Guidelines On Preliminary Assessment By JJBs To Try Juvenile As Adult: Delhi High Court Seeks NGO's Report On Ground Realities

The Delhi High Court on Tuesday allowed an NGO namely "HAQ Centre for Child Rights" to intervene in a criminal reference concerning issuance of guidelines to be followed by Juvenile Justice Boards (JJBs) in conducting preliminary assessment to try a juvenile as an adult under Section 15(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Act).

Considering the fact that a larger issue was raised in the matter with respect to the manner in which preliminary assessment has to be carried out, a division bench comprising of Justice Mukta Gupta and Justice Anish Dayal sought a report from the NGO, before next date of hearing, on the ground reality before proceeding to adjudicate on the issue.

As per sec. 15(1) of the Act, the Juvenile Justice Board is to make the preliminary assessment on four aspects: one, mental capacity to commit the offence; two, physical capacity to commit the offence; third, ability to understand the consequences of the offence; and fourth, circumstances under which allegedly the offence was committed.

However, there are no guidelines as to how the Board would conduct the preliminary assessment.

Initially all children below the age of 18 years were to be treated as juvenile and tried by the Board. Only after the 2015 Act came into force, a separate category for juveniles between 16 to 18 years involved in heinous crime, was culled out, who were subjected to a preliminary assessment to ascertain if they are to be tried as a child by the Board or as an adult by the Children's Court under Section 15 of the Act.

The NGO had filed an application seeking intervention as a party in a 2016 pending criminal reference and also to seek permission for making submissions so that the guidelines can be issued in respect of the manner in which preliminary assessment under sec. 15 of Act is to be carried out.

"Consequently application is disposed of, Haq Centre for child rights is permitted to intervene in the reference," the Court ordered today.

During the course of hearing, Justice Mukta Gupta expressed concern over the issue of practical implementation of the guidelines. She orally remarked:

"It is very easy to lay down factors but whether they are practical or not is an issue. Supposing they say he has to be tried as an adult, the report is challenged, what is parameter with court to come to different find than expert finding?"

The Court thus also directed the NCPCR as well as the DCPCR to file reports as per the direction issued by the Apex Court in July this year wherein the Court had suggested the two organizations to consider issuing guidelines in order to facilitate the Board in making its preliminary assessment.

"Let the needful be done before the next date," the Court directed while listing the matter after three weeks.

The Supreme Court in the case titled Barun Chandra Thakur v. Master Bholu And Anr. vide order dated July 13, 2022 held that when the JJB does not comprise a practicing professional with a degree in child psychology or child psychiatry, it would be obligated to take assistance of experienced psychologists or psychosocial workers or other experts under proviso to sec. 15(1) of the Act.

Noting that that the preliminary assessment under sec. 15 of the Act is a delicate task and appropriate and specific guidelines would be required for the same, the Apex Court was of the view that reasonable opportunity ought to be provided in a case where the Board is to make a preliminary assessment under sec. 15. The Court was also of the view that a holistic assessment would be required to ascertain whether a child should be tried as an adult or not.

Advocates Vrinda Grover and Soutik Banerjee appeared for NGO HAQ Centre for Child Rights.

Case Title: Court on its own motion v. State