On 8th September 2017, a class II student was found murdered with his throat slit inside a washroom of the Ryan International School at Bhondsi in Haryana’s Gurugram. After the case came into the media limelight, it was transferred to CBI. The premier investigating agency did commendable work and apprehended the accused who turned out to be a class 11 student.
(In accordance with section 74 of the Juvenile Justice Act, following names are assigned: ‘Bholu’ for the accused and ‘Prince’ for the victim).
The age of the suspect was above 16 years which meant this case would see operationalisation of section 15 of the Juvenile Justice Act or JJ Act, 2015. Section 15 of the JJ Act asks the JJ Board to conduct a preliminary assessment of the juvenile in conflict with the law in order to ascertain whether the said juvenile should be tried as an adult or as a juvenile. With the declaration of Supreme Court judgment in Barun Chandra Thakur vs. Master Bholu case on 13 July 2022, some more clarity has come in the operationalisation of this section.
First of all, a brief legal context of the case! On that fateful day, Bholu was aged 16 years, 5 months, and 5 days. This meant that now JJ Board would conduct a preliminary assessment. After its assessment, the board passed an order under section 18(3) of the JJ Act requiring that there is a need to try the said child as an adult. The case was transferred to the children’s court for trial. Multiple appeals were filed first in the children’s court, then in the high court, and finally the Special Leave Petition in the Supreme Court to examine the proceedings arising out of preliminary assessment.
The first clarity that arises out of the Barun Chandra Thakur vs. Master Bholu case judgment is about the meaning of the word ‘may’ in section 15 of the JJ Act. As per the Act, the board may take the assistance of experienced psychologists or psycho-social workers, or other experts to assess the child. On a superficial reading, the usage of the word “may” would prompt one to think of it as a discretionary power of the board. However, the Supreme Court interpreted it in a different manner.
The board under the JJ Act consists of three members, one being a judicial officer first class and two social workers, one being a woman. The social worker appointed as a member could be having a degree in child psychology or psychiatry but it is not necessary. As such, the constitution of the board may not necessarily be having an expert child psychologist. The honorable Supreme Court has interpreted the statute in this context. According to the court, when the board is not comprised of a practicing professional with a degree in child psychology or child psychiatry, the expression “may”, in Section 15, would operate in mandatory form and the board would be obliged to take the assistance. However, in case the board comprises at least one member who is an expert in the field, it may take such assistance as may be considered proper by it. Furthermore, if the board chooses not to take such assistance, it would be required to specific reasons for that. This brings a lot of clarity into the statute and also places a lot of emphasis on the opinion of the expert.
The second question that the court has tried to deal with is about the method of assessment under Section 15 of the Act. In the Bholu case, the board relied heavily on the IQ score given by the psychologist which found him to have an average score of 95. Section 15 requires that assessment be done with regard to mental and physical capacity to commit the offence, ability to understand the consequences of the offence, and the circumstances in which the offence is committed. The board and the children’s court used the average IQ score as proof that the child has both the mental capacity as well as ability to understand the consequences of the offence.
In the opinion of the honorable Supreme Court, it is a grave error to consider the mental capacity and the ability to understand the consequences of the offence as one and the same. IQ may establish the mental capacity to commit an offence but more is needed to prove the ability to understand its consequences. The court goes on one step further to state that the use of the word “consequences”, which is in plurality, means that the consequences have to be not only immediate but far-reaching into the future also, and these should not only impact the victim but also the family of the victim, the accused child, and his family.
Finally, the Supreme Court highlights the lack of adequate guidelines in the JJ Act or the model rules to make the preliminary assessment. Only the liberty of taking the help of an expert is mentioned. Considering the complex nature of the assessment, there is an urgent need to have guidelines for the same. The court has left it open for the central government or the National Commission for Protection of Child Rights or the State Commission for Protection of Child Rights to consider issuing guidelines or directions in this regard that may assist and facilitate the board in making the preliminary assessment under section 15 of the Act, 2015.
The ball is now in the court of the executive to issue detailed guidelines for the preliminary assessment. NIMHANS (National Institute of Mental Health and Neurosciences) has done considerable research in child psychology. The government should take the help of the premier institute to issue the required guidelines.
With regard to Bholu, the Special Leave Petition has been rejected and the board would have to examine him again for the preliminary assessment. However, he is already 21 years old, and it remains to be seen what mechanism the board will use to do the assessment.
Rajesh Kumar Mohan is an IPS officer of the Haryana cadre. He was an Assistant Medical Officer at IOFHS.
Meenakshi Antil is a Delhi University graduate. She carries an experience of 3 years in field research.
(Disclaimer: Views expressed above are the authors’ own)