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India has the distinction of having the largest child population of in the world, with approximately 450 million population under the age of 18. This unique obligation was acknowledged by India in the year 1986, through the landmark Juvenile Justice (Care and Protection) Act (hereinafter JJ Act) to govern the ‘Children in Conflict with Law’ (hereinafter CCL) and “Children in need of Care and Protection of Law”. To this day, Act has been amended four times in 2000, 2002, 2006 and 2015 for the purpose of bringing together all aspects of the interaction between juveniles and the legal system. Sadly, the 2015 amendment was a kneejerk reaction to public outrage created after the 2012 Delhi gangrape case and was made without sufficient deliberations over the issues. Consequently, it has dismantled the settled principles and conventions of the justice delivery system.
WHAT SECTION 15, JJ ACT SAYS?
Section 15 of the JJ Act, 2000 adhered to the reformative theory of punishment which was clearly reflected in the form of punishments provided under it (ranging from a mere admonition to maximum 3 years of institutionalization in a Special Home). However, the 2015 amendment has tampered the reformative structure of section 15. After the amendment, two types of classifications have been made:
offences – on the basis of punishment, the offences have been divided into three types: petty, serious and heinous
juveniles – on the basis of age, juveniles have been divided into two categories – 16 years of age has been decided as the dividing line.
According to JJ Act, 2015, a child above 16 years committing a heinous offence will be examined by Juvenile Justice Board (JJB) comprising a magistrate and two social workers of whom at least one shall be a woman. The social worker to be appointed in the board should have at least seven-year experience in the field of health, education or welfare activities pertaining to children or should be a practising professional with a degree in child psychology, psychiatry, sociology or law. JJB will decide on the physical and mental capacity of the child to commit the offence, his ability to understand the consequence of the offence and the circumstances in which he committed the offence. In case the preliminary enquiry accesses the child to be physically and mentally capable, he would have to undergo the rigours of trial under the legal regime like an adult and will be punished accordingly.
BACKGROUND OF THE AMENDMENT
On the infamous date of 16th of December 2012, a young lady was raped and tormented in the most gruesome manner possible. As if rising from a deep slumber, widespread protests were held throughout the country to bring perpetrators to book and obtain justice for “Nirbhaya”.
With the unfolding of events, Indian media came into action. One of the accused is a 17-year-old juvenile was widely telecasted. There were uncorroborated rumours that the dastardly act of inserting objects into the private parts of ‘Nirbhaya’ was committed by him. The entire picture was painted as if the Indian legal system has no hardship for the juvenile offenders notwithstanding the grave consequences of their unwarranted acts.
This fomented into a large section of the society demanding to lower the age for juvenility. Under the mounting public pressure, the government appointed J.S. Verma committee to recommend changes in the criminal law for the expeditious and effective trial of the accused involved in sexual crimes against women. Although, the learned committee did consider the issue of lowering the age for juveniles it recommended that the age of juveniles be better not lowered from 18. Observation of the committee was in furtherance of the reformative theory of punishment and relied upon reputed scientific reports. Dismissing the petitions filed for lowering the age for juveniles the Apex court corroborated findings of the committee in the cases of Salil Bali v. Union of India and Dr Subramanian Swamy v. Raju, through Member, Juvenile Justice Board.
The reasoning presented by Verma Committee or Supreme Court could satiate public fury leading to an insurmountable pressure over the government of the day and this yielded in the amendment of section 15 JJ Act.
PROBLEM WITH THE SECTION
Section 15 of the JJ Act, 2015 is not only in conflict with the principles of constitutional law but is also possessed with the practical obstructions, which are further elaborated below:
No Intelligible Differentia– JJ Act, 2015 classifies children on the yardstick of age without any scientific backing. The different level of maturity reflected in adults and adolescents is owed to the difference in the level of growth of prefrontal cortex. The prefrontal cortex is the brain part involved in mood regulation, judgment, reasoning etc. During Adolescence period, the prefrontal cortex is in the stage of development due to which adolescent rather use amygdala for decision making which is responsible for aggressive and impulsive behaviour. There is no difference between the brain mechanism of a 16 year and a 17-year-old child. Hence, the classification is devoid of intelligible differentia necessitated under article 14 of the Constitution of India.
Opposed to the Reformative theory of Punishment- Reformative theory of punishment rests upon the belief that no one is a born cr0iminal and it is the duty of the system as well as the society to help the offender in rehabilitation. Section 15 of JJ Act, 2015 provides the possibility of trial and punishment of a juvenile as an adult in certain circumstances. As they are kept in prison with adults, it exposes them to the prison subculture. They come in contact with prison gangs. How is a juvenile with a tender mind expected to remain unaffected by all this? It reduces the chances of rehabilitation to a great extent.
Faulty constitution of JJB – The preliminary assessment of the juvenile is to be conducted by the JJB comprising of a magistrate and two social workers. The constitution of JJB is faulty on two grounds: firstly, the inclusion of the child psychologist/psychiatrist is not mandatory but optional in a board which is sitting to evaluate the mental maturity of a child and secondly, magistrate is also a member who is habitual and trained in working in the conventional legal system, so it is most probable that he will favour sending the juvenile for trial.
Mechanical working of JJB – The mechanism provided under section 15 of JJ Act, 2015 becomes even more hazardous in view of the manner of working of JJBs. There are reports of them working mechanically. For instance, Lawyer and JJ act expert Anant Kumar Asthana observed that reports of JJB are mostly cryptic, casual and cursory.
The division made in the age-group in section 15, JJ Act, 2015 without any logical, and psychological backing should be removed rather the government should focus on institutionalizing a rehabilitation centre for juvenile offenders and capitalizing and strengthening the infrastructure.
Secondly, for all other functions of the JJB under the act, it is vested with wide discretionary powers with a nominal check over on it. This is very evident from section 12 of JJ Act, 2015 where JJB is provided with wide discretion to deny bail on grounds such as “moral danger”. Therefore, a check should be made over powers of JJB as well because the results of faulty functioning of JJB are coming in front of our society in the form of Muzzafarpur Child Care Centre Sexual Assault cases.
ABOUT THE AUTHORS:
Himanshu Kumar Chaudhary is currently working on RMLNLU – UNICEF project “Strengthening Child Protection System in the State of Uttar Pradesh” in Gorakhpur Division as a Divisional Technical Resource Person. After graduating in 2017 he has been engaged with the Juvenile Justice System in providing technical support to the stakeholders for ensuring better implementation of the Juvenile Justice Act.
Anubhav Bijalwanam is currently a third-year student at Dr Ram Manohar Lohiya National Law University, Lucknow. His areas of interest include Constitutional Law, Criminal law and Public International Law.
Deeksha Gupta is currently a third-year student at Dr Ram Manoher Lohia National Law University, Lucknow. She has recently interned at the Centre for Criminal Law, NUSRL Ranchi and has a great deal of interest in Criminal law.