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  • Writer's pictureDevika Agarwal

NCPCR Issues Guidelines for Conducting Preliminary Examination under Section 15 of Juvenile Justice Act, 2015




On 13th April, 2023, the National Commission for Protection of Child Rights (NCPCR) issued ‘Guidelines for Conducting Preliminary Assessment under Section 15 of the Juvenile Justice (JJ) Act, 2015’ (hereinafter ‘2023 Guidelines’). Section 15 of the Juvenile Justice (Care and Protection Act), 2015 (hereinafter ‘2015 JJ Act’) states that a child (above the age of 16) accused of a heinous offence may be tried as an adult after a preliminary assessment by the JJB. The preliminary assessment relates to an inquiry by the JJB into the mental and physical capacity to commit such offence by the child.


This post sets out the history of section 15 and the guidance in the 2023 Guidelines regarding the four determinants of a preliminary assessment under section 15.


The post, which is divided into two main sections, proceeds as follows: it begins by briefly outlining the juvenile justice law in India prior to 2015. The post then discusses the factors that led to the amendments to the juvenile justice law in 2015 as well as the inadequacies in the 2015 JJ Act, which finally led to the enactment of the 2023 Guidelines.


Part I: The juvenile justice law in India


The juvenile justice law in India governs inter alia children ‘alleged and found to be in conflict with law by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation’. A ‘child’ is understood as a person who has not yet completed eighteenth year of age.


Juvenile Justice Act, 2010- Prior to the enactment of the 2015 law, the Juvenile Justice Act, 2010 (hereinafter ‘2010 JJ Act’) existed. The 2010 JJ Act provided that a child who is alleged to be in conflict with law be tried by the Juvenile Justice Board (hereinafter ‘JJB’) established under the JJ Act. Notably, the JJ Act, 2010 provided significantly less stringent punishment to be imposed on a child as compared to a scenario where an adult (meaning a person above 18 years) was convicted in a court of law for the same offence. Specifically, the maximum punishment that the JJB was authorised to impose on a child found to be in conflict with law was to direct the child to be sent to a special home for a minimum period of 2 years (section 15 (1) (g) of the 2010 JJ Act).


2012 Nirbhaya incident- A need for amendment to the juvenile justice law was felt in the aftermath of the 2012 Nirbhaya gang rape in India, where the most brutal of the accused was a few months short of turning eighteen and, therefore, sentenced to a mere three years in a juvenile home (under the 2010 JJ Act in effect at that time). The public outcry following the release of the juvenile in the Nirbhaya case after serving the three year-sentence resulted in the Indian Parliament enacting the 2015 JJ Act.


2015 JJ Act- An important amendment brought into the juvenile justice law vide the 2015 JJ Act relates to the commission of heinous offences by a person below the age of 18 (section 15). A ‘heinous offence’ under the JJ Act ‘includes the offences for which the minimum punishment under the Indian Penal Code or any other law for the time being in force is imprisonment for seven years or more.’ Section 15 states that a child above the age of 16 accused of a heinous offence may be tried as an adult after a preliminary assessment by the JJB. Under section 15, the JJB shall conduct a preliminary assessment with respect to the following 4 aspects: (1) the mental and (2) physical capacity of the child to commit such offence; (3) the ability to understand the consequences of the offence; and (4) the circumstances in which he allegedly committed the offence (emphasis supplied).


Under section 15 of the 2015 JJ Act, in a case where a child above the age of 16 is alleged to have committed a heinous offence, the JJB may pass an order that ‘there is a need for trial of the said child as an adult’ and accordingly transfer the trial of the child to the Children’s Court having jurisdiction to try such offences under section 18(3) (emphasis supplied). This position may be contrasted with the earlier law (2010 JJ Act) wherein a child (even if above the age of 16) accused of a heinous offence could not be tried as an adult.


Part II: Guidelines for conducting preliminary assessment under section 15


Need for explicit guidelines for the JJB- However, even after the enactment of the 2015 JJ Act, a gap remained: there were no guidelines for the JJB on making the preliminary assessment stated in section 15. The only guidance that section 15 gives to the JJB is that the Board ‘may take the assistance of experienced psychologists or psycho-social workers or other experts’ for making such an assessment (proviso to section 15).


The problems due to the absence of guidelines for conducting the preliminary assessment in the past have been documented, and legal experts have inter alia questioned the constitutionality of the preliminary assessment which allegedly violates the right of an individual against self-incrimination (viz. Article 20 (3) of the Constitution of India). As a 2019 report by UNICEF and National Law University Odisha on the practice of preliminary assessment noted, the JJB in 83% of cases had taken expert assistance to make a preliminary assessment. However, the experts relied upon by the JJB were “mostly medical doctors or psychology teachers without having knowledge on clinical child psychology”(emphasis supplied). The report further noted that in the absence of guidelines, “the exercise is a formal discussion with professional experts who do not have standard tools to apply.” (emphasis supplied).


NCPCR’s 2023 Guidelines- NCPCR’s 2023 Guidelines arose out of the judgment of the Supreme Court (SC) in Barun Chandra Thakur v. Master Bholu (Criminal Appeal №950/2022). In Barun Chandra, the SC noted that it was “expedient that appropriate and specific guidelines” under section 15 be put in place. However, the Court left it open for the NCPCR and the State Commissions for Protection of Child Rights to consider issuing guidelines or directions to assist or facilitate the JJB in making the preliminary assessment under section 15.


At the outset, the Guidelines state that they do not provide or suggest any specific assessment tool as the existing mechanisms such as Social Investigation Report (SIR) and Social Background Report (SBR) are exhaustive. The SIR is meant to ascertain the circumstances in which the alleged offence was committed (section 8(3)(e) of the JJ Act, 2015). The SBR describes the socio-economic condition of the juvenile (section 13(1)(ii) of the JJ Act, 2015).


The Guidelines reiterate the 16 principles of care and protection of children that guide the implementation of the JJ Act, 2015 (section 3), and state that they are guiding principles for the Guidelines as well. These include inter alia ‘principle of best interest’, ‘principle of diversion’ and ‘principles of natural justice’.


Guidance for the determinants of preliminary assessment- Paragraph 2.4 of the Guidelines lays out in detail the guidance for the four determinants of a preliminary assessment under section 15 of the JJ Act, 2015.


(1) Physical capacity of the child to commit the offence: Specifically, the JJB must inquire into the ‘child’s locomotor abilities and capacities’ that are required to carry out the offence. The Guidelines preclude the JJB from determining the physical age of the child at this stage as the age determination is done before the preliminary assessment by the JJB.


(2) Mental capacity of the child to commit the offence: The mental capacity refers to the ‘child’s ability to make social decisions and judgments’. To make an assessment on the mental capacity of the child, all the variables in the ‘mental health and psychosocial assessment’ are important including substance abuse problems, experience of abuse and trauma, intellectual disability, and neglect or poor supervision by family or poor role models.


(3) The circumstances in which the child allegedly committed the offence: This determinant focusses on ‘psychosocial vulnerabilities, including life events and mental health problems that the child is afflicted with’ (factors relating to family, school, peer relationships, trauma and abuse, mental health, and substance use). Instead of the ‘immediate circumstances of the offense [sic] itself’ (meaning a cross-sectional perspective of circumstances of the offence), a longitudinal perspective is taken. The longitudinal perspective refers to ‘a whole plethora of other circumstances that have been occurring over relatively long time periods’ since early childhood in the child’s life.


(4) Ability to understand the consequences of the offence: This determinant takes into account the child’s knowledge and/or understanding of social consequences (how the society will perceive the offence and consequently think of the child), interpersonal consequences (how the child’s behaviour will alter the child’s personal relationships in terms of loss of trust/affection/respect of family and friends) and legal consequences of the act (knowledge of the relevant laws relating to heinous offences and penal consequences of the offence).


Other guidance given by the Guidelines- Apart from the guidance on the four determinants, the Guidelines also lay out the procedural aspects of making the preliminary assessment including sittings for conducting preliminary assessment, role of JJB and other experts, and the period for completion of preliminary assessment.


Additionally, paragraph 4.4 of the Guidelines lays down that for making the preliminary assessment, the JJB and experts shall also consider the SIR (excluding any confessional statement), SBR, Individual Care Plan, statement of witnesses made by Child Welfare Police Officer during the investigation, and interactions with any ‘person deemed appropriate for giving insights regarding the child’. The Guidelines prohibit the final report of the JJB from containing any incriminating statement or document. Ostensibly, this prohibition safeguards the constitutional right of the child against self-incrimination.


Lastly, the Annexures contain suggestive questions to guide the preliminary assessment, along with illustrative examples on the application of the guidance.


Analysis- The Guidelines for the determinants of preliminary assessment draw on the ‘Guidance Notes on Psychosocial and Mental Health Assessment for Children in Conflict with Law’ developed by the Department of Child and Adolescent Psychiatry at National Institute of Mental Health and Neurosciences (NIMHANS) in Bengaluru for all four determinants under section 15. The NIMHANS Guidance Notes were also cited by the SC in Barun Chandra to expose the deficits in the approach taken for conducting the preliminary assessment in that case. For instance, to assess ‘mental ability’, the JJ Board in the instant case merely considered the mental IQ of the defendant. The Guidelines, on the other hand, encompass a more comprehensive understanding of mental ability; specifically, to determine mental ability, a gamut of factors would be relevant including substance abuse problems, experience of abuse and trauma, intellectual disability, and neglect or poor supervision by family or poor role models.


Overall, the Guidelines address the concerns raised in Barun Chandra by giving distinct meaning to each of the four determinants. In Barun Chandra, the preliminary assessment of the child treated ‘mental capacity’ and the ‘ability to understand the consequences of the offence’ as one and the same. The Guidelines also encompass an important aspect of the Court’s ruling in Barun Chandra related to whether the proviso to section 15 is directory or mandatory in nature. The SC ruled that in case the Board does not have at least one member who is a practising professional with a degree in child psychology or child psychiatry, it is mandatory for the Board to take the assistance of experienced psychologists or psycho-social workers or other experts for making the preliminary assessment.


In ensuring a meticulous psychological evaluation of the child for making the preliminary assessment, the Guidelines uphold the spirit of the juvenile justice law, which is to adjudicate and dispose of matters in the best interest of children.


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