Features Tuesday, April 07, 2015 - 05:30
By Suma Ravi In 2000, the Juvenile Justice (Care and Protection of Children) Act came into force with the objective to provide for the protection of our children. The act was amended twice, first in 2006 and then in 2011 to address gaps in its implementation. The new bill aims to introduce a new transfer system that will provide for children between 16 and 18 years who may have allegedly committed heinous offences to be tried and treated as adults thus marking a shift from rehabilitation to retribution. Even as the parliamentary standing committee extends invitations to civil society members, NGO’s and other alliances working with child rights or issues connected with children to come forward with their suggestions and comments on the proposed Juvenile Justice (Care and Protection of Children) Bill, 2014, there are quite a few problem areas in the bill: Will the Principle of proportionality work? The bill follows the simple principle of proportionality where in culpability + Gravity of crime will decide if juveniles who commit “adult crimes or heinous crimes” can be tried as adults. This brings forth an over-arching question of whether persons between 16 -18 years should in fact be held to the same standards of culpability as adults. Apart from the fact that this move will result in great incarceration costs, more importantly it will incur in crucial social costs owing to the resultant rage, bitterness and even more alienation of young persons who have journeyed through the adult criminal justice system. This particular aspect brings us to another important question of whether there is enough substantive scientific evidence that proves that such a solution will actually work in the larger interest of society and our children. Can we truly accurately assess the mental capacity of the child who may have committed the “heinous” crime?-The proposed Bill requires that the Juvenile Justice Board to dispose a preliminary inquiry for children of 16 – 18 years in case of heinous offences, which will in turn form the basis of the decision whether a child should be transferred to the adult system. The inquiry shall result in an assessment of the child’s mental and physical capacity to commit such crime and ability to understand the consequences of the offence and circumstances in which the child may have committed the crime. There is an assumption that an accurate assessment of mental capacity is possible which research shows is not actually possible. It has been learnt that individual assessment of immaturity is laced with problems for lack of diagnostic tools to evaluate psychological maturity. Therefore it becomes even more imperative that we assess the needs of the adolescent child rather than the culpability and move towards rehabilitative and restorative processes.  Are we looking at potentially toothless Child Welfare Committees? – The bill does not lay down the provisions for the selection of the Child Welfare Committee members and owing to different state rules, there is a definite possibility that it could be interpreted in diverse ways thereby leading to the dilution of the selection committee. Additionally, the bill aims to grant over-arching powers to the District Magistrate (DM) for conducting quarterly reviews of the functioning of the CWC and also states that the DM will be the grievances redressal authority, which could lead to infringement on the powers of the CWCs. Will the after-care provisions in the bill cater to all children? - The bill has provisions in place for After-Care only to persons who have completed 18 years and have left institutional care. It aims to give such persons a one-time financial support. But sans counseling, follow-up, training and/ educational and residential support, mentoring etc, the entire purpose of after-care will be defeated. There is a definite need to assess the support for each child which essentially needs to be an intrinsic aspect of the after-care program. What is required is a comprehensive full-fledged after-care program for all children under the juvenile justice system and not just children who have left institutional care/home. Apart from enlarging the culpability net, the proposed bill will definitely increase the risks of more young individuals being tried as adults. They could also possibly face severe punishments for offences that may include trading in certain drugs, armed robbery attempts and may be tried under the Protection of Children from Sexual Offences (POCSO) Act 2012. The bill could be misconstrued and misused to also penalize young persons who may have engaged in consensual sex with persons under the age of 18 years. So are we truly and completely aware of the actual and real implications of the proposed Juvenile Justice bill, or is this simply an attempt to placate the masses? Are we ready to arbitrarily inquire into the culpability of the child prior to even having a prima facie establishment of guilt? Are our Juvenile Justice Boards equipped to accurately assess the mental capacity/ capability of the child? Is the proposed bill truly working in the best interest of the child? Suma Ravi is Regional Director with Child Rights and You (CRY), an Indian NGO that believes in every child’s right to a childhood – to live, to learn, grow and play. For over 30 years, CRY and its partners have worked with parents and communities to ensure Lasting Change in the lives of more than 20 Lakh underprivileged children. CRY website.
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