Guidelines for Juvenile Trial

Context: The National Commission for Protection of Children (NCPCR) has issued guidelines for conducting a preliminary assessment by the Juvenile Justice Board (JJB) to determine if a juvenile can be tried as an adult.

Decoding the News

• Under Section 15 of the Juvenile Justice Act, 2015 (JJ Act, 2015), the Juvenile Justice Board (JJB) conducts preliminary assessment to determine if a juvenile can be tried as an adult.
• The Juvenile Justice Act, 2015 (JJ Act) had replaced the Juvenile Justice Act, 2000, and provided for trying juveniles in the age group of 16-18 as adults in cases of heinous offences.
• In case the child is tried as an adult, the maximum sentence can be life imprisonment, but if the child is tried by the board as a juvenile, the maximum sentence will be three years in a special home.

What is the Need for trial of juvenile as an adult?

• Punishing heinous crimes: After the 2012 Nirbhaya case, there was a public outcry to allow trial of children between the ages of 16-18 as an adult, if they are accused of a heinous crime.
  • Crimes considered heinous include murder, rape, robbery, acid attacks, waging war against the government, drug trafficking, human trafficking, among others.
• Fair application of law: Just because the accused if below 18 years, giving them lenient treatment is unfair and unjust. Law should not be an impediment in trial of juvenile criminals committing heinous crimes.
• Change in mental development age: The previous notion of complete mental development after the age of 18 years is far from accurate. Studies have shown that mental development takes place well before the age of 18 years due to exposure to vices of society.

Preliminary Assessment Guidelines under the JJ Act, 2015

• Provide access to Order: The Juvenile Justice Board (JJB) is responsible for the preliminary assessment and provides the child, the child’s family, and their counsel a copy of the order.
• Social Investigation Report (SIR): The JJB needs to take into consideration the Social Investigation Report (SIR), prepared by the Probation officer or Child Welfare Officer or any social worker, during preliminary assessment.
  • JJB can also consider Social Background Report (SBR) to be prepared after interaction with the child or child’s family.
• Use of child psychology experts: The Board needs to take the assistance of psychologists or experts who have the experience of working with children in difficult times, in case they do not have such a practicing professional as a member of the JJB.
• Legal aid counsel: The accused child must be provided with a legal aid counsel through the District Legal Services Authority who has to be present during the preliminary assessment.

What is the Procedure for trying a juvenile as an Adult?

• Categorizing offences: The offences committed by juveniles is categorized into three categories under the JJ Act of 2015 — petty offences, serious offences, and heinous offences.
• Conducting preliminary assessment (Section 15): In case the crime has been committed by a child, who has completed or is above the age of 16 years, the JJB will have to conduct a preliminary assessment regarding his/her mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which the alleged offence was committed.
  • This applies to all offences for which the minimum punishment is seven years imprisonment. The preliminary assessment has to be completed within three months from the date of first production of the child before the JJB.
• Transfer of case: Under Section 18 (3), if the JJB determines that there is a need for conducting trial as an adult, then it may pass an order to transfer the case to the Children’s Court having jurisdiction to try such offences.
• Role of Children’s Court: Under Section 19 of the act, the court can pass an order on whether there is a need for trial of the child as an adult, or otherwise.
  • The court has to ensure that the child in conflict has to be sent to a “place of safety” until he/she attains the age of 21 years and is only then transferred to jail.
  • The court has powers to order the conditional release of the child after he/she attains the age of 21 years.
  • Provisions such as protection from disqualification, and erasure of conviction record after a reasonable period do not extend to a child who has been tried as an adult.
• Monitoring implementation: Under section 109 of the JJ Act 2015, NCPCR is responsible for monitoring the proper implementation of the provisions of the Act.
• Training for experts: Experts, who have the required qualification to assist the JJB, need to undergo training concerning Section 15 of the JJ Act, 2015.

Conclusion

• The guidelines have been notified to remove any ambiguity and to clarify the steps that have to be followed while carrying out the preliminary assessment.
• The most critical challenge remains the adoption of these principles in the system, particularly to be followed by the JJB and the Children’s Court.
• The preliminary assessment is a delicate task that needs expertise and has its own implications regarding trial of the case. It is thus necessary to properly implement the guidelines on assessment.

National Commission for the Protection of Child Rights (NCPCR)

• The National Commission for Protection of Child Rights (NCPCR) is a statutory body formed under the Commission for Protection of Child Rights (CPCR) Act, 2005.
• It works under the aegis of Ministry of Women and Child Development.
• Mandate: NCPCR has the mandate to ensure that all Laws, Policies, Programmes, and Administrative Mechanisms are in consonance with the Child Rights.
• Members of the Commission:
  • The chairperson must be a person who has worked for promoting the welfare of children.
  • Six members, two of them must be women, who should have experience or worked in following fields:
    • Education
    • Child health, care, welfare or child development.
    • Elimination of child labour or children in distress.
    • Child psychology or sociology.
    • Juvenile justice or care of neglected or marginalized children or children with disabilities.
    • Laws relating to children

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