The New Juvenile Justice Act Has Opened a Can of Worms

Is JJ Board using its discretionary powers to transfer cases to the adult court due to ambiguity in amended JJ Act?

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The new Juvenile Justice Act (JJ Act) was enacted in 2015 to replace the old law on treatment of juveniles in India. The landmark law lowered the age at which minors could be prosecuted as adults, from 18 to 16.

Under the new JJ Act, the Juvenile Justice Boards have been entrusted with the power to decide, based on a preliminary assessment report, whether the accused should be tried in the adult court or not.

However, while this development helped satisfy the outrage in the public sphere over the light sentence awarded to the juvenile in the Nirbhaya gangrape case, the new provisions for trying minors have given rise to a fresh set of problems.

The JJ Act 2015 doesn’t clearly define under what circumstances a case will be transferred to the adult [courts]. Due to ambiguity in the Act and Rules, the JJ Board uses its discretionary powers in passing orders.  

Ashish Kumar, lawyer of the juvenile in Case #1 (see below)

Let us examine two cases, where juveniles have been accused of sodomy, to better understand what happens when the case is transferred to the adult court.

Case #1 - Adult

In this case, a 17-year-old boy was accused of sodomising a 10-year-old. In February 2017, the Juvenile Justice Board passed an order to transfer the case to an adult court. The accused was a first-time offender. The medical report revealed no signs of injury to the private parts of the victim.

A petition was filed in the Delhi High Court challenging the JJ Board’s order to transfer the case, pertaining to alleged sodomy, to the adult court.

As per the JJ Act, if a juvenile between the ages of 16 to 18 commits a “heinous” crime, they may be tried as an adult based on the JJ Board’s assessment. An offence is categorised as a heinous crime if the term of punishment is seven years and above. The JJ Board’s decision on whether to try the juvenile as an adult is preceeded by a preliminary inquiry to assess the following things:

• Mental and physical capacity to commit such an offence,
• Ability to understand the consequences of the offence and
• Circumstances in which the person allegedly committed the offence.

The JJ Act instructs that in order to complete the assessment, the Board can take the assistance of relevant experts, such as experienced psychologists. It is also clarified that the preliminary assessment is not a trial.

Here are the findings of the preliminary inquiry of Case #1 on the basis of which the Board decided to transfer the case to the Adult court.

Mental Capacity: The psychologist inferred that the accused was manipulative and that he was absconding for a few days after he found out that there was a sodomy case against him.

Physical Capacity: The psychologist didn’t observe any sexual dysfunctionality. There was no evidence to suggest that the accused was not capable of the sexual act.

Ability to understand the consequences of the offence: After committing the offence, the accused threatened to kill the victim if he told anyone about the crime.

Case #2 - Not Adult

In the second case, a 17-year-old, allegedly repeatedly sexually assaulted two minors – who he used to take tuition classes for. The accused allegedly threatened to kill the victims if they reported the incident. No injuries were found in the private parts of the girl child but the medical reports revealed tenderness in the private parts of the male victim. Like in Case #1, the accused in Case #2 was also a first-time offender.

In March 2017, the JJ Board decided not to seek assistance from experts for a preliminary assessment. They also decided not to refer the case to the adult court.

The gravity of the offence by itself shall not be the sole determining circumstance on the issue of preliminary assessment under section 15 JJ Act 2015.

JJ Board 

This is unlike Case #1, where the board asked for an assessment by a psychologist as part of its preliminary assessment and transferred the case to the adult court on the basis of the assessment.

In Case #2, the JJ Board didn’t take the help of a psychologist or an expert for preliminary assessment because the Act doesn’t make it mandatory. The JJ Act says:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Juvenile Justice Act

Similar Cases, Different Decisions

Here are the similarities in the two cases:

• In both cases, the accused threatened to kill the victim if they reported the crime.
• Both are 17 years old.
• In both cases, the accused are first-time offenders
• In both cases, no injuries were found on the victim’s bodies. (One of the victims in Case #2 reported tenderness in private parts).

Despite several similarities in the cases, why did two different judges on the Juvenile Justice Board pass such different decisions? After all, once a minor is tried in adult court, he cannot be tried in the Juvenile Justice Board again.

Moreover, the quantum of punishment for sodomy in the adult court goes up to life imprisonment, whereas, in the Juvenile Justice Board it cannot exceed 3 years of imprisonment.

A petition was filed in the Delhi high court to challenge the JJ Board’s decision in Case #1. The petition raises questions on the credibility of the preliminary assessment report prepared by the psychologist.

The said (psychologists) report cannot be relied upon as gospel truth because the counsel for the child did not have any opportunity to cross examine the psychologist.

Delhi High Court Petition 

Is the JJ Board using its discretionary powers inconsistently due to ambiguity in amended JJ Act? The juvenile has to bear the consequences of the decision by the JJ Board for the rest of his life. Keeping this in mind, it is important to make the Act watertight, in order to remove all possibility of injustice.

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