The Juvenile Justice Amendment ACT, 2015 : An Analysis

Author: Chhavi Thakur, Central University of South Bihar, Gaya

INTRODUCTION

In the year 2015 the juvenile justice act was amended to enable trial as an adult of some juvenile offenders. Rapid increase in violence by juveniles especially after the Nirbhaya Incident in 2012 compelled the government of India to amend the Juvenile Justice (Care and Protection of Children) Act 2015. They alter the previous policy of rehabilitation only by making teenagers from the age of sixteen and eighteen to be tried as adult criminals. As for this amendment, some considered it too harsh, while others were convinced that no criminal would go scot-free if this amendment were adopted.

The Juvenile Justice (Care and Protection of Children) Amendment Act, 2015 is aimed to set policies for care, protection and treatment, development and rehabilitation of children in need of care. This strives to uphold the rights of the child offender and give him/her justice, dignity and an opportunity for correction. The Act aims at rehabilitation and reintegration of the juvenile offenders to avoid reincession and creation of official bodies such as Child Welfare Committees and Juvenile Justice Boards for their protection.

BACKGROUND AND NEED FOR THE AMENDMENT

The current juvenile justice system in India has a profound history and started with the Indian constitution provision that provides for the protection of children. That uniform age limit for individuals classified as juvenile delinquents before 1960 was not set at 18 years across different states. The first big legislation for welfare, education and rehabilitation of juvenile offenders was enacted through the Children’s Act of 1960. This was succeeded by the Juvenile Justice Act of 1986 aimed at implementing United Nations minimum administrative standards of juvenile justice. The Juvenile Justice (Care and Protection of Children) Act, 2000 added further improvements in care, protection and rehabilitation measures under Juvenile Justice System which was a positive development in the legal aspect of juvenile justice system in India.

The New Delhi gang rape and murder case in 2012 of a young woman by a juvenile offender resulted in public scrutiny, in tandem with legislation such as Juvenile Justice (Care and Protection of Children) Act 2015 that reduced the age of juvenile from 18 to 16 for particular categories of offence. This amendment came as a result of pressure from the public and perceived rising high rate of juvenile rampage and therefore the urge to execute stricter punitive measures against juvenile offenders.

KEY PROVISIONS

The biggest change in the Juvenile Justice (Care and Protection of Children) Amendment Act, 2015 was bringing the age of criminal responsibility to 16 years from the original 18 years for those accused of serious crimes. This lead to certain individuals who are 16-18 years old to be subjected to facing the death penalty. The Act defined “heinous crimes” as those attracting a minimum punishment of 7 years imprisonment under existing laws.

Juvenile Justice Boards were formulated in every district with a view of evaluating mental and physical competence of these juveniles and then going for trials of adulthood. It also provided for Formation of Committee for Children in Need of Care and Protection; adoption of children; and punishment for selling or buying children.

PROCEDURAL CHANGES

The most critical changes were; formation of Juvenile Justice Boards (JJBs) for every district to consider alleged offenders of serious crimes of 16-18 years. They also assess the mental and physical fitness of the juvenile, his/her comprehending capacity regarding the repercussions of the crime, as well as various circumstances surrounding the offense. On this basis, the JJB can determine their fate of whether to try the juvenile as an adult or not.

The Act also provided for Child Welfare Committees (CWCs) in each district for providing care and protection to children in need of such care. The role of CWCs is to investigate in connection with the situation of these children and their care, protection, treatment, development, and rehabilitation.

JJBs and CWCs were responsible for undertaking a child friendly approach in determination and handling of matters in the best interest of a child. They had to ensure that juveniles in conflict with the law and children in need of care and protection were properly cared, protected, developed, treated and re-integrated into the society.

CRITICISMS AND CONTROVERSIES

Child rights groups contend that taking youth as young as 16 years and charging them as adults in cases of heinous crimes goes against the rehabilitative principles of the JJ Act and India’s obligations under the UN Convention on the Rights of the Child (UNCRC) hold that any form of detention should be the last resort and for the shortest time possible. They argued that the Act lacks provisions for addressing sources of juvenile delinquency issues including poverty, illiteracy, and broken homes.

They also argue that retribution measures cannot change the offenders and may lead to a higher rate of crime. Similar issues arise with regard to the fairness of the criminal justice system for juveniles, including the qualifications of the JJB members to determine mental status and the ability to be culpable.

Ultimately, the amendment represents a shift towards a more punitive approach to juvenile justice in India. The amendment marks a move towards a punitive model, while critics have demanded more spending on prevention, diversion, and rehabilitation of young offenders due to the socio-economic factors that lead them to crime.

IMPLEMENTATION AND CHALLENGES

The provision of the Juvenile Justice (Care and Protection of Children) Amendment Act, which was passed in 2015, is not equally efficient among states in India. Some of the states have formed the Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) as prescribed by the Act but some of the states are still struggling to form the Board and Committees due to lack of resources and trained manpower.

Four main issues include inadequate capacity to examine the mental capacity and criminal responsibility of 16–18-year-olds by members and other personnel in JJB, lack of sufficient facilities and programs that provide rehabilitation and reintegration for juvenile offenders, and poor living standards and environments that are provided to kids in child care centers. There are still some issues in this process, though there are provisions put in place for the acceleration of the adoption process. Furthermore, as per the 2021 amendment, abuse and cruelty by staff at the child care institutions are non-cognizable offenses hence the probability of such incidences being unreported cannot be ruled out.

CASE STUDIES

Jhabua Murder Case (2016)

The 2016 Jhabua Murder Case is a similar incident where two juvenile delinquents, both sixteen years and seventeen years respectively attempted to rob and murdered a man over rupees 500. While the defense urged for the defendants to be treated and reform, the court convicted them to life imprisonment which makes the first case where the Juvenile Justice Act amended to make youths face the adult court system. Litigation of ‘Prayout v State of Maharashtra’ initiated a discussion about India’s age of criminal responsibility, with supporters for a lower age to punish more dangerous criminals and others for a focus on rehabilitation for juvenile offenders

Kathua Rape Case (2018)

On January 10, 2018, a 8 year old girl named Asifa Bano was kidnapped, raped and murdered in the state of Kathua, Jammu and Kashmir. One of the accused persons named Vishal Jangotra stated that he was below eighteen years, but the Juvenile Justice Board assessed him to be 19 years. He was charged as an adult and detained for life in June 2019. The Kathua case raised the question of how age is to be assessed and how such cases should be handled with more care and precision as a rule. This and other cases exemplify the use of the amended Juvenile Justice Act which permits appellants charged with severe offenses to be prosecuted as adults and the ensuing controversy over retribution and reform.

CONCLUSION

The Juvenile Justice (Care and Protection of Children) Amendment Act, 2015, kind of changed India’s approach to juvenile justice, made it possible to trial juveniles aged 16 to 18 years as an adult for ‘heinous crime’ thanks to post-Nirbhaya protest. The supporters regard it as a preventive measure to make sure that serious juvenile criminals receive adequate punishment. Juvenile Justice Boards (JJBs) and Child Welfare Committees (CWCs) are supposed to start the evaluation of juvenile fairly. Critics say this change erases rehabilitation, disregards conventions, and does not combat such causes of offending as poverty and illiteracy. This is well illustrated by Jhabua Murder (2016) or the recent Kathua Rape (2018) that calls for not only a precise determination of the age but also the proper approach to it. The situation serves to further cement the argument in the amendment’s tainted enforcement and inconsistencies as well as prompting the question of justice and that of rehabilitation. It means that there is a need for legal provision application, awareness about the problem and juvenile delinquency control, and addressing the problem with preventive and rehabilitation measures.