EXAMINING SECTION 15 OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
Author: Prerna Deep, Law Clerk-cum-Research Assistant under Hon'ble Justice at the Supreme Court of India
“There can be no more intense discovery of a society’s spirit than how it treats its youngsters.”
-Nelson Mandela
Abstract
The preamble of the Juvenile Justice (Care and Protection of Children) Act, 2015 (herein now referred to as The Act of 2015) highlights that the primary objective of “the Act of 2015” is to serve in the best interest of children which includes but is not limited to safeguarding their basic rights and needs by catering to their physical, emotional, and intellectual development.
This article critically analyses one of the most debated provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 15. The article provides a brief description of the provision, dissects the legal impediments and plausible challenges in implementing the provision, and concludes. Section 15 of “the Act of 2015” allows the trial of 16-18 years old children in the adult criminal court if they are alleged to have committed a heinous offence. To make an informed decision, the juvenile justice board has been bestowed upon the duties of determining the nature of crimes as heinous, the correct age of the juvenile offender in question, conducting requisite preliminary assessments, and finally deciding whether the juvenile needs to be transferred to the children’s court. After further deliberation, the children’s court decides if the alleged juvenile offender should be tried as an adult.
Introduction
A new era of juvenile justice has been spun by introducing The Juvenile Justice (Care and Protection of Children) Act, 2015 in the Indian Criminal Jurisprudence. The introduction of the present laws stems from the criticism regarding the inadequacy of the Juvenile Justice Act, 2000 to provide justice in its true sense. The lacunae in the Juvenile Justice Act, 2000 came to light when in 2012, the infamous Delhi gang rape and murder case[1] took place. One of the accused of the case was a juvenile who was given somewhat less punishment for his acts despite being the alleged primary accused. According to the provisions of the Juvenile Justice Act, 2000, he was sentenced to three years in a reformation home. The family of the victim and the people of India stood united, protesting against the provisions that gave the accused a nominal punishment of the gruesome and soul retching act he committed with the aid of other co-accused persons. It is an established principle of law that justice must not only be served but also be visible to be served which failed in this case. Consequently, the Juvenile Justice (Care and Protection of Children) Bill, 2014 was drafted, shaping the present law.
Legal Lacunae
The scope of ‘heinous crimes’ under “The Act of 2015” is vague[2]. It mentions crimes with a minimum of seven years or more imprisonment and is not exhaustive by incorporating terminology such as ‘includes,’ which allows encompassing various crimes under its domain that the children may not even be aware of. The provision contrasts with the statutory principles of “The Act of 2015”, primarily of ‘presumption of innocence' and ‘principle of the best interest.’ [3]
“The Act of 2015” fails to follow the basic tenets of law as enshrined under the Articles 14, 15(3), 21, 24, 39(e), 39(f), 45, and 47 Constitution of India, 1950. These provisions impose guidelines and obligations on the State for the protection of children and safeguarding their rights. The provisions are further in violation of Article 1 and General Comment 10 of the UN Convention on the Rights of the Child, 1989.
Gaps in Implementation
The initial timeline mentioned in the provision [4] to determine the suitability of transfer fails to consider the practicality. There is a lack of proper infrastructure, coordination between different stakeholders, delay in administrative work [5], and involvement of inaccurate tests such as bone ossification for age determination. [6] These pose significant threats to the decision regarding the transfer of the child to adult court. The stakeholders in the juvenile justice system are specially trained and sensitised[7], but once the case is transferred to the adult court, the juveniles are likely to face other unforeseen obstacles.
Conclusion
The laws pertaining to juveniles have taken centre stage in today’s India. In the light of the above discussion and analysis, it is concluded that section 15 of “The Act of 2015” in its present form reeks of uncertainty, ambiguity and is inefficient in providing the juveniles the protection and safeguards they are entitled to in the law. In its current format, the studied provision of “The Act of 2015” needs reconsideration and redesigning.
ENDNOTES
[1]Mukesh and Anrs. Vs NCT Delhi (Nirbhaya Case) (2017) 6 SCC 1<https://indiankanoon.org/doc/68696327/>
[2] The Juvenile Justice (Care and Protection of Children) Act 2015, s 2(33).
<http://cara.nic.in/PDF/JJ%20act%202015.pdf>
[3] The Juvenile Justice (Care and Protection of Children) Act 2015, s 3.
<http://cara.nic.in/PDF/JJ%20act%202015.pdf>
[4] The Juvenile Justice (Care and Protection of Children) Act, 2015, s 16.
<http://cara.nic.in/PDF/JJ%20act%202015.pdf>
[5]Selvi Nithya and P.B. Shankar, ‘Gap and Challenges in Implementing Juvenile Justice (Care and Protection of Children) Act 2015 - A Critical Analysis’ (2018) 45(7) Shanlax International Journal of Arts, Science, and Humanities, 71.
[6]Ved Kumari, ‘The Juvenile Justice Act, 2015 - Critical Understanding’ (2016) 58(1) Journal of the Indian Law Institute, 83 <www.jstor.org/stable/45163062>
[7] Bhavya Dore, ‘A Year since the New Juvenile Justice Act Came into Being, Chaos Rules Its Implementation’ (2017 Scroll.in)