Juvenile Justice Law: Blanket Immunity from Criminal Process : Daily Current Affairs

Date: 29/11/2022

Relevance: GS-2: Mechanisms, Laws, Institutions, and Bodies constituted for the Protection and Betterment of these Vulnerable Sections.

Key Phrases: Juvenile Justice (Care and Protection of Children)Act, 2015, Blanket Immunity, Juvenile Delinquency, Central Adoption Resource Authority (CARA), Hague Convention on Protection of Children 1993.

Context:

Recently, the Supreme Court (SC) made an observation in its judgment in the infamous Kathua rape-murder case “the rising rate of juvenile delinquency in India is a matter of concern and requires immediate attention”.

SC Observations:

The manner in which brutal and heinous crimes have been committed over a period of time by the juveniles and still continue to be committed, makes one wonder whether the [Juvenile Justice (Care and Protection of Children)] Act, 2015 has sub-served its objective.
We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of the goal of reformation is making them more and more emboldened in indulging in such heinous crimes.
- Therefore, it is for the government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day.

Juvenile Justice (Care and Protection of Children)Act, 2015

About:

The Juvenile Justice (Care and Protection of Children) Act, 2015 addresses children in conflict with law and children in need of care and protection.
The Act fulfils India’s commitment as a signatory to the United Nations Convention on the rights of the child, the Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption (1993), and other related international instruments.
As a signatory, India is required to undertake all appropriate measures to ensure the rights of children with regard to juvenile justice, care and protection, and adoption.

Features:

The Act changes the nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’. It removes the negative connotation associated with the word “juvenile”.
It also includes several new and clear definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children.
The aim of the act is to comprehensively address children in conflict with law and children in need of care and protection.
It mandates setting up Juvenile Justice Boards and Child Welfare Committees in every district.
- Both must have at least one woman member each.
The Act included several new offences committed against children which are not adequately covered under any other law such as:
- Illegal adoptions,
- Use of children by militant groups,
- Offences against disabled children.
All Child Care Institutions, whether run by State Government or by voluntary or non-governmental organisations are to be mandatorily registered under the Act within 6 months from the date of commencement of the Act.

Offences Under the Act:

Serious offence
- Serious offences will also include those for which maximum punishment is imprisonment of more than seven years, and minimum punishment is not prescribed or is of less than seven years.
- The Juvenile Justice Board inquiries about a child who is accused of a serious offence.
Non-cognizable Offence
- an offence which is punishable with imprisonment between three to seven years to be cognizable i.e. arrest is allowed without warrant and non-bailable.

Central Adoption Resource Authority:

It is a statutory body under the Juvenile Justice Act, 2015 functioning under the Ministry of Women and Child Development, GOI.
CARA is the nodal authority in India for the adoption of Indian children.
It is authorised to regulate and monitor inter-country and in-country adoptions.

Issues with the Act:

Encroachment upon the Judicial Domain
- It is well settled that the assessment of whether or not an offender has attained sufficient maturity of understanding to judge the nature and consequences of his/her conduct is to be done by the court with the help of experts, and is a judicial function as exemplified by Section 83 of the Indian Penal Code, 1860 and Order XXXII of the Code of Civil Procedure, 1908.
- There are precedents in which the SC has held that Parliament cannot make law to oust the judicial function of courts or even judicial discretion in a matter falling within the judicial function of courts.
- Thus, the JJ Act - to the extent it deprived the criminal court of the power to try and to punish a juvenile for committing an offence, when such a person could be assessed to have attained sufficient maturity to judge the nature and consequences of his/her conduct — encroached upon the judicial domain and was, therefore, unconstitutional.
Overlook of the Fundamental Premise
- It has been overlooked that the fundamental premise of juvenile justice law is that a juvenile offender who lacks such maturity should not be sent to a criminal court to be tried for the commission of an offence, and instead, should be sent to a correctional home for reform and rehabilitation.
- Conversely, therefore, should the offender have such maturity, he/she must be prosecuted before the criminal court, tried and, if found guilty, punished.

Way Forward:

The manner in which brutal and heinous crimes have been committed over a period of time by the juveniles, we have started gathering an impression that the leniency in the name of the goal of reformation is making them more and more emboldened in indulging in such heinous crimes.
- Thus, we as a society need to come up with new sets of regulations to arrest this trend.
- The legislature, executive and Judiciary must be in sync and work coherently for a common purpose of reducing the crimes associated with juveniles.
The author argued that instead of the conferral of blanket immunity from criminal process upon a juvenile offender, there should be a case-by-case assessment by a competent court (and not the JJ Board) as to whether or not such juvenile had attained sufficient maturity of understanding to judge the nature and consequences of his/her action.
Provisions already exist in the JJ Act, 2015, as to how a child who has attained the age of 16 years could be tried and punished for a heinous offence.
- The same provisions could be extended to all juvenile offenders, regardless of age or nature of the crime, once it is found by the competent court that any such offender had sufficient maturity of understanding to judge the nature and consequences of his/her actions.
If the government appreciates the above observation of the SC and reconsiders the existing juvenile justice law, it should amend such law.
- Such an amendment would go a long way in providing the requisite balance between the rationales underlying the juvenile justice system and the criminal justice system and realising the objectives professed by both.