Changes to Juvenile Justice Laws regressive and disappointing
India: 23 December 2015 11:45 am
Changes to India’s juvenile justice laws that allow children to be treated as adults in cases of serious crimes are a step backwards for children’s rights, Amnesty International India said today.
“Children do sometimes commit crimes as violent as those committed by adults,” said Aakar Patel, Executive Director, Amnesty International India. “But their punishment should reflect the fact that their culpability is different because of their age, and consider their special capacity for reform.”
The Juvenile Justice (Care and Protection of Children) Bill was passed by India’s upper house of Parliament on Tuesday. Under the bill, in cases where children aged between 16 and 18 are accused of serious crimes including murder and rape, authorities will conduct an assessment of factors including the child’s “mental and physical capacity to commit such offence, ability to understand the consequences of the offence, and the circumstance in which he committed the offence.”
Based on the assessment, children can be prosecuted in an ordinary criminal court, and punished as adults if convicted. They cannot be sentenced to death or life imprisonment without the possibility of release.
“Under international law, anyone under the age of 18 is a child,” said Aakar Patel said. “The bill in effect lowers the age at which juvenile justice rules apply to 16, which violates India’s international legal obligations.”
The UN Committee on the Rights of the Child, which monitors the implementation of the UN Convention on the Rights of the Child – to which India is a state party – has categorically stated that every person under 18 years of age at the time of an alleged offence must be tried in accordance with the rules of juvenile justice.
“It is true that India’s current juvenile justice system is flawed in many ways, and does not always lead to effective reform and rehabilitation,” said Aakar Patel. “But the solution is not to change the law. It is to better enforce it.”
Several child rights organizations have opposed the changes. India’s National Commission for Protection of Child Rights had described the proposed amendments as “retrograde in nature and against the principles of reformative and restorative justice” and said that juvenile justice boards are not in a position to conduct and analyse the physical and mental capacity of a child or the circumstances which led the child to commit a serious crime.
India’s National Institute of Mental Health and Neuro-Sciences (NIMHANS) had told the government that “making the argument of maturity based on the nature of crime does not stand scrutiny.” The Centre for Child and the Law at India’s National Law School of India University stated in a submission, “Latest research shows that individualized assessments of adolescent mental capacity is not possible and the suggestion that it can be done would mean “exceeding the limits of science”.”
A parliamentary standing committee chaired by India’s Health Minister which analyzed the bill had said that treating children aged 16-18 as adults under the criminal justice system “will go against Articles 14 and 15(3) of the Constitution”. Article 14 of the Constitution guarantees equality before the law.
In 2013, India’s Supreme Court upheld the constitutionality of India’s Juvenile Justice Act, which the Bill seeks to amend, stating: “the age of 18 has been fixed on account of the understanding of experts in child psychology and behavioural patterns that till such an age the children in conflict with law could still be redeemed and restored to mainstream society.” In 2014, in a different case, the Court stated, “there is a considerable body of world opinion that all under 18 persons ought to be treated as juveniles and separate treatment ought to be meted out to them”.
The UN Convention on the Rights of the Child requires states to recognize the right of every child accused of a crime to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
Anyone under the age of 18 should be tried in accordance with internationally accepted juvenile justice standards, including:
– The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”);
– The United Nations Guidelines for the Prevention of Juvenile Delinquency (the “Riyadh Guidelines”);
– The United Nations Rules for the Protection of Juveniles deprived of their Liberty (the “Havana Rules”); and
– The Economic and Social Council Guidelines for Action on Children in the Criminal Justice System.
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