The events of 16th December, 2012 changed the way people looked at child criminals. The heinousness of the crime forced people to step out and demand justice. Many argued that the juvenile involved should not be let out easy under the provisions of the Juvenile Justice Act, 2000 and should be tried under normal penal laws. The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in the Lok Sabha on August 12, 2014 by the Ministry of Women and Child Development, and has been a hot topic of debate amongst lawyers, child activists etc. The proposed amendment finds its significance in light of the increasing crimes committed by children in the age group of 16-18 years and growing concern that the current provisions and system under the Act are ill equipped to tackle child offenders within this bracket. The data collected by the National Crime Records Bureau establishes that crimes by children in the age group of 16-18 years have increased especially in certain categories of heinous offences. The Bill seeks to treat juvenile delinquents on the same pedestal as adult criminal when it comes to heinous crimes, which is defined in the Bill. There are many issues involved with this sort of treatment including infringement of the provisions of the Constitution, international obligations of India under the UN Convention on Rights of Child and disregarding the special situation of child delinquents.
The Bill replaces the Juvenile Justice (Care and Protection of Children) Act, 2000. Some noteworthy amendments are as follows:
- Juveniles between the ages of 16-18 years to be tried as adults for heinous offences: Clause 16(1) of the Bill states that in case of a heinous crime conducted by a child of or above the age of 16 years can be tried as an adult as per Clause 19(3) if it can be established by the Board, after its preliminary inquiry that he had theability to understand the consequences of the offence. It provides that where the Board is satisfied on preliminary inquiry that the matter should be disposed off by the Board, then the Board shall follow the procedure, for trial in summons case under the Code of Criminal Procedure, 1973. “Heinous offences” include the offences for which the minimum punishment under the Indian Penal Code, 1860 or any other law for the time being in force is imprisonment for seven years or more.These essentially include crimes like murder, rape, kidnapping, robbery and dacoity.
- Placement of a person above age of twenty-one years for committing any offence when he was a child: Clause 7 states that “any person, who is apprehended after completing the age of twenty-one years, for committing any serious or heinous offence when such person was between the age of sixteen to eighteen years, then he shall, subject to the provisions of this Act, be tried as an adult.” But any person, who has completed eighteen years of age, but is below twenty-one years of age and is apprehended for committing an offence when he was below the age of eighteen years, then he shall be treated as a child during the process of inquiry.
- Establishment of Juvenile Justice Board and Child Welfare Committee: The JJB will conduct a preliminary inquiry to determine whether a juvenile offender is to be sent for rehabilitation or be tried as an adult. The CWC will determine institutional care for children in need of care and protection. The Bill mandates that a JJB and CWC be constituted in every district.
- Adoption: The Bill establishes the procedure for adoption and the eligibility criteria for adoptive parents. Clause 58 (1) states that the prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him. While single parents are allowed to adopt, a single male cannot adopt a girl child. It also sets the procedure for inter-country adoption.
- Penalties: While the punishment for giving intoxicating liquor and narcotic drugs to a child has been set upto 7 years of rigorous imprisonment, the penalty for selling a child is only 5 years. Further, punishment for cruelty and abandonment against a child is only 3 years.
Congress MP Shashi Tharoor while participating in the debate after the Bill was introduced commented that the Bill will embarrass the Government and will also violate the Beijing Rules which require a child or a young person accused of an offence to be treated differently from an adult.It is widely accepted that juveniles who indulge in criminal behaviour usually belong to a poor and illiterate background. Many activists believe that this shows that the society has failed in its duty to take care of him or her. Also, a 16 year old coming out of prison at the age of 26 will not be reformed and will never be able to become a productive member of the society. This will increase his chances of resorting back to criminal activities.
These provisions are also in violation with many fundamental rights. To begin with, it breaches the right to equality under Article 14 as the treatment of criminals differs with when they are apprehended. It also goes against Article 15(3) which recognises “specially vulnerable” sections, which include women and children for whom the State can make special provisions.The provision also counters the spirit of Article 20(1) by according a higher penalty for the same offence, if the person is apprehended after 21 years of age. Moreover, in Pratap Singh v. State of Jharkhand, the Supreme Court held that the date of commission of offence is relevant for determining juvenility and not the date of prosecution.
These provisions also provide a lot of discretionary powers to the JJB which will decide whether the juvenile of 16-18 years should be treated like an adult criminal or not. Further,Amod Kanth, former DGP Goa, and one of the experts who drafted the original Juvenile Justice Act in 1999 has argued that the data used by the Ministry on which it has based this Bill is misleading and dependant on figures based on FIRs and the actual number of such crimes are much lower.
Even if it is to be agreed that crimes being committed by juveniles is increasing, the step taken by the Legislature to curb it is not in the right direction. Along with a lot of inconsistencies with the Constitution, the Bill also goes against child rights jurisprudence. Maybe, a better application of the current law and an emphasis on the rehabilitative aspect of JJBs is the need of the hour. The sensitive nature of child delinquents has been ignored by this Bill which doesn’t serve well for India in fulfilling its international obligations.
Hereinafter, ‘The Act’.
Hereinafter, ‘The Bill’.
Statement of Object and Reason, The Juvenile Justice (Care and Protection of Children) Bill, 2014.
Constitution of India, 1950. Hereinafter, ‘The Constitution’.
UN Convention on Child Rights, 1989.
Section 2(33) of the Juvenile Justice (Care and Protection of Children) Bill, 2014.
Section 6(1) of the Juvenile Justice (Care and Protection of Children) Bill, 2014.
 Hereinafter ‘JJB’.
 Hereinafter ‘CWC’.
 Beijing Rules, 1985.
Rule 2.2 reads “A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult”.
Abantika Ghose, In Fact: New Juvenile Justice Act on the way, but debate continues, available at, http://indianexpress.com/article/explained/in-fact-new-juvenile-justice-act-on-the-way-but-debate-continues/, last accessed on 20th September, 2015.
Article 15(3) of the Constitution of India, 1950.
Article 20(1) of the Constitution of India, 1950.
Pratap Singh v. State of Jharkhand, AIR 2005 SC 2731.
Vidya Venkat, Experts Dispute premise of Juvenile Justice Amendment, available at, http://www.thehindu.com/news/national/experts-challenge-juvenile-justice-bill/article7188737.ece, last accessed on 28th September, 2015.