Child in conflict with law: Why the absence of guidelines may result in arbitrary decisions for the juvenile to be tried as adults

The Supreme Court has left it open for the Union Government, and the National and State Commissions for the Protection of Child Rights to consider issuing guidelines or directions to facilitate the Juvenile Justice Board in proceedings of the preliminary assessment under Section 15(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Leaflet breaks down the judgment.

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PRIOR to the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2015, all persons below the age of 18 years were considered juveniles, and were tried by the Juvenile Justice Board ('JJB') under the Juvenile Justice (Care and Protection of Children) Act, 2000. However, after the 2000 Act was replaced by the 2015 Act, a further category was carved out of 'child in conflict with law' between 16 to 18 years of age, who was involved in heinous offences (carrying a minimum punishment of seven years or more), to be tried as adults by the Children's Court after an assessment by the JJB.

On July 13, a Supreme Court division bench of Justices Dinesh Maheshwari and Vikram Nath, in Barun Chandra Thakur versus Master Bholu & Anr. (relating to the what came to be popularly known as the 'Ryan International School murder case'), expressed its concern that in the absence of guidelines on carrying out of the preliminary assessment of a child in conflict with law to be tried as an adult, the JJB is left to use its unchecked discretion.

Also read: Ryan International School accused to be tried as adult- Is retribution the answer?

What was the bench's concern in this case and how did it seek to address it?

The bench has sought to limit this discretion by holding that looking at the purpose of the 2015 Act and its legislative intent, particularly to ensure the protection of the best interest of the child, the expression "may" in the proviso to Section 15(1) and in Rule 10A(2) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 relating to the requirement of taking assistance of experienced psychologists or psycho-social workers or other experts, would operate as mandatory. However, if the JJB itself comprises at least one member who is a practising professional with a degree in child psychology or child psychiatry, then it can choose not to take such assistance, provided it records specific reasons, therefore.

So, the bench understood the expression "may" as used in the Act, to mean "shall", as argued by the counsel for the respondent child in conflict with law.

Whom does the Act empower with "preliminary assessment" of a child in conflict with law?

The bench took note of the fact that the power to make the preliminary assessment is vested in the JJB and also the Children's Court under Sections 15(1) and 19 of the 2015 Act, respectively. The Children's Court, on its own, upon a matter being referred to it under Section 18(3) of the 2015 Act, would still examine whether the child is to be tried as an adult or not, and if it would come to the conclusion that the child was not to be tried as an adult, then it would itself conduct an inquiry as a JJB and pass appropriate orders under section 18.

The child has to remain in a place of safety till the age of 21 years. After the child attains the age of 21 years, the Children's Court may either pass an order to release the child on such conditions for the remainder of the prescribed term of stay, or pass an order that the child will complete the remainder of their term in jail.

The JJB takes into consideration whatever material it deems fit for the determination of attributes under section 15(1) of the 2015 Act. Carrying such an assessment is a delicate task with the requirement of expertise and thus, it is expedient to have in place appropriate and specific guidelines to facilitate making such an assessment, the judgment, authored by Justice Nath, says.

What are the four attributes of preliminary assessment under Section 15(1) of the 2015 Act?

First and foremost, the JJB has to assess whether the child in conflict with law had the mental capacity to commit the offence. Secondly, it has to consider whether the child had the physical capacity to commit the nature of the alleged offence. Thirdly, it must satisfy itself whether the child had sufficient maturity and ability to understand the consequences of their action. Fourth, it is to refer to the circumstances in which the child allegedly committed the offence.

Also read: An interview with Dr. Ved Kumari on her latest book 'The Juvenile Justice (Care and Protection of Children) Act 2015, Critical Analyses' and the state of juvenile justice in India in the aftermath of Nirbhaya.

What did the JJB and the Children's Court decide in this case and how?

In the present case, the JJB and the Children's Court relied heavily on the psychologist's report, which only reflected the Intelligence Quotient ('IQ') of the respondent to be of average level, bearing a score of 95, to hold that the respondent had the mental capacity to commit the offence and also the ability to know the consequences of the offence. The JJB and the Children's Court both have also recorded that the recommendation of the psychologist to send the respondent for further assessment to the Institute of Mental Health, University of Health Sciences, Rohtak was not necessary as, according to them, the IQ findings were sufficient for them to arrive at the preliminary assessment.

That is why the JJB directed Bholu to be placed in a safety home. Thereafter, a preliminary assessment was sought under section 15(1) of the 2015 Act to assess if an order can be passed to try him as an adult under section 18.

The Social Investigation Report, consisting of information on the background of the child, prepared by the Legal Probation Officer, along with the report by an expert psychologist and other relevant materials were considered by the JJB. Bholu was also personally heard by the JJB. The JJB arrived at the conclusion that there is a need for the trial of Bholu as an adult. Thereafter, this decision was upheld by the Children's Court.

In the present judgment, two appeals – by the complainant and the Central Bureau of Investigation – were filed questioning the correctness of the judgment passed by a single judge-bench of the Punjab and Haryana High Court in 2018. Through Criminal Revision, the high court had set aside the orders passed by the JJB and the Additional Session Judge (Children's Court), and remanded the matter for fresh consideration to the JJB.

Also read: SC accepts juvenility claim of a prisoner at the time of commission of crime, after he spent 17 years in prison; sets him free

On what grounds did the Punjab and Haryana High Court remand the matter back to the JJB for a fresh preliminary assessment?

The high court overruled the decision of the JJB and the Children's Court on multiple grounds, which are as follows, as per the Supreme Court's judgment:

1. "There was a violation of principles of natural justice and fair play as adequate opportunity was not provided;
2. Copies of documents relied upon by the Board were not provided to the respondent; 
3. The reports of the experts were incomplete; 
4. The recommendation by the expert to refer the child to a higher organisation for assessment was not acted upon by the Board. 
5. the two tests conducted by the experts were apparently not relevant and related to children of different ages; 
6. That the Board and the Children's Court had no material before them to assess as to how the respondent knew the consequences of the offence and also the circumstances in which he allegedly committed the offence; and 
7. The findings by the Board and the Children's Court were without any material and reasoning."

On these bases, the high court remanded the matter to the JJB for fresh consideration after assessing the intelligence, maturity and physical fitness as to how the child in conflict with the law was in a position to know the consequences of his actions. It also directed that the necessary exercise be undertaken within a period of six weeks, and that while conducting the preliminary assessment, the certificate of the psychologist of a Government hospital be obtained.

Did the Supreme Court agree with the high court's reasoning?

Broadly, it did. The Supreme Court held that maintaining confidentiality has a different purpose, but in no case can it be said that to maintain confidentiality, the relevant material would not be provided to the child or his guardian or parents. "It would be in complete contravention of the settled principles of criminal jurisprudence", the bench held.

The JJB and the Children's Court committed an illegality in not providing the documents as demanded by misinterpreting Section 99 of the 2015 Act, the bench observed. Section 99 states that the reports of the child need to be kept confidential. The Supreme Court here interpreted that since the sub-section (2) of this section gives access to the victim of the documents "[n]otwithstanding anything contained in this Act", there can never be a contrary intention to deny the same to the child in conflict with law.

The JJB only extended the liberty to the counsel and the parent or the guardian of the respondent child in conflict with law to look into these reports for 30 minutes before the hearing commenced.

The child's parents wanted an opportunity to cross-examine the psychologist as they felt that the tests applied by him were not relevant tests for a child aged 16.5 years. The JJB, however, denied the request. The JJB had denied the cross-examination of the psychologist on the grounds that the preliminary assessment is not a trial in itself; this reasoning was reiterated by the Children's Court.

Once the psychologist carrying out the tests had given a report, and he was himself not sure of his own report and had suggested for assessment by a superior institution, the JJB ought to have obtained the further report, the Supreme Court observed.

The Supreme Court also expressed its disappointment that the JJB refused to defer the proceedings of preliminary assessment till such time that compliance with Rule 10(5) of the Model Rules is not made. Compliance with this Rule would have required the JJB to provide a copy of the statement of witnesses and other documents during the course of the investigation, which was to be made within a period of one month, to the child's parents. The 2015 Act, being a special Act, will have an overriding effect over general procedure prescribed under the Code of Criminal Procedure, 1973, the Supreme Court clarified.

Also read: Courts should avoid hyper-technical approach in deciding juvenility claim in criminal cases: SC

What was the reasoning of the Supreme Court?

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Key events in the case

• September 08, 2017: Prince (victim) was murdered.
• November 07, 2017: Arrest of Bholu (accused-respondent).
• November 08, 2017: Bholu was produced before the JJB, Gurugram by Central Bureau of Investigation ('CBI').
• November 22, 2017: JJB called for a report from an expert psychologist.
• November 27, 2017: Social Investigation Report ('SIR') based on the background of Bholu submitted.
• December 05, 2017: Report of the psychologist submitted (IQ of Bholu found average at 95).
• December 13, 2017: Application of Bholu to get access to SIR and psychologist report denied by JJB.
• December 20, 2017: Final JJB Order to try Bholu as an adult.
• May 21, 2018: Children's Court upheld the JJB order.
• October 11, 2018: Punjab & Haryana High Court order (Bholu versus CBI Revision No. 2366/2018; Revision allowed and orders by JJB and Children's Court set aside, matter remanded to JJB for fresh consideration).
• July 13, 2022: Judgment by Supreme Court agreeing with the high court's order to send the matter to JJB for afresh preliminary assessment.

Prepared by Nandita Yadav, undergraduate law student at National Law University, Delhi, and intern at The Leaflet.

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The bench held that, while trying the child as an adult, physical maturity, cognitive abilities, and social and emotional competencies should be considered. However, attributes like neurobiological perspective, and the development of cognitive and behavioural attributes (like the ability to delay gratification, decision making, risk-taking, impulsivity and judgement) continue to develop till the age of 20s and that is why the assessment must make a distinction of the attributes between a child and an adult.

Also, the tests conducted on the child were irrelevant, as per the bench. Therefore, it left it to the discretion of the JJB to establish if further tests can be carried out since the respondent is already over the age of 21 years old.

The Supreme Court considered the Guidance Notes on Preliminary Assessment Reports for Children in Conflict in Law developed by the Department of Child and Adolescent Psychiatry at the National Institute of Mental Health and Neurosciences ('NIMHANS'), Bengaluru in collaboration with the Department of Women and Child Development, Government of Karnataka. According to these, except for someone with a serious physical/intellectual disability, everyone has the mental and physical capability to commit a crime. So, to ask a simple yes/no question of whether a child had the capability in the preliminary assessment under section 15(1) of the 2015 Act, would lead to 'yes' in most cases.

Thus, a more detailed and descriptive interpretation is required here. According to the Guidance Notes, the mental and physical capacity to commit an offence is the ability of a child to make social decisions and judgments, based on certain limitations that the child may have. These limitations would be due to life skill deficit, neglect, the experience of abuse and trauma, intellectual disability, and mental health disorders, among several factors.

Further, the Supreme Court explained that the term 'consequence' under section 15(1) does not mean only immediate consequences, but also far-reaching ones in the future. The assessment of this attribute cannot be limited to the victim only; it must include what may fall upon the family of the victim, the child, and their family, as per the court.

Consequences could be in physical form but they also include the effect on the mind and the psychology of the child that may be caused due to incarceration, the repentance or remorse that it may lead to, and the social stigma that is cast on the child and their family members. In fact, the consequence of engaging in litigation is also another factor for consideration. Thus, the overall picture, along with the future consequences, is required to be considered and consciously analysed by the JJB.

As per the approach adopted in the NIMHANS guidance notes, a detailed psychosocial and mental health assessment, including an understanding of the social and interpersonal consequences, that is, the child's ability to understand empathy and how their action would impact their family and friends, and the serious consequences of their action for breaking the law, have to be determined. It must also include what first-level intervention was provided immediately, and how the child responded to the same.

Another attribute that involves various factors to be considered is the circumstances in which the alleged offence is committed. It could be enmity, poverty, greed, perversity of mind, or depression. According to the NIMHANS guidance notes, these circumstances do not refer to the proximal factors, that is, what happened right before the incident took place. It would be better to interpret these circumstances as life circumstances and have a longitudinal approach to it, that is, understanding the vulnerabilities and pathways to the crime that has been alleged to have been committed. It could range from family history, school education, work experience/child labour, peer relationships, and experiences of trauma and abuse, to mental health disorders and developmental disabilities.

The bench emphasised that there is no disagreement that the child in conflict with law should be treated differently than adults in conflict with law. Thus, the child should be tested on different parameters and should be given an opportunity of being brought into the mainstream, which can be done through the delicate task of the preliminary assessment, it reasoned.