By Anjana Mohan, Symbiosis Law School, Pune.
After years of constant discussion and arguments on whether to replace the Juvenile Justice (Care and Protection of Children) Act, 2000 and giving an apt description to who is a child and how can a child in conflict be tried under different scenarios of committing heinous crimes after the infamous gang rape that took place in Delhi in 2012 and how the juvenile involved was treated, the Juvenile Justice (Care and Protection of Children) Act, 2015 was finally adopted on the 15th of January 2016. The following gives a brief about the various rules and regulations introduced by the new Act and the analysis of the same to find out if there lies a need to substitute the existing rules with more acclimated ones to suit the morality of law.
THE REPLACED RULES BY THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT 2015
The Juvenile Justice (Care and Protection of Children) Act 2015 was introduced to adhere to the United Nations Convention on the Rights of the Child (UNCRC) ratified by India in 1992. It focuses on the children in conflict with law and children in need of care and protection. It allows children between the ages of sixteen to eighteen years to be tried as adults in case of heinous crimes, i.e., crimes for which penalty is minimum seven years imprisonment under IPC or any other law in force, and any such child who commits a lesser grade crime may be tried as an adult only if he is arrested at the age of twenty one years. Serious offences committed by them would cause them three to seven years of imprisonment and petty offences would be rewarded imprisonment of below three years. A juvenile in conflict with law would have to spend a maximum of three years in a special home or fit facility. Moreover, it has been decided that the Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) shall be established in each district, where JJBs must conduct a preliminary enquiry to ascertain if a juvenile offender is to be sent for rehabilitation or be tried as an adult. It passes an order that requires him to be present for counselling sessions or community service or alternatively, would ordain him to stay at an observation home for a temporary or long-term period, or would refer him to a Children’s Court to decide whether to try him as an adult or not, and the Child Welfare Committees (CWC) are to determine the institutional care for children in need of care and protection. Children in need of protection must be brought before a CWC within twenty-four hours and consequently, a Social Investigation Report will be prepared within fifteen days and consequently, the child be recommended to be sent to a children’s home or another facility for a long term or temporary stay or free for adoption or foster care. As regards the adoption system, the eligibility of adoptive parents and the procedure for adoption are taken into account in the Act. Offices such as assaulting, abandoning, abusing or willfully neglecting a child imposes three years of imprisonment and/ or a fine of one lakh rupees and for cruelty against a child, offering a narcotic substance to a child, and abduction or selling a child, the person is liable to seven years imprisonment and a fine extending to lakh rupees. Any person seen to have been selling or buying a child for whatever purpose will be imprisoned for five years and fined one lakh rupees.
ANALYSIS OF THE CHANGES ADOPTED
There are many different views on the trying of a sixteen to eighteen year old child offenders as an adult in case of heinous crimes. Such offences include rape, terrorist activities, so on and so forth. Firstly, it has been stated that it is detrimental to the rights of the juveniles wherein in the cases of rape or murder, sometimes the juvenile might not be aware of the consequences of his act and thus, might not fit within the purview of being tried as an adult. This provision brought forward by the Act is said to not be in compliance with the UNCRC as it states that every child under the age of eighteen should be treated in the same manner as other child offender and should not be tried as adults. On the other hand, experts are of the view that delivering the juveniles the reward of staying in rehabilitation centres would enable the possibility of lesser cases of repeat offences in future. Moreover, the notion that mostly juveniles commit crimes like rape is fabricated. As per the statistics reported by NCRB, only 3.4 percent of the juveniles were accused of rapes and that sometimes, the FIR was filed against juveniles even in cases of elopement.
When considering juveniles who can be apprehended only after the age of twenty years in cases where he/she had committed a crime during the ages of sixteen to eighteen years stands deterred. This provision is violative of Articles 14, 20(1) and 21 of the Indian Constitution. Article 14 promotes equality before law while the said provision provides differentiation among children based on the date of arrest inspite of committing the same crime. Article 20(1) asserts that a person cannot be charged for a penalty greater than what would be imposed on him under the law in force at the time of commission of the offence. Under the Act, when a child is apprehended for an offence committed by him on a later date, he is bound to be subject to a penalty is would be higher than what would have been imposed on him on the date of commission of the offence. Article 21 states that no person shall be deprived of their right to life or personal liberty except according to the procedure established by law, which must be fair and reasonable. However, the provision falls short of this requirement due the difference in recognising the age at which a juvenile offender can be apprehended.
The penalties related to giving a child narcotic substances or liquor, employing him for begging, etc. prescribed under the Act are in correlation to the gradation of the offences committed.
The Juvenile Justice (Care and Protection of Children) Act, 2015 has not only replaced the earlier Act, but has brought an outcry of differing arguments about its relevance to improving the situation of juvenile delinquents in the country. Rather than trying them in the adult judicial system, it would be a better option to use rehabilitative and reformative techniques on them to instill long-lasting positive changes in them. Hence, with the given changes and necessary reformations made, it would be safe to say that it would be the start to a complete revolutionary change in the juvenile justice system.