From UPSC perspective, the following things are important :
Prelims level : Not Much
Mains level : Juvenile Justice in India and issues associated with it
In 2016, a 17-year-old was booked for the murder of his three-year-old neighbour in Mumbai.
The city Juvenile Justice Board as well as a children’s court directed that he be tried as an adult under the Juvenile Justice (Care and Protection) Act, 2015.
Last week, the Bombay High Court set aside these orders and directed that the accused be tried as a minor, saying the Act is reformative and not retributive.
When is a Child tried as an Adult?
The Juvenile Justice Act of 2000 was amended in 2015 with a provision allowing for Children in Conflict with Law (CCL) to be tried as adults under certain circumstances.
The Act defines a child as someone who is under age 18.
For a CCL, age on the date of the offence is the basis for determining whether he or she was a child or an adult.
The amended Act distinguishes children in the age group 16-18 as a category which can be tried as adults if they are alleged to have committed a heinous offence — one that attracts a minimum punishment of seven years.
The Act does not, however, make it mandatory for all children in this age group to be tried as adults.
Trial as an adult is not a default choice; a conscious, calibrated one; And for that, all the statutory criteria must be fulfilled, said Bombay High Court
As per Section 15 of the JJ Act, there are three criteria that the Juvenile Justice Board in the concerned district should consider while conducting a preliminary assessment to determine a child be tried as an adult.
The criteria are whether the child has the mental and physical capacity to commit such an offence; whether the child has the ability to understand its consequences; and the circumstances in which the offence was committed.
If the Board finds that the child can be tried as an adult, the case is transferred to a designated children’s court, which again decides whether the Board’s decision is correct.
Why was this distinction made?
The amendment was proposed by the Ministry of WCD in 2014 (effective from 2015).
This was in the backdrop of the gang-rape of a woman inside a bus in Delhi in 2012, leading to her death.
One of the offenders was a 17-year-old, which led to the Ministry proposing the amendment (although it could not have retrospectively applied to him).
The then Minister, Maneka Gandhi, cited an increase in cases of offenders in that age group; child rights activists objected to the amendment.
The J S Verma Committee constituted to recommend amendments also stated that it was not inclined to reduce the age of a juvenile from 18 to 16.
Why is the issue under debate?
The statute permits a child of 16 years and above to stand trial as an adult in case of heinous offence, it did not mean that all those children should be subjected to adult punishment.
Essentially, the trial in the regular court is offence-oriented; in the juvenile court, it is offender-oriented.
In other words, in the children’s court, societal safety and the child’s future are balanced.
For an adult offender, prison is the default opinion; for a juvenile it is the last resort.
There is a perception that many juveniles are committing violent crimes. A close look at the facts reveal a different picture.
According to government crime statistics, less than 5% of the rape cases were reported against the 16-18 year age group.
Some people have spoken in support of the proposed Bill on the ground that the seriousness of the crime reflects the mental maturity of the juvenile.
But the neuroscientists have found that the prefrontal lobe in the human brain (responsible for discernable judgements) is fully developed only by ~25 years.
Almost 80% of juveniles accused of crimes belong to families having an annual income of less than Rs. 50,000.
Even countries such as the U.S. and U.K., which introduced the judicial waiver system, have now accepted that they have been ineffective in addressing juvenile crime rate, public safety and recidivism.
It is scientifically possible to determine maturity and mindset beyond reasonable doubt
The transfer system will effectively deter juvenile crime and enhance public safety, particularly of women
Instead of dealing with the root causes of juvenile crime, such as poverty, broken families, unregulated access to pornography, or the failure of the child protection system, the government seems to be blindly targeting adolescents.
The provision of trying a juvenile committing a serious or heinous offence as an adult based on date of apprehension could violate the Article 14 (right to equality) and Article 21 (requiring that laws and procedures are fair and reasonable).
The UN Convention on the Rights of the Child requires all signatory countries to treat every child under the age of 18 years as equal. We would be contravening the convention in case the bill goes through.
Everything that you need to know about the recently passed Juvenile Justice Bill
The Juvenile Justice Bill, 2014 introduced by the Minister of Women and Child Development, Maneka Gandhi, in the Lok Sabha on August 12, 2014 and now passed in the both house of Parliament. Let’s take it in brief!
Let’s first take a glance over its background?
The new Juvenile Justice Bill, 2015 has a provision that allows juvenile accused aged between 16 and 18 years who are accused of heinous crimes like rape, murder, etc., to be tried under the Indian Penal Code (IPC).
According to the proposed law, matters are to be presented to the Juvenile Justice Board on a case-by-case basis.
Board will then decide, based on an assessment of the mental state of the child, whether the crime was committed with/without an understanding of its consequences.
Based on this assessment, the juvenile offenders will be treated under either IPC or the JJ Act. The board will be aided by experts in making that decision.
Let’s take a dive into the more details
What are the significant provisions of bill?
The Bill replaces the Juvenile Justice (Care and Protection of Children) Act, 2000.
It seeks to address challenges in the existing Act such as delays in adoption processes, high pendency of cases, accountability of institutions, etc.
The UN Convention on the Rights of the Child requires all signatory countries to treat every child under the age of 18 years as equal.
The provision of trying a juvenile as an adult contravenes the Convention.
The Bill further seeks to address children in the 16-18 age group, in conflict with law, as an increased incidence of crimes committed by them have been reported over the past few years.
What’s the scope of the bill?
The Bill defines a child as anyone less than 18 years of age. However, a special provision has been inserted for the possibility of trying 16-18 year olds committing heinous offences, as adults.
A heinous offence is defined as one for which the minimum punishment under the Indian Penal Code(IPC) is 7 years.
Is that provision leads to violation of Articles 14, 21 and 20(1) of the Constitution?
How does it affect Article 14?
Article 14 states that every person shall be treated equally before law.
It has been interpreted that unequal treatment may be permitted between different sets of people only if there is a clear public purpose sought to be achieved by such unequal treatment.
The Bill creates a distinction between 2 juvenile offenders committing the same offence on the basis of the date of apprehension.
And what about Article 21?
Article 21 states that no person can be deprived of their right to life or personal liberty, except according to procedure established by law.
Courts have interpreted this to say that any law or procedure established should be fair and reasonable.
The differentiation based on the date of apprehension may fail this standard.
So, again Article 20(1) also affects?
Article 20(1) of the Constitution states that a person cannot be subjected to a penalty greater than what would have been applicable to him, under a law in force at the time of commission of the offence.
Under the Bill, if a juvenile between the ages of 16-18 years commits an offence and is apprehended at a later date, he may face a higher penalty than what would be applicable to him if he had been apprehended at the time of commission of the offence.
Let’s move forward to main provisions of the bill
Why is there need of Juvenile Justice Boards (JJBs)?
One or more JJBs to be constituted, for each district, for dealing with children in conflict with law.
JJBs are composed of a Metropolitan or Judicial Magistrate and 2 social workers, one of whom shall be a woman.
Powers and responsibilities of the JJBs include –
Ensuring legal aid for a child.
Adjudicating and disposing of cases related to children in conflict with law.
Conducting regular inspection of adult jails to ensure no child is lodged in such jails and other inspection visits.
Conducting inspection visits of residential facilities for such children.
Then, what is the role of Children’s Court?
A Children’s Court is a Court established under the Commissions for Protection of Child Rights Act, 2005 or a Special Court under the Protection of Children from Sexual Offences Act, 2012.
It will try 16-18 year olds that commit heinous offences, after confirming that they are fit to be tried as adults.
It ensures that a child in conflict with law is sent to a place of safety until he attains the age of 21 years, after which he is transferred to a jail.
During the child’s stay in the place of safety, reformative services such as counselling, etc. shall be provided.
The Court shall ensure periodic follow up reports by District Child Protection Units.
Let’s know the role of Child Welfare Committees (CWCs)?
States shall constitute one or more CWCs for each district for dealing with children in need of care and protection.
The powers and responsibilities of a CWC include:
Selecting registered institutions for the placement of a child.
Addressing orphans, abandoned children, surrendered children and sexually abused children, etc.
What are the key recommendations of Parliamentary Standing Committee (PSC) for bill?
The PSC on Human Resource Development (Chair: Dr. Satyanarayan Jatiya) submitted its report on the Bill on February 25, 2015.
[PSC is a committee created by Parliament from time to time to help deliberate or scrutinise activities under its responsibility. It’s created by, and defers to, the Parliament – either the Lok Sabha or the Rajya Sabha.]
Key recommendations include –
The Committee noted that the 2000 Act recognises the sensitive age of 16-18 year olds and is reformative and rehabilitative in nature.
Subjecting juveniles to the adult judicial system would go against the principle of Articles 14 (unequal treatment of 16-18 year olds) and 15(3) (against the objective of protecting children) of the Constitution.
It also said that the Bill was in violation of Articles 20(1) and 21 of the Constitution.
One of the reasons cited for the Bill’s introduction is an increase in heinous offences committed by 16-18 year olds.
The Committee stated that this data compiled by NCRB is misleading as it is based on filing of FIRs and not actual convictions.
The Committee observed that the Act is not being implemented well.
It recommended better implementation and uniform establishment of systems and procedures, by all agencies.
But, Why did Reports and experts differ to passed such law?
According to the National Crime Records Bureau, juveniles committed 31,725 crimes – 1.2 percent of the total number of serious crimes – in India in 2013.
By comparison, in the United States, juveniles were responsible for 25 percent of violent crimes in the same year.
The NCRB data said there were 17,795 cases of theft, burglary and physical assault by juveniles, and 2,074 rapes. The total number of rapes in 2013 was 33,707.
Child rights activists say judging the maturity of a juvenile is difficult as their brain is different in structure and functioning than that of an adult, and that conclusions drawn would be “unscientific” and “arbitrary”.
They say authorities should look at the profile of juvenile offenders, many are poor, uneducated and abused and give them the chance to reform, rather than punishing them blindly.
[So, If there are children engaging in violence, it is the fault and failure of the state. The state must respond to the violence of young people with kindness. Isn’t it?]
So, What’s Next ?
The newly passed law does not allow for juveniles to be sentenced to death or to life imprisonment without the possibility of release.
However, the new law will not apply to the December 2012 Delhi gangrape as criminal laws cannot be retrospective in nature.
Still, everyone looks happy for such law, reason we all know that, delayed but at least it finally happened.