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Juvenile Justice Act, 2015: Constitutionally Annihilating the Shenanigan Juvenility

Updated: Mar 29

Introduction

The infamous Section 15 of Juvenile Justice (Care and Protection of Children) Act, 2015, herein referred to as JJ Act, has been challenged many a times by the so called child rights activists and not to say but other NGOs as well, on the ground that the said provision is unconstitutional in nature and violates rights of the child by exposing them to arbitrary laws. In this article, the author argues for the Constitutionality of the impugned provision and establishes that this provision is the need of the hour amidst the rising rate of crimes committed by juveniles.

JJ Act defines ‘child’ under Section 2(12) of the Act as a person who has not completed eighteen years of age and similarly defines, ‘juvenile’ under Section 2(35) of the Act as a child below the age of eighteen years.

Section 15 of the JJ Act, 2015

In simple words, the concerned provision, i.e. Section 15, JJ Act, 2015 lays down the controversial yet Constitutional rule that if a ‘child’ who has completed or is above the age of sixteen years where he commits a ‘heinous offence’ would be subject to a “…..preliminary assessment with regard to his 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” by the Juvenile Justice Board (JJB) to decide whether he can be tried as an adult or not in accordance with rules laid down in Code of Criminal Procedure, 1973. And, if the JJB finds that such a child shall be tried as an adult then according to Section 18(3) of the JJ Act, 2015 trial of such child may be transferred to Children’s Court having jurisdiction to try such offence.

Analyzing Section 15, JJ Act with the Constitutional Provisions

NON-ARBITRARINESS and Article 14

The author contends that the impugned Section of the JJ Act is not arbitrary and hence not violative of Article 14 of the Constitution of India. Instead it obtains the breadth of its powers from Article 15(3) of the Constitution. The legislature by way of the power conferred upon it by Article 15(3) of the Constitution to make special laws for women and children, has enacted this extra special law for juvenile convicts for their holistic development and exhilaration of their societal ethos and moreover for the protection of sanctity of women. Thus, the impugned provision helps in achievement of these dual objectives.

The impugned provision successfully passes both the tests of reasonable classification and arbitrariness with flying colors. Classification made under the Section 15 of the JJ Act, 2015 is reasonable in nature and based upon an intelligible differentia. Equality before law or equal protection of laws does not mean the same treatment to everyone. The underlying principle of equality is not uniformity of treatment to all in all respects, but rather to give equal treatment to them in those respects in which they are similar and to give different treatment to people in those respects in which they are different or else it will lead to unequal treatment.

The impugned provision classifies the juvenile offenders on the basis of the degree of offence committed by them, they are classified into two categories, firstly, juveniles committing petty and serious offences; and secondly, juveniles committing heinous offences. Additionally, a sub classification is made which contributes to the constitutionality and rationality of the provision, which classifies the children committing the heinous offences on the basis of their age. Only those children committing heinous offences come under the purview of this legislation, who all are above the age of 16 years, whatsoever. Thus, the impugned section does not permit the application of the procedure mention under upon those who are younger than 16 years. Furthermore, a second sub class is made by the Section 15 of JJ Act, according to which only that child could be tried as adult who in addition to being above 16 years of age, have not only mental but also physical capacity of an adult, and also have ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence.

The author claims that the nature of impugned provision is not arbitrary in any manner and it doesn’t have any arbitrary implications whatsoever. In the case of Kumari Shrilekha Vidyarthi v. State of UP and Ors.,the Apex Court has observed,

“….The question whether an impugned Act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of the given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned Act and if so, does it satisfy the test of reasonableness….”

The impugned provision does not involve or supports arbitrariness by any authority either while the preliminary assessment of the accused is taking place or any time thereafter. On the contrary, the provision undertakes every possible measure to avoid any such arbitrary practice. Firstly, the proviso of the clause (1) of the Section 15 clearly provides that the Court may take the assistance of or other experts in the preliminary assessment of the mental capacity of the child and to ascertain whether such a child can be tried as an adult. This provision substantially reduces any form of arbitrariness which could have arisen in process of preliminary assessment of the juvenile in the absence of this proviso. The presence of experienced authority to analyze the maturity of the juvenile clearly indicates that the legislature clearly had in mind the best interest of even those juveniles who are accused of being offenders of law. The presence of psychologists or psycho-social workers in the process ensures that a correct decision is taken by the board and such decision is in consonance with medical nuances and competencies.

Secondly, Section 14(3) of the JJ Act, 2015 provides that, “A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.” Thus, the maturity of the juvenile is not being ascertained on the basis of obscure observations but on the basis of pro-long, detailed and personal interaction of the psychological experts for a time frame of months with the juvenile delinquent which ensure that such assessment of the juvenile is not arbitrary in nature.

Due Procedure and Article 21

The author in light of above discussion thereby submits that the impugned provision is a valid procedure of law as required by the standards of Article 21 of the Constitution of India.

In Maneka Gandhi v. Union of India, the Hon’ble Supreme Court had held that the “procedure established by law” mentioned in the Article 21 of the Constitution does not imply any and every procedure established by law but it means that the procedure must be valid and non- arbitrary. The Court said that the procedure established by law under our Constitution is similar to “due process of law” under the Fifth Amendment Clause of the US Constitution. Thus, the procedure established by law must be just, fair and non-arbitrary.

Further, it was observed by Bhagwati, J., in Maneka Gandhi v. Union of India, that a law prescribing a procedure for depriving a person of “personal liberty” will have to meet the requirement of Article 21 and also that of Article 14 of the Constitution. He explained that the principle of reasonableness which is an essential feature of the equality and non-arbitrariness pervading Article 14, must also apply to the procedure as contemplated by the Article 21, that is the procedure must be “right, just and fair” and not “arbitrary, fanciful or oppressive”.

The author already has made a point regarding the un-arbitrariness of the said provision and has also explained that the impugned provision has been successful in all respects to pass the test of reasonable classification. Thus, on this basis the author claims that the procedure of law established by impugned provision is due procedure which is just and fair.

Conclusion

The impugned provision was enacted in the wake of rapid surge in the rate of the crimes committed by the juvenile offenders which were often found to have adult understanding of the nature of the crime committed by them and also knew its consequences in the course of legal proceedings. But, even those so-called children who had the adult capacity in every seeming way and deserved an adult sentence used to get away from punishments under the umbrella of weak penal provisions of Juvenile Criminal laws. Thus, this remarkable step taken by the legislature is not only reasonable but also beneficial in protection of the members of the society and especially the female members from the juvenile offenders who have taken the liberty provided to them for granted.

The impugned provision will also act as a guiding light to the precariously treacherous children who have taken the wrong path or are on the verge of taking the wrong turn which may lead them to wrong path by introducing them to the deterrent and strict provisions laid down in Section 15 of the JJ Act. At second hand it helps in the development of the youth of this nation and ensures their absence in heinous offences and even constructive offences. This furthermore gives a clear hint that this provision is in consonance with the noble objectives of the JJ Act, 2015.

Thus, the above arguments clearly show the amount of analysis and scrutiny which the legislature must have gone through before formulating the draft of this provision. In the light of the above-mentioned argument author submits that the classification made by the impugned provision is reasonable in nature and in no way radiates arbitrariness.


The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.

Ajay HasiaEtc v. Khalid MujibSehravardi&Ors., AIR 1981 SC 487.

The State Of West Bengal v. Anwar All Sarkarhabib Mohamed, AIR 1952 SC 75.

KumariShrilekhaVidyarthi v. State of UP and Ors., AIR 1991 SC 537

Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Ibid.

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