In May last year, a 17-year-old boy in Delhi who ran over a pedestrian while driving his father’s Mercedes was booked for murder. Following an enquiry, the city’s juvenile justice board passed an order in June transferring the case to an adult court. The boy – who turned 18 and ceased to be a minor just four days after the hit-and-run incident in April that year – was psychologically assessed and deemed fit to be tried as an adult.

It was one of the first few cases to be thus transferred under the provisions of the new Juvenile Justice Act, 2015, which came into effect on January 15 last year. One of its most debated clauses allows minors between 16 years and 18 years of age to be tried as adults in cases of heinous crimes such as rape and murder, for which the minimum punishment under law is seven years in jail. The police have charged the Delhi boy with culpable homicide not amounting to murder, which carries a maximum jail sentence of 10 years.

Before the introduction of this clause, the maximum punishment for all juvenile offenders was three years in a reform home.

The boy challenged the juvenile justice board’s order in a Delhi court, contending that he had not been properly assessed. And in an important decision last October, the court allowed his plea, saying “a more detailed enquiry” was needed. It felt that the board had not adequately followed procedure while transferring the case.

The court’s observation

Under the new legislation, the juvenile justice board must conduct a preliminary assessment if a child in the 16-18 year age group commits a heinous crime. For this, it can refer the minor to an expert, such as a psychologist or a sociologist. This is to ascertain the psychological profile of the child before deciding whether he or she needs to be tried as an adult.

In the Delhi hit-and-run case, an assessment was conducted, but the concerned psychologist was not examined by the board. Now that the matter has been remanded, the board will have to conduct a fresh enquiry. The boy will also get an opportunity to cross-examine the psychologist before a fresh order is passed.

“This provision is an important provision which can result in gross injustice if not applied properly,” the court observed. “Although it is in form of only a preliminary assessment but it deals with a very valuable right of the juvenile in conflict with the law and such assessment should, therefore, be carried out in a fair and logical manner to avoid any miscarriage of justice.”

The court also said that such an examination would depend on the skills and experience of the expert, and cautioned against taking such an assessment as the “gospel truth”.

This is an important order on how the Act can be interpreted. “This decision clarifies to us that a child can cross-examine the psychologist or expert at this stage,” said Swagata Raha, a legal consultant with the Centre for Child and the Law, National Law School of India, University of Bangalore. “It clarifies what has not been spelt out in the Act.”

Gaps in assessment process

The provision for a psychological assessment of a minor offender is a key element of the new Act. But how is this actually working out? Not too well, it seems.

In at least two districts in Maharashtra, members of juvenile justice boards said they had no experts they could refer the children to. One member said they simply sought a report from the concerned probation officer and “on the basis of that, we are trying to work”. In this district, no case has yet been transferred to an adult court.

In another district, too, a board member said no provision for psychological testing has yet been made. But, perhaps fortunately, no such case has come to them so far.

In some places, like Mumbai, the assessment is done at state-run hospitals. Those familiar with the procedure said the children are subjected to IQ tests – though it is debatable whether a test of cognitive ability can be useful in gauging a child’s capacity to commit an offence and understand its consequences. “It appears that those in the system are not sure how this provision should be applied,” said Raha. “Perhaps they haven’t understood that maturity or a psycho-social profile cannot be measured or captured in this way.”

Lawyer and juvenile law expert Anant Kumar Asthana travelled to several states last year to see how the Act was being implemented. He said that at many places, he saw medical experts write cursory and cryptic psychological reports. “It’s very casual, I have seen some of these,” he said. “Many of them simply say, ‘I have examined the child, he has the mental and physical capacity to commit the offence and he also has [the] ability to understand the consequences of his act’, and that’s it.”

Then there is the philosophical conundrum in conducting such a test: when you assess a child’s capacity to commit and understand an offence, that means you have already assumed that the offence has taken place, even before the trial has started.

Other ambiguities

The psychological assessment clause is just one of the ambiguities bedeviling the implementation of the Act – which was ushered in amidst a storm of protest over minor offenders getting off easy for serious crimes, especially in the wake of the gangrape and murder of a young women in Delhi in December 2016. A year after the new law was introduced, spoke to lawyers, judicial officers and child rights activists who pointed to other problems.

For one, there is considerable confusion on how several other provisions of the Act are to be interpreted and implemented. “The government has enacted the law but has no plan of action in place,” said Asthana. “Everywhere, there is chaos. And the casualties are the children.”

He pointed to some key lacunae: the financial scheme to implement the Act, the Integrated Child Protection Scheme, has not seen a budget increase to meet the requirements of the new law. And, children’s homes continue to be in abysmal condition.

“The minister said ‘give me one year and you won’t have any more complaints’, but what has happened since then?” Asthana asked. “It is as bad as ever. There are no systemic reforms initiated yet. District and state-level inspection committees of the new Act don’t even exist yet.”

It is difficult to estimate how many cases have been transferred to adult courts in the past year. In Mumbai at least, neither the Bombay High Court nor the women and child development department has a record of this. Based on anecdotal evidence, the figure is probably around a dozen.

Sunita Ghadge, a lawyer working exclusively in the juvenile justice system, said she was handling eight transfer cases, several of which were pending for months. She said that while the city’s juvenile justice board was functioning smoothly, the cases got stuck once they came to the adult courts. The delays are because of a variety of reasons. In one case transferred to a sessions court, the child could not be produced before it because the warrant was sent to the adult jail. “The police have no idea, where is the coordination?” she asked. “So the case is stuck.”

Ghadge pointed to another problem. According to the Act, an enquiry against a child must be concluded within four months. But in adult courts, dates are given after a month. “My question is, is the four-month rule applicable in such cases or not?” she asked. “Ultimately, this is still a minor. So why is it dragging on?”

No place of safety

Another provision of the Act says a “place of safety” must be designated for children pending trial. So far, no such space has been specifically marked. In Mumbai, the children are kept at an observation home in Dongri.

“There isn’t a single such place of safety in any district in Maharashtra,” said Vijay Doiphode, a social worker with the Resource Centre for Juvenile Justice. “There is no clarity on this.”

According to Asthana, in several states, small rooms in existing observation homes or special homes for children are simply marked out for minors whose cases have been transferred to adult courts. “But this is like a mini jail, worse than a jail,” he said. “How will these children be looked after and reformed? How will the meaningful reform and education the minister gave an assurance about come in these rooms?”

Once cases are transferred, these are to be tried by specially designated children’s courts with the proceedings presided over by sessions court judges. “Some judges are unaware of the JJ [Juvenile Justice] Act and think it is not relevant to them,” said Raha, whose organisation also deals with training judges. “Awareness is negligible.”

Government apathy

A major reason for the bumbling implementation of the new Juvenile Justice Act can be attributed to the Central government’s delay in issuing model rules for the same. The rules were finally published late in September last year, a good eight months after the Act came into effect. This delay earned the government a public reprimand from a Supreme Court judge in March.

“Effectively, the Act has been in place for only four months, since the rules came only at the end of September,” said Asthana. “If the government was really serious about rolling out effective implementation, they should have started working on the rules much earlier, as they had done in the case of the POCSO [Protection of Children from Sexual Offences] Act, 2012.”

The Centre’s delay has had a cascading effect with state governments also taking their time to frame their rules – though the process is now underway in some states, including Maharashtra, Karnataka, Gujarat and Assam. “Central rules are not enough, state realities are different,” said Doiphode. “If there are no rules, there are no guidelines, and without that the system is not in place.”