Juvenile justice in Nepal: Legal challenges and solutions

Justice for children refers to the legal and systemic processes designed to ensure that children are treated fairly and appropriately within the justice system. This encompasses both criminal and civil matters and aims to protect the rights and well-being of children at all stages of their interaction with the law. The goal is to uphold the best interests of children by ensuring access to justice, promoting rehabilitation over punishment, and safeguarding their rights during legal processes.

The core of juvenile justice focuses on four main aspects:

• Identifying causes: Understanding the reasons behind juvenile delinquency.
• Preventive measures: Implementing strategies to prevent children from engaging in delinquent behavior.
• Rehabilitation: Helping juveniles who have committed offenses to reform and reintegrate into society.
• Community safety: Ensuring the community is protected from juvenile delinquency through correctional or restorative justice, rather than punishment.

Legal framework

Before 1992, there was no separate law in Nepal specifically for juvenile delinquents, and they were tried in court as adults. However, after Nepal ratified the Convention on the Rights of the Child (CRC) on January 26, 1990, it became mandatory to reform the existing laws to align with international standards. Consequently, Nepal introduced the Children Act in 1992, and in 2018, the new Act Relating to Children was enacted.

According to the Act Relating to Children 2018, a ‘child’ is defined as any human being below the age of 18 years. The act also defines ‘children in conflict with the law’ as those who have been accused of committing an offense and those who have been convicted by the Juvenile Court for committing an offense.

The Constitution of Nepal ensures the right to juvenile-friendly justice as a fundamental right. Article 39(8) of the constitution states that every child has the right to a justice system designed to be friendly to juveniles. This approach is based on the understanding that children are not mentally capable of committing crimes in the same way adults do.

The prevailing law dealing with delinquent juveniles is the Act Relating to Children 2018. According to this act, a child below 10 years of age is not criminally liable for any act they commit; therefore, no case or punishment is instituted against them. If a child between the ages of 10 and 14 commits an offense that is punishable by a fine, they are released after counseling. If such a child commits an offense punishable by imprisonment, they are either imprisoned for up to six months or sent to a child reform home for a period not exceeding one year.

For children aged 14 to 16 who commit an offense, the punishment is half of what would be imposed on an adult. If a child aged 16 to 18 commits an offense, they are punished with two-thirds of the penalty that would be imposed on an adult.

Challenges in juvenile justice

In Nepal’s justice system, there is a legal requirement to communicate with the accused in a language they understand. This means they should be informed about their criminal charges in simple terms they can comprehend. However, this requirement is often not followed. Children are arrested by police without fully understanding the crime they are accused of committing. They are often left in the dark about the nature of their charges.

Furthermore, children fully do not understand the legal terms and proceedings, making it difficult for them to grasp the details of their charges and defend themselves. This lack of clear communication severely hampers their ability to engage with the legal process. Without proper understanding, they cannot make informed decisions or provide relevant information that might help their case. 

Delayed case resolution 

The Supreme Court of Nepal has time and again directed district courts to adjudicate juvenile delinquency cases within 120 days through continuous hearings as mandated by section 37 of the Act relating to Children 2018.  Notable cases such as Kalinchowk 120 vs Dolakha District Court and Advocate Pushpa Raj Poudel vs Sindhuli District Court emphasize this directive. Despite these clear instructions, the timeframe is often not met, leading to significant delays in the legal process. This delay exacerbates their emotional and mental health issues, impeding their ability to reintegrate into society effectively.

Non-availability of juvenile bench 

In most cases, children are tried in regular benches instead of juvenile benches, as envisioned in Section 30 of the Act Relating to Children. The juvenile bench should be established in every district court and include a district judge, a social worker, and a child psychologist. However, the act allows district judges discretion to forgo forming a juvenile bench if it’s not feasible for any reason. Due to this exception, many children are tried without the presence of child psychologists, which hampers their mental well-being.

This practice contradicts the principles of a juvenile-friendly justice system and fails to provide the specialized support children need. The absence of child psychologists and social workers means that the unique psychological and social needs of juvenile offenders are not adequately addressed. Consequently, children face trials that do not consider their mental and emotional maturity, leading to decisions that may not be in their best interests.

Way forward 

While Nepal’s Act Relating to Children 2018 provides a robust framework for protecting the rights of juveniles in conflict with the law, significant gaps in practice undermine its effectiveness. Addressing these implementation issues is crucial to ensure that the juvenile justice system in Nepal truly serves the best interests of children, providing them with fair, timely, and child-friendly legal proceedings.

To address delays in juvenile cases, we need to enforce the 120-day resolution timeframe strictly. This can be done by monitoring case progress and ensuring deadlines are met. Publishing regular reports on case statuses will increase transparency. Additionally, creating fast-track courts for juvenile cases will speed up their resolution and reduce backlogs. 

Juvenile benches should be mandatory by amending the Act Relating to Children to eliminate exceptions. To support the mental and emotional well-being of juvenile offenders, we need to ensure the availability of child psychologists and social workers during legal proceedings. Establishing partnerships with NGOs can provide additional support and resources. 

We should provide regular training for police, lawyers, and judges on effectively communicating with juveniles. Developing child-friendly informational materials that explain legal processes in simple terms will also help. Employing child advocates and counselors can ensure that children understand their rights and charges.

Finally, establishing a comprehensive national policy on juvenile justice, regularly reviewing and updating it, and fostering collaboration among stakeholders, including the judiciary, law enforcement, and social services, will create a cohesive system that better serves the needs of juveniles. Conducting research and using data to inform policies will ensure that interventions are effective and tailored to the specific needs of children in conflict with the law.