This article is written by Sakshi Singh, from Amity Law School, Lucknow. This article provides a detailed analysis of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, which enumerates conditions for preliminary assessment. 

It has been published by Rachit Garg.

Introduction 

Juveniles in conflict with the law are dealt with in accordance with a separate statute, the Juvenile Justice (Care and Protection of Children) Act, 2015 (“the Act”). When a juvenile is brought to the justice system upon commission of a crime or upon being in conflict with the law, there are several actions (under Section 18 of the Act) that may be taken after considering the age and severity of the offence committed.

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If the child is under 12 years of age, no action is taken except for taking the child to the youth care office for reformation or counselling. Juveniles committing offences may also be sent to perform unpaid community service. There can be short detention or other penalties and non-punitive orders. 

A new form of action added by the Act of 2015 is the “trial of juveniles as adults”. This means that juveniles can also be prone to the adult criminal justice system upon commission of certain offences. Offences committed by Juveniles can be categorised into three parts- 

  • Firstly, petty offences, as defined in Section 2(45) of the Act, are those offences which have minimum punishment for a term of not more than 3 years in the Indian Penal Code, 1860 (“IPC”) or any other criminal law for the time being in force. 
  • Secondly, serious offences are defined in Section 2(54) of the Act, which states that offences for which the sentence of imprisonment is between 3 years to 7 years in IPC or any other criminal law are known as serious offences. 
  • Lastly, heinous offences are defined in Section 2(33) of the Act and constitute all those offences having minimum punishment of 7 years of imprisonment under IPC or any other law. 

Of all these categories of offences under the Juvenile Protection Act, only juveniles committing heinous offences are eligible for preliminary assessment under Section 15 of the Act. This provision is about preliminary assessment by the Juvenile Justice Board (“Board”) as defined in Section 2(10). A preliminary assessment is an inquiry procedure to determine the mental and physical capacity of juveniles in connection with the offence committed by them. 

Historical background of Section 15 of Juvenile Justice Act, 2015

The Juvenile Justice (Care and Protection Act) first came into existence in the year 2000, after replacing the previous Act governing juveniles, the Juvenile Justice Act, 1986. To date, the Act has been amended three times in the years 2002, 2006, and 2015. 

In 2012, a physiotherapy student named Jyoti Singh was travelling with her male friend on a public bus in Delhi when she got raped by five people, including a 17 years old juvenile. You are probably all aware of this ‘Nirbhaya’ incident, which attracted nationwide concerns about such delinquent children, and demands were widely raised for them to be treated and tried as adults. But, at that time, the Juvenile Justice Act of 2000 didn’t have any such provision; therefore, the juvenile was released after 3 years of imprisonment. 

There were also demands to lower the age of juveniles to 16 years, which the Justice J S Verma Committee Report summarily rejected. It was recommended in that report that juvenile offenders be treated in accordance with the facility or capacity they have, be it physical or mental. Obiter dicta of the Apex Court in the case of Dr. Subramanian Swamy v. Raju, through Member, Juvenile Justice Board (2014) and recommendations of the Justice J S. Verma Committee, has made the Parliament amend Section 15 of the Act.

What does Section 15 of Juvenile Justice Act state 

Preliminary assessment

Juvenile, as defined in sub-section 35 of Section 2 of the Act, is a person who is under 18 years of age. A child who is in conflict of law within the meaning of Section 2(13) shall be subject to an inquiry or preliminary assessment (only for heinous offences) in accordance with the provisions of this Act. In a literal sense, a preliminary assessment is an informal way of conducting an investigation in which two things are determined. Firstly, whether to proceed with it or not; and secondly, if yes, then how to proceed.  

Section 15 of the Act mandates preliminary assessment of juveniles in conflict with the law subject to the following conditions-  

  • Juveniles of the age above 16 years and below 18 years;
  • Commission of heinous offence as given under Section 2(33) of the Act. 

The Juvenile Justice Board conducts a preliminary assessment to determine if the conditions mentioned above are fulfilled. A determination of the physical and mental ability of a juvenile to commit the crime is made. Based on the result of such a preliminary assessment, the Board passes a reasonable order as to whether a juvenile can be tried as an adult in the Court of Law. 

Inquiry for preliminary assessment

Assessment by the Board can also be considered one of the kinds of inquiry under Section 14 of the Act, which provides for the procedure of inquiry of the Board regarding a child in conflict with the law. Further, Section 14(5) of the Act states that the Board must ensure a fair and speedy inquiry. It also provides that an inquiry into the heinous offences committed by children in the 16-18 age group shall be dealt with in the manner prescribed under Section 15.

Assistance of Psychologist

Rule 10A of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 enumerates the procedure for conducting a preliminary assessment under Section 15 of the Act. It states that for the purpose of carrying a preliminary assessment of juveniles committing heinous offences, if necessary, Board may take the help of the following persons- 

  • Psychologist;
  • Psycho-social workers; or 
  • Any other expert person who has experience working with children in difficult circumstances. 

In addition, the proviso of Section 15(1) of the Act also states that the Board is free to seek the assistance of an experienced psychologist, psycho-social worker, or any other expert in the field. The District Child Protection Unit Hall has to look after the availability of the experts stated above. The board may consult these experts on any question of the psyche, or they may even ask for an independent assessment of the juvenile by these experts. 

In the case of Olef Khan vs. State of Madhya Pradesh (2021), the High Court considered the question of whether the word “may”, used in reference to the assistance of psychologists during a preliminary assessment, should be construed as “shall,” i.e., a mandatory pre-condition. The court has held that “when the word ‘may’ is used in an enactment in respect of a Court, the same has to be understood as ‘shall’.” The point of construing the word “may” as “shall” was well validated by the Supreme Court back in 1963 in the case of Ramji Missir vs. State of Bihar. 

Period of assessment 

The second proviso of Section 15(2) states that the Board is bound to complete the assessment procedure by the time limit specified in Section 14 of the Act for this purpose.

Generally, any such inquiry by the Board must be completed within a period of 4 months from the date when the child was first produced before the Board. However, in certain exceptional circumstances, an extension of the period of 2 months could be provided. The extension will be granted in exceptional circumstances only after recording the reason for such an extension in writing. But, where a heinous offence is alleged to have been committed by the juvenile, a preliminary assessment under Section 15 must be completed within 3 months in accordance with Section 14(3). For an extension of the time limit for completion of the preliminary assessment, the Board shall get such an extension approved by the Chief Judicial Magistrate (CJM) or the Chief Metropolitan Magistrate (CMM) for reasons to be recorded in writing. 

Conditions for passing an order under Section 15 of Juvenile Justice Act, 2015

Juvenile Justice Board 

Juvenile Justice Board (JJB), also known as the Board, is constituted under Section 4 of the Act. JJB is authorised by law to conduct a preliminary assessment and pass an order for the purpose of Section 15 of the Act. It is a multi-disciplinary body that exercises its duties and responsibilities mentioned in Section 8 of the Act in connection with children in conflict with the law. 

If police apprehend any child in conflict with the law, such a child should be produced before the Board within 24 hours (vide Section 10 of the Act)  through a special Juvenile Police Unit or a designated child welfare police officer.  

There must be a heinous offence 

First and foremost, to start a preliminary assessment of a child in conflict with the law, the Board must ensure that he has committed a heinous offence. “Heinous offences”, as per the definition given under Section 2(33) of the Act, are those offences for which the IPC or any other criminal law for the time being in force prescribes a term of imprisonment of 7 years or more. 

In the case of State of Maharashtra v. Shadab Tabarak Khan (2022), a group of persons were charged under various provisions of the IPC and the Unlawful Activities Prevention Act, 1976 (UAPA) for their engagement in terrorist activities. One of them was a juvenile; therefore, the state had filed an application for a preliminary assessment of the juvenile. However, the Board has rejected the application. Upon the appeal of the aggrieved party, the Bombay High Court has held that for preliminary assessment, a juvenile must commit an offence for which a minimum of 7 years of punishment is prescribed. Since none of the applicable provisions of the IPC or UAPA complies with the said condition, the appeal was rejected. 

Age group of 16-18 years

Although anyone who is below 18 years of age is considered ‘Juvenile’ under Section 2(35) of the Act, When a juvenile comes into conflict with the law, and he/ she is under 16 years of age, requisite orders will be made in accordance with Section 18 of the Act.

Under preliminary assessment, the Board intends to check if the juvenile in conflict with the law can be treated like an adult if he has committed a heinous offence and has the requisite capacity to commit the crime. Only juveniles from the age group of 16- 18 years of age can undergo preliminary assessment, and that too if other conditions (commission of a heinous offence) are satisfied. 

Capacity to commit an offence 

Before passing an order of preliminary assessment for the trial of the juvenile as an adult following conditions regarding the capacity to commit an offence must be fulfilled- 

  • The capacity of juveniles to commit a crime. This includes both mens rea i.e. mental capacity as well as physical capacity;
  • Ability to understand the consequence of the offence so committed;
  • Circumstances and preceding conditions in which the said offence was committed. 

Order of board under Section 15 of Juvenile Justice Act, 2015

Disposal of the case by the Board 

After conducting a preliminary assessment under Section 15 of the Act, the Board may, if they are of the opinion that the case is to be disposed of by them, dispose of the case of the juvenile in accordance with the procedure for trial in a summon case under the Code of Criminal Procedure, 1973. Section 18 of the Act, inter alia, states that Board, after the assessment under Section 15, may pass any of the following orders- 

  • Make the juvenile go for counselling along with his parents or guardian. An order for group counselling can also be passed;
  • Performance of community service under any person or organisation;
  • Order for payment of penalty by the juvenile himself or by the parent or guardian;
  • Release of a child on probation for good conduct. Such released child must be in the custody of parent or guardian or any other person for a period not more than 3 years; 
  • Give directions to send the child to a special home to get the facility such as “education, skill development, counselling, behaviour modification therapy, and psychiatric support” for a period not more than 3 years. 

Order of exoneration 

After the enquiry, if it appears to the Board that the juvenile in question has not committed any offence, then it shall pass an order of exoneration accordingly as per Section 17 of the Act. The Board, under this Section, can also send that juvenile to the Child Welfare Committee (“CWC”) if need be. 

Children’s Court 

After the preliminary assessment, if the Board is of the opinion that a juvenile should be tried as an adult, then it shall transfer the case to Children’s Court. Where the Board, after preliminary assessment, orders the trial of the juvenile to be conducted in the same manner as that of the adult, it shall attest to the reason for the same. 

Sub-section 3 of Section 18 of the Act states that after conducting the preliminary assessment if it appears to the Board as reasonable, it may transfer the case to the Children’s Court of competent jurisdiction to hear the matter in a similar manner as the trial of an adult. 

Section 19 of the Act states that after getting a reference from the Board, the Children’s Court may conduct the trial of the juvenile in accordance with the provisions of the CrPC. Further, it may also conduct an assessment again instead of initiating a trial procedure. The Children’s Court has the power to pass an order under Section 18 of the Act. 

Provision for appeal 

Section 101 of the Act states the provision for appeal from the order passed by the Board. Among others, it states that, if aggrieved by the order of the Board in preliminary assessment, a person may appeal in the Court of Sessions. Sessions Court, while deciding on appeal, may take the help of psychologists or any other expert, but not the one who assisted the Board during the preliminary assessment. An appeal is to be made to the Children’s Court within 30 days from the date of the order of the Board. 

Question of constitutional validity of Section 15 of Juvenile Justice Act, 2015

Violation of Right to Equality 

It is argued by the opponents that Section 15 of the JJ Act is violative of Article 14 of the Constitution of India. Firstly, children/ juveniles who are below 16 years of age are treated differently from those who are above 16 but below 18 years of age. Secondly, the reasons for such differential treatment are not justified. 

However, to cater for this argument, it is provided that the right to equality is granted to every citizen of India, subject to reasonable restriction. A reasonable restriction must be based on intelligible differentia and rational nexus. In this scenario, for Section 15 to not violate the right to equality, the differentiation of children/juveniles below 16 years and others must be based upon a reason, and that reason must be in consonance with the object sought to be achieved. 

Violation of right under Article 20(3) 

In the process of the preliminary assessment, the Board is advised to seek assistance from psychologists or psycho-social workers whenever necessary. The result of the preliminary assessment by the Board is, to some extent, based on the report of the psychologist appointed to assist the Board in the matter. 

It is often argued that these psychological experts subject children to intimate, self-incriminating statements because whatever they say might be used against them. Further, the Act does not bestow any right of consent upon the children, so they can, if unwilling, refuse to go on with the psychologist. Therefore, it can be seen as a violation of the fundamental right against self-incrimination as envisaged in Article 20(3) of the Indian Constitution. 

Other loopholes in Section 15 

The Juvenile Justice Act evolved over time with the aim of providing care and protection to juveniles in need and also giving a chance for improvement to those who, for any reason, act in conflict with the law. Accordingly, the Juvenile Justice Board does not take a punitive approach towards juveniles. 

The mental capacity of juveniles to commit a crime is not very easy to determine as there is no definite test for it, unlike medical tests. Because of the time-barred (3 months) proceedings of the preliminary assessment, an arbitrary and hastened decision with possible errors could be expected most of the time. 

Judicial pronouncements 

Barun Chandra Thakur vs. Master Bholu (2022)

Facts of the case

In the case of Barun Chandra Thakur vs. Master Bholu, a student of  2nd grade named Prince was subjected to murder by cutting his throat in the school washroom. Another student of the school, Bholu, from class 9th, was accused of murder. The Board has conducted a preliminary assessment as Bholu was over 16 years old and had committed a heinous offence. Afterwards, the Board ordered the trial of the juvenile as an adult on the reasoning that the juvenile had sufficient maturity and ability to understand the consequences of the action. 

Order of the Court

It was held by the Supreme Court that the task of the preliminary assessment is granted to the Board only and not to the court of law. Therefore, it could only be ordered on the matter of whether the assessment was in accordance with the procedure established by law or not. As 3.5 years have passed since then and the juvenile has turned 21 years old, the court is not in a position to assess whether further testing is to be carried out by the board or not. Thus, it is now at the discretion of the board. The court has further directed the government to come up with guidelines to assist and facilitate the board in making the preliminary assessment. 

Shilpa Mittal vs. State of NCT of Delhi (2020) 

Facts of the case

In the case of Shilpa Mittal vs. State of NCT of Delhi, a boy above 16 years of age killed a person because of rash driving and was consequently charged with culpable homicide under Section 304 of the IPC. Section 304 states that “...whosoever commits an act with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death…” would amount to culpable homicide, not murder. 

Here, the juvenile has acted with the knowledge that the act of rash driving might take lives. Despite having such knowledge, he committed the crime, which attracted punishment for a term that may extend to 10 years. Considering the above facts, the Board has taken cognisance of the crime and ordered the trial of juveniles as adults. 

Order of the Court

The Apex Court, while deciding on the question as to whether the juvenile is to be subjected to preliminary assessment or not in reference to the commission of a ‘heinous offence’, has held that an offence that does not provide a minimum sentence of 7 years cannot be treated as a heinous offence. The Court has opined that “when the language of the Section is clear and it prescribes a minimum sentence of 7 years imprisonment while dealing with heinous offences then we cannot wish away the word ‘minimum’.”

Further, the court has exercised its power under Article 142 of the Indian Constitution and established that for offences for which a minimum sentence is not specified but the maximum sentence is more than 7 years, these offences will fall within the ambit of “serious offence” as defined under Section 2(54) of the Act until the Parliament makes any amendments to the present statute. 

Smt. Durga vs. State of Rajasthan (2019)

Facts of the case

In the case of Durga vs. State of Rajasthan, Smt. Durga was accused of murdering her husband. She was subjected to domestic violence out of suspicion of illicit affairs. One day they had a big fight, and after that, Durga was caught with an axe in her hand and the body of her husband lying in a pool of blood. Upon her arrest, it was noticed that she was a juvenile; therefore, the investigation was handed over to the Juvenile Justice Board. Since murder under Section 302 of the IPC attracts the punishment of life imprisonment (i.e., more than 7 years), it will be counted as a heinous offence. 

The Board inquired about the matter in accordance with Section 15 of the Act and transferred the case to the Session Court for the trial of the juvenile as an adult. Appellant Smt, Durga appealed to the High Court against the order of the Session Court, which convicted her of murder. 

Order of the Court

The Rajasthan High Court has acquitted Smt. Durga on the ground that she was driven to commit the offence because of the conduct of the victim. The Court further reasoned out that “the anger of a young girl who is harassed, humiliated and treated cruelly in her matrimonial home and that too by the man with whom she contracted a love marriage, can very well be understood because the doors of her maternal home are closed for her.”

Conclusion 

There are two sections of people, one who supports treating children committing a heinous offence with extreme punishment argues that after the fact of their mental and physical capacity to commit the crime becomes clear, even children of 16-18 years of age should be prone to be in the criminal justice system as adults. Another voice speaks for the reformative welfare of children and asks to maintain the sanctity of the Juvenile Justice Act. They argue that it isn’t overruling the objective of the Juvenile Justice Act by treating children below 18 years of age as adults for whatever purposes. 

Both of these opinions received the validation of jurists and scholars. Therefore, it becomes very crucial to handle this subject of great importance with utmost caution, and thus, the JJ Board must consider the welfare of children while ordering anything after a preliminary assessment. A balance must be struck between two extreme opinions. While the provisions for the treatment of children as adults must not be abolished, considering the well-being of society, but when giving such an order, the welfare of children must be considered, and chances for reformation must be examined. 

Frequently Asked Questions (FAQs) 

Whether the commencement of preliminary assessment is deprivation of natural justice?

As of now, no judicial interpretation is made regarding preliminary assessment under Section 15 of the Act being against the principle of natural justice. Arguments both against and in favour are made in this regard. However, the Indian judiciary has called upon the central government, the State Commission for Protection of Child Rights and the National Commission for Protection of Child Rights to issue appropriate guidelines to assist the Board in the preliminary assessment. 

Whether or not Juveniles can be punished with the death penalty for heinous crimes?

There is no such bar for capital punishment to Juveniles. After the recent amendment to the Juvenile Justice Act in 2015, juveniles from the age group of 16-18 might be treated as adults if they commit heinous offences. Therefore, some offences might attract a death sentence in the same manner it is given to an adult person. 

However, capital punishment for juveniles is avoided to a great extent. It is opined by the Supreme Court in various cases that a juvenile can’t be granted a death sentence on being accused of Death, rape or any other heinous crime. Retributive theory and deterrent theory of crime should be applied more often to Juvenile cases. 

Provision for preliminary assessment is added in which year?

Though, Juvenile Justice Act came into existence in the year 2000, which gives protection to children in need and provides for reformative treatment to children in conflict with the law. It is after the Nirbhaya case, the Act got a new form in the year 2015 and the provision for preliminary assessment got added under Section 15, which inter alia provided for considering some children as adults for the trial of the case. 

References 

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