The Juvenile Justice (Care and Protection of Children) Act of 2000 faced criticism for allowing juveniles of mature age get away with light punishment even after committing heinous offences but the new law enacted to replace it raises more questions than it has answered.
Though the government may have rightly decided against going back to the pre-2000 era by reducing the age of juvenile from 18 to 16 years, it surely did not choose the best alternative by permitting segregation of some juveniles in the age group of 16 to 18 for trial and punishment as adults without providing any objective criteria for differential treatment.
“What it means? It does not (at all) mean that a 16-year-old [has to] go to jail … Suppose a child commits a crime in the heinous category which is murder, rape, some kinds of arson. Suppose he commits that. He will then go, if he is under 18, before a juvenile justice board (JJB)… They will decide whether he committed the crime with an adult mind or a childish mind,” she said.
On the two avenues for the same offence, she said if the board decides that the child did not commit the crime with a “child-like mind” and “perceived it was a thought-out crime, like an adult”, it would not hear his case but transfer it for his trial like an adult.
Though her explanation may have satisfied those looking at the change from the perspective of victims, treating differently two juveniles of the same age group facing the same charges (say rape) based on the “perception” of JJB is bound to raise questions pertaining to violation of the right to equality and the basic principles of criminal jurisprudence.
Coming to the provisions which the minister sought to simplify, section 15(1) states: “In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of 16 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 circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18.”
This subsection reads: “Where the board after preliminary assessment under section 15 passes 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 (sessions court) having jurisdiction to try such offences.”
It is not that classification cannot be permitted in penal laws but the methodology envisaged here seems unjust. The time-tested Indian penal code (IPC) classifies children according to age groups. Section 82 makes children under seven immune from any prosecution and section 83 permits a case against child between seven and 12 years only if he is mature enough to judge the “nature and consequences of his conduct on that occasion”.
Though the new law provides for some safeguards which include a review by the sessions court where the case is transferred, section 15 gives undue weightage to the police/prosecution story by permitting the JJB to consider “the circumstances in which he allegedly committed the offence”.
The minister explained the position by stating that if a child kills his father who used to torture his mother, it would be treated as a crime committed with a child-like mind. The decisive factor admittedly would be facts yet to be verified or established by the prosecution during trial.
Should such a crucial decision which takes away the right of a juvenile to be treated like a child be left to be decided on facts which can only be tested during trial?
To consider the mental development as envisaged in section 83 of IPC is one thing but to look at the alleged conduct or the circumstances under which a child committed the offence is another. This may amount to presumption of guilt or at least a presumption that the police/prosecution story is correct. This violates the right of an accused to be presumed innocent until proved guilty.
True, a criminal court frames charges against an accused on the basis of police chargesheet before proceeding with the trial but the assessment under section 15 has to be viewed differently. The decision here can have serious impact on the fate of the child who might have to face trial like an adult, leading to far more stringent sentences.
If it was to ensure stringent punishments and jail terms for heinous offences to juveniles of mature age, the government could have explored other options which were possible even without undoing the progressive decision taken in 2000 to increase the age from 16 to 18 in terms of international commitments or without leaving scope for different treatment of two similarly placed juveniles on account of subjectivity in the decision-making process.
A smooth transition was possible by exploring options for empowering the JJB itself to pass more stringent sentences (similar to what the sessions court would do) in case of heinous crimes if evidence during trial revealed adult-like conduct of the accused. In the alternative, the benefit of the juvenile law could be denied to all juveniles between 16 and 18 in case of heinous crimes to do away with scope for arbitrariness and usher in certainty in law.
The law in the present form is likely to lead to a regime of uncertainty in the juvenile justice system with possible confusion in preliminary assessments, sentencing and custody. With scope for appeals on account of orders at various stages and possible confusions, the law may fail to achieve the object of establishing a “child-friendly” system of adjudication for juveniles but it is sure to be a paradise for lawyers.
If abuse was the reason for review, the government should have considered review of the provision on determination of age in case of doubt but it has been retained in the same form. Section 94 does not permit one to seek an ossification test if the date of birth certificate from school is available. A scientific test should not be barred as there is likelihood of a wrong date of birth in school records.
The reform may have been due but it would have been better if the government had not proceeded with undue haste. Neither the ongoing protest over release of a juvenile rape convict from the special home for children nor the statistics on crime highlighted by the many justified the haste.
As regards the protest, the very name of the law suggests that the object was to provide justice to juveniles which had to be given precedence over the right of victims. It was not the nature of the offence but vulnerability of children up to 18 years that called for lenient treatment and reformative measures.
A parliamentary committee had already opined that statistics was not alarming and it indicated that “the incidence of juvenile crime only increased from 0.9 in 1999 and 2000 to 1.6 in 2001 when age of juvenility was raised to 18 years”. Brinda Karat has also spoken against the misconception and has pointed out that in the last five years, juvenile crime as a proportion of total crime “is 1.5 percent”.
Maneka Gandhi brushed aside apprehensions of law being anti-juvenile stating that of the around 28,000 juveniles committing various crimes in 2013 only 3,887 had allegedly committed heinous crimes. “The new law is meant to apply to such 3,887 juveniles out of 47.2 crore juvenile population of the country.” Since the law admittedly was to deal with the errant behaviour of a negligible few compared to the total population of the country, there should not have been a tearing hurry to go for it.
Singh is a Delhi-based lawyer.