Three weeks after President Pranab Mukherjee gave assent to the new Juvenile law which permits minors between 16 and 18 who committed heinous offences like rape and murder to be tried as adults, a public interest litigation has been filed in the Supreme Court challenging its constitutional validity.
Parliament had passed the bill on December 22 last year amidst a national outrage after the juvenile involved in the Nirbhaya gangrape case walked free in accordance with the earlier provision under the law after a three year stay at a reformatory home.
The PIL , filed by Congress leader and Activist Tahseen Poonawalla said the Juvenile Justice (Care and Protection of Children) Act, 2015, cleared in the winter session of Parliament which repeals and recasts the old Act is unreasonable, arbitrary and in violation of Article 14 (right to equality) of the Constitution. It challenges section 15 of the new Act which says in case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of 16 years, the Juvenile Justice Board shall conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult.
The plea said the impugned amended Act is draconian and unconstitutional which instead of providing care and protection to children deems them as adult in cases where the alleged commission of crime by them is heinous in nature.
It further said that the amendment goes against the letter and spirit of The UN Convention on the Rights of the Child and is against the protection accorded to Child and adolescent criminals since 1800s.
In a decisive step to curb crimes by minors which has witnesses a sharp rise in recent times, the new law gives Juvenile Justice Board the power to decide if a minor between the ages of 16 and 18 accused of heinous crimes like rape and murder should be tried as adults in a regular court.Under the law, the juvenile board will conduct an assessment of factors including the “premeditated nature” of the offence and “the child’s ability to understand the consequences of the offence”.
Based on the assessment, children can be prosecuted in an ordinary criminal court, and punished as adults if convicted.
As per the blanket rule earlier, any person aged below 18 accused of any offence, including heinous, can only be sent to a reformatory home for three years.
The Board, which will have a magistrate and 2 social workers as members are to conduct an assessment of factors including the "premeditated nature" of the offence and "the child's ability to understand the consequences of the offence". If there is no majority view the juvenile is to be sent for rehabilitation and lodged at an observation home.
No juvenile can however be given death sentence or life imprisonment. Minimum punishment which can be given for heinous offence is 7 years imprisonment.
The new law proposed a Juvenile Justice Board and Child Welfare Committee to be set up in each district.
It also prescribed penalties for cruelty against a child, offering a narcotic substance to a child, and abduction or selling a child.