United Nations Rules for the Protection of Juveniles Deprived of their Liberty(The Havana Rules), United Nations, A/RES/45/113, December 14, 1990; United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), A/RES/45/112, December 14, 1990.
11. Commentary to Rule 2, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, United Nations, A/RES/40/33, 29 November 1985, [Hereinafter THE BEIJING RULES]
12. Commentary to Rule 4, THE BEIJING RULES, Id.
13. ¶ 48, SALIL BALI CASE, supra note 6.

individual are not infringed. Here, under the garb of protecting a segment of the children in conflict with law, instead of devising innovative and effective rules, the Court chooses to sit idly as a by-watcher.

III. CONTEMPORARY ARGUMENTS: JUVENILE (IN) JUSTICE TO CHILDREN

Justice is not justice if it is not just to the stake of equity to all. If justice is doled out stepping on the agony and despair of children, then it is no justice. It is admitted that sometimes children can and do commit terrible crimes, and it is true that the reform and rehabilitation of child offenders under the juvenile justice system often exists largely on paper. However the solution is not to change the law, but to ensure it is better enforced. The lack of better infrastructural facilities for juvenile homes and access to quality counselling and support for child offenders is quintessentially responsible for the current encumbrance to unobstructed flow of justice.

The superintendents and staff of observation homes and special homes that by the virtue of increasing the age of juvenile from 16 to 18 in the 2000 Amendment to the JJ act, a much larger number of juveniles are to be accommodated in the lacking infrastructure. There are a total of 815 remand homes across India with a capacity of 35,000. It is imperative that the activists asserting the lowering of the age of juvenile should work for the implementation of the recommendations made by the Justice Verma Committee in harmony with those of the child rights activists. Theshelter homes/corrective institutions and CWCsshould perform the role of rehabilitating thesurvivors. Rehabilitation will be themeasure of success of the Juvenile Justice Act. However, rehabilitation when dabbling in the dregs of the lacking infrastructure that our nation is infested with, does not benefit the same purpose.

The manner in which the Juvenile Justice Act hasbeen implemented shows a complete failure of the State. Child Rights Activists believe that reformation during imprisonment and

14. Amnesty International India, India should reject regressive move to treat alleged child offenders as adults, PRESS RELEASE, December 10, 201, ASA 20/045/2013.
15. Adenwalla, Maharukh, Child Protection and Juvenile Justice System for juvenile in conflict with law, (Mumbai: CHILDLINE India Foundation), 2006, p. 18 
16. Purie, Aroon, Need to re-examine Juvenile Justice System, INDIA TODAY, January 11 2013 as available on http://indiatoday.intoday.in/story/india-today-editor-in-chief-aroon-purie-on-the-need-to-re-examine-juvenile-justice-system-in-india/1/241860.html (Last visited on 11/2/14)
17. ¶ 18,J.S. VERMA COMMITTEE REPORT,infra note 19 at p.170.
18. ¶ 45, BACHPAN BACHAO ANDOLAN CASE, Supra note 9.
19. See ¶ 51, Report of the Committee on Amendments to Criminal Law, January 23, 2013, p. 190 [Hereinafter J.S. VERMA COMMITTEE REPORT]

reformation without punishment are accepted as better approaches to prevention of crime, especially in the case of children.

The children if come in contact with hardened criminals in jail, it would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his conscience and alienating him from the society. Yet, juveniles have been forced to live behind the bars in prisons. The High Court of Delhi has given extensive guidelines regarding age-memos and age-perusal techniques that the prison authorities are obliged to follow procedure with. The objective of the Act is to provide care to the juveniles in need and to protect the child’s innocence.

There are numerous problems existent in the society that draws the scope-skillet of the Act back, thus cascading into the abstract yet adverse implementation of its functioning, if at all. The Ministry of Women and Children Development blames the ineffective administrative efficacy of the bureaucratic setup and enumerates major loopholes in the implementation of such a rehabilitative scheme. Thus, there is an imminently precarious necessity to better the infrastructure of the reformatory process that the juvenile justice aims to provide to juveniles. The guidelines stated by the Supreme Court need to be diligently followed for better implementation of the Juvenile Justice Act. Such judicial legislation has to be promulgated for better efficacious application of the provisions for the betterment of the children in conflict with law. However, the lack of proper drafting and loose provisions in the legislation itself thwart any efforts against the correction of the same.

IV. COMPARATIVE JUVENILE JUSTICE PROVISIONS

It is pretty evident from the recent happenings that the Indian Juvenile Justice Act is incapable of providing avenues to bring better law and order in the society. The Indian Penal Code only talks aboutindividuals who are under the age of 12 and thus anyone between the age of 12 and 18 would have to be dealt with under the Juvenile Justice Act. The major

20. Kumai, Ved,Why the young are different?, THE INDIAN EXPRESS, January 14, 2013., p.11.
21. Essa @ Anjum Abdul Razak Memon & Ors v The State of Maharashtra, through STF, CBI Mumbai & Ors, 2013 (3) SCALE 1, [Hereinafter Bombay Blasts Case]¶ 359.
22. See Court on its own motion v. Department of Women and Child Development, 2012 (129) DRJ 73
23. Id.
24. MWCD, The Integrated Child Protection Scheme (ICPS), 2006 as available on http://wcd.nic.in/schemes/icps.pdf (Last visited on 13/2/14)
25. ¶ 52-56, BACHPAN BACHAO ANDOLAN CASE, supra note 9.
26. See S. 82-83, Indian Penal Code, 1860.

grievance arising from the same is that the Juvenile Justice legislation is excessively lenient to the actions of such juveniles. Thus, there is a need to bring about certain change in the existing legislation. After Nirbhaya, a careful perusal of the provisions regarding juvenile justice in other countries has become a prerequisite.

Countries like the United States of America, New Zealand, Japan, Netherlands, England, Canada, Belgium, Australia have Criminal Law provisions that edict the transfer of a juvenile to an adult court in the cases of heinous crimes. Had the same provisions been applicable in the Indian context, the juvenile in the Delhi Gang Rape Case who have been let down with no penalty (The author contends that reformation is not in the least retributive as certain contrary views express.) would have been behind bars unable to cause the society more worry.

Over 100years ago, efforts to reform children convicted of minor crimes led to the implementation of what is now the current juvenile justice system in the United States. In the United States, the maximum age of a juvenile is 18 years. When a Juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.

In each Australian jurisdiction, except Queensland, a juvenile is defined as a person aged between 10 and 17 years of age, inclusive. In Queensland, a juvenile is defined as a person aged between 10 and 16 years, inclusive. Between the ages of 10 and 14 years, a further rebuttable presumption operates to deem achild between the ages of 10 and 14 incapable of committing a criminal act. A rebuttable presumption needs to be proven by the prosecution by proving the child to be sufficiently mature, and thenceforth, a contested trial may result in

27. Siegel, Larry & Welsh, Brandon, JUVENILE DELINQUENCY: THEORY, PRACTICE, AND LAW, Student ed., (Wadsworth-Cengage Learning), 2012, p.637 as available onhttp://books.google.co.in/books?id=ILYNdPTCzwkC&pg=PT671&lpg=PT671&dq= maximum+age+of+juvenile+countries&source=bl&ots=8e6ls0eepo&sig=hiPxAZFf _EzVMCj7YC79QCpCsZs&hl=en&sa=X&ei=tLj4Uui2N5KIogTHwIDQDQ &ved=0CCoQ6AEwAA#v=onepage&q=maximum%20age%20of%20juvenile%20countries&f=false(Last visited on 10/2/2014); See also Langan et. al. (ed.), CROSS-NATIONAL STUDIES IN CRIME AND JUSTICE, US Bureau of Justice Statistics, September 2004,pp.116-25, 129-36.
28. NIRBHAYA CASE, supra note 1.
29. Cloud, John, For They Know Not What They Do? When and How Do Children Know Right from Wrong? And How Can We Devise a Punishment to Fit Their Crimes?,TIME, Aug. 24, 1998, p. 60 as available on http://content.time.com/time/magazine/article/0,9171,988947,00.html (Last visited on 5/2/14)
30. Roper, Superintendent, Potosi Correc¬tional CentervSimmon, 543 U.S. 551 (2005)as available on http://www.npr.org/documents/2005/mar/scotus_juvenile.pdf(Last visited on 7/2/14), p.20. 
31. Richards, Kelly, What makes juvenile offenders different from adult offenders, TRENDS & ISSUES IN CRIME AND CRIMINAL JUSTICE NO. 409, February 2011, Australian Institute of Criminology, p. 1.

conviction. From 14 to 18 years, young offenders may be held fully responsible for their criminal acts but are subject to a different range of criminal sanctions than adults committing the same offences. Thus, countries such as the United Kingdom and the United States, though signatories to the same conventions that India is a part of, they have tweaked the mandate by choosing the middle path by punishing those juveniles who have committed heinous crimes the same as if they had been committed by adults.

In England and Wales, children accused of crimes are generally tried under the Children and Young Persons Act, 1933, as amended by Section 16(1) of the Children and Young Persons Act, 1963. As per the English law, if the juvenile has committed an offence alongside an adult, he is liable to be tried in the adult courts, or both of them are tried in the Crown Courts. Juveniles are sometimes tried as adults in Crown Courts for the commission of heinous offences.

Japan and Netherlands charge the juveniles to lifetime imprisonment if they are found to have committed a grave offence with due maturity and intention. Countries like Australia, Denmark, Germany, Hungary and Russia have adequate provisions to charge the juvenile offender of heinous crimes to be sentenced to imprisonment from ranging to 7 years to half the time of the adult sentence. The paper asserts there to be two alternatives; the first being the lowering the age of the juvenile from eighteen to sixteen, the second being the implementation of the harsher punishment for the mature perpetrators under the guise of juveniles. Thus, as for the second alternative, the maximum number of imprisonment/detention could be increased in consonance with the law provisions prevalent in other Common Law Nations. This would increase the ambit of the Juvenile Reformatory practices and also lead to a lower crime rate in juveniles.

V. J.S. VERMA COMMITTEE REPORT: A FLAWED SURMISE.

The Verma Committee Report is indubitably a very solemn and sincere effort into unearthing and revealing an innovative solution to the blatant injustice to each individual affected and mystically to the unaffected too. However, the contentions and assertions that it has brought

32. Urbas, Gregor, The Age of Criminal Responsibility, TRENDS & ISSUES IN CRIME AND CRIMINAL JUSTICE NO. 181, November 2000, Australian Institute of Criminology, p. 1.
33. ¶ 7,SALIL BALI CASE, supra note 6.
34. S. 24, Magistrate Court Act, 1980.
35. S. 90-92, Powers of Criminal Courts (Sentencing) Act 2000.
36. BRANDON & LARRY, supra note 27 at p.637.

out, through which they have deduced the conclusion against lowering the age of juvenile to 16, is rather abysmal.

The author would like to primarily rebut two arguments raised by the J.S. Verma Committee Report that have been crucial in deciding the focal point of the decision.

ARGUMENT I –

The Committee members are of the opinion that with the assumption that a person at the age of 16 is sent tolife imprisonment, he would be releasedsometimes in the mid-30s; and thenceforth there is little assurancethat the convict would emerge a reformed person,who will not commit the same crime that he wasimprisoned for (or, for that matter, any other crime).

COUNTER ARGUMENT I –

• If mature and cognitive individuals are given the armour of a Special Law allowing them to commit offences under the Indian Penal Code without any liability, they would breed within themselves enraged criminals with psychotic tendencies. Fake birth certificates would throng and act as a weapon of defence against prosecution for their wrongdoings. This is against the principles of natural justice and against the nature of an intelligent civilized society.
• This argument is in direct contravention to the Juvenile Justice Act, 2000 , which categorically demands that if an individual in the 16-18 age bracket is convicted of committing a heinous crime, he shall be kept separately if the State deems it to be dangerous if he is kept in a juvenile home. However, this direction is also limited to the maximum number of years a juvenile could be kept imprisoned for the offence committed.
• The committee has substantiated its contrary arguments by admitting that in the present circumstances, with no imminent relief or a sweepstake reversal in sight, the current reformatory process and procedure is breeding more criminals including juveniles in ourprisons and reformatory system by ghettoing them in juvenile homes and protective homes where they are told that the State will protect and provide for them, but which promise is a fruitless one.

37. ¶ 45 , J.S. VERMA COMMITTEE REPORT, supra note 19 at p. 253.
38. Art. 16(1), Juvenile Justice (Care and Prohibition of Children) Act, 2000.
39. Art. 16(2), Juvenile Justice (Care and Prohibition of Children) Act, 2000.
40. Ibidat p. 254.

ARGUMENT II–

The Committee Report believes that the 3 year period (forwhich delinquent children are kept in the custodyof special home) is the cause for correction withrespect to the damage done to the personality ofthe child. Children, who have been deprived of parentalguidance and education, have very little chances ofmainstreaming and rehabilitations, with theprovisions of the Juvenile Justice Act beingreduced to words on paper. Thus, they should be kept for three years in reformatory prisons so that something equivalent to parental guidance is provided.

COUNTER ARGUMENT II -

I shall take an excerpt from the Committee Report itself. There is an incident regardingthe plight of a child troubled with the process of juvenile justice which has been cited in the Committee’s report which is reproduced below.The said child made a complaint in the Board that he was given beatings by the elder children inside the home. He said that he has not reported this to Superintendent of the Home, accordingly it was deemed fit to apprise the Superintendent of the situation and to ask him to file a report.

The contents of the report are iterated as -

With due respect, I would like to inform your goodself (sic) that juvenile Deepak is living in child(sic) friendly environment and enjoying his life at Prayas Observation Home, Delhi Gate. He has gained 10 kg weight in a month. As per the Juvenile (sic) he told lie to release. No elder children tease him and beat him. We are providing due care, guidance and supervision for his complete development. In future I will take care of this child.

However, the panel believed otherwise. After a personal session with the boy, it was found out that the child’s attempt to save himself from suffocation had got him beaten up by the care-taker; who also beat him up after seeing the Order from the board. The bhaiyyawho was to give him the guidance essential to his life course, firstly wrongly accused him of battering

41. ¶ 48, VERMA COMMITTEE REPORT, supra note 19.
42. ¶ 46, Id.
43. FIR No. 89 of 2010, PS Swaroop Nagar, u/s 380/411/34 IPC – before the Juvenile Justice Board I, Sewa Kutir Complex, Kingsway Camp: Presided over by Ms. Anuradha Shukla, Principal Magistrate as cited from J.S. VERMA COMMITTEE REPORT, supra note 19 at pp. 191-92. 
44. ¶ 52, J.S. VERMA COMMITTEE REPORT, supra note 19 at p. 192.

another, beat him up for the same and then thrashed him for expressing his grievance. This is a flagrant concomitance

ARGUMENT III–

The J.S. Verma Committee Report has relied heavily on a paper by Laurence Steinberg’s in coming to the conclusion that the age of juvenile should not be reduced to 16.

COUNTER ARGUMENT III -

There is a flawed flight by the J.S. Verma Committee. Certain statements from the same paper were not given due consideration. Steinberg mentions that he and his co-authors did not see any improvement in basic cognitive processes, such as working memory or verbal fluency after the age of 16. Performance on tasks that activate the frontal lobes continues to improvethrough middle adolescence until about age 16 on tasks of moderate difficulty.

Thiswould be consistent with the notion that performance on relatively basic tests of executiveprocessing reaches adult levels around age 16, whereas performance of especially challengingtasks, which may require more efficient activation, continues to improve in late adolescence. When talking about the cortical and subcortical functioning, Steinberg categorically mentions that the basic intellectual abilities reach adult levels around age 16, before the process of psychosocial maturation is complete. Psychosocial maturity is defined to encompass elements of responsibility, perspective, and temperance. The J.S. Verma Committee Report has taken into purview very acute processes such as the snapping of synapses and the changes in dopamine receptors, notwithstanding the brazen proclamations stating that the adolescent becomes satisfactorily mature and cognitive to understand the consequences of his actions and reactions. In order to strictly pursue the law, the committee has flagrantly disregarded the contrary contentions made by the same paper they have relied their conjecture on. The committee has followed suit to the saying that it is better to risk

45. ¶ 53, J.S. VERMA COMMITTEE REPORT, supra note 19 at p. 258.
46. Steinberg, Lawrence, A Social Neuroscience Perspective on Adolescent Risk-Taking, Dev Rev. 2008 March ; 28(1): 78–106, p.14 [Hereinafter THE STEINBERG REPORT]
47. THE STEINBERG REPORT, Id.
48. ¶ 2, THE STEINBERG REPORT, supra note 46 at p. 15.
49. Steinberg, L et. al., Minors’ access to abortion, the juvenile death penalty, and the alleged APA “flip-flop” Are adolescents less mature than adults?, 2007as cited from THE STEINBERG REPORT, supra note 41.
50. ¶ 3, THE STEINBERG REPORT, supra note 46 at p. 17.
51.Cauffman, Elizabeth & Steinberg, Lawrence, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults, 18Behav. Sci. Law 741-760, (2000), p.749

saving a guilty person than to condemn an innocent one. However, Rigorous law is often rigorous injustice.

VI. CONFLICT IN JUSTICE: PLAUSIBLE SOLUTION.

There is an overriding apprehension regarding the rising graph of criminal offences being committed by the Children in conflict with law. There are certain ostensible drawbacks of the current legislation on juvenile justice.

• The evil of the society can manifest themselves in the forms of juveniles who are fully capable and cognitive to understand their actions and reactions yet protected under the garb of law. Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws. The scheme of using mature and capable individuals but children in the eyes of law to commit offences appears to be lucrative for the bad elements of the society.
• Article 21 of the Indian Constitution provides a right fundamental to each individual assuring a life of peace and dignity. By shielding a juvenile fully cognitive of the cascading consequences of his acts, the Centre is at constant risk of infringing that fundamental right by protecting a class of criminal tendencies.
• Since the name and link to an offence cannot be tagged with a juvenile offender , the offender under the lacking infrastructure, if not reformed, is capable of acting as a threat to the society in rem.
• Keeping the entirety of the juvenile offenders in one bracket would lead to a multiplier effect of criminal tendencies. Those who have wriggled through this loophole, like the minor in the Delhi Gang Rape case , may adversely affect the psyche of docile individuals, corrupting their minds with criminal affinities.

The contravening opinions to the concept of lowering the age of the juvenile believe that there needs to exist a differing accountability and punishment for developing adolescents

52. Voltaire, ZADIG OU LA DESTINÉE (THE BOOK OF FATE), The Floating Press, 2009
53. Terence, HEAUTONTIMOROUMENOS, Act iv. Sc. 5, 48. (796.),c. 185
54. See¶ 9, 11, SALIL BALI CASE, supra note 6.
55. Plato, 427 B.C. – 347 B.C.
56. Art. 21, Juvenile Justice (Care and Prohibition of Children) Act, 2000.
57. NIRBHAYA CASE, supra note 1.
58. See ¶ 359, BOMBAY BLASTS CASE, supra note 21.

which is in proportion to their varying psychological make-ups. This, however, is another contentious yet acceptable proposition that could work for the benefit of the society, at least in the present scenario when the dire need to amend and dictate the loopholes into clotting is one of immense necessity. A harbinger to correct such a drawback of the present circumstances would be the adoption and adaptation of the jurisprudence that the law of the United States and the United Kingdom amongst other nations follow, where they convict juveniles for the gravity of their offences taking into consideration the intellectual and emotional maturity of the individual.

In India too, the idea of such enforcement is fast on the boil. The Union minister for Women and Child Development Krishna Tirath is also amicable with the proposition of enforcing stricter penal punishment. In a recent interview, she said as quoted that,

The ministry's stand till now on the juvenile age is that it should be kept at 18 years. But in the rarest of the rare case like the December 16 gang-rape, in that I want he should get stringent punishment.

Thus, better implementation of Art. 16(1) would not prove to be enough; there is required a change in the legislation based on the laws in the United States and United Kingdom, both signatories to the same conventions and rules, have strict laws that transfer the juveniles to adult courts when and so it deems fit.

When children lose their innocence, they resemble children only in the eyes of law. With the drawl of latitudinal exposure in the society, the minds of juveniles are corrupted as a matter of certainty. In the Bombay Blasts Case, a juvenile who was tried and convicted along with adults under the Terrorist and Disruptive Activities Act (TADA), was denied the protection of the Juvenile Justice (Care and Protection of Children) Act, 2000, on account of the existence of a special act read along with S. 28 of the Juvenile Justice Act. This, though an isolated incident, demands a purview since the gravity of the crime led the courts to disassociate him from the tag of a child in the eyes of law.While rehabilitation is a legal and societal objective, this interest surely has to be balanced with creating a legal deterrent to protect

59. SeePreibisus, Paul, Petition:Don’t Let Children Be Tried As Adults In India, FORCE CHANGE as available on http://forcechange.com/64558/dont-let-children-be-tried-as-adults-in-india/ (Last visited on 13/2/14)
60. See S.24, Magistrates Court Act, 1980, supra note 34; S. 90-92, Powers of Criminal Courts (Sentencing) Act 2000supranote 35.
61. PTI, Krishna Tirath says no to lowering juvenile age, favours punishment in heinous crimes, THE INDIAN EXPRESS, New Delhi, January 21,2013 as available onhttp://archive.indianexpress.com/news/krishna-tirath-says-no-to-lowering-juvenile-age-favours-punishment-in-heinous-crimes/1062558/ (Last visited on 7/2/2014)
62. BOMBAY BLASTS CASE, Supra note 21.

women and girls from increasing incidences of rapes by juveniles. Unfortunately the existing system neither serves the purpose of rehabilitation nor deterrence against future crime. Thus, there needs to be a change, a drastic change to the current legislation in this regard.

The ultimate aim of juvenile justice system is to rehabilitate the offender rather than to exterminate him from the society.The principles on which such protections have been granted are: natural justice (protection of basic /natural/human/fundamental rights) and of safeguarding of personal liberty. However, a person capable and mature to understand his actions and its consequences, while committing the depravity of sin, if shields himself under the false sheath of law, it does infringe jus naturale. Due to the inability of the remand homes to accommodate the growing number of juvenile offenders, the practice of looking through the holistic lens should be avoided. If the rehabilitative process is inefficient, which it is, in the present socio-economic circumstances of the country, a reversal of approach is needed to be taken. The author does not favour the detention of innocent souls through his contentions; however, the emotional and mental maturity along with the sociological psyche of the juvenile needs to be taken into consideration before the strict implementation of a vaguely drafted statute.

VII. INDIA’S ABILITY TO AMEND: INFRINGEMENT OF INTERNATIONAL LAW?

The Beijing Rules talk about taking into consideration the emotional, mental and intellectual maturity of the juvenile in the process of delivering justice. The loosely drafted legislation, however, has put a blanket ban only on the basis of age. Also, the Beijing Rules provide for rules applicable to persons between the age of 7 and 18 and does not strictly put the age of the juvenile as under 18. The juvenile justice system ensures that any reaction to juvenile

63. Viswanathan, Aparna, Balancing the Juvenile Act, THE HINDU, September 9 2013 as available on http://www.thehindu.com/opinion/lead/balancing-the-juvenile-act/article5107620.ece (Last visited on 1/2/14)
64. VISWANATHAN, Id.
65. Jaiswal, Jaishree, HUMAN RIGHTS OF ACCUSED AND JUVENILES: DELINQUENT IN CONFLICT WITH LAW, (Delhi: Kalpaz Publications), 2005, p. 40 as available onhttp://books.google.co.in/books?id=Gm1IxQfIdI0C&pg=PA23&lpg=PA23&dq =Human+Rights+of+Accused+And+Juveniles:+Delinquent/+in+conflict+with+ law&source=bl&ots=GK82vqxnpk&sig=1_XEB2cmqcPVwjgk32oPMB xMCSw&hl=en&sa=X&ei=9-_-UpeUNI6Krgfk8YCQBA&ved=0CDk Q6AEwAA#v=onepage&q=Human%20Rights%20of%20Accused%20 And%20Juveniles%3A%20Delinquent%2F%20in%20conflict%20with%20law&f=false (Last visited on 10/2/14)
66. Rule 4.1, THE BEIJING RULES, 1985
67. VISWANATHAN, supra note 63.

offenders shall always be in proportion to the circumstances of both the offenders and the offence. In essence, rule 5 calls for no less and no more than a fair reaction in any given cases of juvenile delinquency and crime. This ideal has not in the least been applicable in the present circumstances.The U.N. Convention provides that a child who has committed an offence under the Indian Penal Code would be guaranteed the right to be presumed innocent until proved otherwise, the right of being informed of his rights and the offences with which he has been charged, the right to a legal counsel, the right to an impartial hearing, and the right to not be compelled to confess. Reading the Rule 17 of the Beijing rules in conjunction with the Articles of the UN convention on child rights, it becomes evident that India is not prohibited to amend the juvenile justice act to categorically exempt juveniles in the age bracket of 16 to 18 from the jurisdiction of the Juvenile Justice Act.

VIII. CONCLUSION

India is a developing country with a developing law. Since the last couple of years, a fear has also developed in the society. This fear is of criminals who wield their intentions without hesitance by the virtue of inherent lacunae in the Juvenile law of our nation. Indian law recognizes the concept of a Juvenile or a child in conflict with law; however, it remains oblivious to the separate concept of an innocent child in conflict with law. It overlooks the varying psyche of individuals and sways the blanket of protection plainly on the basis of one’s age. This gives rise to the profligate demonic overt actions that the population of India has been witness to, over the past couple of years.

The law needs to be amended, or if not that, then the loopholes of the legislation need to be adequately grounded and thenceforth covered, the inability of which would lead to grave consequences.

The author believes that the contentions in the paper are reasonable and accurate and the recommendations would solve the clash and conflict in the current juvenile law.

68. Rule 5, THE BEIJING RULES, 1985
69. Commentary to Rule 5, THE BEIJING RULES, 1985.
70. Art. 40-45, CRC, supra note 10.

DHRUVA SAREEN is a 2nd year law student at National Law Univeristy, Jodhpur. He may be reached at dhruvasareen@gmail.com.

Source :- http://www.indialawjournal.org/article-4.php

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Compiled by :    Salim