By Mohd. Kumail Haider
“Children are not things to be moulded, but are people to be unfolded.”-Jess Lair
The United Nations General Assembly adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice on 29th November, 1985. These Rules are commonly referred to as the Beijing Rules. Clause 4.1 of the Rules reads as follows: “4.1 in those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.”As is apparent, the Rules did not fix any specified age and left it to each member country to frame their domestic laws, keeping in view the various relevant doctrines. After adoption of the Beijing Rules, India enacted the Juvenile Justice Act, 1986 (hereinafter ‘the Act’). In the Act, ‘juvenile’ was defined under Section 2(h) as a boy who has not attained the age of 16 years or a girl who has not attained the age of 18 years. Such a juvenile was entitled to various protections which were uniform irrespective of the nature of the crime committed. The next development was the enactment of The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter the Act of 2000) which repealed the Juvenile Justice Act, 1986. Under the Act of 2000 a juvenile as defined to mean a person who had not completed 18 years of age.
Categorisation of offences–
The infamous Delhi gang rape case (commonly known as ‘Nirbhaya case’) triggered major changes in the criminal system of India. Rajya Sabha passed the Juvenile Justice Bill 2014 after protest by many people against the release of juvenile convict in the Nirbhaya Case. Juvenile Justice Act, 2015 replaced the Juvenile Justice Act 2000 on 15th January 2016. It divided the crimes into three different categories i.e. the petty offence, serious offences and heinous offences. ‘Petty offences’ have been defined under Section 2(45) to mean offences for which the maximum punishment provided under any law including the IPC, is imprisonment up to 3 years. ‘Serious offences’ include those offences for which punishment under any law is imprisonment between 3 to 7 years. ‘Heinous offences’ have been defined to mean offences for which the minimum punishment under any law is imprisonment for 7 years or more. One of the major changes was regarding juveniles that aged between 16 to 18 years. The inquiry for serious offences has to be disposed of by following the procedure for trial in summons cases under the Code of Criminal Procedure, 1973 (Cr.PC for short).
As far as heinous offences are concerned if the child is below 16 years then the procedure prescribed for serious offences is to be followed; but if the child is above 16 years then assessment in terms of Section 15 has to be made, which reads that, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section18 in which he can be ordered to be tried as an adult: The Board may take the assistance of experienced psychologists or psychosocial workers or other experts.
In the provision, it has been explained that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. On satisfaction that the matter should be disposed of by the Board, the procedure, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974) is followed provided that the order of the Board to dispose of the matter shall be appealable under subsection (2) of section 101.
This was a departure from the previous legislation on the subject where the offences had not been categorised as heinous or serious.
Muddlesome Definition in the Juvenile Justice (Care and Protection of Children) Act, 2015–
Literal reading of definitions of offences (petty, serious and heinous) suggest that there lies 4th category of offences which is not covered by the Act of 2015. The 4th category of offences are those where the minimum sentence is less than 7 years, or there is no minimum sentence prescribed but the maximum sentence is more than 7 years, for example, abetment to suicide (Sec. 306 IPC), attempt to murder (Sec. 307 IPC), collecting arms to wage a war (Sec. 122 IPC), etc. The Act carries this lacuna in terms of textual reading and thus it was necessary to present the actual and clearer scheme of things, to avoid errors and anomaly in the judicial orders coming from the High Courts and the District Courts in the juvenile matters, whereby the charge was “heinous”.
It was in the case of Shilpa Mittal v. State of NCT of New Delhi (2020) 2 SCC 787, in which the confusion of heinous crimes was clarified by the Supreme Court of India. The bench of two, comprising Justice Deepak Gupta and Justice Aniruddha Bose realised the mistake of the legislature that had left an unfortunate void in relation to 4th category offences The bench favouring the juvenile’s perspective while exercising powers conferred under Article 142 of the Constitution, directed that from the date when the Act of 2015 came into force, all juveniles who have committed offences falling in the 4th category shall be dealt with in the same manner as juveniles who have committed ‘serious offences’. It also held that the legislature should take further call in this matter.
Hence, an offence which does not provide a minimum sentence of 7 years cannot be treated to be a heinous offence. The apex court observed that the Act does not deal with the 4th category of offences viz., offence where the maximum sentence is more than 7 years imprisonment, but no minimum sentence or minimum sentence of less than 7 years is provided.
The Quest For Rehabilitative Approach-
The crucial aspect that needs to be realised and tagged along with this discussion is that the Act of 2015 emphasises on the point that even if the juvenile has committed a heinous offence, the scheme of Section 14, 15 and 19 of the Act suggests that the Legislative intent must have been for effectuation of detailed study/assessment of the juvenile’s. The Juvenile Justice Board shall conduct a preliminary assessment with regard to the mental and physical capacity of such child to commit such offence, the ability of the child to understand the consequence of the offence and the circumstances in which the said offence was allegedly committed, before the juvenile is tried as an adult and that even if s/he commits a heinous crime, he is not automatically to be tried as an adult. The Board is entitled to take the help of experienced psychologists, psychosocial workers or other experts in the field. The preliminary assessment is not to go into the merits of the trial or the allegations against the child.
Taking into account this backdrop, it is strongly suggested that the juveniles who commit heinous crimes ought to be treated differently from offenders committing petty and serious offences, as the former require more intensive treatment than the latter. Therefore, for such juveniles, a model hinging on rehabilitative ideals should be looked upon at. While 2015 act does treat offenders committing heinous crimes differently, such differential treatment is envisaged solely within the juvenile justice system, without a subsequent transfer to the adult prisons. Similar was the opinion of Justice D. S. Naidu in the case of Mohamed Huzaifa Javed Ahmed … vs. The State Of Maharashtra (CRIMINAL APPEAL NO. 1153 of 2018, Bombay High Court)
“Let us remind ourselves, just because the statute permits a child of 16 years and beyond can stand trial in a heinous offence as an adult, it does not mean that the statute intends that all those children should be subject to adult punishment. It is not a default choice; a conscious, calibrated one…merely on the premise that the offence is heinous and that it lends to the societal volatility of indignation, we are bracing for juvenile recidivism. Retributive approach vis-à-vis juveniles need to be shunned unless there are exceptional circumstances, involving gross moral turpitude and irredeemable proclivity for the crime.”
[The Author is a final year student at Faculty of Law, Aligarh Muslim University and can be approached via mail at firstname.lastname@example.org]