With no systems in place, we are taking away our children's right to justice

Until recently, India could boast of one of the most progressive justice systems for juvenile criminals. It believed in reform for the young and re-integration into society. While the new legislation that came into force on January 15 still has juvenile justice in its name, it probably will not do justice to the young anymore.

The Juvenile Justice (Care and Protection of Children) Act 2015 is based on the flawed assumption that sending children to the adult criminal justice system will solve the twin problems of juvenile crime and women’s safety.

Unfortunately, this assumption has been derived primarily because of the systemic failure of the implementation of the Juvenile Justice Act 2000 in spirit. It is now to be seen whether the current system and infrastructure will be able to do justice to the enforcement of the new legislation.

The new Juvenile Justice Act intends to adopt a “two-stage process” to ensure justice to children who fall within the ambit of this legislation. The Juvenile Justice Boards have been given the additional responsibility of ascertaining whether a juvenile in conflict with the law will be tried under the juvenile system or the adult system. This process is highly significant and will act as the first step in ensuring that no innocent child is sent to the adult criminal justice system.

We need to ask a fundamental question here. In their current state, are the Juvenile Justice Boards equipped to take up responsibility and reach a judicious decision which would impact the long-term future of the children involved? This process itself is ridden with serious gaps.

Queueing up

Under the Juvenile Justice Act 2000, every district is mandated to have at least one Juvenile Justice Board. Nearly 12 years after that legislation came into effect, there were serious concerns about not just the implementation, but the mere existence of statutory bodies – the Child Welfare Committees and the Juvenile Justice Boards – across all districts.

While the situation has improved tremendously since, many states are still struggling with non-functional Boards. In Rajasthan, only nine out of the 24 Boards in the state are functional, according to facts presented before the Rajasthan High Court in a hearing as recent as October last year.

It would not be wrong to say that this represents the scenario in many other states in the country. This issue has also been brought up by the Supreme Court in the Sampurna Behrua V/S Union of India case, wherein the court ordered every state to have a Juvenile Justice Board in place by December 31 last year.

Further still, the Boards have been struggling with pending cases and more often than not, the duration of trial has exceeded the mandated period. The 2014 data provided for 12,619 trials (“inquiries” as per the Juvenile Justice Act) conducted by the Boards shows that only 16.5% were completed on time.

The duration of the trial exceeded even the mandated period of detention of three years in around 30% of the cases. It is rather alarming that in more than 10% of the cases, the trial has gone on for even more than five years. Take Assam for example, where till June 2015 at least 1,977 cases were pending before Boards across the 27 districts of the state. Many of these trials have lasted more than a decade. The state has stipulated that the Boards should complete every inquiry within four months. But this problem is not isolated. The alarming number of pending cases is a matter of concern in almost all states.

The law takes into account the possibility of pendency and hence does not object to more than one Board per district, depending upon the number of pending inquiries and distance involved in moving children from the observation homes to venue of the Board.

The Supreme Court took up this issue as well in the Sampurna Behrua v/s Union of India case. It cited, for instance, a district in Pune where there were 1,935 inquiries pending (as of March 31 last year), as reported by the National Legal Services Authority, and said there seemed to be no reason why another Juvenile Justice Board couldn’t be set up in that district. But despite the provision in the law, additional Boards have not been setup anywhere apart from two metropolitan cities.

Fewer number of Board sittings also add to the pendency of cases. According to the National Commission for Protection of Child Rights’ Report on National Conference on Juvenile Justice Boards in May last year, about 44% of Board members interviewed said that less than three sittings were held per week.

The new law allows young children to be tried as adults for more than 46 offences under the Indian Penal Code and other Acts. Under these circumstances, the number of cases will increase manifold, thus increasing the already existing burden on the Juvenile Justice Boards. Children will bear the brunt of this delay. Ideally, there should not be more than 100 inquiries pending before each Board, so that they can be disposed of in the stipulated period of four months. Given the circumstances, the Juvenile Justice Boards have a difficult, if not impossible task at hand.

Flawed composition

The selection of the Board members is yet another topic of debate. In the Juvenile Justice Act 2000, the constitution of the selection committee has been referred to in the Juvenile Justice Rules. Since the implementation of the law, there have been various delays and concerns with regard to the selection procedure.

The new law was expected to spell out a formal procedure for the selection of statutory authorities with a clear reference, but that has unfortunately not materialised. While the new bill lays down certain eligibility and ground for disqualification for the statutory authorities, it does not refer to provisions for the constitution of the selection committee.

Leaving this component to the Rules would give blanket powers to state governments to constitute and reconstitute these authorities at will, rather than being administratively responsible for these appointments.

At CRY, working for over three decades on the ground across the country, we have experienced the impact of this problem. In our intervention area in Uttar Pradesh, for instance, the tenure of committee members ended more than 18 months ago and a new committee has not yet been constituted.

This has inevitably led to the non-appointment of Board members, in which case the tenure of the old members has been extended. The vacant positions in Boards across the country aren’t surprising. The many clerical staff vacancies only add to the problem.

Problems aplenty

This brings us back to the most crucial debate. Are the Juvenile Justice Boards, clearly struggling with infrastructure and human resource shortfalls and lack of a streamlined process for preliminary assessment of the juvenile – of his physical and mental capability to commit the offence along with the "circumstances in which he allegedly committed the offence".

Research has proven that assessment of individual maturity and mental capacity is extremely difficult. The suggested assessment process may be arbitrary, may be influenced by biases and is likely to be erroneous. While this assessment cannot be objectively carried out, the law refers to a provision that the Board may seek the help of a professional to take this decision. It is common knowledge that there is a dearth of professional counselors and psychologists who can be consulted by a Board in every district. This is an area of concern which will have a substantial impact on the Board’s decision.

While the Juvenile Justice Board is a quasi-judicial body, they take into consideration the social investigation report, police report and the case evidence to reach the final decision on the juvenile in question. They also rely heavily on institutional support of Probation Officers and Juvenile Welfare Officers (at the police station).

It is rather ironic that most Board members are sceptical about the quality of the investigation reports. The NCPCR’s Report on National Conference on Juvenile Justice Boards indicates that 58% of the board members were not satisfied by the quality of the social investigation report.

The report also states that 48% of the Juvenile Justice Board members felt that the probation officers are not well-qualified, well-trained and competent. Forty-three percent said that all police stations do not have juvenile justice officers. Only 18% felt that they were well-trained and had requisite knowledge to deal with the cases of juveniles in conflict with law.

Moreover, the training of the members themselves is questionable. In the same report by NCPCR, half of the members said that they had not or only partly undertaken formal training in the juvenile justice system, child and adolescent psychology, rehabilitation process, and related requisities.

According to the new legislation, the Board has a month to decide whether the child will be sent to an adult court. This is not practical. Even the police are given 90 days to file a chargesheet.

Moreover, in cases where the evidence and facts vary as the course of the investigation goes on, the decision should in no way be based on partial knowledge. Consider complicated cases like the Aarushi Talwar murder case or even the recent Sheena Bora murder case, where investigations are still underway and facts keep evolving with time.

The decision of the Juvenile Justice Boards to send a juvenile to the adult system is, to say the least, life-changing for the child. An ill-informed decision would surely be disastrous. Are we willing to take that chance with our children? Moreover, the adult justice system is known for long delays in the trial process and therefore the child would ultimately bear the cost. Unlike the juvenile justice system, there will be no time bound trials and review of pendency.

With the new Juvenile Justice Act, we have taken away the chance to reform from a majority of children in conflict with the law. With no systems in place, we are also taking away their right to justice. Given the current state of machinery, proper implementation of the amendment seems highly unlikely. It is not unless the government takes cognisance of these gaps that our children can have even a shot at justice or a fair trial to begin with.

The author is Director, Policy, Research and Advocacy at CRY – Child Rights and You.