The Juvenile Justice (Care and Protection of children) Act was passed in 2015. It was enforced in the whole of India according to which a person of age 16-18 can be tried as an adult if he/she has allegedly committed a ‘heinous’ offence. A reform in this section is in dire need as the legislature has failed to recognise the difficulty in scientifically determining the mental capacity of a child. 

This article along with providing a summary of the history of Juvenile justice legislation in India reviews the guidelines in the International system that India fails to conform to and examines this Act with the fundamental rights enshrined in the Constitution. This paper finds its conclusion in suggesting a few possible solutions for the obscurity in the Act.

Introduction

A juvenile is a child, who cannot be held liable for a criminal act because he has not attained a prescribed age to be considered as an adult. The development of justice systems for juvenile across nations has sprung with the recognition of the incapacity of children to understand the nature and consequences of their acts unlike mature adults. Thus they cannot be held liable for their criminal acts. There have been several developments in the juvenile justice system in India.

The enactment of Juvenile Justice (Care and Protection of children) Act was a direct consequence of the Nirbhaya rape case in which one of the rapists was a 17-year-old. This entitled him not to be tried as an adult, therefore, fuelling the need for change in the Juvenile Justice Act, 2000.

This Act was not well-equipped to deal with delinquents. The Parliament decided to reform this Act as it was expedient to make comprehensive provisions for children alleged and found to conflict with the law. Under the amended Act, a child of 16-18 years, is alleged to have committed a heinous offence, can be transferred and tried, to an adult court as an adult. The preliminary assessment in such cases can be a cause for enormous arbitrariness as it is a very subjective process.

A Brief History of the Juvenile System in India

To understand the Juvenile Justice system in India, a close look at its history and evolvement is required. The paradigm shifts in the conception of children during the industrial revolution led to the emergence of a separate juvenile justice system in Western countries.

The Juvenile Justice System stemmed during British rule. The Indian courts adopted the parens patriae model, just like the American courts in matters of child delinquency. They took up a paternalistic attitude towards the supervision and treatment of child delinquents. Gradually, this witnessed a shift from a welfare approach to a rights-based approach which complies with the provisions of the Constitution.

In the early 20th Century, in India, every state had its approach towards delinquency. The government then enacted the Children’s Act of 1960, the method of trial of which was to be followed by the states while enacting their state-specific legislation. Under this Act, a boy under the age of 16 years and a girl below the age of 18 were defined as a child.

 Regardless of this, the definition of the term ‘child’ lacked consistency across states, and there was an urge for uniform legislation. Juvenile Justice Act was thus enacted in 1986, but because of there being a gap between cherished principles and this Act, the Parliament enacted the Juvenile Justice (Care & Protection) Act 2000. Again, an amendment in the Act led to the Juvenile Justice Act, 2015 providing the transfer of children aged 16-18 to adult courts in case of heinous offences.

Provisions of Section 15 of the Juvenile Justice Act, 2015 And Issues

The mental capacity of the juvenile

Although the definition of a child remains as any person below the age of 18 years, the Section 15 of the Juvenile Justice Act, 2015 reduced the age from 18 years to 16 years for Children in Conflict with Law(CLL) so that they could be tried as adults in case of heinous offences. It also mandatory for the court to take help of psychologists and psychosocial workers to assess the mental capacity of the child and if the Juvenile Justice Board is satisfied, then the case is taken up by the children’s court.

This is where they can exercise ‘blended sentencing’ where they can be tried as adults or as children. This is also known as ‘Extended Jurisdiction Juvenile’ (hereinafter EJJ). If the child concerned is given a sentence, he must serve this at a place of safety and on attaining the age of majority he/she will be transferred to an adult prison.

Unfortunately, the courts that were originally established for the welfare and protection of juvenile rights are now violating it. The Act fails to establish a definition to properly assess the term “mental capacity”, leaving room for obscurity. Modern sciences have stated that adolescent brains are not as fully developed as adults until the age of 25 1Barry C. Feld, ‘Juvenile and Criminal Justice Systems’ Responses to Youth Violence’ (1998) Uni. Of Chicago Press 189-261. And children are not capable of understanding the consequences wholly or being proficient at controlling their urges, even when they are 16 or 17. Psychologists sometimes are no equipped to identify the ‘mental capacity’ of the child. 2K.M Banham Bridges, ‘Factors Contributing to Juvenile Delinquency’ (1927) 17 Journal of Crim. L. & Criminology.

“The age of eighteen years has been fixed on account of the understanding of the experts in child psychology that at such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future.”

Against Constitutional Provisions

Juvenile Justice

The Department Related Parliamentary Standing Committee recognised that the age of 16-18 is sensitive and concluded that the Juvenile Justice Act, 2000 was rehabilitative for greater protection and was also informative. They, therefore, acknowledged that subjecting these children to an adult judicial system would be violative of Article 14 and 15(3) of the Indian Constitution because of the impossibility of accurate assessment of mental capacity leading to a subjective and arbitrary basis.

Ambiguity in the classification of offences

Another issue is that the classification of serious and heinous offences as per the Act is ambiguous. For serious offences, the punishment is imprisonment is between 3 to 7 years, and the heinous offence is when the punishment is a minimum of 7 years. There are several offences where the maximum punishment is more than seven years, and there is no minimum punishment mentioned or where the minimum punishment is less than seven years. These offences fall in neither of the two nor in the category of petty offences.

 For instance, under Section 302 of the Indian Penal Code, which lays down the punishment for culpable homicide not amounting to murder. The punishment can extend up to 10 years, and there is no minimum period, thus not falling into the category of heinous offences. Similarly, in Robbery, the imprisonment that can extend to a term of 10 years. These offences are punishable with imprisonment not going beyond ten years. This ambiguous zone contains several offences and is dangerous if a case is treated as heinous due to the ambiguity.

A recent judgement by the Supreme Court addresses this issue of the distinction between these offences. The case involved a road accident caused due to the rash driving of the juvenile, which fell under Section 304 (culpable homicide not amounting to murder). Leading to the question of whether it fell under serious or heinous offence to which the court opined – “when the wording of the statute is clear but the intention of the Legislature is unclear, the Court cannot add or subtract words from the statute to give it a meaning which the Court feels would fit into the scheme of things.”

 In a similar case, a juvenile was tried under section 307 of the IPC (Attempt to murder) which provides no minimum punishment leading to obscurity. Although the court in both the cases has favoured not listing the offence under the heinous offences, the Act remains unclear about the provision.

International Perspectives

International conventions like the United Nations Convention on the Rights of the Child (UNCRC) advocate that the treatment of child offenders must be different from adult offenders. Despite ratifying the CRC, India has failed to follow its practice of differential treatment of a child offender. 

An analysis of other countries’ approach,{for example, the detention and remand of children to be considered a last resort in Uganda and France} towards child delinquency has valuable lessons. Without exception, countries have tackled issues like education, morals of the family etcetera that lead to child delinquency. In many countries, the legislations are to secure the interests of the child without it violating the legal system. Another common feature is the differential treatment of juveniles and adults. The criminal conduct and its influence depend on the treatment of juveniles today. 3Del Carlo Shari, ‘Oregon Voters Get Tough on Juvenile Crime: One Strike and You are Out!’, (1996) 75 OREGON L. REV. 1224-40.

Dangers of the prison environment for juveniles

Juvenile Justice

The Labelling theory urges us to look at delinquency has to be seen as the product interaction of the juvenile and the criminal justice system. 4Chris Cunneen, ‘Juvenile Justice- An Australian Perspective’ (1995) Oxford University Press 28-90.” Once a child is apprehended by the juvenile justice system on the commission of a crime, his identity becomes that of a criminal’s. If the child is referred to as ‘bad’ consistently, then he will, in the highest probability, attribute what the term embodies in the future. This destroys the very objective of the Act as it could have been to preclude the juvenile completely but now confers negative patterns.

Adult prisons having juvenile offenders present a dangerous and bleak picture. Juveniles are more prone to committing suicide and suffering from sexual assaults[11]. The environment of the prison’s fosters recidivism in juveniles.

Conclusion

By enacting the Juvenile JusticeAct, 2015, India has taken one step backwards. The Juvenile JusticeAct, 2015 defeats the status of sui generis that is conferred upon the child. The object of the Act, as opposed to what is intended to bring such an act, has become managing the juvenile offenders rather than rehabilitating them. It has made the approach of law more law-driven system than a treatment-driven. The steps taken have barely given any attention to the issues forming the core of delinquency.

The current attention should shift from “assessing the social harm that the offender has done to assessing the social needs of the offender.” The system should also ensure early intervention and strengthening education and the institution of the family. The author suggests that trying of juveniles must be infrequent and rare and should be confined to only rare and very severe crimes, that is, rarest of rare cases. A positive change can be brought by rehabilitation, and not adult prisons as prisons foster circumstances that tend to create encouragement for criminal activity. Affirmative steps should be taken to focus on not causing more harm.

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