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Parliamentary Standing Committee Stands up for Child Rights – “All children below 18 years should be treated as children”

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1545728_10202142243049980_1172480014_nNATIONAL LEGAL RESEARCH DESK

The Juvenile Justice (Care and Protection of Children) Bill, 2014 was introduced in Lok Sabha on the 12th August, 2014 and referred to the Department-related Parliamentary Standing Committee on Human Resource Development by the Chairman, Rajya Sabha, in consultation with the Speaker, Lok Sabha on the 19th September, 2014 for examination and report.

In its Report tabled in the Parliament the Committee has termed that all children below 18 years should be treated as children. The Committee has termed the ammendment to the age of the child for “henious offences” as proposed by the Ministry of Women and Child Government of India as Unconstitutional.

The Committee in its 70 Page Report has stated that ” It is in full agreement with the very comprehensive views of the stakeholders that clause 7 is discriminatory and all children below 18 years should be treated as children. The proposed legislation is meant for children alleged and found to be in conflict with law. And the definition of both the terms ‘child’ and ‘child in conflict with law’ mean a person who has not completed eighteen years of age. Accordingly, the question of envisaging a differential treatment for children above sixteen years of age should not arise. Such a move would lead to contravention of international laws and also the stated purpose of the Bill.”

Below are some of the Observations made by the Parliamentary Standing Committee:

The Committee notes that, besides modifications of existing provisions in the JJ Act, 2000, certain new provisions form part of the Bill. Clause 7 is one such provision. Very strong objections and apprehensions about the likely impact of this provision were voiced by all the stakeholders appearing before it. Deletion of clause was emphatically advocated by them.

On being asked about the rationale for having such a provision, the Ministry classified that under clause 7, it was proposed that persons above the age of 21 years were to be apprehended for committing a serious or heinous offence when he was a child, then he was proposed to be tried as an adult. It would encourage persons to come forward and inform about the offences committed so that they remained under the Juvenile Justice System. The Committee was also given to understand that during the implementation of the JJ Act, 2000, it was seen that adults who had committed an offence when they were below the age of 18 years were kept along with children in Observation Homes or Special Homes. This had resulted in abuse and exploitation of children by adults. It was felt that keeping in view the best interest of children, it was necessary they were separated from adults. Accordingly, anyone above the age of 21 years apprehended for committing an offence when he was a child be treated and kept under the adult criminal system.

The Committee views with serious concern the kind of argument put forth by the Ministry, while justifying the inclusion of a provision like clause 7. The Committee fails to comprehend as to how could such a provision would encourage persons to come forward and inform about the offences committed by them so that they could remain under the Juvenile  Justice System. The Committee would like to point out that unless a person is proved guilty, he cannot be treated like an offender. Secondly, the perception that a person in the age group of 16-18 years alleged to be committing a serious or heinous offence would be mature enough to come forward to inform about his offence so as to ensure his remaining under the Juvenile Justice System seems to be far from convincing.

After analysing all the facts placed before it, the Committee is left with no other alternative but to conclude that concerns expressed by all the stakeholders are very genuine and cannot be ignored. The Committee is also of the view that clause 7 is in clear violation of Article 20(1) of the Constitution which states that:

“No person shall be convicted of any offence except for violation of the law in force at the time of the Commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

A plain reading of clause 7 clearly indicates that a person who was a child when the offence was committed will be treated as an adult on account of failure on the part of the investigating agencies in apprehending him/her. Besides this, the Committee also observes that this provision is also in complete violation of the right to equality under Article 14 which states that:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Again, clause 7 creates an artificial differentiation between children apprehended before 21 years and those apprehended after 21 years of age. The Committee finds no rationale in such a categorization.

The Committee was also informed that this provision would also violate Article 15 of the International Covenant on Civil and Political rights, a non-derogable right under the convention which reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.”

The Committee also takes note of Supreme Court judgments in Umesh Chandra (1982), Arnit Das (2000), Arnit Das (2001) and Pratap Singh (2005). The five judges Constitutional Bench of the Supreme Court in Pratap Singh held the age on the date of offence to be determinative of the application of the Juvenile Justice Act. The observation of the Supreme Court in its judgement (SLPC(vi) No. 1953 of 2013) in Dr. Subramanian Swamy Vs. Raju, Member, JJB pointed out that

“………If the legislature has adopted the age of 18 as the dividing line between juveniles and adults and such a decision is constitutionally permissible, the enquiry by the Courts must come to an end. Even otherwise there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them so far as offences committed by such persons are concerned.”

1965644_10152913009935798_3679476893474718173_oKeeping in view the very specific constitutional provisions, international conventions and Supreme Court judgments, the Committee simply fails to comprehend the absurdity and the arbitrary nature of clause 7. The Committee finds no logical reason why persons apprehended after they have crossed 21 years should face serious disadvantage or how this severe provision furthers the goals of criminal justice. The Committee also takes note of the fact that there have been several legal controversies surrounding this very question. The JJ Act, 2000 was amended in 2006 precisely in order to clarify that the date of reckoning will be the date on which the offence was allegedly committed and not when the juvenile was apprehended.

The Committee is of the firm opinion that clause 7 is discriminatory in itself, undermines the constitutional provisions as well as international commitments and ignores the Supreme Court directives. The Committee, accordingly, recommends that such a provision should not be a part of the proposed legislation and be deleted.

CLAUSE 15: INQUIRY BY BOARD REGARDING CHILD IN CONFLICT WITH LAW.

Clause 15(3): The clause deals with the procedure for inquiry by JJ Board with regard to a child in conflict with law :
“ A preliminary inquiry in case of heinous offences under section 16 shall be disposed of by the Board within a period of one month from the date of first production of the child before the Board.”

The Committee notes that this sub-clause requires JJB to conclude a preliminary inquiry in case of heinous offences within a period of one month from the date of first production of the child before the Board. During its deliberations with stakeholders, the Committee was given to understand that in normal course of crimes committed by adults, no chargesheet can be filed within the stipulated period. However, as per this sub-clause, JJB is required to take a decision of transferring such a child to the Children’s Court within a period of one month without a proper investigation by the investigating agency or before such investigation is completed and the child is prima facie found to have committed such heinous offences. This provision proceeds on the assumption that the alleged offence has been committed by the child and is contrary to the presumption of being innocent till proved guilty. It thus violates Fundamental Rights guaranteed under Article 14 and 21 of the Constitution by directing JJB to inquire into the culpability prior to prima facie establishment of the guilt. The Committee, accordingly, recommends that the period of preliminary inquiry by JJ Board may be suitably enhanced.

X. CLAUSE 16: PRELIMINARY INQUIRY INTO HEINOUS OFFENCES BY THE BOARD.

This clause reads as:

“(1) In case of a heinous offence committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary inquiry with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 19:

Provided that for such an inquiry, the Board may take the assistance of experienced psychologists, psycho-social workers and other experts.

(2) Where the Board is satisfied on preliminary inquiry that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973. Provided that the inquiry under this section shall be completed within the period specified in section 15.”

This clause specifically deals with cases of such children who have completed or are above the age of sixteen years and have committed a heinous offence. Procedure regarding holding a preliminary inquiry in such cases has been enumerated in this provision. In other words, a distinction is sought to be made between children below and above sixteen years of age in the context of gravity of an offence. The Committee notes that such a provision was not part of the JJ Act, 2000. Very strong views were expressed by all the stakeholders appearing before the Committee about the viability of a provision which prime facie seemed to be very discriminatory.

The foremost flaw pointed out was that this provision required JJB to assess whether a child above sixteen years of age who has committed a heinous offence has the physical and mental capability to commit the offence, along with circumstances in which he has committed the offence. In other words, it implies an assumption that the child has already committed the alleged offence. This enquiry in an essence would be a sentencing decision that is arrived at even before the guilt is established. It was emphasized that such an action would denote complete violation of the presumption of innocence, a central tenet of the juvenile justice as well as the criminal justice system. Also, such an arbitrary and irrational procedure clearly contravenes the fundamental guarantees made under Articles 14 and 21 of the Constitution.

Differential treatment of children who have completed or are above 16 years and below the age of 18 and are in conflict with law as a result of commission of heinous crimes are to be tried as an adult under the criminal justice system was also in complete contravention to the UNCRC and the Bill’s stated purpose of adopting a child friendly approach in the adjudication and disposal of matters in the best interests of children. It was further pointed out that in fact the subsequent trial shall also not be a fair trail as the preliminary inquiry has already labelled the child as “capable of committing crime”.

Another significant deficiency brought to the notice of the Committee was that the assumption that an accurate assessment of mental capacity/maturity for the purpose of transfer of the trial of the care to the Children’s Court was possible when this was not true. Not only this, such an assessment would be fraught with errors and arbitrariness and would allow inherent biases to determine which child was to be transferred to an adult court. The very presumption that persons between 16 and 18 years were competent to stand trial just as adults was also not free from very genuine doubts.

The Committee also takes note of the fact that this clause binds Juvenile Justice Board (JJB) to conduct a ‘preliminary enquiry within one month in respect of heinous offences committed by children above 16 years regarding their mental and physical capacity and understanding of consequences, etc. and pass orders under section 19 including, transferring the child for trial by children’s court or the sessions court in the absence of children’s court. The Committee would like to point out that considering the fact that large number of innocent children are being involved in crimes, which was evident from the decisions of JJBs across the country, it is impossible to conduct such a complex enquiry within a period of one month. Such a provision will amount to complete denial of fundamental rights, justice, fair and discriminate proceedings and also the negation of basic principles and provisions of Juvenile Justice (Care and Protection) Act, 2000 itself.

The Committee is of the view that all children below 18 years are amenable and should be treated in the same manner because of the fact that their involvement in offending acts was primarily due to either environmental factors or their unique developmental features such as risk taking nature, less future orientation, adventurism, etc., or both. The Committee would also like to point out that the process suggested for treating 16-18 years children involved in heinous offences, i.e preliminary inquiry by JJB and professional team, then based on their decision to Children’s Court (CC) then decision by CC regarding where to be tried, then sending the child back to JJB for trial would lead to multiple and repeated trials before different authorities that would psychologically drain him/her. The Committee, accordingly, recommends that this entire process needs a relook and review.

THE PARLIAMENTARY STANDING COMMITTEE REPORT ON JUVENILE JUSTICE ACT

THE DRAFT BILL AS PRESENTED BEFORE PARLIAMENT

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