The National Commission for the Protection of Child Rights (NCPCR) has issued draught guidelines for determining whether certain minors should be tried as adults under the Juvenile Justice (Care and Protection of Children) Act.
Juvenile Justice Act, 2015 and Adults
- The Juvenile Justice (Care and Protection of Children) Act of 2000 was replaced by the JJ Act of 2015.
- It allows juveniles aged 16 to 18 who are in conflict with the law and commit heinous crimes to be tried as adults.
- The Act also aimed to create an adoption law that was universally accessible in India.
- It went into effect on January 15, 2016.
Preliminary assessment as per the JJ Act
- Assessment of the offender child: The Act requires the Board to consider the child’s mental and physical capacity for committing the alleged offence, the child’s ability to understand the consequences of the offence, and the circumstances surrounding the offence.
- Psychological ‘trial’: It states that the Board may consult with experienced psychologists, psychosocial workers, or other experts. The Act also states that the assessment is not a trial and is only intended to assess the child’s capacity to commit and understand the consequences of the alleged offence.
- Conclusion: Following the assessment, the Board may issue an order stating that the child should be tried as an adult and the case be transferred to a children’s court with the appropriate jurisdiction.
- Penalty: If tried as a minor, the child could spend up to three years in a special home. If tried as an adult, the child may be sentenced to prison, with the exception of death or life imprisonment without the possibility of release.
Why has the NCPCR released draught guidelines now?
- The Supreme Court is hearing a case involving the alleged murder of a Class 2 student in Haryana by a 16-year-old.
- The preliminary assessment task under the JJ Act is a “delicate task,” according to the Supreme Court.
- It said that the consequences of the assessment on whether the child is to be tried as an adult or a minor are “serious in nature and have a lasting effect for the entire life of the child”.
- It stated that expertise is required for the assessment and directed that appropriate and specific guidelines be put in place.
- It had left the decision to the Central Government and the National and State Commissions for the Protection of Child Rights.
Major draft guidelines by NCPCR
- According to the draught, which is based on existing Act provisions, the preliminary assessment must determine the following aspects:
- The child’s physical ability: To assess the child’s ‘locomotor’ abilities and capacities, particularly in terms of gross motor functions such as walking, running, lifting, and throwing…abilities that would be required to engage in most antisocial activities.
- Mental capacity: The ability of the child to make social decisions and judgements. It also guides assessments for mental health disorders, substance abuse, and life skills deficiencies.
- Understanding of the alleged offense’s consequences: To determine the child’s knowledge or understanding of the social, interpersonal, and legal consequences of the alleged offence. These include what others will say or think of him, how it will affect his personal relationships, and his knowledge of relevant laws.
- Circumstances in which the alleged offence was committed: The child’s psychosocial vulnerabilities. This includes life events, trauma, abuse, and mental health issues, implying that the offending behaviour is a result of a variety of other factors.
- Building a rapport: It also states that the experts should be given every opportunity to interact with the child in order to establish a rapport. Experts in child psychology and psychiatry are possible. It also states that they must receive ongoing training.
- Other reports on which the Board will rely include the Social Investigation Report, the Social Background Report, an Individual Care Plan, witness statements, and interactions with parents, guardians, school personnel, peer groups, and neighbours.
Way ahead
- The government should amend the JJ Act of 2015.
- Such an amendment would go a long way toward providing the necessary balance between the rationales underlying the juvenile justice and criminal justice systems, as well as realising the goals professed by both.
Source: https://indianexpress.com/article/explained/explained-law/ncpcr-draft-guidelines-assessing-minors-trial-adults-8372389/#:~:text=If%20tried%20as%20a%20minor,without%20the%20possibility%20of%20release.