‘Adult Crime, Adult Punishment’: A critical analysis of the Juvenile Justice (Care and Protection) Act, 2015
Author: Alex Biju,
3rd year of the B.A. LLB,
School of Law, Christ (Deemed to be University).
ABSTRACT:
The amendment made to the Juvenile Justice (Care and Prohibiton) Act, 2000 that changed the law on juvenile delinquency in relation to criminal responsibility of a juvenile, it amended the law by which earlier, children under the age of eighteen couldn’t be tried as adults, even if they had committed heinous crimes (offences under the Indian Penal Code carrying a jail sentence of seven years or more). The amendment, now makes it possible for juvenile offenders who commit heinous offences to be tried as adults by a Children’s Court after being reviewed by a Juvenile Justice Board, who would determine their mental maturity and thus if found to be of the mental maturity of an adult, would then be tried as adults. The amendment also seeks to institutionalize such children together and transfer them to an adult jail, only after they attain the age of twenty one. The Act also amends the law regarding age of consent, this is also dealt with briefly in the paper.
It compares amendments made against the constitution and international standards for juvenile delinquency law, including several international conventions that India is a party to and the law on juvenile delinquency in a number of foreign countries including, New Zealand, United States, Australia and several European Countries. Further, the paper seeks to delve into the jurisprudential reasoning behind the law that has been amended and how the amendment contradicts that very same jurisprudence. Establishing whether the amendment made to the Act was reformative or retributive in nature and whether the policy of deterrence used by the amendment, is actually useful is reducing the kinds of crimes that it seeks to punish.
Finally, the paper suggests several methods that could be employed in later amendments to the existing law by which the law could truly be reformative and seek to rehabilitate the offender, as juvenile delinquency legislations should, ideally.
Key Words: children, discrimination, heinous, rehabilitative, protection
RESEARCH DESIGN
Aims and Objectives:
To understand the far-reaching consequences of the amendment made to the Juvenile Justice Act in 2015 and how the application of an adult liability towards heinous crimes even for children might have unwanted effects on the society.
Scope and Limitations:
For the purpose of not establishing too broad a perimeter, this paper shall limit its scope within the country of India, highlighting the national problem, discussing existing legal provisions and its implementation in the country.
Statement of Problem:
The amendment made to the Juvenile Justice Act in 2015, among several other changes also makes a child liable as an adult (application of an adult criminal responsibility) when he/she commits a heinous crime, thus this creates several unwanted consequences and effects on society.
Research Questions:
● What is the true nature and cause of the amendment? (Whether it was done as a needed change in the position of law as opposed if it was done to appease the people)
● Whether the provisions of the Juvenile Justice (Care and Protection) Act, 2015 are in consonance with the Indian Constitution? (With specific reference to Part III of the Constitution) and international conventions that India is party to? (With specific reference to the United Nations Convention on the Rights of the Child)
● Whether the criminal responsibility envisaged by the Act is actually applicable to children of that age? Whether jurisprudentially, the amendment is in consonance with what the entirety of juvenile delinquency law seeks to achieve?
● What are the international standards of juvenile delinquency and whether the Indian law matches up to those standards after the amendment? Whether the amendment made with reference to the age of consent, is actually beneficial to a society like one of India’s?
● What are the possible solutions to the hindrances that are being caused by this legislation and how future amendments could be beneficial in correcting them?
Introduction
The amendment made to the Juvenile Justice Act in 2015 allows children between 16 and 18 years who have committed heinous offences to be tried and sentenced as adults. While it does not expressly lower the age of a child in conflict with law from 18 to 16 years, the effect is the same, as the that children over 16 will be tried as adults. It thus completely destroys the rehabilitative foundation of the existing juvenile justice system in India by adopting a retributive approach for heinous crimes committed by children in this age group. In its Two Hundred Sixty-Fourth Report, the Department-Related Parliamentary Standing Committee on Human Resource Development on The Juvenile Justice (Care and Protection of Children) Amendment, 2015 concluded in para 3.21 that “the existing juvenile system is not only reformative and rehabilitative in nature but also recognizes the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection. Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14[1] and 15(3)[2] of the Constitution.”
The foundation of the amendment that children in conflict with the law can be discriminated against based on their age and the nature of the offence is deeply flawe
d.Children claimed or saw as in struggle with the law are unmistakable from adult denounced people or adult offenders and comprise a different class. Article 15(3) permits the State to make uncommon laws for children. The existing JJ Act 2000 fulfills the test for sensible arrangement, as it is commenced on the understanding that children can’t be held to indistinguishable measures of culpability from adults on account of their formative adolescence and their manageability to rehabilitative interventions. But, the proposed amendments do not. The Preamble to the JJ Bill, 2014 (which came before the amendment) states that it seeks “to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established.” None of these objectives can be met by sending children alleged and found to be in conflict with the law to ‘places of safety’ and/or an adult criminal justice system. Transfer will deny these adolescents not just of security and treatment and would add up to condemning them to physical and sexual maltreatment by adults under-preliminaries and convicts and leaving them with no alternative but to seek a profession in crime
d.Children claimed or saw as in struggle with the law are unmistakable from adult denounced people or adult offenders and comprise a different class. Article 15(3) permits the State to make uncommon laws for children. The existing JJ Act 2000 fulfills the test for sensible arrangement, as it is commenced on the understanding that children can’t be held to indistinguishable measures of culpability from adults on account of their formative adolescence and their manageability to rehabilitative interventions. But, the proposed amendments do not. The Preamble to the JJ Bill, 2014 (which came before the amendment) states that it seeks “to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established.” None of these objectives can be met by sending children alleged and found to be in conflict with the law to ‘places of safety’ and/or an adult criminal justice system. Transfer will deny these adolescents not just of security and treatment and would add up to condemning them to physical and sexual maltreatment by adults under-preliminaries and convicts and leaving them with no alternative but to seek a profession in crime
The amendment absurdly conflates children in strife with law with adults, disregarding discoveries in neuroscience and adolescent brain research that set up their reduced culpability. Article 14 forestalls equivalent treatment of inconsistent persons the same amount of as it forestalls the inconsistent treatment of equivalents. Exposing children to a similar criminal justice system as adults would be commenced on the flawed presumptions that children and adults can be held to similar guidelines of culpability and that children are fit for taking an interest in legal procedures in a like way. Research in formative brain science clarifies the distinction in subjective limit and psychosocial development between children including adolescents and adults that impact their dynamic in hostile to social circumstances.
Regardless of whether the juvenile comprehended the results of the offense or whether the individual in question had the mental and physical ability to submit the offense is a limited and non-comprehensive methodology to react to genuine/shocking violations. It neglects to consider the continuous procedure of advancement and its effect on children, particularly adolescents. As indicated by Andrew Von Hirsch, Honorary Professor of Penal Theory and Penal Law at Cambridge University, “[y]oung adolescents, the thinking must be, can’t sensibly be relied upon to have a completely fledged appreciation of what individuals’ fundamental advantages are and how run of the mill violations influence those interests – in light of the fact that accomplishing this sort of comprehension is a developmental procedure.Building up that understanding calls both for intellectual abilities and limit with regards to moral thinking which create after some time – and does so absolutely during the time of immaturity… ” While the subjective degrees of a 16 or multi year old may coordinate that of a grown-up, discoveries show that they need psychosocial maturity levels when contrasted with adults. Adolescents are increasingly inclined to peer impact, are more averse to concentrate on future results, are less hazard disinclined than adults, and assess dangers and advantages in an unexpected way. Further, their capacity to comprehend legal procedures what’s more, settle on choices identifying with their case isn’t equivalent to adults.
These discoveries are supported by neuroscientists who express that the prefrontal cortex, known as the CEO of the brain which is answerable for significant capacities, for example, arranging, thinking, judgment, and drive control, is the slowest to develop. The development procedure starts at around the age of 12 years and goes up to the age of 25 years. The advancement of the brain between these ages has to do with hazard evaluation conduct that is legitimately attached to what we term as “maturity.” Persons between these ages have been demonstrated indisputably to think little of hazard, be vulnerable to antagonistic impact, and need prescience. These are factors that incline them to poor dynamic and legitimize the treatment of people between 16-18 years inside the juvenile equity framework.
How the act violates several laws (including the Constitution and the UNCRC)
The legality of the JJ Act 2000, to the extent that it permits all children in strife with the law
to be dealt with under the beneficial juvenile justice system irrespective of the gravity of the
offence has been upheld by the Hon’ble Supreme Court in Salil Bali v. Union of India[3]and Dr.
Subramanian Swamy v. Raju[4].In Salil Bali, the Supreme Court emphasized that, “[t]he essence
of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed
thereunder in 2007, is restorative and not retributive, providing for rehabilitation and re
integration of children in conflict with law into mainstream society.”
Juvenile Justice Board (JJB), a multi-disciplinary body meant to dispose matters in bestinterest
of the child, is now empowered to re-criminalise the child. The Children’s Court,
(established under Clause 25 of the Commission for Protection of Child Rights Act 2005) was specifically designed to try offences against children and not offences by them. While they are meant to be dedicated courts for child victims of crime, they are essentially designated Sessions Courts that have been saddled with the task of ensuring speedy trial of offences against children. These Children’s Courts largely exist only on paper. The alleged offender is now proposed to be tried “as an adult” by the court. This is completely opposed to the Bill’s stated purpose of “adopting a child-friendly approach in the adjudication and disposal of matters”[5]Requiring the Children’s Court to now be child friendly while conducting a ‘trial’ against a juvenile will put the Court in a quandary as it is essentially a Sessions Court.
‘Fundamental assessment’ by Juvenile Justice Board under provision 16(1) abuses the trial of procedural reasonableness under the Constitution. This assessment is basically a condemning choice that is shown up at even before the blame is set up. The arbitrary and irrational procedure provided under the JJ Bill contravenes the fundamental gua
rantees under Article 14[6] and 21[7] of the Constitution. The Supreme Court of India has categorically held that procedural fairness is an integral part of due process (Maneka Gandhi v. Union of India[8]). The Bill requires the Board to assess culpability prior to even an establishment of guilt. This assessment is in essence a sentencing decision that is arrived at even before the guilt is established. This is in finished infringement of the assumption of honesty – a focal fundamental of the juvenile equity just as the criminal equity framework. Further, accurate assessment of ‘mental capacity’ is impossible and will inevitably lead to arbitrary transfers. The Bill accept that an exact assessment of mental limit/maturity with the end goal of transfer is conceivable when this is in actuality false Latest research shows that individualized assessments of adolescent mental capacity is not possible and the suggestion that it can be done would mean “exceeding the limits of science”.[9]Assessment of mental capacity is a complex procedure which is impossible precisely by the JJB even with the assistance of experienced therapists. Such assessments will be loaded with mistakes and discretion and will permit characteristic predispositions to figure out which kid is transferred to an adult court.At the point when psycho-social maturity or mental capacity can’t be estimated or surveyed precisely, it will be a tragedy of equity if children claimed to be in conflict with the law are transferred to an adult criminal court and eventually sent to an adult jail dependent on such a defective assessment. Hardship of the security against exclusion under the stipulations to statements 25(1) and 25(2) damages the right to life under Article 21 and the right to equality under Article 14. The consolidated impact of these stipulations is that children somewhere in the range of 16 and 18 years saw as in conflict with the law under Clause 20(1)(i) of the amendment will bring about exclusions hence rendering their recovery and re-incorporation inconceivable. The reorganization request under Clause 21 is repetitive in light of these two arrangements. Regardless of whether a youngster is found to have experienced reformative changes toward the finish of an exceptionally self-assertive assessment process, she/he will bring about the exclusion appended to the conviction making it difficult to make sure about productive work, represent decisions or advantage from the fundamental rule of ‘fresh start’. These stipulations comprise a glaring infringement of the right to life and human pride as they will deny children of a business and leave them without any roads for an honorable presence. Statement 102(2)(a) of the amendment disregards the right to equality under Articles 14 and 15(3) of the Constitution. Permitting requests against the acquittal by the Juvenile Justice Board of children who have finished or are over the age of 16 years and have supposedly dedicated appalling offenses disappoints the goals of the enactment and unjustifiably victimizes children discovered innocent dependent on their age and the offense they were accused of.
rantees under Article 14[6] and 21[7] of the Constitution. The Supreme Court of India has categorically held that procedural fairness is an integral part of due process (Maneka Gandhi v. Union of India[8]). The Bill requires the Board to assess culpability prior to even an establishment of guilt. This assessment is in essence a sentencing decision that is arrived at even before the guilt is established. This is in finished infringement of the assumption of honesty – a focal fundamental of the juvenile equity just as the criminal equity framework. Further, accurate assessment of ‘mental capacity’ is impossible and will inevitably lead to arbitrary transfers. The Bill accept that an exact assessment of mental limit/maturity with the end goal of transfer is conceivable when this is in actuality false Latest research shows that individualized assessments of adolescent mental capacity is not possible and the suggestion that it can be done would mean “exceeding the limits of science”.[9]Assessment of mental capacity is a complex procedure which is impossible precisely by the JJB even with the assistance of experienced therapists. Such assessments will be loaded with mistakes and discretion and will permit characteristic predispositions to figure out which kid is transferred to an adult court.At the point when psycho-social maturity or mental capacity can’t be estimated or surveyed precisely, it will be a tragedy of equity if children claimed to be in conflict with the law are transferred to an adult criminal court and eventually sent to an adult jail dependent on such a defective assessment. Hardship of the security against exclusion under the stipulations to statements 25(1) and 25(2) damages the right to life under Article 21 and the right to equality under Article 14. The consolidated impact of these stipulations is that children somewhere in the range of 16 and 18 years saw as in conflict with the law under Clause 20(1)(i) of the amendment will bring about exclusions hence rendering their recovery and re-incorporation inconceivable. The reorganization request under Clause 21 is repetitive in light of these two arrangements. Regardless of whether a youngster is found to have experienced reformative changes toward the finish of an exceptionally self-assertive assessment process, she/he will bring about the exclusion appended to the conviction making it difficult to make sure about productive work, represent decisions or advantage from the fundamental rule of ‘fresh start’. These stipulations comprise a glaring infringement of the right to life and human pride as they will deny children of a business and leave them without any roads for an honorable presence. Statement 102(2)(a) of the amendment disregards the right to equality under Articles 14 and 15(3) of the Constitution. Permitting requests against the acquittal by the Juvenile Justice Board of children who have finished or are over the age of 16 years and have supposedly dedicated appalling offenses disappoints the goals of the enactment and unjustifiably victimizes children discovered innocent dependent on their age and the offense they were accused of.
This will further stigmatize such individuals andwill in essence mean that they will be unable to leave the system even though they are innocent.
Clause 19(1)[10]excludes a reference to children above 16 years who have committed a heinous offence thus leaving the JJBs with no discretion to pass any of the rehabilitative orders listed under that provision. The Bill is silent on the orders that can be passed if the JJB decides not to transfer the child to the adult court. In other words, this option does not seem to exist. By implication, this will lead to automatic transfers of all children above 16 years alleged to have committed a heinous offence. They will stand denied the opportunity to be heard by a bench of magistrates with knowledge and experience from relevant fields such as psychology, sociology, psychiatry etc. Having an expert make a onetime submission to the Children’s Court is very different from having a bench of magistrates in the multi-disciplinary Juvenile Justice Board, as provided for in the JJ Act. These children will therefore also be denied the right to orders aimed at care, protection, development, treatment and social re-integration – all of which are a fundamental part of the legislati
ve commitment stated in the Preamble.
ve commitment stated in the Preamble.
According to Clause 20(3)[11], the Children’s Court has to ensure that “the child who is found to be in conflict with the law is sent to a place of safety till he attains the age of twenty-one years, thereafter, the person shall be transferred to a jail.” This provision violates Article 37(b) of the UNCRC which states – “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.Right now, detention of a youngster is the main measure recommended under the Bill and in this manner ‘organization’ is the first and not final retreat. The UNCRC explicitly requires all children denied of their freedom to be isolated from adults. The CRC has explained that this partition isn’t just specialized and “doesn’t imply that a kid set in an office for children must be moved to an office for adults following he/she turns 18.” In net dismissal of Article 37(c) and the CRC’s finishing up perception, the Bill takes an unsound situation on the detachment of children from adults by recommending that the previous be transferred to adult detainment facilities when they complete 21 years old enough (Section 20(3)). Such a transfer is inconsistent with the away from on the detention of children with adults under the UNCRC.
People asserted to and saw as in conflict with law between the age of 16 – 21 years old enough will be housed together in difficult to reach and unavoidably exceptionally derided spots of wellbeing that will add up to nothing not exactly a prison experience for children. The stipulation to proviso 19(1)(g) likewise empowers the situation of children beneath the age of 16 years in such a position of wellbeing if their lead and conduct of the kid has been with the end goal that, it would not be to the youngster’s advantage, or in light of a legitimate concern for other children housed in a Special Home
. In practice this would mean that a place of safety could house children below 16 years who have suicidal tendencies alongside older adolescents with aggressive behavior as well as adults between 18 to 21 years. Sec 50 (1) places a responsibility on State governments to provide at least one place of safety in their respective State, to house children alleged to and found to have committed heinous crime. This implies that if a child is alleged to have committed a heinous crime in one District, he will be placed in the lone Place of Safety in that State, which could be more than a day’s travel time, away from the jurisdictional Police Station responsible for the investigation, the JJB responsible for the inquiry, and the Children’s Court responsible for the trial. This will cause unreasonable and unnecessary hardship to the child in question and the already overburdened staff of such institutions. Moreover, this will deprive this child of his/her right to regular contact with his/her family – particularly given that a majority of children entering the juvenile justice system hail from impoverished and marginalized families.
How the amendment doesn’t follow Indian jurisprudence on the matter
The proposed transfer system ignores the domestic jurisprudence on juvenile justice.
Report of the Indian Jails Committee, 1919-1920 which predates international standards on
this issue, observed that “it is undesirable’ to familiarise the young with the sights of prison
life or to blunt the fear of prison which is one of the most powerful deterrents from crime.
For all these reasons, we consider that the imprisonment of children and young persons is
clearly contrary to public policy…” (Pg 195). In Munna v. State of Uttar Pradesh[12], while
deciding three writ petitions highlighting the horrific plight of more than 100 juveniles who
were lodged in the Kanpur Central Jail instead of being sent to the Children’s Home, the
Supreme Court observed: “The law is very much concerned to see that juveniles do not come
into contact with hardened criminals and their chances of reformation are not blighted by
contact with criminal offenders.” In Satto v. State of Uttar Pradesh,[13]Justice Krishna Iyer
explained what the approach of courts towards juveniles should be:
“Correction informed by compassion, not incarceration leading to degeneration, is the
primary aim of this field of criminal justice. Juvenile justice has constitutional roots in
Articles 15(3) and 39(e) and the pervasive humanism which bespeaks the superparental
concern of the State for its child-citizens including juvenile delinquents. The penal pharmacopeia of India, in tune with the reformatory strategy currently prevalent in civilized criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment.”
In Sheela Barse v. Association of India, the Supreme Court watched: “Even where children are blamed for offenses, they should not be kept in jails. It is no answer with respect to the State to state that it lacks the quan
tity of remand homes or observational homes or different spots where children can be kept and that is the reason they are held up in jails. It is additionally no answer with respect to the State to encourage that the ward in the jail where the children are kept in discrete from the ward in which different detainees are confined. It is the climate of the jail which has a profoundly damaging impact on the brain of the youngster, repelling him from the general public and reproducing in him repugnance verging on disdain against a system which keeps him in jail.”
tity of remand homes or observational homes or different spots where children can be kept and that is the reason they are held up in jails. It is additionally no answer with respect to the State to encourage that the ward in the jail where the children are kept in discrete from the ward in which different detainees are confined. It is the climate of the jail which has a profoundly damaging impact on the brain of the youngster, repelling him from the general public and reproducing in him repugnance verging on disdain against a system which keeps him in jail.”
The proposed move system abuses India’s commitments under the UN Convention on the
Privileges of the Child. The suggestions made by the Committee on the Rights of the Child
in February 2000, about the prejudicial idea of the meaning of the term ‘juvenile’
under the Juvenile Justice Act, 1986 have been deliberately dismissed. In that Act, ‘juvenile’
was characterized to mean ‘”a kid who has not achieved the age of sixteen years or a young lady who has not achieved the age of eighteen years”. The Committee prescribed that with regards to
the guideline of non-segregation Juvenile Justice Act, 1986 be revised “to guarantee that
young men under 18 years are secured by the meaning of juvenile, as young ladies as of now are”.It is this suggestion that was considered by the Legislature while characterizing “juvenile” under the
JJ Act, 2000. The authoritative expectation was to acknowledge the proposal made by the
Panel so as to guarantee consistence with children’s entitlement to balance and non
separation under the UNCRC and this is obvious from the Statement of Objects and
Reasons which expressed that “The justice system as accessible for adults isn’t considered
appropriate for being applied to a juvenile or the youngster or any one for their sake including the
police, intentional associations, social laborers, or guardians and gatekeepers, all through the
nation.”
Through General Comment No. 10 on Children’s privileges in juvenile justice, the Committee on the Rights of the Child hosts underscored that all State Gatherings must stick to Article 40 of the Convention which stipulates privileges of children blamed for, or perceived as having encroached reformatory law. It prescribed that:
… those States parties which limit the relevance of their juvenile justice rules to children younger than 16 (or lower) years, or which permit by method for special case that 16 or 17-year-old children are treated as grown-up criminals, change their laws with the end goal of accomplishing a non-biased full utilization of their juvenile justice rules to all persons younger than 18 years. The Committee notes with thankfulness that a few States parties take into consideration the use of the principles and guidelines of juvenile justice to persons matured 18 and more seasoned, for the most part till the age of 21, either when in doubt or by method for exemption.”
As per the CRC, the essential thought even in cases including genuine offenses by children ought to be the wellbeing of the youngster – “[i]n instances of serious offenses by children, measures proportionate to the conditions of the guilty party and to the gravity of the offense might be considered, including contemplations of the need of public safety and assents. On account of children, such contemplations should consistently be exceeded by the need to shield the prosperity and the eventual benefits of the youngster and to advance his/her reintegration.”
Disappointment of the exchange system in United States of America has not been considered. The
move system proposed in the Bill has been in presence in the US for more than two decades.
Different investigations in the US presume that it has in certainty been ineffectual in tending to juvenile
wrongdoing, public safety, and recidivism. The free Task Force on Community Preventive
Administrations set up by the US Center for Disease Control surveyed distributed logical proof on
the viability of waiver laws to determine whether this forestalled or decreased viciousness
among those moved, and among juveniles in general. In light of a survey of nine
contemplates on the particular and general discouragement impact of move laws, the Task Force
reasoned that: “… . move strategies have by and large brought about expanded c
apture for ensuing
apture for ensuing
wrongdoings, including vicious wrongdoing, among juveniles who were moved contrasted and those
held in the juvenile justice system. To the degree that move approaches are actualized to
decrease fierce or other criminal conduct, accessible proof shows that they accomplish more damage
than great.” “Studies have discovered that youngsters moved to the grown-up criminal justice
system have around 34% more re-captures for lawful offense wrongdoings than youth held in the
youth justice system.” “Around 80% of youth discharged from grown-up prisons reoffend frequently
proceeding to carry out increasingly genuine violations.”
Conclusion
Sending juveniles who supposedly perpetrate ‘heinous’ crime to jail isn’t in light of a legitimate concern for children, women, families or the more extensive community all in all. Such a policy change will bring about higher costs identified with detainment, and conceded costs that will bring about as a result from the wrath furthermore, harshness that originates from life in the grown-up criminal justice system. The harming impacts of setting adolescents who are at a troublesome transitional stage in their lives alongside grown-up criminals will just serve to put these youngsters at danger of being physically, sexually and emotionally mishandled and what is more awful – being further criminalized via prepared grown-up criminals in grown-up jails. This clearly backward result is in unmistakable inconsistency to the points delineated in the Preamble of the Bill just as the yearnings of the more extensive public for a more secure more beneficial society.
The JJ system can possibly give an empowering structure to advance mending for the
injured individual and the juvenile through therapeutic justice programs. Remedial justice forms
have been in vogue in New Zealand, Australia, South Africa, Canada, USA, and a few
European nations. Specialists who have examined different models of therapeutic justice have
prescribed that it be received to address “the more genuine offenses. It is here that the
effect of the culpable on unfortunate casualties is most noteworthy and that exploited people are most needing closure…” what’s more, consider it “generally suitable for recurrent guilty parties.” The dynamic highlights of the
Indian JJ system ought not be supplanted by backward positions received in certain other
nations, especially given the nonattendance of observational proof to demonstrate that such a policy
change is justified or that it will even work. This proposition will bring about higher quantities of
furious and unfriendly youngsters and women who will leave these prisons as solidified criminals.
Therefore, Clauses 7, 15(3), 16(1), 19(3), 20, 21, 22, provisos to 25(1) and 25(2), and 102(2)(a) of the JJ Bill, 2014 should be deleted for the following reasons.
1. The proposed ‘transfer system’ violates the right to equality guaranteed under the Indian Constitution as it unreasonably equates children alleged to be in conflict with law with adult accused persons, ignoring findings in neuroscience and adolescent psychology that establish their diminished culpability. It also incorrectly assumes that children are competent to stand trial as adults. Further, arbitrariness is inherent in any proposed assessment of reformation at the age of 21 years that will then determine whether or not the child should be transferred to a jail for the rest of the sentence.
2. ‘Preliminary assessment’ by the Juvenile Justice Board violates the test of procedural fairness under the Constitution.
3. Deprivation of the protection against disqualification under the provisos to clauses 25(1) and 25(2) violates the right to life under Article 21 and the right to equality under Article 19.
4. Clause 102(2)(a) violates the right to equality under Articles 14 and 15(3) of the Constitution.
5. The proposed ‘transfer system’ denies children in conflict with law found to have committed ‘heinous’ crime aged above 16 years of community based rehabilitative services and their rights under the juvenile justice system by subjecting them to a punitive system where institutionalization is the only option available.
6. The proposed ‘transfer system’ ignores the rich domestic jurisprudence on juvenile justice w
hich emphasizes on the rehabilitative approach and unequivocally states that children should not be detained in prisons.
hich emphasizes on the rehabilitative approach and unequivocally states that children should not be detained in prisons.
7. The proposed ‘transfer system’ violates India’s obligations under the UN Convention on the Rights of the Child.
8. The Bill evinces a poor appreciation of the data on juvenile crime thus undermining the basis for introduction of the transfer system.
BIBLIOGRAPHY
Cases:
● Salil Bali v. Union of India, (2013) 7 SCC 705
● Dr. Subramaniam Swamy and Ors. v. Raju, S.L.P. (Crl) No.1953 of 2014
● Maneka Gandhi v. Union of India, 1978 AIR SC 597
● Munna v. State of Uttar Pradesh, AIR 1982 SC 806
● Satto v. State of Uttar Pradesh, (1979) 2 SCC 628.
● Sheela Barse v. Union of India, AIR 1986 SC 1773
● India Const, art, 14
● India Const. art 15
● India Const. art 21
● Juvenile Justice (Care and Protection) 2015, cl. 15
● Juvenile Justice (Care and Protection) 2015, cl. 16
● Juvenile Justice (Care and Protection) 2015, cl. 19
● Juvenile Justice (Care and Protection) 2015, cl. 20
● Juvenile Justice (Care and Protection) 2015, cl. 21
● Juvenile Justice (Care and Protection) 2015, cl. 22
● &nbs
p; Juvenile Justice (Care and Protection) 2015, cl. 25
p; Juvenile Justice (Care and Protection) 2015, cl. 25
● Juvenile Justice (Care and Protection) 2015, cl. 102
● United Nations Convention on the Rights of the Child
Scholarly Articles:
Books:
● Elizabeth Cauffman and Laurence Steinberg, “(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults
● Allison Morris & Gabrielle Maxwell, “Implementing Restorative Justice: What Works?” in Morris & Maxwell, Ed., Restorative Justice for Juvenliles Conferencing, Mediation and Circles, 2001
● Andrew Von Hirsch, “Proportionate Sentences for Juveniles: How Different than for Adults?” Punishment & Society 2001
● Elizabeth S. Scott and Laurence Steinberg, “Adolescent Development and the Regulation of Youth Crime”, The Future of Children, VOL.18 NO. 2, FALL 2008
● Bonnie & Scott, ‘The Teenage Brain: Adolescent Research and the Law’, Current Directions in Psychological Science
Documents:
● Concluding observations of the Committee on the Rights of the Child: India, CRC/C/15/Add.115, 23 February 2000, Para 81
● General Comment No.10 (2007) Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras 37-38
● General Comment No.10 (2007) Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para 71
Reports:
● Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services, Centre for Disease Control and Prevention, MMWR 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm
● Raise the Age NY, ‘Get the facts’ (2013): http://raisetheageny.com/get-the-facts; Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: Report on Recommendations of the Task Force on Community Preventive Services, Centers for Disease Control and Prevention, November 30, 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm
● Raise the Age NY, ‘Get the facts’ (2013): http://raisetheageny.com/get-the-facts, National Campaign to Reform State Juvenile Justice Systems. The Fourth Wave: Juvenile Justice Reforms for the Twenty-First Century; p. 20. http://www.publicinterestprojects.org/wp- content/uploads/2012/11/JJ-Whitepaper-Design-Full-Final.pdf.
[1] India Const, art, 14
[2] India Const, art, 15, cl. 3.
[3] (2013) 7 SCC 705.
[4] S.L.P. (Crl) No.1953 of 2014.
[5] Preamble, JJ Amendment Bill, 2015
[6] Supra note 4.
[7] India Const, art, 21.
[8] 1978 AIR SC 597
[9] Bonnie & Scott, ‘The Teenage Brain: Adolescent Research and the Law’, Current Directions in Psychological Science, 22(2) 158–161 (2013), p.161.
[10] JJ Amendment 2015, cl. 19
[11] Surpa note 21.
[12] AIR 1982 SC 806
[13] (1979) 2 SCC 628.
