What is the issue?
- In 2016, a 17-year-old murdered his 3-year-old neighbour in Mumbai.
- The Mumbai city Juvenile Justice Board and a children’s court directed that he be tried as an adult under the Juvenile Justice (Care and Protection) Act, 2015.
- But the Bombay High Court set aside these orders last week and directed that the accused be tried as a minor.
What is the JJ act?
- The Juvenile Justice Act 2000 (JJ act), amended in 2015 with a provision allowing for Children in Conflict with Law (CCL) to be tried as adults under certain circumstances.
- It defines a child as someone who is under age 18.
- For a CCL, age on the date of the offence is the basis for determining whether he or she was a child or an adult.
- The amended Act distinguishes children in the age group 16-18 as a category which can be tried as adults if they are alleged to have committed a heinous offence.
- Heinous offence (Here) – One that attracts a minimum punishment of 7 years.
- The Act does not make it mandatory for all children in this age group to be tried as an adult.
Why was the amendment made?
- The amendment was proposed by the Ministry of Women and Child Development in 2014.
- This was proposed in the backdrop of the 2012 Delhi gang-rape of a woman inside a bus, in which one of the offenders was 17-year-old.
- The Ministry also cited an increase in cases of offenders in that age group.
- But the child rights activists objected to the amendment.
- J S Verma Committee constituted to recommend amendments also stated that it was not inclined to reduce the age of a juvenile from 18 to 16.
What the Bombay High Court do?
- In the case, the accused was a juvenile at the time of offence be tried as a minor.
- The Bombay High Court’s observation - Trial as an adult is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled.
What are the criteria under JJ Act?
- As per Section 15 of the JJ Act, there are three criteria that the Juvenile Justice Board in the concerned district should consider while conducting a preliminary assessment to determine whether the child should be tried as an adult or under the juvenile justice system.
- The 3 criteria are,
- Whether the child has the mental and physical capacity to commit such an offence;
- Whether the child has the ability to understand its consequences;
- Whether the child knows the circumstances in which the offence was committed.
- If the Board finds that the child can be tried as an adult, the case is transferred to a designated children’s court, which again decides whether the Board’s decision is correct.
How do these criteria relate to this case?
- Both the Juvenile Justice Board and the children’s court had relied on,
- Probation officer’s social investigation report and
- A Government hospital’s mental health report.
- Probation officer’s report stated that,
- The child or his family did not have a criminal record, and
- Called the juvenile highly manipulative
- The child had confessed that the victim was killed accidentally.
- The juvenile was counselled on focusing on his studies, and that he had taken and passed his exams while lodged in the observation home.
- Mental health report said the juvenile had no psychiatric complaints at present, was normal, and suffers from no mental incapacity to commit the offence.
What was the court's response?
- The High Court said that neither report brought out any exceptional circumstances to compel the juvenile to face trial as an adult.
- It also said that it had undertaken no independent assessment.
- It said, the statute permits a child of 16 years and above to stand trial as an adult in case of heinous offence, but doesn’t mean that all those children should be subjected to adult punishment.
- One of the court’s key observations was that the trial in the regular court is offence-oriented (prison is the default opinion); in the juvenile court, it is offender-oriented (societal safety and the child’s future are balanced, prison is the last resort).
Source: The Indian Express