Introduction

The Juvenile Justice (Care and protection of children) Act 2015 (hereinafter JJ Act) as passed by parliament, on December 13, 2015 and is applicable to the whole of India.[1]

Juveniles in conflict with the law are dealt with in accordance with a separate statute, the Juvenile Justice (Care and Protection of Children) Act, 2015 (the Act). When a juvenileis brought to the justice system upon commission of a crime or upon being in conflict with the law, there are several actions (under Section 18 of the Act) that may be taken after considering the age and severity of the offence committed.

If the child is under 12 years of age, no action is taken except for taking the child to the youth care office for reformation or counselling. Juveniles committing offencesmay also be sent to perform unpaid community service. There can be short detention or other penaltiesand non-punitive orders.

A new form of action added by the Act of 2015 is the trial of juveniles as adults. This means that juveniles can also be prone to the adult criminal justice system upon commission of certain offences.

Offences committed by Juveniles can be categorised

1. Petty offences, as defined in Section 2(45) of the Act, are those offences which have minimum punishment for a term of not more than 3 years in the Indian Penal Code, 1860 (IPC) or any other criminal law for the time[2]

2. Serious offences are defined in Section 2(54) of the Act, which states that offences for which the sentence of imprisonment is between 3 years to 7 years in IPC or any other criminal law are known as serious offences.[3]

3. Heinous offencesare defined in Section 2(33) of the Act and constitute all those offences having minimum punishment of 7 years of imprisonment under IPC or any other law.[4]

1. History background of Juvenile Justice Act, 2015:

The JJ Act came into existence in the year 2000. Till date, the Act has been amended three times in the year 2002, 2006, 2015.

1.1. Nirbhaya Case, Mukesh Anr vs State For Nct Of Delhi Ors

The most famous case of the 2012, where a physiotherapy student named Jyoti Singh was traveling with her friend on public bus in Delhi. Where Jyoti was raped by 5 people including a 17 years old Juvenile. The famous case is commonly named as the Nirbhaya Case.[5]

1.2. Effect of Nirbhaya Case

The Nirbhaya Case has taken the all attention and raise a consern about criminal child and demand to treat a child as a major. But at that time the JJ Act 2000 didn't have the provisions regarding this. Hence the Juvenile is released after three year of imprisonment.

2. Section 15 of Juvenile Justice Act

2.1. Preliminary Assessment Section 15

Juvenile, as defined in sub-section 35 of Section 2 of the Act, is a person who is under 18 years of age. A child who is in conflict of law within the meaning of Section 2(13) shall be subject to an inquiry or preliminary assessment (only for heinous offences) in accordance with the provisions of this Act. In a literal sense, a preliminary assessment is an informal way of conducting an investigation in which two things are determined. Firstly, whether to proceed with it or not; and secondly, if yes, then how to proceed.

Section 15 of the Act mandates preliminary assessment of juveniles in conflict with the law subject to the following conditions-

2.1.(a) Juveniles of the age above 16 years and below 18 years;

2.1.(b) Commission of heinous offence as given under Section 2(33) of the Act.

The Juvenile Justice Board conducts a preliminary assessment to determine if the conditions mentioned above are fulfilled. A determination of the physical and mental ability of a juvenile to commit the crime is made. Based on the result of such a preliminary assessment, the Board passes a reasonable order as to whether a juvenile can be tried as an adult in the Court of Law.

2.1.A. Inquiry for preliminary assessment

Assessment by the Board can also be considered one of the kinds of inquiry under Section 14 of the Act, which provides for the procedure of inquiry of the Board regarding a child in conflict with the law. Further, Section 14(5) of the Act states that the Board must ensure a fair and speedy inquiry. It also provides that an inquiry into the heinous offences committed by children in the 16-18 age group shall be dealt with in the manner prescribed under Section 15.

2.1.B. Period of Assessment

The second proviso of Section 15(2) states that the Board is bound to complete the assessment procedure by the time limit specified in Section 14 of the Act for this purpose.

Generally, any such inquiry by the Board must be completed within a period of 4 months from the date when the child was first produced before the Board. However, in certain exceptional circumstances, an extension of the period of 2 months could be provided. The extension will be granted in exceptional circumstances only after recording the reason for such an extension in writing. But, where a heinous offence is alleged to have been committed by the juvenile, a preliminary assessment under Section 15 must be completed within 3 months in accordance with Section 14(3). For an extension of the time limit for completion of the preliminary assessment, the Board shall get such an extension approved by the Chief Judicial Magistrate (CJM) or the Chief Metropolitan Magistrate (CMM) for reasons to be recorded in writing.

3.Juvenile justice Board[6]

Juvenile Justice Board (JJB), also known as the Board, is constituted under Section 4 of the Act. JJB is authorised by law to conduct a preliminary assessment and pass an order for the purpose of Section 15 of the Act. It is a multi-disciplinary body that exercises its duties and responsibilities mentioned in Section 8 of the Act in connection with children in conflict with the law.

If police apprehend any child in conflict with the law, such a child should be produced before the Board within 24 hours (vide Section 10 of the Act) through a special Juvenile Police Unit or a designated child welfare police officer.

3.1. There must be a heinous offence

First and foremost, to start a preliminary assessment of a child in conflict with the law, the Board must ensure that he has committed a heinous offence. Heinous offences, as per the definition given under Section 2(33) of the Act, are those offences for which the IPC or any other criminal law for the time being in force prescribes a term of imprisonment of 7 years or more.

In the case of State of Maharashtra vs Shadab Tabarak Khan (2022)[7], a group of persons were charged under various provisions of the IPC and the Unlawful Activities Prevention Act, 1976 (UAPA) for their engagement in terrorist activities. One of them was a juvenile; therefore, the state had filed an application for a preliminary assessment of the juvenile. However, the Board has rejected the application. Upon the appeal of the aggrieved party, the Bombay High Court has held that for preliminary assessment, a juvenile must commit an offence for which a minimum of 7 years of punishment is prescribed. Since none of the applicable provisions of the IPC or UAPA complies with the said condition, the appeal was rejected.

3.2. Age group of 16-18 years

Although anyone who is below 18 years of age is considered Juvenile under Section 2(35) of the Act, When a juvenile comes into conflict with the law, and he/ she is under 16 years of age, requisite orders will be made in accordance with Section 18 of the Act.

Under preliminary assessment, the Board intends to check if the juvenile in conflict with the law can be treated like an adult if he has committed a heinous offence and has the requisite capacity to commit the crime. Only juveniles from the age group of 16- 18 years of age can undergo preliminary assessment, and that too if other conditions (commission of a heinous offence) are satisfied.

4. Questions of constitutional validity

4.1 Violation of Right to Equality

It is argued by the opponents that Section 15 of the JJ Act is violative of Article 14 of the Constitution of India. Firstly, children/ juveniles who are below 16 years of age are treated differently from those who are above 16 but below 18 years of age. Secondly, the reasons for such differential treatment are not justified.[8]

However, to cater for this argument, it is provided that the right to equality is granted to every citizen of India, subject to reasonable restriction. A reasonable restriction must be based on intelligible differentia and rational nexus. In this scenario, for Section 15 to not violate the right to equality, the differentiation of children/juveniles below 16 years and others must be based upon a reason, and that reason must be in consonance with the object sought to be achieved.

4.2 Violation of right under Article 20(3)

In the process of the preliminary assessment, the Board is advised to seek assistance from psychologists or psycho-social workers whenever necessary. The result of the preliminary assessment by the Board is, to some extent, based on the report of the psychologist appointed to assist the Board in the matter.

It is often argued that these psychological experts subject children to intimate, self-incriminating statements because whatever they say might be used against them. Further, the Act does not bestow any right of consent upon the children, so they can, if unwilling, refuse to go on with the psychologist. Therefore, it can be seen as a violation of the fundamental right against self-incrimination as envisaged in Article 20(3) of the Indian Constitution.[9]

4.3 Other loopholes in Section 15 [10]

The Juvenile Justice Act evolved over time with the aim of providing care and protection to juveniles in need and also giving a chance for improvement to those who, for any reason, act in conflict with the law. Accordingly, the Juvenile Justice Board does not take a punitive approach towards juveniles.

The mental capacity of juveniles to commit a crime is not very easy to determine as there is no definite test for it, unlike medical tests. Because of the time-barred (3 months) proceedings of the preliminary assessment, an arbitrary and hastened decision with possible errors could be expected most of the time.

5. Judicial pronouncements

5.1 Barun Chandra Thakur vs. Master Bholu (2022)[11]

5.1.(a) Facts of the case

In the case of Barun Chandra Thakur vs. Master Bholu, a student of 2nd grade named Prince was subjected to murder by cutting his throat in the school washroom. Another student of the school, Bholu, from class 9th, was accused of murder. The Board has conducted a preliminary assessment as Bholu was over 16 years old and had committed a heinous offence. Afterwards, the Board ordered the trial of the juvenile as an adult on the reasoning that the juvenile had sufficient maturity and ability to understand the consequences of the action.

5.1.(b) Order of the Court

It was held by the Supreme Court that the task of the preliminary assessment is granted to the Board only and not to the court of law. Therefore, it could only be ordered on the matter of whether the assessment was in accordance with the procedure established by law or not. As 3.5 years have passed since then and the juvenile has turned 21 years old, the court is not in a position to assess whether further testing is to be carried out by the board or not. Thus, it is now at the discretion of the board. The court has further directed the government to come up with guidelines to assist and facilitate the board in making the preliminary assessment.

5.2 Shilpa Mittal vs. State of NCT of Delhi (2020) [12]

5.2.(a) Facts of the case

In the case of Shilpa Mittal vs. State of NCT of Delhi, a boy above 16 years of age killed a person because of rash driving and was consequently charged with culpable homicide under Section 304 of the IPC. Section 304 states that ...whosoever commits an act with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death would amount to culpable homicide, not murder.

Here, the juvenile has acted with the knowledge that the act of rash driving might take lives. Despite having such knowledge, he committed the crime, which attracted punishment for a term that may extend to 10 years. Considering the above facts, the Board has taken cognisance of the crime and ordered the trial of juveniles as adults.

5.2.(b) Order of the Court

The Apex Court, while deciding on the question as to whether the juvenile is to be subjected to preliminary assessment or not in reference to the commission of a heinous offence, has held that an offence that does not provide a minimum sentence of 7 years cannot be treated as a heinous offence. The Court has opined that when the language of the Section is clear and it prescribes a minimum sentence of 7 years imprisonment while dealing with heinous offences then we cannot wish away the word minimum.

6. Conclusion

There are two sections of people, one who supports treating children committing a heinous offence with extreme punishment argues that after the fact of their mental and physical capacity to commit the crime becomes clear, even children of 16-18 years of age should be prone to be in the criminal justice system as adults. Another voice speaks for the reformative welfare of children and asks to maintain the sanctity of the Juvenile Justice Act. They argue that it isnt overruling the objective of the Juvenile Justice Act by treating children below 18 years of age as adults for whatever purposes.

Both of these opinions received the validation of jurists and scholars. Therefore, it becomes very crucial to handle this subject of great importance with utmost caution, and thus, the JJ Board must consider the welfare of children while ordering anything after a preliminary assessment. A balance must be struck between two extreme opinions. While the provisions for the treatment of children as adults must not be abolished, considering the well-being of society, but when giving such an order, the welfare of children must be considered, and chances for reformation must be examined.

7. Citation

[1] The Juvenile Justice (Care and protection of children) Act 2015

[2] Juvenile Justice (Care and Protection of Children) Act 2015, Section 2(45)

[3] Juvenile Justice (Care and Protection of Children) Act, 2015 Section 2(54)

[4] Juvenile Justice (Care and Protection of Children) Act, 2015 Section 2(33)

[5] Indian kanoon, India available at https://indiankanoon.org/doc/68696327/ (last visited January 7, 2024)

[6] Juvenile Justice (Care and Protection of Children) Act, 2015 Section 15

[7] Indian kanoon, India available at https://indiankanoon.org/doc/196106205/ (last visited January 7, 2024)

[8] Juvenile Justice (Care and Protection of Children) Act, 2015 Section 15 and Constitution of India, 1950 Section 14

[9] Constitution of India, 1950 Section 20(3)

[10] Juvenile Justice (Care and Protection of Children) Act, 2015 Section 15

[11] Indian kanoon, India available at https://indiankanoon.org/doc/34328129/ (last visited January 7, 2024)

[12] Indian kanoon, India available at https://indiankanoon.org/doc/187771162/ (last visited January 7, 2024)