Today's Editorial

Today's Editorial - 21 January 2023

The NCPCR draft guidelines

Source: By Sadaf Modak: The Indian Express

The National Commission for Protection of Child Rights (NCPCR) has come up with draft guidelines on the preliminary assessment of whether certain minors are to be tried under law as adults in particular cases, under the Juvenile Justice (Care and Protection of Children) Act. The 12-page draft guidelines, prepared after consultation with experts, are open for inputs and comments from the general public till 20 January.

What is preliminary assessment as per the JJ Act?

Earlier, all children under the age of 18 were considered minors by the law, but through an amendment in 2015, a provision was added to the JJ Act for trying a child in conflict with the law as an adult. Under this, a child in the age group of 16-18 years could be tried as an adult in case of heinous offences. Section 15 (1) of the Act states that the Juvenile Justice Board shall conduct a preliminary assessment to determine whether to try such a child as an adult or a minor.

The Act directs that the Board shall consider the mental and physical capacity of the child for committing the alleged offence, the ability to understand the consequences of the offence, and the circumstances in which the offence was committed. It states that the Board can take the assistance of experienced psychologists or psychosocial workers or other experts. The Act also gives a disclaimer that the assessment is not a trial, but is only to assess the capacity of the child to commit and understand the consequences of the alleged offence.

After the assessment, the Board can pass an order saying there is a need to try the said child as an adult and transfer the case to a children’s court with the relevant jurisdiction. If tried as a minor, the child could be sent to a special home for a maximum of three years. If tried as an adult, the child can be sentenced to a jail term, except being sentenced to death or life imprisonment without the possibility of release.

Why has the NCPCR come up with draft guidelines now?

On 13 July 2022, the Supreme Court while hearing a case related to the murder of a Class 2 student in Haryana, allegedly by a 16-year-old, said the task of preliminary assessment under the J J Act is a “delicate task”. It said that the consequences of the assessment on whether the child is to be tried as an adult or a minor are “serious in nature and have a lasting effect for the entire life of the child”.

It said that the assessment requires expertise and directed that appropriate and specific guidelines be put in place. It had left it open to the Central government and the National and State Commissions for the Protection of Child Rights to consider issuing the guidelines.

The NCPCR has framed guidelines which describe the key procedures to conduct the preliminary assessment. It said that while the course of assessment may differ from child to child, the guidelines are meant to frame essential components and the basic mechanisms to address any ambiguity.

What do the draft guidelines say?

The draft relying on already existing provisions in the Act says that the preliminary assessment has to determine four aspects:

  1. Physical capacity of the child:To determine the child’s ‘locomotor’ abilitiesand 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.
  2. Mental capacity:To determinethe child’s ability to make social decisions and judgments. It also directs assessments pertaining to mental health disorders, substance abuse, and life skills deficits.
  3. Circumstances in which the offence was allegedly committed:Psychosocial vulnerabilities of the child. This is to include life events, any trauma, abuse, and mental health problems, stating that theoffence behaviour is a cumulative consequence of a lot of other circumstances.
  4. Ability to understand the consequences of the alleged offence:To determine thechild’s knowledge or understanding of the alleged offence’s social, interpersonal and legal consequences. These include what others will say or perceive him, how it might affect his personal relationships and the knowledge of relevant laws, respectively.

It also states that the experts must be given an optimal opportunity to interact with the child to build a rapport. Experts can be from the field of child psychology and psychiatry. It also states they must undergo regular training. Additionally, a copy of the assessment must be given to the child and a legal aid counsel must be present during the assessment. it must be within three months of the child being produced before the Board.

Other reports that the Board is to rely on include the Social Investigation ReportSocial Background Report an Individual Care Plan, statements of witnesses and interaction with parents, guardians, school staff, peer groups and neighbours.

What had the Supreme Court said about the preliminary assessment?

In the Haryana case, the Board had decided in December 2017 to treat the 16-year-old as an adult. The order was challenged by his parents before the Punjab and Haryana High Court. In October 2018, the High Court directed the Board to make a fresh assessmentstating irregularities, including that the documents relied on by the Board were not provided to the child, the reports of experts were incomplete and a recommendation by an expert to refer the child to a higher-level organisation was not acted upon by the Board.

The victim’s family and the CBI filed appeals before the Supreme Court. In 2022, the SC dismissed the appeal and directed a fresh reconsideration by the Board.

It pointed out that the task of preliminary assessment had its own implications for the trial. It then noted that the Act or the Model Rules of the Act do not lay down guidelines or a framework to facilitate the Board in making a proper assessment. It said that the obligation of the Board, consisting of one judicial member and two others, to conduct the assessment largely depended on the Board’s wisdom, without there being any guidelines on how to conduct it. In the absence of any guidelines, the Board has to use its discretion.

It said that the assessment had been a question of debates, analysis and research and referred to contents from various sources, including a detailed study by the National Law University, Orissa, and Guidance Notes by NIMHANS. The draft guidelines by the NCPCR also refer to the SC’s excerpts from these reports.

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