This paper aims to discuss the applicability of the Juvenile Justice (Care and Protection of Children) Act, 2015 in the present criminal law framework. It considers the law from the point of view of a ‘child in conflict with the law’ as opposed to the traditional ‘victim-centric’ approach that we have so far adopted. This paper advocates for the removal/modification of the existing law that allows 16-18-year-olds accused of heinous crimes to be tried as adults
It is argued that the present system of judicial waiver works contrary to its proclaimed aim of reforming ‘children in conflict with the law’ into responsible members of society. It forces them down a path of self-destruction and abuse only to ensure that they emerge as hardened criminals- recidivism statistics support this hypothesis..
It is also argued that the understanding of human development and maturity with which this law has been made is far removed from the prevailing notions regarding the same in the scientific community. Essentially, the assumption of maturity that this law makes- in relation to a person’s biological age- is unfounded in science.
This paper concludes with the assertion that the desired end of criminal law is rehabilitation, not retribution and that that the present system does more harm than good when viewed from the point of view of society as a whole. In order to move towards a safer society- investigations must not only be done into the acts of a person, but also into the circumstances and environment of his youth for these have time-and-again been proven to be the real culprits behind crimes. Vocational-training, employment-assistance, de-addiction and other such wholesome pursuits of the government will be far more effective in reducing crime than simply throwing the youth of this country behind bars.
The principles of criminal liability are, at the outset, pretty clear. One cannot be held guilty for the commission of a criminal act if the prosecution is unable to prove the presence of two fundamental ingredients of a crime- actus reus and mens rea. Actus reus refers to the criminal act and mens rea refers the guilty mind or intention that must necessarily accompany such an act. The relationship between the two is summarised by the Latin maxim- ‘actus non facit reum nisi mens sit rea’ which roughly translates into English as ‘an act does not make one guilty without the presence of a guilty mind.’ It is an ordinary presumption of any civilized legal system that people cannot be held liable for those consequences of their acts which they did not intend or did not reasonably know to be the results of their acts.
Comprehension of the consequences of one’s conduct is a major consideration when trying to prove the presence (or absence) of mens rea. This comprehension is a function of emotional maturity, cognitive abilities and biological development. These developments occur, if at all, for different people at different rates and at different life-stages; this is the reason why some 18-year olds are more mature than others and why lunatics and children cannot be held guilty of crimes. A peculiar situation confronts the law at this juncture- if individuals mature at different rates, especially those on the cusp of adulthood, how are courts to award punishments to teenage delinquents for crimes? At what age can a person be presumed to understand the consequences of his/her acts, if such a presumption is even possible?
Children and young-adults have always been involved with crime, nations realise that they require special treatment in the eyes of law for two major reasons. Firstly, their innocence and/or ignorance of consequences of their conduct means that they are generally considered incapable of forming mens rea or criminal intention and are hence regarded as doli incapax or ‘incapable of differentiating between right and wrong’. Secondly, it is this very innocence and impressionability that makes them more receptive to reformation by the state, so that they may leave behind their past and becomes productive members of society- so that they may have a ‘fresh start.’ In recognition of these principles, the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted by the Parliament. This was by no means the first legislation of its kind, but is closely related to the present law and is hence pertinent to discuss. This law fixed the age for full criminal liability at 18 years and provided that those found guilty of crimes committed before achieving the age of 18 be punished with a maximum sentence of 3 years in a correctional home and no more. On the face of it, this appeared to be a perfectly reasonable law but its proper implementation was blocked by procedural delays and a pitiable condition of remand homes in India.
It is during this time that the National Crime Records Bureau reported that juveniles within the age range of 16-18 accounted for 66.6% of all children arrested for crimes in 2013, this was up from 56.4% in 2003- a whopping 10.2% jump in 10 years. Not only this, the bureau also pointed out that more children than before were being apprehended for serious crimes such as theft, kidnapping, rape, robbery and murder, especially in this particular age group. This statistic indicated a fundamental flaw in the treatment of this particularly vulnerable section of society. Many voices asked for a change in the law so as to treat this age group at par with adults as is routinely done in many states in the United States of America- predictably so, these voices were drowned out. Everything changed on the intervening night between 16th and 17th December, 2012 when 6 men were involved in the act of sexually brutalizing a 23-year-old woman in a moving bus, with iron rods which subsequently led to her death. This incident gained notoriety as the ‘Nirbhaya Gang Rape Incident’ across the world and shook the conscience of this nation. The absolute barbarism of this incident sparked off movements throughout the world that called for the rapists to be awarded capital punishment. While one of the accused died pending final determination of the case- 4 others were handed the death penalty in a strongly-worded judgement by the Apex court. The 6th accused could not be handed the death sentence like his accomplices, despite there being allegations that he was, in fact, the most brutal of all 6 assailants, for the simple reason that he was 6 months short of his 18th birthday and hence had to be tried as a juvenile as per the law. While his accomplices were put on death-row, the juvenile had only been sentenced to 3 years in a North-Delhi Correctional home- this disparity of treatment defied logic and offended sensibilities across the nation by exposing a serious lacuna in the law. The Parliament supposedly remedied this situation by passing the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter ‘JJ Act’).
This new and improved law provides that a Juvenile Justice Board (hereinafter ‘JJB’) shall be formed in each district. This Board is composed of a Metropolitan Magistrate or a Judicial Magistrate of the First Class and two social workers at least one of whom is required to be a woman. This board has the task of determining, in cases where a child between the ages of 16 and 18 is accused of a heinous crime, whether the crime was committed by said person ‘as a child’ or ‘as an adult.’ Essentially, the JJB has to determine whether the child had the cognitive abilities to understand the consequences of his/her act thereby forming the mens rea to commit a valid crime; or if the child, for want for mental or emotional maturity, was unable to form the requisite mental element in which case he would continue to be treated as a child. This legislation has been presented as a sort of middle ground between subjecting all 16-18-year-olds to adult punishment and letting them go with light admonition.
It is a fundamental tenant of criminal law that punishment has to be directed towards a guilty mind, it is of no use to punish a mind that is not capable of being guilty- such as that of a child. The JJ Act purports to do exactly this, albeit erroneously. The criticisms of this legislation can be grouped under 3 broad categories:
- JJ Act ,2015 contravenes the United Nations Convention on Rights of Child (UNCRC)
The United Nations Convention on the Rights of the Child (hereinafter ‘UNCRC’) is an international human rights treaty that came into force upon receiving 20 ratifications on 2nd September, 1989 and currently has 196 state-parties. India ratified the UNCRC on 11th December, 1992. This convention defines ‘child’ as anyone who has not attained the age of 18 years. It also prohibits, under any circumstances, the treatment of juvenile delinquents on par with adult offenders of the law, i.e. it categorically disallows individuals below the age of 18 from being tried as adults in a court of law. Since India has ratified said treaty- we are bound by it in International Law.
The convention provides that when a child is found guilty of serious penal law violations, the state may take measures appropriate to the circumstances of the offence so as to secure public safety, but in no case can this be allowed to outweigh the primary role of the criminal justice system with regard to the child, i.e. his reformation. That is to say that the first priority of the state has to be to deal with the child in a manner so as to allow him/her to re-integrate with society- all other concerns become secondary to this.
Reformation and not retribution, is one of the key characteristics of a modern legal system. Émile Durkheim, while explaining his sociological concepts of Mechanical and Organic societies, has made an astute observation regarding the kinds of laws that have existed in ancient and modern societies. He opined that laws in under-developed, ancient societies tended to be punitive and harsh for the simple reason that people were governed by fear. Society was forced to adopt such measures to maintain status-quo. However, it is now considered a sina qua non that the penal laws of a civilized nation be reformative, not retributive in nature. This is in recognition of the fact that we do not consider criminals to be barbarians who are incapable of reform, they are merely products of their circumstances. This insistence on reformation is bolstered not only in light of the UNCRC guidelines, but also from a very basic policy standpoint which recognises that children are more responsive to rehabilitative measures by the very nature of their innocence that drives them to commit these illegal acts. In such a situation, if a child is tried as an adult and sentenced to prison, the state will never be able to tap into his reformative potential. Exposure to adult criminals will not only increase incidences of exploitation against these children, but also expose them to influences that will drive them towards a life of crime, not away from it.
The JJ Act promulgated by Parliament in 2000 was in consonance with the principles of this treaty however the 2015 JJ Act, which allows trials of 16-18-year olds as adults, flies in the face of this treaty and all that it stands for.
- The proposed transfer system is problematic and works to prevent complete reformation of the child
A transfer system that allows 16-18-year-olds to be treated like adults as envisaged in the JJ Act, 2015 is unmistakably reminiscent of a similar system that exists in many American states. What our Indian law makers have failed to realise is that this model did not work in the American system and it won’t work in India either. An American study on the subject has revealed a disturbing statistic, it has observed that 80% of minors who were tried as adults and released from prisons, went on to commit more serious crimes. The United States Centre for Disease Control (hereinafter ‘CDC’), has concluded, after a perusal on no less than 9 different studies on the judicial waiver system, that:
“…transfer policies have generally resulted in increased arrest for subsequent crimes, including violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system. To the extent that transfer policies are implemented to reduce violent or other criminal behaviour, available evidence indicates that they do more harm than good.”
There seems to be compelling evidence against measures as adopted by the JJ Act of 2015. This evidence comes from a country that has had the judicial waiver system in place for almost 20 years and is now repealing it for reasons that it aggravates the problem rather than reducing it. All this while we are actively trying to make this a part of our system, blissfully ignorant of its pitfalls- in the face of mounting evidence that suggests otherwise.
Laws that deal with ‘children in conflict with the law’ generally tend to recognise the fact that run-ins with the law in one’s formative years can cause irreparable damage to one’s future prospects. This damage comes by way of social stigmatization, disqualifications from certain professions/vocations and a general inability to re-integrate with society. In order to incentivize reformation of such children, the Principle of Fresh Start is incorporated into statutes that deal with juvenile delinquency.
This principle recognises that in order to become a productive member of society and to be reformed, a person cannot be expected to carry the burden of mistakes made in his youth, throughout his life. In order to do so, the JJ Act,2015 provides that no child dealt with under its provisions shall suffer any disqualifications that are generally associated with convictions under certain offences. The Act also provides that the criminal record of any such child shall be destroyed after the child leaves the remand home and is certified to be reformed, except in cases where the child has been convicted of a heinous crime and has been tried as an adult under the provisions of §19(1)(i). it is submitted that this proviso is problematic as it goes against the previously stated principle of Fresh Start.
A child that has committed a crime so heinous so as to justify trying him as an adult- is in need of more reformation and protection than other juvenile delinquents, not less. This child has a greater need for a fresh start, than a child convicted of a milder offence simply because the burden carried by the former is greater than that carried by the latter. We must consider the circumstances of upbringing, of education and of early childhood care that said child has gone through in order to drive him to commit an offence of such gravity- it will be realised that such children are at a greater risk of relapsing into a life of crime. If the offenders know that they will not be able to shake their past misdeeds, do what they may- they have no reason to reform into productive members of society; thereby defeating the very purpose of reformation.
Another fundamental difference between trials concerning adults and those concerning individuals is that in the latter- certain protections are afforded to the under-trial keeping in mind their sensitive age group. Among other things, trials of juveniles are not public and the media is prohibited from disclosing the name the under-trial. It is submitted that if a child is tried as an adult in a sessions court, such legal protections are unavailable to said person. This would not only work against reformation in case the child is subsequently found guilty of the offence, but also be a cause of societal excommunication in case the charges are not proved. That is to say that regardless of whether one is found guilty of the offence or not, he will suffer social consequences of having undergone a criminal trial in his formative years.
- Biological, Psychiatric and Psychological research shows that trying ‘children in conflict with the law’ as adults, works contrary to the law’s aim of reforming them
It is argued that there are significant biological and psychological differences between an adolescent and an adult. These differences must be factored in while deciding the criminal liability of alleged offenders in the age bracket of 16-18 years. JJ Act, 2015 discards scientific reasons and conclusions backed by decades of neuroscientific research and empirical analysis. The scientific community unanimously and strongly advises against lowering the age of criminal liability. Our Parliament fails to take cognizance of judicial precedents around the world, such as the ones put forward by the US Supreme Court, that have accepted these recommendations. While other countries are becoming increasingly receptive to advancements in behavioural psychology and the evidence it has brought forward, our criminal justice system does not make way for reforms based on this newly unearthed information.
The risk-taking abilities of an individual vary based on a multitude of socio-economic and biological factors which include their peers, economic status, genetic makeup, mental health, etc. This is especially true for adolescents, who go through hormonal changes during puberty. Certain people are more likely to indulge in high risk activities which have important social and health consequences such as indulgence in criminal activities and drug abuse. Neuropsychological studies have used neuro-imaging techniques to prove that there are differences in the neutral functioning of Prefrontal Cortexes of individuals. These differences are responsible for variations in decision making processes of different individuals which causes differences in risk taking tendencies and abilities.
Researchers have used Resting-State Electroencephalography (EEG), a mechanism to calculate the tonic cortical activity prior to the commissioning of an illegal act. Several studies, using Human-EEG, have found that a sense of stability develops in individuals only with age. There are, hence, substantial differences between adolescents and adults in how much control they consciously exercise over their actions. The hypoactivity in the right prefrontal cortex leads to an absence of regulatory control in adolescents, making them incapable of repressing the urge to engage in activities that might be in conflict with the law and carry penal sanctions.
In adolescents, the Prefrontal cortex has not yet achieved its full functional maturity-this causes lack of inhibitory control, concomitant behavioural problems, greater risk-taking tendencies and a selective neglect for negative consequences.
The probability of death of an adolescent by engagement in a harmful activity goes up by 200% as compared to when he is still a child, this points towards the lack of self-control and an inability to supress or mitigate inappropriate emotions, desires or actions. Mental capabilities and performance of adolescents falter particularly in emotionally-charged situations- where decisions have to be taken ‘in the heat of the moment’. Adolescents find it harder than even children to resist appetitive social cues. An increase in age and experience, accompanied by consequentially increased connectivity between the Prefrontal Cortex and the Subcortical regions increases one’s capacity for self-control.
The Judicial Waiver as provided in the Juvenile Justice Act amounts to a retributive form of punishment against ‘children in conflict with law’ instead of focusing on rehabilitating them. Prosecuting adolescents as adults and transferring their cases to the jurisdictions of criminal courts based only on the nature of the crime committed stands challenged by theory and research in developmental psychology, criminology, and child clinical psychology and psychiatry. From the very beginning the juvenile justice system has acknowledged adolescence as a stage of developmental immaturity which made violations of law by such persons less blameworthy when compared to offences committed by adults. Hence, ‘juveniles in conflict with law’ deserve a different legal response than adults.
Transferring a matter to a sessions court solely on the basis of its categorization as a ‘heinous crime’ ignores the possibility of mental illness as a potential intervening event in the criminal act. This raises the question- why should 16-18-year olds even be given any special advantage of the defence of insanity as provided in Section 84 of the Indian Penal Code? The reason for this is that although they are given the same opportunities as adults to argue the defence of insanity, this defence may not protect them to the same extent. The discrepancy in diagnosis of mental illness in adolescents as compared to adults, results from the fact that mental disorders in adolescents are not simply a copy of mental disorders and diseases in adults. As the classic, universal, traditional and easily-identifiable symptoms of chronic mental illnesses are not ordinarily observed till a person is well into adulthood- these mental disorders go unidentified and undiagnosed. However, merely because the outward symptoms of such disorders are not visible till adulthood does not mean that an individual’s sensibility is not affected by it during his adolescence. For instance, delusions and hallucinations, which are widely known and easily identifiable symptoms of schizophrenia- a condition where an individual often loses total control over his thoughts and actions, do not manifest themselves in a person till early adulthood. 
Immature development causes adolescents to suffer misdiagnosis at a greater rate than adults. Medical practitioners, clinical psychologists, courts or juries will therefore be unable to comprehend their mental status so as to determine their criminal liability as per the relevant laws. Consequently, the preliminary psychological assessment under Section 15 of the Juvenile Justice Act is rendered ineffective. Therefore, juveniles with or without mental disorders are at a higher risk of receiving an incorrect psychological evaluation assessing their mental capacity to commit a crime and their understanding as to the nature and consequences of their acts.
A research study found that African-American adolescents are less likely to be diagnosed with mental disorders despite medical evidence suggesting higher prevalence of such conditions amongst them as compared to the national average in all adolescents. African-American teenagers are disproportionately over-represented in the US juvenile justice system as compared to their proportion in the overall US population.
Some really important parallels can be drawn here that will be applicable to the Indian juvenile justice system. In India, individuals from lower economic strata already comprise a significant proportion of the prison population for adults and of remand homes designated for ‘children in conflict with law’. The socio-economic structure of the Indian society inherently ensures that these juveniles come from communities that have been left behind due to our rigid caste system and lack of opportunity due to selective economic development. In a situation where the odds are stacked against juveniles who come from such conditions, lowering the age of criminal liability to 16 goes against the objective that the Act seeks to achieve. i.e. to reform juveniles and reintegrate them into the society. The same also goes against the principles of equality before law and equal protection of law under Article 14 of the Indian Constitution which guarantees that reasonable classification should be made for application of law.
An important perspective in this debate would be one brought about by the developments in genetics and their significance in determining how prone an adolescent is to antisocial behaviour. Molecular genetic studies have shown if the Monoamine oxidase A (MAOA) gene is neutralized from the genome of a mouse, it becomes extremely aggressive. Research has shown the same to be true for humans. Genes such as MAOA, 5HTT, BDNF, NOTCH4, NCAM and others not only cause anti-social, aggressive behaviour which will eventually lead to violation of law, but also influence brain chemistry of humans. The gene MAOA for example codes for the enzyme that codes for serotonin, a neurotransmitter, lower levels of which are responsible for antisocial behaviour.
Such genetic abnormalities lead to structural abnormalities in individuals. Juveniles who are at an age of characterised by far reaching bodily and mental changes, cannot possibly exercise discretion over biological impulses or lapses for that matter. The juvenile justice system’s responsibility towards such a child, is to ensure that a fair process of law is adopted for them considering that the structural Pre-Frontal Impairment found in at-risk adolescents was not accounted for by environmental factors such as medical history of head injury, child abuse or drug and alcohol abuse. It is noteworthy that preliminary psychological evaluation- on the basis of which a matter can be transferred to a criminal court, does not take these factors into account.
Based on what we now know in the fields of genetics and behavioural science, the lowering of age of criminal liability amounts to deliberate ignorance of neuroethical concerns around responsibility and punishment. If an individual is predisposed to deviance due to genetic, psychological and environmental factors, to what extent can the juvenile justice system place liability for said deviance solely on the child and try him in a sessions court? This amounts to ignorance of provisions of law that have been put in place to save a child merely caught in a cycle of immaturity, lack of control and unfavourable socio-economic conditions.
It not only a question of legal knowledge but also one of the moral judgments of a juvenile. The reduction in criminal liability was put in place based on the fact that an individual below a certain age lacks competence to form mens rea– which makes an act criminal. These discoveries in the field of neuroscience raise some serious socio-legal challenges to our understanding of criminal behaviour and hence we can no longer boil down the determination of culpability, punishment and free will of a juvenile in conflict with law to a number, that number being his age.
The law, as it stands today, allows 16-18-year-olds to be tried as adults by sessions courts in cases where they have accused of heinous crimes and have been determined to be capable of understanding the consequences of their conduct. This paper suggests that such a law works against the idea of reforming ‘children in conflict with the law’ into responsible, productive citizens by driving them deeper into a life of crime.
It is argued that the new Juvenile Justice Act of 2015 is in contravention of the internationally accepted principle that children under the age of 18 should not be subjected to criminal trials under any circumstances and that the state’s first priority is reformation of such children.
It is also argued that the system whereby juvenile cases are transferred to sessions courts is problematic from a policy standpoint because it works against reformation of the child. Children, if placed in adult prisons, run the risk of sexual and physical abuse by adult inmates. Their association with hardened criminals pushes them towards a life of crime, not away from it- they often come out of prison only to go back to prison on more serious charges.
Lastly, biological and psychological evidence points towards the fact that the human brain does not attain a sufficient level of development in adolescence in order to enable the child to properly differentiate between right and wrong. The law ignores that fact that the symptoms of many behavioural and mental abnormalities do not show up in individuals afflicted with them, until early adulthood- these paves the way for convictions of many children for crimes that were caused reasons other than their own volitions.
The authors of this paper therefore suggest some policy changes that can be incorporated into JJ Act, 2015 in order to do away with its shortcomings as discussed previously:
JJ Act,2015 should be amended in order to do away with the provision that allows for ‘children in conflict with the law’ to be tried as adults in cases of heinous crimes. While it is understandable that this change was brought with the intention that it will create more deterrence in the minds of juveniles, it is hard to ignore its greatest criticism- i.e. of it being a knee-jerk reaction to the Nirbhaya Case. In any situation, the law has to be general and not particular, one incident, no matter how offensive to one’s sensibilities- cannot be grounds for sweeping policy change. Punishing ‘children in conflict with the law’ more severely will not reduce the incidence of crime in the particularly troubled age group of 16-18-years. Instead, investigations should be made into the lives of these children at home and at school, their relationships with their peers and parents, their socio-economic conditions of living etc. in order to determine the precipitating factors that have caused said children to commit the offences they have been charged with. Once these factors have been isolated, psychological counselling and therapy should be provided with the targeted purpose of resolving these factors.
Another step that can be taken is of providing vocational and/or professional training opportunities in remand homes, for children to divert their energy towards. The knowledge that they will have a reasonable chance at a legal and sustainable livelihood for after they leave the confines of the remand home, will be instrumental in incentivizing their reform. This training should be imparted in addition to lessons on religious sensitization and de-addiction therapy. Psychological therapy and all other services currently provided-as determined by the court based on the nature of the offence. The idea is to bring about an all-embracing and well-rounded transformation in the way that the child views the world and his responsibilities towards those other than his own self.
Children convicted of heinous crimes should be committed to specialised rehabilitation homes, away from children who have been punished for less severe offences. The reason for making this segregation is simple- those convicted of heinous crimes are in much greater need for reformation that their peers convicted of less serious crimes. The association of children convicted for heinous crimes with others, will be a severe impediment to the rehabilitation and reformation of both groups. As is often seen in adult prisons, inmates with track records of violent crimes and repeated incarcerations establish a sort of hegemony over the less ‘experienced’ inmates, hence leading to their exploitation. It is not a far stretch of the imagination to say that this might also be happening in correctional homes- interviews with children have revealed so. Older, more violent children tend to exploit, bully and antagonise those whom they consider smaller or weaker than themselves. This inhibits rehabilitation of not only the one who has been antagonised, but also the one giving effect to it. Therefore, it makes sense to separate the two classes of children so that they may receive the appropriate care and attention, bespoke to their needs, in order to expedite their reformation and reduce their tendency to relapse into a life of crime.
A psychological way to tackle the issue at hand would be to promote neurofeedback training. Neurofeedback is a method that enhances self-control and the ability to regulate your urges. It leads to increment in the tonic level activity of the Prefrontal Cortex and leads to increment in the capacity of making adaptive decisions under risk. This technique alters the electrical activity in an individual’s brain in a direction that more favourable to the general welfare of the society. It has been successful in various situations in changing the asymmetry found in the prefrontal cortex. The individual variations in decision making processes can be studied, understood and recorded for the purposes of future application to a diverse range of candidates.
Apart from specific cognitive and therapeutic measures, psychiatrists and psychologists should be placed in schools and junior colleges to ensure that criminal radicalization of youths is stopped before they reach a point of no return. Regular psychological evaluations, counselling and peer meetings can help mitigate circumstances that lead a juvenile to fall in conflict of law.
In this manner, a wholistic approach to juvenile justice and protection must be taken in order to reduce crime rates and rehabilitate and reform juveniles to reintegrate them into the mainstream society as responsible and law-abiding citizens.
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 Juvenile Justice (Care and Protection of Children) Act, 2015, § 4 (1), No. 2, Acts of Parliament, 2016 (India).
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