Introduction
The Indian Parliament passed an amendment bill in July 2021 to strengthen the Juvenile Justice(Care and Protection of Children) Act, 2015, allowing district magistrates and additional district magistrates to issue adoption orders under Section 61 of the JJ Act, ensuring faster case resolution and increased accountability.
Section 15 of the Act, which allows a Juvenile Justice Board (JJB) to decide whether a child between the ages of 16 and 18 who have allegedly committed a heinous crime should be tried and held to the same standards of culpability as an adult should be tried or not, remains unaffected by the amendment. Despite the fact that attorneys and child-rights campaigners claim that the clause simply looks to be neutral, it actually undermines substantive equality by identifying weaknesses in its design, execution, and constitutionality.
Problems
First
The clause is incompatible with the right to equality, which requires that equals be treated equally. The JJB would be selective and unequal if it discriminated between similarly placed children based on the nature of the offences they committed and the child’s capacity to understand the consequences of their actions. No single test can differentiate the two, and any test that tries would be superficial. This viewpoint is reinforced by the Supreme Court’s rulings in Salil Bali v. Union of India (2013) and Subramaniam Swamy v. Raju (2014), which said that all children in legal trouble should be treated equally, regardless of the severity of their offences.
In terms of structure, the clause empowers the JJB to begin a preliminary investigation without determining the child’s guilt—the demarcating phrase being ‘in the instance of a severe offence…’ As a result, the provision presumes the child’s culpability and is biased against them. If that is the case, it would be a violation of A. 20(3) of the Constitution, which is a vital aspect of due process of law, as the Maneka Gandhi v. Union of India decision determined (1978).
Second
The next point to consider is the strategy used by India’s juvenile justice system. As held in Mumtaz Ahmed NasirKhan v. State of Maharashtra (2019), the theory of punishment for juveniles in India is widely regarded as rehabilitative and reformatory, and; allowing it to change to retributive for heinous offences in special circumstances would be going against well-established jurisprudence and defeating the very purpose of enacting the legislation. The premise is that children have developmental immaturities and deficits and; that guiding and counseling them toward becoming upstanding citizens of society is preferable to incarcerating them alongside hardened criminals.
Conclusion
This raises the question, “What is the purpose of this provision?” Supporters claim that; this measure will serve as a deterrent to other kids while also ensuring that older juveniles are penalized.
Having a clause that criminalizes delinquency at will is thus anathema in the face of more progressive juvenile justice law. So, while the Juvenile Justice Amendment) Bill, 2021 did not examine the legitimacy and effectiveness of Section 15; future modifications must do so, and; the focus must be shifted back to juvenile rehabilitation rather than institutionalization.
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