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Juvenile justice act, 2015: a major backward step in Juvenile Justice system

A child should be leader of them all, and to be led by that kind of innocence. Didn’t Jesus say bring on the children? Be like the children. Not childish, but child-like. That kind of innocence.
The beautiful lines from Bible show the element of innocence ingrained in every child. A child is source of innocence and hence is completely unaware of the actions it performs. And that’s why the child is exempted from both civil as well as criminal liability.

This exemption of liability will be given to the child under the title of  minor person . The law prescribes certain criteria to call a person as minor. In India law prescribes that a person below the age of 18 years be considered as minor[1].

An act of a child under seven years is no offence.[2] An infant is, by presumption of law, doli incapax i.e. not endowed with any discretion so as to distinguish right from wrong, thus, the question of criminal intention does not arise. Acts done by children above seven and below 12 will be protected if it is shown that the child in question has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.[3]

There are some instances where children knowingly or unknowingly come into conflict with law. In order to protect the welfare of children of such children Juvenile Justice (care and protection) Act, 2000 has been enacted. Now that law has been replaced by Juvenile Justice (care and protection) Act, 2015 which makes provision for treating a child above the age of 16 and below the age of 18 as an adult for imposing criminal liability. And how far such legislation ensures welfare of the child whether the said legislation is a swing towards retributive theory of punishment as opposed to reformative theory, which has been the crux of Juvenile Justice System. Let us try to address the above mentioned points.

Historical Background
The Ministry of Women and Child Development began contemplating several desired amendments in 2011 and a process of consultation with various stake holders was initiated. The Delhi gang rape case in December 2012 had tremendous impact on public perception of the Act.

One of the accused in the 2012 Delhi gang rape was a few months younger than 18 years of age. He was tried in a juvenile court. One of the convicts was found to be juvenile and sentenced to 3 years in a reform home. Eight writ petitions alleging the Act and its several provisions to be unconstitutional were heard by the Supreme Court of India in the second week of July 2013 and were dismissed, holding the Act to be constitutional. Demands for a reduction of the age of juveniles from 18 to 16 years were also turned down by the Supreme Court, when the Union of India stated that there is no proposal to reduce the age of a juvenile.[4]

On 31 July 2013, Subramanian Swamy, a BJP politician filed a Public Interest Litigation in the Supreme Court of India seeking that the boy be tried as an adult in a court. The Court asked the juvenile court to delay its verdict. After the Supreme Court allowed the juvenile court to give its verdict, the boy was sentenced to 3 years in a reform home on 31 August 2013.[5] The victim's mother criticized the verdict and said that by not punishing the juvenile the court was encouraging other teenagers to commit similar crimes.

In July 2014, Minister of Women and Child Development, Maneka Gandhi said that they were preparing a new law which will allow 16-year-olds to be tried as adult. She said that 50% of juvenile crimes were committed by teens who thought that they get away with it. She added that changing the law, which will allow them to be tried for murder and rape as adults, would scare them. The bill was introduced in the Parliament by Maneka Gandhi on 12 August 2014. On 22 April 2015, the Cabinet cleared the final version after some changes.[6]

A revamped Juvenile Justice Bill was passed in the Lok Sabha on 7 May 2015. The new bill will allow minors in the age group of 16-18 to be tried as adults if they commit heinous crimes. The crime will be examined by the Juvenile Justice Board to ascertain if the crime was committed as a 'child' or an 'adult'.

3. Functioning of the act.
The controversial Inclusion of sending children between 16-18 years to prison in exceptional circumstances.

JJAct is applicable to Children in Need of Care and Protection and Children in Conflict with Law.

The first Section of the Act defines the terminologies which will be used throughout the Act, a few relevant ones have been compiled below:
(i) Child – a person who hasn’t completed 18 years of age
(ii) Children in conflict with Law – child who is alleged or found to have committed offense and not completed 18yrs of age
(iii) Children in need to care and protection – This Act retained clauses from JJA 2000 but with additions, deletions, and modification.
(iv) Best Interest of child – This term was not defined under JJA 2000. However, it was defined as a part of Model Rules 2007 and included in 2015. The term means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify social well being and physical, emotional, intellectual development.
(vi) Child friendly- any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child.
(vii) Classification of offenses – Petty, serious and heinous
(viii) Residential Care Options – They are defined as Children Home, Open Shelter, Observation Home, Special Home, Place of Safety, Specialised Adoption Agency and Fit facility.
(ix) Officers for Children – This crucial term was not defined until JJAct 2015. Though included, these definitions are technical in nature and do no value addition about the nature of their responsibilities.
(x) Adoption – We see a difference in definition from 2000 to 2015. In the present definition – child as the lawful child
(xi) Inquiry – Remains undefined despite its vast use. For the current scenario, it is as defined by the CPC

4. Critics
Ironically, this Bill primarily affects the most marginalised and poor sections of our society. More than 50% of the children in conflict with law come from illiterate families and extremely poor homes. This law has the potential for misuse by framing false cases against most vulnerable children, especially where they are involved in elopement/consensual sex. Children living in conflict areas would be the worst affected.

Adult prisons increase re offending
As ShashiTharoor pointed out in a debate in the LokSabha in May 2015, reoffending increases by 80% according to studies done in US. In a stark irony, even though we have not put adequate resources in our JJ system reoffending has come down. According to data from the NCRB, the number of juveniles apprehended for reoffending came down from 9.5% in 2013 to 5.4% in 2014. We cannot send children to adult prisons which are nothing but "crime kipaathshala."[7]

Twenty-three states in the US passed laws to de-link juveniles from adult justice systems. And, yet we here in India are putting in place the same failed model.

Punitive measures are not as effective as reformative measures. This is the reason that the JJ Act is not based on the principle of retributive justice.

The Parliamentary Standing Committee in February 2015 held extensive consultations and strongly recommended against it. Honourable members have passed an act in apparent haste and under undue pressure from a charged group of citizens. For us who work for child rights it is a sad occurrence, just as it is a setback for child rights and women's rights.

Reducing the age of juvenility will violate guarantees made under the Constitution, the United Nation Convention of Rights of the Child and 'Beijing Rules'. In September 2015 at UNGA, India shared its vision of SDGs to make the world safer and a better place for global population. This move could send wrong signals about India's commitment towards international treaties and may have repercussions for the nation.

Save the Children India has maintained that the lawmakers need to rely on expert opinions and evidence rather than emotional popular sentiment before drafting such an important piece of legislation. Ultimately, any legislature cannot hope to find a solution by making ad hoc amendments to the Act, when there is a need to reform the justice system.

[1] Majority Act of 1875.
[2] Sec.82 of IPC.
[3] Sec.83 of IPC.
[4] Accessed on 10.05.2018
[5] Dr. Subramanian Swamy And Ors vs Raju Thr.Member Juvenile Justice, AIR2014SC1649.
[6] "Juveniles who commit rape should be tried as adults: Maneka Gandhi". IBNLive. 14 July 2014. Retrieved 10 May 2015.

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