The Need To Reassess Section 15 Of The Juvenile Justice (Care & Protection) Act, 2015
The Juvenile Justice Act, 2000 was very lenient when it came to holding a
child offender accountable for his/her actions. The Nirbhaya Rape Case of 2012
became the reason for the Parliament of India to enact the Juvenile Justice Act,
2015 in a rush as a response to growing public tensions and scrutiny.
This Act, however, is not lenient at all but rather deterrent in nature. Section 15 of the Act states that any child between the age of 16-18 can be transferred to a criminal court in case of commission of a heinous offence, the definition of which is provided in Section 2(33) of the same Act.
This article focuses on the psychological aspect of dealing with juvenile delinquents and how the aforementioned provision of Section 15 obstructs the growth of such delinquents by trying them in an adult court. It also highlights the Constitutional provision that is being violated by the said section as well as tries to analyze the impact of prison culture on children. The paper concludes by providing solutions to overcome these difficulties.
Introduction
The preamble of the Juvenile Justice Act, 2015 (hereinafter JJA) states that its objective is to serve in the best interest of children to safeguard their basic rights and needs by catering to their physical, emotional and intellectual development.
The Juvenile system in its entirety is based on the belief that deviance among children is caused due to the failure of the society in providing a nourishing environment that enriches the children with care and protection, thus emphasizing that the approach towards the correction of juvenile deviance should be socially acceptable and child friendly. However, Section 15 of the Act has been criticised as being detrimental to the said objective which made it a subject of controversy and has come under scrutiny.
Treating a child like an adult is in no way child friendly' and this provision completely discredits the statement made in its preamble. This paper aims at answering the pertaining question of whether juveniles should be treated as adults by discussing the ways in which the above-mentioned section impairs the possibility of growth among juveniles by subjecting them to adult trial methods.
However, according to various neuroimaging studies, it is a cogent belief that adolescents have a greater affinity than adults towards emotions, thus implying that it is plausible for their decisions to get influenced by emotions.
To study how humans make decisions, it is essential to understand the mechanism of the human brain first. Most adolescents display immature behaviour owing to the fact that the prefrontal cortex inside the human brain is one of the last regions to reach maturation.[1] This region provides an individual with the ability to make rational judgement. The function of the prefrontal cortex is to obtain information from different senses and harmonize all human thoughts in order to produce a reasonable and justified action.
This region, however, remains under development during the teenage years. Due to this under-development, most adolescents indulge in risky tasks even if they have enough knowledge to understand the intensity of danger that the subject matter possesses.
It is crucial to understand that a child is different from an adult in a manner that he/she is still in a developing phase and is still adulting.[2] Expecting the same level of understanding as adults from a child leads a person to treat two unequals as equals.[3] Therefore, the classification of Juveniles made in section 15 of the JJA is devoid of intelligible differentia, thus violating Article 14 of the Indian Constitution.[4]
To understand this, we shall take an example that will throw light on how the provision violates the aforementioned article. Suppose there are two children who have committed a heinous offence of the same nature. One child is 15 years of age while the other is 16. So according to the provisions of this particular section, the 15 years old child cannot be and shall not be tried as an adult.
However, this is not the case for the latter. Article 14 of the Indian Constitution talks about equality before the law as well as equal protection of the laws within the territory of India for all the citizens', but the same fundamental right of the 16-year-old child is being violated. Equality does not mean that the same laws can be applied to all the varying needs of different classes of persons.[5]
The process of assessing a child's mental capacity is something that neither the judges can overtake nor can any psychiatrist. A psychiatrist has the capacity to assess any kind of mental illness or disorder only.[6] Therefore, as already discussed above, it is impossible to put children and adults on the same footing as children fall behind in respect to psychological development.
Classifying children on the basis of offence and then sentencing them to adult trial in no way guarantees equality. Thus, it can be concluded that there is neither a scientific basis on which this classification was made nor is the provision safeguarding the fundamental right of children.
The legendary Greek philosopher Aristotle has said, Society is something that precedes an individual.� This is a saying that we all have to agree with. It is also suggestive that the same society must protect itself from the transgression of people who are trying to harm the society.
However, the principle based on which protection should be achieved need not always be intimidation, vengeance and hate.[9] Confining a person for the purpose of social revenge is something that the society must evade.
As mentioned in the introduction, the JJA aims at catering to the basic needs of children by adopting child-friendly' methods for Juvenile deviance correction. However, section 15 of the act has opened the possibility of punishing a child like an adult. This indicates that a child can be subjected to adult penalties as well which will further introduce him/her to prison life.
Keeping children with adult criminals in the same cell can turn out to be harmful which will only obstruct their psychological growth. The incarceration of juvenile offenders in adult prison is a very destructive decision as children are more receptive to negative ascendancy.[10]
Adult sentences are also one of the reasons for the higher recidivism rate. Young offenders tend to develop the feeling of helplessness and fear when they are exposed to lengthy trial methods. Staying with their adult inmates also instills in them a desire to seek protection which eventually leads them to adopt negative behaviour.
The overwhelming feelings of weakness, dejection and desperation encourage the already hopeless children to resort to violence as a means of self-security.[11] This clearly indicates that such children will fall into the pithole of crime and violence after being released from prison.
Exposure to the prison culture is surely a pernicious decision as it would only increase the tendency to recommit a crime, sometimes inside the prison and sometimes after being released. To add to it, the belligerent environment of prison restrains them from focusing on their mental growth. In this way, adult sentences become the reason for the poor rehabilitation of juvenile offenders.
In the case of the State of West Bengal & Ors. v. Nazrul Islam,[12] the Supreme Court held that no person convicted or facing charges of a criminal offence should be considered for a government job.
In the case of Avtar Singh v. UOI & Ors.,[13] the appellant had concealed the fact that he was involved in a criminal case. His enlistment for appointment in CRPF was final but due to the concealment of his criminal record, he was terminated from service.
Does this also hold true for juvenile offenders after they have become adults and have been acquitted by the court? Let us take an example to see what the Supreme Court has to say in this regard.
In the case of UOI & Ors. v. Ramesh Bishnoi,[14] a unanimous judgement was delivered by a bench of two judges namely Justice Uday Umesh Lalit and Justice Vineet Saran.[15] The bench was of the opinion that the criminal record of a juvenile cannot and shall not act as a hindrance for securing a government job when the said person becomes an adult. It was also said that the criminal record of a child needs to be treated as erased in order for him/her to live a peaceful life without being burdened by the acts committed in the past.
Justice Saran said:
The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the JJA is that even if a juvenile is convicted, the same should be obliterated so that there is no stigma with regard to any crime committed by such a person as a juvenile. This is with the clear objective to reintegrate such juveniles back into the society as a normal person, without any stigma. This order ensures that every child who has been rehabilitated and acquitted has the right to hold a government office without any hurdles.
However, the law does not favour adults in this regard. Therefore, if a child is tried like an adult, this condition will apply to him as well. Child offenders who undergo adult penalties are also subjected to life-long disqualifications attached to a conviction for an offence even if they are reformed and released from the place of safety on attaining the age of 21.[16]
Time and again the law has reiterated to seal any documents or names that might expose the juvenile's details, thus protecting his/her future. Trying these kids as adults will never allow them to lead a life of tranquility.
Conclusion
When dealing with a criminal case, it is very important to understand the basic nature of humans or human psychology to study as to why a certain person has committed a certain offence. The JJA mainly focuses on the handling of juveniles rather than rehabilitating them.
As a consequence of this, it has completely discarded its original idea of reformation of children which the Juvenile Justice Act of 2000 focused on. Instead of coming up with provisions that would ensure the development of children, the government decided to put its major attention on public opinion as a reaction to which the provisions of this section were borne.
Nelson Mandela has rightly pointed out that Education is the most powerful weapon and it stands true even in this case. The only way to change the behaviour of juvenile offenders is to provide them with the opportunity to learn about themselves.
Educating them on the topic of why they think and act in a certain manner will definitely help them in gaining insight into their own behaviour. Prison is too violent a place for such young people.
If the goal is rehabilitation, then prison is not the way to achieve it. Therefore, the division of age group between 16-18 years should be removed and the government should rather focus on improving the infrastructure of the rehabilitation centres so that the recidivism rate goes down and the needs of the children are well-catered. The State should prohibit itself from losing its own asset (which in this case happens to be the child) to its own faulty system.
References:
This Act, however, is not lenient at all but rather deterrent in nature. Section 15 of the Act states that any child between the age of 16-18 can be transferred to a criminal court in case of commission of a heinous offence, the definition of which is provided in Section 2(33) of the same Act.
This article focuses on the psychological aspect of dealing with juvenile delinquents and how the aforementioned provision of Section 15 obstructs the growth of such delinquents by trying them in an adult court. It also highlights the Constitutional provision that is being violated by the said section as well as tries to analyze the impact of prison culture on children. The paper concludes by providing solutions to overcome these difficulties.
Introduction
The preamble of the Juvenile Justice Act, 2015 (hereinafter JJA) states that its objective is to serve in the best interest of children to safeguard their basic rights and needs by catering to their physical, emotional and intellectual development.
The Juvenile system in its entirety is based on the belief that deviance among children is caused due to the failure of the society in providing a nourishing environment that enriches the children with care and protection, thus emphasizing that the approach towards the correction of juvenile deviance should be socially acceptable and child friendly. However, Section 15 of the Act has been criticised as being detrimental to the said objective which made it a subject of controversy and has come under scrutiny.
Treating a child like an adult is in no way child friendly' and this provision completely discredits the statement made in its preamble. This paper aims at answering the pertaining question of whether juveniles should be treated as adults by discussing the ways in which the above-mentioned section impairs the possibility of growth among juveniles by subjecting them to adult trial methods.
Impulsive Decision-Making Tendencies Among Adolescents
Section 15 of the JJA provides that a child between the age of 16-18 can be tried as an adult if he/she has committed a heinous offence. This provision has drawn a line to classify juvenile delinquents in two categories: one is below the age of 16 and the other is above this age.However, according to various neuroimaging studies, it is a cogent belief that adolescents have a greater affinity than adults towards emotions, thus implying that it is plausible for their decisions to get influenced by emotions.
To study how humans make decisions, it is essential to understand the mechanism of the human brain first. Most adolescents display immature behaviour owing to the fact that the prefrontal cortex inside the human brain is one of the last regions to reach maturation.[1] This region provides an individual with the ability to make rational judgement. The function of the prefrontal cortex is to obtain information from different senses and harmonize all human thoughts in order to produce a reasonable and justified action.
This region, however, remains under development during the teenage years. Due to this under-development, most adolescents indulge in risky tasks even if they have enough knowledge to understand the intensity of danger that the subject matter possesses.
It is crucial to understand that a child is different from an adult in a manner that he/she is still in a developing phase and is still adulting.[2] Expecting the same level of understanding as adults from a child leads a person to treat two unequals as equals.[3] Therefore, the classification of Juveniles made in section 15 of the JJA is devoid of intelligible differentia, thus violating Article 14 of the Indian Constitution.[4]
To understand this, we shall take an example that will throw light on how the provision violates the aforementioned article. Suppose there are two children who have committed a heinous offence of the same nature. One child is 15 years of age while the other is 16. So according to the provisions of this particular section, the 15 years old child cannot be and shall not be tried as an adult.
However, this is not the case for the latter. Article 14 of the Indian Constitution talks about equality before the law as well as equal protection of the laws within the territory of India for all the citizens', but the same fundamental right of the 16-year-old child is being violated. Equality does not mean that the same laws can be applied to all the varying needs of different classes of persons.[5]
The process of assessing a child's mental capacity is something that neither the judges can overtake nor can any psychiatrist. A psychiatrist has the capacity to assess any kind of mental illness or disorder only.[6] Therefore, as already discussed above, it is impossible to put children and adults on the same footing as children fall behind in respect to psychological development.
Classifying children on the basis of offence and then sentencing them to adult trial in no way guarantees equality. Thus, it can be concluded that there is neither a scientific basis on which this classification was made nor is the provision safeguarding the fundamental right of children.
Reformative Theory Of Punishment- An Indian Mendacium?
The Juvenile System in India is curative rather than being deterrent and is based on the Reformative Theory of Punishment, which is indicative of the fact that Juveniles should be segregated from adult offenders.[7] This theory aims at reforming the offender through individualization and is based on the Humanistic principle which dictates that a person does not cease to be a human even after committing a crime.[8]The legendary Greek philosopher Aristotle has said, Society is something that precedes an individual.� This is a saying that we all have to agree with. It is also suggestive that the same society must protect itself from the transgression of people who are trying to harm the society.
However, the principle based on which protection should be achieved need not always be intimidation, vengeance and hate.[9] Confining a person for the purpose of social revenge is something that the society must evade.
As mentioned in the introduction, the JJA aims at catering to the basic needs of children by adopting child-friendly' methods for Juvenile deviance correction. However, section 15 of the act has opened the possibility of punishing a child like an adult. This indicates that a child can be subjected to adult penalties as well which will further introduce him/her to prison life.
Keeping children with adult criminals in the same cell can turn out to be harmful which will only obstruct their psychological growth. The incarceration of juvenile offenders in adult prison is a very destructive decision as children are more receptive to negative ascendancy.[10]
Adult sentences are also one of the reasons for the higher recidivism rate. Young offenders tend to develop the feeling of helplessness and fear when they are exposed to lengthy trial methods. Staying with their adult inmates also instills in them a desire to seek protection which eventually leads them to adopt negative behaviour.
The overwhelming feelings of weakness, dejection and desperation encourage the already hopeless children to resort to violence as a means of self-security.[11] This clearly indicates that such children will fall into the pithole of crime and violence after being released from prison.
Exposure to the prison culture is surely a pernicious decision as it would only increase the tendency to recommit a crime, sometimes inside the prison and sometimes after being released. To add to it, the belligerent environment of prison restrains them from focusing on their mental growth. In this way, adult sentences become the reason for the poor rehabilitation of juvenile offenders.
Sealing Of Juvenile Crime Records- An Unforgiving Scar Or A Life Of Tranquillum?
In India, any adult person with a criminal record is disqualified from holding a Government office. However, the person in question can be considered for the position only when he/she has been acquitted of all the charges by the hon'ble court.In the case of the State of West Bengal & Ors. v. Nazrul Islam,[12] the Supreme Court held that no person convicted or facing charges of a criminal offence should be considered for a government job.
In the case of Avtar Singh v. UOI & Ors.,[13] the appellant had concealed the fact that he was involved in a criminal case. His enlistment for appointment in CRPF was final but due to the concealment of his criminal record, he was terminated from service.
Does this also hold true for juvenile offenders after they have become adults and have been acquitted by the court? Let us take an example to see what the Supreme Court has to say in this regard.
In the case of UOI & Ors. v. Ramesh Bishnoi,[14] a unanimous judgement was delivered by a bench of two judges namely Justice Uday Umesh Lalit and Justice Vineet Saran.[15] The bench was of the opinion that the criminal record of a juvenile cannot and shall not act as a hindrance for securing a government job when the said person becomes an adult. It was also said that the criminal record of a child needs to be treated as erased in order for him/her to live a peaceful life without being burdened by the acts committed in the past.
Justice Saran said:
The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the JJA is that even if a juvenile is convicted, the same should be obliterated so that there is no stigma with regard to any crime committed by such a person as a juvenile. This is with the clear objective to reintegrate such juveniles back into the society as a normal person, without any stigma. This order ensures that every child who has been rehabilitated and acquitted has the right to hold a government office without any hurdles.
However, the law does not favour adults in this regard. Therefore, if a child is tried like an adult, this condition will apply to him as well. Child offenders who undergo adult penalties are also subjected to life-long disqualifications attached to a conviction for an offence even if they are reformed and released from the place of safety on attaining the age of 21.[16]
Time and again the law has reiterated to seal any documents or names that might expose the juvenile's details, thus protecting his/her future. Trying these kids as adults will never allow them to lead a life of tranquility.
Conclusion
When dealing with a criminal case, it is very important to understand the basic nature of humans or human psychology to study as to why a certain person has committed a certain offence. The JJA mainly focuses on the handling of juveniles rather than rehabilitating them.
As a consequence of this, it has completely discarded its original idea of reformation of children which the Juvenile Justice Act of 2000 focused on. Instead of coming up with provisions that would ensure the development of children, the government decided to put its major attention on public opinion as a reaction to which the provisions of this section were borne.
Nelson Mandela has rightly pointed out that Education is the most powerful weapon and it stands true even in this case. The only way to change the behaviour of juvenile offenders is to provide them with the opportunity to learn about themselves.
Educating them on the topic of why they think and act in a certain manner will definitely help them in gaining insight into their own behaviour. Prison is too violent a place for such young people.
If the goal is rehabilitation, then prison is not the way to achieve it. Therefore, the division of age group between 16-18 years should be removed and the government should rather focus on improving the infrastructure of the rehabilitation centres so that the recidivism rate goes down and the needs of the children are well-catered. The State should prohibit itself from losing its own asset (which in this case happens to be the child) to its own faulty system.
References:
- https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/#__sec4title
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347018
- http://journals.christuniversity.in/index.php/culj/article/view/2078
- https://ijlpp.com/treating-juveniles-as-adults-the-need-to-revisit-section-15-of-jj-act-2015/
- https://www.legallyindia.com/topical/d/7468
- http://journals.christuniversity.in/index.php/culj/article/view/2078
- https://www.jstor.org/stable/41420985
- https://www.lawctopus.com/academike/reformative-theory-of-punishment
- https://www.jstor.org/stable/2379535
- https://www.nytimes.com/roomfordebate
- https://www.nytimes.com/roomfordebate
- State of West Bengal & Ors v. Nazrul Islam, Civil Appeal No. 8638 of 2011
- Avtar Singh v. UOI & Ors., (2016) 8 SCC 471
- UOI & Ors. v. Ramesh Bishnoi, Civil Appeal No. 9109 0f 2019
- https://www.pathlegal.in/Juvenile-Crime-Shall-Not-Affect-Any-Govt.-Job-Sc-Latest-Judg-blog-2383220
- https://www.jstor.org/stable/43953338
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