By Shishir Tiwari & Gitanjali Ghosh
The Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act 2015), which was passed on 15th March 2015 and 22nd December 2015 by the Lok Sabha and Rajya Sabha respectively, has got presidential assent on 31st December 2015. The Act has already come into force as well from 15th January 2016 and now, this Act is the law of the land in the realm of juvenile justice and has repealed Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act 2000). It is to be noted that the Rules for its implementation have not yet been formulated. This new law not only goes against the basic tenets of juvenile justice but will result into juvenile injustice.
A Law of Juvenile Injustice
The JJ Act 2015 is different in many ways from the erstwhile Act. However, one of the provisions which sounds like death knell to juvenile justice is to try and punish certain categories of children as adults for ‘heinous offences’ i.e. the offences that are punishable with imprisonment of seven years or more. Unlike the old law, which treats all children below 18 years of age alike/ equal, the new law differentiates a child who is alleged to have committed heinous offence and has completed 16 years but has not completed 18 years of age on the date of commission of such offence from other children. In cases concerning such child, as per Section 15(1) of the JJ Act 2015, the Juvenile Justice Board has to conduct a preliminary assessment with regard to the physical and mental capacity of the child, ability to understand consequences of the offence and his circumstances. And if the Juvenile Justice Board, after conducting the preliminary assessment, arrives at the conclusion that there is a need for trial of the said child as an adult, it has been given the option to transfer the matter to the Children’s Court, i.e. the Sessions Court having jurisdiction to try heinous offences. If after trial, the child is found guilty of committing a heinous offence by the Children’s Court, then such a child is proposed to be sent to a place of safety for reformation and rehabilitation up to the age of 21 years. After completing the age of 21 years, an evaluation of the child is to be conducted by the Children’s Court after which the child is either released on probation or transferred to an adult jail for the rest of the term of imprisonment.
This whole procedure is problematic and strikes at the very idea of juvenile justice. Evolved under the international child rights law, the juvenile justice system is based upon the fact that mental, cognitive and emotional capacity of a child is not sufficiently developed till he/she has attained the age of 18 years and, therefore, he/she should not be held responsible for the omissions/commissions made. He/she should be treated differently and not at par with adult criminals. One of the cardinal principles of the juvenile justice system has always been to treatall children who have committed offences within the juvenile justice system alone and differential treatment meted out to children aged 16 and above, alleged to have committed a heinous offence, by sending them to the adult criminal justice system as prescribed in the JJ Act 2015 certainly corrodes this principle.
The juvenile justice system is not based on retributive justice, rather, it relies upon the concept of restorative justice in dealing with child offenders. Its main objective is to reform, rehabilitate and reintegrate the child with a view to assisting him/her to assume socially constructive and productive roles in society. Such realization eludes under the new law. A child involved in heinous crimes such as murder and rape is more amenable to reforms and should be given a chance of fresh start in life. Conversely, under the new law he/she gets jail as punishment. Chances of reformation of such child will be very bleak as he/she will be lodged in jail with other dreaded criminals. Transferring a child in conflict with law on attaining 21 years of age from a place of safety to jail is also in violation of established principle of juvenile justice which strictly prohibits co-mingling of a child offender with hardened criminals.
Not in Consonance with International Law Norms
The JJ Act 2015 is not in line with the international law occupying the field of juvenile justice. Rather, it contravenes India’s commitments to various international treaties and standards. Particular reference can be made of the Convention on the Rights of the Child, 1989 (CRC), to which India became a party on 11thDecember 1992, and the Committee on the Rights of the Child’s General Comment No. 10 of 2007 entitled ‘Children’s rights in juvenile justice’, which is an authoritative interpretation of the provisions and principles contained in the CRC.
Article 1 of the CRC defines a child as a person who has not completed 18 years of age. Article 2 incorporates the principle of non-discrimination and puts a responsibility on the State Parties to the CRC to treat all children equally. Explaining this principle of non-discrimination, Paragraph 37 of the General Comment categorically states that principles relating to juvenile justice should apply to all persons below 18 years of age, without exclusion. In this regard, Paragraph 38 of the General Comment recommends the State Parties to change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years. Paragraph 38 specifically addresses those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children be treated as adult criminals.
A conjoint reading of aforementioned provisions clearly demonstrates that the provisions of the JJ Act 2015, which prescribe for the trial and punishment of children between 16 and 18 years as adults for their alleged commission of heinous offences are in violation of the CRC.
One should also realize that the old law i.e. JJ Act 2000 was enacted to comply with the recommendations made by the Committee on the Rights of the Child. Considering the initial report submitted by India, the Committee, in its concluding observations of 12thJanuary 2000, emphasised that India should consider raising the age of criminal responsibility and ensure that persons under 18 years are not tried as adults. In this backdrop, it is astonishing to note that the JJ Act 2015 once again changes the settled position and replaces a law which was more progressive and reformative in nature.
A Law Based on Erroneous Assumption
Enactment of the JJ Act 2015 was justified on the premise that the number of children apprehended for heinous offences, especially in the age group of 16-18 years, has gone up significantly in the recent times. It was contended that such a law would act as a deterrent for child offenders committing such offences. Though one can always question the efficacy of harsh punishment as a deterrent, the claim regarding manifold increase in the number of heinous crimes committed by children is far from truth. As per the National Crime Records Bureau’s annual publication entitled ‘Crime in India 2014’, the number of cases registered under various sections of IPC crimes against juveniles in 2014 have increased by 5.7% over 2013 as 31,725 cases under IPC crimes were registered against juveniles during 2013 which increased to 33,526 such cases in 2014. Irrespective of this growth, share of juvenile crime in total crime has remained static at 1.2% in 2012, 2013 and 2014. Crime figures also show that rape constituted only 5.9% of total juvenile crimes. Moreover, rape by juveniles constituted only 4.7% of total rapes committed in 2014.
The JJ Act 2015 is the outcome of misplaced clamour of retribution against children involved in the commission of heinous offences. In the name of securing victims’ rights, the JJ Act 2015 strikes at the heart of juvenile justice system. There is no double thought about the importance of victims’ right but sacrificing child rights for that would have more disastrous consequences for the society as a whole. The Act provides a lee-way to the State to shift its responsibilities as mandated under the juvenile justice system on the shoulders of children. The State may readily claim that a child involved in the commission of a heinous offence is not amenable to reform and should be sent to jail. At a time when the State is shrugging off its responsibilities as a welfare state and pushing forward the neo-liberal agenda, this apprehension cannot be overlooked. Additionally, when one examines the State’s track record in the implementation of the JJ Act 2000, this concern appears very genuine. To further aggravate the matter in hand, the State has brought the law into force without even framing the Rules which are pertinent for the proper implementation of the law. To sum-up, by enacting the JJ Act 2015, the State has taken a retrograde step. With this piece of legislation, the dark era of juvenile justice has begun in India.
Shishir Tiwari teaches Law at the Department of Law, NEHU; Gitanjali Ghosh teaches Law at National Law University, Assam and is associated with its Centre for Child Rights.