JUVENILE JUSTICE BILL 2014 VIOLATES INDIA S OBLIGATIONS UNDER THE UN CONVENTION ON THE RIGHTS OF THE CHILD 1

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1 JUVENILE JUSTICE BILL 2014 VIOLATES INDIA S OBLIGATIONS UNDER THE UN CONVENTION ON THE RIGHTS OF THE CHILD 1 Having ratified the UN Convention on the Rights of the Child, 1989 (UNCRC) in 1992, India is bound to discharge its obligation under the Convention. Articles 37 and 40 of the Convention articulate the principles that must govern and guide the administration of juvenile justice. The Committee on the Rights of the Child (CRC) has also issued General Comment No. 10 on juvenile justice aimed at clarifying the obligations so as to help States parties to achieve compliance with the convention. CCL NLSIU is of the opinion that the provisions related to transfer of juveniles to the adult system in the Juvenile Justice (Care and Protection of Children) Bill, 2014 violate the following rights contained in the UNCRC: 1. Non-discrimination (Article 2) Article 2 of the UNCRC requires all States parties to abide by the principle of non-discrimination and ensure that all children in conflict with the law are treated equally. It follows that disadvantageous treatment of children based on their age and the nature of offence they allegedly commit would constitute a violation of Article 2. In this context, in General Comment No. 10, the CRC has stated the implication for juvenile justice: 37. The Committee wishes to remind States parties that they have recognized the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in accordance with the provisions of article 40 of CRC. This means that every person under the age of 18 years at the time of the alleged commission of an offence must be treated in accordance with the rules of juvenile justice. 38. The Committee, therefore, recommends that those States parties which limit the applicability of their juvenile justice rules to children under the age of 16 (or lower) years, or which allow by way of exception that 16 or 17-year-old children are treated as adult criminals, change their laws with a view to achieving a non-discriminatory full application of their juvenile justice rules to all persons under the age of 18 years. The Committee notes with appreciation that some States parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21, either as a general rule or by way of exception. 50 Countries 2 that treat juveniles as adults based on the nature of offence and/or their age have been found to be non-compliant with the UNCRC by the CRC. The CRC has issued recommendations to them to reform their discriminatory laws to ensure that all persons below the age of 18 years are dealt with exclusively under the juvenile justice system. Even the United States of America, which has not ratified the UNCRC, but has ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 2000, has been asked to treat all children without exception under the juvenile justice system. In 2013, the Committee voiced its concern about the continued detention of child soldiers in United Stated administered detention facilities in Iraq and Afghanistan and the deprivation of their rights and urged them to ensure that all children under the age of 18 be handled by the juvenile justice system in all circumstances and 1 Additional written submission by the Centre for Child and the Law, National Law School of India University to the Departmentally related Parliamentary Standing Committee, reviewing the Juvenile Justice (Care and Protection of Children) Bill 2014, in January Angola, Antigua and Barbuda, Azerbaijan, Bahrain, Bangladesh, Barbados, Belgium, Bolivia, Canada, Cape Verde, Cuba, Cyprus, Denmark, Ecuador, Eritrea, France, Greece, Grenada, Guyana, India, Iran, Japan, Kenya, Libya, Madagascar, Malta, Mexico, Montenegro, Mozambique, Netherlands, Pakistan, Portugal, Qatar, Rwanda, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Solomon Islands, Sri Lanka, Suriname, Syrian Arab Republic, Tanzania, The Former Yugoslav Republic of Macedonia, Tunisia, Turkmenistan, United Arab Emirates, United Kingdom, Viet Nam, Yemen.

2 presume young persons to be children if in doubt regarding their age and that children are only detained as measures of last resort and for the shortest possible period of time and that in all cases alternatives to detention are given priority. 3 The Inter-American Commission on Human Rights 4 and the Inter-American Court on Human Rights 5 have unequivocally condemned the exclusion of children below 18 years from the juvenile justice system and have considered them to be a violation of the UNCRC as well as the American Convention on Human Rights. In February 2000, the CRC asked India to rectify the discriminatory definition of juvenile under the Juvenile Justice Act, 1986 as per which juvenile was defined to mean a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. 6 In December 2000, the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted and this recommendation was accepted while defining the term juvenile. On 13 June 2014, the CRC expressed its concerns about indications that the State party plans to lower the minimum age of criminal responsibility set in the Juvenile Justice Rules of It urged India to bring the juvenile justice system fully into line with Articles 37, 29, and 40 of the Convention and with the standards stipulated in General Comment No.10. It also urged India to Give effect to the Juvenile Justice Rules of 2007 establishing the minimum age of criminal responsibility at 18 and maintain it at an internationally acceptable level The JJ Bill, 2014 that proposes to try and punish children between 16 and 18 years, alleged to have committed a heinous offence, as adults grossly violates Article 2 of the Convention and blatantly disregards the Concluding Observations made by the CRC in 2000 and It also incorporates punitive goals that have no place in the juvenile justice system envisaged under the UNCRC. 2. Best interests of the child (Article 3) Article 3 of the UNCRC would require that the best interests of the child should be a primary consideration in the administration of juvenile justice. The CRC has expressly tackled concerns about proportionality and public safety in connection with juveniles and serious crimes and emphasized the principles that must underpin the State s response: In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration. The perceived conflict between concerns about public safety and the best interest of juveniles arose earlier in the context of trials of children under an anti-terror law. In 2004, in its Concluding 3 Committee on the Rights of the Child Optional Protocol on the involvement of children in armed conflict Concluding observations on the second report of the United States of America, adopted by the Committee at its sixty-second session (14 January 5 February 2013), CRC/C/OPAC/USA/CO/2, 28 January 2013, Para Inter-American Commission on Human Rights Rapporteurship on the Rights of the Child, Juvenile justice and human rights in the Americas, OEA/Ser.L/V/II. Doc. 78, 13 July 2011 at para I/A Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, Series A No. 17, paras. 37 and 53; and Case of the Street Children (Villagrán-Morales et al.) v. Guatemala. Merits. Judgment of November 19, Series C No. 32, para Concluding observations of the Committee on the Rights of the Child: India, CRC/C/15/Add.115, 23 February 2000, Para 81.

3 Observations on India, 7 the CRC expressed concern about the prosecution of children by special courts under the Prevention of Terrorism Act, 2002 in contravention of Articles 37, 40 and 39 of the UNCRC. In response, India amended the JJ Act in 2006 and introduced Section 1(4) which unequivocally clarified that the JJ Act would override all other laws with regard to detention, prosecution, penalty or sentence and apply to all cases of children in conflict with the law without any exception. The JJ Bill wrongly posits the issue of serious offences by children as a conflict between public safety, justice and children s rights. The CRC has rightly observed that the legitimate aim of the preservation of public safety. is best served by a full respect for and implementation of the leading and overarching principles of juvenile justice as enshrined in CRC. 8 Sending juveniles who allegedly commit serious crime to jail is not in the interest of children, families or the wider community as a whole. 3. Right to life, survival and development (Article 6) All laws and policies of the State must further the right to life and development of a child. The corollary is that laws should not sanction measures that can adversely impact the development or infringe the right to life, even in the context of juvenile justice. In General Comment No.10, the CRC also strongly recommended that State Parties abolish all forms of life imprisonment for offences committed by persons under the age of Following up on this standard, the Committee on the Rights of the Child has made 37 recommendations to 30 States to abolish life imprisonment for child offenders. 10 The UN Human Rights Council has also called on States to ensure that legislation and practices do not permit life imprisonment for offences committed by persons under 18 years of age in two separate resolutions 11 and the UN General Assembly has encouraged States to consider repealing all forms of life imprisonment including life imprisonment with the possibility of release for offences committed by persons under Under Section 22 of the Bill, life imprisonment with the possibility of release can indeed be imposed on children above 16 years. This violates the recent normative developments at the international level that prohibit the imposition of any form of life imprisonment. 4. Dignity (Article 40(1)) According to the UNCRC, all children in conflict with the law must be treated in a manner that is consistent with their sense of dignity and worth and reinforces their respect for human rights and fundamental freedoms. All forms of violence against children in conflict with the law must be 7 CRC/C/15/Add.228, 26 February GC 10, Para 14 9 General Comment No.10 (2007) Children s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para Antigua and Barbuda (2004); Argentina (2010); Bahrain (2011); Bangladesh (2003, 2009); Belgium (1995); Belize (2005); Burkina Faso (1994, 2002); China (1996, 2005); Dominica (2004); Ethiopia (1997, 2001); Fiji (2014); Gambia (2001); Jamaica (2003); Japan (2004); Liberia (2003, 2012); Malawi (2009); Malaysia (2007); Netherlands (1999, 2004, 2009); Niger (2009); Nigeria (2010); Qatar (2001); Saint Lucia (2005, 2014); Singapore (2011); Solomon Islands (2003); Sudan (2002); Tanzania (2001); Trinidad and Tobago (2006); Tuvalu (2013); Zambia (2003); Zimbabwe (1999). 11 Human rights in the administration of justice, including juvenile justice, A/HRC/24/L.28, adopted on , para. 22; Human rights in the administration of justice, including juvenile justice, A/HRC/25/L.10, adopted on , para.8(g). 12 UNGA A/C.3/67/L.34, para. 18: States to ensure that, under their legislation and practice, neither capital punishment nor life imprisonment without the possibility of release, nor corporal punishment as a sentence or as a disciplinary measure, is imposed for offences committed by persons under 18 years of age, and invites States to consider repealing life imprisonment with the possibility of release for offences committed by persons under 18 years of age.

4 prevented and prohibited during the processes under the juvenile justice system. The treatment must ensure promotion of their reintegration into society and must also take into account the child s age. Trial and sentencing by an adult court offend the obligation under Article 40(1) to ensure that the child is treated with dignity and also that his or her reintegration into society is facilitated. The JJ Bill, 2014 ignores the aims of reintegration and restoration of a child in conflict with the law by providing for their transfer to jail when they turn 21years old, based on a highly arbitrary determination of their capability to make meaningful contributions to society. Instead of adhering to its obligation to ensure re-integration, the State has now paved the way for alienation and criminalization through exposure to the adult criminal justice system. 5. Deprivation of liberty to be a measure of last resort (Article 37(b)) According to Article 37(b) of the UNCRC, deprivation of liberty should be used only as a measure of last resort and for the shortest possible period of time. According to the CRC, the two key principles that must govern the deprivation of liberty are 13 : (a) the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; and (b) no child shall be deprived of his/her liberty unlawfully or arbitrarily. Under Section 20(3) of the JJ Bill, 2014 detention of a child between 16 and 18 years found to have committed a heinous offence is the only possible disposition and institutionalization is thus the only option and not the last resort. Further, the Bill mandates their detention in a place of safety till they attain the age of 21 years, which is in gross violation of the requirement that the detention be for the shortest appropriate period. Their subsequent transfer to an adult jail after they attain 21 years is again a blatant violation of Article 37(c) elaborated below. The basis of the deprivation of liberty under the Bill is a preliminary inquiry by the Juvenile Justice Board under Section 16(1) and a determination by the Children s Court under Section 21(1), both of which are highly arbitrary inquiries that do not meet the standards of a just, fair and reasonable process. Section 16(1) requires JJBs to conduct a preliminary inquiry of the mental capacity of the child, for which they can take the assistance of experienced psychologists, psycho-social workers and other experts. According to scientific studies, such an accurate assessment of mental capacity/maturity is fraught with errors and is too uncertain a process to form the basis of a transfer. 14 Further, whether or not a person has undergone reformative changes or can be a contributing member of the society under Section 21, is a decision that is highly subjective and prone to arbitrariness. This is all the more questionable, given that the responsibility for reformation rests not just with the individual child alone, but on the government functionaries responsible for facilitating the same. Undoubtedly, the provisions of the JJ Bill will result in class, caste and religionbased discrimination of children under the garb of assessing their potential contribution to society and extent of reformation. 13 GC 14, Para Elizabeth S. Scott and Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, The Future of Children, VOL. 18 NO. 2, FALL 2008, p.15 at 24-25

5 The UNCRC also requires State Parties to develop a host of non-institutional measures under Article 40(4) to deal with children in conflict with law. This would entail care, guidance, counseling, education, probation, foster care, supervision, and other alternatives. Section 19(1) of the JJ Bill, 2014 deprives children above 16 years who have committed a heinous offence of the various rehabilitative dispositions that are available for other children. It also denies them the right to orders aimed at care, protection, development, treatment and social re-integration all of which are a part of the legislative commitment as stated in the Preamble. 6. Treatment and condition (Article 37(c)) The UNCRC expressly requires all children deprived of their liberty to be separated from adults. The CRC has clarified that this separation is not merely technical and does not mean that a child placed in a facility for children has to be moved to a facility for adults immediately after he/she turns 18. The Committee has expressed deep concern over the continued detention of children with adults in adult prisons. It has also continuously emphasized that detention be applied as a measure of last resort and for the shortest possible period of time and be reviewed on a regular basis with a view of withdrawing it. 106 Countries 15 have also been urged to continue efforts to ensure that children deprived of liberty or in rehabilitation centres or in detention facilities are never kept with adults, that they have a safe, child-sensitive environment, that regular contact with their families is encouraged and that they are provided with food, education and vocational training. Countries have been asked to promote alternative measures to detention such as diversion, probation, counselling, community service or suspended sentences, wherever possible. On 13 June 2014, the CRC s concluding observation on India s juvenile justice system was that it must ensure ensure ageappropriate separation of children in Observation and Special Homes and that children in conflict with the law are not detained together with children in need of protection or with adults and that detention conditions are compliant with international standards, including with regard to access to education and health services. 16 The Committee has also specified that the physical environment in which children are detained must be in consonance with the rehabilitative aims of residential placement, and due regard must be given to their needs for privacy, sensory stimuli, opportunities to associate with their peers, and to participate in sports, physical exercise, in arts, and leisure time activities In gross disregard of Article 37(c) and the CRC s concluding observation, the Bill takes an untenable position on the separation of children from adults by proposing that the former be transferred to 15 Afghanistan, Albania, Algeria, Angola, Antigua and Barbuda, Argentina, Armenia, Austria, Azerbaijan, Bahamas, Bangladesh, Belgium, Belize, Bhutan, Bosnia & Herzegovina, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cambodia, Cameroon, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Croatia, Cuba, Denmark, Djibouti, Dominica, Ecuador, Egypt, Estonia, Finland, Gabon, Gambia, Ghana, Grenada, Guatemala, Iceland, India, Indonesia, Jamaica, Japan, Kenya, Kiribati, Lao People s Democratic Republic, Libya, Luxembourg, Madagascar, Malawi, Maldives, Mali, Marshall Islands, Mauritania, Mongolia, Montenegro, Mozambique, Myanmar, Namibia, Nepal, New Zealand, Nicaragua, Niger, Nigeria, Norway, Pakistan, Panama, Papua New Guinea, Paraguay, Philippines, Qatar, Rwanda, Romania, Russia, Saint Vincent and the Grenadines, Samoa, Sao Tome & Principe, Senegal, Seychelles, Sierra Leone, Sri Lanka, Suriname, Swaziland, Switzerland, Syrian Arab Republic, Tajikistan, Tanzania, Thailand, The Former Yugoslav Republic of Macedonia, Timor Leste, Togo, Trinidad and Tobago, Tunisia, Turkmenistan, United Arab Emirates, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Zambia. 16 Committee on Rights of the Child, Concluding observations on the consolidated third and fourth periodic reports of India, 13 June 2014, Para 88(a &e).

6 adult prisons when they complete 21 years of age (Section 20(3)). Such a transfer is incompatible with the clear prohibition on the detention of children with adults under the UNCRC. It is also opposed to the principle that a person should be dealt with as a juvenile based on his or her age on the date of the crime. A juvenile cannot be treated as an adult on attainment of 21 years for an offence that was committed when the juvenile was below 18 years. 7. No retroactive juvenile justice (Article 40(2)(a)) In gross violation of the prohibition on retroactive juvenile justice, Section 7 of the Bill creates an artificial distinction between children apprehended before 21 years and those apprehended after 21 years and allows the latter to be tried and punished as adults. This provision also violates Article 15 of the International Covenant on Civil and Political Rights, a non-derogable right under the Convention. Article 15(1) states: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. Further, Section 7 also enlarges the scope of the transfer provisions in the Bill to include persons committing not only heinous offences, but also serious offences within the mandate of compulsorily trying them as adults. Serious offences as per section 2(54) are offences that carry punishment of 3 to 7 years. There is no logical reason why persons apprehended for serious and heinous offences after they have crossed 21 years should face serious disadvantage or how this severe provision furthers the goals of criminal justice. 8. Presumption of innocence (Article 40(2)(b)(i) Section 16(1) of the JJ Bill requires the JJB to assess whether a child who has committed a heinous offence has the physical and mental capability to commit the offense, along with the circumstances in which he has committed the offence which implies an assumption that the child has already committed the alleged offence. This inquiry essentially legitimizes the prejudging of the outcome of the trial by the JJB and is in complete violation of the presumption of innocence under Article 40(2)(b)(i). 9. Right to privacy (Articles 16 and 40(2)(b)(vii)) The UNCRC requires the protection of a child s right to privacy during all stages of the proceedings and in the context of juveniles this entails protection of their identity from the media and the public. The CRC defines all stages of the proceedings to include from the initial contact with law enforcement (e.g. a request for information and identification) up until the final decision by a competent authority, or release from supervision, custody or deprivation of liberty. 17 Disclosure of their identity will detract from attempts at reintegration and expose them to stigma, labeling, or discriminatory treatment. Section 25(3) of the JJ Bill requires the Children s Court to preserve and not destroy the records of a case in which a child is sent to a jail in violation of the right to privacy available to all children alleged to be or found to be in conflict with the law. Conclusion It is evident from the CRC s General Comment and Concluding Observations that all other considerations howsoever legitimate, will have to be overridden by what is in the best interests of the child. Concerns about public safety or the gravity of offence cannot be the basis for reenactment of a law that pledges to protect and promote the rights of children by disposing matters in their best interest. 17 GC 14, para 64.

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