Author: Manik Mahajan
Punjab University, Chandigarh
The Constitution of India through Article 15 guarantees to the children of the country special protection so that they are protected from moral and material abandonment and lead a life which helps them in their complete mental and physical development. It guarantees that the best interest of the children shall always be taken into consideration before taking any decision with respect to the them. However, the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2020 runs contrary to this principle. The provisions of the present act were enacted as a firefighting measure in order to mollify the public clamour that has arose as a result of the ghastly rape case of Nirbhaya, the fearless[i]. The present Act deals with the procedure to be adopted in dealing with the cases of offences committed by Juveniles as well as cater to the needs of those juveniles who are in need to care and protection. The Act defines a juvenile as a child who is below the age of eighteen years on the day when he committed the alleged offence.
The present Act tends to discriminate against juveniles above the age of sixteen years from juveniles who are below the age of sixteen years by subjecting them to different procedures of trial. The Act provides for the assessment of the physical and mental capacity of the child and in case the authorities are 'satisfied' that the child can commit the crime, he is subjected to an adult procedure for trial. The statute completely disregards the medical evidences which prove beyond doubts that the mental capacity of the child cannot be determined. Thus, the present act violates the guarantee of equality provided in Article 14 and Article 15 of the Constitution and is also contrary to the various international conventions and rules to which India is a signatory that are discussed further herein.
The Juvenile Justice (Care and Protection of Children) Act, 2015 is an exhaustive act which deals with the procedure to be followed in dealing with the children who are in conflict with the law and the children who are in need of care and protection. The Act succeeded the earlier Juvenile Justice (Care and Protection of Children) Act, 2000 which was claimed by the jurists and the society to be a liberal Act having a non-deterrent effect. The Act of 2015 was passed by the Legislature as a damage control measure which has been caused because of the fact that one of the accused in the ghastly Nirbhaya rape case was acquitted of all charges because he was a minor at the time of the commission of the offence of rape. This led to a mass outcry from the various sections of the public which demanded a change in the provisions of the Juvenile Justice Act, 2000 so as to bring within the scope of law those juveniles who have the 'mental capacity' to commit the crime but are given undue advantage because of their age. Consequently, the Juvenile Justice (Care and Protection of Children) Act, 2015 was passed, thus, repealing the predecessor law of 2000.
OBJECTIVE OF THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2020
The Juvenile Justice (Care and Protection of Children) Act, 2015 is made by the State in order to fulfil its obligations under the Constitution of India to provide adequate opportunities to the children in order to ensure that there is a complete mental and physical development of the child. The aim of the statute is to adopt such means of disposal of cases of delinquency of the children which are the most child friendly and are in the best interest of the child concerned. The Act, thus, follows the concept of rehabilitative theory of punishment and not the punitive theory of punishment.
The Act has also been enacted by the Government of India in order to honour the International obligations as has been prescribed under the Convention on the Rights of Child, 1990, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules), The United Nations Rules for the Protection of Juveniles deprived of their Liberty (1990), the Hague Convention on Protection of Children and Co-operation in respect of Inter Country Adoption (1993) and other international instruments aimed towards the development of the Children.
PROCEDURE OF DEALING WITH CHILDREN IN CONFLICT WITH THE LAW: AN OVERVIEW
The Juvenile Justice Act, 2015 lays down a complete procedure to be followed in the dealing of the juveniles who have committed an offence under the penal law of the land. For the purpose of dealing with the delinquent juveniles, the Act classifies the offences into three categories depending upon the gravity of the punishment provided for the offence. As per the provisions of the Juvenile Justice Act, 2015, the offences can be classified into three categories namely:
· Petty offences [Section 2(45)]
· Serious Offences [Section 2(54)]
· Heinous offences [Section 2(33)]
Petty offences are those offences for which the offender can be punished for a maximum term of three years whereas in cases of serious offences, those offences are covered for which the punishment is between three years to seven years. For heinous offences, the Act provides a minimum imprisonment for a term of seven years. However, no maximum term has been provided for the heinous offences.
Besides the above three categories of offences which have been specifically laid down by the Juvenile Justice Act, 2015, there is one more category of offences which was not covered by the Act because of the inadvertence or negligence on the part of the framers of the Act. This category includes those offences for which no minimum term of imprisonment has been provided but are punishable with imprisonment for more than seven years. Since for heinous offences, a ‘minimum’ sentence of seven years is required, therefore these offences do not come into the category of heinous offences. This controversy was put to rest by the Hon'ble Supreme Court of India by stating that till the time the appropriate changes are brought by the legislature to correct the mistake, these offences shall be deemed to be serious offences[ii].
TRIAL OF A JUVENILE
An elaborative procedure has been laid down under the Juvenile Justice Act, 2015 dealing with the trial of the Juvenile who has committed any offence under the penal law. Different procedure has been prescribed for different juveniles depending upon the gravity of the offence committed by him as well as the age of the delinquent juvenile. As per Section 14 of the Act of 2015, in case any petty offence has been committed by the juvenile, then irrespective of the age of the Juvenile, the matter shall be disposed of by the board summarily as per the provisions of the Code of Criminal Procedure, 1973. Similarly, in case the juvenile commits a serious offence, the procedure of trial by summons shall be followed irrespective of the age of the Juvenile.
However, the age of the Juvenile plays an important role in the case of trial of heinous offences. This Act discriminates between juveniles and divide them into two categories. Category I includes the juvenile below the age of 16 years whereas category II includes the juvenile who are between 16-18 years of age. Section 14 provides that if any heinous offence is committed by a juvenile who falls in category I, the procedure of trials by summons shall be followed in his case. Whereas, in case of a Juvenile who is between the age of 16-18 years (Category II), a preliminary assessment shall be undertaken to ascertain the mental capacity of the Juvenile to commit the crime.
Section 15 of the Act of 2015 provides that in case any juvenile has committed a heinous offence, then a preliminary assessment shall be done to ascertain the mental and physical capacity of the child to commit the crime and in case it is found out that the juvenile is capable of committing the offence, then the case shall be transferred by the Juvenile Justice Board to the Children Court and the juvenile shall be tried as an adult. In conducting the preliminary assessment, the Board shall take the help of experienced psychologists, psycho social workers or other experts.
THE DISTINCTION ON THE BASIS OF AGE: CONSTITUTIONAL VALIDITY OF SECTION 15 OF THE ACT
As stated above, the Juvenile Justice (Care and Protection of Children) Act, 2015 prescribes different procedure to be followed in case of different juveniles depending upon the age and the gravity of the offence committed by him. In making this distinction on the basis of the age of the Juvenile, the legislature has proceeded on a few erroneous considerations which are stated as follows:
1. The legislature has presumed that it is possible to determine accurately the mental capacity of a child to commit an offence.
2. That the maturity of the child can be determined by the seriousness of the offence committed by him i.e. the more serious the offence, the greater is the possibility of the child having the mental capacity to commit the same.
Therefore, the distinction that has been created by the legislature on this basis violates the basic constitutional safeguards against the discrimination guaranteed under Article 14 and Article 15 of the Constitution of India.
VIOLATION OF ARTICLE 14
The right to equality before law and equal protection of laws has been guaranteed by Article 14 of the Constitution of India to every person who is within the territory of India. Section 15 of the Juvenile Justice Act, 2015 violates Article 14 of the Constitution of India as it is arbitrary and attacks the guarantee of equality provided by the article. The impugned provision of the Juvenile Justice Act, 2015 is based on a presumption that it is possible to determine the mental capacity of a child on the basis of an assessment conducted by the psychologist, psycho social workers, etc.
The legislature while making the law has completely left out of consideration the findings and research of modern science which completely rules out the possibility of determination of the mental capacity of children[iii]. The prefrontal cortex is that part of the brain which is responsible for the performance of important functions such as planning, reasoning, judgment, etc. It is a proven fact that the prefrontal cortex is under the process of development at the time of adolescence and it develops completely when the person attains the age of majority[iv]. Therefore, assuming that it is possible that the mental capacity of the child to commit a crime can be ascertained makes the aforementioned provision arbitrary. The obliteration of distinction between adults and children despite of the different mental development of both of them and subjecting them to the same procedure of trial violates Article 14 of the Constitution of India.
Moreover, it is a trite position of law that even if a classification is to be made between two classes of individual, then the classification must be a reasonable classification[v]. What the law contemplates is equality between equals and not equality between unequal[vi]. The test of reasonable classification as has been laid down by the Hon'ble Supreme Court in the case of R.K. Dalmia vs. Justice Tendolkar[vii] is as follows:
· The classification must be based on an intelligible differentia which distinguishes the things that have been placed together in one group from the things that are left out from the scope of that group.
· The classification so made must have a reasonable nexus with the object which is sought to be achieved by such classification.
The classification of juveniles on the basis of their age is not a reasonable classification as the juveniles who are above the age of 16 years cannot be said to have a better medical development as in the case of juveniles who are below the age of 16 years. This has been proved by an ample amount of medical evidences. Moreover, the object of the Juvenile Justice Act, 2015 is rehabilitation of children and adoption of those methods of dealing with the juveniles which are in the best interest of the child. By subjecting the juveniles to the same procedure of trial as that undertaken at the time of adulthood will lead to an adverse impact on his mental well-being and is also against the tenant and the objects which is sought to be achieved by the said Act.
This scientific evidence and reasoning was also accepted by the Hon'ble Supreme Court in the case of Subramanian Swamy vs. Raju, through Juvenile Justice Board[viii] as well as Salil Bali vs. Union of India[ix] wherein the Hon'ble Supreme Court refused to change the age of majority provided in the Act of 2000 by holding that a person's brain is not completely developed at the time of the minority and it is only when he attains the majority, he is said to have developed the requisite mental capacity.
VIOLATION OF ARTICLE 15
Article 15 of the Constitution of India provides the power to the State to frame special laws for the women and children. This power has been provided taking into consideration the peculiar characteristics that differ an adult man from a woman and a child. The Juvenile Justice Act, 2015 violates Article 15(3) of the Constitution of India as it takes away the special benefit that has been provided to the children by holding that in certain circumstances, child can be treated at par with the adults.
CONTRARY TO INTERNATIONAL OBLIGATIONS
As has been stated above, the statute has been passed by the Legislature of the country in order to honour the international obligations that have been laid down under various instruments and conventions which has been passed by the United Nations. However, the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 runs contrary to these international obligations. Article 1 of the Convention on the Rights of the Child provides that the child means every human being who is below the age of eighteen years. Similarly, Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (Beijing Rules) also provide against the states fixing the age of responsibility at such a low age where the child does not have the complete physical, mental or emotional development. Also, Rule 11 of the United Nations Rules for the Protection of Juveniles deprived of their Liberty (1990) provides for the definition of Juveniles. It defines juvenile as a person who is below the age of eighteen years.
All these conventions advocate against the subjection of juveniles to an adult system of trial and also provide that the juveniles should not be deprived of their liberty except in some particular situation. Since, the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015 runs contrary to these international conventions, therefore it is in the best interest of the country that the age of delinquency be fixed below eighteen years.
The Juvenile Justice (Care and Protection of Children) Act, 2015 is a result of the societal morality that took prevalence over the constitutional morality as the law was made to mollify the public anguish that has arisen because of the rising number of heinous offences committed by the juveniles. The Act by prosecuting and punishing the children as adults has violated the constitutionally enshrined protection which is available to the minors. Therefore, a need is there to reconsider Section 15 of the Act in light of the scientific evidences and the constitutional morality.
[i] Mukesh and another vs. State (NCT of Delhi) and others., (2017) 6 SCC 1. [ii] Shilpa Mittal vs. State of NCT of Delhi., (Criminal Appeal No. 34 of 2020). [iii] Study by Elizabeth S. Scott and Lawrence Steinberg, Members of John and Catherine T. McArthur Foundation Research Network on Adolescent and Juvenile Crime States. [iv] Jan Glascher and Ralph Adolphs, Processing of Arousal of Subliminal and Supraliminial Emotional Stimuli by Human Amygdala, 23 Journal of Neuroscience 10274 (2003). [v] Jasbir Kaur vs. Union of India., AIR 2004 SC 293. [vi] Municipal Committee, Patiala vs. Model Town Residents Association., AIR 2007 SC 2844. [vii] RK Dalmia vs. Justice Tendolkar., AIR 1958 SC 538. [viii] Subramanian Swamy vs. Raju, through Juvenile Justice Board., (2014) 8 SCC 390. [ix] Salil Bali vs. Union of India., (2013) 7 SCC 705.