04, Dec 2017 | Maharukh Adenwalla
Children are treated differently from adults under the law due to traits linked to their age. Such traits are characterised by mental immaturity, impressionability, recklessness and impulsiveness, amongst others, which are heightened during adolescence. Going back to those years in one’s life, most will identify with these peculiarities, as also acknowledge their transient nature. Because such behaviour is intrinsic with this stage of life, children’s age-related physiological and psychological tendencies require psycho-social responses, instead of penal legislation. Children require shielding from the criminal justice system. What is worrisome is the recent legislative trend which propels children into the criminal justice system, either as victims or as offenders.
Before this concern is further articulated, it is essential to mention that a ‘child’ is a person who has not completed eighteen years of age, consequently, requiring special protection under the law. This definition of ‘child’ has been accepted at the international level, as also at domestic levels. Though protective legislation must apply to all children, their treatment may vary depending on the age-group and the object of a particular legislation. Needless to say, such differential treatment should be in the interest of children, and not to their detriment, keeping in mind the quaintness of different ages.
Two legislations, namely, the Protection of Children from Sexual Offences Act 2012 [the POCSO Act] and the Juvenile Justice [Care and Protection of Children] Act 2015 [the JJ Act], though being touted as socio-beneficial legislations, are pushing children into the criminal justice system, instead of protecting them from the same. It is ironic that children in the age-group of sixteen years to eighteen years are treated differently in the context of protection – on the one hand, the POCSO Act in the name of ‘child protection’, criminalises sexual activity that was previously accepted as normal in the sixteen to eighteen years age-group, whereas, on the other, the JJ Act, denies a child protection of juvenile legislation, within the same age-group. Hence, under both legislations, a child enters the criminal justice system – under the POCSO Act as a victim, and under the JJ Act as an offender.
Civil society’s demand for a special legislation to deal with cases of child sexual abuse as the then prevailing laws were inadequate, resulted in enactment of the POCSO Act. The demands were mainly three-fold – (i) finer categorisation of sexual offences committed against children; (ii) distinct procedures at the investigative and trial stage; (iii) support to children within the criminal justice system. The Protection of Children from Sexual Offences Bill 2010, presented by the Ministry of Women and Child Development, Government of India, while addressing these demands, also increased the age of consensual sexual activity from sixteen years to eighteen years and introduced the concept of ‘mandatory reporting’. Objection to such increase in age is on diverse grounds – it penalises an activity that is expectable during late teens when sexual curiousity is abundant; it defeats the right of a person moving towards adulthood to select a partner; it results in incarceration in the absence of force or injury; it becomes a tool for parents to compel their child into submission due to extraneous factors. A child of sixteen years or more trusts that she is capable of making an informed decision or enters into a romantic relationship so as to escape from her life-situation. Managing the situation by registering a criminal case is not the answer. Special Courts are clogged with cases of consensual sexual activity, where FIRs have been registered by disgruntled parents – some such cases end in acquittal due to the child turning ‘hostile’ or due to the court’s sensitivity, and others, in conviction for a minimum period of seven years or three years as the court has no discretion to reduce the term of imprisonment to less than that stipulated under the law. It is important to recognise that law may not have a solution for every difficult situation – psycho-social interventions should be explored, as also inclusion of sexuality rights education in school curricula.
What exacerbates the criminalisation of consensual sexual activity is the provision regarding ‘mandatory reporting’ that has been included under the POCSO Act. Such provision punishes a person who fails to report the commission of a sexual offence against a child. Hence, the framework of the POCSO Act is for every child to enter the criminal justice system, irrespective of the child’s well-being. It does not take into account the nuances of an individual case. Furthermore, such provision is counter-productive as it may restrict a child from accessing required services, such as, medical-care, due to apprehension of being forced into the criminal justice system. Some argue that the POCSO Act contains special procedures during investigation and trial, hence, children’s adversities are curtailed. But, State Governments have not set-in place the envisioned treatment, infrastructure and human resources – they remain mostly on paper.
Legislature should desist from forcing a reluctant child into the criminal justice system, instead, the concentration should be on establishing structures and appointing competent personnel to operationalise the POCSO Act in its true spirit, on improving investigative / analytical skills of the enforcement agencies, and on ridding societal stigma, which in turn would encourage voluntary registration of FIRs.
What is most alarming is that children involved in a ‘romantic relationship’, may be denied the protection of the juvenile justice system. The JJ Act has for the first time in India introduced provisions regarding waiver of children in conflict with the law in certain circumstances into the criminal justice system. A child above sixteen years of age who is alleged to have committed a ‘heinous offence’ may be shifted into the criminal justice system by the Juvenile Justice Board. A ‘heinous offence’ has been defined as an offence for which the minimum punishment is imprisonment for seven years or more. The Juvenile Justice Board on the basis of a Preliminary Assessment will decide whether such child is to be dealt with under the juvenile justice system or the criminal justice system. Penetrative sexual assault and aggravated penetrative sexual assault under the POCSO Act fall under the category of ‘heinous offence’.
Prior to the JJ Act, all child offenders, without exclusion, irrespective of the offence alleged to have been committed, were dealt with under the juvenile justice system, wherein rehabilitation was an alternative to punishment. This draconian change was brought about by the 2015 Act in the aftermath of the Nirbhaya case, where one of the offenders was seventeen years old. There was a public outcry that the Juvenile Justice [Care and Protection of Children] Act 2000 was very lenient, and that the child offender should be treated as an adult. It was a couple of cases, where the alleged sexual offender was below eighteen years of age that resulted in overturning a well-entrenched philosophy of juvenile justice. Retribution in lieu of rehabilitation became the mantra, despite the Supreme Court, in 2013, having noted the essence of juvenile justice legislation as being “restorative and not retributive, providing for rehabilitation and reintegration of children in conflict with law into mainstream society.”
Succumbing to public emotion, the legislature threw to the winds the rationale that underlined juvenile legislation – that children are mentally less culpable than adults and should be accorded an opportunity to satisfy their developmental needs. While justifying the need for juvenile justice legislation, the Supreme Court in Pratap Singh vs. State of Jharkhand, observed, “…it must be borne in mind that the moral and psychological components of criminal responsibility were also one of the factors in defining a juvenile…The modern approach is to consider whether a child can live up to the moral and psychological components of criminal responsibility, that is whether a child, by virtue of his or her individual discernment and understanding can be held responsible for antisocial behaviour.” The logic for fixing the age of juvenility at eighteen years is dealt with by the Supreme Court in Salil Bali’s case – “In this regard, one of the other considerations which weighed with the legislation in fixing the age of understanding at eighteen years is on account of the scientific data that indicates that the brain continues to develop and the growth of a child continues till he reaches at least the age of eighteen years and that it is at that point of time that he can be held fully responsible for his actions.” The Report of the Committee on Amendments to Criminal Law, submitted to the Government of India on 24th January 2013, while holding “that the age of ‘juveniles’ ought not to be reduced to 16 years”, inter alia, referred to “the neurological state of the adolescent brain. Studies show that adolescence is a period of significant changes in the brain structure and function. There is consensus among developmental neuroscientists on the nature of this change…”
The argument put out by those supporting reduction in age of juvenility, and waiver of children into the criminal justice system, was that the number of children committing horrific offences was on the increase – which argument is belied by the data of the National Crime Records Bureau, Ministry of Home Affairs, Government of India. No reasonable answer came forth as to what were the circumstances that necessitated such drastic change to the then prevalent philosophy of juvenile justice.
The Juvenile Justice [Care and Protection of Children] Bill 2014 was referred to the Parliamentary Standing Committee, and views of stakeholders were sought, several of whom opposed the provisions relating to waiver. In its 264th Report submitted to parliament on 25th February 2015, the Committee cautioned against the proposed changes – “…some incidents of juvenile crime, though a cause of serious concern should not be the basis for introducing drastic changes in the existing juvenile justice system.” The Committee further noted, “One must not forget that juvenile justice law is based on a strong foundation of reformation and rehabilitation, rather than on retribution. Therefore, drastic changes proposed in some key areas of the existing system of juvenile justice need very deep introspection. It is all the more surprising that the Ministry has very comfortably chosen to ignore the views of all the major stakeholders in this regard.”
Instead of taking measures to strengthen the rehabilitation component, and / or heeding the concerns voiced, including those of parliamentarians, the ‘waiver’ provisions were incorporated in the JJ Act. The lesson learnt is that governments bypass rationality and objectivity to pander to public demands for political gains. Moreover, those governing believe that the easiest way to quieten public outcry is by proposing and passing harsh legislations that increase criminalisation and period of imprisonment – never mind if the same is unscientific and illogical, as also harmful to those for whose protection such law was enacted.
Legislations that thrust children into the criminal justice system require questioning, more particularly, when the impact of the same is detrimental to their interests. It is also essential to question the absence of holistic preventive programmes that focuses upon the child and family. It is five years and almost two years since the POCSO Act and JJ Act, respectively, came into force – we must demand re-looking at the provisions that push children into the criminal justice system.
 Indian Penal Code, Criminal Procedure Code and Indian Evidence Act,
 Prevailing under section 375 of IPC – Rape.
 Antagonism due to religion, caste, class, colour, etc.
 Constituted under section 28 of the POCSO Act “to try offences under the Act.”
 Penetrative sexual assault under section 4 of the POCSO Act.
 Sexual assault under section 8 of the POCSO Act.
 Section 21 of the POCSO Act.
 Section 2 (33) of the JJ Act.
 Section 4 : punishment with imprisonment “which shall not be less than seven years but which may extend to imprisonment for life”.
 Section 6 : punishment with imprisonment “which shall not be less than ten years but which may extend to imprisonment for life”.
 Salil Bali vs. Union of India ;  7 SCC 705.
 (2005) 3 SCC 551.
 Commonly called the Report of the Justice J.S. Verma Committee.
(Maharukh Adenwalla is a lawyer and child rights activist who has worked extensively to bring reforms in the Juvenile Justice System.)