Articles

Questions around trying a juvenile as an adult

September 2021 | INDIA

by Krishna Sharma 

I recall that the juvenile status of a person accused of committing crime became a talking point after the Nirbhaya gang-rape and murder case, a gruesome crime that shook the country in 2012. Among the six accused, one was a juvenile. There were demands to try the juvenile as an adult and calls for punishment commensurate with his crime. 

Following this incident, the Juvenile Justice Act of 2000 (‘the Act’) was amended to include a provision allowing ‘Children in Conflict with Law’ (CCL) to be tried as adults under certain circumstances. The amended Act distinguishes children in the age group 16-18 as a category where they can be tried as adults if they are alleged to have committed a heinous crime such as murder or rape.

Whether a juvenile can be tried as an adult has been a subject of debate. Though the Act allows a child of 16 years and beyond to stand trial in a heinous offence as an adult, it does not make it mandatory for all children in this age group to be tried as adults. 

The United Nations Convention on the Rights of the Child (UNCRC) defines the child as a person under the age of 18 years. As a signatory of the UNCRC, India shares an obligation to incorporate the provisions of the convention for the protection of children in need of care and protection [CNCP] as well as children in conflict with law [CCL]. Under the Act, the principle of reform and rehabilitation are the guiding principles for the Juvenile Justice System. The law describes the need for a child friendly approach in the adjudication and disposition of matters, to ensure proper care, protection, treatment, development and social reintegration for the Children in need of care and protection and children in conflict with law. The phrase ‘adult time for adult crime’ is not an easy proposition in this context.

The Act lays down the following conditions for determining whether a juvenile should face trial as an adult:

(1) the offence committed must be a heinous offence; (2) The child must have completed sixteen years; and (3) The Board must have conducted a preliminary assessment on four aspects: 

(a) the child’s mental and (b) physical capacity to commit such an offence; (c) his ability to understand the consequences of the offence; (d) and the circumstances in which he allegedly committed the offence.

One of the arguments put forward by those who support trying juveniles as adults is that age is irrelevant and it is the maturity and understanding of the child of his actions and the consequences of those actions that need to be considered while punishing Children in Conflict with Law. Interestingly, the law requires the Juvenile Justice Board to carry out a child’s psychological assessment. This preliminary assessment plays a key role in the decision making process of transferring cases to adult courts. It helps determine mental capacity to be tried as an adult, understand an individual’s behaviours and characteristics, and consider mitigating factors that have influenced the child’s actions. It also assists in determining appropriate sentences and punishment for  juvenile offenders.

The psychological assessment is highly complex and requires an in-depth intervention. The law directs that a preliminary assessment in cases of heinous offences shall be disposed within a period of three months from the date of first production of the child before the board, but an extension can be provided by the Magistrate after recording the reasons. At the same time, the law also allows the board to seek assistance from experienced psychologists or other experts, with the final discretion on the decision lying with the board. What concerns me is whether the discretionary power during the assessment of various aspects of ‘child in conflict in law’ (CCL) is exercised judiciously and consciously?

The change in law that allows juveniles to be tried and prosecuted as adults rather than juveniles was intended to serve as a deterrent for a rise in violent crime committed by youth. The question we should ask ourselves is, are changes in laws really working as a deterrent? Based on reports, crimes committed by juveniles is still high despite the law being in place as a deterrent. Why is it so if a change in law was the answer?

An argument has also been made that the current juvenile justice system lets go of the juvenile offenders of heinous crimes easily without the deserved harsh punishment. I think juvenile offenders who commit heinous crimes are held accountable both legally and morally. They are kept in custodial care in correctional homes for children rather than the adult prison system with the idea of restoring and rehabilitating them back into society as good and responsible citizens. 

Despite this, there are a number of reported incidents of how these shelter homes have turned out to be places of many horrors. Who is to blame in these cases — a particular shelter home or the entire system? Moreover, there are several studies that show that juveniles who go through the adult prison system and are put into jails with hardened criminals in most cases remain in the cycle of crime and there are high chances of them becoming repeat offenders.

Finally, the juvenile justice system aims to address the vulnerabilities of those children who have fallen out of the protective net of a safe and secure childhood, ensuring rehabilitation and reintegration for them in society rather than institutionalising them in the confines of a hardened system. But the question remains, do we have a juvenile justice system strong enough to reform and rehabilitate these children in conflict with law and prevent them from becoming recidivists? Is the system actually implemented well on ground zero? Do these children in conflict with law have access to legal representation? What are the mental health conditions of the children who pass through the system?

These are a few important questions that I’ll be carrying with me while I engage closely with the juvenile justice system in the course of this Fellowship.  

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