In 2016, a 17-year-old murdered his 3-year-old neighbour in Mumbai.
The Mumbai city Juvenile Justice Board and a children’s court directed that he be tried as an adult under the Juvenile Justice (Care and Protection) Act, 2015.
But the Bombay High Court set aside these orders last week and directed that the accused be tried as a minor.
What is the JJ act?
The Juvenile Justice Act 2000 (JJ act), amended in 2015 with a provision allowing for Children in Conflict with Law (CCL) to be tried as adults under certain circumstances.
It defines a child as someone who is under age 18.
For a CCL, age on the date of the offence is the basis for determining whether he or she was a child or an adult.
The amended Act distinguishes children in the age group 16-18 as a category which can be tried as adults if they are alleged to have committed a heinous offence.
Heinous offence (Here) – One that attracts a minimum punishment of 7 years.
The Act does not make it mandatory for all children in this age group to be tried as an adult.
Why was the amendment made?
The amendment was proposed by the Ministry of Women and Child Development in 2014.
This was proposed in the backdrop of the 2012 Delhi gang-rape of a woman inside a bus, in which one of the offenders was 17-year-old.
The Ministry also cited an increase in cases of offenders in that age group.
But the child rights activists objected to the amendment.
J S Verma Committee constituted to recommend amendments also stated that it was not inclined to reduce the age of a juvenile from 18 to 16.
What the Bombay High Court do?
In the case, the accused was a juvenile at the time of offence be tried as a minor.
The Bombay High Court’s observation - Trial as an adult is not a default choice; a conscious, calibrated one. And for that, all the statutory criteria must be fulfilled.
What are the criteria under JJ Act?
As per Section 15 of the JJ Act, there are three criteria that the Juvenile Justice Board in the concerned district should consider while conducting a preliminary assessment to determine whether the child should be tried as an adult or under the juvenile justice system.
The 3 criteria are,
Whether the child has the mental and physical capacity to commit such an offence;
Whether the child has the ability to understand its consequences;
Whether the child knows the circumstances in which the offence was committed.
If the Board finds that the child can be tried as an adult, the case is transferred to a designated children’s court, which again decides whether the Board’s decision is correct.
How do these criteria relate to this case?
Both the Juvenile Justice Board and the children’s court had relied on,
Probation officer’s social investigation report and
A Government hospital’s mental health report.
Probation officer’s report stated that,
The child or his family did not have a criminal record, and
Called the juvenile highly manipulative
The child had confessed that the victim was killed accidentally.
The juvenile was counselled on focusing on his studies, and that he had taken and passed his exams while lodged in the observation home.
Mental health report said the juvenile had no psychiatric complaints at present, was normal, and suffers from no mental incapacity to commit the offence.
What was the court's response?
The High Court said that neither report brought out any exceptional circumstances to compel the juvenile to face trial as an adult.
It also said that it had undertaken no independent assessment.
It said, the statute permits a child of 16 years and above to stand trial as an adult in case of heinous offence, but doesn’t mean that all those children should be subjected to adult punishment.
One of the court’s key observations was that the trial in the regular court is offence-oriented (prison is the default opinion); in the juvenile court, it is offender-oriented (societal safety and the child’s future are balanced, prison is the last resort).
