In the recent past, we woke up to news centred around ‘Bois Locker Room’, a private chat room in Instagram where several schoolboys engaged in sharing pornographic images of women, objectification of women and even spoke casually about raping girls. However, juvenile crimes are not a new phenomenon. Data held by the National Crime Records Bureau (NCRB) on the crimes committed by children shows that these crimes have gone up by 47% in 2014 from 2010.1
This presents the question of how to treat children when they have committed a grave offence. It is important to make sure that they realise the gravity of their actions, while at the same time giving them a chance to reform. It is also important to not take a serious offence lightly and treat it as a mistake by the child which will be rectified over time.
Let us take a look at the juvenile justice system in India to know how we have tried to arrive at a balanced position.
Children under the age of 7
A child under the age of 7 cannot be charged with a crime, no matter how serious the crime is.2 This immunity exists because the law presumes that they do not have the mental capacity to understand the consequence of their actions. Thus, without mental capacity or intention to commit the act, merely doing the action would not be enough to call it a crime.
Children between the ages of 7 and 12
Children in the 7-12 age group are also considered to not have the mental capacity to commit a crime. However, if it can be shown that a child had the maturity to understand the consequence of its actions, the child can be tried for the crime as per the juvenile justice law.3
The special law for children
Until 2015, children who committed crimes were tried under the Juvenile Justice (Care and Protection of Children) Act, 2000 where the maximum punishment for a minor committing a crime was 3 years in a correction home. In 2012 when the infamous Delhi gang rape occurred, one of the perpetrators was 17 years and 6 months old on the day he committed the crime. Thus, he was tried as a juvenile offender and got the said maximum punishment of 3 years in a correction home. The public outcry caused due to this had a major role to play in changing the juvenile justice law of our country. The Act of 2000 was then replaced by the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’).
The Government cited the increase in juvenile crime as the reason behind the enactment of JJ Act, 2015. The JJ Act of 2015 classifies offences into 3 categories — petty, serious, and heinous, according to the gravity of the offence committed. The severity of the punishment of juvenile offenders depends upon what category of offence they have committed.
Children above 12 years of age
Children above the age of 12 are capable of committing crimes in the eyes of law. They are tried under the JJ Act, 2015.
A child who is accused of committing an offence, or one who is found to have committed an offence is called a ‘child in conflict with law’ under the JJ Act, 2015.4
Children between the ages of 16 and 18
Petty and Serious offences
Children in the age group of 16–18 who commit petty or serious offences are tried before a Juvenile Justice Board constituted under the Act.5 After an inquiry, the Board can decide to do any of the following with the child6:
· Send the child back home with advice or warning and counselling of the child and parents
· Order for group counselling sessions for the child
· Order for community services to be undertaken by the child
· Order the guardians to pay a fine
· Release the child on probation of good conduct. In this case, the child will be placed under the care of the guardians or a fit person, who will have a duty to execute a bond for up to 3 years
· Release the child on probation of good conduct and place the child under the care of a good facility
· Order to send the child to a special home for up to 3 years.
If a heinous offence has been committed, then a preliminary assessment can be conducted by the Juvenile Justice Board to figure out the mental capacity of the child.7 The Board can take the help of trained psychologists and experts for this.8 After this assessment, the Board can pass an order if it finds that the child has not committed a crime.9
However, if the Board feels that there is a need for trial, it can transfer the case to the Children’s Court.10 The Children’s Court can then either11:
- Decide that the child should be treated as an adult for trial. Then, a regular trial will happen before this Court. The Children’s Court can generally pass the maximum sentence for a heinous offence (more than 3 years of imprisonment), but it cannot sentence the child to death penalty or life imprisonment without the possibility of release from prison.
- The Court may decide against the trial of the child as an adult. It can then conduct an inquiry and pass orders subsequently.
Ensuring a child-friendly atmosphere at all times
The Juvenile Justice Board and the Children’s Court should take all steps to maintain a child-friendly atmosphere. Child-friendly has been defined as “any behaviour, conduct, practice, process, attitude, environment or treatment that is humane, considerate and in the best interest of the child”.12
The ‘best interest of the child’ is an international legal standard laid down in the United Nations Convention on the Rights of the Child.13 UNCRC is the seminal instrument in the field of child rights. Article 3(1) lays down that the primary consideration of all agencies and bodies, public or private, must be the best interest of the child. Though the context and elements have not been laid down in this provision, it is clear that this international legal standard shall prevail in all actions that concern a child.14
Gatha Namboothiri is a student at NUJS, Kolkata and a member of Kautilya Society, an initiative of Vidhi Centre for Legal Policy. Views are personal.