This article is written by Shreya Mehta, a student of Symbiosis Law School, Pune.

Introduction

Whenever an imbalance is caused within the society, punishment is used as a tool to take revenge to bring peace in the society and correct the offender. However, it has been observed that the children when found to be treated as par with other adults, the whole objective of reformation is demolished and make the children in conflict with law more driven to the criminal activities. Thus, a separate juvenile legislation exists in order to punish them for the crimes committed by them in India as well as other countries across the globe.

The infamous case of Nirbhaya Delhi gang rape case which shook the entire country brought in certain amendments to the existing laws pertaining to delinquency. One of the major changes which were brought in the Juvenile Justice (Care and Protection of Children) Act, 2015 is that trial of delinquent above the age of sixteen as an adult in Sessions Court from Children’s Court on commission of a heinous crime. The Juvenile Justice Board which comprises a Metropolitan Magistrate or Judicial Magistrate of First Class and two social workers, after a preliminary assessment which decides whether the juvenile delinquent to transfer the case to Children’s Court or Sessions Court whereby the child is tried as an adult.

The Board assesses the mental and physical capacity of delinquents falling under this category of age who are going to be tried as adults in the criminal justice system. Moreover, the child who is alleged to be in conflict with law may also be released on bail on surety of certain conditions under the supervision of a probation officer or under the car of a fit person. Section 18 of the Act of 2015 lays down that the child in conflict with law may be released on probation on good conduct and the child who is kept under Children’s Home or Special Home can also be released from the institutional home on certain conditions which shall be discussed thoroughly in the present paper.

Transfer of Child under the Act

Punishment governs mankind and it protects the individuals in engaging further into such illegal activities which hamper the social and peace balance in the society. The laws dealing with children’s rights, protection and care, education must not be blurred with the laws pertaining to adults and that is why there lies a separate jurisprudence and legislation when it comes to dealing with the crimes committed by a child below the age of eighteen years. However, with changing times and the incidents to which children are being exposed these days, does not leave them with all innocence but has corrupted their mind at a large extent. This can be illustrated with many examples wherein it can be seen that the juveniles have been involved in commission of heinous crimes like rape of a woman, crimes against the nation, murder and many other serious crimes.

One such incident on a cold evening of 2012 which shook the entire nation wherein a young para- medical student was brutally gang- raped by five people out of which one was of seventeen years. The law in relation to juveniles at that point was Juvenile Justice (Care and Protection of Children) Act of 2000 which protected all the children below eighteen who were in conflict with law to be tried before the Children’s Court with no exception. The earlier law was not able to be proved effective as it was not able to curb the criminal behaviour among the criminals who had attained maturity to understand the nature of the crime and yet were involved in heinous crimes. However, it is worth noting that law being dynamic, needs to be changed with catering needs of society. Thus, a dire need to amend the Juvenile legislation arose where such juvenile delinquents cannot hide behind the blanket of protection as offered by the Act. This inadequacy of law came to be resolved when children in conflict with law who belong to the age group of sixteen to eighteen but have committed a crime which has punishment of seven years or more shall be treated as par as adults in the criminal justice system.

The present Act of 2015, divides the crime into three categories namely petty offences, serious offences and heinous offences with an intention of trying delinquent juveniles above the age of sixteen but below eighteen if found allegedly engaged in commission as adults in the Sessions Court. The judges who bear the sword of justice must not hesitate in awarding the sentence if the offence demands so. The principle behind introduction of such amendments in the Act of 2000 was that the ‘juvenile in conflict with law’ must not be spared solely on the grounds of juvenility and such criminal tendencies as exhibited by the juveniles must be segregated and must not be allowed to hide behind the shield of this benevolent legislation.  

As per Section 15 of the Act along with Section 18(3) of the Act, the Board conducts an assessment which further decides on the question of sending a delinquent to the sessions Court or not. These particular Sections are applicable only to juvenile delinquent who fulfils two conditions, firstly the alleged crime must constitute a ‘heinous crime’ as per definition clause of the Act and secondly the alleged crime must be constituted by a child between sixteen years of age to eighteen years at the time of commission of the offence. The transfer to Sessions Court for the conduct of their illegal acts is necessary when they are able to understand the nature of the act as committed by the delinquent. The assessment by the Board is done only after the FIR is filed against the juvenile. 

In case of production of the child before the Board, the assessment as per the maturity level with regards to understanding the nature of offence has to be completed within the span of three months from the first production of child before the Board. The intention behind the Justice Juvenile Act is to achieve betterment of the juvenile offenders and not provide them a shelter home where they can be exempted for the crime they have engaged themselves into. Such transfer to the Sessions Court has grave implications and consequences with regards to the punishment on the juveniles above sixteen years for having been charged for heinous crimes.

However, there exists a discrimination with these two sections which is also pertinent to notice at this juncture. As per the preliminary enquiry as held by the Board two persons belonging to the age group of sixteen to eighteen years can be tried in two different courts for the same nature of commission of heinous crime, just on the basis of the report as assessed by the Board. This clearly violates the principle of fair trial and thereby Article 21 of the Constitution of India. 

Release of Child under the Act

The objective of having a separate legislation for the juveniles is to reform and rehabilitate these young offenders. The intent of the legislature behind enacting the Special Act is; and not retributive, providing for care, protection, development, rehabilitation and reintegration of children in conflict with law into mainstream society. The Board is also entrusted with the responsibility of releasing the child irrespective of their age and crime committed to be released on probation of good conduct.

As per Section 18(e) and (f) the release on probation of good conduct is to be done under the care of parent, guardian or any other fit person on the execution of a Bond with or without surety as the Board may require for the well- being of the child for any period but such period shall not exceed three years. The approach which shall be prevailing in the criminal justice system is reformation rather than branding an offender as criminal for the rest of his life. The approach which the present Act follows is no more different where primary importance is given to protection, reformation and rehabilitation of the child is given. Periodic annual evaluation of the child needs to be undertaken by the probation officer or District Child Protection Unit or a social worker on the well- being of the child.

Even when the child in conflict with law but not done with serving of his punishment, attains the age of twenty one years, he can either be released or be directed to complete the remainder of punishment in the jail; but this is done in accordance with the Children’s Court wherein the probation officer or District Child Protection Unit or a social worker is to evaluate the progress of the delinquent. While evaluating the progress certain parameters are considered like the reformation of the juvenile delinquent. Each State Government shall also maintain a list of monitoring authorities and monitoring procedures as may be prescribed. Thus, it is imperative that these social workers must visit observation homes, special homes and other institutions where the juveniles are kept. The goal is to achieve reformation and rehabilitation of the young offenders after serving their punishment and mingling them with the society. They work as reformers and healers for the betterment and colourful future of the child. 

When the Board considers the release of the child either absolutely or on such conditions as it may think fit to impose, permitting the child to live with parents or guardian or under the supervision of any authorised person named in the order, willing to receive and take charge, educate and train the child, for some useful trade or calling or to look after the child for rehabilitation and on failure of fulfilment of such conditions, the authorities can put back the young offender back in the institution. If the child is released on temporary basis, then such release shall be inclusion of his serving time in the institution as an offender, and failing to fulfil the conditions shall place the juvenile back in the shelter home or other institutions. 

Conclusion

In words, of Justice Krishna Iyer, “If every saint has a past, every sinner has a future, and it is the role of law to remind both of this.” The young offenders shall not be protected behind the shield of the Act which proves to be quite in favour of them irrespective of the gravity of the delinquency. The shield of such benevolent Act must be given to the children who are unable to understand the seriousness of the crime committed. Thus, with the new amendments brought in now young offenders having the knowledge and maturity of the heinous crime committed be charged as an adult, such amendment proves of utter importance in the time where due to exposure to things children have lost their innocence and are matured enough to understand the nature of the crime. However, such strict provisions do take away the chance of care, protection and reformation of the young offenders thus the Act is still entrusted with the release of the juvenile delinquents. The restorative justice system shall be the paramount objective of this special legislation.