The law on juveniles in India has been an evolving one for years now, and yet it is doubtful whether it has grown fully enough. The Juvenile Justice Act, 1986, was followed by the enactment of 2000, which was again amended in 2006 and 2010. This was replaced by the current Juvenile Justice (Care and Protection of Children) Act, 2015. The dreadful incident in Pune that has claimed the lives of two young professionals, allegedly due to drunken and rash driving by a juvenile, has posed serious questions about the functional efficiency of the provisions of the current laws, Section 15 of the Act in particular. The Section, for the first time, distinctly categorised juveniles between 16 and 18 years of age involved in heinous offences. This is a clear deviation from the previous rules, which treated all juveniles alike.
In the Pune incident, the act of granting bail to the juvenile on trivial conditions, such as writing an essay on traffic safety and assisting the traffic police, was not only naive but also patently illegal. It was, however, sought to be "corrected" by a subsequent decision to send the juvenile to a remand home.
Jumbled Processes
Section 15 of the Act is about a "preliminary assessment into heinous offences" by the Juvenile Justice Board about the "mental and physical capacity (of the juvenile) to commit such offence, ability to understand the consequences of the offence" and the circumstances surrounding the alleged offence. The assistance of experts can be availed for this purpose. Based on this assessment, invoking Section 18(3) of the Act by deciding that the child should be tried as an adult, the Board can transfer the case to a children's court for trial. The children's court can again re-examine this decision. Even after the trial, the imposition of the death penalty or life imprisonment is impermissible on account of the embargo under Section 21 of the Act.
But these procedures are neither simple nor easy. The Boards are often clueless regarding the exact parameters for trying a child as an adult. In Barun Chandra Thakur v. Master Bholu And Another (2022), the Supreme Court comprehensively dealt with the deficits in the provisions and directed that guidelines be formulated. It interpreted the proviso to Section 15 to mean that the Board shall take the assistance of "experienced psychologists or psycho-social workers or other experts". The Supreme Court held that it is "expedient that appropriate and specific guidelines in this regard are put in place".
The Focus On Social Background
In April 2023, the National Commission for Protection of Child Rights (NCPCR) came out with regulations for facilitating the effective application of Section 15. It said that "the existing mechanisms such as Social Investigation Report (SIR) and Social Background Report (SBR) are exhaustive" and the assessments are bound to be individualistic. Therefore, according to the guideline, they are designed "to include the essential components and basic mechanism involved in preliminary assessment to address the ambiguity in the understanding of the process and steps to be followed".
The set of guidelines reminded the authorities that the "aim of the preliminary assessment is not to seek confession from the child nor to reach a conclusion of any sort". It warned that "any confessional statement from the Social Investigation Report (SIR) must not be taken into consideration while conducting preliminary assessment".
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The guidelines explained the way in which the social background report, depicting details of antecedents and the family background of the child, individual care plan, etc, should be prepared. More importantly, they said "the final report should not include any kind of statement or document that could be incriminating in nature". The guidelines contain certain "suggestive questions to be included in the report" and hypothetical illustrations, as annexures.
Breach Is The Norm
Despite such efforts, things did not improve substantially on the ground. In a case reported as Child in Conflict with Law v. State of Gujarat (2023), the Gujarat High Court set aside an order issued by the Juvenile Justice Board and directed it to conduct a fresh assessment based on the guidelines that the court explained in detail. In another judgment, Mustafa Khan Jabbar Khan v. State of Maharashtra (2023), the Bombay High Court set aside the order by the children's court (sessions court) and the Juvenile Justice Board and enumerated the breaches of the statutory prescriptions in the matter of assessment. Ironically, breaches remain the norm, and due compliance with the provisions, exceptions.
What this highlights is that the complex nature of the issue should call for radical reform in terms of institutions and society's outlook. The persons at the helm of affairs should be properly selected and trained adequately.
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Chapter 3 of the guidelines by the NCPCR talks about the role of the Juvenile Justice Board and other experts, but the NCPCR does not call for the abolition of the ad-hocism that's prevalent in the matter of appointment of experts. It foresees the situation where experts may not even be available in a district. In this author's view, there must be a permanent panel of experts at the state level to nip this ad-hocism. The lack of clarity in Juvenile Justice Boards over picking and choosing experts on a temporary basis for deciding the fate of juveniles or their family members is undesirable. There has to be a permanent panel and security of tenure for the experts so as to foster better responsibility. The legal aid system should also be revamped in such a way that the parties are free to choose their lawyer and the state bears the expenses of such a lawyer - even if it's a bit costly. The current system of legal aid often does not provide for such things and imposes a set of empanelled lawyers on parties.
Law Can't Be A Panacea
In the end, we need to go beyond the text of the statutes, and even the judgments, to understand the realities on the ground. The executive authorities and the parents of the child need to be made accountable when heinous offences are committed by juveniles. Sufficient methods for compensation should be evolved - though no amount of compensation would be sufficient in such cases.
There has been a stark rise in India in heinous crimes committed by children aged between 16 and 18 years of age. Government data shows that as many as 853 murder and 1,688 rape cases were registered against juveniles in 2015.
A plethora of factors like bad parenting, illiteracy, poverty, as well as affluence, apart from family background and social conditions, have shaped juvenile crimes of our times. The law has its limitations; it is seldom a preventive device. The real solution should emerge from Indian households and schools as these are the places and the circumstances that shape children, even though they have very little or limited control over these environments. "A child is an uncut diamond," said writer Austin O'Malley. Let us not think that the law is the only tool to shape this diamond. The tools are many, and they are often found beyond the law.
(Kaleeswaram Raj is a lawyer at the Supreme Court of India)
Disclaimer: These are the personal opinions of the author