Hi,
I was reading the interview thread of last year. I saw this qn asked to one of the candidates. it was in regard to India thinking of reducing the age of juvenile from 18 to 16. The board said can we do it given we are a ratifier of UNCPC and it says a child is one who is below 18.
India as a signatory and ratifier of UN Convention of Protection of Child recognizes the Article 1 of UNCPC which states any child is of below age of 18.
US has been a signatory and not a ratifier and hence it follows the custom of crime should warrant suitable punishment and few juveniles depending on the degree and nature of offence as sent to adult courts.
My doubt is can India violate an International agreement and our own local law supersede it. Like we define a Juvenile or a Child as one below 16 and not 18.
Also, if someone can really enlighten on the fact of how international treaties and national laws can be colluded or how we arrive to a consensus in case of differences according to constitution provisions.
Comments
One thing is clear India cant change the determinant age of a juvenile .As recently the Women and Child Development's proposal of lowering age of juveniles from 18 to 16 years was crticised by NCPCR by saying that as India is a signatory to UNCPC hence the lowering of age is not possible in any case.
So the proposal was dropped from the draft .Instead it recommended that Juvenile Justice Board would ascertain the gravity or nature of such heinous crimes and ruled out death penalty or life imprisonment too.
You can read the article published on 2 Dec 2013 in Hindu regarding the lowering of age issue :
m.thehindu.com/news/national/plan-to-give-juvenile-justice-boards-more-powers-to-try-children-draws-flak/article5414384.ece/
India cant violate the agreement it signed as far as i know .If any country violates the treaty it is liable under international law .
No legislation in India governing the signing of International treaties exists, parliament can legislate though!
Article 73: Executive power of the union shall extend to all matters where parliament has the power to legislate
Result: Union executive has nearly unlimited power to negotiate & conclude treaties by itself
Ratification: In most countries ratification is by the legislative bodies, but in India due lack of a legislation, it is done by the president
Result: Parliament can just see the show except when the implementation of a treaty will need either the creation or amendment of the constitution or an act of parliament
Can India violate a treaty?
- Yes, parliament has the power to legislate over its subjects & this power is not subject to whether it suits international treaties or not. However, after ratifying a treaty, going back on its commitment is not such a great thing to do. So even if there is a diplomatic blunder in negotiations (as during Uruguay Round), the legislation is almost always tabled so as to save the Indian grace.
What happens if India does violate?
- Lots of embarrassment, some rejection of imports by countries claiming unethical labor practices in India & severe questions on Indian ability to live up to uphold its democratic values
As far as the juvenile issue is concerned, a child is not the same as juvenile. UNCPC does not mention 'juvenile' at all. So India for the purpose of only JJ Act, can definitely lower the age to 16 without violating UNCPC.
Juvenile or child has been defined under Indian laws as follows ,
Section 2 (k) of the Juvenile Justice (Care and
Protection of Children) Act,2000 defines
“juvenile” or “Child” as a person who has not
completed eighteenth year of age.
So a juvenile or child would be any person who is under 18yrs of age.
Although UNCRC doesnt mention the word juvenile still indian law states that a juvenile or child is any person who is under 18yrs of age.
Hence i think child defined in UNCRC is the same as a juvenile ,who according to indian law is also under 18yrs of age and India for the purpose of lowering the age of a child or juvenile below 18yrs of age ,to be tried under adult laws cant be done without violating the convention to which india is a signatory to.
A juvenile is a person under 18yrs of age and likewise a child as defined in UN convention on child rights.So i think the analogy holds here unless there is some other species that exists that can be under 18yrs of age but still not be a child (as per UN Convention).
;-)
Suppose there are two countries, One signs and then ratifies an international treaty but later violates it. Then there is another country which does not sign the treaty at all.
What do you people think, which country should be criticized more and why?
Which country would be criticized more and why?
UNCPC doesn't specify what a juvenile is.
Indian laws implicitly say Child is the same as juvenile.
All India has to do is to make amendments in its own laws so as to establish a difference in the interpretation of child & juvenile, and then voila! you can reduce the age for JJ Act (age for juveniles: 16), while for other purposes a child could be a child till 18. This way you could do it without violating the UNCPC. You see what I mean.
Bottomline: There is no law specifying what is the relation between a juvenile & a child! What you & I think is immaterial here. There is no accepted universal convention on this.
Hope it is clear.
The one which signed & withdrew/ or violated should get criticized (for less duration with higher intensity) for the simple reason that - If you change your stance all the time why should your being a signatory be valued at all? (Only post a proved violation)
The one which didn't sign should get criticized (for a longer duration with lower intensity) because of the argument - Your stance is incorrect however principled it may be (Can be criticized throughout)
Obviously, this all depends on the reason for your taking any action.
N. Korea withdrew from NPT in 2003 (Reason - we would like to go nuclear :P)
Reason: quite stupid
Result - heavily criticized
US didn't ratify Kyoto Protocol (Reason - Kyoto protocol doesn't have binding conditions for the major developing nations who pollute a lot too)
Reason: more reasonable
Result - not so heavily criticized
Hmm.
You are right when you said that interpretation can be changed by indian lawmakers through an amendment but still india would be criticised for making an amendment to change the interpretation of a word to suit its needs for lowering the age and evading the treaty .
Can the convention be altered too to include the word juvenile and if yes then do the ratification process is repeated again by every country ?!?
Let me clarify: According to UNCPC - The Convention defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under a state's own domestic legislation -> Domestic legislation is given primacy. So changing domestic laws are completely within the limits of the convention itself!
Moreover, the purpose of UNCPC is not to prevent prosecution of children convicted in cases of extreme offence. It is to give them certain human rights against their possible & imminent exploitation (you can check the protocols to this convention on their site). Those can never, in any interpretation of whosoever, justify children being excused after intentionally (almost) killing someone. Lowering of age is for a perfectly moral cause & this is no evasion of the treaty at all. Please think yourself.
The conventions are never altered. However, there could be further protocols adopted for a commonly agreed purpose. Such protocols have to be ratified again, as usual.
I toatlly agree that cause of lowering of age is nothing wrong here if it is done to prosecute those so called juveniles who go unpunished for their henious and dastardly acts like the delhi case recently.
Any human being should be punished suitably for the gravity of his crimes .He cant escape under the garb of legalities of age .