On Wednesday (December 20th) the Juvenile Justice Board ruled on an application of the victim’s father in the Ryan International School murder case that the accused, who is a 16-year old student, would be tried as an adult. This has brought forth the debate regarding the amended Juvenile Justice (Care and Protection of Children) Act, 2015, which introduced a provision for 16-18 year olds to be tried as adults.
The Juvenile Justice (Care and Protection of Children) Act, 2015, came as a replacement to the Juvenile Justice (Care and Protection of Children) Act, 2000. Under both these legislations a ‘juvenile’ has been defined as a child below the age of eighteen years of age. This age has been set in consonance with the standard set by the Convention of the Rights of Child adopted by the UN General Assembly which was signed and ratified by the Government of India in 1992.
The turning point in this legislation came about with the Nirbhaya rape case, where a medical student was brutally raped on December 16th, 2012, eventually leading to her death. One of the primary accused in this case was a ‘juvenile’ under the definition of 2000 Act. The incident received massive media attention and we saw protests erupt across the nation, while public hysteria demanded prosecution of the accused juvenile as an adult. As a result of this public outcry, a new bill was brought into the Lok Sabha in August 2014 which was finally got passed on December 22nd, 2015.
Ved Kumari, Dean of Faculty of Law, Delhi University, and a leading authority on juvenile justice, in an interview to the Invisible Lawyer, stated, “There is difference between democracy and a “mobo-cracy”. This is what the mobocracy wanted. The legislation gave in to that mob-ocracy, not democracy.” (Read the interview with Ved Kumari here.)
The new Act came with a provision permitting juveniles between the ages of 16-18 years of age to be tried as adults in the cases of “heinous offences”. The Juvenile Justice (Care and Protection of Children) Act, 2015, defines “heinous offences” as those offences “for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more”.
Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Act reads as follows:
Section 15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment 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 allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.—For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment 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 order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period specified in section 14.
For a child to be tried as an adult is prima facie mala fide. The amended Act was vehemently opposed by child rights activists in the fear that children will be tried as adults, sent to prisons as adults and face harsh and disproportionate treatment thus eliminating any scope for reformation.
The Supreme Court in Salil Bali v Union of India, which took up the matter of the rape of Nirbhaya, recommended that no interference was necessary with the provisions of the statute till such time as sufficient data is available to warrant any change in the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and the Rules. It was held as follows:
“63. The essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed thereunder in 2007, is restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society. The age of eighteen has been fixed on account of the understanding of the experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society, instead of becoming hardened criminals in future. There are, of course, exceptions where a child in the age group of sixteen to eighteen may have developed criminal propensities, which would make it virtually impossible for him/her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking, since it is probably better to try and reintegrate children with criminal propensities into mainstream society, rather than to allow them to develop into hardened criminals, which does not augur well for the future.”
The amended act has been seen as a step backwards in the arena of juvenile justice. It has ignored developments in restorative justice that has made progress in several countries where it has seen decrease in repeat offences. The Supreme Court of the United States of America abolished the juvenile death penalty in the case of Roper v. Simmons, where Justice Anthony Kennedy highlighted the three specific aspects of adolescents which diminished their criminal culpability, i.e., their underdeveloped sense of, their heightened vulnerability to peer pressure, and the unformed nature of their characters.
The primal instinct of retributive justice makes for bad law. The decision of the Juvenile Justice board to treat the accused juvenile as an adult in the Ryan International School murder case should prompt activists to challenge the amended law.
 (2013) 7 SCC 705
 543 U.S. 551 (2005)
Ankita Ramgopal is Research and Advocacy Officer with Lawyers Collective