12 January 2023

What the NCPCR draft guidelines say on assessing if minors can be tried as adults

GS-2: Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes

The National Commission for Protection of Child Rights (NCPCR) has released draft guidelines on the preliminary assessment of whether certain minors are to be tried under the Juvenile Justice (Care and Protection of Children) Act, in certain cases. 

A preliminary assessment 

• Why needed? The JJ Act was amended in 2015, which provided for trail against child in 16-18 years as an adult in case of heinous offences.

• Before 2015 amendment, all children under the age of 18 were considered minors by the law.

• By whom? Thus, as per Section 15 (1) of the Act, a preliminary assessment shall be conducted by the Juvenile Justice Board to determine whether to try such a child as an adult or a minor.
• Essential conditions to call for a preliminary assessment:

• A juvenile has completed the age of 16 years.
• A juvenile has alleged to commit a heinous offence as defined in the JJ Act, 2015. 

• In case, if offence is allegedly committed by a group of children, then a preliminary assessment of each child must be carried out separately.

• Before the assessment: The child shall be presumed to be innocent unless proved otherwise while making the preliminary assessment.
• During the assessment: As per act direction, the Board shall consider 4 aspects– 

• Physical capacity of the child for committing the alleged offence.
• Mental capacity of the child for committing the alleged offence.
• Ability to understand the consequences of the offence.
• Circumstances in which the offence was committed.

• Moreover, the Board can take help of experienced psychologists or psychosocial workers or other experts.
• After the assessment: The Board pass the order stating requirement to treat a child as an adult and transfer the case to a children’s court.

• If child is tried as an adult, he can be sentenced to a jail term without the possibility of release.

• But, he cannot be sentenced to death or life imprisonment.

• If child is tried as a minor, he could be sent to a special home for a maximum of three years.

• Disclaimer (by the Act): The assessment is not a trial, but is only to assess the capacity of the child to commit and understand the consequences of the alleged offence.

Need of the guidelines

• As per Supreme Court, the task of preliminary assessment is “delicate”, “Serious in nature” and “has a lasting effect for the entire life of the child” depending whether the child is to be tried as an adult or a minor. 
• Thus, the assessment requires appropriate and specific guidelines along with expertise.
• The guidelines describe the key procedures to conduct the preliminary assessment. Moreover, it frames essential components and the basic mechanisms to address any ambiguity.

• However, the course of assessment may differ from child to child.

Draft guidelines

• Based on existing provisions, the draft mentions four aspects of the preliminary assessment.

1. Physical capacity of the child

• To determine the child’s ‘locomotor’ abilities and capacities such as  walking, running, lifting, throwing etc. Such abilities as would be required to engage in most antisocial activities.

2. Mental capacity of the child

• To determine the child’s ability to make social decisions and judgments.
• To direct assessments pertaining to mental health disorders, substance abuse, and life skills deficits.

3. Circumstances in which the offence was allegedly committed:

• To determine Psychosocial vulnerabilities of the child which include life events, any trauma, abuse, and mental health problems that could have resulted in an offensive behaviour.

4. Ability to understand the consequences of the alleged offence:

• To determine the child’s knowledge or understanding of the alleged offence’s social, interpersonal and legal consequences.

• The draft mandates regular training for experts and also provides an optimal opportunity to them to interact with the child to build a rapport.
• A copy of assessment must be produced within three months of the child being produced before the Board.
• The Board can rely on the other reports such as the Social Investigation Report, Social Background Report an Individual Care Plan, statements of witnesses and interaction with parents, guardians, school staff, peer groups and neighbours.

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Fact File

California’s record-breaking storm: What is the ‘Pineapple Express’ phenomenon underlying it California and other parts of the West Coast of USA have been hit with a series of atmospheric rivers over the past two weeks. These “rivers in the sky” are long and narrow regions in the atmosphere that transport most of the water vapor from the tropics to northern latitudes. Atmospheric rivers are part of the Earth's ocean water cycle, and are tied closely to both water supply and flood risks. It is a common feature in the eastern United States, where it often channels moisture from the Caribbean. It carries a lot of water vapor that equal or exceed the average flow of the Mississippi River at the point where it flows into the Gulf of Mexico. This moisture fall as rain or snow when begins to interact with land. This was the case in California (abundant precipitation) as these atmospheric rivers provide a continuous flow of moisture. Atmospheric rivers  The global conveyor belt is responsible for the creation of Atmospheric Rivers as prevailing winds cross over warm bands of tropical water vapor to northern latitudes. Atmospheric rivers come in all shapes and sizes, but those that contain the largest amounts of water vapor and the strongest winds are responsible for extreme rainfall and subsequent flooding. Pineapple Express It is a well-known example of a strong atmospheric river. In this phenomenon, the moisture builds up in the tropical Pacific around Hawaii and can wallop the U.S. and Canada's West Coasts with heavy rainfall and snow. It can dump as much as five inches of rain on California in one day. [Ref- IE]