“No civilized society regards children as accountable for their actions to the same extent as adults. The wisdom of protecting young children against the full rigour of the law is beyond argument. The difficulty lies in determining when and under what circumstances should it be removed.”

– Professor Colin Howard

ABSTRACT

This research paper undertakes a comparative analysis of juvenile justice systems in India and Germany – where India follows an adversarial legal system whereas Germany follows an inquisitorial legal system – with a focus on the prevailing laws, differences in procedures and punishments, age limits in both the countries, and their critical evaluation, assessing their contribution to fairness, justice & crime control. An exceptional juvenile justice system is paramount for any country, it will not only serve the interests of young offenders and save them but also the citizens at large focusing on the underlying causes of the delinquent behavior & obviate it, holding the young offenders accountable for their actions as well as provide them with opportunities for rehabilitation, education, and skill development. This paper also aims to find the effectiveness of one justice system over the other as well as finding out which works best in the interests of the State as well as its people.

OBJECTIVES OF RESEARCH

The objective of this research is to examine and analyze the similarities and differences between the adversarial and inquisitorial juvenile justice system of India and Germany respectively. The paper aims to provide a comprehensive understanding of how each country approaches juvenile justice, including the legal framework, policies, procedures, extent of punishment or outcomes for juvenile delinquents. By conducting a comparative analysis, the paper seeks to highlight the strengths and weaknesses of each system. Ultimately, the goal of the research is to contribute to the advancement of juvenile justice system and policies in India and Germany as well as to strive for policy development in this area.

RESEARCH METHODOLOGY

This paper is of descriptive nature and the research is based on secondary sources data for deep analysis of the juvenile justice system in India and Germany. Secondary sources like journals and websites are used for collecting information in this research.

INTRODUCTION

The juvenile justice system is a specialized legal framework designed to address the unique needs and circumstances of young offenders who have committed criminal acts. Unlike the adult criminal justice system, which focuses on punishment and deterrence, the juvenile justice system aims to rehabilitate and reintegrate young offenders back into society.

The primary target of the juvenile justice system is to promote the welfare and well-being of juvenile offenders, while also holding them liable for their actions. This is achieved through a blend of counseling, education, community service, and other rehabilitative programs tailored to the individual needs of each young offender.

In most jurisdictions, the juvenile justice system operates separately from the adult criminal justice system, with its own set of laws, procedures, and court processes. Juvenile offenders are typically tried in juvenile court, where judges have more flexibility in sentencing and can focus on rehabilitation rather than punishment.

Overall, the juvenile justice system plays a pivotal role in addressing the complex issues surrounding youth crime and delinquency, and in helping young offenders turn their lives around and become productive members of society.

NEED FOR JUVENILE JUSTICE SYSTEM

1. To protect public or citizens from the crimes committed by juveniles.
2. To protect the Right to Equality of the citizens against  juvenile crimes.
3. To hold the delinquent juveniles accountable for their actions.
4. To assess juvenile delinquency and prevent any further delinquent behavior and for rehabilitation for the betterment of the youth and the society.

ANALYSIS OF ADVERSARIAL AND INQUISITORIAL SYSTEM

The inquisitorial and adversarial are two form of legal systems followed in civil and common law countries respectively. The form of legal system determines the way disputes are dealt in the court of law.

Adversarial System:

The adversarial or accusatorial system is based on accusations and argumentations wherein the advocate of both the parties present their arguments. It is a battle of winning or losing between the parties. It is more competitive in nature.

Inquisitorial System:

The inquisitorial system entail extensive investigation and detailed inspection of evidences. In inquisitorial system the judge plays an engaging role in investigation and examination of evidences.

Basic differences in adversarial and inquisitorial systems:

1. Burden of proof – In adversarial system the accused is innocent until proven guilty. The burden of proof lies with the prosecution. Whereas in inquisitorial system the accused is presumed to be innocent, it is the duty of the judge to determine the truth.
2. Conduct of trial – In adversarial system, the method of argumentation and cross examination are used. However, in inquisitorial system, proper examination of evidences and investigation is done.
3. Investigation – In adversarial system, the investigation and gathering of evidences rests with the parties. While in contrast, under inquisitorial system the judge takes up the responsibility and supervise matters of investigation and evidences.
4. Role of judge – In adversarial system the judge plays a passive role during the trial. When in fact, in inquisitorial system the judge plays a key role in investigation process,  gathering of evidences and interrogation.

PREVAILING LAWS REGARDING JUVENILE JUSTICE IN INDIA AND GERMANY

As per section 2 (h) of the Juvenile Justice Act, 1986, Juvenile is a boy or a girl beneath the age of 18 years. The term delinquency has been defined section 2 (e) of the Juvenile Justice Act, 1986. Delinquent juvenile denotes a juvenile who has committed an offence.

Juvenile justice is a system of law that concerns with protection and promotion of human rights of juveniles. It seeks to serve justice in cases of juvenile delinquency.

Following are the prevailing laws related to juvenile justice in India and Germany:-

India:

1. The Juvenile Justice (Care and Protection of Children) Act, 2015

This Act came into effect on January 15, 2016. It repealed and replaced the Juvenile Justice and (Care and Protection of Children) Act, 2000.

The 2015 Act provides a framework for the protection, treatment and rehabilitation of children in dissent with law and/or are in need of care and protection.

2. Juvenile Justice (Care and Protection of Children) Rules, 2007

This contains all the rules and guidelines for the implementation of the Juvenile Justice Act, 2015.

3. National Policy for Children, 2013

This policy outlines the commitment of government in ensuring the rights and betterment of children in India including the delinquent juveniles.

Germany:

1. Youth Courts Act

This Act governs the legal proceedings for juveniles in Germany, including the establishment of special youth courts and for protection of juvenile offenders’ rights.

2. Youth Welfare Act

This Act has provisions regarding care, protection and support required for children and juveniles in Germany.

3. Criminal Code

This code has provisions related to juvenile delinquency such as the age of juvenile accountability and the extent of juvenile punishments.

PROCEDURE OF THE JUVENILE JUSTICE SYSTEM

Following are the procedure of juvenile justice in India and Germany:-

India:

1. Registration of case

On the commission of a crime by a juvenile, a case is registered against them by the police.

2. Investigation

The police then investigate the case and gather all the evidences against the delinquent.

3. Juvenile Welfare Board

The case gets transferred to Juvenile Welfare Board, which is a body responsible for determining the age of offender and decide whether they are a juvenile or an adult.

4. Juvenile Justice Board

In case, offender is found underneath 18 years of age, then the case is transferred to Juvenile Justice Board, which is responsible for conducting the trial and deciding an appropriate punishment.

5. Rehabilitation

If the juvenile is found guilty, they are sent to juvenile home for rehabilitation and reformation for protecting the future of the juvenile delinquent.

Germany:

1. Registration of case

When a juvenile commits a crime, a case is registered against them by the police.

2. Investigation

The investigation and gathering of evidences against the juvenile is initiated by the police.

3. Youth Court

The case gets transferred to the Youth Court, which is accountable for conducting trial and deciding adequate punishment.

4. Sentencing

On being found guilty, the juvenile delinquent may get punishments including community services, probation or being placed in a juvenile detention centre.

5. Rehabilitation

The main focus of juvenile justice system of Germany is on rehabilitation of the juvenile delinquents. They are provided with education, counseling, treatment, vocational training etc to reintegrate them back to the society.

EXTENT OF PUNISHMENT TO JVENILES

India:

In India, the punishment for juvenile is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015. This Act defines a juvenile as a person who is below the age of 18 years.

The act emphasizes on the rehabilitation and reintegration of juveniles in dissent with the law, rather than punishment. It promotes a child-friendly approach and aims to ensure the beneficent of the child is protected at all times.

Under the act, juveniles can be subjected to various forms of punishment, including counseling, community service, probation, and placement in a special home or observation home. The act also prohibits the sentencing of juveniles to the death penalty or life imprisonment without the prospect of release.

In cases where a juvenile is found guilty of a serious offence, they may be sent to a special home for a period of 3 years, after which they are to be released and reintegrated into society. The intent is on providing them with education, vocational training, and other support services to help them lead a productive and law-abiding life.

Overall, the approach to punishment for juveniles in India is more focused on rehabilitation and reintegration, rather than punitive measures. The aim is to ensure that juveniles are given a second chance to reform and become productive members of society.

Germany:

The practices of sentencing the young offenders remained moderate despite of there being problems with growing rate of violent offending during the 1990s. In Germany, youth imprisonment is used only when it is a last resort (in not more than 2% of all cases of young offenders). In whole of Europe, Germany has the least incarceration rate. Various kinds of sanctions apply to young offenders and maximum prison sentences are much lower when compared to other States.

In the sphere of the German Criminal Law, persons under the age of 14 are considered ‘children’, persons between 14 & 18 are termed as juveniles as stated in sub-section 1 of section 176 of the Criminal Code of Germany and sub-section 2 of section 1 of the Youth Courts Act (JGG). It is at the age of 14 when ‘limited criminal responsibility’ begins.

The minimum length of imprisonment of 14–17-year-old juveniles is 6 months & the maximum length is 10 years. In cases of heinous offences, maximum length of youth imprisonment limits at 10 years.

As aforementioned, the maximum penalty for 18 to 20-year-old young adults in heinous murder cases was 10 years; which was gradually increased to 15 years leaning towards a more punitive approach.

For 18-20-year-old young adults, the sentence according to the JJA, the maximum penalty is 10 years, too (in case of particularly serious murder, 15 years).

The preconditions for the imprisonment are “dangerous tendencies” of the offender or the “gravity of guilt” which concerns heinous crimes such as murder, aggravated robbery.

In all the cases of youth imprisonment, the probation service gets involved. The period of probationary services lasts one to two years and probation is for a total of 2-3 years.

EVOLUTION OF YOUTH JUSTICE FRAMEWORK IN GERMANY FROM EARLY 20^TH CENTURY TO PRESENT

A special youth court in Germany was established as early as in 1908 and then the Juvenile Welfare Act of 1922 was passed. This created profound changes in the method of dealing with the young offender as well as for the very first time in Germany, the law reforms have developed “educational” approach focusing on welfare & justice instead of punishment. This was very unlike to the German mentality of punishing the offenders.

After this, the most crucial reform issue was in 1953 which was to include the young adults of ages 18-21 in jurisdiction of juvenile courts. Other major changes were since 1970s which focused on “reform through practice” due to which the number of juvenile prison sentences declined considerably. It followed major reforms in the justice system which entailed sanctions and new educational measures which were previously only practiced as a trial run.

In following years, amendments which could be considered as punitive could be seen.

Circumstance of the Youth and Young Adults in Germany

The juvenile justice system of Germany provides for specialized Juvenile Courts & for juvenile prosecutors. At the level of police–in big cities such as Berlin, specialized police for the youths exist.

The imprisonment of youth is executed in separate juvenile prisons. The German juvenile courts cover the range of 14 to 21-year-olds, which when analyzed from an international comparative perspective includes not just minors but also 18-21 years of age which is not seen generally in other countries and certainly not seen in India where the age-limit of juveniles only extends to the age of 17 years.

In Germany, only 2-3 % of all youth and young adults are sentenced to an unconditional youth prison sentence. The ones held in youth prisons are aged 18-25 years.

Problems of registered violent crimes & of specific group of offenders such as drug offenders increased in the 1990s yet now a decline in youth violence may be observed in Germany.

CRIME RATE

India:

The juvenile crime rate in India is relatively high compared to Germany. According to the National Crime Bureau (NCRB) in India, juveniles were involved in 1.2% of all reported crimes in 2019. However, it is important to note that the actual number of juvenile offenders may be higher as many cases go unreported or not are not properly documented.

Germany:

In contrast, Germany has a lower juvenile crime rate. According to the Federal Criminal Police Office in Germany, juveniles were responsible for 6.4% of all reported crimes in 2019. The German government has implemented various programs and initiatives to prevent juvenile delinquency and provide support for at-risk youth.

CONCLUSION

In conclusion, it is evident that there are significant differences in the juvenile justice systems of India and Germany. While both the countries aims to rehabilitate juvenile offenders and provide them with a second chance, the approaches taken by each country vary greatly.

Germany’s juvenile justice system is more focused on the rehabilitation and reintegration of juvenile offenders into society, with an emphasis on education, vocational training, and therapy. In contrast, India’s juvenile justice system is more punitive in nature, with a focus on deterrence and punishment.

Furthermore, Germany’s system places a strong emphasis on the rights and welfare of the child, with a focus on individualized treatment and support. In contrast, India’s system often lacks adequate resources and infrastructure, leading to overcrowded and under-resourced juvenile detention centers.

Overall, it is clear that there is room for improvement in both countries’ juvenile justice systems. India could benefit from adopting more rehabilitative and child-focused approaches, while Germany could work on addressing issues of overrepresentation of minority youth in the juvenile justice system. By learning from each other’s strengths and weaknesses, both countries can work towards creating more effective and equitable juvenile justice systems.

BY,

GAURI DANGI AND KRATIKA KHATRI.

Guided and supervised by Adv. Aameer Vishwas Kale