Juvenile Justice

The Act of 2015, enacted after a public debate following a case in which one of the accused was a few months short of eighteen. It retained eighteen as the age and introduced the possibility that a child of sixteen or above alleged to have committed a HEINOUS offence may, after a preliminary assessment, be tried as an adult by the Children's Court.

The Amendment Act 23 of 2021, in force 1 September 2022, which transferred functions to the District Magistrate, recast the classification of offences in section 86 and altered the adoption procedure in section 61.

Trace that in an answer. MU asks for the EVOLVING landscape, and the movement is from disposal, to reform, to rights, and then partially back towards responsibility.

The general principles, section 3

Sixteen of them, and these are the ones to name. The presumption of INNOCENCE up to eighteen; dignity and worth; PARTICIPATION, the right of every child to be heard and to have his views taken into account with regard to age and maturity; BEST INTEREST as the primary consideration; family responsibility, the primary responsibility of care being the biological family or adoptive or foster parents; safety; positive measures; NON-STIGMATISING SEMANTICS, so that adversarial or accusatory words are not used; non-waiver of rights; equality and non-discrimination; the right to privacy and confidentiality; INSTITUTIONALISATION AS A MEASURE OF LAST RESORT; repatriation and restoration; a FRESH START, with the erasure of past records; DIVERSION, measures for dealing with children in conflict with law without resorting to judicial proceedings; and the principles of NATURAL JUSTICE.

Why the section matters. It is the Convention translated into a statutory command, and it is the provision a court uses to construe every other section.

The child in conflict with law

Section 2(13). A child alleged or found to have committed an offence and who has not completed eighteen on the DATE OF COMMISSION of the offence. Section 6 covers a person who has crossed eighteen by the time of apprehension but was below eighteen at the time of the offence, and section 5 a person who ceases to be a child during the inquiry.

The three grades, in sections 2(33), 2(45) and 2(54). HEINOUS offences, for which the MINIMUM punishment under the general law is imprisonment for seven years or more; PETTY offences, for which the maximum is up to three years; and SERIOUS offences, for which the punishment is a minimum of more than three and not more than seven years, or a maximum of more than seven with no minimum prescribed or a minimum below seven.

Section 4, the Board. The State Government shall constitute one or more Juvenile Justice Boards for every district, consisting of a Metropolitan Magistrate or Judicial Magistrate of the first class, not being the Chief, with at least three years' experience, as PRINCIPAL MAGISTRATE, and TWO SOCIAL WORKERS of whom AT LEAST ONE SHALL BE A WOMAN, forming a Bench with the powers of such a Magistrate. A social worker must have been actively involved in health, education or welfare activities pertaining to children for at least seven years, or be a practising professional with a degree in child psychology, psychiatry, sociology or law.

Sections 7 and 8. The Board's procedure, sitting at such times and place as it thinks fit, with a child not to be denied a hearing by reason of the absence of a member; and the Board's exclusive power over all proceedings relating to children in conflict with law in its area, with the High Court and the Children's Court exercising the same powers when a matter comes before them.

Section 9. Where a Magistrate not empowered under the Act is of opinion that the person before him is a child, he shall record that opinion and forward the child and the record to the Board.

Apprehension, bail and inquiry

Section 10. A child apprehended by the police is to be placed in the charge of the Special Juvenile Police Unit or the designated Child Welfare Police Officer, who shall produce the child before the Board WITHIN TWENTY-FOUR HOURS excluding journey time; and in no case shall the child be placed in a POLICE LOCKUP OR JAIL.

Section 11. A person in whose charge a child is placed is responsible for maintenance as if the child were his own.

Section 12, bail. A person who is apparently a child, alleged to have committed a bailable OR NON-BAILABLE offence, SHALL be released on bail with or without surety, or placed under the supervision of a probation officer or the care of a fit person, notwithstanding the criminal procedure law. The proviso: not so released if there appear reasonable grounds for believing that release is likely to bring the child into association with a known criminal, expose the child to moral, physical or psychological danger, or defeat the ends of justice, with reasons recorded. If not released, the child goes to an OBSERVATION HOME, never to a police lockup or jail.

Section 13. The Child Welfare Police Officer must inform the parents or guardian and direct them to be present, and inform the probation officer for a social investigation report.

Section 14, the inquiry. To be completed within FOUR MONTHS of the first production of the child, extendable by not more than two months for reasons recorded; a preliminary assessment for a heinous offence to be disposed of within THREE MONTHS; and where an inquiry into a PETTY offence remains inconclusive after the extended period, the proceedings STAND TERMINATED.

Section 16. The Chief Judicial Magistrate or Chief Metropolitan Magistrate reviews the pendency of inquiries every six months and gives directions.

Section 17. Where the Board is satisfied that the child has not committed any offence, it passes an order to that effect, and where the child needs care and protection, refers the child to the Committee.

Section 15 and the trial as an adult

Section 15. Where a HEINOUS offence is alleged against a child who has completed or is above SIXTEEN, the Board shall conduct a PRELIMINARY ASSESSMENT of his mental and physical capacity to commit the offence, his ability to understand the consequences, and the circumstances in which he allegedly committed it, and may pass an order under section 18(3). The Board may take the assistance of experienced psychologists, psycho-social workers or other experts. The Explanation says in terms that the preliminary assessment IS NOT A TRIAL.

Section 18(3). Where the Board after a preliminary assessment is satisfied that there is a need for trial as an adult, it may transfer the case to the CHILDREN'S COURT having jurisdiction.

Section 19, the Children's Court. On receiving the assessment it may decide either that there IS a need for trial as an adult, and pass orders after trial under the criminal procedure law, considering the special needs of the child, the tenets of fair trial and a child-friendly atmosphere; or that there is NOT, in which case it conducts an inquiry as a Board and passes orders under section 18. Where it convicts, it must ensure that the child is sent to a PLACE OF SAFETY until twenty-one and thereafter to jail, with periodic follow-up by the probation officer or District Child Protection Unit.

Section 20. On attaining twenty-one, the Children's Court evaluates whether the child has undergone reformative changes and can be a contributing member of society, and may either release the person on such conditions as it thinks fit, including supervision, or direct transfer to jail for the remaining term.

Section 21, the absolute bar. NO child in conflict with law shall be sentenced to DEATH or to LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF RELEASE, under this Act, the Penal Code, or any other law.

The arguments about section 15, both of which must be given. For: that a person of sixteen who commits an offence with a minimum of seven years knows what he is doing, that the section requires an individual assessment rather than an automatic transfer, and that section 21 preserves the essential protections. Against: that article 40 of the Convention requires a distinct system for all children under eighteen and the Committee on the Rights of the Child objected; that "mental and physical capacity to commit the offence" is not a question psychology can answer reliably in three months; and that the classification by minimum punishment means the grade of the offence, not the maturity of the child, decides who is assessed at all.

Orders, and the consequences of a finding

Section 18(1), the Board's orders where the child is found to be in conflict with law. Allow the child home after advice or admonition with counselling for the child and the parents; direct participation in group counselling; order COMMUNITY SERVICE; order the child or the parents to pay a fine; direct release on PROBATION of good conduct under the care of a parent, guardian or fit person on a bond of up to three years; direct release on probation under the care of a fit facility; or direct the child to a SPECIAL HOME for not more than three years.

Section 18(2). In addition, the Board may order attendance at a special school, counselling, de-addiction, or any other reformative measure.

Sections 22 to 24. No proceedings for security for keeping the peace or good behaviour against a child; NO JOINT PROCEEDINGS of a child with a person who is not a child; and REMOVAL OF DISQUALIFICATION attaching to a conviction, with the record to be destroyed after the appeal period, EXCEPT where a child of sixteen or above has been found in conflict with law by the Children's Court under section 19(1)(i), where the disqualification survives.

Sections 25 and 26. Pending cases to continue as if the Act had not been passed, save that a child is entitled to its benefits; and provision for a runaway child, who is to be produced before the Board and not punished.

The institutions and the machinery

Sections 47 to 52. OBSERVATION HOMES in every district or group of districts for the temporary reception, care and rehabilitation of a child during an inquiry; SPECIAL HOMES for children found to have committed an offence and placed there under section 18; a PLACE OF SAFETY, at least one in every State, not being a police lockup or jail, for a person above eighteen or a child of sixteen to eighteen accused or convicted of a heinous offence; CHILDREN'S HOMES for children in need of care and protection; and a fit facility and a fit person recognised by the Board or Committee.

Sections 53 to 55. The rehabilitation and reintegration services every registered institution must provide, and their management; INSPECTION committees for the State and every district, inspecting all institutions at least once in three months; and independent EVALUATION of the functioning of the Board, the Committee, the homes and the Units.

Section 74. No report in any medium disclosing the name, address, school or any particular that may lead to the identification of a child in conflict with law, a child in need of care and protection, or a child victim or witness; and no publication of the child's picture. Contravention is punishable with up to six months or a fine up to two lakh rupees or both.

Section 86, as substituted in 2021. An offence under the Act punishable with more than seven years is COGNIZABLE AND NON-BAILABLE; one punishable with three years and above but not more than seven is NON-COGNIZABLE and non-bailable; one punishable with less than three years or with fine only is non-cognizable and BAILABLE; and, notwithstanding the criminal procedure law, the Commissions Act or POCSO, offences under the Act are triable by the CHILDREN'S COURT.

Sections 87 to 93. Abetment; alternative punishment where an act is an offence under this Act and another law, the GREATER punishment applying; an offence under this Chapter committed BY a child to be dealt with under the Act itself; attendance of a parent or guardian; dispensing with the attendance of the child; and the placement of a child suffering from a disease requiring prolonged treatment, or who is mentally ill or addicted, in an approved place or under the mental health legislation.

Section 94, presumption and determination of age. Where it is obvious from appearance that the person is a child, the Committee or Board records that observation and proceeds WITHOUT waiting for confirmation. Where there is reasonable doubt, age is determined by seeking, in this order, the date of birth certificate from the SCHOOL or the matriculation or equivalent certificate; in its absence the birth certificate from a corporation, municipal authority or panchayat; and ONLY IN THE ABSENCE OF BOTH, an ossification test or other latest medical age determination test, to be completed within fifteen days. The age recorded is DEEMED to be the true age.

Sections 95 to 100. Transfer of a child to the place of residence or between institutions; release from an institution; leave of absence; reports to be treated as CONFIDENTIAL; and protection of action taken in good faith.

Sections 101 to 104. APPEAL within thirty days from an order of the Committee or Board to the Children's Court, except that appeals against Foster Care and Sponsorship After Care decisions lie to the District Magistrate, with a further appeal to the High Court and NO APPEAL from an order of acquittal or from a preliminary assessment except to the Court of Session; REVISION by the High Court on its own motion or on application; the procedure in inquiries, appeals and revisions; and the power of the Committee or Board to amend its own orders.

Sections 105 to 112. A JUVENILE JUSTICE FUND; a State Child Protection Society and a DISTRICT CHILD PROTECTION UNIT in every district; a CHILD WELFARE POLICE OFFICER of at least the rank of assistant sub-inspector in every police station and a SPECIAL JUVENILE POLICE UNIT in every district and city; public awareness; monitoring by the National and State Commissions for Protection of Child Rights; rules; repeal of the Act of 2000 with savings; and removal of difficulties within two years.

A worked example

A boy of sixteen years and four months is alleged to have committed an offence for which the minimum punishment is ten years. He is apprehended at 9 p.m.

Where does he go? Section 10: to the Special Juvenile Police Unit or the Child Welfare Police Officer, produced before the Board within twenty-four hours, and NEVER to a police lockup or jail.

Bail? Section 12: he SHALL be released on bail even though the offence is non-bailable, unless there are reasonable grounds for believing that release would bring him into association with a known criminal, expose him to moral, physical or psychological danger, or defeat the ends of justice, with reasons recorded. If refused, an OBSERVATION HOME under section 47.

Is the offence heinous? Section 2(33): the minimum punishment is seven years or more, so yes.

What follows? Section 15: because he has completed sixteen and the offence is heinous, the Board conducts a PRELIMINARY ASSESSMENT of his mental and physical capacity, his ability to understand the consequences and the circumstances, with the assistance of psychologists if it wishes, to be disposed of within three months under section 14(3). It is NOT a trial.

Two possible outcomes. The Board disposes of the matter itself under section 18(1), in which case the maximum is three years in a SPECIAL HOME; or it transfers the case to the Children's Court under section 18(3).

In the Children's Court. Section 19: it may decide there is no need for trial as an adult and conduct an inquiry as a Board; or that there is, and try him under the criminal procedure law with a child-friendly atmosphere. On conviction he goes to a PLACE OF SAFETY until twenty-one, and section 20 then requires an evaluation of whether he has reformed before he is released on conditions or transferred to jail.

What can never happen. Section 21: no death sentence and no life imprisonment without the possibility of release.

And his age? Section 94: the school or matriculation certificate first, then a corporation, municipal or panchayat birth certificate, and an ossification test only if neither exists, completed within fifteen days.

What this does NOT mean

It does not mean a child of sixteen is tried as an adult automatically. Section 15 requires an individual preliminary assessment and only for a HEINOUS offence, and section 19 gives the Children's Court a second decision.

It does not mean the Board tries the child. The Board holds an INQUIRY; the vocabulary is deliberate, and section 3's principle of non-stigmatising semantics is why.

It does not mean a finding carries a conviction's consequences. Section 24 removes the disqualification and requires the record to be destroyed, EXCEPT where a child of sixteen or above was found in conflict with law by the Children's Court under section 19(1)(i).

And it does not mean the Act is only about offences. More than half of it is about children in need of care and protection, which is the next chapter.

Quick revision

Evolution: Apprentices Act 1850; Reformatory Schools Act 1897; provincial Children Acts from 1920; Children Act 1960; Juvenile Justice Act 1986, boy under sixteen and girl under eighteen, "delinquent" and "neglected"; Act of 2000 after accession to the Convention, EIGHTEEN for both and the new vocabulary; Act of 2015 with section 15; Amendment Act 23 of 2021 from 1 September 2022.

s.3, sixteen principles, including presumption of innocence, participation, best interest, non-stigmatising semantics, INSTITUTIONALISATION AS A LAST RESORT, a FRESH START and DIVERSION. s.2(13) child in conflict with law, below eighteen on the DATE OF THE OFFENCE; ss.5 and 6 for those who cross eighteen. Grades: HEINOUS, minimum seven years or more; SERIOUS, minimum over three and up to seven, or maximum over seven with no or a lower minimum; PETTY, maximum up to three.

s.4 Board of a first class Magistrate with three years' experience and TWO social workers, one a woman. s.10 production within twenty-four hours, never a police lockup or jail. s.12 bail even for a non-bailable offence, with three grounds of refusal. s.14 inquiry in four months plus two, preliminary assessment in three, petty offences TERMINATED if inconclusive. s.15 preliminary assessment for a heinous offence by a child of sixteen or above, NOT A TRIAL. s.18 orders, up to three years in a special home. s.19 the Children's Court decides whether to try as an adult; place of safety till twenty-one. s.20 evaluation at twenty-one. s.21 NO death sentence and NO life imprisonment without the possibility of release. s.24 disqualification removed and record destroyed, except after a section 19(1)(i) finding.

ss.47 to 52 observation homes, special homes, place of safety, children's homes, fit facility and fit person. ss.53 to 55 services, inspection every three months, evaluation. s.74 no disclosure of identity, six months or two lakh rupees. s.86 as substituted in 2021, classification by punishment and trial by the CHILDREN'S COURT. s.94 age by school or matriculation certificate, then a civic birth certificate, and only then an ossification test within fifteen days. ss.101 to 104 appeal in thirty days, revision by the High Court. ss.105 to 112 the fund, the State Society and District Unit, the Child Welfare Police Officer and Special Juvenile Police Unit, awareness, monitoring, rules, repeal and removal of difficulties.

Test yourself

1. Trace the evolution of juvenile justice law in India. The Apprentices Act 1850, under which a magistrate could bind a destitute child as an apprentice; the Reformatory Schools Act 1897, separating a youthful offender from the adult prison; the provincial Children Acts from 1920; the Children Act 1960 for the Union Territories; the Juvenile Justice Act 1986, the first uniform central law, with a juvenile being a boy under sixteen and a girl under eighteen; the Act of 2000 after India's accession to the Convention, setting the age at eighteen for both and introducing the child in conflict with law and the child in need of care and protection; and the Act of 2015 with its preliminary assessment, amended in 2021.

2. Define heinous, serious and petty offences. Heinous, where the minimum punishment under the general law is imprisonment for seven years or more; serious, where the punishment is a minimum of more than three and not more than seven years, or a maximum of more than seven with no minimum prescribed or a minimum below seven; petty, where the maximum is up to three years.

3. What is the preliminary assessment, and what is it not? Under section 15, where a heinous offence is alleged against a child who has completed or is above sixteen, the Board assesses his mental and physical capacity to commit the offence, his ability to understand its consequences and the circumstances in which he allegedly committed it, with the assistance of psychologists or experts if it wishes. The Explanation says in terms that it is NOT A TRIAL but an assessment of capacity and understanding.

4. What may never be ordered against a child in conflict with law? Under section 21, a sentence of death or of life imprisonment without the possibility of release, whether under this Act, the Penal Code or any other law. Under section 10 the child may never be placed in a police lockup or jail, and under section 23 there may be no joint proceedings with a person who is not a child.

5. Set out the order of proof of age under section 94. Where it is obvious from appearance that the person is a child, the Committee or Board records that observation and proceeds. Where there is reasonable doubt, it seeks the date of birth certificate from the school or the matriculation or equivalent certificate; in their absence, the birth certificate from a corporation, municipal authority or panchayat; and only in the absence of both, an ossification or other latest medical test, to be completed within fifteen days. The age so recorded is deemed the true age.