The discourse in the aftermath of the December 16 gangrape, about 16 to 18 year-olds accused of rape ‘deserving’ to be tried as adults, has propelled the passage of the Juvenile Justice (Care and Protection of Children) Bill, 2015. However ‘heinous offences’ as defined in the legislation doesn’t merely encompass gruesome crimes such as rape and murder. Juveniles accused of counterfeiting, cheating, arson, kidnapping, causing grievous hurt, dacoity, burglary or committing theft in a building are all now liable to be tried as adults.
The Bill defines ‘heinous offences’ as those “for which the minimum punishment under the Indian Penal Code (IPC) or any other law for the time being in force is imprisonment for seven years or more.”
The Centre for Child and the Law, National Law School of India University, has compiled 21 such sections under IPC alone. It has also listed sections under other laws the juveniles can now be tried under. These include Commission of Sati (Prevention) Act, Narcotic Drugs and Psychotropic Substances (NDPS) Act, Arms Act, Unlawful Activities (Prevention) Act, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Terrorist and Disruptive Activities (Prevention) Act, Maharashtra Control of Organised Crime Act and Food Safety and Standards Act.
In all such cases, the Juvenile Justice Board can now refer a juvenile to a children’s court after a preliminary assessment. The children’s court, which is a sessions court, can then determine whether to subject him to the adult judicial system.
The NDPS Act, for instance, has several sections where the punishment is between 10 to 20 years in case of ‘contravention in relation to’ poppy straw, cannabis and psychotropic substances involving commercial quantity or for external dealings in certain kinds of narcotic drugs and psychotropic substances.
“Juveniles can now be tried under NDPS. Theft in a building attracts seven years’ imprisonment, so does theft by a clerk or servant of property in possession of master or employer,” said Apoorva Shankar, an analyst with PRS Legislative Research.
Juveniles can be booked under IPC for ‘waging or attempting or abetting to wage war’ against the Government of India. Juvenile law expert Anant Asthana points out that trafficking, under IPC, attracts a jail term of minimum seven years.
“Several times, it is the children who are trafficked themselves or are children of commercial sex workers who get involved in trafficking,” said Asthana, adding that the law will brutalise already vulnerable juveniles. He added that in case of dowry deaths, where the entire family is booked, 16 to 18 year-olds in the family can now be booked. A juvenile, however, cannot be given death penalty or life imprisonment without the possibility of release.
In all such cases, the principle of fresh start, where all past records of any child under Juvenile Justice System should be erased, will not apply.
Experts said this and several other provisions of the Act contravene the UN Convention on the Rights of the Child that requires countries to treat all children under 18 equally. In its report submitted earlier this year, the Standing Committee on Human Resource Development said subjecting juveniles to the adult judicial system would go against several articles in the Constitution.