The new Juvenile Justice (Care and Protection of Children) Bill, 2015 has a provision that allows juvenile accused aged between 16 and 18 years who are accused of heinous crimes like rape, murder, etc., to be tried under the Indian Penal Code, i.e. laws under which adult offenders are tried.
According to the proposed law, matters are to be presented to the Juvenile Justice Board on a case-by-case basis, which will then decide — based on an assessment of the mental state of the child — whether the crime was committed with/without an understanding of its consequences.
Based on this assessment, the juvenile offenders will be treated under either IPC or the JJ Act. The board will be aided by experts in making that decision.
The primary trigger for the concern over the age of the perpetrator — and for the government pushing the change in the law — was the gruesome gangrape in Delhi in December 2012 in which one of the perpetrators was 6 months short of 18 years when the incident happened. This meant that the maximum punishment he could have been given was three years’ confinement in a juvenile home.
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Policemen have demanded such a change for many years now. Among the cases that prompted rethink was one involving the burgle-and-burn gang in South Delhi in 2010-11 whose juvenile ringleader allegedly taunted the police saying they could do nothing to him because he was not an adult.
In the aftermath of the 2012 incident, with street protesters at India Gate demanding that the law be changed with retrospective effect, the UPA government started the process of looking afresh at the Act. There was, of course, no way to make it applicable to the juvenile who was the focus of the public anger. There were — and continue to be — many who advocated calm, and opposed change. It is in part because of the relentless push by these activists that Parliament remains split on the issue.
The activists — including prominent lawyers and people working with children in conflict with law — hold that a child takes to crime because society has failed in its duty to take care of him or her. Sending 16-18-year-olds to jail will create even greater danger to society, they say. This is because a child going to jail at 16 and coming out at 26 or 36 will not be reformed. He will not have a job, and will probably turn to a life of crime. Article 15 of the Constitution recognises “specially vulnerable” sections, which include women and children. The activists say targeting children would be violative of the Constitution, and accuse the government of pitting women against children.
The Bill was referred to the Parliamentary Standing Committee on human resource development (that looks after matters related to the Ministry of Women and Child Development). After extensive deliberations with stakeholders including NGOs, and considering data from the National Crime Records Bureau, the committee concluded that the “existing juvenile system is not only reformative and rehabilitative in nature but also recognises 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 and 15(3) of the Constitution.” The Committee asked the government to review the provision.
But the WCD Ministry chose to press ahead with the amendments. It sent the proposal back to the Cabinet for reconsideration. It argued that safeguards were in place to ensure that a child who had committed a crime without fully understanding its consequences would not be penalised.
Passage in the Cabinet was far from smooth. When it first went to the Cabinet after the “rejection” by the Standing Committee, the discussion got so heated that Prime Minister Narendra Modi had to step in and ask a group of ministers to iron out differences. That was done, and two weeks later, the Bill returned to the Cabinet. This time, it was cleared.
But the Bill is not just about juvenile offenders and what happens to them. There are other provisions, including those on foster care and easing of adoption rules. Foster care would enable children to be placed with willing families instead of children’s homes, and the government would pay for this. It seeks to make Central Adoption Resource Authority (CARA) a statutory body, which means it will have powers to regulate inter-country adoptions, and issue guidelines on adoption and related matters.
The Juvenile Justice System in India: From Welfare to Rights, by Ved Kumari. Oxford India Paperbacks, 2010