Recently, The Supreme Court asked the central government, the National Commission for Protection of Child Rights (NCPCR) and the State Commission for Protection of Child Rights (SCPCR) to consider issuing guidelines or directions to assist and facilitate the Juvenile Justice Boards (JJBs) in making the preliminary assessment for determining whether a child of 16 years of age and above can be tried as an adult for a heinous offence.
GS-II: Social Justice and Governance (Issues Related to Children, Governance and Government Policies, Issues Arising Out of Design & Implementation of Policies)
Dimensions of the Article:
- About Juvenile Justice Board
- What does the law say on trying a juvenile as an adult?
- Juvenile Justice (Care and Protection of Children) Act, 2015
- Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021
- What happens when a juvenile is ordered to be treated as an adult?
- What was the case before the Supreme Court?
About Juvenile Justice Board:
- Juveniles accused of a crime or detained for a crime are brought before the Juvenile Justice Board (JJB) under the Juvenile Justice (Care and Protection of Children) Act 2000 (amended in 2006).
- The aim of JJB is to hold a child culpable for their criminal activity, not through punishment, but counselling the child to understand their actions and persuade them away from criminal activities in the future.
- The JJB consists of judicial magistrate of the first class and two social workers, at least one of whom should be a woman.
- JJB are meant to resolve cases within a four month period.
- Most circumstances the juvenile can be released on bail by the JJB.
- The JJB is a child-friendly space that should not be intimidating or overwhelming for the child.
What does the law say on trying a juvenile as an adult?
- According to Section 15 of The Juvenile Justice (Care and Protection of Children) Act (JJ Act), where a child of 16 years of age or above has committed a heinous offence — a crime for which the minimum punishment is seven years imprisonment — the JJB is required to “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 circumstances in which he allegedly committed the offence” before taking a decision whether the child needs to be tried as an adult.
- The assessment is required to be done within three months from the date of first production of the child before the JJB.
- The apex court also said that when the JJB does not comprise a practising professional with a degree in child psychology or child psychiatry, it would have to mandatorily seek the assistance of experts.
Juvenile Justice (Care and Protection of Children) Act, 2015
- The Juvenile Justice (Care and Protection of Children) Act, 2015 replaced the Juvenile Justice (Care and Protection of Children) Act, 2000 to comprehensively address children in conflict with law and children in need of care and protection.
- The Act changes the nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’.
- Also, it removes the negative connotation associated with the word “juvenile”.
- It also includes several new and clear definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children.
- The 2015 law also included special provisions to tackle child offenders committing heinous offences in the age group of 16-18 years.
- It mandates setting up Juvenile Justice Boards and Child Welfare Committees in every district. Both must have at least one-woman member each.
- A separate new chapter on Adoption to streamline adoption procedures for an orphan, abandoned and surrendered children,
- Also, the Central Adoption Resource Authority (CARA) was granted the status of a statutory body to enable it to perform its function more effectively.
- All Child Care Institutions, whether run by State Government or by voluntary or non-governmental organisations are to be mandatorily registered under the Act within 6 months from the date of commencement of the Act.
Juvenile Justice (Care and Protection of Children) Amendment Bill, 2021
- Now, “Serious offences” will also include offences for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is of less than seven years. [Serious offences are those for which the punishment under the Indian Penal Code or any other law for the time being is imprisonment between three and seven years.]
- The Juvenile Justice Board inquiries about a child who is accused of a serious offence.
- The Bill amends the present act to provide that an offence which is punishable with imprisonment between three to seven years to be non-cognizable (non-cognizable where arrest is allowed without warrant).
- Presently, the adoption order issued by the court establishes that the child belongs to the adoptive parents. The Bill provides that instead of the court, the District Magistrate (including Additional District Magistrate) will issue such adoption orders.
- The Bill provides that any person aggrieved by an adoption order passed by the District Magistrate may file an appeal before the Divisional Commissioner, within 30 days from the date of passage of such order.
Changes to the Child Welfare Committee (CWC)
- The amendment provides Additional Functions of the District Magistrate as the supervising the District Child Protection Unit, and also mandates the District Magistrate to conduct a quarterly review of the functioning of the Child Welfare Committee.
- The amendments include authorizing District Magistrate including Additional District Magistrate to issue adoption orders under Section 61 of the JJ Act, in order to ensure speedy disposal of cases and enhance accountability.It provides that a person will not eligible to be a member of the CWC if he/she:
- has any record of violation of human rights or child rights,
- has been convicted of an offence involving moral turpitude,
- has been removed or dismissed from service of the central government, or any state government, or a government undertaking,
- is part of the management of a child care institution in a district.
What happens when a juvenile is ordered to be treated as an adult?
- The case is transferred before the children’s court.
- As per Section 19 of the amended Act, the court can pass a decision on whether there is a need for trial of the child as an adult, or otherwise.
- A children’s court has to ensure that the child in conflict with the law is sent to a “place of safety” until he reaches the age of 21 years, and is only then transferred to jail.
- The court can also order the conditional release of the child after he attains the age of 21 years.
- Two important protections — protection from disqualification, and erasure of conviction record after a reasonable period — do not extend to a child who has been tried as an adult.
- If the child is tried as an adult, the sentence can go up to life imprisonment, but if the child is tried by the board as a juvenile, the maximum sentence can only be three years in a special home.
What was the case before the Supreme Court?
- In September 2017, a Class 2 student of a prominent school in Gurgaon was found murdered inside the school washroom.
- Haryana Police arrested a conductor of a school bus for the murder and claimed that he had confessed to the crime. However, the CBI, which took over the investigation, arrested a student of Class 11 at the school for the murder.
- In December 2017, the JJB decided to treat the accused as an adult. In October 2018, the Punjab and Haryana High Court directed the JJB to make a fresh assessment of whether the accused should be treated as an adult or a juvenile. Both the victim’s father and the CBI challenged the High Court’s decision before the Supreme Court.
- In November 2018, the apex court ordered a status quo in the case. The petitions were dismissed on July 13 2022. The accused has remained in an observation home since his arrest by the CBI.
In absence of any guidelines on making the assessment, how does the JJB take a call on whether to try the child as an adult?
- The Supreme Court said that while considering a child as an adult, one should look at his or her physical maturity, cognitive abilities, and social and emotional competencies.
- It rejected the view that if the child has the mental capacity to commit the offence, then he automatically has the capacity to understand the consequences of the offence as well.
- The “consequences” mentioned in Section 15 of the Act would not just be confined to the immediate consequence, “but it would also take within its ambit the consequences which may fall upon not only the victim as a result of the assault, but also on the family of the victim, on the child, his family, and that too not only immediate consequences but also the far reaching consequences in future”, the court said.
- The court also said that children may be geared towards instant gratification, and may not be able to understand the long-term consequences of their actions. “They are also more likely to be influenced by emotion rather than reason,” it said.
-Source: Indian Express