Preliminary Assessment Or Problematic Estimation: Section 15 of Juvenile Justice (Care and Protection Of Children) Act, 2015
Seventy nine percent of juveniles in conflict with law apprehended in the year 2023 were in the age group of 16 years to 18 years[2]. This age bracket among the juveniles in conflict with law gains relevance not only due to overarching societal impact of the increased interaction of children with criminal justice system, but also due to the legal dichotomy laid down in The Juvenile Justice (Care and Protection of Children) Act, 2015, wherein juveniles belonging to the age group of 16-18 years have been treated as a separate class of its own.
One of the crucial changes to Indian juvenile justice jurisprudence was insertion of Section 15 in the Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter “JJ Act, 2015”), now preliminary assessment into heinous offences by JJB has been statutory mandated. Section 15 brought in a different regime for trial in heinous offences alleged to have been committed by a child, who has completed or is above the age of 16 years. In other words, if a child is found to have completed or is above the age of 16 years “and” is accused of committing an heinous offence[3], now Juvenile Justice Board (hereinafter “JJB”) is mandated to conduct a preliminary assessment of the child. Under the preliminary assessment, JJB has the mandate to assess whether such a child in the 16-18 years age group should be tried before JJB or the concerned Children's Court[4] having jurisdiction to try such offences. This preliminary assessment determines the maximum sentence which can be imposed if a juvenile is eventually found to be in conflict with law.
Brief Legislative History
The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on 12th August 2014 and was referred to the Department-related Parliamentary Standing Committee on Human Resource Development for examination and report. In furtherance of that, 264th Report of the Standing Committee was submitted for the perusal of Parliament[5]. Prior to this, the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter as “JJ Act, 2000”) was in operation for more than a decade and was amended twice in 2006 and 2011 to make it more child-friendly. JJ Act, 2000 was found to not be well equipped to tackle the category of child offenders belonging to the age group of 16-18 years. The increasing trend of heinous crimes committed by children in the age group of 16-18 years was highlighted as a trigger to re-work the legislative regime for this target group of juvenile offenders. The Standing Committee Report mentions that involvement of juvenile offenders in some of the publicised criminal cases in recent time which even initiated public debate in the country was found to be one of the reason for re-assessment of juvenile justice system[6], but it categorically stated that some incidents of juvenile crime should not be the basis for introducing drastic changes in the existing juvenile justice system[7]. Further, the Standing Committee Report concluded that the existing juvenile system recognizes the fact that 16-18 years is an extremely sensitive age group and there is no need to subject them to different or adult judicial systems.
The views of the Standing Committee on preliminary assessment are quite relevant. It noted that all children below 18 years are amenable and should be treated in the same manner because of the fact that their involvement in offending acts was primarily due to either environmental factors or their unique developmental features such as risk taking nature, less future orientation, adventurism etc. In what turned out to be a stoic prediction, the Standing Committee warned against a severe shortage of competent psychologists, psycho-social workers and other experts and how this will adversely affect the quality of inquiry and timely disposal of cases. During the Parliamentary debates on the Bill, the dual regime being created for the child offenders belonging to age group of 16-18 years was widely debated. This led to the enactment of the JJ Act, 2015, as we know today.
Provisions and Judicial Pronouncements
The primary provision for the preliminary assessment has been provided in Section 15 JJ Act, 2015, wherein it has been made mandatory to conduct a preliminary assessment if firstly, the age of child is found to 16 years or above 16 years and secondly, such a child is alleged to have committed a heinous offence. Thus, if a child is below 16 years of age and accused of a heinous offence, there is no provision for preliminary assessment and such a child can only be tried by JJB. The provision provides for preliminary assessment into (i) mental capacity to commit such offence; (ii) physical capacity to commit such an offence; (iii) ability to understand the consequences of the offence and (iv) the circumstances in which he allegedly committed the offence. For this statutory preliminary assessment JJB can take assistance of experienced psychologists or psycho-social workers or other experts[8].
The nature of preliminary assessment can be assessed from Explanation to Sec. 15(1), wherein it must not become a mini-trial. The statutory time period of this preliminary assessment has been linked to Sec. 14(3), whereby preliminary assessment has to be completed within three months from the date of first production of the child before the JJB. The possible consequential orders are (a) trial of juvenile as an adult before the Children's Court and (b) trial of juvenile before the JJB itself. The former is governed by Sec. 18(3) of the JJ Act, whereas in the trial before JJB itself, Sec. 15(2) provides that in such trials summons case procedure to be followed.
Considering the gravity of trying a juvenile as an adult in cases involving heinous offences, the statutory framework itself provides for two-step scrutiny of the preliminary assessment conclusions. Firstly, the JJB conducts the primary preliminary assessment before it under Section 15 JJ Act and once the JJB concludes that there arises a need for trial of the said child as an adult, the case is transferred to the Children's Court. This assessment by the Board is open to scrutiny by the concerned Children's Court under Section 19 of the JJ Act. Under Sec 19(1)(ii) of JJ Act,2015 the Children's Court may decide that there is no need for trial of the child as an adult. Pertinently, this procedure provided under Sections 15 and 19 of scrutinizing the assessment has been held to be mandatory by the Supreme Court[9]. Even when certain months or years may be added due to lapse of time, JJB has to still conduct the preliminary assessment as it cannot be omitted[10].
The complex jurisprudence around preliminary assessment under the JJ Act 2015 is still evolving and has limited statutory guidance for courts and practitioners. Therefore, many issues have arisen since inception of preliminary assessment under the juvenile law jurisprudence. This article will now address different issues which have arisen and how they have been addressed by the Courts through judicial pronouncements.
Is preliminary assessment time-bound?
This issue regarding the timeline of preliminary assessment stems from Section 14(3) of the JJ Act, which states that a preliminary assessment under Section 15 'shall' be disposed of by the JJB within a period of three months from the date of first production of the child before the JJB. The mandatory or directory nature of this provision is no more res integra as Hon'ble Supreme Court has settled this issue in the case Child in Conflict with law vs State of Karnataka[11], wherein it has held that time period prescribed for completion of the preliminary assessment is not mandatory but merely directory in nature.
What are the broad parameters to evaluate in a preliminary assessment?
On this issue, the guidance is provided by landmark judgment of the Hon'ble Supreme Court in the case of Barun Chandra Thakur vs Bholu[12], wherein it has been held that to ensure the protection of best interest of the child, the expression 'may' in the proviso of section 15(1), JJ Act 2015 thereof and the requirement of taking assistance of experienced psychologists or psycho-social workers or other experts would operate as mandatory unless the JJB itself comprises of at least one member who is practising professional with a degree in child psychology or child psychiatry. Furthermore, the individualized assessment of adolescent mental capacity and ability to understand consequences of the offence is one of the most crucial determinants of the preliminary assessment.
Once the parameters are settled, the next logical query arises as to what all materials can be perused or looked upon by the JJB while conducting the preliminary assessment.
What materials can be looked upon by the Board?
While the Hon'ble Supreme Court in Barun Chandra Thakur (supra) mandates assistance of psychological experts for conducting preliminary assessment, the judgment was silent as to how this assessment was to be conducted by psychologists or psycho-social workers. While some rudimentary operative framework was designed by the National Commission for Protection of Child Rights (NCPCR)[13], but it lacked depth and thematic guidance. Due to this vacuum in source material, there was no benchmark uniformity in the tests or parameters to be formulated and utilized in conducting the preliminary assessment.
This vacuum has now been specifically addressed by the Hon'ble Allahabad High Court in the case of XXX vs State of U.P. and Anr.[14], which provided working guidelines. These guidelines are the first clear elucidation of the working guidelines in the field of preliminary assessment by any of the High Court(s) or Supreme Court, since the inception of JJ Act, 2015 ten years ago.
In the above-mentioned case, Hon'ble Allahabad High Court formulated guidelines for the JJBs and Children's Court as a guide to conduct preliminary assessment[15]. This includes test of intelligence[16] and clear findings as to the ability of a child to understand the consequences of the offence. At this stage, it must be highlighted that, lot of these intelligence test require some formal education and some are effectively designed for children who had no formal or casual education imparted to them[17]. Moreover, the psychological notion of intelligence is quite different from the common sensical notion of intelligence. Despite this shortcoming, there are limited avenues for JJB to address the 'mental capacity to commit an offence' without invoking the intelligence-based tests.
Certain reports are already part of the investigation and inquiry process provided under the JJ Act, 2015. For instance, Social Background Report (SBR) and Social Investigation Report (SIR). Both SBR and SIR are foundational documents, which are available with the JJB, even prior to any psychological assessment report. While SBR is prepared by the Child Welfare Police Officer of the police station, SIR is prepared by the Probation officer. These two statutory reports provide a starting point for the preliminary assessment.
Apart from specialized reports available from different avenues, there is another important consideration in the preliminary assessment, i.e., previous conduct of the concerned child. The guidelines formulated by the Hon'ble Allahabad High Court mandate that the period of prior probation or correctional orders is taken into account to assess whether the alleged offence is part of a repetitive pattern of similarly adjudicated offenses committed by child.
In a recent case, Facebook posts of a juvenile which indicated a juvenile taking pride in committing offence and dominating others was deemed relevant for preliminary assessment. Herein, in a Section 302 IPC, Hon'ble High Court of Madhya Pradesh considered a prior criminal case registered against the Juvenile as a relevant factor and observed that ignoring prior registered cases amounts to display of misplaced sympathy. Moreover, prior criminal history reflected in the SIR was also considered relevant[18]. However, in this case before Hon'ble High Court of Madhya Pradesh, there was emphasis on the above-mentioned two facts and almost no discussion as to any psychological report or Intelligence quotient of the juvenile.
Whether a report of psychologists or psycho-social worker binding on JJB or Children's Court?
In evidence law, such a report would fall under the domain of expert opinion and the settled position of law is that such an expert opinion cannot be considered binding on courts.[19] While such a report does remain relevant[20], the grounds on which such an opinion is based is also relevant[21]. Hence, for a psychological assessment report to be relevant and admissible, the concerned psychologist must mention the tests and methodology utilized in conducting the assessment.
In another case, where the juvenile was alleged having committed an offence under Sections 377,376(c) IPC and 8,12,14(4), 4 of the POCSO Act and Section 67, 67(B) of Information Technology Act, after preliminary assessment, JJB found the matter fit to be tried by the Children's Court. This order was challenged before the Hon'ble High Court of Chhattisgarh on grounds that the report of the psychologist indicated that the child was completely unaware of the consequences of the circumstances and the child did not even know that the act committed by him came under the category of crime. The Hon'ble High Court, while dismissing the revision, observed that the psychologist did not give any strong basis or reason for her findings. The facts of the case were different and unmatched from the opinion of the psychologist. Thereby, court did not find any illegality in order allowing the trial of juvenile as an adult[22]
Practical challenges encompassing preliminary assessment
Over-reliance on intelligence based tests is not entirely aligned with the welfare and reformative overtones of the JJ Act, as it ignores emotional intelligence. Emotional intelligence (EQ) is the ability to understand, use and manage emotions in positive ways to relieve stress, communicate effectively, empathize with others, overcome challenges and defuse conflict[23]. While Intelligence Quotient (IQ) is a measure of one's ability to solve problems and think logically, poor EQ is linked to crime and other unethical behaviours. Pertinently, EQ is a product of wisdom and IQ. Therefore, it is recommended that a suitable mix of intelligence and emotional tests need to be incorporated for better assessment.
The guidelines formulated by the Hon'ble Allahabad High Court mandate intelligence based tests for holistic assessment of cognitive ability to understand the consequences of the offence, but the infrastructure support for such elaborate assessment is still dismal. Many of the intelligence tests require proper kits and are time consuming. This fact combined with limited availability of trained psychologists/psycho-social workers at district level leads to an eventuality wherein a preliminary assessment may not be taking into account these specialized tests at all. Moreover, a straight-jacket questionnaire based assessment is also not workable as the cognitive ability to understand the consequences of every offence varies.
The impact of delay in conclusion of preliminary assessment is also a frustrating lacuna of the entire process. The difficulty in delayed preliminary assessment is the development of mental faculties of children in conflict with law in general. For instance, if the offence pertains to the year 2022 and if the preliminary assessment is conducted only in the year 2024, with a gap of two years, there is a high chance that the psychological assessment undertaken at the age of 18 years is bound to be different than one done at the time of offence. This is not a mere speculative possibility, for instance, consider this illustration, an accused is arrested for an offence of murder in March 2022. Once the case is committed to Sessions Court for trial, in March 2023, the concerned accused takes the plea of juvenile at the date of offence. After the age determination inquiry done by JJB, this plea is accepted in May 2023 and this accused is found to be of 17 years and 01 months on the date of offence. Since, Section 15 of the JJ Act, 2015 being a mandatory provision, JJB is now statutorily bound to conduct the preliminary assessment. In such circumstances, by the time the preliminary assessment is completed in August 2023, the juvenile is roughly 18 years and 06 months. The response to any intelligence tests by an 18 year old vis-a-vis 17 year old is bound to vary, as cognitive abilities of adolescents are highly mobile.
Moreover, a child with passage of time is bound to gain heightened social maturity and that enhanced level of psychological understanding of the offence can prejudice the assessment. Similarly, the constitutional courts have held that they can't conduct preliminary assessment by themselves[24], so in cases, wherein they disagree with the findings of the Board and Children Court and remand the matter back for a fresh preliminary assessment, there is a huge time lapse and this second round of preliminary assessment is bound to be highly prejudicial to the juvenile due to lapse of time and developed maturity and better cognitive ability. In other words, due to infrastructure constraints and delayed completion of preliminary assessment, there is a high likelihood of the preliminary assessment shifting its focus from mental and physical ability of a juvenile to commit an offence towards unduly weighing 'heinous' nature of offence.
The general trend for moving away from harsh punishments for juveniles was based on two broad considerations, firstly developmental immaturity and secondly, the possibility of reform in juveniles. Despite providing for enhanced punishments for juveniles falling in the age group of 16-18 years for heinous offences, if they are to be treated as an adult after preliminary assessment, there is no empirical study to support the assertion that this change has reduced the incidents of juvenile delinquency among the 16-18 year olds.
Merely trying a juvenile as an adult is not bound to achieve that objective. But at the same time, it is essential to balance the rights of victims and general societal expectations of justice in general. Hence, as a pragmatic solution it is essential to retain the beneficial regime of juvenile law jurisprudence for first-time offenders and invoke institutionalisation only as the last resort. This beneficial regime for 16-18 years old should be restricted to only first-time offences, thereafter for any subsequent offence, the preliminary assessment should be invoked.
The author is a Delhi-based advocate. Views are personal.
Crime in India 2023, Statistics, National Crime Records Bureau, Ministry of Home Affairs, available at https://www.ncrb.gov.in/uploads/files/1CrimeinIndia2023PartI1.pdf (published in 2025). ↑
Defined under Section 2(33) of JJ Act, 2015. “Heinous offences” includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more. The debate around this provision has been settled by the Hon'ble Apex Court in the case of Shilpa Mittal vs State (NCT of Delhi) and Anr., (Criminal Appeal No. 34 of 2020, decided 09.01.2020), wherein it was held that “minimum” cannot be treated as surplusage and an offence which does not provide a minimum sentence of 7 years cannot be treated to be an heinous offence. ↑
Provided under Section 2(20) of JJ Act, 2015. ↑
246th Report on Juvenile Justice (Care and Protection of Children) Bill, 2014, Department-related Parliamentary Standing Committee on Human Resource Development, Rajya Sabha, available at https://prsindia.org/files/bills_acts/bills_parliament/2014/SC_report-_Juvenile_justice_1.pdf ↑
These included the Delhi gang rape in December 2012; Shakti Mill rape case in Mumbai in July 2013 and the Guwahati rape case in September 2013, each involving child offenders as co-accused. ↑
This point was further mentioned by Dr Shashi Tharoor in the Parliamentary debates on the Juvenile Justice Bill, wherein he stated that “...Does the state exercise its punitive powers in order to be revengeful to extract an eye for an eye, to punish in a manner that can only be described as primitive? Or do we hope to use the justice system mechanism as a corrective to wean people from error and to rehabilitate the young?... See, Synopsis of Debates, Discussion on the motion for consideration of the Juvenile Justice Bill, 2014, Lok Sabha, available at https://eparlib.nic.in/bitstream/123456789/748518/1/3745.pdf ↑
As per Rule 10A(2) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, such a panel of experts to be made available by the District Child Protection Unit, whose assistance can be taken by the Board or could be accessed independently. ↑
See Ajeet Gurjar vs State of M.P., 2023 LiveLaw (SC) 857 and Thirumoorthy vs State, 2024 LiveLaw (SC) 262 ↑
Juvenile X vs State of U.P. and Ors., Allahabad High Court, Criminal Revision 1506 of 2022, decided 21.12.2022 (Para 11). ↑
2024 LiveLaw (SC) 353 ↑
2022 LiveLaw (SC) 593 ↑
Guidelines for conducting preliminary assessment under section 15 of the Juvenile Justice Act, 2015 by NCPCR, available at https://ncpcr.gov.in/uploads/16813797786437d1c2bea2a_guidelines-for-conducting-preliminary-assessment.pdf ↑
2025:AHC: 181097 ↑
2025:AHC: 181097, Para 34. ↑
Like Binet Kamat Test of Intelligence (B.K.T.), Vineland Social Maturity Scale (VSMS), Bhatiya Batter Test of Intelligence. ↑
For instance Bhatia's Battery Test of Intelligence is designed for less educated or illiterate children. ↑
Saurabh vs State of Madhya Pradesh and Ors., Madhya Pradesh High Court, Criminal Revision 3086 of 2022, decided 08.07.2024. ↑
Pattu Rajan vs State of Tamil Nadu, (Criminal Appeal No. 680-681 of 2009, decided 29.03.2019). See Para 32 -”...Undoubtedly, it is the duty of an expert witness to assist the Court effectively by furnishing it with the relevant report based on his expertise along with his reasons, so the the Court may form its independent judgment by assessing such materials and reasons furnished by the expert for coming to an appropriate conclusion. Be that as it may, it cannot be forgotten that opinion evidence is advisory in nature, and the Court is not bound by the evidence of the experts...” ↑
Section 39, Bharatiya Sakshya Adhiniyam, 2023 ↑
Section 45, Bharatiya Sakshya Adhiniyam, 2023. ↑
XYZ vs State of Chhattisgarh, Chhattisgarh High Court, CRR No. 923 of 2023, decided on 27.09.2023. ↑
Dr J.J.B. Vijay Vardhan, “Emotional Intelligence”, Journal of Exclusive Management Science, August 2014, Vol. 3 Issue 8, available at https://www.researchgate.net/publication/337927749_Emotional-Intelligence-EQ ↑
Barun Chandra Thakur vs Master Bholu and Anr., 2022 LiveLaw (SC) 593
See Para 81 “...Thus, the power to carry out the preliminary assessment rests with the Board and the Children's Court. This Court cannot delve upon the exercise of preliminary assessment. This Court will only examine as to whether the preliminary assessment has been carried out as required under the law or not. Even the High Court, exercising revisionary power under Section 102, would test the decision of the Board or the Children's Court with respect to its legality or propriety only...” ↑