Victim Before Offender?: Rethinking the CCL-CNCP Divide Under The Juvenile Justice (Care and Protection) Act, 2015

Introduction: Juvenile Justice at the Crossroads

A 2024 study by the National Institute for Mental Health and Neurosciences (‘NIMHANS’) found that 90.9% of children referred from the juvenile justice system in India had experienced at least one Adverse Childhood Experience (‘ACE’), including abuse, neglect, etc. Similarly, a global study across 13 countries found that nearly 87 per cent of justice-involved youth had experienced at least one traumatic event. The study also found that the justice-involved youth experienced 20 times more ACEs than their non-justice-involved counterparts.

A perusal of these reports forces a sharp question: When a juvenile commits a trauma-induced crime, should he be sent to the ‘Special Home’ meant for juvenile offenders or should he be sent to a ‘Children’s Home’ meant for Children in Need of Care and Protection?

Currently, the Juvenile Justice (Care and Protection) Act, 2015 (‘JJ Act’), segregates juveniles in two categories: Children in Need of Care and Protection (‘CNCP’) and Child in Conflict with Law (‘CCL’). The framework of the Act is unclear when dealing with cases of  ‘dual status’ youth, as international scholarship calls it. The current system, segregated between Juvenile Justice Boards (‘JJB’ or ‘the Board’) and Child Welfare Committee (‘CWC’), looks at both categories in silos. This article is an attempt at critiquing this segregation by calling for a more holistic approach towards such cases,  in order to uphold the best interests of child.

This article proceeds in three parts. Firstly, the article traces the juvenile justice jurisprudence the contextualise the argument. Secondly, the article evaluates the present juvenile justice system to show the deficiencies which may arise while dealing with ‘dual status’ children. Lastly, the article proposes a potential solution aimed at harmonising the procedure of both CWCs and JJBs to conduct a holistic enquiry.

Contextualising the Argument: A Jurisprudential Gaze

The Children’s Act of 1960 was one of the first Acts passed for juvenile justice post-independence. The Act was based on the philosophy of parens patriae.[1] The Magistrate was expected to act  like child’s father and secure his rights. However, the procedure, at some places, violated the fundamental rights of the accused. For instance, one such anomaly appeared in the case of Kario alias Mansingh Malu v State of Gujarat.

The main issue, arising out of the Section 22 of the Saurashtra Children Act, 1954, which prohibited legal practitioners from appearing in any case without the Children Court’s permission, was ‘whether the accused who had been arrested for the commission of an offence and who have been admitted to bail have got a fundamental right guaranteed under Article 22(1) of the Constitution of India to be defended by a counsel of their choice.’ (Para 4) Recognising that the right to legal representation was a fundamental right rooted in Articles 19, 21 and 22 of the Indian Constitution, the Gujarat High Court struck down the section as unconstitutional.  

Another breakthrough came with the National Policy for Children, 1974 and thereafter, the Juvenile Justice Act in 1986. The Act provided for a distinct procedure to be followed in the cases arising out of offences committed by children. The Act was substantially influenced by Sheela Barse v Union of India, passed by the Supreme Court in the same year. It challenged the incarceration of children below the age of sixteen years in adult jails due to substantial differences between the prison policies of various states. The Supreme Court, expressing disappointment at the enforcement of the Children Act in various states, called for more safeguards for child prisoners.

In the 1990s, India had signed multiple international instruments, like the UN Convention of the Rights of the Child (‘UNCRC’), Beijing Rules, and the Riyadh Guidelines, which were focused on the protection of the rights of children and juvenile delinquents. To align with the UNCRC, the Indian Parliament enacted the Juvenile Justice (Care and Protection of Children) Act, 2000. It introduced the categories of ‘juvenile in conflict with law’ and ‘child in need of care and protection.’ Thereafter, in  2015, the JJ Act was passed, which further refined the procedures and dealt with the widely criticised anomalies in the Nirbhaya case. For example, Section 15 introduced the requirement of a preliminary assessment if a juvenile between the ages of 16–18 years was alleged to have committed a heinous offence. The Act continued with the definitions of CNCP and CCL, albeit with some refinements.

The above traces make two ideas clear. Firstly, the juvenile justice jurisprudence has seen an overhaul in its approach to the subject, from a parens patrie approach to a welfare-oriented approach. Secondly, the framework continued to recognise the children as being either a victim of a crime, as a vulnerable being, or the children were seen as juvenile offenders, with an assessment of their mental capabilities necessary to determine the further course of trial and their detention in the observation homes.

The article seeks to dispute the second conception. Isolated approach to CCLs and CNCPs may lead to abstraction. Multiple case studies show that crimes committed by juvenile offenders may be a result of the trauma and neglect which they have suffered in past.[2] In which category should such children fall? Should they be recognised as a CNCP because of their long-running history of abuse? Or should such children be sent for custody and a whole guilt-determinative process resembling a trial and a preliminary enquiry because of the crime which they have committed?

Thus, it becomes necessary to adopt a broad-based framework which considers both the vulnerability of the child, and the mental capacity to commit the crime and contextualises them to produce a harmonised result.

Assessing The CCL - CNCP Divide: A Practical Outlook

The JJ Act mandates the formation of a CWC in each district. The main aim of the CWC is to conduct enquiries and take care of such children presented before it. After a child is produced before the CWC, an order must be passed within 4 months of such production. Based on such enquiry, the Committee passes orders like placing the child in foster care and sending him to an observation home.

Similarly, the Act mandates the formation of a JJB in each district. Whenever a child is apprehended to have committed a crime, such child is placed in the custody of a Special Juvenile Police Unit or the designated Child Welfare Officer, who ensures the production of the child before the Board within 24 hours of such apprehension. The Act also mandates the enquiry to be completed within a period of four months from the date of first production.

If a child commits any crime, induced by trauma, like in the case of Battered Child Syndrome, he may be sent to be produced before the JJB, and the Board, after conducting an enquiry, may pass an order under Section 18 of the JJ Act, which may include measures like allowing the child to go home, participating in counselling, etc. However, this raises a problem. Such directions are based on the discretion of the Board and whether the Board thinks the situation to be fit for such intervention.

In such a scenario, where the exercise of discretion may lead to inconsistent results, there is a need for explicit mention of a clause in the JJ Act, which harmonises both sides of this facet of the child, by considering the culpable behaviour and the need for rehabilitation. Thus, the particular focus of the framework must be on comprehensive evaluation of the child’s specific circumstances.

Resolving The Dilemma: The Dual Status Child Framework

The scenario in the last paragraph captures what the scholars have termed a ‘dual status’ child. As highlighted in the first part, empirical research has demonstrated that a disproportionately high number of juvenile offenders have a demonstrable history of past abuse and neglect.[3] Hence, seeing both categories in silos is not the solution.

The situation acquires a new dimension when we consider the recommendations of the UN Committee on the Rights of the Child (‘the Committee’). The Committee, in its General Comment No 24 (2019), called for a multidisciplinary approach towards the matters related to the assignment of criminal responsibility to a child.

The Committee’s multidisciplinary approach might benefit the Indian framework by firstly, treating criminal responsibility as a function of developmental capacity rather than chronological age, drawing on evidence about the development of the prefrontal cortex well into twenties (para 2 and 22). The approach under Section 15 of the JJ Act currently requires assessment of ‘mental and physical capacity to commit such offence, ability to understand the consequences and the circumstances in which he allegedly committed the offence.’ Thus, adding an explicit provision with respect to the assessment of the past trauma related incidents, will shift the primary focus from determining the maturity to the comprehensive understanding of the events by the juvenile, respectively.

Secondly,  the phrase ‘circumstances in which he allegedly committed the offence’ can be interpreted to mean the assessment of the past trauma related incidents which might have induced the crime, and hence, form part of the ‘circumstances’ in which crime was committed.

Thirdly, as per the JJ Act, the Child Care Institutions/Children Homes are obligated to provide care to the CNCPs. On the other hand, the Special Homes are mandated to provide rehabilitative services to the CCLs. Such a multidisciplinary approach will lead to further co-ordination between both institutions, which will strengthen the assessment of the juvenile’s comprehensive needs. Hence, a clause must be included in the Act, which harmonises both facets of such assessment  in the best interests of the child.

However, such an interpretation is not without its difficulties. Firstly, the JJBs and CWCs across several States sit irregularly, carry vacancies for extended periods, and dispose of inquiries well beyond the four-month period Section 14 prescribes.  A model requiring two such bodies to coordinate adds transaction costs to institutions already struggling with their existing mandates, and hence, improper implementation might lead to towering cases which might further contribute to delays.  

Secondly, critics may argue that the ‘dual status child’ framework, may aggravate the commission of heinous offences, as was the case in Mukesh v State (NCT of Delhi), commonly known as the Nirbhaya case. The idea, however, is not to erase the criminal responsibility; rather, the idea is to ensure a more integrated approach, with JJB ensuring the investigative dimension and the CWC ensuring the welfare dimension for the overall development of the child.

In this way, the argument is to consider the overall circumstances that leads to the most efficient outcome. No doubt, in any case of gruesome crime, the pendulum may tilt towards the punitive aspect rather than being focused on welfare. A comparative analysis may be done with reference to South Africa’s approach to the question. Sections 34-40 of the Child Justice Act, 2008 mandates pre-trial assessment of every child accused of an offence. This assessment is aimed at understanding the child’s social circumstances, trauma history and potential welfare needs. This model ensures that the socio-economic background of the child is considered before any decision is made.  The idea also sits well with Howard Zehr’s idea of restorative justice, which aims at understanding the circumstances that produce the offending behaviour, rather than the mere assignment of criminal responsibility.[4]  

A provision, fundamentally like these concepts, should be inserted in the JJ Act. There should be a dual screening at the time of reporting of the offence. The JJB should conduct this enquiry while assessing if the offender falls under the requirements listed in Section 2(14) of the JJ Act. If the child is a dual status child, then the JJB and CWC should concurrently handle the case, rather than the sole allocation of the charge to the CWC or the JJB. Further, reviews can be done of the situation, and then with time, appropriate decisions can be taken to ensure that the welfare of the child and the societal aspects are well-balanced. The term ‘circumstances’ can be interpreted to mean past trauma-induced incidents, which might smoothen the process of interpretation. However, that might require sustained judicial engagement.

Conclusion

The article began by recounting the development of juvenile justice jurisprudence in India to highlight awareness about the children’s rights. Then, the article focused on how such awareness needs to be contextualised by citing various reports which show the prevalence of trauma-induced crimes amongst children. Finally, the article argued for a holistic approach by analysing the Juvenile Justice system in South Africa. The article also relied on the Committee’s 2019 report to highlight various benefits.

The best interests of the child, which the Act declares as its governing principle, cannot be served by a system that must decide at the threshold whether a child is to be understood as victim or offender . If most are both, the law should be capable of saying so.

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[1]Ved Kumari, The Juvenile Justice (Care and Protection of Children) Act, 2015: Critical Analyses (2nd edn, LexisNexis 2024) 81.

[2] Joseph P Ryan, Laura Abrams and Hui Huang, ‘First-Time Violent Juvenile Offenders: Probation, Placement and Recidivism’ (2014) 60 Social Work 177.

[3] ibid.

[4] Howard Zehr, Changing Lenses: Restorative Justice for Our Times (Herald Press 1990) 181.

This article has been authored by Sahil Ratre, a student at National Law School of India University, Bengaluru. This blog is part of RSRR's Rolling Blog Series.