Centre for Child and the Law, NLSIU Bangalore

Critique of the Juvenile Justice (Care and Protection of Children) Bill, 2014 (JJ Bill)1

1. The JJ Bill 2014 allows children between 16 and 18 years alleged to have committed heinous offences to be tried and
sentenced as adults. While it does not expressly lower the age of a child in conflict with law from 18 to 16 years, the effect is
the same, as the Bill proposes that children above 16 years can be tried and treated as adults. It thus completely destroys the
rehabilitative foundation of the existing juvenile justice system in India by adopting a retributive approach for heinous
crimes committed by children in this age group. In its Two Hundred Sixty-Fourth Report, the Department-Related
Parliamentary Standing Committee on Human Resource Development on The Juvenile Justice (Care and Protection of
Children) Bill, 2014 concluded in para 3.21 that “the existing juvenile system is not only reformative and rehabilitative in
nature but also recognises the fact that 16-18 years is an extremely sensitive and critical age requiring greater protection.
Hence, there is no need to subject them to different or adult judicial system as it will go against Articles 14 and 15(3) of the
Constitution.” This recommendation has been entirely ignored.

2. The foundation of the JJ Bill 2014 that children in conflict with the law can be discriminated against based on their age and
the nature of the offence is deeply flawed. Children alleged or found to be in conflict with the law are distinct from adult
accused persons or adult offenders and constitute a separate class. Article 15(3) allows the State to make special laws for
children. The existing JJ Act 2000 satisfies the test for reasonable classification, as it is premised on the understanding that
children cannot be held to the same standards of culpability as adults because of their developmental immaturity and their
amenability to rehabilitative interventions. But, the proposed amendments do not. The Preamble to the JJ Bill, 2014 states
that it seeks “to consolidate and amend the law relating to children alleged and found to be in conflict with law and children
in need of care and protection by catering to their basic needs through proper care, protection, development, treatment,
social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of
children and for their rehabilitation through processes provided, and institutions and bodies established.” None of these
objectives can be met by sending children alleged and found to be in conflict with the law to ‘places of safety’ and/or an
adult criminal justice system. Transfer will deprive these juveniles not only of protection and treatment and would amount
to sentencing them to physical and sexual abuse by adult under-trials and convicts and leaving them with no option but to
pursue a career in crime.

3. The JJ Bill, 2014 unreasonably conflates children in conflict with law with adults, ignoring findings in
neuroscience and adolescent psychology that establish their diminished culpability. Article 14 prevents equal
treatment of unequal persons just as much as it prevents the unequal treatment of equals. Subjecting children to the same
criminal justice system as adults would be premised on the flawed assumptions that children and adults can be held to the
same standards of culpability and that children are capable of participating in legal proceedings in a like manner. Research in
developmental psychology explains the difference in cognitive capacity and psychosocial maturity between children
including adolescents and adults that influence their decision-making in anti-social situations.2 Whether the juvenile
understood the consequences of the offence or whether he or she had the mental and physical capacity to commit the
offence is a narrow and non-holistic approach to respond to serious/heinous crimes. It fails to take into account the
ongoing process of development and its impact on children, especially adolescents. According to Andrew Von Hirsch,
Honorary Professor of Penal Theory and Penal Law at Cambridge University, “[y]oung adolescents, the reasoning must be,
cannot reasonably be expected to have a fully fledged comprehension of what people’s basic interests are and how typical
crimes affect those interests – because achieving this kind of understanding is a developmental process. Developing that
understanding calls both for cognitive skills and capacity for moral reasoning which develop over time – and does so
precisely during the period of adolescence…”3 While the cognitive levels of a 16 or 17 year old may match that of an adult,
findings show that they lack psychosocial maturity levels as compared to adults.4 Adolescents are more prone to peer

1
6th May 2015
2Elizabeth Cauffman and Laurence Steinberg, “(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than
Adults,”Behav. Sci. Law 18: 741 at742-743 (2000)
3 Andrew Von Hirsch, “Proportionate Sentences for Juveniles: How Different than for Adults?” Punishment & Society 2001 3: 221 at 225
4Elizabeth Cauffman and Laurence Steinberg, “(Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than

Adults,” Behav. Sci. Law 18: 741 at 759 (2000)

 influence, are less likely to focus on future outcomes, are less risk-averse than adults, and evaluate risks and benefits
differently.5 Further, their ability to understand legal processes and make decisions relating to their case is not the same as
adults.

These findings are endorsed by neuroscientists who state that the prefrontal cortex, known as the CEO of the brain which is
responsible for important functions such as planning, reasoning, judgment, and impulse control, is the slowest to mature.
The maturation process begins at around the age of 12 years and goes up to the age of 25 years. The evolution of the brain
between these ages has to do with risk-assessment behavior that is directly tied to what we term as “maturity.” Persons
between these ages have been shown incontrovertibly to underestimate risk, be susceptible to negative influence, and lack
foresight. These are factors that predispose them to poor decision-making and justify the treatment of persons between 16-
18 years within the juvenile justice system. These findings have been endorsed by two senior Professors from the National
Institute of Neuro-Sciences and Mental Health (NIMHANS), Bengaluru – Dr. T R Raju, Senior Professor and HOD,
Department of Neurophysiology, and Prof. (Dr.) Shekhar P. Seshadri, Department of Child and Adolescent Psychiatry.

4. The constitutionality of the JJ Act 2000, in so far as it allows all children in conflict with the law to be dealt with under the
beneficial juvenile justice system irrespective of the gravity of the offence has been upheld by the Hon’ble Supreme
Court in Salil Bali v. Union of India6and Dr. Subramanian Swamy v. Raju7.In Salil Bali, the Supreme Court emphasized that,
“[t]he essence of the Juvenile Justice (Care and Protection of Children) Act, 2000, and the Rules framed thereunder in 2007,
is restorative and not retributive, providing for rehabilitation and re- integration of children in conflict with law into
mainstream society.”

5. The Juvenile Justice Board (JJB), a multi-disciplinary body meant to dispose matters in the best interest of the child, is now
empowered to re-criminalise the child. The Children’s Court, (established under Clause 25 of the Commission for
Protection of Child Rights Act 2005) was specifically designed to try offences against children and not offences by them.
While they are meant to be dedicated courts for child victims of crime, they are essentially designated Sessions Courts that
have been saddled with the task of ensuring speedy trial of offences against children. These Children’s Courts largely exist
only on paper. The alleged child offender is now proposed to be tried “as an adult” by this Court. This is completely
opposed to the Bill’s stated purpose of “adopting a child-friendly approach in the adjudication and disposal of matters”8
Requiring the Children’s Court to now be child friendly while conducting a ‘trial’ against a juvenile will put the Court in a
quandary as it is essentially a Sessions Court.

6. The proposed transfer system incorrectly assumes that all children between 16 and 18 years accused of heinous
crimes are competent to stand trial as adults. Adolescence is a period in which youth have “a relatively unstable sense of
self” that influences trial-related decisions.9 The experience of the team at the Centre for Child and the Law, NLSIU,
Bengaluru, in their direct engagement with children at the Observation Home, Bengaluru has shown us many instances
where children routinely say what they are asked to say – either by the police, by their lawyers, or by their families, without
fully understanding what it means or the implications it could have on their lives. A 15 year old boy pleaded guilty to charges
of chain snatching and theft because he was homesick and wanted to go home on bail. He believed that pleading guilty
would help him get out faster and that his case would be closed. He was found guilty and sent to the Special Home for a
year. A 17 year old suffered from severe post-traumatic stress and turned severely suicidal after his lawyer kept pressuring
him to deny his role in a murder, while the boy wanted to and repeatedly told the JJB that he was guilty. Innumerable boys
plead with their lawyers to get them bail rather than admit to drug/substance abuse which will get them referred for de-
addiction services from the State, which they are apprehensive about – demonstrating their immaturity and inability to make
choices that will actually be beneficial to them and empower them in the long run.

5Elizabeth 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 20-21
6(2013) 7 SCC 705.
7S.L.P. (Crl) No.1953 of 2014.
8 Preamble, JJ Amendment Bill, 2015
9 Developing Statutes for Competence to Stand Trial in Juvenile Delinquency Proceedings: A Guide for Lawmakers, 2 April 2012, pp. 14-

15 available at http://www.modelsforchange.net/publications/330.
7. Arbitrariness is inherent in any assessment of reformation. Upon turning 21 years of age, the fate of the person will lie
in the hands of the Children’s Court. As per Clause 21, the Court will decide whether or not a person has “undergone
reformative changes” or “can be a contributing member of the society”. Such an inquiry is highly subjective and prone to
arbitrariness that falls foul of Article 14 of the Indian Constitution. This will inevitably result in the targeting of marginalized
communities in India. Data already shows that more than half the children apprehended for offences come from families
with an annual income of less than Rs. 25,000 while only 0.55% of the children apprehended come from families with an
annual income of more than Rs. 3,00,000.10 Undoubtedly, the provisions of the JJ Bill will result in class, caste and religion-
based targeting of children under the garb of assessing their potential contribution to society and extent of reformation.
Such discrimination is also contrary to Article 2 of the legally binding UN Convention on the Rights of the Child which
prohibits discrimination of any kind, including religion, property and other status.

8. ‘Preliminary assessment’ by Juvenile Justice Board under clause 16(1) violates the test of procedural fairness under
the Constitution. This assessment is in essence a sentencing decision that is arrived at even before the guilt is established.
The arbitrary and irrational procedure provided under the JJ Bill contravenes the fundamental guarantees under Article 14
and 21 of the Constitution. The Supreme Court of India has categorically held that procedural fairness is an integral part of
due process (Maneka Gandhi v. Union of India11). The Bill requires the JJB to arbitrarily assess culpability prior to even an
establishment of guilt. This assessment is in essence a sentencing decision that is arrived at even before the guilt is
established. This is in complete violation of the presumption of innocence - a central tenet of the juvenile justice as well as
the criminal justice system. Further, accurate assessment of ‘mental capacity’ is impossible and will inevitably lead to
arbitrary transfers. The Bill assumes that an accurate assessment of mental capacity/maturity for the purpose of transfer is
possible when this is in fact not true. Latest research shows that individualized assessments of adolescent mental capacity is
not possible and the suggestion that it can be done would mean “exceeding the limits of science”.12 Evaluation of mental
capacity is a complex process which cannot be done accurately by the JJB even with the help of experienced psychologists.
Such assessments will be fraught with errors and arbitrariness and will allow inherent biases to determine which child is
transferred to an adult court. When psycho-social maturity or mental capacity cannot be measured or assessed
accurately, it will be a travesty of justice if children alleged to be in conflict with the law are transferred to an adult
criminal court and ultimately sent to an adult prison based on such a flawed assessment.

9. Deprivation of the protection against disqualification under the provisos to clauses 25(1) and 25(2) violates the
right to life under Article 21 and the right to equality under Article 14. The combined effect of these provisos is that
children between 16 and 18 years found to be in conflict with the law under Clause 20(1)(i) will incur disqualifications thus
rendering their rehabilitation and re-integration impossible. The reformation inquiry under Clause 21 is redundant in light of
these two provisions. Even if a child is found to have undergone reformative changes at the end of a highly arbitrary
assessment process, she/he will incur the disqualification attached to the conviction making it impossible to secure gainful
employment, stand for elections or benefit from the fundamental principle of ‘fresh start’. These provisos constitute a
flagrant violation of the right to life and human dignity as they will deprive children of a livelihood and leave them with no
avenues for a dignified existence.

10. Clause 2(33) of the Bill defines “heinous offences” to include “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.” As is evident,
the term ‘heinous offence’ has been broadly cast thus enlarging the net and increasing the possibility of a greater number of
young people being dealt with as adults. Persons above 16 years can now face severe punishments even for offences that are
not against the body, such as trading in certain drugs, attempts to commit robbery armed with a weapon, etc. They can also
be tried as adults under the Protection of Children from Sexual Offences Act, 2012 and the Indian Penal Code for engaging
in consensual sex with persons below the age of 18 years.

10 Crime in India, 2013, Compendium, National Crime Records Bureau (2014), pg 4. Available at http://ncrb.gov.in/CD-
CII2013/compendium%202013.pdf
11 1978 AIR SC 597
12
Bonnie & Scott, ‘The Teenage Brain: Adolescent Research and the Law’, Current Directions in Psychological
Science, 22(2) 158–161 (2013), p.161.
11. Clause 102(2)(a) violates the right to equality under Articles 14 and 15(3) of the Constitution. Allowing appeals
against the acquittal by the Juvenile Justice Board of children who have completed or are above the age of 16 years and have
allegedly committed heinous offences frustrates the objectives of the legislation and unfairly discriminates against children
found innocent based on their age and the offence they were charged with. This will further stigmatize such children and
effectively mean that they cannot exit the system even when they are innocent.

12. The preliminary assessment and the trial before the Children’s Court would compromise the principles of dignity and worth,
best interests, positive measures, non-waiver of rights, non-stigmatizing semantics, equality and non-discrimination, and
institutionalization as a measure of last resort, all of which are “fundamental” to the understanding, interpretation,
implementation, and application of the proposed Bill under Clause 3. For instance, the decision to transfer a child to the
Children’s Court or to an adult jail cannot be justified in light of the best interest principle. Transfer of juveniles to the adult
system will also violate the principle of right to privacy and confidentiality, resulting in them being denied access to the very
means by which they can be rehabilitated or re-integrated into the community as persons capable of making a ‘meaningful
contribution to society’. “In addition, many youths face collateral consequences of involvement in the justice system, such as
the public release of juvenile records that follow them throughout their lives and limit future educational and employment
opportunities.”13

13. Clause 19(1) excludes a reference to children above 16 years who have committed a heinous offence thus leaving the JJBs
with no discretion to pass any of the rehabilitative orders listed under that provision. The Bill is silent on the orders that
can be passed if the JJB decides not to transfer the child to the adult court. In other words, this option does not seem
to exist. By implication, this will lead to automatic transfers of all children above 16 years alleged to have committed a
heinous offence. They will stand denied the opportunity to be heard by a bench of magistrates with knowledge and
experience from relevant fields such as psychology, sociology, psychiatry etc. Having an expert make a onetime submission
to the Children’s Court is very different from having a bench of magistrates in the multi-disciplinary Juvenile Justice Board,
as provided for in the JJ Act. These children will therefore also be denied the right to orders aimed at care,
protection, development, treatment and social re-integration – all of which are a fundamental part of the legislative
commitment stated in the Preamble.

14. According to Clause 20(3), the Children’s Court has to ensure that “the child who is found to be in conflict with the law is
sent to a place of safety till he attains the age of twenty-one years, thereafter, the person shall be transferred to a jail.” This
provision violates Article 37(b) of the UNCRC which states – “No child shall be deprived of his or her liberty unlawfully or
arbitrarily. 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”. In this case, detention of a child is the only
measure prescribed under the Bill and thus ‘institutionalization’ is the first and not last resort. 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.” 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 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.

15. Clause 2(46) defines “place of safety” to mean “any place or institution, not being a police lockup or jail, established
separately or attached to an observation home or a special home, as the case may be, the person in-charge of which is willing
to receive and take care of the children alleged or found to be in conflict with law, by an order of the Board or the
Children’s Court, both during inquiry and ongoing rehabilitation after having been found guilty for a period and purpose as
specified in the order”. In reality, in a situation where the person-in-charge is unwilling to receive such a child, he/she will
naturally be sent to an adult jail.

13Reforming Juvenile Justice: A Developmental Approach, The National Academies Nov 2012. Available at
http://www.njjn.org/uploads/digital-library/Reforming-Juvenile-Justice-A-Developmental-Approach-
Brief_NationalResearchCouncil_11.2012.pdf
16. Persons alleged to and found to be in conflict with law between the age of 16 – 21 years of age will be housed
together in inaccessible and inevitably highly stigmatized places of safety that will amount to nothing less than a
jail experience for children. The proviso to clause 19(1)(g) also enables the placement of children below the age of 16
years in such a place of safety if their conduct and behavior of the child has been such that, it would not be in the child’s
interest, or in the interest of other children housed in a Special Home. In practice this would mean that a place of safety
could house children below 16 years who have suicidal tendencies alongside older adolescents with aggressive behavior as
well as adults between 18 to 21 years. Sec 50 (1) places a responsibility on State governments to provide at least one place of
safety in their respective State, to house children alleged to and found to have committed heinous crime. This implies that if
a child is alleged to have committed a heinous crime in one District, he will be placed in the lone Place of Safety in that
State, which could be more than a day’s travel time, away from the jurisdictional Police Station responsible for the
investigation, the JJB responsible for the inquiry, and the Children’s Court responsible for the trial. This will cause
unreasonable and unnecessary hardship to the child in question and the already overburdened staff of such institutions.
Moreover, this will deprive this child of his/her right to regular contact with his/her family – particularly given that a
majority of children entering the juvenile justice system hail from impoverished and marginalized families.

17. Clause 21 provides for an assessment to be conducted on juveniles who were found to have committed heinous offences,
who have attained the age of 21 years and are residing in a Place of Safety, to ‘evaluate if such child has undergone
reformative changes and if the child can be a contributing member of the society.’ Sub clause 2 (ii) further provides for the
Children’s Court to make a decision based on this evaluation, that the child shall complete the remainder of his term in a jail.
The definition of what can scientifically be determined as ‘a meaningful contribution’ to society has not been provided in the
Bill, leaving this to the discretion of the Children’s Court – a measure that could potentially place children who have
survived the streets, from impoverished dalit backgrounds at risk of bias, and therefore a jail term. More significantly, the
idea that a child can actually be found to ‘not be a contributing member of society’ is absolutely repugnant. Further, the
objective of this inquiry is redundant in light of the proviso to Clause 25(1) which withdraws the protection against
disqualification arising from convictions. .

18. The proposed transfer system ignores the domestic jurisprudence on juvenile justice. The Report of the Indian Jails
Committee, 1919-1920 which predates international standards on this issue, observed that “it is undesirable' to familiarise
the young with the sights of prison life or to blunt the fear of prison which is one of the most powerful deterrents from
crime. For all these reasons, we consider that the imprisonment of children and young persons is clearly contrary to public
policy…” (Pg 195). In Munna v. State of Uttar Pradesh14, while deciding three writ petitions highlighting the horrific plight of
more than 100 juveniles who were lodged in the Kanpur Central Jail instead of being sent to the Children's Home, the
Supreme Court observed: “The law is very much concerned to see that juveniles do not come into contact with hardened
criminals and their chances of reformation are not blighted by contact with criminal offenders.” In Satto v. State of Uttar
Pradesh,15Justice Krishna Iyer explained what the approach of courts towards juveniles should be:

“Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of
criminal justice. Juvenile justice has constitutional roots in Articles 15(3) and 39(e) and the pervasive humanism which
bespeaks the superparental concern of the State for its child-citizens including juvenile delinquents. The penal
pharmacopeia of India, in tune with the reformatory strategy currently prevalent in civilized criminology, has to approach
the child offender not as a target of harsh punishment but of humane nourishment.”

In Sheela Barse v. Union of India16, the Supreme Court observed: “Even where children are accused of offences, they must not
be kept in jails. It is no answer on the part of the State to say that it has not got enough number of remand homes or
observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on
the part of the State to urge that the ward in the jail where the children are kept in separate from the ward in which the other
prisoners are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging
him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail.”

14AIR 1982 SC 806

15(1979)2 SCC 628.
16AIR 1986 SC 1773
19. The proposed transfer system violates India’s obligations under the UN Convention on the Rights of the Child.
The recommendations made by the Committee on the Rights of the Child in February 2000, about the discriminatory nature
of the definition of the term ‘juvenile’ under the Juvenile Justice Act, 1986 have been consciously disregarded. In that Act,
‘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”. The Committee recommended that in keeping with the principle of non-discrimination Juvenile Justice Act,
1986 be amended “to ensure that boys under 18 years are covered by the definition of juvenile, as girls already are”. 17 It is
this recommendation that was considered by the Legislature while defining “juvenile” under the JJ Act, 2000. The legislative
intention was to accept the recommendation made by the Committee in order to ensure compliance with children’s right to
equality and non-discrimination under the UNCRC and this is evident from the Statement of Objects and Reasons which
stated that “The justice system as available for adults is not considered suitable for being applied to a juvenile or the child or
any one on their behalf including the police, voluntary organizations, social workers, or parents and guardians, throughout
the country.”

20. Through General Comment No. 10 on Children’s rights in juvenile justice, the Committee on the Rights of the Child has
emphasized that all State Parties must adhere to Article 40 of the Convention which stipulates rights of children accused of,
or recognized as having infringed penal law. It recommended 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.”18

According to the CRC, the primary consideration even in cases involving serious offences by children should be the best
interest of the child – “[i]n 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.”19

21. In General Comment No.10, the Committee on the Rights of the Child also reiterated the prohibition on death penalty and
strongly recommended that State Parties “abolish all forms of life imprisonment for offences committed by persons under
the age of 18.”20Following 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.21 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 resolutions22 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
18”.23Under Clause 22 of the Bill, life imprisonment with the possibility of release can indeed be imposed on children above
16 years.

17 Concluding observations of the Committee on the Rights of the Child: India, CRC/C/15/Add.115, 23 February 2000, Para 81.
18General Comment No.10 (2007) Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, paras 37-38
19General Comment No.10 (2007) Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para 71
20 General Comment No.10 (2007) Children’s rights in juvenile justice, CRC/C/GC/10, 25 April 2007, para 77
21 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).
22Human rights in the administration of justice, including juvenile justice, A/HRC/24/L.28, adopted on 26.9.13, para. 22; Human rights

in the administration of justice, including juvenile justice, A/HRC/25/L.10, adopted on 25.3.14, para.8(g).
23UNGA 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
22. Failure of the transfer system in United States of America has not been considered. The transfer system proposed in
the Bill has been in existence in the US for over two decades. Multiple studies in the US conclude that it has in fact been
ineffective in addressing juvenile crime, public safety, and recidivism. The independent Task Force on Community
Preventive Services set up by the US Centre for Disease Control reviewed published scientific evidence on the effectiveness
of waiver laws to ascertain whether this prevented or reduced violence among those transferred, and among juveniles on the
whole. Based on a review of nine studies on the specific and general deterrence effect of transfer laws, the Task Force
concluded that: “….transfer policies have generally resulted in increased arrest for subsequent crimes, including
violent crime, among juveniles who were transferred compared with those retained in the juvenile justice system.
To the extent that transfer policies are implemented to reduce violent or other criminal behavior, available
evidence indicates that they do more harm than good.”24 “Studies have found that young people transferred to the adult
criminal justice system have approximately 34% more re-arrests for felony crimes than youth retained in the youth justice
system.”25 “Around 80% of youth released from adult prisons reoffend often going on to commit more serious crimes.”26

In order to identify what works, the Pathways to Desistance Study, a large multidisciplinary project by the MacArthur
Foundation Research Network on Adolescent Development and Juvenile Justice and funded by the US Department of
Justice “that is following 1,354 serious juvenile offenders ages 14–18 (184 females and 1,170 males) for 7 years after their
conviction…has collected the most comprehensive data set currently available about serious adolescent offenders and their
lives in late adolescence and early adulthood.” The primary findings of the study27 were that “Longer stays in juvenile
institutions do not reduce recidivism, and some youth who had the lowest offending levels reported committing more
crimes after being incarcerated.” It found that “community-based supervision as a component of aftercare is effective
for youth who have committed serious offenses, and offenders who receive community-based services following
incarceration are more likely to attend school, go to work, and reduce offending.”

Recent scientific findings on the maturity of the adolescent brain has led to a shift even in the USA towards less punitive
methods of dealing with juvenile crime – “since 2009, at least 20 states have closed or downsized youth facilities or reduced
their reliance on incarceration. In many places, the money saved is being redirected to programs that supervise and treat
youths in their communities. States that reduced juvenile confinement most dramatically also saw the greatest decline in
juvenile arrests for violent crimes.”28 In December 2012, the Attorney General’s National Task Force on Children Exposed
to Violence, December 2012 recommended that “No juvenile offender should be viewed or treated as an adult. Laws and
regulations prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh
punishments that ignore and diminish their capacity to grow must be replaced or abandoned.”

Evidence on the failure of the transfer system is compelling and there is no reason why India should replicate a failed system
that has been more deleterious than progressive. In India, juveniles in conflict with law alleged to have commit ‘serious’

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”.
24 Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on

Recommendations of the Task Force on Community Preventive Services, Centre for Disease Control and Prevention, MMWR 2007,
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm
25 Raise the Age NY, ‘Get the facts’ (2013): http://raisetheageny.com/get-the-facts; Effects on Violence of Laws and Policies Facilitating the

Transfer of Youth from the Juvenile to the Adult Justice System: Report on Recommendations of the Task Force on Community Preventive Services, Centers for
Disease Control and Prevention, November 30, 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm
26 Raise the Age NY, ‘Get the facts’ (2013): http://raisetheageny.com/get-the-facts, National Campaign to Reform State Juvenile Justice

Systems. The Fourth Wave: Juvenile Justice Reforms for the Twenty-First Century; p. 20. http://www.publicinterestprojects.org/wp-
content/uploads/2012/11/JJ-Whitepaper- Design-Full-Final.pdf.
27 Edward P. Mulvey, “Highlights from Pathways to Desistance: A Longitudinal Study of Serious Adolescent Offenders”, US Department

of Justice, March 2011, https://ncjrs.gov/pdffiles1/ojjdp/230971.pdf

28Giudi Weiss, The Fourth Wave – Juvenile Justice Reforms for the Twenty-First Century, Winter 2013, p.4, Commissioned by the

National Campaign to Reform State Juvenile Justice Systems for the Juvenile Justice Funders’ Collaborative. Available at:
http://raisetheageny.com/wp-content/uploads/2011/08/The-Fourth-Wave.pdf
 offences constitute a miniscule29 but very vulnerable population that requires to be handled with much more specialized care
and caution so as to prevent recidivism, and in order to engineer reform and re-integration.

23. The Bill evinces a poor appreciation of the data on juvenile crime. From 2003-2013, the percentage of juvenile crimes to
total crimes has marginally increased from 1.0% to 1.2%. The percentage of juvenile crimes to total crimes remained
constant at 1.2% in 2013. In 2013, juveniles between 16 and 18 years apprehended for murder and rape constituted 2.17%
and 3.5% of all juveniles apprehended for IPC crimes. They also constituted a meager 1.30% and 3.29% of all persons
arrested for murder and rape in 2013. The above figures lend zero credence to the statements that they are significantly
responsible for heinous crimes. The Standing Committee analyzed the NCRB data on juvenile crime and concluded that
“The objective analysis of the data of the National Crime Records Bureau placed before the Committee makes it abundantly
clear that the percentage of juvenile crimes in India i.e 1.2 per cent of the total child population of the country is quite low.
Secondly, some incidents of juvenile crime, though a cause of serious concern should not be the basis for introducing drastic
changes in the existing juvenile justice system.”

Conclusion

Sending juveniles who allegedly commit ‘heinous’ crime to jail is not in the interest of children, women, families or the wider
community as a whole. Such a policy change will result in higher costs related to incarceration, and deferred costs that will
incur as an outcome from the rage and bitterness that comes from life in the adult criminal justice system. The State needs to
first own its responsibility for the failure of the JJ system, particularly absence of functional assessment, probation and
counseling services for juveniles, and the lack of anything special or scientific about the services provided to children in the
‘Special Homes’ mandated to provide special correctional services in order to achieve the rehabilitative goals of the law, and
prevent recidivism. The damaging effects of placing adolescents who are at a difficult transitional phase in their lives along
with adult criminals will only serve to place these young people at risk of being physically, sexually and emotionally abused
and what is worse – being further criminalized by seasoned adult criminals in adult jails. This obviously regressive outcome is
in stark contradiction to the aims outlined in the Preamble of the Bill as well as the aspirations of the wider public for a safer
healthier society.

The JJ system has the potential to provide an enabling framework to promote healing for the victim and the
juvenile through restorative justice programs. Restorative justice processes have been in vogue in New Zealand, Australia,
South Africa, Canada, USA, and several European countries. Experts who have studied various models of restorative justice
have recommended that it be adopted to address “the more serious offences. It is here that the impact of the offending on
victims is greatest and that victims are most in need of closure...” and consider it “most appropriate for repeat offenders.” 30
The progressive features of the Indian JJ system should not be replaced by regressive positions adopted in certain other
countries, particularly given the absence of empirical evidence to prove that such a policy change is warranted or that it will
even work. This proposal will result in higher numbers of angry and hostile young men and women who will exit these
prisons as hardened criminals.

Therefore, Clauses 7, 15(3), 16(1), 19(3), 20, 21, 22, provisos to 25(1) and 25(2), and 102(2)(a) of the JJ Bill, 2014 should
be deleted for the following reasons.
1. The proposed ‘transfer system’ violates the right to equality guaranteed under the Indian Constitution as it
unreasonably equates children alleged to be in conflict with law with adult accused persons, ignoring findings in
neuroscience and adolescent psychology that establish their diminished culpability. It also incorrectly assumes that
children are competent to stand trial as adults. Further, arbitrariness is inherent in any proposed assessment of
reformation at the age of 21 years that will then determine whether or not the child should be transferred to a jail for the
rest of the sentence.
2. ‘Preliminary assessment’ by the Juvenile Justice Board violates the test of procedural fairness under the Constitution.
3. Deprivation of the protection against disqualification under the provisos to clauses 25(1) and 25(2) violates the right to
life under Article 21 and the right to equality under Article 19.

29National Crime Records Bureau, Crime in India, 2012, Chapter 10.

30AllisonMorris & Gabrielle Maxwell, “Implementing Restorative Justice: What Works?” in MORRIS & MAXWELL, ED., RESTORATIVE
JUSTICE FOR JUVENILES CONFERENCING, MEDIATION AND CIRCLES, 2001, p.268.
4. Clause 102(2)(a) violates the right to equality under Articles 14 and 15(3) of the Constitution.
5. The proposed ‘transfer system’ denies children in conflict with law found to have committed ‘heinous’ crime aged above
16 years of community based rehabilitative services and their rights under the juvenile justice system by subjecting
them to a punitive system where institutionalization is the only option available.
6. The proposed ‘transfer system’ ignores the rich domestic jurisprudence on juvenile justice which emphasizes on the
rehabilitative approach and unequivocally states that children should not be detained in prisons.
7. The proposed ‘transfer system’ violates India’s obligations under the UN Convention on the Rights of the Child.
8. The Bill evinces a poor appreciation of the data on juvenile crime thus undermining the basis for introduction of the
transfer system.
3. Documented failure of the transfer system in other countries has not been considered.