By Medha Haradhan, WBNUJS, Kolkata.

The Juvenile Justice (Care and Protection) Bill, 2015 was passed by the Rajya Sabha on 22nd December, 2015. The Juvenile Justice (Care and Protection) Act, 2015 (hereinafter referred to as “the Act”) seeks to replace the Act of 2000. The new Act has attracted a lot of criticism from various sources for reducing the age of juveniles from 18 to 16 years with respect to heinous crimes. In this article the author will restrict the discussion of the Act only to the provision of trying the juveniles in the age group of 16-18 years as adults and countering the related criticisms.

The Act categorises the offence committed by the juveniles into three — heinous offences, serious offences and petty offences. The heinous offences are those for which the minimum punishment prescribed under IPC or any other law is seven years or more. Serious offences are those where the punishment prescribed is between three to seven years and petty offences are those where the punishment is below three years.

Section 15 of the Act specifies that in case of heinous offences, where the child who has completed or is above the age of 16 years, the Juvenile Justice Board (JJB) shall conduct a preliminary inquiry with regard to the mental and physical capacity of the Juvenile to commit the offence, ability to understand the consequences of the offence and the circumstances in which the offence was committed. Then, if the JJB thinks that there is a need for trial of the juvenile as an adult, it can order the transfer of the trial to the Children’s Court, or if the JJB finds that the child has not committed any offence but needs care and protection, it can pass order to that effect. Also, if the Board feels that a child has committed a petty offence or a serious offence, or a child below the age of 16 years has committed a heinous offence, it can order the child to get involved in community service, counselling, etc.

In a case where the juvenile is sent to the Children’s Court by the JJB, to be tried as an adult, the Children’s Court may decide whether there is a need to try the child under the provisions of the Code of Criminal Procedure or not. If the court feels that there is no need for trial as an adult, then it can pass order to that effect. As per Section 19(3), if the Children’s Court finds the child to be in conflict with law, then it needs to ensure that the child is kept at some place of safety till the age of 21 years, where he is provided with reformatory services and then sent to jail. Section 20 of the Act provides that if the Court, after proper monitoring, feels that during the stay at place of safety, the child has reformed and can now contribute to the society, then it can order for the release of the child or if the Court feels that there is no reform yet, then the remaining term of the sentence can be completed by the child in jail.

The idea of trying the juveniles in the age group of 16-18 years as adults has been widely criticized. The major criticism for it is that the age of 16-18 years is a critical and sensitive age and requires greater care and protection. The argument is that the idea of punishment should be based on reformation rather than retribution, and putting the juveniles with the hardened criminals in the jail will only weaken their chances of reformation. This contention was raised in the 264th Report of the Standing Committee on Juvenile Justice (Care and Protection) Bill, 2014. The Standing Committee firmly recommended not trying these juveniles as adults. Even the J.S. Verma Committee Report on Amendments to Criminal Law recommended against this reduction of age. It outlined the poor conditions of the jails in India and the inhumane treatment that is meted out to the inmates. The Report mentions that the jails in India do not have any reformatory and rehabilitation policies and thus more criminals are bred in these jails. Thus, the Committee stood against the idea of sending these juveniles to the jail. Another criticism of reduction of the age under the Act is that it violates the United Nations Convention on the Rights of the Child (UNCRC) which has been ratified by India. Article 1 of the UNCRC recognises anyone below the age of 18 years as a child. Further, Article 37 provides that children should be detained or arrested only as a last resort and for the shortest time period and Article 40 mandates that the child accused should be treated with respect and dignity. Also, Article 36 mandates that the Government must protect the children from all sorts of exploitation. It is argued that by trying the juveniles in the age of 16-18 years as adults, all the above provisions of the UNCRC are being violated.

However, on carefully going through the provisions of the Act, it is clear that the above arguments do not hold. As mentioned earlier, the Act provides that those accused for heinous offence in the age group of 16-18 years, will be first subjected to the preliminary assessment of the JJB and then if the Board feels so, they will be sent to the Children’s Court. The maturity level of the juvenile will also be looked into. Thus, the criticism that the juveniles do not have the maturity to understand the consequences of the Act will also be taken care of. Further, the provisions of the Act ensure that the juvenile serves in the jail only once he/she is 21 and not before. This provision will ensure that the child in conflict with law gets the opportunity to reform by not being put in with the hardened criminals. Therefore, in this case the argument that 16-18 years is a sensitive period and keeping the children of this age with the hardened criminals will not hold. As far as the argument relating to the violation of UNCRC is concerned, technically under the Act, the juveniles are not being detained or arrested as they are being sent to jail only at the age of 21. Till the age of 21, they are being kept at a place of safety and in this way they are being protected by the State from exploitation and are being given a chance to reform as well. Thus, this criticism also stands countered.

Thus, it is submitted that the provision of the Act relating to the trial of the 16-18 year olds surpasses the popularly held criticisms of being violative of UNCRC and depriving the juveniles the chance of reformation. This provision of the Act will serve as a deterrence for the youth in the concerned age group who are increasingly indulging in heinous crimes. At the same time it will provide sufficient opportunity to reform and contribute positively to the society.