NCPCR draft guidelines for trying Minors as Adults
Why in News?
- The National Commission for Protection of Child Rights (NCPCR) has come up with draft guidelines on the preliminary assessment of whether certain minors are to be tried under law as adults in particular cases, under the Juvenile Justice (Care and Protection of Children) Act.
Juvenile Justice Act, 2015 and Adults
- The JJ Act, 2015 replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000.
- It allows for juveniles in conflict with Law in the age group of 16–18, involved in Heinous Offences, to be tried as adults.
- The Act also sought to create a universally accessible adoption law for India.
- It came into force from 15 January 2016.
Preliminary assessment as per the JJ Act
- Assessment of the offender child: The Act directs that the Board shall consider the mental and physical capacity of the child for committing the alleged offence, the ability to understand the consequences of the offence, and the circumstances in which the offence was committed.
- Psychological ‘trial’: It states that the Board can take the assistance of experienced psychologists or psychosocial workers or other experts. The Act also gives a disclaimer that the assessment is not a trial, but is only to assess the capacity of the child to commit and understand the consequences of the alleged offence.
- Arriving at conclusion: After the assessment, the Board can pass an order saying there is a need to try the said child as an adult and transfer the case to a children’s court with the relevant jurisdiction.
- Penalty: If tried as a minor, the child could be sent to a special home for a maximum of three years. If tried as an adult, the child can be sentenced to a jail term, except being sentenced to death or life imprisonment without the possibility of release.
Why has the NCPCR come up with draft guidelines now?
- The Supreme Court is hearing a case related to the murder of a Class 2 student in Haryana, allegedly by a 16-year-old.
- The task of preliminary assessment under the JJ Act is a ‘delicate task’, concluded SC.
- It said that the consequences of the assessment on whether the child is to be tried as an adult or a minor are “serious in nature and have a lasting effect for the entire life of the child”.
- It said that the assessment requires expertise and directed that appropriate and specific guidelines be put in place.
- It had left it open to the Central government and the National and State Commissions for the Protection of Child Rights to consider issuing the guidelines.
Major draft guidelines by NCPCR
- The draft relying on already existing provisions in the Act says that the preliminary assessment has to determine following aspects:
- Physical capacity of the child: To determine the child’s ‘locomotor’ abilities and capacities, particularly with regard to gross motor functions such as walking, running, lifting, throwing…such abilities as would be required to engage in most antisocial activities.
- Mental capacity: To determine the child’s ability to make social decisions and judgments. It also directs assessments pertaining to mental health disorders, substance abuse, and life skills deficits.
- Circumstances in which the offence was allegedly committed: Psychosocial vulnerabilities of the child. This is to include life events, any trauma, abuse, and mental health problems, stating that the offence behaviour is a cumulative consequence of a lot of other circumstances.
- Ability to understand the consequences of the alleged offence: To determine the child’s knowledge or understanding of the alleged offence’s social, interpersonal and legal consequences. These include what others will say or perceive him, how it might affect his personal relationships and the knowledge of relevant laws, respectively.
- Building a rapport: It also states that the experts must be given an optimal opportunity to interact with the child to build a rapport. Experts can be from the field of child psychology and psychiatry. It also states they must undergo regular training.
- Others: Other reports that the Board is to rely on include the Social Investigation Report, Social Background Report an Individual Care Plan, statements of witnesses and interaction with parents, guardians, school staff, peer groups and neighbours.
- Government should amend JJ Act 2015.
- Such an amendment would go a long way in providing the requisite balance between the rationales underlying the juvenile justice system and the criminal justice system and realizing the objectives professed by both.