The Delhi High Court has observed that extracting confession from a child regarding the manner in which the offence was committed by him is unconstitutional and beyond the scope of a preliminary assessment report required to be prepared under the Juvenile Justice (Care and Protection of Children) Act, 2015.
As per Section 15(1) of the Act, a Juvenile Justice Board (JJB) is required to make a preliminary assessment regarding the juvenile's mental and physical capacity to commit an offence and the ability to understand its consequences along with the circumstances under which allegedly the offence was committed.
However, there are no guidelines as to how the Board would conduct such a preliminary assessment.
The observations have been made by a division bench of Justice Mukta Gupta and Justice Anish Dayal while dealing with a criminal reference concerning issuance of guidelines to be followed by Juvenile Justice Boards in conducting preliminary assessment to try a juvenile as an adult.
During the course of hearing on September 19, the court perused a copy of the preliminary assessment report prepared by a psychologist. The copy was provided by an intervenor NGO 'HAQ Centre for Child Rights'.
"Under Clause 3 of the said report, it can be clearly noted that a confession is sought to be extracted from the child as to the manner in which the offence was committed and the reasons thereof. This manner of seeking a confession from the child is unconstitutional and beyond the scope of a report of preliminary assessment to be prepared under Section 15 of the J.J. Act," the Bench observed.
The Court also took note of JJ Act's Form 6 that provides the format of preparing a Social Investigation Report (SIR) for children in conflict with law who has allegedly committed an offence.
It said the two questions regarding the alleged role of child and reason for committing the offence were incorrect as a presumption is raised at the pre-trial stage itself that the child has committed the offence.
"In compliance of the requirement at Sl. No. 42 the Probation Officer is required to note the alleged role of the child in the offence and at Sl. No.43 the reasons for the said alleged offence. Most often, this SIR filled by the Probation Officer is also considered and pertinent at the time of preparing the preliminary assessment report under Section 15 of the J.J. Act," the Bench noted.
Senior Advocate Dayan Krishnan, the amicus curiae, submitted that though the vires of Section 15 of the Act were not challenged before the Supreme Court, its ruling of July 2022 provided sufficient guidance regarding the manner of conducting the assessment.
The counsel representing National Commission for Protection of Child Rights told the court that it would require a period of three months to submit a detailed report in compliance of Supreme Court's judgement suggesting the NCPCR and State Commission for Protection of Child Rights to consider issuing guidelines to facilitate the JJBs in making the preliminary assessment. Similarly, the Delhi Commission for Protection of Child Rights also sought eight weeks time to furnish its report.
The matter has now been listed for hearing on December 7.
Initially all children below the age of 18 years were treated as juveniles and were therefore tried by the JJB.
However, after introduction of the 2015 Act, a separate category for juveniles between the age group of 16 to 18 years involved in heinous crime, was culled out. The said juveniles were subjected to a preliminary assessment to ascertain if they are to be tried as a child by the Board or as an adult by the Children's Court under Section 15 of the Act.
The Supreme Court in the case titled Barun Chandra Thakur v. Master Bholu And Anr. vide order dated July 13, 2022 held that when the JJB does not comprise a practicing professional with a degree in child psychology or child psychiatry, it would be obligated to take assistance of experienced psychologists or psychosocial workers or other experts under proviso to Section 15(1) of the Act.
Noting that that the preliminary assessment under Section 15 of the Act is a delicate task and appropriate and specific guidelines were required for it, the Apex Court stressed on a holistic assessment to ascertain whether a child should be tried as an adult or not.
Advocates Vrinda Grover, Soutik Banerjee, Devika Tulsiani and Mannat Tipnis appeared for NGO HAQ Centre for Child Rights.
Case Title: Court on its own motion v. State
Citation: 2022 LiveLaw (Del) 899