Widening Juvenile Net? A Critique of Ambiguous Classification of Age of Culpability Under Juvenile Justice Act, 2015
By Deepak Singh
I. Introduction
The Parliament of India passed a Juvenile Justice Act 2015 (hereinafter “JJ Act”), repealing the older act to punish juvenile offenders aged between 16–18 years for any heinous offence committed by them. The well-known known case of Nirbhaya in 2013 acted as a catalyst to the drastic change brought in the JJ Act, 2015, which hitherto focused primarily on the ‘rehabilitative’ approach, rather than the ‘retributive’ approach. The new JJ Act also overturned the established principles of United Nations Convention on Child Rights (hereinafter “UNCRC”), to which India is also a signatory. Article 40 of UNCRC charts out that:
“State parties have recognised the principle of a separate system for juvenile delinquents. Every person under the age of 18 years at the time of alleged offence must be treated in accordance with the principles of juvenile justice”.¹
Justice J.S Verma Committee, constituted in the aftermath of the Nirbhaya case to suggest reforms to the criminal justice system also rendered the opinion that there was no case to lower the age of criminality for juvenile offenders, as one bad case can never make a good law.² The Parliamentary 264th Committee report, which was given the task to come up with suggestions to be incorporated in proposed juvenile legislation argued that: “Juvenile offenders cannot be treated at par with adults due to their underdeveloped mind, which would itself violate article 14 of Indian Constitution”.³ The Supreme Court in the case of Salil Bali v. Union of India⁴ also opined that the juvenile offenders constitute a special class, for the benefit for whom the Parliament has legislated under article 15(3) of the Indian Constitution.
The act now allows a child who has committed a heinous offence to be tried as an adult by Sessions Court, also known as “Children’s Court” under the JJ Act. For that purpose, the act has also made an idiosyncratic distinction between the offences. The JJ Act classifies offences into three categories: (i) ‘petty offence’; (ii) ‘serious offence’; (iii) ‘heinous offence’. The categorisation is important as a deciding factor: whether to try a juvenile within a juvenile justice system, which envisages a child-friendly approach or outside the juvenile justice system, which is primarily focused on ‘retributive’ approach?
II. Ambiguous Classification under the Juvenile Justice Act
The JJ Act prescribes that any child who has committed a heinous offence and who is above the cut-off age of 16 can be potentially tried as an adult in a criminal court. For that purpose, the act has classified the offences into three categories to provide guidance to the Principal Magistrate of JJ Board to exercise his power: whether to send a child to adult criminal court or not, in case of a juvenile alleged to have been involved in a heinous offence.
‘Petty offences’ has been defined under section 2(45) of the JJ Act as, ‘the offences for which the maximum imprisonment is up to three years’. The definition of petty offence does not pose any serious problem. It simply states that all the offences which prescribe punishment up to the maximum of three years can be categorised as ‘Petty Offence’. For example, ‘Rioting’ under section 146 of the Indian Penal Code (hereinafter “IPC”), provides for maximum imprisonment of two years. Theft under section 379 prescribes maximum imprisonment up to three years. These offences can easily fall under this definition.
‘Serious offences’ has been defined under section 2(54) of the JJ Act as, ‘the offences for which the punishment is between three to seven years’. ‘Exploitation of a trafficked minor’ under section 370-A provides for imprisonment which shall not be less than five years (should be more than 5 years), but which may extend to seven years. It comes within the bracket of punishment between three to seven years.
‘Heinous offences’ has been defined under 2(33) as, ‘the offences for which the minimum imprisonment is seven years or more’. ‘Robbery or dacoity with an attempt to cause death or grievous hurt’ where the imprisonment with which the offender shall be punished shall not be less than seven years falls within the four corners of this definition.⁵ Murder under section 302 too would fall under this category.⁶
There are many offences under the IPC which do not fall within the definition of the classifications, more so when the categorisation serves as criteria to determine the crime du jour of a juvenile for which he can be potentially tried as an adult, thereby impairing his protection under the juvenile justice system. Hence, it is problematic to definitively treat the same within any of the aforementioned categories. For example, ‘Assault or criminal force with intent to outrage a woman’s modesty’ under section 354 of IPC provides imprisonment which shall not be less than one year but which may extend to five years. The section does not fall within the definition of ‘serious offence’ as the minimum sentence is less than three years nor does it fall within the purview of ‘petty offence’ as the maximum punishment exceeds three years.
The procedures to be adopted by the courts in respect of three categories also differ significantly. In the case of ‘petty offence’, the board inquiring shall dispose of the case in a summary way under the Criminal Procedure Code (hereinafter “Cr.P.C’’). In case of ‘serious offence’, the board shall dispose of the case by following the procedure, for trial in summons case Cr.P.C. Thus, a child who is tried by following the procedure in summons case face greater punishment since in a summary case, no sentence for imprisonment for a term exceeding three months is passed in case of any conviction⁷, per contra there is no such provision in summons cases.
The consequences of the ambiguous classification due to legislative incompetent draftsmanship are graver, if due to ambiguities in the act, a child may be deprived of the benefits of a benevolent legislation. As already mentioned there are several offences which fall under the grey-area of classification where there is no minimum punishment prescribed nor an upper limit of imprisonment is prescribed. For example, ‘Attempt to Murder’ provides for maximum punishment which may extent to ten years. A Judge, thus has discretion to sentence an offender for a period which may be three years or five years or ten years while keeping in mind several factors ranging from severity, age et cetera. As only a maximum period of imprisonment is provided, and no minimum period is provided- the offence of ‘attempt to murder’ will not fall into the heinous offence category.
Section 14(4) of The Protection of Children from Sexual Offences, 2012 (‘POCSO Act’) provides punishment for directly participating in the pornographic act of sexual assault of a child, the minimum punishment of which cannot be less than six years and the maximum punishment may extent to eight years — should such offence be treated as ‘serious offence’ (as the maximum punishment is more than seven years) or should it be treated as ‘heinous offence’ (as the minimum punishment is less than seven years)? It cannot be said that the intention of the legislature was to exclude from its purview a severe offence such as attempt to murder or even a graver offence under the POSCO Act as a ‘non-serious’ one.
III. Way Forward
The Supreme Court in Shilpa Mittal v. State of NCT of Delhi⁸, recently tried to reconcile the ambiguous situation in JJ Act, rendering that all the offences where the maximum punishment is more than seven years, but no minimum sentence is provided shall be treated as ‘serious offences’ till the Parliament legislates on the issue. Hence, offence such as murder, culpable homicide not amounting to murder and Conspiracy to wage war against the government of India will be treated as ‘serious one’, and not ‘heinous offences’. It is pertinent to note that that Minister in her inaugural speech in the parliament while introducing the JJ Act had categorically stated that “Children could now be tried as an adult for the offence of murder, rape and terrorism”. It is also important to note that it could not have been the intention of the legislature to exclude severe crimes like terrorism and murder outside the purview of the heinous offence category. It is imperative for the legislature to curb the lacunae prevailing in the act to conform to the spirit of the act.
At the same time, it is proposed ex hypothesi that while it is important to deal with iron fist heinous offences committed by juvenile offenders, it is equally important to take the mitigating factors which include inter alia physiological age of a juvenile to commit a crime. J.S Verma committee in its report also cited Laurence Steinberg’s Social Neuroscience Perspective on Adolescence Risk-Taking⁹ according to which a child’s brain continues to develop up to mid-20s, and due to his underdeveloped mind, a juvenile’s ability to weigh risks and rewards is diminished significantly as compared to his adult counterparts.
The Hon’ble Bombay High Court in Mumtaz Ahmed Nasir Khan v. State of Maharashtra¹⁰ recently held that while carrying out the preliminary assessment under section 15 of JJ Act to ascertain the mental capacity of a child for the purpose of transferring the child to the adult criminal system, the Special Investigation Report should also contain the seriousness of the offence, the gravity with which it was committed and whether the society needs protection from the juvenile, without mechanically resorting to the categorisation enunciated in the JJ Act. Hence, committal of a juvenile to adult criminal system should be done only in ‘rarest of rare’ cases.
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[1] United Nations Human Rights, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx, (last visited May 12, 2021).
[2] PRS Legislative Research, https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf (last visited May 9, 2021).
[3] PRS Legislative Research, https://prsindia.org/files/bills_acts/bills_parliament/SC_report-_Juvenile_justice_1.pdf (last visited May 9, 2021).
[4] Salil Bali v. Union of India, (2013) 7 SCC 705.
[5] Indian Penal Code, 1860, § 397, №45 (India).
[6] People’s Cultural Centre, http://www.pecuc.org/Upload/CenterOfRight/Handbook%20for%20Advocates-1.pdf (last visited May 6, 2021).
[7] Criminal Procedure Code, 1973, §. 262, №2, Acts of Parliament, 1973 (India).
[8] Shipla Mittal v. NCT of Delhi, Special Leave Petition (Cri.) №7678 of 2019),
[9] Verma, infra note 10.
[10] Mumtaz Ahmed Nasir Khan v. State of Maharashtra, Cri. Appeal №1153 of 2018.
The author is a Post Graduate Diploma student in Gandhi and Peace Studies at IGNOU.
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