In April 2019, a Juvenile Justice Board (JJB) in Delhi punished three 29-year-old men for sodomy which they had allegedly committed when they were 15. The JJB sentenced the three to be kept in protective custody in a ‘place of safety’ which is located in Majnu ka Tilla in Delhi for six months.
“The case is of the year 2005 when there were no provisions for keeping the juveniles in institution after they attain majority. Under the JJ Act there are provisions wherein juveniles can be awarded community service, counselling etc. In this particular case all three are already reformed, there are no criminal charges against them after alleged incident of sodomy. Then why did the JJB not look for other options to sentence them?”Ashish Kumar, Child Rights Lawyer
The JJB’s objective is well-defined: to counsel and reform juveniles who are in conflict or at odds with the law, rather than punish them.
Juveniles accused of a crime or detained for a crime are brought before the JJB (Juvenile Justice Board) under the Juvenile Justice (Care and Protection of Children) Act 2000 (amended in 2006). Under this Act, and provisions of the Criminal Code Procedure, children are not taken to a regular criminal court. The purpose of a separate court (JJB) is socio-legal rehabilitation and reformation and not punishment. The aim is to hold a child culpable for their criminal activity, not through punishment, but by counselling the child to understand their actions and persuade them away from criminal activities in future, as per the Juvenile Justice Board.
The primary aim of the the JJ Act 2015 is to reform the child. The following six sentencing options are available to the JJB if they find the child guilty of having committed a crime:
- Allow the child to go home after advice or admonition by following appropriate enquiry and providing counselling to the child and their parents
- Direct the child to participate in group counselling
- Order the child to perform community service under the supervision of an organisation or an institution
- Order the child or the parents/guardian of the child to pay a fine
- Direct the child to be released on probation of good conduct and be placed under the care and supervision of any fit facility (a kind of observation home) to ensure good behaviour for a period not exceeding three years
- Direct the child to be sent to a special home for a period not exceeding three years
The question is: Why didn’t the JJB consider other sentencing options other than sending the three men to a reform home?
‘Plant 100 Trees’: SC to a Juvenile Convict
Recently, a 32-year-old doctor was ordered by the Supreme Court to plant 100 trees in the following one year as the punishment for attempting to commit murder when he was 16, in 2004.
Solemen SK, a doctor from Murshidabad in West Bengal, was sentenced to three-years imprisonment by the JJB, which was upheld by the Calcutta High Court.
The Supreme Court said no good would come out of presenting the doctor before the Juvenile Board now.
“We are of the opinion that the ends of justice would be met by directing the petitioner who is now a registered medical practitioner… to perform community service,” said the Supreme Court.
No Education, No Job: Convict
An appeal has been filed by the convicts against the JJB judgment, calling it “a result of complete non-application of mind and blatant incorrect appreciation of applicable law under section 15 and 16 of the JJ Act 2000.”
The Quint spoke to one of the three convicts of the sodomy case, who claimed innocence. He said that out of the three convicts, two are married and one among them has two children as well. Since the incident took place in a school, the three accused were not permitted to continue studying there, or for that matter, in any other school.
“I have been fighting this case for 15 years. I couldn’t continue my studies... I don’t have a job because nobody was ready to give me a chance, nobody could ignore my past. I got married six years ago but could never tell my wife about the case because of the fear of losing her. I work as an air-conditioner repair mechanic and somehow run my house with my father’s support.”Convict
The 29-year-old convict added that he will continue to fight the case, which might take a few more years.
“Sending these three accused to custody might have an adverse effect on them. Since these people are already reformed, which the JJB could have cross-checked through administrators, and could have opted for any option apart from sending them to custody,” said Ashish Kumar.
“Fundamental principle of Juvenile Justice mandates that institutionalisation of any child has to be the last resort, and when there are five other options available to the Board, it is quite unreasonable and against the spirit and object of Juvenile Justice Act to send children to institutions in these cases.”Ashish Kumar, Child Rights Lawyer
JJB Erred in Judgment: Convict’s Petition
Under the Juvenile Justice Act 2000, a convict above the age of 18 was to be released at any cost. Section 15 of the JJ Act 2000 was amended in 2006, making a provision to send a juvenile over the age of 17 to a special home or place of safety.
The convict’s petition to the Sessions Court, against the judgment of the JJB, claims that the amended JJ Act of 2006 does not apply to his case as the crime was committed in 2005.
“The JJB erred in applying section 15 (1) (g) of the JJ Act 2000, while dispositional orders, completely ignoring the fact that clause (g) was inserted in 2006. My client cannot be sent to any type of custody since the alleged offence was committed in 2005,” says the convict’s petition.
A petition was moved in the Supreme Court against the amendment of Section 15 (1) (g) of JJ Act 2006. In 2013, the Supreme Court dismissed the petition on grounds that the section should be applied wisely and only in cases of heinous crimes.
No Space to Accommodate 18+ Convicts: Experts
The Quint spoke to a counsellor at an observation home who said, on the condition of anonymity,
“On an average there are 3-4 persons between the age group of 22-24 years in places of safety in Delhi whose cases are pending in the court. And in some states, these adults share the premises with juveniles between the age of 10-18 years because these states don’t have places of safety.”
The question is: Do we have enough places of safety or special homes for juvenile offenders?
As per the data made available by the Ministry of Women and Child Development, till 31 March 2017, there were 316 observation homes and 11 places of safety in the country, which means there is not even one in some states. There are 39 special homes and 54 observation homes. In total, there are 430 juvenile homes in the country.
The National Crime Records Bureau (NCRB) data which was released in 2017 revealed that in 2016, 12,272 juveniles were convicted and 44,171 apprehended, of which 32,577 juveniles were between the ages 16-18.
Experts dismiss mere formulation of law; implementation is possible only with necessary infrastructure. Hence, the JJB should look at matters holistically and keep in mind that the objective is not to punish but to reform.
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