An Iron Fist in a Velvet Glove

Pre-legislative consultative processes in India invariably leave much to be desired and the proposed re-enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 (henceforth the Act) is no exception.¹ The draft Juvenile Justice Bill (henceforth the bill) has been forwarded by the Minister for Women and Child Development, Maneka Gandhi, to the Ministry of Law and Justice, where it is unlikely to be deliberated for long.² In the absence of vigorous public debate and given the vociferous clamour in the aftermath of the 16 December 2012 Delhi gang rape to punish juveniles more harshly, a closer examination of the provisions of the bill is imperative.

The bill proposes a comprehensive re-enactment of the existing Act – it sets out guiding principles for authorities and agencies, strengthens inspection mechanisms for the various rehabilitation institutions and takes important steps towards implementing the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption. However, it also proposes to introduce provisions that will permit juveniles (now replaced by “children”) between the ages of 16 and 18 years to be tried by regular criminal courts for certain serious offences. This is a change that threatens to destroy in one fell swoop the reformative fabric of the Act and sits incongruously alongside the bill’s other progressive provisions. This article will therefore focus on this provision, explaining the substance of the change that it seeks to effect and examining whether the change complies with the Constitution as well as India’s international obligations. The article concludes by pointing out that this provision is incompatible with the “Fundamental principles for care, protection, rehabilitation and justice for children” that the bill introduces.