- Age determined by the Juvenile Justice Board will be considered to be the true age of a person - Supreme Court
- Ossification test is not conclusive evidence and "cannot be the sole criterion for age determination"- Supreme Court
- In order to establish juvenility, the age of the accused at the time of commission of the offence must be determined.
- The juvenility has to be determined on the basis of matriculation or other equivalent certificates, birth certificate from the first school attended or the birth certificate issued by the Municipal authority, corporation or panchayat, as the case may be.
- A “hypertechnical approach" should not be adopted while determining the age of the person
The Constitution of India envisages that the State must take care of all the needs of the children and must protect their basic rights. International conventions such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also prescribe that the human rights and liberties of juveniles as well as juvenile offenders must be protected. In accordance with these international guidelines and conventions, the Government of India has framed the Juvenile Justice (Care and Protection of Children) Act, 2015.
Criminal Law draws a distinction between Juvenile offenders and adult offenders. Juveniles are children below 18 years of age. Criminal Law assumes that juveniles cannot have the same level or intensity of mens rea as adults and hence must not be punished as adults. Hence, it becomes essential to determine the juvenility of a person in order to ensure that no Juvenile is punished as an adult and no adult is able to take advantage of the special rehabilitation-centred provisions for juveniles. In today’s times, we see that juvenile crimes have been increasing substantially. Hence, the need for juvenile laws has become significant.
JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015
The Juvenile Justice Act, 2015 repealed the Juvenile Justice Act 2001. Before that 2001 Act, the Juvenile Justice Act, 1986 was applicable which was repealed by the 2001 Act. The Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter JJ Act), was drafted primarily for dealing with the offences committed by Juveniles. The provisions of the Act are rehabilitation-centred and not adversarial. Juveniles are to be tried in accordance with the provisions of the JJ Act and must be tried by the Juvenile Justice Board established under this statute.
The JJ Act aims at adopting a child-friendly approach while dealing with the offences committed by children. It also ensures that the Indian Juvenile law conforms to the United Convention on the Rights of the Child to which India acceded in December 1992.
Section 2(35) of the JJ Act defines a juvenile as a person who has not completed 18 years of age. Chapter IV of the Act deals expressly with the procedure to be followed with regards to the offences committed by Juveniles.
It is pertinent to note that Section 14(2) of the JJ Act prescribes that the cases concerning juveniles must be disposed of within 4 months. This period may be extended by the Board for up to 6 months in case of any special circumstances. Thus, it ensures speedy disposal of cases so that the children are not subjected to any sort of mental trauma due to the legal proceedings. Section 25 of the Act provides that the proceedings which were pending in the Courts before the commence of this Act must continue “as if this Act had not beenenacted”. Thus, the proceedings which were initiated under the 2000 Act will continue in accordance with the provisions of the old Act itself.
GUIDELINES FOR DETERMINING JUVENILITY
There have been several instances where adults have claimed to be juveniles in order to escape the punishment as an adult. The Courts as well as the government, taking note of this mischief, have laid down several guidelines for determining the juvenility of a person.
Section 2(13) of the JJ Act 2015 defines a child in conflict with the law as “a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence”. Thus, the age has to be determined at the time of occurrence of the offence and not at the time when the accused is presented before the court or when the application is made before the Juvenile Justice Board. Furthermore, Rule 12(7) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 also prescribe that the age of the child at the time of offence must be determined in order to establish the juvenility.
The Juvenile Justice (Care and Protection of Children) Rules, 2007, were issued by the Government as guidelines for the implementation of the JJ Act. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 deals with the procedure to be followed by the Juvenile Justice Boards, the Courts as well as the Child Welfare Committee while determining the juvenility of a person. Under this Rule, juvenility has to be determined within 30 days of the application. The Court or Juvenile Justice Board will determine the juvenility prima facie on the basis of documents submitted or the physical appearance of the juvenile. Thereafter, under sub-rule (3) of Rule 12, the juvenility has to be determined on the basis of matriculation or other equivalent certificates, birth certificate from the first school attended, or the birth certificate issued by the Municipal authority, corporation, or panchayat, as the case may be. Where none of these documents are available, a Medical Board has to be constituted for determining the juvenility. Rule 12 holds special significance as it specifies that when any document has been received under sub-rule (3), thereby proving the juvenility of the accused, the Court or the Juvenile Justice Board is to pass an order stating the age and juvenility of the offender and no further is to be continued by them.
The JJ Act, 2015 does not contain any similar rule with regards to the procedure to be followed while determining the juvenility of the accused.However, Section 94 stipulates the procedure for the determination of age where the Juvenile Justice Board or Committee is in doubt with regards to the age of the accused. The documents required are similar to that of Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007. The age determined by the Board or Committee will be final and binding. Section 94(1) of the Act provides that if the juvenility of the accused, based on his appearance, is obvious to the JuvenileJustice Board, then the Board may record the age “as nearly as may be” and shall proceed with the inquiry without undertaking any further confirmation of age. This is in line with the aim of the legislation to ensure speedy justice. Section 9(2) of the Act provides that the Court may examine such evidence as it finds necessary for determining the juvenility but affidavit will not have any evidentiary value.
Under Rule 6(6) of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, the Board must arrive at the decision with regards to the age of the accused with a majority including the principal magistrate. Furthermore, under rule 12(7), the Board must start the inquiry with an assumption of juvenility.
PRINCIPLES LAID DOWN BY THE COURT
In the recent case of Rishipal Singh Solanki v. State of Uttar Pradesh and others, the Supreme Court laid out the principles and procedures to be followed while determining the juvenility. The Court held that the defence of juvenility can be pleaded at any stage including after the conviction. Furthermore, the Court held that a claim of juvenility can be made before the Court as well as Juvenile Justice Board, with the only difference being that the Courts have to follow the procedure prescribed under Section 9 subsection (2) and (3) of the Act while the Juvenile Justice Boards have to follow the procedure stipulated under Section 94 of the JJ Act, 2015. Furthermore, the Court stated that where proceedings with regards to an offense are pending before a Court and the accused claims juvenility before the Juvenile Justice Board, the proceedings before the Court would cease if the juvenility of the accused is established by the Board. The burden of proving the juvenility is upon the accused and this burden can be discharged by submitting documents prescribed under Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 or Section 94(2) of JJ Act, 2015.
The Court also explained the difference between the JJ Act, 2000 and the JJ Act, 2015 with regards to the determination of age. The Court stated that under the 2000 Act, a Medical Board was to be constituted and its opinion was to be taken for determining the age if the relevant documents were not present. However, under the JJ Act 2015, an ossification test or other equivalent medical tests have to be conducted for determining the age.
The Court also observed that medical tests such as the Ossification test are not conclusive evidence and "cannot be the sole criterion for age determination". The Court relied on the judgment of Ram Vijay Singh vs. State of Uttar Pradesh 2021 CriLJ 2805, where the Court held that the "importance of ossification test has notundergone change with the enactment of Section 94 of the Act" and the medical tests are as "vulnerable" under the JJ Act 2015 as they were under the earlier statutes. Furthermore, the Court relied on the case of State of Madhya Pradesh v. Anoop Singh (2015) 7 SCC 733, where it was held that where the relevant documents hint in the favour of juvenility, sole reliance cannot be placed on the medical tests for deciding against the juvenility of the accused.
Moreover, the Court remarked that any public document may be admitted as evidence for proving the juvenility under Section 35 of the Indian Evidence Act.
In Arnit Das v. State of Bihar [(2005) 5 SCC 488], the Supreme Court held that "a hypertechnical approach" should not be adopted while determining the age of the person and if there are two possible opinions where one establishes the juvenility and the other does not, then in such case "the court should lean in favour of holding the accused to be a juvenile".
LANDMARK JUDGMENTS ON JJ ACT
In the case of Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 750, the Court observed that there may be instances where the birth date mentioned in the relevant documents, prescribed by the legislation as proof of age, are wrong. However, the Court or JJ Boards are not expected to conduct such a " roving inquiry". The Court further stated that only "in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for a medical determination.”
The Apex Court, in the case of Abuzar Hossain alias Gulam Hossain v. State of West Bengal(2012) 10 SCC 489, held that the defence of juvenility may be claimed at any stage including after conviction. However, where the person claims this defence after conviction, he must present some prima facie material in order to raise the presumption of juvenility and convince the court to undertake an inquiry.
Though in several judgments the Courts have held that the defence of juvenility may be pleaded at any stage, itmust preferably be raised at the trial stage itself. In the case of Mohd. Anwar v. State (NCT of Delhi), the Supreme Court held that the defence of juvenility shall be pleaded at the trial stage itself and belated claims raise doubts with regards to the "genuineness of the defence’s case".
The Supreme Court in the case of Jitendra Singh @ Babboo Singh & Anr. vs State Of U.P, held that the Board “may arrive at a prima facie conclusion on the juvenility, on the basis of his physical appearance”. Thereafter, the Board may undertake any further inquiry if there are any doubts with regards to the age of the accused. Where there are no doubts with regards to the age, the Board may determine the age on the basis of physical appearance.
The Supreme Court in the case of Pratap Singh vs State of Jharkhand & Anr., held that the JJ Act, 2000 is prospective in nature. The Court held that the provisions of the 2000 Act would be applicable only in those proceedings initiated under the 1986 Act which were pending when the 2000 Act came into force and where the accused/offender has not achieved the age of 18 years on 1st April 2001, that is, on the date, the JJ Act came into force.
This decision led to the Amendment Act, 2006 where Section 20 of the Act was amended and it stated that even in cases that were initiated under the 1986 Act, the juvenility has to be decided in accordance with the 2000 Act and the provisions of the 2000 Act have to be applied in such cases "as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed".
The JJ Act is progressive in nature and conforms to global standards and international conventions. However, there is an urgent need to implement the law in its letter and spirit. In several instances, the authorities are seen not to be conforming to the guidelines and provisions of the JJ Act. The primary reason behind this non-compliance may be the fact that the JJ Act is a remarkable distinction from the general criminal law. The police personnel and the enforcement agencies must be sensitized and trained with regards to the procedure established by JJ Act. The police personnel must also be informed about the guidelines established by Courts with regards to the determination of juvenility. If the juvenility is established with certainty at the trial stage itself, then it would avoid any ambiguity or precarity in the later stages.
In a plethora of judgments, the Supreme Court, as well as the various High Courts, have held that in case of any doubt regarding the actual date of birth or where a small margin decides the juvenility, the benefit must be given to the juvenile.Though the claim of juvenility may be preferably raised at the trial stage, there is no bar to pleading with this defence at a later stage either. In several cases, the accused has taken the plea of juvenility only before the Supreme Court and the Court has entertained and inquired into the plea. The intention of the legislature, as well as the judiciary, is to ensure that no child shall be tried as an adult. Thus, the Courts have looked upon the issue of determining the juvenility with a degree of circumspection and have laid down, from time to time, the necessary guidelines with regards to the procedures to be followed while determining the age of the accused.