Monday, May 30, 2016

The Juvenile Justice Act 2015: More Questions than Answers

This blog was skeptical (to say the least) when the legislature mulled changes to the Juvenile Justice Act 2000 at the end of last year. Some searching questions were posed to the proposed modifications at the time the amendment bill was passed in the Legislature, and resignation hit when the Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act] was ultimately notified on 15.01.2016. It has now been nearly six months since the law was enforced, giving ample time to consider how do the big changes brought in work. The big changes, to recall, were the introduction of a three-tiered system of offences and enabling certain cases involving juveniles between ages of 16-18 to be tried by a regular court. In my opinion, the legislative scheme so created suffers from poor drafting, which leaves any reader with far more questions than healthy for a statutory provision relating to criminal liability.

Interpreting the Three-Tiered System
The definitional clauses of Section 2 of the JJ Act were considerably changed from the erstwhile 2000 Act. Crucially, we saw the introduction of Section 2(33) defining 'Heinous Offences', Section 2(45) defining 'Petty Offences' and Section 2(54) defining 'Serious Offences'. A Petty Offence includes one for which the punishment was imprisonment upto three years. Serious Offences include those having punishments of between three to seven years. Heinous Offences include those where the minimum punishment is seven years or more. There are apparent similarities between this scheme and the one present in the Part II of the First Schedule of the Cr.P.C. [which we have discussed earlier]. Part II of the Schedule classifies how offences outside the Indian Penal Code [IPC] are to be tried and creates three categories on the basis of punishment: (i) offences punishable for less than three years, (ii) those punishable between three to seven years and (iii) those punishable for more than seven years. 

A closer look here should make the interpretive questions coming in the JJ Act apparent as well. Specifically, three issues. First, the use of an 'inclusive' definition [i.e. Serious Offences include ...]. Second, the definition of Heinous Offences as those having a minimum of seven years imprisonment. Third, the apparent overlap between the three categories. Addressing these issues in turn, it is clear that these are instances of the poor drafting plaguing the statute. The inclusive definition is possibly the least problematic of the three issues. An inclusive definition means it is not exclusive to the terms of the definition. It can go beyond the text if context so demands. Considering the three definitions provided in the statute, one would think that it would be extremely rare for the inclusive nature of the definitions to lead to controversy.

The other two issues are more thorny. The word minimum is conspicuously absent in the Cr.P.C. classification. It is obvious why this is a problem. How many offences on the statute book today have a minimum of seven years as punishment? Only 4*. So we have all the offences that are punishable upwards of seven years, but without a minimum punishment of seven years, falling in the huge gap left in the legislative machinery. If we were to include these offences in a definition, which one would it be? Where there is a gap in the definitions of Heinous and Serious Offences, there is an equally problematic overlap between Petty and Serious Offences. Petty ones include those punishable upto three years, Serious Offences include those with imprisonment between three to seven years. So how do we place an offence punishable with three years imprisonment?

The Section 15 Conundrum
This three-tiered setup was designed with a larger, more publicised, aim in mind: creating a new category of cases that can be excluded from the supposedly lenient framework of the JJ Act and be sent to a regular court. And we get Section 15, which activates if Juvenile between the ages of 16-18 years is accused of committing a Heinous Offence. Section 15(1) requires a 'Preliminary Assessment' [term not defined] "with regard to his [Juvenile] mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence". The Board then may direct under Section 18(3) that the case be sent to a 'Children's Court'. 

Let us first address Section 15 before moving to Section 18. The obvious question is when is this Preliminary Assessment to be made? Is it at the stage of an ongoing police investigation, thus transferring custody of the Juvenile to the Children's Court (which can only send Juveniles to jail after they turn 21)? Or does this provision apply once a Final Report has been filed by the Police, meaning that the Children's Court only comes in at the time of trial of the offence? Looking at Section 18(3), it appears that the question arises at the time of determining how the case must be tried, and thus the Assessment would be made after the Final Report is filed. 

Reading the text, it seems four things are required to be determined in a Preliminary Assessment. But what is the relationship between these factors, and the decision of sending a case to the Children's Court? If a Juvenile is found to have the mental and physical capacity to commit the offence, but doesn't fully appreciate the consequences or circumstances, should that case be sent to the Children's Court? What can the words "understand the consequences and circumstances" actually mean and what philosophy are these tests driven by? If we turn to the IPC, we find that the question of exemption from criminal liability for children was based on the presumption that children cannot entertain a mens rea. Crude, but easier to implement.

None of these questions find any answers in the statute, because none of these questions were considered or answered by the Legislature at the time the JJ Act 2015 was being rushed through Parliament and brought in force. The Board is allowed to call for a psychological report to assist its decision. This means that a Board is statutorily permitted to make this decision without any formal psychological report. The psychological report itself remains of little help, as practice reveals. Today, therefore, it is clear that the amount of discretion vested in the Board (as well as the Children's Court) for deciding how a person's life proceeds is excessive and seemingly ungoverned by any meaningful test. Thankfully, these decisions are expressly made appealable.

Overlaps between the 'Lenient' and 'Harsh'
I hark back to the apparent dichotomy that is entertained by legislators and several commentators in the news media, of the lenient procedure under the JJ Act and the harsh procedure of a normal trial. Some cases, based on this dichotomy, are undeserving of the leniency and deserve the harshness. This is the idea that the Children's Court alternative sought to reflect. But in reality, it presents a halfway-house minded to appease both sides of the divide. Under Section 19, a Children's Court is required to do all that the Board must - make individual care plans and provide reformative services. Further, a Juvenile can only be sent to prison after turning 21. Furthermore, the Court can also try the case as a Board if it thinks the child should not be subjected to the regular procedure. The statute doesn't expressly tell us if the Court's decision is final, or the Board might again disagree and pass orders under Section 15.  

Not only this, there are other general questions that remain unanswered. If a Juvenile is punished by the Children's Court, what is the applicability of Section 21 of the JJ Act? Section 21 says that "no child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release". To use the example that seemingly drove this statute to fruition, can a Nirbhaya case be sentenced to life imprisonment or not? Further, what about the application of the Probation of Offenders Act, 1958 to such cases? A deeper scrutiny of the JJ Act 2015 together with the various laws on the statute book is bound to throw up further controversies of such a nature. 

Conclusion
A statute hastily rushed through the Legislature while a public outcry rang throughout the country, that is one way to describe the JJ Act 2015. The most important changes it has brought do not appear to have received the critical scrutiny of the legislature that they perhaps might have received if there wasn't such a hurry. The interpretive questions arise mostly out of seemingly poor and inconsistent drafting, a trend that plagues most modern penal statutes in India, but rankles ever so greatly in such situations where lives of young persons are at stake. Currently, there is no decision of any High Court or the Supreme Court of India that has considered these questions. It is hoped, that litigation reaches High Courts to provide greater clarity on how the statute operates. A dispassionate assessment of the statute is critically necessary, and the legislature has already shown once that it could not be trusted with the same.

*Section 304-B (Dowry Death), Section 376 (Rape), Section 397 (Robbery/Dacoity with attempt to cause death/grievous hurt), Section 398 (attempt to commit an offence u/s 397). Of course, Section 302 punishes murder with a minimum sentence of life imprisonment and thus includes a minimum of seven years.

[This post was updated on 31.05.2016, and on 04.06.2016. Many thanks to Ms. Mansi Binjrajka for pointing out certain errors with the earlier version]

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