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This article by Raunak Chaturvedi pursuing B.B.A L.L.B(Hons) from Amity University Kolkata.

Introduction

As the name of the very Act upon which this article has been written suggests, it may be said that the Juvenile Justice (Care and Protection of Children) Act, 2015, was meant to ensure that not only the children who have been subjected to criminal activity are provided with a supportive, protective and caring environment, but also that the ones who have conducted any offence, be it a petty, serious or heinous, are too provided with the same protection of the Act and also a corrective, rather than a punitive environment, to make them understand the seriousness of their actions and also, to make sure that a germinating new individual is not subjected to rigorous punishments, which may have a detrimental effect not only upon his life but, also upon his overall mental development towards the society in general. However, one provision within the Juvenile Justice Act hereinafter referred to as the J.J. The Act has put a legitimate question mark upon the very purpose of the Act, the very reason why it was enacted. Section 15 of the Juvenile Justice Act, 2015 lays down the procedure to conduct a preliminary assessment by the Juvenile Justice Boards, so as to assess the ‘maturity’ level of the children in conflict with the law who are above 16 years and below 18 years of age and then decide whether to try those children as adults or not. The article will talk about this section in the light of certain other provisions too and also some very recent cases to understand how the section has proved to be ultra vires the very purpose of enacting this law. Firstly, let us have a look at some of the provisions of the J.J. Act.

Section 1 (12): Who is a Child

Sub-section 12 of the very first section of the J.J. The Act expressly and clearly states that a child is someone who has not completed the age of 18 years. We will see later how this definition helps us to understand the point that this article tries to put forward.

Section 3: Some Principle to be followed while Administering the Provisions of the Act

  1. Principle of presumption of innocence- It is really interesting to see that subsection (i) of Section 3 of the Act points out that for the administration of the provisions of the Act, every child must be considered, by default, to be innocent and devoid of any mala-fide or criminal intentions. It is worth to see that on one point the Act says this and on the very other, it says that in case, upon the conduction of a preliminary assessment the Juvenile Justice Board feels that a child should be tried as an adult, then it may refer the case to a competent Court. We must understand that trying a child as an adult clearly indicates the intention on the part of this provision that some children may not be ‘innocent’. Some may be dubious, which may be assessed by conducting a preliminary assessment and so are eligible to be tried as adults. Thus, this is the first instance of how Section 15 contradicts the purpose of the Act.
  2. Principle of Dignity and Worth- This principle, under sub-section (ii) is related to the Doctrine of Rule of Law which mentions that while administering the Act, the authorities will treat every person with equal dignity and Rights. One thing must be understood very clearly that this provision also implies that the same must be applicable to children. However, just by conducting a preliminary assessment to assess an extremely arbitrary standard as the maturity level of an individual, some children are denied the equal protection of the Act and the Rights conferred upon them, as promised by the Act. This is another preposterous way in which Section 15 contradicted another provision of the Act.
  3. Principle of Best Interest- This principle, under sub-section (iv) indeed is the icebreaker. It says that whatever decisions are taken, they must in the best interest of the child and also should help the child to develop his full potential. It must be understood that considering a child as a seasoned criminal and treating him accordingly is not something which is ‘in the best interest of the child’. Even if the Act says that the environment must be child-friendly and utmost care must be given to the child in conflict with the law, still the society looks with a loathsome eye towards such children, who, only on the basis of them being mature, were ordered to be treated as an adult and also tried accordingly.

Thus, we may see that the above sections and subsections clearly indicate how the very purpose of the Act was defeated when the provision to try a child as an adult felon was introduced, only on the basis of an extremely arbitrary scale, that is, the maturity of that child. Let us now understand what Section 15 really talks about.

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Section 15, J.J. Act: All children are not innocent

The Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 mentions that in case a child, between 16 to 18 years of age, has committed a heinous offence, then, the Juvenile Justice Board may conduct a preliminary assessment in order to assess the maturity level of the child, his mental and his physical capacity to conduct such an act. While doing so, the Board shall take the aid of experienced psychologists and psycho-social workers who have ample experience to work with troubled children and then, see whether or not to try a child as an adult or not. In case the Board feels that even after the preliminary assessment, the child is not to be tried as an adult, then, it will pass an order as per the guidelines under section 18 of the J.J. Act. 

Below 18, can’t Vote; but below 18, can be tried as an adult

The sub-heading in its totality is speaking for itself. It is a well-defined fact that if a person has not completed the age of 18 years just by one day, still he can’t apply for his Voter I.D. and is also denied his Right to Vote as he is still a ‘child’ in the eyes of the Law, even though he may have ten times the political maturity and awareness to vote for an appropriate leader than any other older individual. It is really interesting to see that for something so basic and vital as casting one’s vote, a preliminary assessment is not carried to ensure whether the child is ‘mature’ enough or not, but, when the same child commits a crime, automatically the question arises whether he had the mental capacity or not.

In a similar manner, in case a child is on the brink of completing 18 years, still, he will be denied to apply for a driver’s licence or to drive a car (even though one week’s time won’t alter his cognitive abilities drastically). So, we may clearly see that because of such a faulty provision, the very aim of the Act was derogated. Although the Act clearly mentioned that children are people who have not completed 18 years of age, still due to Section 15, this principle was superseded. Let us have a look at some of the recent cases regarding this Section and analyse the effects of Section 15 of the J.J. Act.

Recent cases to assess the loopholes in the Act

  1. Durga v/s. State of Rajasthan- This indeed is a very interesting case to understand the quality of the assessments carried out upon children. The section mentions that a committee consisting of experienced psychologists, psycho-social workers, who have ample experience in dealing with troubled children, should be appointed to conduct the preliminary assessment. However, it is really interesting to see that in the present case, the Honourable Rajasthan High Court observed that the child in conflict with the law, i.e., a girl named Durga, was not provided ‘any effective opportunity of hearing or legal representation’ Moreover, the Court also found out that as required, appropriate psychologists, having ample experience of dealing with troubled children were not consulted and the Juvenile Justice Board didn’t adhere to the principles of natural justice and without any justification, the child was admitted to the psychiatry department of the MBH Hospital. From this case, the standards of the professionals available to conduct the assessment and the atrocities that children have to face due to the loopholes of the system, just in the name of Section 15, are clearly exposed. It is very imperative for us to understand that we can’t simply deny the Rights to a child as enshrined within the Act, if we ourselves don’t have the appropriate means to carry out the tests to do so, as in the above case.
  2. Mumtaz Ahmed Nasir Khan v/s. The State of Maharashtra– The present case points out the most hilarious aspect of Section 15. In the present case, two juveniles were involved in the murder of a three and a half years old child. The elder one was seventeen and a half years old and the younger was sixteen and a half years old. But, it is really interesting to see that after conducting a preliminary assessment, the Juvenile Justice Board decided to try the elder one as an adult and the younger one as a child. This clearly indicates the discrepancy in the law. Just because the younger felon was not ‘mature’, he was provided with all the protective measures of the Act, but the elder one was denied the same, although both had committed the same heinous act. 

Constitutional violations by Section 15

There are two Articles of the Constitution which are clearly violated by Section 15 of the J.J. Act. One is Article 14 and the other one is article 15(3). Let us understand how.

Article 14 of the Constitution of India clearly mentions that everyone will be provided with equal protection of the Law and everyone will be treated equally before the Law. Thus, we may definitely say that the Law also includes the J.J. Act. But, it is very sad to see how, on the mere basis of a preliminary assessment, some children are denied this protection and equality before the same. This is not Constitutionally acceptable. Just as in the other cited examples, if a child has not completed 18 years of age, irrespective of his political maturity, he is not allowed to vote and is treated equally as all the other children who don’t have enough political maturity, in the same way, the children who are in conflict with law must be either treated and tried as children, or all of the above 16 years of age and below 18 must be tried as adults. No arbitrary standards must be set, as that of assessing the maturity, considering the poor administrative conditions from the cases mentioned.

Article 15 (3) gives the State the power to enact laws, especially for children and women. Thus, it may be implied that this Article talks about the implementations of Acts, amendments, ordinances, provisions, etc., for the benefit, care and protection of women and children. But, Section 15 of the J.J. The Act has rendered this provision to be useless. By allowing the Board to try children as adults, if it ‘feels’, clearly has rendered this Act and Article 15 (3) redundant.

Conclusion

Maturity is an arbitrary scale of measurement. Moreover, different people may have different understandings of maturity. Furthermore, the standards in India are not up to the mark to conduct effective maturity determination tests, as seen in the above-cited case. Furthermore, children are people who haven’t completed 18 years. Even after such declarations and loopholes, still, the concept of preliminary assessment was incorporated in the J.J. Act. It is crucial for us to see that the Act has been meant for the ‘protection and care of children’, as the very name suggests. However, trying a child as an adult will not only be derogatory towards the psychology of that child but, is also ultra vires the very aim of enacting this Law. It must be understood that justice can’t be partial. If the Act expressly mentions that children are ones who are below 18 and all children are by default devoid of any mala fide or criminal intentions, there is no scope left to conduct a preliminary assessment and then treat a child ‘accordingly’. The Act is meant to see all children equally. It should do the same effectively.


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