The Juvenile Justice (JJ) Act 2015 came into effect amid much controversy on January 15, 2016 after receiving the Presidential assent in December 2015. It repealed the previous JJ Act, 2000. It had been passed by both the Lok Sabha and the Rajya Sabha without much opposition despite bringing critical changes.  The media celebrated the revised act as being stronger, fairer and getting new bite and teeth. The critique on the new JJ Act was hidden away in opinion pages and columns, outnumbered by glaring, screaming front page headlines full of applause and misrepresented data on crimes committed by children.

 

The revised Act brings changes with definitive and significant implications. In a few cases, it is welcome.  To begin with there has been a change in nomenclature, from ‘juvenile’ to ‘child’. The disputed category ‘Juvenile in conflict with law’ has been revised to ‘child in conflict with law’. This revision was effected to tackle the potential ostracization children face with ‘juveniles’ usually connoting young delinquents. The act also takes a stronger stand on the non-reporting of missing children.

 

It introduces several new definitions including, though not limited to, orphaned, abandoned, and surrendered children; and different kinds of offences (petty, serious and heinous) committed by children. It casts in stone procedures to be followed by various committees and bodies functioning under the Act. Negligence in following these set procedures often attracts penalties, both in terms of fines to be paid or term time in jail. The protective environment envisioned for children in 2015, is now clad in an iron vest.

 

Of the entire gamut of changes, the one that is most prominent, as heavily debated and opposed as it has been cheered and haloed depending on who one speaks with, was reducing the age from 18 years to 16 years for children to be tried as adults for heinous crimes. The amendment was brought about as a knee-jerk reaction to the 2012 ‘Nirbhaya Case’, a case of gang rape in a moving bus on a route in the heart of Delhi, in which one of the perpetrators was reported to be under-18.

 

To assuage public outrage, in certain cases amending the age of the child in the child in conflict with law category was deemed fit. JJ Act 2015 introduces a judicial waiver and allows for children 16 years and older to be tried as adults for heinous offences. Heinous offences are those which are punishable with imprisonment of seven years or more and include charges ofmurder and rape.

 

If a child between the age group of 16 and 18 commits a heinous crime, he or she will first be assessed on whether they are mentally or/and physically capable of committing such a crime, ability to understand the circumstances and the ability to understand the repercussions. After this assessment is completed, if found mentally and physically capable, the child will be tried under the Code of Criminal Procedure (1973). If the child is found guilty, he or she may be sent for reformative services for at least three years. In case of assessed non reformation, the child upon completing 21 years of age will be sent to jail, if there is more time left to be served.

 

Ascertaining whether the child was capable of the crime or capable of understanding the repercussions is arbitrary. According to eminent and practicing child psychologists, assessment tools to determine whether a child is actually capable of committing a crime are non-existent. A child’s propensity to criminal behavior and reformation cannot be measured objectively.

 

Maybe by way of compensation, the ministry is currently drawing up reams of formats and documents on ascertaining the child’s mental state. A list of questions has been drafted to ascertain the child’s ability to have committed the crime. The filled up questionnaire will be shared with the Juvenile Justice Board (JJB) along with a Social Investigation Report on the child, which the JJB is supposed to take into consideration while passing a judgment.

 

This matter however stands ambiguous. One doesn’t ascertain a child’s being a child or an adult in applying other child related legislations regarding marriage, voting, entering contracts or working. But now we have a law that states children in conflict with law may well be adults. They will inhabit a no man’s land till a list of questions volleys them across to this side or that.

 

The earlier law, JJ Act 2000, whatever its problems, was uniform in its definition of children. There was neither sub clause nor disclaimers regarding who is considered a child. Every person below the age of 18 was considered a child in keeping with the generally accepted definition of children in the country.

 

The JJ Act of 2015 has introduced a sub-group of 16-18 years. It could tomorrow be reduced further.  There is no telling. One would have hoped that the Nirbhaya case would affect stronger rehabilitation services for children. Studies on child psychology steadfastly mention that children are easy to reform, and easy to mould. Practitioners affirm this. Children in conflict with law have reformed and are socially integrated when given the right attention.

 

To know now that some will be weaned away from these services is disheartening and frightening. What is more frightening perhaps is that in wanting to be decisive, we seem to move towards becoming a nation which is in a hurry to see justice culminate as punishment for children. The government has responded to this and passed an Act, which seemingly will act.

 

JJ 2015 was welcomed with cheers of being stern, decisive and swift to respond, whether or not the nature of response is warranted.