The most important change brought in by the Juvenile Justice (Care and Protection of Children) Act, 2015 has been the introduction of preliminary assessment of 16-18 years old alleged to have committed a heinous offence. There are three important aspects to this process. First, the Juvenile Justice Board should conduct a preliminary assessment.
Second, if the child is transferred to the Children’s Court to be tried as an adult, and if the latter decides to try the child as an adult, what would constitute appropriate orders. Third, the role and functioning of the ‘Place of Safety’ where these children are to be kept in most cases during proceedings unless released in the care of parents and in all cases if they are found to have committed the offence alleged and tried as an adult.
The Act has left many gaps in the actual operationalisation of this process and one had expected detailed guidelines for the Juvenile Justice Board and the Children’s Court in carrying out this process. However, the Draft Rules provide almost no further guidelines in any of these three aspects.
The Rules have given a long list of aspects that should be considered in determining transfer during assessment but they fail to mention which factors should lead to transfer and which ones are indicators against transfer. The Rules reiterate that both the Board and the Children’s Court should remember that all children are presumed to innocent of mala fide intention till the age of 18 years and it should be displaced only on a prima facie evidence to the contrary but there are no guidelines as to what constitutes such prima facie evidence.
The directions for both the Board and the Children’s Court are that they must provide a child friendly atmosphere encouraging the child to tell freely about themselves, their past life, their family environment, and if anybody has abused them or committed offence against them but inclusion of details of the offence is against the fundamental
right and against self-incrimination. These rules not only violate the Constitutional principle but are also contrary to the fundamental principle against waiver of rights.
There is also no clarification about what constitute appropriate orders by the Children’s Court? While the question of transfer arises only if the offence alleged is punishable with minimum imprisonment of seven years or more, the appropriate order does not seem to be guided by that duration as the Act says that the appropriate order has to be made keeping in view the needs of the child. There is certainly a need for clarification of this aspect as the Act seems to choose different criteria for classification of offences and for passing the appropriate order.
Reforming children
The Place of Safety has a very important role in reformation of the children during their stay there as they can be released on attaining the age of 21 years if reformed. The Rules do provide that the Children’s Court shall consider whether there have been any lapses on the part of the Place of Safety due to which the child may not have reformed but it lays down no direction for further action if that indeed be the case.
Will such a child be released or not if he failed to reform for no fault of his as the Place of Safety provided no support structure for their reformation?
There are no guidelines or directions about the infrastructure, facilities and support services to be provided for the children kept there like counselling, behaviour modification therapy, and psychiatric support etc, mentioned in the Act. The segregation within the Place of Safety should certainly be followed in practice for providing individualised care to different categories of children.
But it does not conceive that there may be a person above the age of 21 years who may need to be kept in the Place of Safety for age determination if the offence alleged to have been committed by them had taken place before they attained the age of 18 years.
The Rules have further carried forward the confusion in the process of appeal. They provide that when an appeal is filed against the decision of the Board to transfer the child to the Children’s Court, the latter will first decide the appeal and then proceed with reassessing whether to deal with the child as a child or not. The latter proceedings have no meaning if the Children’s Court has already given its finding on the appeal. On the reverse side, the appeal before the Children’s Court has no meaning if it has in any case to determine whether to deal with the child as a child or try him as an adult.
The Rules should have clarified that appeal against the decision of the Board shall lie before the Sessions Court as both the Board and the Children’s Court are both the first court of trial. It is not clear why the district judge has been given the supervisory function over the Board while the appellate authority for both the Board and the Committee remains the session judge.
There are many Rules which emphasise the child-friendly nature of the Act. For example, there is the specific rule against use of handcuffs or any other kind of fetters. The physical infrastructure spelt out for each Juvenile Justice Board is also ideal. Only time will tell, however, if these will remain on paper only or some of it will get implemented on the ground. As the Rules have been put out in the public domain for comments from all stake holders, it is hoped that the gaps will be filled up before these Rules are finally notified.
(The writer is Professor of Law, University of Delhi)
Published 01 June 2016, 17:43 IST