The Union Ministry for Women and Child Development has proposed a repeal and re-enactment of the existing Juvenile Justice (Care and Protection of Children) Act, 2000 (the JJ Act 2000), the primary law in the country dealing with children in conflict with the law and children in need of care and protection. CLPR provided its comments to the Ministry on two aspects of the proposed draft Juvenile Justice (Care and Protection of Children), Bill 2014 – the treatment of children between the ages of 16 and 18 who are alleged to be in conflict with the law and the provisions relating to foster care.
In a move that could have far reaching consequences for the juvenile justice system, the draft Bill provides a mechanism for children between the ages of 16 and 18 who are accused of committing certain heinous crimes such as rape and murder or who may be repeat offenders for a broader range of crimes including robbery and dacoity to be tried in regular courts alongside adults rather than under the JJ Act. Sections 14(1) and (2), together with Section 17(3), of the draft Bill require the Juvenile Justice Board to make an enquiry within one month regarding “the premediated nature of such offence, the mitigating circumstances in which such offence was committed, the culpability of the child in committing such offence and the child’s ability to under the consequences of the of the offence”, following which the Juvenile Justice Board may pass an order for the child to be tried either pursuant to the JJ Act or in a regular court.
CLPR opposed the proposal to allow children between the ages of 16 and 18 to be tried in regular courts as being inconsistent with international conventions on child rights, recent supreme jurisprudence as well as being a violation of equality under Article 14 of the Constitution.
- International Conventions: A number of international conventions on child rights, including the UN Convention on the Rights of the Child (CRC), the UN Rules for the Protection of Juveniles Deprived of their Liberty and the UN Standard Minimum Rules for the Administration of Juvenile Justice all provide for 18 years to be the age of majority and recognize the need for children in conflict with the law to be tried through a different criminal justice system from that applicable to adults. In fact, the JJ Act 2000 was enacted in order to comply with India’s obligations under these international conventions and to provide for a juvenile justice system centred around protection and rehabilitation of children in conflict with the law rather than retribution and punishment. The JJ Act 2000 raised the age under which boys may not be tried in a normal court from 16 to 18 (the previous JJ Act 1986 provided 16 as the age for boys and 18 as the age for girls) in response to a UN Committee of the CRC expressing concern that Indian law allowed children under the age of 18 to be tried as adults. The proposed provisions in the draft Bill would amount to reverting to the 1986 legislation which was repealed after much international pressure.
- Supreme Court Rulings: Two recent Supreme Court judgements also support continuing to have all persons under the age of 18 being tried pursuant to the JJ Act rather than as adults. In Salil Bali v. Union of India, the court pointed out that the age of 18 had been decided on account of understanding the psychology and behavioural patterns exhibited by children below that age and the utmost need for their restoration to mainstream society through rehabilitation. In its most recent judgement on the age of juveniles in March 2014, the Supreme Court in Dr. Subramanian Swamy & Ors v. Raju, upheld the constitutionality of the provision in the JJ Act that mandated all children below the age of 18 to be tried pursuant to the JJ Act.
- Violation of Equality under Article 14: By providing for a certain category of juvenile offenders to be treated differently from others based on a very vague set of criteria, the proposed Sections 14(1) and (2) and 17(3) of the draft Bill would amount to a violation of the guarantee of equality before the law under Article 14 of the Constitution. Aside from the broad and vague set of criteria set out in the proposed Sections 14(1) and (2) of the draft Bill, no guidance is provided to the Juvenile Justice Board on how to make its determination as to whether a child should be tried under the JJ Act or in a normal court. A determination based on such vague criteria could then result in children under the age of 18 being tried in a regular court where they could be denied bail and granted long sentences of several years, thereby undoing the very aim of rehabilitation that forms the core of the juvenile justice system.
CLPR also provided various suggestions to the foster care provisions in the draft Bill drawing upon its work with Foster Care India. Enhancing the definition of foster to include both long-term or short-term care, ensuring that foster care is available both for children in conflict with the law and for children in need of care and protection and stipulating that the state always consider family-based care over institutional care were some of CLPR’s suggestions in this area. CLPR also suggested various provisions that state government rules on foster care should include in order to provide for a robust legal framework for foster care in the country.