Should 16 to 18-year-olds be tried as adult in case of heinous crime?

New Delhi: The National Commission for Protection of Child Rights (NCPCR) on Wednesday sought public suggestions on draft guidelines for conducting preliminary assessment of children in conflict with law to make the system more uniform and conducive for them. The Commission sought the inputs/comments regarding the draft guidelines from the public before January 20.

The draft guidelines underline that the aim of the preliminary assessment is not to seek confession from a child or reach a conclusion of any sort. 

“The sole aim of preliminary assessment is to determine whether the child in the age of 16-18 years should be tried as an adult in case of heinous offence. This should not be considered an inquiry into the offence or a prelude to the trial by the Children's Court or Juvenile Justice Board (JJB). Also, while making the preliminary assessment, the child shall be presumed to be innocent unless proved otherwise,” the draft guidelines said.

It said there are two essential conditions that call for preliminary assessment under Section 15 of the Juvenile Justice (JJ) Act, 2015.

“First, the crime that has taken place is in the category of heinous crime as defined in the JJ Act, 2015. Second, the child who has allegedly committed the crime is in the age group of 16-18 years. If the offence is allegedly committed by more than one child, preliminary assessment of each child will be carried out separately,” the draft guidelines said.

One of the most important steps for the Juvenile Justice Board to proceed with preliminary assessment regarding children alleged of heinous offences is to determine the age of the child, it said.

“For this, under Section 94(2) of the JJ Act, the Board shall undertake the process of age determination, by seeking evidence by obtaining the date of birth certificate from the school, or the matriculation or equivalent certificate from the examination board concerned, if available; and in the absence thereof; the birth certificate given by a corporation or a municipal authority or a panchayat;  and only in the absence of the above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Board,” the draft guidelines said.

The draft guidelines said such age determination test conducted on the order of the Board shall be completed within fifteen days from the date of such order.

The draft guidelines said the preliminary assessment has to be carried out in terms of the following four determinants - physical capacity of the child to commit alleged offence, mental capacity of the child to commit alleged offence, the circumstances in which the child allegedly committed the offence and ability to understand the consequences of the offence.

On physical capacity of the child to commit alleged offence, the draft guidelines said child's locomotor abilities and capacities, particularly with regard to gross motor functions (such as walking, running, lifting, throwing...such abilities as would be required to engage in most antisocial activities due to which children come into conflict with the law).

“The expert shall not delve into assessing the physical age of the child as a part of the preliminary assessment. The age determination is concluded before the initiation of preliminary assessment by the JJB and therefore, the experts shall not repeat the process at this stage. The role of the experts with regard to assessing physical capacity of the child to commit the alleged offence is only limited to assessing the aspects as have been mentioned above,” it said.

On mental capacity of the child to commit alleged offence, the draft guidelines said “reporting on the child's “mental capacity” would draw on all the variables in the mental health and psychosocial assessment that pertain to mental health disorders, including substance use, and life skills deficits.” On the circumstances in which the child allegedly committed the offence, the draft guidelines suggest circumstances do not refer merely to the immediate circumstances of the offence itself, i.e., the last event that occurred and led the child into conflict with the law.

“In fact, the offence behaviour, including its immediate circumstances, is a (cumulative) consequence of a whole plethora of other circumstances that have been occurring over relatively long time periods of the child's life (perhaps since early childhood),” it said.

The draft guidelines also suggest that the psychologists and other experts must be given optimal opportunity to interact with the child.

“In case the Board does not have at least one member who is a practicing professional with a degree in child psychology or child psychiatry, the Board shall take assistance of psychologists or psycho-social workers or other experts who have experience of working with children in difficult circumstances. In such cases the Board would record specific reason(s) for the same,” it said.

The preliminary assessment in case of heinous offences is to be disposed of by the JJB within a period of three months from the date of first production of the child before the Board, the draft guidelines said.