Whether the procedure by the board was arbitrary? And whether the 2015 amendment is
The Juvenile Justice system formulated in Winterfell provides for a special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system.
The current appeal challenges the Juvenile Justice (Care and Protection of Children) Act, 2015 which has repealed and recast the Juvenile Justice Act of 2000, on the grounds of being unreasonable, arbitrary and hence, in violation of Article 14 of the Constitution. The impugned Act has repealed and replaced the existing Juvenile Justice (Care and Protection of Children) Act, 20001 with a change in the approach towards juvenile delinquents. This change has been towards the changing nature of the crimes and offences committed by the said juveniles. Earlier, in the Juvenile Justice (Care and Protection of Children) Act, 2000 (The Act of 2000) The maximum allowed punishment under the Act of 2000 is a mere maximum punishment of 3 years in a rehabilitative center after which they are released. A juvenile can no longer be kept in the rehabilitative home for more than this period. This was the maximum allowed punishment under the 2000 Act with absolutely no regards to the gravity of the offence committed.
There has been made a classification of offences in the Act of 2015 on the basis of the gravity of the offence, i.e. petty, serious and heinous crimes. This Act of 2015 allows for juveniles falling under the age gap of 16-18 to be tried as adults in case of heinous offences (offences with a punishment allowed of more than 7 years of imprisonment).
This Act of 2015 has come into force after the public uproar of the Gang rape case of Nirbhaya. In this particular case, one of the 5 convicts was a juvenile of 17 years of age. Since at the time the act in force was The Act of 2000, the juvenile was released after spending a mere 3 years in a rehabilitative house. This could have been avoided if the Act in force was the Act of 2015.
Increasing Rate of Crimes among juveniles:
The government cited National Crime Records Bureau (NCRB) data to say that there has been an increase in crimes committed by juveniles, especially by those in the 16-18 years age group. NCRB data shows that the percentage of juvenile crimes, when seen in proportion to total crimes, has increased from 1% in 2003 to 1.2% in 2013. During this same period, the accused aged between 16-18-year olds’ crime as a percentage of all juveniles accused of crimes increased from 54% to 66%.2 The crime rate in the heinous crimes category like that of murder and rape has seen an exceptional growth. Juveniles between 16-18 apprehended for the offence of murder has gone up from 328 in 2003 to 845 in 2013, and for the offence of rape the number of juveniles apprehended between 16-18 years the number has gone up from 293 in 2003 to 1388 in 2013.
These statistics go on to show that the crime rate in the era of the 2000 Act has increased tremendously especially in the 16-18 age group and has failed as a deterrence measure against future juvenile offenders, but in contrary has provided the juveniles a protective umbrella to hide under. The Act of 2015, by making the regulations stricter by allowing juvenile offenders between the age of 16 -18 to be tried as adults and also increasing the maximum allowed punishment to be awarded to the juvenile delinquents helps in lowering the crime rate amongst juvenile offenders.
Procedure of the Board:
The provision under the 2015 Act, which provides for the Board to assess and decide whether the juvenile should be tried as an adult or not, has been duly challenged by the appellant in this appeal stating that the assessment procedure by the Board is arbitrary in nature. The 2015 Act vests the Board with the power to make a preliminary assessment of the maturity of a child above the age of sixteen, who has committed a heinous offence. The Board is required to assess the mental and physical capacity of a child to commit such offence, his ability to understand its consequences, and the circumstances in which the said offence was committed.3
These parameters are used by the Board in determination, within a period of three months4, whether the juvenile is to be tried as a juvenile or as an adult.5 The Board may use the assistance of experienced psychologists for such determination.6
If the Board, concludes in its preliminary assessment that the juvenile be tried as an adult, the juvenile is transferred to the jurisdiction of the Children’s Court. This court is empowered to determine whether there is “need for trial” of the child as an adult.7 Although the parameters for such discretion is to be exercised are absent. If the Children’s court concludes that there is no need for trial as an adult, then it conducts an enquiry as a Board, and passes appropriate orders provided for under Section 18. If the Court decides there is need for trial as an adult, as per the provisions of the Criminal Procedure Code, 1973, the child would be prosecuted and punished as an adult, thus transferring the child out of the juvenile system.
This procedure established under the 2015 Act, is of grave importance as it properly enables to distinguish between juveniles who are to be tried as adults and to be transferred to the adult criminal system under Cr.P.C. This procedure takes all due care and diligence while declaring a juvenile to be tried as an adult or not.
Not a violation of presumption of innocence-
The Counsel on behalf of respondents humbly submits that the procedure established under the 2105 Act is not violative of the Principle of Presumption of innocence. While the assessment by the board is conducted, it being only the preliminary assessment does not actually violate any right of the accused juvenile offender as there is no order being passed at the time of the preliminary assessment, only the analysis of the maturity of the accused juvenile offender to commit the offence is determined based on which the juvenile is forwarded to the Children’s Court’s jurisdiction. The Children’s Court then determines whether there is a need for trial as an adult. This determination allows for the decision to be made whether the juvenile should be tried under the provisions under Cr.P.C. as an adult which allows for punishing the juvenile at-par with adults. This allows the objective of this Act to be fulfilled while still maintaining validity of all the principles enumerated in this Act.
Separation of Hardened Criminals:
Under the act of 2000, all juvenile offenders are sent to rehabilitation homes for a maximum period of 3 years for even the gravest of offences like, murder and rape. This puts the juvenile offenders who have committed lesser serious offences, like Robbery, kidnapping and abduction, in the same position as those who have committed heinous offences. Especially in consideration with the rehabilitation homes, where the institutionalised juvenile offenders live under the same roof, regardless of their crimes. This will lead to the hardened juvenile offenders with a criminal mind to have an adverse effect on the mind of other juveniles.
The Act of 2015, by allowing the trial of juvenile offenders in the age group 16-18 years, as adults, hence permitting stricter punishment for the juvenile offenders who have committed heinous crimes to be transferred to a place of safety till the age of 21 years and then to be transferred to adult jail if even after the age 21 they have not shown any signs of reformation.
If after the age of 21 when another assessment is conducted on the juvenile offender, the offender appears to be reformed and can be a contributing member of the society, he is released.
The Act of 2000 provides for complete reformatory provisions by only enabling rehabilitative institutionalization for a maximum period of 3 years for the offenders of the gravest category. After the bare 3 years of institutionalization, the juvenile offender is released into the society to become a contributing citizen of the country. This provision is based on the notion that every offender will be rehabilitated and become a contributing member of the society. What the Act of 2000 fails to realise is that deterrence of offenses is as important as rehabilitation. With such a low penalizing punishment, there will be no fear of the same among future juvenile offenders. The Act of 2105 inculcates the objective of deterrence, among the age group of 16-18, for this very purpose. Future juvenile offenders between the age of 16-18 years will be tried as adults and be given punishment at par with adults with the exception of Life Imprisonment and Death Penalty.
1 Juvenile Justice (Care and Protection of Children) Act, 2000 (Repealed).
3 Section 15(1), The Juvenile Justice (Care and Protection of Children) Act, 2015.
4 Id., Section 14(3)
5 Aditi Malhotra, Indian Cabinet Gives Nod to Changes in Juvenile Age for Serious Crimes, April 23, 2015, available at http://blogs.wsj.comandiarealtime/2015/04/23/indian-cabinet-gives-nod-to-change-in-juvenile-age-for-serious-crimes/ (Last visited on January 21, 2016).
6 Supra 14
7 Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2015.