THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2015

YOUNG BLACK BOY IN JAIL BEHIND POLICEMAN
YOUNG BLACK BOY IN JAIL BEHIND POLICEMAN

THIS ARTICLE WAS WRITTEN BY ABRY SUNNI ANTHRAPER, A STUDENT OF JINDAL GLOBAL LAW SCHOOL. 

The Juvenile Justice (Care and Protection) Act, 2015 (JJ act,2015) is an act that defines new boundaries with regard to penalising juveniles and providing children from impoverished backgrounds with the basic needs and facilities that they require to live. It is replacing the Juvenile Justice (Care and Protection) Act, 2000.

The JJ act,2015 talks about reduction of a juvenile’s age from 18 to 16 if on trial for a heinous offence and the way by which the juvenile’s mindset will be decided by the Juvenile Justice Board (JJB).The board will take into consideration facts of the case and also how the crime was committed by a child. It will also decide whether the child’s mind is impressionable or whether the crime was committed with an adult mindset owing to which the juvenile will be subject to adult punishment or punishments specific to juveniles. The main part that the bill seems to be forgetting is that fact that these are still children who have committed the said crime and the chance of trying them as adult loses them the chance of being reformed and reintegrated into society. The bill puts every juvenile in danger of turning into a hardened criminal or subject to sexual abuse or mental trauma, the list goes on.

The bill not keeping to what was said in the Juvenile Justice (Care and Protection) Act,2000(JJ act,2000) in which the main aim of the bill was to rehabilitate and reform juveniles and give them another chance of being reintegrated into society. The mind of a juvenile cannot be determined just by the act which was committed by the juvenile, it is not fair to the juveniles to consider them of having mental capacity as that an adult would.

Article 14 of the Constitution of India tells us that equals shall be treated equally. With the introduction of the JJ act, 2015 a juvenile can be considered as an adult on occasion and this is totally going against what is said in Article 14. It has been interpreted that unequal treatment may be permitted between different sets of people only if there is a clear public purpose sought to be achieved by such unequal treatment.  The Bill creates a distinction between two juvenile offenders committing the same offence on the basis of the date of apprehension.  It is unclear what public purpose is being achieved by differentiating between two individuals, committing the same offence, on the basis of date of apprehension. It is near impossible to equate the mind of a normal man, let alone a juvenile. They are the future of our country and for them to be subject to even the slightest chance of them not being able to live their lives for the betterment of society then it the aim of juvenile rehabilitation is a farce.

The JJ act, 2000 had restricted the age of a juvenile to be below the age of 18. This was also done because of India’s ratification of the United Nations Convention on Right of the Child (UNCRC) which holds that the age of a juvenile must be below 18 and all countries that ratify with this convention must follow what all is said. With the introduction of the JJ act, 2015 India is no longer in the boundaries of the convention.

The Frontline magazine had interviewed a boy named Sujit and this is what they said about his life and how he turned it around:

“SEVENTEEN-YEAR-OLD Sujit was found to have committed the murder of his 16-year-old friend . . . Sujit was wracked by guilt and traumatised first by the murder her witnessed and by the violence unleashed on his family. Despite this, through the counselling process, Sujit came up with an alternative, which in his mind was “fair” though not adequate. He repeatedly told the counsellor that he understood he had caused irreparable hurt and harm to the victim/victim’s family and that even though he could not “compensate” the loss of the victim he wanted to “pay for” his act through a set of actions.

  1. He wanted to meet the family and apologise to them. In his words-“I am willing to wash their feet with my tears”.
  2. He was willing to be reprimanded by the victim’s family. . . .
  3. He wanted to practically demonstrate his “repentance” and “pay for” his offence by taking up a job for three years and giving all the money he earned through that job to the victim’s family, . . .
  4. He wanted a chance to beg the community to give his sister and her child a chance. (. . . [they] were brutally attacked by the [villagers] . . . He realised that his actions had made a victim of his own family members.”[1]

He was a child in need of care and protection. Sujit lost his parents at a very young age, he underwent, child abuse, emotional, sexual and physical as part of his growing up experience. He grew up in poverty and hunger since childhood. But what if Sujit had been transferred to the Adult criminal justice system?

Sujit had pleaded guilty in front of the Juvenile justice board and the counselling provided to the child helped him understand what he had done. This also enabled him to take up responsibility for the act he had done and understood the pain of the victim’s family from losing their child. It also made him want to change and gave him the mind to make amends for his actions. Would this have happened if he had been transferred to an adult criminal justice system?

The rehabilitative justice system can reform a child, deliver justice to the victims and also give back to the country a productive citizen that is a lot lesser to be prone to commit acrime again.

The juvenile justice system had provided for him a conducive environment to reform his mind about the crime he had done and also understand the link between his actions and their consequence. Transfer to an adult criminal justice system would not have given him these opportunities.

A study conducted by Arlene Manoharan, Program Head: Juvenile Justice, Centre for Child and the Law, Nation Law School of India University (NSLIU), Bengaluru said “. . . While the cognitive levels of 16-or 17-year-olds might match that of an Adult, findings show that they lacked the psychosocial maturity of adults.” He and his team had shown that adolescents were more prone to peer influence and less likely that they would not consider future events as much as an adult would.

There are many cases that show the harm of a juvenile inside an adult prison. In the case of Sanjay Suri & Anr. V. Delhi Administration, Delhi&Anr in which the incarceration of a child had resulted in a separate building being built inside the Tihar Jail. On inquiry of the District judge appointed by the Supreme Court, the juvenile prisoners were sexually assaulted by the Adult prisoners.[2]

In the case of Ex.Gnr.Ajit Singh v. Union of India whereby the juvenile was court-martialed to 7 years or intensive imprisonment the court was able to protect the juvenile as the JJ act,2000 overrides the provisions of the Army Act,1950. If he had been punished under the Army Act,1950 then he would have been subject to a lot of abuse.[3]

In a PIL filed by Subramanian Swamy the court had rejected his appeal to lower the age of a juvenile offender and the his appeal to change the way that a juvenile is tried from based on facts to and to be based on the mental maturity based on how other countries treated juveniles in their country to which the court said

“1. Countries like U.K Canada and U.S.A have departed from the obligations under the UN convention and are in breach of their international commitments. The incidence of crime by juveniles in those countries is very high which is not so in India it is submitted that, of late, a rethinking on the issue is discernable to demonstrate which reliance is placed on some recent pronouncements of the U.S Supreme court.

  1. The level of mental/intellectual maturity in any given case cannot be determined with any degree of accuracy and precision and the results vary from case to case and from individuals to individuals. A system which provides for an option to refer a juvenile to a regular court, therefore, ought not to be accepted as no objective basis for such reference exists.”[4]

The Rights of Persons with Disabilities (RPWD) bill has not been passed even after amending the bill 15 times after its introduction in the Parliament in 2013. The JJ act, 2015 when it was a bill was introduced in the Parliament in December 2014 and passed on 31st December 2015 through President’s assent. This is a clear indication that the bill has not been drafted properly and it has been passed too quickly due to pressure from the Media and People over the juvenile convict involved with the Nirbhaya Gang Rape, 2012. The Government in principle should listen to the people of its nation as they are in place for their people and no one else, but they should not let public pressure cloud their judgement on basis of law as thelaw will stand once it comes into power. Passing of a bill into an act based on one gruesome instance does not do justice nor does it conform to equity. This bill due to the pressure created by this one incident has put the country’s most vulnerable but important section under the scope of penalization, they are the juveniles.

The Justice J.S Verma commission noted that the Juvenile Justice act had failed at providing to the juvenile any of the basic rights given to him by the Indian constitution and the juvenile cannot be held liable when these basic rights that are to be provided to them are not given to them.“We do not bring transformation. We…breed more criminals… In our prison and reformatory system by ghettoing them in juvenile homes and protective homes where they are told the state will protect and provide for them, by which promise is a fruitless one, “[5]The panel said these things by also referring to the US Supreme Court in why they abolished death penalty for Juveniles in Roper v. Simmons. Case. “When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity”[6]

JJ act, 2015 is changing the reformative approach to that of a very penalising one. What is understood from the bill is that if a juvenile has the mental capacity to do a crime and understand why and what he has done it for then he should not be viewed separately from the adult and can be put in the same prison as since he is ‘seemingly’ adult-like then he is an adult under law. Thus he can take on the same punishments as that an adult would. But what the law does not take into consideration is what background might have the juvenile come from if he has to resort to such means. Why must he be criticised for what his society made him? Why shouldn’t he have the chance to repent and improve himself to make his life, the lives of others and the future of his country better? Reformation is something that should be done to child offenders as there is always a high probability that they did whatever that they did due to a mob-like mentality. They don’t take into consideration a lot of things that a normal adult in his/her circumstance would because his/her mind is immature and is not capable of understanding the scope of whatever is being done by him and the effect it will have on his life and the lives of people around.

The child is the most precious asset of a Country and not letting them become their best is not fair to them because there is no guarantee why they did what they did, after all, they are still just children.

[1]V. Venkatesan, and T. K. Rajalaksmi. “Of Juveniles and Justice.” Frontline22 Jan. 2016: 4-14

[2] Sanjay Suri & Anr. V. Delhi Administration,Delhi & Anr. 1988 SCC (Cri) 248

[3] Ex. Gnr.Ajit Singh v. Union of India 2004 Cr  LJ 3994

[4] Subramanian Swamy & Ors. V. Raju thr. Member Juvenile Justice Board & Anr. (2014) 8 SCC 390

[5] “Justice Verma Panel against Reducing Juvenile Offenders’ Age.” The Times of India [New Delhi] 24 Jan. 2013: n. pag, The Times of India. 24 Jan. 2013. Web. 21 Jan. 2013.

[6]Roper v. Simmons[2005]SC,543 U.S(SC).

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