Although the Rajya Sabha is yet to consider the amendment to the Juvenile Justice Bill, 2000, the proposed changes have already created a lot of stir. The amendment comes at the end of series of events triggered by the December, 2012 ‘Nirbhaya’ incident where a juvenile was one of the accused in the brutal rape and murder of a young woman. The sentence handed out to him- three years in a reform home- was considered light by many, and caused a public outrage.
The bill undeniably has many progressive elements, but the public debate is focused on whether juveniles can be tried as adults for committing heinous crimes, even though the judgement that created all these ripples in the media does not anywhere specify the juvenile’s role or say that he was most brutal.
The background note on the Bill submitted by the Women and Child Development Ministry stated that the special provisions in the proposed law will address heinous offences committed by children above 16 years of age, which would act as deterrents for child offenders. The Ministry submitted the National Crime Records Bureau’s data to the standing committee on juvenile crimes which stated that 1.2% of the total crimes in India were committed by juveniles.
The Supreme Court had also recently observed that the 2000 Act needs to be reviewed due to increasing number of heinous offences committed by juveniles. The law needs to deter juveniles from committing such crimes and safeguard the rights of the victims.
Article 15(3) allows the State to make special laws for children. The existing JJ Act, 2000 satisfies the test for reasonable classification, as it is premised on the understanding that children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their amenability to rehabilitative interventions.
For crimes like rape and murder, it is hard to conceive that the juvenile was not aware of the consequences. While the Bill does not expressly lower the age of a child in conflict with law from 18 to 16 years, the effect is the same, as the Bill proposes that children above 16 years of age can be tried and treated as adults. It thus completely destroys the rehabilitative foundation of the existing juvenile justice system in India by adopting a retributive approach towards heinous crimes committed by children in this age group.
The argument of the JJ Bill, 2014 that children in conflict with law can be discriminated against based on their age and the nature of the offence is deeply flawed. Children alleged or found to be in conflict with law are distinct from adult accused persons or adult offenders and constitute a separate class. Article 15(3) allows the State to make special laws for children. The existing JJ Act, 2000 satisfies the test for reasonable classification, as it is premised on the understanding that children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their amenability to rehabilitative interventions. But, the proposed amendments definitely do not satisfy the same standards.
The Juvenile Justice (Care and Protection of Children) Act adheres to the UN Convention on the Rights of the Child (UNCRC). However, the current bill does not comply with the UNCRC as it requires certain juveniles between the ages of 16-18 years to be tried as adults with regard to certain offences. The UNCRC states that signatory countries should treat every child under the age of 18 years in the same manner and not to try them as adults.
Moreover, In India, where prison conditions are quite pathetic, the safety of the juvenile in a jail can never be assured. If the transfer is challenged through appeal, outcome will not be clear.
Moreover, the bill unreasonably conflates children in conflict with law with adults, ignoring findings in neuroscience and adolescent psychology that establish their diminished culpability. If experts are to be believed, the determination of physical and mental capacity of a 16-year-old or 18-year-old person to commit crime during preliminary assessment is practically impossible as far as adolescent psychology is concerned. As far as the circumstance of the offence is concerned, it is only being determined prima facie and, therefore, versions may vary. Finally, if the case is transferred to children’s court, it is unclear whether it will decide on the case as per the JJ Act or the CrPC.
Moreover, In India, where prison conditions are quite pathetic, the safety of the juvenile in a jail can never be assured. If the transfer is challenged through appeal, outcome will not be clear.
The foundation of juvenile justice lies in rehabilitation and reformation. The amendment in its current form is a knee-jerk reaction and lacks introspection. Its retaliatory stance needs to be reconciled with the ideas of reformation; public awareness and certainty of implementation of the Act is the priority right now.
