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Conflict With Law: Contrary To The Spirit Of Juvenile Justice Mandatory Minimum
Sentence for a Child in Conflict with Law: Contrary to the Spirit of Juvenile Justice by
Maharukh Adenwalla* and Gayatri Virmani** Click to share on Facebook (Opens in
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Published on June 6, 2023By Bhumika Indulia Advertisement The Constitution of
India1 treats children as a distinct category requiring special protection.2 That child
offenders should be treated differently from adults was the recommendation of the
Indian Jail Committee Report 1919-1920.3 Consequently, Children Acts were
enacted to deal with child offenders, which through the years underwent
amendments and replacements. The prevailing legislation dealing with children
alleged to have committed or found to have committed an offence is the Juvenile
Justice (Care and Protection of Children) Act, 20154 (the JJ Act, 2015). Public outcry
after the Nirbhaya case5 of 2012 triggered an overhaul of the then existing juvenile
justice legislation, resulting in enactment of the JJ Act, 2015. It was this 2015 Act
which for the first time allowed for transfer of the trial of a child in conflict with law
(CCL) from the Juvenile Justice Board (JJB) to the Children's Court.6 Under the new
Act, a CCL who has completed sixteen years of age and alleged to have committed
a heinous offence7 could now be shifted out of the juvenile justice system, after
conducting a preliminary assessment.8 The object of juvenile justice legislation is
rehabilitative, and not penal, in nature. Sections 18(1) and (2) of the JJ Act, 20159
lists the orders that may be passed by the JJB when a CCL is found to have
committed the offence — the JJB has the option to select the most suitable order for
rehabilitation of that particular CCL, such as, admonition and counselling,
performing community service, detention in a Special Home. The legislation is
seemingly silent on what order may be passed by the Children's Court on finding
the CCL to have committed an offence. Is it that the Children's Court is bound by the
punishment prescribed under the relevant criminal law for the offence committed or
may the Children's Court impose less than the mandatory minimum sentence? The
Supreme Court has repeatedly held that courts have the discretion to impose
punishment “subject to any mandatory minimum sentence prescribed by the
law”.10 The Supreme Court on referring to previous judgments held “that the court
cannot impose less than the minimum sentence”.11 The Supreme Court opined that
this embargo cannot be overridden by any court, including the Supreme Court
under Article 14212 of the Constitution.13 That may be the case for an adult
offender, but should the same apply to a CCL? Is the Children's Court bound to
impose the mandatory minimum sentence upon a CCL? Answer to both these
questions is a NO — the Children's Court is not so obligated. It is the intrinsic
difference between a child and an adult that enables one to categorically say NO.
The purpose of enacting distinct legislation for CCLs is that they are less culpable
and more amenable to reformation and rehabilitation than adults. There are those
who advocate that a child who is capable of committing a brutal crime should be
treated as an adult, for such CCL by his actions reveals himself to be an adult.
Response to this contention is that an adolescent is, of course, responsible for the
crime committed, but due to his developmental immaturity and age-related traits,
which are transitory, should be treated differently from an adult offender sentenced
for a similar crime. On the international platform, the United Nations Convention on
the Rights of the Child (UNCRC) expresses that CCLs should “be treated in a manner
… 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”.14
Towards this understanding, the Committee on the Rights of the Child (the CRC)
elaborates, “Children differ from adults in their physical and psychological
development. Such differences constitute the basis for the recognition of lesser
culpability, and for a separate system with a differentiated, individualised
approach .”15 Studies on brain science too indicate “that adolescents are less
psychosocially mature than adults, they are likely to be deficient in their decision-
making capacity, even if their cognitive processes are mature (Cauffman &
Steinberg, 2000; Scott et al., 1995; Steinberg & Cauffman, 1996).”16 Moreover, it is
argued by Steinberg & Scott, “adolescent criminal conduct is driven by transitory
influences”. Steinberg & Scott, in conclusion, state, “In our view, however, there is
sufficient indirect and suggestive evidence of age differences in capacities that are
relevant to criminal blameworthiness to support the position that youths who
commit crimes should be punished more leniently than their adult counterparts” —
they base their conclusion on scientific evidence that adolescents are less
psychosocially mature than adults, that they are likely to be deficient in their
decision-making capacity, even if their cognitive processes are mature.17 The
Supreme Court in several judgments has acknowledged the rationale for treating
CCLs differently from adults. In 1982, the Supreme Court observed18: “28. …
Children Act was enacted to protect young children from the consequences of their
criminal acts on the footing that their mind at that age could not be said to be
mature for imputing mens rea as in the case of an adult.” That, “The justice system
as available for adults is not considered suitable for being applied to juveniles” and
that the juvenile justice system is “in keeping with the developmental needs of the
child found in any situation of social maladjustment ”, was noted in Pratap Singh v.
State of Jharkhand19. In Subramanian Swamy v. Raju20, on scrutinising scientific
material regarding brain development, the Supreme Court said: “37…The works and
opinions placed goes to show that studies of adolescent brain anatomy clearly
indicate that regions of the brain that regulates such things as foresight, impulse
control and resistance to peer pressure are in a developing stage up to the age of
18. These are normative phenomenon that a teenager cannot control and not a
pathological illness or defect.” Further, in 2020, the Allahabad High Court has
judiciously stated21: “114. The personality of a child is in constant evolution and its
character traits are not permanent. The causes which impel a child to be on the
wrong side of law or commit deviant acts are often traceable to its environment. A
child has no control over its environment and its deviant behaviour is reversible. A
child’s conduct is capable of correction and a child is reformed over the years. Good
authority in law and the field of child psychology has concluded that the character
traits which impelled a child into a criminal act are transient and will be reformed
with age.” The JJ Act, 2015 reflects that though a CCL's trial is shifted from the JJB,
such CCL is not to be treated in the same manner as an adult — the JJ Act, 2015
itself mentions the procedure to be followed in such event, which is very different
from that of an adult. Firstly, transfer of trial is an exception to the rule that CCLs
should be dealt within the juvenile justice system22 and detailed procedure has
been prescribed for the JJB to strictly follow prior to passing an order under Section
18(3) of the JJ Act, 2015.23 Secondly, upon transfer, it is not the court that has
jurisdiction to entertain an adult's trial for such offence, namely, the Sessions Court,
but a specially designated court, namely, the Children's Court, that is empowered to
conduct a transferred CCL's trial. Thirdly, upon the CCL's trial being transferred, the
Children's Court shall first conduct a hearing to decide whether that CCL should be
tried by the Children's Court as a child or as an adult.24 Fourthly, the Children's
Court should at the time of sentencing a CCL who is being tried as an adult,
consider the “special needs of the child”.25 Fifthly, upon sentencing, such CCL is
sent to place of safety to undergo sentence,26 and not to prison. Sixthly, on
attaining twenty-one years, the Children's Court may suspend remainder of the
sentence and release the CCL. The Children's Court is instructed to “pass
appropriate orders after trial subject to the provisions of this section27 and Section
2128,29 considering the special needs of the child, the tenets of fair trial and
maintaining a child-friendly atmosphere”30 — the words “special needs” denotes
that the characteristics associated with adolescence should be considered during
sentencing. Furthermore, the Children's Court is required to adhere to the general
principles to be followed in administration of the Act,31 inter alia, principle of best
interest, principle of family responsibility, positive measures, principle of
institutionalisation as a measure of last resort, principle of repatriation and
restoration and the principle of fresh start. These principles unambiguously indicate
that the factors to be considered at the time of sentencing a CCL are very different
from that of an adult. That CCLs are exempted from imposition of the mandatory
minimum sentence prescribed for adults is reflected also under Section 21 of the JJ
Act, 2015. Order that may not be passed against a child in conflict with law — “no
child in conflict with law shall be sentenced to death or for life imprisonment without
the possibility of release ”. Section 21 recognises that certain sentences are too
harsh for a CCL to undergo. The same yardstick will also apply to any sentence of
imprisonment, less than that of imprisonment for life. Prof. Ved Kumari, in her
critique of the JJ Act, 2015, while referring to Section 19(1)(i), mentions, “It is
important to emphasise that Section 19 does not direct the Children's Court to
impose the punishment as prescribed for the offence in the IPC or any other law in
force.”32 She further says that Section 19(1)(i) does not specify that the sentence
“has to be equal to the period of mandatory minimum imprisonment prescribed for
the offence”. She then examines Section 19(1), along with other provisions of the JJ
Act, 2015, thereby, concluding that the Children's Court has been given wide
discretion regarding the period of sentence. As detention is to “be used only as a
measure of last resort and for the shortest appropriate period of time”,33 the CRC
states, “Mandatory minimum sentences are incompatible with the child justice
principle of proportionality and with the requirement that detention is to be a
measure of last resort and for the shortest appropriate period of time.”34 There are
jurisdictions that have argued that courts can grant less than mandatory minimum
punishment for CCLs. USA does not have a progressive approach towards CCLs — it
has not ratified the United Nations Convention on the Rights of the Child, and until
200535, death penalty could be awarded to children between sixteen to eighteen
years on the date of offence. But regarding imposition of sentence on juveniles
transferred into the criminal justice system, several States have expressly abolished
the application of mandatory minimum sentences for such juveniles. For example,
Washington State, in 2005 abolished mandatory sentencing of juveniles convicted
as adults on the ground “that emerging research on brain development indicates
that adolescent brains, and thus adolescents' intellectual and emotional capabilities
differ significantly from those of mature adults.”36 The underlying purpose for
abolition of mandatory minimum sentencing is recognition of “diminished culpability
of juveniles” and that “instability and emotional imbalance of young people may
often be a factor in the crime ”. Columbia District too has so legislated in 201437,
and the Iowa Supreme Court in 2014 held that mandatory minimum sentences are
unconstitutional when applied to child offenders.38 CCLs conduct is inherent to their
age and is transitory. Children are amenable to positive influences. Long periods of
incarceration, deprives CCLs the opportunity to “rehabilitation” and ‘social
reintegration ”, which is the aim of the JJ Act, 2015, thereby, denying them of their
right to life and personal liberty guaranteed under Article 21 of the Constitution of
India39. Imposing the same mandatory minimum punishment to a CCL as
prescribed for an adult is unreasonable, arbitrary, and contrary to Article 14 of the
Constitution40 and the framework of the JJ Act, 2015. It also violates the principle of
best interest, which assures a CCL individualised treatment, depending on the
circumstances of a particular CCL. Mandatory minimum sentence prescribed in
substantive criminal laws has not taken into account the specificities and
characteristics of adolescents. Applying the same mandatory minimum sentence to
CCLs, denies them of considerations relating to their physiological and psychological
differences, which is the crux of the matter. The doctrine of proportionality ordinarily
indicates that punishment should be commensurate to the crime committed,
whereas, in the context of juvenile justice legislation, the doctrine relates to
commensurate treatment of CCLs per their characteristics and developmental
stage. Therefore, to say that a CCL whose trial has been transferred from the
juvenile justice system, should be punished as an adult, defeats the rationale of
juvenile justice legislation and the doctrine of proportionality. *Lawyer practising in
Mumbai. Author can be reached at maharukhadenwalla@gmail.com. ** Lawyer
practising in Delhi. Author can be reached at gayatrivirmani@gmail.com. 1.
Constitution of India. 2. Constitution of India, Art. 15(3). 3. Indian Jail Committee
Report 1919-1920. 4. Juvenile Justice (Care and Protection of Children) Act, 2015. 5.
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1. 6. Children's Court is a Sessions
Court designated to entertain trials of specified CCLs transferred by JJB [Juvenile
Justice (Care and Protection of Children) Act, 2015, S. 2(20)]. 7. Offences for which
the minimum punishment under the Penal Code, 1860 or any other law is
imprisonment for seven years or more [ Juvenile Justice (Care and Protection of
Children) Act, 2015, S. 2(33)]. 8. Juvenile Justice (Care and Protection of Children)
Act, 2015, S. 15(1). 9. Juvenile Justice (Care and Protection of Children) Act, 2015,
Ss. 18(1) and (2). 10. Dadu v. State of Maharashtra, (2000) 8 SCC 437. 11. State of
M.P. v. Vikram Das, (2019) 4 SCC 125. 12. Constitution of India, Art. 142. 13. “The
Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending
before it.” 14. United Nations Convention on the Rights of the Child, Art. 40(1). 15.
General Comment No. 24 (2019) on Children's Rights in the Child Justice System.
16.Steinberg, L., & Scott, E. S. (2003), “Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished Responsibility, and the Juvenile Death
Penalty”, American Psychologist, 58(12), 1009—1018. 17. Steinberg, L., & Scott, E.
S. (2003), “Less Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty”, American Psychologist,
58(12), 1009—1018. 18. Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202,
210. 19. (2005) 3 SCC 551. 20. (2014) 8 SCC 390. 21. Kishan Paswan v. Union of
India, 2020 SCC OnLine All 1936. 22. Shilpa Mittal v. State (NCT of Delhi), (2020) 2
SCC 787. 23. Order transferring CCL's trial to the children's court. 24. Juvenile
Justice (Care and Protection of Children) Act, 2015, S. 19(1)(ii). 25. Juvenile Justice
(Care and Protection of Children) Act, 2015, S. 19(1)(i). 26. Juvenile Justice (Care and
Protection of Children) Act, 2015, S. 20. 27. Juvenile Justice (Care and Protection of
Children) Act, 2015, S. 19(1)(i). 28.Juvenile Justice (Care and Protection of Children)
Act, 2015, S. 21. 29. Order that may not be passed against a child in conflict with
law. 30. Order that may not be passed against a child in conflict with law. 31.
Juvenile Justice (Care and Protection of Children) Act, 2015, S. 3. 32. Ved Kumari,
The Juvenile Justice (Care and Protection of Children) Act, 2015 — Critical Analysis,
(Universal Law Publishing 2017). 33. United Nations Convention on Rights of the
Child, Art. 37(b). 34. General Comment No. 24 (2019) on Children's Rights in the
Child Justice System. 35.Roper v. Simmons, 2005 SCC OnLine US SC 12 : 161 L Ed
2d 1 : 543 US 551 (2005), held that it is unconstitutional to sentence a juvenile to
death for an offence committed when under 18 years of age. 36. Wash. Rev. Code
Ann. S. 9.94A.540 (West 2003 & Supp. 2008) (historical and statutory notes). 37.
Comprehensive Youth Justice Amendment Act, 2016 [D.C. Law 21-238]. 38. State v.
Lyle, 854 NW 2d 378, 402 (Iowa 2014), as amended (30-9-2014). 39. Constitution of
India, Art. 21. 40. Constitution of India, Art. 14. Tags : Child in Conflict with Law
Children Act Constitution of India JJ Act 2015 Juvenile Justice Board Mandatory
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