Critical Analysis of Juvenile Justice (Care and Protection of Children) Act, 2015 vis-a-vis
UN Convention on Children
ABSTRACT
The terrible incident of ‘Nirbhaya Rape Case’ brought forth the matter of juvenile age controversy and more particularly about those juveniles who were on the verge of becoming major on the day of alleged crime. The main questions raised by the various scholars of law was that whether the juvenile involved was really a Juvenile in the real sense considering the barbarous nature of his act? This controversy ultimately led the parliament to pass the new legislation in the form of Juvenile Justice (Care & Protection) Act, 2015. The new Act has changed the age of juvenile from from 18 years to 16 years in case of serious offences. Now the question is whether we are back to square one, as till 2000 the age of juvenile was 16 years under the law. But this present change is in contravention of the Convention on the Rights of Child, which India has signed and ratified which necessitates the treatment of all below the age of eighteen years equally and its objective is that interest of the child should be of chief concern. This new change is definitely a regressive step and will hinder the child’s right to seek Justice, a child’s legal status, the remedies for challenging violation of children’s right. This paper tries to analyze various controversies that arose due to the new Juvenile Justice act, 2015. The Paper also discusses the views of different activists regarding anticipated situation which are likely to arise when New Juvenile Justice Act will be read with other acts like Prohibition of Child marriage act, 2006, Code of Criminal procedure code and Protection of Children from Sexual Offences Act, 2012, 1973. In the end, author will conclude with the remark that this new Juvenile Justice Act, 2015 is of retributive nature instead of reformative nature which should be the main thrust of juvenile law.
Keywords: - Juvenile, Reformative, Retributive,
The terrible incident of Nirbhaya rape caseupraised many debates. And the major issue among these was the association of the juvenile offender, who was only six months short from becoming major.[1] This appeal to the law of Juvenile Justice (care and protection) Act, 2000 and the perpetrator was sentenced by the court only for three-year imprisonment. Against this decision of Apex Court, numerous protests were made, which commanded amendment in the present Juvenile Justice Law in India.
In any case, this case is not just explanation behind the Government to present this bill. The Ministry of Women and Child Development supported the presentation of bill with a few different reasons. The prime two reasons of all were, to begin with, the Juvenile Justice Act, 2000 was confronting usage and procedural deferrals.[2] Also, the National Crime Records Bureau (NCRB) Reports show increment in the Juvenile Crime between the age gatherings of 16-18 years (i.e.1% in 2003 to 1.2% in 2013).[3] Alongside the enormous defenders, there were some tyke activists, who censured this Act on numerous grounds: to start with, expressing it to be retributive not reformative.
As indicated by H.V.S. Murthy, the previous president of the Mysuru Bar Association, damaged different Fundamental Rights. Third, this Act does not take thought of other pertinent element like social foundation and mental issues. It has been settled by numerous neuroscientist that in puberty period, tyke faces enormous physiological, hormonal, enthusiastic and auxiliary change in the human mind, which subjects the kid to incredible.
INTRODUCTION
The prologue of The New Juvenile Justice (care and Protection of children), 2015, has introduced some of the remarkable changes in the existing Juvenile Law. One of such major changes is, juvenile of age group of 16 to 18 are to be tried like an adult. Also, the person who has attained the age of twenty one while in sentence will be send to the jail for rest of the time span. However, all these decisions will be taken by the Juvenile Justice Board. This paper has highlighted on various controversial issues relating to new Juvenile Justice Act with special reference to the views of different activists. Along with this, the paper has focused on the anticipated situation which may arise when the New Juvenile Justice Act, 2015 will be read with Protection of Children from Sexual Offences Act, 2012 and Prohibition of Child Marriage Act, 2006.
The first half of the paper tries to analyze various controversies that arose due to the new Juvenile Justice act, 2015 putting light on the views of Justice Verma committee and Parliaments standing committee. Second part of the paper discusses the views of different activists regarding anticipated situation which are likely to arise when New Juvenile Justice Act will be read with other acts like Prohibition of Child marriage act, 2006, Code of Criminal procedure code and Protection of Children from Sexual Offences Act, 2012, 1973. In the end, author concludes with the remark that this new Juvenile Justice Act, 2015 is of retributive nature instead of reformative nature which should be the main thrust of juvenile law.
Key Issues Of Juvenile Justice (Care and Protection act) 2015[4]
Under Section 16(1), the Act licenses adolescent who has finished or is over the age of 16, to be attempted as grown-ups for shocking offenses. This specific change shook the group of onlookers who expected a reformatory approach from the assembly. As indicated by them, it abuses Article-14 of the Constitution, as well as beats the reason for the Indian equity framework as to adolescents i.e. to bring reconstruction and recovery. In spite of the fact that around 90% of the cerebrum gets created by the age of six, yet the tweaking and psychological development of the mind keeps breaking the boundaries of such age bars.
• This act provides for compulsory constitution of Juvenile Justice Boards and Child Welfare Committees in each district involving of a Metropolitan or Judicial Magistrate, a woman and two social workers. This provision needs proper execution and timely regulation for accomplishing the real aim.
• Under this new law, a preliminary inquiry will be directed by the Boards to determine whether a juvenile offender is to be directed for rehabilitation or be tried as an adult. Section- 19(3) says that the enquiry will be assisted by experienced psychologists, psycho-social workers and other experts. This provision may affect the presumption of innocence and lead to disproportionate procedure and arbitrariness under the constitution.
• The Act also provides for adoption of the juveniles which previously was not provided under the Juvenile Justice (Care & Protection of Children) Act, 2000.
• It also lays down the penalties for cruelty against a child, offering a narcotic substance to a child and abduction or selling a child.
With so highly blended disagreements, the pleaders are as yet begging the legal and in addition the lawmaking body to acquire a reasonable adolescent law as the present Act couldn't produce review results and rebuff the adolescent who was discovered blameworthy in the "Nirbhaya assault case". Facilitate, it must be noticed that if the defendability of a few arrangements of the Act is tested under the steady gaze of the prevalent courts, it might incite an open objection. Inferable from such arrangements that disregard the arrangements given under the Constitution and UNCRC, there are conceivable outcomes of further corrections in the Act. What the arrangement of this nation needs is the compelling usage of the current laws and not the authorization of various enactments.
Views of Experts on Juvenile Justice (Care and Protection) Act, 2015
View of the Parliamentary Standing Committee of human resource development that looked at the JJ Bill-:
The committee was headed by BJP MP Satyanarayan Jatiya accompanied by members Health Minister J P Nadda (before he joined the Union cabinet). After broaddiscussions with stakeholders, that also included NGOs, and taking into account the data from the National Crime Records Bureau, the committee established that the “present juvenile system is not only reformative and rehabilitative in nature but also distinguishes the fact that 16-18 years is an very sensitive and critical age demanding greater protection. Hence, there is no need to subject them to rigorous or adult judicial system…”
Opinion of the JS Verma committee
The committee observed at available figures and technical evidence on reoffending (relapsing into criminal behavior) and also took into account India’s international promise on protecting the rights of children stating that the present cut-off of 18 years should be retained. “Children, who have been rundown of parental guidance and education, have very little probabilities of mainstreaming and rehabilitation… We are of the notion that the 3-year-period (for which offending children are kept in the protection of special homes) is cause for improvement with respect to the damage done to the persona of the child… We have also taken note of the fact that considering the re-offense being 8.2% in the year 2010 as against 6.9% during 2011, we are not motivated to reduce the age of a juvenile from 18 to 16.”
Constitution and Juvenile Justice Act
The new Juvenile Justice Act, 2015 was also disapproved by many protestors as being unconstitutional. It violates Article 14, 15(3) and 20 of Indian Constitution. Constitution of India counted every person is equal before law[5]but if we read this article with Article15 (3) then it is very much unblemished to us that Government can make special provision for the benefit and welfare of children.[6] It is also stated in the United Nations Standard Minimum Rules for the Administration of Juvenile, 1985 that the major important should be given to the juvenile Justice and though considering a juvenile in battle with law.
In Pratap Singh v. State of Jharkhand[7], it was witnessed by Court that in Rule 4 of United Nations Standard Minimum Rules for the Administration of Juvenile Justice, while defining a juvenile criminality or criminal responsibility, the psychological and the moral components must be given prime importance. However, in the current law, this psychological component has been given minimum importance.
According to Prof. VedKumari, if a sixteen years old juvenile commits a heinous crime and his or her offence is punishable with seven year sentence, then he/she need to be produce before the Juvenile Justice Board comprising a magistrate and two social workers[8] who will decide on the physical and mental capacity of the child; whether that juvenile has committed such offence has the ability to understand the consequence of the offence and in what circumstances the offence has been committed. This work of Juvenile Justice Board is to a certain extent challenging. In this process, there is vast chance of uncertainty.
It was also contended by her that many researches established that individualized assessments of adolescent mental capability are useless. Thus, the method of so-called initialvaluation by the Juvenile Justice Board may upshot in technical arbitrariness and may cause arbitrary transfer of juvenile cases to adult criminal system it may result into violation of very foundation of Constitution. Mr. P. Baburaj condemn the act of shifting case by saying that, as Chief Judicial Magistrate of the district is the governing officer of Juvenile Justice Board there is a huge chance of transferring large number of cases to adult courts.
Another issue, which is elevated by many activists, that the 2015 Act violates the soul of Article 20(1) 168 , where a person cannot be exposed to greater punishment than what would have been applicable to him under the law of land. Under new Act, if a juvenile who has accomplished the age of twenty-one but has not completed the full period of his sentence may be sent to the jail if it is considered so proper.169 This Act undermines the very spirit of Article 20(1)170. According to this provision, one may not be exposed to greater penalty, which may be imposed at the time of committing offence.
How This Act Violates UN Convention on Rights Of A Child
India had endorsed the UNCRC in 1992. In February 2000, the UN Committee on the Rights of the Child ("CRC") addressed India about the unfair way of the meaning of the expression "adolescent" under the Juvenile Justice Act, 1986 and prescribed that it be revised "to guarantee that young men under 18 years are secured by the meaning of adolescent, as young ladies as of now may be". The administrative belief behind the Juvenile Justice (Care and Protection of Children) Act, 2000, apparent from its Statement of Objects and Reasons, was to guarantee consistence with youngsters' entitlement to fairness and non-segregation under the UNCRC. "The equity framework as accessible for grown-ups is not viewed as appropriate for being connected to an adolescent or the kid or any one for their benefit including the police, deliberate associations, social specialists, or guardians and gatekeepers, all through the nation." after fifteen years, the exceptionally same Minister of Women and Child Development has shielded the treatment of youngsters as grown-ups with a view to dissuade adolescent wrongdoing.
VIOLATION OF ARTICLE 2 of UNCRC
Article 2 of the UNCRC requires all state parties to comply with the rule of non-separation and guarantee that all youngsters in strife with the law are dealt with similarly[9]. It takes after that the disadvantageous treatment of youngsters in view of their age and the way of the offense they purportedly submit would constitute an infringement of Article 2.
Through the presentation of an exchange framework and a preparatory appraisal methodology to decide the limit of a youngster to perpetrate the wrongdoing preceding the foundation of blame, the JJ Bill spurns probably the most fundamental principles of the UNCRC. The CRC has completely denounced the treatment of youngsters as grown-ups. It has suggested that:
“… those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years.”
The transfer provisions grossly violate Article 2 of the UNCRC and incorporates punitive goals that have no place in the juvenile justice system envisaged under the UNCRC.
Life imprisonment with the possibility of parole offends the right to life, survival and development
The CRC has emphatically suggested that State Parties "abrogate all types of life detainment for offenses conferred by people less than 18."under years old Clause 22 of the Bill, life detainment with the likelihood of discharge can in reality be forced on youngsters above 16 years. This conflicts with the late regulating advancements at the universal level.
Re-integration objective undermined
As indicated by the Article 40(1) of the UNCRC, all kids in struggle with the law must be dealt with in a way that is predictable with their feeling of nobility and worth and fortifies their regard for human rights and central opportunities.[10] The treatment must guarantee advancement of their reintegration into society. The JJ Bill, 2014 overlooks the points of reintegration and rebuilding of a tyke in struggle with the law, by accommodating an exceedingly subjective assurance of their ability to make 'important commitments' to society when they achieve the age of 21 years. An inability to finish this test would bring about a programmed exchange to a grown-up prison. Regardless of the possibility that a kid is found to have experienced reformative changes toward the end of this evaluation procedure anyway, she or he will cause the exclusions connected to the conviction, making it difficult to secure profitable business or remain for races. As a result, reintegration would be incomprehensible.
Transfer to an adult jail violates Article 37(c)
The UNCRC explicitly requires that all youngsters denied of their freedom be isolated from grown-ups. The CRC has elucidated that this detachment is not simply specialized and "does not imply that a kid set in an office for youngsters must be moved to an office for grown-ups quickly after he/she turns 18." On June 13, 2014, the CRC's Concluding Observation on India's adolescent equity framework was that it must guarantee "age-fitting division of kids in Observation and Special Homes and that kids in struggle with the law are not kept together with kids needing security or with grown-ups and that confinement conditions are consistent with global measures, incorporating concerning access to training and wellbeing administrations".
In gross carelessness of Article 37(c) and the Concluding Observation on it, the JJ Bill takes an untenable position on the division of youngsters from grown-ups, by recommending that the previous be exchanged to grown-up detainment facilities on the off chance that they fizzle an appraisal of their reorganization when they finish 21 years old (Clause20(3)). Such an exchange is inconsistent with the unmistakable forbiddance on the detainment of kids with grown-ups under the UNCRC.