INTRODUCTION
The Juvenile Justice Care and Protection of Children Act 2015 ensures a child-friendly approach in handling the matters of “children in children in children in conflict with the law” and those children who must be looked after and protected. A growing number of rapes and killings by minors between the ages of 16 and 18 was the primary impetus for changing the prior Act, particularly the Nirbhaya gang rape case,[1] Which which which which raised awareness of the problem of young offenders in horrific crimes. As a minor, he was convicted under the JJ Act of the time as one of the rapists in the Nirbhaya case, which is widely regarded as the most horrific of all. After much discussion and debate on India’s legal age of criminal responsibility, the JJ Act, 2015 was amended and implemented. In response to the outcry, the JJ Act was changed to allow for the adult trial of the age group who is 16-18 years old and are accused of “heinous crimes.” According to the JJ Act, the Juvenile Justice Board decided to trial the accused as an adult.
The preliminary assessment is an essential aspect of the JJ Act and tries to ensure juvenile justice. The preliminary assessment is done to determine both the physical and mental ability to carry out such an offence, the circumstances, and the child’s capacity to commit such offence. It is valid to the child who belongs to the 16-18 age group who has committed the heinous offence. It clarifies that the purpose is only to evaluate the child’s mental and physical abilities, not to conduct a trial.[2]
The procedure for conducting the preliminary evaluation is enumerated in Rule 10A of the Model Rules.[3]JJB could seek the aid of certified psychologists or other specialists when doing the evaluation. When making a judgment, a variety of variables are considered, including social background reports from the police, social investigation reports, and observations on the responses of children who are in dispute with the law. Following evaluation, if the board determines that a child must be put through an adult trial, it may issue an order and bring the issue before the Children’s Court.
ANALYSIS
According to the Indian Constitution and legally binding international human rights treaties, treating individuals as adults involves denying children fundamental rights. A child’s judicial transfer to be tried as an adult currently rests on the preliminary assessment. However, this procedure cannot be implemented without jeopardizing a child’s rights for several reasons.
Article 20 (3) of the Indian Constitution is violated by the preliminary assessment as it permits extracting a confession from the child in ‘conflict with law’ amounting to testimonial compulsion as it compels the child to testify against himself and criminate himself. As stated in Clauses 42 and 43 of Form 6 (Social Investigation Report) and Clauses 21 and 24 of Form 1 (Social Background Report), the Child Welfare Police Officer must write down the cause for the offence committed and the involvement of the child in the offence.[4]Therefore, in contravention of Article 20(3) of the JJ Model Rules, 2016, these Clauses of Forms 1 and 6 permit obtaining a confession from the child.
This procedure did not follow Rule 10A (3) of the Model Rules, 2016 and Section 3 of the Juvenile Justice Act, which state that a child must be proven innocent unless proven guilty. Before the trial is over, a court of law must decide on the child’s potential to commit the accused offence and consider several prima facie facts. The idea of innocence until proven guilty is undermined by this. A copy of the psychologist’s preliminary assessment report, in the format provided by the Department and it is evident from Clause 3 of the aforementioned report that a confession is requested.
Even with the assistance of qualified psychologists, the JJB is unable to accurately perform the challenging task of evaluating mental capacity. When such an examination is to be finished in less than three months, the process does not appear to be just for the child’s interest. The decision of which child is moved to an adult court will be made based on these assessments, which can be rife with bias and arbitrary. Articles 14 and 21 are violated by the JJB’s preliminary assessment, which permits procedural arbitrariness since it is simply not achievable to accurately evaluate mental ability for the purpose and because it will lead to subjective and arbitrary transfers into the adult criminal system. This contradicts the core ideas of the Constitution. Also, it is not mentioned which method would be used to evaluate the physical and mental ability and the compulsion to take the help of psychologists or experts. The preliminary assessment under Sec. 15 violates the principles of natural justice as laid down in Sec. 3 of the Act. The proceedings at times involve a mala fide bias of the authorities involved to determine the mental capacity, violating the concept that justice would be served for the optimum benefit of the child.
There are differences in mental capability and comprehension of the effects of actions. Supreme Court stated that guidelines for the preliminary evaluation of children over 16 who would be tried as adults must be in place. “A child with an average IQ will be able to state the reason for the repercussions of his actions. His degree of emotional competency, however, will determine whether he can regulate himself or his behaviour.”[5]A 16 or 17-year-old may have adult cognitive skills, but research indicates that they are not as mature psychologically as adults are.[6]As a result, this brief evaluation would be unable to distinguish between the two, erroneously holding the 16 -17-year-old responsible for cognitive reasoning while highlighting bio-psychosocial reasoning. As a result, Section 15 of the JJ Act, 2015 is ambiguous and inadequately written.
RECOMMENDATIONS
Since there is no prescribed method to conduct the preliminary assessment, a Standard Operating Procedure (SOP) must be developed to offer uniformity and consistency to the process to make the process more efficient.[7]
The preliminary assessment is being carried out based on assumption because there are no professional associations to assist JJBs in assessing children’s mental and physical abilities. As a result, it is suggested that the Child Guidance Center be established with the aid of trained clinical psychologists.
Also, the state and national commission should make some guidelines to make the process more efficient which does not violate the fundamental rights of children. In a leading case law of Barun Chandra Thakur v/s Master Bholu & Anr,[8] the respondent has also argued that using words such as “clever” and reading the alleged confession against the child who has done offence is a complete violation of Article 20(3)[9]. Additionally, the Central Government, NCPCR, and SCPCRs have been instructed by India’s Honourable Supreme Court to consider issuing guidelines or instructions that could help and enable the JJB to carry out the preliminary assessment.
CONCLUSION
The preliminary assessment is an important aspect of juvenile justice, despite these loopholes and shortcomings, the J.J. Act included the idea of preliminary assessment. We must recognize that the Act’s stated purpose, “protection and care of children,” is what its name implies. Also, the government can make some changes as per the recommendations given for the same to make the assessment more efficient and to safeguard the fundamental rights of children.
Author(s) Name: Nanki Kour Chhabra (SVKM’s NMIMS, Indore)
References-
[1]Mukesh & Anr v State for NCT of Delhi & Ors (2017) 6 SCC 1
[2]Juvenile Justice (Care and Protection of Children) Act 2015, s 15
[3] Juvenile Justice Model Rules2016, r 10-A (2)
[4] Juvenile Justice (Care and Protection of Children) Model Rules 2016
[5] Barun Chandra Thakur v. Master Bholu& Anr(2022) SCC SC 870
[6] Elizabeth Cauffman and Laurence Steinberg, “Immaturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than Adults” 18 BSL 759 (2000)
[7]Practice-of-Prelimnary-Assesment.pdf<https://nluo.ac.in/wp-content/uploads/2019/05/3>
[8]Barun Chandra Thakur v. Master Bholu & Anr (2022) SCC SC 870
[9]The Constitution of India, art 20(3)
