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Preliminary Assessment To Try Juvenile As Adult - JJB Should Mandatorily Take Assistance Of Psychologist/Psycho-Social Workers : Supreme Court

Sohini Chowdhury
14 July 2022 3:30 AM GMT
Preliminary Assessment To Try Juvenile As Adult - JJB Should Mandatorily Take Assistance Of Psychologist/Psycho-Social Workers : Supreme Court
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The Court read the proviso to Section 15(1) of the JJ Act as a mandatory condition.

The Supreme Court, on Wednesday, held that when the Juvenile Justice Board 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 Juvenile Justice (Care and Protection of Children) Act, 2015...

The Supreme Court, on Wednesday, held that when the Juvenile Justice Board 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 Juvenile Justice (Care and Protection of Children) Act, 2015 (Act).

Initially all children below the age of 18 years were to be treated as juvenile and tried by the Board. Only after the 2015 Act came into force, a separate category for juveniles between 16 to 18 years involved in heinous crime, was culled out, who 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.

As the report of the preliminary assessment decides whether the accused child would be tried as a child or an adult, the evaluation of 'mental capacity and ability to understand the consequences' of the child in conflict with law cannot be conducted in a routine manner. It requires meticulous psychological evaluation. In this context, the assistance of an expert psychologist is significant. Thus, in respect to proviso to Section 15(1), which postulated that the Board 'may' take the assistance of experienced psychologists or psycho-social workers or other experts for the said evaluation, the Court held -

"...we are of the view that where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression "may" in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psychosocial workers or other experts. However, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered proper by it; and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefor."

In the interests of equity and justice, the Court opined, a 'may' can be given a mandatory colour by it. In this respect it referred to its judgment in Bachahan Devi v. Nagar Nigam, Gorakhpur and Dhampur Sugar Mills Ltd. v. State of U.P.

Court asks NCPCR, SCPCR to issue guidelines for preliminary assessment

A Bench comprising Justices Dinesh Maheshwari and Vikram Nath noted that the preliminary assessment under Section 15 of the Act is a delicate task and appropriate and specific guidelines would be required for the same. It suggested the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines in this regard in order to facilitate the Board in making its preliminary assessment.

The Court was deciding the appeals filed in related to the murder of a 7-year old student of Ryan International School, in which another student of the school is the accused. The CBI and the complainant in the case had approached the Court challenging the direction of the Punjab and Haryana High Court for conducting a fresh preliminary assessment of the juvenile accused. The Supreme Court dismissed the appeals and affirmed the High Court order.

Analysis by the Supreme Court

The Court observed the three serious consequences of a child being tried as an adult are:

  1. sentence can go up to life imprisonment, whereas if tried as child before the Board, the maximum sentence that can be awarded is 3 years;
  2. disqualification attached to the conviction shall be removed as per Section 24(1) for a child tried by the Board, but the same protection would not be available to a child tried as an adult.
  3. Under Section 24(1) relevant records of conviction can be directed to be destroyed for those tried before the Board, but such benefit would not enure to a child tried as an adult.

In view of the serious nature of the repercussions, the Court was of the view that reasonable opportunity ought to be provided in a case where the Board is to make a preliminary assessment under Section 15.

Preliminary Assessment under Section 15

The Juvenile Justice Board is to make the preliminary assessment on four aspects -

  1. mental capacity to commit the offence;
  2. physical capacity to commit the offence;
  3. ability to understand the consequences of the offence; and
  4. circumstances under which allegedly the offence was committed.

However, there are no guidelines as to how the Board would conduct the preliminary assessment. The Court was of the view that a holistic assessment would be required to ascertain whether a child should be tried as an adult or not. It noted -

"While considering a child as an adult one needs to look at his/her physical maturity, cognitive abilities, social and emotional competencies. It must be mentioned here that from a neurobiological perspective, the development of cognitive, behavioural attributes like the ability to delay gratification, decision making, risk taking, impulsivity, judgement, etc. continues until the early 20s. It is, therefore, all the more important that such assessment is made to distinguish such attributes between a child and an adult. Cognitive maturation is highly dependent on hereditary factors. Emotional development is less likely to affect cognitive maturation. However, if emotions are too intense and the child is unable to regulate emotions effectively, then intellectual insight/knowledge may take a back seat."

Mental Capacity to commit offence and ability to understand the consequences of offence are different

The fact that the child had the mental capacity to commit the offence would not be sufficient to indicate that they also had the capacity to understand the consequences of the offence.

"The Board and the Children's Court apparently were of the view that the mental capacity and the ability to understand the consequences of the offence were one and the same, that is to say that if the child  had the mental capacity to commit the offence, then he automatically had the capacity to understand the consequences of the offence. This, in our considered opinion, is a grave error committed by them."

The relevant portion of Section 15 - "the ability to understand the consequences of the offence" reads 'consequences' (plural). Therefore it would not be confined to the immediate consequence but also those consequences which may fall upon, the victim's family, on the child, their family and also far-reaching consequences in future. Therefore, the Court added -

"Children may be geared towards more instant gratification and may not be able to deeply understand the longterm consequences of their actions. They are also more likely to be influenced by emotion rather than reason. Research shows that young people do know risks to themselves. Despite this knowledge, adolescents engage in riskier behaviour than adults (such as drug and alcohol use, unsafe sexual activity, dangerous driving and/or delinquent behaviour). While they do consider risks cognitively (by weighing up the potential risks and rewards of a particular act), their decisions / actions may be more heavily influenced by social (e.g. peer influences) and/or emotional (e.g. impulsive) tendencies. In addition, the lack of experience coupled with the child's limited ability to deeply understand the longterm consequences of their actions can lead to impulsive / reckless decision making."

It is pertinent to mention that the Court referred to the detailed study on the practice of preliminary assessment under the 2015 Act conducted by National Law University, Orissa in collaboration with UNICEF. It emphasised on the Guidance Notes on Preliminary Assessment Reports for Children in Conflict in Law developed by the Department of Child and Adolescent Psychiatry, NIMHANS, Bengaluru annexed to the report and extensively reproduced relevant portions of the same in the judgment.

Case Name: Barun Chandra Thakur v. Master Bholu And Anr.

Citation: 2022 LiveLaw (SC) 593

Case No. and Date: Criminal Appeal No. 950 of 2022 | 13 July 2022

Corum: Justices Dinesh Maheshwari and Vikram Nath

Headnotes

Juvenile Justice (Care and Protection of Children) Act, 2015- Section 15 - preliminary assessment on four aspects - mental capacity to commit the offence; physical capacity to commit the offence; ability to understand the consequences of the offence; and circumstances under which allegedly the offence was committed. [Paragraph 62]

Juvenile Justice (Care and Protection of Children) Act, 2015- Section 15 - preliminary assessment requires holistic evaluation [Paragraphs 65, 66]

Juvenile Justice (Care and Protection of Children) Act, 2015- Section 15 - Ability to understand the consequences of the offence - The language used in section 15 is "the ability to understand the consequences of the offence" - the expression used is in plurality i.e., "consequences" of the offence and, therefore, would not just be confined to the immediate consequence of the offence but impact/consequences for other people connected with the victim and the child and other far-reaching consequences in the future - This evaluation of 'mental capacity and ability to understand the consequences' of the child in conflict with law can, in no way, be relegated to the status of a perfunctory and a routine task. [Paragraph 68, 69, 70, 71, 75]

Juvenile Justice(Care and Protection of Children) Act, 2015 - Section 15-Mental Capacity to commit offence and ability to understand the consequences of offence are different -The Board and the Children's Court apparently were of the view that the mental capacity and the ability to understand the consequences of the offence were one and the same, that is to say that if the child had the mental capacity to commit the offence, then he automatically had the capacity to understand theconsequences of the offence. This, in our considered opinion,is a grave error committed by them- Para 67

Juvenile Justice (Care and Protection of Children) Act, 2015-; proviso to Section 15 read as mandatory condition - for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts - where the Board is not comprising of a practicing professional with a degree in child psychology or child psychiatry, the expression "may" in the proviso to section 15(1) would operate in mandatory form and the Board would be obliged to take assistance of experienced psychologists or psychosocial workers or other experts - however, in case the Board comprises of at least one such member, who has been a practicing professional with a degree in child psychology or child psychiatry, the Board may take such assistance as may be considered proper by it; and in case the Board chooses not to take such assistance, it would be required of the Board to state specific reasons therefor [Paragraph 76]

Juvenile Justice (Care and Protection of Children) Act 2015 - Guidelines with respect to preliminary evaluation - appropriate and specific guidelines in this regard are required to be put in place - it open for the Central Government and the National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard which may assist and facilitate the Board in making the preliminary assessment under section 15 of the Act, 2015. [Paragraph 87]

Click here to read/download the judgment






















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