SARDAR PATEL SUBHARTI INSTITUTE OF LAW

SWAMI VIVEKANAND SUBHARTI UNIVERSITY,

MEERUT, U.P.

SUBJECT: “SEMINAR ON THE CONTEMPORARY ISSUE OF THE GROUP”

RESEARCH ARTICLE THEME

“AN ANALYSIS OF SECTION 15 OF THE JUVENILE JUSTICE (CARE AND

PROTECTION) ACT, 2015”

SUBMITTED TO:

ASSOCIATE PROFESSOR: - DR. REENA BISHNOI

SUBMITTED BY:

RAVI SAXENA

LL.M IIIrd SEMESTER

SARDAR PATEL SUBHARTI INSTITUTE OF LAW

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ACKNOWLEDGMENT

I would like to give special thanks to my teacher Assistant Prof. ‘Dr. Reena
Bishnoi’ who gave me the golden opportunity to do this Research Article on ““AN
ANALYSIS OF SECTION 15 OF THE JUVENILE JUSTICE (CARE AND
PROTECTION) ACT, 2015” which helped me in doing a lot of research and I
came to know about so many new things I am really thankful to her. Secondly I
would like to thanks my parents and friend who helped me a lot in finalizing this
Article within the limited time fit.

………………………

Ravi Saxena

LL.M

IIIrd SEMESTER

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TABLE OF CONTENTS

1. ABSTRACT……………………………………………………………………………4
2. INTRODUCTION AND SUBJECT IN ISSUE ……………….……….……………..4-5
3. THE HISTORY OF JUVENILE DELINQUENCY……………………………………6
4. INTERNATIONAL COVENANTS ON JUVENILE JUSTICE ………………………7
5. INJUSTICE UNDER SECTION 15………………………………………………………7
a) STAND OF SUPREME COURT
b) JUVENILE JUSTICE AND THE CONSTITUTION
c) IDEAS INDIA CAN ADOPT

6. CONCLUSION AND RECOMMENDATION…………………………………….…12

7. REFERENCES

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ABSTRACT

“The Juvenile Justice Act, 2000 was strongly subject to plethora of

critics by scholars from all spectrums of the society for its
perceived failure to hold the child offender accountable. Therefore,
emphasis was laid on increasing the quantum of punishment, in
order to act as an effective deterrent. In the backdrop of the
Nirbhaya case, the Parliament of India rushed to enact the
Juvenile Justice Act, 2015,

The Issue of ‘age of juvenile’ reached the Apex Court of India in

the form of bunch of writ petitions asking for completely striking
off the Act of 2000 to make changes in various provisions to
enhanced punishment to juvenile in conflict with law hence, as a
result of deliberations the Juvenile Justice Amendment Act of 2015
was passed despite being vociferously opposed by Child Rights
Activists all over the country,

This Research Article aims to analyze the framework of Section

15 of the Act, in the context of a juvenile's physiology. An attempt
has also been made to study how other nations around the world
are addressing the problem of juvenile delinquency. The paper
concludes by highlighting the ambiguity in the legislation and
suggests solutions for doing away with the same.”

Keywords; - Section 15 of the Juvenile Justice Act, 2015, social defense, United Nations
Convention on the Rights of the Child, 1992.

INTRODUCTION AND SUBJECT IN ISSUE

The Juvenile Justice (Care and Protection of Children) Act 2015 (hereinafter JJ Act, 2015), as
passed by Parliament, received the assent of the President of India, on December 13, 2015 and is
applicable to the whole of India, except the state of Jammu and Kashmir. The gruesome rape in
the Nirbhaya case, where one of the offenders was 17 years old, just 3 months short from
attaining majority, fueled the concern that the Juvenile Justice Act, 2000 was ill-equipped to deal
with this new breed of delinquents, the so-called juvenile superpredators.1 The policy elites, the
media, as well as ordinary citizens, from all spectrums resorted to questioning the legitimacy of

1
Addie C. Rolnick, Untangling The Web: Juvenile Justice In Indian Country, 19(49) N.Y.U JOUR. OF LEG. &
PUB. POLICY 49, 101-02 (2016).

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the juvenile legislation and the need for the adoption of stringent punishment, to act as a
deterrent. The Parliament, under unprecedented scrutiny and criticism for its perceived inability
to respond to the Juvenile menace, succumbed to the demand of some critics riding on the myth
of superpredators. Thus, the Parliament brought in the JJ Act, 2015 to make it easier to prosecute
juveniles as adults.

Under the existing framework, a child between the age of 16-18 years, alleged to have
committed a heinous offence, may be transferred to an adult criminal court, known as children's
court, to be tried as an adult.2

SUBJECT IN ISSUE

Section 15 of the JJ Act, 2015 is the most contentious provision, mandating the Juvenile Justice
Board (hereinafter referred to as JJB) to transfer cases involving a child between 16-18 years,
alleged to have committed a heinous offence, to a children's court. This decision is to be made by
the Board on the basis of a preliminary assessment conducted to examine the child's capacity to
commit such an offence. This Section casts an onerous obligation on the JJB to take the
assistance of psycho-social workers, psychologists and other experts, in order to come to a
conclusion regarding the mental capacity of the said accused. If the Board is satisfied in its
preliminary assessment, then it may transfer the child to be dealt by the Children's Court, under
Section 18(3).

“The author submits that the provision requiring preliminary assessment of the child is a
subjective process, creating scope for enormous arbitrariness. The legislature has failed to take
into account modern scientific evidences which unequivocally show that individual assessment of
a child's mental capacity is not possible.”

“The transferring of a child into the adult criminal justice system, as envisaged by the JJ Act,
2015 is also in violation of Articles 143 and 15(3)4 of the Constitution of India”.

2
The Juvenile Justice (Care and Protection of Children) Act, No. 02 of 2016, INDIA CODE, §§ 15, 2(20) (2015)
3
Article 14 of the Constitution of India, 1950- Equality before law The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.
4
Article 15(3) of Constitution of India, 1950-Nothing in this article shall prevent the State from making any
special provision for women and children.

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THE HISTORY OF JUVENILE DELINQUENCY

From early 20th century onwards, each state in India had its own Act, dealing with the issue of
juvenile delinquency. The Madras Presidency, an administrative subdivision of British India, was
the first to enact its juvenile legislation. Shortly afterwards, Bengal and Bombay in 1922 and
1924, enacted their respective legislations on children. These courts implemented benevolent and
paternalistic policies under the welfarist mode. 5 The Government of India legislated the Children
Act in 1960, to provide for the trial of juvenile delinquents in the Union Territories, as a model to
be followed by the states, in the enactment of their respective legislations concerning juveniles.
As per the act, a child was defined as a boy under the age of 16 years of age, and a girl, below 18
years of age. 6 Every state had its own children act and procedures. The cut-off age provided in
each Act lacked consistency in terms of definitions as well as in the procedures adopted therein.
The definition of "child" differed from state to state. This prompted the Apex Court to emphasize
on the need for a uniform Children act.

In the case of Sheela Barse v. Union of India,7 the court observed;

“we would suggest that instead of each state having its own children
acts different in procedures and content from those in other states, it
would be desirable if the central government initiates the
Parliamentary legislation on the subject so that there is complete
uniformity in regard to the various provisions relating to children in
the entire territory of the country."

Subsequently, the Parliament enacted the Juvenile Justice Act, 1986. However, there was a wide
gap between the cherished principles and the actual practices under the JJ Act, 1986. Therefore,
the Parliament enacted the Juvenile Justice (Care & Protection) Act, 2000. The new legislation,
Juvenile Justice Act, 2015 has introduced a new provision enabling the transfer of children aged
between 16-18 years to children's court, in cases where in a heinous offence is alleged to have
been committed by a child.

5
Maharukh Adenwalla, Juvenile Justice Reforms in India, Childline India Foundations (2006).
6
The Children Act, 1960, Act no. 60 of 1960, § 2(e).
7
1986 SCALE (2) 230

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INTERNATIONAL COVENANTS ON JUVENILE JUSTICE

The JJ Act, 2015 fails to conform to the International charters on Human Rights, which are
invoked in its preamble. 8The Declaration of the Rights of the Child, commonly known as
"Declaration of Geneva", the first international instrument on children's rights, advocated that
child offenders should be transformed, not penalized. 9

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, also
known as Beijing Rules, categorically spelt out the minimum standard to be followed by member
states. It states in detail, the treatment to be meted out to juveniles without distinction of any
kind.10 It focuses on rehabilitation aspects of the juvenile, 11

The UN Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules) is
the first international instrument that defines a juvenile in terms of age. It recognizes that a
juvenile is every person under the age of 18. 12

The Convention on the Rights of the Child (hereinafter referred to as CRC), 1989 is an
international treaty which India has signed as well as ratified. It emphasizes on inter alia, best
interests of the child and social reintegration. 13The reduction of age from 18 to 16 years and
transfer of a child onto the criminal justice system is a failure on the part of India to observe
International conventions. It goes against the spirit of the CRC and basic human rights.

INJUSTICES UNDER SECTION 15

The most crucial change brought about by the JJ Act, 2015 is that, under Section 15 of the JJ
Act, 2015, a child who has completed or is above the age of 16 years can potentially be tried as
an adult. Under the Act, a child has been defined as a person who has not attained 18 years of

8
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, India Code, Preamble (2015).
9
Covenant of the League of Nations adopting Geneva Declaration of the Rights of the Child on 26 September, 1924.
10
G.A. Res. 40/33, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Nov. 29,
1985).
11
Rules 24.1 and 25.1.
12
G.A Res. 45/113, United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Dec. 14, 1990),
Rule 11(a).
13
G.A Res. 44/25, Convention on the Rights of the Child (Nov. 20, 1989).

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age.14 Therefore, there is no change in the definition of the child per se. Although the Act has not
reduced the age in the definition, Section 15 of the Act has reduced the age of a child from 18 to
16 years for the purpose of treating a child as an adult for heinous offences, thus proving to be a
glaring and unavoidable inconsistency.
Section 15 of the JJ Act, 2015 mandates the JJB to conduct a preliminary assessment of children
to understand their mental status. The JJB may take the help of psycho-social workers,
psychologists and other experts to ascertain their mental capacity. If the Board is satisfied that
the child possesses the mental capacity to commit such a crime on the basis of the preliminary
assessment conducted therein, it may send the child to be tried as an adult by Children's Court
under Section 18(3).

The child is given a juvenile sentence to be served at a place of safety, until he becomes a major,
after which he is transferred to an adult prison.29 The blended sentencing rendered by the courts
is more punitive in nature as it allows children to be sentenced as an adult. This convergence
eventually erodes the rationale for a separate juvenile justice system. It is beyond comprehension
and somehow paradoxical as well, that the same courts established for the protection of the
child's dignity is now violating it.15

A. THE STAND OF SUPREME COURT

The Apex Court has time and again held that the dignity of a child is of extreme significance
and emphasizes on the sustenance of such dignity. 16

The Apex Court, in Subramanian Swami v. Raju, through the Juvenile Justice Board, provided
cogent reasons while dismissing the petition against reducing the cut-off age from 18 to 16
years. 17 In the case of Salil Bali v. Union of India,18 the constitutionality of definition of child
under 18 years was challenged as ultra vires Constitution.

14
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, India Code, §§ 2(12), (13)
(2015).
15
The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 02 of 2016, INDIA CODE, § 2(20);
Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Ors, AIR 2017 SC 3457.
16
Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590; Suchita Srivastava and Anr. v. Chandigarh
Administration, (2009) 9 SCC 1; Reena Banerjee and Anr. v. Govt. (NCT of Delhi) and Ors., (2015) 11 SCC 725;
Mofil Khan and Anr. v. State of Jharkhand, (2015) 1 SCC 67.
17
Subramanian Swamy v. Raju, (2014) 8 SCC 390.
18
Salil Bali v Union of India, (2013) 7 SCC 705

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The Court held as follows;

"The age of eighteen years has been fixed on account of the understanding of
the experts in child psychology and behavior patterns that till such an age the
children in conflict with law could still be redeemed and restored to
mainstream society, instead of becoming hardened criminals in future. It is
probably better to try and reintegrate children with criminal propensities into
mainstream society, rather than to allow them to develop into hardened
criminals, which does not augur well for the future."

B. JUVENILE JUSTICE AND THE CONSTITUTION

The Preamble of the JJ Act, 2015 refers to Articles 15(3), 39(e) and (f), 45 and 47 of the
Constitution. It states that such Articles cast an obligation "on the State to ensure that all the
needs of children are met and that their basic human rights are protected".59 The transfer
system of a child to adult criminal system under the Act, violates the right to equality under
the Constitution. Article 14 prescribes equality before law, but the fact remains that all are not
equal by nature, circumstances, attainment, and hence a mechanical equality before the law
results in injustice.

The Supreme Court has underlined this principle thus:

"Article 14 of the Constitution ensures equality among equals:

its aim is to protect persons similarly placed against
discrimination. It means that equals should be treated alike; it
does not mean that 'unequals ought to be treated equally'.
Persons who are in the like circumstances should be treated
equally. On the other hand, where persons or groups of
persons are not situated equally, to treat them as equals
would itself be violative of Article 14 as this would result in
inequality".19

19
RK Garg v Union Of India, AIR 1981 SC 2138.

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C. IDEAS INDIA CAN ADOPT

An analysis of how other countries are tackling juvenile delinquency with a child-
centric approach, offers valuable lessons for India.

a) Without exception, in all the countries reviewed herein, there is a

tendency to tackle the core issues which lead to juvenile delinquency
such as moral status of family, child's education et cetera to prevent
delinquency at its nascent stage.
b) Juvenile legislations in all the aforementioned countries have been
balanced in such a way, so as to secure the best interests of the child,
without taking recourse to the formal legal system. The principle of
diversion has also been paid much attention.
c) Fundamental to all these countries is the separate treatment of a child
in a system distinct from the adult criminal justice system. The lesson
for India is that Criminal conduct and its influence on society depends
on the treatment juveniles receive today20.

20
Del Carlo Shari, Oregon Voters Get Tough on Juvenile Crime: One Strike and You are Out!, 75 OREGON L.
REV. 1224-40 (1996).

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CONCLUSION

Reducing the age of Juvenile in conflict with Law can never be the solution to the problem of
Juvenile Delinquency. Considering Nirbhaya Case as a whole and sole reason and also the moral
foundation and justification to reduce the age of Juvenile from 18 to 16 and thereby causing the
Juvenile Justice (care and protection) Act of 2000 to undergo the drastic and dramatic changes is
nothing but a pathetic exhibition of social prejudices by the central government. The demand to
lower the age of age of Juvenile to 16 was misinformed, emotive and motivated. It is nothing but
a ploy to add to already overwhelming powers of the state that it exercises over its citizens. The
centre of interest in juvenile court is always a juvenile and his welfare, and not the act or its
consequences which might have resulted in his or her being brought before the court.

Hence, instead of reducing the age, an attempt should have been made to remove the very root
cause of the problem i.e. mould our juveniles in such a way and provide them with such a socio-
psychological-emotional atmosphere and support that they don’t commit crime at the very first
step itself.

RECOMMENDATIONS/ SUGGESTION

1. Implementation of Juvenile Justice Act should be made heavily. Act without hands
willing to implement it is ineffective and dangerous. Therefore, the Government should
see that the Act is properly implemented by the authorities.
2. India should not have common Juvenile age for every crime. The system can be made on
the lines of USA, UK and France to categorize and divide Juvenile Justice System into
different age groups.
3. Case of Juvenile should not be transferred to the Adult Court.
4. Every Juvenile Justice Board should work with local child welfare organizations to
improve their effectiveness in providing abused and neglected children with safe shelters.
5. Members of Juvenile Justice Board should advocate for adequate court resources and
community systems to respond promptly and appropriately.
6. All members serving in a juvenile justice board or juvenile court should be required to
have intensive and ongoing training not only in the statutory and case law governing
delinquency but also in child development, socio-cultural factors, resources for families.

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REFERENCES

International Laws referred:

 Covenant of the League of Nations adopting Geneva Declaration of the Rights of the
Child on 26 September, 1924.
 G.A. Res. 40/33, United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (Nov. 29, 1985).
 G.A Res. 44/25, Convention on the Rights of the Child (Nov. 20, 1989).
 G.A Res. 45/113, United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (Dec. 14, 1990), Rule 11(a).
Laws referred :
 Constitution of India, 1950
 The Children Act, 1960,
 The Juvenile Justice (Care and Protection of Children) Act, 2015

Case Laws –

 Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Ors, AIR 2017 SC 3457.
 Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590;
 Suchita Srivastava and Anr. v. Chandigarh Administration, (2009) 9 SCC
 Reena Banerjee and Anr. v. Govt. (NCT of Delhi) and Ors., (2015) 11 SCC 725;
 Mofil Khan and Anr. v. State of Jharkhand, (2015) 1 SCC 67.
 Subramanian Swamy v. Raju, (2014) 8 SCC 390.
 Salil Bali v Union of India, (2013) 7 SCC 70
 RK Garg v Union Of India, AIR 1981 SC 2138.

Research Articles –

 Maharukh Adenwalla, Juvenile Justice Reforms in India, Childline India Foundations

(2006).
 Del Carlo Shari, Oregon Voters Get Tough on Juvenile Crime: One Strike and You are
Out!, 75 OREGON L. REV. 1224-40 (1996).

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