Famous jurist Jeremy Bentham opines, “Every law is an evil because every law is violation of liberty; so government, I say again, can only choose between evils.” He further suggests that a legislator, when making law, has to attend to both the mischief of the offence and the mischief of the law, the evil of the ailment and the evil of the suggested remedy.
When we analyse the recently-passed Juvenile Justice (Care and Protection of Children) Bill, 2015, by the Rajya Sabha, it shows that even our legislators faced the same problem to choose between the two evils — punishment on one hand and protection of violation of liberty of the juvenile. But can a legislator follow the emotional outburst of a class of people and satisfy the lobbyist and go against the sensibility and legislative proportionality? The JJ Bill satisfies the popular notions of a section of the community who base their opinions on social media and advertised opinions.
India being member country to the United Nations has ratified the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (known as Beijing Rules) wherein the Rule 2(12) (a) lays down that “A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult”.
This basic rule has been violated by the Bill wherein it makes a distinction that a juvenile accused of the heinous offence should be tried as an adult by the Court of Sessions. So a juvenile shall be tried in a manner of that of adult in case of heinous offence, going against the very tenet of the ratified Rules.
Further, the preamble of the JJ Bill, 2015, is silent in this regard which only states that they are in compliance with Article under clause (3) of Article 15, clauses (e) and (f) of Article 39, Article 45 and Article 47. Wherein again the inequality in trial proceeding between the juvenile who has been classified in two classes (1) juvenile who is below 16 years and (2) juvenile who is above 16 years and below 18 years does not confirm with the reasonable classification under Article 14.
The Beijing Rules focuses on the social inquiry report as an indispensable aid in the legal proceedings. The authority before rendering the disposition prior to sentencing has to investigate the background in which the juvenile is living or the conditions under which the offence has been committed and based on that report the authority has to make judicious adjudication of the case.
This cardinal rule does not find place in the Bill, wherein no guidelines has been laid to the Children Court/Sessions Court to mandatorily take the social inquiry report before it passes the sentence against such child who is in conflict with law in regard to heinous offences. So the Court can deal with the child in conflict as an adult and go on with the sentencing without understanding his socio-economic background and the circumstances of the offence and deciding the sentence in absence of the social inquiry report.
In regard to punishment we are in the era of reformation rather than deterrent. On one hand activists are pushing for reformation as a form of therapeutic treatment for offenders while on the other, some sections of public seek deterrence as form of punishment.
Unfortunately, the minister who heads the ministry for betterment of children applauds the Bill as a deterrent to young offenders. Being a progressive society, the present Bill is regressive in nature and against the global treaties.
A question at this juncture has to be raised that tomorrow if a ‘heinous offence’ is committed by a 14 year, then will the Act be amended again? Also, no comprehensive framework has been laid down by the new Bill so that institution of juvenile justice can be developed in a robust manner with a view to improve and sustain the positive development of juvelines.
(The writer is a Senior Assistant Professor of Law)
