The Juvenile Justice (Care and Protection) Bill, 2015 (“the JJ Bill”) was passed by the Rajya Sabha on 1 December 2015, despite widespread opposition to the bill by some of the members of the civil society, politicians and parliamentarians. The highly contended aspect of the JJ Bill is the treatment of law-offending children who are between sixteen and eighteen years of age (“relevant child”). Most media houses have rather sloppily reported that the JJ Bill would treat the law-offending children as adults.
For example, the BBC affirmed in bold captions, “The Indian parliament has passed a bill which allows [relevant child] to be tried as adults for serious crimes like rape or murder”. (“India toughens law for juvenile crimes including rape”, BBC News, ”). FirstPost declared, “... 16 year olds can now be tried as adults for rape, murder”.. Wallstreet Journal, NDTV, India Express and almost all other news agencies along with bizarre social media campaigns oversimplified the matter by mere overreaching statements that the age bar for trial is lowered from eighteen to sixteen years and that sixteen year olds will now be kept with hardened criminals at jails in Tihar and Yerwada. [emphasis added].
A reading of the JJ Bill suggests otherwise. The JJ Bill is clear that it does not simply lower the age bar for trials. A fortiori, the bill certainly does not have any provision that provides for treating of the relevant children as adults. The relevant aspect of the JJ Bill, inter alia, amends the law by providing a different manner for inquiry and trial of the offences alleged and found to be committed by the children between the age of sixteen and eighteen. In this article, we analyse the relevant provisions of the JJ Bill to bring out this affirmation.
Scheme and provisions of the JJ Bill
The JJ Bill divides the offences committed by a child below the age of eighteen into three categories: petty offences (offences for which the maximum punishment prescribed under the Indian Penal Code, 1860 (“the IPC”) is imprisonment upto three years), serious offences (offences for which the maximum punishment prescribed under the IPC is imprisonment between three to seven years) and heinous offences (offences for which the maximum punishment prescribed under the IPC is imprisonment for seven years or more). Where the relevant child who is alleged to have committed a heinous offence is apprehended by the police, the JJ Bill mandates such child to be brought before the Juvenile Justice Board (“Board”), which is a three member board comprising a chief judicial/metropolitan magistrate and two social workers of relevant experience and standing. The Board is then required to make a “preliminary assessment” of the relevant child with regard to the following three factors:
Based on this preliminary assessment, the Board may dispose off the case and release the relevant child or commit the matter for trial by the special courts established under the JJ Act called the Children's Courts. When the Board refers the matter for trial by the Children's Court, such court is required to decide if there is a need for trial of the relevant child as an adult under the Code of Criminal Procedure (“CrPC”), thereby confirming or rejecting the decision of the Board in this regard. If the court decides that a trial is not needed, it may act as a Board in conducting inquiry into the offence for the relevant child – just like in the matter of any minor – and pass any orders which, the Board is empowered to pass.
However, if the Children’s Court does decide that the relevant child should be tried as an adult, only then it may conduct trial as per the provisions of CrPC. The JJ Bill clearly specifies that the Court is bound by the principles of child reform enshrined in the bill and that the trail should be conducted in a child friendly manner.
The outcome of the Trial
If the relevant child is found guilty, the Children's Court is mandated to ensure that its final order would include an individual care plan for the rehabilitation of the child. For serving the terms of his imprisonment, the child is to be sent to a “place of safety” and is not to be transferred to jail till he / she attains the age of twenty one. While at the place of safety, the child is to be provided with educational, skill development, reformative therapy and psychiatric support services. Additionally, the progress of the child has to be annually monitored through a probation officer or social worker appointed in this regard. Further, the child is not compulsorily required to be moved to the jail upon attaining the age of twenty one. If he/she shows progress, improvement and ability to be a contributing member of the society, the Children's Court may release the child.
Therefore, the relevant child is sentenced to jail only provided: 1) the Board decides on the basis of its preliminary assessment that the matter ought to be tried; 2) The Children's Court re-affirms the decision of the Board to try the relevant child; 3) The Children’s Court finds the relevant child guilty through a trial conducted in a child friendly manner; and 4) Such child after being in the place of safety till the age of twenty one, fails to show signs of improvement while serving the term of imprisonment at the child care facilities.
These requirements clearly prove that the JJ Bill does not treat a child like an adult but only in certain limited circumstances the child would be tried as an adult. However, this trial is mandated to be in child friendly and the punishment awarded to the child is vastly different from that given to a usual adult. Moreover, there is a high possibility of the sentenced child being released on attainment of twenty one years of age and not being sent to jail for his heinous offence, at all. Hence, the blanket affirmations made in the news articles and the directionless inane debates on how the parliamentarians have been barbaric in treating children like adults through the JJ Bill are erroneous and inaccurate. It is our opinion that, like in many other issues, the media has managed to sensitise the issue and the mass hurling of messages on the social media platforms only ensured that misinformation amongst readers is spread and that some other actual issues of the bill remained undiscussed. Issues like subjective power to the Board while conducting preliminary assessment; consideration of minority opinion in situations where the members of the Board have differing opinion; and power given to the Board to determine whether a person is a child based on appearance of the person were seldom deliberated.
The manner in which this issue has been (mis)debated in the last two days calls for more responsibility on part of the politicians, the journalists and we, the people.
Tejas and Neeraj are practicing lawyers. They can be reached at firstname.lastname@example.org and email@example.com, respectively.
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