The need for a separate justice system for juveniles has long been recognised by all modern democracies. Despite variations in the debate around the causes of juvenile delinquency, it has unanimously and firmly been accepted that the treatment of juvenile offenders similar to adults would only be detrimental to juvenile offenders and ineffective in its purpose. As a result, a separate juvenile justice system prevails in most of the countries across the globe. The state of Jammu and Kashmir stands no exception.
The state is presently being governed by the Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Act 2013 to deal with children under 18 years of age. It has its basis in the Indian Juvenile Justice (Care and Protection of Children) Act, 2000.
The Act though enacted in 2013 has not been completely implemented till date. The Juvenile Justice Boards and Child Welfare Committees have only recently been established this year.
Only two observation homes have been established for the entire state, which do not comply with the requirements under the Act, and are overcrowded. Even the High Court in Tanvi Ahuja case has raised serious concerns over and passed various orders for the implementation of the Act. Despite this abysmal state of implementation of the present JJ Act of 2013, the State of J&K has proposed a Bill to bring the present legislation at par with the Indian JJ Act of 2015.
The Bill introduces several major changes to the present Act of 2013, some of which may be accepted but a majority of which need to be seriously considered and deliberated upon given the peculiar situation of the state which requires a different treatment.
Going with the minor improvements first, the Bill removes the negative connotation around the word ‘juvenile’ by replacing the words ‘juveniles in conflict with law’ with ‘children in conflict with law’. Secondly the Bill introduces a detailed list of the ‘General Principles of Care and Protection’.
It contains a list of 16 fundamental principles that every agency under the Act needs to take into account while dealing with the juveniles. These principles are based on the UN Convention on the Rights of Child, 1989 (CRC) and their express enumeration at the very start of the Bill ensures the importance these principles in the interpretation of the provisions of the Act, once passed. Another advancement is the introduction of a separate detailed Chapter on ‘Offences against Children’.
The Bill provides a detailed explanation of the offences, and a more nuanced understanding of the circumstances and offences committed against children. Despite these limited advancements, there are serious concerns present in the Bill which cannot be ignored for the limited benefits it provides. One such grave concern is the reduction in age of a child from 18 to 16.
The proposed Bill aims to create a separate category of children, 16-18 years of age, who may be tried as adults for heinous offences (offences carrying a punishment of seven years or more) committed by them.
This categorization has two important aspect: a) age of the child and, b) heinous nature of the offence. This selective age differentiation falls short of the scientific justifications based on the brain sciences studies as well as the international standards set up for children.
Among the several neuro- and brain-sciences researches conducted in the US in the early 21st century, findings of Mac Arthur Foundation led by Laurence Steinberg is of particular relevance. According to Steinberg, different people have different age for reaching human neurobiological maturity.
The lower limit is around 15 and the higher being somewhere around 22. For him choosing either of the two end points would have its own problems and thus, decided to treat the mid point 18 as the “presumptive age of maturity”.
Coming to the International legal standards, the most pertinent international instrument on child rights, the Convention on the Rights of Child (CRC) too adheres to this age of 18 for children.CRC makes it an obligation on the member states, India being one of them, to protect and adhere to the rights set forth in the Convention.
If the state is following the footsteps of the national legislation, it must also bear in mind that the even the UN Committee on the Rights of Child in its “concluding remarks” for India in its 23rd session (Feb 23, 2000) obligated the state to “ensure that persons under 18 are not tried as adults”. This selective lowering of the age by the Bill of 2018 not only violates Art 1 of the Convention but Art 2 as well.
Once the mental incapacity and decision inability of children is scientifically established, as well as recognised by international instruments, the “heinousness” of the act/offence becomes irrelevant. The traditional criminal liability thinkers like HLA Hart argue that advanced legal systems base the liability of the offender not only on the forbidden act done but those acts accompanied by “mental elements”.
Considering for a second that even the heinous nature of the offence would be relevant, the criteria set out for determining the ‘heinousness’ of the offence leaves wide discretionary powers to the legislature that can create new offences with a sentence of seven years or more. This way thus, the children will be more prone to being tried as adults for a myriad of offences.
This becomes particularly problematic in the present scenario in the state where young children in the age group of 16-18 are also involved in stone pelting incidents. Treating them as adults would lead to the scarring of these tender minds for life, creating adult criminals out of them.
Reformation and restoration, as has been proved by various studies, work best for young children. Shifting the focus from reformation to punishment would only prove detrimental for us as society.
Following from the arguments stated above, the question now arises over the need of a new law aping the Indian juvenile Justice Act of 2015, an amendment which has itself been criticised by child rights experts and referred to as an “emotional aftermath of the Nirbhaya rape incident”.
With the special status that the state of J&K enjoys with respect to framing its own laws, the state would only be doing itself a favour and justifying its duty under the Constitution if it considers framing the laws based on the needs of the state and its people rather than blindly aping an Indian legislation that does not serve the purpose of the state
malika.shah@yif.ashoka.edu.in