This article is written by Kishita Gupta from Unitedworld School of Law, Karnavati University, Gandhinagar. This article deals with the circumstances under which the JJ Act 2015 treats a child as an adult.
Table of Contents
Introduction
In terms of beliefs, viewpoints, and moral and ethical standards, society has changed dramatically. What was deemed immoral a decade ago is no longer thought so. The desire for a better life, more opportunities, and comfort has opened up new avenues for development. However, the same objectives have pushed us to a fast-paced lifestyle with less time for ourselves and personal reflection. Children have been affected by these societal and individual developments. They are now subjected to an ever-increasing racing, competitiveness, and stress in order to improve their performance in every field, which has added to the complexity. Since 2015, India has had a new law that allows the treatment of juveniles above 16 years of age to be treated as adults. This change brought about various objections as well. This article will be dealing with the provisions of Indian laws on the treatment of children as adults.
Introduction to the JJ Act, 2015
The Juvenile Justice (Care and Protection of Children) Act, 2015 (2015 Act) was passed by the Parliament on December 22, 2015, ushering in a whole new regime for minors over the age of sixteen who are accused of committing serious crimes. The horrible rape of a young student in 2012 provided the backdrop for its launch. The law was justified by the government as a deterrent to potential juvenile offenders. The gang rape and murder of a female physiotherapy intern in Delhi in December 2012 by six men, one of whom was a seventeen-year-old juvenile, reignited the debate over juvenile age limits. Under current legislation, the maximum sentence that could be imposed on minors was three years in a remand home, regardless of the seriousness of the offence.
The Supreme Court supported the validity of the JJ Act, 2000, and the desirability of setting the age of juvenility at 18 years in the cases of Salil Bali v. Union of India (2013) and Dr Subramanian Swamy v. Raju (2014). The Committee on Criminal Law Amendments, chaired by Justice J.S. Verma, was established to look into the flaws in the current criminal law framework governing sexual assault against women. The Committee flatly refused to lower the age of minors to sixteen years old. Instead, it argued that there was an urgent need to reform and restructure the existing juvenile justice and welfare system and that the 2000 JJ Act should be enforced more strictly. It found no justification in lowering the age of criminal responsibility for juveniles for specific offences, citing, among other things, the fact that recidivism had decreased from 8.2% in 2010 to 6.9% in 2011.
The government, however, ignored these suggestions and responded to public demand by enacting the Juvenile Justice (Care and Protection of Children) Act, 2015, which aims to set deterrence requirements for juvenile offenders while also preserving victims’ rights. The 2015 Act distinguishes between minor, serious, and heinous offences, and proposes that juvenile offenders between the ages of sixteen and eighteen who commit “heinous offences” be tried as adults in the criminal justice system. The 2015 Act makes it legal for juveniles over the age of sixteen to be transferred to adult courts if the Juvenile Justice Board (‘JJB’) determines that the juvenile’s level of maturity shows that he committed the heinous crime as an adult rather than a child.
In 2016, the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 (JJMR) were also amended and introduced according to the JJ Act 2015. Another important legislation in India in the protection of children is the Protection of Children from Sexual Offences Act 2012.
Conditions when a juvenile is shifted out of the juvenile justice system
According to Section 15(1) of the JJ Act, 2015, the procedure for determining whether a child in conflict with the law should be denied juvenile justice protection should begin only when the child is accused of committing a heinous offence and has finished or is beyond the age of sixteen.
Heinous offence meaning
The JJ Act of 2015 divides offences into three main categories: petty offences, serious offences, and heinous offences. Treatment of a child in conflict with the law is based on the offence the child is alleged to have committed, which was introduced for the first time in juvenile justice legislation under the JJ Act, 2015, wherein the treatment of a child in conflict with the law is based on the offence the child has allegedly committed. As a result, determining the type of offence is critical, particularly in the case of “heinous offences,” since children in conflict with the law may indeed be tried as adults under Section 18(3) of the JJ Act, 2015.
The term ‘heinous offences’ as per Section 2(33) of the JJ Act 2015 refers to crimes for which the Indian Penal Code, 1860 or any other law in force stipulates a minimum sentence of seven years in jail or more. A minimum duration of incarceration of seven years or more is required for an offence to be classified as a “heinous offence.” The crime of ‘rape’, which is punishable by imprisonment “for a duration of not less than seven years, but which may extend to life imprisonment,” would be considered a ‘heinous offence’ because the minimum sentence is seven years in jail.
When an alleged crime committed by a child cannot be rigorously understood within any of the categories set out in the JJ Act, 2015, it should be viewed as falling within a category that favours the child who is in confrontation with the law.
The Supreme Court has held in a very recent case of Shilpa Mittal vs the State of NCT of Delhi (2020) that an offence that does not carry a minimum penalty of seven years cannot be considered terrible. However, in light of the foregoing, the Act does not address the 4th category of offences: the maximum sentence is more than 7 years in prison but no minimum sentence or a minimum sentence of less than 7 years is provided. These offences shall be treated as “serious offences” within the meaning of the Act and dealt with accordingly until Parliament takes the call.
Determination of age of a juvenile
For a child in conflict with the law to be moved out of the juvenile justice system, he or she must have completed or been above sixteen years old. As a result, in every case involving a juvenile accused of committing a “heinous crime,” the JJB must determine whether the child has reached the age of sixteen. In terms of a preliminary assessment, Rule 10A (1) of the JJ Model Rules, 2016, provides, “The Board shall determine whether the child is sixteen years of age or older in the first instance.” The determination of age at this period must be done carefully since the consequences are severe: a juvenile could be regarded as an adult if an error is made.
If a case is brought before the Magistrate and the accused looks to be under the age of 21, an inquiry into the accused’s age on the day of the occurrence should be conducted before proceeding with the trial or an inquiry. These remarks were made in relation to the West Bengal Children Act, 1959. The Supreme Court stated in a case involving the Bihar Children Act 1982, “Before parting with this judgment, we would like to re-emphasize that when a plea is raised on behalf of the accused that he was a ‘child’ within the meaning of the definition of the expression under the Act, it becomes mandatory for the Court, in case it entertains any doubt about the accused’s age, to hold a hearing.”
The Madhya Pradesh High Court in the most recent case of Budhiya vs the State of Madhya Pradesh (2021) has denied bail to a 15-year-old juvenile who is accused of raping a little girl aged 10-11 years old and leaving her bleeding for an extended period of time. The Bench stated that because rape is a carnal crime, it can only be done if the perpetrator has explicit knowledge of the crime, and declined to concur with the Probationary Officer’s view that rape can be committed due to ignorance. Importantly, the Court noted that because the age of a child in heinous crimes is still preserved below 16 years under Section 15 of the Juvenile Justice Act of 2015, it provides delinquents under the age of 16 years a free hand to perpetrate heinous crimes. In this case, the Court noted that, although committing a horrific crime, the petitioner would only be tried as a juvenile because he is under the age of 16, as required by Section 15 of the 2015, Act.
In the case of Master Bholu vs State of Haryana (2020), the determination of the age of the child, whether the child in conflict with the law is still left after 3 years of the happening of the offence. In this case, even the bail is denied to the juvenile by stating that right now the decision is left to be made about whether the treatment of the child in conflict with the law should be done as an adult under the JJ Act 2015.
In what could be the first case under the modified JJ Act 2015, a sessions court in Jhabua, Madhya Pradesh, sentenced two teens to life in jail for the murder of a 16-year-old. Radhu Nana Palia was allegedly stabbed by two kids for a pittance of Rupees 500 hundred. The two accused were sent to a correctional facility, where they were found to be “physically and mentally fit” and “aware of the consequences of their actions.” A charge sheet was filed against them after they were found to be “physically and mentally fit” and “aware of the consequences of their actions.” They were sentenced to life in prison.
Procedure to be followed by the Juvenile Justice Board
Standards applicable for preliminary assessment
To begin with, it is critical to state that any legislation restricting a person’s personal liberty must be ‘fair, just, and reasonable,’ and must be construed as such. The ‘waiver’ of a child who is in conflict with the law entails the denial of personal liberty since the juvenile is incarcerated in a ‘place of safety.’
The procedure to be followed by the JJB once the prerequisites of a “heinous offence” and age are met is laid out in Section 15(1) of the JJ Act, 2015. Only after a JJB’s “preliminary assessment” can a child be sent into the criminal court system for adult treatment. The purpose of the “preliminary assessment” is to determine the following:
- The child’s mental and physical capability to commit the alleged offence;
- The child’s ability to understand the offence’s consequences;
- The circumstances in which the child allegedly committed the offence.
The legislature has established that “the Board may take the aid of professional psychologists or psycho-social workers or other experts” because the JJB is not qualified to judge the child’s mental competence to conduct the offence.
Assessment of the capacity to commit an offence by the juvenile
The legislation recognizes that the JJB cannot assess whether a child in conflict with the law has the “mental and the physical capacity to commit such offence” and the “ability to understand the consequences of the offence,” so it “provided that the Board may take the assistance of experienced psychologists or psycho-social workers or other experts” for such an assessment.
The limitation is likewise reiterated in Rule 10A (2) of the JJ Model Rules 2016, with the caveat that such professionals must “have expertise working with children in difficult circumstances.” The presence of this certification indicates that the child’s offending is a result of his or her difficult circumstances and that such specialists are capable of identifying developmental needs gaps.
While considering the constitutionality of treating all children equally in the juvenile justice system, regardless of the severity of the offence, the Supreme Court in the case of Subramanian Swamy vs Raju (2014) cited brain science studies. It was noted that the legislature had placed all persons under the age of 18 in a separate category to be treated differently, with a separate process of inquiry, trial, and punishment, and that this was done to fulfil India’s international obligations. It concluded that, even if there are inequalities between people under the age of 18, such classification is not illegal because it is linked to the goal of juvenile justice legislation.
Orders to be passed after the preliminary assessment
JJB should issue a preliminary assessment order after weighing all three factors: the child’s mental and physical capacity to commit the alleged offence, the child’s ability to understand the consequences of the offence, and the circumstances in which the child allegedly committed the offence.
The JJB may transfer a child in conflict with the law into the criminal justice system after completing a preliminary assessment and giving the child a hearing under Section 18(3) of the JJ Act, 2015: “Where the Board after preliminary assessment under Section 15 passes an order that there is a need for the said child to be tried as an adult, then the Board may order the transfer of the case to the Children’ Court which have the jurisdiction to try these kinds of offences.”
When passing an order under Section 18 (3), all three members of the JJB must be present to ensure a majority ruling. If the Principal Magistrate and one social work member are present, the social work member who has a different perspective should record his or her dissent so that the differing viewpoints can be brought to the appellate court’s attention. Giving the reason for such an order is also mandatory by the JJB.
Transfer to the Children’s Court
The “trial” of the case is transferred “to the Children’s Court having the competence to try such offences” under Section 18(3) of the JJ Act, 2015. Children’s Court means a court established under the Commissions for the Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court established under the Protection of Child Rights Act, 2012 (32 of 2012), wherever such courts exist and where such courts have not been designated, the Court of Sessions having jurisdiction to try offences under the Act.
When a child in conflict with law is transferred to the criminal court system, he or she loses access to social work intervention and rehabilitative programs that are provided under juvenile justice legislation.
The trial of a case lodged under the POCSO Act shall be dealt with by the Special Court formed under that Act, according to Section 20(2) of the JJ Act, 2015, and the same court is competent to conduct trials of an adult accused or a child in conflict with the law. It is anticipated that a court that hears cases involving both adults and children will find it difficult to go back and forth between punitive and rehabilitative approaches, putting the interests of children in conflict with the law at risk.
Under the Commissions for Protection of Child Rights Act and the POCSO Act, a Sessions Court is classified as a Children’s Court and a Special Court; nevertheless, such courts are not permitted to provide rehabilitative services or social work involvement. When a child in trouble with the law is transferred to the criminal court system, he or she loses access to social work intervention and rehabilitative services that are available under juvenile justice legislation.
Role of the Children’s Court in dealing with a child in conflict with the law
It is important to underline at the outset that the General Principles to be observed in the administration of the JJ Act also apply in the Children’s Court. The Children’s Court is governed by the Juvenile Justice (Care and Protection of Children) Act of 2015. Simply because a child in conflict with the law has been sent to the criminal justice system does not indicate that he or she should be treated as an adult in every way.
When the case of a child in conflict with the law is transferred, the Children’s Court must decide whether “there is a need for the child to be tried as an adult” or whether “there is no need for the child to be tried as an adult and the Board may undertake an inquiry.”
- If the Children’s Court makes an order under Section 19(1)(i) of the JJ Act, 2015, it must hold a trial and issue appropriate orders “while taking into account the child’s special needs, the principles of a fair trial, and preserving a child-friendly environment.” A juvenile who is found guilty by the Children’s Court will be transported to a “safe location.”
- If the Children’s Court makes an order under Section 19(1)(ii), it must hold a JJB hearing and issue orders under Sections 18(1) and (2) of the JJ Act, 2015. Because the case of the child has not been referred to the JJB for inquiry under Section 8(2), the Children’s Court can employ the JJB’s powers “when the proceedings come before them under Section 19.”
- The Children’s Court must guarantee that, in the case of a child in conflict with the law, the final order includes an individual care plan for the child’s rehabilitation, which includes follow-up by the probation officer, the District Child Protection Unit, or a social worker.
- The Children’s Court shall ensure that the probation officer, the District Child Protection Unit, or a social worker, as required, submits a periodic follow-up report every year to evaluate the child’s progress in the place of safety and to ensure that the child is not subjected to any form of ill-treatment.
“No child in conflict with the law shall be sentenced to death or life imprisonment without the possibility of release,” according to Section 21 of the JJ Act, 2015. As a result, while punishment for an offence may be “death” (Section 302, IPC) or “imprisonment for life, which may mean imprisonment for the remainder of that person’s natural life” (Section 376-A, IPC), such a sentence cannot be imposed on a child.
Appeals against the orders of preliminary assessment
An appeal from a preliminary assessment order issued by the JJB may be preferred by a child in contradiction with the law. Section 101 of the JJ Act 2015 deals with the appeals. “Subject to the terms of the JJ Act, any person aggrieved by an order made by the Board under the JJ Act may, within thirty days of the date of such order, file an appeal to the Children’s Court,” according to Section 101(1). As a result, the child in conflict with the law, the State, and the victim has the right to appeal. The court has the authority to “consider the appeal beyond the expiration of the abovementioned thirty-day period if it is satisfied that the appellant was prevented from filing the appeal in time by sufficient cause.”
The Supreme Court has consistently held that courts should take a liberal approach to delay “refusing to tolerate delay can lead in a praiseworthy matter being tossed out at the very target level and end up causing of justice being defeated”; “when significant justice and technical requirements are pitted against one another, cause of substantial justice needs to be preserved”; “when the delay is excessive, cause of substantial justice deserves to be preserved”. Further, “when the delay is not attributable to the petitioner’s lack of bona fides, but rather to the party acting in a particular manner based on the improper advice supplied by his legal adviser, he cannot be considered guilty of carelessness, excluding him from pleading sufficient reason.”
The appeal “against the order of the Board passed after making the preliminary assessment into a heinous offence under Section 15 of the Act” is particularly addressed in Section 101(2). In addition to the provisions of sub-section (1) and its proviso, sub-section (2) states that “the Court may, in resolving the appeal, seek the aid of experienced psychologists and medical professionals other than those whose assistance has been acquired by the Board.” The Act stipulates that an appeal must be resolved within 30 days to ensure a timely conclusion.
General confusion regarding the forum of appeal
There is some ambiguity as to which forum an appeal will be heard in.
- The appellate court is referred to as the ‘Children’s Court’ in Section 101(1) of the JJ Act, 2015, while the proviso to Section 101(1) refers to the appellate court as the ‘Court of Sessions.’ The appellate court is referred to as the ‘Court of Sessions’ in Section 101(2). However, under sub-Sections (1) and (2) of Section 101, Rule 13 of the JJMR, 2016, refers to the appeal court as the “Children’s Court.” The terms “Children’s Court” and “Court of Session” appear to be interchangeable in the statutes dealing with appellate courts.
Important factors to enable a child to appeal an order
Two factors are required for a child in conflict with the law to appeal an order made under Section 18(3) of the JJ Act, 2015 –
- A copy of the order;
- Legal representation in front of the appeals court.
The child should be given a copy of the order issued under Section 18(3) as soon as possible, according to Rule 10A(4) of the JJMR 2016. Unfortunately, most children are unable to dispute the order transferring them to the criminal court system due to a lack of legal representation.
Is it possible for a child who is in trouble with the law to appeal an Appellate Court’s preliminary assessment order
“No second appeal shall lie from any order of the Court of Session, passed in appeal under this Section.” A child in conflict with the law is forbidden from appealing an order of the appellate court. However, under Section 102 of the JJ Act, 2015, such a child may submit a ‘revision’ with the High Court – “to satisfy itself as to the validity or propriety of any such decision and may pass such order in respect thereto as it sees fit.” The High Court should offer the child in conflict with the law “a reasonable opportunity to be heard” when an order on a preliminary assessment by the appellate court is challenged in Rules revision by the State or victim.
Because the appeals court (Children’s Court) and the revision court (High Court) have the same powers as the JJB97, they can issue suitable orders under the JJ Act, 2015. To ensure that the provisions relating to “appeal” and “revision” do not only exist on paper, but the child’s lawyer should also allow the juvenile in dispute with the law to benefit from them. The SLSA/DLSA should also play an enabling role by appointing lawyers to offer legal representation to the child at various levels.
International Law perspective on the adult treatment of juveniles
International treaties such as the United Nations Convention on the Rights of the Child (UNCRC) (1989), the Beijing Rules, and the Havana Rules, which India has signed and ratified, state that children under the age of 18 cannot be sentenced to death or life imprisonment under Rule 17.2 of the Beijing Rules and Article 37(3) of the Convention on the Rights of the Child, and the new JJ Act, 2015 provides the same under clause (21) of Section 2 of the Act. As a result, neither international treaties nor national law restricts less harsh punishments than the death penalty or life imprisonment.
Furthermore, under Point 71 of General Comment No. 10 on the UNCRC, the response to an offence should always be proportional not only to the circumstances and gravity of the offence, but also to the child’s age, lesser culpability, circumstances, and needs, as well as to the society’s various and particularly long-term needs.
The punishment that best serves the juvenile’s interests while simultaneously serving the interests of society should be awarded, taking into account his socio-cultural-economic condition and background. The goal of the punishment should be to reintegrate the youngster into society. During the child’s stay at the place of safety, the new JJ Act, 2015 under Section 19, provides for reformative services such as educational services, skill development, alternative therapy such as counselling, behaviour modification therapy, and psychiatric assistance.
The Constitution of India‘s Article 51-A distinguishes between international law and treaty commitments. If it is understood that international law is referred to as customary international law, which further stands for a law that is accepted as a standard law practice adopted by nations around the world, then the JJ Act, 2015 is in line with international practice in terms of punishment for heinous crimes committed by juveniles. When international customary law is considered, the position in the United States, the United Kingdom, and Canada conclude that minors can be tried under criminal law for committing grave and egregious crimes.
Though the concept of mens rea, or a guilty mind, is still difficult to prove. According to several researchers, the human brain continues to develop until the age of 18. But the key to grasping the gravity is that research shows that by the age of five, the human brain has acquired 85 percent of its personality, talent, and intellectual potential, the brain recognizes anti-social behaviour, and cognitive faculty has developed. As a result, the JJ Act 2015 is perfectly warranted. As a result, neither international law nor international agreements prevent India from treating minors as adults in specific circumstances.
Conclusion
The law defines the offences that it punishes in such a way that the offender’s state of mind or will is aware that such a course of conduct would result in an infringement of the law and punishment. A juvenile over the age of 16 has sufficient maturity to understand the nature of the act done to form mens rea and should not be assumed to be too innocent. A rehabilitative strategy that incorporates indeterminate punishment and restorative principles would strike the perfect balance between the juvenile offender’s welfare and public safety concerns. It would also accomplish the deterrence goals that the 2015 Act intends to express by adopting a restorative approach. As a result, principles of restorative justice should be added as an obligatory second limb to the creation of a complete juvenile justice strategy in India, while maintaining the emphasis on rehabilitation.
References
- juvenile maturity and heinous crimes: a re-look at juvenile justice policy in India
- Handbook for Advocates working with children in conflict with Law
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