Domesticating Global Child Rights Norms: A Comparative Study of Juvenile Justice Reform in India and South Africa

Daya Sharma*

Research Scholar, Apex School of Law, Apex University, Jaipur, Rajasthan, India

dayasharma089@gmail.com

Abstract: International child rights instruments, principally the Convention on the Rights of the Child (CRC) and the standards it has generated through the Beijing Rules, the Havana Rules, and General Comment No. 24, articulate a coherent normative vision of juvenile justice built on diversion, restorative justice, and detention as a measure of last resort. States parties, however, do not receive these norms passively; they localize them through domestic legislative choices, institutional capacity, and political pressure. This article examines how India and South Africa, two CRC signatories with comparable colonial-era legal inheritances and comparable resource constraints, have translated the same international framework into markedly different domestic outcomes. India's Juvenile Justice (Care and Protection of Children) Act, 2015, enacted in the aftermath of the 2012 Delhi gang-rape case, introduced a mechanism under Section 15 permitting children aged sixteen to eighteen accused of heinous offences to be tried as adults, a departure from the CRC's insistence on eighteen as the uniform ceiling of child justice. South Africa's Child Justice Act 75 of 2008, by contrast, entrenched diversion and restorative justice as the organizing principles of its juvenile justice system without a comparable transfer mechanism. Drawing on Sally Engle Merry's concept of vernacularisation, this article argues that the divergence between the two jurisdictions is not reducible to differences in treaty ratification or constitutional text, but to the differential weight of retributive public sentiment, judicial supervision, and institutional capacity at the point of implementation. The article concludes with recommendations for narrowing India's implementation gap without necessarily abandoning the comparative lessons South Africa offers.

Keywords: Juvenile Justice, Convention on the Rights of the Child, India, South Africa, Vernacularisation, Juvenile Justice Act 2015, Child Justice Act 2008, Implementation Gap

1. INTRODUCTION

The Convention on the Rights of the Child (CRC), adopted by the United Nations General Assembly in 1989 and ratified by India in 1992, obligates states parties to treat every person below the age of eighteen accused of a criminal offence in a manner consistent with the promotion of the child’s dignity and reintegration into society (United Nations, 1989). Articles 37 and 40 of the CRC read together with the Beijing Rules (1985), the Riyadh Guidelines (1990), the Havana Rules (1990) and the Committee on the Rights of the Child’s General Comment No. 24 (2019) together constitute what might be called the international child justice regime: a body of soft and hard law that prescribes diversion from formal proceedings, restorative rather than retributive sentencing and detention only as a last resort and for the shortest appropriate period.

Ratification, however, is only the first step in a much longer process. International norms must be translated into domestic statutes, institutional structures, professional practices, and, ultimately, into decisions made by police officers, magistrates, and social workers who may never have read the CRC. This article uses the comparative method to examine how two large, federal, common-law-influenced developing democracies India and South Africa have carried out this translation. Both countries ratified the CRC in the early 1990s; both inherited colonial-era juvenile legislation that treated children largely as objects of correction rather than rights-holders; and both have, within the last two decades, replaced that legislation with comprehensive statutes explicitly framed as CRC-compliant. Yet the resulting statutes differ sharply on the single most consequential question in juvenile justice: whether, and under what conditions, an adolescent may be removed from the child justice system altogether and tried as an adult.

India's Juvenile Justice (Care and Protection of Children) Act, 2015 introduced Section 15, which permits the transfer of children aged sixteen to eighteen accused of heinous offences to adult criminal courts following a preliminary assessment by a Juvenile Justice Board (legalserviceindia.com, n.d.). South Africa's Child Justice Act 75 of 2008 contains no equivalent transfer provision; it instead organizes the entire system around diversion and restorative justice, reserving formal trial and detention for children whose cases cannot otherwise be resolved (Republic of South Africa, 2008; Wakefield, 2011). This article asks why two jurisdictions operating under the same treaty obligation arrived at such different statutory answers, and what the comparison reveals about the gap between the normative promise of international child rights law and its domestic implementation, particularly in the Indian context that forms the empirical core of the broader doctoral project from which this article is drawn.

2. THEORETICAL FRAMEWORK: LOCALIZATION AND VERNACULARISATION OF INTERNATIONAL NORMS

The theoretical point of departure for this comparison is Sally Engle Merry's account of 'vernacularisation' the process by which transnational human rights norms are translated, and hence transformed, as they move from international institutions into local legal and social settings (Merry, 2006a). Merry's key insight, developed initially in the context of violence against women, is that intermediaries’ legislators, judges, activists and bureaucrats do not simply pass on international norms downwards; they alter those norms to suit local political economies of blame, capacity and legitimacy (Merry, 2006b). When applied to juvenile justice, this framework suggests that the CRC's universal standard of eighteen as the upper limit of childhood was never likely to be adopted uniformly across jurisdictions with differing degrees of public trust in criminal justice institutions, different histories of transitional constitutionalism and different media environments.

This lens is useful precisely because it avoids two unhelpful extremes common in comparative child rights scholarship. The first extreme treats non-compliance as simple state failure, measuring domestic law against the CRC text and cataloguing deviations. The second extreme treats domestic variation as an unproblematic exercise of sovereign discretion, immune from evaluation against the treaty a state has voluntarily ratified. Vernacularization occupies the middle ground: it accepts that the CRC sets a genuine normative baseline against which domestic law can be assessed, while also insisting that the specific form domestic law takes is shaped by local political and institutional conditions that a purely doctrinal reading of the treaty cannot explain. South Africa's post-apartheid constitutional settlement, for instance, embedded children's rights directly in section 28 of the Constitution and empowered a well-resourced law reform commission to draft the Child Justice Act over more than a decade of deliberation (Wakefield, 2011). India's Juvenile Justice Act, 2015, by contrast, was drafted and passed within months, under direct legislative pressure generated by nationwide public anger over the 2012 Delhi gang-rape case, in which one of the accused was seventeen years old. The resulting statutes are both framed as CRC implementation, yet each carries the visible imprint of the political conditions under which it was made.

3. THE CHILD JUSTICE FRAMEWORK AT THE INTERNATIONAL LEVEL

Article 40(3) of the CRC requires states parties to establish a minimum age below which children are presumed incapable of infringing criminal law, and to promote, wherever appropriate, measures for dealing with such children without resorting to judicial proceedings (United Nations, 1989). The Committee on the Rights of the Child's General Comment No. 24 (2019), which replaced the earlier General Comment No. 10 (2007), elaborates this obligation considerably. It identifies fourteen as the most common minimum age of criminal responsibility internationally and urges states to raise their minimum age accordingly, while also directing that detention be used only as a measure of last resort, for the shortest appropriate period, and never for children below the minimum age (Committee on the Rights of the Child, 2019). Crucially for the present comparison, General Comment No. 24 states that children who are at or above the minimum age of criminal responsibility but younger than eighteen can be formally charged and subjected to child justice procedures, but the Committee's broader architecture presumes that the child justice system, not the adult system, is the appropriate forum for this entire age band (Committee on the Rights of the Child, 2019).

The Beijing Rules (1985) and the Havana Rules (1990) supplement this framework with more specific procedural guarantees: proportionality in sentencing, specialized personnel, and detention conditions appropriate to a child's stage of development. None of these instruments explicitly forbids a state from creating a mechanism to transfer older adolescents into adult proceedings for the most serious offences; several jurisdictions with strong CRC compliance records, including parts of the United Kingdom, retain some form of transfer or 'waiver' mechanism. What the Committee's jurisprudence consistently emphasizes, however, is that any such mechanism must be the narrow exception rather than a parallel default track, and must be accompanied by individualized, expert assessment of the child's development rather than by offence-based categorization alone (Committee on the Rights of the Child, 2019). It is against this baseline — a strong presumption in favour of the child justice system up to eighteen, narrow and individualized exceptions, and diversion as the first resort that India and South Africa's statutes can usefully be measured.

4. INDIA'S JUVENILE JUSTICE SYSTEM: FORMAL COMPLIANCE AND PRACTICAL DEFICIENCIES

4.1 The statutory architecture and the constitutional anchoring

India's constitutional obligation toward children is anchored in Article 15(3), which permits the state to make special provision for children, and in the Directive Principles under Articles 39(e), 39(f), 45, and 47, which together direct the state to protect childhood from exploitation and to secure children's healthy development (Juvenile Justice (Care and Protection of Children) Act, 2015, Preamble). India ratified the CRC in December 1992, and the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted expressly to bring domestic law into conformity with the Convention (Legal Services India, n.d.). The 2000 Act was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act No. 2 of 2016), which restructured the system around Juvenile Justice Boards (JJBs) for children in conflict with law and Child Welfare Committees (CWCs) for children in need of care and protection, and gave the Central Adoption Resource Authority statutory status (Juvenile Justice (Care and Protection of Children) Act, 2015). On paper, the 2015 Act tracks the CRC closely: it retains eighteen as the general age ceiling of childhood, mandates a child-friendly and rehabilitative approach, and requires Child Welfare Committees to meet at least twenty times a month to process cases expeditiously (Indian Journal of Integrated Research in Law, 2022).

4.2 The Section 15 Controversy: Transfer of 16–18-Year-Olds to the Adult Trial

The most consequential departure from the CRC baseline lies in Section 15 of the 2015 Act. Where a child between sixteen and eighteen years of age is accused of a 'heinous offence’ defined as one carrying a minimum sentence of seven years' imprisonment the Juvenile Justice Board must conduct a preliminary assessment of the child's mental and physical capacity, ability to understand the consequences of the offence, and the circumstances in which the offence was allegedly committed. If the Board concludes that the child possesses the capacity to be tried as an adult, the case is transferred to a Children's Court, which functions as a Court of Session, and the child forfeits several of the protective provisions that would otherwise apply under Section 18 (Legal Vidhiya, 2023). This provision was inserted in direct response to the 2012 Delhi gang-rape case, in which the juvenile accused faced the maximum penalty available under the pre-2015 law of three years in a special home, a result that generated sustained parliamentary and public pressure for reform.

The Supreme Court of India has since attempted to cabin this provision through interpretation. In Shilpa Mittal v. State (NCT of Delhi), the Court clarified the statutory definition of 'heinous offence' to prevent arbitrary expansion of the category, holding that an offence must carry a minimum sentence of seven years to qualify (Legal Service India, n.d.). In 2022, the Court went further, directing the central government and the National Commission for Protection of Child Rights to consider issuing guidelines to assist Boards in conducting the preliminary assessment, implicitly acknowledging that the assessment as currently practiced lacks a reliable methodology (SCC Online, 2022). Most recently, in a 2026 decision, the Court held that in the absence of a valid preliminary assessment under Sections 15 and 18, a child cannot be treated as an adult merely because a High Court considers the alleged offence to be gruesome, and that bail cannot be denied on the basis of the nature of the offence alone once a person has been declared a juvenile (Verdictum, 2026). This line of jurisprudence suggests a judiciary straining to keep an inherently exceptional mechanism from becoming a routine offence-based classification precisely the outcome the CRC Committee's guidance warns against (Committee on the Rights of the Child, 2019).

There has also been criticism of the empirical premise of Section 15. As one analysis has noted, despite nearly a decade of the enhanced transfer regime, no empirical study has established that prosecuting sixteen-to-eighteen-year-olds as adults for heinous offences has reduced the incidence of juvenile delinquency in that age group. The Parliamentary Standing Committee that reviewed the 2015 Bill itself warned that the country did not have a sufficient number of psychologists and psycho-social workers to carry out the individualized assessments the provision requires a prediction that has, as discussed below, proved accurate.

4.3 Implementation Deficits: Capacity on the Ground

The gap between India's statutory text and its practical administration is documented extensively in the India Justice Report (IJR), an independent assessment of the country's justice delivery systems. As of October 2023, more than fifty thousand children in conflict with law remained in pending cases before the country's 362 Juvenile Justice Boards, with fifty-five percent of all cases pending at that time. Roughly thirty percent of JJBs lacked an attached Legal Services Clinic, leaving children without institutionalized access to free legal aid at the point they most need it, and a comparable share of social worker positions in Special Juvenile Police Units remained vacant. District Child Protection Units, which are meant to coordinate rescue, case management, and rehabilitation, reported vacancy levels above thirty percent in several states as of 2023, according to a review by the Ministry of Women and Child Development (Dhyeya IAS, 2026). The National Commission for Protection of Child Rights has itself flagged understaffed observation homes and urged states to use a digital portal for real-time tracking of children in conflict with law, an acknowledgment that the existing paper-based and locally maintained records are inadequate for monitoring compliance.

These deficits are directly relevant to Section 15, since the preliminary assessment mechanism presupposes the ready availability of psychologists and social workers competent to evaluate a child’s cognitive and emotional maturity. Where such professionals are unavailable or overstretched, the assessment risks collapsing into a perfunctory formality driven by the severity of the alleged offence rather than by genuine evidence of the child’s capacity — the very failure mode the Supreme Court’s recent jurisprudence has tried to forestall. The pattern that emerges from the Indian case, in other words, is not primarily one of statutory non-compliance with the CRC text, but of a wide and persistent gap between a formally CRC-consistent framework and the institutional capacity required to operate it as the Convention intends.

5. THE CHILD JUSTICE ACT 75 OF 2008 OF SOUTH AFRICA: A COMPARATIVE BENCHMARK

5.1 Diversion and Restorative Justice Principles

South Africa's Child Justice Act 75 of 2008, which came into operation in April 2010, was the product of a South African Law Commission investigation launched specifically to assess the compatibility of existing juvenile legislation with the CRC (Wakefield, 2011). The Act's preamble commits the state to entrenching restorative justice in the criminal justice system for children in conflict with the law, and its stated objectives include supporting reconciliation through restorative justice responses, involving parents, families, and communities in reintegration procedures, and preventing children's exposure to the adverse effects of the formal criminal justice system by using diversion wherever appropriate (Child Justice Act 75 of 2008, s. 2). The Act organizes diversion into two tiers according to the seriousness of the offence, with the first tier available for less serious offences and the second for more serious ones, structurally embedding Article 40(3)(b) of the CRC's preference for extrajudicial handling of children's cases into the ordinary operation of the system rather than treating diversion as a marginal alternative.

5.2 Criminal Capacity and the Lack of an Offence-Based Transfer Mechanism

Where India's Section 15 sorts children by the nature of the alleged offence, South Africa's Act sorts them by criminal capacity, requiring the prosecution to prove that a child aged ten to fourteen understood the wrongfulness of an act and could act in accordance with that understanding before criminal liability can attach at all (Wakefield, 2011). Above fourteen, capacity is presumed but assessment of pretrial release, sentencing, and diversion remains individualized rather than offence-triggered. Wakefield's (2011) analysis, examining four core aspects of the Act — criminal capacity, pretrial release and detention, diversion, and sentencing — concludes that, apart from a few technical shortcomings, South Africa took significant steps to bring its domestic law into compliance with its CRC and other international obligations when it enacted the Child Justice Act. Unlike the Indian statute, the South African Act contains no mechanism by which a child under eighteen can be tried as an adult in an adult court on the basis of the seriousness of the offence charged; children instead proceed through dedicated child justice courts irrespective of the gravity of the allegation, with severity affecting sentencing options rather than forum or procedural status.

5.3 Realities of Implementation in South Africa

South Africa's comparatively strong statutory alignment with the CRC does not mean its implementation is free of gaps; resource constraints, capacity shortages in probation services, and uneven access to diversion programmes in rural areas have all been documented in the South African literature on the Act's operation (Republic of South Africa, Department of Justice and Constitutional Development, n.d.). The point of the comparison is not that South Africa has achieved flawless implementation while India has not, but that the two countries' starting points differ: South Africa's implementation gap operates against a statutory baseline that already excludes the possibility of adult trial for children, whereas India's implementation gap compounds a statutory baseline that itself departs from the CRC's presumption in favour of the child justice system up to eighteen. In South Africa, weak implementation dilutes an otherwise CRC-consistent framework; in India, weak implementation operates on top of a framework that has already carved out a significant, offence-triggered exception to that framework.

6. COMPARATIVE ANALYSIS: SIMILARITIES AND DIFFERENCES

Three points of comparison are particularly instructive. First, on the question of institutional design, both countries created specialized statutory bodies India's Juvenile Justice Boards and Child Welfare Committees, South Africa's child justice courts and probation services but South Africa's Act was the product of over a decade of law reform commission deliberation prior to enactment, whereas India's 2015 Act was passed within months of the triggering public controversy. The pace and political context of drafting appear to correlate with the degree to which the resulting statute preserves the CRC's presumption in favour of a unified child justice system up to eighteen.

Second, on the treatment of serious offences, India responds to public demand for harsher treatment of adolescents charged with heinous crimes by establishing an offence-triggered exit from the child justice system altogether, while South Africa responds to the same demand within the child justice system itself, through differentiated diversion tiers and sentencing options rather than through forum transfer. This suggests that the vernacularization of the CRC's 'best interests' and reintegration principles can take at least two distinct institutional forms even where both are defended domestically as CRC-compliant: one that retains the unified child justice forum while varying the intensity of intervention within it, and one that retains the language of reformation while creating a parallel adult track for the offences that generate the greatest public alarm.

Third, with respect to implementation, both countries have capacity gaps against their own statutory design, but the implications of those gaps are of a different nature. Understaffing in South African probation and diversion services delays or dilutes access to restorative interventions that are still, in principle, universally available to children in conflict with the law. Understaffing in India's Juvenile Justice Boards in the specific context of Section 15 carries the more serious risk that the individualized capacity assessment the CRC Committee requires as a safeguard against arbitrary transfer becomes, in practice, indistinguishable from an automatic offence-based classification, precisely the outcome the Supreme Court's own recent jurisprudence has sought to prevent.

7. DISCUSSION: VERNACULARIZATION AS AN EXPLANATION FOR THE DIVERGENCE

Read through Merry's framework, the comparison suggests that the CRC's child justice norms are vernacularized differently depending on the political salience of a single triggering event, the temporal space available for institutional deliberation, and the pre-existing constitutional culture into which the norms are received. South Africa's 1996 Constitution, drafted in the aftermath of apartheid and explicitly designed to embed international human rights standards, gave children's rights a constitutional home under section 28 well before the Child Justice Act was drafted, and the Act itself emerged from a law reform process insulated, to a significant degree, from the pressure of a single galvanizing crime. India's 2015 Act, by contrast, was substantially shaped by the aftermath of one case that dominated national media and political discourse for months, creating strong incentives for legislators to be seen responding to public anger rather than to the technical requirements of the CRC Committee's guidance (idronline.org, n.d.). This is not to suggest that Indian lawmakers acted in bad faith or without regard to international obligations the Act's preamble explicitly invokes India's CRC obligations, and its overall architecture retains the Board and Committee system built around rehabilitation but rather that the single most consequential provision of the Act represents a point where domestic political urgency visibly reshaped, rather than simply implemented, the international norm.

The India Justice Report data’s documentation of the implementation gap confirms this reading. A vernacularized norm already diverging from the international baseline in its text is put under even greater strain when the institutions meant to operate its safeguards competent forensic psychologists, adequately staffed Boards, functioning Legal Services Clinics are themselves in short supply (Midday, 2025; Dhyeya IAS, 2026). The result is a juvenile justice system in which the gap between international norm and domestic practice operates at two compounding levels: a first-order gap at the level of statutory design and a second-order gap at the level of implementation.

8. RECOMMENDATIONS

Several modest, evidence-based reforms follow from this comparison. First, the guidelines for preliminary assessment under Section 15 that the Supreme Court has directed the central government and the National Commission for Protection of Child Rights to consider should be finalized and made binding, with a minimum requirement of qualified forensic psychological input in every assessment, rather than leaving methodology to the discretion of individual Boards.Second, the chronic vacancies documented in Juvenile Justice Boards, Child Welfare Committees, District Child Protection Units, and Special Juvenile Police Units should be treated as a discrete governance priority, with time-bound targets for filling sanctioned posts, given that the credibility of the entire preliminary assessment regime depends on the availability of trained personnel. Third, India could examine South Africa's tiered diversion model as a template for handling adolescents accused of serious but not the most extreme offences without resorting to forum transfer, potentially narrowing the category of cases in which Section 15 is invoked at all. Fourth, independent, periodic, and publicly reported audits of Juvenile Justice Board functioning of the kind the India Justice Report already conducts on a civil society basis should be institutionalized as a statutory monitoring requirement, closing the data gap that currently makes it difficult to assess whether the preliminary assessment mechanism is operating as the Supreme Court's jurisprudence intends.

9. CONCLUSION

· India and South Africa offer an instructive natural experiment in the localization of a shared international child rights framework. Both countries ratified the CRC in the early 1990s, both replaced colonial-era juvenile legislation with comprehensive CRC-referencing statutes, and both frame their reforms as compliance with international obligations. Yet where South Africa's Child Justice Act, 2008 entrenched diversion and restorative justice as the default response to child offending without an offence-triggered exit into the adult system, India's Juvenile Justice Act, 2015 created precisely such an exit for sixteen-to-eighteen-year-olds accused of heinous offences. This divergence is best explained not as a simple failure of one state to honour its treaty obligations relative to the other, but as the product of differing political timelines, constitutional cultures, and institutional capacities at the moment each norm was vernacularized into domestic law. For India specifically, the deeper and more tractable problem may not be the existence of Section 15 in principle, but the persistent implementation gap that leaves its central safeguard the individualized preliminary assessment dependent on a workforce and infrastructure that India Justice Report data show to be significantly understaffed. Narrowing that gap, through binding assessment guidelines, sustained investment in Board and Committee staffing, and independent monitoring, would move India's practice closer to both its own statutory text and the international standard it professes to implement, even before any legislative reconsideration of Section 15 itself becomes politically possible.

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