Juvenile Justice Act 2015; An Emotional Aftermath of the Dreaded ‘Nirbhaya Incident’; A Step Backward

22nd of December 2015, the day on which the Upper House passed the long pending Juvenile Justice (Care and Protection of Children) Bill, 2015 and thereby brought it into the Statute book, marks a black spot and a step backward in the history of the Juvenile Justice Regime of India.

History of Juvenile Justice Regime in India

In earlier days, the criminal justice system as available for adults was applied to a juvenile or the child irrespective of his age. The first legislation in India providing special treatment for children is the Apprentice Act 1850. The Act comprised of provisions for providing vocational training to convicted children as Apprentices to teach them trade, craft or employment for their rehabilitation.

Under the Indian Penal Code which was enacted in the year 1860, a child below the age of 7 is considered as not capable of committing a crime (doli incapax). By virtue of s. 82, absolute immunity from criminal liability is provided to a child under the age of 7 years. Section 83 of the Penal Code provides partial/qualified immunity to a child above 7 years and under the age of 12. Penal Code treats a child above 12 years at par with adults.

It was realised even in the late nineteenth century that it would not be conducive for the growth and rehabilitation of convicted children to send them to ordinary prisons where they might mix with hardened adult criminals to their detriment. Consequently, the Reformatory School Act 1897 was enacted which provided for the constitution of Reformatory Schools for young persons (boys not above the age of 15 years) convicted and sentenced to imprisonment by courts. The Report of the Indian Jails Reforms Committee 1919-1920 contemned the presence of children in prisons and recommended the enactment of a special law for children. Immediately following the recommendations of the Committee, the Madras, Bengal and Bombay provinces enacted local Children Acts in 1920, 1922 and 1924 respectively. Governments rightly realized that the justice system as available for adults was not suitable for being applied to juveniles. After independence, the Parliament enacted the Children Act 1960 which was applicable to Union Territories. The individual states also enacted local Children Acts to deal with ‘delinquent’ and ‘neglected’ children. The need for a uniform law throughout the country, for providing on the basis of modern concepts, the legal frame work in the area of juvenile justice was long felt. The desire for a uniform law throughout the country ultimately materialised in the form of the ‘Juvenile Justice Act 1986.

The visionary Constitution makers had realized that the Children being vulnerable are in need of special protective treatment and the greatest social care.

Special Constitutional Provisions for children include the following:

Article 15(3) enables the State to make special provisions for children

Right to free and compulsory elementary education for children (Article 21 A)

Right to be protected from any hazardous employment (Article 24)

The Directive Principles of State Policy further prescribe that:

the state shall direct its policy towards securing that the tender age of children are not abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e)) and

that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39 (f))

In, Satto v. State of U P, 1979 AIR 1519 V.R Krishna Iyer J. , speaking for the bench observed:

“Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of criminal justice. Juvenile justice has constitutional roots in Arts. 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental concern of the State for its child citizens including juvenile delinquents. The penal pharmacopoea of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment. This is the central problem of sentencing policy when juveniles are found guilty of delinquency. A scientific approach may insist on a search for fuller material sufficient to individuate the therapy to suit the criminal malady.”

The Preamble of the United Nations Declaration of the Rights of the Child 1959 aptly points out:

The child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”, and that “mankind owes to the child the best it has to give”.

With the progress of time and by the adoption of various international instruments on child rights by the United Nations, the concept/ideals of Juvenile Justice gained a more tangible and progressive form. The course of events and developments concerning juvenile justice in the international scenario has greatly influenced our country in shaping its juvenile justice regime. India is a signatory to and ratified many of the International Conventions relating to child rights. Thus, it had become India’s international obligation to incorporate the mandatory principles embodied therein, in the domestic/municipal law.

The following are among the important international instruments which have contributed in the process of the development of the Juvenile justice system in India:

1. The United Nations Declaration of the Rights of the Child 1959,
2. The UN Convention on the Rights of the Child (UNCRC) 1989,
3. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) 1985,
4. The United Nations Rules for the protection of Juveniles Deprived of their Liberty, 1990,
5. The United Nations Guidelines for the prevention of Juvenile Delinquency (The Riyadh Guidelines), 1990,
6. The Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption, 1993.
7. The United Nations Guidelines for Action on Children in the Criminal Justice System 1997, and
8. The United Nations Committee on the Rights of the child; General comments on Children’s Rights in Juvenile Justice. 2000.

The Preamble of the Juvenile Justice (Care and Protection of Children) Act, 2000 acknowledged the significance of such international instruments in the following words:

WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.

In Prathap Singh v. State of Jharkhand, (2005) 3 SCC 551, a 5 judge Constitutional Bench of the Supreme Court of India while dealing with the 2000 Act observed:

 “The Juvenile Justice Act specially refers to international law. The relevant provisions of the Rules are incorporated therein. The international treaties, covenants and conventions although may not be a part of our municipal law, the same can be referred to and followed by the courts having regard to the fact that India is a party to the said treaties….Constitution of India and other ongoing statutes have been read consistently with the rules of international law. Constitution is a source of, and not an exercise of, legislative power. The principles of international law whenever applicable operate as a statutory implication but the legislature in the instant case held itself bound thereby and, thus, did not legislate in disregard of the constitutional provisions or the international law as also in the context of Articles 20 and 21 of the Constitution. The law has to be understood, therefore, in accordance with the international law. Part III of our Constitution protects substantive as well as procedural rights. Implications which arise there from must effectively be protected by the judiciary. A contextual meaning to the statute is required to be assigned having regard to the constitutional as well as international law operating in the field.”

It is an accepted trite principle of International law that a state cannot make laws inconsistent with the international conventions/treaties adopted and ratified by it.

It is true that some of the advanced countries with higher rates of juvenile delinquency like United States of America, United Kingdom, Canada etc have not updated their Juvenile laws in conformity with the International conventions but of late, widespread demands for the same and a re - thinking on the issue is discernible in those countries.

Age of Juvenility and the Lingering Controversy Revolving Around it

Under the 1986 Act the age limit for a boy to be a Juvenile was 16 years and for a girl it was 18 years. As per s. 2(k) of the 2000 Act “juvenile” or “child” means a person, who has not completed eighteen years of age. The disparity between a boy child and a girl child was removed in the 2000 Act and the age limit was made 18 years for both girl and a boy.

Article 1 of the UN Convention on the Rights of the Child 1989 (CRC), defines a child in the following terms:

Article 1: For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Whereas Article 37(a) reads as: State Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

It is relevant to note that as per S. 3 of the Indian Majority Act – “Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before.” The age of voting in India is 18 years. Minimum age for marriage for woman is 18 years and for men it is 21 years. Age for contractual competence is the age of majority ie 18 years. Age for valid consent in the case of rape law was also raised from 16 to 18 years recently.

Committee under the Convention on the Rights of the Child 1989 (CRC) for the purpose of examining the progress made by the State parties on the rights of the child, after considering the formal report submitted by India, In January, 2000, recommended that the State party shall consider raising the age of criminal responsibility and ensure that persons under 18 years are not tried as adults. (See, Dr. Subramanian Swamy v. Raju AIR 2014 SC 1649).

There after, in the light of a thorough evaluation of the above recommendation the age of Juvenility of boys was also raised to 18 in the 2000 Act inter alia to bring the Municipal Law in conformity with the Convention on the Rights of the Child 1989 (CRC). The step was widely welcomed in general and especially by those who were concerned and engaged in the protection of child rights. The 2000 Act emphasized on reformation of the deviant juvenile who happen to come in conflict with the law. With the progressive humane approach, ‘An eye for eye’ or retributive philosophy became alien to the Juvenile Justice system. As per the Act the juvenile was completely kept away from the formal adversarial criminal justice system available for adults. Joint proceedings of a ‘juvenile in conflict with law’ with adult persons stood prohibited and instead a distinct and separate procedure sans the formal settings of judicial proceedings was prescribed for the Juvenile. The procedure was made more child friendly and the object was the reformation of the ‘juvenile in conflict with law’, with due emphasis on his developmental needs, rehabilitation and social reintegration. It could be seen that the law was not made in a day; it evolved slowly steadily and rightly ripened over a period of time.

In the case of a juvenile in conflict with law, the Act provided that the Board shall obtain a social investigation report on juvenile and shall take into consideration the same before passing any order. The Act provided for a wide range of reformative measures under ss. 15 and 16 for children in conflict with law – from simple admonition to maximum 3 years of institutionalisation in a Special Home. After proper enquiry, if the Board finds that the juvenile had committed an offence it could allow the juvenile to go home after advice or admonition or direct the juvenile to participate in group counseling or to perform community service or order the parent of the juvenile or the juvenile himself to pay fine when he is over fourteen years and earns money (the juvenile cannot be committed to prison in default of payment of fine) or direct the juvenile to be released on probation of good conduct or make an order directing the juvenile to be sent to a special home for a period of 3 years. A juvenile who has attained 16 years and has committed a serious offence may be directed to be kept in such place of safety if the Board finds that it would not be in his interest or the interest of other juveniles in the special home to send him to such special home (ss. 15 and 16 of 2000 Act).

Things being so, on 16th December, 2012 a young lady was brutally raped and grievously injured inside a moving bus at New Delhi by six persons including a juvenile, who had attained the age of 17 years at the time of incident. After the most gruesome gang rape she was thrown out of the bus. The nation was shocked by this dreaded maniacal incident and it evoked grave protest all around raising question on the safety of woman in the country. The brave lady succumbed to her injuries on 29/12/2012 amidst the prayers of the whole nation for her life. There arose wide hue and cry demanding the hanging of the persons including the juvenile who perpetuated this brutality. There were even demands from many quarters that the protection of juvenile from the regular criminal justice system must be done away with. Many asked for lowering the age of Juvenility. The case came to be referred as the ‘Nirbhaya case’. The whole nation was empathetic to the brave soul of ‘Nirbhaya’ and showed solidarity to her family. But the nation was divided on the issue as to what ought to be the proper age of juvenility, with most experts/people having field work experience on child rights on one side advocating for persisting with 18 years and on the other hand a mob of emotional hearts for lowering the age limit.

Right Upbringing of Children in Conducive Atmosphere a State/Societal Responsibility; The Doctrine of Parens Patriae

As seen above, the Constitution mandates certain obligation on the State regarding the welfare of its child citizenry.

An old proverb says, “Train a child in the way he should go, and when he is old he will not turn from it” (Proverb 22: 6 Bible).

There is another proverb which says that “it takes a village to raise a child and there is no such thing as other people’s children.” The poet, Khalil Gibran rightly said, “Our children are not our children, they are the sons and daughters of life, longing for itself.”

In Sheela Barse v. Secy, Children’s Aid Society, (1987) 3 SCC 50 : AIR 1987 SC 656, the Supreme Court speaking through Chief Justice Bagavathi, observed:

“Gerontocracy in silent manner indicated that like a young plant a child takes roots in the environment where it is placed. Howsoever good the breed be if the sapling is placed on a wrong setting or an unwarranted place there would not be the desired growth. Same is the situation with the humane child.”

In Supreme Court Legal Aid Committee v. Union of India, AIR 1989 SC 1278 (Ranganath Misra, M. N Venkatachaliah, JJ). the Hon’ble Supreme Court of India taking note of the failure of the government in upholding the constitutional mandate and the lazy attitude in the implementation of the beneficial provisions of the Juvenile Justice Act 1986, observed:

“There can be no two opinions that these children of today are the citizens of tomorrow’s India and the country’s future would necessarily depend upon their proper hygiene physical and mental. Children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlement to attention, growing up, food, education and the like. It is responsibility of the society and is one of the paramount obligations of those who are in charge of governance of the country today to attend to the children to make them appropriate citizens of tomorrow.”

The concept of Parens Patriae is deep rooted in the Constitutional scheme of our polity and it refers to the role of State as sovereign and guardian of persons under legal disability including children and insane. It is the principle that the State must care for those who cannot take care of themselves, such as minors who lack proper care and protection from their parents. The care and protection aspects in the Juvenile Justice Act are largely based on the doctrine of Parens Patriae. The Courts especially the Constitutional Courts being important instrumentalities of state owes a lot for the protection of the otherwise deprived children.

Therefore obviously the Children are not merely the responsibility of their parents. It is also the state’s responsibility to protect the rights of the children and provide them with opportunities and facilities to grow and develop to their potential and it is a societal responsibility that they don’t mix with the rogue elements in the society and deviate to the path of crimes. Even in the gruesome nirbhaya incident the young boy at the tender age of 17 had been permitted to get associated with hardened criminal minds and thereby to get ill educated and carried away to their ways. For that, it is submitted, the society as a whole should also share the responsibility. Indeed he too was a ‘child in need of care and protection’ as contemplated in the Juvenile Justice Act and infact the society and the authorities failed in tracing him out before the gruesome mishap. Hanging the youngster or putting him in dark cell indefinitely per se will not redeem anyone from that societal responsibility. Lack of proper parental guidance, lack of proper education/ill education, lack of societal monitoring, poverty etc are generally the causes of child delinquency in our country. The equation of deterrence as is projected by the promoters of the 2015 Act to check the child delinquency, it is submitted is a misdirected thinking. It is not that the benevolent Juvenile Justice Regime of our country of huge child population had not contemplated that sporadic incidents of brutality involving children would never happen, but the law had been designed to take it as societal failure and address it from a preventive and reformative angle. It is always propagated that in the absence of strong deterrent law to deal with deviant children, terrorists and other unruly elements would use children for their ill designs. It has to be seen that such children are not perpetrators of crime but victims in themselves. The effort should be to guard our children from getting exposed to such influences of hardened criminal elements.

State Action after the ‘Nirbhaya Incident’; (Verma Committee)

The government appointed Justice J.S Verma Committee, which in addition to the former Chief Justice of India Late Justice J. S Verma comprised of very eminent Lawyers and Social activists, to look into the possible amendments to the Criminal Law to provide for quicker trial and enhanced punishment to the persons committing sexual offences of extreme nature against women as an aftermath of the dreaded ‘Nirbhaya incident’. The said committee took up the task very effectively and after extensive hearings and thorough scientific analysis came with a report. The government was pleased to bring in amendments in criminal law especially in the law relating to rape, intune with the recommendations, through the Criminal Law Amendment Act 2013. The Verma Committee specifically considered the issue relating to reduction of age of juvenile from 18 years to 16 years. The Committee dealt with the matter in paragraphs 44 to 55 of the Report, in para 44 the Committee said, “We have heard experts on the question of reduction of the age of a juvenile from 18 to 16 for the purpose of being tried for offences under various laws of the country.”

 The Committee was of the view that long imprisonment of a person at the age of 16 would not be a good idea from a reformation angle. The Committee observed that “Our jails do not have reformatory and rehabilitation policies. We do not engage with inmates as human beings. We do not bring about transformation…. Children, who have been deprived of parental guidance and education, have very little chances of mainstreaming and rehabilitations, with the provisions of the Juvenile Justice Act being reduced to words on paper.”

The Committee further said: “We are of the view that the 3 year period ((for which delinquent children are kept in the custody of special home) is cause for correction with respect to the damage done to the personality of the child. We are completely dissatisfied with the operation of children’s’ institutions. The sheer lack of counselors and therapy has divided the younger society into ‘I’ and ‘them’.” It is time that the State invested in reformation for juvenile offenders and destitute juveniles. There are numerous jurisdictions like the United Kingdom, Thailand, and South Africa where children are corrected and rehabilitated; restorative justice is done and abuse is prevented. We think this is possible in India but it requires a determination of a higher order.”

The Committee also delved into scientific factors relating to the adolescent brain development and found that adolescence is a period of significant changes in the brain structure and function and there is consensus among developmental neuroscientists on the nature of this change. Extensive references were made to Laurence Steinberg’s ‘A Social Neuroscience Perspective on Adolescence Risk-Taking Developmental Review, 2008 – Elsevier’. Specific mention were made regarding various relevant changes in the early adolescence to late adolescence and early adulthood such as decrease in grey matter in prefrontal regions of the brain, changes in activity involving the neurotransmitter dopamine having important implications for sensation-seeking, increase in white matter in the prefrontal cortex due to myelination which is important for higher-order cognitive functions , Increase in the strength of connections between the prefrontal cortex and the limbic system which is especially important for emotion regulation etc.

Ultimately after a thorough evaluation of the issue, the Committee held that, “We are of the view that the material before is sufficient for us to reach the conclusion that the age of ‘juveniles’ ought not to be reduced to 16 years”

Challenge against Age Limit of 18 years Before the Supreme Court

In, Salil Bali v. Union of India (2013) 7 SCC 705. a 3 judge bench comprising Altamas Kabir, CJI, Surinder Singh Nijjar and Chelameswar, JJ heard and dismissed a bunch of writ petitions filed under Article 32 of the Constitution of India with prayers inter alia to strike down the provisions of ss. 2(k) and (l) of the Juvenile Justice (Care and Protection of Children) Act, 2000, which fixes the age limit of juvenility as below 18 years. The Petitioners inter alia pleaded that in offences like rape and murder, juveniles should be tried under the normal law and not under the Special Act and to remove the protection granted to persons up to the age of 18 years under the Act. It is pertinent to note that while dismissing the petitions the Court made the following prudent observations:

“There is little doubt that the incident, which occurred on the night of 16th December, 2012, was not only gruesome, but almost maniacal in its content, wherein one juvenile, whose role is yet to be established, was involved, but such an incident, in comparison to the vast number of crimes occurring in India, makes it an aberration rather than the Rule. If what has come out from the reports of the Crimes Record Bureau is true, then the number of crimes committed by juveniles comes to about 2% of the country’s crime rate. (Para 39)

The basis of fixing of the age till when a person could be treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the Rights of the Child… In this regard, one of the other considerations which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions. (Para 44)

The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed there under in 2007, is restorative and not retributive, providing for rehabilitation and re- integration of children in conflict with law into mainstream society. The age of eighteen has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till 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. There are, of course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be re-integrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and re-integrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.” (para 48).

Later, another 3 judges bench of the Supreme Court comprising P Sathasivam, CJI; Ranjana Prakash Desai and Ranjan Gogoi, JJ; in Dr Subramanian Swamy v. Raju, through Member, Juvenile Justice Board, AIR 2014 SC 1649, Considered and dismissed petitions again in the context of the Nirbhaya incident seeking inter alia that the Serious offences having minimum punishment of seven years imprisonment and above be brought outside the purview of the Juvenile Justice Act and the same should be tried by an ordinary Criminal Court. The Court observed:

“The Act, as manifestly clear from the Statement of Objects and Reasons, has been enacted to give full and complete effect to the country’s international obligations arising from India being a signatory to the three separate conventions delineated hereinbefore, namely, the Beijing Rules, the UN Convention and the Havana Rules……Also, that the Act is a beneficial piece of legislation and must therefore receive its due interpretation as a legislation belonging to the said category has been laid down by a Constitution Bench of this Court in Pratap Singh v. State of Jharkhand and Another, 2005 (3) SCC 551. In other words, the Act must be interpreted and understood to advance the cause of the legislation and to confer the benefits of the provisions thereof to the category of persons for whom the legislation has been made.”

“Classification or categorization need not be the outcome of a mathematical or arithmetical precision in the similarities of the persons included in a class and there may be differences amongst the members included within a particular class. So long as the broad features of the categorization are identifiable and distinguishable and the categorization made is reasonably connected with the object targeted, Art.14 will not forbid such a course of action. If the inclusion of all under 18 into a class called ‘juveniles’ is understood in the above manner, differences inter se and within the under 18 category may exist. Art.14 will, however, tolerate the said position. Precision and arithmetical accuracy will not exist in any categorization. But such precision and accuracy is not what Art.14 contemplates.”

Thus the challenge before the Supreme Court against the Age limit of 18 years failed not once but twice.

Age Aspect and the Trial of Heinous Offences Committed by Juveniles between 16 to 18 Years by the Children’s Court in the 2015 Act.

In the mean time, emotional pressure emanating from the mob reaction of the Nirbhaya incident, for treating/trying a Juvenile as adult for grave offences got heavier on the Government. On the forefront of the seekers of the amendment was the renowned economist and political wizard Mr. Subramanion Swamy. Moreover Smt. Maneka Gandhi, Minister for Woman and Child Development, who has a track record for fiercely fighting for Animal rights, had been very vocally advocating from the beginning for a stringent law that would ‘deter’ the child citizenry of the country from committing grave offences. The objections raised by the subject experts/experts in child rights and Child Psychology were not seriously considered or deliberated. Ministry for Woman and Child Development activated by irrelevant considerations came with a draft bill to replace the Juvenile Justice Act 2000, against which many parliamentarians cutting across party line raised objections and the bill was sent to Parliamentary Standing Committee for suggestions. Committee raised serious objections. But later minor eye wash changes were made in the bill and it was passed in the Lok Sabha on 7.5.2015 but the bill was kept pending for long with out presenting the same before the Rajya Sabha. But the issue again came to limelight when the Juvenile involved in the Nirbhaya incident was released after completion of the 3 years reformative institutionalization. Seizing the opportunity the Government got all prudent voices muted and urgently brought the bill before the Rajya Sabha and got it passed on the 22nd day of December 2015 while Nirbhaya’s Parants were seated in the visitor’s gallery of the Rajya Sabha to watch the proceedings.

The 2015 Act further streamlined the procedure for Adoption and made certain improvements from the 2000 Act regarding the ‘care and protection’ aspect, which are welcome steps. The Act retains the Age of Juvenility/childhood at 18 years but the objectionable area is the one relating to relegating the child/juvenile between 16 to 18 years alleged to have committed a heinous offence (offences for which the maximum punishment prescribed is imprisonment for seven years or more) to the regular criminal system for adjudication by the Children’s Court, which is nothing but a regular sessions court designated so. The relevant provisions are contained in SS 15 to 19.

Impugned Provisions

S 2 (20) defines, as follows, “Children’s Court’’ means 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, wherever existing and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act;

Ss.15 to 19 read as under:

15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumustances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection

(3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:

Provided that the order of the Board to dispose of the matter shall be appleable under sub-section (2) of section 101.

Provided further that the assessment under this section shall be completed within the period specified in section 14.(ie 3 months).

(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

19. (1) After the receipt of preliminary assessment from the Board under section 15, the Children´s Court may decide that—

(i) there is a need for trial of the child as an adult as per the provisions of the Code of Criminal Procedure, 1973 and pass appropriate orders after trial subject to the provisions of this section and section 21, considering the special needs of the child, the tenets of fair trial and maintaining a child friendly atmosphere;

(ii) there is no need for trial of the child as an adult and may conduct an inquiry as a Board and pass appropriate orders in accordance with the provisions of section 18.

(2) The Children’s Court shall ensure that the final order, with regard to a child in conflict with law, shall include an individual care plan for the rehabilitation of child, including follow up by the probation officer or the District Child Protection Unit or a social worker.

(3) The Children’s Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:

Provided that the reformative services including educational services, skill development, alternative therapy such as counseling, behaviour modification therapy, and psychiatric support shall be provided to the child during the period of his stay in the place of safety.

Section 20 provides for evaluation of the reformative changes in the child and provides for his release in certain cases when he attains the age of 21 years, without sending him to jail.

Pitfalls in the Provisions

The above provisions are the result of a mindset which wrongly perceived that a child of 16 years can commit a crime as an adult of may be 25 years of age. It is a fallacious thought; a child can only be a child though by 16 or 18 years he might physically grow to 60 or 80 Kgs in weight but merely by that, in no case his mental maturity attributable to brain development would have grown proportionately. Trial of a child as an adult is a misnomer/malady. “Mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence” are very vague criteria and would always be judged from the ‘manifested heinousness’ of the act committed by the child and in practice mental maturity of the child would never get assessed though the Act provides on paper the assistance of experienced psychologists or psycho-social workers or other experts in this exercise moreover it is a matter of common knowledge that our country does not have sufficient numbers of such ‘experts’. The level of mental / intellectual maturity in any given case cannot be determined with any degree of accuracy and precision and the results are prone to vary from case to case and from individual to individual. A system which provides for an option to refer a juvenile to a regular Court, therefore, cannot be accepted as fair and would be vitiated by arbitrariness as no objective basis for such reference can exist. Such decisions/‘judicial waiver of jurisdiction over the child by the Juvenile Justice Boards are prone to be subjective rather than objective and obviously the provision renders itself void for vagueness. If permitted, the unfortunate child would be unnecessarily put to the ordeal twice, first before the Board and again before the Children’s court with the formal settings of the adversarial judicial system, though the Act prescribes that the proceedings shall be child friendly, it is doubtful if in practice it would be so (in the context, it may be noted that 2000 Act jealously guarded our children from exposure to formal court settings). Again there is also a provision for Appeal to Sessions Court against the order sending the case to Children’s Court and in the complicated processes the reformative and rehabilitative chances of the unfortunate child would get minimized. Mostly the designated Children’s courts are presided over by Principal Sessions Judges who are heavily preoccupied by administrative and other onerous judicial works and many of them though competent senior judicial officers, would not have any special inclination required in dealing with ‘child in conflict with law’ or special knowledge as to child psychology. The Juvenile Justice Board constituted as per S.4 comprising of a Judicial Officer with such aptitude and two Social Workers with prescribed qualifications is more of a specialized body which would be better equipped to deal with graver cases of a deviant child in conflict with law. Such a specialized Board sending the graver cases which require better attention to the less equipped ‘Children’s Court’ manned by a busy single person does not augur well with the underlying compassionate reformative and rehabilitative principles we hitherto had in our Juvenile Justice system. A provision for an appeal to the ‘Children’s Court’ from the final decision of the Board would have sufficed. Ages from 16 to 25 are considered as important formative period when a person naturally acquires skills for his future livelihood/builds his career and this is also the period when the person gets integrated with the society at large. Inordinate confinement/institutionalization during the said formative ages would be counterproductive and may render the person incompetent for later social integration and a purposeful future and chances would be more for him going astray and becoming an irretrievable social menace later. Provision for institutionalization for 3 years with due emphasis on reformation and thereafter in required cases a provision for scientific secret domestic surveillance/monitoring and necessary interference to prevent the person from further deviations will be sufficient and serve the purpose.

Conclusion

Bringing in of the above provisions for referring certain cases involving a child to the regular judicial system was a kneejerk reaction to appease the emotional Mob frenzy sections of our population. As seen above the impugned provisions infringe the underlying ‘fairness’ and ‘due process’ enshrined in Articles 14 and 21 of the Constitution and it is also in utter disregard to India’s International obligations emanating from various International Conventions. It would have been better of if the Government had focused more on the practical aspects of prevention, reformation, rehabilitation and social reintegration which are writ large on paper in our Juvenile Justice System. As put by Sanjay Hegde, Supreme Court Lawyer: “Has Nirbhaya’s death necessitated harsh laws to deal with India’s young people or have we elders failed our succeeding generations of youngsters by exposing them to adult penalties?”

On 26.02.2015 a bench headed by Chief Justice Thakur , without going into the merits inlimine dismissed a public interest litigation filed under Art 32 challenging the Constitutionality of the above provisions saying that 'it cannot be a subject matter of a public interest litigation and can only be admitted if an aggrieved comes before the court'. Hence it is still open to Judicial Review.

It is humbly submitted that considering the general importance of the matter as the issue concerns the child citizenery of the country and in view of Court's solemn responsibility based on the doctrine of parens patriae the Supreme Court ought not have dismissed the petition on the point of locus standi, without going into the merits of the challenge.

Let us keep our fingers crossed and wait to see how our Supreme Court is going to evaluate the vires of the above provisions on the touchstone of our great and dynamic Constitution and India’s international obligations especially under the UN Convention on the Rights of the Child (UNCRC) 1989, when the matter would be duly raised before the Court in an appropriate case.

The Poem, ‘The Child’s Appeal’ by Mamie Gene Cole, exclaims:

 "I am the child,

All the world waits for my coming.

All the earth watches with interest to see what I shall become.

Civilization hangs in the balance.

For what I am, the world of tomorrow will be….

I am the child.

You hold in your hand my destiny.

You determine, largely, whether I shall succeed or fail,

Give me, I pray you, these things that make for happiness.

Train me, I beg you, that I may be a blessing to the world".

Is there any one to hear the Appeals of our Children?

Nizam Azeez Sait is an Advocate at Alappuzha.